VanValkenburg v. Oregon Department of Corrections
Filing
101
ORDER: The Court GRANTS in part and DENIES in part Defendants Motion 49 for Summary Judgment and Defendants Second Motion 64 for Partial Summary Judgment. The Court also DENIES Plaintiffs Motion 72 for Partial Summary Judgment in its entirety. The Court directs the parties to confer and to submit no later than February 16, 2016, an updated, jointly proposed case management schedule for the Courts consideration in which the parties address all further motion practice and proceed ings needed before the filing of a final Pretrial Order and the scheduling of a firm jury-trial date, including any additional briefing regarding the applicability of Oregon Revised Statute§ 30.650. Signed on 02/04/2016 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID VANVALKENBURG,
Plaintiff,
v.
OREGON DEPARTMENT OF
CORRECTIONS,
Defendant.
MATTHEW C. ELLIS
Law Office of Matthew C. Ellis
621 S.W. Morrison Street
Suite 1050
Portland, OR 97205
(503) 226-0072
SHENOA L. PAYNE
Hagglund Kelly, LLP
200 S.W. Market Street
Suite 1777
Portland, OR 97201
(503) 225-0777
Attorneys for Plaintiff
1 - OPINION AND ORDER
3:14-cv-00916-BR
OPINION AND ORDER
ELLEN F. ROSENBLUM
Attorney General
HEATHER J. VAN METER
SHANNON M. VINCENT
Senior Assistant Attorneys General
Oregon Department of Justice
1162 Court Street N.E.
Salem, OR 97301
(503) 947-4700
Attorneys for Defendant
JESSE A. MERRITHEW
Levi Merrithew Horst, LLP
610 S.W. Alder Street, Suite 415
Portland, OR 97205
(971) 229-1241
Attorneys for Amicus HEARD
BROWN, Judge.
This matter comes before the Court on Defendant Oregon
Department of Corrections’ Motion (#49) for Summary Judgment,
Defendant’s Second Motion (#64) for Partial Summary Judgment, and
Plaintiff David VanValkenburg’s Motion (#72) for Partial Summary
Judgment.
For the reasons that follow, the Court GRANTS in part
and DENIES in part Defendant’s Motion (#49) for Summary Judgment
and Defendant’s Second Motion (#64) for Partial Summary Judgment
as follows:
1.
The Court GRANTS Defendant’s Motion (#49) as to
Plaintiff’s claims for injunctive relief and DISMISSES those
claims with prejudice;
2 - OPINION AND ORDER
2.
The Court GRANTS Defendant’s Second Motion (#64) as to
the statute of limitations on Plaintiff’s Claim One and limits
recovery on Plaintiff’s Claim One to those instances of alleged
disability discrimination that occurred on or after September 23,
2013;
3.
The Court GRANTS in part and DENIES in part Defendant’s
Second Motion (#64) as to the statute of limitations on
Plaintiff’s Claim Two and limits recovery on Plaintiff’s Claim
Two to those instances of alleged disability discrimination that
occurred on or after May 5, 2012;
4.
The Court DENIES Defendant’s Motion (#49) as to
Plaintiff’s claim for noneconomic damages in Claim One; and
5.
The Court GRANTS in part and DENIES in part Defendant’s
Motion (#49) as to the limitations on Claim Two pursuant to the
Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, and
DISMISSES with prejudice Plaintiff’s Claim Two to the extent he
seeks emotional-distress damages.
The Court also DENIES Plaintiff’s Motion (#72) for Partial
Summary Judgment.
BACKGROUND
The following facts are undisputed and taken from the record
on summary judgment:
Defendant took Plaintiff into custody in November 2000, and,
3 - OPINION AND ORDER
after Plaintiff instituted this action in June 2014, Plaintiff
was released from custody on December 1, 2014.
Plaintiff has a
significant hearing impairment, but the extent of Plaintiff’s
impairment is a matter of dispute between the parties.1
During most of his time in Defendant’s custody, Plaintiff
was housed at Snake River Correctional Institution (SRCI), but he
was also incarcerated for various periods at Oregon State
Penitentiary, Oregon State Correctional Institution, Santiam
Correctional Institution, and Columbia River Correctional
Institution.
Defendant offers religious services, educational classes,
work opportunities, and medical and dental services to inmates in
its custody, and all inmates receive a counselor assessment when
they first come into Defendant’s custody.
At the assessment during Plaintiff’s initial intake into
Defendant’s custody, Plaintiff’s mental-health services provider
noted Plaintiff was “significant[ly] hearing-impaired” and
“needed to have most questions written for him despite being able
to read lips.”
On November 20, 2003, approximately two years after
Plaintiff entered Defendant’s custody, Plaintiff submitted an
1
For ease of reference the Court will refer to Plaintiff’s
hearing impairment as “deafness.” By doing so, however, the
Court does not make any determination regarding the extent of
Plaintiff’s hearing impairment at this stage of the proceedings.
4 - OPINION AND ORDER
Inmate Discrimination Complaint (IDC) in which he stated he
received a disciplinary sanction as a result of his inability to
communicate with officers and in which he requested permission to
“carry paper and pen” and to have an interpreter.
On January 14,
2004, Defendant rejected Plaintiff’s IDC on the basis that the
available information “indicate[d] that [Plaintiff] did
understand what the Officer said and failed to follow the
Officer’s direction.”
Plaintiff appealed this decision on
January 9, 2014, but the record does not reflect the disposition
of that appeal or whether Plaintiff filed a tort-claim notice
regarding that incident.
On November 22, 2003, Plaintiff filed another IDC in which
he alleged he was not provided sufficient access to a TTY
telephone and in which he requested the same access to the TTY
telephone as other inmates have to traditional telephones without
having to make an appointment or to submit a written request.
Defendant did not find any discrimination as to Plaintiff’s
access to a TTY telephone because it was available during the
same hours as the regular telephones and, although the TTY
telephone required staff assistance, Defendant asserted “every
effort is made to accommodate your access as quickly as
possible.”
Plaintiff did not appeal the disposition of this IDC
or file a tort-claim notice regarding the IDC.
Plaintiff filed another IDC on October 23, 2008, in which he
5 - OPINION AND ORDER
asserted he was being discriminated against because Defendants
had denied him an ear piece that he needed to “hear well.”
Defendant rejected Plaintiff’s IDC on the basis that Defendant
provided him “with a full-time live-in helper” and Health
Services “authorized repair parts for [Plaintiff’s] hearing
aids.”
Plaintiff appealed the denial.
Defendant rejected Plaintiff’s appeal.
On March 16, 2009,
Plaintiff did not
immediately file a tort-claim notice.
On March 11, 2013, Plaintiff sent an Inmate Communication
Form (also known as a “kyte”) to Defendant in which Plaintiff
requested an interpreter for a yoga class that he was taking
because he could not understand many of the instructions.
Defendant responded it could only hire interpreters for a
“required program.”
On March 19, 2013, Plaintiff sent a kyte to Defendant in
which Plaintiff requested an interpreter for job classes to help
Plaintiff obtain better employment within the prison system.
Defendant initially responded it would look into the availability
of interpreters for job classes, but on May 10, 2013, Defendant
again stated an interpreter would only be provided for required
programs.
Plaintiff submitted an IDC dated June 3, 2013, in which
Plaintiff stated Defendant discriminated against him by denying
him a qualified interpreter for classes that he wanted to take
6 - OPINION AND ORDER
and for other programs.
In that IDC Plaintiff listed the date
and time of the incident as May 9, 2013.
On January 21, 2014,
Plaintiff sent a kyte to Defendant in which he attached the
June 3, 2013, IDC and stated he sent it to Defendant in May 2013,
but he had not heard back.
Plaintiff’s IDC is stamped received
by Defendant on January 29, 2014.
