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Gomez v. Hardie

United States District Court, D. Oregon, Portland Division

February 19, 2014

MARK H. HARDIE, individually and in his capacity as Mayor of City of Maywood; and CITY OF MAYWOOD PARK, a municipal corporation, Defendants.


JANICE M. STEWART, Magistrate Judge.


Plaintiff, Jorge Blackmore Gomez ("Gomez"), appearing pro se, filed this action on January 29, 2013, against the City of Maywood Park ("Maywood Park"), its Mayor (Mark Hardie ("Hardie")), three inspectors working for the City of Troutdale (Dick Bohlmann ("Bohlmann"), Bill Woods ("Woods"), and Tom Sheirbon ("Sheirbon")), and two attorneys in private practice apparently representing the City of Troutdale (Carl F. Jepsen ("Jepsen") and Nicholas Drum[1] ("Drum")). The dispute centers around actions taken against Gomez after he began construction activities on his home in Maywood Park. Gomez, who is Mexican-American, contends that those actions were racially motivated. In his Amended Complaint (docket #33), filed on July 26, 2013, Gomez alleges claims only against Hardie and Maywood Park.

All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c) (docket #50). Defendants have filed a Motion for Summary Judgment (docket #51), arguing that Gomez is barred by claim preclusion from alleging any of his claims because he filed a previous lawsuit in state court based on the same set of operative facts. The court sent Gomez a Summary Judgment Advice Notice on November 12, 2013 (docket #60).

For the reasons set forth below, this court concludes that defendants are correct, grants their motion, and dismisses this action with prejudice.


FRCP 56(c) authorizes summary judgment if "no genuine issue" exists regarding any material fact and "the moving party is entitled to judgment as a matter of law." The moving party must show an absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and designate specific facts showing a "genuine issue for trial." Id at 324, citing FRCP 56(e). The court must "not weigh the evidence or determine the truth of the matter, but only determine[] whether there is a genuine issue for trial." Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir 1999). A " scintilla of evidence, ' or evidence that is merely colorable' or not significantly probative, '" does not present a genuine issue of material fact. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir 1989). The substantive law governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir 2000). The court must view the inferences drawn from the facts "in the light most favorable to the non-moving party." Bravo v. City of Santa Maria, 665 F.3d 1076, 1083 (9th Cir 2011).


I. The Two Court Actions

A. Multnomah County Action

On July 27, 2012, Gomez filed a case in Multnomah County Circuit Court, Gomez v. City of Maywood Park, et al., Case No. 1207-09428, alleging claims for: (1) Trespass to Land; (2) Tortuous Actions; (3) Association to Commit Tort Violations; (4) Failure to Apply ORS 455.320; (5) Prohibited Acts ORS 455.450; (6) Agency Neglect to Act; (7) Notice of Claim; (8) Civil Action for Intimidation; (9) Establish Uniform Performance Standards; (10) Intentional Infliction of Emotional Distress; (11) Personal Injuries; (12) Property Damages; and (13) Punitive Damages. Piscadlo Decl., Ex. 1 ("Multnomah County Complaint"). That same pleading also incorporated motions to: (1) Apply Statute of Limitations Due on Facts; (2) Apply Discovery Rule; (3) Apply Writ [of] Mandamus; and (4) Apply Protective Proceedings. Id., pp. 8-10.

Gomez's claims in the Multnomah County action are premised upon an unauthorized entry onto Gomez's property on August 2, 2010, by Maywood Park's Mayor (Hardie) to inspect construction activities and upon Hardie's advice that Gomez needed to obtain a building permit from the City of Troutdale. Gomez alleges that, at the time, the City of Portland was the jurisdiction with authority over building permits for properties located in Maywood Park and that Hardie deliberately ordered Gomez to obtain a permit from the City of Troutdale in order to divert and block his rights to renovate his home. Multnomah County Complaint, ¶ 4. Gomez later filed an amended complaint, naming Hardie and three inspectors working for the City of Troutdale (Bohlmann, Woods, and Sheirbon) as additional defendants. Piscadlo Decl., Ex. 2, ("Multnomah County Amended Complaint"), ¶¶ 4-6. Gomez alleges that the inspectors installed "Stop Work" signs and ordered him to obtain a building permit from the City of Troutdale, then refused to issue him a building permit, all in "a deliberate and calculated attempt... to punish' [him] for his activism" and "motivated - in part - by personal animus exacerbated by racial discrimination." Id., ¶ 39. Based on those initial actions, and on a series of later encounters between Gomez and Hardie at Maywood Park City Council meetings ( id, ¶¶ 42-45), Gomez alleged claims against Hardie for trespass, abuse of process, intentional infliction of emotional distress, conspiracy, racial discrimination, and interference with economic relations. Id., ¶¶ 25-70.

On January 23, 2013, Multnomah County Circuit Court Judge Kathleen Dailey dismissed each of Gomez's claims, with the exception of the trespass claim. Gomez Decl. (docket #63), Ex. 3. Six months later, on June 27, 2013, Multnomah County Circuit Court Judge Pro Tem Eric Neiman dismissed the remaining claim which disposed of the entire ...

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