Larry v. State of Oregon et al

Filing 56

OPINION and ORDER - The Individual Defendants' partial motion to dismiss 45 is DENIED. DATED this 7th day of August, 2017, by United States Magistrate Judge John V. Acosta. (copy mailed to plaintiff) (peg)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION

ROBERT J. LARRY,

Case No. 3:16-cv-1892-AC
Plaintiff,

OPINION AND ORDER

v.
STATE OF OREGON, by and through
OREGON DEPARTMENT OF HUMAN
SERVICES, by and through OREGON
VOCATIONAL REHABILITATION
SERVICES; TRINA LEE, Director of Oregon
Vocational Rehabilitation Services; ROBERT
COSTELLO, DONNA DUFF, TRACY
SCHAFFER, SARAH SANDRUDDIN,
MARK MASTHOFF, JOHN DOES 1-10, all
in their individual and official capacities; DR.
ROBINANN COGBURN, and DR. LUAHNA
UDE, Contractors of Oregon Vocational
Rehabilitation Services, in their professional
and individual capacities,
Defendants.
___________________________________
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ACOSTA, Magistrate Judge:
Introduction
Plaintiff Robert J. Larry (“Larry”), filed this action against various state agencies and
employees alleging claims for disability discrimination and failure to accommodate in violation of
Section 504 of Rehabilitation Act of 1973 (the “Act”), and common law claims for intentional
infliction of emotional distress (“IIED”) and vicarious liability. Currently before the court is the
defendants’ motion to dismiss the individual defendants, with the exception of Trina Lee, the
Director of the Oregon Department of Human Resources (“Lee”).
The court finds Larry has alleged a viable claim for damages against the individual
defendants in both their official and individual capacities based on a nucleus of facts common to
his federal and state claims. Accordingly, the individual defendants are properly identified as
defendants, they are not entitled to protection under the Eleventh Amendment, and this court has
supplement jurisdiction over the IIED claim asserted against them. The defendants’ partial motion
to dismiss is1 denied.
Background
In the First Amended Complaint filed on April 14, 2017 (the “Complaint”), Larry alleges he
is disabled due to Post Traumatic Stress Disorder and physical ailments affecting his neck, shoulder,
and lower back. (First Am. Compl., ECF No. 41 (“Compl.”), ¶ 20.) In January of 2013, Larry
sought assistance from defendant Oregon Vocational Rehabilitation Services (the “Agency”), an
agency of defendant Oregon Department of Human Services (the “Department”). (Compl. ¶ 6.)

