Bunnell v. Rosenblum et al
Filing
122
OPINION AND ORDER - Defendants' motions (ECF #62 , #63 , #73 , #74 , #87 , #88 , #93 , #94 , #98 , #102 , #104 ) are GRANTED. The Court also sua sponte dismisses all claims against all nonmoving defendants. Plaintiff's Amended Complaint is dismissed without leave to amend. Signed on 6/19/2018 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DONJA MARIE BUNNELL,
Plaintiff,
Case No. 3:17-cv-1786-SI
OPINION AND ORDER
v.
STATE OF OREGON GOVERNOR KATE
BROWN, et al,
Defendants.
Michael H. Simon, District Judge.
Plaintiff Donja Marie Bunnell (“Bunnell” or “Plaintiff”) filed suit pro se against
numerous state and local officials, including judges, and some private attorneys and other
practitioners involved in family law or custody proceedings in Oregon. In Plaintiff’s Amended
Complaint, it appears that she alleges four claims: (1) one claim under Title II of the Americans
with Disabilities Act (“ADA”); (2) one claim under Title III of the ADA; (3) one claim under the
Rehabilitation Act; and (4) one claim for violations of her rights under Section 46 of the Oregon
Constitution, which provides that equal rights shall not be denied by the state based on sex.
Plaintiff does not specifically identify what claims are brought against which defendants.
PAGE 1 – OPINION AND ORDER
Before the Court are motions to dismiss brought by Clackamas County and its officials
(ECF 62), the Oregon State Bar and its former President (ECF 63), the Sandy Police Department
and its former Police Chief (ECF 73), attorney Leonard Kovac1 (ECF 74), attorney John C.
Moore (ECF 87), the National Association of Family and Conciliation Courts (“AFCC”) and its
Executive Director (ECF 88), Dr. Paul Guastadisegni (ECF 93), the Oregon Chapter of the
AFCC and its President (ECF 94), certain executive officials, judicial officers, and other
instrumentalities of the State of Oregon (ECF 102), and Dr. Mona Ozaki (ECF 104). Also before
the Court is the motion for summary judgment brought by Dr. Charlene Sabin (ECF 98). For the
reasons that follow, these motions are granted.2
STANDARDS
A. Motion to Dismiss Under Rule 12(b)(6)
A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be granted only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim
for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In
1
Plaintiff erroneously sued Mr. Kovac as “Leonard Kovak.”
2
The Court notes that there is no evidence in the record that defendants Johns S. Foote
and Billie Bell have been served in this case, and they have not yet appeared. An affidavit of
service has been filed for defendant Clackamas County Family Support Office (although the
Court makes no finding regarding the sufficiency of service), but it has not yet appeared. Peter
Salem, although not served, appeared and moves to dismiss based on lack of service.
The Court sua sponte applies its analyses below to the claims alleged against these
defendants. A trial court may sua sponte dismiss claims under Federal Rule of Civil
Procedure 12(b)(6), even shortly before trial. See, e.g., Omar v. Sea-Land Serv., Inc., 813
F.2d 986, 991 (9th Cir. 1987). Moreover, a trial court “may properly on its own motion dismiss
an action as to defendants who have not moved to dismiss where such defendants are in a
position similar to that of moving defendants or where claims against such defendants are
integrally related.” Silverton v. Dep’t of Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981).
PAGE 2 – OPINION AND ORDER
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 construe them in the light most
favorable to the non-moving party. 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). To be entitled
to a presumption of truth, allegations in a complaint “may not simply recite the elements of a
cause of action, but must contain sufficient allegations of underlying facts to give fair notice and
to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216
(9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of
the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The
court need not, however, credit the plaintiff’s legal conclusions that are couched as factual
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an
entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “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 quotation marks omitted). But even a pro se plaintiff must offer
PAGE 3 – OPINION AND ORDER
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).
