Opinion
3:20-cv-00859-JR
08-18-2021
LEANNE J. HENSLEY, Plaintiff, v. OREGON DEPARTMENT OF JUSTICE, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge.
Defendant the Oregon Department of Justice ("ODOJ") moves to dismiss pro se plaintiff Leanne J. Hensley's complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) & 12(b)(6). ECF 68. Weeks later, plaintiff filed a motion to file a second amended complaint (ECF 71), which is also before the Court. For the reasons stated below, ODOJ's motion to dismiss should be granted, without prejudice to refile, and plaintiffs motion to amend should be denied.
BACKGROUND
Pro se plaintiff Leanne Hensley initiated this action in May 2020 against the Oregon Department of Justice alleging myriad civil rights abuses by ODOJ and its employees. Plaintiffs claims are far-reaching, but distilled to their essence they allege that she has been blacklisted for employment in the Oregon job market, subject to hate crimes, "swatted" [had law enforcement falsely sent to her under false pretenses], and imprisoned under unconstitutional conditions for five months. ECF 54.
Although plaintiffs complaint alleges illegal actions against a variety of state and private actors, the Court will focus on allegations against the ODOJ in considering defendant's motion to dismiss. Plaintiff first makes claims about ODOJ's hiring practices and alleged racist behavior. She alleges ODOJ has intimidated, harassed, and censored her with "Asian Indian specific Racism in Oregon Hiring." Id. at 3. She also alleges ODOJ inhibited her employment discrimination and whistleblower reporting efforts, but does not allege any specific policies or actions by ODOJ or its employees in this regard. Id. Plaintiff further alleges ODOJ somehow had a hand in promoting diverse hiring across the Oregon job market by "giving unlawful preference to Black persons" and that ODOJ "Acts as a Racial Gatekeeper." Id. at 8-9. Plaintiff also alleges the ODOJ exercised "control and influence" over the Oregon job market by impermissibly promoting critical race theory to the detriment of people of Asian descent. Id. at 16. Elsewhere in the complaint, plaintiff alleges that ODOJ's marketing materials (without specifying what materials) "echo White and Black Supremacy superiority," which reinforce structural racism and discriminate against "Asian Indians like the plaintiff." Id. at 23.
Finally, plaintiff alleges that a "swatting" crime occurred sometime in July 2019. Id. at 14. The Amended Complaint does not specify the date of the crime, whether plaintiff was arrested, or who carried out the crime. Nevertheless, the plaintiff alleges an attenuated set of facts that the 2019 "Oregon DOJ led 'SWATTING' crime" somehow caused her "Credit Damage," which in turn led to an inability to obtain business grants. Id. at 9, 12. Relevant to ODOJ, plaintiff alleges the Oregon DOJ entered an "illegal order of unlawful Detainment in 2019 for over (5) months," id. at 12, and that such detainment amounted to "hostage-taking" under 18 U.S.C. § 2441 or domestic terrorism under 18 U.S.C. § 2331. Id. at 14-15. The Amended Complaint does not name the place of incarceration, the offense she was incarcerated for, or connect ODOJ to the fact or conditions of her imprisonment in any meaningful way.
Plaintiff also claims that the ODOJ was responsible for "[d]enial for her valid Oregon Victim Compensation Claim for Reporting (2) violent Asian-specific Hate Crimes" because its Ombudsman for Injured Workers Department of Consumer & Business Services refused to allow her to introduce evidence of structural racism at her hearing. Id. at 10. This, like many of plaintiff s other allegations does not relate directly to her claims for relief, and does not allege plausible facts implicating ODOJ directly. Nevertheless, the Court mentions it to complete the collage of allegations naming ODOJ in the Amended Complaint.
Finally, emerging from these allegations, plaintiff presents two "claims for relief." She alleges claims for common law negligence and invasion of privacy. Because plaintiffs Amended Complaint suffers from numerous jurisdictional defects, and fails to state a claim against ODOJ, the Court should grant the motion to dismiss.
LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) allows a defendant to move to dismiss a case for "lack of subject-matter jurisdiction." When a defendant correctly identifies a jurisdictional defect, "the court must dismiss the action." Fed.R.Civ.P. 12(h)(3). A defendant may raise justiciability issues such as sovereign immunity, and standing through a motion to dismiss under Rule 12(b)(1). See Sato v. Orange Cnty. Dep't of Educ, 861 F.3d 923, 927 n.2 (9th Cir. 2017) ("A sovereign immunity defense is 'quasi-jurisdictional' in nature and may be raised in either a Rule 12(b)(1) or 12(b)(6) motion"); Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011) (standing). Furthermore, whether or not the parties raise the issue, "[f]ederal courts are required sua sponte to examine jurisdictional issues such as standing." D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008).
The plaintiff has the burden to establish that subject matter jurisdiction is proper. Ass'n of Am. Med. Colls, v. United States, 217 F.3d 770, 778-779 (9th Cir. 2000). To meet this burden, the plaintiff must show "affirmatively and distinctly the existence of whatever is essential to federal jurisdiction." Tosco Corp. v. Cmtys. for a Better Env't, 236 F.3d 495, 499 (9th Cir. 2001), overruled on other grounds, Hertz Corp. v. Friend, 559 U.S. 77, 82 (2010). A motion to dismiss for lack of subject matter jurisdiction may be a facial attack, where the allegations of the complaint are insufficient on their face to invoke federal jurisdiction, or a factual attack, where "the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (cleaned up).
When the plaintiff "fails to state a claim upon which relief can be granted," the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes for the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to just a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, often, instructs the pro se litigant about deficiencies in the complaint and grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). But a pro se plaintiffs claims may be dismissed without leave to amend where it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
DISCUSSION
The Amended Complaint suffers from the same deficiencies as its predecessor. Broadly speaking, plaintiff makes very few underlying factual allegations (as opposed to legal conclusions) against ODOJ. To narrow the scope of plaintiff's allegations across 36 pages, it is worth noting that plaintiff cites - but does not include in her claims for relief- alleged violations of (1) the Civil Rights Act of 1964, (2) the Genetic Information Nondiscrimination Act, (3) ORS 166.155, (4) ORS 659.805, (5) ORS 659A.865, (6) the Domestic Terrorism Prevention Act of 2020, (7) 18 U.S.C. § 241, (8) violations of civil rights under 42 U.S.C. 1983, 1985, 1986 and 1988, (9) the Whistleblower Protection Act of 1989 and the Whistleblower Protection Enhancement Act of 2012, (10) intentional infliction of emotional distress, (11) intentional interference with business relations, violations of the 1st, 5th, 6th, 8th, 13th and 15th Amendments to the United States Constitution, and (12) violations of numerous Articles of the Oregon Constitution. ECF 54 ¶¶ 6, 7, 8(a), 9, 10.
Despite this extensive list, plaintiff identifies only two claims: one for "discrimination and negligence," and another for "invasion of privacy." Negligence is a state law, common law claim. See. e.g., Clymo v. American States Ins. Co., 2018 WL 4092022, *3 (D. Or. June 7, 2018). Plaintiffs first claim also tangentially invokes Title VII, but not meaningfully so. The invasion of privacy claim also arises under Oregon common law, with a passing citation to federal statute, 18 U.S.C. § 1037. Based on plaintiffs legal authorities, it is most likely plaintiff is alleging claims for common law negligence and invasion of privacy under Oregon law, both of which should be dismissed.
I. Plaintiffs Amended Complaint Suffers from Jurisdictional Defects
1. Plaintiff's Alleged Injuries Are Not Fairly Traceable to ODOJ
Although not addressed in defendant's motion to dismiss, the Court first must consider whether plaintiff has standing to sue ODOJ under Article III. The Constitution gives federal courts the power to adjudicate only genuine "Cases" and "Controversies." U.S. Const. Art. Ill. § 2. That power includes the requirement that litigants have standing. A plaintiff has standing only if he or she can "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." California v. Texas, 141 S.Ct. 2104, 2113 (2021) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)). Because the plaintiff has not shown that her injuries are "fairly traceable" to the "allegedly unlawful conduct" of which she complains, her claims must be dismissed.
