United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF U.S. DISTRICT-JUDGE
matter comes before me on Defendants Chloe Eudaly and City of
Portland's Motion to Dismiss  pro se Plaintiff Mimi
German's Third Amended Complaint ("TAC") .
For the reasons given below, I GRANT Defendants' Motion
to Dismiss Ms. German's claims . 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.
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:
German is a political activist who regularly attends Portland
City Council meetings to offer testimony. TAC  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. That post sparked a thread of comments
from others, including: "Lawyer up and sue this
[expletive]" SAC  Ex. 1 at 5; "This woman needs
to be locked up in the nut house" SAC  Ex. 1 at 6;
"I just text[ed] her and told her 100 of us think she is
an [expletive]." SAC  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  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  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  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  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
 Ex. 1 at 12.
Commissioner Eudaly has blocked Ms. German from viewing her
private Facebook page, Ms. German cannot see or reply to
these posts. TAC  ¶ 5. Ms. German filed a public
records request to see Commissioner Eudaly's Facebook
page; Commissioner Eudaly denied that request. TAC 
¶¶ 7, 8.
German additionally alleges that Commissioner Eudaly made up
a rude song about Ms. German that called her
"garbage," TAC  ¶ 23; scolded Ms. German
for silencing other people's voices, TAC  ¶ 23;
and repeatedly walked out of, or was absent from, City
Council meetings when Ms. German testified, TAC 
¶¶ 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 
¶¶ 21, 22.
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  ¶ 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  ¶ 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
(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
relief, Ms. German requests economic damages, non-economic
damages, punitive damages, attorney fees, and costs. 
¶ 25. Ms. German also requests various forms of
injunctive relief. TAC  ¶ 43.Defendants now move to
dismiss each of Ms. German's claims under FRCP 12(b)(6).
Mot. to Dismiss .
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)).
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.