Opinion
6:19-cv-00420-MK
09-19-2022
VAN POUNDS, Plaintiff, v. CAMERON SMITH; BRIAN LIGHT; and OREGON DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Defendants.
FINDINGS AND RECOMMENDATION
KASUBHAI, UNITED STATES MAGISTRATE JUDGE:
Plaintiff Van Pounds, a lawyer proceeding pro se, filed this action against Defendants Cameron Smith (“Smith”), Brian Light (“Light”), and the Department of Consumer and Business Services (“DCBS”) alleging violations of his freedom of speech rights under both the U.S. Constitution and the Oregon Constitution. See First Am. Compl., ECF No. 49 (“FAC”). Defendants move to dismiss Plaintiff's claims under Fed.R.Civ.P. 12(b). Defs.' Mot. Dismiss, ECF No. 50 (“Defs.' Mot.”). Additionally, Plaintiff moves for sanctions under Fed.R.Civ.P. 11. Pl.'s Mot. Sanctions, ECF No. 55 (“Pl.'s Mot.”). For the reasons that follow, Defendants' motion should be GRANTED in part and DENIED in part and Plaintiff's motion should be DENIED.
FACTUAL BACKGROUND
The following facts are taken from Plaintiff's FAC and are accepted as true for the purpose of the pending motion. See FAC, ECF No. 49. Plaintiff has been an employee of DCBS since September 2011 and currently works as a Senior Policy Analyst. Id. ¶¶ 1, 8.
In 2015, DCBS investigated Plaintiff without his knowledge while he worked in a supervisory role. Id. ¶¶ 33, 38. The investigation resulted in a report (“2015 Report”) that found a disparate treatment complaint against Plaintiff to be without merit. Id. ¶ 33. However, the 2015 Report noted that “overwhelmingly, employees generally do not trust [Plaintiff]” and that “[Plaintiff] is generally found to be the least credible person in the unit.” Id. Plaintiff was never interviewed as part of the investigation. Id. ¶ 36. No adverse action was taken against Plaintiff as a result of the investigation. Id. ¶ 42. Plaintiff was never demoted or otherwise subjected to a disciplinary action. Id. ¶ 48.
In March 2018, Plaintiff decided to run for a seat on the Oregon Supreme Court. Id. ¶ 12. Plaintiff announced that he was “seeking to call attention to the process by which judges in Oregon get picked.” Id., Ex. 1. Plaintiff also wrote that, “[a]lthough the Oregon Constitution states that judges are to be elected by the voters of this state, the die is often cast long before any election” because “[a]s judicial vacancies occur, the governor unilaterally fills them by appointment” and “appointed judges thereafter gain the advantage of incumbency.” Id.
After Plaintiff filed his candidacy, a reporter named Nigel Jaquiss (“Jaquiss”) made a public records request to the Oregon Department of Administrative Services (“DAS”) for Plaintiff's employment files. Id. ¶ 14. Specifically, the request sought documents about Plaintiff's “titles[,] job classifications[,] and salaries from Jan[uary] 1[,] 2015 until now” because it was Jaquiss's understanding that Plaintiff “used to be the director of enforcement but was demoted to policy analyst in the past couple of years.” Id.
On March 9, 2018, Defendant Light received an email asking whether Plaintiff should be notified of the public records request. Id. ¶ 16. Defendant Light responded that DCBS did not have a written policy, “but we normally do let employees know about these types of requests, as a matter of courtesy.” Id., Ex. 3. In response, Defendant Smith advised Defendant Light that they should “connect this afternoon given sensitivities and any potential broader questions.” Id., Ex. 4. Later that day, DAS staff emailed Jaquiss the requested job and salary data and informed Jaquiss that any further questions should be directed to DCBS. Id., Ex. 5.
On March 22, 2018, Jaquiss emailed another public records request, this time to DCBS, seeking “written communication including but not limited to emails, correspondence, investigative reports or other documentation that explains the reasons for [Plaintiff's] demotion and pay cut.” Id. ¶ 20. Jaquiss wrote that Plaintiff's “employment history at the state [is] a matter of public interest” because Plaintiff was “running for a seat on the Oregon Supreme Court.” Id., Ex. 6.