B. Motion to Dismiss Under Rule 12(b)(1)
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256
(2013) (citation omitted). As such, a court is to presume “that a cause lies outside this limited
jurisdiction, and the burden of establishing the contrary rests upon the party asserting
jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations
omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A motion to dismiss under Federal
Rule of Civil Procedure 12(b)(1) for lack of “subject-matter jurisdiction, because it involves a
court’s power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535
U.S. 625, 630 (2002). An objection that a particular court lacks subject matter jurisdiction may
be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y&H
Corp., 546 U.S. 500, 506 (2006); Fed. R. Civ. P. 12(b)(1). The Court must dismiss any case over
which it lacks subject matter jurisdiction. Fed. R. Civ. P. 12(h)(3).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either
“facial” or “factual.” See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject
matter jurisdiction is based on the assertion that the allegations contained in the complaint are
insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual where ‘the
challenger disputes the truth of the allegations that, by themselves, would otherwise invoke
federal jurisdiction.’” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th 2013) (quoting Safe Air for
Everyone, 373 F.3d at 1039)). When a defendant factually challenges the plaintiff’s assertion of
jurisdiction, a court does not presume the truthfulness of the plaintiff’s allegations and may
consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122,
PAGE 4 – OPINION AND ORDER
1131 (9th Cir. 2012); Robinson, 586 F.3d at 685; Safe Air for Everyone, 373 F.3d at 1039. A
factual challenge “can attack the substance of a complaint’s jurisdictional allegations despite
their formal sufficiency.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (citation and
quotation marks omitted).
C. Motion for Summary Judgment under Rule 56
A party is entitled to summary judgment if the “movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view
the evidence in the light most favorable to the non-movant and draw all reasonable inferences in
the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th
Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling
on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of
the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,
255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for
the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).
D. The Rooker-Feldman Doctrine
Pursuant to the Rooker-Feldman3 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
3
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 5 – OPINION AND ORDER
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. 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). A dismissal under this doctrine generally is without
prejudice, although one from which the plaintiff will not be able to replead in this Court. 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).
BACKGROUND
Plaintiff alleges that she has the disability of complex post-traumatic stress disorder
(“PTSD”), which she states is an “injury” and not a mental health disorder. She alleges that
Defendants improperly regarded her as mentally ill and suffering from paranoid schizophrenia
PAGE 6 – OPINION AND ORDER
and parental alienation syndrome (“PAS”). She further alleges that Defendants discriminated
against Plaintiff because of this perceived disability and because of “sex based stereotypes”
relating to her perceived mental impairments. She also alleges that Defendants refused to provide
her with appropriate accommodations necessary to ensure that Plaintiff had full access to court
proceedings to which she was a party and at which the custody of her children were at issue.
Much of Plaintiff’s Amended Complaint discusses her efforts in state court to “vindicate
her rights” and that the state court opinions “side step the law, ignore the legal issues [Plaintiff]
raises and further ensure[] that plaintiff and those similarly situated will be met with continued
domestic and family violence.” Plaintiff asserts that she does not challenge any state court
decision, but that she asks this Court to “review the unlawful practices in context of how those
decisions were made.” She also makes general allegations regarding harm to women at large
from domestic violence.
From Plaintiff’s allegations, in May 2007 she and her ex-husband dissolved their
marriage and entered into, among other things, a parenting plan. In 2010 that plan was litigated
in state court and modified. At that time, Plaintiff’s ex-husband received custody of their
children. Plaintiff does not agree with the outcome of the state court litigation and alleges that
Defendants did not “abide” by the 2007 parenting contract and accepted testimony from
“prejudicial witnesses.” Plaintiff further alleges that another modification to her and her exhusband’s “contract” occurred in May 2011 relating to child support and alimony.
Plaintiff also alleges that the State of Oregon has a systemic practice of providing family
law proceedings that discriminate against persons with “invisible disabilities,” exploit such
persons for financial gain, and select court appointees, vendors, and employees that are “not
compliant” with the ADA. Plaintiff challenges in this lawsuit the state court’s act of “opening
PAGE 7 – OPINION AND ORDER
up” her “closed” case (and apparently others’ as well), denying her right freely to contract her
parenting agreement, allowing “bogus contempt filings,” “enacting cruel and unusual
punishment,” and depriving mothers like her of their children as punishment.
Plaintiff makes numerous general and conclusory allegations regarding fatherhood in
general, how fathers prefer to structure support payments, the earning potential of women versus
men, and the preferential treatment given to fathers throughout the country by state and federal
programs, funding, and courts. For example, Plaintiff alleges: “Fathers, lawyers, mental health
practitioners, court appointees, and judges are the haves. Mothers and children are the havenots.” She then alleges that system only works for the “haves” by depleting all the resources
from mothers. Plaintiff also asserts numerous legal conclusions, citing statutes and regulations,
alleging their legal implications, and concluding that Defendants have violated them. The limited
allegations specific to each defendant are discussed below, as needed.
