Berman

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PRESTON BERMAN, Case No. 6:24-cv-01127-MTK

Plaintiff, OPINION AND ORDER

v.

PSYCHIATRIC SECURITY REVIEW

BOARD; ALISON BORT, in her official

capacity as Executive Director of the Oregon

Psychiatric Security Review Board,

Defendants.

KASUBHAI, United States District Judge:

Self-represented Plaintiff Preston Berman1 filed this action against Defendants

Psychiatric Security Review Board (“PSRB”) and Alison Bort, alleging violations of Title II of

the Americans with Disabilities Act (“ADA”) and Plaintiff’s right to Due Process under the

Fourteenth Amendment. Before the Court is Defendants’ Motion for Summary Judgment (ECF

No. 69),2 and Plaintiff’s Motion for Preliminary Injunction (ECF No. 50), Supplemental Brief

1 The Court uses they/them pronouns to refer to Plaintiff throughout this Opinion and Order

because those are the pronouns most recently used by Plaintiff in their opposition to Defendants’

motion.

2 Defendants title their motion as a “Motion to Dismiss Amended Complaint” but “move for

summary judgment dismissing all of Plaintiff’s claims for relief for failure to state a claim” on

summary judgment standards. Def. Mot. Dismiss Am. Compl. 1, 3. For that reason, the Court

construes the Defendants’ Motion, and refers to it, as a motion for summary judgment.

(ECF No. 67), and Response and Motion for Summary Judgment (ECF No. 70). For the

following reasons, Defendants’ motion is GRANTED and Plaintiff’s motion is DENIED.

BACKGROUND

Plaintiff Preston Berman (“Plaintiff”) is an individual who has been under the jurisdiction

of the Oregon PSRB since being found guilty except for insanity for Arson I, Burglary II, and

Reckless Burning in December 2010. Schneider Decl. III Ex. 1 (“Commit Order”) 2, ¶ 1, ECF

No. 60-1. Plaintiff has bipolar disorder and alleges that the crime underlying their commitment

was a suicide attempt involving fire. Am. Compl. ¶¶ 8, 12, ECF No. 61. Plaintiff alleges that

Defendants’ failure to discharge or conditionally release Plaintiff violates their due process rights

under § 1983 and discriminates against them based on disability under the ADA. Am. Compl. ¶¶

103, 108, 111. Plaintiff seeks declaratory relief, injunctive relief, and compensatory damages.

Am. Compl. 33-34. Plaintiff asks the Court to order their immediate discharge, or in the

alternative, mandate their conditional release with their family in Florida. Am. Compl. 34

The PSRB has placed Plaintiff on conditional release on two occasions since 2010,

revoking Plaintiff’s release on each occasion. Schneider Decl. II, Exs. 5-8, ECF No. 23-1.

Plaintiff has been segregated at Oregon State Hospital (“OSH”) since October 2021. Am. Compl.

¶¶ 35-36. At Plaintiff’s February 26, 2025, Revocation Hearing, they requested discharge from

the PSRB’s jurisdiction or in the alternative, conditional release. Commit Order 1.

Prior to the PSRB’s determination, Plaintiff filed a Motion for a Temporary Restraining

Order and Preliminary injunction, ECF No. 50. The Court denied Plaintiff’s Motion for a

Temporary Restraining Order but allowed for additional briefing on Plaintiff’s Motion for a

Preliminary Injunction. ECF No. 54.

In April 2025, The PSRB concluded that Plaintiff was a proper subject for conditional

release but ordered that Plaintiff remain committed to a state hospital because the supervision

and treatment necessary for their safe conditional release was unavailable. Commit Order at 7.

The Court granted Plaintiff leave to file an amended complaint. ECF No. 58. Plaintiff

experienced a mental health relapse near August 25, 2025, leading to their placement in a higher-

acuity unit in OSH. Not. Regarding Prior Mot. & Current Status 2, ECF No. 77. OSH has

recommended that Plaintiff return to a lower level of care. Id.

After reviewing the briefing and evidence presented relative to Plaintiff's Motion for a

Preliminary Injunction, the Court concluded that the case appeared ripe for a decision on the

merits and notified the parties to file supplemental briefing. See, e.g., Air Line Pilots Ass'n, Int'l

v. Alaska Airlines, Inc., 898 F.2d 1393, 1397 n.4 (9th Cir. 1990) (The court may “convert a

decision on a preliminary injunction into a final disposition of the merits by granting summary

judgment on the basis of the factual record available at the preliminary injunction stage”

provided it complies with the notice requirement of Rule 56.); Del. State Sportsmen’s Ass’n v.

Del. Dep’t Safety & Homeland Sec., 108 F.4th 194, 206 (3d Cir. 2024). The Court now considers

the full scope of the party’s briefing related to Plaintiff’s Motion for a Preliminary Injunction,

ECF No. 50, Plaintiff’s Supplemental Brief, ECF No. 67, and Defendants’ Motion for Summary

Judgment, ECF No. 69, as cross motions for summary judgment.

