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Kofoed v. Rosenblum

United States District Court, D. Oregon

January 17, 2018

JOSEPH W. KOFOED, Plaintiff,
v.
ELLEN F. ROSENBLUM, State of Oregon Attorney General; JAMES W. NASS, Oregon Appellate Commissioner; CHIEF JUSTICE THOMAS A. BALMER; JUDGE JONATHAN R. HILL, Tillamook County Circuit Court Judge; EMILY HURLIMAN, Tillamook County Circuit Court Local ADA Coordinator; KINDRA McKILLIP, Legal Secretary, Defendants.

          FINDINGS AND RECOMMENDATION

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.

         Joseph W. Kofoed, acting pro se, filed a “Complaint for Violation of Civil Rights and Demand for Jury Trial” (“Complaint”) (ECF No. 1), against the above-named defendants, alleging violations of the First, Fourth, and Fourteenth Amendments to the United States Constitution arising from two prior state court proceedings. Defendants filed a Motion to Dismiss Kofoed's Complaint (ECF No. 10) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim for relief. For the reasons set forth below, the district judge should grant Defendants' Motion to Dismiss.

         BACKGROUND[1]

         Kofoed alleges that on September 6, 2013, Tillamook County Circuit Court Judge Jonathan R. Hill (“Judge Hill”) presided over Kofoed's mother's probate hearing at the Tillamook County Courthouse (“Courthouse”). (Compl. 4.) Kofoed, accompanied by an “ADA advocate, ” appeared at the probate hearing. (Id.) Early in the hearing, Kofoed indicated to Judge Hill that he “was not hearing well.” (Id.) In response, Judge Hill provided Kofoed with “an antique looking wooden box which contained an ancient looking 1950's earphones . . . and handed the headset to Mr. Kofoed.” (Id.) According to Kofoed, “[a] thunderous sound blast erupted into the room with Mr. Kofoed getting many times the sound blast as it shot through the twin ear cups of the headset into Mr. Kofoed's ears and brain area. The result would be never ending severe tinnitus/both ears loudly ringing, of which will cease only when Mr. Kofoed is dead.” (Id.)

         Several days later, Kofoed and his “ADA advocate” returned to the Courthouse to file an incident report with Emily Hurliman (“Hurliman”), the “Local ADA coordinator.” (Compl. 5.) Kofoed also alleges that “[b]efore the deadline, Mr. Kofoed inquired and filed with the Oregon Risk Management tort claim agency . . . .” (Id.) Kofoed received a letter informing him that an investigation determined that Kofoed was at fault for the “sound blast.” (Id.; see also Compl. 6 (alleging that the investigation resulted in a cover up by the state).)

         In September 2015, Kofoed filed a First Amended Complaint in Multnomah County Circuit Court against Tillamook County, the Courthouse, and Tillamook County Judicial Department (collectively the “State Defendants”), alleging state common law claims arising from the State Defendants' alleged failure to provide him with appropriate accommodations at the September 6, 2013 probate hearing before Judge Hill.[2] (Justin Emerson Kidd Decl. Ex. 1, Oct. 6, 2017.) Kofoed alleges that Kindra McKillip (“McKillip”) filed false declarations in support of the State Defendants' summary judgment motions. (Compl. 8.) On March 31, 2017, the Multnomah County Circuit Court entered summary judgment in favor of the State Defendants and dismissed Kofoed's First Amended Complaint with prejudice. (Kidd Decl. Ex. 2.)

         Kofoed appealed the dismissal and requested reconsideration of the summary judgment ruling. (Compl. 11-12.) The Oregon Appellate Commissioner, James W. Nass (“Commissioner Nass”), denied Kofoed's request for reconsideration.[3] (Compl. 12.) Kofoed alleges that Oregon Supreme Court Chief Justice Thomas Balmer (“Justice Balmer”) declined to reverse Commissioner Nass' decision. (Id.)

         Kofoed alleges that Oregon Attorney General Ellen Rosenblum (“AG Rosenblum”) as “Oregon's chief law enforcement person . . . . owns responsibility” for the alleged civil rights violations. (Compl. 13.)

         LEGAL STANDARD

         A well-pleaded complaint requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A federal claimant is not required to detail all factual allegations, but the complaint must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above a speculative level.” Id. While the court must assume all facts alleged in a complaint are true and view them in a light most favorable to the nonmoving party, it need not accept as true any legal conclusion set forth in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In addition, a plaintiff must set forth a plausible claim for relief, a possible claim for relief will not do. Id. (“Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” (quotations and citation omitted)). “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678).

         Courts “construe pro se complaints liberally and may only dismiss a pro se complaint for failure to state a claim if ‘it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'” Silva v. Di Vittorio, 658 F.3d 1090, 1101 (9th Cir. 2011), abrogated on other grounds as recognized in Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015).

         DISCUSSION

         I. JUDGE JONATHAN R. HILL AND EMILY HURLIMAN

         Judge Hill and Hurliman move for dismissal of Kofoed's claims against them on the ground that Kofoed's allegations related to them arise from conduct occurring in 2013 and thus are time barred. (Defs.' Mot. Dismiss 4-5; see also Compl. 14-15 (alleging that Judge Hill harmed Kofoed by providing faulty earphones during the 2013 probate ...


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