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Pierce v. Heiple

United States District Court, D. Oregon

April 21, 2017

KIP PIERCE, Plaintiff,
LISA HEIPLE, et al., Defendants.


          Michael H. Simon United States District Judge

         Plaintiff Kip Pierce filed pro se claims against Defendant Lisa Heiple and several Doe Defendants. ECF 1. Plaintiff alleges claims for a violation of 42 U.S.C. § 1983, libel, and defamation per se. Plaintiff seeks declaratory and injunctive relief, as well as money damages. Plaintiff also filed an application to proceed in forma pauperis. ECF 2. The Court grants Plaintiff's application to proceed in forma pauperis, but finds that even under the liberal pleading standards afforded a pro se plaintiff, Plaintiff fails state a claim for relief and further finds that the Court must abstain from considering most of Plaintiff's claims under the Rooker-Feldman doctrine.[1]


         A complaint filed in forma pauperis may be dismissed at any time, including before service of process, if the Court determines that the action is “frivolous or malicious” or the complaint “fails to state a claim upon which relief can be granted.” 28 U.S.C. § 1915(e)(2); see also Neitzke v. Williams, 490 U.S. 319, 324 (1989) (discussing an earlier version of the statute); Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989). A complaint is frivolous “where it lacks an arguable basis either in law or in fact.” Neitzke, 490 U.S. at 325; Lopez v. Dep't of Health Servs., 939 F.2d 881, 882 (9th Cir. 1991); Jackson, 885 F.2d at 640. The term “frivolous, ” when used to describe a complaint, “embraces not only the inarguable legal conclusion, but also the fanciful factual allegation.” Neitzke, 490 U.S. at 325.

         A complaint fails to state a claim when there is no cognizable legal theory or the factual allegations are insufficient to support a claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and draw all reasonable inferences in favor of the plaintiff. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). But to be entitled to a presumption of truth, the complaint must do more than simply allege legal conclusions couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The plaintiff “may not simply recite the elements of a cause of action, but must [provide] sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). The underlying factual allegations must “plausibly suggest an entitlement to relief.” Id. (emphasis added). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

         Pro se plaintiffs receive special dispensation. A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or her complaint unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citation and internal quotation marks omitted). But even a pro se plaintiff must offer more than “‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).


         On March 14, 2012, Ms. Heiple obtained a lifetime stalking protective order against Plaintiff in an Oregon state court.[2] Plaintiff alleges that he was told by the state court that he was not required to attend the hearing by telephone or in person and he relied on that representation.[3]As a result, Plaintiff alleges, in a conclusory assertion, that he was not allowed to participate in the legal proceedings, testify, or cross examine Ms. Heiple, and that he was not otherwise given due process. Plaintiff requests an evidentiary hearing to demonstrate whether the stalking protective order was wrongfully issued and further requests that this Court declare the stalking protective order void, vacate the order, and enjoin its enforcement.

         Plaintiff further alleges that Ms. Heiple posted on her Facebook page that “he claims to be homeless and live on the street” and bragged about obtaining “a permanent stalking order for life.” Plaintiff alleges that persons reading this post would understand that Ms. Heiple was referencing Plaintiff and that this post constitutes libel and defamation per se.


         A. Section 1983 Claim against Ms. Heiple

         1. State Actor

         Plaintiff alleges a claim against Ms. Heiple under 42 U.S.C. § 1983. To state a claim for liability under Section 1983, “‘a plaintiff must show both (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the deprivation was committed by a person acting under color of state law.'” Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1138 (9th Cir. 2012) (quoting Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 1143, 1149 (9th Cir. 2011)). “[T]he under-color-of-state-law element of § 1983 excludes from its reach ‘merely private conduct, no matter how discriminatory or wrongful . . . .'” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)).

         A private individual may, under certain circumstances, act under the color of state law. The Ninth Circuit recognizes “at least four different criteria, or tests, used to identify state action: ‘(1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus.'” Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (quoting Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835-36 (9th Cir. ...

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