VanValkenburg v. Oregon Department of Corrections
Filing
26
Opinion and Order: The Court DENIES Defendant's Partial Motion 3 to Dismiss Plaintiff's Complaint. Signed on 10/30/2014 by Judge Anna J. Brown. See attached 24 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAVID VANVALKENBURG,
3:14-CV-00916-BR
Plaintiff,
OPINION AND ORDER
v.
OREGON DEPARTMENT OF
CORRECTIONS,
Defendant.
MATTHEW C. ELLIS
621 S.W. Morrison St., Ste. 1050
Portland, OR 97205
(503) 226-0072
SHENOA L. PAYNE
Haglund Kelley LLP
200 S.W. Market St., Ste. 1777
Portland, OR 97201
(503) 225-0777
Attorneys for Plaintiffs
1 - OPINION AND ORDER
ELLEN F. ROSENBLUM
Attorney General
HEATHER J. VANMETER
SHANNON M. VINCENT
Assistant Attorneys General
Oregon Department of Justice
1162 Court Street N.E.
Salem, OR 97301-4096
(503) 947-4700
Attorneys for Defendant
BROWN, Judge.
This matter comes before the Court on Defendant Oregon
Department of Corrections’ Partial Motion (#3) to Dismiss
Plaintiff David VanValkenburg’s Complaint.
The Court heard oral
argument on September 15, 2014, and took the matter under
advisement.
For the reasons that follow, the Court DENIES Defendant’s
Partial Motion to Dismiss.
FACTUAL BACKGROUND
The following facts are taken from Plaintiff’s Complaint:
Plaintiff is deaf and communicates primarily through
American Sign Language (ASL), although he has some limited
communication skills through written notes.
Plaintiff has been incarcerated at correctional institutions
managed by Defendant since 2000:
Oregon State Penitentiary
(November through December 2000), Oregon State Correctional
2 - OPINION AND ORDER
Institution (December 2000 through July 2001), Snake River
Correctional Institution (July 2001 through May 2012), Santiam
Correctional Institution (May 2012 through January 2014), and
Columbia River Correctional Institution (January 2014 to the
present).
During his incarceration Plaintiff requested a qualified ASL
interpreter on numerous occasions.
Between his entry into the
Oregon State Penitentiary in November 2000 and his move to
Columbia River Correctional Institution in January 2014, however,
Defendant failed to provide Plaintiff with qualified interpreters
for communications during intake; orientation; processing;
counselor assessments; counseling sessions; medical examinations
and appointments; disciplinary proceedings; and education,
training, work, and religious programs offered at the various
institutions.
In addition, Defendant required Plaintiff to use
nonconfidential, untrained, and primarily unqualified inmates as
interpreters during Plaintiff’s incarceration at Snake River
Correctional Institution and Santiam Correctional Institution
between 2001 and 2014.
When no inmates who knew ASL were
available, Defendant required Plaintiff to teach inmates ASL so
that Plaintiff could communicate with Defendant.
Defendant paid
Plaintiff for this training between approximately 2011 and May
2012.
Beginning January 2014 during Plaintiff’s incarceration at
3 - OPINION AND ORDER
Columbia River Correctional Institution, Defendant inconsistently
provided Plaintiff with a qualified, non-inmate ASL interpreter,
but Defendant failed to provide Plaintiff with a qualified ASL
interpreter in pre-scheduled medical appointments in February or
March 2014.
PROCEDURAL BACKGROUND
On March 20, 2014, Plaintiff gave Defendant timely notice of
his tort claim.
On May 5, 2014, Plaintiff filed a Complaint in
Multnomah County Circuit Court alleging three claims for relief:
Disability Discrimination under Oregon Revised Statute
§ 659A.142 (First Claim); Disability Discrimination under the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12131–12165
(Second Claim); and Unjust Enrichment/Quantum Meruit (Third
Claim).
On June 6, 2014, Defendant removed the action to this
Court.
On June 13, 2014, Defendant filed a Partial Motion (#3) to
Dismiss Plaintiff’s claim for unjust enrichment/quantum meruit
(Third Claim), Plaintiff’s claim for federal disability
discrimination (Second Claim) to the extent that it arises from
conduct that occurred more than two years before Plaintiff filed
this lawsuit, and Plaintiff’s claim for state disability
discrimination to the extent that it involves allegations that
occurred before the 180-day tort-claim notice period.
