Opinion
Civ. No. 1:18-cv-01888-CL
05-17-2019
KENNETH HERSHEY, Plaintiff, v. KLAMATH COUNTY SHERIFF CHRIS KABER, CIRCUIT COURT JUDGE ANDREA JANNEY, Defendants.
REPORT AND RECOMMENDATION
Plaintiff, a self-represented litigant, brings this civil rights action in forma pauperis ("IFP") against Klamath County Circuit Court Judge Andrea Janney and Klamath County Sheriff Chris Kaber contending that these defendants violated Plaintiff's Fourth and Fourteenth Amendment rights by allowing Klamath County Animal Control Officers to obtain and execute search warrants and seize property. Compl. (#1). This case comes before the Court on Defendant Judge Janney's Motion to Dismiss (#15) as well as Defendant Sheriff Kaber's Amended Motion to Dismiss (#13), both for lack of subject matter jurisdiction and failure to state a claim. For the reasons discussed below, the Court recommends that Defendants' motions to dismiss (#11, #13, #15) be GRANTED. Defendant Judge Janney has absolute judicial immunity from suit for actions performed in her role as a judge and Plaintiff's claims against her should be dismissed with prejudice. Moreover, the Rooker-Feldman doctrine bars the Court from exercising subject matter jurisdiction over this case.
Also before the Court is Plaintiff's Motion to Take Judicial Notice (#28). The documents that Plaintiff asks the Court to consider do not form the basis of his claims and do not assist the Court in developing its understanding of facts and inferences contained in the body of the Complaint. Therefore, the Court recommends that Plaintiff's motion (#28) be DENIED.
BACKGROUND
Defendant Sheriff Kaber appointed Klamath County Animal Control Officer Gale McMahon as a special deputy sheriff with limitations. The appointment stated in part: "affiant of search warrants with prior notification to a Sheriff's Office Supervisor of details of case" and "ability to request warrants through the courts in conjunction with animal control cases." Compl. at 7-8 (#1-1). Special Deputy McMahon had cause to believe that animals on Plaintiff's property were subject to neglect, so he made an application for, and obtained, a search warrant pursuant to ORS 167.345. In September 2017, McMahon and fellow Animal Control Officer James Nielsen entered Plaintiff's property and impounded Plaintiff's animals pursuant to that search warrant.
Plaintiff was then criminally prosecuted in Klamath County Circuit Court in State of Oregon v. Kenneth Lawrence Hershey. Plaintiff moved to suppress the evidence collected as a result of McMahon's warrant and Defendant Judge Janney denied Plaintiff's motion. Plaintiff's Complaint states no other actions taken by Judge Janney other than her denial of Plaintiff's motion to suppress. Plaintiff included with his Complaint a copy of Defendant's letter explaining her denial of the motion.
Plaintiff's Complaint alleges that Defendants violated his Fourth and Fourteenth Amendment rights, as well as his rights under the privileges and immunities provision of the Oregon Constitution by "allowing non Oregon certified police officers to obtain and execute search warrants and seize property in violation of statutes forbidding [sic] such occurrences." Compl. at 5, 8 (#1). Plaintiff is seeking "a court ordered injunction to prohibit the abuse of ORS 204.635(2) by Sheriff Kaber." Id. at 6.
LEGAL STANDARD
To survive a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), a complaint must contain sufficient facts that "state[s] a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). A claim is plausible on its face when the factual allegations allow the court to infer the defendant's liability based on the alleged conduct. Iqbal, 556 U.S. at 663. The factual allegations must present more than "the mere possibility of misconduct." Id. at 678.
In evaluating a motion to dismiss, the court must accept all allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir. 2007) (internal citations omitted). However, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555. If the complaint is dismissed, leave to amend should be granted unless the court "determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).
Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 520-521 (1972). That is, the court should construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefits of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citation omitted). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and the opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Id.
The Court may take judicial notice of publicly recorded documents and may consider the documents without turning this motion into a motion for summary judgment. See, e.g., Shaw v. Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir. 1995); See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (court may consider documents to which the complaint "refers extensively" or "form the basis of the plaintiffs' claim"); Parrino v. FHP, Inc., 146 F.3d 669, 707 (9th Cir. 1998) ("A court may consider evidence on which the complaint necessarily relies if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.").
DISCUSSION
I. Plaintiff's Complaint should be dismissed.
Defendants move to dismiss Plaintiff's Complaint with prejudice for lack of subject matter jurisdiction and for failure to state a claim. For the reasons discussed below, the Court recommends granting Defendants' motions as to all claims.
a. Plaintiff's Motion for Judicial Notice should be denied.