Defendant denied the IDC on
the basis that it was received more than 30 days after the
incident date and stated “[t]here is no record of [Plaintiff]
submitting a discrimination complaint prior to January 29, 2014,
nor is there record of any follow-up by [Plaintiff] prior to
January 29, 2014.”
The record does not reflect Plaintiff
appealed the denial of this IDC.
Nonetheless, on March 21, 2014, Plaintiff sent to Defendant
a tort-claim notice in which he contended Defendant had
systematically and continuously discriminated against Plaintiff
on the basis of his deafness by failing to provide Plaintiff with
a qualified, noninmate interpreter and, therefore, did not allow
Plaintiff equal access to Defendant’s programs, services, and
activities.
Plaintiff instituted an action in the Circuit Court of the
State of Oregon for Multnomah County on May 5, 2014, which
Defendant removed to this Court on June 6, 2014, on the basis of
federal-question, subject-matter jurisdiction.
Plaintiff was released from Defendant’s custody on
7 - OPINION AND ORDER
December 1, 2014, and thereafter Plaintiff filed a Second Amended
Complaint that was identical to his First Amended Complaint
except in the Second Amended Complaint Plaintiff alleged he had
been released from Defendant’s custody and Plaintiff omitted a
previously-included allegation that Plaintiff suffered physical
injury as a result of Defendant’s failure to accommodate
Plaintiff’s deafness.
Plaintiff brings two claims against Defendant in his Second
Amended Complaint (#43).
In Claim One Plaintiff alleges
Defendant discriminated against Plaintiff on the basis of his
disability in violation of Oregon Revised Statute § 659A.142 when
Defendant failed to provide Plaintiff with a qualified, noninmate interpreter (and often relied on untrained inmate
interpreters) for various services, work and educational
opportunities, disciplinary proceedings, counseling sessions, and
medical and dental appointments.
In Claim Two Plaintiff brings a
claim under the Americans with Disabilities Act (ADA), 42 U.S.C.
§§ 12131-12165, et seq., based on the same conduct described in
Claim One.
Plaintiff seeks $450,000.00 in compensatory damages
and also seeks injunctive relief regarding the accommodations
that Defendant provides deaf inmates and the policies that govern
effective communication with deaf inmates.
8 - OPINION AND ORDER
STANDARDS
Summary judgment is appropriate when there is not a “genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Washington Mut. Ins. v. United
States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).
See also Fed. R.
The moving party must show the absence of a
dispute as to a material fact.
Rivera v. Philip Morris, Inc.,
395 F.3d 1142, 1146 (9th Cir. 2005).
See also Emeldi v. Univ. of
Or., 673 F.3d 1218, 1223 (9th Cir. 2012).
In response to a
properly supported motion for summary judgment, the nonmoving
party must go beyond the pleadings and point to “specific facts
demonstrating the existence of general issues for trial.” In re
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) “This
burden is not a light one . . . .
The non-moving party must do
more than show there is some ‘metaphysical doubt’ as to the
material facts at issue.”
Id. (citation omitted).
A dispute as to a material fact is genuine “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
The court must draw all
reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).
Sluimer
“Summary
judgment cannot be granted where contrary inferences may be drawn
9 - OPINION AND ORDER
from the evidence as to material issues.”
Easter v. Am. W. Fin.,
381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts
Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
A “mere disagreement or bald assertion” that a genuine
dispute as to a material fact exists “will not preclude the grant
of summary judgment.”
Deering v. Lassen Cmty. Coll. Dist., No.
2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20,
2011)(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).
2010).
See also Moore v. Potter, 701 F. Supp. 2d 1171 (D. Or.
When the nonmoving party's claims are factually
implausible, that party must “come forward with more persuasive
evidence than otherwise would be necessary.”
LVRC Holdings LLC
v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citing Blue Ridge
Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.
Miller v. Glenn Miller
Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
If the
resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
10- OPINION AND ORDER
Id.
DISCUSSION
I.
Defendant’s Motion (#49) for Summary Judgment and Second
Motion (#64) for Partial Summary Judgment
Defendant moves for summary judgment on the basis that
(1) Plaintiff’s requested injunctive relief is moot;
(2) Plaintiff’s claims are barred by the applicable statutes of
limitations; (3) Plaintiff cannot seek noneconomic damages on
Claim One pursuant to Oregon Revised Statute § 30.650 because he
has not suffered any economic damages; (4) Plaintiff cannot seek
emotional-distress damages on Claim Two under the PLRA, 42 U.S.C.
§ 1997e(e); and (5) Plaintiff failed to exhaust his
administrative remedies on Claim Two as required by the PLRA, 42
U.S.C. § 1997e(a).
A.
Plaintiff’s Standing to Seek Injunctive Relief
Defendant first contends Plaintiff no longer has standing to
pursue his claims for injunctive relief because Plaintiff has now
been released from custody, and, therefore, there is not a
sufficient likelihood that Plaintiff will again be injured by
Defendant’s allegedly unlawful conduct.
To establish Article III standing to seek prospective relief
such as an injunction, a plaintiff must demonstrate “he faces
imminent injury on account of the defendant’s conduct.”
v. United States, 599 F.3d 964, 970 (9th Cir. 2010).
Mayfield
“Past
exposure to harmful or illegal conduct does not necessarily
11- OPINION AND ORDER
confer standing to seek injunctive relief if the plaintiff does
not continue to suffer adverse effects.”
Id.
After “a plaintiff
has been wronged, he is entitled to injunctive relief only if he
can show that he faces a ‘real or immediate threat . . . that he
will again be wronged in a similar way.’”
Id. (quoting City of
Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)).
“‘The requisite
personal interest that must exist at the commencement of the
litigation . . . must continue throughout its existence.’”
Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007)(quoting
Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.2
(1997))(ellipses in original).
See also Sanford v. MemberWorks,
Inc., 625 F.3d 550, 556 (9th Cir. 2010).
“‘An inmate’s release from prison while his claims are
pending generally will moot any claims for injunctive relief
relating to the prison’s policies unless the suit has been
certified as a class action.’”
Alvarez v. Hill, 667 F.3d 1061,
1064 (9th Cir. 2012)(quoting Dilley v. Gunn, 64 F.3d 1365, 1368
(9th Cir. 1995)).
“The reason is that the released inmate is no
longer subject to the prison conditions or policies he
challenges.”
Alvarez, 667 F.3d at 1064.
Any prospective relief
sought must have a “practical impact on the inmate’s rights” and
redress the injury originally asserted.
287.
Incumaa, 507 F.3d at
See also Alvarez, 667 F.3d at 1064.
Here Plaintiff contends his claims for injunctive relief are
12- OPINION AND ORDER
not moot under United States v. Howard, 480 F.3d 1005 (9th Cir.
2007), because he challenges an ongoing policy to which other
deaf inmates will continue to be subjected.
In Howard the Ninth Circuit held criminal defendants seeking
review of a policy that required leg restraints during
defendants’ initial appearances could seek injunctive relief
because it presented a controversy that was “‘capable of
repetition, yet evading review.’”
480 F.3d at 1009 (quoting
Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)).
The Ninth
Circuit noted it had previously “held that a case is capable of
repetition when the defendants are challenging an ongoing
government policy.”
Howard, 480 F.3d at 1010.
Thus, Plaintiff
contends his claim for injunctive relief remains viable.
In Alvarez, however, the Ninth Circuit substantially limited
its broad statement in Howard when it noted:
“We have never
applied Howard beyond such circumstances involving short-lived
pretrial proceedings in criminal prosecutions, where civil class
actions would not be conducive to obtaining the relief sought.”
Alvarez, 667 F.3d at 1065.
