# Flores v. ODOC

> District Court, D. Oregon · November 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10396764

## Case

- **Court:** District Court, D. Oregon
- **Decided:** November 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10396764

## How later opinions describe it (automated extraction)

- explaining that self-represented litigants’ “complaints are construed liberally”
- 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))
- affirming dismissal of the plaintiff’s claim because the plaintiff “did not allege that any of the defendants treated any similarly-situated individual differently”

## Opinion text

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
///

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

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.
///
///
° 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10396764. Public record. Not legal advice.