1

The parties have consented to jurisdiction by magistrate judge in accordance with 28 U.S.C.
§ 636(c)(1).
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While Larry alleges his claims are based on “events occurring on September 26, 2014[,] and
ongoing,” he provides substantial background of his interactions with the Agency arguably relevant
to his claims. (Compl. at 1.)
After the first meeting, the Agency gathered medical records necessary to make a
determination on Larry’s eligibility for Agency programs. (Compl. ¶ 20.) When Larry requested a
copy of these records, Larry’s counselor “became defensive,” and, moving forward, refused to
answer simple questions about employments options available to Larry. (Compl. ¶¶ 21, 22.) At
Larry’s request, defendant Donna Duff, Agency Branch Manager (“Duff”), agreed to reassign Larry
to a new counselor, defendant Tracy Schaffer (“Schaffer”), in April, 2013. (Compl. ¶ 23.) Larry
alleges Schaffer was also reluctant to provide information on available employment options.
(Compl. ¶ 24.) As a result, Larry attended an Agency regional meeting in Portland in May 2013, and
eventually obtained details on the services available to Agency clients. (Compl. ¶ 27.) However,
Duff and Schaffer were upset Larry went behind their backs for the information and began retaliating
against him. (Compl. ¶ 27.)
While Larry thought he was working toward certification for self-employment as an adult
care home provider, Schaffer informed him he was required to abide by the Agency’s SelfEmployment Guidelines (“Guidelines”) and his work to date would not count toward certification.
(Compl. ¶ 29.) Schaffer provided Larry a copy of the Guidelines which, according to Larry, Duff
and Schaffer did not fully understand. (Compl. ¶¶ 29, 30.) In various communications to Duff and
Schaffer, Larry expressed concern, and provided proof, they were giving him the “run-a-rounds.”
(Compl. ¶ 30.) At a June 12, 2014 meeting, Schaffer told Larry she thought he was “lawyering up,”
and asked him to stop sending letters as she and Duff did not have time to read them. (Compl. ¶ 30.)
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When Schaffer informed Larry the Guidelines required a physical capacity test and psychological
evaluation, Larry expressed frustration he was just now being informed of these requirements.
(Compl. ¶ 31.) Larry thought Schaffer and Duff were trying to get him kicked out of the program
based on his complaints about them. (Compl. ¶ 31.) Larry took and passed the physical capacity test
and attended a psychological evaluation on July 25, 2014, with defendant Robinann Cogburn, Ph.D.
(“Dr. Cogburn”). (Compl. ¶ 30.)
Larry characterized the evaluation as “one of the worst experiences of his entire life” and
thought Dr. Cogburn made it apparent from the beginning that she “was there to fulfill an agenda,
other than her own; she made it very clear her only interest was for [the Agency].” (Compl. ¶ 32.)
Larry questioned Dr. Cogburn’s qualifications to interpret standardized testing of African-American
patients and felt she was uncomfortable discussing race. (Compl. ¶ 33.) When Larry complained
about Duff and Schaffer, Dr. Cogburn indicated she was not interested in hearing his complaints
about the Agency. (Compl. ¶ 34.) Similarly, when Larry offered the fact he had successfully sued
the City of Portland twice for false arrest, and tried to explain the torts that created problems for
police, she told him she did not need to know this information. (Compl. ¶ 36.) Dr. Cogburn
explained she had limited time for the evaluation and could not listen to everything he wanted to talk
about. (Compl. ¶ 35.)
Dr. Cogburn did question Larry about his criminal case in the Dalles, Oregon, and the effect
it had on him. (Compl. ¶ 36.) Larry summarized the difficulties he encountered in the two-year
ordeal, including attorneys who wanted him to accept pleas and a judge who tried to make him admit
to things he did not do while in open court. (Compl. ¶ 37.) Larry informed Dr. Cogburn he had been
acquitted of eight of the nine charges in a bench trial and that the ordeal was emotionally draining.
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(Compl. ¶¶ 30.) Dr. Cogburn questioned the truthfulness of Larry’s description but refused his offer
of copies of the transcript to confirm or refute his story. (Compl. ¶ 38.) When Dr. Cogburn
requested a break, Larry asked the receptionist at the Agency office for a printout of an electronic
copy of the Guidelines. (Compl. ¶ 39.) Larry provided the printout to Dr. Cogburn when she
returned as proof Schaffer had lied when she told him an electronic copy of the Guidelines did not
exist. (Compl. ¶ 40.)
During the subsequent lunch break, Larry decided he did not trust Dr. Cogburn and should
record the rest of the evaluation. (Compl. ¶ 42.) Dr. Cogburn agreed to reschedule the remainder
of the evaluation to allow both parties to record it. (Compl. ¶ 43.) However, Dr. Cogburn forgot to
bring her recorder to the next appointment and, rather than again reschedule, attempted to convince
Larry recordings could be a distraction and a violation of confidentiality. (Compl. ¶ 43.) Larry
agreed to complete the evaluation without recording it. (Compl. ¶ 44.) At the end of the testing,
Larry reported to Dr. Cogburn he was disappointed with her overall lack of concern for his wellbeing and his belief she manipulated the outcome of the tests, and pointed out misleading
information in her Informed Consent form. (Compl. ¶ 45.) Larry asserted his right to withdraw his
consent to share her findings with the Agency in the event he found errors in her report. (Compl.
¶ 45.) They eventually agreed Dr. Cogburn would present and explain her findings to him in a
recorded, confidential meeting and allow Larry to correct inaccuracies. (Compl. ¶ 46.) A second
recorded meeting would then be held with Larry, Dr. Cogburn, Schaffer, and Duff. (Compl. ¶ 46.)
Larry appeared for the first meeting scheduled on September 26, 2014, and was surprised to
find Schaffer and Duff in attendance with Dr. Cogburn. (Compl. ¶ 47.) During a lengthy discussion
about the change in plans, Schaffer at first denied any knowledge of the agreement between Dr.
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Cogburn and Larry to have an initial confidential meeting between the two of them. (Compl. ¶ 48.)
Upon prompting by Dr. Cogburn, Schaffer conceded she was aware of the previous arrangement,
leaving Larry feeling devastated and betrayed.

(Compl. ¶ 48.)

