Opinion

Bond v. Brown

Court
District Court, D. Oregon
Filed
Jul 27, 2023
Cited by
0 cases
Authority
More cited than 28.8%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE DIVISION

JAMES BRENT BOND, Civ. No. 6:20-cv-01656-AA

Plaintiff, OPINION & ORDER

v.

KATHERINE BROWN; STATE

OF OREGON

Defendants.

_______________________________________

AIKEN, District Judge

This matter comes before the Court of Defendants’ Motion to Dismiss or for

Summary Judgment, ECF No. 28. After the Motion to Dismiss was filed, Plaintiff

filed his First Amended Complaint (“FAC”), ECF No. 38, and Defendants renewed

their Motion to Dismiss as to that pleading. ECF No. 39. The Court concludes that

this matter is appropriate for resolution without oral argument. For the reasons set

forth below, the motion is GRANTED.

LEGAL STANDARDS

To survive a motion to dismiss under the federal pleading standards, a

pleading must contain a short and plain statement of the claim and allege “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 667 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). While a pleading does not require “detailed factual allegations,”

it needs more than “a formulaic recitation of the elements of a cause of action.” Iqbal,

556 U.S. at 677-78. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged. The plausibility standard . . . asks for more than a

sheer possibility that a defendant has acted unlawfully.” Id. at 678. Legal

conclusions without any supporting factual allegations do not need to be accepted as

true. Id.

DISCUSSION

Plaintiff sues former Oregon Governor Brown and the State of Oregon over a

series of executive orders aimed at combatting the COVID-19 pandemic. Plaintiff

alleges that these executive orders violated his constitutional rights and brings

claims for (1) “Deprivation of Life, Liberty, and the Pursuit of Happiness,” (Claim 1);

and (2) “Deprivation of Equal Protection of Law” (Claim 2), both pursuant to 42 U.S.C.

§ 1983. Claim 1 asserts that Defendants violated Plaintiff’s free exercise rights under

the First Amendment and his Ninth Amendment rights. Claim 2 asserts that

Defendants violated Plaintiff’s equal protection rights under the Fourteenth

Amendment. Plaintiff seeks to recover $7,500 in compensatory damages and

$500,000 in punitive damages on each claim.

As a preliminary matter, the Court notes that (1) the complained-of executive

orders were repealed months before the filing of the FAC and (2) Kate Brown ceased

to be the Governor of Oregon at the end of her final term of office prior to the filing of

the FAC. However, Plaintiff has dropped his state law claims and his claims for

injunctive relief related to those executive orders and now seeks only monetary

damages.

I. The State of Oregon is Not a Proper Party Under § 1983

Section 1983 “provides a federal cause of action against any person who, acting

under color of state law, deprives another of his federal rights.” Conn v. Gabbert, 526

U.S. 286, 290 (1999). To maintain a claim under § 1983, “a plaintiff must both (1)

allege the deprivation of a right secured by the federal Constitution or statutory law,

and (2) allege that the deprivation was committed by a person acting under color of

state law.” Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). The Supreme

Court has held that “neither a State nor its officials acting in their official capacities

are ‘persons’ under § 1983.” Will v. Mich. Dept. of State Police, 491 U.S. 58, 71 (1989).

The State of Oregon is not, therefore, a proper defendant as to either of the claims

raised in the FAC and those claims are DISMISSED as to the State of Oregon.

Because no amendment can remedy this defect, dismissal of the claims against the

State of Oregon is with prejudice.

II. Ninth Amendment

Plaintiff’s first claim alleges that the executive orders violated his rights under

Ninth Amendment. FAC ¶ 40. The Ninth Amendment to the federal constitution

provides: “The enumeration in the Constitution of certain rights, shall not be

construed to deny or disparage other retained by the people.” U.S. Const. amend IX.

The Ninth Amendment “has not been interpreted as independently securing any

constitutional rights for purposes of making out a constitutional violation.”

Schowengerdt v. United States, 944 F.2d 483, 490 (9th Cir. 1991). “It is a common

error, but an error nonetheless, to talk of ‘[N]inth [A]mendment rights.’ The [N]inth

[A]mendment is not a source of rights as such; it is simply a rule about how to read

the Constitution.” San Diego Cnty. Gun Rights Comm. v. Reno, 98 F.3d 1121, 1125

(9th Cir. 1996) (internal quotation mark and citation omitted, emphasis in original).

As such, Plaintiff’s first claim fails insofar as it relies on the Ninth Amendment.