Plaintiff notes that several other cases similar to hers have been filed around the country
and asserts that she will seek to have her case certified for “multidistrict litigation” to join with
those cases. The Court notes, however, that except for one of those cases that is pending before
the undersigned judge and is early in the litigation process and another pending in the Northern
District of California, all other cases identified by Plaintiff have been dismissed (most without
leave to amend), either sua sponte by the courts in which they were pending or through granting
motions filed by the defendants in those cases.
DISCUSSION
Defendants bring their motions on various grounds, and many join in the arguments made
by one another. They argue that Plaintiff fails to state a claim on which relief can be granted, that
the Court lacks subject-matter jurisdiction because the case is barred by the Rooker-Feldman
doctrine, that Plaintiff’s claims are barred by the statute of limitations, that her claims fail to
PAGE 8 – OPINION AND ORDER
comply with Rule 8 of the Federal Rules of Civil Procedure, that judicial and quasi-judicial
immunity applies, that state sovereign immunity applies, and that Plaintiff lacks standing. The
Court finds that Plaintiff’s claims are time-barred, the Rooker-Feldman doctrine applies,
Plaintiff’s claims against judges are barred by absolute immunity, and Plaintiff’s allegations fail
to comply with Rule 8 and fail to state a claim against any defendant. Accordingly, this case is
dismissed without leave to amend and the Court does not reach any of Defendants’ remaining
arguments.
A. Statute of Limitations
The ADA does not carry a limitations period. Instead, courts “borrow the statute of
limitations applicable to the most analogous state-law claim, so long as it is not inconsistent with
federal law or policy to do so.” Sharkey v. O’Neil, 778 F.3d 767 (9th Cir. 2015) (quotation marks
omitted). This Court recently concluded that the state-law claim most analogous to a claim of
disability discrimination in public accommodations is a claim under Oregon Revised Statutes
(“ORS”) § 659A.142(4), and that such a claim is subject to a two-year statute of limitations as
provided in ORS § 12.110. See A.F. v. Starbucks Corp., 2018 WL 1161385, at *3 (D. Or. Mar. 5,
2018). Thus, Plaintiff’s ADA claim carries a two-year statute of limitations.
The Rehabilitation Act similarly does not provide a statute of limitations. Courts in this
district have applied Oregon’s two-year statute of limitations in ORS 12.110 to Rehabilitation
Act claims. See id. at *2; Ramirez v. Parker, 2014 WL 7187463, at* (D. Or. December 16,
2014).
Generally, “a statute of limitations period is triggered by the decision constituting the
discriminatory act and not by the consequences of that act.” McCoy v. San Francisco, 14
F.3d 28, 30 (9th Cir. 1994); see also Delaware State College v. Ricks, 449 U.S. 250, 258 (1980)
(noting in a discrimination case that “‘the proper focus is upon the time of the discriminatory
PAGE 9 – OPINION AND ORDER
acts, not upon the time at which the consequences of the acts became most painful.’” (emphasis
in original) (quoting Abramson v. Univ. of Hawaii, 594 F.2d 202, 209 (1979))). In her Amended
Complaint, Plaintiff fails to allege any conduct by any defendant relating to Plaintiff after 2011.
Thus, Plaintiff fails to allege conduct within two years of this initiation of this proceeding.
Plaintiff alleges Defendants engaged in improper conduct in 2010 and 2011 relating to
the “reopening” and modification of Plaintiff’s divorce and custody proceedings. Most of the
conduct alleged by Plaintiff occurred in 2010, although Plaintiff alleges Defendant Judge
Katherine Weber issued an order modifying Plaintiff’s alimony and child support in 2011. There
are no facts alleged that took place anywhere near on or after October 27, 2015, two years before
the initiation of this lawsuit.
Plaintiff argues that her claims are subject to the continuing violations doctrine. This
doctrine, however, requires additional acts of discrimination, not the suffering of alleged
ongoing effects of alleged past acts of discrimination. See Knox v. Davis, 260 F.3d 1009, 1014-15
(9th Cir. 2001) (noting that “this court has repeatedly held that a mere continuing impact from
past violations is not actionable” (emphasis in original)).
Even a generous review of Plaintiff’s allegations would be that she continues to suffer
negative effects from the alleged discrimination by Defendants that occurred in 2010 and 2011.
