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Hershey v. Kaber

United States District Court, D. Oregon, Medford Division

May 17, 2019

KENNETH HERSHEY, Plaintiff,
v.
KLAMATH COUNTY SHERIFF CHRIS KABER, CIRCUIT COURT JUDGE ANDREA JANNEY, Defendants.

          REPORT AND RECOMMENDATION

          MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, a self-represented litigant, brings this civil rights action in forma pauperis ("IFP") against Klamath County Circuit Court Judge Andrea Janney and Klamath County Sheriff Chris Kaber contending that these defendants violated Plaintiffs Fourth and Fourteenth Amendment rights by allowing Klamath County Animal Control Officers to obtain and execute search warrants and seize property. Compl. (#1). This case comes before the Court on Defendant Judge Janney's Motion to Dismiss (#15) as well as Defendant Sheriff Kaber's Amended Motion to Dismiss (#13), both for lack of subject matter jurisdiction and failure to state a claim. For the reasons discussed below, the Court recommends that Defendants' motions to dismiss (#11, #13, #15) be GRANTED. Defendant Judge Janney has absolute judicial immunity from suit for actions performed in her role as a judge and Plaintiffs claims against her should be dismissed with prejudice. Moreover, the Rooker-Feldman doctrine bars the Court from exercising subject matter jurisdiction over this case.

         Also before the Court is Plaintiffs Motion to Take Judicial Notice (#28). The documents that Plaintiff asks the Court to consider do not form the basis of his claims and do not assist the Court in developing its understanding of facts and inferences contained in the body of the Complaint. Therefore, the Court recommends that Plaintiffs motion (#28) be DENIED.

         BACKGROUND

         Defendant Sheriff Kaber appointed Klamath County Animal Control Officer Gale McMahon as a special deputy sheriff with limitations. The appointment stated in part: "affiant of search warrants with prior notification to a Sheriffs Office Supervisor of details of case" and "ability to request warrants through the courts in conjunction with animal control cases." Compl. at 7-8 (#1-1). Special Deputy McMahon had cause to believe that animals on Plaintiffs property were subject to neglect, so he made an application for, and obtained, a search warrant pursuant to ORS 167.345. In September 2017, McMahon and fellow Animal Control Officer James Nielsen entered Plaintiffs property and impounded Plaintiffs animals pursuant to that search warrant.

         Plaintiff was then criminally prosecuted in Klamath County Circuit Court in State of Oregon v. Kenneth Lawrence Hershey. Plaintiff moved to suppress the evidence collected as a result of McMahon's warrant and Defendant Judge Janney denied Plaintiffs motion. Plaintiffs Complaint states no other actions taken by Judge Janney other than her denial of Plaintiff s motion to suppress. Plaintiff included with his Complaint a copy of Defendant's letter explaining her denial of the motion.

         Plaintiffs Complaint alleges that Defendants violated his Fourth and Fourteenth Amendment rights, as well as his rights under the privileges and immunities provision of the Oregon Constitution by "allowing non Oregon certified police officers to obtain and execute search warrants and seize property in violation of statutes forbidding [sic] such occurrences." Compl. at 5, 8 (#1). Plaintiff is seeking "a court ordered injunction to prohibit the abuse of ORS 204.635(2) by Sheriff Kaber." Id. at 6.

         LEGAL STANDARD

         To survive a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), a complaint must contain sufficient facts that "state[s] a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). A claim is plausible on its face when the factual allegations allow the court to infer the defendant's liability based on the alleged conduct. Iqbal, 556 U.S. at 663. The factual allegations must present more than "the mere possibility of misconduct." Id. at 678.

         In evaluating a motion to dismiss, the court must accept all allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir. 2007) (internal citations omitted). However, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555. If the complaint is dismissed, leave to amend should be granted unless the court "determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).

         Pro se pleadings are held to less stringent standards than pleadings by attorneys. Haines v. Kerner, 404 U.S. 519, 520-521 (1972). That is, the court should construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefits of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988) (citation omitted). Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint and the opportunity to amend, unless the complaint's deficiencies cannot be cured by amendment. Id.

         The Court may take judicial notice of publicly recorded documents and may consider the documents without turning this motion into a motion for summary judgment. See, e.g., Shaw v. Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir. 1995); See United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (court may consider documents to which the complaint "refers extensively" or "form the basis of the plaintiffs' claim"); Parrino v. FHP, Inc., 146 F.3d 669, 707 (9th Cir. 1998) ("A court may consider evidence on which the complaint necessarily relies if: (1) the complaint refers to the document; (2) the document is central to the plaintiffs claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.").

         DISCUSSION

         I. Plaintiffs Complaint ...


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