In Alvarez an inmate alleged an
Oregon Department of Corrections policy burdened his practice of
the Native American religion in violation of the Religious Land
Use and Institutionalized Persons Act (RLUIPA).
Id. at 1063.
The plaintiff filed his lawsuit against ODOC in June 2004, and he
was released from incarceration in 2007 during the pendency of
13- OPINION AND ORDER
the lawsuit.
Id. at 1063-64.
The Ninth Circuit ultimately
concluded the Howard rule did not apply and that plaintiff’s
claim for injunctive relief was moot because “[t]here is nothing
in the record to suggest that these other inmates would generally
be unable to litigate their RLUIPA claims to completion, and to
do so as a class action if they so chose.”
Id. at 1065.
The
Ninth Circuit in Alvarez, therefore, concluded the Howard rule
does not permit a plaintiff to seek prospective relief by
challenging an ongoing government policy that no longer applies
to that plaintiff even though the policy may apply to other
potential plaintiffs who could litigate their own claims.
The Court concludes this case is controlled by Alvarez
because other deaf inmates who are currently subject or may
become subject to the allegedly unlawful practices and policies
that Plaintiff challenges in this action can bring their own
claims.
As the Ninth Circuit implied in Alvarez, unlike pretrial
detention or a policy of shackling criminal defendants at their
initial appearance, policies that apply to incarceration are not
so inherently transitory as to render them capable of repetition
while evading review.
On this record, therefore, the Court concludes Plaintiff’s
Claims One and Two are moot to the extent that Plaintiff seeks
injunctive relief because he has been released from Defendant’s
custody.
The Court, therefore, dismisses with prejudice these
14- OPINION AND ORDER
portions of Plaintiff’s Claims One and Two.
B.
Statute of Limitations
Defendant also moves for summary judgment on the basis that
Plaintiff’s claims are barred by the relevant statutes of
limitations.
1.
Claim One - Oregon Revised Statute § 659A.142
Defendant contends Plaintiff's claim under
§ 659A.142(5) is governed by the one-year statute of limitations
in Oregon Revised Statute § 659A.875(6) and the 180-day
limitation in the tort-claim notice provision of the Oregon Tort
Claims Act (OTCA), Oregon Revised Statute § 30.265(2).
Plaintiff, on the other hand, contends Claim One is subject to
the two-year personal-injury statute of limitations contained in
Oregon Revised Statute § 12.110(1), and, in any event, none of
Claim One is barred by the statute of limitations under Oregon’s
continuing-tort doctrine.
a.
Applicable Statute of Limitations
As noted, Defendant contends the one-year statute
of limitations in § 659A.875(6) applies to Plaintiff's
disability-discrimination claim under § 659A.142(5).
659A.875(6) provides:
Section
“Notwithstanding ORS § 30.275(9), a civil
action under ORS § 659A.885 against a public body . . . based on
an unlawful employment practice must be commenced within one year
after the occurrence of the unlawful employment practice unless a
15- OPINION AND ORDER
complaint has been timely filed under ORS § 659A.820.”
Section
659A.885, in turn, provides the cause of action for violations of
§ 659A.142.
Accordingly, Defendant contends the one-year statute
of limitations contained in § 659A.875(6) applies to Plaintiff's
claim under § 659A.142.
On the other hand, Plaintiff, as noted,
contends the appropriate statutory period is the two-year statute
of limitations contained in § 12.110(1).
By its terms § 659A.875(6) only applies to
lawsuits brought under one of the specified statutes against a
public body “based on an unlawful employment practice.”
Plaintiff's Claim One, however, is not “based on an unlawful
employment practice.”
See Or. Rev. Stat. § 659A.875(6).
Accordingly, the Court concludes the one-year statute of
limitations contained in § 659A.875(6) does not apply to
Plaintiff's Claim One.
Plaintiff's Claim One, however, is against a state
entity, and, therefore, the Court concludes the two-year statute
of limitations contained in the OTCA, Oregon Revised Statute
§ 30.275(9), is the applicable statute of limitations and
Plaintiff's Claim One is governed by the OTCA’s tort-claim notice
requirement.
The OTCA requires a plaintiff to provide notice to
the relevant agency of any tort claim “within 180 days after the
alleged loss or injury.”
Or. Rev. Stat. § 30.275(2).
The Court
notes September 23, 2013, was 180 days before Plaintiff's March
16- OPINION AND ORDER
21, 2014, tort-claim notice.
b.
Continuing-Tort Doctrine
Plaintiff, nonetheless, contends neither the
statute of limitations nor the tort-claim notice requirement
limit Claim One because Claim One is a continuing tort.
“A continuing tort is based on ‘the concept that
recovery is for the cumulative effect of wrongful behavior, not
for discrete elements of that conduct.’”
Barrington ex rel.
Barrington v. Sandberg, 164 Or. App. 292, 296 (1999)(quoting
Davis v. Bostick, 282 Or. 667, 671 (1978)).
See also Boardmaster
Corp. v. Jackson Cnty., 224 Or. App. 533, 549-50 (2008).
Thus,
the continuing-tort doctrine does not apply when acts are
“separately actionable because they individually caused harm”
even if those acts are “all of a piece in intent and content.”
Barrington, 164 Or. App. at 296-97.
In Davis the Oregon Supreme Court held the
continuing-tort doctrine did not apply to a plaintiff’s
intentional infliction of emotional-distress claim that stemmed
from several incidents of physical and emotional spousal abuse.
282 Or. at 669.
Some of these incidents of abuse occurred
outside of the relevant statute of limitations.
Id. at 669-70.
The court, however, held the plaintiff’s “theory is that she
ought to recover now for a series of wrongs, but her evidence is
that she was harmed by each act in the series.
17- OPINION AND ORDER
We do not think
she was entitled to ride out the storm and lump sum her
grievances.”
Id. at 674.
Plaintiff contends the continuing-tort doctrine,
nonetheless, applies here because he seeks recovery for a single,
continuous pattern and policy of discrimination by Defendant
based on Plaintiff’s deafness.
Plaintiff, therefore, asserts his
harm, in fact, stems from the overall pattern or practice of the
discrimination rather than discrete incidents of Defendant
failing to accommodate his deafness by providing effective
communication.
According to Defendant, however, the
continuing-tort doctrine does not apply here because there was
not any singular, continuous policy or practice that Defendant
followed regarding Plaintiff's hearing disability, and, in fact,
the accommodations provided to Plaintiff by Defendant evolved
over the course of Plaintiff’s 14-year incarceration.
The Court concludes this case presents a difficult
application of the continuing-tort doctrine because Plaintiff’s
characterizations of the nature of his claim are inconsistent;
i.e., at times Plaintiff characterizes the harm as arising from
the cumulative effects of 14 years of Defendant’s failure to
ensure Plaintiff’s ability to communicate, but at other times
Plaintiff is specific about individual harms that resulted from
specific failures to accommodate his deafness.
18- OPINION AND ORDER
For example, in
his argument that his claims for noneconomic damages are not
barred by Oregon Revised Statute § 30.650, Plaintiff contends he
suffered economic loss because he was not afforded the same work
opportunities as other inmates and was not sufficiently
accommodated in order to take advantage of certain educational
opportunities.
See infra Section I(C).
Thus, Plaintiff’s
assertions that Defendant’s various failures to accommodate him
in particular contexts caused distinctly identifiable types of
damages is inconsistent with Plaintiff’s contention that he seeks
in Claim One to redress a single, continuous violation of
§ 659A.142(5).
See Barrington, 164 Or. App. at 296-97 (the
continuing-tort doctrine does not apply when a series of actions
are “separately actionable because they individually caused
harm.”).
Moreover, Plaintiff’s Claim One implicates several
actions that a factfinder would have to analyze separately to
determine whether Defendant's conduct was unlawful.