Despite the many conclusory statements of harm in the Amended Complaint, nowhere does plaintiff plausibly allege that ODOJ was the cause of her injuries. The Ninth Circuit has held that the "Article III causation threshold" is "less rigorous" than proximate causation. Canyon Cty. v. Syngenta Seeds, Inc., 519 F.3d 969, 974 n.7 (9th Cir. 2008); see also Rothstein v. UBS AG, 708 F.3d 82, 92 (2d Cir. 2013) ("[T]he test for whether a complaint shows the 'fairly traceable' element of Article III standing imposes a standard lower than proximate cause."). Thus, "[t]o survive a motion to dismiss for lack of constitutional standing," plaintiffs need only "establish a 'line of causation' between defendants' action and their alleged harm that is more than 'attenuated.' A causal chain does not fail simply because it has several 'links,' provided those links are 'not hypothetical or tenuous' and remain 'plausib[le].' "Maya v. Centex Corp., 658 F.3d 1060, 1070 (9th Cir. 2011) (citations omitted). Put another way, a plaintiff need not allege that a defendant was "the sole source of its injury and "need not eliminate any other contributing causes to establish its standing." Barnum Timber Co. v. U.S. E.P.A., 633 F.3d 894, 901 (9th Cir. 2011).
Plaintiff fails to make this connection for her first alleged harm, the inability to get a job in the Oregon market. First, she does not allege that ODOJ directly refused to hire her, or influenced a third party's decision not to hire her. At most, she alleges that ODOJ's own hiring practices and marketing materials created a hiring culture that impaired her ability-as an "Asian Indian"-to obtain private employment. See, e.g., ECF 54 at 3, 12. But this is not direct causation, or even the more attenuated "predictable effect of Government action on the decisions of third parties" that has been found sufficient for Article III standing. Dep't of Commerce v. New York, U.S., 139 S.Ct. 2552, 2566 (2019). Because plaintiff does not meet this causation threshold, a necessary connection between defendant and harm, she fails to satisfy the "traceability" requirement of Article III for the allegation of damage to her employment prospects.
Likewise for plaintiffs allegation of harm suffered because she spent time incarcerated after July 2019. For a plaintiff to adequately plead Article III causation, the line between the defendant's action and the plaintiffs harm must be "more than attenuated," and causal links must "not [be] hypothetical or tenuous and remain plausible." Washington Envtl. Council v. Bellon, 732 F.3d 1131, 1141-42 (9th Cir. 2013). Plaintiff variously alleges she suffered "credit damages" as a result of spending time incarcerated, and was subject to unconstitutional conditions of confinement. ECF 54 at 7-8 (conditions of confinement), 9 (credit damages). The Court has combed through the Amended Complaint, but cannot find an allegation that ODOJ carried out plaintiffs arrest, was responsible for her incarceration, or in any way impacted plaintiffs credit score. Such total failure to connect the alleged harm to any wrongdoing on the part of the defendant also fails the requirement that a claim be "fairly traceable" to the defendant, resulting in this Court's lack of jurisdiction over plaintiffs claims. Because the Amended Complaint does not satisfy Article III, the Amended Complaint should be dismissed for lack of jurisdiction.
To the extent plaintiff makes claims for injunctive relief, see, e.g., ECF 54 at 35, she has also failed to satisfy the low threshold required to show redressability. See Renee v. Duncan, 686 F.3d 1002, 1013 (9th Cir. 2012) (quoting Bennett v. Spear, 520 U.S. 154, 171 (1997)) (a plaintiffs burden to demonstrate redressability is "relatively modest"). "Plaintiffs need only show that there would be a 'change in a legal status,' and that a 'practical consequence of that change would amount to a significant increase in the likelihood that the plaintiff would obtain relief that directly redresses the injury suffered.'" Id. (quoting Utah v. Evans, 536 U.S. 452, 464 (2002). Plaintiff alleges that she has suffered from a lack of job prospects in the Oregon market, and injuries associated with incarceration following the alleged June, 2019 "swatting" crime. See ECF 54 at 8-9, 14. Her prayer for relief asks the Court to impose mandatory injunctions against ODOJ requiring it to institute hiring practices regardless of race, eradicate effects of past "unlawful racist practices," and develop programming to counteract the alleged discrimination against Asians, "specifically for Asians who are Asian Indian." Id. These abstract, far-reaching changes would not result in a change to plaintiffs "legal status," and would have no likelihood of redressing her failure to obtain employment on the private job market in Oregon, or remedy past alleged harms suffered while incarcerated. Because plaintiffs requested injunctive relief would not redress the harms she alleges in her Complaint, the Court should find she lacks standing to pursue this relief in federal court.
