Barber v. Vance et al

Motion to Dismiss for Failure to State a Claim and Response to Plaintiff's Motion for Declaratory Judgment on Claim 1.

D. Or.May 5, 2017

Page 1 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 ELLEN F. ROSENBLUM Attorney General JESSE B. DAVIS #052290 Senior Assistant Attorney General Department of Justice 100 SW Market Street Portland, OR 97201 Telephone: (971) 673-1880 Fax: (971) 673-5000 Email: jesse.b.davis@doj.state.or.us Attorneys for Defendants Ellen Rosenblum, Brad Avakian, Kate Brown, Ben Cannon, Lynne Saxton IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BENJAMIN BARBER, Plaintiff, v. MEAGAN VANCE in her personal capacity and ELLEN ROSENBLUM, BRAD AVAKIAN, KATE BROWN, BEN CANNON, LYNNE SAXTON in their official capacity, Defendants. Case No. 3:16-cv-02105-AC STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 CERTIFICATE OF CONFERRAL Counsel for the State Defendants making this motion certify that in accordance with LR 7-1, he conferred in good faith with Plaintiff Benjamin Barber by email on May 1, 2017, regarding this motion, but the parties were unable to resolve the issues presented herein. MOTION Pursuant to Federal Rule of Civil Procedure 12(b)(4), (5), and (6), Defendants Ellen Rosenblum, Brad Avakian, Kate Brown, Ben Cannon, and Lynne Saxton (collectively, “State Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 1 of 18 Page 2 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Defendants”), appearing specially and without waiver of any defense, respectfully move this Court for an order dismissing all of Plaintiff’s claims with prejudice, or alternatively, for an order directing Plaintiff to make his claims more definite and certain. Fed. R. Civ. P. 12(e). The State Defendants are elected officials or directors of Oregon state agencies. Kate Brown is the Governor of the State of Oregon. Ellen Rosenblum is the Attorney General. Brad Avakian is the Commissioner of the Oregon Bureau of Labor and Industry. Ben Cannon is the Executive Director of the Oregon Higher Education Coordinating Commission. Lynne Saxton is the Director of the Oregon Health Authority. All are named in their official capacities. The only thing that is clear from Plaintiff’s claims is that he seeks to attack his criminal conviction by an Oregon state court. This much is clear, however: First, Plaintiff’s claims are barred, in whole or in part, because Plaintiff is a fugitive from justice and is therefore stripped of his ability to invoke the resources of this Court. Second, Plaintiff’s claims are barred, in whole or in part, by the proper deference to Oregon’s criminal proceedings under Younger abstention or the bar of Heck v. Humphrey. Third, Plaintiff’s claims are barred, in whole or in part, by the Eleventh Amendment to the United States Constitution. Fourth, Plaintiff’s pleadings fail to establish the kind of direct involvement by any State Defendant that is required to support liability. Fed. R. Civ. P. 12(b)(6). Fifth, Plaintiff has failed to serve process on any State Defendant. Fed. R. Civ. P. 12(b)(5). Finally, should the Court permit any part of this action to go forward, or permit Plaintiff to replead in any respect, State Defendants respectfully request that the Court direct Plaintiff to make his complaint more definite and certain. Fed. R. Civ. P. 12(e). MEMORANDUM OF LAW I. BACKGROUND A. Factual and procedural background. Plaintiff was charged in Oregon state court with nine criminal counts of Unlawful Dissemination of an Intimate Image under ORS 163.472. Davis Decl. Ex. 2 (Case Register in Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 2 of 18 Page 3 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 State of Oregon v. Barber, Washington County Circuit Court, Case No. 16CR46339).1 These charges stemmed from his posting intimate images of his ex-wife, Meagan Vance, to the internet. While that criminal proceeding was pending, Plaintiff filed this action (or its predecessor action) on November 1, 2016, naming as defendants (1) Ms. Vance, (2) her attorney, (3) Marie Atwood, the Deputy District Attorney who prosecuted the criminal case against him, and (4) the State of Oregon. Docket 1. Plaintiff sought money damages and injunctive relief barring the continuation of the state criminal prosecution. Plaintiff immediately sought preliminary injunctive relief to bar the prosecution, which the Court denied on the basis of Younger abstention. Docket 5, 9. Plaintiff was convicted on five counts on November 10, 2016. Atwood Decl. ¶ 3; Davis Decl. Ex. 2 at 1-2. After he was sentenced, Plaintiff renewed his motion for preliminary injunctive relief, which this Court again denied on the basis of Younger. Docket 20, 22. Plaintiff appeared in person for his sentencing hearing on December 1, 2016. Atwood Decl. ¶ 3. Among other things, the trial court sentenced Plaintiff to six months’ incarceration and ordered Plaintiff to remove all images and videos of the victim from his computer and from the internet. Davis Decl. Ex. 3 at 2, 4. The court also gave Plaintiff approximately 24 hours to put his affairs in order and report to the Washington County Sheriff’s Office for incarceration at 7:00 pm on December 2, 2016. Atwood Decl. ¶ 3; Davis Decl. Ex. 3 at 2 (Amended Judgment). Plaintiff failed to report as ordered. Atwood Decl. ¶ 4. The state court promptly issued a warrant for his arrest. Atwood Decl. ¶ 4. Plaintiff initiated an appeal of his conviction. Davis Decl. Ex. 5 at 2. On March 29, 2017, the Oregon Court of Appeals dismissed the appeal because Plaintiff had absconded from supervision and was a fugitive from justice. Davis Decl. 1 State Defendants request that the Court take judicial notice of the docket of the Oregon state courts. Fed. R. Evid. 201; Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (permitting court to consider, on a Fed. R. Civ. P. 12(b)(6) motion, matters that are subject to judicial notice. Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 3 of 18 Page 4 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Ex. 6. Plaintiff remains out of custody. Atwood Decl. ¶ 4; Affidavit of Plaintiff at 2 (Docket 37) (statement by Plaintiff stating affirmatively that he was a fugitive as of February 21, 2017). Meanwhile, on February 21, 2017, Plaintiff filed another document entitled “Complaint” bearing this case’s case number. Docket 38. That Complaint no longer names the State of Oregon, Marie Atwood, or Melanie Kebler as defendants.2 That Complaint maintains the defendant status of Ms. Vance, and names the State Defendants as defendants for the first time. B. Plaintiff’s claims. Plaintiff asserts seven federal claims for relief. While the claims are difficult to understand, State Defendants attempts to summarize them. Plaintiff’s first claim for relief arises under 42 U.S.C. § 1983, in which he contends that the Oregon criminal statute under which he was convicted, ORS 163.472, violates his right to free speech under the First Amendment and his right to certain copyright protections under 17 U.S.C. § 106. In his second claim, Plaintiff asserts claims under 42 U.S.C. §§ 1981, 1983, and 1985 to remedy discrimination based on his race and gender. In his third claim, Plaintiff appears to assert a § 1983 claim for violation of religious liberty under the First Amendment. In his fourth claim, Plaintiff asserts a § 1983 claim premised on a violation of his right to be free of crimes of violence motivated by gender under 42 U.S.C. § 13981. In his fifth claim, Plaintiff asserts a § 1983 claim based on his right to be free from “discrimination in federal assisted programs” under 42 U.S.C. § 2000d. In his sixth claim, Plaintiff asserts a § 1983 claim premised on a violation based on his right to be free from discrimination in “public accommodation assisted programs” under 42 U.S.C. § 2000a. Finally, 2 An amended pleading generally supersedes the original pleading. See Ferdik v. Bonzelet, 963 F2d 1258, 1262 (9th Cir. 1992) (precluding reference to earlier versions of a complaint as a means of determining who may be considered a defendant in a later pleading); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 152, 1546 (9th Cir. 1990) (“[t]he fact a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”). State Defendants proceed under the assumption that Plaintiff no longer seeks any relief from Ms. Atwood. Should Plaintiff contend otherwise, Ms. Atwood reserves her right to raise any relevant defense, including insufficiency of service of process and Eleventh Amendment immunity. Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 4 of 18 Page 5 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 in his seventh claim, Plaintiff asserts a § 1983 claim based on his right to be free from discrimination in public education pursuant to 42 U.S.C. § 2000c. See Compl. ¶¶ 1-7. The State defendants now move to dismiss all of Plaintiff’s claims for relief. II. LEGAL STANDARDS A. General pleading standards under FRCP 12(b)(6). The Court’s review of a motion to dismiss is limited to the face of the Complaint, documents attached to the Complaint, documents referenced by the Complaint whose authenticity is not disputed, and matters of which the Court may take judicial notice. Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). The Court construes allegations of a complaint in the plaintiff’s favor. Sun Sav. & Loan Ass’n v. Dierdorff, 825 F.2d 187, 191 (9th Cir. 1987). A complaint may be dismissed pursuant to Rule 12(b)(6) “for one of two reasons: (1) lack of a cognizable legal theory or (2) insufficient facts under a cognizable legal theory.” Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). B. To state claims under 42 U.S.C. § 1983, Plaintiff must plead sufficient specific facts from which the Court could plausibly find that each individual State Defendant directly participated in the deprivation of his rights. To state a claim, a complaint must plausibly suggest that the plaintiff is entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009. A claim is plausible when it contains sufficient factual content to permit a reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678. Requiring plausibility does not require probability, but it does require more than a mere “possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 555). Factual content that is merely “consistent with” liability “stops short of the line between possibility and plausibility.” Id. The Court is not required to accept legal conclusions couched as factual allegations. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. Determining whether a complaint states a plausible claim for relief is a “context-specific task,” but where the well-pleaded facts do not Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 5 of 18 Page 6 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 permit the court to infer more than the mere possibility of misconduct, the complaint has not shown that the pleader is entitled to relief as required by Fed. R. Civ. P. 8(a)(2. Id. at 679. To establish individual liability under section 1983, “a plaintiff must plead that each Government-official, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556 U.S. at 676; Monell v. Dep’t of Soc. Serv’s of City of New York, 436 U.S. 658, 694 (1978 (no vicarious liability under § 1983). The Complaint must “make clear exactly who is alleged to have done what to whom, to provide each individual with fair notice as to the basis of the claims against him or her, as distinguished from collective allegations against the state.” Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008 (emphasis in original); Lacey v. Maricopa Cnty., 649 F.3d 1118, 1136 (9th Cir. 2011 (same). Even under less stringent pleading standards that the Court may apply to self-represented litigants, liberal construction of pleadings does not justify a conclusion that “any document filed in a court giving some notice of a claim satisfies the requirements of the Federal Rules.” Classic Auto Refinishing v. Marino, 37 F.3d 1354, 1357 (9th Cir. 1994). Complaints filed pro se still must allege, with some particularity, specific acts committed by the defendants. Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). “Vague and conclusory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.” Ivey v. Bd of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Pro se complaints must comply with Fed. R. Civ. P. 8(a)(2) and contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Marino, 37 F.3d at 1357. III. PLAINTIFF’S COMPLAINT SHOULD BE DISMISSED. A. Plaintiff’s First Claim should be dismissed because he is a fugitive. The “fugitive disentitlement doctrine” traditionally has been invoked to bar a fugitive from justice from obtaining review of a criminal conviction. See Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (stating that a fugitive criminal defendant who seeks to invoke the processes of the law while flouting them is “disentitled[d] . . . to call upon the resources of the Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 6 of 18 Page 7 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Court for determination of his claims”). The doctrine has also been applied in civil cases. Conforte v. Comm’r of Internal Revenue, 692 F.2d 587, 589 (9th Cir. 1982) (noting that the doctrine “should apply with greater force in civil cases where an individual’s liberty is not at stake”). Further, the doctrine has been invoked as a basis for precluding a fugitive plaintiff from proceeding with a civil rights action. See Atilano v. Gilbert, 65 F.3d 174, *1 (9th Cir. 1995) (unpublished) (affirming dismissal of § 1983 action). There is no controlling case law in the Ninth Circuit on how directly connected the civil proceedings to be dismissed and the proceedings from which a party is a fugitive must be. Conforte, 692 F.2d at 590 (stating, “[w]e need not decide whether Molinaro demands such a nexus requirement” since in the two proceedings in that case were clearly parts of a general tax evasion scheme). But the Ninth Circuit has recently narrowed the applicability of the doctrine. Mastro v. Rigby, 764 F.3d 1090, 1095-96 (9th Cir. 2014). In Etherly v. Oregon, 2007 WL 582401, at *2 (D. Or. 2007), this Court noted three factors that courts typically consider in determining whether to apply the doctrine: (1) a nexus between the proceedings to be dismissed and the fugitive status; (2) the dismissal and fugitive status must be contemporaneous; and (3) clear evidence that the person to be sanctioned has fled or is in hiding.3 All three factors warrant dismissal of Plaintiff’s first claim. There is a direct nexus between the state criminal proceedings from which Plaintiff is a fugitive and his first claim for relief. Plaintiff’s first claim is, in essence, a collateral attack on his criminal conviction on the grounds that the criminal statute at issue, ORS 163.472, is an unconstitutional restriction on speech and deprived him of copyrights in the involved images in violation of federal copyright law. See Compl. ¶ 49. Plaintiff clearly absconded and is currently a fugitive. Atwood Decl. ¶ 4; Affidavit of Plaintiff at 2 (Docket 37). Plaintiff’s first claim is barred by fugitive disentitlement. 3 The State Defendants do not concede that Etherly actually imposed a nexus requirement, or that such a requirement would be correct, and reserve their right to assert fugitive disentitlement as a defense to all of Plaintiff’s claims. But for present purposes, the State Defendants assert that defense only against Plaintiff’s first claim and any other vehicle by which Plaintiff seeks to collaterally attack his conviction. Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 7 of 18 Page 8 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 To the extent that any of Plaintiff’s remaining claims have any connection to his conviction, those claims must also be dismissed. B. The Court should reject Plaintiff’s first claim and other claim having any connection to his conviction under either Younger abstention or the rule of Heck v. Humphrey. Plaintiff’s collateral attack on his conviction cannot succeed for an additional reason. State of Oregon v. Barber is an ongoing state criminal proceeding, so the Court should abstain under Younger v. Harris, 401 U.S. 37 (1971). In Younger, the Supreme Court declined to enjoy a pending state criminal prosecution under a state law that the plaintiff, much like in this case, argued violated the First Amendment. 401 U.S. at 40-41. Under Younger abstention, a federal court must abstain when four requirements are met: (1) a state-initiated proceeding is ongoing; (2) the proceeding implicates important state interests; (3) the federal plaintiff is not barred from litigating federal constitutional issues in the state proceeding; and (4) the federal court action would enjoin the proceeding or have the practical effect of doing so, i.e., would interfere with the state proceeding in a way that Younger disapproves. San Jose Silicon Valley Chamber of Commerce Political Action Comm. v. City of San Jose, 546 F.3d 1087, 1092 (9th Cir. 2008) (hereinafter “SJSVCCPAC”). This Court has already held that Younger abstention applies. The Court denied Plaintiff’s first motion for preliminary injunctive relief, holding that Younger applied and none of the exceptions to Younger applied. Opinion and Order Denying Motion for Temporary Restraining Order (Docket 9 at 9-13). After he was convicted, Plaintiff renewed his motion for a temporary restraining order. Docket 20. The Court again declined, noting that Younger continued to apply even after Plaintiff was convicted. Order Denying Renewed Motion for Temporary Restraining Order (Docket 22 at 2-3). The Court noted that a state’s ‘criminal proceeding’ encompasses all phases of trial and appeal, and that a federal complaint filed during that proceeding will be barred. Id. (citing New Orleans Pub. Serv., Inc. v. Council of City of New Orleans, 491 U.S. 350, 369 (1989) and Gilbertson v. Albright, 381 F.3d 965, 969 n.4 (9th Cir. 2004)) Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 8 of 18 Page 9 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Younger abstention bars the current Complaint, just as it did the original Complaint. Plaintiff’s appeal of his conviction was ongoing when he filed the current Complaint on February 27, 2017. Plaintiff’s appeal was dismissed due to his fugitive status on March 29, 2017, and Plaintiff has not apparently sought review from the Oregon Supreme Court, and no appellate judgment has yet issued. Davis Decl. Exs. 5, 6. Accordingly, because the current complaint was filed before exhausting his state appeal process, Younger applies. But no matter when Plaintiff filed, or may yet file again, his collateral attack on his conviction, Plaintiff’s first claim cannot succeed. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) holds that a § 1983 plaintiff seeking monetary or declaratory relief based on an allegedly unconstitutional conviction must initially establish that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal or called into question by a federal court’s issuance of a writ of habeas corpus. That rule was intended to prevent a “collateral attack on [a] conviction through the vehicle of a civil suit.” Id. at 486. The Court later clarified that a § 1983 action is barred, “no matter the relief sought (damages or equitable relief),” if “success in that action would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Heck and Wilkinson extinguish Plaintiff’s first claim if Younger does not. Plaintiff’s conviction has not been reversed on direct appeal or otherwise invalidated, as is required to avoid the bar under Heck. Plaintiff’s invocation of the First Amendment as a defense to his conviction is obviously a defense that Plaintiff could have raised, and did raise (Davis Decl. Ex. 4 at 14), in his criminal case and on appeal. Plaintiff’s defense based on copyright law-namely that federal copyright law preempted ORS 163.472-if successful, would result in invalidation of his conviction. See State v. Oidor, 254 Or App 12, 20 (2012) opinion adhered to as modified on reconsideration, 258 Or App 459 (2013) (upholding federal copyright law preemption as a complete defense to a criminal statute). Plaintiff appeared to raise his copyright arguments at trial. Docket 39-1 at 554, 565-66, 691 (criminal trial transcript). Accordingly, if Plaintiff were Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 9 of 18 Page 10 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 to succeed on his first claim, he would necessarily demonstrate the invalidity of his conviction. Heck bars Plaintiff from doing so. Plaintiff’s first claim, and any other claim or portion of a claim, that constitutes a collateral attack, must be dismissed. C. Plaintiff’s claims are barred by the Eleventh Amendment to the United States Constitution to the extent that Plaintiff seeks retrospective relief or seeks to assert state law claims in this Court. The Eleventh Amendment provides that the judicial power of the United States “shall not be construed to extend to any suit in law or equity commenced or prosecuted” against a state. A state is immune from suit under state or federal law by private parties in federal court absent a valid abrogation of that immunity or an express waiver by the state. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Edelman v. Jordan, 415 U.S. 651, 663 (1974). That immunity extends to state agencies as well. In re Harlston, 331 F.3d 699, 701 (9th Cir. 2003). The Eleventh Amendment bars suits against state officers in their official capacities for damages or other retrospective relief, but allows suits for prospective declaratory or injunctive relief against state officials in their official capacity for ongoing violations of federal law. Ex parte Young, 209 U.S. 123, 155-56 (1908); Papasan v. Allain, 478 U.S. 265, 278-79 (1986). All of Plaintiff’s claims are premised on sections 1981, 1983, or 1985. Compl. ¶¶ 1-7. Congress did not abrogate Eleventh Amendment immunity under 42 U.S.C. § 1983. Quern v. Jordan, 440 U.S. 332, 342-45 (1979). The same is true of 42 U.S.C. §§ 1981 and 1985. Pittman v. Oregon Employment Dep’t., 509 F.3d 1065, 1071 (9th Cir. 2007) (regarding § 1981); Cerrato v. S.F. Cmty. College Dist., 26 F.3d 968, 972, 976 (9th Cir. 1994) (§ 1985). Thus, Plaintiff’s claims are barred to the extent they seek damages or any other retrospective relief against the State Defendants in their official capacities. See Compl. ¶ 49 (seeking “willfull [sic] copyright infringement fees” in the amount of “$150,000 per creative piece of work infringed”). Plaintiff states that the State Defendants are named in their official capacities. Compl. ¶¶ 11-15. Thus, unless Oregon has consented to suit in federal court, Plaintiff may obtain relief only to remedy well-pleaded ongoing violations of federal law. Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 10 of 18 Page 11 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Plaintiff fails to allege any ongoing violation of federal law. “Simply asking for injunctive relief and not damages does not clear the path for a suit.” Ulaleo v. Paty, 902 F.2d 1395, 1399 (9th Cir. 1990) (noting that the difference between retrospective and prospective relief “will not in many instances be that between day and night”). Plaintiff’s grievances are all retrospective in nature. For example, Plaintiff seeks “unspecified compensatory damages caused by loss of consortium, as a result of malpractice as a result of government mandated discrimination under color of law, which contributed to the irredeemable breakdown of marriage.” Compl. ¶ 51. Plaintiff also complains that women have received favorable treatment in Oregon’s technology industries, but he does not allege that any State Defendant is engaged in an ongoing pattern of gender-based discrimination against him. Compl. ¶¶ 52-60. Finally, aside from any claim for damages, much of Plaintiff’s purported injunctive relief is really retrospective in nature. See Compl. ¶ 49 (requesting that the Court “overturn Barber’s conviction for the crime”); see also Becker v. Oregon, 170 F.Supp.2d 1061, 1068 (D.Or. 2001) (holding that requested declaratory relief was not within the prospective relief permitted by Ex parte Young). Plaintiff’s requested “injunctive” is beyond what the Eleventh Amendment permits. Finally, to the extent that Plaintiff seeks remedies for violations of state law, such claims are barred. See Compl. ¶ 49 (asserting damages for “intentional infliction of emotional distress”). The Eleventh Amendment also bars state law claims brought in federal court, and the State of Oregon has not waived immunity from state law tort suits in federal court, despite the State’s general waiver of sovereign immunity in the Oregon Tort Claims Act. Estate of Pond v. Oregon, 322 F.Supp.2d 1161, 1165 (D. Or. 2004). Eleventh Amendment immunity bars all of Plaintiff’s claims. D. Plaintiff’s Complaint should be dismissed because Plaintiff fails to plead facts showing that any State Defendants’ direct involvement caused Plaintiff any legally cognizable harm. Plaintiff does not plead sufficient facts from which the Court could plausibly infer that any State Defendant could be liable on any of Plaintiff’s claims. Fed. R. Civ. P. 12(b)(6). Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 11 of 18 Page 12 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 1. Plaintiff fails to plead the direct involvement of any State Defendant that is necessary to hold them liable. a. Governor Kate Brown. Plaintiff makes no meaningful allegations against Governor Brown. He does not include a single allegation of any particular action taken by Governor Brown. Instead, Plaintiff attempts to hold Governor Brown vicariously liable, alleging that “is responsible for the acts of her subordinates and authorized, approved or knowingly acquiesced in their conduct.”4 Compl. ¶ 11. A government official’s failure to train or supervise may form the basis for § 1983 liability “only where the failure to train amounts to deliberate indifference” to the rights of those with whom the untrained person comes into contact and the failure