Sornson v. Or. Comm'n on Children

• Decision Date: 13 August 2012
• Docket Number: No. 3:12–cv–190–HZ.,3:12–cv–190–HZ.
• Citation: 887 F.Supp.2d 1111
• Parties: Pamela Jane SORNSON, Plaintiff, v. OREGON COMMISSION ON CHILDREN, a commission created and funded by the Oregon legislature, Mickey Lansing, in her official capacity as Executive Director of the Oregon Commission on Children and Families and in her individual capacity, Marion County, a political subdivision of the state of Oregon, and Casa of Marion County, Inc., an Oregon nonprofit corporation, Defendants.
• Court: U.S. District Court — District of Oregon

887 F.Supp.2d 1111

Pamela Jane SORNSON, Plaintiff,

v.OREGON COMMISSION ON CHILDREN, a commission created and funded by the Oregon legislature, Mickey Lansing, in her official capacity as Executive Director of the Oregon Commission on Children and Families and in her individual capacity, Marion County, a political subdivision of the state of Oregon, and Casa of Marion County, Inc., an Oregon nonprofit corporation, Defendants.

No. 3:12–cv–190–HZ.

United States District Court, D. Oregon.

Aug. 13, 2012.

Linda L. Marshall, Oswego, OR, for Plaintiff.

Marc Abrams, Oregon Department of Justice, Portland, OR, for Oregon Commission on Children and Families and Mickey Lansing.

Kirstin E. Lurtz, Marion County Legal Counsel, Salem, OR, for Marion County.

Brian K. Weeks, John M. Kreutzer, Smith Freed & Eberhard, PC, Portland, OR, for CASA of Marion County, Inc.

OPINION & ORDER

HERNANDEZ, District Judge:

Now before me is the Partial Motion to Dismiss (doc. # 10) filed by the Oregon Commission on Children and Families (“OCCF”) and Mickey Lansing (“Lansing”) (collectively, “Defendants”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule”). Also before me is the Motion to Dismiss (doc. # 15) filed by Marion County (the “County”) pursuant to Rule 12(b)(6).¹ The motions seek to dismiss claims brought by Pamela Jane Sornson (“Plaintiff”) which allege violations of her First Amendment right to free speech pursuant to 42 U.S.C. § 1983 (“ § 1983”) and violations of Oregon's whistleblowing statutes ORS 659A.199 and ORS 659A.203.² For the reasons discussed below, Defendants' Partial Motion to Dismissis GRANTED and the County's Motion to Dismiss is GRANTED.

BACKGROUND

The Complaint alleges the following facts, which I assume to be true for purposes of the Partial Motion to Dismiss and the Motion to Dismiss:

From July 1, 2005, to March 15, 2011, Plaintiff was employed by the Court Appointed Special Advocate of Marion County, Inc. (“CASA”) as its Executive Director. Compl., ¶ 11. CASA was under contract with the County and received state and federal funding through the County. Id., ¶ 10. In 2010, Plaintiff discovered misallocations of federal and state funds that had been appropriated for programs related to CASA. Id., 13. After discovering the misallocation of funds, Plaintiff met with members of the Oregon legislature to voice her concerns. Id., 15.

Plaintiff alleges that Defendants attempted to chill her speech by falsely accusing her of forging documents and of mismanaging CASA. Id., 16. Plaintiff further alleges that the County attempted to chill her speech by sending a letter to the Board of Directors of CASA questioning her activities with the Oregon legislature. Id., 17. Plaintiff also alleges that “Lansing, OCCF, and/or Marion County requested that CASA ... prohibit [her] continued advocacy concerning CASA....” Id., 18. On March 9, 2011, the Board of Directors of CASA directed Plaintiff to stop communicating with members of the Oregon legislature concerning CASA matters, and on March 15, 2011, CASA terminated Plaintiff. Id., 21.

STANDARD

Under Rule 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” To survive a Rule 12(b)(6) motion to dismiss, “a 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “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.” Id.

DISCUSSION

I. Defendants' Partial Motion to Dismiss

I turn first to Defendants' Partial Motion to Dismiss.

A. Claims Against OCCF Pursuant to 42 U.S.C. § 1983

Defendants contend Plaintiff is not entitled to monetary damages under Will v. Michigan Department of State Police, 491 U.S. 58, 64, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989), where the Supreme Court held that a State is not a “person” within the meaning of § 1983. Plaintiff responds that OCCF is not an “arm of the state” and is therefore subject to suits brought under § 1983.

