Opinion
Civ. No. 2:19-cv-02017-SU
10-27-2020
ESTATE OF MARC DOUGLASS DUNCAN; ROBERT J. DUNCAN, Plaintiffs, v. WALLOWA COUNTY SHERIFF'S DEPARTMENT; WALLOW COUNTY DISTRICT ATTORNEY'S OFFICE; OREGON DEPARTMENT OF HUMAN SERVICES; OREGON DEPARTMENT OF ADMINISTRATIVE SERVICES; SHELLEY A. GOODMAN; JANE AND JOHN DOES 1-13; LEIGH BEDNAR; THERESA FISHER; MANDY DECKER; WALLOWA COUNTY YOUTH SERVICES, Defendants.
FINDINGS & RECOMMENDATION
This is an action for civil rights violations and a wrongful death claim brought pro se by Plaintiffs Robert J. Duncan individually and as the personal representative and the Estate of Marc Douglass Duncan. This matter comes before the Court on Motions to Dismiss filed by Defendants Mandy Decker, the Wallowa County Sheriff's Office ("WCSO"), and Wallowa County Youth Services ("WCYS") (collectively, the "County Defendants,"), ECF No. 6, and by Defendants Leigh Bednar, Teresa Fisher, the Wallow County District Attorney's Office, the Oregon Department of Human Services ("DHS"), and the Oregon Department of Administrative Services (collectively the "State Defendants,"), ECF Nos. 22, 23, and 27. Pursuant to Local Rule 7-1(d)(1), the Court concludes that this case is proper for resolution without oral argument. For the reasons set forth below, the Motions should be GRANTED.
Defendants Leigh Bednar and Teresa Fisher are former state employees and are represented by the Oregon Department of Justice. They have filed separate motions to dismiss in which they adopt the arguments put forward by the other State Defendants and the County Defendants.
JUDICIAL NOTICE
The County Defendants request that the Court take judicial notice of documents attached to the Second Nweze Declaration, ECF No. 33. A court may take judicial notice of a fact that is not subject to reasonable dispute because it is "generally known within the trial court's territorial jurisdiction," or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). The court "must take judicial notice if a party requests it and the court is supplied with the necessary information." Fed. R. Evid. 201(c)(2). Courts may also take judicial notice of "undisputed matters of public record, including documents on file in federal or state courts." Harris v. Cnty. of Orange, 682 F.3d 1126, 1132 (9th Cir. 2012) (internal citation omitted). "Moreover, documents not attached to a complaint may be considered if no party questions their authenticity and the complaint relies on those documents." Id.
In this case, the proposed documents are the "Limited Judgment for the Administration of Intestate Estate and Appointment of Personal Representative," Second Nweze Decl. Ex. 1, and the "Petition for Administration of Intestate Estate and Appointment of Personal Representative," Second Nweze Decl. Ex. 2. Both documents were filed in Wallowa County Circuit Court, Case Number 20PB02618, and concern the Estate of Marc Douglass Duncan. These documents were filed in Oregon state court and are undisputed matters of public record. Plaintiff Robert Duncan has sought recognition of his appointment as personal representative for the Estate of Marc Douglass Duncan with this Court and has submitted Letters of Administration signed by the Trial Court Administrator for the Wallowa County Circuit Court to demonstrate his appointment. ECF No. 35. The Court concludes that the submitted materials are proper subjects for judicial notice and will take judicial notice of Exhibits 1 and 2 to the Second Nweze Declaration.
LEGAL STANDARD
To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and "contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "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. The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully." Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.
BACKGROUND
Marc Douglass Duncan was the son of Defendant Shelley A. Goodman and Plaintiff Robert Duncan. Compl. ¶ 1. ECF No. 1. On December 16, 2017, Marc Duncan died of a drug overdose at Goodman's home in Joseph, Oregon after injecting oxycodone. Compl. ¶ 1.
Defendant Shelley A. Goodman has not appeared in this case. It is not clear from the docket whether she has been served with the summons and Complaint.
I. Shelley Goodman
Goodman is alleged to be "known locally as a drug addict/dealer with mental problems" with "a long criminal record of giving/selling drugs to teenagers as well as others." Compl. at ¶ 11.
In 2017, DHS hired a woman named Sherry to serve a home caregiver for Goodman. Compl. ¶ 52. The Complaint alleges that Sherry was a drug addict. Id. at ¶¶ 52, 58. Sherry ceased to be Goodman's caregiver in late 2017 and was replaced by another caregiver named Dana. Id. at ¶ 54. At some point in late 2017, Dana also ceased to be Goodman's caregiver and was replaced by Marc Duncan. Id. at ¶ 58. Like Goodman, the Complaint alleges that Marc Duncan suffered from addiction and mental health issues and was "very well known by law officers." Id. at ¶ 21. The Complaint alleges that Shelley and Dana were aware of illicit drug use taking place at Goodman's residence, but took no action. Id. at ¶ 56.
