Khimich v. Oregon Health & Science University

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

NATALYA V. KHIMICH, Case No.: 3:23-cv-01239-YY

Plaintiff,

v.

ORDER

OREGON HEALTH & SCIENCE UNIVERSITY

and DOES 1-50,

Defendants.

Adrienne Nelson, District Judge

United States Magistrate Judge Youlee Yim You issued a Findings and Recommendation

("F&R") in this case on June 3, 2024 in which she recommended granting defendant's motion to dismiss.

Plaintiff timely filed objections to the F&R. The matter is now before this Court pursuant to 28 U.S.C. §

636(b)(1)(B) and Federal Rule of Civil Procedure 72(b).

A district court judge may "accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If any party files objections to a

magistrate judge's proposed findings and recommendations, "the court shall make a de novo determination

of those portions of the report." Id. No standard of review is prescribed for the portions of the report for

which no objections are filed, and no review is required in the absence of objections. Thomas v. Arn, 474

U.S. 140, 152-54 (1985). A district court judge is not, however, precluded from sua sponte review of other

portions of the report, under a de novo standard or otherwise. Id. at 154. The Advisory Committee notes

to Federal Rule of Civil Procedure 72(b) recommend that, when no objection is filed, the recommendations

be reviewed for "clear error on the face of the record." Fed. R. Civ. P. 72(b) advisory committee's note to

1983 amendment.

Plaintiff Natalya V. Khimich brought this action against defendants Oregon Health &

Science University ("OHSU") and Does 1-50 (the "Doe defendants"), in their official and individual

capacities, alleging a failure to accommodate religious beliefs and religious discrimination in violation of

Title VII, 42 U.S.C. § 2000e-2, against OHSU and violation of constitutionally protected freedom of

religion pursuant to 42 U.S.C. § 1983 against the Doe defendants. Plaintiff, a registered nurse who was

employed by OHSU in a pre-surgical unit, alleges that when Oregon made COVID-19 vaccinations

mandatory for healthcare workers in late 2021, OHSU denied her vaccine exemption request, placed her on

unpaid leave, and ultimately terminated her employment. Am. Compl., ECF [12], ¶¶ 1-2, 12-28, 33-34.

Plaintiff alleges that the Doe defendants are members of OHSU's Vaccine Exemption Review Committee

("VERC") and that they "did not assert that OHSU could not accommodate her sincerely held religious

beliefs due to undue hardship[,]" but rather "deemed several religious beliefs Plaintiffs [sic] had asserted to

be unworthy of accommodation," violating her right to free exercise of religion. Id. ¶¶ 3-4, 29.

Defendants moved to dismiss plaintiff's 42 U.S.C. § 1983 claim against the Doe defendants

on the basis of qualified immunity. Mot. to Dismiss, ECF [8]. Judge You found that plaintiff failed to

establish that the Doe defendants violated a clearly established right and that qualified immunity therefore

barred plaintiff's 42 U.S.C. § 1983 claim against the Doe defendants. Am. F&R, ECF [19], at 13. Assessing

plaintiff's claims for damages and injunctive relief, Judge You found that although qualified immunity only

bars claims for damages, it was not apparent from the complaint that the Doe defendants had any authority

to respond to the injunctive relief. Id. Accordingly, Judge You recommended that to the extent plaintiff

seeks declaratory and injunctive relief, those claims be dismissed without prejudice, while the damages

claims should be dismissed with prejudice. Id. at 14.1

Plaintiff first objects to the standard of review Judge You employed. While generally

agreeing with the F&R's statement of the legal standard for a motion to dismiss, plaintiff argues that it "does

not go far enough" because under Federal Rule of Civil Procedure 8.2(a)(2), plaintiff need only provide "a

short and plain statement of the claim showing that the pleader is entitled to relief." Pl. Objs., ECF [21], at

1 The motion to dismiss was filed before the amended complaint. Defendant consented to the amendment and, because

the changes were minor, did not move to amend its existing arguments. Notice, ECF [13], at 2. Judge You construed

the motion to dismiss as a renewed motion to dismiss the amended complaint. F&R 2 n.1. No party objected, and

this Court does the same.

2. Upon review, the Court finds that Judge You correctly stated the legal standard for a motion to dismiss

as promulgated by Ashcroft v. Iqbal, 556 U.S. 662 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S.

544 (2007), which interpreted the pleading requirements cited by plaintiff.

Plaintiff argues that "it is not always appropriate for courts to resolve qualified immunity cases

dealing with constitutional issues." Pl. Objs. 3. Relatedly, plaintiff suggests that Judge You held plaintiff

to a higher pleading standard than Iqbal and Twombly when she found that plaintiff did not show that the

Doe defendants violated a clearly established right. Plaintiff asserts that she is not required to prove

anything and is only required to put forth allegations. Id. 6-7.