4 - OPINION AND ORDER
In his Response (#8) to Defendant’s Motion Plaintiff
dismisses the unjust enrichment/quantum meruit claim without
prejudice.
Plaintiff argues, however, that his remaining claims
are not time-barred.
On July 14, 2014, Defendant filed a Reply
(#13).
The Court heard oral argument on September 15, 2014.
The
Court permitted the parties to file no later than September 19,
2014, supplemental authorities of cases in which Oregon appellate
courts address the issue whether the Oregon continuing-tort
doctrine permits a tort claimant to recover for acts that
occurred before the period protected by the tort-claim notice.
The Court took Defendant’s Motion under advisement on
September 15, 2014.
Plaintiff filed Supplemental Authorities (#16) on
September 16, 2014, and Defendant filed Supplemental Authorities
(#18) on September 19, 2014.
On October 6, 2014, Plaintiff filed an Amended Complaint
(#19).
STANDARDS
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible
on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows
the court to draw the reasonable inference that
the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to
5 - OPINION AND ORDER
a probability requirement, but it asks for more
than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts
that are merely consistent with a defendant's
liability, it stops short of the line between
possibility and plausibility of entitlement to
relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations and
quotation marks omitted).
See also Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007).
The court must accept as
true the allegations in the complaint and construe them in favor
of the plaintiff.
Din v. Kerry, 718 F.3d 856, 859 (9th Cir.
2013).
The pleading standard under Federal Rule of Civil Procedure
8 “does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.”
U.S. at 555).
Iqbal, 556 U.S. at 678 (quoting Twombly, 550
See also Fed. R. Civ. P. 8(a)(2).
“A pleading
that offers ‘labels and conclusions’ or ‘a formulaic recitation
of the elements of a cause of action will not do.’”
Twombly, 550 U.S. at 555).
Id. (quoting
A complaint also does not suffice “if
it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
DISCUSSION
As noted, Defendant moves to dismiss Plaintiff’s federal
disability-discrimination claim (Second Claim) to the extent that
6 - OPINION AND ORDER
it arises from conduct that occurred more than two years before
Plaintiff filed this lawsuit and to dismiss Plaintiff’s state
disability-discrimination claim (Third Claim) to the extent that
it involves allegations that occurred before the 180-day tortclaim notice period.
I.
Plaintiff’s Federal ADA Disability-Discrimination Claim
Defendant moves to dismiss Plaintiff’s federal disability-
discrimination claim to the extent that it arises out of conduct
that occurred before May 5, 2012, which is two years before the
date that Plaintiff filed his Complaint, on the ground that the
two-year statute of limitations had expired on those acts.
Defendant also contends the continuing-violations doctrine does
not apply here because Plaintiff’s claim does not derive from
employment law and is based on a series of discrete acts.
Plaintiff, in turn, asserts his claim is based on a pattern
or practice of discrimination by Defendant rather than a series
of discrete, individually actionable acts; he brought this action
while Defendant's conduct was ongoing, and, therefore, his claim
properly includes all of Defendant’s acts; and, accordingly, the
continuing-violations doctrine applies under these circumstances.
Plaintiff also asserts Defendant's discriminatory conduct
resulted in a hostile environment.
7 - OPINION AND ORDER
A.
The Law
1.
Statute of Limitations
Because the ADA does not contain a specific statute of
limitations, federal courts apply the statute of limitations of
the most analogous state law.
See Pickern v. Holiday Quality
Foods Inc., 293 F.3d 1133, 1137 n.2 (9th Cir. 2002)(applying
California’s one-year personal-injury limit to ADA claim).
Here
the parties do not dispute that federal courts in Oregon apply
Oregon Revised Statute § 12.110(1), the two-year personal-injury
statute of limitations, to ADA claims outside of employment law.
See T.L. ex rel. Lowry v. Sherwood Charter Sch., No. 13-CV-01562HZ, 2014 WL 897123, at *9 (D. Or. Mar. 6, 2014).
See also
Thunderbird, 2011 WL 2971798, at *3 (“This court has applied the
two-year personal injury statute of limitations to ADA
[claims.]”).
Although the limitations period is adopted from state
law, the claim accrues according to federal law.
Ervine v.
Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 869 (9th
Cir. 2014)(discussing Rehabilitation Act claim).