II. The events of 2009 to 2011
Beginning in 2005, Robert Duncan had sole custody of his son Marc Duncan, then aged eleven. Compl. ¶ 77. In February 2009, Robert Duncan discovered Marc Duncan, then fifteen years old, in possession of a bag of Goodman's prescription opioids. Id. at ¶ 69. Robert Duncan observed that his son was "seemingly drugged" after a scheduled visitation with Goodman. Id. at ¶ 70. Robert Duncan took his son to the hospital, where he tested positive for opioids. Id. Robert Duncan reported his son's drug use to Defendant WCSO, which dispatched a deputy to interview Marc Duncan. Id. at ¶ 71. During the interview, Marc Duncan confessed that he began experimenting with Goodman's drugs at the age of twelve. Id. at ¶ 73.
Marc Duncan was charged with unlawful possession of a controlled substance. Compl. ¶ 72. As a minor, Marc Duncan's case was handled by Defendant Wallowa County Youth Services ("WCYS"). Id. at ¶¶ 9-10. He was sentenced to two years of probation and ordered to complete drug court. Id. at ¶ 72. Defendant Mandy Decker was assigned as Marc Duncan's probation officer in early 2009. Id. at ¶ 9. At some point, Marc Duncan told Decker that Robert Duncan had directed homophobic slurs at his son. Id. at ¶ 149.
On August 6, 2010, Marc Duncan ran away from home and went to his mother's house. Compl. ¶¶ 82-83. The Complaint alleges that Decker secretly assisted Marc Duncan in running away and that Robert Duncan had a heated phone call with Decker about the situation. Id. at ¶ 82. On August 8, 2010, Robert Duncan wrote a "scathing letter" to the Wallowa County Circuit Court asking that Decker be removed as Marc Duncan's probation officer. Id. The Complaint alleges that Decker reported Robert Duncan to DHS Child Protective Services in retaliation for the letter. Id.
On August 18, 2010, Defendant Leigh Bednar, a DHS caseworker, met with Robert Duncan at his home. Compl. ¶ 83. The Complaint alleges that Bednar was dismissive of Robert Duncan's concerns about Marc Duncan using drugs at Goodman's home. Id. The Complaint alleges that Bednar did not investigate a list of people who could verify Robert Duncan's information about Goodman's drug use and criminal history. Id. at ¶¶ 84-85.
Some weeks later, Bednar returned and interviewed Marc Duncan's stepmother Sherry Duncan. Compl. ¶ 87. After the interview, Bednar accused Robert Duncan of being emotionally abusive towards Marc Duncan. Id. Robert Duncan demanded a hearing. Id.
After the second meeting with Bednar, Robert Duncan was summoned to appear at his son's drug court hearing because Marc Duncan had failed a drug test. Compl. ¶ 88. The Complaint alleges that Robert Duncan attempted to request re-imposition of Marc Duncan's probation but was prevented from doing so by the intervention of Decker and the Wallow County District Attorney. Id. at ¶ 89.
The Complaint alleges that Robert Duncan met with Decker and attempted to provide her with evidence of Marc Duncan's drug use but was rebuffed by Decker. Compl. ¶ 91. Decker later accused Robert Duncan of threatening her during that meeting. Id. at ¶ 92.
Robert Duncan complained to Defendant Theresa Fisher, who was Bednar's DHS supervisor, by letter and telephone call about the DHS investigation. Compl. ¶ 93. On April 11, 2011, Bednar issued a report on her investigation in the allegations against Robert Duncan. Id. at ¶ 94. Robert Duncan disputed Bednar's report in writing to Fisher. Id. On June 7, 2011, Fisher sent a letter to Robert Duncan stating her findings that there was no evidence of physical or mental abuse of Marc Duncan by Robert Duncan. Id. This letter was issued only a few months before Marc Duncan's eighteenth birthday in September 2011. Id. at ¶ 97. The Complaint alleges that DHS intentionally delayed its investigation in order to "run out the clock" and deny Robert Duncan a hearing on the allegations against him. Id. at ¶ 95.
Robert Duncan did not have contact with Marc Duncan between August 2010 and June 7, 2011. Compl. ¶ 96. The Complaint alleges that Marc Duncan dropped out of school and began using methamphetamine during that time. Id. at ¶¶ 99, 101.
III. The events of December 16, 2017
At 3:30 a.m. on December 16, 2017, Wallowa County emergency services received a 911 call from Goodman's residence in Joseph, Oregon. Compl. ¶ 18. The call was from a "screaming woman." Id. WCSO did not respond to the 3:30 a.m. call. Id. at ¶ 39.
