Lamb v. Rosenblum et al

Filing 24

ORDER: Defendant's Motion to Dismiss 12 is allowed.Plaintiff's Motions 20 , 22 , and 23 are denied asmoot. The Clerk of the court is directed to enter a judgmentdismissing this action with prejudice. Signed on 2/5/15 by Judge Michael J. McShane. (Mailed copy to plaintiff) (dsg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
LEE GORDON LAMB,
Plaintiff,

2:14-cv-0910-MC
ORDER

v.

ELLEN F. ROSENBLUM, et al.,
Defendants.
McSHANE, District Judge.
Plaintiff

filed

this

action

under

42

U.S.C.

1983,

§

alleging that defendants violated his due process rights in
the course of defending a previously dismissed case, Lamb v.
Franke, et al., 2: 12-cv-00367-MO. Plaintiff seeks damages, un-

specified "permanent injunctions," that defendants employment
be

"terminated,"

dismissed

lawsuit.

and,

reinstatement

Defendants

now

move

of
to

his

previously

dismiss

(#12).

Plaintiff has not filed a response to defendants' motion.
Plaintiff

alleges

in

Claim

One

that

"1st

and

14th

Amendment Due Process" was violated by defendant Vincent when

1 - ORDER

she allegedly filed a "declaration containing false statements
in 2:12-cv-00367-MO."
To establish a claim for deprivation of due process under
the Fourteenth Amendment,

plaintiff must demonstrate

( 1)

a

liberty or property interest protected by the Constitution,
(2) a deprivation of that interest by the government, and (3)
a lack of opportunity for process.
408 U.S. 564, 569-71 (1972).

Board of Regents v. Roth,

Thus, the first step in any due

process analysis is determining whether a protected liberty or
property

interest

has

been

implicated

by

the

defendant's

conduct.
Plaintiff has failed to identify a protected liberty or
property interest in being free from opposing counsel filing
a declaration - even an allegedly perjurious one.
Assuming arguendo that plaintiff could establish that
defendant Vincent's filing of an allegedly false affidavit
implicated a liberty interest cognizable under the Fourteenth
Amendment,

plaintiff has failed to demonstrate that he was

denied any specific procedural due process right in his former
litigation and therefore fails to state a Fourteenth Amendment
due process claim. Nor has Plaintiff alleged any facts that
would implicate the First Amendment.
In addition, defendant Vincent is absolutely immune from
liability

2 - ORDER

in

damages

for

her

conduct

in

discharging

her

official

litigation-related

duties.

See,

Bly-Magee

v.

California, 236 F. 3d 1014, 1018 (9th Cir. 2001); Read v. Haley,
3:12-cv-02021-MO,

2013 WL 1562938,

at *9

(D.

Or.

Apr.

10,

2013). Although prosecutorial immunity would not necessarily
preclude

prospective

injunctive

relief,

plaintiff has

not

identified the nature of the "permanent injunctions" he seeks
or explained how a judgment against defendant Vincent would
entitle him to the other relief he seeks.
In Claim Two,

plaintiff alleges

that Vickie Reynolds

violated the First and Fourth Amendments by preparing a false
declaration
plaintiff
interest

in

has
that

his
failed

gives

previous
to
rise

case.

identify

As
a

discussed

liberty

to due process

or

rights

circumstances of this case. Nor has plaintiff

above,
property

under the

explained how

an allegedly false statement in an affidavit implicates the
First Amendment.
Plaintiff also appears to allege in Claim Two that the
prison grievance process is deficient or inadequate.

However

those allegations are inscrutable and fail to state a claim.
Moreover,

they appear to concern the merits of plaintiff's

previous

case,

and

are

therefore

not

appropriate

for

consideration by this court.
Plaintiff alleges in Claim Three that Oregon Attorney
General Ellen Rosenblum knowingly and intentionally turned the

. 3 - ORDER

case

over

to

defendant

Vincent

recklessly allowed her to file
Plaintiff

alleges

that

a

and

intentionally

and

perjurious declarations.

defendant

Rosenblum

"thereby

established herself as a defendant under respondeat superior
liability."
To

Complaint (#2) p. 5.

establish

a

§

1983

claim

against

an

individual

defendant, a plaintiff must establish personal participation
by the defendant in the alleged constitutional deprivation.
Ashcroft v. Igbab, 129 S.Ct. 1937 (2009).
It is well settled that respondeat superior is not a
unde~

proper basis for liability

42 U.S.C.

§

1983. Monell v.

Dept. of Social Services, 436 U.S. 658, 691-94 (1978); King v.
Atiyeh, 814 F.2d 565, 568

(9th Cir. 1987).

A supervisor may

be liable based on his or her personal involvement in the
alleged

deprivation,

or

if

there

is

a

sufficient

causal

connection between the supervisor's alleged wrongful conduct
and the alleged deprivation, Hansen v. Black, 885 F.2d 642,
64 6

(9th Cir.

constitutional

198 9) ,

but a

violations

"supervisor is only liable for
of

his

subordinates

if

the

supervisor participated in or directed the violations, or knew
of the violations and failed to act to prevent them."

Taylor

v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), citing Ybarra v.
·Reno Thunderbird Mobile Home Village,
(9th Cir.

4 - ORDER

1984);

see

also,

Jane

723 F.2d 675,

Doe A v.

Special

680-81
School

District,

901 F.?d 642,

645

(8th Cir.

1990) ("The individual

defendants are subject to personal liability only if it can be
proved

that

they:

unconstitutional

1)

received

acts

notice

committed

of

a

pattern

subordinates;

by

of
( 2)

demonstrated deliberate indifference to or tacit authorization
of the offensive acts; 3) failed to take sufficient remedial
action; and 4) that such failuie proximately caused injury.").
Plaintiff has not alleged any facts that would subject to
defendant

Rosenblum

to

respondeat

superior

liability~

Therefore, she is entitled to be dismissed as a defendant.
Plaintiff

also

names

Steve

Franke

as

a

defendant

apparently because he was a defendant in the previous case.
In order to state -a claim against a

named defendant,

plaintiff must allege specific facts about that defendant and
identify how that defendant's conduct violated his. rights.

See, Stevenson v. Koskey, 877 F.2d 1435, 1439 (9th Cir. 1989);
Johnson v. Duffy, 58 8 F. 2d 7 4 0 ( gth 197 8) .

The absenc'e of any

factual allegations aga'inst a named defendant will entitle
that defendant to have the complaint dismissed as to him,
pursuant to Fed. R. Civ. P. 12(b).
548 F. Supp. 613, 614

Polk

v.

Montgomery County,

(D. Md. 1982).

Plaintiff has not made any specific factual allegation·
concerning defendant Franke.

The~efore,

entitled to be dismissed as a defendant.

5 - ORDER

defendant Franke is

Defendant's

Motion

Plaintiff's Motions
moot.

( #20),

to

Dismiss

( #22) ,

and

(#12)
( #23)

is

allowed.

are denied as

The Clerk of the court is directed to enter a judgment

dismissing this action with prejudice.

Any

case

appea~

wou~d

Therefore,

be

£rom this order or a judgment dismissing this
£rivo~ous

p~ainti££' s

and

not

taken

in £orma pauperis

in

good

£aith.

status is hereby

revoked.

DATED this

~ day of February, 2015.
Michael McShane
United States District Judge

6 - ORDER