Flores v. ODOC

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

RICHARD J. FLORES, Case No. 2:22-cv-01399-SB

Plaintiff, OPINION AND ORDER

v.

OREGON DEPARTMENT OF

CORRECTIONS et al.,

Defendants.

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Richard J. Flores (“Flores”), a self-represented adult in custody (“AIC”), alleges

claims against the Oregon Department of Corrections (“ODOC”), Oregon Corrections

Enterprises (“OCE”), Melanie Doolin, Ken Jeske, Lori Hensel, Theron Rumsey, Tyler Blewett,

and 99 John and Jane Does (together, “Defendants”) related to Defendants’ response to the

COVID-19 (“COVID”) pandemic at Two Rivers Correctional Institution (“TRCI”).

Now before the Court is Defendants’ motion to dismiss (ECF No. 62). The Court has

jurisdiction over Flores’ claims pursuant to 28 U.S.C. §§ 1331 and 1367, and all parties have

consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. For the reasons

that follow, the Court grants in part and denies in part Defendants’ motion to dismiss.

BACKGROUND1

Flores filed several claims, styled as a class action, against Defendants based on their

response to the COVID pandemic at TRCI. (See generally First Am. Compl. (“FAC”), ECF No.

61.)

Flores alleges that Defendants failed adequately to respond to COVID. (Id. at 3-8.)

Specifically, Defendants knowingly commingled healthy AICs with AICs who had tested

positive for COVID or had been exposed to someone who had tested positive for COVID. (Id. at

3.) Further, Defendants forced AICs who had contracted COVID to continue working together

with healthy AICs. (Id. at 3-5.) In January 2021, Flores’ cell mate contracted COVID while

working in the laundry facility. (Id. at 5.) Flores subsequently contracted COVID, although he

was never tested because ODOC refused to test him. (Id.)

Accordingly, Flores alleges that Defendants violated his Eighth and Fourteenth

Amendment rights, the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and

42 U.S.C. Ch. 21. (Id. at 8.) Additionally, Flores asserts state law claims against Defendants for

negligence, gross negligence, negligence per se, dereliction of duty, intentional infliction of

emotional distress, and violations of various statutes and administrative rules. (Id. at 9.)

Flores seeks economic and noneconomic damages, declaratory relief, and injunctive

relief ordering ODOC and OCE “not to allow cross contamination between known Positive AICs

or Staff and Healthy individuals” and “[a]ny other Injunctive relief the Court finds

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1 Flores pleads these facts in the amended complaint, and the Court assumes they are true

for the purpose of deciding this motion. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992,

998 (9th Cir. 2010) (noting that when reviewing a motion to dismiss for failure to state a claim, a

court must “accept as true all well-pleaded allegations of material fact, and construe them in the

light most favorable to the non-moving party”).

reasonable and to which promotes the health and safety of those who are in the State’s care.” (Id.

at 10-11.)

LEGAL STANDARDS

“To survive a motion to dismiss, a complaint must contain 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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (citation

omitted). “The plausibility standard is not akin to a probability requirement, but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp., 550

U.S. at 556).

Self-represented litigants’ “complaints are construed liberally and ‘held to less stringent

standards than formal pleadings drafted by lawyers.’” Hoffman v. Preston, 26 F.4th 1059, 1063

(9th Cir. 2022) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)); see also Hebbe, 627

F.3d at 342 (“Iqbal incorporated the Twombly pleading standard and Twombly did not alter

courts’ treatment of pro se filings[.]”). The court must “afford [a self-represented plaintiff] the

benefit of any doubt.” Hoffman, 26 F.4th at 1063 (quoting Hebbe, 627 F.3d at 342). “Unless it is

absolutely clear that no amendment can cure the defect, . . . a [self-represented] litigant is entitled

to notice of the complaint’s deficiencies and an opportunity to amend prior to dismissal of the

action.” Garity v. APWU Nat’l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (quoting Lucas v.

Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995)).

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DISCUSSION

Defendants move to dismiss Flores’ claims based on (1) Flores’ inability as a self-

represented litigant to represent a class; (2) Eleventh Amendment immunity; and (3) failure to

state a claim for relief. (Defs.’ Mot. Dismiss (“Defs.’ Mot.”) at 4-8, ECF No. 62.)