At 6:30 a.m., Goodman knocked on a neighbor's door and told the neighbor that she had locked herself out of her apartment and that she thought Marc Duncan was dead. Compl. ¶ 27. The neighbor called 911 and WCSO dispatched deputies to investigate. Id. The deputies found Marc Duncan's body and called for the local medical examiner at 6:45 a.m. Id. at ¶ 22. The medical examiner arrived at 7:11 a.m. and reported to the deputies that Marc Duncan had most likely died around 3:00 a.m. from an overdose. Id. at ¶¶ 20, 22. Goodman was described by the medical examiner as a "very poor and confused historian and very upset." Id. at ¶ 21.
Goodman's neighbor also called Robert Duncan and told him that Marc Duncan had overdosed. Compl. ¶ 24. Robert Duncan arrived at 7:50 a.m. and learned that his son was dead. Id.
The Complaint alleges that WCSO deputies carry naloxone, which can reverse the effects of opioid overdose and that, had deputies arrived earlier, they could have administered the drug and prevented Marc Duncan's death. Compl. ¶ 50.
The Complaint alleges that suicide "was not a factor," and that Marc Duncan's death "was either an accidental overdose or a homicide." Compl. ¶ 1. Marc Duncan was twenty-four years old at the time of his death and was survived by his mother, father, stepmother, and three siblings. Id. at ¶¶ 1-2.
IV. Procedural history
The Complaint in this case was filed on December 11, 2019. ECF No. 1. At the time, no probate action had been commenced for the Estate of Marc Duncan and Robert Duncan had not been appointed as personal representative of the Estate.
On March 23, 2020, Robert Duncan requested that this Court appoint him as personal representative of the Estate. ECF No. 14. On April 6, 2020, this Court denied Robert Duncan's motion based on lack of federal jurisdiction over probate matters. ECF No. 26.
On April 15, 2020, Robert Duncan submitted a Petition for Administration of Estate and Appointment of Personal Representative to the Wallowa County Circuit Court. Second Nweze Decl. Ex. 2. The Petition notified the Circuit Court that Marc Duncan's only known heirs were his parents, Robert Duncan and Shelley Goodman. Id. at 2.
On the same day, the Wallowa County Circuit Court granted the petition and issued a Limited Judgment for the Administration of Intestate Estate and Appointment of Personal Representative. Second Nweze Decl. Ex. 1. The Estate of Marc Douglass Duncan was admitted to administration and Robert Duncan was appointed as personal representative of the Estate. Id.
DISCUSSION
Plaintiffs allege that WCSO's failure to respond to the 3:30 a.m. 911 call on December 16, 2017 led to the death of Marc Duncan. Plaintiffs also allege that the Wallowa County District Attorney's Office and WCSO subsequently conspired to cover up the errors of WCSO. Plaintiffs allege that DHS failed to investigate the use of drugs in Goodman's home in the months before Marc Duncan's death. Plaintiffs also allege that the acts of DHS, WCYS, and the individual Defendants deprived Robert Duncan of his rights from 2009 to 2011, which led to the death of Marc Duncan.
Based on the events of December 16, 2017, Plaintiffs bring claims for deprivation of civil rights pursuant to 42 U.S.C. § 1983 (Claim 1); conspiracy to interfere with civil rights pursuant to 42 U.S.C. §§ 1985 and 1986 (Claim 2); and wrongful death (Claim 3). Compl. ¶¶ 104-40. Based on the events of 2009 to 2011, Plaintiffs bring claims for deprivation of civil rights pursuant to § 1983 (Claim 4); conspiracy to interfere with civil rights pursuant to §§ 1985 and 1986 (Claim 5); and wrongful death (Claim 6). Id. at ¶¶ 141-208.
As a preliminary matter, Defendants' Motions to Dismiss initially challenged Plaintiffs' ability to maintain this action because, at the time, the Estate had not been admitted to administration. As discussed above, the Estate has since been admitted and Robert Duncan has been appointed as personal representative. Defendants have therefore withdrawn that portion of their motions.
I. All claims based on the events of 2009 to 2011 are time-barred
As discussed above, Plaintiffs bring claims under §§ 1983, 1985 and 1986, as well as state law claims for wrongful death based on events that took place between 2009 and 2011. Defendants move to dismiss those claims as time-barred.
Title 42 U.S.C. § 1983 "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights." Conn v. Gabbert, 526 U.S. 286, 290 (1999). 42 U.S.C. § 1985 prohibits conspiracies to interfere with certain civil rights. The applicable statute of limitations for actions brought pursuant to § 1983 is the forum state's statute of limitations for personal injury actions. Carpinteria Valley Farms, Ltd. v. Cnty. of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003). Actions under § 1985 are subject to the same statute of limitations. McDougal v. Cnty. of Imperial, 942 F.2d 668, 673-74 (9th Cir. 1991). In Oregon, the statute of limitations for personal injury actions is two years. ORS 12.110(1).
