IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

GARY ALLEN HARRINGTON 

Plaintiff, 

v. 

STATE OF OREGON, et al., and 

THE UNITED STATES OF AMERICA, et al., 

Defendants. 

CLARKE, Magistrate Judge. 

Civ. No. 1 : l 6-cv-00200-CL 

REPORT 

& RECOMMENDATION 

Plaintiff Gary Allen Harrington brings this action pro se. He alleges that Oregon 

executive, judicial, and administrative officials committed a variety of tort and constitutional law 

transgressions. Mr. Harrington also names various federal defendants. Eugene Pringle filed a 

motion to intervene while the present matter was pending. 

The Court evaluates the complaint under pro se pleading standards, which instruct that 

filings be liberally construed. Hebbe v. Pliler, 627 F.3d 338, 343 (9th Cir. 2010). For the 

reasons set forth below, the state and federal defendants' separately-filed Motions to Dismiss 

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Case 1:16-cv-00200-CL Document 39 Filed 09/08/16 Page 1 of 8
(Dckt. # 15, 21) should be GRANTED. The Motion to Intervene (Dckt. # 32) should be 

DENIED. 

FACTS 

Mr. Harrington's water use has been the subject of protracted civil and criminal litigation 

in Oregon courts, and an earlier civil complaint in this Court. Mr. Harrington owns property 

near Crow Foot Creek, 1 and has stored water without state permits on this land. He was 

convicted of illegally storing water in 2004, and his subsequent appeals were unsuccessful. 

Harrington v. Water Res. Dep't., 216 Or. App. 16 (2007). In 2007, Mr. Harrington brought the 

matter to this Court, alleging various claims under 42 U.S.C. § 1983. This Court granted 

summary judgment to defendants. Harrington v. Ward et al., Civ. No. 06-460-CL, 2007 WL 

2816214 (D. Or. 2007) (Clark, J.). Mr. Harrington continued to illegally store water, and was 

again prosecuted in 2008; following completion of probation he recommenced illegally storing 

water. He was again convicted in 2012. Mr. Harrington refused the Jackson County Circuit 

Court's order to cease water storage, and state agency officials entered the property upon order 

and drained the reservoirs. 

STANDARDS 

To survive a motion to dismiss for failure to state a claim, a complaint must "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)). It must contain sufficient factual plausibility 

to allow the court to draw a reasonable inference that defendant is liable for the alleged 

misconduct. Iqbal, 556 U.S. at 678. Conclusions are not entitled to presumptions of truth, id. at 

1 Mr. Harrington maintains that he recently transferred title to the Farm of the Family Recreation Association, which 

is composed of Mr. Harrington and his family. The distinction is presently irrelevant. 

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Case 1:16-cv-00200-CL Document 39 Filed 09/08/16 Page 2 of 8
679, and formulaic recitation of the elements of a claim are insufficient. Id. at 681. However, 

the Court may dismiss the matter "'only where there is no cognizable legal theory" or there is an 

"absence of sufficient factual matter to state a facially plausible claim for relief." Shroyer v. New 

Cingular Wireless Services, Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). Evaluating pleading is a 

"context-specific task" that requires the reviewing court to draw upon experience and common 

sense. Iqbal, 556 U.S. at 679. 

Pleadings presented pro se "must be held to a less stringent standard than formal 

pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal citations 

omitted). The Court may not dismiss the matter on the grounds that allegations were too 

conclusory, id., and pro se filings are construed liberally in evaluating a motion to dismiss. 

Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). Dismissal of a prose complaint without 

leave to amend is proper "only if it is absolutely clear that the deficiencies of the complaint could 

not be cured by amendment." Rouse v. US. Dep 't of State, 567 F .3d 408, 4178-19 (9th Cir. 

2008) (quoting Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007)). 

DISCUSSION 

Mr. Harrington alleges four tort and four constitutional claims. The tort claims are 

trespass, false arrest, imprisonment, and breach of fiduciary duty (Claims One, Three, Four, and 

Seven). The constitutional claims are taking, impairment of contractual obligation, cruel and 

unusual punishment, and due process violation (Claims Two, Five, Six, and Eight). The Court 

liberally construes Plaintiffs' Complaint, and finds that it raises claims under 42 U.S.C. § 1983 

against various Oregon state officials, and direct tort, contract, and constitutional claims against 

three federal officials. 

Ill 

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I. State Defendants' Immunity 

Oregon state defendants claim immunity based upon judicial, prosecutorial, and official 

capacity immunity standards. Any of these is "immunity from suit, not just from ultimate 

assessment of damages." Mireles v. Waco, 502 U.S. 9, 11 (1991) (citing Mitchell v. Forsyth, 472 

U.S. 511, 526 (1985)). The Court is instructed to make determinations of immunity early in the 

course of litigation because it presents "entitlement to immunity from suit, rather than a mere 

defense to liability." Pearson v. Callahan, 555 U.S. 808, 815 (2009) (quoting Mitchell v. 

Forsyth, 472 U.S. 511, 526 (1985)). The proponent of an immunity claim bears the burden of 

establishing its justification. Antoine v. Byers & Anderson, Inc., 508 U.S. 429 431 (1993). 

A. Judicial Immunity 

Mr. Harrington seeks damages from Jackson County Circuit Judges Lorenzo Mejia and Tim 

Gerking. Compl., p. 2 (Dckt. #1). He claims specifically that they deprived him of due process 

rights, failed to provide a "meaningful trial," and, consequently, improperly ordered his 

incarceration and subsequent solitary confinement. Id. at 4. 

Judicial immunity is absolute and cannot be overcome by allegations of bad faith and malice. 