“A federal
claim accrues when the plaintiff knows or has reason to know of
the injury that is the basis of the action.”
Pouncil v. Tilton,
704 F.3d 568, 574 (9th Cir. 2012)(citing Bagley v. CMC Real
Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991)).
8 - OPINION AND ORDER
2.
Continuing-Violations Doctrine
Discrete discriminatory acts are only actionable when
such acts occur within the limitations period “even when they are
related to acts alleged in timely filed charges.”
Nat’l R.R.
Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
“The
continuing-violations doctrine extends the accrual of a claim if
a continuing system of discrimination violates an individual’s
right up to a point in time that falls within the applicable
limitations period.”
Douglas v. Cal. Dep’t of Youth Auth., 271
F.3d 812, 822 (9th Cir. 2001)(emphasis added)(internal quotation
marks omitted).
A plaintiff establishes a systemic, continuing violation by
demonstrating a policy or practice of discrimination.
Freeman v.
Oakland Unified Sch. Dist., 291 F.3d 632, 638 (9th Cir. 2002).
The plaintiff must show the defendant maintained the
discriminatory system both before and during the limitations
period.
Mansourian v. Regents of Univ. of Cal., 602 F.3d 957,
974 (9th Cir. 2010)(citing Douglas, 271 F.3d at 822).
See also
Gutowsky v. Cnty. of Placer, 108 F.3d 256, 259 (9th Cir. 1997).
“The doctrine applies where there is no single incident that can
fairly or realistically be identified as the cause of significant
harm.”
Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir.
2002)(internal quotation marks omitted).
Hostile environment claims by “[t]heir very nature involve[]
9 - OPINION AND ORDER
repeated conduct.”
Morgan, 536 U.S. at 115 (citation omitted).
“Provided that an act contributing to the claim occurs within the
filing period, the entire time period of the hostile environment
may be considered by a court for the purposes of determining
liability.”
B.
Id. at 117.
Analysis
Defendant argues the continuing-violations doctrine does not
apply here.
Defendant first contends courts have not found the
continuing-violations doctrine applicable to ADA claims other
than in the employment context.
Defendant argues in the
alternative that even if the continuing-violations doctrine
applied to ADA claims outside of employment law, it would not
apply here.
Defendant relies primarily on Thunderbird v. Oregon
State Department of Corrections, No. 08-1404-PK, 2011 WL 2971798
(D. Or. June 28, 2011), and Atwood v. Oregon Department of
Transportation, No. CV-06-1726-ST, 2008 WL 803020 (D. Or.
Mar. 20, 2008), to support its arguments.
1.
Thunderbird and Atwood are distinguishable from
this matter.
In Thunderbird an inmate alleged claims against ODOC
and various state prisons and prison officials under the
Rehabilitation Act of 1973, Title II of the ADA, and 42 U.S.C.
§ 1983.
2011 WL 2971798, at *1.
The claims were based on
specific allegations of numerous discriminatory discrete acts by
10 - OPINION AND ORDER
the defendants.
Id.
For example, the plaintiff alleged on
September 11, 2000, two officers confiscated and destroyed a pair
of his prosthetic boots; on November 8, 2003, an officer
confiscated his wheelchair cushion, a medically-necessary device;
and on August 18, 2008, defendants denied him insulin.
*9-*10.
Id., at
The plaintiff also alleged a prison doctor
inappropriately prescribed a blood-thinning medication that
caused the plaintiff to have a severe reaction and then placed
the plaintiff in a non-ADA compliant cell without handrails or an
accessible toilet.
Id., at *9.
In response to the defendants’ motion to dismiss the
claims based on acts that did not occur within the statute-oflimitations period, the plaintiff argued the defendant’s conduct
constituted longstanding, continuing violations based on
discriminatory policies, and, therefore, the continuingviolations doctrine applied.
Id., at *4.
The court noted “[t]he
continuing-violations doctrine involves repeated instances or
continuing acts of the same nature, as for instance, repeated
acts of sexual harassment or repeated discriminatory employment
practices.”
Id. (internal quotations marks omitted).
The court,
however, found the plaintiff actually alleged a series of
discrete acts:
“While noting that these allegedly illegal
policies have been in place for a long time, Thunderbird goes on
to allege numerous specific instances where his rights were
11 - OPINION AND ORDER
violated as [a] result of these policies.”
