# Ross v. Blewett

> District Court, D. Oregon · February 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10392966

## Case

- **Court:** District Court, D. Oregon
- **Decided:** February 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JAMES ARTHUR ROSS, Case No. 2:20-cv-01338-SB

Plaintiff, OPINION AND ORDER

v.

TYLER BLEWETT et al.,

Defendants.

BECKERMAN, U.S. Magistrate Judge.
James Ross (“Ross”), a self-represented litigant in the custody of the Oregon Department
of Corrections (“ODOC”), filed this civil rights action under 42 U.S.C. § 1983 (“Section 1983”)
against Tyler Blewett, Superintendent at Two Rivers Correctional Institution (“TRCI”); Captain
Rumsey, Operations Captain; Ken Jeske, Oregon Corrections Enterprises (“OCE”)
Administrator; Shawn Haywood, OCE Deputy Administrator; Jennifer Starbuck, OCE
Communications Director; Lori Hensel, OCE Laundry Manager; Coordinator Snider, OCE
Laundry Coordinator; Coordinator Moore; OCE Laundry Coordinator; Colette Peters, Director
of ODOC; Governor Kate Brown (“Governor Brown”); and John Does 1-3, TRCI Correctional
Officers (collectively, “Defendants”). Ross alleges that Defendants’ response to COVID-19
violates his constitutional rights to reasonable protection from severe illness or death. This matter
comes before the Court on Defendants’ motion to stay this litigation. For the reasons that follow,
the Court grants Defendants’ motion to stay.
BACKGROUND
Ross is an adult in custody (“AIC”) of ODOC and is currently housed at TRCI. On

August 10, 2020, Ross filed this action against Defendants, alleging that ODOC’s failure
adequately to respond to COVID-19 violates his First, Eighth, and Fourteenth Amendment
rights. (ECF No. 2.) That same day, Ross filed a motion for appointment of counsel (ECF No. 4),
and a motion for a preliminary injunction seeking an order requiring defendants “to wear masks
at all times when entering and while remaining in the Institution” and to enjoin defendants from
further alleged constitutional violations. (Pl.’s Mot. Prelim. Inj. at 11-12, ECF No. 3.) On
October 5, 2020, Ross filed an amended complaint (“FAC”), adding as defendants several
ODOC officials and Governor Brown. (FAC at 1, ECF No. 8.)
Months earlier, on April 6, 2020, seven AICs (the “Maney Plaintiffs”) housed at four
ODOC institutions filed a civil rights action under Section 1983 against Governor Brown and

several ODOC officials (together, “Maney Defendants”). (Def.’s Mot. to Stay at 1, ECF No. 23;
Maney et al. v. Brown et al., 6:20-cv-00570-SB (“Maney”), ECF No. 1.) The Maney Plaintiffs
allege that the Maney Defendants acted with deliberate indifference to their health and safety by
failing adequately to protect them from COVID-19 through social distancing, testing, sanitizing,
medical treatment, masking, and vaccines. (See Maney TAC, ECF No. 160.) The Maney
Plaintiffs assert allegations on behalf of a class of similarly situated AICs, and propose three
classes: (1) the “Injunctive Relief Class”; (2) the “Damages Class”; and (3) the “Vaccine Class.”
(Maney TAC ¶¶ 20-21.)
On November 17, 2020, the Court issued its Findings and Recommendation (“F&R”),
recommending dismissal of Ross’s damages claims against defendants in their individual
capacities (ECF No. 10), which the district judge adopted in full on January 28, 2021. (Order at
3, ECF No. 24.) The Court also dismissed Ross’s motions for a preliminary injunction (ECF
Nos. 3, 20) and motions for appointment of counsel (ECF No. 4, 19), with leave to renew at a

later stage of the proceedings. (Order at 3.)
On January 21, 2021, the Maney Plaintiffs moved for a preliminary injunction requiring
ODOC to offer all AICs housed in ODOC facilities a COVID-19 vaccine, and sought provisional
class certification of the Vaccine Class, which includes: “All adults in custody housed at Oregon
Department of Corrections facilities (ODOC) who have not been offered COVID-19
vaccinations.” (Maney Pls.’ Mot. Prelim. Inj., ECF No. 156; Maney Pls.’ Mot. to Certify Class at
2, ECF No. 154.)
On January 26, 2021, Defendants filed a motion to stay this matter pending resolution of
the motion for class certification in Maney. (Defs.’ Mot. to Stay at 1.) On February 2, 2021, this

Court granted the Maney Plaintiffs’ motion for provisional class certification of the Vaccine
Class and motion for a preliminary injunction. (Maney Op. & Order at 34, ECF No. 178.) The
Maney Plaintiffs’ motion for class certification of the remaining two classes is currently due on
March 1, 2021. (ECF No. 110.)
DISCUSSION
The parties dispute whether a stay pending resolution of the Maney class certification
motion is appropriate here. As explained below, the Court concludes that the relevant factors
weigh in favor of a stay.
///
///
I. APPLICABLE LAW
“District courts have the discretion to stay proceedings pending before them.” Patton v.
DePuy Orthopaedics, Inc., No. 19-cv-00081, 2019 WL 851933, at *3 (C.D. Cal. Feb. 21, 2019)
(citing Landis v. N.A. Co., 299 U.S. 248, 254-55 (1936), and Lockyer v. Mirant Corp., 398 F.3d
1098, 1109 (9th Cir. 2005)); see also Confederated Tribes & Bands of Yakama Nation v. Airgas