2. Plaintiffs Claims Against ODOJ Are Barred by The Eleventh Amendment
The Eleventh Amendment provides that the judicial power of the United States "shall not be construed to extend to any suit in law or equity commenced or prosecuted" against a state. U.S. Const. Amend XI. The Supreme Court has held that this language bars citizens from suing states or state agencies in federal court unless the state has expressly waived its immunity from suit or that immunity has otherwise been abrogated by Congress. Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 99 (1984); Doe v. Regents of the Univ. of California, 891 F.3d 1147, 1153 (9th Cir. 2018); Olson v. Allen, 2019 WL 1232834, at *5 (D. Or. Mar. 15, 2019).
Here, the Eleventh Amendment bars plaintiff s state-law claims because federal courts lack jurisdiction to adjudicate state law claims against state agencies. See Pennhurst, 465 U.S. at 124-25. Further, plaintiff is unable to show the state has waived its immunity. A state only waives its Eleventh Amendment immunity when it expressly consents to being sued in a particular action. Edelman, 415 U.S. at 673 ("[we] will find waiver only where stated by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction"); Micomonaco v. State of Washington, 45 F.3d 316, 319 (9th Cir. 1995). This plaintiff sues ODOJ for violating state common law, and Oregon has never waived its immunity from suit in federal court for such claims. Plaintiffs claims for damages against ODOJ are therefore barred, and should be dismissed.
Eleventh Amendment immunity not only applies to monetary damages, but also to injunctive relief. "The Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, an 'arm of the state,' its instrumentalities, or its agencies." Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir. 1995). Here, to the extent plaintiff seeks relief for state common law negligence or invasion of privacy, whether damages or injunctive relief, she cannot obtain it in this forum.
Even if plaintiff has satisfied the Article III requirements for standing, the Court should grant defendant's motion to dismiss on Eleventh Amendment grounds.
II. The Amended Complaint Fails to State a Claim Against ODOJ
Plaintiff develops three sets of allegations in her Amended Complaint against ODOJ. First, she alleges that she has been blacklisted from employment. Second, she alleges a "swatting" crime, a Class A misdemeanor in Oregon for deceiving an emergency service into sending police or an emergency response team to the address of another person for improper purposes, and resulting harm from her imprisonment. See ORS 162.375. Third, she alleges she suffered unlawful conditions of confinement for five months in 2019, and resulting damage to her credit. Each of these claims, however, is generally attributed to other parties named in the Amended Complaint- Nike, the architecture firm Zimmer Gunsel Frasca, or the unnamed state entity responsible for plaintiffs incarceration-all with seemingly no relevant connection to ODOJ.
Plaintiffs negligence claim appears to be a hybrid of common law negligence with a passing reference to Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2OOOe. In Oregon, to prevail on a negligence claim, "a plaintiff must establish that the defendant's conduct created a foreseeable and unreasonable risk of legally cognizable harm to the plaintiff and that the conduct in fact caused that kind of harm to the plaintiff." Sloan on behalf of Est. of Sloan v. Providence Health Sys.-Oregon, 364 Or. 635, 643 (2019). Plaintiff defines ODOJ's alleged duty as "tak[ing] reasonable measures to prevent from its Oregon DOJ Sr. leadership and employees from engaging in explicit racially specific targeting leading to continued harassment which has been documented as physical, digital and political retaliation, beyond all original documented patterns of Racial Discrimination and Bias to the Asian Indian Plaintiff." ECF 54 at 32-33. Plaintiff alleges ODOJ's breach of this duty somehow prevented her from getting a job on the Oregon market in 2019 and beyond. Id. at 33. The Amended Complaint does not, however, plausibly establish that the purported harm was foreseeable or that ODOJ's conduct created a risk of harm to plaintiff or actually caused her to be unable to get a job in Oregon. Because the Amended Complaint does not establish these basic elements of negligence under Oregon law, the Court should dismiss plaintiffs negligence claim for failure to state a claim against ODOJ.
Nor can plaintiff sue ODOJ under Title VII, which pertains strictly to relationships with an employer, and is not atalismanic shield for any employment harm done by any third party. Plaintiff does not allege ODOJ ever employed her or that she ever applied for employment with ODOJ. ECF 54. Under 42 U.S.C. 2000e-2 and 2000e-3, one must be in an employment relationship or trying to form an employment relationship with the employer-defendant to state a claim under Title VII. Because plaintiff does not allege a plausible claim under Oregon common law or Title VII, the First Claim for Relief should be dismissed.
