Loveall

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

DAVID LOVEALL, a Lane County Case No. 6:26-cv-00534-MC

Commissioner,

OPINION AND ORDER

Plaintiff,

v.

LANE COUNTY, a local government entity;

STEVE MOKROHISKY, in his personal and

official capacity as Lane County

Administrator; HEATHER BUCH, in her

personal and official capacity as a Lane

County Commissioner; LAURIE TRIEGER,

in her personal and official capacity as a Lane

County Commissioner; and PAT FARR, in

his personal and official capacity as a Lane

County Commissioner,

Defendants.

MCSHANE, Judge:

Plaintiff David Loveall seeks declaratory judgment and injunctive relief against

Defendants,1 for allegedly violating his constitutional rights and Oregon Public Meetings Law.

Compl. ¶ 4, ECF No. 1. Defendants move to dismiss Plaintiff’s Fourth and Fifth Claims for Relief

pursuant to Federal Rule of Civil Procedure 12(b)(6). See generally Defs.’ Mot. to Dismiss

(“Defs.’ Mot.”), ECF No. 9.

1 Defendants are Lane County (“the County”), Steve Mokrohisky, in his personal and official capacity as Lane County

Administrator, and three Lane County Commissioners: Heather Buch, Laurie Trieger, and Pat Farr (“Commissioner

Defendants”), all in their personal and official capacities as County Commissioners.

Because Plaintiff has not identified a property or liberty interest protected by the Fourteenth

Amendment, his Fourth Claim for Relief is dismissed. And because Plaintiff has not identified a

cognizable injury allowing for injunctive relief, his Fifth Claim for Relief is dismissed.

Accordingly, Defendants’ Motion to Dismiss, ECF No. 9, is GRANTED.

BACKGROUND

At the time he filed this action, Plaintiff David Loveall was a Lane County Commissioner,

elected to the Board of Commissioners (“the Board”) in 2022 and campaigning for reelection in

the May 19, 2026, election. Compl. ¶¶ 1, 5.

In 2025, County administration began investigating Plaintiff because his political and

personal views “triggered” certain other employees. Id. ¶ 1. When Plaintiff expressed “blessings”

in a birthday card to a co-worker, for example, the coworker “reportedly did not feel safe around

Plaintiff.” Id. Plaintiff also alleges that he was “falsely accused of describing a woman as ‘looking

like a stripper.’” Id. The investigation resulted in a “safety plan” that prohibited Plaintiff from

accessing his office two days per week. Id.

While Plaintiff would characterize the investigation as retaliation for the constitutionally

protected expression of his religious views, the complaints against him could reasonably be

characterized as something else. For example, Plaintiff allegedly said:

• “Tell the employees to fuck off, commissioners can do what they want and

there’s nothing anyone can do about it.”

• “This is your [Mokrohisky’s] responsibility. You’re allowing these people

to make these complaints, so you need to stop them from making these

complaints or I’m going to deal with it.”

• “Tell employees to stop it. There’s nothing they can do to stop

commissioners from saying and doing whatever they want. You are not

doing your job . . . I’m really upset. And if you don’t fix this, then you and

I have a problem and I am going to do everything I can to get rid of these

people.”

• “Can someone give me a list of bad words that I can’t say? We need a

culture change. This DEI thing is over the top. Words like blessings and

spinster are triggers?”

Defs.’ Mot. Ex. 1, at 4, ECF No. 9-1.2

Throughout the investigation, Plaintiff believed he was “accused of retaliation” when he

attempted to publicly defend himself. Compl. ¶ 2. The Board instructed Plaintiff to stop defending

himself. Id. The County also publicly released the allegations against Plaintiff. Id.

The investigation found that, by expressing his views, “Plaintiff retaliated against

employees in violation of a county personnel rule.” Id. ¶ 3. After County released the investigative

report, Plaintiff requested a copy and asked for the “evidence relied on by the investigator in

making his findings.” Id. The Board denied his request. Id. Plaintiff also requested a name clearing

hearing and an open meeting to discuss the allegations, investigation, and evidence against him.

Id. The Board denied these requests, too. Id. Plaintiff alleges that the Board unlawfully “voted to

censure Plaintiff at a meeting without prior notice to the public that censure would be considered.”

Id.