As explained by another court in a case alleging nearly identical claims to Plaintiff’s (and one of
the “in association with” cases Plaintiff noted in her Amended Complaint):
While it appears that Plaintiffs attempt to establish ongoing harm
or continuing violations of the ADA and Rehabilitation Act with
these facts and thereby possibly circumvent the applicable twoyear statute of limitations, the attempt falls short. Even assuming
these allegations are true, they do not allege that Plaintiffs, as
presumably qualified individuals, are being “excluded from
participation in or be[ing] denied the benefits of the services,
programs, or activities of a public entity, or be[ing] subjected to
PAGE 10 – OPINION AND ORDER
discrimination by any such entity[,]” as protected by Title II of the
ADA. See 42 U.S.C. § 12132. Nor do the allegations show that
Plaintiffs, as presumably qualified individuals, are being “excluded
from the participation in, be[ing] denied the benefits of, or be[ing]
subjected to discrimination under any program or activity receiving
Federal financial assistance[,]” as protected by the Rehabilitation
Act. See 29 U.S.C. § 794(a). Instead, the allegations, at their core,
pertain to the effects of the actions or inactions by Defendants that
occurred during the state-court divorce proceeding. Unfortunately
for Plaintiffs, those effects are not themselves separate violations
of the ADA or the Rehabilitation Act, and, therefore, do not reset
the clock as actionable violations of either Act. See generally
Delaware State Coll. v. Ricks, 449 U.S. 250, 258 1980) (indicating,
in the employment context, that a continuing violation of the ADA
must consist of more than merely the lasting effect of a past act);
United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 560 (1977)
(same); Abramson v. Univ. of Hawaii, 594 F.2d 202, 209 (1979)
(noting that, in a Title VII discrimination case, “[t]he proper focus
is upon the time of the discriminatory acts, not upon the time at
which the consequences of the acts became most painful”)
(emphasis added); Donaldson v. O’Connor, 493 F.2d 507, 529 (5th
Cir. 1974) (when a violation alleged involves continuing injury,
the cause of action accrues, and the limitation period begins to run,
at the time the unlawful conduct ceases); Lovett v. Ray, 327
F.3d 1181, 1183 (11th Cir. 2003) (“The critical distinction in
continuing violation analysis . . . is whether the plaintiff[ ]
complain[s] of the present consequence of a one[-]time violation,
which does not extend the limitations period, or the continuation of
a violation into the present, which does.”); McGregor v. La. State
Univ. Bd. of Sup’rs, 3 F.3d 850, 855 (5th Cir. 1993) (recognizing
that “[a] plaintiff cannot use the continuing violation theory to
resurrect claims about discrimination . . . concluded in the past,
even though its effects persist”). Accordingly, despite Plaintiffs’
possible attempt to circumvent the statute of limitations by alleging
ongoing harm or continuing violations of the Acts, equitable
tolling does not apply to their claims, making them time-barred.
Mitchell v. Alabama, 2018 WL 2107218, at *3 (M.D. Ala. Apr. 10, 2018), report and
recommendation adopted, 2018 WL 2107219 (M.D. Ala. May 7, 2018) (alterations and emphasis
in original).
Accordingly, Plaintiff’s claims are time-barred. Id.; see also Wolf v. New Jersey, 2018
WL 1942522, at *6 (D.N.J. Apr. 23, 2018) (dismissing with prejudice claims similar to
PAGE 11 – OPINION AND ORDER
Plaintiff’s as time-barred because the alleged underlying state court proceedings giving rise to
the claims occurred more than two years before the filing of the federal law suit). Because
Plaintiff’s claims are time-barred, this case is dismissed without leave to amend.
B. The Rooker-Feldman Doctrine
Despite Plaintiff’s repeated allegation that she is not challenging a state court opinion,
under the Rooker-Feldman doctrine, a de facto challenge to state court decisions, or federal cases
raising issues that are “inextricably intertwined” with an issue raised in state court, are also
prohibited. Noel, 3341 F.3d at 1158. The four factors to consider in applying the RookerFeldman doctrine are met in this case.