I. CLASS ACTION ALLEGATIONS

Defendants argue that the Court should dismiss Flores’ class action allegations because

Flores, a self-represented AIC, may not represent a class in a class action. (Id. at 4-5.) Flores

responds that dismissal would deprive the class of injured people of their rights and asserts that

he continues to seek an attorney. (Pl.’s Resp. Defs.’ Mot. Dismiss (“Pl.’s Resp.”) at 1, ECF No.

63.)

Flores styled his complaint as a class action, purporting to raise his claims on behalf of

himself and “AICs and Staff housed or working at TRCI during the time of the Claims.” (FAC at

2.) 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).

Because Flores may not represent the interests of a class without counsel, the Court

dismisses Flores’ class action allegations. See White v. Geren, 310 F. App’x 159, 160 (9th Cir.

2009) (“The district court properly dismissed [the plaintiff’s] class action claims because [the

plaintiff], proceeding pro se, was not an adequate class representative.” (citing FED. R. CIV. P.

23(a)(4) and McShane, 366 F.2d at 288)); Abel v. Alameda Cnty., No. 3:07-cv-03247-MJJ-PR,

2007 WL 3022252, at *1 (N.D. Cal. Oct. 13, 2007) (“Pro se prisoner plaintiffs may not bring

class actions. They are not qualified to act as class representatives as they are unable to fairly

represent and adequately protect the interests of the class.”) (citations omitted). Flores may

pursue claims only on his own behalf.

II. ELEVENTH AMENDMENT IMMUNITY

Defendants argue that the Court should dismiss Flores’ Section 1983 claims against

ODOC and OCE because the Eleventh Amendment bars the suit. (Defs.’ Mot. at 5.) Defendants

also argue that Eleventh Amendment immunity bars any claim for damages against Melanie

Doolin, Ken Jeske, Lori Hensel, Theron Rumsey, Tyler Blewett, and 99 John and Jane Does

(together, “individual defendants”) in their official capacities. (Id. at 6.) The Court agrees.

“The Eleventh Amendment bars suits against the State or its agencies for all types of

relief, absent unequivocal consent by the state.” Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.

1999) (citing Pennhurst v. Halderman, 465 U.S. 89, 100 (1984)). Accordingly, “agencies of the

state are immune from private damage actions or suits for injunctive relief brought in federal

court.” Brown v. Cal. Dep’t of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (citation omitted); see

also Sato v. Orange Cty. Dep’t of Educ., 861 F.3d 923, 928 (9th Cir. 2017) (noting that state

agencies’ immunity in federal court from suits for private damages or injunctive relief “is well

established”) (citation omitted). Additionally, “damages claims against the individual defendants

in their official capacities are barred by the Eleventh Amendment.” Brown v. Or. Dep’t of Corr.,

751 F.3d 983, 989 (9th Cir. 2014).

Section 1983 permits suit against “persons,” which the U.S. Supreme Court has construed

to mean “state officials sued in their individual capacities[.]” Hafer v. Melo, 502 U.S. 21, 23

(1991). “State agencies . . . are not ‘persons’ within the meaning of § 1983, and are therefore not

amenable to suit under that statute.” Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004)

(citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70 (1989)).

Flores appears to acknowledge that the Court must dismiss his claims against ODOC, but

he argues that the Court should not dismiss the claims against OCE because OCE is not an

agency of the state but rather a corporation. (Pl.’s Resp. at 1.) Defendants, in reply, assert that

OCE is immune from suit because the legislature established OCE as a semi-independent state

agency. (Defs.’ Reply Pl.’s Resp. Defs.’ Mot. Dismiss (“Defs.’ Reply”) at 3, ECF No. 64.)

To determine whether an agency is immune from suit under the Eleventh Amendment,

courts must consider “whether a money judgment would be satisfied out of state funds, whether

the entity performs central governmental functions, whether the entity may sue or be sued,

whether the entity has the power to take property in its own name or only the name of the state,

and the corporate status of the entity.” Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th

Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982)). “To determine

these factors, the court looks to the way state law treats the entity.” Id. (citations omitted).

Applying these factors, the Court concludes that OCE is a state agency. It is not clear

from its statutory framework whether OCE would satisfy a money judgment from state funds or

whether OCE may take property in its own name. However, OCE performs central government

functions. See OR. REV. STAT. § 421.354(1) (“Oregon Corrections Enterprises may engage

eligible adults in custody in state corrections institutions in work or on-the-job training.”); id. §

421.354(3) (“Oregon Corrections Enterprises may make or enter into any agreement to assist

adults in custody in making a successful transition upon release by state correction

institutions.”). Further, state law does not establish OCE as a separate corporation but as a semi-

independent agency. Id. § 421.344 (establishing “Oregon Corrections Enterprises, a semi-

independent agency”).