On March 23, 2018, Defendant Light met with the Governor's Deputy Chief of Staff and the Governor's Workforce and Labor Policy Director to discuss the 2015 Report and its disclosure to Jaquiss. Id. ¶ 24. That same day, Defendant Smith forwarded Jaquiss's email and included a copy of the 2015 Report to the Governor's General Counsel, Deputy Chief of Staff, and Workforce and Labor Policy Director. Id. ¶ 25. In relevant parts, Defendant Smith's email read as follows:
As you are aware, one of DCBS team members, Van Pounds, is running for the Oregon Supreme Court....
Earlier this month, Nigel Jaquiss with Week requested information from DAS for [Plaintiff's] titles, job classifications and salaries since January 2015. Yesterday, [Jaquiss] followed up with DCBS [ ] with an additional request for public records relating to [Plaintiff's] shift from a manager position to a policy analyst position and any HR investigations.
There was an employee complaint in 2015 that [Plaintiff] treated men and women differently on his team. The resulting investigation did not find discrimination on the basis of gender, but did find challenges with his role as a manager for the team. [Plaintiff] has since transitioned from a manager role to a policy analyst position.
Our team has assembled the attached public records that will be sent to Nigel. They include the HR investigation and notes from interviews with employees in 2015 (with employee names redacted). We did consult DOJ for their advice and guidance on this record request.
Please don't hesitate to reach out if any questions.Id., Ex. 9. Plaintiff alleges Defendants Smith and Light “disclosed the [2015] Report to the governor's office staff with the knowledge or intent that such Report could or would be used to discredit Plaintiff and to impair Plaintiff's protected political speech.” Id. ¶ 27.
On March 26, 2018, Defendant Light informed Plaintiff that DCBS would disclose the 2015 Report to a news reporter in response to a public records request. Id. ¶ 31. Plaintiff had never seen the 2015 Report prior to March 26, 2018. Id. ¶ 38. When Plaintiff asked Defendant Light why this was being disclosed, Defendant Light allegedly responded, “that's what you get when you file for public office.” Id. ¶ 31. Plaintiff objected to the disclosure of the 2015 Report. Id. ¶ 40.
On March 26, 2018, at 8:53 P.M., Defendant Light emailed Defendant Smith and an Oregon Department of Justice (“DOJ”) attorney the following:
I've been thinking a lot about this public records request. Might we be providing information that we don't need to? The public records request is asking specifically for: “seeking written communication including but not limited to emails, correspondence, investigative reports or other documentation that explains the reasons for [Plaintiff's] demotion and pay cut.”
The [disparate treatment] complaint was not found to have merit, therefore it does not explain the reasons for [Plaintiff's] demotion and pay cut. No adverse action was taken on [Plaintiff] as a result of this investigation. The notes of the investigation were not reason for [Plaintiff's] demotion and pay cut, evidenced by the fact that [Plaintiff] had never heard of these notes until today. They obviously were not used for coaching purposes. [The] only thing we would have to provide are any emails, if they exist, discussing our desire to offer [Plaintiff] a terminal rotation and his decision to do so.Id., Ex. 11.
On March 27, 2018, the DOJ attorney emailed Defendant Light suggested language to send Plaintiff regarding a name clearing hearing. Id., Ex. 12. The attorney noted that “DCBS has a good argument that a name clearing hearing is NOT legally required” because “being a poor manager isn't the type of stigmatizing information typically covered by a name-clearing hearing.” Id. However, the attorney nevertheless recommended offering a name clearing hearing because “offering one anyway would undercut [Plaintiff's] ability to claim that failure to offer a name clearing hearing violated his rights.” Id. Later that day, Defendant Light sent Plaintiff an email to “offer [Plaintiff] the opportunity to request a name clearing hearing before we provide the [2015 Report] to the requesting party.” Id., Ex. 13. Defendant Light wrote Plaintiff: “if you would like to request a name clearing hearing, please let me know by close of business on March 28, 2018. If you do not request a hearing by that time, the documents will be provided to the requesting party on March 29.” Id.
On March 28, 2018, at 11:38 A.M., DCBS staff emailed Plaintiff's employment files, including the 2015 Report, to Jaquiss. Id., Ex. 14; Id. ¶ 46.
