UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

LINH THI MINH TRAN, 

Plaintiff, 

v. 

DARRYN J. KUEHL, BENJAMIN J. TOOPS 

and RYAN KERSEY, 

Defendants. 

ACOSTA, Magistrate Judge: 

Introduction 

Case No. 3:16-cv-707-AC 

FINDINGS & 

RECOMMENDATION 

Pro se plaintiff Linh Thi Minh Tran ("Tran") filed this action against Defendants Darryn J. 

Kuehl ("Kuehl"), Benjamin J. Toops ("Toops"), and Ryan Kersey ("Kersey") (collectively, 

"Defendants"), asserting constitutional violations under 42 U.S.C. § 1983 and Oregon common-law 

torts. Defendants move to dismiss Tran's complaint for non-compliance with federal pleading 

standards and failure to state a claim. Tran's complaint primarily contains legal conclusions, with 

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some factual elaboration. As discussed below, the conclusory nature of Tran's complaint requires 

its dismissal with leave to amend. 

Factual Background 

The following is the general factual context of this action, based on the limited factual 

allegations in the complaint. 

Tran owns property in Happy Valley, Oregon ("the Property"). She is ofVietnamese origin. 

InDecember2015, Brent Phillip Lackey ("Lackey"), a hot-water-heater repairman, called the Happy 

Valley Police from the Property. 1 Happy Valley Police Officers Kuehl and Toops responded to 

Lackey's call. Lackey made a false statement to Kuehl and Toops. Based on Lackey's false 

statement, Kuehl and Toops arrested Tran. Kuehl and Toops used an unspecified type of force to 

turn off a video recording Tran was creating and arrest her.' Tran suffered bruising on her chest and 

neck, shortness of breath, and chest pain because of Kuehl and Toops' use of force. 

During the arrest, Tran requested medical assistance from a female, which Kuehl and Toops 

did not provide. It is unclear whether Keuhl and Toops provided other medical assistance. Tran also 

requested a female officer perform any body search. Kuehl ignored her request, and searched Tran. 

While searching Tran, Kuehl touched her pants, underwear, buttocks, and genitals. Kuehl told Tran 

he would take her to jail even if she was correct inher dispute with Lackey. Kuehl also stated he did 

not believe Tran because she was Vietnamese. Kuehl and Toops transported Tran to jail in Oregon 

1 Lackey is not a party to this action. Tran filed a civil action in Multnomah County 

Circuit Court against Lackey's employer, Stan the Hot Water Man, case number 16CV19058, 

based on the events at issue in this case. 

2 Tran's complaint includes two URLs to YouTube.com, a video hosting site. Whether 

these URLs link to the video recording Tran references in her complaint is unclear - the URLs 

were non-functional when the court attempted to review them. 

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City. While in jail, Tran did not receive medical assistance, warm clothing, a warm blanket, food, 

or water. Tran does not state how long she was held in jail. 

Tran's remaining factual allegations are particularly difficult to understand. She seems to 

allege Kuehl and Toops attempted to conceal their conduct towards Tran by filing her criminal 

charges under an unknown male identity, based on the presence of a male pronoun in an "Agreement 

and Release on Recognizance" form Tran signed. Tran also alleges Kersey told unspecified persons 

that the Property would soon be foreclosed upon. No foreclosure had occurred when Tran filed her 

complaint. She also alleges Kuehl and Toops arrested her to facilitate Kersey' s improper foreclosure 

on her property. 

Legal Standard 

Federal Rule of Civil Procedure ("Rule") 8 requires complaints in federal court to contain 

"a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. Crv. 

P. 8(a)(2). Pleadings must contain sufficient factual allegations "to raise a right to relief above a 

speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A court may dismiss a 

complaint under Rule 8 if the complaint is so conclusory, confusing, or wordy that a defendant 

cannot reasonably frame a responsive pleading. Hearns v. San Bernadina Police Dep 't, 530 F.3d 

1124, 1130-32 (9th Cir. 2008). Dismissal for failure to comply with Rule 8(a)(2) does not resolve 

the merits of a case. McHenry v. Renne, 84 F.3d 1172, 1179 (9th Cir. 1996) (Rule 8 "applies to good 

claims as well as bad, and is a basis for dismissal independent of Rule 12(b)(6)."). The court must 

grant leave to amend when dismissing under Rule 8(a)(2) unless the plaintiff repeatedly files 

complaints that are noncompliant. The court construes pro se pleadings liberally and gives pro se 

plaintiffs the benefit of any doubt. Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014). 

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Nonetheless, prose plaintiffs must comply with Rule S. Johnson v. Williams, No. CV 07-1659-KI, 

200S WL S03023, at *l (D. Or. Mar. 21, 200S). 

Analysis 

Defendants, in their respective motions, seek to dismiss Tran's complaint for failure to 

comply with Rule S's pleading requirements and for failure to allege any plausible causes of action. 

Tran contends she alleges sufficient facts to state a claim against all defendants. For the reasons that 

follow, the court should grant Defendants' motions, with leave to amend. 

Defendants first argue Tran fails to satisfy Rule S's requirements because her complaint is 

conclusory and contains significant redundant material. Tran maintains that the complaint shows 

her entitlement to relief. Rule S requires a plaintiff to state "a short and plain statement of the claim 

showing the pleader is entitled to relief." FED. R. Civ. P. S(a)(2). Courts should dismiss complaints 

that are excessively "verbose, confusing, and ... conclusory." Nevije/ v. N Coast Life Ins. Co., 651 

F.2d 671, 674 (9th Cir. 19Sl). A complaint is not subjectto dismissal for noncompliance with Rule 

S due to length or excessive detail alone. Hearns v. San Bernadina Police Dep 't, 530 F.3d 1124, 

1131-32 (9th Cir. 200S). Instead, a court may dismiss a complaint under Rule S if it does not allow 

the defendant sufficient notice of the factual basis of the plaintiffs claim. Id. at 1130. 

