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MacFarlane v. State, Oregon Department of Human Services

United States District Court, D. Oregon

March 14, 2018

DONALD D. MacFARLANE, MINOR CHILDA, MINOR CHILDB5 Plaintiffs,
v.
STATE OF OREGON DEPARTMENT OF HUMAN SERVICES, ERINN KEELEY-SIEHL, KELSEY WIERZBICKI, CHRISTINA BORDEAU, SUPERVISOR FOR CHRISTINA BORDEAU, MOLLY STRONG, JODI HORN, JANICE, STEVEN TROMMLET, LESLIE TROMMLET, STATE OF OREGON DEPARTMENT OF JUSTICE CONFIDENTIALITY PROGRAM, MAGDALENA MacFARLANE, JOHN/ JANE DOE, Defendants.

          FINDINGS AND RECOMMENDATION

          Honorable Paul Papak 'United States Magistrate Judge

         Plaintiff pro se Donald MacFarlane ("D, MacFarlane" or "plaintiff), purportedly together with persons identified as Minor Child(A) ("T.R.") and Minor Child(B) ("K.M."), filed this action against defendants State of Oregon Department of Human Services ("DHS"), Erinn Kelley-Siehl ("Kelley-Siel"), Kelsey Wierzbicki, Christina Bordeau ("Banderant"), Supervisor for Christina Bordeau, Molly Strong, Jodi Horn (collectively with DHS, Kelley-Siel, Wierzbicki, Banderant, Supervisor for Christina Bordeau, and Strong, the "DHS defendants"), Janice, Steven Trommlet ("S. Trommlitz-Leasia"), Leslie Trommlet ("L, Trommlitz- Leasia" and, collectively with S. Trommlitz-Leasia, the "Trommlitz-Leasias"), State of Oregon Department of Justice Confidentiality Program (the "Program"), Magdalena MacFarlane ("M. MacFarlane"), and a fictitiously named Doe defendant on January 9, 2017. By and through his complaint, plaintiff alleges that he is the father of both T, R. and K.M., that M. MacFarlane is the children's mother, that both children were taken from their parents by DHS and placed into foster care where they have been required to attend religious study classes and to participate in religious activities, and that the children's mother is permitted to see the children more often and to give them more expensive gifts than he is. Arising out of the foregoing, plaintiff alleges (i) the liability of one or more of the defendants under 42 U.S.C. § 1983 for the violation of his substantive and/or procedural due process rights under the Fourteenth Amendment, and/or the liability of one or more of the defendants under Oregon common law for fraud on the court, in either event arising out of false allegations made against the plaintiff for the purpose of removing the minor children from the custody of their parents, (ii) the liability of one or more of the defendants under Section 1983 for the violation of his substantive and/or procedural due process rights under the Fourteenth Amendment arising out of the deprivation of his interest in visiting his children while they were in foster care, under Section 1983 for the violation of his procedural due process rights under the Fourteenth Amendment arising out of the seizure of cell phones plaintiff provided to his daughters, and/or under Section 1983 for the violation of his equal protection rights under the Fourteenth Amendment arising out of the fact that defendant M. MacFarlane has been permitted to visit the children in foster care more frequently than plaintiff and has been permitted to give the children more expensive Christmas presents than plaintiff was permitted to do, (iii) the liability of one or more of the defendants under Section 1983 for the violation of either plaintiffs or the children's substantive due process rights arising out of defendants' conduct in separating the children from plaintiff, and (iv) the liability of one or more of the defendants under Section 1983 for violating the establishment clause and/or for the violation of either plaintiffs or the children's substantive due process rights under the Fourteenth Amendment arising out of the conduct of the children's current foster parents in requiring the children to attend religious study classes and to participate in religious activities. Plaintiff seeks $14.4 million in money damages and an additional $1 million in punitive damages. This court has federal question jurisdiction over plaintiffs federal claims pursuant to 28 U.S.C. § 1331, and may properly exercise supplemental jurisdiction over plaintiffs state law claim or claims, if any are asserted, pursuant to 28 U.S.C. § 1367(a).

