Fabre v. O'Brien et al
Filing
25
OPINION and ORDER: Tthe Court GRANTS the Motion 11 to Dismiss of Defendant David Pruett, M.D., and the Motion 14 to Dismiss of Defendant Olga Bendinger, M.D., and DISMISSES with prejudice Plaintiff's claims against Drs. Pruett and Bendinger. IT IS SO ORDERED. Signed on 5/23/2012 by Judge Anna J. Brown. (tll)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
PHILLIP MARC FABRE,
3:11-CV-01379-BR
Plaintiff,
OPINION AND ORDER
v.
EAMON O'BRIEN [DPSST #48177]
(in his individual and
official capacities); JASON
MCLAUGHLIN [DPSST #37794](in
his individual and official
capacities); KELLY JONES
[DPSST #29204](in his
individual and official
capacities); ERIC STONEBERG
[DPSST #38956](in his
individual and official
capacity); JASON WATERBURY
[DPSST # 48978](in his
individual and official
capacities); DAVID PRUETT,
M.D. (in his individual and
official capacities); and
OLGA BENDINGER, M.D. (in her
individual and official
capacities),
Defendants.
1 - OPINION AND ORDER
PHILLIP MARC FABRE
7833 S.E. 49th Avenue
Portland, OR 97206
(503) 475-4000
Plaintiff, Pro Se
ALAN A. RAPPLEYEA
Washington County Counsel
ELMER MANUEL DICKENS, JR.
Assistant Washington County Counsel
155 N. First Avenue
Suite 340
Hillsboro, OR 97124
(503) 846-6225
Attorneys for Defendants Eamon O'Brien, Jason
McLaughlin, Kelly Jones, Eric Stoneberg, and Jason
Waterbury
KATIE M. EICHNER
Lindsay Hart Neil & Weigler LLP
1300 S.W. Fifth Avenue, Suite 3400
Portland, OR 97201
(503) 226-7677
Attorneys for Defendant David Pruett, M.D.
ELIJAH B. VAN CAMP
Brisbee and Stockton, LLC
P.O. Box 567
Hillsboro, OR 97123`
(503) 648-6677
Attorneys for Defendant Olga Bendinger, M.D.
BROWN, Judge.
This matter comes before the Court on the Motion (#11) to
Dismiss of Defendant David Pruett, M.D., and the Motion (#14) to
Dismiss of Defendant Olga Bendinger, M.D.
For the reasons that
follow, the Court GRANTS Defendants' Motions.
2 - OPINION AND ORDER
BACKGROUND
The following facts are taken from Plaintiff Phillip Marc
Fabre's Amended Complaint and the materials filed by Defendants
in support of their Motions to Dismiss.
On December 22, 2009, after an interaction with Washington
County Sheriff's Deputies, a "Peace Officer Hold" was placed on
Plaintiff pursuant to Oregon Revised Statute § 426.2281 based on
suspected mental illness.
Washington County Sheriff's Deputies
transported Plaintiff to Providence St. Vincent Medical Center in
Portland where Plaintiff was examined by Drs. Pruett and
Bendinger.
After his examination, Plaintiff was placed on a hospital
hold and detained at the Providence St. Vincent Medical Center
pursuant to Oregon Revised Statute § 426.232(1)(a), which
provides in pertinent part:
(1) When a physician licensed to practice
medicine by the Oregon Medical Board believes a
person who is brought to a hospital or nonhospital
facility by a peace officer under ORS 426.228
. . . is dangerous to self or to any other person
and is in need of emergency care or treatment for
mental illness, the physician may. . . :
1
Oregon Revised Statute § 426.228(1) provides in pertinent
part: "A peace officer may take into custody a person who the
officer has probable cause to believe is dangerous to self or to
any other person and is in need of immediate care, custody or
treatment for mental illness. . . . [A] peace officer shall
remove a person taken into custody under this section to the
nearest hospital or nonhospital facility approved by the Oregon
Health Authority."
3 - OPINION AND ORDER
(a) After consulting with a physician or a
qualified mental health professional . . .
detain the person and . . . cause the person
to be retained in a hospital where the
physician has admitting privileges or is on
staff.