As a preliminary matter, Plaintiff requests that this Court take judicial notice of two documents: (1) Oregon Attorney General Hardy Myer's Opinion No. 8287, and (2) City of La Grande v. Public Employes Retirement Board, 281 Or. 137 (Or. 1978). In general, material outside the pleadings may not be considered in ruling on a motion to dismiss, Jacobson v. AEG Capital Corp., 50 F.3d 1493, 1496 (9th Cir. 1995), but there are several exceptions to this rule. Under one such exception, a court may take judicial notice of material on which a complaint "necessarily relies" in order to develop its understanding of facts and inferences contained within the body of the complaint that are drawn from those incorporated materials. Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). A court may consider evidence on which a complaint "necessarily relies" if: (1) the complaint refers to the documents; (2) the document is central to the plaintiff's claims; and (3) no party questions the authenticity of the copy attached to the motion. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).
Judicial notice of the requested documents is not appropriate here. First, although Plaintiff references the Oregon Attorney General Opinion in his Complaint, the opinion does not actually speak to the issues raised in Plaintiff's Complaint. The opinion concludes that an elected Multnomah County sheriff must possess the qualifications as required by state law and any qualifications required by the home rule county. The opinion says nothing about whether a sheriff can appoint an animal control officer as a special deputy with limited authority to execute search warrants as they relate to issues involving animal neglect, which is the issue here. The opinion does not assist the Court in developing its understanding of facts and inferences contained in the body of the Complaint.
Second, the La Grande Oregon Supreme Court case from 1978 does not seem relevant to this case. In his motion for judicial notice, Plaintiff asks this Court to review the La Grande case because
"[t]his matter also concerns Klamath County Circuit Judges which requires qualified police officers to obtain search warrants 'in general criminal situations' but allows non-certified 'peace officers' such as Special Deputies like Klamath County Code Enforcement Officer/Animal Control Office/Special Deputy Gale McMahon (who has had no formal training in law enforcement, animal care or building codes), to write citations, request criminal charges and execute search warrants without supervision when the individuals are not accused of being involved in 'general criminal situations', but rather are of a class of people that own 'ANIMALS', and as such are not deemed to be entitled to the same civil rights as 'general criminals'."Motion for Judicial Notice at 1-2 (#28). Not only does that statement suggest that Plaintiff is bringing a de facto appeal of Judge Janney's denial of his motion to suppress, but it provides no indication as to how his case relates to the La Grande case. In La Grande, two cities brought declaratory judgment proceedings to challenge the constitutionality of state statutes that required the cities to provide a minimum level of life insurance and retirement benefits to some city employees. The Court does not see how these issues are related to Plaintiffs case. Moreover, Plaintiff's Complaint does not reference the La Grande case, it does not seem to be central to his claims, and it does not assist the Court in developing its understanding of facts and inferences contained in the body of the Complaint. Therefore, Plaintiff's motion for judicial notice (#28) should be denied.
b. Defendant Judge Janney has absolute immunity from suit for actions performed in her role as a judge.
Judicial immunity applies when a judge performs "judicial acts" within the scope of her jurisdiction. Stump v. Sparkman, 435 U.S. 349, 359 (1978). A "judicial act" is one that "is a function normally performed by a judge and the parties to the act were dealing with the judge in his judicial capacity." McGuire v. Clakamas Cty. Counsel, 2009 WL4456310, at *4 (D. Or. Nov. 24, 2009) (citing Stump, 435 U.S. at 362). Judicial immunity applies even if a judge's actions "are erroneous, malicious, or in excess of judicial authority." Tanner v. Heise, 879 F.2d 572, 576 (9th Cir. 1989).
Judges have absolute immunity from liability for damages and declaratory relief for all judicial acts performed in their judicial capacity. Moore v. Brewster, 96 F.3d 1240, 1243-44 (9th Cir. 1996) (superseded by statute on other grounds). Judicial immunity has also been expanded by statute to include certain actions for injunctive relief. See 42 U.S.C. § 1983 (providing that "in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable").
Plaintiff's Complaint lacks specific facts regarding Judge Janney other than in relation to her order denying Plaintiff's motion to suppress in his criminal case. Plaintiff takes the position that Judge Janney wrongly interpreted the intentions of the Oregon Legislature as to who can execute search warrants involving animals under ORS 133.575 and ORS 204.635(2). Judge Janney's order involving these statutes is certainly a "judicial act" within the scope of her jurisdiction. The Complaint contains no allegations the Judge Janney was not performing judicial functions or that she was acting in the absence of jurisdiction. Accordingly, Defendant Judge Janney has absolute immunity against Plaintiff's claims.
c. Plaintiff's claims are barred by the Rooker-Feldman doctrine.
