Silver v. Mitchell et al

Filing 66

ORDER: Judge Immerguts Motion to Dismiss 34 is granted, and Plaintiff's claims against Judge Immergut are dismissed with prejudice. Signed on 6/28/2011 by Judge Marco A. Hernandez. See 8-page order attached. Copy of order mailed to plaintiff. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DAN SILVER,
Plaintiff,

No. CV-11-92-HZ

v.
ORDER
BRENNAN J. MITCHELL, KARIN J.
IMMERGUT, and CASCADIA
BEHAVIORAL HEALTH, INC.,
Defendants.
Dan Silver, Pro Se
12231 SE Kelly St.
Portland, OR 97236
Pro Se Plaintiff
Kenneth C. Crowley
OREGON DEPARTMENT OF JUSTICE, TRIAL DIVISION
1162 Court Street, NE
Salem, OR 97301-4096
Attorney for Defendant Karen J. Immergut

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Bruce A. Jones
MULTNOMAH COUNTY ATTORNEYS OFFICE
501 SE Hawthorne Blvd, Suite 500
Portland, OR 97214
Attorney for Defendant Brennan J. Mitchell
LeAnn McDonald
SCHULTE, ANDERSON, DOWNES, ARONSON & BITTNER P.C.
811 SW Naito Parkway, Ste 500
Portland, OR 97204
Attorney for Defendant Cascadia Behavioral Health, Inc.

HERNANDEZ, District Judge:
Plaintiff Dan Silver (“Silver” or “Plaintiff”), proceeding pro se, brings this action against
defendants Brennan J. Mitchell (“Mitchell”), Judge Karin J. Immergut (“Judge Immergut”), and
Cascadia Behavioral Health, Inc. (“Cascadia”). Now before me is Judge Immergut’s Renewed
Motion to Dismiss (“Motion to Dismiss”) (doc. #34) pursuant to the Federal Rules of Civil
Procedure (“Rule”) 12(b)(1) and (b)(6). For the reasons that follow, Judge Immergut’s Motion to
Dismiss is granted.
BACKGROUND
Plaintiff entered into a Petition to Plead No Contest and Waiver of Jury or Court Trial
(“No Contest Plea”) on October 23, 2009, in Multnomah County Circuit Court to a violation of a
court stalking order, a Class A misdemeanor. Aff. of Counsel in Supp. of Mot. to Dismiss
(“Crowley Aff.”), Ex. 2, p. 1-3. Based on Plaintiff’s No Contest Plea, Judge Immergut entered
judgment against Plaintiff that same day, October 23, 2009, requiring him to “continue mental

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health treatment at Cascadia” and sentencing Plaintiff to bench probation for a term of one year.1
See Id., Ex. 3, p. 1.
In violation of Judge Immergut’s order to continue mental health treatment, Plaintiff
“refused his psychiatric injection” on July 6, 2010, and July 8, 2010. Id., Ex. 4, p. 1. On
September 16, 2010, Judge Immergut issued an Order & Judgment Continuing Probation, finding
Plaintiff in violation of his probation for failing to take his medications. Id., Ex. 5, p. 1. She
ordered that his probation be extended to October 22, 2011, and that he continue taking his
medications. Id.
On January 25, 2011, Plaintiff filed this action in the United States District Court for the
District of Oregon (“District of Oregon”). Since filing his first complaint, Plaintiff has filed three
amended complaints. His second amended complaint filed on February 17, 2011, alleges that
this action “involves a personal injury law suit [sic] as a result of the judgment handed down to
[him] by Karen Immergut in [sic] October 22, 2009.” See Second Am. Compl., p. 1. It further
alleges that this court has “jurisdiction over this matter, since . . . Karin Immergut . . . ha[s]
issued a restraining order[,] . . . [a] verbal threat[,] . . . [a]nd will not allow [him] to be heard in
the lower court.” Id., p. 2. He seeks “a new trail [sic] in the alleged protective order violation
proceeding. Or have the matter dismissed[.]” Id.
STANDARDS
On a motion to dismiss, the court must review the sufficiency of the complaint. Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974). All allegations of material fact are taken as true and
construed in the light most favorable to the nonmoving party. Am. Family Ass’n, Inc. v. City &
1

Plaintiff has been diagnosed with schizophrenia. See Crowley Aff., Ex. 4, p. 2.

