Opinion
1:20-cv-01102-CL
05-23-2023
RUEBEN GARCIA-HERRERA, Plaintiff, v. KLAMATH COUNTY, OREGON, DENNIS GIBBS, ERIC GORITZ, AMANDA GRAHAM, RYAN KABER, JIMMY LEACH, and WESLEY PARKER. Defendants.
FINDINGS AND RECOMMENDATION
Mark D. Clarke United States Magistrate Judge
This matter comes before the Court on two motion to dismiss Plaintiff's First Amended Complaint, one filed by defendants Klamath County, Ryan Kaber, Jimmy Leach, and Amanda Graham (#40), and the other filed by defendant Eric Goritz (#44). Defendant Dennis Gibbs is unrepresented and did not file a motion, but the arguments in the filed motions apply to him as well. For the reasons below, the motions should be GRANTED. Plaintiff's First Amended Complaint (#35) fails to state a claim for relief and should be dismissed with prejudice.
LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6), a motion to dismiss will be granted where a plaintiff fails to state a claim upon which relief may be granted. In order to state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(a)(2). “A motion to dismiss under [Rule] 12(b)(6) for failure to state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.'” Conservation Force v. Salazar, 646 F.3d 1240,1242 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)).
Dismissal under Rule 12(b)(6) is proper “if there is a ‘lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'” Id. (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state 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)); see also Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating a motion to dismiss, a court must accept the 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).
A court must liberally construe the filings of a self-represented, or pro se, plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Further, “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011) (quotation marks omitted). “Unless it is absolutely clear that no amendment can cure the defect,... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Garity v. APWU Nat'l Lab. Org., 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)).
PROCEDURAL BACKGROUND
Plaintiff filed his initial Complaint (#1) on August 8, 2020. At that time, he was represented by counsel. In his Complaint, Plaintiff alleged that he was treated poorly and discriminated against by the defendants because of a disability, and that they failed to provide him services due to the same. The defendants brought motions to dismiss, and this Court recommended that the motions be granted for several reasons. See F&R (#19). First, the individual defendants could not be held liable for ADA claims in their personal capacities. Second, Plaintiffs status as a disabled person was not a protected class for purposes of his 1985 claim. The Court determined that the individual defendants and the 1985 claim should be dismissed with prejudice. The Court also determined that Plaintiff failed to state a claim under the ADA against Klamath County, and that this claim should be dismissed without prejudice, as the Court could not say with certainty whether the claim could be sufficiently re-pled. The District Court adopted these recommendations on May 26, 2021 (#23). A final judgment was entered by mistake (#24). Plaintiff appealed the judgment, and the Ninth Circuit remanded the case on August 21, 2022, to allow Plaintiff to re-plead his ADA claim against defendants Goritz and Gibbs, as the Court could not say with certainty whether the deficiencies of the claim could be cured upon amendment. (#28, #29).
On August 24, 2022, Plaintiffs counsel moved to withdraw from the case. Before withdrawing, counsel-filed Plaintiffs First Amended Complaint on September 1, 2023. Shortly thereafter, Plaintiff, appearing pro se, began filing his own notices and demands on the docket (see #36 “Notice of Extrinsic Fraud,” #37 “Notice of Extrinsic Fraud,” #39 “Notice. Demand for the removal of counsel”). The County defendants filed their Motion to Dismiss (#40) on September 12, 2022. The Court granted counsel's motion to withdraw on September 14, 2022, and at the same time granted Plaintiff extra time to either attempt to retain new counsel or notify the Court of his intent to proceed pro se. Defendant Eric Goritz filed his Motion to Dismiss (#44) on September 15, 2022. Plaintiff continued to file notices, requests, and demands, all of which were irrelevant, frivolous, excessive, and often unreadable.