Accordingly, the Court concludes that ODOC and OCE are immune from suit under the

Eleventh Amendment, and Section 1983 does not abrogate that immunity. The Court therefore

dismisses Flores’ Section 1983 claims against ODOC and OCE. See Eaton v. Two Rivers Corr.

Inst. Grievance Coordinator Enyon, No. 2:20-cv-01251-SI, 2020 WL 7364975, at *6 (D. Or.

Dec. 15, 2020) (concluding that the plaintiff’s Section 1983 “claim against ODOC is barred by

sovereign immunity”); Fletcher v. Idaho Dep’t of Corr., No. 1:18-cv-00267-BLW, 2019 WL

3646614, at *4 (D. Idaho Aug. 6, 2019) (“Defendants’ arguments about Eleventh Amendment

immunity apply with equal force to the claims for injunctive relief against state agencies[.]”),

aff’d sub nom. Fletcher v. Idaho Dep’t of Corr., No. 21-35128, 2023 WL 3018288 (9th Cir. Apr.

20, 2023); Rouse v. Wash. State Dep’t of Corr., No. 3:08-cv-05620-FDB, 2009 WL 1011623, at

*3 (W.D. Wash. Apr. 15, 2009) (dismissing claim against state agency as barred by the Eleventh

Amendment but permitting the claim for injunctive relief to go forward against the individual

defendant in his official capacity).

Further, the Eleventh Amendment bars any claim for damages against the individual

defendants in their official capacities, and the Court dismisses those claims. See Will, 491 U.S. at

71 (holding that officials acting in their official capacities are not “persons” subject to suit for

damages under Section 1983); cf. Rodriguez v. Cain, No. 2:20-cv-01581-AR, 2023 WL 2877020,

at *5 (D. Or. Mar. 7, 2023) (explaining that when the plaintiff does not specify whether he is

suing the defendants in their individual or official capacities “the court presumes that [the

plaintiff] names the defendants in their individual capacities; any other construction would be

illogical given that [the plaintiff] seeks relief in the form of money damages, which would be

precluded had [the plaintiff] filed an official-capacity suit”), findings and recommendation

adopted, 2023 WL 2869912 (D. Or. Apr. 10, 2023).

III. FAILURE TO STATE A CLAIM

Defendants argue that Flores has failed to state a Section 1983 claim because Flores does

not allege that the individual defendants acted under color of state law. (Defs.’ Mot. at 6.)

Additionally, Defendants argue that Flores has failed to state a Fourteenth Amendment equal

protection claim and has insufficiently pled violations of other state and federal laws. (Id. at 7-8.)

A. Color of State Law

Defendants argue that Flores’ Section 1983 claims against the individual defendants fail

to state a claim for relief because Flores does not allege that the individual defendants were

acting under color of state law. (Id. at 6.)

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by

the Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988)

(citations omitted). “The traditional definition of acting under color of state law requires that the

defendant in a § 1983 action have exercised power ‘possessed by virtue of state law and made

possible only because the wrongdoer is clothed with the authority of state law.’” Id. at 49 (citing

United States v. Classic, 313 U.S. 299, 326 (1941)). “To constitute state action, ‘the deprivation

must be caused by the exercise of some right or privilege created by the State . . . or by a person

for whom the State is responsible,’ and ‘the party charged with the deprivation must be a person

who may fairly be said to be a state actor.’” Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S.

922, 937 (1982)). “[S]tate employment is generally sufficient to render the defendant a state

actor.” Id. (quoting Lugar, 457 U.S. at 937).

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In his complaint, Flores states that Defendants acted “under the color of law (ORS 169,

421, & 423, OAR Chapter 291 . . . by and through their respective contracts[.]” (FAC at 1.)

Defendants appear to fault Flores for not including the word “state” in his averment that

Defendants acted “under the color of law” and for instead citing the state laws at the end of the

sentence. (Defs.’ Mot. at 6.) However, Defendants have not pointed the Court to any authority

requiring such a restrictive reading of a complaint. The Court concludes that the relevant inquiry

of Flores’ pro se complaint is not so exacting. See Hoffman, 26 F.4th at 1063 (explaining that

self-represented litigants’ “complaints are construed liberally”).