For the first and fourth factors, Plaintiff lost in the state court proceeding and the state
court judgment preceded this action. For the second factor, the state court’s determination is at
the core of this action—Plaintiff’s allegations against Defendants focus exclusively on conduct
relating to Plaintiff’s custody and divorce state court litigation. Finally, for the third factor,
although Plaintiff asserts that she is not seeking review or rejection of the state court verdict,
Plaintiff’s allegations make clear that the gravamen of her challenge is that the state court
improperly reopened her divorce and custody proceeding, required her and her children to
consult with court-appointed practitioners, and modified her custody and support agreement in a
manner with which Plaintiff disagrees. Thus, for Plaintiff to prevail in this case, the Court
necessarily would have to determine that the state court wrongly decided these issues. That is not
the role of federal courts. To the extent Plaintiff was displeased with the state court actions and
decisions, she needed to appeal those decisions in state court. Accordingly, under the RookerFeldman doctrine, the Court does not have jurisdiction to consider Plaintiff’s claims. See, e.g.,
Skipp v. Brigham, 2017 WL 4870907, at *5 (D. Conn. Oct. 26, 2017) (finding that the RookerFeldman doctrine applies to similar claims alleging ADA and Rehabilitation Act violations and
PAGE 12 – OPINION AND ORDER
discrimination by state court officials and other parties related to custody and divorce
proceedings); Wolf v. Escala, 2015 WL 2403106, at*8-10 (D. N.J. May 20, 2015) (same).
Because the Court does not have jurisdiction, this case is dismissed without leave to amend.
C. Judicial Immunity
Judges are absolutely immune from liability for damages, certain injunctive relief,4 and
declaratory relief sought as a result of judicial acts performed in their judicial capacity. Moore v.
Brewster, 96 F.3d 1240, 1243-44 (9th Cir. 1996) (superseded by statute on other grounds);
Mullis v. U.S. Bankr. Court for Dist. of Nev., 828 F.2d 1385, 1388 (9th Cir. 1987); see also Craig
v. Villicana, 676 F. App’x 716 (9th Cir. 2017). To qualify for judicial immunity, a judge must
have performed “judicial acts” within the scope of his or her jurisdiction. Stump v. Sparkman,
435 U.S. 349, 356-57 (1978). “An act is judicial in nature if it is a function normally performed
by a judge and the parties to the act were dealing with the judge in his judicial capacity.”
McGuire v. Clackamas Cty. Counsel, 2009 WL 4456310, at *4 (D. Or. Nov. 24, 2009) (citing
Stump, 435 U.S. at 362). Judges “enjoy absolute immunity even when their actions are
erroneous, malicious, or in excess of judicial authority.” Tanner v. Heise, 879 F.2d 572, 576 (9th
Cir. 1989). The only factual allegations Plaintiff asserts relating to the defendant judges involve
specific judicial orders made within the scope of their jurisdiction. Thus the defendant judges are
entitled to absolute judicial immunity and claims against them are dismissed with prejudice. See
Skipp, 2017 WL 4870907, at *7 (applying judicial immunity to similar claims).
D. Sufficiency of Plaintiff’s Allegations
Although Plaintiff’s Amended Complaint is lengthy, it fails to comply with Rule 8 of the
Federal Rules of Civil Procedure or state factual allegations sufficient to a state claim against
4
The Court notes that “judicial immunity is not a bar to prospective injunctive relief.”
Pulliam v. Allen, 466 U.S. 522, 541-42 (1984).
PAGE 13 – OPINION AND ORDER
any defendant. Plaintiff’s Amended Complaint is replete with conclusory statements that the
Court does not accept as true, general and conclusory allegations relating to men, women,
fathers, mothers, and institutions at large that are irrelevant to Plaintiff’s purported claims or
alleged injury, and legal conclusions that the Court disregards. The factual allegations relating to
the alleged conduct of Defendants are quite minimal.5
Plaintiff brings claims under Titles II and III of the ADA, the Rehabilitation Act, and
Section 46 of the Oregon Constitution. To prevail under Title II of the ADA, Plaintiff must show
that: (1) she is a qualified individual with a disability; (2) she was either excluded from
participation in or denied the benefits of a public entity’s services, programs, or activities, or was
otherwise discriminated against by the public entity; and (3) this exclusion, denial, or
discrimination was by reason of her disability. Cohen v. City of Culver City, 754 F.3d 690, 695
(9th Cir. 2014).
“To prevail on a discrimination claim under Title III, a plaintiff must show that: (1) he is
disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases,
or operates a place of public accommodation; and (3) the plaintiff was denied public
5
The majority of Plaintiff’s Amended Complaint appears to be a copy of the complaints
filed in the cases Plaintiff recites as “similarly situated to” and “in association with” her case.
