Nicita v. Holladay

JAMES J. NICITA, a resident of Oregon, Plaintiff, v. DANIEL W. HOLLADAY, in his individual capacity; in his official capacity as mayor of the City of Oregon City, Oregon, a municipal corporation; and in his official capacity as a Commissioner of the Urban Renewal Commission of Oregon City, THE CITY OF OREGON CITY, a municipal corporation, and THE URBAN RENEWAL AGENCY, an Agency of the City of Oregon City, Defendants.

No. 3:19-CV-01960-YY

United States District Court, D. Oregon, Portland Division

April 6, 2022

FINDINGS AND RECOMMENDATIONS

Youlee Yim You, United States Magistrate Judge.

FINDINGS

Plaintiff James Nicita has brought suit against defendants Daniel Holladay, the City of Oregon City (“Oregon City”), and the Urban Renewal Agency of Oregon City (“OCURA”) (collectively “defendants”) alleging tort and constitutional claims arising out of a series of incidents. Plaintiff alleges he has suffered from “regular and repeated retaliatory public harassment abuse inflicted” by defendant Holladay, and that these injuries were “ratified, broadcast, and amplified by” defendants Oregon City and OCURA and proposed defendants Anthony Konkol and Kattie Riggs. Mot. Leave File Amended Compl., Ex. 1, at ¶ 4, ECF 26-1 (hereinafter “Prop. Second Am. Compl.”).

After oral argument on defendants' Motion to Dismiss on April 8, 2021, the court suggested to plaintiff that he seek leave to file an amended complaint. ECF 25. The plaintiff did so on May 10, 2021, and attached a Proposed Second Amended Complaint to his motion. ECF 26, 26-1. For the reasons discussed below, plaintiff's Motion for Leave to Amend (ECF 26) should be denied. Additionally, the court withdraws its prior order denying defendants' Motion to Dismiss as moot^[1] (ECF 25) and recommends that defendants' Motion to Dismiss (ECF 15) should be granted.

I. Factual Background

This lawsuit arises from at least a decade's worth of incidents between plaintiff, defendants, and proposed defendants. The incidents are summarized in plaintiff's Proposed Second Amended Complaint as follows:

In 2007, shortly after plaintiff moved to Oregon City, defendant OCURA adopted an amendment to the Oregon City Urban Renewal Plan. Prop. Second Am. Compl. ¶ 11, ECF 26-1. The amendment outlined plans to develop two projects: a mall on a landfill, known as “the Rivers, ” and a mixed-used development surrounding Clackamette Cove, known as “the Cove.” Id. Around this time plaintiff decided to run for a position on the City Commission of Oregon City (“City Commission”) and made his opposition to the Rivers project and desire for more scrutiny of the Cove project a central part of his campaign platform. Id. ¶ 13. Plaintiff was elected to the City Commission in 2008. Id.

Around late 2010 or early 2011, plaintiff called for a referral of three proposed charter amendments to voters: one proposed to transfer appointment authority of the City Attorney of Oregon City from the City Manager to the City Commission, another sought to give voters the right to vote on the issuance of any urban renewal bonds, and the third sought to institute a May primary for Commission races. Id. ¶ 17. These proposed amendments were opposed by defendant Holladay and former Oregon City Mayor Dan Fowler, and the two sought to draw public attention toward plaintiff's proposals. Id. ¶ 18. Ultimately, in the face of significant public opposition, plaintiff tabled his three proposals. Id. Shortly thereafter, in the summer of 2011, negotiations over the Rivers project collapsed. Id. ¶ 22. In July 2011, Fowler and defendant Holladay initiated a recall campaign against plaintiff plaintiff was successfully recalled on December 6, 2011. Id. ¶¶ 22, 25.

About two years later, on January 6, 2014, plaintiff appeared at a meeting of the Oregon City Citizen Involvement Committee to voice support for a charter amendment that would transfer appointment authority of the City Attorney from the City Manager to the City Commission. Id. ¶ 28. After plaintiff concluded his public comment, defendant Holladay incorrectly stated that when the proposed amendment was previously considered in 2010, plaintiff was the only vote in favor of the proposal. Id. Plaintiff and then-Mayor Doug Neeley quickly corrected defendant Holladay, noting that in 2010, the City Commission unanimously agreed to table the proposals. Id.

