Samuelson v. Jewell School District 8 et al

Filing 58

Opinion and Order - The Court GRANTS Phillips' Motion for Joinder (ECF 48 ). The Court GRANTS IN PART the Moving Defendants' motions to dismiss (ECF 37 , 40 , 44 ). If Plaintiff believes that he can cure the deficiencies in the First Amended Complaint as identified in this Opinion and Order, he may submit a Second Amended Complaint not later than April 23, 2024. Signed on 3/26/2024 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DAVE SAMUELSON,

Case No. 3:22-cv-1923-SI

Plaintiff,

OPINION AND ORDER

v.
JEWELL SCHOOL DISTRICT 8, STEVE
PHILLIPS, RON BROWN, JON WOOD,
SHANNON WOOD, ERIC DOTSON,
CHANCE MOORE, TOM BERGIN,
BRIAN MEIER, and JOHN & JANE DOE
1-15,
Defendants.
Robert R. Parker, Jr., 111 SW Fifth Ave., Suite 3150, Portland, OR 97204. Of Attorneys
for Plaintiff.
Karen M. Vickers and Beth Plass, VICKERS PLASS LLC, 5200 SW Meadows Rd., Suite 150,
Lake Oswego, OR 97035. Of Attorneys for Defendants Jewell School District 8, Jon Wood,
and Shannon Wood.
Lowell P. McKelvey, MCKELVEY LAW LLC, 1205 NW 25th Ave., Portland, OR 97210.
Of Attorneys for Defendant Steve Phillips.
Dirk L. Pierson, Oregon Department of Justice, Trial Division, Torts Section, 1162 Court St. NE,
Salem, OR 97301. Of Attorneys for Defendant Ron Brown.
Andrew D. Campbell, HETZEL WILLIAMS PC, PO Box 1048, Salem, OR 97308. Of Attorneys for
Defendants Eric Dotson, Chance Moore, and Tom Bergin.
Noah Jacob Gordon and Nicole M. Rhoades, DAVIS ROTHWELL EARLE & XÓHIHUA, PC,
200 SW Market Street, Suite 1800, Portland, OR 97201. Of Attorneys for Defendant
Brian Meier.

PAGE 1 – OPINION AND ORDER

Michael H. Simon, District Judge.
Plaintiff Dave Samuelson brings this civil action against Steven Phillips (Phillips), Jewell
School District 8 (the School District), Jon Wood, Shannon Wood (also referred to as “Wood”),1
Brian Meier, Deputy Eric Dotson, Deputy Chance Moore, former Sheriff Tom Bergin, District
Attorney Ron Brown, and John and Jane Does one through fifteen (collectively, Defendants).
Plaintiff alleges that Defendants2 deprived him of constitutional rights in violation of 42 U.S.C.
§ 1983 (Count I); violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18
U.S.C. §§ 1961-1968 (Counts II and III); and committed a variety of state law offenses,
including malicious prosecution, abuse of process, wrongful termination, intentional infliction of
emotional distress (IIED),3 defamation, age discrimination, tortious interference, and negligent
oversight, training, and supervision (Counts IV-IX).
Before the Court are three motions to dismiss Plaintiff’s First Amended Complaint
(FAC). Defendants Deputy Dotson, Deputy Moore, and Sheriff Bergin (collectively, the County
Defendants) bring one motion to dismiss. Defendant Meier brings another motion to dismiss.

1

Jon Wood and Shannon Wood are unrelated.

The First Amended Complaint often refers to “Defendants” generally, such that the
specific Defendants to whom Plaintiff refers are unclear. That is so not only for Plaintiff’s factual
allegations, but also for his claims. A complaint may be factually deficient when it “lumps
defendants together and fails to adequately distinguish claims and alleged wrongs among
defendants. . . . Plaintiffs must allege more than generic and conclusory allegations
demonstrating that ‘Defendants’ collectively engaged in [misconduct] and allege with at least
some degree of specificity the acts which each defendant is alleged to have engaged in which
support Plaintiff’s claims.” McKeon v. Cent. Valley Cmty. Sports Found., 2018 WL 6436256,
at *4 (E.D. Cal. Dec. 7, 2018) (collecting cases). No Defendant, however, has moved to dismiss
on this ground or moved for a more definite statement under Rule 12(e) of the Federal Rules of
Civil Procedure. Where the First Amended Complaint refers generally to “Defendants,” the
Court construes Plaintiff’s allegations and claims to apply to Defendants who appear to be the
subject of those allegations and claims.
2

3

Plaintiff refers to this claim as one for “intentional infliction of mental anguish.”

PAGE 2 – OPINION AND ORDER

Defendants School District, Jon Wood, and Shannon Wood (collectively, the District
Defendants) bring the third motion to dismiss.4 All motions are brought under Rule 12(b)(6) of
the Federal Rules of Civil Procedure. Defendant Phillips moves to join those motions to dismiss.5
Although Phillips missed his deadline by a few days, counsel explained the delay, Phillips offers
no new argument or facts, and Plaintiff did not object to the late filing. The Court therefore
grants nunc pro tunc an extension of Phillips’ deadline to respond to Plaintiff’s Complaint to
July 5, 2023, accepts Phillips’ motion as timely, grants his motion for joinder, and considers
Phillips one of the Defendants to have moved to dismiss (collectively, the Moving Defendants).
For the reasons below, the Court grants in part and denies in part the Moving Defendants’
motions to dismiss.6
STANDARDS
A. Motion to Dismiss under Rule 12(b)(6)
A motion to dismiss for failure to state a claim 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 evaluating the sufficiency of a complaint’s factual
allegations, a 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. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629
All Defendants move to dismiss Samuelson’s FAC except District Attorney Brown,
who answered the FAC. See ECF 41. Thus, in this Opinion and Order the Court does not address
whether the claims against Brown should be dismissed.
4

5

In their motions to dismiss, the District Defendants and Meier also move to join in the
motions filed by all other Moving Defendants. The Court grants these requests.
6

The Court has considered the submitted briefing and does not believe that oral argument
will assist the Court in ruling on the pending motions to dismiss.
PAGE 3 – OPINION AND ORDER

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). The court must draw all
reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon
Off. Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit a
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)). “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.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation
marks omitted); see also Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990, 995
(9th Cir. 2014) (stating that to satisfy the requirements of Rule 8 of the Federal Rules of Civil
Procedure to o survive a motion to dismiss, “plaintiffs must include sufficient ‘factual
enhancement’ to cross ‘the line between possibility and plausibility.’” (quoting Twombly, 550
U.S. at 557)).
B. Claims under 42 U.S.C. § 1983
To state a claim under 42 U.S.C. § 1983, a complaint must allege that a defendant, while
acting under color of state law, caused a deprivation of the plaintiff’s federal rights. West v.
PAGE 4 – OPINION AND ORDER

Atkins, 487 U.S. 42, 48 (1988); Taylor v. List, 880 F.2d 1040, 1046 (9th Cir. 1989). In a § 1983
action, a plaintiff must also establish both causation-in-fact and proximate (i.e., legal) causation.
Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). A plaintiff can show
causation-in-fact “only if the injury would not have occurred ‘but for’ [the defendant’s]
conduct.” Chaudhry v. Aragón, 68 F.4th 1161, 1169 n.11 (9th Cir. 2023) (quoting White v.
Roper, 901 F.2d 1501, 1505 (9th Cir. 1990)). Allegations of causation in a § 1983 claim “must
be individualized and focus on the duties and responsibilities of each individual defendant whose
acts or omissions are alleged to have caused a constitutional deprivation.” Leer v. Murphy, 844
F.2d 628, 633 (9th Cir. 1988).
An individual acts “under color of state law” for purposes of § 1983 when the individual
has “exercised power ‘possessed by virtue of state law and made possible only because the
wrongdoer is clothed with the authority of state law.’” Rawson v. Recovery Innovations, Inc.,
975 F.3d 742, 748 (9th Cir. 2020) (quoting West, 487 U.S. at 49). Generally, private parties are
not acting under color of state law. Price v. Hawaii, 939 F.2d 702, 707-08 (9th Cir. 1991). To act
under color of law does not require that the defendant be an employee of the state, but he must be
“a willful participant in joint action with the State or its agents.” Dennis v. Sparks, 449 U.S.
24, 27 (1980). “Private persons, jointly engaged with state officials in the challenged action, are
acting ‘under color’ of law for purposes of § 1983 actions.”7 Id. at 27-28.