Defendants acknowledge that ODOC and OCE are state agencies. (Defs.’ Mot. at 5;

Defs.’ Reply at 2.) In addition, Flores has pled facts indicating that the individual defendants

were state employees—employed as the OCE General Manager, OCE People Programs and

Services Manager, OCE Administrator, ODOC Operations Captain at TRCI, and ODOC

Superintendent at TRCI—and thus are state actors. (FAC at 2.) Further, Flores includes facts

supporting an inference that Defendants exercised power pursuant to their positions of

employment. (See FAC at 3-9.) Nothing suggests that the individual defendants are private

parties or entities. Cf. Hall v. Unity Ctr. for Behav. Health, No. 3:23-cv-00639-HZ, 2023 WL

6319058, at *2 (D. Or. Sept. 28, 2023) (dismissing the defendant, a private company, because the

“[p]laintiff has not alleged any facts suggesting that [the defendant] acted under color of state

law”); Macak v. Spence, No. 3:19-cv-01818-SB, 2020 WL 4457817, at *2 (D. Or. May 26, 2020)

(dismissing the defendants “because Plaintiffs do not allege any facts to establish that [the

defendants] acted under the color of state law (i.e., as state actors)”), findings and

recommendation adopted, 2020 WL 4451044 (D. Or. July 31, 2020). The Court concludes that

Flores has adequately pled that Defendants were acting under color of state law and therefore

denies Defendants’ motion to dismiss Flores’ Section 1983 claims on this ground.

B. Fourteenth Amendment

Flores alleges that Defendants violated his right to equal protection under the Fourteenth

Amendment by treating AICs at TRCI differently than people at other “congregate living

facilit[ies].”2 (FAC at 7.) Defendants argue that the Court should dismiss Flores’ equal

protection claim because Flores is not a member of a suspect class. (Defs.’ Mot. at 7.) The Court

concludes that Flores fails to state an equal protection claim.

“To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of

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

or purpose to discriminate against the plaintiff based upon membership in a protected class[,]” or

that the plaintiff “has been intentionally treated differently from others similarly situated and that

there is no rational basis for the difference in treatment.” Barren v. Harrington, 152 F.3d 1193,

1194 (9th Cir. 1998) (intentional discrimination); Vill. of Willowbrook v. Olech, 528 U.S. 562,

564 (2000) (different treatment).

2 To the extent Flores asserts that his conditions of confinement violated the Fourteenth

Amendment, the Fourteenth Amendment provides the applicable standard for evaluating the

conditions of confinement for pretrial detainees while the Eighth Amendment provides the

applicable standard for evaluating the conditions of confinement for AICs who have already

been convicted. See Norbert v. City & Cnty. of S.F., 10 F.4th 918, 927-28 (9th Cir. 2021) (so

explaining). The Eighth Amendment applies to Flores’ conditions of confinement claim.

To the extent Flores alleges a violation of procedural or substantive due process or the

Privileges and Immunities Clause, Flores’ complaint “lacks a cognizable legal theory or

sufficient facts to support a cognizable legal theory to state a . . . claim.” Howe v. Cnty. of

Mendocino, No. 21-16665, 2022 WL 3952395, at *2 (9th Cir. Aug. 31, 2022) (so stating about a

due process claim) (simplified); see also Ellison v. Nevada, 299 F. App’x 730, 731 (9th Cir.

2008) (affirming dismissal “because [the AIC’s] allegations do not implicate ‘the right of the

newly arrived citizen to the same privileges and immunities enjoyed by other citizens of the

same State’” (quoting Saenz v. Roe, 526 U.S. 489, 502 (1999))).

“[N]either prisoners nor ‘persons convicted of crimes’ constitute a suspect class for equal

protection purposes.” United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011) (citations

omitted). Flores has not alleged membership in any other protected class. Thus, Flores has not

pled that Defendants acted with an intent to discriminate against him based upon membership in

a protected class.

Flores alleges in his complaint that he has “the right to equal protection under the law

against deadly pathogens, viruses and diseases” including “[t]he same protections as any

congregate living facility.” (FAC at 7.) However, Flores does not specify if or how Defendants

treated him differently than others residing in a congregate living facility.3 Further, Flores has

not alleged that Defendants intentionally treated him differently from others similarly situated

nor that there was no rational basis for any difference in treatment. For these reasons, the Court

dismisses Flores’ equal protection claim. See Okwu v. McKim, 682 F.3d 841, 846 (9th Cir. 2012)

(affirming dismissal of the plaintiff’s claim because the plaintiff “did not allege that any of the

defendants treated any similarly-situated individual differently”); Spencer v. Pulido-Esparza, No.