STANDARDS

Summary judgment is appropriate if the pleadings, depositions, answers to

interrogatories, affidavits, and admissions on file, if any, show “that there is no genuine dispute

as to any material fact and the [moving party] is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). Substantive law on an issue determines the materiality of a fact. T.W. Elec. Serv.,

Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is

such that a reasonable jury could return a verdict for the nonmoving party determines the

authenticity of the dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The moving party has the burden of establishing the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party shows the

absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings

and identify facts which show a genuine issue for trial. Id. at 324.

Special rules of construction apply when evaluating a summary judgment motion: (1) all

reasonable doubts as to the existence of genuine issues of material fact should be resolved

against the moving party; and (2) all inferences to be drawn from the underlying facts must be

viewed in the light most favorable to the nonmoving party. T.W. Elec., 809 F.2d at 630-31.

When parties file cross-motions for summary judgment, the court “evaluate[s] each

motion separately, giving the non-moving party in each instance the benefit of all reasonable

inferences.” A.C.L.U. of Nev. v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006)

(quotation marks and citation omitted); see also Pintos v. Pac. Creditors Ass’n, 605 F.3d 665,

674 (9th Cir. 2010) (“Cross-motions for summary judgment are evaluated separately under [the]

same standard.”). In evaluating the motions, “the court must consider each party’s evidence,

regardless under which motion the evidence is offered.” Las Vegas Sands, LLC v. Nehme, 632

F.3d 526, 532 (9th Cir. 2011). “Where the non-moving party bears the burden of proof at trial,

the moving party need only prove that there is an absence of evidence to support the non-moving

party’s case.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thereafter, the

non-moving party bears the burden of designating “specific facts demonstrating the existence of

genuine issues for trial.” Id. “This burden is not a light one.” Id. The Supreme Court has directed

that in such a situation, the non-moving party must do more than raise a “metaphysical doubt” as

to the material facts at issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986).

DISCUSSION

Plaintiff alleges that continued confinement and treatment at OSH violates their due

process rights and discriminates against them based on their disability under the ADA.

Defendants move for summary judgment primarily on procedural grounds, arguing (1) Plaintiff’s

claim for damages under the ADA arises from actions of the Defendants that are protected by

absolute immunity, (2) Plaintiff must bring their claims through a petition for the writ of habeas

corpus, and (3) Plaintiff fails to state a claim. Because the Court finds that Defendants are

entitled to absolute immunity and Plaintiff must bring their remaining claims through habeas

corpus, the Court does not reach the merits of Plaintiff’s claim.

I. Absolute Immunity

Defendants argue that Plaintiff’s damages claim is barred by absolute immunity. Plaintiff

responds that their damages claim arises under Title II of the ADA, and Title II abrogates state

sovereign immunity. But absolute, judicial immunity does not arise from the state sovereign

immunity that Title II may abrogate. Compare Forrester v. White, 484 U.S. 219, 225-26 (1988)

(discussing the roots of judicial immunity in English common law) and Praggastis v. Clackamas

County, 305 Or. 419, 426 (1988) (recognizing the evolution of judicial immunity in the common

law) with United States v. Georgia, 546 U.S. 151, 158-59 (2006) (holding that Title II abrogates

state sovereign immunity for conduct that “actually violates the Fourteenth Amendment”); see

also Phiffer v. Oregon, No. 10-1120, 2011 WL 7396602, at *5 (D. Or. Nov. 21, 2011) adopted

by 2012 WL 529948 (D. Or. Feb. 17, 2012).

Absolute immunity applies to claims brought under the ADA. See, e.g., Duvall v. County

of Kitsap, 260 F.3d 1124, 1133 (9th Cir. 2001) (finding judge absolutely immune from

reasonable accommodation claim under the ADA). The immunity reaches officials other than

judges who make decisions “functional[ly] comparab[le]” to those of judges because they

“‘exercise a discretionary judgment’ as a part of their function.” Antoine v. Byers & Anderson,

Inc., 508 U.S. 429, 435-36 (1993) (alteration in original) (quoting Imbler v. Pachtman, 424 U.S.

409, n.20 (1976)).

According to Defendants, Plaintiff’s entitlement to relief flows from Defendants’

decision to deny Plaintiff’s release from jurisdiction. The decision to issue Plaintiff’s

jurisdictional discharge, like a decision to “grant, deny, or revoke parole” is “functionally

comparable to tasks performed by judges.” See Swift v. California, 384 F.3d 1184, 1190 (9th Cir.

2004); see also Harmon v. State, 320 Or. App. 406, 425 (2022) (finding that the PSRB is entitled

to absolute immunity for its decision regarding whether to discharge an individual from its

jurisdiction). As a result, Defendants are absolutely immune from Plaintiff’s damages claim in so

far as it results from the decision to deny Plaintiff’s discharge.