Despite Dr. Cogburn’s

encouragement to allow a discussion of his psychiatric evaluation with everyone present, Larry ended
the meeting, explaining he wanted a copy of the report and a chance to review it with Dr. Cogburn
privately. (Compl. ¶ 49.) Duff then inquired if Larry was interested in discussing employment
opportunities. (Compl. ¶ 50.) Larry declined the offer, stating he felt deceived and betrayed, and
ended the meeting. (Compl. ¶ 50.)
Schaffer informed Larry in mid-October 2014 she was closing his file based on his
representation “in our meeting of 9/24/14 that you do not want to pursue other employment at this
time.” (Compl. ¶ 51.) Larry denies making such statement, claiming Schaffer fabricated it to cover
her own improper activity. (Compl. ¶ 51.) In letters dated October 24, 2014, Larry objected to the
closing of his files, characterized Duff, Schaffer, and Dr. Cogburn’s activities as tortious, and
requested a written explanation of the justification for the closure of his file. (Compl. ¶ 52.)
After requesting several hearings, Larry eventually participated in a hearing with an Agency
Hearings Representative, who advised him “neither Schaffer nor Duff knew what they were doing
and that [Larry’s] file should never have been closed.” (Compl. ¶ 53.) Dr. Cogburn has consistently
refused to meet with Larry to confidentially discuss her findings. (Compl. ¶ 54.) Larry alleges he
has exhausted the Agency’s grievance process but was denied his right to a fair and impartial hearing
due to continued discriminatory policies. (Compl. ¶ 55.) He claims the defendants’ conduct caused
him to suffer “irreparable mental distress and psychological abuse.” (Compl. ¶ 56.) Larry seeks
economic damages in the amount of $2,000,000, compensatory and punitive damages in amounts
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to be determined at trial, and reasonable attorney fees, costs, and expenses. (Compl. at 19.)
Legal Standard
A well-pleaded complaint requires only “a short and plain statement of the claim showing
that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2) (2017). A federal claimant is not
required to detail all factual allegations; however, the complaint must provide “more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “Factual allegations must be
enough to raise a right to relief above the speculative level.” Id. While the court must assume that
all facts alleged in a complaint are true and view them in a light most favorable to the nonmoving
party, it need not accept as true any legal conclusion set forth in the complaint. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Additionally, a plaintiff must set forth a plausible claim for relief – a
possible claim for relief will not do. “In sum, for a complaint to survive a motion to dismiss, the
non-conclusory ‘factual content,’ and reasonable inferences from that content, must be plausibly
suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969
(9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678); Sheppard v. David Evans and Assoc., No. 1135164, 2012 WL 3983909 at *4 (9th Cir. Sept. 12, 2012) (“The Supreme Court has emphasized that
analyzing the sufficiency of a complaint’s allegations is a ‘context-specific task that requires the
reviewing court to draw on its judicial experience and common sense.’” (quoting Iqbal, 556 U.S. at
679)).
In cases involving a plaintiff proceeding pro se, the court construes the pleadings liberally
and affords the plaintiff the benefits of any doubt. Karim-Panahi v. Los Angeles Police Dept., 839
F.2d 621, 623 (9th Cir. 1988); see also Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir.
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1992)(“[F]ederal courts liberally to construe the ‘inartful pleadings’ of pro se litigants.”). In other
words, courts hold pro se pleadings to a less stringent standard than those drafted by lawyers.
Haines v. Kerner, 404 U.S. 519, 520 (1972). In addition, a pro se litigant is entitled to notice of the
deficiencies in the complaint and an opportunity to amend, unless the complaint’s deficiencies
cannot be cured by amendment. Karim-Panahi, 839 F.2d at 623-624.
Discussion
The defendants move to dismiss the individual defendants, with exception of Lee, conceding
the State of Oregon, the Agency, the Department, and Lee (collectively the “State Defendants”) are
proper defendants. In addition to Duff, Schaffer, Costello, and Dr. Cogburn referenced above, Larry
also names as defendants Robert Costello, Agency Branch Manager and/or Regional Supervisor;
Sarah Sandruddin, Agency counselor; Mark Masthoff, an Agency dispute resolution coordinator;
and Luahna Ude, Ph.D., a contractor and service provider for the Agency (collectively the
“Individual Defendants”).
I. Preliminary Procedural Matter
Larry also names “John Does 1-10” as defendants. The Ninth Circuit has held:
[a]s a general rule, the use of ‘John Doe’ to identify a defendant is not favored.
However, situations arise, such as the present, where the identity of alleged
defendants will not be known prior to the filing of a complaint. In such
circumstances, the plaintiff should be given an opportunity through discovery to
identify the unknown defendants, unless it is clear that discovery would not uncover
the identities, or that the complaint would be dismissed on other grounds.
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). Larry has had ample of time to discover the
names of the John Doe defendants and has not amended his complaints to add them. Accordingly,
the court dismisses the John Doe defendants.

