McCormick v. Oregon Employment Dept.

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

WILLIAM DEAN MCCORMICK, Case No. 6:22-cv-01464-MC

Plaintiff, ORDER TO AMEND

v.

OREGON EMPLOYMENT DEPT.,

Defendant.

_______________________________

MCSHANE, District Judge.

Plaintiff, an inmate in the custody of the Oregon Department of Corrections (ODOC),

files this action pursuant to 42 U.S.C. § 1983 alleging that the Oregon Employment Department

(OED) unlawfully denied his claim for unemployment benefits. Plaintiff’s allegations fail to state

a viable claim under § 1983, and he must file an Amended Complaint for this action to proceed.

This Court must dismiss an action initiated by a prisoner seeking redress from a

governmental entity or officer or employee, if the Court determines that the action (i) is frivolous

or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary

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relief against a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B) and

1915A(b). Dismissal of a pro se complaint for failure to state a claim “is proper only if it is clear

that the plaintiff cannot prove any set of facts in support of the claim that would entitle him to

relief.” Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). The Court must construe pro se

pleadings liberally and afford the plaintiff “the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d

338, 342 (9th Cir. 2010) (citation omitted). “Unless it is absolutely clear that no amendment can

cure” defects in the complaint, “a pro se litigant is entitled to notice of the complaint’s

deficiencies and an opportunity to amend prior to dismissal of the action.” Lucas v. Dep’t of

Corr., 66 F.3d 245, 248 (9th Cir. 1995) (per curiam).

Plaintiff’s claims arise from OED’s alleged denial of his application for unemployment

benefits. Plaintiff alleges that on one or more occasions he applied for Pandemic Unemployment

Assistance, presumably pursuant to the Coronavirus Aid, Relief, and Economic Security Act

(CARES Act) enacted by Congress on March 27, 2020. Pub. L. No. 116-136, 134 Stat. 281

(2020).1 Plaintiff alleges that, after several delays in the processing of his applications, OED

improperly denied them on grounds that he missed the filing deadline and had applied for

“regular” unemployment assistance rather than pandemic assistance. Plaintiff contends that he

timely filed applications for Pandemic Unemployment Assistance, and a computer crash at OED

must have led to the loss of his initial application or its misclassification as an application for

“regular” unemployment benefits.

1 The CARES Pandemic Unemployment Assistance program “provides unemployment

assistance through state agencies for individuals who are not eligible for regular unemployment

compensation or extended benefits under State or Federal law.” Witzke v. Donofrio, 2021 WL

22467, at *1 (E.D. Mich. Jan. 4, 2021).

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To sustain a claim under § 1983, plaintiff must allege that 1) a person acting under color

of law 2) deprived him of a federal constitutional right. 42 U.S.C. § 1983; Stein v. Ryan, 662

F.3d 1114, 1118 (9th Cir. 2011). Construed liberally, plaintiff’s allegations implicate his right to

procedural due process under the Fourteenth Amendment.2 To state a procedural due process

claim, plaintiff must allege facts showing “(1) a deprivation of a constitutionally protected liberty

or property interest, and (2) a denial of adequate procedural protections.” Brewster v. Bd. of

Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). Plaintiff’s Complaint

fails to establish these elements.

First, plaintiff’s Complaint does not allege a protected property interest in unemployment

assistance. “To have a property interest in a benefit, a person clearly must have more than an

abstract need or desire for it. He must have more than a unilateral expectation of it. He must,

instead, have a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564, 577

(1972). Plaintiff does not allege facts plausibly suggesting that he qualified for and was entitled

to receive Pandemic Unemployment Assistance; plaintiff merely alleges that he completed

claims for Pandemic Unemployment Assistance and submitted them to OED. Plaintiff must

allege facts showing that he qualified for unemployment benefits to assert a protected property

interest.3

2 To the extent plaintiff’s claims arise from OED’s alleged failure to follow Oregon law

governing unemployment benefits, he must file suit in state court.

3 For example, to qualify for and receive Pandemic Unemployment Assistance benefits,

“individuals must self-certify that they are: (1) self-employed; (2) seeking part-time

employment; (3) lack sufficient work history; or (4) otherwise would not qualify for regular

unemployment compensation or extended benefits” and “that they are capable of working, but

are unemployed, partially employed, or unable to work due to any one of 11 reasons related to

the COVID-19 pandemic.” Witzke, 2021 WL 22467, at *1. Further, for self-employed

individuals such as plaintiff, claims for benefits must be supported by documentation

substantiating the self-employment and wages earned. Id. at *2.

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Second, plaintiff fails to allege facts suggesting that OED failed to provide adequate

procedural protections, including notice of its decision and an opportunity for plaintiff to be

heard. Ludwig v. Astrue, 681 F.3d 1047, 1053 (9th Cir. 2012) (“Notice and [a meaningful]

opportunity to be heard are the hallmarks of procedural due process.”). Plaintiff admits that he

received notice of OED’s decision and was informed that he could appeal. In fact, Oregon

provides an administrative remedy process to appeal the denial or termination of unemployment

benefits. See, e.g., Or. Rev. Stat. §§ 657.267, 657.269, 657.270. Plaintiff nonetheless maintains

that he was unable to pursue the appeals process because of his impending incarceration. While

unfortunate, the timing of plaintiff’s incarceration does not by itself render OED’s procedural

process inadequate.

Despite the deficiencies in plaintiff’s Complaint, the Court grants him leave to file an

amended complaint. Plaintiff must allege facts plausibly suggesting that he was legally entitled

to Pandemic Unemployment Assistance and that OED’s process to challenge the denial of

assistance was constitutionally inadequate.

CONCLUSION

Plaintiff’s claims are DISMISSED for failure to state a claim. Within thirty days from the

date of this Order, plaintiff shall file an amended complaint curing the deficiencies noted above.

Plaintiff is advised that the failure to do so will result in dismissal of this proceeding, with

prejudice.

IT IS SO ORDERED.

DATED this 22nd day of November, 2022.

s/ Michael J. McShane

MICHAEL J. MCSHANE

United States District Judge

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