The Rooker-Feldman doctrine prohibits a federal district court from exercising subject matter jurisdiction over a suit that is a de facto appeal from a state court judgment. Binchi v. Rylaarsdam, 334 F.3d 895, 898 (9th Cir. 2003). The doctrine applies when a federal plaintiff asserts as his injury legal error by a state court. Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th Cir. 2008). The doctrine also applies when the plaintiff does not directly contest the merits of a state court decision, but in substance such challenge still amounts to a de facto appeal from a previous state court determination. Id. The Rooker-Feldman doctrine also applies when an issue is "inextricable intertwined" with a state court judgement. Cooper v. Ramos, 704 F.3d 772, 778-79 (9th Cir. 2012). The Ninth Circuit has found claims inextricable intertwined where "the relief requested in the federal action would effectively reverse the state court decision or void its ruling." Fontana Empire Ctr., LLC v. City of Fontana, 307 F.3d 987, 992 (9th Cir. 2002).
The Rooker-Feldman doctrine applies in this case. Plaintiff challenged, through a motion to suppress in his ongoing state court criminal case, Sheriff Kaber's authority to grant animal control personnel, such as special deputy McMahon, the designated authority to obtain and execute search warrants involving animals. Compl. at 8-13 (#1). Circuit Court Judge Janney "reviewed the record, exhibits, and testimony" as well as the "caselaw and statute[s] [ORS 167.345 and ORS 133.545(5)]" and issued a decision on October 2, 2018, denying Plaintiff's motion. Compl. at 4-6 (#1-1). Judge Janney held that "ORS 167.345 allows a person meeting the definition of a peace officer to obtain a search warrant in an animal neglect situation," and "McMahon was not required to have completed DPSST training in order to perform his functions and duties." Id. at 5. Plaintiff asserts that he is not asking this Court to review Judge Janney's October 2, 2018 decision, and instead is asking this Court to "order the Klamath County Circuit Court to Cease and Desist allowing 'peace officers' such as special deputy McMahon from obtaining and executing search warrants that result in disparity or unequal treatment of individuals alleged to having violated a state criminal statute." Plf.'s Response at 5 (#18). Despite Plaintiff's assertion that this case is not a de facto appeal, asking this Court to order the circuit court to stop allowing special deputies to obtain and execute search warrants is the same as asking this Court to effectively reverse or void Judge Janney's decision. Even if Plaintiff does not directly contest the merits of Judge Janney's decision, in substance his Complaint rests on the assertion that Judge Janney was incorrect in finding that McMahon acted within his authority in executing the search warrant and that the warrant was legally obtained. Plaintiff's claims in this case are inextricable intertwined with Judge Janney's decision because the issue he raises here is the same as the one decided by Judge Janney.
Plaintiff chose to file this action here rather than pursue the post-deprivation remedies available under Oregon law. This Court has held that Oregon provides adequate post-deprivation remedies for persons whose animals were allegedly seized illegally by animal control officers. See Scott v. Jackson Cty., 403 F. Supp. 2d 999, 1006 (D. Or. 2005) ("adequate post-deprivation safeguards" available to plaintiff challenging seizure of rabbits by animal control officials), aff'd in part and rev'd in part on other grounds, 297 F. App'x 623 (9th Cir. 2008); see also Todd v. McMahon, 2016 U.S. Dist. LEXIS 155488, at *8-9 (D. Or. Nov. 9, 2016) ("Plaintiff contends that challenging the seizure in state court 'would be futile . . . in the county where county employees were accused of violating the plaintiff's civil rights.' By Plaintiff's logic, however, federal courts would be 'the de facto appeals court for all of the state's investigations involving warrants.'"). Plaintiff does not contend that the available state post-deprivation remedies were constitutionally inadequate.
Therefore, this Court does not have subject matter jurisdiction to hear this case and recommends that Plaintiff's Complaint be dismissed. Because the Court finds that the Rooker- Feldman doctrine bars consideration of this case, the Court need not reach the issue of whether the Complaint fails to state a claim under FRCP 12(b)(6).
RECOMMENDATION
For the reasons stated above, Defendants' motions to dismiss with prejudice (#11, #13, #15) should be GRANTED. Plaintiff's motion for judicial notice (#28) should be DENIED.
This Report and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. If objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See Fed. R. Civ. P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
DATED this 17 day of May, 2019.
/s/_________
MARK D. CLARKE
United States Magistrate Judge