On March 19, 2026, Plaintiff filed this action seeking declaratory judgment that the County

and the Board violated (1) his constitutional rights to free speech and free exercise of religion; (2)

his right to due process; and (3) his right to be free from retaliation. Id. ¶ 4. Plaintiff also asks the

Court to enforce Oregon Public Meetings Law. Id. Finally, Plaintiff seeks a permanent injunction

“of the County’s continued violation of his rights.” Id.

2 While the scope of review on a motion to dismiss under Rule 12(b)(6) is generally limited to the complaint, a court

may consider other evidence if: “(1) the complaint refers to the document; (2) the document is central to the plaintiff’s

claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Daniels-Hall v. Nat’l

Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010) (quoting Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006)). Here,

Plaintiff references the County’s investigation and its investigative report, both central to the dispute. See, e.g., Compl.

¶¶ 1–3, 63–71. And Plaintiff does not question the authenticity of the copy of the investigative report that Defendants

submitted with their Motion to Dismiss. See Mot. to Dismiss Ex. 1.

LEGAL STANDARD

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint

must contain “enough facts to state 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 content”

allows the court to reasonably infer that the defendant is liable for the alleged misconduct. Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009). The well-pleaded facts must present more than “the mere

possibility of misconduct.” Id. at 679.

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

as true and construe them in the light most favorable to the non-movant. E.g., 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 (quoting

Papasan v. Allain, 478 U.S. 265, 286 (1986)).

DISCUSSION

I. Plaintiff’s procedural due process claim fails as a matter of law.

Plaintiff’s Fourth Claim for Relief asserts that Defendants violated his procedural due

process rights under the Fourteenth Amendment. Compl. ¶¶ 124–34.

Plaintiff claims a “protected property, liberty, or tangible interest” in accessing his physical

office space, which the “safety plan” prohibited two days per week. Id. ¶¶ 30, 126. Plaintiff also

submits that he has a “statutory right to an open meeting” under Oregon Public Meetings Law. Id.

¶ 126.

Further, in releasing the investigative report, Defendants “publicly disclosed stigmatizing

statements about Plaintiff.” Id. ¶ 127. Plaintiff generally contests the accuracy of those statements

as well as the accuracy of the facts disclosed in the investigative summary. Id. ¶ 128. Plaintiff states

that he “has a liberty interest in clearing his name when stigmatizing information is publicly

disclosed.” Id. ¶ 129.

Defendants advance that Plaintiff has not asserted “a protected liberty or property interest

under the Due Process Clause” and so his Fourth Claim must fail. Defs.’ Mot., at 4–5.

Plaintiff brings his procedural due process claims under Section 1983 and the Fourteenth

Amendment. Compl. ¶¶ 124–34. Plaintiffs bringing Section 1983 claims based on procedural due

process must establish: “(1) a liberty or property interest protected by the Constitution; (2) a

deprivation of the interest by the government; [and] (3) lack of process.” Portman v. Cnty. of Santa

Clara, 995 F.2d 898, 904 (9th Cir. 1993).

Protected liberty or property interests stem from neither “a unilateral expectation” nor “an

abstract need or desire.” Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005) (quoting

Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)). A plaintiff must have “a legitimate

claim of entitlement to” the liberty or property interest at issue. Id. (quoting Bd. of Regents, 408

U.S. at 577).

Here, Plaintiff proceeds under a “stigma plus” theory of procedural due process based on

Defendants publicly disclosing “stigmatizing” statements about him. Pl.’s Resp. to Defs.’ Mot.

(“Pl.’s Resp.”), at 2–3, ECF No. 13. The Supreme Court has, in limited circumstances, recognized

that “governmental action defaming an individual in the course of declining to rehire him could

entitle the person to notice and an opportunity to be heard as to the defamation.” Ulrich v. City &

Cnty. of S.F., 308 F.3d 968, 982 (9th Cir. 2002) (quoting Paul v. Davis, 424 U.S. 693, 709 (1976))

(stating that Paul’s rule “has come to be known as the ‘stigma plus’ test for establishing deprivation

of liberty based on governmental defamation.”).

Under the “stigma plus” test, a plaintiff “must show the public disclosure of a stigmatizing

statement by the government, the accuracy of which is contested, plus the denial of ‘some more

tangible interest[] such as employment.’” Id. (quoting Paul, 424 U.S. at 701, 711).

