JAMES E. ROSS, 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

Plaintiff, 

6: l 5-cv-1900-TC 

FINDINGS & RECOMMENDATION 

v. 

LANE COMMUNITY COLLEGE, 

Defendant. 

COFFIN, Magistrate Judge: 

Prose plaintiff, James Ross, instituted this action on July 30, 2015, in the United States 

District Court for the District ofPue1to Rico. That court transferred the case here on September 16, 

2015. This action reiterates a complaint plaintiff filed against Lane Community College in Nevada 

in 2014 which was dismissed as deficient several times before being transferred to this court and 

ultimately dismissed without fi.uther leave to amend. See Case No. l 4-cv-1235-TC. 

Plaintiff again alleges a violation of his civil rights related to Lane Community College 

security summoning police to aiTest him for trespass on September 7, 2012 despite his alleged status 

as a student. Plaintiff moves to proceed in forma pauper is (IFP). A review of plaintiff's application 

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reveals he is unable to afford the costs of litigation and his application is therefore granted. 1 

However, for the reasons stated below, the clerk of the court shall not issue process 

The court should dismiss, at the earliest practical time, certain IFP actions that fail to state 

a claim. 28 U.S.C. § 1915(e)(2)(B)(ii). In determining the sufficiency ofa prose complaint, the 

court must be mindful to construe it liberally in favor of the plaintiff. Haines v. Kerner, 404 U.S. 

519, 520-21 (1972). The court must "accept as true all of the allegations in the complaint and all 

reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the 

plaintiff." Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). 

A complaint must comply with the pleading requirements of the Federal Rules of Civil 

Procedure, as explained in the Supreme Court's decisions in Bell Atlantic Coro. v. Twombly, 550 

U.S. 544 (2007), and Ashcroft v. Igbal, 556 U.S. 662 (2009). Rule 8(a)(2) requires that a complaint 

contain "a sh01t and plain statement of the claim showing that the pleader is entitled to relief." 

However, 

[w]hile a complaint ... does not need detailed factual allegations, a plaintiff's 

obligation to provide the "grounds" ofhis "entitle[ment] to relief' requires more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of action 

will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 

209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal 

conclusion couched as a factual allegation"). Factual allegations must be enough to 

raise a right to relief above the speculative level.. .. 

Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (2007) (citations omitted). Moreover, the Supreme 

Court has emphasized that, when assessing the sufficiency of any civil complaint, a court must 

distinguish factual contentions-which allege behavior on the patt of the defendantthat, if true, would 

satisfy one or more elements of the claim asserted-and "[t]hreadbare recitals of the elements ofa 

1

The Puerto Rico comt denied the motion to proceed IFP apparently because of improper 

venue. This court considers the motion, although not refiled, anew. 

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cause of action, supported by mere conclusory statements." Ashcroft v. Igbal, 556 U.S. at 678 

(2009). In short, "a complaint must contain sufficient factual matter, accepted as true, to state a 

claim for relief that is plausible on its face." Id. 

Where a complaint can be remedied by an amendment, a district court may not dismiss the 

complaint with prejudice, but must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34 

(1992). 

As noted in plaintiffs previous case, it is clear that plaintiff has been advised of the necessity 

to provide a sho1t and plain statement of the claim showing that he is entitled to relief and that he 

must plead more than labels and conclusions or a formulaic recitation of the elements of a cause of 

action. 

The current iteration of his complaint against Lane Community College does not remedy the 

previous deficiencies noted by this and the Nevada comt. Plaintiff simply alludes to some vague 

conduct by an unnamed security officer, an "associate dean," and a "disciplinary h·ibunal" and then 

concludes, in conclusory fashion, that the security officer acted with racial discrimination. Plaintiff 

again seeks his official transcript, thousands of dollars in damages and an injunction against future 

bigotty. 

As the comt noted before, although it is possible to conceive an action under section 1983 

for due process or equal protection violations, 2 the complaint fails to allege sufficient factual support 

to make such claims plausible. 

To prevail on a claim under 42 U.S.C. § 1983, a plaintiff must show: (1) the deprivation of 

2

While a claim for a hostile environment is possible under Title IX in the education 

environment,~ Chancellor v. Pottsgrove Sch. Dist., 501 F.Supp.2d 695, 704 (E.D.Pa.2007), 

such claim cannot be premised on the basis of race. See 28 U.S.C. § 168l(a) (prohibits 

discrimination on the basis of sex only), See also Jackson v. Birmingham Bd. of Educ., 544 U.S. 