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II. Oregon Tort Claims Act
Larry first two claims allege violations of the Act and are asserted against the State
Defendants only. Similarly, Larry’s Fourth Claim for Relief for vicarious liability is against only the
State Defendants. Larry seeks to hold the Individual Defendants liable solely on his common law
IIED claim found in his Third Claim for Relief. The State Defendants do not contest the court’s
jurisdiction over the claims under the Act or supplemental jurisdiction over the common law
vicarious liability claim asserted against them. Rather, the only issue before the court is whether it
has jurisdiction over the Individual Defendants with regard to Larry’s IIED claim. The Individual
Defendants contend Larry’s claim against them must be dismissed based on the Oregon Tort Claims
Act, Eleventh Amendment immunity, or a lack of jurisdiction.2
The Individual Defendants argue the Oregon Tort Claims Act requires the substitution of the
State of Oregon (the “State”) as defendant in Larry’s Third Claim for Relief. Under the relevant
provision of the Oregon Tort Claims Act,3 an officer, employee, or agent of a public body may be
held personally liable on a tort claim when the requested prayer for relief exceeds the damages cap
identified in OR. REV. STAT. 30.271, 30.272, or 30.273. See OR. REV. STAT. 30.265(4) (2015) (“If
an action is filed against a an officer, employee, or agent of a public body, and the plaintiff alleges
damages in an amount equal to or less than the damages allowed under ORS 30.271, 30.272, or
30.273, the court upon motion shall substitute the public body as the defendant.”). OR. REV. STAT.

2

The Individual Defendants also moved to be dismissed from Larry’s claims under the Act,
arguing the proper defendants to such claims are the public entities and the head of the department,
agency, or unit. Larry’s claims under the Act are against the State Defendants only. Consequently,
the Individual Defendants’ motion for partial dismissal of this claim is not well taken and is denied
as moot.
3

The Individual Defendants quote an old, irrelevant version of OR. REV. STAT. 30.265(1).