7

There are four factors or tests that courts use to determine whether a private party is
acting under color of state law: “(1) public function, (2) joint action, (3) governmental
compulsion or coercion, and (4) governmental nexus.” Sutton v. Providence St. Joseph Med.
Ctr., 192 F.3d 826, 835-36 (9th Cir. 1999). “Whether a private party engaged in state action is a
highly factual question” in which the nature and extent of the relationship between the private
party and the state is “[c]rucial.” Brunette v. Humane Soc’y of Ventura Cnty., 294 F.3d
1205, 1209 (9th Cir. 2002).
PAGE 5 – OPINION AND ORDER

C. Federal RICO Claims Under 18 U.S.C. § 1962(c)
“RICO was intended to combat organized crime, not to provide a federal cause of action
and treble damages to every tort plaintiff.” Oscar v. Univ. Students Co-operative Ass’n, 965
F.2d 783, 786 (9th Cir. 1992), abrogated on other grounds by Diaz v. Gates, 420 F.3d 897 (9th
Cir. 2005). To state a civil claim under that provision, a plaintiff must allege “(1) conduct (2) of
an enterprise (3) through a pattern (4) of racketeering activity (known as ‘predicate acts’)
(5) causing injury to plaintiff’s business or property.” Coronavirus Rep. v. Apple, Inc., 85
F.4th 948, 958 (9th Cir. 2023) (quoting Living Designs, Inc. v. E.I. Dupont de Nemours &
Co., 431 F.3d 353, 361 (9th Cir. 2005)).
RICO defines “racketeering activity” as “any act ‘chargeable’ under several generically
described state criminal laws, any act ‘indictable’ under numerous specific federal criminal
provisions, including mail and wire fraud, and any ‘offense’ involving bankruptcy or securities
fraud or drug-related activities that is ‘publishable’ under federal law.” Sedima, S.P.R.L. v. Imrex
Co., 473 U.S. 479, 481-82 (1985) (quoting 18 U.S.C. § 1961(1)). A “pattern” of racketeering
activity “requires at least two acts of racketeering activity.” 18 U.S.C. § 1961(5). Those acts
must be “related”8 and “continuous.” 9 Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th
Predicate offenses are “related” if they have “the same or similar purpose, results,
participants, victims, or methods of commission, or otherwise are interrelated by distinguishing
characteristics and are not isolated events.” Howard v. Am. Online Inc., 208 F.3d 741, 749 (9th
Cir. 2000) (quoting H.J. Inc., 492 U.S. at 239).
8

“‘Continuity’ is both a closed- and open-ended concept, referring either to a closed
period of repeated conduct, or to past conduct that by its nature projects into the future with a
threat of repetition.” H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 241 (1989). “‘Closed-ended’
continuity is established by showing that related predicate acts occurred over a ‘substantial
period of time.’” Allwaste, Inc. v. Hecht, 65 F.3d 1523, 1527 (9th Cir. 1995) (quoting H.J.
Inc., 492 U.S. at 242). “Open-ended continuity is the threat that criminal conduct will continue
into the future. It is established by showing either that the predicate acts ‘include a specific threat
of repetition extending indefinitely into the future’ or that the predicate acts were ‘part of an
ongoing entity’s regular way of doing business.’” Id. (quoting H.J. Inc., 492 U.S. at 242).
9

PAGE 6 – OPINION AND ORDER

Cir. 1995) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 239 (1989)). To recover
damages under RICO, a civil plaintiff must also show that the defendant’s RICO violation
directly and proximately caused an injury to the plaintiff’s “business or property.” See 18 U.S.C.
§ 1964(c); Molina-Aranda v. Black Magic Enters., L.L.C., 983 F.3d 779, 784 (5th Cir. 2020); see
also CGC Holding Co., LLC v. Hutchens, 974 F.3d 1201, 1213 (10th Cir. 2020) (“RICO requires
that a plaintiff prove both but-for and proximate cause.”).
Under 18 U.S.C. § 1962(d), a plaintiff may bring a claim for conspiracy to violate
§ 1962(c). “The elements of a conspiracy under § 1962(d) are simply (1) that two or more people
agreed to commit a substantive RICO offense and (2) that the defendant knew of and agreed to
the overall objective of the RICO offense.” United States v. Rosenthal, 805 F.3d 523, 530 (5th
Cir. 2015) (emphasis in original) (quotation marks omitted). The “key question” in a RICO
conspiracy case is whether the defendant “knew about and agreed to facilitate” a scheme that
would involve the commission of two predicate acts. United States v. Fiander, 547 F.3d 1036,
1041 (9th Cir. 2008) (quotation marks omitted).
BACKGROUND10
Plaintiff is a resident of Clatsop County, Oregon. He was an athletics coach at the School
District and a member of the School District’s Board. As a member of the School Board,
Plaintiff spoke out against the hiring of Phillips as school district Superintendent. Plaintiff
Plaintiff asserts new facts in his responses to the Moving Defendants’ motions to
dismiss, but those are not properly before the Court. See Schneider v. Cal Dep’t of Corr., 151
F.3d 1194, 1197 n.1 (9th Cir. 1998). The Court limits this section to the factual allegations in the
FAC that the Court understands to support Plaintiff’s legal claims and matters of which the Court
may take judicial notice, including the existence and dates of public court filings, including in
Samuelson v. Jewell School District No. 8, Case No. 20CV03015 (Clatsop Cnty. Cir. Ct.). See
Fed. R. Evid. 201(d); Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir. 2001) (stating that
when a court takes judicial notice of public records such as court opinions, it does so “not for the
truth of the facts recited therein, but for the existence of the opinion, which is not subject to
reasonable dispute over its authenticity.” (quotation marks omitted)).
10

PAGE 7 – OPINION AND ORDER

alleges that before Phillips became Superintendent, Phillips had been forced to resign from the
Beaverton School District after posting purportedly racist and offensive messages on the social
media platform Twitter (now X), including “Immigrants kill thousands of Americans every year”
and are “more dangerous than assault rifles.” ECF 36 (FAC) ¶ 32. Plaintiff’s arguments to the
School Board failed, however, and the School District hired Phillips as Superintendent.
As an athletics coach for the School District, Plaintiff worked with Wood, another coach.
They purportedly shared a “platonic, jocular ‘coach-to-coach’ relationship.” FAC ¶ 15. Wood
purportedly “slapped [Plaintiff] on the buttocks or reached into his back pocket and put a few
bills in the pocket” at times—behavior apparently in line with the nature of their relationship. Id.
Plaintiff alleges that he was informed by the parent of a student athlete that Wood was
engaged in an extramarital affair with Meier, another (now former) member of the School Board
and the parent of a student coached by Wood at that time. FAC ¶ 14. Plaintiff reported this
information to then-Superintendent Phillips, in what Plaintiff thought was a confidential
disclosure. FAC ¶ 16. Plaintiff alleges that he received a text message from Wood within 48
hours of that disclosure, asking Plaintiff whether he told Phillips about Wood’s purported affair.
See FAC ¶ 17. Plaintiff responded that he had. FAC ¶ 18. Plaintiff also alleges that Phillips
disclosed Plaintiff confidential report to Wood because Phillips “held a grudge against” Plaintiff
for his earlier position against hiring Phillips, and that Wood’s allegation was “the perfect
opportunity” to retaliate. FAC Intro; ¶ 32. Almost immediately after Phillips informed Wood of
Plaintiff’s report, Wood filed what Plaintiff alleges were retaliatory and false harassment claims
against Plaintiff. FAC Intro.
Shortly after the exchange between Plaintiff and Wood, Plaintiff alleges that agents,
employees, or representatives of the School District and the Clatsop County Sheriff’s Office
“targeted” Plaintiff for “touching Wood’s buttocks over her clothing.” FAC ¶ 18. Plaintiff
PAGE 8 – OPINION AND ORDER

alleges that Wood’s accusation was false and made in retaliation for Plaintiff’s disclosure of
Wood’s extramarital affair. FAC Intro; ¶ 19. Plaintiff further alleges that Wood has engaged in a
pattern of filing frivolous and malicious complaints against her colleagues, both before and after
filing her complaint against Plaintiff. FAC ¶ 21.
Plaintiff alleges that in response to Wood’s complaint, the District Defendants and
Phillips failed to conduct an investigation that was “fair, impartial, and/or reasonably
appropriate.” FAC ¶ 55. Plaintiff contends that both Phillips (as then-Superintendent) and Jon
Wood, who served as School Principal, “knew the claims against Plaintiff were false” because
both Defendants had indicated that they were aware of Shannon Wood’s “history of using these
types of claims as retaliation in work disputes.” FAC ¶ 60.
Phillips allegedly terminated Plaintiff’s employment and issued a directive barring him
from school property unless Plaintiff was escorted by his wife or another person over the age
of 40, and restricting Plaintiff from visiting the classroom of Plaintiff’s grandson unless Phillips
was present. FAC ¶¶ 52-53. Plaintiff appealed to the School Board, which affirmed Phillips’s
decision in November 2019, purportedly without considering Plaintiff’s defense. FAC ¶ 72.
Plaintiff states that he subsequently filed a tort claims notice that was served on “the School
Board Defendants”11 and that on January 15, 2020, he filed a Petition for Writ in Clatsop County
Circuit Court seeking review and reversal of the School Board’s decision. FAC Intro; ¶¶ 27, 54;
Vickers Decl., Ex. 1 (State Court Docket) (ECF 45-1). Plaintiff settled that dispute with the
School District on October 17, 2022. FAC ¶¶ 54, 73.12
11

