United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon, United States District Judge.
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.
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 (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.
Motion to Dismiss Under Rule 12(b)(6)
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).
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
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).
Motion to Dismiss Under Rule 12(b)(1)
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).
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
Motion for Summary Judgment under Rule 56
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).
The Rooker-Feldman Doctrine
to the Rooker-Feldman 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.
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).
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).
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.
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.
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.
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.
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.
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 ...