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German v. Eudaly

United States District Court, D. Oregon, Portland Division

June 29, 2018

MIMI GERMAN, Plaintiff,
v.
CHLOE EUDALY, individually and in her official capacity as City of Portland Commissioner; and THE CITY OF PORTLAND, OREGON, Defendants.

          OPINION AND ORDER

          MICHAEL W. MOSMAN, CHIEF U.S. DISTRICT-JUDGE

         This matter comes before me on Defendants Chloe Eudaly and City of Portland's Motion to Dismiss [16] pro se Plaintiff Mimi German's Third Amended Complaint ("TAC") [15]. For the reasons given below, I GRANT Defendants' Motion to Dismiss Ms. German's claims [16]. Claim 1 is dismissed with prejudice. Claim 2 is dismissed without prejudice against Commissioner Eudaly and with prejudice against the City of Portland. Claim 3 is dismissed without prejudice against Commissioner Eudaly and with prejudice against the City of Portland. On the claims dismissed without prejudice, Ms. German is granted leave to amend her complaint to allege that Commissioner Eudaly acted under color of state law when she used her Facebook page.

         BACKGROUND

         Because this case is before me on a motion to dismiss, I accept as true the facts alleged in the complaint. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002). Ms. German alleges the following facts:

         Ms. German is a political activist who regularly attends Portland City Council meetings to offer testimony. TAC [15] at 1. On November 30, 2017, Commissioner Eudaly posted the following message on her nonofficial Facebook page:

Mimi German (one of the disruptive frequent fliers at Council) is now spreading completely false and truly outrageous statements about my business and my history as a bookseller. She is claiming I owned Counter Media, was a purveyor of violent, woman-hating pornography and that my business was unsafe for members of the LGBTQ community. That may come as some surprise to the mostly women and many queer people who staffed, exhibited, and performed at Reading Frenzy. I didn't live in voluntary near poverty for over 22 years in order to support independent media and serve my community to have people disparage and discredit my contributions. Of course there are always things you would do differently in hindsight, but I stand behind my policies and decisions based on the information I had at the time.
I'm the 8th woman to ever be elected to City Council. I've been involved in activism, organizing, and advocacy of one kind or another since I was 20-years old. When I ran I was a low-income single parent and cost-burdened renter. I've overcome extraordinary life challenges to get to where I am today. I have an incredible opportunity to do an enormous amount of good for our city but I'm going to need a lot of support in order to accomplish what we came here to do. This is a libelous smear campaign and a witch hunt, a complete waste of my time and energy, and a distraction from what really matters. I can withstand the slings and arrows, but I will be damned if these people continue to be seen as contributing anything to our public process or get away with libeling me.

[11-1] at l.[1] That post sparked a thread of comments from others, including: "Lawyer up and sue this [expletive]" SAC [14] Ex. 1 at 5; "This woman needs to be locked up in the nut house" SAC [14] Ex. 1 at 6; "I just text[ed] her and told her 100 of us think she is an [expletive]." SAC [14] Ex. 1 at 8. Commissioner Eudaly responded to some of the comments:

• In response to "[Ms. German's] poetry is too embarrassing to read through," Commissioner Eudaly said that Ms. German sometimes reads her poetry as testimony at Council meetings. SAC [14] Ex. 1 at 8.
• In response to "Never Let Em See You Sweat," Commissioner Eudaly said "I'm not sweating but I'm going to make them sweat." SAC [14] Ex. 1 at 3.
• After one commenter told another commenter that they "give the peace sign a bad name," Commissioner Eudaly responded, "[Ms. German] gives activism a bad name so I guess they're even." SAC [14] Ex. 1 at 2.
• In a response to a comment that condemned Commissioner Eudaly's post and subsequent comments, Commissioner Eudaly said, "This woman is harassing and libeling me online, spreading misinformation and impugning my character. She comes to my work on a regular basis and is verbally abusive, including screaming, '[expletive] you, Chloe' at me repeatedly. She gives irrelevant testimony, which is sometimes poetry. She's wasted hours of my time, my staffs time, and Council time. Council sessions are limited public forums. We have the right to set the time, place, and manner of speech and she routinely violates the rules. Libel is also a crime. If you are suggesting that my standing up to a bully and a liar is unethical, I'm not sure what to say to you. My job description does not include taking endless abuse without responding to it. These people do what they do in large part because no one wants to stand up to them. But people actually defending their behavior? That's something else." SAC [14] Ex. 1 at 10.
• In response to a different comment, Commissioner Eudaly said "I'm pretty sure defending myself against attacks, sharing events that are public record, and not liking someone's poetry are not crimes." SAC [14] Ex. 1 at 12.