On April 7, 2018, Jaquiss called Plaintiff regarding an upcoming article and Plaintiff explained to Jaquiss that Plaintiff had not been demoted, that the 2015 Report was inaccurate, and that Plaintiff did not know the 2015 Report even existed. Id. ¶ 53.
On April 11, 2018, Jaquiss's newspaper published an article about Plaintiff with the following headline: “A state investigation of a candidate for the Oregon Supreme Court found him ‘the least credible person in the unit.'” Id. ¶ 54.
In the May 2018 primary election, Plaintiff received 26.5% of the vote and lost the election. Id. ¶ 57.
PROCEDURAL HISTORY
In March 2019, Plaintiff filed a complaint alleging violations of his rights to freedom of speech and due process. Compl., ECF No. 1. In May 2019, Defendants filed a motion to dismiss for failure to state a claim. See Defs.' Mot. Dismiss, ECF No. 8. In August 2019, this Court recommended that Defendants' motion to dismiss be granted and Plaintiff's complaint be dismissed with prejudice because it would have been futile to amend. See Findings and Recommendation (“F&R”), ECF No. 13. In September 2019, Judge Aiken adopted the Findings and Recommendation in its entirety. See Order, ECF No. 19. Plaintiff then filed a notice of appeal to the Ninth Circuit. See Notice of Appeal, ECF No. 34.
In August 2021, the Ninth Circuit reversed in part, affirmed in part, and remanded the district court's decision to dismiss the complaint with prejudice. See Pounds v. Smith, No. 20- 35154, 2021 WL 3667229, at *1 (9th Cir. Aug. 18, 2021); see also F&R, ECF No. 13. The Ninth Circuit held that DCBS's disclosure of the 2015 Report, which Plaintiff “alleged to contain false stigmatizing information, can constitute an adverse employment action that impermissibly chills protected speech.” Pounds, 2021 WL 3667229, at *1. The Ninth Circuit thus reversed the district court's dismissal of Plaintiff's First Amendment claim. Id. at *3. However, the Ninth Circuit affirmed the district court's dismissal of all other claims. Id. The Ninth Circuit also declined to reach the question of qualified immunity “given the underdeveloped record” at the motion to dismiss stage. Id. Plaintiff then filed a petition for a panel rehearing and a petition for rehearing en banc, both of which were denied. See Ninth Circuit Order, ECF No. 39.
In October 2021, Plaintiff filed a motion for leave to file an amended complaint. See Pl.'s Mot. Leave, ECF No. 42. Plaintiff also filed a bill of costs. See Pl.'s Bill of Costs, ECF No. 41. This Court granted both. See Opinion and Order, ECF No. 47.
On December 22, 2021, Plaintiff filed his FAC. See FAC, ECF No. 49. On December 28, 2021, Defendants filed a motion to dismiss Plaintiff's FAC. See Defs.' Mot., ECF No. 50. On January 21, 2022, Plaintiff filed a motion for imposition of sanctions under Fed.R.Civ.P. 11. See Pl.'s Mot., ECF No. 55. On April 28, 2022, the parties appeared before this Court for oral argument. See ECF No. 60.
STANDARD OF REVIEW
Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013). As such, a court is to presume “that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see also, e.g., Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of “subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed.R.Civ.P. 12(b)(1). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3); see also Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015) (noting that when a court lacks subject-matter jurisdiction, meaning it lacks the statutory or constitutional power to adjudicate a case, the court must dismiss the complaint, even sua sponte if necessary).
A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either “facial” or “factual.” See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual where ‘the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th Cir. 2013) (quoting Safe Airfor Everyone, 373 F.3d at 1039)). When a defendant factually challenges the plaintiff's assertion of jurisdiction, a court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Robinson, 586 F.3d at 685; Safe Air for Everyone, 373 F.3d at 1039. A factual challenge “can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (citation and quotation marks omitted).