Id.
Thus, the court
did not apply the continuing-violations doctrine because the acts
alleged were not of the same nature and because the plaintiff
alleged that each discrete incident caused him harm.
Id.
As a
result, the court found the plaintiff’s allegations stemming from
acts that occurred more than two years before the plaintiff filed
a complaint were time-barred.
Id.
In Atwood the plaintiff alleged religious
discrimination, disability discrimination, violations of the
Federal Family and Medical Leave Act and Oregon Family Leave Act,
workers’ compensation discrimination, and common-law tort claims.
Atwood, 2008 WL 803020, at *1.
The plaintiff specifically
alleged he requested reasonable accommodation, but the defendant
“failed to grant such accommodations or engage him in the
interactive process.”
Id., at *13.
Although the Atwood court
discussed the continuing-tort theory in the context of a statelaw claim, it specifically noted “the continuing-violation
doctrine under federal law appears perfectly congruous with the
lines drawn between continuous torts and separate discrete acts
under Oregon law.”
Id.
The court found a “refusal to grant
reasonable accommodations in response to a request would have
been a discrete actionable injury.”
Id.
Accordingly, the court
held claims based on those discrete acts that occurred outside of
the relevant notice period were time-barred.
12 - OPINION AND ORDER
Id.
The Court notes in Atwood and Thunderbird the
plaintiffs alleged the defendants committed a series of discrete
discriminatory acts and only argued the defendants’ acts
constituted continuing violations after the defendants filed
motions to dismiss the plaintiffs' claims on the basis that they
were time-barred.
See also Cherosky, 330 F.3d at 1246 (The court
held the plaintiffs’ claims time-barred because they were based
on discrete acts that occurred outside of the notice period.
Nevertheless, “[a]cknowledging that their claims would be
untimely under either [the discrete act or hostile work
environment test] because no discriminatory act occurred within
the limitations period, the [plaintiffs] attempt to cast their
allegations as a pattern-or-practice claim[.]”).
That is not the case here.
In his Complaint Plaintiff
alleged from the beginning that Defendant’s acts constituted a
pattern or practice of discrimination.
Although Plaintiff
alleges specific acts, they are all part of the same alleged
course of discriminatory conduct, and they are not disparate
acts, different in kind, that would support various theories of
recovery.
Thus, Plaintiff’s continuing-violation argument is
compatible with his Complaint and is not a mere re-casting of his
allegations of multiple discrete acts for the purpose of rescuing
his claim from Defendant’s Motion to Dismiss.
13 - OPINION AND ORDER
2.
The continuing-violations doctrine as applied to
ADA claims is not exclusive to employment law.
Although many of the ADA cases in which courts apply
the continuing-violations doctrine arise in the context of
employment law, the Court has not found nor have the parties
cited to any case that explicitly limits the doctrine to
employment law.
Although the court in Thunderbird ultimately
decided the continuing-violations doctrine did not apply to the
plaintiff’s ADA claims, the court did not explicitly base its
decision on the principle that the continuing-violations doctrine
applies only to employment cases.
In fact, the court’s reasoning
was based on the differing nature of the discrete acts that the
plaintiff alleged and the fact that the plaintiff alleged each
act caused him harm.
Indeed, if the plaintiff in Thunderbird had
alleged “repeated instances or continuing acts of the same
nature,” none of which could individually “be identified as the
cause of significant harm,” the court may have applied the
continuing-violations doctrine.
3.
Plaintiff alleges a pattern or practice of
disability-discrimination, and, therefore, the
continuing-violations doctrine applies to all of
Defendant’s acts contributing to that pattern or
practice, including those that occurred before May 5,
2012.
Defendant alternatively argues even if the continuingviolations doctrine applies to ADA claims arising outside of
employment law, it would not apply here.
14 - OPINION AND ORDER
Defendant asserts
Plaintiff’s claim is based on a series of alleged refusals to
accommodate; a refusal to accommodate is a discrete, individually
actionable act; and, therefore, the part of Plaintiff’s federal
claim of disability discrimination that is based on acts that
occurred before May 5, 2012 (i.e., two years before Plaintiff
filed his Complaint), is time-barred and must be dismissed.
a.
Plaintiff’s claim is based on a pattern or
practice of discrimination rather than a series of
discrete acts.
