Fial et al v. Childpeace Montessori

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN FIAL and J.F., a minor, by his next 	Case No. 3:25-cv-00696-JR
friend, JOHN FIAL,
Plaintiffs, 	AMENDED FINDINGS AND
RECOMMENDATION
v.
CHILDPEACE MONTESSORI (a private
educational institution),
Defendant.
Russo, Magistrate Judge:
Pro se plaintiff John Fial brings this action against defendant Childpeace Montessori.
Defendant moves to dismiss plaintiff’s complaint pursuant Fed. R. Civ. P. 12(b)(6). For the reasons
stated below, defendant’s motion is granted.
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BACKGROUND1
Plaintiff is the “biological father” of J.F., a former student at defendant’s school. Am.
Compl. pg. 5 (doc 6). Plaintiff’s ex-spouse (and co-parent of J.F.) is employed by defendant. Id.
at pg. 6. Her role required her to work within “approximately 30 to 50 feet of the main indoor
entrance/exit used daily by Plaintiff and J.F. during school pickups and drop-offs,” which “created
a continuous and unresolved conflict of interest.” Id. at pgs. 6-7.
In December 2023, a teacher testified during plaintiff’s divorce/custody proceedings,
“mark[ing] the origin of [his] conflict with” defendant. Id. at pg. 7.
On January 3, 2024, plaintiff attempted to “exercise his legal parenting time” by pulling
J.F. out of school, but was “alerted [by defendant that J.F.] had not been dropped off that day.” Id.
at pg. 8. Plaintiff was “concern[ed] [and] called the police for a welfare check.” Id. “Officers later
confirmed that minor J.F. was safe . . . visiting [with his] maternal grandmother.” Id.
On January 4, 2024, defendant “issued its first exclusion order against [p]laintiff.” Id.
Plaintiff “complied with the ban” and, on February 15, 2025, met with school personnel “to regain
basic access to his son’s drop-offs[.]” Id. at pg. 9. During this meeting, plaintiff signed a “speech
restricting agreement.” Id. This agreement outlined defendant’s expectations for plaintiff’s
behavior2 and “impos[ed] written conditions on [his] campus access.” Pl.’s Resp. to Mot. Dismiss
1 In conjunction with his opposition, plaintiff has introduced a number of facts outside the
pleadings. Plaintiff cannot introduce new facts via his briefing and instead must include any
relevant facts in the complaint itself (or as an attachment or exhibit thereto). See Schneider v. Cal.
Dep’t of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998) (when reviewing the sufficiency of
pleadings, “a court may not look beyond the complaint to a plaintiff’s moving papers”) (citation
omitted). The Court has nonetheless considered these additional facts in evaluating the present
motion.
2 Amongst other things, it precluded plaintiff from using the “children’s bathrooms,” following or
filming school personnel, or “discuss[ing] [his] trial [or] any testimony . . . with any of the staff”
except his ex-wife. Pl.’s Resp. to Mot. Dismiss Ex. 2 (doc. 18-2).
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10 (doc. 18).
On March 28, 2025, while J.F. was still one of defendant’s students, plaintiff sent an email
“to Childpeace leadership [and] a few fellow parents in the same classroom as his son” regarding
the teacher’s “perjury” during his December 2023 trial. Am. Compl. pgs. 7, 10 (doc. 6). In
particular, plaintiff included a “full transcript” of the teacher’s testimony, acknowledged
inadvertently submitting a photo with his “visible . . . rear end” to a school photo book, 	and
requested a written apology. Pl.’s Resp. to Mot. Dismiss Ex. 3 (doc. 18-3). The teacher in question
had recently announced her imminent resignation, which “[p]laintiff viewed . . . as an opportunity
to finally raise concerns about her past conduct.” Am. Compl. pg. 10 (doc. 6). He then filed a
police report “concerning testimony given by Childpeace staff during the December 2023 custody
trial,” and “informed the school leadership of the police report.” Id. at pg. 11; Pl.’s Resp. to Mot.