The bar is high for “stigma plus” claims. The government entity or its employees must

publicize materials that “so severely stigmatize the employee” that he cannot engage in gainful

employment. Hyland v. Wonder, 972 F.2d 1129, 1141–42 (9th Cir. 1992) (citing Bd. of Regents,

408 U.S. at 573–74).

A. Plaintiff does not have a constitutionally protected right to access his county office.

Plaintiff fails to state a “stigma plus” due process claim based on the “safety plan” that

limited access to his physical office two days per week.

The Ninth Circuit has recognized “stigma plus” claims when employers made genuinely

stigmatizing statements about plaintiffs in the course of terminating their employment. E.g.,

Campanelli v. Bockrath, 100 F.3d 1476, 1482 (9th Cir. 1996) (quoting Paul, 424 U.S. at 710)

(stating that, to survive dismissal, the plaintiff must allege stigmatizing statements made by

defendants “in the course of” his termination). Even when stigmatizing statements measurably

diminish prestige, they cannot form the basis of a “stigma plus” claim without also “crippl[ing] an

individual’s ability to earn a living.” Hyland, 972 F.2d at 1142.

Here, assuming Defendants made stigmatizing statements about Plaintiff, the “safety plan”

does not terminate his employment. And preventing Plaintiff from accessing his office space two

days per week, while perhaps inconvenient, does not constitute total deprivation. Plaintiff does not

allege facts even suggesting that Defendants’ actions have prevented his gainful employment.

B. Plaintiff does not have a liberty interest in a name clearing hearing.

Plaintiff claims a liberty interest in the opportunity to clear his name “when stigmatizing

information is publicly disclosed.” Compl. ¶ 129. Plaintiff repines that he suffered personal

humiliation, mental anguish, and reputational harm on account of Defendants’ allegedly

stigmatizing statements. Id. ¶¶87–88. Defendants purportedly acted to “negatively affect[]

Plaintiff’s campaign for re-election to the Board.” Id. ¶ 86.

Plaintiff only alleges reputational harm, which is insufficient to state a claim that

Defendants deprived him of a protected liberty or property interest. E.g., Paul, 424 U.S. at 701

(stating that “reputation alone, apart from some more tangible interests such as employment,” is

not a “liberty” or “property” interest “ sufficient to invoke the procedural protection of the Due

Process Clause.”); Fed. Deposit Ins. Corp. v. Henderson, 940 F.2d 465, 477 (9th Cir. 1991)

(clarifying that even “charges of incompetence” do not give rise to a liberty interest in part because

they were not made in the course of terminating the plaintiff’s employment).

C. Plaintiff does not have a liberty interest in an open hearing.

Plaintiff argues that “the County’s refusal to honor Plaintiff’s statutory election for an open

hearing under [OR. REV. STAT.] [§] 192.660(2)(b) constitutes the denial of a tangible, state-created

interest.” Pl.’s Resp., at 5.

Section 192.660(2)(b) permits a “governing body of a public body” to hold an executive

session “[t]o consider the dismissal or disciplining of, or to hear complaints or charges brought

against, a public officer, employee, staff member or individual agent who does not request an open

hearing.” OR. REV. STAT. § 192.660(2)(b). In Plaintiff’s view, he has “an affirmative statutory

right” to open disciplinary hearings upon his request. Pl.’s Resp., at 6.

Plaintiff nonetheless fails to show that he has a “legitimate claim of entitlement” to an open

hearing sufficient to invoke procedural due process. Johnson v. Ryan, 55 F.4th 1167, 1192 (9th Cir.

2022) (quoting Bd. of Regents, 408 U.S. at 577). Once again, Plaintiff does not allege the denial

of a tangible interest, such as employment or the opportunity to run for re-election. Due process

“is not an end in itself.” Id. at 1193 (quoting Olim v. Wakinekona, 461 U.S. 238, 250–51 (1983)

(holding an inmate does not have a liberty interest in processes that could prevent his transfer from

a prison in Hawaii to a prison in California)). Due process instead “protect[s] a substantive interest

to which the individual has a legitimate claim of entitlement.” Id. (quoting Olim, 461 U.S. at 250).