To state a pattern or practice claim a plaintiff
must allege widespread and routine discriminatory conduct rather
than merely sporadic discriminatory acts.
Cherosky v. Henderson,
330 F.3d 1243, 1247 (9th Cir. 2003)(citing Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 336 (1977)).
To meet
the pleading standard of Federal Rule of Civil Procedure 8, “a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.”
Iqbal, 556 U.S. at 678.
A pattern or practice allegation
“without any factual content to bolster it[] is just the sort of
conclusory allegation that the Iqbal Court deemed inadequate.”
Moss v. U.S. Secret Serv., 675 F.3d 1213, 1226, amended, 711 F.3d
941 (9th Cir. 2013), rev’d on other grounds sub nom, Wood v.
Moss, 134 S. Ct. 2056 (2014).
Plaintiff alleges Defendant is engaged in a
15 - OPINION AND ORDER
pattern or practice1 of discrimination against deaf inmates by
failing to provide qualified ASL interpreters or auxiliary aids
during nearly all communications between Defendant and deaf
inmates.
Although Plaintiff alleges specific acts by Defendant
(for example, denial of Plaintiff’s request for qualified
interpretive services for his medical examination at Oregon State
Penitentiary), these acts establish the factual context to
bolster Plaintiff’s pattern or practice claim and to satisfy the
required pleading standard of Federal Rule of Civil Procedure 8.
See Iqbal, 556 U.S. at 678.
See also Moss, 675 F.3d at 1226.
The crux of Plaintiff’s Complaint, however, is that Defendant’s
actions in general “constitute a pattern or practice of
discrimination that occurred on an ongoing and continuous basis
from 2000 to the present.”
First Am. Compl. at ¶ 85.
In addition, although the Atwood court held a
“refusal to grant reasonable accommodations in response to a
request would have been a discrete actionable injury,” the
plaintiff in Atwood did not allege a pattern or practice of
discrimination.
Here, however, Plaintiff alleges Defendant
refused numerous times to accommodate Plaintiff’s known
disability, and those refusals constituted part of Defendant’s
1
While pattern or practice claims typically arise in classaction suits, courts have permitted individual plaintiffs to
bring pattern or practice claims. See, e.g., Knox v. City of
Portland, 543 F. Supp. 2d 1238, 1246 (D. Or. Mar. 5, 2008).
16 - OPINION AND ORDER
pattern or practice of discrimination against Plaintiff.
Moreover, unlike in the complaint in Thunderbird,
all of the alleged acts that are part of Plaintiff’s pattern or
practice claim are “of the same nature.”
As noted, in
Thunderbird the court determined the plaintiff alleged multiple
discrete acts that were not “repeated instances or continuing
acts of the same nature, as for instance, repeated acts of sexual
harassment or repeated discriminatory employment practices.”
Id., at *4 (citation omitted).
Although the alleged
discriminatory acts in Thunderbird related to the plaintiff’s
disability, those acts varied in nature:
for example,
confiscating the plaintiff’s prosthetic boots and wheelchair
cushion, prescribing the wrong medication, placing the plaintiff
in a non-ADA compliant cell, denying the plaintiff insulin, etc.
Here the acts alleged by Plaintiff as part of Defendant’s pattern
or practice of discrimination are all of the same nature:
Plaintiff did not receive qualified ASL interpreters or auxiliary
aids as the result of Defendant’s pattern or practice of
discrimination.
b.
Plaintiff alleges Defendant’s pattern or
practice of disability discrimination rather than
any individual discrete acts caused Plaintiff
harm.
Plaintiff does not allege a single incident caused
him significant harm.
17 - OPINION AND ORDER
As noted, the continuing-violations
doctrine applies when “there is no single incident that can
fairly or realistically be identified as the cause of significant
harm.”
Flowers, 310 F.3d at 1126 (internal quotation marks
omitted)(continuing-violations doctrine does not apply to
defamation claim based on publication of allegedly defamatory
book).
See also Thunderbird, 2011 WL 2971798, at *4 (continuing-
violations doctrine does not apply to ADA claim based on numerous
discrete acts, varied in nature, each of which caused harm).
Like a hostile-environment claim, the “very nature” of a pattern
or practice claim “involves repeated conduct.”
U.S. at 115 (citation omitted).
1247.
See Morgan, 536
See also Cherosky, 330 F.3d at
“Such claims are based on the cumulative effect of
individual acts.”