Dismiss Ex. 4 (doc. 18-4).
On April 17, 2025, defendant “respon[ded] to [plaintiff’s] disruptive communications with
the Childpeace community” by issuing its second ban and notifying plaintiff that he would not be
permitted to access school grounds or school-sponsored events. Am. Compl. pg. 11 (doc. 6); Pl.’s
Resp. to Mot. Dismiss Ex. 5 (doc. 18-5). Plaintiff informed defendant that “he was drafting this
federal lawsuit against the school.” Am. Compl. pg. 11 (doc. 6).
On April 21, 2025, plaintiff arrived at defendant’s property to drop J.F. off at school.
Compl. ¶ 16 (doc. 1). A private security guard then blocked plaintiff, informed him that he was
trespassing, and directed him to leave defendant’s property. Id.; Pl.’s Resp. to Mot. Dismiss 9 (doc.
18). “Plaintiff moved his vehicle off campus property to avoid escalation and contacted 911 to
confirm his lawful right to drop off his son. No police officer responded before [he] left peacefully
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to attend to other personal and professional obligations.” Compl. ¶ 17 (doc. 1); Pl.’s Resp. to Mot.
Dismiss Ex. 6 (doc. 18-6). Plaintiff thereafter repeatedly contacted defendant to “raise [concerns]
regarding retaliation and constitutional violations.” Compl. ¶ 18 (doc. 1).
On April 22, 2025, plaintiff “peacefully meditated in front of the school on public property,
after that morning’s drop-off.” Am. Compl. pg. 12 (doc. 6). J.F. was “expelled” later that day. Id.
On April 24, 2025, plaintiff was called by a Portland police officer, “following [up on]
vague reports suggesting he posed a safety threat to the school.” Id. The “telephone [conversation]
was calm and civil [and] no further action [was taken nor was an] official report . . . filed or pursued.” Id.
Over the next few days, plaintiff contacted defendant repeatedly. Id. After receiving no
response, plaintiff initiated this lawsuit. Id. On April 28, 2025, “[p]laintiff peacefully protested
outside Childpeace on public property, distributing fliers and copies of the complaint. A private
security guard behaved aggressively; Portland Police briefly arrived and left without incident.” Id.
at pg. 13.
On May 29, 2025, plaintiff lodged his amended complaint, alleging the following claims
under 42 U.S.C. § 1983: (1) “Violation of Fourteenth Amendment (Due Process and Family
Integrity),” (2) “Violation of First Amendment (Free Speech and Retaliation),” and (3) “Violation
of Fourteenth Amendment (Equal Protection and Viewpoint Discrimination).” Id. at pgs. 14-16.
Plaintiff seeks economic, emotional, and punitive damages (along with attorney fees), as well as
an injunction ordering defendant to provide access to school grounds and reinstate J.F. Id. at pgs.
18-21.
STANDARDS
When a plaintiff “fails to state a claim upon which relief can be granted,” the court must
dismiss the action. To survive a motion to dismiss, the complaint must state “enough facts to state
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a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
When a party brings a motion to dismiss, the court will liberally construe the complaint in favor
of the plaintiff and take its allegations as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir.
1983). However, bare assertions that are a “formulaic recitation of the elements” of a claim “are
conclusory and not entitled to be assumed as true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009).
To state a plausible claim to relief, the plaintiff must allege facts in the complaint that “contain
sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d
1202, 1216 (9th Cir. 2008).
Pro se pleadings are held to a less stringent standard than those drafted by attorneys. See,
e.g., Hainer v. Kerner, 404 U.S. 519, 520 (1972). The court may instruct the pro se litigant
regarding deficiencies in the complaint and grant the plaintiff leave to amend. Eldridge v. Block,
832 F.2d 1132, 1136 (9th Cir. 1987). However, a pro se plaintiff’s claims may be dismissed without
leave to amend where it appears beyond doubt that the plaintiff can prove no set of facts which
would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
DISCUSSION
Defendant argues that prejudicial dismissal is warranted because plaintiff fails to state a
claim upon which relief may be granted. Def.’s Mot. Dismiss 2, 16-17 (doc. 14). Specifically,
defendant contends it is not a state actor, plaintiff cannot represent J.F., and the complaint fails to
sufficiently plead a plausible claim under the Fourteenth and First Amendments. Id. at 5-15.