Plaintiffs second claim, invasion of privacy, is set forth in paragraphs 44 through 49 of the Amended Complaint. In Oregon, to allege an invasion of privacy the plaintiff must prove three elements: "(1) an intentional intrusion, physical or otherwise, (2) upon the plaintiffs solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person." Mauri v. Smith, 324 Or. 476, 482-483 (1996). Nowhere in the second claim does plaintiff specify how her privacy was invaded. Rather, she sets forth generalities about ODOJ abusing a "digital partnership" with "Federal or State agencies." ECF 54 ¶ 44. She then cites 19 U.S.C. § 1037, a criminal statute with no provision for private, civil enforcement. 18 U.S.C. § 1037(b). That statute relates to misuse of electronic mail with the intent to deceive, in other words, dishonest "spam." Nowhere in the Amended Complaint are facts alleged that would fit a pattern sufficient to satisfy this provision and, even if there were, it would be a matter for the United States Attorney for Oregon, not for plaintiff. Accordingly, because plaintiff fails to allege the requisite elements of the tort of invasion of privacy against ODOJ under Oregon law, her second claim for relief should also be dismissed for failure to state a claim.
III. Plaintiffs Motion to Amend the Complaint Should be Denied
While defendant's motion to dismiss was pending, plaintiff filed a motion for leave to file a second amended complaint. ECF 71. The Federal Rules provide that leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a)." [T]his policy is to be applied with extreme liberality." Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). However, the Supreme Court has stated that a court may decline to grant leave for reasons that are apparent and stated on the record. Foman v. Davis, 371 U.S. 178, 182 (1962). Further, the court has "particularly broad" discretion where plaintiff has been granted leave to amend in the past. Chodos v. West Publ'g Co., Inc., 292 F.3d 992, 1003 (9th Cir. 2002) (citing Griggs v. Pace Am. Group, Inc., 170 F.3d 877, 879 (9th Cir. 1999)).
The Ninth Circuit has interpreted the decision in Foman as identifying "four factors relevant to whether a motion for leave to amend the pleadings should be denied: undue delay, bad faith or dilatory motive, futility of amendment, and prejudice to the opposing party." United States v. Webb, 655 F.2d 977, 980 (9th Cir. 1981). The factors do not carry equal weight. "[D]elay alone no matter how lengthy is an insufficient ground for denial of leave to amend." Id. "Prejudice to the opposing party is the most important factor." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). "Absent prejudice, or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
Futility of an amendment can, standing alone, justify denial of a request to file an amended pleading. See Boninv. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). A proposed amendment is futile if it presents no set of facts that would, even if proven, constitute a valid claim. See Miller v. Rykqff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). The standard for assessing whether a proposed amendment is futile is therefore the same as the standard imposed under Federal Rule of Civil Procedure 12(b)(6). Id. In that analysis, the court reviews the complaint for "facial plausibility." "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. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
1. Undue Delay
The first factor is whether plaintiff has unduly delayed in adding new defendants or allegations. "Undue" delay is delay that prejudices the nonmoving party or imposes unwarranted burdens on the court. Jones v. Rojas, 2021 WL 711471, at *3 (D. Or. Feb. 23, 2021), report and recommendation adopted, 2021 WL 1270456 (D. Or. Apr. 6, 2021). "Relevant to evaluating the delay issue is whether the moving party knew or should have known the facts and theories raised by the amendment in the original pleading." Jackson, 902 F.2d at 1387. "Late amendments to assert new theories are not reviewed favorably when the facts and the theory have been known to the party seeking amendment since the inception of the cause of action." Royal Ins. Co. of Am. v. Southwest Marine, 194 F.3d 1009, 1016-17 (9th Cir. 1999). Plaintiffs motion to amend does not justify the delay in adding new defendants or factual allegations. And although discovery has not yet begun in this case, ODOJ has expended substantial resources in defending this case through motion practice, and would be significantly burdened in responding to a second amended complaint that doubled in length from the first, adding twelve new defendants and a third claim. While this factor weighs against granting the motion, the Ninth Circuit has stressed that amendment should be liberally granted and that delay alone should not defeat a party's right to amend. Webb, 655 F.2d at 980. As a result, plaintiffs undue delay must be considered alongside the other Foman factors.