Plaintiff does not specify which of the named Defendants in this case were served with
the notice and does not provide any information about its contents.
Plaintiff states that the “writ was signed” on October 17, 2022, but is unclear to what
Plaintiff refers. The case docket indicates that the Circuit Court entered judgment dismissing the
case with prejudice on October 24, 2022. State Court Docket at 1, 4.
12

PAGE 9 – OPINION AND ORDER

Plaintiff further alleges that the School District targeted Plaintiff while failing to
investigate his complaint about Wood. FAC ¶ 19. He also alleges that the School District failed
to investigate a complaint against another employee that involved accusations of worse activity
than that of which Plaintiff had been accused, including selling drugs to students and having
sexual relations with a student. FAC Intro; ¶ 46. Plaintiff also alleges that the School District
pays for Wood’s legal counsel despite no longer employing her. FAC ¶ 22.
Wood filed a Petition for a Stalking Protective Order against Plaintiff based on the same
allegedly false allegations, but the state court denied her petition on or about September 27,
2019, allegedly for lack of “legal basis.” FAC ¶ 24. Deputies Moore and Dotson then cited
Plaintiff, who was charged with sexual harassment and telephonic harassment. FAC ¶ 30.
Plaintiff states that he was “arraigned for a second time”13 in January 2020, at which point he
was charged with ten counts. Id.; see also Campbell Decl., Ex. 1 (ECF 38-1) (Amended
Information dated January 31, 2020, listing five counts of harassment and five counts of thirddegree sexual abuse). According to Plaintiff, District Attorney Brown “elevated” Wood’s single
claim of harassment, which was based on “single incident,” into “ten criminal charges.” FAC
¶ 26. Plaintiff further alleges that Wood met with Brown in his office at the time of Plaintiff’s
first arraignment and after his second arraignment. FAC ¶¶ 36-37. Plaintiff also alleges that
Principal Jon Wood told a School District employee that Brown would be coming to the School
District to “coach witnesses.” FAC ¶ 51.
Plaintiff alleges that all criminal charges arose from false allegations made by Wood.
FAC ¶ 30. According to Plaintiff, Deputy Moore, Sheriff Bergin, and District Attorney Brown
all failed to conduct a fair or reasonable investigation into Wood’s allegations, and that even a

13

It is unclear from the FAC when the first alleged arraignment occurred.

PAGE 10 – OPINION AND ORDER

“cursory” investigation performed in accordance with law enforcement guidelines would have
revealed the “fatal flaws” in those allegations and Wood’s credibility. FAC ¶¶ 55-56. Plaintiff
alleges that Deputies Moore and Dotson summoned Plaintiff to meet with them under false
pretenses, and then charged him with sexual harassment and telephonic harassment. FAC
¶¶ 28-30. Plaintiff further alleges that law enforcement body camera footage shows Sheriff’s
deputies intimidating witnesses who were supportive of Plaintiff. FAC ¶ 50.
Plaintiff contends that Brown’s prosecution of Plaintiff was retaliatory. FAC ¶¶ 41-42.
Among other things, Plaintiff alleges that the Clatsop County District Attorney’s Office held
animosity toward Plaintiff wife, who was a Clatsop County Commissioner and had voted against
awarding a “stipend” to the District Attorney’s Office. FAC ¶ 33. Plaintiff alleges various
additional purported conflicts of interest held by District Attorney Brown. FAC ¶¶ 34-39.
Plaintiff alleges that Phillips served subpoenas for the District Attorney’s Office at the
school and, according to Plaintiff, Phillips pressured the employee-witnesses to cooperate with
District Attorney Brown for fear of their jobs. FAC ¶ 57. Phillips allegedly “coached” witnesses
and did so many times because Plaintiff’s trial was rescheduled nine times. FAC ¶ 58. Plaintiff
also alleges that Phillips berated staff if they made any positive or supportive comment toward
Plaintiff, and that Phillips demanded to know whether staff were “team Samuelson” or “team
Jewell School.” FAC ¶ 59.
While the criminal charges were being prosecuted against Plaintiff, he suffered a heart
attack and underwent heart surgery. FAC ¶¶ 64-65. After Plaintiff allegedly rejected an offer by
Brown to drop all but one charge if Plaintiff paid money to Wood, Plaintiff’s wife was
investigated for felony witness tampering related to the case against Plaintiff. FAC ¶¶ 66-68.
Plaintiff and his wife hired a criminal defense attorney and litigated for two years before the
Clatsop County Sheriff’s Office allegedly disclosed that it had destroyed “exculpatory
PAGE 11 – OPINION AND ORDER

information” related to the cases against both Plaintiff and his wife. FAC ¶ 68. After that
disclosure, on December 8, 2021, all charges against Plaintiff were dismissed. FAC ¶ 70;
Campbell Decl., Ex. 2 (Order and Judgment for Dismissal) (ECF 38-2). Plaintiff states that he
continues to suffer emotional distress from the ordeal, including suffering from post-traumatic
stress disorder. FAC ¶ 70.
Plaintiff contends that after the charges were dismissed, Defendants continued to defame
him. According to Plaintiff, a newspaper published a statement made by District Attorney Brown
that “they had a good case” against Plaintiff, and other Defendants made similar statements,
including at school events. FAC ¶ 71.
There are two defendants against whom Plaintiff alleges only a few facts. Against Tom
Bergin, Plaintiff alleges that Bergin had served as Sheriff of Clatsop County but does not allege
when Bergin did so. FAC ¶ 11. According to Plaintiff, Bergin “ratified” the unconstitutional acts
of Deputies Moore and Dotson. FAC ¶ 76. Plaintiff alleges that Bergin had duties to properly
train, oversee, and supervise his deputies, was absent approximately 75 percent of the time, and
failed properly to train his employees. FAC ¶ 129. For Meier, Plaintiff generally alleges that
Meier publicized allegedly false allegations to the Sheriff’s Office. FAC ¶ 116. Plaintiff also
alleges that the administrative proceedings at the school were improperly instituted to provide a
defense for Meier and Wood’s inappropriate relationship. FAC ¶ 101. Plaintiff alleges no other
relevant facts about Meier.
DISCUSSION
A. Joint Liability
Plaintiff alleges and argues that all Defendants are responsible for the acts of all other
Defendants because they engaged in a single conspiracy. Plaintiff, however, does not articulate
what that single conspiracy was or what was its objective. The allegations by Plaintiff show two
PAGE 12 – OPINION AND ORDER

separate alleged conspiracies with different objectives. The first is the alleged conspiracy among
the School District, Shannon Wood, Meier, Jon Wood, Phillips, and perhaps unidentified Doe
School Board defendants to improperly investigate Plaintiff for alleged school policy infractions,
not provide him with proper administrative proceedings, and remove him from his school role
and other rights at the school (administrative conspiracy). The second is the alleged conspiracy
among Shannon Wood, Phillips, District Attorney Brown, and Deputies Moore and Dotson,
Sheriff Bergin, and perhaps unidentified Doe law enforcement defendants to unfairly investigate
and improperly prosecute Plaintiff (prosecutorial conspiracy).
The Court rejects Plaintiff’s contention that the allegations support that any other
Defendants participated in the alleged conspiracies. The Court dismisses Plaintiff’s claims based
on the alleged conspiracies brought against any other Defendant than the participants identified
by the Court. Further, Plaintiff’s factual allegations are insufficient to support that Meier, Bergin,
and other unidentified School Board or law enforcement defendants participated in the alleged
conspiracies. Thus, in evaluating the sufficiency of Plaintiff’s claims, the Court will consider
only the alleged administrative conspiracy involving the School District, Shannon Wood, Jon
Wood, and Phillips, and the alleged prosecutorial conspiracy involving Shannon Wood, Phillips,
Brown, and Deputies Moore and Dotson.
Additionally, Plaintiff’s factual allegations against Bergin and Meier are not enough to
state any claim against those defendants individually or as participants in a conspiracy. The
Court thus dismisses all claims against them. Plaintiff has leave to amend those claims if Plaintiff
believes he can allege facts sufficient to state a claim against Bergin or Meier, either individually
for personal liability, for supervisor liability,14 or as a member of a conspiracy.

