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.
///
///
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
///
///
///
///
///
///
///
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).