United States District Court, D. Oregon
JOSEPH W. KOFOED, Plaintiff,
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
F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.
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.
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.)
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).)
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. (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.)
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. (Compl. 12.) Kofoed alleges that Oregon
Supreme Court Chief Justice Thomas Balmer (“Justice
Balmer”) declined to reverse Commissioner Nass'
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.)
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).
“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).
JUDGE JONATHAN R. HILL AND EMILY HURLIMAN
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