Plaintiff agrees to withdraw claims regarding J.F., but he otherwise opposes defendant’s
motion. Pl.’s Resp. to Mot. Dismiss 23 (doc. 18); see also Johns v. Cnty. of San Diego, 114 F.3d
874, 877 (9th Cir. 1997) (“[a] parent or guardian cannot bring an action on behalf of a minor child
without retaining a lawyer”). In particular, plaintiff asserts that state action exists pursuant to the
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joint action and government nexus tests, and in the alternative, that defendant meets the public
function test. Pl.’s Resp. to Mot. Dismiss 10-11 (doc. 18).
I. 	State Action
To state a plausible § 1983 claim, the plaintiff must allege facts demonstrating: (1) the
defendant’s conduct “violat[ed] . . . a right secured by the Constitution and laws of the United
States; and (2) the conduct “was committed by a person acting under color of state law.” West v.
Atkins, 487 U.S. 42, 2255-56 (1988). Where, as here, “the defendant is a private party . . . the
question is whether his conduct has sufficiently received the imprimatur of the State so as to make
it ‘state’ action.” Blum v. Yaretsky, 457 U.S. 991, 1003 (1982). Thus, a § 1983 claim may be
successfully asserted against a private party if one of the following four tests are met: (1) public
function, (2) joint action, (3) government compulsion or coercion, or (4) governmental nexus.
Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003).
A. 	Public Function
Under the public function test, “when private individuals or groups are endowed by the
state with powers or functions governmental in nature, they become agencies or instrumentalities
of the state and subject to its constitutional limitations.” Id. at 1093. The public function test can
be met upon a showing that the function at issue is “both traditionally and exclusively
governmental.” Id.
As the complaint acknowledges, defendant is a “private educational institution.” Am.
Compl. pg. 1 (doc. 6). Courts have uniformly held that private schools do not meet the public
function test as education is not traditionally or exclusively governmental. See, e.g., Rendell-Baker
v. Kohn, 457 U.S. 830, 842 (1982); see also Logiodice v. Trs. of Me. Cent. Inst., 296 F.3d 22, 26-
27 (1st Cir. 2002) (“obviously, education is not and never has been a function reserved to the state
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. . . schooling . . . is regularly and widely performed by private entities; this has been so from the
outset of this country’s history”).
Indeed, plaintiff has not cited to, and the Court is not aware of, any authority holding that
education is traditionally or exclusively governmental. The complaint otherwise does not contain
any facts suggesting that defendant operated under the state’s “compulsory education system” or
“employ[ed] police to enforce these exclusions.” Am. Compl. pg. 17 (doc. 6). Plaintiff therefore
neglects to allege facts establishing state action under the public function test.
B. 	Joint Action
Under the joint action test, the court examines whether “the state has so far insinuated itself
into a position of interdependence with the private entity that it must be recognized as a joint
participant in the challenged activity.” Kirtley, 362 F.3d at 1093 (internal citation omitted).
Alternatively, the plaintiff may establish joint action where a private party is “a willful participant
in joint action with the State or its agent.” United States v. Price, 383 U.S. 787, 794 (1966).
However, “the mere fact that a private business is subject to state regulation does not by itself
covert its actions into that of the state for the purposes of the Fourteenth Amendment.” Blum, 457
U.S. at 1004 (citation and internal quotations omitted).
