Opinion
3:22-cv-00303-JR
11-09-2022
MELVIA WILSON, Plaintiff, v. OREGON DEPARTMENT OF HUMAN SERVICES, FARIBORZ PAKSERESHT, CAROLINA CABALLERO, LESSONIA ODIGHIZUWA, JENNIFER DEVANE, ALEXIS ALBERTI, LINDA DELISLE, CHARLIE JENKINS, and REGINALD RICHARDSON, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Defendants the Oregon Department of Human Services (“DHS”), Fariborz Pakseresht, Carolina Caballero, Lessonia Odighizuwa, Jennifer Devane, Alexis Alberti, Linda DeLisle, Charlie Jenkins, and Reginald Richardsonmove to dismiss pro se plaintiff Melvia Wilson's complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons explained below, defendants' motion should be granted.
Each of the individually named defendants worked for DHS during the relevant timeframe.
BACKGROUND
Plaintiff runs a foster home. Compl. 15 (doc. 1).Between November 2013 and February 2014, DHS placed a youth, W.M., with plaintiff. Id. at 4. DHS calculated a foster care reimbursement payment associated with W.M., the amount of which corresponded to the assigned “level of care” provided through a Child Assessment of Needs and Strengths (“CANS”). Id. at 15; Defs.' Mot. Dismiss 3 (doc. 21). Generally, a higher CANS score corresponds with a greater level of required care for the youth, and a higher reimbursement payment. Compl. 15 (doc. 1).
Plaintiff's complaint and response do not include page or paragraph numbers, such that the Court refers to the page numbers assigned in the docket.
Plaintiff also includes several emails discussing two other foster children, L. and A.V. Compl. 20-23 (doc. 1). The complaint contains no information or allegations of wrongdoing related to these children. In any event, plaintiff has made allegations of misconduct against DHS with respect to L. and A.V. in her other case currently pending before this Court (i.e., Case No. 3:20-cv-1819-JR), which emanates from the agency's alleged mistreatment of her throughout her time as a foster care provider, including reducing her reimbursement payments and misrepresenting the care level needs of incoming foster children. After initial motions practice, plaintiff's other case is now proceeding on her Or. Rev. Stat. § 659A.199, 42 U.S.C. § 1983, and breach of contract claims.
The CANS score for W.M. was 0 (i.e., the lowest possible score), which plaintiff argued was too low. Id. at 6, 15. According to plaintiff, there was “absolutely no way” that score was accurate because W.M. was diagnosed with autism and had a number of behavioral problems. Id. at 6. Plaintiff reported these behavioral issues to DHS but W.M.'s CANS score was not changed. Id.
Separately, in 2014, DHS informed plaintiff it made an accidental overpayment to her account and, as a result, she owed $657.95 to the agency. Pl.'s Resp. to Mot. Dismiss (“Pl.'s Resp.”) 26-27 (doc. 24). Plaintiff met with “ODHS Administrators” in 2014 and defendant Richardson in 2016 to dispute the debt, but she was not given relief. Id.
On August 12, 2021, the Oregon Department of Revenue, “acting on DHS's behalf,” garnished $122.10 - which included a “$50 garnishment processing fee” - to partially satisfy the debt. Id. at 19; Compl. 6 (doc. 1). The Oregon Department of Revenue mistakenly garnished her foster son's account because plaintiff appeared to be the account owner. Pl.'s Resp. 27 (doc. 24). Plaintiff informed DHS of the error and it issued her a refund of $72.10. Id.
On August 24, 2021, plaintiff tendered a check for $595.85 to the Department of Revenue. Id. On the check, plaintiff wrote: “paid under duress. If tendered and it is proven I do not owe this debt DHS/DD will pay undisputed amount of $5,000,000[.] I ask you to investigate this debt!” Id. at 9. In response, DHS informed plaintiff that the $72.10 garnished from her foster son's account was “added back” to her debt and remained outstanding. Id. at 9, 27.
On February 11, 2022, plaintiff filed a pro se complaint in this Court asserting: “Wrongful garnishment, multiple DHS/DD misconducts, intentional inflection of harm to me, gross negligence, stalling tactic for procedural due process, gross misconduct for assessment of CANS, abandonment of youth placed in my home, inequality of pay, inequality of placement support.” Compl. 5 (doc. 1). As relief, plaintiff “requests this Court enforce notarized terms clearly written on face of cashiers check.” Id.