Plaintiffs contend that their claims did not accrue until the death of Marc Duncan in December 2017. "Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (internal quotation marks and citation omitted). However, "a mere continuing impact from past violations is not actionable." Id. (internal quotation marks and citation omitted, emphasis in original). As the Supreme Court held in Chardon v. Fernandez, 454 U.S. 6 (1981), "the proper focus is on the time of the discriminatory act, not the point at which the consequences of the act become painful." Id. at 8. The acts that form the basis of Plaintiffs' federal Claims 4 and 5 accrued when the acts occurred and not when Marc Duncan died. Plaintiffs' claims under §§ 1983 and 1985 for the events of 2009 to 2011 are therefore time-barred and should be dismissed.
42 U.S.C. § 1986 also concerns conspiracies to violate rights and, specifically, an individual's failure to prevent a conspiracy. Unlike §§ 1983 and 1985, however, § 1986 contains its own limitations period, which provides that "no action under the provisions of this section shall be sustained which is not commenced within one year after the cause of action has accrued." Id. Even if the Court accepts the death of Marc Duncan as the date of accrual, all of Plaintiffs' claims under § 1986 were commenced nearly two years after his death. Plaintiffs' § 1986 claims are therefore time-barred and should be dismissed.
With respect to Plaintiff's state law claims, the moving Defendants are all public bodies or employees of public bodies. "[A]n action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 shall be commenced within two years after the alleged loss or injury." ORS 30.275(9). The alleged tortious acts of Defendants Decker, Bednar, Fisher, and WCYS all fall beyond the limitations period provided by ORS 30.275(9), as do those acts alleged to have been undertaken by Defendants DHS, the Wallowa County District Attorney's Office, WCSO, and the Oregon Department of Administrative Services between 2009 and 2011.
For state claims, a cause of action accrues when there is a discrete harm-causing act that is separately actionable and the statute of limitations begins to run when the plaintiff knew or should have known that they had suffered a loss caused by the defendant's wrongful conduct. Boardmaster Corp. v. Jackson Cnty., 224 Or. App. 533, 552 (2008). "Designating a series of discrete acts, even if connected in design or intent, a 'continuing tort' ought not to be a rationale by which the statute of limitations policy can be avoided, for surely the cause of action 'accrued' at some time; or, to put it another way, a cause of action does not reaccrue every time another distress is inflicted." Davis v. Bostick, 282 Or. 667, 674 (1978) (internal citation omitted). In this case, Plaintiffs clearly allege that Defendants' actions between 2009 and 2011 were discrete harm-causing acts. The Court therefore concludes that the statute of limitations for Claim 6 began to run when the acts occurred and did not re-accrue when Marc Duncan died in 2017.
Plaintiffs also argue that the limitations period should be tolled because they did not discover Defendants' tortious acts until Marc Duncan died. This argument is contradicted by allegations of the Complaint. Plaintiffs allege that "[f]rom June thru September 2011, Robert spent many days contacting lawyers for this obvious civil rights violation case." Compl. ¶ 98. "He tried to enlist every attorney in Eastern Oregon, but none seemed interested or qualified," and "[m]any attorneys said the statute of limitations has already expired by June 2011." Id. Plaintiffs were clearly aware of their injury and unsuccessfully sought to bring an action in 2011.
The Court therefore concludes that Claims 4, 5, and 6 are barred by the statute of limitations and should be dismissed. Plaintiffs' claims under § 1986, whether based on the events of 2009 to 2011 (Claim 5) or the events of December 2017 (Claim 2), are likewise time-barred and should be dismissed. As this defect cannot be remedied by amendment, dismissal should be with prejudice.
II. Tort claim notice
The Oregon Tort Claims Act provides that no action "arising from any act or omission of a public body or an officer, employee or agent of a public body" may be maintained unless the plaintiff gives timely notice. ORS 30.275(1). In cases of wrongful death, the notice must be given within one year of the alleged loss or injury. ORS 30.275(2)(a).
Defendants move to dismiss all state law claims arising from acts taken between 2009 and 2011, on the basis that notice was not timely given. Plaintiffs gave notice to Defendants on August 14, 2018. Nweze Decl. Ex. 2. ECF No. 7-2. Although Plaintiffs argue that the harm was not apparent until the death of Marc Duncan in December 2017, the Complaint alleges that Robert Duncan was aware of the allegedly tortious conducts of Defendants in 2011 and sought to retain counsel to sue at the time. The Court therefore concludes that tort claim notice was not timely given. As no amendment will remedy this defect, dismissal should be with prejudice.
