Pierce v. Heiple et al

Filing 5

Opinion and Order - Plaintiff's application for leave to proceed in forma pauperis (ECF 2) is granted. Because Plaintiff fails to state a claim and the Court lacks subject matter jurisdiction, Plaintiff's Complaint is dismissed without prej udice sua sponte. See 28 U.S.C. § 1915(e)(2). Plaintiff's claims under Section 1983 relating to the stalking protective order and Plaintiff's claims for declaratory and injunctive relief are dismissed without leave to amend. Plaintiff& #039;s state law claims are dismissed with leave to amend. Plaintiff has leave to file an amended complaint within 30 days of the date of this Opinion and Order if he can cure the deficiencies identified. If no amended complaint is filed, the Court will issue a judgment dismissing this case. Signed on 4/21/2017 by Judge Michael H. Simon. Copy mailed to Plaintiff 4/21/2017. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KIP PIERCE,
Plaintiff,

Case No. 3:17-cv-570-SI
OPINION AND ORDER

v.
LISA HEIPLE, et al.,
Defendants.

Michael H. Simon, District Judge.
Plaintiff Kip Pierce filed pro se claims against Defendant Lisa Heiple and several Doe
Defendants. ECF 1. Plaintiff alleges claims for a violation of 42 U.S.C. § 1983, libel, and
defamation per se. Plaintiff seeks declaratory and injunctive relief, as well as money damages.
Plaintiff also filed an application to proceed in forma pauperis. ECF 2. The Court grants
Plaintiff’s application to proceed in forma pauperis, but finds that even under the liberal pleading
standards afforded a pro se plaintiff, Plaintiff fails state a claim for relief and further finds that
PAGE 1 – OPINION AND ORDER

the Court must abstain from considering most of Plaintiff’s claims under the Rooker-Feldman
doctrine.1
STANDARDS
A complaint filed in forma pauperis may be dismissed at any time, including before
service of process, if the Court determines that the action is “frivolous or malicious” or the
complaint “fails to state a claim upon which relief can be granted.” 28 U.S.C. § 1915(e)(2); see
also Neitzke v. Williams, 490 U.S. 319, 324 (1989) (discussing an earlier version of the statute);
Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). A complaint is frivolous “where it lacks
an arguable basis either in law or in fact.” Neitzke, 490 U.S. at 325; Lopez v. Dep’t of Health
Servs., 939 F.2d 881, 882 (9th Cir. 1991); Jackson, 885 F.2d at 640. The term “frivolous,” when
used to describe a complaint, “embraces not only the inarguable legal conclusion, but also the
fanciful factual allegation.” Neitzke, 490 U.S. at 325.
A complaint fails to state a claim when there is no cognizable legal theory or the factual
allegations are insufficient to support a claim for relief. Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual
allegations, the court must accept as true all well-pleaded material facts alleged in the complaint
and draw all reasonable inferences in favor of the plaintiff. Wilson v. Hewlett-Packard Co., 668
F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th
Cir. 2010). But to be entitled to a presumption of truth, the complaint must do more than simply
allege legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). The plaintiff “may not simply recite the elements of a cause of action, but must [provide]
sufficient allegations of underlying facts to give fair notice and to enable the opposing party to
1

The Rooker–Feldman doctrine takes its name from Rooker v. Fidelity Tr. Co., 263
U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
PAGE 2 – OPINION AND ORDER

defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The underlying
factual allegations must “plausibly suggest an entitlement to relief.” Id. (emphasis added). “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.” Iqbal, 556
U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Pro se plaintiffs receive special dispensation. A court must liberally construe the filings
of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v.
Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or
her complaint unless it is absolutely clear that the deficiencies of the complaint could not be
cured by amendment.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623
(9th Cir. 1988) (citation and internal quotation marks omitted). But even a pro se plaintiff must
offer more than “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of
action.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).
BACKGROUND
On March 14, 2012, Ms. Heiple obtained a lifetime stalking protective order against
Plaintiff in an Oregon state court.2 Plaintiff alleges that he was told by the state court that he was
not required to attend the hearing by telephone or in person and he relied on that representation.3
As a result, Plaintiff alleges, in a conclusory assertion, that he was not allowed to participate in
the legal proceedings, testify, or cross examine Ms. Heiple, and that he was not otherwise given
due process. Plaintiff requests an evidentiary hearing to demonstrate whether the stalking