to train actually caused a constitutional harm or deprivation of rights. Flores v. City of Los Angeles, 758 F.3d 1154, 1158 (9th Cir. 2014). Deliberate indifference is a “stringent standard of fault,” which requires proof that the official “disregarded a known or obvious consequence of his action.” Connick v. Thompson, 563 U.S. 51, 61 (2011). A plaintiff must demonstrate a “conscious or deliberate choice” on the part of the defendant. Flores, 758 F.3d at 1158 (quotations and citations omitted). Thus, in order to state a claim based on inadequacy of training, a plaintiff must allege facts showing that the defendant “disregarded the known or obvious consequence that a particular omission in their training program would cause . . . employees to violate citizens’ constitutional rights.” Id. at 1159 (quotations and citations omitted). Plaintiff’s allegations are insufficient to state any claims against Governor Brown. Plaintiff alleges no failure of training or deliberate indifference by Governor Brown. All of Plaintiff’s § 1983 claims must fail. Further, Plaintiff alleges no conspiracy by Governor Brown, 4 Notably, Governor Brown does not “supervise” Attorney General Rosenblum or BOLI Commissioner Avakian, both of whom are elected officials. See ORS 180.020 (Attorney General is an elected official); ORS 651.030(2) (BOLI Commissioner is an elected official). Elected officials hold their offices until their successors are elected and qualified. Or. Const. art. XV § 1, cl. 1. The Director of the Oregon Health Authority is appointed by, and serves at the pleasure of, the Governor. ORS 413.033. The Executive Director of the Higher Education Coordinating Commission serves at the pleasure of the Commission, whose members are appointed by the Governor. ORS 350.050, 350.065. Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 12 of 18 Page 13 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 no actions she took in furtherance of a conspiracy, and no harm to Plaintiff from a conspiracy, as necessary to support a § 1985 claim. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1141 (9th Cir. 2000). His general and conclusory assertions are not entitled to the presumption of truth. Plaintiff states no claims under sections 1981, 1983, or 1985 against Governor Brown. Plaintiff’s effort to assert claims based on other federal statutes fare no better. As to Claim 4, Plaintiff does not allege how the Governor violated Plaintiff’s right to be free from crimes of violence motivated by gender pursuant to 42 U.S.C. § 13981, even if the right of action created by that statute had not been declared beyond Congress’ authority under both the Commerce Clause and the Enforcement Clause of the Fourteenth Amendment. United States v. Morrison, 529 U.S. 598 (2000). As to Claims 5, 6 and 7, Plaintiff alleges nothing connecting Governor Brown to discrimination against Plaintiff in federally assisted programs, in public accommodations, or in public education. Governor Brown should be dismissed entirely. b. Attorney General Ellen Rosenblum Plaintiff’s allegations regarding defendant Attorney General Rosenblum are similar. Plaintiff offers no specific allegations regarding Attorney General Rosenblum, and instead attempts to hold her liable by her alleged supervision of her subordinates. Compl. ¶ 12. Plaintiff makes no failure of training or deliberate indifference allegations. For all the same reasons Governor Brown should be dismissed entirely, so should Attorney General Rosenblum. c. Bureau of Labor and Industries Commissioner Brad Avakian State Defendants reiterate their arguments regarding Governor Brown and Attorney General Rosenblum with respect to BOLI Commissioner Avakian. Plaintiff offers no specific allegations regarding Commissioner Avakian, and instead attempts to hold him liable on a supervision theory. Compl. ¶ 13. Plaintiff alleges that he made a complaint to BOLI regarding an employment agency called Scout Savvy but that BOLI “did not enforce the laws it had, nor did it declare the reason for its lack of enforcement, despite a robust collection of evidence and case law.” Compl. ¶56. But Plaintiff makes no deliberate indifference allegations or any other Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 13 of 18 Page 14 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 meaningful allegations regarding Commissioner Avakian. Plaintiff also fails to allege how any particular action by BOLI harmed Plaintiff, discriminated against him based on race, gender, or any other characteristic. All claims against Commissioner Avakian should be dismissed. d. Higher Education Coordinating Commission Executive Director Ben Cannon State Defendants reiterate these same arguments regarding Executive Director Cannon. Plaintiff includes the usual recitations regarding Executive Director Cannon’s supervision of his subordinates. Compl. ¶ 14. But Plaintiff again provides no specifics or deliberate indifference allegations. Plaintiff makes vague allegations of a “whiteness history month” while enrolled at Portland Community College. Compl. ¶ 58. He also mentions that that scholarship that was alleged “for female students,” but he does not allege that he applied for but was denied that scholarship on the basis