Morgan, 536 U.S. at 115.
Although Plaintiff alleges some specific acts to
support his pattern or practice claim, Plaintiff states
Defendant’s continuing pattern or practice of discriminatory
conduct caused Plaintiff harm rather than any one specific act by
Defendant.
For example, in his Complaint Plaintiff states
Defendant’s alleged “practices have harmed [Plaintiff] on a
continuing and ongoing basis from the time of his intake at
[Oregon State Penitentiary] to the present.”
¶ 61.
First Am. Compl. at
Plaintiff also states he “is now suffering and will
continue to suffer irreparable injury from Defendant’s acts and
the pattern or practice of discrimination.”
18 - OPINION AND ORDER
Id., at ¶ 72.
In
other words, Plaintiff does not allege a specific injury derived
from a specific discrete act.
On this record the Court, therefore, concludes Plaintiff
alleges a systemic, continuing violation in the form of a pattern
or practice of discrimination on the basis of disability in
violation of 42 U.S.C. § 12132, and, therefore, that part of
Plaintiff’s federal disability claim that is based on Defendant’s
acts that occurred before May 5, 2012, is not time-barred.
Accordingly, the Court denies Defendant’s Partial Motion to
Dismiss Plaintiff’s federal ADA disability-discrimination claim
to the extent that it is based on Defendant’s acts that occurred
before May 5, 2012.
II.
State Disability-Discrimination Claim
Defendant moves to dismiss Plaintiff’s state disability-
discrimination claim to the extent that it is based on acts that
occurred outside of the 180-day tort-claim notice period.
The OTCA requires a claimant to file notice of a tort claim
against a public body within “180 days after the alleged loss or
injury” unless it is a wrongful-death claim.
§ 30.275(2).
Or. Rev. Stat.
See also Barns v. City of Eugene, 183 Or. App. 471,
474 (2002)(citing Or. Rev. Stat. § 30.275(1)).
Under Oregon law
“when a continuing-tort is involved, a notice of claim filed any
time during the continuance of the conduct or within 180 days
after its conclusion is necessarily timely.”
19 - OPINION AND ORDER
Holdner v. Columbia
Cnty., 51 Or. App. 605, 613 (1981).
Although the date that Plaintiff gave Defendant notice was
in dispute at the time of oral argument, Plaintiff has since
filed an Amended Complaint (#19) in which he alleges he gave
timely notice of his tort claim to Defendant on March 20, 2014.
Defendant does not now dispute that Plaintiff’s Notice complies
with the OTCA requirement.
Defendant, however, moves to dismiss
Plaintiff’s state disability-discrimination claim based on
Defendant’s conduct before September 21, 2013, which is 180 days
before March 20, 2014, when Plaintiff gave Defendant Notice of
his tort claim.
A.
Evidence of conduct that occurred outside of the notice
period is admissible to support the claim for which
Plaintiff gave timely notice.
It is undisputed that when the continuing-tort doctrine
applies, evidence of conduct that occurred outside of the notice
period is admissible to support those allegations that are
timely.
See, e.g., Griffin v. Tri-Met, 112 Or. App. 575, 582
(1992), aff’d in part and rev’d in part on other grounds at 318
Or. 500 (1994)(“The allegations should not have been stricken.
Accordingly, plaintiff was entitled to have the evidence
supporting the allegations admitted without limitation, not
solely for the purpose of proving discriminatory intent.”).
As noted, Defendant does not dispute Plaintiff’s Notice of
his state tort claim was timely.
20 - OPINION AND ORDER
Defendant, however, asserts a
tort claimant may not recover for any acts that occurred outside
of the notice period even if the continuing-tort doctrine2
applies.
In this case the Court need not address whether a tort
claimant may seek recovery for acts occurring outside of the OTCA
notice period because Plaintiff is seeking damages and equitable
relief based on Defendant’s alleged pattern or practice of
discrimination that continued during the notice period rather
than recovery for specific acts that occurred outside of the OTCA
notice period.
Thus, if the Court finds the continuing-tort
doctrine applies here, evidence of Defendant’s alleged acts
before September 21, 2013, is admissible to support Plaintiff’s
allegation that Defendant engaged in a pattern or practice of
discrimination that continued during the notice period.
B.
Oregon’s continuing-tort doctrine applies to
Plaintiff’s claim.
