                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 20 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

WARREN MITCHELL,                                No.    16-35999

                Plaintiff-Appellant,            D.C. No. 3:16-cv-00537-HZ

 v.
                                                MEMORANDUM*
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.

                  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
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.

                                          2
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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