         Because Commissioner Eudaly has blocked Ms. German from viewing her private Facebook page, Ms. German cannot see or reply to these posts. TAC [15] ¶ 5. Ms. German filed a public records request to see Commissioner Eudaly's Facebook page; Commissioner Eudaly denied that request. TAC [15] ¶¶ 7, 8.

         Ms. German additionally alleges that Commissioner Eudaly made up a rude song about Ms. German that called her "garbage," TAC [15] ¶ 23; scolded Ms. German for silencing other people's voices, TAC [15] ¶ 23; and repeatedly walked out of, or was absent from, City Council meetings when Ms. German testified, TAC [15] ¶¶ 14, 15. Ms. German also alleges that she requested that Portland's Bureau of Human Resources and City Council investigate Commissioner Eudaly's actions; both parties rejected Ms. German's request. TAC [15] ¶¶ 21, 22.

         Ms. German brings three claims:

(1) A § 1983 claim that alleges that Defendants violated her rights under the First Amendment and Article I, section 8 of the Oregon Constitution when they retaliated against her for petitioning the government. TAC [15] ¶ 28. Ms. German says Commissioner Eudaly disparaged, embarrassed, and harassed Ms. German in the Facebook post and comments, in the "garbage song," and by sitting out of meetings while Ms. German testified. Those actions, she says, would chill a person of ordinary firmness "from continuing to engage in the protected activity of giving Public Testimony." TAC [15] ¶ 29. She further asserts that City of Portland is responsible for these violations because it engaged in a "custom, pattern, or policy" of allowing Commissioner Eudaly to retaliate or was deliberately indifferent to its failure to train, supervise, and discipline officials who do retaliate. Since § 1983 does not provide a cause of action for violations of state constitutions, Defendants construe Ms. German's complaint to allege both a § 1983 claim for violation of the federal constitution and an independent claim under the Oregon Constitution.
(2) A § 1983 claim that alleges a violation of Ms. German's right to petition the government. Specifically, Ms. German alleges that her right to petition was violated when Commissioner Eudaly blocked Ms. German's access to Commissioner Eudaly's Facebook page, was absent during Ms. German's testimony, and denied Ms. German's public records request for the Facebook page information. Ms. German also alleges that her right to petition was violated by City of Portland when it failed to investigate and correct Commissioner Eudaly's conduct.
(3) A § 1983 claim for violation of due process. Ms. German alleges that Commissioner Eudaly denied Ms. German due process when she blocked her from the Facebook page, walked out during Ms. German's testimony, and denied her public records request.

         For relief, Ms. German requests economic damages, non-economic damages, punitive damages, attorney fees, and costs. [15] ¶ 25. Ms. German also requests various forms of injunctive relief. TAC [15] ¶ 43.Defendants now move to dismiss each of Ms. German's claims under FRCP 12(b)(6). Mot. to Dismiss [16].

         LEGAL STANDARD

         When evaluating a motion to dismiss under Rule 12(b)(6), courts are to accept the well-pleaded factual allegations of a complaint as true and construe all inferences in favor of the nonmoving party. Ariz. Students' Ass 'n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016). Dismissal under Rule 12(b)(6) is warranted if a complaint fails "to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "Conclusory allegations of law ... are insufficient to defeat a motion to dismiss." Lee, 250 F.3d at 679. In civil rights cases involving a plaintiff proceeding pro se, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Vrooman v. Beaver ton Mun. Court, 3:16-cv-2187-AC, 2016 WL 7493967, at *3 (D. Or. Dec. 30, 2016) (citing Butler v. Long, 752 F.3d 1177, 1180 (9th Cir. 2014)).

         A pleading should be dismissed with prejudice if "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co. v. ...


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