These cases have uniformly been dismissed when considered by the courts in which they were
filed. See, e.g., Mitchell, 2018 WL 2107218, at *3 (dismissing claims sua sponte); Boyer v.
Becerra, 2018 WL 2041995, at *8 (N.D. Cal. Apr. 30, 2018) (dismissing claims sua sponte
without leave to amend); Wolf, 2018 WL 1942522, at *7 (dismissing claims with prejudice);
Barnett v. Becerra, 2018 WL 1070820, at *7 (N.D. Cal. Feb. 26, 2018) (dismissing claims sua
sponte without leave to amend); Theill v. Oregon, Case No. 17-1722-SB, Findings and
Recommendation ECF No. 7 (D. Or. January 2, 2018) (recommending dismissal of claims sua
sponte with leave to amend); James v. Massachusetts, 2018 WL 326457, at *3-4 (D. Mass.
Jan. 8, 2018) (identifying deficiencies in the complaint and ordering the plaintiff to show cause
why the case should not be dismissed), complaint dismissed in 2018 WL 1156228 (D. Mass.
Mar. 5, 2018); Skipp v. Brigham, 2017 WL 4870907, at *7 (dismissing claims and noting that if
the plaintiff files anything more with the court other than an appeal the plaintiff will be
designated as a vexatious litigant).
PAGE 14 – OPINION AND ORDER
accommodations by the defendant because of his disability.” Arizona ex rel. Goddard v. Harkins
Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010). An attorney’s office and social
service center are considered places of public accommodation. 42 U.S.C. § 12181(7)(F), (K).
A prima facie claim under Section 504 of the Rehabilitation Act requires a plaintiff to
allege the following four elements: (1) that she is disabled under the Act; (2) that she is
“otherwise qualified” for the benefit or services sought, meaning that she could “meet the
essential eligibility requirements of such services, with or without reasonable accommodation”;
(3) that she was denied the services because of her disability; and (4) that the program or activity
in question receives federal financial assistance. Martin v. California Dep’t of Veterans
Affairs, 560 F.3d 1042, 1047 (9th Cir. 2009).
1. Clackamas County Defendants
Title III of the ADA does not apply to governmental entities, so Plaintiff fails to state a
claim for her Title III claim against the Clackamas County Defendants. Regarding Plaintiff’s
remaining claim, she fails to assert any facts against Sheriff Roberts or the Sheriff’s Office. She
generally alleges that the Sheriff and other employees of the Sheriff’s Office were not properly
trained in civil rights, gender bias, or Title II and that she was “stripped of her rights” when
dealing with the Sheriff’s office. She makes no factual allegations, however, of “dealing” with
the Sheriff’s office. Her allegations involve court proceedings. She also asserts no factual
allegations relating to Clackamas County or Stephen Madkour of the Office of County Counsel.
Accordingly, she fails to state a claim against any of these defendants relating to her ADA Title
II claim, Rehabilitation Act claim, or claim under the Oregon Constitution.
2. Oregon State Bar Defendants
Plaintiff asserts no factual allegations relating to her claims involving the Oregon State
Bar or its former President Mr. Heysell. She does not allege that she contacted the Bar, sought
PAGE 15 – OPINION AND ORDER
services from the Bar, was somehow precluded from obtaining services due to her perceived or
actual disability, or was discriminated against by the Bar. Her only allegations relating to the Bar
or its former President is a conclusory allegation that the Bar is not compliant with the ADA,
which the Court disregards, and allegations that the Bar is a public entity, it promotes respect for
the rule of law, and it “oversee[s] the role of thousands of attorneys admitted to practice in
Oregon.” These allegations are insufficient to state a claim against the Bar or its former
President.
3. Sandy Police Defendants
Similar to the Clackamas County Sheriff’s Office, Plaintiff does not plead factual
allegations involving the Sandy Police Department or its former Police Chief. Plaintiff does not
allege facts showing how she sought services from the Sandy Police Department, how she was
deprived services due to her perceived or actual disability, or was otherwise discriminated
against by the Sandy Police Department. Plaintiff alleges that the Sandy Police Department is a
private entity under the ADA, which is incorrect. Thus the Title III claims are dismissed.
The only other allegations relating to the Sandy Police Department are the same
conclusory allegations that Plaintiff made relating to the Clackamas County Sheriff’s Office—
that the Sandy Police Department is insufficiently trained in civil rights, gender bias, and Title II
of the ADA, and that she was stripped of rights when interacting with the Sandy Police
Department. Accordingly, Plaintiff fails to state a claim against the Sandy Police Department or
its former Police Chief.