A
factfinder, for example, could find Defendant reasonably
accommodated Plaintiff’s deafness through the use of an inmate
interpreter in the context of a yoga class but Defendant
unreasonably failed to accommodate Plaintiff’s deafness by using
inmate interpreters in the context of a disciplinary proceeding.
Like the plaintiff in Davis, therefore, Plaintiff's claim here
does not rest on the type of single, continuous action to which
19- OPINION AND ORDER
the continuing-tort doctrine applies because the various
allegedly discriminatory actions for which Plaintiff seeks
recovery are separately actionable and require separate elemental
analyses.
See Davis, 282 Or. at 674.
Accordingly, on this record the Court concludes
the continuing-tort doctrine does not apply to Plaintiff's Claim
One, and, therefore, the Court grants in part Defendant’s Motion
insofar as Plaintiff’s Claim One is limited to Defendant’s
alleged failure to accommodate Plaintiff’s disability on or after
September 23, 2013, pursuant to Oregon Revised Statute
§ 30.275(2).
2.
Claim Two - 42 U.S.C. § 12132
Defendant contends Plaintiff’s Claim Two under Title II
of the ADA is time-barred as to actions that occurred before
May 5, 2013 (one year before Plaintiff filed his Complaint)
because the ADA provides for a one-year statute of limitations
under Oregon Revised Statute § 659A.875(6).
Plaintiff, on the
other hand, contends the two-year limitations period in Oregon
Revised Statute § 12.110(1) applies to his ADA claim, and, in any
event, the continuing-tort doctrine applies to his Claim Two.
a.
Applicable Statute of Limitations
“Title II of the ADA does not contain an express
statute of limitations.”
(9th Cir. 2015).
Sharkey v. O'Neal, 778 F.3d 767, 770
Accordingly, the court “borrow[s] the statute
20- OPINION AND ORDER
of limitations applicable to the most analogous state-law claim.”
Id.
Defendant contends the statute of limitations that
applies to the most analogous state-law claim is the one-year
limitations period contained in § 659A.875(6).
Plaintiff,
however, contends the two-year personal-injury statute of
limitations in § 12.110(1) applies.
See Ramirez v. Parker,
No. 3:13-cv-01772-AC, 2014 WL 7187463, at *11 (D. Or. Dec. 16,
2014).
See also T.L. ex rel. Lowry v. Sherwood Charter Sch.,
No. 3:13-cv-01562-HZ, 2014 WL 897123, at *8-*9 (D. Or. Mar. 6,
2014).
As with its analysis as to Claim One, however, the
Court concludes § 659A.875(6) is not the state-law statute of
limitations most analogous to Plaintiff’s Claim Two because
§ 659A.875(6) applies specifically to employment-discrimination
claims.
In addition, although the Court agrees with Plaintiff
that § 12.110(1) may apply to the ordinary Title II case, the
Court concludes the state-law claim most analogous to Plaintiff’s
Claim Two is one brought under § 659A.142(5).
As noted,
Plaintiff’s action is brought against a state agency, and,
therefore, the Court concludes the two-year statute of
limitations contained in § 30.275(9) is the statute of
limitations most relevant to Plaintiff’s Claim Two.
b.
Continuing-Tort Doctrine
21- OPINION AND ORDER
As in Claim One, Plaintiff contends he may seek
damages for ADA violations that occurred outside of the two-year
statutory period because the continuing-tort doctrine applies to
Claim Two.
As noted, the continuing-tort doctrine permits a
plaintiff to seek recovery for acts that took place outside of
the statutory period.
See Cherosky v. Henderson, 330 F.3d 1243,
1245-46 (9th Cir. 2003).
The continuing-tort doctrine, however,
does not apply to “discrete discriminatory acts . . . even when
they are related to acts alleged in timely filed charges.”
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
Nat’l
See
also Davis v. Tri-County Metropolitan Transp. Dist. of Oregon,
No. 3:12-cv-00808-SI, 2015 WL 4403529, at *3 (D. Or. Jul. 17,
2015).
“A discrete discriminatory act consists of conduct that
‘occurred’ on the day it ‘happened,’ which includes, for example,
‘termination, failure to promote, denial of transfer, or refusal
to hire.’”
Davis, 2015 WL 4403529, at *3 (quoting Morgan, 536
U.S. at 114).
Even when a plaintiff asserts a “series of
discrete acts [that] flow[] from a company-wide, or systematic,
discriminatory practice, . . . each incident of discrimination
constitutes a separate actionable” violation.
Cherosky, 330 F.3d
at 1247.
In Cherosky the defendant denied the 1994 and 1997
requests of postal workers to wear respirators in the workplace.
22- OPINION AND ORDER
Id. at 1244-45.
In 1998 the plaintiffs filed a lawsuit under the
Rehabilitation Act, 29 U.S.C. §§ 701, et seq., but they had not
first consulted with a counselor at the Equal Employment
Opportunity Commission within 45 days of the 1994 or 1997 denials
as required by 29 C.F.R. § 1614.105(a)(1).
Id. at 1245.
The
plaintiffs contended the 45-day consultation requirement did not
bar their lawsuit because the defendant’s denial of their use of
respirators in the workplace was a continuing violation.
The
court held the continuing-violation doctrine did not apply
because “[t]he individualized decisions are best characterized as
discrete acts, rather than as a pattern or practice of
discrimination” even though “these discrete acts were undertaken
pursuant to a discriminatory policy.”
Id. at 1247.
For many of the same reasons that this Court noted
with respect to Claim One, Defendant’s alleged ADA violations in
Claim Two are best characterized as “discrete acts” that were
“undertaken pursuant to a discriminatory policy” (or lack
thereof), but that are, nonetheless, independently actionable.
See id.
The fact that many of the alleged discriminatory actions
require different elemental analyses and could yield differing
findings as to whether Defendant violated the ADA underscores the
discrete nature of Defendant’s allegedly discriminatory actions.
Accordingly, on this record the Court concludes
the continuing-violation doctrine does not apply to Plaintiff’s
23- OPINION AND ORDER
Claim Two, and, therefore, only those alleged ADA violations that
took place on or after May 5, 2012 (two years before Plaintiff
instituted this action) fall within the statute of limitations.
C.
Availability of Noneconomic Damages as to Claim One
Defendant contends Plaintiff’s Claim One must be dismissed
as to all damages claims because Plaintiff cannot obtain
noneconomic damages without making a showing that he suffered
economic damages as a result of Defendant’s allegedly unlawful
actions.
Oregon Revised Statute § 30.650 provides:
“Noneconomic
damages . . . may not be awarded to an inmate in an action
against a public body unless the inmate has established that the
inmate suffered economic damages.”
Plaintiff contends § 30.650 does not bar his claim for
noneconomic damages in Claim One because (1) he is no longer an
“inmate” within the meaning of § 30.650 (he was released from
Defendant’s custody after instituting this action), and,
therefore, § 30.650 does not apply, and (2) he has suffered
economic loss in the form of lost “points” and future earning
potential.
The parties do not cite and this Court has not located any
case that has explicitly addressed whether § 30.650 applies to a
plaintiff who is incarcerated at the time the plaintiff
institutes the action, but is released before any damages are
24- OPINION AND ORDER
awarded.2
The Court notes § 30.650 “imposes a condition on the
recovery of noneconomic damages in those kinds of actions.”
v. State, 190 Or. App. 154, 160 (2003).
Voth
Accordingly, § 30.650
“recognizes implicitly the capacity of an inmate to sue for both
economic and noneconomic damages,” but § 30.650 “operates to bar
the award of noneconomic damages unless the inmate also
establishes that he or she suffered economic damages.”
Id. at
160 (emphasis in original).
Statutory interpretation under Oregon law “entails three
sequential levels of analysis to determine the legislature’s
intent.”