A defendant is permitted to raise qualified immunity as an affirmative defense in a motion

to dismiss for failure to state a claim. See, e.g., O'Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016). If

raised, dismissal is appropriate if the court can determine, on the face of the complaint, that qualified

immunity applies. Id. (quoting Groten v. California, 251 F.3d 844, 851 (9th Cir.2001)). Plaintiff bears the

burden of showing whether there was a clearly established right. Sorrels v. McKee, 290 F.3d 965, 969 (9th

Cir. 2002). Courts should "resolv[e] immunity questions at the earliest possible stage in litigation." Hunter

v. Bryant, 502 U.S. 224, 227 (1991). Defendants having raised the defense of qualified immunity, Judge

You properly considered whether the allegations in the first amended complaint plausibly stated a claim

and whether that claim asserted a violation of a clearly established right.

Finally, plaintiff argues that the F&R erred because clearly established law at the time of

plaintiff's termination "protected Plaintiff's religious beliefs and no reasonable official in the Doe

Defendants' position would have believed that their conduct was lawful." Pl. Objs. 7. More specifically,

she argues that the F&R erroneously narrowed the protected right and that there is a "long-recognized,

constitutionally protected right at issue here that a government official cannot force a religious plaintiff to

violate their sincerely held religious [sic] by 'participating' in abortion." Id. at 8. Plaintiff accuses Judge

You of "purposefully" narrowing the protected right "so as to reach the result that the Magistrate Judge

wants – absolution of Defendants." Id. at 8.

Judge You does no such thing. In her well-reasoned and thorough F&R, Judge You

carefully considers each case cited by plaintiff in support of her argument that existing law is clearly

established for qualified immunity purposes. "For a constitutional right to be clearly established, its

contours 'must be sufficiently clear that a reasonable official would understand that what he is doing violates

that right.'" Hope v. Pelzer, 536 U.S. 730, 739 (2002) (quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)). "In other words, existing law must have placed the [un]constitutionality of the officer's conduct

‘beyond debate.'" Polanco v. Diaz, 76 F.4th 918, 930 (9th Cir. 2023) (alteration in original) (quoting

District of Columbia v. Wesby, 583 U.S. 48, 63 (2018)), cert. denied, 144 S. Ct. 2519 (2024), and cert.

denied, 144 S. Ct. 2520 (2024). A law is clearly established if it is "settled law," meaning "it is dictated by

controlling authority or a robust consensus of cases of persuasive authority[.]" Wesby, 583 U.S. at 589

(internal citations and quotation marks omitted).

In her objections, plaintiff cites many of the same cases she cited in her responsive briefing

and which were addressed in the F&R to support her argument that the law recognizes a right to abstain

from "participating" in abortion. Pl. Objs. 7. Plaintiff argues that the acknowledgement of religious

opposition to abortion procedures established in Roe v. Wade, 410 U.S. 113 (1973) (overruled by Dobbs v.

Jackson Women’s Health Org., 597 U.S. 215 (2022)) and Doe v. Bolton, 410 U.S. 179 (1983), should be

extended to a much broader constitutional right than that defined in the cases cited. For law to be settled

such that it defines a clearly established right, however, it must be "dictated by controlling authority or a

robust consensus of cases of persuasive authority[.]" Wesby, 583 U.S. at 589 (internal citations and

quotation marks omitted). Plaintiff has not met this burden. For the same reason, plaintiff's arguments

regarding cases analyzing the Religious Freedom Restoration Act ("RFRA") and compelled speech are

unavailing. As Judge You explained, the issues presented are "not novel;" on at least five other occasions

judges in this district have found that plaintiffs did not provide precedent showing that the same Doe

defendants would not have been on notice that their conduct violated a clearly established right and

dismissed claims on the basis of qualified immunity. Am. F&R 11; see Trusov v. Or. Health & Sci. Univ.,

No. 3:23-cv-77-SI, 2023 WL 6147251, at *9-10 (D. Or. Sep. 20, 2023); Mathisen v. Or. Health & Sci.

Univ., No. 3:22-cv-1250-SI, 2023 WL 6147099, at *9 (D. Or. Sept. 20, 2023); Jimenez-Mendez v. Or.

Health & Sci. Univ., No. 3:23-cv-01190-IM, 2024 WL 326598, at *7 (D. Or. Jan. 29, 2024); Hancock v.

Or. Health & Sci. Univ., No. 3:22-cv-01254-AN, 2024 WL 493715, at *6 (D. Or. Feb. 8, 2024); Babiy v.

Or. Health & Sci. Univ., No. 3:23-cv-01562-HZ, 2024 WL 1770485, at *7 (D. Or. Apr. 22, 2024).

For the foregoing reasons, the Court ADOPTS Judge You's Amended Findings and

Recommendation, ECF [19]. Defendants’ Motion to Dismiss, ECF [8], is GRANTED. Plaintiff's claim for

damages against the Doe defendants is dismissed with prejudice. To the extent that plaintiff seeks

declaratory and injunctive relief in the context of her 42 U.S.C. § 1983 claim against the Doe defendants,

that claim is dismissed without prejudice.

IT IS SO ORDERED.

DATED this 24th day of September, 2024.

. LY. A, 0 coe 5 “Vhson

Adrienne Nelson

United States District Judge