14

See Hyde v. City of Willcox, 23 F.4th 863, 874 (9th Cir. 2022) (explaining that
supervisors “can be held liable [under § 1983] for: 1) their own culpable action or inaction in the
PAGE 13 – OPINION AND ORDER

B. Claims under 42 U.S.C. § 1983
Plaintiff alleges that “Defendants engaged in a pattern and practice of misconduct, under
color of state law, that deprived Plaintiff of rights, privileges, and immunities protected under the
Constitution and laws of the United States of America,” and therefore actionable under 42 U.S.C.
§ 1983. First, Plaintiff alleges that Defendants subjected him to substantive and procedural due
process violations in the “reporting, investigation, quasi-judicial administrative hearings, and
appeal of same,” in violation of the Fourteenth Amendment. Those allegations are directed at the
members of the alleged administrative conspiracy. Second, Plaintiff claims that Deputies Moore
and Dotson’s “initial investigation” of the allegations that Wood brought against Plaintiff
involved “constitutional deprivations” that were “ratified by [Sheriff Bergin].” Third, Plaintiff
alleges additional “constitution deprivations” related to the prosecution of Plaintiff by District
Attorney Brown. According to Plaintiff, Brown “knew or in the exercise of reasonable diligence
would have known” that the accusations brought against Plaintiff “had no genuine basis in
material fact.” The second and third allegations are directed at the prosecutorial conspiracy.
The District Defendants construe Plaintiff’s due process claim as a procedural due
process claim. The District Defendants argue that Plaintiff has not alleged a constitutionally
protected property interest. The County Defendants move only against Plaintiff’s malicious
prosecution claim, even though he alleges substantive and procedural due process violations
relating to both the investigation and his prosecution. Because the FAC is less than clear and for
judicial efficiency, the Court evaluates the sufficiency of Plaintiff’s due process claim for both
the investigation and the prosecution.

training, supervision, or control of subordinates; 2) their acquiescence in the constitutional
deprivation of which a complaint is made; or 3) for conduct that showed a reckless or callous
indifference to the rights of others.” (quotation marks omitted)).
PAGE 14 – OPINION AND ORDER

1. State Actors
The Court begins by evaluating who are state actors for purposes of Plaintiff’s § 1983
claims. Deputies Moore and Dotson are state actors. See Jackson v. Barnes, 749 F.3d 755, 764
(9th Cir. 2014). The School District and its employees also are state actors. Cf. Belanger v.
Madera Unified Sch. District, 963 F.2d 248 (9th Cir. 1992). Shannon Wood, however, is alleged
to have engaged in conduct that appears to have been outside the course and scope of her
employment with the School District with respect to the alleged prosecutorial conspiracy. For
that conduct, she is not a state actor under § 1983 unless she engaged in “joint action” with the
law enforcement state actors.
The Ninth Circuit has explained:
Under the joint action test, courts examine whether state officials
and private parties have acted in concert in effecting a particular
deprivation of constitutional rights. The test focuses on whether the
state has so far insinuated itself into a position of interdependence
with [the private actor] that it must be recognized as a joint
participant in the challenged activity. A plaintiff may demonstrate
joint action by proving the existence of a conspiracy or by showing
that the private party was a willful participant in joint action with
the State or its agents.
***
Our cases have been careful to require a substantial degree of
cooperation before imposing civil liability for actions by private
individuals that impinge on civil rights.
Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (cleaned up).
Merely complaining to the police or swearing out an affidavit that forms the basis of an
arrest cannot alone constitute joint action. O'Handley v. Weber, 62 F.4th 1145, 1160 (9th Cir.
2023). “[C]onsultation and information sharing during [an] investigation” alone also does not

PAGE 15 – OPINION AND ORDER

suffice to support joint action. Id. Plaintiff, however, alleges that Wood was part of the
prosecutorial conspiracy for purposes of Plaintiff’s § 1983 claims.15
Plaintiff alleges that Phillips and Wood knew that her claims were false, that Wood met
with District Attorney Brown, that after those meetings he arraigned Plaintiff and in the second
arraignment Brown charged Plaintiff with many baseless charges, that Phillips and the deputies
intimidated and coerced witnesses to testify against Plaintiff and in favor of Wood, and that
Phillips and the deputies suppressed exculpatory evidence in Wood’s favor. At this stage of the
litigation, Plaintiff’s allegations are enough to show what Wood engaged in a conspiracy with
Phillips, Brown, and the deputies to investigate and prosecute Samuelson without a full and fair
investigation to favor Wood’s purportedly false charges against Plaintiff. She is thus a state actor
for this alleged conduct.16
Conspiracy is not itself a constitutional tort under § 1983: “mere proof of a conspiracy”
cannot establish a § 1983 claim. Lacey v. Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012)
(cleaned up). To prevail on a claim asserting a conspiracy, a § 1983 plaintiff must show “an
agreement or meeting of the minds to violate constitutional rights.” Crowe v. County of San
Diego, 608 F.3d 406, 440 (9th Cir. 2010) (quotation marks omitted). “To be liable, each
participant in the conspiracy need not know the exact details of the plan, but each participant
must at least share the common objective of the conspiracy.” Id. (quotation marks omitted).
Conclusory allegations cannot state a claim of conspiracy: allegations of specific facts are
required. See Lacey, 693 F.3d at 937 (determining that “conclusory conspiracy allegations” that
“d[id] not define the scope of any conspiracy involving [the defendant], what role he had, or
when or how the conspiracy operated” are insufficient).
15

Along with establishing an agreement or meeting of the minds to violate constitutional
rights, a § 1983 plaintiff alleging conspiracy must prove that an actual deprivation of his
constitutional rights resulted from the conspirators’ agreement. Woodrum v. Woodward
County, 866 F.2d 1121, 1126 (9th Cir. 1989); accord Landrigan v. City of Warwick, 628 F.2d
736, 742 (1st Cir. 1980) (“While conspiracies may be actionable under section 1983, it is
necessary that there have been, besides the agreement, an actual deprivation of a right secured by
the Constitution and laws.”).
It does not appear that Phillips’ alleged conduct was outside the course and scope of his
employment for purposes of assessing whether he was a state actor during the alleged
prosecutorial conspiracy, but even if it was, Plaintiff has sufficiently alleged facts showing that
Philips was a member of the alleged prosecutorial conspiracy.
16

PAGE 16 – OPINION AND ORDER

2. Due Process Claim
a. Substantive Due Process
To state a claim under § 1983 for violation of substantive due process, “a plaintiff must,
as a threshold matter, show a government deprivation of life, liberty, or property.” Nunez v. City
of L.A., 147 F.3d 867, 871 (9th Cir. 1998). “[O]nly the most egregious official conduct”
establishes a substantive due process violation. County of Sacramento v. Lewis, 523 U.S. 833,
846 (1998).
Samuelson generally alleges that he was deprived of his liberty interest. See FAC ¶ 85.
He does not, however, specifically identify the liberty interest in his § 1983 cause of action. In
his briefing, he repeatedly discusses his “arrest,” but he does not sufficiently allege in his FAC
that he was arrested.17 Plaintiff does, however, repeatedly allege that he was not provided a fair
or constitutionally sufficient investigation. See, e.g., FAC Intro, ¶¶ 55, 76, 115. It appears from
the allegations in his complaint and the arguments in his briefing that he is alleging a liberty
interest from an unfair criminal investigation and prosecution on less than probable cause.18 This
allegation would only support a substantive due process claim for his criminal proceeding, and
not his administrative proceeding.
The Eighth Circuit has recognized:
Where state officials “have the opportunity to deliberate various
alternatives prior to selecting a course of conduct, such action
violates due process if it is done recklessly.” To establish a
violation of this right by a botched investigation, [plaintiffs] must
17

The only mention of an arrest in his complaint is an allegation in his negligent training
claim that he was “arrested without a grand jury hearing,” FAC ¶ 129, but Plaintiff provides no
other information about his purported arrest.
18

Samuelson may also intend to allege a liberty interest based on fabrication of evidence,
see Caldwell v. City & County of San Francisco, 889 F.3d 1105, 1115 (9th Cir. 2018), but it is
unclear from his FAC. Because he does not argue this claim in his briefing or clearly allege it,
the Court does not address it.
PAGE 17 – OPINION AND ORDER

show that [defendants] intentionally or recklessly failed to
investigate, thereby shocking the conscience.
Amrine v. Brooks, 522 F.3d 823, 833-34 (8th Cir. 2008) (citation omitted) (quoting Wilson v.
Lawrence County, 260 F.3d 946, 956 (8th Cir. 2001)). The Ninth Circuit has not specifically
resolved whether a reckless investigation may support a substantive due process claim. The
Ninth Circuit, however, quoted Amrine with approval in applying its recklessness standard in a
different context, and noted that applying recklessness in that context is consistent with
substantive due process. Tennison v. City & County of San Francisco, 570 F.3d 1078, 1089 (9th
Cir. 2009).
The Ninth Circuit explained in Tennison,
The instant case . . . is more akin to cases that apply a reckless
indifference standard to due process claims because the decision
whether to disclose or withhold exculpatory evidence is a situation
in which actual deliberation is practical. For example, in Amrine v.
Brooks, 522 F.3d 823 (8th Cir. 2008), the Eighth Circuit discussed
a “substantive due process cause of action for reckless
investigation.” Id. at 833. The court stated that the liberty interest
in such a cause of action is the interest in obtaining fair criminal
proceedings, pursuant to Brady. Id. The court then explained that
“[w]here state officials have the opportunity to deliberate various
alternatives prior to selecting a course of conduct, such action
violates due process if it is done recklessly.” Id. at 833-34.
Id.19 (quotation marks and citation omitted) (second alteration in Tennison). The Ninth Circuit
held:
We therefore hold that a § 1983 plaintiff must show that police
officers acted with deliberate indifference to or reckless disregard
for an accused’s rights or for the truth in withholding evidence
from prosecutors. This standard is consistent with the standard
imposed in the substantive due process context, in which
government action may violate due process if it “shocks the
conscience.”
19

