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Alfano v. Farley

United States District Court, D. Oregon

April 29, 2014

DAVID ALFANO, STEVEN ALFANO, LISA ALFANO, and MARY ALFANO-LUPTON, Plaintiffs,
v.
CHRIS FARLEY, KATHY ANDREAS, ZIGGY SZCCZEPANSKI, HELEN IRELAND, JIM WILLIS, PAT TERRELL, and JOHN AND JANE DOES #1-10, employees of the Oregon Department of Veterans' Affairs, Defendants.

OPINION AND ORDER [1]

PAUL PAPAK, Magistrate Judge.

This is an action brought under 42 U.S.C. § 1983 alleging violations of plaintiffs' rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiffs are four adult children of Ben Alfano.[2] They seek redress from defendants for conduct that occurred between December 2010 and February 2011-the time period between when their father was moved from Raleigh Hills Assisted Living ("Raleigh Hills") to the date he died. The gravamen of plaintiffs' claims is that Chris Farley, Mr. Alfano's court-appointed guardian, acted in concert with the Oregon Department of Veterans' Affairs ("ODVA") to deprive plaintiffs of their constitutional rights. Now before the court are Farley's amended motion to dismiss plaintiffs' third amended complaint (#62) and request for judicial notice (#65). For the reasons set forth below, the motion to dismiss and request for judicial notice are granted and the third amended complaint is dismissed in its entirety.

FACTUAL BACKGROUND

I note at the outset that plaintiffs' third amended complaint is far from a model of clarity both in its factual allegations and, more particularly, in relating those allegations to appropriate claims for relief. As an example, plaintiffs repeatedly insist that their claims are based on events occurring between December 2010 and February 2011, but they also appear to rely on events that occurred outside this time frame. Further, although the court granted plaintiffs' motion to dismiss defendant Richard Pagnano, plaintiffs continue to refer to him as a defendant in the body of the complaint and devote several pages to allegations concerning his conduct. See, e.g., Third Amended Complaint, #58, ¶¶ 65-74. Likewise, although the court granted plaintiffs' motion to dismiss defendant Sybille Baer, plaintiffs continue to refer to her as a defendant in the body of the complaint. See id. ¶ 106. With that in mind, I relate the following allegations from the third amended complaint along with facts from documents judicially noticed by the court.[3]

I. Mr. Alfano's Accident and the ODVA Conservatorship

In 2006, Mr. Alfano was hit by a car, resulting in the loss of one of his legs. Id. ¶ 21. He filed a lawsuit and received a settlement of "almost $1, 000, 000." Id. At the time of the accident, Mr. Alfano was in his late sixties and had "significant medical needs, " including multiple sclerosis. Id. ¶¶ 18, 20. After the accident, Mr. Alfano moved to Raleigh Hills, an assisted living facility. Id. ¶ 26.

Some years before the accident, the ODVA had been appointed as conservator to manage Mr. Alfano's financial affairs. Id. ¶¶ 19, 24. Plaintiffs allege that prior to the accident and settlement award, the "ODVA had neglected [Mr.] Alfano's needs and had failed to respond to numerous" unspecified requests. Id. ¶ 29. After the settlement award, plaintiffs assert that "the ODVA took an aggressive interest in Mr. Alfano's case and finances." Id. ¶ 28. Plaintiffs disagreed with many of the ODVA's decisions regarding the management of Mr. Alfano's money, including: (1) approving Mr. Alfano's request to purchase an expensive watch; (2) approving Mr. Alfano's vacation to Hawaii; and (3) petitioning a court to modify spousal support payments to Mr. Alfano's former wife. Id. ¶¶ 81-83.

