IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KASHON NATHANIEL KOHLER, 

Plaintiff, 

v. 

CITY OF EUGENE ET AL, 

Defendant. 

AIKEN, Chief Judge: 

Plaintiff, appearing pro se, 

negligence, battery, deprivation 

Case No. 6:14-cv-01879-AA 

OPINION AND ORDER 

alleges excessive force, 

of due process, public 

humiliation, and defamation of character. Pl. Amend. Compl. 3-4. 

On May 26, 2015, Defendant filed a motion to dismiss 

Plaintiff's Amended Complaint for failure to state a claim for 

which relief may be granted. See Fed. R. Ci v. P. 12 (b) ( 6) . When 

considering a motion to dismiss, a court must accept all factual 

allegations in the complaint as true and construe them in a 

light most favorable to the non-moving party. See Ashcroft v. 

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Case 6:14-cv-01879-AA Document 19 Filed 07/22/15 Page 1 of 4
Iqbal, 566 U.S. 662, 678 (2009). To survive a motion to dismiss 

a complaint must contain sufficient facts, if accepted as true, 

to state a claim that is "p~ausible on its face." Id. 

(quotations omitted) . Further, pro se litigants are held to a 

less stringent standard in which a court views the pleading 

liberally but cannot supply essential elements of a claim not 

pled. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Litmon v. 

Harris, 768 F.3d 1237, 1241 (9th Cir. 2014). Pursuant to this 

standard, Defendant's motion is granted in part and denied in 

part. 

Discussion 

Plaintiff's claims arise from an incident on May 30, 2014, 

when he was allegedly "tackled." 

Defendant argues that Plaintiff's state law claims against 

the Eugene Police Department and the City Prosecutor should be 

consolidated because the proper defendant is the City of Eugene. 

Defendant further argues that Plaintiff failed to plead adequate 

tort claim notice under Or. Rev. Stat. §30. 27 5. I agree. All 

torts caused by officers, employees, or agents of a public body 

acting within the scope of their employment constitute actions 

under Or. Rev. Stat. § 30.260-.300, which restiicts liability to 

"public bodies." Or. Rev. Stat.§ 30.265. All causes of action 

in tort, "a breach of a legal duty ... imposed by law, other than a 

duty arising from contract or quasi-contract," generally require 

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Case 6:14-cv-01879-AA Document 19 Filed 07/22/15 Page 2 of 4
notice of such claims to the offending public body within 18 0 

days after the alleged loss or injury. See Or. Rev. Stat. § 

30.275(2)(b). Plaintiff's claim arose on May 30, 2014, and 

Plaintiff fails to allege or establish that he gave notice to 

the Defendant satisfying §30.275. 

Defendant contends that Plaintiff relies upon diversity 

jurisdiction and therefore does not necessarily allege a claim 

for excessive force under 42 U.S.C. § 1983. However, construing 

the Plaintiff's complaint liberally, I find that Plaintiff 

intended to assert a federal claim pursuant to §1983. Defendant 

nonetheless argues that any §1983 claims should be dismissed 

because Plaintiff has failed to properly allege an official 

policy or custom to establish municipal liability under 42 

U.S.C. § 1983. See Monell v. Dep't. of Soc. Servs., 436 U.S. 

658, 690-91 (" [T] he touchstone of the § 1983 action against a 

government body is an allegation that official policy is 

responsible for a deprivation of rights protected by the 

Constitution.") . I agree. Plaintiff makes no such allegations 

within his original or amended complaint and does not state a 

claim against the City of Eugene. 

However, Plaintiff named the individual officers involved 

as defendants in the original complaint. See Pl. Compl. at 3. 

Despite not naming these officers in the caption of his Amended 

Complaint, Plaintiff identified Officer Ware, individually, 

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Case 6:14-cv-01879-AA Document 19 Filed 07/22/15 Page 3 of 4
within his factual allegations in support of his excessive force 

claim. See Pl. Amend. Compl. At 3. Because of the liberal 

pl'eading standards afforded~ to pro se litigants and the 

discretion provided to this court, Plaintiff is granted 30 days 

leave to amend his complaint to properly name the relevant 

officers as defendants. 

Conclusion 

For the reasons above, Defendant's motion to dismiss (doc. 

12) is granted in part and denied in part. Plaintiff's claims 

against the City of Eugene and the City Prosecutor are 

DISMISSED. Within thirty (30) days from the date of this Order, 

plaintiff shall· file a second amended complaint and name the 

officers identified in his prior complaints as defendants in the 

caption. Plaintiff is advised that failure to file an amended 

complaint as ordered will result in the dismissal of this 

proceeding. Plaintiff's motions for continuance, evidentiary 

hearing and discovery (docs. 14, 17) are denied. 

IT IS SO ORDERED. 

Dated this~ day of July, 2015. 

Ann Aiken 

U.S. District Judge 

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