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Bunnell v. Brown

United States District Court, D. Oregon

June 19, 2018



          Michael H. Simon, United States District Judge.

         Plaintiff Donja Marie Bunnell (“Bunnell” or “Plaintiff”) filed suit pro se against numerous state and local officials, including judges, and some private attorneys and other practitioners involved in family law or custody proceedings in Oregon. In Plaintiff's Amended Complaint, it appears that she alleges four claims: (1) one claim under Title II of the Americans with Disabilities Act (“ADA”); (2) one claim under Title III of the ADA; (3) one claim under the Rehabilitation Act; and (4) one claim for violations of her rights under Section 46 of the Oregon Constitution, which provides that equal rights shall not be denied by the state based on sex. Plaintiff does not specifically identify what claims are brought against which defendants.

         Before the Court are motions to dismiss brought by Clackamas County and its officials (ECF 62), the Oregon State Bar and its former President (ECF 63), the Sandy Police Department and its former Police Chief (ECF 73), attorney Leonard Kovac[1] (ECF 74), attorney John C. Moore (ECF 87), the National Association of Family and Conciliation Courts (“AFCC”) and its Executive Director (ECF 88), Dr. Paul Guastadisegni (ECF 93), the Oregon Chapter of the AFCC and its President (ECF 94), certain executive officials, judicial officers, and other instrumentalities of the State of Oregon (ECF 102), and Dr. Mona Ozaki (ECF 104). Also before the Court is the motion for summary judgment brought by Dr. Charlene Sabin (ECF 98). For the reasons that follow, these motions are granted.[2]


         A. Motion to Dismiss Under Rule 12(b)(6)

         A motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible 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 construe them in the light most favorable to the non-moving party. 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). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain 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). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “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 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).

         B. Motion to Dismiss Under Rule 12(b)(1)

         Federal courts are courts of limited jurisdiction. Gunn v. Minton, 568 U.S. 251, 256 (2013) (citation omitted). As such, a court is to presume “that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) (citations omitted); see also Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009); Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). A motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) for lack of “subject-matter jurisdiction, because it involves a court's power to hear a case, can never be forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002). An objection that a particular court lacks subject matter jurisdiction may be raised by any party, or by the court on its own initiative, at any time. Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006); Fed.R.Civ.P. 12(b)(1). The Court must dismiss any case over which it lacks subject matter jurisdiction. Fed.R.Civ.P. 12(h)(3).

         A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction may be either “facial” or “factual.” See Safe Air for Everyone, 373 F.3d at 1039. A facial attack on subject matter jurisdiction is based on the assertion that the allegations contained in the complaint are insufficient to invoke federal jurisdiction. Id. “A jurisdictional challenge is factual where ‘the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.'” Pride v. Correa, 719 F.3d 1130, 1133 n.6 (9th 2013) (quoting Safe Air for Everyone, 373 F.3d at 1039)). When a defendant factually challenges the plaintiff's assertion of jurisdiction, a court does not presume the truthfulness of the plaintiff's allegations and may consider evidence extrinsic to the complaint. See Terenkian v. Republic of Iraq, 694 F.3d 1122, 1131 (9th Cir. 2012); Robinson, 586 F.3d at 685; Safe Air for Everyone, 373 F.3d at 1039. A factual challenge “can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency.” Dreier v. United States, 106 F.3d 844, 847 (9th Cir. 1996) (citation and quotation marks omitted).

         C. Motion for Summary Judgment under Rule 56

         A party is entitled to summary judgment if the “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         D. The Rooker-Feldman Doctrine

         Pursuant to the Rooker-Feldman[3] doctrine, federal courts lack jurisdiction to hear cases that amount to collateral attacks on state court judgments. The basic premise of that doctrine is that “a federal district court does not have subject matter jurisdiction to hear a direct appeal from the final judgment of a state court.” Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir. 2003). Instead, the United States Supreme Court is the only federal court with jurisdiction to hear appeals from state courts. Id.; see 28 U.S.C. § 1257.