On January 25, 2010, Plaintiff filed an action in Washington
County Circuit Court (Fabre I) against "Providence St. Vincent's
Hospital Psychiatric Care and Security Team" in which he asserted
the Team violated his rights under the First, Fourth, and Fifth
Amendments to the United States Constitution as well as his
rights under the Oregon Constitution when they "held [him] for 6
days against [his] will."
Aff. of Elijah Van Camp, Ex. 1 at 1-2.
On February 23, 2010, the defendant filed a motion to
dismiss Fabre I on the ground that Plaintiff failed to state a
claim.
The Washington County Circuit Court granted the
defendant's motion and dismissed Fabre I with prejudice on
November 10, 2010.
On November 15, 2011, Plaintiff filed an action in this
Court (Fabre II) against Eamon O'Brien, Jason McLaughlin, Kelly
Jones, Eric Stoneberg, Jason Waterbury, Dr. Pruett, and
Dr. Bendinger in which he alleged, among other things, that
Drs. Pruett and Bendinger violated Plaintiff's rights under the
Fourth Amendment to the United States Constitution and falsely
imprisoned Plaintiff.
On December 13, 2011, Plaintiff filed an Amended Complaint
against the same Defendants in which he alleges, among other
4 - OPINION AND ORDER
things, that Drs. Pruett and Bendinger violated Plaintiff's
rights under the First, Fourth, and Fifth Amendments to the
United States Constitution; violated Plaintiff's rights under the
Oregon Constitution; and falsely imprisoned Plaintiff.
On January 18, 2012, Dr. Pruett filed a Motion to Dismiss
all of Plaintiff's claims against him.
On January 20, 2012, Dr. Bendinger filed a Motion to Dismiss
all of Plaintiff's claims against her.
STANDARDS
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.” [Bell Atlantic v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. 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. at 556
. . . . The plausibility standard is not akin to
a “probability requirement,” but it asks for more
than a sheer possibility that a defendant has
acted unlawfully. Ibid. Where a complaint pleads
facts that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of
‘entitlement to relief.’” Id. at 557, 127 S. Ct.
1955 (brackets omitted).
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Atlantic v. Twombly, 550 U.S. 554, 555-56 (2007).
See also Bell
The court must
accept as true the allegations in the complaint and construe them
in favor of the plaintiff.
Intri-Plex Tech., Inc. v. Crest
Group, Inc., 499 F.3d 1048, 1050 n.2 (9th Cir. 2007).
5 - OPINION AND ORDER
"The court
need not accept as true, however, allegations that contradict
facts that may be judicially noticed by the court."
Shwarz v.
United States, 234 F.3d 428, 435 (9th Cir. 2000)(citations
omitted).
The court's reliance on judicially-noticed documents
does not convert a motion to dismiss into a summary-judgment
motion.
Intri-Plex, 499 F.3d at 1052.
Even after Iqbal and Twombly, the Ninth Circuit has held
complaints of individuals who are proceeding pro se
must be held to less stringent standards than
formal pleadings drafted by lawyers, as the
Supreme Court has reaffirmed since Twombly. See
Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct.
2197, 167 L. Ed. 2d 1081 (2007)(per curiam).
Iqbal incorporated the Twombly pleading standard
and Twombly did not alter courts' treatment of pro
se filings; accordingly, we continue to construe
pro se filings liberally when evaluating them
under Iqbal.
Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).
Accordingly, before the court dismisses a pro se complaint for
failure to state a claim, the court still must provide the
plaintiff with a statement of the complaint's deficiencies and
give the plaintiff leave to amend the complaint unless it is
clear that the deficiencies of the complaint cannot be cured by
amendment.
Rouse v. United States Dep't of State, 548 F.3d 871,
881-82 (9th Cir. 2008).
6 - OPINION AND ORDER
DISCUSSION
Drs. Pruitt and Bendinger move to dismiss Plaintiff's claims
against them on the grounds of claim preclusion, the RookerFeldman doctrine, and failure to state a claim.
I.
Claim-preclusion standards
Under the doctrine of claim preclusion, a final judgment on
the merits rendered by a court of competent jurisdiction is
conclusive and constitutes an absolute bar to a subsequent
identical action against the same defendant or those in privity
with that defendant.