Plaintiff alleges that “Childpeace’s role in fulfilling Oregon’s compulsory education law,
coordination with public law enforcement, and operation as a publicly regulated education entity
places it ‘under color of state law.’” Am. Compl. pgs. 6, 17-18 (doc. 6). However, plaintiff’s own
correspondences contradict this theory. See Pl.’s Resp. to Mot. Dismiss Ex. 3 (doc. 18-3) (plaintiff
denoting that a “private school like Childpeace has no public board of education, no state-level
oversight, and very few checks on internal wrongdoing”). And the statutory scheme plaintiff cites,
Or. Rev. Stat. § 339.010 et seq., applies to parents rather than schools. Further, police enforcement
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of a trespass action does not necessarily transform private action into state action.3 To hold that
each time there is police involvement in a private matter transforms that entity into a public entity
would misconstrue the constitutional rights at issue.
Further, the complaint does not include any facts establishing the requisite state action. Rather,
plaintiff alleges he: (1) contacted police to perform a welfare check related to J.F. after being
informed he was not at school, (2) filed a police report against a former teacher for perjury
emanating from his divorce proceedings, with no follow up indicated, (3) called the police, who
did not respond, after he was directed to leave defendant’s property by a private security guard,
(4) spoke on the phone from an undisclosed location with an officer peaceably and without further
follow up, and (5) contacted police after he was trespassed by private security a second time; police
“briefly arrived and left without incident.” Compl. ¶ 17 (doc. 1); Am. Compl. pgs. 8, 12-13 (doc. 6).
These facts do not reflect that the police sanctioned or condoned defendant’s exclusion of
plaintiff. Finally, there are no facts suggesting the state was involved in defendant’s underlying
decisions. See Chasse v. Humphreys, 2009 WL 3334912, *6-12 (D. Or. Oct. 13, 2009) (where the
state does not intrude on the defendant’s decision making, there can be no state action). Thus,
plaintiff has not plead facts meeting the joint action test.
C. 	Government Compulsion/Coercion
The government compulsion test examines whether “the coercive influence or significant
3 Plaintiff cites to Howerton v. Gabica in support of the proposition that “repeated police assistance
to a landlord’s eviction effort transformed private action into state action.” Pl.’s Resp. to Mot.
Dismiss 11 (doc. 18). But, as discussed herein, the facts of this case stand in stark contrast to Howerton.
That is, in Howerton the police intervened at every step, aiding the landlord’s self-help in evicting
the tenants. Howerton v. Gabica, 708 F.2d 380, 384 (9th Cir. 1983). Moreover, “the police officer
actively intervened—he privately approached the Howertons and recommended that they leave the
trailerhouse.” Id. And officers engaged in other actions that “created an appearance that the police
sanctioned the eviction.” Id.
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encouragement of the state effectively converts a private action into a governmental action.”
Kirtley, 326 F.3d at 1094 (citations and internal quotations omitted). Private educational institutions
are subject to state law; however, plaintiff has not identified any facts or authority that would
permit the Court to find the state exercised “coercive influence” or “significant encouragement”
in this matter. Critically, without facts alleging that the government “commanded the particular
result,” there can be no finding of state action under the government compulsion test. Peterson v.
Greenville, 373 U.S. 244, 248 (1963).
D. 	Government Nexus
The government nexus test asks, “whether there is such a close nexus between the state
and the challenged action that the seemingly private behavior may be fairly treated as that of the
state itself.” Kirtley, 326 F.3d at 1094-95 (citation and internal quotations omitted). Generally, this
test requires that “the private actor is intwined with governmental policies, or the government is
entwined in the private actor’s management or control.” Gillis v. Chapman, 2022 WL 991669, *11
(D. Or. Mar. 31, 2022) (citation and internal quotations omitted). The Ninth Circuit employs a four
factor test to determine whether entwinement exists: whether “(1) [the private entity] is mostly
comprised of state institutions; (2) state officials dominate decision making of [the private entity],
(3) [the private entity’s] funds are largely generated by the state institutions; and (4) [the private
entity] is acting in lieu of a traditional state actor.” Villegas v. Gilroy Garlic Festival Ass’n, 541
F.3d 950, 955 (9th Cir. 2008).