III. Eleventh Amendment immunity
Defendants DHS, the Oregon Department of Administrative Services, and the Wallowa County District Attorney's Office move to dismiss based on Eleventh Amendment immunity. The Eleventh Amendment provides that a state is immune from suit in federal court unless Congress has abrogated the state's immunity by appropriate federal legislation or the state itself has waived immunity. Va. Office for Prot. & Advocacy v. Stewart, 563 U.S. 247, 253-54 (2011). It is similarly well settled that a state agency is entitled to sovereign immunity from suit. P. R. Aqueduct & Sewer Auth. v. Metcalf, 506 U.S. 139, 144 (1993). Congress has not abrogated state sovereign immunity in 42 U.S.C. § 1983. See Braunstein v. Ariz. Dep't of Transp., 683 F.3d 1177, 1188 (9th Cir. 2012).
In this case, DHS and the Oregon Department of Administrative Services are clearly state agencies and so entitled to the protection of Eleventh Amendment immunity and all federal claims against those agencies should be dismissed. As no amendment would remedy this defect, dismissal should be with prejudice.
As for the Wallowa County District Attorney's Office, "district attorneys are officers of the state and of the counties within their respective districts," and will "constitute a state entity where the district attorney acts on behalf of the state, not a county entity." Ashbough v. Yamhill Cnty., Case No. 3:17-cv-1038-JR, 2019 WL 7879745, at *9 (D. Or. Aug. 13, 2019). Oregon district attorney's offices are protected by the Eleventh Amendment when their officials act as a state agency in their prosecutorial capacity. Latty v. Polk Cnty. Sheriff's Office, Case No. 3:19-cv-00883-MO, 2020 WL 485526, at *2 (D. Or. Jan 29, 2020).
In this case, taking the allegations of the Complaint in the light most favorable to the non-moving party, Plaintiffs appear to allege that the Wallow County District Attorney's Office was performing a ministerial or administrative function on behalf of the county, rather than a prosecutorial function on behalf of the state. At this stage of the case, the Court therefore concludes that the Wallowa County District Attorney's Office should not be dismissed on the basis of Eleventh Amendment immunity.
IV. County government departments are not proper defendants under § 1983
Plaintiffs have named two Wallowa County agencies, WCSO and WCYS, as defendants in their claims under § 1983. A claim under § 1983 must be alleged against a "person." Naffe v. Frey, 789 F.3d 1030, 1035-36 (9th Cir. 2015). "Persons" under § 1983 "are state and local officials sued in their individual capacities, private individuals and entities which act under color of state law, and/or the local governmental entity itself." Beardall v. City of Hillsboro, Case No. 3:19-cv-00489-YY, 2019 WL 1867933, at *1 (D. Or. April 25, 2019). Departments of a county government are not persons within the meaning of § 1983. Id. (citing United States v. Kama, 394 F.3d 1236, 1239 (9th Cir. 2005)); see also Mecautea v. Oregon, Case No. 3:19-cv-01864-MO, 2020 WL 1812012, at *2 (D. Or. April 9, 2020) ("While individual state actors, local government units, or municipalities can be sued under Section 1983, sheriff or police departments are generally not considered suable entities.").
Defendants WCSO and WCYS are departments of the Wallowa County government and are not, therefore, proper defendants under § 1983. Plaintiffs' § 1983 claims against WCSO and WCYS should therefore be dismissed. As no amendment would remedy the defect, dismissal should be with prejudice.
V. Robert Duncan lacks standing to maintain a claim for wrongful death in his personal capacity
Defendants move to dismiss Plaintiffs' claims for wrongful death insofar as Robert Duncan seeks to maintain the action on his own behalf, rather than in his capacity as personal representative of the Estate. Defendants also argue that Robert Duncan may not assert constitutional claims vicariously, based on injuries suffered by Marc Duncan.
In cases of wrongful death, Oregon law provides: "When the death of a person is caused the wrongful act or omission of another, the personal representative of the decedent . . . may maintain an action against the wrongdoer, if the decedent might have maintained an action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission." ORS 30.020(1). A parent "has no independent right under Oregon law to recover for the wrongful death of his son," and such an action "must be brought by the personal representative of the son's estate." Dasteur v. Am. Econ. Ins. Co., 127 Or. App. 686, 690 (1994). As previously discussed, Robert Duncan has been appointed as the personal representative of the Estate and may maintain a wrongful death action in that capacity but may not maintain such an action in his own right. Accordingly, Robert Duncan's claims for wrongful death should be dismissed insofar as they seek to recover in his personal capacity. As no amendment would remedy the defect, dismissal should be with prejudice.