State v. Gaines, 346 Or. 160, 164 (2009)(citing PGE v.
Bur. of Labor and Indus., 317 Or. 606, 610-12 (1993)).
the court examines the text and context of the statute.”
346 Or. at 164.
“First,
Gaines,
Second, the court will consider legislative
history “after examining text and context, even if the court does
not perceive an ambiguity in the statute’s text, where that
legislative history appears useful to the court’s analysis.”
2
Id.
Defendant cites Quesnoy v. Oregon, No. 3:10-cv-01538-ST,
2011 WL 5439103, at *4 (Nov. 4, 2011), and Orr v. Peterson, No.
3:14-cv-00898-AC, 2015 WL 2239635, at *6 (May 12, 2015), for the
proposition that courts in this district have held § 30.650
applies to an inmate who is released from custody during the
pendency of the lawsuit. Although those courts appear to have
assumed § 30.650 applies in such circumstances, they did not
analyze the issue. Accordingly, this Court does not find those
cases particularly helpful in deciding the contested question
whether § 30.650 applies to a plaintiff who is incarcerated when
the action is filed, but is released before any award of damages.
25- OPINION AND ORDER
at 172.
“If the legislature’s intent remains unclear after
examining legislative history, ‘the court may resort to general
maxims of statutory construction to aid in resolving the
remaining uncertainty.’”
612).
Id. at 164-65 (quoting PGE, 317 Or. at
Nonetheless, “the ‘cardinal rule’ of statutory
construction [is] that a court ‘shall pursue the intention of the
legislature if possible.’”
Gaines, 346 Or. at 165 (quoting
Holman Transfer Co. v. City of Portland, 196 Or. 551, 564
(1952)).
On this record the Court finds the most natural reading of
the text of § 30.650 is that the statute does not apply to a
plaintiff who was an inmate when the case was filed but was
released before the action reached the stage at which damages
might be awarded because § 30.650 appears to focus on the time at
which damages are awarded rather than when any such action is
instituted.
See Or. Rev. Stat. § 30.650 (“Noneconomic damages
. . . may not be awarded to an inmate in an action against a
public body unless the inmate has established that the inmate
suffered economic damages.”)(emphasis added).
This reading is
consistent with the Oregon Court of Appeals statement in Voth
that § 30.650 “operates to bar the award of noneconomic damages
unless the inmate also establishes that he or she suffered
economic damages.”
190 Or. App. at 160.
Nonetheless, because
this is not the only possible conclusion to draw from the plain
26- OPINION AND ORDER
meaning of the statute and because Voth did not address the
meaning of § 30.650 in any context that is closely analogous to
the issue presented in this case, the rules of statutory
interpretation require the Court to look to the legislative
history for clues as to the legislature’s intent.
The parties, however, did not address the legislative
history of § 30.650 and that legislative history is not readily
available to the Court.
The Court, therefore, does not have the
requisite information before it to resolve properly this novel
and important issue of state law.
Accordingly, the Court
declines to rule presently on the applicability of § 30.650 to
this matter and grants the parties leave to seek such a ruling
after properly briefing and presenting a comprehensive statutoryinterpretation analysis.
In any event, even assuming at this stage that § 30.650
applies to Plaintiff’s Claim One, the Court concludes Plaintiff
has established there is a genuine dispute of material fact as to
whether Plaintiff suffered economic damages within the meaning of
§ 31.710(2)(a), and, therefore, Defendant has not established at
this stage that Plaintiff is precluded from recovering
noneconomic damages under § 30.650.
Oregon law defines
“noneconomic damages” as “subjective, nonmonetary losses,
including but not limited to pain, mental suffering, emotional
distress, humiliation, injury to reputation, loss of care,
27- OPINION AND ORDER
comfort, companionship and society, loss of consortium,
inconvenience and interference with normal and usual activities
apart from gainful employment.”
Or. Rev. Stat. § 31.710(2)(b).
“Economic damages” are defined as:
[O]bjectively verifiable monetary losses including but
not limited to reasonable charges necessarily incurred
for medical, hospital, nursing and rehabilitative
services and other health care services, burial and
memorial expenses, loss of income and past and future
impairment of earning capacity, reasonable and
necessary expenses incurred for substitute domestic
services, recurring loss to an estate, damage to
reputation that is economically verifiable, reasonable
and necessarily incurred costs due to loss of use of
property and reasonable costs incurred for repair or
for replacement of damaged property, whichever is less.
Id. § 31.710(2)(a).
Here Plaintiff has shown there is a genuine dispute of
material fact as to whether he has suffered economic damages.
For example, Plaintiff submits evidence that he was unable to
obtain a higher-paying job during his incarceration and was
unable to participate in job-training classes as a result of
Defendant’s failure to accommodate his deafness.
Decl. (#54).
VanValkenburg
The Court concludes this is sufficient to create a
genuine dispute of material fact as to whether Plaintiff suffered
“loss of income and past and future impairment of earning
capacity.”
See Or. Rev. Stat. § 31.710(2)(a).
Accordingly, on this record the Court concludes § 30.650
does not bar Plaintiff’s claim for noneconomic damages as to
Claim One at this stage of the proceedings because there exists a
28- OPINION AND ORDER
genuine dispute of material fact as to whether Plaintiff suffered
economic damages.
As noted, however, the Court grants leave to
the parties to submit further argument and a comprehensive
analysis as to whether § 30.650 applies to Plaintiff’s Claim One
on a briefing schedule to be later determined.
D.
PLRA Requirements as to Claim Two
Defendant contends it is entitled to summary judgment on
Plaintiff’s Claim Two under the PLRA because (1) Plaintiff cannot
recover any emotional-distress damages under 42 U.S.C. § 1977e(e)
as to Claim Two because he did not suffer any physical injury as
a result of Defendant’s alleged discrimination and (2) Plaintiff
failed to exhaust his administrative remedies as required by 42
U.S.C. § 1997e(a).
1.
Emotional-Distress Damages
As noted, Defendant first contends Plaintiff cannot
recover damages for any mental or emotional injury under
§ 1997e(e) without demonstrating that he suffered a physical
injury.
Section 1997e(e) provides:
“No Federal civil action
may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury or
the commission of a sexual act.”
Plaintiff contends his claims for emotional-distress
29- OPINION AND ORDER
damages as to Claim Two are not barred by § 1997e(e) because
(1) he is no longer a prisoner; (2) this action is not a “Federal
civil action” within the meaning of § 1997e(e) because Plaintiff
originally filed his action in state court; and (3) Plaintiff has
made a “prior showing” of physical injury.
a.
Whether Plaintiff’s action was “brought” by a
“prisoner” within the meaning of the PLRA
As noted, Plaintiff contends his claim for
emotional-distress damages in Claim Two is not barred by
§ 1997e(e) because Plaintiff is no longer a “prisoner” within the
meaning of the PLRA.
Plaintiff asserts this action was not
“brought” by a prisoner because he filed his Second Amended
Complaint on March 18, 2015, after he was released from
Defendant’s custody.
Plaintiff relies on Cano v. Taylor for the
proposition that under the PLRA the “date of the filing [of the
amended complaint] is the proper yardstick” for determining when
Plaintiff “brought” the relevant action.
739 F.3d 1214, 1220
(9th Cir. 2014).
Defendant contends Cano only permits “claims which
are added to a suit” in an amended complaint to avoid the
requirements of the PLRA, and, therefore, Plaintiff’s Claim Two
is subject to the PLRA physical-injury requirement because Claim
Two preexisted the filing of Plaintiff’s Second Amended
Complaint.
See Cano, 739 F.3d at 1221 (emphasis added).
also Rhodes v. Robinson, 621 F.3d 1002, 1006 (9th Cir.
