Opinion
3:20-cv-1819-JR
09-02-2022
MELVIA WILSON, Plaintiff, v. STATE OF OREGON, DEPARTMENT OF HUMAN SERVICES, MULTNOMAH COUNTY, JENNIFER COBB, NATALIE TAYLOR, HEATHER KILMER, Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE
Plaintiff brought this action alleging various state and federal claims against the State of Oregon Department of Human Services (DHS) and Multnomah County defendants regarding their alleged mistreatment of her foster care facility.
BACKGROUND
Plaintiff initiated this action, through counsel, on August 24, 2021, in the Circuit Court of the State of Oregon for the County of Multnomah. In that complaint, plaintiff asserted the following claims: violation of Oregon's whistleblowing law against DHS; violation of her due process rights against defendants Natalie Taylor, Heather Kilmer, and Jennifer Cobb; negligence against DHS and Multnomah County, breach of the duty of good faith and fair dealing against DHS; and injunctive relief against DHS and Multnomah County. Complaint (ECF 1-1). Defendants removed the complaint to this Court on October 21, 2020.
During the relevant time period, defendant Taylor was employed by DHS as a Foster Home Certifier in Portland, Oregon. Defendant Kilmer was employed by DHS as CW line manager in Portland. Defendant Cobb was employed by Multnomah County as an intellectual development and disabilities services coordinator.\
In December 2020, both the State and County defendants moved to dismiss. On March 4, 2021, the Court issued a Findings and Recommendation (F&R) recommending that the motions to dismiss be granted, but that plaintiff be allowed leave to amend to address deficiencies in the complaint. (ECF 23). The Court adopted the F&R on April 8, 2021. However, on March 18, 2021, plaintiff, through counsel, filed her first amended complaint.
In the first amended complaint, plaintiff asserted: (1) violation of Oregon's whistleblowing law against DHS and the State of Oregon; (2) violation of due process rights against defendants Taylor and Kilmer; (3) violation of due process rights against defendant Cobb; (4) negligence per se against DHS and the State of Oregon; (5) negligence per se against Multnomah County; (6) breach of the duty of good faith and fair dealing against DHS and the State of Oregon; and (7) injunctive relief against DHS, the State of Oregon, and Multnomah County. (First Amended Complaint (ECF 25).
On April 15, 2021, the State and County defendants moved to dismiss the amended complaint. On April 27, 2021, plaintiff's counsel sought an extension of time to respond due to a heavy workload. The Court allowed the extension, allowing plaintiff until May 28, 2021, to file a response.
On May 24, 2021, plaintiff's counsel sought to withdraw citing plaintiff's desire to obtain new counsel. (ECF 38). On May 25, 2021, the Court granted the motion to withdraw and ordered plaintiff to advise the Court within 30 days whether new counsel has been secured or if she intended to proceed pro se. The Court also extended plaintiff's time to respond to the motions to dismiss until June 28, 2021.
On June 14, 2021, plaintiff moved for an extension of time until July 26, 2021 to obtain new counsel. (ECF 43). On June 15, 2021, the Court granted the motion.
On July 19, 2021, the Court, noting that plaintiff failed to seek an extension of time to respond to the motions to dismiss when moving to extend time to secure new counsel, on its own motion, allowed plaintiff until August 9, 2021 to respond to the motions to dismiss.
On July 21, 2021, plaintiff again moved to extend time to secure new counsel. (ECF 48). On July 30, 2021, the Court granted the motion and allowed plaintiff until August 26, 2021 to obtain new counsel or advise the Court that she intends to proceed pro se. The Court warned plaintiff that no further extensions would be allowed absent good cause. Again, because plaintiff failed to seek an extension of time to respond to the motions to dismiss, the Court, on its own motion, allowed plaintiff until September 9, 2021 to respond to the motions to dismiss.
Plaintiff did not obtain new counsel. On September 29, 2021, twenty days after responses to the motion to dismiss were due, plaintiff submitted a second amended complaint. (ECF 52). The Court construed the filing as seeking leave to amend and denied the motion as untimely and prejudicial due to the pending motions to dismiss. Moreover, the Court noted the futility of the amended complaint in light of the arguments made in the then pending motions to dismiss.
On January 20, 2022, the Court granted the Multnomah County defendants' motion to dismiss all claims against them and the State defendants' motion to dismiss the state law claims against them. (ECF 53, 57). The state law and due process claims against the Multnomah County defendants were dismissed with prejudice. With the exception of the whistleblowing claim, the state law claims against the State were also dismissed with prejudice. The Court's denial of leave to amend was made without prejudice allowing plaintiff to seek leave to amend to pursue a First Amendment claim and a breach of contract claim. (ECF 57).
The State defendant did not move to dismiss the whistleblowing claim.
The Court appointed counsel for the limited purpose of filing the amended complaint. Plaintiff, through counsel, filed a third amended complaint on May 2, 2022. Defendant Jennifer Cobb moves to dismiss the claim against her. Plaintiff moves to appoint counsel but has filed two responses to the motion to dismiss. For the reasons stated below, the motion to dismiss should be denied and the motion to appoint counsel is denied.
