Paulson v. Oregon State Bar et al

Filing 32

ORDER: Granting Defendant Balmer's Motion to Dismiss for Failure to State a Claim 17 ; Denying Plaintiff's Motion for Reconsideration of the Court's Denial to Appoint a Visiting Judge 21 . Signed on 5/3/2013 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LAUREN PAULSON,

No. 6:13-cv-175-AA
OPINION AND ORDER

Plaintiff,
vs.
OREGON STATE BAR, SUPREME COURT OF
OREGON CHIEF JUSTICE THOMAS BALMER,
and JEFF SHAPIRO,
Defendants.
Lauren Paulson
PO Box 2236
Newport, Oregon 97365
Plaintiff Pro Se
Ellen F. Rosenblum
Attorney General
Marc Abrams
Senior Assistant Attorney General
Department of Justice
1515 SW Fifth Ave, Suite 410
Portland, Oregon 97201
Attorneys for defendant Chief Justice Thomas Balmer
AIKEN, Chief Judge:

Page 1 - OPINION AND ORDER

Defendant Balmer filed a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b) (6).

That motion is granted and defendant Balmer

is dismissed from this lawsuit.
BACKGROUND
Plaintiff was disbarred by the Oregon Supreme Court nearly
four years ago on November 2, 2009.

See

and In re Paulson, 346 Or. 676, 678, 216 P.3d 859 (2009).
Plaintiff argues that his disbarment was in retaliation for his
positions on various issues, including advocating for judicial
performance evaluations.

Complaint, p. 2.

Defendant Balmer is the Chief Justice of the Oregon Supreme
Court, relatively new to this position beginning May 1, 2012.
Although the Complaint is difficult to comprehend, there can be
no dispute that plaintiff alleges very few allegations pertaining
to defendant Balmer.

The Complaint states: "[t]he Chief Supreme

Court Justice of Oregon has put a police detail to monitor the
movements of Paulson for reasons unknown to Paulson, but formally
documented by Paulson."

Id.

In the following paragraph,

however, there is a reference to former Chief Justice Wallace
Carson, so it is unclear whether this allegation pertains to
defendant Balmer or former Chief Justice Carson.

Defense counsel

represents that in a telephone conversation with plaintiff,
plaintiff stated that the action occurred when "Paul DeMuniz was

Page 2 - OPINION AND ORDER

Chief Justice."

Def's. Memo, p. 5, n.4. Therefore, presumably

this allegation is not directed at defendant Balmer, but to a
prior Chief Justice. Plaintiff also alleges that "the leadership
of the Oregon State Bar secretly meets with the Chief Justice of
the Oregon Supreme court on lawyer disciplinary matters on
pending Oregon lawyer disciplinary cases."

Complaint, p. 20.

Plaintiff fails, however, to specify any act by defendant Balmer.
The Complaint contains no other allegations against Balmer.
STANDARDS
Under Fed. R. Civ. P. 12(b) (6), once a claim has been stated
adequately, it may be supported by "showing any set of facts
consistent with the allegations in the complaint."
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
v. Spielberg, 736 F.2d 1352, 1357
470 U.S. 1052

(1985).

Bell Atlantic

See also, Litchfield

(9th Cir. 1984), cert. denied,

The complaint must allege, however,

"enough facts to state a claim to relief that is plausible on its
face."

Twombly, 550 U.S. at 570.

For the purpose of the motion

to dismiss, the complaint is liberally construed in favor of the
plaintiffs, and its allegations are taken as true.

Rosen v.

Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).
However, bare assertions that amount to nothing more than a
"formulaic recitation of the elements" of a claim "are conclusory
and not entitled to be assumed true."
U.S. 662, 681 (2009).

Ashcroft v. Iqbal, 556

Rather, to state a plausible claim for

Page 3 - OPINION AND ORDER

relief, the complaint "must contain sufficient allegations of
underlying factsn to support its legal conclusions.

Starr v.

Bacca, 652 F.3d 1202, 1216, reh'g en bane denied, 659 F.3d 850
(9th Cir. 2011).
DISCUSSION
Generally, a judge acting in his or her judicial capacity is
entitled to absolute immunity from claims.

Pierson v. Ray, 386

U.S. 547, 554-55 (1967), overruled on other grounds; and Harlow
v. Fitzgerald, 457 U.S. 800 (1982).

Judicial immunity ensures

that a judge is "free to act upon his own convictions, without
apprehension of personal consequences to himself .
even when such acts are in excess of their jurisdiction, and are
alleged to have been done maliciously or corruptly.n
Sparkman, 435 U.S. 349, 355-56 (1978)
omitted).