2. Bad Faith
The second Foman factor is bad faith. The court finds no indication plaintiff makes this motion in bad faith or for purposes of delay.
3. Futility
Defendants focus their opposition on the futility argument. A proposed amendment is futile if "no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense." Sweaney v. Ada Cnty., 119 F.3d 1385, 1393 (9th Cir. 1997) (internal quotation marks and citation omitted). "The test for futility is identical to the standard used for a motion to dismiss for failure to state a claim." De Jesus Pineda v. Ratliff, 2019 WL 6257739, at *3 (D. Or. Nov. 22, 2019). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 678. Plaintiff adds a host of new defendants, and a litany of further factual allegations (almost exclusively conclusory) to her proposed Second Amended Complaint. See ECF 75. She also adds a third claim for relief: "torture, via assault, battery, and aggravated assault." ECF 75 at 67. The proposed Second Amended Complaint does not, however, cure what ailed the Amended Complaint, specifically, a failure to establish the traceability requirement of Article III, and failure to state a claim. The Court should therefore deny the motion to amend because the complaint filed-belatedly-along with the motion does not withstand review pursuant to Rule 12(b)(6).
Although not dispositive, the Court notes that plaintiff also prejudiced defendant by failing to abide by the Local Rules of the District of Oregon in filing its motion for leave to file a second amended complaint. LR 7-1 requires a party filing a motion to communicate with opposing counsel prior to filing the motion in order to determine if it can be avoided. Plaintiff did not do so. Plaintiff also failed to attach the original pleading with the proposed amendments and supplemental pleadings to her motion as required under LR 15-1(c) and (d). Doing so meant defendant could not meaningfully respond to her motion to amend. Should plaintiff file a future motion for leave to file an amended complaint, she must abide by the Local Rules when doing so.
The final factor in considering a motion to amend is whether defendants will suffer prejudice if amendment is granted. "[P]rejudice to the opposing party carries the greatest weight" of the factors. Sonoma Cnty. Ass'n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (cleaned up). Relevant to plaintiff s motion, adding new parties "presents an acute threat of prejudice to that new party." DCD Programs, Ltd. v. Leighton, 833F.2d 183, 187 (9th Cir. 1987). Newly proposed defendants Boss, Stetz-Waters, Austria, Gretchen, Sivell, Brown, Beatrice, Hummel, Shroyer, the Oregon Health Authority, Matteucci, Nelson, and Krantz would all be prejudiced if they are forced to defend a factually implausible lawsuit based only on the facts as alleged. Given the great risk of prejudice to these additional defendants in being forced to defend a baseless lawsuit, the Court should find this Foman factor also supports denying plaintiffs motion to amend.
For these reasons, because the proposed amended complaint would be futile, cause prejudice to the many newly proposed defendants, and because plaintiff has not justified the delay in adding these parties or claims, the Court should deny plaintiff s motion to file a second amended complaint.
As reflected in this Court's recommendation, the denial of plaintiff s motion to amend need not, necessarily, end this case. As indicated above, the motion to dismiss should be granted without prejudice. The Ninth Circuit is exceedingly permissive in allowing plaintiffs-in particular pro se plaintiffs like Ms. Hensley-an opportunity to correct legal mistakes in prior pleadings. See Ewbank v. Emrick, No. 18-35873, 2021 WL 2529673, at *2 (9th Cir. June 21, 2O2l)(finding the district court erred in denying a plaintiff leave to file a sixth amended complaint where it was not clear the "complaint could not be saved by amendment."). Because it is conceivable, though unlikely, that plaintiff could remedy the pleading failures in her Amended Complaint and proposed Second Amended Complaint, this Court recommends the seemingly inconsistent outcome of denying plaintiffs motion to amend as-filed, but leaving the door open to further amendment by dismissing without prejudice.
RECOMMENDATION
For the foregoing reasons, ODOJ's motion to dismiss (ECF 68) should be granted without prejudice, and plaintiffs motion to file second amended complaint (ECF 71) should be denied. Any further motion to amend the complaint should be filed within fourteen days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.