DISCUSSION
A. Defendant Cobb's Motion to Dismiss
As noted above, defendant Cobb was employed by Multnomah County in its intellectual development disabilities department (IDD) as a services coordinator. In the third amended complaint, plaintiff also asserts defendant Cobb is an agent of DHS.
As noted in the Court's previous orders, plaintiff owns and operates a foster home providing foster care to children in Multnomah County and is licensed by DHS to provide foster care services. Plaintiff brought this action asserting that DHS regularly reduces her payments without cause. Plaintiff further asserts DHS and IDD repeatedly misled her regarding the length of time that clients would be placed in her care, the care level required, and failed to provide required support. In addition, plaintiff asserts that after complaining about these issues, DHS reduced her client capacity resulting in loss of income.
Plaintiff's third amended complaint alleges:
In June of 2019, foster children A.V. and R.V. were placed in Ms. Wilson's care on a short-term basis. Both A.V. and R.V. were IDD children, Defendant Cobb was assigned as their IDD service coordinator through Multnomah County to provide DHS benefits as an agent of DHS. Ms. Wilson was unaware that A.V. and R.V. were short term placements because Defendant Cobb-acting as an agent of DHS-and DHS purposefully and knowingly lied to Ms. Wilson because they wanted to place A.V. and R.V. in Ms. Wilson's home despite the fact that Ms. Wilson repeatedly told them that she only wanted long-term placements.
When placed in Ms. Wilson's care, A.V. was receiving benefit payments of $1,744 per month. Ms. Wilson believed that this payment was too low and requested a new SNAP evaluation. Defendant Cobb (in her capacity as agent for DHS) did not allow Plaintiff to fully complete the SNAP application. Ms. Wilson was lied to by DHS and its agent Defendant Cobb regarding the SNAP process, was informed that the benefits were being decreased to $996.31 based upon questions answered by Ms. Wilson, but Ms. Wilson was not allowed to submit a complete questionnaire, and was misled regarding her ability to contest the adverse SNAP determination. Ms. Wilson escalated her concerns to state level administrators who similarly failed to adequately notify Ms. Wilson of her rights and recourse to contest the determination, in violation of Ms. Wilson's constitutional rights.
Similarly, Ms. Wilson applied for benefit payments for A.V. To do so, Ms. Wilson needed to create an eXPRS account. DHS-through its agent Defendant Cobb-misled Ms. Wilson during the enrollment process to delay enrollment because DHS and Defendant Cobb knew A.V. was a short-term placement, and any delay would allow DHS to pay Ms. Wilson less money than was due to her under the relevant administrative rules and statutes.
In August of 2019, DHS agents and employees, including Defendants Cobb and Kilmer-annoyed by Ms. Wilson's repeated requests for assistance, including SNAP requests and benefit payment adjustments-decided DHS would no longer place IDD foster children in Ms. Wilson's care, which constituted an informal condition imposed on Ms. Wilson's certificate in violation of OAR 411-346-0220.
Third Amended Complaint (ECF 71) at ¶¶ 22-25.
Plaintiff asserts defendant Cobb violated her First Amendment rights by taking:
an adverse action against Ms. Wilson by wrongfully withholding and reducing benefits, and denying a SNAP assessment, because Ms. Wilson made protected statements to the State of Oregon and DHS and other governmental agencies concerning the public benefits, level of care, and compensation being provided in connection raising her foster children. In so doing, Defendant Cobb, an employee of Multnomah County, was acting as an agent of the State of Oregon and DHS.Id. at ¶ 86
Plaintiff further asserts defendant Cobb's actions chilled the exercise of her First Amendment rights by sending “a message that if a foster parent is too zealous an advocate, or too annoying in seeking appropriate benefits, they will be denied access to those benefits as well as be retaliated against for their actions.” Id. at ¶ 87.
Defendant Cobb moves to dismiss the First amendment claim against her arguing plaintiff fails to allege any retaliatory action on the part of Cobb or that Cobb knew of any purported protected statements.
Assuming without deciding that plaintiff is not considered a public employee whose alleged protected statements were made pursuant to her official duties, to state a First Amendment Claim, plaintiff must plausibly allege “that (1) [s]he was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity, and (3) the protected activity was a substantial or motivating factor in the defendant's conduct.” O'Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016) (quoting Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006)). To ultimately “prevail on such a claim, a plaintiff must establish a ‘causal connection' between the government defendant's ‘retaliatory animus' and the plaintiffs ‘subsequent injury.'” Nieves v. Bartlett, 139 S.Ct. 1715, 1722 (2019) (quoting Hartman v. Moore, 547 U.S. 250, 259, (2006)). Specifically, a plaintiff must show that the defendant's retaliatory animus was “a ‘but-for' cause, meaning that the adverse action against the plaintiff would not have been taken absent the retaliatory motive.” Id. (quoting Hartman, 547 U.S. at 260.