of race, gender, or anything else. Similarly, he makes no allegations linking any action of the Higher Education Coordinating Commission or Executive Director Cannon to any harm he suffered. e. Oregon Health Authority Director Lynne Saxton State Defendants reiterate these same arguments regarding OHA Director Saxton. Plaintiff again recites that Director Saxton is responsible for the actions of her subordinates, but otherwise provides few specifics about her. Compl. ¶ 15. Plaintiff does claim that OHA is responsible for overseeing health licensing board, including the implementation of cultural competency program requirements under ORS 413.450. Compl. ¶ 15, 23-30. Reading the Complaint charitably, Plaintiff appears to contend that the cultural competency education required by ORS 413.450 contributed to a “gender based animus within Vance,” which contributed to the breakdown of their marriage. Compl. ¶ 51. These far-fetched allegations fail to create the direct connection between Director Saxton’s allegations sufficient to support liability on any of Plaintiff’s claims. And Plaintiff again provides no deliberate indifference allegations or other specific allegations regarding OHA or Director Saxton. All State Defendants should be dismissed for failure to state a claim. Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 14 of 18 Page 15 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 2. Plaintiff does not plead facts plausibly suggesting that the State Defendants caused him damages. In addition to the requirement of pleading each individual defendant’s direct involvement in violating a plaintiff’s rights, the plaintiff “must demonstrate that the defendant’s conduct was the actionable cause of the claimed injury.” Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). Causation is an “implicit requirement” of any civil rights claim under sections 1981, 1983, and 1985. Arnold v. IBM Corp., 637 F.2d 1350, 1355 (9th Cir. 1981, 1983 and 1985 claims); Flores v. Von Kleist, 739 F.Supp.2d 1236, 1256-57 (E.D. Cal. 2010) (1981 claims). “To meet this causation requirement, the plaintiff must establish both causation- in-fact and proximate causation.” Harper, 533 F.3d at 1026. To establish cause-in-fact, a plaintiff must show that except for the constitutional tort, the injury and any damages would not have occurred. See Jackson v. Sauls, 206 F.3d 1156, 1168, n.16 (11th Cir. 2000) citing Prosser and Keeton on the Law of Torts, §§ 41-42, at 263-80 (5th ed. 1984). “Cause-in-fact . . . has a well-defined legal meaning: it generally requires evidence of a reasonable probability that, but for the defendant’s [actionable] conduct, the plaintiff would not have been harmed.” Joshi v. Providence Health Sys. of Or. Corp., 198 Or. App. 535, 538-39 (2005); see Stevenson v. Koskey, 877 F.2d 1435, 1438 (9th Cir. 1989) (noting that federal courts turn to common law of torts for causation in civil rights cases). To establish legal or proximate cause, a plaintiff must show that injury and damages were a reasonably foreseeable consequence of the defendant’s act or omission. Arnold v. IBM Corp., 637 F.2d at 1355. “The inquiry into causation must be individualized and focus on the duties and responsibilities of each individual defendant whose acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). Plaintiff does not clearly plead the nature of his harm, much less any specific facts how the State Defendants are causing or will cause him harm. One example, discussed supra at 14- 15, is Plaintiff’s theory that ORS 413.450’s cultural competency provisions for health professionals in the State of Oregon poisoned his marriage to Vance. See Compl. ¶¶ 24-28, 51. Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 15 of 18 Page 16 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 That is not a plausible causation theory. Another example is that Plaintiff alleges that he has experienced gender-based discrimination in the technology industry, and complains about BOLI’s response to that alleged discrimination. Compl. ¶ 52-60. But he fails to allege how he was or will be harmed by any action taken by Commissioner Avakian. Plaintiff ultimately fails to show how any State Defendant violated federal law or is currently violating federal law, or how Plaintiff was harmed or will be harmed by such violation. At bottom, Plaintiff asserts merely general claims about race, gender, and religion that do not entitle him to relief of any kind. All of Plaintiff’s claims should be dismissed with prejudice. E. Plaintiff’s complaint should be dismissed because Plaintiff has not proved that he has properly served any State Defendant with process, and, in fact, he has not properly served any State Defendant with process. Finally, the Court should dismiss the Complaint because Plaintiff has both failed to prove service as provided by the applicable rules and ultimately failed to serve process on the State Defendants. Fed. R. Civ. P. 4(l)(1) requires that service be proved by affidavit. Plaintiff instead filed a copy of a Federal Express receipt showing that he perhaps sent some unidentified thing to some unidentified person at some unidentified place. See Docket 41. That is not proof. More critically, Plaintiff’s service and