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Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir.2002). However, the court need not accept
conclusory allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir. 1992).
A motion to dismiss under Rule 12(b)(6) will be granted if plaintiff alleges the “grounds”
of his “entitlement to relief” with nothing “more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action [.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). “Factual allegations must be enough to raise a right to relief above the speculative
level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in
fact)[.]” Id. (internal citations omitted).
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (internal quotation omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 1950. The complaint must contain “wellpleaded facts” which “permit the court to infer more than the mere possibility of misconduct.”
Id.
A motion to dismiss brought pursuant to Rule 12(b)(1), on the other hand, addresses the
court’s subject matter jurisdiction. The party asserting jurisdiction bears the burden of proving
that the court has subject matter jurisdiction over his claims. Kokkonen v. Guardian Life Ins. Co.
of Am., 511 U.S. 375, 377 (1994).
A Rule 12(b)(1) motion may attack the substance of the complaint’s jurisdictional
allegations even though the allegations are formally sufficient. See Corrie v. Caterpillar, Inc.,
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503 F .3d 974, 979-80 (9th Cir. 2007) (court treats motion attacking substance of complaint’s
jurisdictional allegations as a Rule 12(b)(1) motion); Dreier v. United States, 106 F.3d 844, 847
(9th Cir. 1996) (“[U]nlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the
substance of a complaint’s jurisdictional allegations despite their formal sufficiency[.]”) (Internal
quotation omitted). The court may consider evidence outside the pleadings to resolve factual
disputes. See Dreier, 106 F.3d at 847 (a challenge to the court’s subject matter jurisdiction under
Rule 12(b)(1) may rely on affidavits or any other evidence properly before the court).
Pro se pleadings must be “liberally construed.” Allen v. Gold Country Casino, 464 F.3d
1044, 1048 (9th Cir. 2006). Before dismissing a pro se litigant’s complaint, the court must give
the pro se litigant leave to amend his complaint unless it is “absolutely clear that the deficiencies
of the complaint cannot be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205
(9th Cir. 2007). If a pro se litigant is given leave to amend, the court must set out the
complaint’s deficiencies to assist the litigant in avoiding repetition of his errors. Id.
DISCUSSION
Judge Immergut contends Plaintiff’s claims against her should be dismissed with
prejudice because (1) the District of Oregon is not a proper forum for this matter; (2) she is
entitled to judicial immunity; and (3) the State of Oregon has not waived its Eleventh
Amendment immunity barring state law claims from being brought against it in federal court. I
address each argument in turn.
I. The Rooker-Feldman Doctrine
Judge Immergut contends that the District of Oregon is not the proper forum for this
action because this court lacks subject matter jurisdiction pursuant to the Rooker-Feldman
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doctrine. “The Rooker-Feldman doctrine is a well-established jurisdictional rule prohibiting
federal courts from exercising appellate review over final state court judgments.” Reusser v.
Wachovia Bank, N.A., 525 F.3d 855, 858-59 (9th Cir. 2008). “Under the Rooker-Feldman
doctrine, federal district courts lack jurisdiction over cases that, in effect, seek review of statecourt judgments.” Denison v. Brown, No. 07-CV-1586-BR, 2008 WL 819329, at * 6 (D. Or.
2008) (citing AmerisourceBergen Corp. v. Roden, 495 F.3d 1143, 1153 (9th Cir. 2007)). “The
doctrine bars a federal court’s direct review of issues actually decided by state courts as well as
claims that amount to nothing more than an impermissible collateral attack on prior state court
decisions and that are inextricably intertwined with the . . . forbidden appeal.” Id. (citing Ignacio
v. Judges of U.S. Court of Appeals for Ninth Circuit, 453 F.3d 1160, 1166 (9th Cir. 2006)).
“The clearest case for dismissal based on the Rooker-Feldman doctrine occurs when ‘a federal
plaintiff asserts as a legal wrong an allegedly erroneous decision by a state court, and seeks relief
from a state court judgment based on that decision . . . .’” Henrichs v. Valley View Dev., 474