Because the liberty interest recognized in this due process right stems from Brady v.
Maryland, 373 U.S. 83 (1963), it is unavailable in Plaintiff’s administrative proceeding.
PAGE 18 – OPINION AND ORDER

Id. (quoting Lewis, 523 U.S. at 846).
Given the Ninth Circuit’s discussion in Tennison and the Eighth Circuit’s persuasive case
law, the Court finds that a reckless investigation claim is cognizable as a substantive due process
claim in the Ninth Circuit and rests on the liberty interest of a fair criminal proceeding.
Additionally, district courts within the Ninth Circuit have recognized such a claim. See, e.g.,
Figueroa v. Kern County, 2021 WL 826216, at *7 (E.D. Cal. Mar. 4, 2021) (denying motion to
dismiss substantive due process claim based on allegations that law enforcement agents relied on
false evidence, coerced and intimidated witnesses, obtained false testimony from a minor, hid
and distorted evidence, suppressed exculpatory evidence, falsified evidence by coercing
witnesses, and failed to disclose their witness coercion); Cox v. Mariposa County, 2021
WL 4976698, at *12 (E.D. Cal. Oct. 26, 2021) (concluding that allegations that the county
defendants investigated and prosecuted the defendant on obviously false accusation that they
knew lacked merit, conspired to suppress exculpatory evidence, fabricated an affidavit for a
search warrant, and pursued unwarranted code enforcement action were enough to state a
substantive due process claim); see also Baday v. Kings County, 2022 WL 10631010, at *6 (E.D.
Cal. Oct. 18, 2022) (recognizing the reckless investigation claim as separate from a substantive
due process claim based on fabrication of evidence, citing Amrine, and concluding they both
have the same statute of limitations); Kurka v. Probst, 2015 WL 424577, at *7 n.88 (D. Alaska
Feb. 2, 2015), aff’d, 678 F. App’x 482 (9th Cir. 2017) (recognizing the reckless investigation
claim, citing Amrine, but concluding that the plaintiff failed sufficiently to assert the claim).
Plaintiff’s allegations of law enforcement misconduct are similar to those in Figueroa,
and are sufficient at this stage to state a substantive due process claim against Deputies Moore
and Dotson. Because the Court has concluded that Shannon Wood and Phillips are members of
the prosecutorial conspiracy (which includes the reckless investigation conduct) with Deputies
PAGE 19 – OPINION AND ORDER

Moore and Dotson, Plaintiff also states a reckless investigation substantive due process claim
against Wood and Phillips under a § 1983 conspiracy claim. See Lacey v. Maricopa County, 693
F.3d 896, 935 (9th Cir. 2012) (“Conspiracy may, however, enlarge the pool of responsible
defendants by demonstrating their causal connections to the violation; the fact of the conspiracy
may make a party liable for the unconstitutional actions of the party with whom he has
conspired.”); see also id. (noting that a claim of conspiracy in a § 1983 case may “aid in proving
claims against otherwise tenuously connected parties in a complex case”). The question remains,
however, whether the allegations against Phillips and Wood are sufficient to state a claim against
them individually.
Plaintiff alleges that Wood made false criminal allegations after her stalking order was
denied and met with prosecutors near the time of Plaintiff’s arraignments. These allegations are
insufficient to meet the demanding standard of a substantive due process violation. It does not
shock the conscience for a person purportedly falsely reporting a crime to have multiple
meetings with prosecutors. Plaintiff does not allege that Wood intimidated witnesses or
suppressed exculpatory evidence. Thus, Plaintiff does not sufficiently allege that Wood,
individually, violated Plaintiff’s substantive due process rights.
As for Phillips, Plaintiff alleges that Phillips knew Wood’s allegations against Plaintiff
were false, served subpoenas on behalf of law enforcement on school grounds, intimidated
witness, suppressed exculpatory evidence, and coached witnesses. These allegations are
sufficient at this stage to support a substantive due process claim against Phillips individually.
b. Procedural Due Process
To state a § 1983 claim for lack of procedural due process, a plaintiff must allege “three
elements: (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the

PAGE 20 – OPINION AND ORDER

interest by the government; (3) lack of process.” Portman v. County of Santa Clara, 995 F.2d
898, 904 (9th Cir. 1993).
Plaintiff’s alleged liberty interest in a fair criminal proceeding does not apply in this
context. Plaintiff’s generic reference to his “liberty” interest is not enough to allege a cognizable
liberty interest that would support his procedural due process claim whether for the law
enforcement proceeding or the administrative proceeding. As noted, his reference to his “arrest”
in his briefs was not pled.20 Thus, Plaintiff fails to state a claim for his procedural due process
claim.
c. Malicious Prosecution
“Federal courts rely on state common law for elements of malicious prosecution.” Mills
v. City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019). Under Oregon law, a claim of malicious
prosecution requires the plaintiff to prove: “(1) the institution or continuation of criminal
20

Plaintiff also mentions his job and his reputation. To recover for the loss of his
reputation associated with his job loss or prosecution generally, he must allege facts sufficient to
meet the “stigma plus” test. To state a “stigma-plus” claim, a plaintiff must allege two elements:
(1) “the public disclosure of a stigmatizing statement by the government, the accuracy of which
is contested,” and (2) “the denial of some more tangible interest such as employment or the
alteration of a right or status recognized by state law.” Ulrich v. City & County of San Francisco,
308 F.3d 968, 982 (9th Cir. 2002) (quotation marks omitted). “Where these elements exist, the
plaintiff is ‘entitled to notice and a hearing to clear his name.’” Id. (quoting Bollow v. Fed. Rsrv.
Bank of San Francisco, 650 F.2d 1093, 1100 (9th Cir. 1981). Further, Plaintiff must allege facts
showing that Defendants’ stigmatizing statements have made Plaintiff unemployable within his
profession. See Blantz v. Cal. Dep’t of Corr. & Rehab., Div. of Corr. Health Care Servs., 727
F.3d 917, 925 (9th Cir. 2013) (“[T]he liberty interests protected by the Fourteenth Amendment
are implicated only when the government’s stigmatizing statements effectively exclude the
employee completely from her chosen profession.”). Plaintiff has not satisfied those elements
here.
To assert a property interest in his job itself, Plaintiff must allege some entitlement to
ongoing employment. See Bd. of Regents v. Roth, 408 U.S. 564, 575-77 (1972); Cleveland Bd. of
Educ. v. Loudermill, 470 U.S. 532, 538-39 (1985); see also Dyack v. N. Mariana Islands, 317
F.3d 1030, 1033 (9th Cir. 2003) (explaining that when an “employee serves at will, he or she has
no reasonable expectation of continued employment, and thus no property right”). Plaintiff has
not done so.
PAGE 21 – OPINION AND ORDER

proceedings; (2) by or at the insistence of the defendant; (3) termination of such proceedings in
the plaintiff’s favor; (4) malice in instituting the proceedings; (5) lack of probable cause for the
proceedings; and (6) injury or damage as a result.” Miller v. Columbia County, 282 Or.
App. 348, 360 (2016) (footnote omitted); accord Cannon v. Polk County/Polk Cnty. Sheriff, 68
F. Supp. 3d 1267, 1289 (D. Or. 2014) (applying Oregon common law).
“Additionally, to maintain a § 1983 action for malicious prosecution, a plaintiff must
show that the defendants prosecuted him for the purpose of denying him equal protection or
another specific constitutional right.” Mills, 921 F.3d at 1169 (cleaned up). Malicious
prosecution actions brought under § 1983 “are not limited to suits against prosecutors, but may
be brought . . . against other persons who have wrongfully caused the charges to be filed.”
Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). When a plaintiff brings a
§ 1983 claim against non-prosecutors for a conspiracy to maliciously prosecute, the plaintiff
must also allege specific facts showing that the defendant “controlled the decision-making
process of the prosecutor,” or “otherwise engaged in wrongful or bad faith conduct that was
actively instrumental in causing the initiation of legal proceedings.” McCarthy v. Mayo, 827
F.2d 1310, 1316 (9th Cir. 1987); Awabdy, 368 F.3d at 1067.
Plaintiff adequately has pled the first, third, fourth, fifth, and sixth elements of a
malicious prosecution claim under Oregon law. Plaintiff sufficiently has alleged facts showing
that the criminal proceedings were started against him and terminated in his favor (first and third
elements); there is a factual dispute about whether there was probable cause for him to be
charged with five counts of harassment and five counts of third-degree sexual abuse, based on
what Plaintiff alleges was a false allegation of a “single incident” (fifth element); and an alleged
harm from the criminal proceedings (sixth element). The questions for each remaining Moving
Defendant are whether Plaintiff sufficiently has alleged that the criminal proceedings were
PAGE 22 – OPINION AND ORDER

