Harris v. UBH of Oregon, LLC

Filing 9

OPINION AND ORDER: Plaintiff is HEREBY ORDERED to file an amended complaint within thirty days from the date of this order. The amended complaint shall briefly and plainly state the facts supporting plaintiff's claims of intentional in fliction of emotional distress and defamation. Plaintiff is advised that failure to file an amended complaint as ordered will result in the dismissal of this proceeding. Amended complaint is due by 10/23/2017. Signed on 9/21/2017 by Judge Ann L. Aiken. A copy of this Opinion and Order was mailed to David B. Harris. (ck)

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

DAYID HARRIS,

Case No. 3:17-cv-01296-AA
OPINION AND ORDER

Plaintiff,
vs.
UBH OF OREGON, LLC, dba Cedar Hills
Hospital,
Defendant.

AIKEN, Judge:
Plaintiff David Harris moves to proceed in forma pauperis.

Upon examination of

plaintiffs affidavit, I find that plaintiff is unable to afford the costs of this action. Accordingly,
plaintiffs application to proceed in forma pauperis (doc. 2) is GRANTED. This action may go
forward without the payment of fees or costs.
Because plaintiff is proceeding in fonna pauperis, I am required to dismiss this action ifI
determine that it fails to state a claim upon which relief may be granted.

28 U.S.C. §

1915(e)(2)(B)(ii). In federal court, a complaint must contain a "shmi and plain statement of the
claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). That pleading

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standard "does not require 'detailed factual allegations,' but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell At!. Corp. v. T'>l'ombly, 550 U.S. 544, 555 (2007)). To state a claim for relief, the
plaintiff must plead "factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Id Here, the complaint does not contain
enough factual content to support either of plaintiffs claims.
Plaintiff formerly worked as a therapist for defendant UBH of Oregon, LLC ("UBH"). 1
He alleges that in August 2015, he was placed on administrative leave after psychiatric patients
repotted him for misconduct. Plaintiff further asserts that his supervisor, Shanna Branham, knew
or should have known that the misconduct allegations were false. Plaintiff avers that two days
after he was placed on administrative leave, Branham sent him two text messages telling him he
could return to work the following day. When plaintiff returned to work, he was terminated.
Plaintiff alleges that during his administrative leave, Branham publicized defamatory
statements regarding plaintiff to UBH management. Plaintiff contends that the statements were
intended to hmm his trade or profession and that, at the time she made the statements, Branham
1

Plaintiff alleges that this Comt has diversity jurisdiction because he is a resident of
Oregon and defendant's principal place of business is in Pennsylvania. But for limited liability
corporations like defendant, the test for citizenship is not principal place of business. Rather, an
LLC "is a citizen of every state of which its owners/members are citizens." Johnson v. Columbia
Properties Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006). The complaint does not contain
any allegations about defendant's owners' or members' citizenship, and defendant's name raises
the possibility that one or more of its members could be Oregon citizens. Pursuant to my
independent obligation to ensure this Comt does not exceed the scope of its jurisdiction,
Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434 (2011), I sua sponte take judicial
notice of public records of the Oregon Secretary of State listing Ascend Health Corporation,
located in Pennsylvania, as defendant's only member. See Fed. R. Evid. 201(b)(2) & (c)(l)
(authorizing a federal court to "take judicial notice on its own" of "a fact that is not subject to
reasonable dispute because it ... can be accurately and readily detetmined from sources whose
accuracy cannot reasonably be questioned"); Smelt v. Cty. of Orange, 447 F.3d 673, 676 n.4 (9th
Cir. 2006) (describing filings with the California Secretary of State as appropriate subjects of
judicial notice). It therefore appears the diversity of citizenship test is met here.
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either knew they were false or made in them in reckless disregard of their truth or falsity.
Finally, plaintiff asserts Branham sent him the text messages telling him he could return to work
with the intent of causing him severe emotional distress.
Plaintiffs first claim is for intentional infliction of emotional distress. Under Oregon
law, to state such a claim, a plaintiff "must plead that (1) the defendant intended to inflict severe
emotional distress on the plaintiff, (2) the defendant's acts were the cause of plaintiffs severe
emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the
bounds of socially tolerable conduct." lvfcGanty v. Staudenraus, 901 P.2d 841, 849 (Or. 1995)
(citing Sheets v. Knight, 779 P.2d 1000, 1010 (Or. 1989)). The Oregon Court of Appeals has
explained that a claim for intentional infliction of emotional distress requires "conduct that is
outrageous in the extreme. Conduct that is merely rude, boorish, tyrannical, churlish and mean
does not satisfy that standard, nor do insults, harsh or intimidating words, or rude behavior
ordinarily result in liability even when intended to cause distress." Watte v. Edgar lvfaeyens, 828
P.2d 479, 481 (Or. Ct. App. 1992) (citations and quotation marks omitted).
The complaint meets the first two requirements by adequately alleging intent and
causation.