30- OPINION AND ORDER
See
2010)(“[T]he new claims in Rhodes’ [second amended complaint]
were ‘brought’ within the meaning of § 1997e on March 20, 2006,
when he tendered that complaint for filing with his motion for
leave to file an amended complaint.”).
Here Defendant contends
Plaintiff’s Claim Two was “brought by a prisoner” within the
meaning of § 1997e(e) at the time that Plaintiff filed the
original complaint because “‘an action is ‘brought’ for purposes
of § 1997e(a) when the complaint is tendered to the district
clerk.’”
Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir.
2006)(quoting Ford v. Johnson, 362 F.3d 395, 400 (7th Cir.
2004)).
Although Vaden addressed the PLRA exhaustion requirement
in § 1997e(a), Plaintiff, nevertheless, contends the same rule
should apply to the identical operative statutory language in
§ 1997e(e).
Implicit in Cano and Rhodes is the principle that
the “action” to which § 1997e applies is claim-specific, and,
therefore, the “action” was “brought” when the Plaintiff filed
the complaint that first raised that claim.
In this case,
however, Plaintiff brought Claim Two in his original Complaint
(#1-2) filed in the Multnomah County Circuit Court on May 5,
2014, while Plaintiff was indisputably a prisoner.
Thus, the
Court agrees with Defendant that Cano and Rhodes are
distinguishable from this case because, unlike the plaintiffs in
those cases, Plaintiff did not bring any new claims in his Second
31- OPINION AND ORDER
Amended Complaint.
Accordingly, the Court concludes Plaintiff
“brought” Claim Two for purposes of § 1997e on May 5, 2014, when
he filed his Complaint in Multnomah County Circuit Court and
while he was still a “prisoner” within the meaning of the PLRA.
b.
Whether Plaintiff’s Claim Two is a “Federal
civil action” within the meaning of
§ 1997e(e)
Plaintiff contends the physical-injury requirement
of § 1997e(e) does not apply to Claim Two because he originally
brought Claim Two in state court, and, therefore, Claim Two was
not a “Federal civil action” within the meaning of § 1997e(e)
when it was first brought.
Plaintiff asserts the differing
language between the exhaustion requirement of § 1997e(a) and the
physical-injury requirement of § 1997e(e) indicates Congress only
intended the latter to apply to lawsuits originally brought by a
prisoner in federal court.
1997e(a) provides:
The exhaustion requirement of §
“No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner . . . until such administrative
remedies as are available are exhausted.”
On the other hand, § 1997e(e) provides:
42 U.S.C. § 1997e(a).
“No Federal civil action
may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.”
32- OPINION AND ORDER
Plaintiff contends § 1997e(a) by its plain terms applies to all
actions brought under federal law but Congress’s use of different
language in § 1997e(e) (i.e., “[n]o Federal civil action . . .”)
indicates Congress intended that requirement to apply only to
claims brought by the prisoner in federal court.
According to Defendant, the “[n]o Federal civil
action” language in § 1997e(e) “means all federal claims,
including constitutional claims.”
Napier v. Preslicka, 314 F.3d
528, 532 (11th Cir. 2002)(citing Harris v. Garner, 216 F.3d 970,
984-85 (11th Cir. 2000)(en banc)).
See also Jacobs v.
Pennsylvania Dep’t of Corrections, No. 04-1366, 2011 WL 2295095,
at *23-*24 (Jun. 7, 2011)(collecting cases and holding “the plain
meaning of the term ‘Federal civil action’ to mean an action in
which civil claims over which the federal court has jurisdiction
are brought, i.e., all claims over which the court has original
jurisdiction under 28 U.S.C. § 1331, and supplemental
jurisdiction under 28 U.S.C.
§ 1367.”).
The cases on which Defendant relies, however, do
not address the circumstances at issue here.
The Napier and
Harris courts merely addressed whether § 1997e(e) applied to
constitutional as well as statutory claims.
532; Harris, 216 F.3d at 984-85.
Napier, 314 F.3d at
Accordingly, those cases are
not by themselves persuasive as to the issue in this case; i.e.,
whether a prisoner plaintiff who brought a federal statutory
33- OPINION AND ORDER
cause of action in state court has brought a “Federal civil
action” within the meaning of § 1997e(e).
In Jacobs the court
addressed a situation in which a prisoner plaintiff brought a
state-law cause of action in federal court, and the court
concluded § 1997e(e) applied to the plaintiff’s state-law claim.
2011 WL 2295095, at *23-*24.
Accordingly, Jacobs is not directly
applicable to the issue before this Court.
On the other hand, Plaintiff’s reasoning in
comparing the language of § 1997e(a) with § 1997e(e), although
plausible on its face, is also unpersuasive.
Contrary to
Plaintiff’s contention that § 1997e(e) necessarily means
something different from § 1997e(a), the “Federal civil action”
language in § 1997e(e) can be read as shorthand for the
following language in § 1997e(a):
“No action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner . . . .”
The
statutory language, therefore, is ambiguous on its face.
When a statute is ambiguous, the court looks to
legislative history and the statutory purpose to determine the
meaning of the statute.
Fang Lin Ai v. United States, 809 F.3d
503, 512-13 (9th Cir. 2015).
Citing the Eleventh Circuit’s
decision in Harris, the Ninth Circuit has noted the physicalinjury requirement is “intended to curtail frivolous prisoner
litigation.”
See Oliver v. Keller, 289 F.3d 623, 628 (9th Cir.
34- OPINION AND ORDER
2002)(citing Harris, 216 F.3d at 977).
The Ninth Circuit in
Oliver, however, also cited the Second Circuit’s decision in
Dawes v. Walker for the proposition that “‘Congress intended
§ 1997e(e) to reduce the burgeoning volume of prisoner litigation
in the federal courts.’”
Oliver, 289 F.3d at 627-28 (quoting
Dawes v. Walker, 239 F.3d 489, 495 (2d Cir. 2001))(emphasis
added).
Thus, although the Oliver court found Congress intended
to curtail prisoner litigation that it deemed frivolous (i.e.,
actions brought by prisoners for emotional-distress damages
without any attendant physical injury), the Ninth Circuit did not
directly address the issue raised here:
Whether Congress
intended to bar prisoner litigation that it deemed frivolous or
whether it only intended to keep such lawsuits out of federal
courts and to leave it to the state courts to adjudicate such
claims.
In any event, the Court concludes if § 1997e(e)
permitted prisoners to bring federal-law claims for emotionaldistress damages in state court without any showing of physical
injury, the legislative purpose would be frustrated because, as
in this case, any such claim ultimately could be removed to
federal court under 28 U.S.C. § 1331.
There is not any
indication in the statute or the legislative history that
Congress intended to close the front door to federal court for
such claims while leaving the back door open.
35- OPINION AND ORDER
Accordingly, on this record the Court concludes
Plaintiff’s Claim Two is a “Federal civil action” to which the
physical-injury requirement applies.
c.
Whether Plaintiff has established a genuine
dispute of material fact exists as to
physical injury
In any event, Plaintiff contends he has
sufficiently established a a genuine dispute of fact exists as to
physical injury and, therefore, the Court should deny this part
of Defendant’s Motion.
To establish a physical injury sufficient to
permit an action for emotional-distress damages under § 1997e(e),
the plaintiff must prove a physical injury that is more than “de
minimis,” but it “‘need not be significant.’”
Oliver, 289 F.3d
at 626-27 (quoting Siglar v. Hightower, 112 F.3d 191, 193 (5th
Cir. 1997)).
See also Pierce v. Cnty. of Orange, 526 F.3d 1190,
1124 (9th Cir. 2008).
The Ninth Circuit has held medical
conditions such as bed sores and bladder infections are
sufficient to pass the de minimis physical-injury requirement.