instituted or continued at the insistence of the Defendant (second element), the Defendant acted
with malice (fourth element), and the Defendant prosecuted Plaintiff for the purpose of denying
him equal protection or another specific constitutional right (§ 1983 requirement).
As to the remaining Moving Defendants who allegedly participated in the prosecutorial
scheme, Phillips, Deputies Moore and Dotson, and Shannon Wood, for all except Shannon
Wood, Plaintiff has not alleged facts showing that criminal proceedings were instituted or
continued “at the insistence” of any Defendant, as required to state a claim for malicious
prosecution under Oregon law. See Miller, 282 Or. App. at 360. Plaintiff therefore has failed to
state a claim for malicious prosecution under § 1983 against those Moving Defendants. See
Awabdy, 368 F.3d at 1066-67. The allegations in the FAC are sufficient, however, to support the
reasonable inference that criminal proceedings were instituted at the insistence of Wood. See
generally Waldner v. Dow, 128 Or. App. 197 (1994) (evaluating requirements for a malicious
prosecution claim brought against a private citizen (citing Restatement (First) of Torts, § 653));
see also Restatement (Second) of Torts § 653 (1977) (providing that “[a] private person who
initiates or procures the institution of criminal proceedings against another who is not guilty of
the offense charged is subject to liability for malicious prosecution if . . . he initiates or procures
the proceedings without probable cause and primarily for a purpose other than that of bringing an
offender to justice”). Taking the allegations in Plaintiff’s FAC as true, he also has alleged that
Wood acted with malice.
As previously determined, Plaintiff also sufficiently has alleged that Wood engaged in a
conspiracy with respect to her conduct relating to the criminal proceedings, and thus she has
acted under color of state law. The Court also considers Plaintiff’s alleged liberty interest to be
the liberty interest articulated in Armine, Plaintiff’s right to fair criminal proceedings. To assert a
§ 1983 malicious prosecution claim, however, Plaintiff must also allege that Wood prosecuted
PAGE 23 – OPINION AND ORDER

Plaintiff for the purpose of denying him a specific constitutional right. Mills, 921 F.3d at 1169.
The FAC does not make such an allegation.21
d. Statutes of Limitation
The District Defendants argue that Samuelson’s § 1983 claim as related to his
administrative proceedings are barred by the statutes of limitation.22 “Although state law
determines the length of the limitations period, federal law determines when a civil rights claim
accrues.” Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (quotation marks omitted). Under
federal law, the “discovery rule” typically governs the accrual of § 1983 claims such that “a
claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of
the action.” Id. (quoting TwoRivers v. Lewis, 174 F.3d 987, 992 (9th Cir. 1999)).
The relevant statute of limitations for § 1983 claims is the forum state’s statute of
limitations for personal injury actions. Bird v. Dep’t of Hum. Servs., 935 F.3d 738, 743 (9th
Cir. 2019). The Oregon statute of limitations for personal injury actions is two years. Or. Rev.
In his response to the County Defendants’ motion to dismiss, Plaintiff also asserts—for
the first time—that the charges against him were made in retaliation for his exercising his First
Amendment rights. ECF 47 at 2-3. The FAC, however, does not allege a First Amendment
retaliation claim, nor does the FAC include allegations that would support such a claim.
21

In his response to the County Defendants’ motion to dismiss, Plaintiff also argues issues
relating to a claim for “retaliatory arrest.” The FAC, however, does not allege a claim for
retaliatory arrest, or even clearly allege that Plaintiff was arrested. See supra note 17. The Court
notes, however, that a § 1983 claim for retaliatory arrest based on the actions of the County
Defendants may be barred by the two-year statute of limitations. See Wallace v. Kato, 549 U.S.
384, 391 (2007) (holding that the plaintiff’s claim of false arrest accrued “when [plaintiff]
appeared before the examining magistrate and was bound over for trial”).
The County Defendants concede that Plaintiff’s § 1983 claims arising from the
criminal investigation and prosecution are not time barred. See, e.g., McDonough v. Smith, 139
S. Ct. 2149, 2156 (2018) (stating that a claim for malicious prosecution “accrues only once the
underlying criminal proceedings have resolved in the plaintiff’s favor”); see also Baday v. Kings
County, 2022 WL 10631010, at *7 (E.D. Cal. Oct. 18, 2022) (concluding that reckless
investigation substantive due process claims are the same as malicious prosecution for statute of
limitations purposes).
22

PAGE 24 – OPINION AND ORDER

Stat. (ORS) § 12.110(1)). “A claim may be dismissed under Rule 12(b)(6) on the ground that it is
barred by the applicable statute of limitations only when the running of the statute is apparent on
the face of the complaint.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592
F.3d 954, 969 (9th Cir. 2010) (quotation marks omitted); see also Rivera v. Peri & Sons Farms,
Inc., 735 F.3d 892, 902 (9th Cir. 2013) (concluding that the district court “was correct to
address” statute of limitations issues apparent on the face of the complaint).
Besides failing to allege a property or liberty interest, Plaintiff also has another problem
with his due process claims relating to his administrative proceeding. The last alleged action
taken by any Defendant related to the administrative hearings on Shannon Wood’s harassment
complaint was in November 2019, when the School Board affirmed Phillips’ decision to
terminate Plaintiff’s employment and bar him from school property. Plaintiff filed this lawsuit on
December 12, 2022. It is therefore clear from the face of the FAC that Plaintiff’s § 1983 claims
for substantive and due process violations in the School District administrative proceedings were
filed outside the applicable two-year statute of limitations.
Plaintiff, implicitly conceding that his administrative proceeding due process claims are
presumptively untimely, argues that equitable tolling should apply to these § 1983 claims
because his claims were effectively tolled while he litigated his Petition for Writ in state court.
Plaintiff does not, however, cite any authority in support of his argument that the filing of the
Petition for Writ or the pendency of the related proceedings tolled his claims, in whole or in part.
For § 1983 claims, federal courts “borrow the forum state’s tolling rules.”
TwoRivers, 174 F.3d at 992; see also Wallace v. Kato, 549 U.S. 384, 394 (2007). Tolling rules
borrowed from state law include “those for the pendency of other proceedings.” Owen, 2023
WL 5672887, at *3 (cleaned up). “Equitable tolling is sparingly used in Oregon.” Kobold v.
Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 1048 (9th Cir. 2016) (cleaned up). Under
PAGE 25 – OPINION AND ORDER

Oregon law, “equitable tolling is available only when circumstances outside of the control of
plaintiff make it impossible to comply with the statute of limitations.” Owen, 2023 WL 5672887,
at *3 (cleaned up).
For tolling to apply, a plaintiff must “adequately allege[] facts showing the potential
applicability of the equitable tolling doctrine.” Stewart v. Rock Tenn CP, LLC, 2015
WL 1883910, at *3 (D. Or. Apr. 24, 2015) (quoting Cervantes v. City of San Diego, 5 F.3d 1273,
1277 (9th Cir. 1993)) (emphasis in original); see also Ilaw v. Daughters of Charity Health
Sys., 2012 WL 381240, at *12, 12 n.4 (N.D. Cal. Feb. 6, 2012) (evaluating Ninth Circuit law on
the tolling doctrine in light of the Supreme Court’s decisions in Twombly and Iqbal, and holding
same (citing Cervantes)). Thus, where it is clear from the face of a complaint that equitable
tolling should not apply, district courts properly may dismiss a claim barred by the applicable
statute of limitations. See Lien Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1004-05 (9th
Cir. 2006) (affirming grant of motion to dismiss where it was clear that the plaintiffs “had the
information necessary to bring suit” before the statute of limitations period ended and that no
“extraordinary circumstances” beyond the plaintiffs’ control made it impossible for them to
timely file their claims (applying both state and federal law governing tolling)).
Plaintiff has not alleged facts showing the potential applicability of equitable tolling. He
may, however, allege such facts in an amended complaint if he believes he can cure this defect.
e. Conclusion
The Court declines to dismiss Plaintiff’s substantive due process claim against Shannon
Wood, Phillips, and Deputies Moore and Dotson that specifically alleges reckless investigation.23
The Court dismisses Plaintiff’s remaining substantive and procedural due process claims against

23

As noted, the claim against District Attorney Brown is unchallenged at this time.

PAGE 26 – OPINION AND ORDER

these Defendants24 based on Plaintiff’s criminal proceedings for failure to allege a liberty or
property interest, with leave to amend.
The Court dismisses Plaintiff’s substantive and procedural due process claims against the
School District, Phillips, Jon Wood, and Shannon Wood25 based on Plaintiff’s administrative
proceeding for failure to allege a liberty or property interest and, independently, as time barred.
If Plaintiff can allege facts supporting the application of equitable tolling and allege an
applicable liberty or property interest, he may amend this claim.
The Court dismisses Plaintiff’s malicious prosecution claim against Phillips and Deputies
Moore and Dotson for failure to allege multiple elements of the claim. The Court dismisses this
claim against Shannon Wood only for failure to allege a purpose to deprive Plaintiff of a
constitutional right. Plaintiff may amend this dismissed claim.
C. RICO
Plaintiff alleges both a pattern of racketeering in violation of 18 U.S.C. § 1962(c) and that
Defendants engaged in a RICO conspiracy under 18 U.S.C. § 1962(d). Plaintiff alleges seven
separate predicate offenses: “state law extortion”; mail fraud under 18 U.S.C. § 1341; wire fraud
under 18 U.S.C. § 1343; banking fraud under 18 U.S.C. § 1344; obstruction of justice under 18
U.S.C. § 1503; retaliation against a witness, victim, or informant under 18 U.S.C. § 1951; and
interference with interstate commerce and extortion under 18 U.S.C. § 1951.