167, 173 (2005). 

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any rights, privileges, or immunities secured by the Constitution and laws; (2) by a person acting 

under the color of state law. 42 U.S.C. § 1983. "Section 1983 itself creates no substantive rights; it 

provides only a procedure for redress for the deprivation of rights established elsewhere." Sykes v. 

James, 13 F.3d 515, 519 (2d Cir. 1993). As noted above, it is possible to conceive a due process or 

equal protection violation is asse1ted, but such claims are not plausible. 

To make out a substantive due process claim, plaintiff must demonstrate a violation of a 

liberty or property interest protected by the Due Process Clause. It is well-settled, however, that 

education is not among the rights afforded explicit protection under our Federal Constitution, and 

thus, the Fourteenth Amendment does not protect a public education as a substantive fundamental 

right. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973). Fmther, there appears to 

be no constitutionally protected right to a transcript. See Rafano v. Patchogue-Medford School Dist., 

2009 WL 789440 at * 8 (E.D.N.Y. March 20, 2009) (no law supporting right to an accurate 

transcript). In addition, plaintiff fails to allege what process was given or denied that allegedly 

resulted in the denial of any prope1ty interest, protected or not, or how such failure of process 

resulted from a custom or policy of Lane Community College. 

The Equal Protection Clause of the Fomteenth Amendment protects members of a suspect 

class from being treated differently than others similarly situated. City of Cleburne v. Cleburne 

Living Ctr., Inc., 473 U.S. 432, 439 (1985). Plaintiff fails to allege a sufficient factual basis 

demonstrating such treatment. 

Moreover, section 1983 does not impose liability under a respondeat superior, Monell v. 

Department of Social Services of City of New York, 436 U.S. 658, 691 (1978), but plaintiff only 

names Lane Community College as defendant and does not allege any deprivation as a result of the 

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schools' custom or policy.3 

Plaintiff has been repeatedly advised by two courts regarding the factual basis needed to 

plead a cause of action and has had numerous opp01tunities to provide a sufficient pleading. 

Plaintiffs latest complaint does nothing to prevent the comt from concluding that any further 

attempts at amendment would be futile. In addition, plaintiff now has the additional hurdle of failing 

to comply with the statute oflimitations for bringing an action under section 1983. Because section 

1983 does not contain a statute of limitations, federal courts apply the forum state's statute of 

limitations for personal injury claims. 42 U.S.C. § 1988(a) (gaps in federal civil rights acts should 

be filled by state law); Wilson v. Garcia, 471 U.S. 261, 276 (1985) (specifying that federal courts 

borrow state personal injury statutes of limitations); Plumeau v. School District# 40 County of 

Yamhill, 130 F.3d 432, 438 (9th Cir. 1997) (same). Oregon's statute of limitations for torts is two 

years. O.R.S. § 12.110(1 ); see also O.R.S. § 30.275(9) (action against a public body orits employees 

shall be commenced within two years). In order to determine the date upon which the statute of 

limitations begins to run, that is, the date that a.plaintiffs claim accrues, federal interpretations of 

accrual are controlling. Johnson v. State of California, 207 F.3d 650, 653 (9th Cir. 2000). Under 

federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is 

the basis of the action. Lukovskv v. City and County of San Francisco, 535 F.3d 1044, 1048{9th Cir. 

2012). 

Plaintiff instituted this action on July 30, 2015, alleging racial discrimination occu11'ing on 

September 7, 2012. The alleged injury, of which plaintiff would have been aware on September 7, 

2012, occurred more than two years prior to the commencement of this action. Amendment would 

3

Plaintiff does allege that the school failed to reprimand discriminatory behavior, but fails 

to provide a plausible factual basis for such conclusion. 

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be futile for this additional reason. Accordingly, the complaint should be dismissed without leave 

to amend. 

This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Coutt of appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district coutt's judgment or appealable order. The 

patties shall have foutteen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the coutt. Thereafter, the patties shall have 

foutteen (14) days within which to file a response to the objections. Failure to timely file objections 

to any factual determination of the Magistrate Judge will be considered as a waiver of a patty's right 

to de novo consideration of the factual issues and will constitute a waiver of a patty's right to 

appellate review of the findings of fact in an order or judgment entered pursuant to this 

recommendation. 

DATED this _if day of October 2015. 

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