As previously discussed, Plaintiffs' claims relating the events of 2009 and 2011 are time barred and, as will be discussed in a later section, the precise nature of Plaintiff's federal claims relating to the events of December 2017 are not entirely clear from the pleadings. In general, however, "constitutional claims are personal and cannot be asserted vicariously." Johns v. Cnty. of San Diego, 114 F.3d 874, 876 (9th Cir. 1997). Plaintiffs' federal claims appear to relate to the failure to provide timely aid to Marc Duncan on the night of his death. To the extent that such claims are cognizable, they are personal to Marc Duncan and may only be maintained by his Estate.
VI. Robert Duncan cannot represent the Estate pro se
The parties agree that Robert Duncan is not an attorney and Defendants contend that he cannot represent the Estate in a pro se capacity, notwithstanding the fact that he has been appointed as the personal representative of the Estate.
Generally, an individual has a right to represent himself in the federal courts of the United States. 28 U.S.C. § 1654. This right is intended to provide individuals with equal access to the courts. However, "[w]hile a non-attorney may appear pro se on his own behalf, he has no authority to appear as an attorney for others than himself." Johns, 114 F.3d at 876 (internal quotation marks and citation omitted). "In other words, in an action brought by a pro se litigant, the real party in interest must be the person who 'by substantive law has the right to be enforced.'" Estate of Sharp ex rel. Sharp v. Callahan, No. 3:12-cv-0605-TC, 2012 WL 6480845, at *1 (D. Or. Nov. 21, 2012) (quoting C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Of particular note, when "an estate has multiple beneficiaries and creditors, an attorney must represent a personal representative before the court." Sharp, 2012 WL 6480845, at *1.
In this case, both the Complaint and the judicially noticed exhibits reflect the fact that Robert Duncan is not the only beneficiary of the Estate. Marc Duncan's mother, Shelley Goodman, is alive and listed as one of Marc Duncan's heirs in the state court Petition for Administration of Intestate Estate and Appointment of Personal Representative. Second Nweze Decl. Ex. 2, at 2.
Plaintiffs contend that Goodman has forfeited her share of the Estate pursuant to ORS 112.047 and no longer qualifies as a beneficiary. That statute provides, however, that the "intestate share of a parent of a decedent may be forfeited under this section only pursuant to an order of the court entered after the filing of a petition under ORS 112.049." ORS 112.047(4). Plaintiffs have not provided any such order from the state court and so, for purposes of this motion, Goodman remains an heir of Marc Duncan and a beneficiary of his Estate. As such, Robert Duncan cannot represent the Estate in federal court in a pro se capacity.
Although they are not listed as Plaintiffs in this action, the Complaint and Plaintiffs' briefing contain scattered references to claims brought on behalf of Marc Duncan's other surviving family members. See, e.g., Compl. ¶ 122 ("Robert and Sherry as well as other family members suffered non-economic injury and damage including extreme anxiety, isolation, depression, fear, severe emotional distress and psychological injury, disruption of positive personal and romantic relationships, PTSD, and loss of self-esteem."). Robert Duncan, as a pro se party, cannot represent these individuals for the same reasons he cannot represent the Estate.
In a similar situation, the Ninth Circuit held that the proper course of action is to dismiss without prejudice to allow the pro se party to secure an attorney and refile the action. Johns, 114 F.3d at 877; see also C.E. Pope, 818 F.2d at 697 (affirming the district court's decision to dismiss without prejudice). Consistent with that guidance, the Court should dismiss all claims brought by the Estate of Marc Duncan without prejudice so that Plaintiffs may seek the assistance of counsel to represent the Estate.
VII. Failure to state a claim
Defendants move to dismiss all claims for failure to state a claim. As discussed above, Claims 4, 5, and 6 are time-barred and so the Court confines its discussion to Claims 1, 2, and 3, which are based on the events of December 2017.
Claim 1 is brought pursuant to § 1983. To maintain a claim under § 1983, "a plaintiff must both (1) allege the deprivation of a right secured by the federal Constitution or statutory law, and (2) allege that the deprivation was committed by a person acting under color of state law." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). The precise basis for Claim 1 is not clear from the Complaint. The Complaint does not clearly identify any constitutional right, but instead invokes a series of federal criminal statutes, including 18 U.S.C. §§ 241, 242, 1505, 1510, and 1512. Compl. ¶¶ 108, 117.