Oregon law providing for open meetings upon request does “not create an independent substantive

right” to such meetings. Olim, 461 U.S. at 250–51. Plaintiff fails to state a procedural due process

claim under the Fourteenth Amendment.

II. Plaintiff’s claims arising from alleged violations of Oregon Public Meetings Law

are dismissed as to Commissioner Defendants.

In Plaintiff’s Fifth Claim, he seeks a declaration that Commissioner Defendants violated

Oregon Public Meetings Law and asks that they be “jointly and severally liable for attorney fees

and costs awarded against the [County].” Compl., at pp. 34–35.

Defendants move to dismiss Plaintiff’s Fifth Claim as to Commissioner Defendants

because Plaintiff “cannot seek either of these remedies” against them. Defs.’ Mot., at 8.

Specifically, Plaintiff lacks standing to seek prospective relief as to Commissioner Defendants. Id.

at 8–9. The Court agrees.

To bring suit in federal court, Plaintiff must establish (1) an “injury in fact;” (2) a causal

connection between his injury and Defendants’ conduct; and (3) the likelihood that his injury is

redressable by this Court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (citations

omitted). An “injury in fact,” is “the violation of a protected interest that is (a) ‘concrete and

particularized,’ and (b) ‘actual or imminent.’” Mayfield v. United States, 599 F.3d 964, 969 (9th

Cir. 2010) (quoting Lujan, 504 U.S. at 560). Plaintiffs who have standing to seek “damages for a

past injury” do “not necessarily have standing to seek prospective relief such as declaratory

judgment.” Id. (citations omitted).

“[W]hen a plaintiff seeks prospective relief such as an injunction, the plaintiff must

establish a sufficient likelihood of future injury.” Food & Drug Admin. v. All. for Hippocratic

Med., 602 U.S. 367, 381 (2024) (citing Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013)).

For Plaintiff to seek declaratory judgment from this Court, he must “establish a real and immediate

threat” that Commissioner Defendants would again violate Oregon Public Meetings Law and cause

him harm in the process. City of L.A. v. Lyons, 461 U.S. 95, 105 (1983).

Plaintiff fails to state facts sufficient to show “a very significant possibility of future harm

in order to have standing” to seek prospective relief as to Commissioner Defendants. Bras v. Cal.

Pub. Utils. Comm’n, 59 F.3d 869, 873 (9th Cir. 1995) (citing Coral Constr. v. King Cnty., 941

F.2d 910, 929 (9th Cir. 1991) , cert. denied, 502 U.S. 1033 (1992)). He simply asks this Court to

declare that Commissioner Defendants have already violated Oregon Public Meetings Law.

Compl., at p. 34. This does not pass muster.

As far as joint and several liability, Plaintiff cannot seek an order from the Court that

Commissioner Defendants “are jointly and severally liable for attorney fees and costs awarded

against the [County].” Id. at p. 35; see, e.g., Krisor v. Lake Cnty. Fair Bd., 302 P.3d 455, 458 (Or.

Ct. App. 2013) (holding that the relevant state law provision “has no bearing” on individual

defendants and only applies to the board if it is “found to have acted unlawfully.”); see also, e.g.,

Franchise Tax Bd. of Cal. v. Alcan Aluminum Ltd., 493 U.S. 331, 336 (1990) (quoting Warth v.

Seldin, 422 U.S. 490, 499 (1975)) (stating that “the plaintiff generally must assert his own legal

rights and interests, and cannot rest his claim to relief on the legal rights or interests of third

parties.”). Plaintiff cannot ask the Court to require Commissioner Defendants to constructively

indemnify the County for any attorney fees and costs awarded against it.

CONCLUSION

For the foregoing reasons, Defendants’ Motion to Dismiss Plaintiff’s Fourth and Fifth

Claims for Relief, ECF No. 9, is GRANTED.

Plaintiff has 14 days from the date of this Order to file an amended complaint pursuant to

Federal Rule of Civil Procedure 15(a)(2). E.g., Desertrain v. City of L.A., 754 F.3d 1147, 1154 (9th

Cir. 2014) (citation omitted) (stating that leave to amend should be given “with extreme

liberality.”).

IT IS SO ORDERED.

DATED this 19th day of August 2026.

s/Michael J. McShane

Michael McShane

United States District Judge