1:20-cv-01176-JLT-GSA-PC, 2023 WL 3342614, at *9 (E.D. Cal. May 10, 2023) (dismissing

equal protection claim where “there are no facts in the complaint that show discriminatory intent

on the part of defendants”), findings and recommendation adopted, 2023 WL 5155835 (E.D. Cal.

Aug. 10, 2023); Pers. v. Jones, No. 2:21-cv-1522-WBS-DMC-P, 2023 WL 1824548, at *5 (E.D.

Cal. Feb. 8, 2023) (“In order to state a § 1983 claim based on a violation of the Equal Protection

3 To the extent Flores asserts in his response that Defendants implemented safety

measures at long term care homes, retirement homes, treatment centers, and hospitals that

Defendants did not offer at TRCI (Pl.’s Resp. at 2), that information is not part of the current

pleading relevant to Defendants’ motion to dismiss and will only be considered should Flores

elect to include it in an amended complaint. See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194,

1197 n.1 (9th Cir. 1998) (“In determining the propriety of a Rule 12(b)(6) dismissal, a court may

not look beyond the complaint to a plaintiff’s moving papers, such as a memorandum in

opposition to a defendant’s motion to dismiss.”) (citation omitted).

Clause of the Fourteenth Amendment, a plaintiff must allege that defendants acted with

intentional discrimination against plaintiff, or against a class of inmates which included plaintiff,

and that such conduct did not relate to a legitimate penological purpose.”), findings and

recommendation adopted, 2023 WL 2655779 (E.D. Cal. Mar. 27, 2023).

C. Other Federal Laws

Flores alleges that Defendants violated the ADA, the Rehabilitation Act, and

42 U.S.C. Ch. 21 generally. (FAC at 8.) Defendants argue that Flores has failed to allege any act

of discrimination against him based on a disability. (Defs.’ Mot. at 8.) The Court agrees.

Title II of the ADA provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities, of a public entity, or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132. The term “disability” means “a physical or mental impairment that

substantially limits one or more major life activities of such individual;” “a record of such an

impairment;” or “being regarded as having such an impairment.” Id. § 12102(1). The phrase

“major life activities” includes “caring for oneself, performing manual tasks, seeing, hearing,

eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading,

concentrating, thinking, communicating, and working.” Id. § 12102(2). Flores has not pled

sufficient facts for the Court to evaluate whether he has a disabling condition that limits a major

life activity or satisfies the statutory definition of “disability.” Neither has he indicated how

Defendants excluded him from participation in or denied him the benefits of a particular service,

program, or activity, nor that Defendants excluded him or denied him benefits because of his

disability.4

4 To the extent Flores clarifies the basis of his disability and the services that Defendants

denied him in response to Defendants’ motion (see Pl.’ Resp. at 3), that information is not part of

“Section 504 of the Rehabilitation Act prohibits organizations that receive federal funds,

including health care providers, from discriminating against individuals with disabilities.” Bax v.

Drs. Med. Ctr. of Modesto, Inc., 52 F.4th 858, 866 (9th Cir. 2022) (citations omitted). “To

prevail on a Section 504 claim, a plaintiff must establish that (1) [the plaintiff] is an individual

with a disability; (2) [the plaintiff] is otherwise qualified to receive a certain benefit; (3) [the

plaintiff] was denied the benefits of a certain program solely by reason of [a] disability; and (4)

the program receives federal financial assistance.” Id. (simplified). Again, Flores has not

specified his disability and has not pled that Defendants denied him a benefit solely by reason of

his disability.

Similarly, Flores does not specify how Defendants violated 42 U.S.C. Chapter 21. See

Lauren v. Mont. State Univ., No. 2:17-cv-00062-BU-BMM-JCL, 2018 WL 6421732, at *6 (D.

Mont. July 30, 2018) (“To the extent [the plaintiff] seeks relief under 42 U.S.C., Chapter 21, he

fails to specify which particular statute in this chapter provides the basis of his claim.”), findings

and recommendation adopted, 2018 WL 6421729 (D. Mont. Dec. 6, 2018), aff’d, 821 F. App’x

850 (9th Cir. 2020).

For these reasons, the Court dismisses Flores’ ADA, Rehabilitation Act, and 42 U.S.C.