II. Rule 12(b)(6)
A motion to dismiss under Rule 12(b)(6) for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
III. Rule 11(b)
Rule 11(b) provides that, by presenting to a federal court a pleading or other paper, any party-including an unrepresented party-certifies that:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.Fed. R. Civ. P. 11(b). The court's authority to impose sanctions under Rule 11 is discretionary. See Fed R. Civ. P. 11(c)(1) (“[T]he court may impose an appropriate sanction.”) (emphasis added); see also Gotro v. R & B Realty Grp., 69 F.3d 1485, 1488 (9th Cir. 1995) (noting that district courts have “wide discretion in determining whether Rule 11 sanctions are appropriate”).
If “the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation.” Fed.R.Civ.P. 11(b). An objective standard of reasonableness is applied to determinations of both frivolousness and improper purpose. Zaldivar v. City of Los Angeles, 780 F.2d 823, 830-31 (9th Cir. 1986), abrogated on other grounds by Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (1990). While the “improper purpose” and “nonfrivolous argument” standards are distinct grounds for the imposition of sanctions, “they will often overlap since evidence bearing on frivolousness or non-frivolousness will often be highly probative of purpose.” Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990) (en banc). Ultimately, “Rule 11 is an extraordinary remedy, one to be exercised with extreme caution.” Operating Engineers Pension Trust v. A-C Co., 859 F.2d 1336, 1345 (9th Cir. 1988).
DISCUSSION
Defendants move to dismiss Plaintiff's complaint because: (1) Defendants Smith and Light are entitled to qualified immunity; (2) DCBS cannot be held responsible for the protected acts of Defendants Smith and Light; (3) DCBS is not a proper defendant in that the remedy sought against DCBS is not ripe; (4) there can be no maintenance of any claims for violation of state law in this action; and (5) the punitive damages sought for the ACLU should be dismissed. Defs.' Mot. 5-10, ECF No. 50. For the reasons that follow, Defendants' motion should be GRANTED in part and DENIED in part.
A. Qualified Immunity
Defendants argue that Defendants Smith and Light are entitled to qualified immunity. Defs.' Mot. 5, ECF No. 50. Plaintiff argues Defendants Smith and Light violated a clearly established constitutional right and are therefore not entitled to qualified immunity. Pl.'s Resp. 6, ECF No. 53.
Qualified immunity “protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citation and internal quotations omitted). The purpose of qualified immunity is to “strike a balance between the competing ‘need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.'” Mattos v. Agarano, 661 F.3d 433, 440 (9th Cir. 2011) (quoting Pearson, 555 U.S. at 231). Qualified immunity “applies regardless of whether the government official's error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Pearson, 555 U.S. at 231 (citation and internal quotations omitted).
“Determining whether officials are owed qualified immunity involves two inquiries: (1) whether, taken in the light most favorable to the party asserting the injury, the facts alleged show the official's conduct violated a constitutional right; and (2) if so, whether the right was clearly established in light of the specific context of the case.” Robinson v. York, 566 F.3d 817, 821 (9th Cir. 2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Courts may exercise their discretion in deciding which prong to address first “as they are in the best position to determine the order of decisionmaking that will best facilitate the fair and efficient disposition of each case.” Pearson, 555 U.S. at 242.
Whether an official is entitled to qualified immunity “generally turns on the objective legal reasonableness of the action assessed in light of the legal rules that were clearly established at the time it was taken.” Anderson v. Creighton, 483 U.S. 635, 639 (1987) (citations and internal quotations omitted). “For a right to be ‘clearly established,' existing ‘precedent must have placed the statutory or constitutional question beyond debate,' such that ‘every' reasonable official, not just ‘a' reasonable official, would have understood that he was violating a clearly established right.” Thompson v. Rahr, 885 F.3d 582, 587 (9th Cir. 2018) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (emphasis in original). In other words, “the rule must be ‘settled law,' meaning it is ‘dictated by controlling authority or a robust consensus of cases of persuasive authority.'” Nunes v. Arata, Swingle, Van Egmond & Goodwin (PLC), 983 F.3d 1108, 1112 (9th Cir. 2020) (quoting Kisela v. Hughes, 138 S.Ct. 1148, 1153 (2018)). “There need not be a ‘case directly on point,' but existing precedent must place the statutory or constitutional question ‘beyond debate.'” Id. (quoting Kisela, 138 S.Ct. at 1152).
