Bong v. White

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JILL BONG,

Plaintiff, No. 6:25-cv-01245-MC

v. OPINION AND ORDER

TRACY ICKES WHITE, an individual,

et al.,

Defendants.

_____________________________

MCSHANE, Judge:

Plaintiff, proceeding pro se, brings this First Amendment retaliation action against the

Oregon Department of Justice and several DOJ attorneys. Not. Removal, ECF No. 1-1

(“Compl.”). Plaintiff previously filed “federal litigation (6:23-cv-00417-MTK), which

challenged unlawful government conduct during the COVID era.” Compl. ¶ 1. The alleged

retaliation here stems from these Defendants’ legal representation, in Plaintiff’s previous actions,

of the Defendants there. See Compl. ¶ 7 (the DOJ “is a state agency that has unlawfully provided

legal defense to [former Governor] Brown in her individual capacity, contrary to Oregon law.”)

(emphasis added). For example, Plaintiff alleges that Defendant Tracy White “claimed

retroactive representation for Brown,” “emailed the court deputy off the record to request an

extension, bypassing Plaintiff’s ability to object,” “filed 13 motions for extensions of time,”

“falsely alleged in court that Plaintiff improperly contacted Brown directly,” and “involved

appellate attorney [and individually named Defendant here] Denise Fjordbeck in district court

proceedings, causing unnecessary delay and confusion.” Compl. ¶ 11.

Plaintiff alleges that Defendant White violated her First Amendment rights when White

“argued in court that Plaintiff’s mailing of the default notice to Brown was improper. This

baseless argument was intended to discredit Plaintiff and chill her protected speech.” Compl. ¶¶

12–13 (emphasis added). White also filed numerous motions for extensions of time, “exploit[ing]

Plaintiff’s pro se status through tactical delays.” Compl. ¶ 21. Plaintiff includes several other

examples of alleged retaliation, all in the form of actions White took while representing the

defendants in Plaintiff’s previous actions. See Compl. ¶¶ 23–42 (alleging that White: objected to

Plaintiff’s subpoena of Brown; “successfully obtained a denial of Plaintiff’s default judgment

motion against Oregon Health Authority;” “improperly instigated another defendant’s counsel to

file a discovery stay motion;” “assigned appellate attorney Denise Fjordbeck to the case,

deviating from DOJ norms and complicating proceedings without justification,” etc) (emphasis

added). Plaintiff alleges that “[t]hese efforts were not standard litigation practices but part of a

broader pattern of misconduct designed to hinder Plaintiff’s case.” Compl. ¶ 42.

As Plaintiff herself summarizes, the gist of this retaliation action is that “Defendants

White, Rayfield and DOJ knowingly participated in the retaliatory acts by unlawfully

representing defendants sued in their individual capacities under § 1983 without statutory

authority.” Compl. ¶ 48 (emphasis added). Defendants’ actions consisted of “a coordinated

procedural defense to shield [the Defendants in Plaintiff’s previous actions] from constitutional

accountability and chilled Plaintiff’s protected speech through litigation-based obstruction and

delay, despite lacking any legal standing or statutory authority to do so.” Compl. ¶ 54 (emphasis

added). “These filings materially contributed to the delay and suppression of Plaintiff’s First

Amendment appeal, caused additional litigation burden, and constitute retaliatory procedural

misconduct consistent with the broader pattern described herein.” Compl. ¶ 55 (emphasis added).

STANDARDS

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain

sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual

allegations allow the court to infer the defendant’s liability based on the alleged conduct.

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the

mere possibility of misconduct.” Id. at 678.

When considering a motion to dismiss, the court must accept all allegations of material

fact as true and construe those facts in the light most favorable to the non-movant. Burgert v.

Lokelani Bernice Pauahi Bishop Tr., 200 F.3d 661, 663 (9th Cir. 2000). But the court is “not

bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at

555. If the complaint is dismissed, leave to amend should be granted unless “the pleading could

not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497

(9th Cir. 1995).

DISCUSSION

Plaintiff’s claims rely on an incorrect interpretation of § 1983 claims1 and the legal

distinction between claims made against state actors in their individual versus their official

capacities. Plaintiff is under the mistaken assumption that DOJ attorneys are prohibited from

representing state actors sued in their individual capacities. Regardless of that fatal flaw

1 Plaintiff appears to believe that a § 1983 claim is not a tort claim. If so, Plaintiff is clearly mistaken. See Health and

Hosp. Corp. Marion Co. v. Talevski, 599 U.S. 166, 179 (2023) (noting that there “is no doubt that the cause of action

created by § 1983 is, and was always regarded as, a tort claim.”).

underlying Plaintiff’s claims, all of the Defendants’ actions occurred, as demonstrated above, in

the course of Defendants’ legal representation of other Defendants in Plaintiff’s numerous earlier

actions. For that reason alone, Defendants are entitled to immunity.