STANDARD
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.Twombly, 550 U.S. 544, 570 (2007). For purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). However, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court may instruct the pro se litigant regarding deficiencies in the complaint and grant leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). However, a pro se plaintiff's claims may be dismissed without leave to amend when it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
DISCUSSION
Defendants argue that dismissal is warranted because: (1) any “state law tort claims or § 1983 claims” are time-barred; and (2) plaintiff “fails to state any other cognizable claims for relief.” Defs.' Mot. Dismiss 6-10 (doc. 21). In response, plaintiff provides a number of additional facts and “evidence,” and also requests the appointment of pro bono counsel.
“‘[N]ew' allegations contained in the [plaintiff's] opposition . . . are irrelevant for Rule 12(b)(6) purposes.” Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998). That is, “[i]n determining the propriety of a Rule 12(b)(6) dismissal, a court may not look beyond the complaint to a plaintiff's moving papers, such as a memorandum in opposition to a defendant's motion to dismiss.” Id. (citation omitted). Further, plaintiff need not include any evidence or purported proof of her claims at this stage of the proceedings because the Court accepts all well-plead factual allegations as true. The Court therefore disregards the facts first articulated in plaintiff's response for the purposes of defendants' motion (although the Court does include them to the extent relevant to the background of this case), especially because many of those allegations form the basis of her other lawsuit.
I. Relevant Timeframe
Plaintiff raises a variety of claims stemming from her time as a foster parent between 2013-2014, including “intentional infliction of emotional harm,” “gross negligence,” “inequality of pay,” and “inequality of placement support.” Compl. 5 (doc. 1).
In Oregon, negligence, intentional infliction of emotional distress, and 42 U.S.C. § 1983 claims are subject to a two-year statute of limitations. SeeSain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2004) (citing Or. Rev. Stat. § 12.110). The limitations period begins to accrue when a plaintiff has “a complete and present cause of action,” which means that the “plaintiff can file suit and obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007). A claim is “discovered” under federal law “when the plaintiff knows or has reason to know of the injury which is the basis of the action.” TwoRivers v. Lewis, 174 F.3d 987, 991-92 (9th Cir. 1999).
Plaintiff argues “[t]he statute of limitations for this 2013-2014 issue was lifted on January 27, 2020, when [D]HS made a behavioral allegation against me as written within my 2020-2022 Recertification Home Study Report,” which reduced her foster care certification capacity from four children to one. Pl.'s Resp. 11-12 (doc. 24).
However, DHS submitted the 2020 Recertification Home Study Report six years after issues surrounding W.M. and the debt transpired, and that report is almost exclusively related to plaintiff's care of youth K.G., which began in 2017. Id. at 46. DHS conducts certification renewal assessments every third year to determine areas of concern about the foster parent, or whether previously identified areas of concern have been addressed or mitigated. See, e.g., id. at 50.
In other words, DHS's 2020 report and the resulting decrease in plaintiff's foster care capacity is a discrete act that is separately actionable from plaintiff's allegations of misconduct related to her care of W.M. in 2013-2014, or the debt emanating from the 2014 accidental overpayment. SeeNat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002) (“discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges”); see also Bird v. Dep't of Human Servs., 935 F.3d 738, 746-48 (9th Cir. 2019), cert denied, 140 S.Ct. 899 (2020) (noting that the continuing violations doctrine applies “to bar § 1983 claims predicated on discrete time-barred acts, not-withstanding that those acts are related to timely-filed claims”) (citations and internal quotations omitted). Therefore, the continuing violations doctrine is inapplicable, and the regular discovery rule of accrual applies.
Indeed, plaintiff challenges DHS's 2020 foster care capacity reduction in her other case.
Plaintiff admittedly knew of defendants' alleged misconduct in 2013 and 2014 when it first occurred. See Compl. 6 (doc. 1); Pl.'s Resp. 5-10 (doc. 24). As a result, the fact that plaintiff may not have realized the full extent of her injury until a later date is irrelevant. SeeStanley v.Tr. of Cal. State Univ., 433 F.3d 1129, 1136 (9th Cir. 2006) (“[t]he proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful”) (quoting Abrahamson v. Univ. of Haw., 594 F.2d 202, 209 (9th Cir. 1979)).
In sum, the statute of limitations precludes consideration of the alleged wrongfulness of defendants' 2013-2014 actions. Defendants' motion to dismiss should be granted in this regard.
II. Unlawful Garnishment Claim
Plaintiff alleges DHS wrongfully assessed a debt against her, and that the Oregon Department of Revenue, acting on DHS's behalf, attached the garnishment for that debt to the wrong bank account.