Federal criminal statutes do not generally create a private right of action or provide a basis for civil liability. Abcarian v. Levine, 972 F.3d 1019, 1026 (9th Cir. 2020). Nor are violations of federal criminal statutes actionable under § 1983. Winn v. Ely, No. CV 05-899-MO, 2008 WL 570958, at *5 (D. Or. Feb. 28, 2008). These general rules have been applied specifically to the statutes cited in the Complaint. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980) (no cause of action under 18 U.S.C. §§ 241, 242); Thompson v. Blackman, No. CV-20-00780-PHX-DJM (MTM), 2020 WL 4523982, at *2 (D. Ariz. May 11, 2020) (18 U.S.C. § 1505 "creates no private right of action."); Morelli v. Hyman, Civ. No. 19-00088-JMS-RLP, 2019 WL 2717770, at *5 (D. Haw. June 28, 2019) (no private right of action under 18 U.S.C. § 1510); Lock v. California, Civ. No. 6:13-cv-2091-MC, 2014 WL 116435, at * 1 (D. Or. Jan. 6, 2014) (no private right of action under 18 U.S.C. § 1512). To the extent Plaintiffs' seek to base their § 1983 claim on violation of those federal criminal statutes, the Complaint fails to state a claim.
The Complaint also invokes a series of Oregon statutes, including ORS 30.020, 12.115, 40.120, 40.135, and 10.095. Compl. ¶¶ 112-13. A claim brought under § 1983 may not be based on a violation of state law. See Galen v. Cnty. of Los Angeles, 477 F.3d 652, 662 (9th Cir. 2007) ("Section 1983 requires [the plaintiff] to demonstrate a violation of federal law, not state law."). To the extent that Plaintiffs seek to base their § 1983 claim on a violation of Oregon statutes, the claim must fail.
In their Response, Plaintiffs appear to assert that their claims under § 1983 are based on the Patient Protection and Affordable Care Act and the Equal Protection Clause of the Fourteenth Amendment. Resp. at 4. ECF No. 28. These claims are not alleged in the Complaint, however, and cannot salvage the claim as pleaded.
Defendants contend that all § 1983 claims brought by Robert Duncan in his own right, and not as personal representative for the Estate, should be dismissed with prejudice because a plaintiff cannot vicariously assert the rights of others outside of certain narrow circumstances. Although, as previously noted, there is support for Defendants' position, the lack of clarity concerning the precise nature of Plaintiffs' § 1983 claim makes it difficult to judge what right is being asserted. The fact that Robert Duncan is appearing pro se also weighs in favor of granting leave to amend. However, given the other defects identified above, Robert Duncan should be advised to seek the assistance of counsel rather than attempting to re-file his claims pro se.
B. 42 U.S.C. §§ 1985 and 1986
42 U.S.C. § 1985 prohibits conspiracies to interfere with certain civil rights. "A claim under this section must allege facts to support the allegation that defendants conspired together," and a "mere allegation of conspiracy without factual specificity is insufficient." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). 42 U.S.C. § 1985 is not to be construed as a general federal tort law. Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). As such, a required element of a § 1985 claim is that the plaintiff be a member of a protected class and the deprivation of civil rights have been motivated by animus toward that class. See Griffin v. Breckenridge, 403 U.S. 88, 102 (1971) ("The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial or otherwise class-based, invidiously discriminatory animus behind the conspirators' action."). In the Ninth Circuit, § 1985 is "extended beyond race only when the class in question can show that there has been a governmental determination that its members require and warrant special federal assistance in protecting their civil rights." Sever, 978 F. at 1536 (internal quotation marks and citations omitted). "More specifically, we require either that the courts have designated the class in question a suspect or quasi-suspect classification requiring more exacting scrutiny or that Congress has indicated through legislation that the class required special protection." Id. (internal quotation marks and citation omitted).
In this case, there is no clear allegation that Plaintiffs are members of a protected class or that the events giving rise to Claim 2 was motivated by animus toward that class. The allegations describing the conspiracy are also conclusory and speculative and lack sufficient specificity to state a claim under § 1985. Compl. ¶¶ 39-40, 116-17. Claim 2 should therefore be dismissed.
42 U.S.C. § 1986 "imposes liability on every person who knows of an impending violation of section 1985 but neglects or refuses to prevent the violation." Karim-Panahi, 839 F.2d at 626. "A claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985." Id. As previously noted, Plaintiffs' claims under § 1986 are time-barred. However, the Court concludes that Plaintiffs have also failed to state a claim under § 1986.
C. State wrongful death claim
Claim 3 alleges wrongful death based on the failure of Defendant WCSO to respond to the 3:30 a.m. call to 911. As previously discussed, the only proper Plaintiff for this claim is the personal representative for the Estate.
Oregon law provides that the personal representative of a decedent may maintain a wrongful death action "if the decedent might have maintained the action, had the decedent lived, against the wrongdoer for an injury done by the same act or omission." ORS 30.020(1). "In other words, because ORS 30.020(1), by its own terms, does not give a decedent's personal representative a right to sue a tortfeasor for negligent wrongful death when the decedent never had that right in the first place, a beneficiaries' wrongful death action under [ORS] 30.020(1) is derivative of the decedent's right to sue for the same injury when alive." Fields v. Legacy Health Sys., 413 F.3d 943, 957-58 (9th Cir. 2004) (internal quotation marks and citation omitted, alterations normalized).
