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Kofoed v. Rosenblum

United States District Court, D. Oregon

May 10, 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, a self-represented party, 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. The Court granted Defendants' Motion to Dismiss Kofoed's Complaint (ECF No. 10), and dismissed all claims against Defendants James W. Nass, Chief Justice Thomas A. Balmer, Judge Jonathan R. Hill, and Emily Hurliman, with prejudice. (ECF No. 23.) While the Court also dismissed Kofoed's claims against Defendants Attorney General Ellen F. Rosenblum (“AG Rosenblum”) and Kindra McKillip (“McKillip”), the Court dismissed those claims without prejudice and the Court granted Kofoed leave to file a First Amended Complaint. (Id.)

         On March 9, 2018, Kofoed filed a First Amended Complaint naming AG Rosenblum and McKillip as defendants, again alleging that AG Rosenblum and McKillip violated Kofoed's First, Fourth, Fifth, and Fourteenth Amendment rights, as well as the “Electronic Communications Privacy Act of 1986.” (ECF No. 25.) AG Rosenblum and McKillip filed a Motion to Dismiss First Amended Complaint (ECF No. 27) for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, the district judge should grant Defendants' motion to dismiss.

         BACKGROUND[1]

         The relevant facts remain as previously set forth in Kofoed v. Rosenblum, et al., No. 3:17-cv-01342-SB, 2018 WL 1041317, at *1-2 (D. Or. Jan. 17, 2018), and are not repeated here. The Court discusses below the additional facts alleged in Kofoed's First Amended Complaint that are material to the present motion.

         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.” Weilberg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (quotations and citations omitted).

         DISCUSSION

         I. SECTION 1983 CLAIMS

         A. Oregon Attorney General Ellen F. Rosenblum

         AG Rosenblum moves for dismissal of Kofoed's 42 U.S.C. § 1983[2] claims on the ground that Kofoed's allegations against her are insufficient to state a claim. (Defs.' Mot. Dismiss 5.) Specifically, AG Rosenblum argues that Kofoed “merely posits in a conclusory manner, that the AG is somehow ‘in support of embracement and sponsoring, even allowance of incomplete, inaccurate and diminished records.'” (Defs.' Mot. Dismiss 6 (quoting First Am. Compl. 6).) According to AG Rosenblum, Kofoed's “conclusory statement” is insufficient to satisfy the Twombly and Iqbal pleading standard. (Defs.' Mot. Dismiss 6.) Alternatively, AG Rosenblum moves for dismissal of Kofoed's § 1983 claims on the ground that the Rooker-Feldman doctrine deprives this Court of subject matter jurisdiction to grant Kofoed's requested relief.[3] (Defs.' Mot. Dismiss 6.)

         The Court agrees that the allegations in Kofoed's First Amended Complaint do not state a claim against AG Rosenblum.[4] Kofoed's First Amended Complaint does not include any factual allegations in support of his claim that AG Rosenblum violated his constitutional rights. Kofoed alleges only that AG Rosenblum supports a system of inaccurate record keeping. (First Am. Compl. 6; see also id. at 7 (alleging that AG Rosenblum allows “punky documents”); id. (alleging that AG Rosenblum's “tactic” allows the Oregon DOJ” to “dismiss cases by their own allowance[]”).) Kofoed's conclusory allegations are insufficient under federal pleading standards to state a § 1983 claim.[5] See Iqbal, 556 U.S. at 678-79 (holding that to survive a motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[, ]” meaning “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”) (internal quotation marks omitted); Twombly, 550 U.S. at 555 (“Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]”) (citations and footnote omitted). Accordingly, the district judge should dismiss Kofoed's § 1983 claims against AG Rosenblum.

         B. ...


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