Stump v.

(internal quotation

The quality of a judicial act is irrelevant to the

determination of immunity.

"A judge is absolutely immune from

liability for his judicial acts even if his exercise of authority
is flawed by the commission of grave procedural errors.n
435 U.S. at 359.

Stump,

Judicial immunity applies however erroneous the

act may have been and however injurious the consequences.
Ashelman v. Pope, 793 F.2d 1072 (9th Cir. 1986).

An act is

considered judicial if it is a normal judicial function, occurred
in chambers or the courtroom, concerned a case then pending
before the judge, and arose out of a confrontation with the judge

Page 4 - OPINION AND ORDER

in his or her official capacity.

Id. at 1075-76.

As noted above, the Complaint is virtually devoid of
allegations against defendant Balmer.

Plaintiff appears to

concede that his allegation that a "Chief Justice" put a police
detail on plaintiff to monitor his movements was actually a
previous Chief Justice, not Balmer.

Regarding plaintiff's

allegation that a "Chief Justice," met "secretly" with the
leadership of the Oregon State Bar, it is unclear whether
plaintiff refers to former Chief Justices Carson, DeMuniz, or
current Chief Justice Balmer.

Regardless, there is no factual

detail provided with this general allegation, no substance as to
what occurred in these alleged "secret" meetings, and therefore
the allegation provides no elements for any claim for relief.

I

find that defendant Balmer is immune from the claims in this
action and is therefore dismissed.
Similarly, any state claim alleged against defendant Balmer
is barred by Eleventh Amendment immunity.

Plaintiff appears to

sue the Chief Justice asserting violations of Article I, sections
10, 11 and 17 of the Oregon Constitution.

Nothing in those

statues express a waiver to permit suit in federal court for
their enforcement against the State; nor is this allowed by
common law.

Therefore, the Eleventh Amendment bars plaintiff's

state law claims against defendant Balmer.
Finally, regarding plaintiff's allegation that this is a

Page 5 - OPINION AND ORDER

"Class Action," plaintiff does not dispute that the RockerFeldman doctrine bars any suit plaintiff would bring as an
individual.

Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16

(1923); District of Columbia Court of Appeals v. Feldman, 460
U.S. 462, 483 n.16 (1983) (federal courts other than the Supreme
Court lack jurisdiction to correct state court judgments; federal
courts also lack jurisdiction to review constitutional claims
under 42 U.S.C.

§

1983 that are inextricably intertwined with

state court decisions).

Plaintiff instead asserts that Rocker-

Feldman does not bar the class action component of this lawsuit.
Plaintiff describes the class claim as follows: "[t]his legal
proceeding seeks to rectify the wrongs visited on literally
thousands of lawyers in Oregon over the last thirty (30) years
due to blatant and widespread prosecutorial misconduct to which
these Defendants have alternatively, actively, installed,
enabled, facilitated or turned a false blind eye."
4.

Complaint, p.

Essentially, plaintiff alleges that the Oregon State Bar

engaged in unconstitutional actions. Therefore, regarding any
potentially qualifying class member, this case presents a
collateral attack on a state court judgment entered prior to the
filing of the suit at bar.

Plaintiff seeks damages for the

"denial of an ability to earn a living."

Complaint, p. 26.

This

is a review of the underlying disciplinary action and is a
Rooker-Feldman violation.

Page 6 - OPINION AND ORDER

Plaintiff was denied appointed counsel

by the Court.

See docket #20.

Plaintiff remains the only

"class" representative of record.

As a non-lawyer, plaintiff may

not represent others in a class action.

See Gurule v. Hanlin,

2011 WL 6071659, *1 (D. Or. Dec. 5, 2011); McShane v. United
States, 366 F.2d 286, 288

(9th Cir. 1966).

As stated above,

plaintiff's personal claim for relief is barred by RookerFeldman, therefore any class fails because plaintiff cannot
represent the class.

Lierboe v. State Farm Mut. Auto. Ins. Co.,

350 F. 3d 1018, 1022 ( gth Cir. 2003) .
CONCLUSION
Defendant Balmer's motion to dismiss

(doc. 17) is granted

and defendant Balmer is dismissed from this lawsuit.

Plaintiff's

motion to reconsider this court's denial to appoint a visiting
judge for this lawsuit (doc. 21) is denied.
IT IS SO ORDERED.
Dated this

pJ)

~

day of May 2013.

Ann Aiken
United States District Judge

Page 7 - OPINION AND ORDER