2

Plaintiff does not identify in his Complaint which particular Oregon state court issued
the stalking protective order.
3

Plaintiff does not allege that he was told by the state court that he was not permitted to
attend the hearing.
PAGE 3 – OPINION AND ORDER

protective order was wrongfully issued and further requests that this Court declare the stalking
protective order void, vacate the order, and enjoin its enforcement.
Plaintiff further alleges that Ms. Heiple posted on her Facebook page that “he claims to
be homeless and live on the street” and bragged about obtaining “a permanent stalking order for
life.” Plaintiff alleges that persons reading this post would understand that Ms. Heiple was
referencing Plaintiff and that this post constitutes libel and defamation per se.
DISCUSSION
A. Section 1983 Claim against Ms. Heiple
1. State Actor
Plaintiff alleges a claim against Ms. Heiple under 42 U.S.C. § 1983. To state a claim for
liability under Section 1983, “‘a plaintiff must show both (1) deprivation of a right secured by
the Constitution and laws of the United States, and (2) that the deprivation was committed by a
person acting under color of state law.’” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138
(9th Cir. 2012) (quoting Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir.
2011)). “[T]he under-color-of-state-law element of § 1983 excludes from its reach ‘merely
private conduct, no matter how discriminatory or wrongful . . . .’” Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)).
A private individual may, under certain circumstances, act under the color of state law.
The Ninth Circuit recognizes “at least four different criteria, or tests, used to identify state action:
‘(1) public function; (2) joint action; (3) governmental compulsion or coercion; and
(4) governmental nexus.’” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Sutton
v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th Cir. 1999)). “Satisfaction of any
one test is sufficient to find state action, so long as no countervailing factor exists.” Id.

PAGE 4 – OPINION AND ORDER

Plaintiff’s Complaint—even when liberally construed—fails to state a Section 1983
claim. Plaintiff has not alleged any facts indicating that Ms. Heiple acted “under the color of
state law.” Tsao, 698 F.3d at 1138. Plaintiff has not alleged that Ms. Heiple misused Oregon’s
stalking statute, but even if he had, this type of general allegation, without more, fails to support
a finding of state action. deParrie v. Hanzo, 2000 WL 900485, at *6 (D. Or. Mar. 6, 2000),
aff’d 5 F. App’x 601 (9th Cir. 2001) (“Alleging misuse of a state statute fails to constitute ‘state
action.’ Plaintiff’s allegation that the defendants participated ‘jointly’ with those state officials
who are obliged to enforce a properly invoked SPO [stalking protective order] fail to change this
result.” (citations omitted)). When a private party seeking a stalking protective order engages in
something more, such as joint action or a conspiracy to deprive the plaintiff of his or her
constitutional rights, then the private party may be considered a state actor. See Sierzega v.
Ashcroft, 440 F. Supp. 2d 1198, 1204-05 (D. Or. 2006) (finding allegations that the defendant
perjured himself in sworn statements given in support of the stalking citation and specific
allegations of joint misconduct by other state actors constituted more than a bare allegation of a
conspiracy and were sufficient to state a claim for joint action). Here, however, Plaintiff does not
allege that Ms. Heiple conspired with any state actor to deprive Plaintiff of his due process
rights, or that Ms. Heiple perjured herself to deprive Plaintiff of his constitutional rights along
with other specific allegations of misconduct by state actors acting in concert with Ms. Heiple to
deprive Plaintiff of his constitutional rights. Accordingly, Plaintiff’s allegations are insufficient
to show that Ms. Heiple was a state actor for purposes of Section 1983. Although amendment
would normally be allowed to cure this deficiency, because application of the Rooker-Feldman
doctrine is appropriate, as discussed below, no amendment will be allowed on this claim.