Mireles, 502 U.S. at 11. It would only not apply when a judicial officer takes actions outside of 

the judicial officer's official capacity, or in absence of jurisdiction. Id. at 11-12 (internal 

citations omitted). These circumstances are not present. Although Mr. Harrington infers Oregon 

courts are without jurisdiction in matters pertaining to his conduct, this is unfounded. The claims 

against Judges Mejia and Gerking should be dismissed. 

Ill 

Ill 

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B. Prosecutorial Immunity 

Mr. Harrington seeks similar recourse regarding Oregon Attorney General Ellen Rosenblum 

and Assistant Attorney General Patrick Flanagan. Compl., p. 2. Both were involved in Mr. 

Harrington's prosecution for criminal water law violations. Defendants named because of their 

prosecutorial functions are entitled to absolute immunity. Olsen v. Idaho State Bd. of Med. 

Examiners, 363 F.3d 916, 922 (9th Cir. 2004). The claims against Ms. Rosenblum and Mr. 

Flanagan should be dismissed. 

C. Qualified Immunity 

Mr. Harrington's claims against the remaining Oregon state defendants - Governor Kate 

Brown, Jeff Allison, Brad Bennett, Everett Carroll, Barton Chapman, Mike Cushman, Dwight 

French, David Gifford, Reich Gonsalves, Jeremiah Griffin, George Harshman, Anita Huffman, 

Marty Marchand, Jerry Marmon, Janelle McFarland-Dunlevy, Larry Menteer, Kirk Meyer, Keith 

Mills, Josh Nugent, Steve Sill, Jason Stone, Bruce Sund, Gary Thompson, Jeff Thompson, 

Phillip Ward, a Larry Withers - all relate to state officials performing official duties. Aside from 

the Governor, these defendants work for the Oregon State Police, Department of Water 

Resources, and Department of Transportation. 

Qualified immunity shields government officials acting in the course of duty when he or she 

makes a decision that "even if constitutionally deficient, reasonably misapprehends the law 

governing the circumstances she confronted." Brosseau v. Haugen, 543 U.S. 194, 198 (2004). 

Where an officer did not violate clearly established law, further analysis is unnecessary. 

Callahan, 555 U.S. at 243. 

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The Court has carefully examined the Complaint. It alleges no unlawful act on the part of 

any Oregon official. All were acting in performance of their respective offices and duties. The 

named persons are therefore entitled to qualified immunity. 

II. Federal Defendants 

The Complaint names U.S. Attorney Loretta Lynch, Secretary of the Interior Sally Jewell, 

and Bureau of Land Management Director Neil Kornze. Compl. p. 1-2. It neither alleges nor 

describes any acts performed by these defendants. 

It is axiomatic that a complaint must contain a "short and plain statement of the claim for 

relief." Fed. R. Civ. P. 8(a)(2). Further, it must contain sufficient factual information to state a 

claim that is "plausible on its face." Iqbal, 556 U.S. at 678. 

Without factual allegations describing identifiable conduct by the federal plaintiffs, no claim 

arises for evaluation under even the most liberal pleading standards. The claims against them 

should be dismissed. 

III. Leave to Amend 

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 prose 

plaintiffs liberally and afford the plaintiffs the benefits of any doubt. Karim-Panahi v. Los 

Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (citation omitted). Additionally, a prose 

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. 

Mr. Harrington should be given an opportunity to amend and refile his claims against 

those Oregon state defendants entitled to qualified immunity. The Court cannot say that it would 

be impossible for Mr. Harrington to allege facts sufficient to state a claim for relief on all issues 

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raised in the Complaint relating to these defendants. Because it is not "absolutely clear that the 

deficiencies of the complaint could not be cured by amendment," Mr. Harrington should be 

given an opportunity to amend and refile. Stanger v. City of Santa Cruz, 653 F.2d 1257, 1257-58 

(9th Cir.1980); Broughton v. Cutter Laboratories, 622 F .2d 458, 460 (9th Cir. 1980). 

With respect to all other defendants, however, dismissal without leave to amend is 

appropriate. Amended pleadings will not circumvent the absolute immunity held by Jackson 

County Circuit Judges Lorenzo Mejia and Tim Gerking, as well as Oregon Attorney General 

Ellen Rosenblum and Assistant Attorney General Patrick Flanagan. Moreover, no federal official 

participated in any act or event related to Mr. Harrington's claims. Therefore, any attempt to 

amend with respect to these defendants would be futile. In such circumstances, dismissal without 

leave to amend is appropriate. Rouse, 567 F.3d at 418-19. 

RECOMMENDATION 

For the reasons stated above, Motions to Dismiss presented by state and federal 

defendants (Dckt. # 15, 21) should be GRANTED. Mr. Harrington should be given an 

opportunity to amend and refile his Complaint as it pertains to those Oregon state defendants 

entitled to qualified immunity. Regarding all other defendants, however, dismissal without leave 

to amend is appropriate. Finally, the Motion to Intervene (Dckt. # 32) should be DENIED as 

moot. 

This Report and Recommendation will be referred to a district judge. Objections, if any, 

are due no later than fourteen (14) days after the date this recommendation is filed. FED. R. C1v. 

P. 72. If objections are filed, any response is due within fourteen (14) days after being served 

with a copy of the objections. Id. Parties are advised that the failure to file objections within the 

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Case 1:16-cv-00200-CL Document 39 Filed 09/08/16 Page 7 of 8
specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951'F.2d 

1153 (9th Cir. 1991). 

a 

DA TED this _v-""- ""'"--· __ day of September 2016. 

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