Ch. 21 claims. See Kononen v. City of Salem Hous. Auth., No. 6:21-cv-00179-MK, 2021 WL

5356973, at *2 (D. Or. Nov. 1, 2021) (“[T]he Complaint fails to contain sufficient allegations of

underlying facts to give fair notice and to enable Defendant to defend itself effectively against

Plaintiff’s discrimination claims under the . . . ADA, and Section 504.”), findings and

recommendation adopted, 2021 WL 5355927 (D. Or. Nov. 16, 2021).

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the current pleading relevant to Defendants’ motion to dismiss, and the Court will only consider

it should Flores elect to include it in an amended complaint. See Schneider, 151 F.3d at 1197 n.1.

D. State Law

Flores asserts state law claims against Defendants for violations of Chapters 659A and

654 of the Oregon Revised Statutes and Chapters 333, 410, and 437 of the Oregon

Administrative Rules. (FAC at 9.) Defendants argue for dismissal for failure to state a claim.

(Defs.’ Mot. at 8.) The Court agrees.

Oregon law prohibits employment discrimination on the basis of disability, but Flores has

not alleged sufficient facts for the Court to evaluate whether he “has a physical or mental

impairment that substantially limits one or more major life activities.” OR. REV. STAT.

§ 659A.104(1)(a). Neither has Flores asserted that he suffered an adverse employment action nor

that Defendants discriminated against him on the basis of his disability. Id. § 659A.112(1).

Flores also has not alleged that his employer was subject to the duty codified in Oregon

Revised Statute § 654.310, which applies to those “engaged in the construction, repairing,

alteration, removal or painting of any building, bridge, viaduct or other structure, or in the

erection or operation of any machinery, or in the manufacture, transmission and use of

electricity, or in the manufacture or use of any dangerous appliance or substance.” Neither has he

specified how Defendants violated the statute. See id. § 654.310 (requiring compliance with

Department of Consumer and Business Services rules, regulations, and orders).

Finally, Flores has not explained how Defendants violated Chapters 333, 410, and 437 of

the Oregon Administrative Rules, which relate to the Oregon Health Authority and the

Department of Consumer and Business Services’ Oregon Occupational Safety and Health

Division.

For these reasons, the Court dismisses Flores’ claims alleging that Defendants violated

Chapters 659A and 654 of the Oregon Revised Statutes and Chapters 333, 410, and 437 of the

Oregon Administrative Rules. See Maggio v. Or. Health & Sci. Univ., No. 3:23-cv-00116-JR,

2023 WL 6148938, at *3 (D. Or. June 1, 2023) (dismissing disability discrimination claim under

Oregon law because the “plaintiff neglects to allege facts establishing she is a qualified

individual with a disability”), findings and recommendation adopted, 2023 WL 6147196 (D. Or.

Sept. 20, 2023).

CONCLUSION

For the reasons stated, the Court GRANTS IN PART and DENIES IN PART

Defendants’ motion to dismiss (ECF No. 62), as follows:

• GRANTS WITHOUT LEAVE TO AMEND:

o Defendants’ motion to dismiss Flores’ Section 1983 claims against ODOC

and OCE; and

o Defendants’ motion to dismiss Flores’ Section 1983 claim for damages

against the individual defendants in their official capacities.

• GRANTS WITH LEAVE TO AMEND:

o Defendants’ motion to dismiss Flores’ class action allegations;

o Defendants’ motion to dismiss Flores’ Fourteenth Amendment equal

protection claim;

o Defendants’ motion to dismiss Flores’ claims for violation of the ADA,

the Rehabilitation Act, and 42 U.S.C. Ch. 21; and

o Defendants’ motion to dismiss Flores’ claims for violation of Chapters

659A and 654 of the Oregon Revised Statutes and Chapters 333, 410, and

437 of the Oregon Administrative Rules.

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° DENIES:

O Defendants’ motion to dismiss Flores’ Section 1983 claims for failure to

plead that the individual defendants acted under color of state law.

If Flores believes he can cure the pleading deficiencies discussed herein, he may file an

amended complaint within thirty (30) days of the date of this order. If Flores does not amend his

complaint, his Eighth Amendment claim and his state law negligence, gross negligence,

negligence per se, dereliction of duty, and intentional infliction of emotional distress claims for

monetary damages will proceed.

IT IS SO ORDERED.

DATED this 3rd day of November, 2023. T Kee

S7 Yee 7) eine]

HON. STACIE F. BECKERMAN

United States Magistrate Judge

PAGE 16 — OPINION AND ORDER