24

These are the only Moving Defendants against whom claims remain relating to the
prosecutorial conspiracy because the Court dismissed claims against Bergin and concluded that
Plaintiff failed to allege any other defendant participated in this alleged conspiracy.
25

These are the only Moving Defendants against whom claims remain relating to the
administrative conspiracy because the Court dismissed claims against Meier and concluded that
Plaintiff failed to allege any other defendant participated in this alleged conspiracy.
PAGE 27 – OPINION AND ORDER

Wire fraud, mail fraud, and bank fraud are all fraud crimes. Plaintiff has not alleged facts
sufficient to support a finding of the commission of those crimes26—let alone done so under the
applicable heightened pleading standard.27 Plaintiff’s allegations involve in person conduct, not
electronically or through the mail, except for the alleged email distribution of witness subpoenas
to Phillips to distribute, which is not use of wires to defraud. Nor has Plaintiff alleged any
scheme to defraud a financial institution.
As for obstruction of justice, 18 U.S.C. § 1503 involves obstruction of federal
proceedings. Plaintiff has alleged no facts about any action taken by any Defendant related to
any federal proceeding. See 18 U.S.C. § 1503 (referring to “any court of the United States”);
Smith v. Aldridge, 2018 WL 1434813, at *5 (D. Or. Mar. 22, 2018) (noting that 18 U.S.C. § 1503
“only applies to obstruction of justice in federal court proceedings” and collecting cases
(emphasis in original)). As for retaliation under 18 U.S.C. § 1513, that provision similarly

The elements of mail and wire fraud under RICO are: “(1) formation of a scheme or
artifice to defraud; (2) use of the United States mails or wires, or causing such a use, in
furtherance of the scheme; and (3) specific intent to deceive or defraud.” Sanford v.
MemberWorks, Inc., 625 F.3d 550, 557 (9th Cir. 2010). “The essential elements of bank fraud
under 18 U.S.C. § 1344(1) are: (1) that the defendant knowingly executed or attempted to
execute a scheme to defraud a financial institution; (2) that the defendant did so with the intent to
defraud; and (3) that the financial institution was insured by the [Federal Deposit Insurance
Corporation].” United States v. Rizk, 660 F.3d 1125, 1135 (9th Cir. 2011) (alteration in original)
(quotation marks omitted)).
26

27

The heightened pleading standard of Rule 9(b) of the Federal Rules of Civil Procedure
applies to RICO claims alleging predicate acts involving fraud. See Allwaste, 65 F.3d at 1530.
Rule 9(b) requires the pleader to “state the time, place, and specific content of the false
representations as well as the identities of the partis to the misrepresentation. Alan Neuman
Prods., Inc. v. Albright, 862 F.2d 1388, 1392-93 (9th Cir. 1988) (quotation marks omitted). That
is, “[a]verments of fraud must be accompanied by the who, what, when, where, and how” of the
alleged misconduct. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1106 (9th Cir. 2003).
PAGE 28 – OPINION AND ORDER

applies only to actions taken in relation to federal court proceedings. See 18 U.S.C. § 1515(a)
(defining “official proceeding” as used in 18 U.S.C. § 1513).28
The crime of interference with commerce by threats or violence under 18 U.S.C. § 1951
requires robbery, extortion, attempted or threatened robbery or extortion, or other acts or threats
of physical violence that affects commerce; Plaintiff does not allege sufficient facts under that
provision to state a claim under § 1962(c).29 Finally, the predicate act of extortion under state
law30 requires Plaintiff to establish that the elements of ORS § 164.075 are met. Plaintiff has not
done so. He has not alleged that any Moving Defendant participated in an enterprise that, by the
methods specified in the statute, “compelled another person to either deliver property or services
to the person or to a third person” or that prevented a person “from reporting unlawful conduct to
a law enforcement agency.” See ORS § 164.075. In sum, Plaintiff has failed to state a RICO
claim under §1962(c).
In the context of a civil suit for conspiracy under § 1962(d), a failure to allege either a
pattern of racketeering or an act otherwise unlawful under the statute is fatal to a claim of
conspiracy brought under § 1962(d). See Wagh v. Metris Direct, Inc., 363 F.3d 821, 831 (9th
28

Plaintiff also has not alleged any action taken by any defendant related to any
proceeding that would have violated the statute. See 18 U.S.C. § 1513(a)(1) (retaliation by
murder or attempted murder); id. § 1513(b) (retaliation by bodily injury or damage to tangible
property, or threat to so retaliate); id § 1513(e) (retaliation by interfering with employment for
providing law enforcement “truthful information relating to the commission or possible
commission of any Federal offense”).
Even if Plaintiff’s allegation that District Attorney Brown offered to drop the charges if
Plaintiff paid money to Shannon Wood could qualify as attempted extortion, it cannot by itself
support a RICO claim because it is a single act and § 1962(c) requires two or more qualifying
acts of racketeering activity. Nor does Plaintiff allege how this alleged attempted extortion
obstructed, delayed, or affected commerce as required under § 1951 or caused injury to
plaintiff’s “business or property” as required under § 1964(c).
29

“Racketeering activity” includes “extortion . . . chargeable under State law and
punishable by imprisonment for more than one year.” 18 U.S.C. § 1961(1).
30

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Cir. 2003) (“Since [plaintiff] has not satisfied the pleading requirements for [subsections (a), (b),
or (c) of § 1962], he has also not alleged sufficient facts to state a claim under
[section 1962(d)].”), overruled on other grounds, Odum v. Microsoft Corp., 486 F.3d 541, 551
(9th Cir. 2007); Beck v. Prupis, 529 U.S. 494, 505 (2000) (“[T]o establish a civil RICO
conspiracy, a RICO conspiracy plaintiff [must] allege injury from an act . . . that is independently
wrongful under RICO.”). Because Plaintiff has failed state a claim under § 1962(c), he has also
failed to state a RICO conspiracy claim under § 1962(d).
D. State Law Claims
Plaintiff brings eight claims under state law: malicious prosecution; abuse of process;
wrongful termination; IIED; defamation; age discrimination;31 tortious interference; and
negligent oversight, training, and supervision. The County Defendants argue that Plaintiff failed
to provide notice of his claims under the Oregon Tort Claims Act (OTCA) and that Plaintiff fails
to state a claim. The District Defendants argue that Plaintiff’s claims are barred by the statute of
limitations and that Plaintiff fails to state claim.
1. OTCA
The OTCA governs notice requirements for tort claims against Oregon public bodies and
their officers, employees, and agents. ORS § 30.275(1). For torts other than wrongful death, the
OTCA requires plaintiffs to provide defendants with notice “within 180 days after the alleged
loss or injury.” Id. § 30.275(2)(b). The notice requirement may be satisfied by formal or actual

31

Plaintiff does not reference a specific common law or statutory provision. The Court
construes his claim as under ORS § 659A.030(1)(a), which provides in pertinent part: “It is an
unlawful employment practice . . . [f]or an employer, because of an individual’s . . . age if the
individual is 18 years of age or older . . . to discharge the individual from employment.”
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notice32 or by “[c]ommencement of an action on the claim by or on behalf of the claimant within
the applicable time period.” Id. § 30.275(3). Formal notice must describe “the time, place, and
circumstances giving rise to the claim, so far as known to the claimant.” Id. § 30.275(4)(b); see
also Moore v. Portland Pub. Schs. 328 Or. App. 391, 404 (2023) (explaining that the notice must
“provide sufficient facts about the places and circumstance of the underlying events to give
defendants an opportunity to investigate the alleged tort promptly and ascertain the facts”
(quotation marks omitted)). The OTCA’s notice requirement is mandatory. See ORS
§ 30.275(1); Urb. Renewal Agency of City of Coos Bay v. Lackey, 275 Or. 35, 40 (1976)
(“[P]roof of notice sufficient to satisfy the requirements of ORS [§] 30.275 is a mandatory
requirement and a condition precedent to recovery under the Oregon Tort Claims Act.”). A
plaintiff bears “the burden of proving that notice of claim was given as required.” ORS
§ 30.275(7); see also Moore, 328 Or. App. at 401-02 (upholding dismissal where the plaintiff
failed to give adequate tort claims notice (citing Urban Renewal)); Curtis v. Oregon, 2013 WL
3466533, at *4 (D. Or. July 9, 2013) (dismissing tort claims where the plaintiff failed to plead
that he gave a notice of his claim under ORS § 30.275).
Plaintiff alleges that on March 18, 2020, he served a tort claims notice to the School
Board Defendants. FAC ¶ 72. He alleges no facts showing that he provided a tort claim notice
relating to his criminal investigation or prosecution or served one on the County Defendants. His
only argument in response to the County Defendants’ motion based on the OTCA was to argue
that he “properly filed a tort claim,” and that tolling should apply. To the extent his reference to a

