PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAMIAN CHRISTOPHER 

STRICKLAND,

Plaintiff,

v.

ALYDIA O’NEILL,

Defendant.

Case No. 3:15-cv-00635-SI

OPINION AND ORDER

Damian Christopher Strickland, 17911 SE Caruthers Street, Portland, OR 97233. Plaintiff pro se.

Francis T. Barnwell and Liani J. Reeves, BULLARD LAW, 200 SW Market Street, Suite 1900, 

Portland, OR 97201. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Plaintiff Damian Christopher Strickland (“Plaintiff”) brings pro se an employment 

discrimination claim under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. 

§ 2000e, et seq., against Defendant Alydia O’Neill (“Defendant”). Before the Court is 

Defendant’s motion to dismiss under Federal Rules of Civil Procedure (“FRCP”) 12(b)(1) and 

(b)(6). For the reasons that follow, Defendant’s motion is granted and this case is dismissed with 

prejudice.

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PAGE 2 – OPINION AND ORDER

STANDARDS

A. FRCP 12(b)(1): Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction. Gunn v. Minton, --- U.S. ---, 133 S. Ct. 

1059, 1064 (2013) (citation omitted). As such, a court is to presume “that a cause lies outside this 

limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting 

jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations 

omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for 

Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A motion to dismiss under 

FRCP 12(b)(1) for lack of “subject-matter jurisdiction, because it involves a court’s power to 

hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630

(2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any 

party, or by the court on its own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 

506 (2006); FRCP 12(b)(1). The Court must dismiss any case over which it lacks subject matter 

jurisdiction. FRCP 12(h)(3).

A FRCP 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either 

“facial” or “factual.” See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject 

matter jurisdiction is based on the assertion that the allegations contained in the complaint are 

insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual where ‘the 

challenger disputes the truth of the allegations that, by themselves, would otherwise invoke 

federal jurisdiction.’” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th 2013) (quoting Safe Air for 

Everyone, 373 F.3d at 1039)). When a defendant factually challenges the plaintiff’s assertion of 

jurisdiction, a court does not presume the truthfulness of the plaintiff’s allegations and may 

consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 

1131 (9th Cir. 2012); Robinson, 586 F.3d at 685; Safe Air for Everyone, 373 F.3d at 1039. A 

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factual challenge “can attack the substance of a complaint’s jurisdictional allegations despite 

their formal sufficiency.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (citation and 

quotation marks omitted).

B. FRCP 12(b)(6): Failure to State a Claim

A motion to dismiss for failure to state a claim may be granted only when there is no 

cognizable legal theory to support the claim or when the complaint lacks sufficient factual 

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., 

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual 

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint 

and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 

F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint 

“may not simply recite the elements of a cause of action, but must contain sufficient allegations 

of underlying facts to give fair notice and to enable the opposing party to defend itself

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from 

the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office 

Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the 

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 

U.S. 662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an 

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the 

expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial 

plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 

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inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing 

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

C. Pro Se Plaintiffs

Pro se plaintiffs—many of whom file in forma pauperis—do receive some special 

dispensation. A court must liberally construe the filings of a pro se plaintiff and afford the 

plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 

“A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear 

that the deficiencies of the complaint could not be cured by amendment.” Karim-Panahi v. Los 

Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (citation and internal quotation marks 

omitted). But even a pro se plaintiff, particularly one filing in forma pauperis, must offer more 

than “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’”

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 

DISCUSSION

Defendant argues that this action should be dismissed in its entirety pursuant to 

FRCP 12(b)(1) and 12(b)(6). First, Defendant argues that the Court lacks subject matter 

jurisdiction over this case because Plaintiff failed to exhaust his administrative remedies. Second, 

Defendant argues that Plaintiff’s second amended complaint fails to state a claim because 

Plaintiff has not filed his action within the applicable statute of limitations. Because the Court 

finds that it does not have subject matter jurisdiction over this case and dismisses Plaintiff’s 

action on that basis, the Court does not reach Defendant’s second argument.

Plaintiff’s second amended complaint brings a claim for race discrimination under Title 

VII. The Ninth Circuit has expressly held that Title VII procedures require the exhaustion of 

administrative remedies before a court may acquire subject matter jurisdiction. Vasquez v. Cnty. 

of L.A., 349 F.3d 634, 644 (9th Cir. 2004); B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1099 

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PAGE 5 – OPINION AND ORDER

(9th Cir. 2002). Thus, before a plaintiff can file a Title VII discrimination claim, he must first 

exhaust the administrative remedies provided by the Equal Employment Opportunity 

Commission. 42 U.S.C. § 2000e-5(b). There is a maximum of a 300-day time limit for this 

administrative remedy, and Plaintiff’s termination occurred on July 20, 2013,1more than 300 

days ago. Id. § 2000e-5(e)(1). Plaintiff’s second amended complaint does not allege that he 

exhausted his federal administrative remedies before bringing his Title VII claim, nor does 

Plaintiff dispute Defendant’s assertion that he has not exhausted his administrative remedies.2

Because Plaintiff did not exhaust his administrative remedies, the Court does not have 

subject matter jurisdiction over his Title VII claims. Further, at this point, Plaintiff cannot meet 

the timing requirement for filing a complaint with the EEOC. See id. § 2000e-5(e)(1). 

Accordingly, his claim must be dismissed with prejudice. 

CONCLUSION

Defendant’s motion to dismiss (Dkt. 26) is GRANTED and this case is DISMISSED with 

prejudice.

IT IS SO ORDERED.

DATED this 9th day of March, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

 

1

The Court notes that Plaintiff does not allege an ongoing violation. Dkt. 24 at 3.

2 On January 29, 2016, Plaintiff filed a “Motion to Receive Relief” (Dkt. 35), which the 

Court treated as Plaintiff’s response to Defendant’s motion to dismiss. Dkt. 36. Because 

Plaintiff’s “Motion to Receive Relief” failed to address Defendant’s arguments in Defendant’s 

motion to dismiss, the Court permitted Plaintiff to file another response to Defendant’s motion 

by February 29, 2016. Id. Plaintiff did not do so.

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