4. Leonard Kovac
Leonard Kovac is an attorney who at one point briefly represented Plaintiff during her
divorce or custody dispute. Plaintiff alleges that he is both a public entity and a private entity
under the ADA, which is incorrect. A public entity under the ADA is a state or local government,
PAGE 16 – OPINION AND ORDER
or a “department, agency, special purpose district, or other instrumentality of a State or States or
local government.” 42 U.S.C. § 12131(1). As a private attorney who Plaintiff alleges represented
her individually, Plaintiff has not alleged facts demonstrating that Mr. Kovac is an
instrumentality of the State. Thus, Mr. Kovac is not a public entity. Accordingly Plaintiff fails to
state a claim against him under Title II of the ADA or Section 46 of the Oregon Constitution.
The only other allegations involving Mr. Kovac is that he ceased his representation of
Plaintiff via a letter and did not notify the State court, and that he failed timely to provide
Plaintiff with a notice regarding a court proceeding because he was not happy with Plaintiff. This
is insufficient to support any of Plaintiff’s claims. It does not support disability discrimination
under Title III of the ADA or the Rehabilitation Act. Indeed, Plaintiff alleges that Mr. Kovac was
unhappy with her, not that he ceased being her attorney because of her perceived or actual
disability. Nor does this allegation support Plaintiff’s claim of unequal treatment under the
Oregon Constitution.
5. John C. Moore
John C. Moore is an attorney who briefly represented Plaintiff’s ex-husband during the
domestic dispute. Plaintiff alleges Mr. Moore is both a public and private entity under the ADA.
As with Mr. Kovac, Plaintiff fails to allege facts demonstrating that Mr. Moore is an
instrumentality of the state and thus Plaintiff’s Title II claim under the ADA and Section 46
claim under the Oregon Constitution against Mr. Moore are dismissed.
Plaintiff’s remaining allegations relate to Mr. Moore’s representation of his client—that
Mr. Moore sent letters on behalf of his client, obtained extensions of time from the court, made
representations to the state court to which Plaintiff disagrees, “forced” her into a custody
modification proceeding through court filings, “lied” about the situation with her ex-husband,
PAGE 17 – OPINION AND ORDER
required her to go to court numerous times for frivolous reasons, intimidated a witness, and
faxed her private information to her job on when he knew she was out of the office.
Although Plaintiff is displeased with Mr. Moore’s representation of his client, Plaintiff
does not allege that Mr. Moore denied Plaintiff the public accommodation of his law office on
the basis of Plaintiff’s perceived or actual disability. Accordingly, Plaintiff’s claim under
Title III of the ADA is dismissed. Similarly, Plaintiff does not allege that she sought any services
from Mr. Moore that she was precluded from obtaining by Mr. Moore because of Plaintiff’s
disability. Thus, her Rehabilitation Act claim is dismissed.
6. National and Oregon AFCC Defendants
Plaintiff alleges that the AFCC Defendants are private entities, thus Plaintiff’s claims
under Title II of the ADA and Section 46 of the Oregon Constitution are dismissed against all the
AFCC Defendants. Plaintiff’s factual allegations relating to the AFCC Defendants are that they
do not “abide” by the contracts entered into by others, they promote the use of PAS and other
mental health accusations against mothers and children in family court, and they create, sell,
implement, and train programs that violate the ADA. These are general and conclusory
allegations that do not support that, because of Plaintiff’s disability, the AFCC denied Plaintiff a
public accommodation that the AFCC Defendants rent, own, or lease. Thus Plaintiff fails to state
a Title III claim against these defendants. Plaintiff similarly fails to state a Rehabilitation Act
claim against these defendants, because she does not allege that she sought services from the
AFCC Defendants or was denied services by the AFCC Defendants because of her disability.
7. Dr. Paul Guastadisegni
Plaintiff alleges that Dr. Guastadisegni is an “independent mental health provider” who
was worked as a “parent evaluator” during the relevant time period and was both a public entity
and a private entity for purposes of the ADA. Plaintiff alleges that Judge Villa ordered Plaintiff
PAGE 18 – OPINION AND ORDER
and her children to a custody evaluation with Dr. Guastadisegni. Plaintiff further alleges that
Dr. Guastadisegni “grilled” Plaintiff, “interviewed” her children, concluded that Plaintiff needed
to put the abuse “behind her,” and further concluded that there was emotional abuse against
Plaintiff by her ex-husband but no physical abuse. Plaintiff alleges that this conclusion was based
on Dr. Guastadisegni’s erroneous belief that Plaintiff had crossed-out physical abuse on one of
the forms she completed, when in fact she had never crossed anything out. She alleges that Dr.
