United States District Court, D. Oregon, Medford Division
REPORT AND RECOMMENDATION
D. CLARKE, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
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.
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).
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.
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)
Plaintiffs Complaint ...