“Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
How later courts described this case
- “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
- district court’s decision on whether to exercise supplemental jurisdiction over state claim is “purely discretionary”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TYLER BURNARD, MICHAEL BRITZIUS,
Plaintiffs, No. 6:25-cv-00364-MC
v. OPINION AND ORDER
OREGON STATE HOSPITAL, et al.,
Defendants.
_____________________________
MCSHANE, Judge:
Plaintiffs bring this 28 U.S.C. § 1983 action alleging that Defendants failed to protect
Plaintiffs as patients of the Oregon State Hospital (“OSH”). Plaintiff brings a Fourteenth
Amendment claim against Oregon State Hospital, Oregon Health Authority, Jerid Lee Lisher
Weinberg, and Delores Matteucci.1 Matteucci is the Superintended of the OSH. Weinerg is a
counselor at OSH.
Plaintiffs allege that Lisher groomed them for months. Lisher “shared extremely sexually
explicit information about himself and his husband[.]” Compl. ¶ 7. In early 2023, one Plaintiff
asked Lisher “How was your vacation?” Lisher “spent the next 30 to 40 minutes explaining
everything that occurred in Mexico in great detail discussing gay sex and illegal drug purchases,
secreting and smuggling.” Id. ¶ 9. A few days later, Lisher told that Plaintiff about “his interest
in being a gay porn star.” Id. ¶ 10. “As a result of this intimidating, sexual, unwanted
1 Plaintiffs also bring several claims under Oregon law.
communications and information from Lisher, Plaintiffs suffered extreme emotional distress.” Id.
¶ 12. Defendants move to dismiss Plaintiffs’ Fourteenth Amendment claim for failure to protect.
STANDARDS
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain
sufficient factual matter that “state[s] a claim to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual
allegations allow the court to infer the defendant’s liability based on the alleged conduct.
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than “the
mere possibility of misconduct.” Id. at 678.
When considering a motion to dismiss, the court must accept all allegations of material
fact as true and construe those facts in the light most favorable to the non-movant. Burgert v.
Lokelani Bernice Pauahi Bishop Tr., 200 F.3d 661, 663 (9th Cir. 2000). But the court is “not
bound to accept as true a legal conclusion couched as a factual allegation.” Twombly, 550 U.S. at
555. If the complaint is dismissed, leave to amend should be granted unless “the pleading could
not possibly be cured by the allegation of other facts.” Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995).
DISCUSSION
Defendants argue that Plaintiffs’ Fourteenth Amendment claims necessarily fail because
communications of a sexually explicit nature, absent any physical touching or contact, do not rise
to the level of a constitutional violation. Plaintiffs agree that the claim “do[es] not meet the
federal standard such as the verbal sexual abuse absent physical contact.” Resp. ¶ 14. Plaintiffs,
however, seek leave to amend. Plaintiffs’ entire argument, filed nearly one month after the time
to respond had passed, consists of:
A. Plaintiffs request leave to amend the Intentional Infliction of emotional distress
language to read in accordance with the pleading standard as follows:
“The verbal sexual abuse was undertaken for the purpose of inflicting severe
emotional distress.”
B. Plaintiffs maintain that the verbal sexual abuse conduct alone qualifies as “shocking
the conscious” [sic] under the Fourteenth Amendment, and seek confirmation on this
point from the Court, to save this federal claim.”
Resp. ¶ 2.
Plaintiffs provide no caselaw in support of their argument that verbal conduct alone, even of a
sexually explicit nature, qualifies as a constitutional violation.2 Regardless, the caselaw indicates that
amendment here would be futile. As the Ninth Circuit clarified:
Most cases that involve unwanted sexual contact or harassment by public officials have
been analyzed under the substantive due process right to be free from violations of bodily
integrity under the Fourteenth Amendment. Under the Fourteenth Amendment’s
substantive due process prong, we use the ‘shocks the conscience test.’ The threshold
question is whether the behavior of the governmental officer is so egregious, so
outrageous, that it may fairly be said to shock the contemporary conscience.
Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1162 (9th Cir. 2020) (cleaned up) (internal citations, quotations,
and footnote omitted).
Although Plaintiffs, as patients of OSH could qualify as vulnerable individuals, the Court was
unable to find any case, from any circuit, finding that verbal communications, absent at least some
physical contact, qualified as a constitutional violation. As noted, Plaintiffs did not point to any case
which would lend weight to their novel theory.
Vazquez, a female inmate in juvenile hall, alleged a guard attempted to groom her by using sexual
comments. Importantly, the guard there “touched her face and shoulders without her consent.” Id. The
guard also watched Vasquez as she showered on multiple occasions, told Vazquez he had a sexual dream
involving her and told Vazquez “to get close to him, like, to the point where he had opened his knees and
she was right in the middle of him, and he told her that he wanted his dream to come true.” Id. at 1158
(cleaned up).
2 Plaintiffs also do not bother responding to Defendants’ argument that they are entitled to Eleventh Amendment
immunity from Plaintiff’s state claims.
Even assuming that Lisher intended to cause Plaintiffs emotional distress, Plaintiffs allegations
are a far cry from conduct the Ninth Circuit has concluded rises to a Fourteenth Amendment violation.
The allegations, at best, establish that Lisher’s verbal comments made them quite uncomfortable. While
the Court certainly does not condone the comments, the comments on their own do not rise to a
constitutional claim for failure to protect. Additionally, as Plaintiffs apparently concede, no prior caselaw
exists that would have put Defendants on notice that sexually explicit comments, on their own, would
subject them to liability under the Fourteenth Amendment. For that reason, assuming Plaintiffs somehow
stated a claim, Defendants would still be entitled to qualified immunity. See Kisela v. Hughes, 584 U.S.
100, 104 (2018) (“Qualified immunity attaches when an official’s conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would have known.”) (internal
citation omitted).
For those reasons, Plaintiff’s Fourteenth Amendment claims are DISMISSED, with prejudice. At
this early stage, the Court declines to exercise supplemental jurisdiction and Plaintiffs’ state claims are
DISMISSED, without prejudice.3 28 U.S.C. 1367(c)(3); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S.
635, 639 (2009) (district court’s decision on whether to exercise supplemental jurisdiction over state
claim is “purely discretionary”).
CONCLUSION
Defendants’ Motions to Dismiss, ECF No. 12 and 13, are GRANTED. Plaintiff’s
Fourteenth Amendment claims are DISMISSED, with prejudice. Plaintiffs’ state claims are DISMISSED,
without prejudice.
IT IS SO ORDERED.
DATED this 3rd day of October, 2025.
_____/s/ Michael McShane______
Michael J. McShane
United States District Judge
3 As noted, Plaintiffs did not address Defendants’ arguments that Eleventh Amendment immunity bars Plaintiffs
from bringing their state claims in this federal forum.