Ovitsky v. Washington County Victim Assistance et al
Filing
81
ORDER: Denying Plaintiff's Motion for Emergency Preliminary Injunction and for Rule 11 Sanctions 80 . Remaining issue is the Beaverton School District's motion to dismiss 78 . Any response to that motion is due within 30 days of the date of this order. Likewise, any motion to amend the First Amended Complaint is due within 30 days of the date of this order. Signed on 9/16/2013 by Chief Judge Ann L. Aiken. (lg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ABBY JO OVITSKY,
Case No. 3:12-cv-02250-AA
0 R D E R
Plaintiff,
v.
STATE OF OREGON, WASHINGTON
COUNTY, WASHINGTON COUNTY
SHERIFF'S DEPARTMENT,
BEAVERTON SCHOOL DISTRICT,
and NEAL EVAN CUTLER,
Defendants.
AIKEN, Chief Judge:
Pro se plaintiff Abby Jo Ovitsky filed a "Motion for Rule 65
Emergency Preliminary Injunction and for Rule 11 Sanctions" against
defendant
the
Beaverton
School
District
(~BSD")
.
Plaintiff's
motion is denied.
Plaintiff is a hearing impaired individual who uses Relay, a
service that allows hearing impaired individuals to communicate
with others.
The communication service works through an operator,
who reads what the hearing impaired individual types aloud and will
type to the hearing impaired individual what another person speaks
in response.
Page 1 - ORDER
From October 2012 through December 2012, plaintiff
attended
juvenile court hearings
regarding her
son 1 via Relay,
which were presided over by Washington County Judge Michele Rini.
On December 13,
Court.
from
2012,
plaintiff filed a
complaint in this
On April 20, 2013, this Court granted motions to dismiss
defendants
Pat
Garrett,
Judge
Rini,
Alan
Rappleyea,
Lynn
Schroeder, and the Washington County Sheriff's Department (nWCSD");
the Court also granted plaintiff leave to amend her complaint.
On
May 14, 2013, plaintiff filed her first amended complaint (nFAC")
against
State
the
(ncounty"),
disability
WCSD,
of
Neal
Cutler
discrimination
accommodate a
(nState"),
Oregon
Evans,
based
on
and
Judge
Washington
the
BSD,
Rini's
slowdown of the Relay operation to
County
alleging
refusal
to
60 words per
minute during her son's juvenile proceedings. 2
On May 28,
2013,
the County filed a motion to dismiss on
behalf of itself and WCSD.
motion to dismiss.
On June 27,
On August 20,
2013,
2013,
the State filed a
this Court granted the
County's and the State's motions to dismiss without prejudice; WCSD
was also dismissed as a defendant from this action with prejudice.
On August 22, 2013, plaintiff appealed that decision to the Ninth
Circuit Court of Appeals.
On August 30, 2013, the BSD moved to dismiss plaintiff's FAC.
On September 8, 2013, plaintiff filed the motion at bar for a nRule
1
At the time, plaintiff's son was a minor, although he is
currently eighteen years of age.
See Pl.'s Resp. to Mot. Dismiss
& Mot. for Prelim. Inj. 8 n.3.
2
While difficult to decipher, plaintiff's claims are also
based on several other discrete factual scenarios that took place
between May 2012 and December 2012, including BSD's alleged
failure to supply her son with nreasonable public accommodation
in a timely manner, to wit, an AlphaSmart, requested in August
2011, was given to him some time in November 2011." FAC ~ 46.
Page 2 - ORDER
65
Emergency
requesting
Preliminary
relief
Injunction"
based
on
and
events
"Rule
that
11
Sanctions,"
transpired
between
plaintiff, her son, and the BSD from June 2013, through September
2013.
the
Specifically, plaintiff asserts that, despite the fact that
BSD
agreed
to
provide
her
son
with
a
"FM
System"
as
an
accommodation for his hearing impairment, which was diagnosed in
June 2013, it has yet to do so and, further, is requiring a meeting
prior to doing so.