On October 27, 2022, the Court entered a minute order (#46) ordering the Klamath County Defendants to properly serve Plaintiff with the Motion to Dismiss (#44), as it appeared service had not taken place, likely due to the timing of the withdrawal of Plaintiff s counsel. The minute order (#46) also directed Plaintiff to limit his filings to a response to the defendants' motions to dismiss, and it imposed a prefiling order such that any attempted filing other than a response to the motions would be screened by chambers prior to filing on the docket. The Court also entered a Motion to Dismiss Advice Notice (#47), giving Plaintiff information about responding appropriately to the motions and alerting him to the legal standard, as well as pointing him to further resources available on the court website for self-represented parties. Plaintiff filed his “Objections to Motion to Dismiss (#40 and Motion to Dismiss (#44),” (#50), on September 28. The County defendants filed their Reply (#51) on December 12. The Motions were taken under advisement on January 23, 2023.
FACTUAL ALLEGATIONS
Plaintiffs First Amended Complaint (“FAC”) (#35) alleges that “officials working for Klamath County, Oregon, have participated in and conspired with the Board of Directors of the Klamath Falls Forest Estates Unit #1 (‘KFFE') Home Owners Association (‘KFFEHOA') to discriminate against Plaintiffs because Plaintiff is a disabled land owner, owning land within the KFFE boundaries.” Plaintiff does not name either KFFE or KFFEHOA as defendants, however. He brings this cause of action against Klamath County, Oregon, and a number of individuals. All individuals have been dismissed from this case, with prejudice, except for Defendants Dennis Gibbs and Eric Goritz.
For purposes of this motion and opinion, all factual allegations alleged in the First Amended Complaint (#35) are accepted as true and construed in favor of the Plaintiff. Legal conclusions and claims are not so construed.
Plaintiffs FAC alleges that Defendants Gibbs and Goritz served on the KFFE Special Road District as a commissioners, and that Defendant Goritz is still on both KFFEHOA board of directors and the KFFE Special Road District (SRD). ¶ 6. Plaintiff served on the board of directors for KFFEHOA “for awhile,” as an “extra position to assist the Board of Directors.” ¶ 13. However, “after he disclosed that he was receiving social security disability, the new Board of Directors treatment of him changed and directors forced him to stop us[ing] the community well and began harassing him.” Id.
Plaintiff alleges that KFFEHOA board members “began to conspire with County officials against [Plaintiff].” ¶ 14. Plaintiffs FAC describes a number of violent and assaultive situations with KFFEHOA board members, including defendants Gibbs and Goritz, and he claims that these incidents were reported to the Klamath County Sheriffs Department, but no law enforcement actions were taken on Plaintiffs behalf. Plaintiff asserts that defendant Gibbs stated that he was going to “go after [Plaintiffs] Federal disability benefits as he believed [Plaintiff] was faking disability.” ¶ 17.
On June 27, 2018, Defendants Gibbs and Goritz “filed a fraudulent report against” Plaintiff, “claiming he had been responsible for vandalism to the community well house.” ¶ 22. The Sheriffs Department opened a vandalism case against Plaintiff. Id. Plaintiff claims that as part of their investigation, the Sheriffs Department received a video showing the assault on Plaintiff by Defendant Gibbs, and the statement by Defendant Gibbs that he would “going after” Plaintiffs disability benefits. Id. Plaintiff claims the investigation concluded on August 18, 2018, “after the Sheriffs Department was not able to gather any evidence to support that [Plaintiff] was the perpetrator of the vandalism.” Id.
Plaintiff then asserts that “both Dennis Gibbs and Eric Goritz were in charge of the Klamath Falls Forest Estates Unit #1, Special Road District.” ¶ 24. During calendar year 2019 and years prior, “Mr. Gibbs and Mr. Goritz refused to plow the snow from the roads in front of those properties that are occupied by disabled persons.” ¶ 25. “Instead, Mr. Gibbs and Goritz hired employees or Mr. Gibbs would himself plow a berm in front of [Plaintiffs] property making it difficult during the winter months for [Plaintiff] and his four daughters to get out.” ¶ 26. “Mr. Gibbs and Mr. Goritz conspired with other county officials and with the board members of KFFEHOA to discriminate against disabled individuals in regards to services provided to other residents of the KFFE.” ¶ 27.