Because this claim cannot be salvaged by the amendment of additional facts,

dismissal is with prejudice.

III. Free Exercise

Plaintiff claims that the executive orders violated his fee exercise rights under

the First Amendment. The Free Exercise Clause of the First Amendment, applicably

to the States under the Fourteenth Amendment, provides that “Congress shall make

no law . . . prohibiting the free exercise [of religion].” U.S. Const. amend. I. Laws

“that incidentally burden[ ] religion are ordinarily not subject to struct scrutiny under

the Free Exercise Clause so long as they are neutral and generally applicable.”

Fulton v. City of Philadelphia, ___ U.S.___, 141 S. Ct. 1868, 1876 (2021). If a law is

both neutral and generally applicable, it is subject to rational basis review in which

the which the government action must be “rationally related a legitimate

governmental purpose.” Stormans, Inc. v. Wiseman, 794 F.3d 1064, 1084 (9th Cir.

2015). If a rule is either non-neutral or not generally applicable, then it is subject to

strict scrutiny and must be “narrowly tailored” to serve a “compelling” state interest.

Kennedy v. Bremerton Sch. Dist., ___U.S.___, 142 S. Ct. 2407, 2421-22 (2022).

Here, Plaintiff makes no specific allegations concerning how his own free

exercise rights were burdened, other than vague and conclusory statements, nor does

Plaintiff offer any allegations or argument concerning the neutrality or purpose of

the executive orders. The Court concludes that Plaintiff has failed to state a claim

for violation of his free exercise rights were violated. The Court grants Defendants’

motion to dismiss this claims. In light of Plaintiff’s pro se status, the Court will allow

Plaintiff the opportunity to amend his claim for violation of his free exercise rights.

IV. Equal Protection

Plaintiff’s second claim alleges that the executive orders violated his right to

equal protection under the Fourteenth Amendment. “The Equal Protection Clause of

the Fourteenth Amendment commands that no State shall deny to any person within

its jurisdiction the equal protection of the laws, which is essentially a direction that

all persons similarly situated should be treated alike.” Boardman v. Inslee, 978 F.3d

1092, 1117 (9th Cir. 2020) (internal quotation marks and citation omitted). “To state

a claim under . . . § 1983 for a violation of the Equal Protection Clause of the

Fourteenth Amendment[,] a plaintiff must show that the defendants acted with an

intent or purpose to discriminate against the plaintiff based upon membership in a

protected class.” Shooter v. Arizona, 4 F.4th 955, 960 (9th Cir. 2021) (internal

quotation marks and citation omitted).

“As the Supreme Court has recognized, ‘an equal protection claim can in some

circumstances be sustained even if the plaintiff has not alleged class-based

discrimination, but instead claims that [ ]he has been irrationally singled out as a so-

called class of one.’” SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122-23 (9th

Cir. 2022) (quoting Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 601 (2008)). To

state a “class-of-one equal protection claim, the [plaintiff] must allege facts showing

that [he has] been ‘(1) intentionally (2) treated differently from others similarly

situated and that (3) there is no rational basis for the difference in treatment.’” Id.

(quoting Vill. of Willowbrook v. Olech, 528 U.S. 562. 564 (2000)).

The FAC alleges no facts showing that Plaintiff is a member of a protected

class or that he was treated differently from any other similarly situated individual.

The Court concludes that Plaintiff has failed to state a claim for relief under the

Fourteenth Amendment and this claim is dismissed. In his subsequent filings,

Plaintiff asserts that he “forgot” to include the necessary facts. In light of Plaintiff

pro se status, the Court will allow Plaintiff to file an amended complaint to properly

state this claim.

CONCLUSION

Defendants’ Motion to Dismiss, ECF No. 28 is GRANTED. Plaintiff’s claims

against Defendant State of Oregon are DISMISSED with prejudice. Plaintiff’s claims

brought under the Ninth Amendment are DISMISSED with prejudice. Plaintiff’s

claims brought under the First and Fourteenth Amendments are DISMISSED with

leave to amend. Plaintiff shall have thirty (30) days from the date of this Order in

which to file an amended complaint. Plaintiff is advised that failure to file an

amended complaint within the allotted time will result in the entry of a judgment of

dismissal without further notice. All other pending motions, ECF Nos. 34, 37, 45, are

MOOT.

It is so ORDERED and DATED this 27th day of July 2023.

/s/Ann Aiken

ANN AIKEN

United States District Judge

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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