As a result, plaintiff seeks to:
the [BSD] from implementing a required 'meeting'
(1)
"enjoin
[on September 9,
2013] without the required accessible communication accommodation
for deaf"; and (2) "impose sanctions in the amount of $100 for each
day
of
intentional
System.
delay"
caused by BSD
in
furnishing
the
FM
Pl.'s Resp. to Mot. Dismiss & Mot. for Prelim. Inj. 5, 23.
Plaintiff also requests leave to amend her complaint in order to
add her son as a plaintiff in this action.
Initially, the Court notes that plaintiff's pleadings appear
to be,
at least in part,
See, e.g.,
a response to BSD's motion to dismiss.
id. at 8 n.3.
with any response,
Motions, however,
reply,
"may not be combined
or other pleading."
LR 7-1(b)
Even
assuming that her filing could be construed as a separate motion,
plaintiff failed to specify whether she conferred with BSD.
7-1(a)
See LR
(the court may "deny any motion that fails" to certify that
the moving party conferred with opposing counsel in "a good faith
effort .
. to resolve the dispute, and [are] unable to do so").
Further, the factual assertions upon which plaintiff's motion
is
premised
transpired
Plaintiff's FAC,
between
June
filed on May 14, 2013,
allegations regarding these events.
Page 3 - ORDER
2013
and
September
2013.
clearly does not contain
Accordingly, in order to be
actionable, plaintiff would need to either file a motion to amend
her
complaint
in
order
to
add
allegations
circumstances or file a new lawsuit.
regarding
these
Plaintiff has not pursued
either of these options, such that these events are not actionable,
especially since it is unclear whether the parties conferred.
Moreover,
several of plaintiff's allegations do not contain
facts indicating that her individual rights were violated by the
BSD;
rather,
they inhere to the rights of her son.
Pl.'s Resp. to Mot. Dismiss & Mot. for Prelim. Inj.
~~
See,
32-33.
e.g. ,
Yet
her son is not a named party in this action and did not otherwise
appear via a duly appointed representative while under the age of
eighteen.
Plaintiff lacks standing to pursue claims that are not
premised on her own legal rights or interests "for two distinct,
but interrelated,
reasons."
DeMartino v.
Marion Cnty.,
2013 WL
504603, *3 (D.Or. Feb. 5, 2013).
First, it is well-established that "a guardian or parent may
not bring suit in federal court on behalf of a minor without first
retaining an attorney."
Simon v.
661, 664
(citing Johns v. Cnty. of San Diego, 114
F. 3d
874,
(9th Cir. 2008)
876-77
(9th Cir.
Hartford Life,
1997)).
Thus,
to
Inc.,
the
546 F.3d
extent
that
plaintiff's motion is based on events that occurred prior to her
son's eighteenth birthday, it fails; these claims were not filed on
her
son's
behalf
by a
guardian ad
litem or a
duly
authorized
attorney.
Second, "[a]s a general rule,
a third-party does not having
standing to bring a claim asserting a violation of someone else's
rights."
1050
Martin v. Cal. Dep't of Veterans Affairs, 560 F.3d 1042,
(9th Cir.
Page 4 - ORDER
2009)
(citation omitted).
An exception exists
where, "among other things, there [is] some hindrance to the third
party's
ability
to
protect
his
or
her 'own
(citation and internal quotations omitted).
interests."
Id.
Because plaintiff's
allegations are premised upon the BSD's wrongful refusal to timely
provide reasonable accommodations for her son's hearing impairment,
·and because plaintiff failed to demonstrate that her son is unable
to be his own advocate, especially now that he is legally an adult,
this
Court
lacks
limitations.
542 U.S.
1,
subject-matter
jurisdiction due
See, e.g., Elk Grove Unified Sch.
15-17
(2004)
to prudential
Dist. v. Newdow,
(father lacked prudential standing to
bring a claim against a school district on behalf of his daughter) .