Although Oregon courts have not considered the continuingtort doctrine in pattern or practice claims, it has applied the
doctrine to claims for intentional infliction of emotional
distress (IIED), disability discrimination, and hostile work
environment.
See, e.g., Barrington ex rel. Barrington v.
Sandberg, 164 Or. App. 292, 298 (1999)(IIED); Griffin, 112 Or.
App. at 582 (disability discrimination); Reyna v. City of
2
Although the Oregon continuing-tort doctrine is similar to
the federal continuing-violation doctrine, courts have described
the doctrines using different language. See Atwood, 2008 WL
803020, at *13.
21 - OPINION AND ORDER
Portland, No. 02-980-JO, 2005 WL 708344, at *5 (D. Or. Mar. 28,
2005)(state hostile work environment).
Application of the
doctrine to a pattern or practice claim under the ADA is
consistent with the above cases because, like hostile work
environment and some IIED claims, the harm in a pattern or
practice claim is only actionable at the end of a series of
actions.
See Boardmaster Corp. v. Jackson Cnty., 224 Or. App.
533, 550 (2008).
The continuing-tort doctrine applies when “each incident of
a series [does] not by itself support a claim but the incidents
as a whole [are] a systematic pattern of conduct that led to a
specific injury.”
Barrington, 164 Or. App. at 298 (discussing
Griffin, 112 Or. App. at 581-82).
In other words, the
continuing-tort doctrine applies when “the harm complained of
reaches the level of actionability only at the end of the series
of actions.”
Boardmaster, 224 Or. App at 550 (citing Davis v.
Bostick, 282 Or. 667, 672 (1978)).
The conduct is less likely to
be a continuing tort if each incident has a beginning and end,
each incident is separated from the others by a period of
relative quiescence, and each incident is capable of producing
compensable harm.
282 Or. at 673).
Barrington, 164 Or. App. at 297 (citing Davis,
Thus, “at the heart of the continuing-tort idea
[in Oregon] is the concept that recovery is for the cumulative
effect of wrongful behavior, not for discrete elements of that
22 - OPINION AND ORDER
conduct.”
Davis, 282 Or. at 671-72.
As noted with regard to Plaintiff’s federal claim, Plaintiff
alleges Defendant is engaged in a pattern or practice of
disability discrimination against Plaintiff and other deaf
inmates.
Defendant, however, argues Plaintiff’s Complaint is
based on many discrete acts, and, therefore, Oregon’s continuingtort doctrine does not apply.
Here each incident that Plaintiff identifies does not by
itself constitute a pattern or practice of discrimination.
Plaintiff, however, alleges the incidents taken as a whole were
systemic throughout Plaintiff’s incarceration and contributed to
Plaintiff’s injury.
See Barrington, 164 Or. App at 298 (“This
case is similar to Griffin . . . in which each incident of a
series did not by itself support a claim but the incidents as a
whole were a systematic pattern of conduct that led to a specific
injury.”).
In addition, as noted regarding Plaintiff’s federal
claim, the harm that Plaintiff alleges stems from Defendant’s
pattern or practice of discrimination rather than from the
individual acts that constitute the pattern or practice.
Thus,
Plaintiff seeks to recover “for the cumulative effect of wrongful
behavior, not for discrete elements of that conduct.”
See Davis,
282 Or. at 671-72.
On this record the Court concludes the Oregon continuingtort doctrine applies to Plaintiff’s claim under Or. Rev. Stat.
23 - OPINION AND ORDER
§ 659A.142; evidence of Defendant’s alleged acts before
September 21, 2013, is admissible to support Plaintiff’s
allegations that Defendant engaged in a pattern or practice of
discrimination that continued during the notice period; and,
therefore, that part of Plaintiff’s state-law disabilitydiscrimination claim that is based on acts that occurred outside
of the 180-day tort-claim notice period (i.e., before September
21, 2013) is not time-barred.
Accordingly, the Court denies
Defendant’s Partial Motion to Dismiss Plaintiff’s state
disability-discrimination claim to the extent that it is based on
Defendant’s acts that occurred before September 21, 2013.
CONCLUSION
For these reasons, the Court DENIES Defendant’s Partial
Motion (#3) to Dismiss Plaintiff’s Complaint.
IT IS SO ORDERED.
DATED this 30th day October, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
24 - OPINION AND ORDER
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