Plaintiff claims that he was arrested by the Klamath County Sheriffs Department on July 19, 2018, after someone set fire to his property and during the response to the fire, a KFFEHOA board member, Sam Marquez, claimed that Plaintiff assaulted him. ¶ 33. Plaintiff claims that he was released from custody around midnight that night, and that he indicated to officers that he was disabled and needed accommodations, but that officers retained his cane, which he needed to walk. ¶ 33. He was released with no way to get home and no phone or wallet to obtain a ride the thirty-five miles back to his house. ¶ 35-36. The charges against him for the alleged assault were ultimately dropped. ¶ 37.
Plaintiff alleges that after the incident that led to his arrest, a restraining order was in place preventing Mr. Marquez from coming near Plaintiff's property. Plaintiff claims that on August 18, 2019, a Klamath County Sheriffs deputy came to Plaintiffs property to question him about the alleged vandalism at the community well. ¶ 38. Plaintiff asserts that, during the questioning, which took place at this gate, Mr. Marquez drove by, in violation of the restraining order. Id. Plaintiff claims that the deputy ignored this violation and refused to take any action on Plaintiffs behalf. Plaintiff claims that the refusal to take law enforcement action on Plaintiffs behalf, while continuing to take action against Plaintiff, for a minor issue like vandalism, “demonstrates the collusion between the County and KFFEHOA.” Id.
Finally, Plaintiff asserts that, about a year later, in July 2019, “County Animal enforcement officer, Amanda Graham, also conspired with the KFFEHOA board member to discriminate against [Plaintiff].” ¶ 46. She cited [Plaintiff] for violations of the dog ordinance for dogs that did not belong to, nor to which [Plaintiff] had any connection. Id.
DISCUSSION
Based on the above allegations, Plaintiffs FAC identifies a single claim for relief, “discrimination in violation of 42 USC § 12132,” which provides:
no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subject to discrimination by any such entity.For the reasons below, Plaintiff fails to state a claim for disability discrimination under this statute. Plaintiff has already been given a chance to re-plead this claim, with his attorney's assistance before withdrawal. Therefore, dismissal should be with prejudice, and judgment should be entered against the Plaintiff.
I. The individual defendants were dismissed with prejudice; claims against them are now barred by res judicata.
The claims against the individual defendants were dismissed with prejudice, as was Plaintiffs 1985 claim. The only claim that was not dismissed with prejudice was Plaintiffs ADA claim against Klamath County; judgment as to this claim was entered in error. However, the Mandate from the 9th Circuit states: “Because it is not entirely clear that the deficiencies with Garcia-Herrera's official capacity claim against defendants Goritz and Gibbs could not be cured by amendment, we reverse the judgment and remand for the district court to provide Garcia-Herrera with an opportunity to amend his ADA claim only.” (#28-1). Therefore, in an abundance of caution, this Court presumes that Plaintiff was given leave to amend his ADA claim against Klamath County, as well as an ADA claim against defendants Goritz and Gibbs in their official capacities as commissioners of a special road district.
II. Plaintiffs claim against the County is not time-barred.
Defendant Klamath County argues that Plaintiffs claim is time-barred because a “statute of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice,” as “the original complaint is treated as if it never existed.” Cardio-Medical Assocs. v. Crozer-Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983). However, barring a claim from being re-plead due to the mistaken entering of a judgment - an error of the Court, not the Plaintiff -does not serve the interests of justice. The Court considers the statute of limitations to be equitably tolled during the pendency of the appeal process. Plaintiffs First Amended Complaint was filed on September 1, 2022, just 42 days after the Ninth Circuit Mandate was entered on this Court's docket. The Court considers this a timely filing.
