Opinion

Forter v. Brown

Court
District Court, D. Oregon
Filed
Apr 23, 2021
Cited by
0 cases
Authority
More cited than 28.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JEFFREY D. FORTER et al., Case No. 6:21-cv-00478-SB

Plaintiffs, OPINION AND ORDER

v.

KATE BROWN; COLETTE S. PETERS,

Defendants.

BECKERMAN, U.S. Magistrate Judge.

Jeffrey Forter (“Forter”), 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 Governor Kate Brown (“Governor Brown”) and ODOC Director

Colette Peters (together, “Defendants”). Forter asserts claims on behalf of himself and forty-

seven other adults in custody (“AIC”) (together, “Plaintiffs”). 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.

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BACKGROUND

Plaintiffs are AICs of ODOC and are currently housed at Shutter Creek Correctional

Institution (“SCCI”).1 On March 1, 2021, Plaintiffs filed this action against Defendants in the

Coos County Circuit Court, alleging that Defendants failed to protect them from COVID-19 and

that ODOC’s failure adequately to respond to COVID-19 violates their rights under the Eighth

and Fourteenth Amendments of the United States Constitution, and Article 1, Sections 13 and 16

of the Oregon Constitution. (Compl. at 2-6, ECF No. 1.) On March 30, 2021, Defendants filed a

Notice of Removal in this Court, asserting that this Court has jurisdiction under 28 U.S.C. §§

1331 and 1367(a). (Notice of Removal, ECF No. 1.)

Eleven 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, the “Maney Defendants”). (Defs.’ Mot. to Stay at 3, ECF

No. 3; 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 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

1 As of April 19, 2021, at least four plaintiffs have been released from ODOC custody,

and one plaintiff has been transferred to a different ODOC facility.

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 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.)

On April 6, 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.) The Maney Plaintiffs’ motion

for class certification is currently due on May 3, 2021. (ECF No. 199.)

DISCUSSION

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[.]’” Patton, 2019

WL 851933, at *3 (quoting Rivers v. Walt Disney Co., 980 F. Supp. 1358, 1360 (C.D. Cal.

1997)).

II. ANALYSIS

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 allege that ODOC officials violated AICs’ federal

constitutional rights by failing adequately to protect them from COVID-19. (Maney TAC ¶ 156;

Compl. at 5-6.) A stay will conserve judicial resources by avoiding duplicative litigation.

Furthermore, it appears that at least some of the plaintiffs here may be members of at

least the Injunctive Relief Class composed of AICs who are at high risk of death or severe illness

from COVID-19, based on Plaintiffs’ allegations that Defendants did not fairly consider the early

release of medically vulnerable AICs. (See Compl. ¶ 14.)

A stay in this case will not result in significant delay, as the motion for class certification

in Maney is currently due on May 3, 2021. (ECF No. 199.) If the Court grants the Maney

Plaintiffs’ motion for class certification, Plaintiffs may have the option to proceed as members of

the applicable Maney classes, or they may opt out and litigate their cases separately. 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, Plaintiffs face 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 Plaintiffs. 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 [Jail], 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).2

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2 Forter also filed a motion for class certification (ECF No. 1), and a motion to quash

Defendants’ notice of removal (ECF No. 5). Forter attached to the motion to quash an amended

complaint asserting only state constitutional claims against Defendants (Mot. to Quash Att. 1).

The Court construes Forter’s motion to quash as a motion to remand this action to state court. In

light of the Court’s Order staying this action, the Court will defer ruling on both motions pending

resolution of class certification in Maney. However, the Court cautions Forter that a self-

represented plaintiff may not represent other plaintiffs in litigation. See Johns v. Cnty. of San

Diego, 114 F.3d 874, 877 (9th Cir. 1997) (“[A] non-lawyer ‘has no authority to appear as an

attorney for others than himself.’” (quoting C.E. Pope Equity Tr. v. United States, 818 F.2d 696,

697 (9th Cir. 1966)). In addition, “it is well established that a layperson cannot ordinarily

represent the interests of a class.” Hirt v. Jackson Cnty., No. 1:19-cv-00887-AC, 2020 WL

3104502, at *2 (D. Or. June 11, 2020) (citing McShane v. United States, 366 F.2d 286 (9th Cir.

1966)). “This rule becomes almost absolute when, as here, the putative class representative is

incarcerated and proceeding pro se.” Id. (citation omitted).

CONCLUSION

For the reasons stated, the Court GRANTS Defendants’ motion to stay (ECF No. 3), and

STAYS this action pending resolution of class certification in the Maney case.3

IT IS SO ORDERED.

DATED this 23rd day of April, 2021.

HON. STACIE F. BECKERMAN

United States Magistrate Judge

3 “[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).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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