In November 2014, defendant Holladay was elected mayor of Oregon City. Id. ¶ 29. On February 15, 2016, plaintiff informed Oregon City staff that a report relating to a proposed hospital expansion had not been timely issued in advance of a Commission meeting, in violation of the City Code. Id. ¶ 30. Two days later, on February 17, 2016, defendant Holladay commented on the need to delay discussion of the proposed hospital expansion:

So, I have from... a letter sent by [plaintiff] to [Oregon City staff members] discussing [the untimely issuance of the report]. I bring to your attention that Oregon City for at least the last twenty years has been issuing its staff reports and agendas on Friday afternoon for the Wednesday following meeting. That was true in the case of the couple of years that [plaintiff] sat on the Commission. Yet for some reason at this particular point in time [plaintiff has] chosen to throw in a little wrench into this thing to make it last a couple more weeks, for what I can see as no particular good reason, just to slow things down, just to be a fly in the ointment, sand in the gears. So, that's where we are. We are going to follow the letter of the law. We're going to move it down two weeks. And we are going to do it anyway. It's once again wasting the City's time and taxpayer money for useless kinds of things. So, that's my statement as just Dan Holladay, not the mayor, not anybody else. But I'm very frustrated that this kind of stuff continues to happen by people who want to obfuscate and stop anything from happening in Oregon City.

Id.

In November 2017, plaintiff appealed the Planning Commission's approval of a development project known as the “Abernethy Place Hotel” to the City Commission. During the appeal hearing, held on February 7, 2018, defendant Holladay stated, “I think we go down a dangerous road when someone makes a mission to kill a project just to kill a project.” Id. ¶ 37. Plaintiff demanded that defendant Holladay recuse himself from the final vote, which defendant Holladay refused to do. Id. Shortly thereafter, the City Commission denied plaintiff's appeal^[2] and assessed a total appeal fee of $7, 915.50.^[3] Id. A video of this City Commission meeting is public record and is available on defendant Oregon City's website and YouTube channel. Id. ¶ 38.

In April 2018, the City Commission, including defendant Holladay, referred LUBA Resolution 2016-045, a case where plaintiff had successfully appealed a city decision, back to the Planning Commission. Id. ¶ 34. Six months later, on November 30, 2018, defendant Holladay made a post on the “Oregon City Raw” Facebook page that included the following:

I want to congratulate Jim Nicita on his loss again at LUBA. LUBA stands for the land use board of appeals a State Board. He has a record of I think 10 or 11 appeals and 0 wins. In this situation he is fighting against a hotel that I believe we need across from the end of the Oregon trail center. The reason? Because the person who is leading the development is Dan Fowler who exercised his constitutional and Oregon constitutional rights and used the recall process, in the city wide vote Nicita was recalled by a vote of 55% in favor of recall and 44% against. He has cost the city 1000s of dollars and much staff time on his personal vendetta against anyone who might be a leader to help our city.

Id. ¶ 41.

Plaintiff alleges that defendant Holladay's statement caused him anguish and humiliation, and that he is still able to see the post despite being blocked by defendant Holladay on Facebook because others have reposted screenshots of the post. Id. ¶ 43.

On February 5, 2019, plaintiff emailed his concerns surrounding recent developments in the Cove project to a city commissioner. Id. ¶ 48. The email was discussed at the next day's meeting, where defendant Holladay quipped:

But I think it is important to understand the context in which this information comes. And Mr. Nicita has a long history in Oregon City of dropping large documents on us the night of, a couple of hours before a meeting, that might be like I said 50-75 pages long of, you know, arcane legal stuff that we are supposed to kinda try to digest and figure out what he's talking about, when at the end of the day, I think he has sued either the City or a project that the City is involved in five times and has never won a single case.

So, what Mr. Nicita does is to do is try to obfuscate, delay, kill, basically anything he can to do to prevent anything good from happening in Oregon City. And that's purely my opinion, all right; it's not a statement from the Commission, it's not a statement from the mayor, it is a statement from me as an urban renewal commissioner and as an observer.

I have spent thousands and thousands and thousands of volunteer hours in this community, whether it's been on the school board, the City Commission, and numerous various other things. And this guy spent a couple years and got recalled from the City Commission for just exactly this kind of stuff, where he is trying to be a lawyer at the same time he was sitting on the City Commission. It cost us thousands of hours in time and in legal fees. So when I get something from Mr. Nicita, I have a tendency to discount the veracity, and that's all I have to say.

Id. ¶ 49.

While plaintiff was not present at the February 6, 2019 meeting, he later watched the recording on defendant Oregon City's...