To state a claim for unlawful garnishment, a plaintiff must show, at a minimum, that her own property was seized. SeeMills v. Liquidators, 206 Or. 212, 217, 288 P.2d 1060 (1955) (“An action for wrongful attachment is in the nature of an action in trespass for conversion of personal property[.]”); Washington v. Heid, 264 Or. 179, 180, 504 P.2d 745 (1972) (action for damages for the “alleged wrongful garnishment of plaintiff's wages”); see also Yagman v. Whittlesey, 2013 WL 4760968, *5 n.4 (C.D. Cal. Apr. 9, 2013), aff'd, 641 Fed.Appx. 683 (9th Cir. 2016) (“Plaintiff's bank account was never garnished for purposes of collecting the instant debt. Thus, Plaintiff's account was never ‘garnished,' and he has failed to allege sufficient factual matter, taken as true, to plausibly state a claim for relief.”).
In addition, a plaintiff must show (1) lack of probable cause, and (2) malice. Crouter v.United Adjusters, Inc., 259 Or. 348, 358, 485, P.2d 1208 (1971). A plaintiff can demonstrate “malice” with evidence of a “motive other than that of securing an adjudication of the claim on which the action was based.” Id. at 362-63.
Here, plaintiff has not met the threshold requirement to state a claim for unlawful garnishment because she does not allege that her own funds were seized. Rather, plaintiff's filings reflect that the garnishment was placed on her foster child's account. Further, the complaint does not identify the amount of the underlying debt, the reason for the debt, how the debt was determined, or who determined it. The complaint similarly contains a dearth of facts surrounding the garnishment itself. For this reason alone, plaintiff fails to state a plausible claim for wrongful garnishment.
Consideration of the additional facts included in plaintiff's response does not cure these defects. A September 10, 2021, email from defendant Pakseresht indicates that plaintiff's debt was assessed due to an incidental overpayment. Pl.'s Resp. 26 (doc. 24). Specifically, DHS stated:
The underlying basis of this debt is that you provided care for a child in 2014 who left your care mid-month, but you were paid for the entire month (through the
I/DD program in the CBC system) . . . I understand that your foster son's bank account was garnished. It appears that that account was garnished because you appeared to be the account owner to the Oregon Department of Revenue. Upon learning that the account belonged to your foster son the agency has asked that his account not be garnished. A refund was issued for the money withdrawn. A check for $72.10 is being sent to you to replace those funds. The amount garnished from his account will be added back to the debt you owe . . . You may contact the Department of Revenue for an explanation as to [the assessed amount subject to garnishment].Id. at 26-28. Back in 2014, plaintiff apparently acknowledged this debt and agreed to a repayment plan, but then failed to sign a written repayment agreement. Id. at 27. Nevertheless, DHS's documents “show payments on this debt began on December 24, 2018, and continued to May 18, 2020,” after which plaintiff defaulted. Id. Accordingly, the Department of Revenue passed the debt along to forced collections. Id.
On September 16, 2021, plaintiff responded to defendant Pakseresht's email, stating that “DHS is entrenched in racism” and she has been “the recipient of inequality.” Id. at 31. She then elaborated upon how DHS's flawed CANS determinations contributed to the alleged overpayments. Id. at 31-32.
These additional facts do not establish a malicious motive or that DHS instructed the Oregon Department of Revenue to garnish plaintiff's funds, let alone the wrong account, for an improper reason. Defendants' motion should be granted as to plaintiff's wrongful garnishment claim.
III. Pro Bono Attorney Request
Plaintiff also requests the appointment of pro bono counsel via her response brief. Pl.'s Resp. 16 (doc. 24). Initially, “[m]otions may not be combined with any response, reply, or other pleading.” LR 7-1(b). Moreover, the Court has previously denied plaintiff's requests for pro bono counsel on two occasions. See generally Order (Mar. 28, 2022) (doc. 8); Order (Aug. 4, 2022) (doc. 23). And, as discussed herein, plaintiff's claims emanating from events that transpired in 2013-2014 are time-barred. Therefore, the complexity of the case has diminished and the legal issues involved in the unlawful garnishment claim are not of such a nature that plaintiff cannot adequately proceed pro se at this juncture. In so finding, the Court notes that plaintiff had the benefit of counsel in regard to the dispositive complaint filed in her other lawsuit, and was further instructed in this case “to seek the advice of counsel in the prior action as to whether any possible claims regarding garnishment should be asserted in the amended complaint.” Order 3 (Mar. 28, 2022) (doc. 8).
RECOMMENDATION
For the foregoing reasons, defendants' Motion to Dismiss (doc. 21) should be granted. Any motion to amend the complaint must conform with this Findings and Recommendation and Fed.R.Civ.P. 8(a), and be filed within 30 days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.