Joseph Hall v. City of Portland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2023
• Docket: 22-35705
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSEPH HALL, an individual, No. 22-35705

Plaintiff-Appellant, D.C. No. 3:22-cv-00074-HZ

v. MEMORANDUM* CITY OF PORTLAND, a municipal corporation; EDWARD TEVIS WHEELER, an individual,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, Chief District Judge, Presiding

Submitted August 24, 2023** Portland, Oregon

Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.

Plaintiff-Appellant Joseph Hall was injured during a confrontation with

protesters in Portland, Oregon. He filed this suit against the City of Portland and

Mayor Wheeler, alleging they violated his substantive due process rights by failing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). to protect him. The district court granted the motion to dismiss the complaint. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court’s dismissal

of Hall’s complaint.

In general, the Due Process Clause does not impose an affirmative obligation

on the state to protect individuals from “invasion by private actors.” DeShaney v.

Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 189, 195 (1989). The state-created

danger doctrine, an exception to this general rule, requires a plaintiff to establish that

“(1) a state actor’s affirmative actions created or exposed him to ‘an actual,

particularized danger [that he] would not otherwise have faced,’ (2) that the injury

he suffered was foreseeable, and (3) that the state actor was deliberately indifferent

to the known danger.” Sinclair v. City of Seattle, 61 F.4th 674, 680 (9th Cir. 2023)

(quoting Hernandez v. City of San Jose, 897 F.3d 1125, 1133–34 (9th Cir. 2018)).

Here, Hall fails to meet his burden to establish the first element: that the city’s

affirmative acts exposed him to a particularized danger. In cases where our court

has identified an affirmative state act that satisfies the first prong of our state-created

danger test, law enforcement typically engaged in direct contact with the victim.

See, e.g., Martinez v. City of Clovis, 943 F.3d 1260, 1272 (9th Cir. 2019);

Hernandez, 897 F.3d at 1135; Munger v. City of Glasgow Police Dep’t, 227 F.3d

1082, 1087 (9th Cir. 2000). But here, Hall never interacted with officers at all.

Instead, the facts here closely resemble those in Sinclair, where a victim was fatally

2 shot in the protester-held area of Seattle known as the Capitol Hill Occupied Protest

or “CHOP.” Sinclair, 61 F.4th at 677. There, the plaintiff stated that city officials

ordered police to withdraw from CHOP, made public statements praising the

activities of protesters, and actively supported them with resources. Id. at 677, 681–

82. Even so, the victim’s claims failed because although the city may have exposed

the victim to an actual danger through its affirmative acts, the danger was not

particularized to him. Id. at 681, 683.

Hall’s claim fails for the same reason. Although Hall plausibly alleges

exposure to an actual danger, the danger was not any more particularized than the

city-created danger in Sinclair. Rather, Hall’s allegations describe the danger as

generalized and experienced by all who chose to enter Portland. See id. at 683. He

describes “city-wide” danger “on a grand and unprecedented scale,” but does not

explain why he in particular was endangered differently than the public at large.

Since Hall fails to satisfy the first element of the state-created danger doctrine, we

need not address the other elements.

Next, Hall argues that his complaint presents a valid Monell claim against the

City of Portland, referring to his general allegations of “unconstitutional conduct”

and “dereliction of public duty.” But among other elements, Hall’s Monell claim

must sufficiently allege a deprivation of a constitutional right. See Monell v. Dep’t

of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978); Lockett v. Cnty. of Los

3 Angeles, 977 F.3d 737, 741 (9th Cir. 2020). As explained, Hall has not sufficiently

alleged any violation of his constitutional due process rights. He states he has the

“right to be free from unjustified intrusions upon his personal security and personal

liberty,” followed by a list of vague, conclusory statements regarding the alleged

policies and actions of the City. Thus, he fails to establish the first element under

Monell.

AFFIRMED.