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