Nisley v. Rosenblum

• Docket Number: 3:21-cv-01011-SB
• Decision Date: 23 May 2022
• Parties: ERIC NISLEY, Plaintiff, v. ELLEN F. ROSENBLUM, in her individual capacity; FREDERICK BOSS, in his individual capacity; and WASCO COUNTY, a political subdivision of the State of Oregon, Defendants.
• Court: U.S. District Court — District of Oregon

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ERIC NISLEY, Plaintiff, v. ELLEN F. ROSENBLUM, in her individual capacity; FREDERICK BOSS, in his individual capacity; and WASCO COUNTY, a political subdivision of the State of Oregon, Defendants.

No. 3:21-cv-01011-SB

United States District Court, D. Oregon

May 23, 2022

OPINION AND ORDER

HON STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

Eric Nisley (“Nisley”) brings this 42 U.S.C. § 1983 action against Oregon Attorney General Ellen Rosenblum (“Rosenblum”), Oregon Deputy Attorney General Frederick Boss (“Boss”) (together, the “State Defendants”), and Wasco County (the “County”). Nisley alleges claims for violations of his procedural and substantive due process rights violations of his right to equal protection, intentional interference with economic relations (“IIER”) negligence, negligence per se, and conversion.

The State Defendants and the County move to dismiss Nisley's claims for failure to state a claim upon which relief can be granted. See FED. R. CIV. P. 12(b)(6). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636(c). For the reasons explained below, the Court grants both motions to dismiss.

BACKGROUND^[1]

This case concerns Nisley's time serving as the County's district attorney. (Am. Compl. ¶¶ 6-7.) Nisley was reelected as the district attorney and began serving a four-year term in January 2017. (Id. ¶ 8.) Nisley filed as a candidate for reelection in September 2019. (Id. ¶ 9.)

In December 2019, the Oregon Supreme Court concluded that Nisley “violated the Oregon Rules of Professional Conduct and ordered that he be temporarily suspended from the practice of law for a period of [sixty] days.” (Id. ¶ 11.) In late January 2020, about two weeks before the suspension began, Boss sent a letter to Oregon Governor Kate Brown (the “Governor”), advising her that Nisley's suspension would render the County's office of district attorney “vacant” within the meaning of OR. REV. STAT. § 236.010(1)(g).^[2] (Am. Compl. ¶¶ 1112.) Boss also advised the Governor to “take ‘immediate action' to appoint a successor, ” and suggested that Rosenblum's office was prepared to discharge Nisley's responsibilities. (Id. ¶ 12.)

In early February 2020, the Governor sent a letter to Rosenblum stating, “I am compelled to direct you to discharge the responsibilities of the Wasco County District Attorney starting on February 10, 2020, until I can appoint a successor or one is lawfully elected.” (Id. ¶ 15.)

Thereafter, in response to Boss and Rosenblum's “request or direction” and in accordance with the County's Board of Commissioners' (the “Board”) decision to “comply, ” the County removed Nisley's name from its website and the district attorney's office, and informed the public that an assistant attorney general would serve as the acting district attorney. (Id. ¶ 16.)

On February 10, 2020, the County “excluded” Nisley from the district attorney's office and Rosenblum and Boss sent Oregon Department of Justice (“DOJ”) staff members to “assume control” of the district attorney's office. (Id. ¶¶ 16-17.) The DOJ staff members instructed the office's personnel to “refrain from speaking with [Nisley].” (Id. ¶ 17.) Around the same time, Boss and Rosenblum, or DOJ “officials acting in concert with them and at their direction, ” caused the State of Oregon (the “State”) to stop paying Nisley's salary as of February 10, 2020, and to terminate Nisley's employer-provided health insurance. (Id. ¶ 18.)

Nisley asserts that he received no prior notice or opportunity to be heard regarding the State Defendants and County's above-referenced actions, and that despite receiving a detailed written analysis from Nisley's counsel, the State Defendants “refused to reconsider their legal advice to the Governor and the actions that they undertook or caused to be undertaken to terminate [Nisley's] employment and oust him from his public office.”^[3] (Id. ¶¶ 20-21.) Nisley also asserts that although other Oregon district attorneys have been suspended from the practice of law, they continued to “hold the office of district attorney, ” “be paid his or her regular salary and benefits, ” and “enjoy all of the perquisites of the office during the period of their suspension and until they left the office through resignation, recall or the end of their term[.]” (Id. ¶ 14.)