The Ninth Circuit has cautioned that “[d]etermining claims of qualified immunity at the motion-to-dismiss stage raises special problems for legal decision making.” Keates v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018) (citing Wong v. United States, 373 F.3d 952, 956-57 (9th Cir. 2004)). The Ninth Circuit has also observed that, by considering qualified immunity at the pleadings stage, “the courts may be called upon to decide far-reaching constitutional questions on a nonexistent factual record.” Wong, 373 F.3d at 957.
Defendants argue they “are entitled to qualified immunity because there is simply no reason to conclude they had any choice in the matter of the document disclosure” because their action “was set forth in state statutes.” Defs.' Mot. 7, ECF No. 50. Defendants emphasize that the “issue is not whether or not [P]laintiff has a right to free speech” but rather “whether [D]efendants, in releasing public records that were not exempt from disclosure, knowingly violated that right.” Defs.' Reply 5, ECF No. 54. Plaintiff asserts the Oregon public records law did not “authorize, much less require, [Defendants'] disclosure of [the 2015] Report to Plaintiff's political opponents.” Pl.'s Resp. 10, ECF No. 53.
In his FAC, Plaintiff alleges that Defendants released public records outside the scope of the reporter's request in retaliation for Plaintiff's political speech. See FAC ¶¶ 65-69. Specifically, Plaintiff alleges the Oregon public records law “speaks only in terms of requested records” and “does not mention, much require, the disclosure of records that have not been requested.” Id. ¶ 69.
Taking Plaintiff's allegations as true and construing them in the light most favorable to Plaintiff, Defendants' alleged decision to go beyond the scope of the reporters' request in retaliation for Plaintiff's protected speech could have plausibly violated Plaintiff's clearly established rights. However, as the Ninth Circuit has observed, the record in this case is underdeveloped and determining whether Defendants are entitled to qualified immunity is not appropriate at this time. See Ninth Circuit Memo. 7, ECF No. 35; Pounds, 2021 WL 3667229, at *1 (declining to reach Defendants' qualified immunity argument “given the underdeveloped record” at the motion to dismiss stage); see also Keates, 883 F.3d at 1234 (“Determining claims of qualified immunity at the motion-to-dismiss stage raises special problems for legal decision making.”). As such, Defendants' motion should be denied.
B. DCBS as Defendant
Defendants argue that DCBS cannot be held responsible for the protected acts of Defendants Smith and Light. Defs.' Mot. 8, ECF No. 50. Their sole argument is that because Defendants Light and Smith must necessarily be dismissed, no liability can attach to DCBS. Defendants' argument is unavailing because Defendants Smith and Light are not entitled to qualified immunity at this time. As such, Defendants' motion should be denied.
C. State Law Claims
Defendants argue that Plaintiff's request for this Court to “find that Defendants violated Plaintiff's constitutional, statutory and common law rights” fails because: (1) Plaintiff does not identify which statutory or common law rights he is invoking, and (2) to the extent Plaintiff means state law statutory or common law rights, they cannot be enforced by this court. Defs.' Mot. 10, ECF No. 50.
Because Plaintiff has not articulated which statutory and common law rights he is asserting, Defendants' motion should be granted as to Plaintiff's state law claims arising under any statutory or common law rights.
D. Punitive Damages
Defendants argue Plaintiff's remedy sought for the ACLU should be dismissed because: (1) no allegation explains how the ACLU was damaged by the underlying facts; (2) no allegation establishes standing; and (3) the ACLU is not a party. Defs.' Mot. 10, ECF No. 50. Plaintiff asks that “Defendants Smith and Light shall, jointly and severally, pay to Plaintiff and the American Civil Liberties Union of Oregon, apportioned as may be appropriate, the sum of Seven Hundred Thousand Dollars ($700,000.00) as punitive damages[.]” FAC 24, ECF No. 49.
The Court finds that the remedy sought for the ACLU is inappropriate given that the ACLU is not a party to this case, no allegation explains how the ACLU was damaged by the underlying facts, and no allegation establishes the ACLU's standing. As such, Defendants' motion should be granted as to Plaintiff's request for punitive damages to be awarded to the ACLU.