PAGE 5 – OPINION AND ORDER

2. Rooker-Feldman Doctrine
Pursuant to the Rooker–Feldman doctrine, federal courts lack jurisdiction to hear cases
that amount to collateral attacks on state court judgments. The basic premise of that doctrine is
that “a federal district court does not have subject matter jurisdiction to hear a direct appeal from
the final judgment of a state court.” Noel v. Hall, 341 F3d 1148, 1154 (9th Cir. 2003). Instead,
the United States Supreme Court is the only federal court with jurisdiction to hear appeals from
state courts. Id.; see 28 U.S.C. § 1257.
The scope of the Rooker-Feldman doctrine includes de facto appeals from a state court
decision and “any issue raised in the suit that is ‘inextricably intertwined’ with an issue resolved
by the state court in its judicial decision.” Noel, 341 F.3d at 1158. This rule also applies to
constitutional claims under Section 1983. See Worldwide Church of God v. McNair, 805 F.2d
888, 893 n.4 (9th Cir. 1986). A claim is inextricably intertwined with a state court judgment if
the federal claim can succeed only to the extent that the state court wrongly decided the issues
before it, or if the relief requested in the federal action would effectively reverse the state court
decision or void its ruling. Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1029-30
(9th Cir. 2001) (citations omitted).
Rooker-Feldman bars a suit from going forward if: (a) the plaintiff in the federal suit lost
in the state court proceeding; (b) the state court determination is at the core of the federal
lawsuit; (c) the federal lawsuit seeks review and rejection of the state court verdict; and (d) the
state court judgment was entered before commencement of the federal action. McKithen v.
Brown, 481 F.3d 89, 97 (2nd Cir. 2007). All elements are present in this case. Plaintiff lost in the
state court, and the stalking protective order was issued against him. Plaintiff is now asking this
Court to review the prior decision by the state court that issued the stalking protective order, find
the order to be void, vacate the order, and enjoin its enforcement. Therefore, the RookerPAGE 6 – OPINION AND ORDER

Feldman doctrine applies and the Court does not have subject matter jurisdiction over Plaintiff’s
claims relating to the stalking protective order.
Because subject matter jurisdiction is a defect that cannot be cured by amendment,
Plaintiff may not replead this claim in this Court. This claim is, however, dismissed without
prejudice. See White v. Dobrescu, 651 F. App’x 701, 703 (9th Cir. 2016) (“Because we affirm
the dismissal on the basis of the Rooker-Feldman doctrine, we treat the dismissal as one without
prejudice.”); see also Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004)
(dismissals for lack of subject matter jurisdiction should be without prejudice).
B. Plaintiff’s Claims for Libel and Defamation per se
Plaintiff’s remaining claims are state law claims for libel and defamation per se. The
Court has dismissed Plaintiff’s federal law claims. That is the basis for federal court jurisdiction
asserted by Plaintiff in his Complaint—federal question jurisdiction. Generally, because the
Court has dismissed the federal law claims, the Court would decline to exercise supplemental
jurisdiction over Plaintiff’s state law claims and dismiss them. Because of the special
consideration given to pro se plaintiffs, however, the Court considers whether Plaintiff has
sufficiently alleged diversity jurisdiction, another basis for original federal court jurisdiction over
Plaintiff’s state law claims.
Diversity jurisdiction requires that the plaintiff and defendant be citizens of different
states and that the amount in controversy be greater than $75,000. 28 U.S.C. § 1332. Plaintiff
alleges that he is a citizen of California and that Ms. Heiple is a citizen of Oregon. These
allegations support diversity jurisdiction. Plaintiff’s Complaint, however, does not allege
monetary damages in an amount sufficient to meet the threshold requirement for diversity
jurisdiction. See Taylor v. Appleton, 30 F.3d 1365, 1367 (11th Cir. 1994) (“For a federal court to
have diversity jurisdiction the plaintiff must allege a proper jurisdictional basis in the complaint
PAGE 7 – OPINION AND ORDER