Pierce, 52d F.3d at 1224.
As noted, in his Second Amended Complaint
Plaintiff omitted any allegation that he suffered a physical
injury as a result of Defendant’s alleged failure to accommodate
Plaintiff’s deafness.
Plaintiff, nonetheless, points out that he
testified in his deposition that he suffered two injuries related
36- OPINION AND ORDER
to communication difficulties arising from the lack of
accommodations for his deafness:
Plaintiff testified he was
punched in the stomach and in the back by another inmate in 2003
because he refused to pay other inmates $20 per week in exchange
for having closed-captioning on the television.
Plaintiff also
testified he suffered a broken tooth in an altercation with
another inmate in either 2004 or 2005 that was caused by the
other inmate being angry that he did not get a job serving as
Plaintiff’s noninmate interpreter.
According to Plaintiff, these
incidents constitute a “prior showing of physical injury.”
42 U.S.C. § 1997e(e).
See
Although Plaintiff acknowledges he does
not seek any damages for these incidents, he contends, without
citation to authority, that the physical injury does not have to
be an actionable part of his claim in order to satisfy the
physical-injury requirement of § 1997e(e).
The Court disagrees.
The physical injury that
Plaintiff relies on to satisfy the requirement of § 1997e(e) must
be “caused by” the unlawful actions that are the basis for the
recovery that Plaintiff seeks.
See Medcalf v. Sonnen, 216 F.
App’x 665, 666 (9th Cir. 2007)(“Medcalf points to no evidence of
any physical injury caused by the acts he claims violated his
constitutionally protected rights.”).
See also Vega v. Nunez,
No. LA CV 13-09530-VBF-E, 2014 WL 1873265, at *8 (C.D. Cal.
May 8, 2014)(“As currently written, however, the complaint does
37- OPINION AND ORDER
not allege that plaintiff suffered any physical injury as a
result of the cell transfer.”).
As noted, Plaintiff can only
seek recovery for ADA violations that took place within the twoyear statute of limitations.
The only physical injuries alleged,
however, took place between 2003 and 2005; i.e., long before the
relevant statutory period.
Accordingly, Plaintiff’s alleged
physical injuries were not “caused by” any actionable ADA
violation, and, therefore, Plaintiff has not made any “prior
showing of physical injury” pursuant to § 1997e(e).
Accordingly, on this record the Court concludes
§ 1997e(e) precludes Plaintiff’s claim for emotional-distress
damages as to Claim Two.
The Court, however, does not dismiss
Claim Two in its entirety because, as with Claim One, Plaintiff
also seeks economic damages as a result of his alleged lostearnings capacity and lower compensation for work performed in
prison as a result of Defendant’s alleged ADA violations.
2.
Exhaustion of Administrative Remedies
Section 1997e(a) provides:
“No action shall be brought
with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”
U.S.C. § 1997e(a).
Defendant argues Plaintiff’s Claim Two must be
38- OPINION AND ORDER
42
dismissed because Plaintiff failed to exhaust his administrative
remedies as required by § 1997e(a).
Plaintiff, on the other
hand, contends Claim Two is not subject to the exhaustion
requirement of § 1997e(a) because it was not “brought . . . by a
prisoner” in light of the fact that Plaintiff was released from
Defendant’s custody before filing his Second Amended Complaint
and, in any event, a genuine dispute of material fact exists as
to whether Plaintiff met his exhaustion obligations.
The Court rejects Plaintiff’s contention that Claim Two
was not “brought . . . by a prisoner” for the same reason that
Plaintiff’s argument concerning identical statutory language
failed under § 1997e(e): i.e., that Plaintiff was a prisoner at
the time he filed Claim Two.
“Prisoners must . . . exhaust all ‘available’ remedies,
not just those that meet federal standards.”
548 U.S. 81, 85 (2006).
Woodford v. Ngo,
“To be available, a remedy must be
available ‘as a practical matter’; it must be ‘capable of use; at
hand.’”
Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014).
“[F]ailure to exhaust administrative remedies is an
affirmative defense that the defendant must plead and prove in a
PLRA case.”
Albino, 747 F.3d at 1175.
“[D]efendant’s burden is
to prove that there was an available administrative remedy, and
that the prisoner did not exhaust that available remedy.”
1172.
Id. at
After the defendant has carried that burden, “the burden
39- OPINION AND ORDER
shifts to the prisoner to come forward with evidence showing that
there is something in his particular case that made the existing
and generally available administrative remedies effectively
unavailable to him.”
Id.
“Section 1997e(a) requires an inmate not only to pursue
every available step of the prison grievance process but also to
adhere to the ‘critical procedural rules’ of that process.”
Reyes v. Smith, No. 13-17119, 2016 WL 142601, at *2 (9th Cir.
Jan. 12, 2016)(quoting Woodford, 548 U.S. at 90).
“‘[I]t is the
prison’s requirements, and not the PLRA, that define the
boundaries of proper exhaustion.’”
Reyes, 2016 WL 142601, at *2
(quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).
“Exhaustion
gives an agency ‘an opportunity to correct its own mistakes with
respect to the programs it administers before it is haled into
federal court,’ and it discourages ‘disregard of [the agency's]
procedures.’”
Id. at 89 (quoting McCarthy v. Madigan, 503 U.S.
140, 145 (1992)).
Plaintiff’s IDC dated June 3, 2013, is the only IDC
that directly addresses the issues presented in this action and,
therefore, Plaintiff’s only relevant attempt at exhaustion.
As
noted, although the IDC was dated June 3, 2013, and Plaintiff
listed the incident date as May 9, 2013, Defendant did not
indicate the IDC had been received until January 29, 2014, after
Plaintiff sent his January 28, 2014, kyte to Defendant inquiring
40- OPINION AND ORDER
whether his June 3, 2013, IDC had been processed.
In any event,
the parties dispute whether Plaintiff filed the IDC in June 2013
and Defendant failed to respond to it or whether Plaintiff failed
to submit the IDC until January 2014.
In any event, on
February 24, 2014, Defendant rejected Plaintiff’s IDC on the
ground that it was received more than 30 days after the date of
the incident.
As noted, Plaintiff did not appeal the denial of
his IDC, but instead he filed a tort-claim notice on March 21,
2014, and brought this action on May 5, 2014.
“A discrimination complaint received more than 30 days
after the last date of the incident giving rise to the complaint
will be rejected as untimely.”
Or. Admin. R. 291-006-0031(2)(b).
“A discrimination complaint that has been returned to the inmate
by the discrimination complaint coordinator for procedural
reasons cannot be reviewed.
An inmate may elect to resubmit the
discrimination complaint if the procedural errors can be
corrected.”
Or. Admin. R. 291-006-0035(9).
When Defendant rejected Plaintiff’s June 3, 2013,
IDC as untimely, Plaintiff did not have any additional levels of
review to pursue as to that IDC because, as noted, under Oregon
Administrative Rule 291-006-0035(9) an IDC returned to the inmate
“for procedural reasons cannot be reviewed.”
If Plaintiff timely
filed his June 3, 2013, IDC but Defendant failed to timely
address it as a result of administrative error, therefore,
41- OPINION AND ORDER
Plaintiff would have exhausted his administrative remedies as to
the June 3, 2013, IDC because he would have complied with every
procedural requirement applicable to him and sought every avenue
of relief available with regard to that IDC.
The exhaustion
doctrine does not require a prisoner to start the administrative
process over again as a result of the defendant’s administrative
error.
If, on the other hand, Plaintiff failed to timely
file his IDC and Defendant correctly rejected it as untimely,3
Plaintiff would not have “adhere[d] to the ‘critical procedural
rules’” of the IDC process.
See Reyes, 2016 WL 142601, at *2
(quoting Woodford, 548 U.S. at 90).