         On August 14, 2017, 1 recommended that all of the foregoing claims be dismissed to the extent purportedly brought on behalf of the minor children T.R. and K.M., that all of the foregoing claims should be dismissed with prejudice to the extent brought under Section 1983 against the Trommlitz-Leasias and/or against the defendant identified as Janice, that the claims enumerated above as the first, third, and fourth claims or sets of claims otherwise be dismissed without prejudice for lack of federal subject-matter jurisdiction, and that the claim or claims enumerated above as the second claim or set of claims otherwise be dismissed without prejudice to the limited extent premised on differential parental visit rights granted to plaintiff and M. MacFarlane. On October 13, 2017, Judge Mosman adopted my recommendation with the sole modification that Judge Mosman relied upon an additional reason beyond those discussed in my Findings and Recommendation of August 14, 2017, for the dismissal of the fourth enumerated claim or set of claims to the extent alleged against any defendant other than the Tromrnlitz-Leasias and/or Janice.

         Now before the court is the motion (#25) to dismiss plaintiffs remaining claim for want of prosecution, filed by defendants DHS, Kelley-Siel, Wierzbicki, Banderant, Strong, Horn, the Trommlitz-Leasias, and M. MacFarlane (collectively, the "moving defendants"). I have considered the motion and all of the pleadings and papers on file. For the reasons set forth below, the moving defendants' motion (#25) to dismiss should be denied, and plaintiff should be directed to provide counsel for the moving defendants within eleven days following issuance of the court's Opinion and Order with a date or dates when he will make himself available for deposition within sixty days following issuance of the court's Opinion and Order, either in Portland, Oregon, at moving defendants' counsel's offices or by telephone or video conference wherever he may be located. Plaintiff should be advised that his failure to cooperate with the moving defendants' efforts to obtain his deposition may result in the dismissal of his remaining claim or claims for want of prosecution.

         LEGAL STANDARD

         Federal Civil Procedure Rule 41(b) provides, in relevant part, that "[i]f [a] plaintiff fails to prosecute or to comply with the[ Federal] [R]ules [of Civil Procedure] or a court order, a defendant may move to dismiss the action or any claim against it." Fed.R.Civ.P. 41(b).

         Independently of Rule 41(b), the federal district courts additionally have the inherent power to dismiss actions before them sua sponte for want of prosecution. See, e.g., Ash v. Cvetkov, 739 F.2d 493, 496 (9th Cir. 1984), citing Link v. Wabash R.R., 370 U.S. 626, 630 (1962). Whether pursuant to Rule 41(b) or the court's inherent power, dismissal for failure to prosecute "is a harsh penalty and is to be imposed only in extreme circumstances, " and "must be supported by a showing of unreasonable delay, " meaning delay that creates a presumption of injury to the defendants' ability to assert defenses against the plaintiffs claims. Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986); see also Ash, 739 F.2d at 496.

         In determining whether to dismiss an action or a claim for failure to prosecute, the federal courts are required to consider the following factors:

(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the public policy favoring disposition of cases on their merits.

Pagtahman v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002), citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-1261 (9th Cir. 1992). Ultimately, the decision whether to impose the dismissal sanction for failure to prosecute is a matter of judicial discretion. See Henderson, 779 F.2d at 1423.

         PROCEDURAL HISTORY

         Judge Mosman's Opinion and Order dismissing plaintiffs claim in part issued October 13, 2017. It appears that on or around November 7, 2017, moving defendants made an effort to notice plaintiffs deposition for November 21, 2017, by mail, but plaintiff offers into evidence a copy of a postmarked envelope bearing the date November 30, 2017, which he represents to be a copy of the envelope in which he received moving defendants' notice of deposition, so it is unclear on the basis of the current evidentiary record whether moving defendants sent plaintiff the notice of deposition on or around November 7, 2017, or alternatively knowingly or inadvertently delayed sending the notice until after the noticed deposition date had passed. It is clear that plaintiff did not appear for deposition on November 21, 2017.

         The moving defendants moved to dismiss plaintiffs remaining claim or claims on December 13, 2017. Plaintiff filed a memorandum in opposition to moving defendants' motion on January 2, 2018.

         Other than his memorandum of January 2, 2108, plaintiff has made no appearance in this action since the issuance of Judge ...


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