II. Guardianship of Mr. Alfano

In January 2009, Steven Alfano obtained an ex parte emergency guardianship over his father. Id. ¶ 32; Ex. 5, Declaration of Matthew J. Kalmanson ("Kalmanson Decl."), #64-5, at 3. Steven Alfano thereafter sought to indefinitely extend the temporary guardianship. Third Amended Complaint, #58, ¶ 43; Ex. 5, Kalmanson Decl., #64-5, at 1-7. David Alfano later joined the petition for guardianship as an alternate guardian. Ex. 4, Kalmanson Decl., #64-4, at 1. The ODVA objected to Steven and David Alfano's petition and cross-petitioned the court to appoint Farley, a professional fiduciary, as Mr. Alfano's guardian. Id. On January 8, 2010, the state-court judge entered a limited judgment appointing Farley as Mr. Alfano's guardian rather than Steven or David Alfano. Ex. 3, Kalmanson Decl., #64-3, at 5-6; see also Third Amended Complaint, #58, ¶ 65. Pursuant to her duties as guardian, Farley was "[t]o promote and protect the well-being of" Mr. Alfano and had the power to, among other things, make decisions regarding his health care and his residence and placement. Ex. 4, Kalmanson Decl., #64-4, at 5-6. Farley was also to keep Mr. Alfano's family and the ODVA apprised of Mr. Alfano's physical and medical condition and care. Id. at 6-7. On August 11, 2010, the state-court judge entered an amended limited judgment revoking Mr. Alfano's advance directive and authorizing Steven and David Alfano to make end-of-life decisions for their father. Id. at 5, 7; see also Ex. 3, Kalmanson Decl., #64-3, at 9.

III. December 2010 to February 2011

On December 23, 2010, Farley filed a notice of intent to move Mr. Alfano from Raleigh Hills to Park Forest Care Center ("Park Forest"), a skilled nursing facility. Ex. 3, Kalmanson Decl., #64-3, at 10; see also Third Amended Complaint, #58, ¶ 92. Plaintiffs did not receive notice of the move. Third Amended Complaint, #58, ¶¶ 91-92. They allege that, on Christmas Day 2010, Pat Terrell, Farley's employee, told staff at Raleigh Hills that Mr. Alfano had a doctor's appointment and she removed him from Raleigh Hills without any of his belongings. Id. Later that day, Farley called each plaintiff and told them that she moved Mr. Alfano to Park Forest to better manage his treatment for recurring infections. Id. ¶ 92. Plaintiffs filed objections in state court to Mr. Alfano's placement at Park Forest. Ex. 3, Kalmanson Decl., #64-3, at 10.

Plaintiffs allege that while Mr. Alfano was at Park Forest, he was "extremely anxious and scared" and "began calling [p]laintiffs all the time." Third Amended Complaint, #58, ¶ 95. This in turn drove plaintiffs to call Park Forest repeatedly. Id. After discovering how much Mr. Alfano had been calling plaintiffs, Farley restricted his phone use. Id. ¶ 102. She told plaintiffs that the calls were making Mr. Alfano anxious. Id. Farley also put in place visitation restrictions. Id. ¶¶ 94, 103.

In late January 2011, Farley informed plaintiffs that she intended to move Mr. Alfano to a "lock-down Alzheimer's unit" at Powell Valley, another nursing facility, purportedly because Park Forest "wanted him removed" after he attempted to escape. Id. ¶¶ 103, 105. While Mr. Alfano was at Powell Valley, plaintiffs allege that Farley continued to restrict visits from family and that Mr. Alfano's health deteriorated. Id. ¶¶ 105-111. On February 26, 2011, Mr. Alfano died at the age of seventy two following a heart attack. Id. ¶¶ 18, 112.

PROCEDURAL BACKGROUND

Plaintiffs initiated the instant lawsuit on December 22, 2012, alleging that defendants had interfered with their constitutionally protected relationship with their father and had retaliated against them for exercising their right to object to the care of their father. See Complaint, #1, ¶¶ 65-82. On April 25, 2013, Farley filed her first motion to dismiss (#19). The court heard oral argument on the motion on July 10, 2013. See Minutes of Proceedings, #44. Before the court issued its findings and recommendation, the parties agreed that Farley would stay her motion to dismiss pending plaintiffs' filing of a second amended complaint. See Order, #50. On August 9, 2013, plaintiffs filed their second amended complaint (#51). On August 12, 2013, plaintiffs filed a corrected second amended complaint (#55). On August 13, 2013, the court held a telephonic conference, at which time it instructed plaintiffs to file another amended complaint correcting various problems. See Minutes of Proceedings, #56. On August 16, 2013, plaintiffs filed the third amended complaint.

On September 6, 2013, Farley moved to dismiss plaintiffs' third amended complaint on several grounds and further requested that the court take judicial notice of various public documents. On September 27, 2013, plaintiffs filed a resistance (#72) to the motion to dismiss. On October 11, 2013, Farley filed a reply (#73). On October 17, 2013, the court heard oral argument on the motion ...


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