Under Oregon Administrative
Rule 291-006-0035(9) Plaintiff may have been able to correct this
error if he had filed a new IDC alleging the same ADA violations,
but he failed to do so.
On this record, however, Defendant has not
established whether the delay in considering Plaintiff’s June 3,
2013, IDC was caused by an administrative error on the part of
Defendant or Plaintiff’s failure to submit the IDC timely.
The
Court, therefore, concludes a genuine dispute of material fact
3
Plaintiff contends Defendant wrongly rejected the IDC as
untimely even if it was not filed until January 2014 because the
description of the reason for the complaint made it clear that
the IDC addressed ongoing issues. This argument is unpersuasive,
however, in light of the fact that Plaintiff listed the date and
time of the “incident” as May 9, 2013.
42- OPINION AND ORDER
exists as to whether Plaintiff exhausted his administrative
remedies as to Claim Two.
In summary, the Court concludes Plaintiff’s claim for
emotional-distress damages in Claim Two is barred by § 1997e(e).
Accordingly, the Court grants Defendant’s Motion as to
Plaintiff’s Claim Two on that basis.
The Court, however,
concludes a genuine dispute of material fact exists as to whether
Plaintiff exhausted his administrative remedies and, therefore,
denies Defendant’s Motion as to the remaining portion of
Plaintiff’s Claim Two in which Plaintiff seeks economic damages.
II.
Plaintiff’s Motion (#72) for Partial Summary Judgment
Plaintiff moves for partial summary judgment as to
Defendant’s liability on Claims One and Two (but not as to
damages) on the basis that there is not any genuine dispute of
material fact as to whether Defendant sufficiently investigated
and accommodated Plaintiff’s deafness.
Plaintiff contends the analyses on Claims One and Two are
identical because Oregon Revised Statute § 659A.142 “shall be
construed to the extent possible in a manner that is consistent
with any similar provisions of the federal Americans with
Disabilities Act of 1990.”
Or. Rev. Stat. § 659A.139(1).
See
also Quesnoy, 2011 WL 5439103, at *5-*7 (analyzing an ADA Title
II claim together with a claim under § 659A.142).
“Pursuant to Title II of the ADA, a ‘qualified individual
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with a disability’ cannot, ‘by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.’”
F.3d at 1214 (quoting 42 U.S.C. § 12132).
Pierce, 526
“Generally, public
entities must ‘make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to
avoid discrimination on the basis of disability, unless the
public entity can demonstrate that making the modifications would
fundamentally alter the nature of the service, program, or
activity.’”
Pierce, 526 F.3d at 1215 (quoting 28 C.F.R.
§ 35.130(b)(7)).
Whether an accommodation is “reasonable (or
even required) is necessarily a fact-specific inquiry, requiring
‘analysis of the disabled individual's circumstances and the
accommodations that might allow him to meet the program's
standards.’”
Castle v. Eurofresh, Inc., 731 F.3d 901, 910 (9th
Cir. 2013)(quoting Wong v. Regents of Univ. of Cal., 192 F.3d
807, 818 (9th Cir. 1999)).
See also Pierce, 526 F.3d at 1217.
Plaintiff’s contentions fall into three general categories:
(1)
Defendant failed to undertake any investigation to
determine how to provide Plaintiff with equal
access to services.
See Duvall v. Cnty. of
Kitsap, 260 F.3d 1124, 1136 (9th Cir. 2001)(“[T]he
ADA imposes an obligation to investigate whether a
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requested accommodation is reasonable.”).
(2)
Defendant failed to accommodate Plaintiff’s
disability when it failed to provide Plaintiff
with a qualified American Sign Language (ASL)
interpreter during intake and orientation; during
medical, dental, and mental-health examinations;
during religious services; during classes, jobtraining opportunities and other prison programs;
during disciplinary proceedings; and during
counselor meetings and assessments.
(3)
Defendant’s use of unqualified inmate interpreters
for many of the services provided to Plaintiff was
insufficient as a matter of law.
Accordingly, Plaintiff contends he is entitled to summary
judgment as to Defendant’s liability on both Claim One and Claim
Two.
Defendant, on the other hand, contends Plaintiff is not
entitled to summary judgment because genuine disputes of material
fact exist as to the extent of Plaintiff’s hearing disability
and, therefore, as to whether the accommodations were sufficient.
In addition, Defendant asserts Plaintiff fails to identify
specific instances of insufficient accommodation with respect to
many of Plaintiff’s claims.
As to Plaintiff’s claim regarding Defendant’s investigation
45- OPINION AND ORDER
of Plaintiff’s hearing disability, the Court agrees genuine
disputes of material fact exist as to whether Defendant’s
investigation was adequate.
For example, Debbie Allen, a
counselor at Santiam Correctional Institution where Plaintiff was
housed from May 2012 to February 2014, testified part of her job
was to determine the communication needs of inmates based on a
review of the inmate’s file, her interactions with the inmate,
and her experience assessing an inmate’s ability to communicate.
Whether this investigation was sufficient to gauge the extent of
Plaintiff’s hearing disability and the necessity of particular
accommodations is a determination of fact that this Court cannot
make on summary judgment.
Moreover, Defendant is also correct that on this record
there remain genuine disputes of material fact regarding the
extent of Plaintiff’s hearing impairment.
Although Plaintiff has
produced evidence (including expert opinion) that alternative
forms of accommodation such as lipreading, spoken language, and
writing are insufficient to adequately communicate with
Plaintiff, Defendant presents evidence from which a rational jury
could conclude such alternative forms of communication were
sufficient for Plaintiff in practice including evidence that
Plaintiff communicates with his family through some of these
alternative forms because his family is unable to communicate
through ASL.
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The Court, therefore, concludes Plaintiff has not
established Defendant’s accommodations were unreasonable.
On this record, therefore, the Court denies Plaintiff’s
Motion on the ground that genuine disputes of material fact exist
that preclude summary judgment in favor of Plaintiff.
CONCLUSION
For these reasons, the Court GRANTS in part and DENIES in
part Defendant’s Motion (#49) for Summary Judgment and
Defendant’s Second Motion (#64) for Partial Summary Judgment as
follows:
1.
The Court GRANTS Defendant’s Motion (#49) as to
Plaintiff’s claims for injunctive relief and DISMISSES those
claims with prejudice;
2.
The Court GRANTS Defendant’s Second Motion (#64) as to
the statute of limitations on Plaintiff’s Claim One and limits
recovery on Plaintiff’s Claim One to those instances of
disability discrimination that occurred
on or after September
23, 2013;
3.
The Court GRANTS in part and DENIES in part Defendant’s
Motion (#64) as to the statute of limitations on Plaintiff’s
Claim Two and limits recovery on Plaintiff’s Claim Two to those
instances of alleged disability discrimination that occurred on
or after May 5, 2012;
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4.
The Court DENIES Defendant’s Motion (#49) as to
Plaintiff’s claim for noneconomic damages in Claim One; and
5.
The Court GRANTS in part and DENIES in part Defendant’s
Motion (#49) as to the limitations on Claim Two pursuant to the
PLRA, 42 U.S.C. § 1997e, and DISMISSES with prejudice Plaintiff’s
Claim Two to the extent he seeks emotional-distress damages.
The Court also DENIES Plaintiff’s Motion (#72) for Partial
Summary Judgment in its entirety.
The Court directs the parties to confer and to submit no
later than February 16, 2016, an updated, jointly proposed casemanagement schedule for the Court’s consideration in which the
parties address all further motion practice and proceedings
needed before the filing of a final Pretrial Order and the
scheduling of a firm jury-trial date, including any additional
briefing regarding the applicability of Oregon Revised Statute
§ 30.650.
IT IS SO ORDERED.
DATED this 4th day of February, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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