Similar to the joint action test, plaintiff argues that, because private educational institutions
are subject to state regulation and police were called during the course of his exclusion from
defendant’s property, there are adequate facts to showcase a governmental nexus. Pl.’s Resp. to
Mot. Dismiss 11-12 (doc. 18). But, as discussed above, these facts are insufficient to show state
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action or to otherwise establish “entwinement.” In sum, the complaint neglects to plead facts
evincing state action and defendant’s motion is granted on this basis alone.
II. 	Other Pleading Deficiencies
Even presuming the requisite state action, the complaint is also deficient in three respects.
First, “[a parent] possesses no substantive due process right to access school property, regardless
of the purpose of his intended visit.” T.L. ex. Re. Lowry v. Sherwood Charter Sch., 2014 WL 897123,
*4 (D. Or. Mar. 6, 2014), aff’d, 691 F.App’x 310 (9th Cir. 2017). And, where “there is no
substantive due process right to access school property, no procedural due process protections are
required before prohibiting a parent’s access.” Id. at 4.
In any event, the facts alleged are insufficient for the Court to find conduct that “shocks
the conscience” or violates “decencies of civilized conduct.” Rochin v. California, 342 U.S. 165,
172-73 (1952).
Third, in regard to his equal protection claim, plaintiff fails to allege facts demonstrating
membership in a protected class. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(a plaintiff must show the “defendants acted with an intent or purpose to discriminate against [him]
based upon membership in a protected class.”); see also Gerhart v. Lake Cnty., Mont., 637 F.3d
1013, 1022 (9th Cir. 2011) (articulating the standard for a class of one claim). In any event,
plaintiff’s filings suggest defendant had a rational basis for its actions.
Moreover, “[t]he Constitution does not disable private property owners and private lessees from
exercising editorial discretion over speech and speakers on their property.” Manhattan Commc’n
Access Corp. v. Halleck, 587 U.S. 802, 812-13 (2019). In other words, defendant is allowed to
regulate its property in any manner it deems appropriate to ensure student wellbeing and stable
community relationships.
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Finally, pro se litigants may not recover attorney’s fees under § 1983. Kay v. Ehrler, 499
U.S. 432, 435 (1991). Although plaintiff implores the Court to ignore Kay, there appears no basis
to do so. Punitive damages are equally unavailable in this context. Newport v. Fact Concerts, Inc.,
453 U.S. 247, 271 (1981).
Despite the complaint’s deficiencies, the Court finds that prejudicial dismissal is not
appropriate. Plaintiff is proceeding pro se and has not yet had the opportunity to address these
deficiencies. As such, the Court cannot conclude, at least at this stage in the proceedings, that
plaintiff can prove no set of facts entitling him to relief.4 See, e.g., Barrett, 544 F.3d at 1062.
RECOMMENDATION
For the foregoing reasons, defendant’s Motion to Dismiss (doc. 14) should be granted. Any
motion to amend the complaint must conform with this Findings and Recommendations and be
filed within 30 days of the District Judge’s Order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit
Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate
Procedure, should not be filed until entry of the district court’s judgment or appealable order. The
parties shall have fourteen (14) days from the date of service of a copy of this recommendation
within which to file specific written objections with the court. Thereafter, the parties shall have
fourteen (14) days within which to file a response to the objections. Failure to timely file objections
to any factual determination of the Magistrate Judge will be considered as a waiver of a party’s
4 Yet, to the extent plaintiff seeks amendment via his response brief, that request is procedurally
improper. Pl.’s Resp. to Mot. Dismiss 24-28 (doc. 18); see also LR 7-1(b) (“[m]otions may not be
combined with any response, reply, or other pleading”); LR 15-1 (any motion to amend “must
describe the proposed changes” and include as an exhibit “[a] copy of the proposed amended [that
shows] how the amended pleading differs from the operative or superseded pleading”).
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right to de novo consideration of the factual issues and will constitute a waiver of a party’s right to
appellate review of the findings of fact in an order or judgment entered pursuant to this
recommendation.
DATED this 20th day of October, 2025.
Jolie A. Russo
United States Magistrate Judge
/s/ Jolie A. Russo
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