Savona v. Southern Oregon University et al

Filing 36

OPINION AND ORDER: Defendants' Partial Motion to Dismiss 32 is GRANTED in part and DENIED in part. Plaintiff's claims against Defendants Linda Schott and Charles Lane are dismissed with leave to amend. Plaintiff shall have thirty (30) days from the date of this order in which to file an amended complaint. Signed on 3/29/2018 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION

MIKHAIL SAVONA,

Civ.No.1:17-cv-01604-AA
OPINION & ORDER

Plaintiff,

v.
SOUTHERN OREGON UNIVERSITY;
LINDA SCHOTT; CHARLES LANE;
JODY WATERS; JOHN AND JANE
DOES 1-50,
Defendants.

AIKEN, District Judge.
This matter comes before the Court on Defendants' Paitial Motion to Dismiss the Fourth
Amended Complaint ("FAC"), ECF No. 32. This motion is appropriate for resolution without
oral argument. Defendants' Motion is GRANTED in part and DENIED in part. Plaintiff shall
have thirty (30) days from the date of this Order in which to file an amended complaint.
BACKGROUND

Defendant Southern Oregon University ("SOU") is an Oregon public university located
in Ashland, Oregon. Defendant Dr. Linda Schott ("Schott") is the president of SOU, a position
she has held since August 2016.

Defendant Dr. Charles Lane ("Lane") is a professor of

environmental science at SOU. Defendant Jody Waters ("Waters") is the SOU administrator
responsible for providing services and accommodations to students with disabilities.

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Plaintiff Mikhail Savona ("Savona") is an SOU student. Savona suffers from dyslexia, a
disorder affecting his ability to interpret words, letters and other symbols, and from dyscalculia,
a disorder affecting his ability to calculate numbers and perform other mathematical functions.
Savona's dyslexia and dyscalculia are considered to be disabilities and entitle him to certain
academic accommodations, such as additional time for test-taking, or having his exams
administered orally, rather than in writing.
During the fall term of2015, Savona enrolled in a class called "Business, Government, &
Society," or BAll 0. 1

Savona requested testing accommodations for BAI 10, but the

accommodations were not provided. Savona received a failing grade in BAllO. Savona does
not allege that he appealed his grade in BAI 10, or initiated any other sort of grievance procedure
related to the failure to provide him with accommodations.
During the fall term of2016, Savona enrolled in a class called "Environmental Science,"
or ES 101, taught by Lane. Savona is required to pass ES 101 in order to graduate. The course
materials for ES 101 include timed online quizzes and a written exam. Savona requested, but did
not receive, accommodations while enrolled in ESlOl.

Savona received a failing grade in

ES 101. Savona appealed his failing grade and the failure to provide accommodations tln·ough
the SOU grievance procedures. An administrative hearing was held on March 6, 2017, and SOU
subsequently denied Savona' s grievance. This action followed.

LEGAL STANDARD
Where a plaintiff "fail[s] to state a claim upon which relief can be granted," the court
must dismiss the action. Fed. R. Civ. P. 12(b)(6). In order to state a viable claim, a plaintiff
must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v.
1

Defendants assert that Savona enrolled in BAI 10 in the winter tenn of2015, rather than the fall term as alleged in
the FAC. The Court notes the factual dispute, but for purposes of this motion, the Court will assume the truth of the
allegations in the FAC. See, e.g., Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).

Page 2 - OPINION & ORDER

Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009). This

means a complaint must contain "factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged."
(internal quotation marks and citation omitted).

Iqbal, 556 U.S. at 678

The complaint must contain "well-pleaded

facts" which "permit the comi to infer more than the mere possibility of misconduct." Id. at 679.
For purposes of a motion to dismiss, the complaint is liberally construed in favor of the
plaintiff and its allegations taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983).
Bare assertions, however, that amount to nothing more than a "fmmulaic recitation of the
elements" of a claim "are conclusory and not entitled to be assumed true." Iqbal, 556 U.S. at
681.