In March 2020, not long after Nisley's removal from office became public and only a few weeks before the primary election, another candidate launched a campaign for the County's office of district attorney. (Id. ¶ 22.) Nisley lost his bid for reelection in May 2020. (Id.)

Four months later, on September 24, 2020, the Oregon Supreme Court issued a decision holding that despite Nisley's temporary suspension, “the office of Wasco County District Attorney did not become vacant, and [Nisley] remain[ed] the rightful holder of the office until the expiration of his term of office.” (Id. ¶ 23, quoting Nisley, 473 P.3d at 55.) After the Oregon Supreme Court issued its decision, the Governor sent a letter to Rosenblum rescinding her February 4, 2020 directive, and the State restored Nisley's “position and paid both his salary and insurance benefits for the interim period.” (Id. ¶ 24.) Nisley returned to the district attorney's office in October 2020 and completed his four-year term in January 2021. (Id. ¶ 25.)

In early 2021, Hood River County offered Nisley a temporary position as a deputy district attorney, but later revoked the offer (before Nisley accepted) after receiving negative information about Nisley's qualifications and character. (Id. ¶¶ 26-27.) In mid-2021, Jefferson County offered Nisley a position as a deputy district attorney, but later limited the offer to ninety days after receiving negative information about Nisley's qualifications and character. (Id. ¶¶ 26, 28.) Nisley accepted the temporary position in Jefferson County and currently works there, and will need to relocate his family if it turns into a permanent position. (Id. ¶ 29.)

Based on these events, Nisley filed this § 1983 action against the State Defendants and County on July 9, 2021. In his amended complaint, filed on October 21, 2021, Nisley alleges claims for violations of his procedural and substantive due process rights, violations of his right to equal protection, intentional interference with economic relations, negligence, negligence per se, and conversion.

LEGAL STANDARDS

To survive a motion to dismiss under FED. R. CIV. P. 12(b)(6), a plaintiff's “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (simplified).

DISCUSSION

I. THE STATE DEFENDANTS' MOTION

The State Defendants argue that Nisley fails to state plausible claims for violation of his right to equal protection, violation of his substantive due process rights, and negligence. (State Defs.' Mot. Dismiss at 2.) As explained below, the Court agrees and grants the State Defendants' motion to dismiss.

A. Equal Protection

1. Applicable Law

“[A]n equal protection claim can in some circumstances be sustained even if the plaintiff has not alleged class-based discrimination, but instead claims that []he has been irrationally singled out as a so-called ‘class of one.” SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122 (9th Cir. 2022) (quoting Engquist v. Or. Dep't of Agric., 553 U.S. 591, 601 (2008)). Nisley claims that he has been irrationally singled out as a “class of one.” (See Am. Compl. ¶¶ 47-49, alleging that the State Defendants treated Nisley differently than “[e]very other Oregon District Attorney who had previously been suspended from the active practice of law”; Pl.'s Resp. State Defs.' Mot. at 7, maintaining that Nisley has plausibly alleged a class-of-one claim).

To state a class-of-one equal protection claim, Nisley “must allege facts showing that [he has] been ‘(1) intentionally (2) treated differently from others similarly situated and that (3) there is no rational basis for the difference in treatment.'” SmileDirectClub, 31 F.4th at 1122-23 (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Until recently, the Ninth Circuit had “not had occasion to determine what degree of similarity makes a plaintiff ‘similarly situated' to others in the class-of-one context, and the Supreme Court has offered little guidance on that front.” Id. at 1123. In SmileDirectClub, however, the Ninth Circuit “join[ed] [its] sister circuits in holding that a class-of-one plaintiff must be similarly situated to the proposed comparator in all material respects, ” noting by way of example that the Second Circuit has “explained that class-of-one plaintiffs must show an extremely high degree of similarity between themselves and the persons to whom they compare themselves, ” and the Seventh Circuit likewise requires a plaintiff to be “directly comparable in all material respects to the comparator.” Id.(simplified).

2. Analysis

The State Defendants argue that Nisley fails adequately to allege a class-of-one equal protection claim because his allegations do not establish that they treated...