Section 1983 provides as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

The Eleventh Amendment, however, provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Austin v. State Indus. Ins. Sys., 939 F.2d 676, 677 (9th Cir.1991). “Immunity from suit under the Eleventh Amendment further extends to suits by citizens against their own state and certain actions against state agencies and state instrumentalities.” Holz v. Nenana City Public Sch. Dist., 347 F.3d 1176, 1180 (9th Cir.2003) (citations omitted). The Supreme Court has “consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a slice of state power.” Lake Country Estates, Inc. v. Tahoe Reg'l Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 59 L.Ed.2d 401 (1979) (internal quotation marks and citations omitted).

The decision to extend sovereign immunity to a public entity turns on whether the entity “is to be treated as an arm of the State partaking of the State's Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend.” Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Under the “arm of the state” doctrine, a state agency is immune from suit under the Eleventh Amendment if the state is the “real, substantial party in interest” and is empowered to invoke its sovereign immunity from suit, even though individual officials or state entities are nominal defendants. Durning v. Citibank, N.A., 950 F.2d 1419, 1423 (9th Cir.1991) (internal quotation and citations omitted). Sovereign immunity cloaks the state agent or agency because, if the plaintiff prevails, such a judgment “would have the same effect as if it were rendered directly against the State for the amount specified in the complaint.” Id. (internal quotation and citations omitted). In the Ninth Circuit, courts employ the following five-factor test (hereinafter, the “Mitchell Test” or “Mitchell Factors”) to determine whether an entity is an arm of the state:

[1] whether a money judgment would be satisfied out of state funds, [2] whether the entity performs central governmental functions, [3] whether the entity may sue or be sued, [4] whether the entity has the power to take property in its own name or only the name of the state, and [5] the corporate status of the entity.

Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 250–51 (9th Cir.1992) (quoting the seminal case Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir.1989)).

When analyzing whether an entity is an arm of the state under the Mitchell Factors, a court looks to the way state law treats the entity. ³See, e.g., ITSI T.V. Prods., Inc. v. Agric. Ass'ns, 3 F.3d 1289, 1292 (9th Cir.1993) (quoting Mitchell, 861 F.2d at 201).

Because a state can waive its sovereign immunity, the Ninth Circuit treats Eleventh Amendment immunity as an affirmative defense rather than a jurisdictional bar. See Miles v. Cal., 320 F.3d 986, 988 (9th Cir.2003); Hill v. Blind Indus. and Serv. of Md., 179 F.3d 754, 762 (9th Cir.1999). Accordingly, Eleventh Amendment immunity “must be proved by the party that asserts it and would benefit from its acceptance.” ITSI, 3 F.3d at 1291.

1. Whether a Money Judgment Would be Satisfied Out of State Funds

“The first prong of the Mitchell test—whether a money judgment would be satisfied out of state funds—is the predominant factor. This factor is given additional weight because the impetus of the Eleventh Amendment is the prevention of federal-court judgments that must be paid out of a state's treasury....” Beentjes v. Placer Cnty. Air Pollution Control Dist., 397 F.3d 775, 778 (9th Cir.2005) (quotation marks and citations omitted). The question is “whether a judgment against the defendant entity under the terms of the complaint would have to be satisfied out of the limited resources of the entity itself or whether the state treasury would also be legally pledged to satisfy the obligation.” Durning, 950 F.2d at 1424;Eason v. Clark Cnty. Sch. Dist., 303 F.3d 1137, 1142 (9th Cir.2002) (“[I]t is the entity's potential legal liability, rather than its ability or inability to require a third party to reimburse it, or to discharge the liability in the first instance, that is relevant.”) (Citation omitted).

Plaintiff contends that a judgment in this case would be satisfied from an independent account (the “OCCF Account”), which she asserts is separate from the General Fund. I disagree.

Under ORS 417.710, OCCF carries out its duties and functions through the “combination of local, state and federal funding, including the leveraging of public and private funds”.⁴ORS 417.710(4). All federal moneys collected or received by OCCF, however, must be “accepted and transferred or expended” in accordance with the “terms and conditions as are prescribed by the federal government.” ORS 417.735(b). Similarly, all non-federal “moneys and other property accepted by [OCCF]” must be “transferred,...