including an amount in controversy in excess of $[75,000] exclusive of interest and costs, and
that the plaintiff and defendants are citizens of different states”); Robinett v. State Farm Mutual
Auto. Ins. Co., 2002 WL 31498993, *1 (E.D. La. Nov.7, 2002) (“The burden of establishing
federal subject matter jurisdiction rests on the party seeking to invoke it. . . . Plaintiff’s complaint
does not even assert that the amount is satisfied.”). Additionally, based on the allegations in the
Complaint, the Court cannot ascertain that the amount sought meets the threshold requirement
for diversity jurisdiction. Cf. Bautista v. Pan Am. World Airlines, Inc., 828 F.2d 546, 552 (9th
Cir. 1987) (remanding to the district court to make factual findings as to whether diversity
jurisdiction can be determined from the face of the pleadings).
Moreover, even if Plaintiff sufficiently alleged diversity jurisdiction, he does not allege
sufficient facts to plausibly suggest a claim of libel or defamation per se. Under Oregon law,
“[t]he elements of a claim for defamation are: (1) the making of a defamatory statement;
(2) publication of the defamatory material; and (3) a resulting special harm, unless the statement
is defamatory per se and therefore gives rise to presumptive special harm.” Nat’l Union Fire Ins.
Co. v. Starplex Corp., 220 Or. App. 560, 584 (2008). “A defamatory statement is a false
statement that would subject the plaintiff ‘to hatred, contempt or ridicule . . . [or] tend to
diminish the esteem, respect, goodwill or confidence in which [the plaintiff] is held or to excite
adverse, derogatory or unpleasant feelings or opinions against [the plaintiff].’” Tubra v.
Cooke, 233 Or. App. 339, 347 (2010) (alterations in original) (quoting Farnsworth v. Hyde, 266
Or. 236, 238 (1973)).
The only alleged defamatory statements are that Ms. Heiple posted on Facebook that
(1) “he claims to be homeless and live on the street” and (2) she obtained a permanent stalking
protective order. These allegations are insufficient for several reasons. First, Plaintiff does not

PAGE 8 – OPINION AND ORDER

allege that Ms. Heiple identified Plaintiff as the subject of the post. He merely alleges in a
conclusory fashion that readers of the post would conclude the post was about Plaintiff, without
alleging facts supporting that conclusion.
Second, regarding the first statement, Plaintiff does not allege that the statement is false.
There is no allegation that the unidentified person, or Plaintiff if he is the subject of the post, did
not claim to be homeless and living on the streets.
Third, regarding the second statement, based on Plaintiff’s allegations, that statement is
true. Plaintiff alleges that Ms. Heiple obtained a lifetime stalking protective order. Thus that
statement cannot be the basis of a defamation claim.
Accordingly, Plaintiff’s state law claims are dismissed for lack of jurisdiction and failure
to state a claim. Because the Court cannot conclude that it is absolutely clear that Plaintiff cannot
cure the deficiencies identified in his allegation of diversity jurisdiction and his state law claims,
Plaintiff has leave to amend his state law claims if he can cure the identified deficiencies. He
may not assert any claims in this Court relating to the validity of the stalking protective order or
seeking to have that order invalidated, vacated, or otherwise challenged. Any attacks on the
state-issued protective order must be filed in state court or before the United States Supreme
Court.
CONCLUSION
Plaintiff’s application for leave to proceed in forma pauperis (ECF 2) is granted. Because
Plaintiff fails to state a claim and the Court lacks subject matter jurisdiction, Plaintiff’s
Complaint is dismissed without prejudice sua sponte. See 28 U.S.C. § 1915(e)(2). Plaintiff’s
claims under Section 1983 relating to the stalking protective order and Plaintiff’s claims for
declaratory and injunctive relief are dismissed without leave to amend. Plaintiff’s state law
claims are dismissed with leave to amend. Plaintiff has leave to file an amended complaint
PAGE 9 – OPINION AND ORDER

within 30 days of the date of this Opinion and Order if he can cure the deficiencies identified. If
no amended complaint is filed, the Court will issue a judgment dismissing this case.
IT IS SO ORDERED.
DATED this 21st day of April, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

PAGE 10 – OPINION AND ORDER