IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

AUSTIN GREGORY,

Plaintiff,

v.

CITY OF NEWBERG; HUNTLEY

MILLER, Personally; and BRIAN

CASEY, Personally,

Defendants.

3:15-CV-00473-BR

 

OPINION AND ORDER 

LEONARD RANDOLPH BERMAN

4711 S.W. Huber Street

Suite E-3

Portland, OR 97219

(503) 516-3715 

Attorney for Plaintiff

STEVEN A. KRAEMER

BRYCE W. HANKS

Hart Wagner, LLP

1000 S.W. Broadway

Suite 2000

Portland, OR 97205

(503) 222-4499 

Attorneys for Defendants

1 - OPINION AND ORDER

Case 3:15-cv-00473-BR Document 22 Filed 10/30/15 Page 1 of 5
BROWN, Judge.

On March 23, 2015, Plaintiff Austin Gregory filed a

Complaint in this Court against the City of Newberg, Newberg

Police Officer Huntley Miller, and Newberg Chief of Police Brian

Casey asserting claims pursuant to 42 U.S.C. § 1983 for 

(1) wrongful arrest in violation of the Fourth Amendment to the

United States Constitution; (2) excessive force in violation of

the Fourth Amendment; and (3) a claim under Monell v. Department

of Social Services, 436 U.S. 658 (1978). Plaintiff also asserted

state-law claims for negligence, false arrest, battery, and

malicious prosecution.

On June 1, 2015, Defendants filed a Motion for Judgment on

the Pleadings as to all of Plaintiff’s claims. 

On September 21, 2015, the Court issued an Opinion and Order

in which it granted Defendants’ Motion for Judgment on the

Pleadings. In particular, the Court concluded Plaintiff had not

sufficiently stated a claim for Monell liability against the City

of Newberg. The Court specifically noted

Plaintiff’s allegations . . . do not satisfy the

current pleading standard because they do not

include sufficient allegations of underlying facts

to give fair notice to Defendants or to enable

Defendants to defend themselves effectively. In

addition, Plaintiff’s factual allegations

underlying his Monell claim, even when viewed as

true, do not plausibly suggest an entitlement to

relief.

Opin. and Order at 22 (issued Sept. 21, 2015)(quotation omitted). 

2 - OPINION AND ORDER

Case 3:15-cv-00473-BR Document 22 Filed 10/30/15 Page 2 of 5
The Court, however, granted Plaintiff leave to file an Amended

Complaint no later than October 9, 2015, to cure the deficiencies

of his Monell claim among other things.

Plaintiff did not file an Amended Complaint. On 

October 13, 2015, Plaintiff filed a Motion for Extension of Time

to File A [sic] Amended Complaint in which he seeks an order

requiring Defendants to produce discovery related to his Monell

claim and permitting Plaintiff an additional 60 days to file an

Amended Complaint. Defendants oppose Plaintiff’s request for

discovery.

Plaintiff relies on Federal Rule of Civil Procedure 56(d) to

support his request for discovery. Rule 56(d), however, permits

only the nonmovant in a summary-judgment motion to request

additional time to obtain affidavits, declarations, or discovery

to present “essential facts to justify its opposition.” As

noted, Defendants filed a Motion for Judgment on the Pleadings

rather than a summary judgment motion. 

In addition, as the Court noted in its September 21, 2015,

Opinion and Order, a judgment on the pleadings is properly

granted when, taking all allegations in the nonmoving party's

pleadings as true, the moving party is entitled to judgment as a

matter of law. Compton Unified Sch. Dist. v. Addison, 598 F.3d

1181, 1185 (9th Cir. 2010). "To survive a Rule 12(c) motion, the

complaint must contain sufficient factual matter, accepted as

3 - OPINION AND ORDER

Case 3:15-cv-00473-BR Document 22 Filed 10/30/15 Page 3 of 5
true, to state a claim to relief that is plausible on its face." 

Davis v. Astrue, Nos. C–06–6108 EMC, C–09–0980 EMC, 2011 WL

3651064, at *1 (N.D. Cal. Aug. 18, 2011)(citation omitted). See

also Cafasso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055

n.4 (9th Cir. 2011)(A Rule 12(c) motion is “functionally

identical to a Rule 12(b)(6) motion to dismiss for failure to

state a claim, and therefore the same legal standard applies."). 

In its September 21, 2015, Opinion and Order the Court concluded

Plaintiff had not provided a sufficient factual basis in his

Complaint to support his Monell claim. To cure the deficiencies

in his Monell claim Plaintiff would have to state sufficient

factual allegations to support such a claim on the information

that he currently possesses. If Plaintiff does not already know

facts sufficient to state a claim, he is not entitled to use this

litigation to investigate whether he has a claim to state. Thus,

the Court declines to permit Plaintiff to engage in what might be

viewed as a “fishing expedition” to attempt to find facts to

plead his Monell claim sufficiently.

Accordingly, the Court denies Plaintiff’s request for an

order requiring Defendants to produce the discovery that

Plaintiff sets out in his Amended Declaration (#19).

CONCLUSION

For these reasons, the Court DENIES in part Plaintiff’s

4 - OPINION AND ORDER

Case 3:15-cv-00473-BR Document 22 Filed 10/30/15 Page 4 of 5
Motion (#18) for Extension of Time to File A [sic] Amended

Complaint to the extent that Plaintiff seeks an order requiring

Defendants to produce discovery. The Court GRANTS in part

Plaintiff’s Motion (#18) for Extension of Time to the extent that

the Court grants Plaintiff an extension of time to November 13,

2015, to file an Amended Complaint to cure the deficiencies set

out in the Court’s September 21, 2015, Opinion and Order.

IT IS SO ORDERED.

DATED this 30th day of October, 2015.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

5 - OPINION AND ORDER

Case 3:15-cv-00473-BR Document 22 Filed 10/30/15 Page 5 of 5