DISCUSSION
Savona brings claims against SOU (1) for violation of the Americans with Disabilities
Act ("ADA"), 42 U.S.C. § 12101 et seq.; (2) for violation of Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794; and (3) against Schott, Lane, and Waters for violation of his due process
rights pursuant to 42 U.S.C. § 1983.
Defendants move to dismiss Savona's claims insofar as they relate to BAl 10 because any
ADA or Rehabilitation Act claims related to BAil 0 are barred by the applicable statute of
limitations. Defendants move to dismiss Savona's claims against Lane and Schott on the basis
that Savona has failed to state a claim as to those individual defendants.

I.

Timeliness
Defendants assert that Savona's ADA and Rehabilitation Act claims are subject to the

one-year statute of limitations provided in ORS 659A.875(1) and that, as a consequence,

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Savona's claims are time-barred insofar as they relate to Defendants' alleged failure to provide
Savona with disability accommodations while he was emolled in BAl 10.
The Rehabilitation Act provides that"[nJo otherwise qualified individual with a disability
in the United States . . . shall, solely by reason of her or his disability, be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under any program or
activity receiving Federal financial assistance .... " 29 U.S.C. § 794(a). Title III of the ADA,
which Savona cites in the FAC, provides that "[nJo individual shall be discriminated against on
the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). Such
discrimination includes "a failure to make reasonable modification in polices, practices, or
procedures .... " 42 U.S.C. § 12182(b)(2)(A)(ii).
Neither Title III of the ADA or the Rehabilitation Act contains an express statute of
limitations. Under such circumstances, federal comts must "borrow the statute of limitations
applicable to the most analogous state-law claim, so long as 'it is not inconsistent with federal
law or policy to do so."' Sharkey v. O'Nea/, 778 F.3d 767, 770 (9th Cir. 2015) (quoting Wilson

v. Garcia, 471 U.S. 261, 266-67 (1985)).
The Oregon analog to the ADA and the Rehabilitation Act is contained in the Oregon
Rehabilitation Act, ORS 659A.103 to 659A.145. Clink v. Or. Health and Science Univ., 9 F.
Supp.3d 1162, 1166-68 (D. Or. 2014); T.L. ex rel. Low1y v. Sherwood Charter Sch., No. 03:13CV-01562-HZ, 2014 WL 897123, at *8 (D. Or. Mar. 6, 2014). Specifically, the most analogous
Oregon statute is ORS 659A.142, which prohibits the state government from denying the
benefits of its services and programs to an individual because of that person's disability. Lowry,

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2014 WL 897123, at *8. ORS 659A.885 provides that a plaintiff may bring a civil action for
unlawful discrimination and such an action is subject to the limitations periods set forth in ORS
659A.875, potentially including the one-year limitation period set in ORS 659A.875(1).
ORS 659A.875(1) is a mismatch when applied to Savona's claims, however. The statute
provides that "a civil action under ORS 659A.885 alleging an unlawful employment practice
must be commenced within one year after the occurrence of the unlawful employment practice
unless a complaint has been timely filed under ORS 659A.820." ORS 659A.875(1) (emphasis
added). On its face, ORS 659A.875(1) applies specifically to disability discrimination actions
alleging unlawful employment practices and not to disability discrimination claims more
generally. Savona's claims do not relate to any unlawful employment practices.
This is not an issue of first impression for courts in this District. In T.L. ex rel. Lowry v.

