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Ovitsky v. State

United States District Court, D. Oregon

February 3, 2014


Abby Jo Ovitsky, Beaverton, Oregon, Pro se plaintiff.

Naomi Levelle Haslitt, Miller Nash LLP, Portland, Oregon, Attorney for defendant Beaverton School District.

Ellen F. Rosenblum, Attorney General, Michael R. Washington, Senior Assistant Attorney General Department of Justice, Salem, Oregon, Attorneys for defendant John Kitzhaber.


ANN AIKEN, District Judge.

Defendant Beaverton School District ("BSD") moves to dismiss prose plaintiff Abby Jo Ovitsky's claims pursuant to Fed.R.Civ.P. 12 (b) (6).For the reasons set forth below, BSD's motion is granted.


Plaintiff suffers from an auditory processing disorder and uses Relay, a service that allows hearing impaired individuals to communicate with others. This service works through an operator, who reads what the hearing impaired individual types aloud and then types to the hearing impaired individual what another person speaks in response.

Over two years ago, on December 13, 2012, plaintiff brought a lawsuit against Washington County Victim Assistance, the Washington County Sheriffs Department ("WCSD"), Washington County Judge Michele Rini, the Washington County Circuit Court, and the Juvenile Justice Department. On January 7, 2013, the Court granted plaintiff's motion to proceed in forma pauperis ("IFP"). On April 20, 2013, defendants Pat Garrett, Judge Rini, Alan Rappleyea, Lynn Schroeder, and WCSD were dismissed from this lawsuit; the Court also granted plaintiff leave to amend her complaint.

On May 14, 2013, plaintiff filed her first amended complaint ("FAC") against the State of Oregon ("State"), Washington County ("County"), WCSD, Neal Cutler Evans, and BSD, alleging disability discrimination under 42 U.S.C. § 1983, the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, and Oregon statutory law, at which time she requested appointment of pro bono counsel. The FAC is premised, in part, on her son's 2012 juvenile hearing, during which Judge Rini allegedly refused to accommodate a slowdown of the Relay operation to 60 words per minute; as a result, the parties were speaking too quickly for plaintiff to listen and understand.[1]

On May 28, 2013, the County filed a motion to dismiss on behalf of itself and WCSD. On June 27, 2013, the State filed a motion to dismiss. On August 20, 2013, this Court granted the County's and the State's motions without prejudice, and dismissed WCSD as a defendant from this action with prejudice. See Ovitsky v. Oregon ("Ovitsky I"), 2013 WL 4505832 (D.Or. Aug. 20, 2013). On August 22, 2013, plaintiff appealed that decision to the Ninth Circuit Court of Appeals.

On August 30, 2013, BSD moved to dismiss plaintiff's FAC. On September 9, 2013, plaintiff filed a single motion for a "Rule 65 Emergency Preliminary Injunction" and "Rule 11 Sanctions, " requesting relief based on events that transpired between plaintiff, her son, and BSD from June 2013, through September 2013. In relevant part, plaintiff sought to prevent a meeting that was scheduled for later that day to execute a § 504 plan and provide plaintiff's son with a FM System as an accommodation for his hearing impairment, which was diagnosed in June 2013. Ultimately, the September 9, 2013 meeting took place as scheduled, however, plaintiff elected not to attend.

On September 16, this Court denied plaintiff's Fed.R.Civ.P. 11 and Fed.R.Civ.P. 65 motion, finding in part that plaintiff failed to confer pursuant to LR 7-1, and that her motion was premised on the rights of a third-party and events that transpired after the FAC was filed. See Ovitsky v. Oregon ("Ovitsky II"), 2013 WL 5253162 (D.Or. Sept. 16, 2013). On October 16, 2013, plaintiff filed an opposition to BSD's motion to dismiss, based entirely on a new factual scenario namely, the allegedly discriminatory practices on display during the September 9, 2013 meeting between BSD and her son. Plaintiff then requested leave to amend the FAC in order to add her son as a plaintiff and the recent factual developments; she also sought appointment of pro bono counsel and class certification. That same day, plaintiff separately moved to file yet another amended complaint, requesting identical relief.

On October 18, 2013, the Court denied plaintiff's motion to amend, with leave to refile in accordance with LR 7-1 and LR 15. On October 22, 2013, the Ninth Circuit dismissed plaintiff's appeal for lack of jurisdiction. On November 18, 2013, without leave from the Court or consent from the opposing party, plaintiff filed a second amended complaint ("SAC") against BSD, Jerry Brown, and John Kitzhaber, alleging claims under 42 U.S.C. § 1983; Title II of the ADA, 42 U.S.C. § 12132; the Rehabilitation Act, 29 U.S.C. § 794; and Or. Rev. Stat. § 659A.142.[2] The SAC abandoned several theories of liability asserted in the FAC and instead focused primarily on events surrounding the September 9, 2013 meeting. On December 5, 2013, BSD filed a supplement ...

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