II. Rule 12(b)(1)
Defendants argue that Plaintiff's claims against DCBS fail because “no present relief can be granted, and the matter is not ripe for disposition.” Defs.' Mot. 9, ECF No. 50. Plaintiff argues injunctive relief against DCBS “is both timely and appropriate” because: (1) Defendants have not previously raised the issue with the Court; and (2) DCBS, acting through its employees, “has demonstrated a propensity to secretly create and maintain disparaging personnel records” and “to weaponize the disclosure of such records.” Pl.'s Resp. 12, ECF No. 53.
Ripeness is “designed to ensure that courts adjudicate live cases or controversies and do not ‘issue advisory opinions [or] declare rights in hypothetical cases.'” Bishop Paiute Tribev. Inyo Cty., 863 F.3d 1144, 1153 (9th Cir. 2017) (quoting Thomas v. Anchorage Equal Rights Comm'n, 220 F.3d 1134, 1138 (9th Cir. 2000) (en banc)). The ripeness doctrine is “drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction[.]” National Park Hosp. Ass'n v. Department of Interior, 538 U.S. 803, 808 (2003) (quoting Reno v. Catholic Social Services (“CSS”), Inc., 509 U.S. 43, 57 n.18 (1993)). “Ripeness has two components: constitutional ripeness and prudential ripeness.” In re Coleman, 560 F.3d 1000, 1004-05 (9th Cir. 2009) (citing Thomas, 220 F.3d at 1138).
“The constitutional component of the ripeness inquiry is often treated under the rubric of standing and, in many cases, ripeness coincides squarely with standing's injury in fact prong.” Thomas, 220 F.3d at 1138. That prong requires a plaintiff to identify “an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.” Clark v. City of Seattle, 899 F.3d 802, 809 (9th Cir. 2018) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)) (internal quotations omitted). “For an injury to be particularized, it must affect the plaintiff in a personal and individual way. For an injury to be concrete, it must actually exist; in other words, it is real, and not abstract. Intangible harms and a risk of real harm can be sufficiently concrete.” Id. at 809-10 (internal citations and quotations omitted).
The prudential component of ripeness “is guided by two overarching considerations: the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Bishop Paiute Tribe, 863 F.3d at 1154 (citation and internal quotations omitted). Those prudential considerations are discretionary and look “to whether the case presents a concrete factual situation or purely legal issues.” Id. (citation and internal quotations omitted).
In his FAC, Plaintiff asks that “Defendants Smith, Light and DCBS shall be permanently enjoined from using public records or the Oregon Public Records Law in a manner that serves to chill and deter Plaintiff or any other state employees from exercising their freedom of speech, including their right to file for public office or to express their personal political views[.]” FAC 25, ECF No. 49.
Here, Plaintiff has failed to identify an invasion of a legally protected interest that is actual or imminent, not just conjectural or hypothetical. Plaintiff's assertion that “DCBS has demonstrated a propensity to weaponize the disclosure” of “disparaging personnel records” does not rise above mere speculation. Pl.'s Resp. 12, ECF No. 53; see also Clark, 899 F.3d at 809. As such, this matter is not ripe as to DCBS. Because Plaintiff's only remedy sought of DCBS is injunctive relief, Defendants' motion should be granted as to Plaintiff's claims against DCBS.
III. Rule 11 Sanctions
Plaintiff argues sanctions against Defendants' counsel are appropriate because: (1) “in filing his most recent motion to dismiss, counsel has engaged in conduct that is intended to harass and annoy, cause unnecessary delay and needlessly increase the cost of litigation, in violation of FRCP 11(b)(1)”; and (2) “in filing his most recent motion to dismiss, counsel has continued to make legal contentions that are not warranted by the facts or by existing law, in violation of FRCP 11(b)(2).” Pl.'s Mot. 1, ECF No. 55. Plaintiff emphasizes that “counsel's motion to dismiss is inaccurate and misleading, and utterly without merit.” Pl.'s Reply 6, ECF No. 57.
Here, because the Court recommends partially granting Defendants' motion, the Court finds that Rule 11 sanctions are not appropriate. As such, Plaintiff's motion should be denied.
RECOMMENDATION
For the reasons above, Defendants' motion (ECF No. 50) should be GRANTED in part and DENIED in part and Plaintiff's motion (ECF No. 55) should be DENIED.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. 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, 1157 (9th Cir. 1991).