Arguably, plaintiff's statements concerning SNAP evaluations and the SNAP process were constitutionally protected statements. See Hartman, 547 U.S. at 256 (“[T]he law is settled that as a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions ... for speaking out.”); Ford v. City of Yakima, 706 F.3d 1188, 1192-93 (9th Cir. 2013) (“While an individual's critical comments may be provocative and challenging, they are nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.”) (Internal quotations omitted).
Although it is unclear if plaintiff actually ceased her complaints about SNAP benefits as a result of the adverse conduct, plaintiff plausibly alleges the conduct of refusing to place IDD foster children in her care would chill a reasonable person from engaging in the activity of complaining about appropriate benefits for foster children.
Defendant Cobb argues that it is unclear if the alleged retaliatory conducted occurred after or before the complaints, but nonetheless insists that even if before, mere timing is insufficient to allege a causation. While that may be true for purposes of a summary judgment motion, for purposes of a motion to dismiss, it is sufficient that plaintiff alleges defendants violated the administrative rules following her complaints regarding SNAP benefits. See Capp v. Cnty. of San Diego, 940 F.3d 1046, 1058 (9th Cir. 2019) (Plaintiff's allegation that Defendants were purely motivated by their desire to retaliate against him, acted without proper reason or authority, and made false and misleading statements to retaliate against him and in order to unduly influence and threaten another to file an application with the Family court is sufficient to plead causation).
However, defendant Cobb asserts there are no allegations she knew of the complaints or held any animus. Defendant Cobb further argues the purported adverse action could only be taken by DHS. However, plaintiff specifically alleges Cobb provided misleading information, refused to allow plaintiff to fully complete the SNAP application, was annoyed by repeated requests for assistance including SNAP requests, and decided DHS would no longer place IDD foster children in her care. Cobb asserts that plaintiff merely offers a conclusory allegation that she acted as an agent for DHS, but plaintiff asserts that because Multnomah County operates as a Community Developmental Disabilities Program (CDDP) for which defendant Cobb works, DHS has executed a contract with Cobb to serve as its agent. Third Amended Complaint (ECF 71) at ¶ 7, FN 1; See Or. Admin. R. 411-320-0010 (A CDDP providing developmental disabilities services under a contract with the Department is required to meet the basic management, programmatic, and health, safety, and human rights regulations in the management of the community service system for individuals with intellectual or developmental disabilities.) (Emphasis added). Whether a contract exists establishing that Cobb serves as an agent for DHS is beyond the scope of this motion to dismiss. Nonetheless, plaintiff does allege some adverse conduct by Cobb that allegedly resulted in reduced benefits even if that reduction was ultimately made by DHS. Whether Cobb's conduct was a but-for cause of that reduction is not appropriately decided on this motion. For now, the complaint plausibly alleges Cobb's conduct in providing misleading information and preventing a full SNAP application resulted in an adverse reduction of benefits. Accordingly, defendant Cobb's motion to dismiss should be denied.
B. Plaintiff s Motion for Appointment of Counsel
Because of the delays in filing an amended complaint regarding the previous motions to dismiss, the Court felt it prudent to appoint counsel for the limited purpose of filing a third amended complaint. Nonetheless, plaintiff seeks appointment of counsel to assist in all phases of this action.
Generally, there is no constitutional right to counsel in a civil case. United States v. 30.64 Acres of Land, 795 F.2d 796, 801 (9th Cir. 1986). However, pursuant to 28 U.S.C. § 1915(e)(1), this Court has discretion to request volunteer counsel for indigent plaintiffs in exceptional circumstances. Id.; Wood v. Housewright, 900 F.2d 1332, 1335 (9th Cir. 1990). While this Court may request volunteer counsel in exceptional cases, it has no power to make a mandatory appointment. Mallard v. U.S. Dist. Court of Iowa, 490 U.S. 296, 301-08 (1989). It is unclear if plaintiff qualifies as indigent for purposes of appointment of counsel, but this case does not present exceptional circumstances justifying further appointment of counsel.
In order to determine whether exceptional circumstances exist, this Court evaluates the plaintiff's likelihood of success on the merits and plaintiff's ability to articulate her claims pro se considering the complexity of the legal issues involved. Wood, 900 F.2d at 1335-36; Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Richards v. Harper, 864 F.2d 85, 87 (9th Cir. 1988) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). However, "[n]either of these factors is dispositive and both must be viewed together before reaching a decision on request of counsel under section 1915(d)." Wilborn, 789 F.2d at 1331; Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
Now that that the claims plaintiff seeks to raise in this case have been more clearly expressed, it appears plaintiff can sufficiently articulate the factual basis for her claims going forward and that the legal issues are not of such complexity that plaintiff cannot adequately proceed pro se. Accordingly, plaintiff's motion for appointment of counsel is denied.
CONCLUSION
Defendant Jennifer Cobb's motion to dismiss the claims against her (ECF 72) should be denied. Plaintiff's motion for appointment of counsel (ECF 74) is denied.
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.