Tran's complaint does not comply with Rule S. She alleges many causes of action with no 

more than a legal conclusion. For example, Tran alleges Kuehl and Toops "used unnecessary 

excessive force toward [Tran]." (Comp!., ECF No. 1, at 4.) To properly allege a claim for 

unconstitutionally excessive force, Tran must allege facts supporting her claim, such as what force 

the officers used and which circumstances rendered the force unnecessary. See Graham v. 

O'Connor, 490 U.S. 3S6, 397 (19S9) (the constitutionality of force used to effect an atTest depends 

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on "the facts and circumstances confronting" an officer). Without some factual elaboration, Tran's 

claim is conclusory, and thus non-compliant with Rule 8. Nevijel, 651 F.2d at 674. Tran similarly 

alleges an unlawful search, misconduct surrounding foreclosure allegations, and malicious 

prosecution, all without a plain statement of factual allegations supporting each claim. 

As a whole, Tran's complaint lacks sufficient factual substantiation, failing to provide 

Defendants fair notice of the factual basis for Tran's claims. Hearns, 530 F.3d at 1130. A 

conclusory complaint unduly burdens the defendant and the court with sifting through the complaint 

to formulate "'the short and plain statement' which Rule 8 obligated plaintiff[] to submit." See 

McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir. 1996), quoting FED. R. Crv. P. 8(a)(2). 

Therefore, instead of combing through Tran's complaint in search of facts substantiating some of 

her legal conclusions, the court should dismiss Tran's complaint without prejudice and with leave 

to file an amended complaint that complies with Rule 8. See Gottshalk v. City and County of San 

Francisco, 964 F. Supp. 2d 1147, 1155 (N.D. Cal. 2013) (dismissing under Rule 8 a prose complaint 

that "consists in large part of unsupported conclusory allegations"). 

The court should not consider Defendants' motions to dismiss for failure to state a claim 

under Rule 12(b )( 6). As currently pleaded, the complaint reflects a general failure to allege claims 

with the factual support Rule 8 requires, not a failure to sufficiently allege individual claims. 

McHenry, 84 F.3d at 1179. Tran does allege facts supporting some of claims for relief, such as her 

allegations of racial animus regarding her arrest. But "dismissal for failure to comply with Rule 8( a) 

does not depend on whether the complaint is wholly without merit." Id Tran's complaint should 

be dismissed without prejudice, to allow Tran to replead her claims in a marmer sufficient for 

Defendants to respond to the merits of her claims. 

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If Tran files an amended complaint, she must comply with Rule 8. Rule 8 requires a plaintiff 

to allege short, plain statements of fact showing the elements of any causes of action. Legal 

conclusions alone in a complaint are insufficient to show an entitlement to relief. Ashcroft v. Iqbal, 

556 U.S. 662, 678-79 (2009) ("While legal conclusions can provide the framework of a complaint, 

they must by supported by factual allegations."). Assertions that conduct was unlawful or wrongful 

are insufficient without specific factual support. Id at 680-81. 

As a final matter, some of Tran's filings with the court merit discussion. Tran filed three 

responses to Defendants' motions. (ECF Nos. 32, 34, 36.) The Local Rules of Civil Procedure 

("Local Rules") in this district restrict briefing on a motion to one response by the non-moving party 

and one reply by the moving party, unless the court authorizes further briefing. LR 7-l(e). In this 

case, the Local Rules allowed Tran only two responses - one to Kuehl and Toops' joint motion, and 

one to Kersey's motion. Tran should comply with the Local Rules in future motions practice. 

Tran also attached additional documents and alleged further facts in her responses. The court 

cannot consider new factual allegations raised in responsive pleadings. Schneider v. Cal. Dep 't of 

Corr., 151 F.3d 1194, 1197 n.2 (9th Cir. 1998). Relatedly, Tran filed a document titled "Proofs of 

New Evidence," with two video recordings attached, long after the court took this matter under 

advisement. (ECF No. 38, filed Dec. 1, 2016.) But Defendants' motions challenge the sufficiency 

of Tran's pleadings; evidence is unnecessary at this stage. The court is unaware of any federal case 

allowing video exhibits to stand in the place of sufficient factual allegations, let alone video exhibits 

filed separately from the complaint. Tran should include any relevant factual allegations in her 

amended complaint. 

I II II 

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Conclusion 

The court should GRANT Kuehl and Toops Motion to Dismiss (ECF No. 12) and Kersey's 

Motion to Dismiss (ECF No. 19), with leave to amend. The comt should allow Tran to file an 

amended complaint curing the deficiencies noted above, within 30 days of the court's order. 

Scheduling Order 

The Findings and Recommendation will be refe1Ted to a district judge for review. 

Objections, if any, are due Janumy 23, 2017. If no objections are filed, then the Findings and 

Recommendation will go under advisement on that date. 

If objections are filed, then a response is due within 14 days after being served with a copy 

of the objections. When the response is due or filed, whichever date is earlier, the Findings and 

Recommendation will go under advisement. 

DATED this 5th day of January, 2017. 

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