In this case, Plaintiffs contend that Defendant WCSO had a duty to respond to the 3:30 a.m. call under ORS 403.110. Resp. at 5. ORS 403.110 provides that:
Plaintiffs also raise ORS 403.115, but that statute provides for the establishment of 911 as the primary emergency number and for the publication of the number and does not concern questions of liability or a duty to respond to emergency calls.
(1) A provider or a 9-1-1 jurisdiction or employees or agents of a provider or a 9-1-1 jurisdiction may be held civilly liable for the installation, performance provision or maintenance of a 9-1-1 emergency reporting system or enhanced 9-1-1 telephone service if the provider or the 9-1-1 jurisdiction or the employees or agents of the provider or the 9-1-1 jurisdiction act with willful or wanton conduct.ORS 403.110.
(2) A provider or seller is not liable for damages that result from providing or failing to provide access to the emergency communication system or from identifying or failing to identify the telephone number, address, location or name associated with any person or device accessing or attempting to access the emergency communications system.
(3) This section does not affect any liability a 9-1-1 jurisdiction may have for employee negligence in receiving emergency calls from the public and dispatching emergency services to the public.
This statute does not appear to be applicable to the facts of Plaintiffs' case, as alleged in the Complaint. Plaintiffs allege that WCSO failed to respond to a 911 call, which does not concern the "installation, performance, provision or maintenance of a 9-1-1 emergency reporting system or enhanced 9-1-1 telephone service," under ORS 403.110(1). Nor do the allegations concern access to the emergency communications system, or the identification of a telephone number, address, location, or name of a person attempting to access the emergency communications system, under ORS 403.110(2). The language of ORS 403.110(3) does not preclude a claim for negligence in receiving emergency calls from the public or dispatching emergency services, but neither does it clearly establish a duty to respond to such calls.
It may be, however, that emergency services have a duty to respond to 911 calls under Oregon law. See Hammond v. Central Lane Comm'n Center, 101 Or. App. 569, 572-73 (1990), aff'd 312 Or. 17 (1991) (discussing in dicta the possibility of a claim for wrongful death based on a negligent failure to promptly respond to a 911 call). However, the Complaint does not clearly connect the alleged failure to respond to the 911 call to any Defendant except WCSO. Accordingly, the Complaint fails to state a claim for wrongful death as to all other Defendants.
As discussed in the preceding sections, however, this claim is subject to dismissal without prejudice for other reasons. Given the numerous and likely incurable defects in Plaintiffs' federal claims, it seems that Plaintiffs' wrongful death claim would be more properly resolved in Oregon state court.
CONCLUSION
For the reasons set forth above Defendants' Motions to Dismiss, ECF Nos. 6, 22, 23, 27, should be GRANTED. All other pending motions should be DENIED as moot.
Claims 4, 5, and 6, which are based on the events of 2009 to 2011, are time-barred and should be DISMISSED with prejudice. This includes all claims against Defendant Mandy Decker, Defendant Leigh Bednar, Defendant Teresa Fisher, and Defendant Wallowa County Youth Services. All claims brought pursuant to 42 U.S.C. § 1986 are likewise time-barred and should be DISMISSED with prejudice.
All claims against Defendant Wallowa County Sheriff's Office and Defendant Wallowa County Youth Services brought pursuant to 42 U.S.C. § 1983 should be DISMISSED with prejudice, as those entities are not proper defendants in an action under § 1983.
All claims brought against Defendant Oregon Department of Human Services and Defendant Oregon Department of Administrative Services should be DISMISSED with prejudice based on Eleventh Amendment immunity.
All wrongful death claims brought by Plaintiff Robert Duncan in his own right, and not as personal representative for the Estate of Marc Douglass Duncan, should be DISMISSED with prejudice.
All remaining claims, state and federal, brought pro se by Robert Duncan as personal representative of the Estate of Marc Douglass Duncan should be DIMSSSED without prejudice so that Plaintiffs can seek the assistance of an attorney to represent the Estate, particularly with respect to Plaintiffs' claim for wrongful death based on the events of December 2017 (Claim 6).
All remaining claims brought by Plaintiff Robert Duncan on his own behalf pursuant to 42 U.S.C. §§ 1983 and 1985 should be DISMISSED with leave to amend. Alternatively, Plaintiffs should be advised to pursue their remaining claims in Oregon state court, rather than file an amended complaint in federal court.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
It is so ORDERED and DATED this 27th day of October 2020.
/s/ Patricia Sullivan
Patricia Sullivan
United States Magistrate Judge