Bly-Magee v. California, 236 F.3d 1014 (9th Cir. 2001) is directly on point and controls

the outcome here. There, Bly brought an action against state attorneys who represented

California state actors in Bly’s action against the state. In dismissing Bly’s claims with prejudice,

the Ninth Circuit held that Bly:

may not assert claims against Lungren or any [Office of the Attorney General]

attorneys sued as Doe defendants for conduct related to litigation duties including

the defense of Bly-Magee’s prior lawsuit and the defense of this lawsuit. If sued

in an official capacity, Lundgren and any OAG attorneys sued as Doe defendants

have absolute official immunity. If sued in an individual capacity, Lungren and

any OAG attorneys are similarly absolutely immune for conduct during

performance of official duties. In either case, Bly-Magee cannot state a claim

against Lungren and an any other OAG attorneys for official conduct, and

dismissal with prejudice of all such claims is affirmed.

Bly-Magee, 236 F.3d at 1018 (internal citations omitted); see also Read v. Haley, 2013 WL

1562938, at *9 (“At attorney in the Attorney General’s Office is immune from lawsuits for any

action he commits while discharging his official litigation-related duties, whether sued in his

official or individual capacity.” (citing Bly-Magee, 236 F.3d at 1018); see also Yoonessi v.

Albany Med. Ctr., 352 F. Supp. 2d 1096, 1103 (C.D. Cal. Jan. 10, 2005) (“An attorney in the

Attorney General’s Office is immune from lawsuits for any action she commits in discharging

her litigation-related duties.” (citing Bly-Magee, 236 F.3d at 1018). Plaintiff’s claims cannot

survive black letter Ninth Circuit law establishing:

broadly that government attorneys are entitled to absolute immunity in all civil

litigation contexts:

Whether the government attorney is representing the plaintiff or

the defendant, or is conducting a civil trial, criminal prosecution or

an agency hearing, absolute immunity is necessary to assure that

advocates can perform their respective functions without

harassment or intimidation. Given the similarity of functions of

government attorneys in civil, criminal and agency proceedings,

and the numerous checks on abuses of authority inherent in the

judicial process, we reiterate our statement in Flood [v.

Harrington, 532 F.2d 1248, 1251 (9th Cir. 1976)] that “the reasons

supporting the doctrine of absolute immunity apply with equal

force regardless of the nature of the underlying action.”

Stapley v. Pestalozzi, 733 F.3d 804, 810 (9th Cir. 2013) (cleaned up, internal citations omitted).

While Plaintiff is correct in arguing that such absolute immunity does not extend to

actions “that are wholly unrelated to or outside of their official duties,” Bly-MaGee, 236 F.3d at

1016, Plaintiff’s Complaint clearly establishes that all the actions of these Defendants related to

their representation of state actors named as defendants in Plaintiff’s previous civil actions.2

Stated differently, Plaintiff’s Complaint confirms that the actions here merely consist of

government attorneys doing their jobs; i.e., representing state employees and agencies in active

litigation. Therefore, Plaintiff’s claims necessarily fail.3 See Read, 2013 WL 1562938, at *9

(confirming government attorney who allegedly falsified the record in an administrative hearing

entitled to absolute immunity because the acts were “performed while discharging his official

duties as a Senior Assistant Attorney General.”).4

2 For example, in her Response, Plaintiff argues the Defendant “White engaged in extensive litigation-related

obstruction in response to Plaintiff’s protected First Amendment activity, including the filing of a federal civil rights

lawsuit” and Defendant Fjordbeck engaged in “unauthorized procedural suppression of Plaintiff’s appeal . . . .”

Resp. 4; ECF No. 22. Later, Plaintiff confirms that her claims rely on “unauthorized filings [in ongoing Court

proceedings], ghost representation [in ongoing Court proceedings], and retaliatory misuse of process [in ongoing

Court proceedings]. Resp. 16. Plaintiff also confirms that Defendants’ actions providing legal services in the

underlying § 1983 actions “form[] a central component of the retaliatory conduct alleged.” Resp. 19. Plaintiff has

pleaded and argued herself out of court.

3 As Plaintiff’s First Amendment claims fail, her Monell claim suffers the same fate. City of Los Angeles v. Heller, 475

U.S. 796, 799 (1986) (Monell claim requires underlying constitutional violation).

4 Additionally, even assuming these Defendants were not entitled to absolute immunity, they would quite clearly

be entitled to qualified immunity. Plaintiff does not, and indeed cannot, point to any clearly established authority

holding government attorneys liable merely for defending state actors or agencies in civil litigation. In fact,

Plaintiff goes so far as to argue that “the legal authority at issue–whether the DOJ can represent any official in a

personal-capacity § 1983 case at all–has never been litigated or decided.” Resp. 14 (emphasis added). However,

because Plaintiff’s claims are clearly barred, the Court need not reach Defendants’ preclusion or standing

arguments (though, at first glance, those arguments appear to have merit).

CONCLUSION

Because Defendants are entitled to absolute immunity from Plaintiff’s claims,

Defendants’ Motion to Dismiss, ECF No. 17, is GRANTED. This action is DISMISSED, with

prejudice. All pending motions are DENIED as moot.

IT IS SO ORDERED.

DATED this 4th day of August 2025.

_____/s/ Michael McShane______

Michael J. McShane

United States District Judge