USA, LLC, 435 F. Supp. 3d 1103, 1127 (D. Or. 2019) (“This court has the inherent power to
control its docket to ‘promote economy of time and effort for itself, for counsel, and for
litigants.’”) (citation omitted). In deciding whether to grant a party’s motion to stay, courts in this
circuit typically consider the following three factors: “‘(1) [the] potential prejudice to the non-
moving party; (2) [the] hardship and inequity to the moving party if the action is not stayed; and
(3) the judicial resources that would be saved by avoiding duplicative litigation[.]’” DePuy, 2019
WL 851933, at *3 (quoting Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal.
1997)).
II. ANALYSIS
In opposing Defendants’ motion to stay, Ross argues that he is “still suffering from the
outbreak caused by [Defendants’] deliberative and wreckless [sic] indifference to my

constitutional rights” and that “nothing [has] changed throughout the prison[.]” (Pl.’s Resp. at 1-
3.) Ross also states that he has recently contracted COVID-19 and “that changes the scope of my
case[.]” (Id. at 5.) Finally, Ross asks the Court to appoint counsel to represent him in this matter,
or “have counsel representing Maney assist me, immediately and without any further delay.”
(Id.)
Although the Court is sympathetic to Ross’s situation, the Court finds that, on balance,
the relevant factors weigh in favor of staying this action pending resolution of class certification
in Maney.
First, there is substantial overlap between the parties and legal issues to resolve in the
Maney case and this case, as both actions include Section 1983 claims alleging that ODOC
officials acted with deliberate indifference to AICs’ health and safety by failing adequately to
protect them from COVID-19. (Maney TAC ¶ 156; FAC at 5-11.) A stay will conserve judicial
resources by avoiding duplicative litigation.

Furthermore, it appears that Ross is a member of all three putative classes in Maney. As
explained above, the Court has already provisionally certified a Vaccine Class in Maney, of
which Ross is a member. In addition, the Maney Plaintiffs seek to certify an Injunctive Relief
Class composed of AICs who are at high risk of death or severe illness from COVID-19, and a
Damages Class composed of individuals who have been continuously housed in ODOC facilities
since February 1, 2020, and have contracted COVID-19. (Maney TAC ¶¶ 20-21.) Ross is a
member of the Maney Injunctive Relief Class because he alleges that he is currently housed in an
ODOC facility and is at high risk of death or severe illness from COVID-19 due to a heart
condition. (See FAC at 10, explaining that he suffers from a heart condition; Maney TAC ¶ 20,

noting that the Injunctive Relief Class includes “[p]eople with heart disease (such as congenital
heart disease, congestive heart failure and coronary artery disease)”). Ross is also a member of
the Maney Damages Class because he has contracted COVID-19. (See Pl.’s Mem. Obj. to F&R
at 1, ECF No. 26, stating that “I have been infected with the coronavirus/COVID-19”).
A stay in this case will not result in significant delay, as the motion for class certification
in Maney is currently due on March 1, 2021. (ECF No. 110.) If the Court grants the Maney
Plaintiffs’ motion for class certification, Ross may elect to proceed as a member of the three
classes, or he may opt out and litigate his own case. See McDaniels v. Stewart, No. 15-CV-
05943-BHS-DWC, 2017 WL 132454, at *2 (W.D. Wash. Jan. 13, 2017) (granting stay pending
class certification and noting that “Plaintiff may elect to be a member of the class if it is certified,
or opt-out and proceed with his own case”). On the other hand, if the Court denies class
certification, Ross faces only a brief delay in this matter.
For these reasons, the Court concludes that staying this litigation will conserve judicial
resources by avoiding duplicative litigation, and a stay will not unduly prejudice the non-moving

party. See McDaniels, 2017 WL 132454, at *2 (granting stay because “staying this action
pending resolution of class certification . . . promotes judicial economy and does not prejudice
Defendants”); see also Hilario Pankim v. Barr, No. 20-cv-02941-JSC, 2020 WL 2542022, at *11
(N.D. Cal. May 19, 2020) (staying habeas petition pending adjudication in separate class action
because “[t]he potential relief available to [the petitioner]—immediate release due to
the COVID-19 pandemic, the conditions of confinement at the Yuba County, and his medical
vulnerabilities—is the same substantive relief sought in this action and is based on the same
underlying facts” and therefore “a stay pending adjudication of [the class action] is
warranted”); Duong v. Jennings, No. 20-cv-02864-RMI, 2020 WL 2524252, at *2 (N.D. Cal.

May 18, 2020) (same); Calderon v. Barr, No. 2:20-cv-00891 KJM GGH, 2020 WL 2394287, at
*4-5 (E.D. Cal. May 12, 2020) (same).
CONCLUSION
For the reasons stated, the Court GRANTS Defendants’ motion to stay (ECF No. 23), and
STAYS this action pending resolution of class certification in the Maney case.1 Pursuant to

1 “[A] motion to stay is nondispositive where it ‘[does] not dispose of any claims or
defenses and [does] not effectively deny . . . any ultimate relief sought.’” James v. Ariz. Dep’t of
Corrs., No. 18-4545, 2019 WL 7494660, at *2 (D. Ariz. Aug. 14, 2019) (quoting S.E.C. v.
CMKM Diamonds, Inc., 729 F.3d 1248, 1260 (9th Cir. 2013)). Defendants’ motion to stay does
not dispose of any claims or defenses and does not effectively deny any ultimate relief. Thus, this
Court may resolve the motion to stay without full consent to the jurisdiction of a U.S. Magistrate
Judge under 28 U.S.C. § 636(c).
Ross’s request, the Court will request that counsel for the Maney Plaintiffs contact Ross as soon
as possible.
IT IS SO ORDERED.
DATED this 12th day of February, 2021.

HON. STACIE F. BECKERMAN
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392966. Public record. Not legal advice.