Under the OTCA’s notice requirement “‘actual notice’ is a communication that
(1) allows the recipient to acquire ‘actual knowledge of the time, place, and circumstances’ that
give rise to the specific claim or claims that the plaintiff ultimately asserts; and (2) would lead a
reasonable person to conclude that the plaintiff has a general intent to assert a claim.” Flug v.
Univ. of Or., 335 Or. 540, 553 (2003) (emphasis in original).
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“tort claim” was to his March 18, 2020 tort claims notice, that cannot provide notice to the
County Defendants or to any conspirator in the prosecutorial conspiracy for claims relating to the
criminal investigation and prosecution. The Court already has rejected Plaintiff’s tolling
argument. The Court thus rejects Plaintiff’s arguments that the OTCA does not bar the state
claims arising out of conduct related to the prosecutorial conspiracy and against the prosecutorial
conspiracy law enforcement participants.
The Court first considers Plaintiff’s state malicious prosecution claim, IIED claim, and
tortious interference claim, which are based on the criminal investigation and prosecution. The
Court dismisses these claims against Phillips and Deputies Moore and Dotson for failure to
comply with the OTCA. (Plaintiff fails to show that the tort claims notice provided to Phillips
included notice of claims based on the criminal investigation and prosecution.) Shannon Wood,
however, was not a school employee or agent when acting with respect to the criminal
investigation and prosecution and thus did not require notice under the OTCA. The Court
declines to dismiss these claims against Wood for failure to provide notice under the OTCA. The
Court rejects that these claims are brought against any other remaining Moving Defendant. Thus,
the Court will only consider whether Plaintiff has stated these claims against Shannon Wood.
For Plaintiff’s state claims of abuse of process, wrongful termination, age discrimination,
and negligent training and supervision, the Court declines to dismiss these claims against Jon
Wood, Phillips, the School District, and Shannon Wood33 for failure to comply with the OTCA.
The Court rejects the argument that these claims are brought against any other remaining Moving
Defendant.
33

The Court declines to dismiss the state claims arising out of the administrative
conspiracy against Shannon Wood, who was a school employee at the time, for failure to comply
with the OTCA at this stage based on her participation in the alleged administrative conspiracy
because a tort claims notice was served on her alleged co-conspirators.
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For Plaintiff’s defamation claim, the Court dismisses that claim against Deputies Moore
and Dotson for failure to comply with the OTCA. The Court declines to dismiss this claim based
on the OTCA against Phillips, the School District, Jon Wood, or Shannon Wood.
Plaintiff may amend the dismissed claims if he can cure the OTCA defect. To do so,
Plaintiff must allege in good faith that he complied with the OTCA for these dismissed claims
and these Defendants.
2. Statutes of Limitations
As discussed, the presumptive Oregon statute of limitations for personal injury actions is
two years. Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009); Owen, 2023 WL 5672887,
at *3 (citing ORS § 12.110(1)). The general statute of limitations for claims against public bodies
is two years, with exceptions, one of which, for defamation, applies here. See ORS § 30.275(9)
(setting forth general two-year statute of limitations for claims against public bodies). The
applicable statute of limitations for Plaintiff’s age discrimination claim is five years. See ORS
§ 659A.875(1)(b).34
A two-year statute of limitations applies to Plaintiff’s claims for abuse of process,
wrongful termination, tortious interference, and negligent oversight, training, and supervision.
All the relevant alleged events on which those claims are based occurred before December 12,
2020 (two years before Plaintiff filed this case). There is no discovery rule issue and the Court
has rejected Plaintiff’s tolling argument, with leave to amend. Accordingly it is apparent from
34

The District Defendants assert that a one-year statute of limitations applies to
Plaintiff’s age discrimination claim under ORS § 659A.030. In 2019, however, the Oregon
Legislature passed SB 726, which the changed statute of limitations applicable to an age
discrimination claim brought under ORS § 659A.030 from one year to five years. See Or.
Laws. 2019, ch. 343, § 6 (amending former ORS § 659A.875(2)). The new statute of limitations
applies to prohibited conduct “occurring on or after the effective date of th[e] 2019 Act.” See id.
§ 10(1). The effective date of the 2019 Act was September 29, 2019, and the School Board
issued its final decision in November 2019.
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the face of the FAC that those claims are time barred. The Court therefore dismisses those
claims, with leave to amend if Plaintiff can allege facts to support tolling of the statute of
limitations.
A two-year statute of limitations applies to Plaintiff’s IIED claim remaining against
Shannon Wood. Nearly all the relevant conduct by Wood giving rise to this claim, however,
occurred before December 12, 2020, including her bringing her allegedly false charges to the
School District that caused him to lose his job and to the District Attorney that caused both
purportedly baseless arraignments. The limited conduct occurring within the limitations period is
not conduct “extraordinarily beyond the bounds of socially tolerable behavior” sufficient to
support an IIED claim. See McManus v. Auchincloss, 271 Or. App. 765, 781 (2015) (quotation
marks omitted). Thus, this claim is time barred. Plaintiff’s remaining claims, however, may not
be time barred.
3. Claims Potentially Not Time Barred
The remaining claims that might arise from events alleged to have occurred within the
applicable limitations periods are age discrimination, defamation, and the state malicious
prosecution claim against Shannon Wood.
a. Age Discrimination
Plaintiff’s claim for age discrimination, which Plaintiff brings against the School District,
Superintendent Phillips, and Principal Jon Wood, falls within the applicable five-year statute of
limitations. The FAC, however, does not contain allegations sufficient to support an inference
that Plaintiff was discharged because of his age.35 Indeed, Plaintiff’s FAC is replete with

In his response to the District Defendant’s motion to dismiss, Plaintiff asserts that
“[o]ther School District employees, who were much younger than the Plaintiff, had ACTUALLY
committed crimes,” but “Defendants instead focused efforts on the Plaintiff who had NOT
committed a crime, and fired him.” The FAC contains no allegations about the age of any other
35

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allegations of other motivations for the alleged conduct against Plaintiff. Because Plaintiff has
failed to state a claim for age discrimination under Oregon law, the Court dismisses Plaintiff’s
age discrimination claim.
b. Defamation
It is unclear whether Plaintiff’s defamation claim is time barred. He alleges that Shannon
Wood publicized false statements to the School District and to the District Attorney and that
Wood, Phillips, and Meier further publicized those false statements to the Sheriff’s Office and
District Attorney’s office. Plaintiff also alleges that the District Attorney’s office made false
statements. The FAC provides no dates or details, but these alleged statements appear to have
been made before and during Plaintiff’s criminal investigation and prosecution. Although the
FAC is unclear, given the timing of Plaintiff’s prosecution, these allegations appear to be outside
the one year limitations period. See ORS § 12.120(2) (providing one-year statute of limitations
for defamation claims).
Regardless of the limitations period, however, Plaintiff fails to state a claim. Plaintiff’s
claim fails under Rule 8 of the Federal Rules of Civil Procedure. To satisfy the pleading
requirements of Rule 8, a claim for defamation must provide the defendant with “sufficient
notice of the communications complained of to allow [the defendant] to defend itself.” Natkin v.
Am. Osteopathic Ass’n, 2018 WL 452165, at *17 (D. Or. Jan .17, 2018) (quoting McGeorge v.
Cont’l Airlines, Inc., 871 F.2d 952, 955-56 (10th Cir. 1989)); see also Robinson v. Pac. Ret.
Servs., Inc., 2005 WL 139075, at *3 (D. Or. Jan. 21, 2005) (dismissing a defamation claim and
requiring the plaintiff to “file an amended complaint alleging the nature of the defamatory
statements, when and to whom they were made”). Plaintiff alleges no details regarding the
employees, and even if it did, Plaintiff’s conclusory allegations are insufficient to state a claim.
See Starr, 652 F.3d at 1216.
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alleged defamatory statements, who made them, or when. Thus, this claim is dismissed, with
leave to amend.
c. Malicious Prosecution
As discussed above, Plaintiff’s malicious prosecution claim is not time barred, and
Plaintiff has alleged all the state law elements required to assert a claim against Shannon Wood.
The missing element for Plaintiff’s § 1983 malicious prosecution claim was the one specific to
§ 1983, which does not apply for his state law claim. Thus, Plaintiff states a claim against Wood
for malicious prosecution under Oregon law.
E. Summary
The Court dismisses all claims against the Moving Defendants other than: (1) Plaintiff’s
substantive due process claim for reckless investigation against Phillips, Shannon Wood, and
Deputies Moore and Dotson; and (2) Plaintiff’s state law claim for malicious prosecution against
Shannon Wood. Plaintiff has leave to replead if he can in good faith cure the identified
deficiencies.
CONCLUSION
The Court GRANTS Phillips’ Motion for Joinder (ECF 48). The Court GRANTS IN
PART the Moving Defendants’ motions to dismiss (ECF 37, 40, 44). If Plaintiff believes that he
can cure the deficiencies in the First Amended Complaint as identified in this Opinion and Order,
he may submit a Second Amended Complaint not later than April 23, 2024.
IT IS SO ORDERED.
DATED this 26th day of March, 2024.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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