Sherwood Charter Sch., the comt observed that "[w]hile an action alleging a violation of O.R.S.
659A.142 is, by virtue of being part ofO.R.S. 659A.103 to O.R.S. 659A.145, a civil action under
O.R.S. 659A.885, it is not a civil action under O.R.S. 659A.885 alleging an unlawful

employment practice." LowlJ', 2014 WL 897123, at *9 (emphasis in original, internal quotation
marks, alterations, and citation omitted). Instead, the Loll'ly court concluded that the statute of
limitations set forth in ORS 12.110(1), which governs general tort claims, was the more
appropriate statute of limitations for discrimination claims brought pursuant to the ADA and the
Rehabilitation Act when those claims do not involve the specific circumstances described in
ORS 659A.875. 2 Id. at *9; see also Ramirez v. Parker, No. 3:13-CV-01772-AC, 2014 WL
7187463, at *12, 14 (D. Or. Dec. 16, 2014) (holding same).

2

"A action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising
on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in
an action at law based upon fraud and deceit, the limitation shall be deemed to commence only from the discovery
of the fraud or deceit." ORS 12. l!O(I).

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Defendants assert that Lowry has been superseded by the Ninth Circuit's decision in
Sharkey v. O'Neal, 778 F.3d 767 (9th Cir. 2015). In Sharkey, the Ninth Circuit rejected its own

long practice of applying California's personal injury statute of limitations to ADA and
Rehabilitation Act claims, finding instead that California's disability discrimination statute, Cal.
Government Code § 11135, was "an almost identical state-law counterpatt" to Title II of the
ADA. Sharkey, 778 F.3d at 770-71. Accordingly, the plaintiffs claims were subject to a threeyear statute of limitations for statutory claims, rather than the shorter limitations period for
person injury actions. Id. at 773.
Courts within this District have found the holding of Lo1111y to be consistent with
Sharkey, however.

In Updike v. Clackamas Cnty., Case No. 3:15-cv-00723-SI, 2015 WL

7722410 (D. Or. Nov. 30, 2015), a deaf plaintiff brought claims against the county jail for failing
to provide him with disability-related accommodations while he was incarcerated. Id at *2. The
plaintiff sued the county pursuant to the ADA and the Rehabilitation Act and the county sought
to dismiss the action based on the one-year limitations period contained in ORS 659A.875(1 ).
Id. at *4-5. The Updike court rejected the county's argument, noting:

Oregon's disability discrimination statute supplies a narrower statute of
limitations for employment-related disability discrimination claims. Nothing in
the Sharkey decision prohibits looking to other analogous statutes when the state's
disability discrimination statute is silent. The Ninth Circuit also explicitly held
that comts need not apply the same limitation period to all ADA claims. Oregon
courts may apply ORS § 659A.875(1) to employment disability discrimination
claims while applying different statutes, including Oregon's general personal
injury statute, to other ADA claims.
Updike, 2015 WL 7722410, at *6 (internal citations omitted).

In another recent case, A.F ex rel. Feola v. Starbucks Corp., Case No. 3:17-cv-1582-SI,
2018 WL 1161385 (D. Or. Mar. 5, 2018), the court reached the same conclusion. In Feola, the

Page 6 - OPINION & ORDER

plaintiff was ejected and banned from a coffee shop for conducted related to his disability. Id. at

*1.

The defendant sought to dismiss the plaintiff's claims as untimely, arguing that they were

subject to the one-year statute of limitations set foiih in ORS 657A.875.

The Feola co111i

rejected the defendant's argument, finding that the plaintiff's claims under Title III of the ADA
were most analogous to ORS 659A.142(4) and, as the claims did not relate to any unlawful
employment practice, the appropriate statute of limitations was ORS 12.110(1). Id. at *2-3. 3
The Court finds the reasoning of Low1J1, Ramirez, Updike, and Feola persuasive. The
statute of limitations set out in ORS 659A.875(1) applies specifically to disability discrimination
claims in the employment context and this case does not involve any such claims. 4

The

appropriate statute of limitations for Savona's claims is found in ORS 12.110(1), which provides
a two year statute of limitations for "any injury to the person or rights of another, not arising on
contract, and not especially enumerated in this chapter." 5 Savona's claims were brought within
two years and are therefore timely.