         The scope of the Rooker-Feldman doctrine includes de facto appeals from a state court decision and “any issue raised in the suit that is ‘inextricably intertwined' with an issue resolved by the state court in its judicial decision.” Noel, 341 F.3d at 1158. A claim is inextricably intertwined with a state court judgment if the federal claim can succeed only to the extent that the state court wrongly decided the issues before it, or if the relief requested in the federal action would effectively reverse the state court decision or void its ruling. Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1029-30 (9th Cir. 2001) (citations omitted).

         Rooker-Feldman bars a suit from going forward if: (a) the plaintiff in the federal suit lost in the state court proceeding; (b) the state court determination is at the core of the federal lawsuit; (c) the federal lawsuit seeks review and rejection of the state court verdict; and (d) the state court judgment was entered before commencement of the federal action. McKithen v. Brown, 481 F.3d 89, 97 (2nd Cir. 2007). A dismissal under this doctrine generally is without prejudice, although one from which the plaintiff will not be able to replead in this Court. See White v. Dobrescu, 651 Fed.Appx. 701, 703 (9th Cir. 2016) (“Because we affirm the dismissal on the basis of the Rooker-Feldman doctrine, we treat the dismissal as one without prejudice.”); see also Kelly v. Fleetwood Enters., Inc., 377 F.3d 1034, 1036 (9th Cir. 2004) (dismissals for lack of subject matter jurisdiction should be without prejudice).


         Plaintiff alleges that she has the disability of complex post-traumatic stress disorder (“PTSD”), which she states is an “injury” and not a mental health disorder. She alleges that Defendants improperly regarded her as mentally ill and suffering from paranoid schizophrenia and parental alienation syndrome (“PAS”). She further alleges that Defendants discriminated against Plaintiff because of this perceived disability and because of “sex based stereotypes” relating to her perceived mental impairments. She also alleges that Defendants refused to provide her with appropriate accommodations necessary to ensure that Plaintiff had full access to court proceedings to which she was a party and at which the custody of her children were at issue.

         Much of Plaintiff's Amended Complaint discusses her efforts in state court to “vindicate her rights” and that the state court opinions “side step the law, ignore the legal issues [Plaintiff] raises and further ensure[] that plaintiff and those similarly situated will be met with continued domestic and family violence.” Plaintiff asserts that she does not challenge any state court decision, but that she asks this Court to “review the unlawful practices in context of how those decisions were made.” She also makes general allegations regarding harm to women at large from domestic violence.

         From Plaintiff's allegations, in May 2007 she and her ex-husband dissolved their marriage and entered into, among other things, a parenting plan. In 2010 that plan was litigated in state court and modified. At that time, Plaintiff's ex-husband received custody of their children. Plaintiff does not agree with the outcome of the state court litigation and alleges that Defendants did not “abide” by the 2007 parenting contract and accepted testimony from “prejudicial witnesses.” Plaintiff further alleges that another modification to her and her ex-husband's “contract” occurred in May 2011 relating to child support and alimony.

         Plaintiff also alleges that the State of Oregon has a systemic practice of providing family law proceedings that discriminate against persons with “invisible disabilities, ” exploit such persons for financial gain, and select court appointees, vendors, and employees that are “not compliant” with the ADA. Plaintiff challenges in this lawsuit the state court's act of “opening up” her “closed” case (and apparently others' as well), denying her right freely to contract her parenting agreement, allowing “bogus contempt filings, ” “enacting cruel and unusual punishment, ” and depriving mothers like her of their children as punishment.

         Plaintiff makes numerous general and conclusory allegations regarding fatherhood in general, how fathers prefer to structure support payments, the earning potential of women versus men, and the preferential treatment given to fathers throughout the country by state and federal programs, funding, and courts. For example, Plaintiff alleges: “Fathers, lawyers, mental health practitioners, court appointees, and judges are the haves. Mothers and children are the have-nots.” She then alleges that system only works for the “haves” by depleting all the resources from mothers. Plaintiff also asserts numerous legal conclusions, citing statutes and regulations, alleging their legal implications, and concluding that Defendants have violated them. The limited allegations specific to each defendant are discussed below, as needed.

         Plaintiff notes that several other cases similar to hers have been filed around the country and asserts that she will seek to have her case certified for “multidistrict litigation” to join with those cases. The Court notes, however, that except for one of those cases that is pending before the undersigned judge and is early in the litigation process and another pending in the Northern District of California, all other cases identified by Plaintiff have been dismissed (most without leave to ...

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