III. Plaintiff fails to state a sufficient claim for relief under the ADA.
Plaintiffs First Amended Complaint fails to state a claim for discrimination under the ADA. To state such a claim under Title II, a plaintiff must plead: (1) he is a ‘qualified individual with a disability;' (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001).
The term “qualified individual with a disability” means an individual “with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” 42 USC § 12131(2). Plaintiff alleges that he is receiving social security disability benefits, and he alleges that he uses a cane, but he does not allege how or why he is a “qualified individual with a disability.” No allegations are provided to determine whether Plaintiff meets the essential eligibility requirements for the receipt of services or the participation in a program or activity provided by a public entity, or even what the eligibility requirements are to receive such services.
A. Plaintiff fails to state a claim against Defendants Goritz and Gibbs.
Plaintiff alleges that Defendants Goritz and Gibbs refused him snow-plowing services, but there are no allegations to indicate whether these individuals were acting in their official capacities as commissioners of the special road district (“SRD”), nor whether that SRD was even a public entity under the ADA. No facts are alleged as to whether SRD had a duty to provide snow plowing services, or whether Plaintiff otherwise qualified for eligibility for such services. Finally, the connection that is alleged between Plaintiffs disability and the alleged refusal to provide snow-plowing services is entirely conclusory and unsupported by any factual allegations. It is clear that an antagonistic relationship existed between Plaintiff and some members of the KFFEHOA board, but Plaintiffs allegations against Goritz or Gibbs fail to state a plausible claim for relief under the ADA that can be granted by the Court.
B. Plaintiff fails to state a claim against Klamath County.
Plaintiff alleges that the Klamath County Sheriffs Department and deputies were “in collusion” with the KFFEHOA board members to discriminate against Plaintiff, but Plaintiff has not alleged sufficient factual allegations to state a plausible claim for relief. First, Plaintiff alleges that Sheriffs deputies investigated and took seriously the allegations that Plaintiff vandalized the community well, but other than claiming that such allegations were “fraudulent,” Plaintiff states no facts to show that the deputies knew or should have known that the allegations were untrue or fraudulent, or that the deputies who questioned him took any actions that could be construed as misconduct or discriminatory.
Plaintiff does allege that he made complaints against KFFEHOA board members for allegedly violent or assaultive behavior, which he believes the Sherriff s Department ignored or condoned. Certainly, “the right to non-discriminatory administration of protective services is clearly established.” Elliot-Park v. Manglona, 592 F.3d 1003, 1008 (9th Cir. 2010). However, once again Plaintiff fails to allege facts to connect any of the actions taken by the deputies, or their lack of action, with his disability status. No allegations assert that the deputies knew or should have known about Plaintiffs disability status, let alone that this caused their inaction.
C. Prior dismissal gave notice of deficiencies; Plaintiff is unable to cure, and his case should be dismissed with prejudice.
The Court's prior F&R (#19) gave Plaintiff notice of the deficiencies of his Complaint. In particular, the Court noted that Plaintiff had not “pled the framework elements of an ADA Title II.” (#19). “He claims, in several instances, that Klamath County Sheriffs office and deputies failed to act on Plaintiffs behalf, but he does not draw any connection to his disability, nor does he allege any facts to show that he was entitled to any services being offered.” He claims that the Klamath County Sheriffs Office and deputies were in collusion with the Klamath Falls Forest Estates ("KFFE") board members, who he claims targeted him for his disability status, but he does not allege any facts to support this conclusion.”
Plaintiff has now had an opportunity to replead his claims and file an amended complaint, with the assistance of counsel, who filed the FAC prior to withdrawing from the case. The Court determines that Plaintiff has not and cannot cure the deficiencies of his claims.
RECOMMENDATION
For the reasons above, the defendants' motions (#40, 44) should be GRANTED. This case should be dismissed with prejudice and judgment should be entered for the defendants.
This Findings 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 entered. 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).