3:25-cv-00696•Fial et al v. Childpeace Montessori
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Page 1 – AMENDED FINDINGS AND RECOMMENDATION 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. Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 1 of 12
Page 2 – AMENDED FINDINGS AND RECOMMENDATION 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). Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 2 of 12
Page 3 – AMENDED FINDINGS AND RECOMMENDATION 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 Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 3 of 12
Page 4 – AMENDED FINDINGS AND RECOMMENDATION 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 Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 4 of 12
Page 5 – AMENDED FINDINGS AND RECOMMENDATION 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 Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 5 of 12
Page 6 – AMENDED FINDINGS AND RECOMMENDATION 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 Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 6 of 12
Page 7 – AMENDED FINDINGS AND RECOMMENDATION . . . 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 Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 7 of 12
Page 8 – AMENDED FINDINGS AND RECOMMENDATION 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. Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 8 of 12
Page 9 – AMENDED FINDINGS AND RECOMMENDATION 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 Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 9 of 12
Page 10 – AMENDED FINDINGS AND RECOMMENDATION 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. Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 10 of 12
Page 11 – AMENDED FINDINGS AND RECOMMENDATION 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”). Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 11 of 12
Page 12 – AMENDED FINDINGS AND RECOMMENDATION 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 Case 3:25-cv-00696-JR Document 21 Filed 10/20/25 Page 12 of 12
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