Warren Mitchell v. Clackamas River Water

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WARREN MITCHELL,
Plaintiff-Appellant,
v.
CLACKAMAS RIVER WATER;
MICHAEL CARDWELL; KENNETH
HUMBERSTON; HUGH KALANI;
BARBARA KEMPER; KATHERINE
KEHOE; CYNDI LEWIS-WOLFRAM;
LARRY SOWA; LEE E. MOORE, Sr.;
DEAN MARK PHILLIPS; SPECIAL
DISTRICTS ASSOCIATION OF
OREGON; SPECIAL DISTRICTS
ASSOCIATION INSURANCE SERVICES;
PHILLIPS LAW OFFICE,
Defendants-Appellees.
No. 16-35999
D.C. No. 3:16-cv-00537-HZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted June 7, 2018
Portland, Oregon
Before: GRABER and M. SMITH, Circuit Judges, and HELLERSTEIN,** District
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Alvin K. Hellerstein, United States District Judge for
FILED
JUN 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Judge.
Plaintiff-Appellant Warren Mitchell appeals the district court’s dismissal of
his amended complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
1. Mitchell’s First Amendment retaliation claim fails because he fails to
identify any actionable conduct by Defendants-Appellees. Conduct occurring
before March 28, 2014, is outside the statute of limitations. See Or. Rev. Stat.
§ 12.110(1); Whidbee v. Pierce County, 857 F.3d 1019, 1022 (9th Cir. 2017). This
includes the 2011 “gag order”; because our focus is on the time of the
discriminatory acts, the “continuing impact from past violations is not actionable.”
Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (quoting Grimes v. City &
County of San Francisco, 951 F.2d 236, 238–39 (9th Cir. 1991)). The remaining
timely conduct—Defendants-Appellees’ successful petition for attorneys’ fees and
costs in the election contest lawsuit and Clackamas River Water’s refusal to pay
the supplemental judgment in the emails lawsuit—is incidental to petitioning
activities and is therefore protected under the Noerr-Pennington doctrine. Sosa v.
DIRECTV, Inc., 437 F.3d 923, 934–35 (9th Cir. 2006). Because Mitchell fails to
allege sufficiently that these actions were objectively baseless and Defendants-
Appellees had an improper motive, they do not fall within the narrow sham
the Southern District of New York, sitting by designation.

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litigation exception. See Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures
Indus., Inc., 508 U.S. 49, 60–61 (1993).
2. Mitchell’s intentional infliction of emotional distress (IIED) claim fails
because he fails to allege that Defendants-Appellees engaged in “extreme and
outrageous” conduct. See McGanty v. Staudenraus, 901 P.2d 841, 849–50 (Or.
1995). As with the First Amendment retaliation claim, most of the allegations fall
outside the two-year statute of limitations. Stupek v. Wyle Labs. Corp., 963 P.2d
678, 679 (Or. 1998). The remaining allegations concern litigation-related conduct,
which does not rise to the level of outrageous conduct. Cf. Erlandson v. Pullen,
608 P.2d 1169, 1171–72 (Or. Ct. App. 1980).
3. Because the district court properly dismissed Mitchell’s First Amendment
and IIED claims, the court did not abuse its discretion in declining to exercise
supplemental jurisdiction over the remaining state law claims. See 28 U.S.C.
§ 1367(c)(3); Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1170–71 (9th Cir. 2001).
Because no claims remain, whether we should reassign this case to a different
district judge is moot.
AFFIRMED.

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