However, I ca1111ot infer from the complaint that Branham's conduct was an

"extraordinary transgression of the bounds of socially tolerable conduct." lvfcGanty, 901 P.2d at
849. Drawing all reasonable inferences in plaintiffs favor, Branham (1) texted plaintiff to tell
him to return to work as a ruse so that she could fire him and (2) reported patient allegations of
misconduct to supervisors even though she knew those allegations were false. Those facts, even
if true, "do not sink to the actionable level" with respect to a claim for intentional infliction of
emotional distress. Watte, 828 P.2d at 481. Telling an employee that he can return to work
when in fact he is going to be fired is, at worst, mean or rude. Id. Unless the text messages

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contained pmiicularly offensive content or there are other exacerbating factors, sending the
messages was not the sort of "extraordinary transgression" the Oregon comts recognize as
actionable. With respect to the repotts to management, in a typical healthcare workplace, a
supervisor likely has an obligation to report patient complaints regarding employee misconduct
to her superiors---even if she knows the complaints are unfounded.

Without exacerbating

factors, Branham's report of the misconduct complaints therefore cannot suppott a claim for
intentional infliction of emotional distress.
Plaintiffs second claim is for defamation. To state such a claim, the complaint "must
state facts sufficient to establish that the defendant published to a third person a defamatory
statement about plaintiff.'' i\1.arleau v. Truck Ins. Exch., 37 P.3d 148, 155 (Or. 2001). "A
defamatory statement is one that would subject another to hatred, contempt or ridicule or tend to
diminish the esteem, respect, goodwill or confidence in which the other is held or to excite
adverse, derogatory or unpleasant feelings or opinions against the other." Id. (quotation marks
omitted and alterations nonnalized).

In Oregon, unlike in many other jurisdictions, "a

defamatory communication from one corporate employee to another corporate employee
concerning the job performance of a third employee is 'published' for the purpose of defamation
claim." Wallulis v. Dymmmki, 918 P.2d 755, 760 (Or. 1996).
The complaint does not cutTently state a claim for defamation because it sets out legal
conclusions rather than specific facts.

The complaint does not describe the content of the

statements Branham made to senior administrative personnel; it simply asserts that the
statements were false and intended to harm plaintiff in his trade or profession. In order to
proceed on his defamation claim, plaintiff must provide factual content sufficient to suppott the

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inference that the statements Branham made to management meet the standard from Wallulis set
out above.
Although the complaint does not state a claim for relief, I cannot find that further
amendment would be futile. Therefore, given plaintiff's pro se status, I will afford plaintiff the
oppo11unity to amend his complaint.
Plaintiff is HEREBY ORDERED to file an amended complaint within thirty days
from the date of this order. The amended complaint shall briefly and plainly state the facts
suppo11ing plaintiffs claims of intentional infliction of emotional distress and defamation.
Plaintiff is advised that failure to file an amended complaint as ordered will result in the
dismissal of this proceeding.
IT IS SO ORDERED.

0lf

Dated thi~/ day of September 2017.

Ann Aiken
United States District Judge

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