(1979).
Montana v. United States, 440 U.S. 147, 153
See also Poblete Mendoza v. Holder, 606 F.3d 1137, 1140
(9th Cir. 2010)(same).
Claim preclusion "bars further litigation on a claim where
there is (1) an identity of claims, (2) a final judgment on the
merits, and (3) privity between parties."
Poblete Mendoza, 606
F.3d at 1140 (citing Tahoe-Sierra Pres. Council, Inc. v. Tahoe
Reg'l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003)).
"'Privity' is a legal conclusion 'designating a person so
identified in interest with a party to former litigation that he
represents precisely the same right in respect to the subject
matter involved.'"
United States v. Bhatia, 545 F.3d 757, 759
(9th Cir. 2008)(quoting Schimmels v. United States, 127 F.3d 875,
881 (9th Cir. 1997)).
"For the purpose of claim preclusion, employees are
7 - OPINION AND ORDER
considered to be in privity with their employers."
Gleason v.
Gilmour, No. 08-CV-552-BR, 2010 WL 5017930, at *3 (D. Or.
Dec. 3, 2010 (citing Harrington v. Ward, No. 06-460-CL, 2007 WL
2816214, at *4 (D. Or. Sept. 27, 2007)).
See also Vilches v.
Multnomah Educ. Serv. Dist., No. 02-CV-294-AS, 2004 WL 1662074,
at *13 (D. Or. May 5, 2004), adopted by Order, 2004 WL 1661986
(D. Or. July 23, 2004)(district employees named as defendants
could have been named in appeal to Oregon Court of Appeals for
review of agency action because the district is only able to act
through the individual defendants, and, therefore, there was
privity between the parties).
"Claim preclusion bars any subsequent suit on claims
that were raised or could have been raised in a prior action."
Cumbre, Inc. v. State Comp. Ins. Fund, 403 F. App'x 272, 272 (9th
Cir. 2010)(citing Cell Therapeutics, Inc. v. Lash Group, Inc.,
586 F.3d 1204, 1212 (9th Cir. 2009)).
"'It is immaterial whether
the claims asserted subsequent to the judgment were actually
pursued in the action that led to the judgment; rather, the
relevant inquiry is whether they could have been brought.'"
Tahoe-Sierra Pres. Council, Inc., 322 F.3d at 1078 (quoting
United States ex rel. Barajas v. Northrop Corp., 147 F.3d 905 (9th
Cir. 1998)).
B.
Analysis
Drs. Pruitt and Bendinger assert in their Motions that
8 - OPINION AND ORDER
Plaintiff's claims against them are barred by claim preclusion
because Drs. Pruitt and Bendinger are in privity with the
defendant in Fabre I and Plaintiff could have raised the same
claims in Fabre I.
The Court agrees.
Because Drs. Pruett and
Bendinger are employees of Providence St. Vincent Medical Center,
they are in privity with the defendant in Fabre I.
Moreover,
Plaintiff relies on the same facts in this action as he did in
Fabre I, and this record does not indicate that Plaintiff could
not have brought in Fabre I the claims asserted here against
Drs. Pruitt and Bendinger before the Washington County Circuit
Court dismissed Fabre I with prejudice.
On this record the Court concludes Plaintiff now seeks
to bring claims against Drs. Pruitt and Bendinger that he could
have brought against them in Fabre I, and, therefore, Plaintiff's
claims are barred by claim preclusion.
The Court, therefore,
does not address Defendants' other arguments.
Because it is
clear these deficiencies cannot be cured by amendment, the Court
declines to give Plaintiff leave to amend with respect to his
claims against Drs. Pruett and Bendinger.
CONCLUSION
For these reasons, the Court GRANTS the Motion (#11) to
Dismiss of Defendant David Pruett, M.D., and the Motion (#14) to
Dismiss of Defendant Olga Bendinger, M.D., and DISMISSES with
9 - OPINION AND ORDER
prejudice Plaintiff's claims against Drs. Pruett and Bendinger.
IT IS SO ORDERED.
DATED this 23rd day of May, 2012.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
10 - OPINION AND ORDER
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