Simply put, federal courts are courts of limited jurisdiction
and plaintiff failed to provide this Court with any basis that
would allow her to assert claims on behalf of her son.
The Court
acknowledges, however, that plaintiff requests leave to amend her
complaint in order to add her son as a plaintiff. 3
Plaintiff's son
has not filed any motion or other pleading indicating an interest
to
participate
in
this
lawsuit.
The
Court
also
notes
that
plaintiff neglected to address the standards governing amendment
and/or permissive joinder.
20.
See Fed. R. Civ. P. 15; Fed. R. Civ. P.
In addition, as discussed above, plaintiff failed to comply
3
It is.unclear whether plaintiff is seeking to add her son
as a plaintiff in regard to all claims, even those currently on
appeal.
Because this Court's August 20, 2013 dismissal was
without prejudice, it is questionable whether the Ninth Circuit
will address plaintiff's appeal on the merits.
See Cooper v.
Ramos, 704 F.3d 772, 776-77 (9th Cir. 2012) ("ordinarily, an
order dismissing a complaint rather than dismissing the action is
not a final order and thus not appealable") ( citation and
internal quotations omitted).
In any event, this Court is
without jurisdiction over those claims pending appeal.
See Gould
v. Mutual Life Ins. Co., 790 F.2d 769, 772 (9th Cir.), cert.
denied, 479 U.S. 987 (1986).
Page 5 - ORDER
with LR 7-1.
Nonetheless, in light of her prose status, plaintiff
is granted leave to file a motion to amend.
Finally, plaintiff failed to demonstrate that sanctions or a
preliminary
injunction
are
warranted.
Regarding
sanctions,
plaintiff has not identified any conduct by an attorney that would
be actionable under Fed. R. Civ. P. 11; in fact,
the majority of
her allegations pertain to actions taken by school administrators.
See Ex.
to Pl.'s Resp.
to Mot.
Dismiss
&
Mot.
for Prelim.
Inj.
(counsel for the BSD informing plaintiff that "I am not authorized
to act as the District's representative for the Section 504 plan or
any other education issues relating to [your son]
need
to
communicate
with
Aloha
High
Yarnell, who I am cc'ing on this email")
School
[y]ou will
Principal
Kenneth
Accordingly, plaintiff's
request for sanctions is denied.
Regarding equitable relief,
a preliminary injunction is an
extraordinary remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.
Res. Def. Council Inc., 555 U.S. 7, 24 (2008).
Winter v. Natural
In other words, the
plaintiff bears the burden of establishing his or her entitlement
to such relief and the court cannot issue a preliminary injunction
without engaging in the requisite four-factor analysis.
Id. at 20-
24; see also N. Cheyenne Tribe v. Norton, 503 F.3d 836,
Cir.
2007).
evidence
Here,
evincing
plaintiff did not
that:
( 1)
she
was
provide
likely to
844
any argument
succeed
on
(9th
or
the
merits; (2) she would likely suffer irreparable harm in the absence
of preliminary relief;
favor;
and/or
(4)
( 3)
the balance of equities tips in her
an injunction is in the public interest.
See
generally Pl.'s Resp. to Mot. Dismiss & Mot. for Prelim. Inj.; see
Page 6 - ORDER
also
Pimentel v.
(outlining
four
Dreyfus,
elements
Winter, 555 U.S. at 20).
670
of
F.3d 1096,
a
1105
preliminary
(9th Cir.
injunction)
2012)
(citing
Therefore, plaintiff's motion is denied.
CONCLUSION
Plaintiff's
Injunction
and
~Motion
for
Rule
for
11
Rule
65
Sanctions"
Emergency
Preliminary
(doc.
is
80)
DENIED.
Remaining at issue in this case is the BSD's motion to dismiss.
Any response to that motion is due within 30 days of the date of
this order.
Likewise, any motion to amend the FAC is due within 30
days of the date of this order.
IT IS SO
ORDERED~
Dated this
/~
of September 2013.
United States District Judge
Page 7 - ORDER
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