3

Defendants cite to Clink v. Or. Health and Science Univ., 9 F. Supp.3d 1162, 1168 (D. Or. 2014), in which Judge
Simon found that the appropriate statute oflimitations for the plaintiffs Rehabilitation Act claim was ORS
659A.875(1), rather than ORS 12.110(1). Unlike the present case, however, Clink involved allegations of
discrimination in the employment context, placing the plaintiffs claims within the narrower limitations period
provided by ORS 659A.875(1). Id. In Feola, Judge Simon distinguished Clink on that very basis, noting that Clink
did not find that ORS 659A.875(1) applied to disability discrimination claims outside of the employment context.
A.F. ex rel. Feola v. Starbucks Corp., Case No. 3:17-cv-1582-SI, 2018 WL 1161385, at *2 (D. Or. Mar. 5, 2018).
4
Defendants suggest for the fast time in a footnote of their Reply that ORS 659A.875(4) or ORS 659.860(2) might
supply alternative "most analogous" statutes of limitation. It is inappropriate for Defendants to advance a new legal
theory in their Reply because it deprives Savona of the opportunity to respond. Furthermore, courts within this
District have rejected those statutes as analogs to the ADA or Rehabilitation Act and the Court finds the reasoning
put forth in those decisions persuasive. T.L. ex rel. Lowry v. Shenvood Charter Sch., No. 03:13-CV-01562-HZ,
2014 WL 897123, at *8 n.l (D. Or. Mar 6, 2014) (rejecting ORS 659.850, for which ORS 659.860 supplies the
statute oflirnitations, as the most analogous state law claim); Feola, 2018 WL 1161385, at* 1 (rejecting ORS
659A.874(4) as the appropriate statute oflimitations).
5
Neither party argues that ORS Chapter 12 contains a specially enumerated statute of limitations for disability
discrimination, nor has the Comt located any such provision. See Feola, 2018 WL 1161385, at *3 (finding the
same).

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II.

Claims Against Lane and Schott
Savona's claims against Lane and Schott are based on the Defendants' alleged failure to

provide an appropriate grievance process, amounting to a denial of Savona's due process rights.
The FAC, however, fails to allege any personal involvement by Lane or Schott in the SOU
appeal and grievance process and the FAC's references to the Defendants acting collectively
amount to nothing more than legal conclusions. Such allegations are not entitled to be presumed
true on a motion to dismiss. Iqbal, 556 U.S. at 681. In his Response to the present motion,
Savona asserts that Lane and Schott were personally involved in the allege due process violation,
but he has neglected to include those allegations (or the facts supporting them) in the FAC itself.
Savona argues that the Court should infer that he complained about the lack of
accommodations to Lane and Schott and that those Defendants personally participated in the
"insufficient and sham appeal procedure and hearing."

While it is true that the Court is

permitted to draw reasonable inferences, it may only do so when the inferences are supported by
well-pleaded facts. Iqbal, 556 U.S. at 678-79. No such facts have been included in the FAC.
Accordingly, the Court GRANTS Defendants' motion to dismiss as to Lane and Schott.
As it is clear that Savona could remedy the deficiencies in the FAC by alleging additional facts,
dismissal shall be with leave to amend. 6

6

The FAC does not clearly allege whether Savona intends to pursue his claims against the individual Defendants in
their official or individual capacities. In his Response, Savona clarifies that he is seeking relief against Defendants
in their individual capacities. Savona should incorporate that clarification into his fifth amended complaint.

Page 8 -OPINION & ORDER

CONCLUSION
For the reasons set fo1ih above, Defendants' Partial Motion to Dismiss, ECF No. 32, is
GRANTED in pmt and DENIED in pmi. Plaintiffs claims against Defendants Linda Schott and
Charles Lane are dismissed with leave to amend. Plaintiff shall have thirty (30) days from the

c/1t

date of this order in which to file an amended complaint.
It is so ORDERED and DATED this

C?!j

l day of March, 2018.

Ann Aiken
United States District Judge

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