Guastadisegni stated in his report that the children were closer to Plaintiff than her ex-husband,
that Plaintiff was more truthful on the testing than was her ex-husband, that his report was only
accurate if both sides were telling the truth, and that Plaintiff followed the parenting plan too
closely. She also alleges that Dr. Guastadisegni gave Plaintiff his final report on the morning of
the court hearing.
These allegations do not support any claim of disability discrimination or gender
discrimination. Plaintiff does not allege that Dr. Guastadisegni denied her services or a public
accommodation in his offices because of Plaintiff’s disability. To the contrary, Plaintiff received
services from Dr. Guastadisegni and as alleged by Plaintiff the report was more favorable to her
than to her ex-husband. The only aspect of the report that Plaintiff disputes is that there was no
physical abuse. Plaintiff alleges, however, that specific conclusion was based on
Dr. Guastadisegni’s mistaken belief that Plaintiff had crossed-out physical abuse on her form,
not based on Plaintiff’s disability. Accordingly, Plaintiff fails to state a claim against
Dr. Guastadisegni.
8. State of Oregon Defendants
As discussed above, the judge defendants have absolute judicial immunity. The
remaining State of Oregon Defendants are officials and agencies against whom no specific
PAGE 19 – OPINION AND ORDER
factual allegations are asserted that support any of Plaintiff’s claims. Thus the claims against
these defendants are dismissed.
9. Dr. Mona Ozaki
The entirety of Plaintiff’s allegations against Dr. Ozaki are that she is “is an independent
mental health provider licensed by the State of Oregon and worked as a psychologist at the time
of the events complained herein” and that she was both a public entity and a private entity for
purposes of the ADA. There are no factual allegations relating to Plaintiff’s claims. Accordingly,
Plaintiff fails to state a claim against Dr. Ozaki.
E. Motion for Summary Judgment on Claims Against Dr. Charlene Sabin
Dr. Sabin moves for summary judgment on all claims. Dr. Sabin asserts that she is a
private entity who does not receive federal funds, and thus claims under Title II of the ADA, the
Rehabilitation Act, and Section 46 of the Oregon Constitution must be dismissed. Dr. Sabin,
however, did not provide any evidence (such as a declaration) relating to her private status or
that she does not receive federal funds. Under Rule 56 of the Federal Rules of Civil Procedure, a
party asserting that a fact cannot be genuinely disputed “must support the assertion by” citing to
the record, including declarations or affidavits. Fed. R. Civ. 56(c)(1) (emphasis added). It is the
moving party’s initial burden to establish the absence of a genuine dispute of material fact, and
only then does the responding party need to present evidence that there is a genuine dispute.
Celotex, 477 U.S. at 323. Dr. Sabin merely argued in her brief that Plaintiff could not “prove”
that Dr. Sabin received federal funds. This is insufficient to meet Dr. Sabin’s burden at summary
judgment to show that there is no dispute of material fact on this issue.
Dr. Sabin, however, also raises arguments relating to the statute of limitations and the
Rooker-Feldman doctrine. As discussed above, the Court grants the motion on these grounds.
The Court also applies to the claims against Dr. Sabin the Court’s reasoning discussed above in
PAGE 20 – OPINION AND ORDER
resolving the other defendants’ motions under Rule 12(b)(6). As with all of the defendants
discussed above, Plaintiff fails to allege facts supporting that Dr. Sabin either denied Plaintiff
benefits or services or otherwise discriminated against Plaintiff based on her disability, denied
Plaintiff public accommodation in space rented, owned, or leased by Dr. Sabin, or was an
instrumentality of the State who discriminated against Plaintiff on the basis of gender.
CONCLUSION
Defendants’ motions (ECF 62, 63, 73, 74, 87, 88, 93, 94, 98, 102, 104) are GRANTED.
The Court also sua sponte dismisses all claims against all nonmoving defendants. Plaintiff’s
Amended Complaint is dismissed without leave to amend.
IT IS SO ORDERED.
DATED this 19th day of June, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 21 – OPINION AND ORDER
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