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30.271 applies to claims against the State, its agencies, and its employees, and imposes a $2,000,000
limit for causes of action arising on or after July 1, 2014, and before July 1, 2015. OR. REV. STAT.
30.271(2)(f) (2015).
In his Third Claim for Relief, Larry alleges he suffered economic damages in an amount to
be determined at trial. (Compl. ¶ 68.) He also seeks damages for “severe emotional distress, loss
of dignity and self esteem, anxiety, humiliation, and loss of enjoyment of life,” and punitive damages
in amounts to be determined a trial. (Compl. ¶¶ 69, 70.) A plaintiff’s failure to specify the amount
of damages he seeks prevents the court from determining if OR. REV. STAT. 30.362(3) applies, and
thus defeats a request for substitution under that provision. Achar-Winkels v. Lake Oswego School
Dist., No. 3:15-cv-00385-YY, 2017 WL 2291338, at *9 (D. Or. May 25, 2017). Even assuming
Larry has adequately identified the damages he seeks against the Individual Defendants in his prayer,
Larry alleges he suffered economic damages in the amount of $2,000,000, and also seeks
compensatory damages and punitive damages to be determined at trial, and reasonable attorney fees,
costs, and disbursements. Larry clearly alleges $2,000,000 in economic damages alone. The
requested additional compensatory or punitive damages would exceed the limit. Consequently,
under either scenario, Larry is entitled to proceed against the Individual Defendants on his IIED
claim. The Individual Defendants’ motion to substitute under the Oregon Tort Claims Act is denied.
II. Eleventh Amendment Immunity
“The Eleventh Amendment creates an important limitation on federal court jurisdiction,
generally prohibiting federal courts from hearing suits brought by private citizens against state
governments without the state’s consent.” Sofamor Danek Group v. Brown, 124 F.3d 1179, 1183
(9th Cir. 1997) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890)). Eleventh Amendment immunity
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extends to suits against state agencies. Puerto Rico Aqueduct and Sewer Authority v. Metcalf &
Eddy, Inc., 506 U.S. 139, 144 (1993). The Eleventh Amendment also bars suits against state officers
who are sued in their official capacity for damages or other retroactive relief, but allows suits for
prospective declaratory or injunctive relief against state officials acting in their official capacity. Will
v. Michigan Dept. of State Police, 491 U.S. 58, 89 (1989). However, the Eleventh Amendment does
not bar claims for damages against a state official in his personal capacity. Pena v. Gardner, 976
F.2d 469, 472 (9th Cir. 1992). As explained by the Supreme Court:
The 11th Amendment was not intended to afford [state officials] freedom from
liability in any case where, under color of their office, they have injured one of the
state’s citizens. To grant them such immunity would be to create a privileged class,
free from liability for wrongs inflicted or injuries [threatened]. Public agents must
be liable to the law, unless they are to be put above the law.
Hopkins v. Clemson Agr. College of South Carolina, 221 U.S. 636, 643 (1911). Thus, state officials
acting in their individual capacities are not shielded from liability under the Eleventh Amendment
and may be subject to suits seeking money damages.
Larry argues Eleventh Amendment immunity does not apply as the Individual Defendants
acted outside the scope of their employment and in their individual capacities. In the caption of the
complaint, Larry indicates he is suing the Individual Defendants in their individual and official
capacities. (Compl. at 1.) Moreover, in his Third Claim for Relief, Larry alleges the Individual
Defendants “acted outside the scope of their employment.” (Compl. ¶ 67.) However, Larry also
specifically alleges: “[a]ll incidents occurred while Defendants Lee, Costello, Duff, Schaffer,
Sandruddin, Masthoff, Dr. Gogburn, Ph.D. and Dr. Luahna Ude, Ph.D. were working in their official
capacities or as a [Agency] contractor and service provider for the [Agency].” (Compl. ¶ 16.) At
this motion to dismiss stage, the court must view the allegations in the Complaint in a light most
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favorable to Larry. Consequently, the court finds Larry is suing the Individual Defendants
individually and seeking money damages against them. The Individual Defendants are not entitled
to protection under the Eleventh Amendment and their partial motion to dismiss on this ground is
denied.
III. Supplemental Jurisdiction
The Individual Defendants appear to argue that because they are not defendants to the claims
establishing federal jurisdiction – those alleging violation of the Act – the court lacks jurisdiction
over the state common-law claim asserted against them. Larry asserts when a court has jurisdiction
over a claim, such as a claim raising a federal question, the court’s supplemental jurisdiction extends
to all claims substantially related to the claim creating jurisdiction.
Supplemental jurisdiction is governed by 28 U.S.C. §1367(a), which provides, in pertinent
part:
in any civil action of which the district courts have original
jurisdiction, the district courts shall have supplemental jurisdiction
over all other claims that are so related to claims in the action within
such original jurisdiction that they form part of the same case or
controversy under Article III of the United States Constitution.
This provision makes clear the relevant question is whether the federal and state law claims are
sufficiently related. A state law claim is considered part of the same “case or controversy” as a
federal claim when “they derive from a common nucleus of operative fact” and “are such that [a
plaintiff] would ordinarily be expected to try them all in one proceeding.” United Mine Workers of
Am. v. Gibbs, 383 U.S. 715, 725 (1966). When this standard has been met and the federal claim is
properly before the court, “the court has the power to assert supplemental jurisdiction over those
supplemental claims even if they are state law claims asserted against a defendant over whom the
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court otherwise lacks original jurisdiction.” Ortmayer v. Union Bank of Cal., N.A., No. 04-1580HU, 2005 WL 433703, at *5 (D. Or. Feb. 24, 2005) (citing Mendoza v. Zirkle Fruit Co., 301 F.3d
1163, 1174 (9th Cir. 2002)).
As alleged in the Complaint, Larry’s claims under the Act and his IIED claim arise from a
common nucleus of operative facts – the Individual Defendants’ interactions with Larry. Larry
would ordinarily be expected to try these claims in one proceeding. Consequently, the court has
supplemental jurisdiction over the IIED claim against the Individual Defendants even if they were
not parties to his claims under the Act. The Individual Defendants’ motion to dismiss is denied on
this ground as well.
Conclusion
The Individual Defendants’ partial motion (ECF No. 45) to dismiss is DENIED.
DATED this 7th day of August, 2017.

/s/ John V. Acosta
JOHN V. ACOSTA
United States Magistrate Judge

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