F.3d 609, 613 (9th Cir. 2007) (quoting Noel v. Hall, 341 F.3d 1148, 1164 (9th Cir. 2003)).
The doctrine bars federal courts “from exercising subject matter jurisdiction over a suit
that is a de facto appeal from a state court judgment.” Reusser v. Wachovia Bank, N.A., 525
F.3d 855, 859 (9th Cir. 2008) (internal quotation omitted). An action brought in federal court
constitutes such an appeal “if claims raised in the federal court action are ‘inextricably
intertwined’ with [a] state court’s decision such that the adjudication of the federal claims would
undercut the state ruling or require the district court to interpret the application of state laws or
procedural rules.” Id. “The Rooker-Feldman doctrine applies even when the challenge to the
state-court decision involves federal constitutional issues, including those anchored in federally
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protected rights to due process and equal protection.” Denison, No. CV-07-1586-BR, 2008 WL
819329 at *7 (citing Bates v. Jones, 131 F.3d 843, 856 (9th Cir. 1997)).
Plaintiff’s action, in essence, seeks review of Judge Immergut’s judgments. In fact, his
complaint states that this action results from “the judgment handed down to [him] by Karen
Immergut.” Second Am. Compl., p. 1. Plaintiff’s action seeking a new trial, or in the alternative,
to “have the matter dismissed,” essentially amounts to a de facto appeal of Judge Immergut’s
prior decisions against him. Furthermore, Plaintiff’s claims are inextricably intertwined with the
state court rulings because the adjudication of his federal claims attack the legitimacy of and
attempt to undercut Judge Immergut’s prior judgments against him. See Noel, 341 F.3d at 1165
(“The ‘inextricably intertwined’ analysis of Feldman applies to defeat federal district court
subject matter jurisdiction only when a plaintiff’s suit is at least in part a forbidden de facto
appeal of a state court judgment.”). Plaintiff’s claims are barred by the Rooker-Feldman
doctrine.
II. Judicial Immunity
Even assuming, arguendo, that Plaintiff’s claims are not barred by the Rooker-Feldman
doctrine, they would still fail because Judge Immergut is entitled to absolute judicial immunity.
“Judges are absolutely immune from damages actions for judicial acts taken within the
jurisdiction of their courts. . . . A judge loses absolute immunity only when [the judge] acts in the
clear absence of all jurisdiction or performs an act that is not judicial in nature.” Schucker v.
Rockwood, 846 F.2d 1202, 1204 (9th Cir. 1988) (internal citations omitted). “Judges retain their
immunity when they are accused of acting maliciously or corruptly, and when they are accused of
acting in error.” Thomas v. Marion Cnty. Or. Circuit Court, Civil No. 10-1090-BR, 2010 WL
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5067913, at *2 (D. Or. 2010) (internal citations and quotations omitted). Judges may be “subject
to liability only when [they have] acted in the ‘clear absence of all jurisdiction.’” Mullis v. U.S.
Bankr. Court for the Dist. of Nev., 828 F.2d 1385, 1388 (9th Cir. 1985) (citation omitted).
Plaintiff’s allegations against Judge Immergut relate to judicial acts. Nothing in
Plaintiff’s complaint indicates Judge Immergut acted in the “clear absence of all jurisdiction.”
As such, Judge Immergut is entitled to absolute immunity and Plaintiff’s claim against her must
be dismissed. Having so concluded, I do not address Judge Immergut’s remaining argument that
the State of Oregon has not waived its Eleventh Amendment immunity.
CONCLUSION
Although a pro se plaintiff is generally given the opportunity to amend a complaint and
cure any deficiencies identified by the court, the deficiencies in Plaintiff’s complaint cannot be
cured. As set forth above, Plaintiff’s claims against Judge Immergut are barred by the RookerFeldman doctrine and her conduct as alleged in the complaints constitute judicial acts entitled to
absolute judicial immunity. Even if Plaintiff were given leave to amend his complaint for the
fourth time, it is clear that in this instance Plaintiff would be unable to overcome the application
of the Rooker-Feldman doctrine and judicial immunity. Accordingly, Judge Immergut’s Motion
to Dismiss (doc. #34) is granted, and Plaintiff’s claims against Judge Immergut are dismissed
with prejudice.
IT IS SO ORDERED.
Dated this

28th

day of June, 2011.
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge

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