service of process were insufficient because Plaintiff did not serve a summons and a copy of the Complaint on any State Defendant. Fed. R. Civ. P. 12(b)(4), (5). A defendant is unambiguously entitled to be served with a summons and a copy of the complaint. Fed. R. Civ. P. 4(c)(1). As to the original Complaint, which named Deputy District Attorney Marie Atwood and the State of Oregon as defendants, Plaintiff mailed a summons to the Department of Justice without a copy of the complaint. Decl. of Michael Grant. DDA Atwood was never served with summons or complaint. Atwood Decl. at ¶ 5. And none of the current State Defendants were served with summons or complaint. See Declarations of Benjamin Souede,5 Michael Grant, Marcia Ohlemiller, Ben Cannon, and Mark Fairbanks. It is clear from the Court’s docket that the Clerk did not issue summonses to be 5 The Declaration of Benjamin Souede was not available at the time this motion was filed. It will be filed as soon as possible, if the Court consents to its late filing. Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 16 of 18 Page 17 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 served on the State Defendants. Service of process was defective, which provides another basis for dismissal. IV. ALTERNATIVELY, STATE DEFENDANTS REQUEST THAT THE COURT ORDER PLAINTIFF TO MAKE HIS COMPLAINT MORE DEFINITE AND CERTAIN. Finally, should the Court permit any part of this action to go forward, or permit Plaintiff to replead in any respect, State Defendants respectfully request that the Court direct Plaintiff to make his complaint more definite and certain. Fed. R. Civ. P. 12(e). Plaintiff’s allegations are spread across multiple documents. They are extremely difficult to understand. And they fail to properly apprise the State Defendants of the nature of the claims against them. V. THE COURT SHOULD DENY PLAINTIFF’S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1. On February 26, 2017, Plaintiff filed his “Motion for Declaratory Judgment on claim 1” and a “Memorandum in Support of Claim 1.” (Docket 40 and 40-1, respectively). Through those documents, Plaintiff appears to move for summary judgment under Fed. R. Civ. P. 56 in his favor on his first claim. State Defendants oppose that Motion. In opposition, State Defendants hereby incorporate all the arguments made above regarding Plaintiff’s first claim, and make two additional arguments. First, a motion for summary judgment tests whether there is a dispute of any material fact, and a fact’s materiality is determined by the substantive law on the issue in question. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The substantive legal issues relevant to Plaintiff’s first claim include, among others, whether Plaintiff could avoid the significant legal barriers erected by the Eleventh Amendment, Younger, and Heck v. Humphrey. Relevant facts would include, for instance, those establishing the Younger exceptions for bad faith prosecution, harassment, or flagrant constitutionality. Plaintiff does not make an undisputed showing of facts on those issues. Likewise, Plaintiff presents no facts showing that any individual State Defendant personally infringed his right to free speech. Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 17 of 18 Page 18 - STATE DEFENDANTS' MOTION TO DISMISS AND RESPONSE TO PLAINTIFF'S MOTION FOR DECLARATORY JUDGMENT ON CLAIM 1 JBD/ts6/8161283-v2 Department of Justice 100 SW Market Street Portland, OR 97201 (971) 673-1880 / Fax: (971) 673-5000 Second, Plaintiff’s Motion fails because it is not supported by admissible evidence. Plaintiff’s Motion is packed with personal and prurient particulars of all types, none of which are properly authenticated by affidavit or declaration. Many of these citations refer to evidence that would be inadmissible in evidence under Fed. R. Civ. P. 56(c)(2), either because they are hearsay or because Plaintiff lacks personal knowledge of them. Jones v. Blanas, 393 F.2d 918, 923 (9th Cir. 2004) (permitting the court to consider a pro se litigant’s contentions that are based on personal knowledge and that set forth facts that would admissible in evidence). For example, Plaintiff offers inadmissible hearsay statements allegedly made by Vance. See Memorandum in Support of Claim 1 at 2 (Docket 39). The Court should deny Plaintiff’s Motion. VI. CONCLUSION For all of the reasons stated above, the Court should grant State Defendants’ Motion to Dismiss and dismiss this action with prejudice, and deny Plaintiff’s Motion for Declaratory Judgment on Claim 1. Alternatively, should the Court allow any part of this action to go forward or permit Plaintiff to replead in any fashion, State Defendants respectfully request that the Court direct Plaintiff to make his claims more definite and certain and to limit his pleadings to those facts necessary to make a short and plain statement showing how he is entitled to relief. DATED May 5 , 2017. Respectfully submitted, ELLEN F. ROSENBLUM Attorney General s/ Jesse B. Davis JESSE B. DAVIS #052290 Senior Assistant Attorney General Trial Attorney Tel (971) 673-1880 Fax (971) 673-5000 jesse.b.davis@doj.state.or.us Of Attorneys for State Defendants Case 3:16-cv-02105-AC Document 56 Filed 05/05/17 Page 18 of 18