Plaintiff also alleges that Defendants unnecessarily segregate them, deny them access to

less restrictive environments at OSH, limit their food storage, personal electronics, and basic

utilities, isolate them from digital communities and family. Am. Compl. ¶¶ 78, 80, 82, 84. These

actions may seem more administrative than judicial, and therefore not barred by immunity. See

Harmon, 320 Or. App. at 428 (holding that absolute immunity does not “sweep so broadly . . .

that all . . . acts by OSH in the assessment and treatment of those committed to its care and under

the jurisdiction of the PSRB are immunized”). But the Court finds no factual basis to conclude

that Defendants created the complained of conditions other than by denying Plaintiff’s discharge

and release. Plaintiff relies on their PSRB hearing record, but that record does not provide

involvement of Defendants outside of Defendant’s quasi-judicial role in conducting Plaintiff’s

hearings and considering discharge. See Berman Decl. IV, ECF No. 65.

Plaintiff believes the conditions at OSH are discriminatory because “[t]he only viable,

integrated setting supported by the treatment team [is] conditional release.” Pl. Suppl. Br. Resp.

Order & R. 56(f) Not. 22, ECF No. 67. In other words, Plaintiff claims that the conditions of

their confinement are discriminatory because they are entitled to discharge or conditional release

to Florida. See Berman Decl. III ¶ 5, ECF No. 51, Berman Decl. II ¶ 3, ECF No. 31. The

conditions are therefore alleged as a consequence of Defendants decision to deny that discharge

or release. Plaintiff’s damages claim is accordingly barred by absolute immunity.

II. Whether Plaintiff’s Claims Must Be Brought in Habeas

Defendants argue that Plaintiff’s claims must be brought through habeas corpus because

Plaintiff challenges the length or fact of their confinement. Plaintiff frames their claims as

“challenging systemic discrimination and procedural deficiencies that violate constitutional due

process rights, rather than solely contesting the fact or duration of confinement.” Pl. Reply

Opp’n Defs.’ Mot. Dismiss 2, ECF No. 70.

Where a person in custody pursuant to a state court judgment challenges “the fact or

duration of their confinement,” they must bring their claim via habeas corpus after first seeking

state remedies. Wilkinson v. Dotson, 544 U.S. 74, 79 (2005) (quoting Preiser v. Rodriguez, 411

U.S. 475, 489-90 (1975)); 28 U.S.C. § 2254(b). Habeas corpus is the exclusive means whether

the challenge directly seeks to invalidate the person’s confinement or indirectly seeks relief “that

necessarily implies the unlawfulness of the State’s custody.” Id. at 81. The doctrine applies to

patients in state hospitals. See, e.g., Huftile v. Miccio-Fonsecca, 410 F.3d 1136, 1139-40 (9th

Cir. 2005) (applying habeas requirements to an individual subject to a civil commitment order);

Duncan v. Walker, 533 U.S. 167, 176 (2001). ADA claims and § 1983 claims are equally subject

to this analysis. Bogovich v. Sandoval, 189 F.3d 999, 1004 (9th Cir. 1999).

Where a successful claim would not necessarily lead to the Plaintiff’s immediate or

speedier release, it is not confined to habeas. Wilkinson, 544 U.S. at 82. In Wilkinson, two

prisoners brought § 1983 claims against procedures used to determine their eligibility and

suitability for parole, seeking new hearings. Id. at 77, 82. Because success on their claims, would

lead, at most, to new review and consideration of their parole requests, their claims were not

confined to habeas and could proceed under § 1983. Id. at 82.

A plaintiff may attack the decision-making process of the board considering their parole

or release if the attack does not implicate the validity of their confinement. Bogovich, 189 F.3d at

1004. The Bogovich plaintiffs brought ADA claims against their parole board, arguing that

considering their history of substance abuse in parole decisions violated the ADA. Id. at 1001.

Because the plaintiffs’ claims, if successful, would only require the board to alter its

consideration of substance abuse as a parole factor in future decisions, they would not imply the

invalidity of the plaintiff’s continued confinement. Id. at 1003-04. As a result, the plaintiffs were

not required to bring habeas actions instead of their ADA claims. Id. at 1004.

A. Claims for Injunctive and Declaratory Relief

Plaintiff here, unlike the prisoners in Wilkinson, does not request a new hearing to

remedy an alleged procedural error. They instead ask the Court to order their “immediate

discharge” or conditional release and declare that Defendant PSRB’s decision to deny Plaintiff

conditional release violates the ADA. Pl. Mot. TRO & Prelim. Injunction 10, ECF No. 50.

Plaintiff’s claims are also distinguishable from the claims in Bogovich. Plaintiff’s

requested injunctive relief under the ADA is not future hearings in which Defendants must alter

the criteria to determine Plaintiff’s eligibility for discharge. Plaintiff instead asks the Court to

compel the PSRB to order their immediate discharge or to implement a conditional release plan

allowing for an integrated setting with their family in Florida. Am. Compl. 28, 33.

Though not directly invalidating Plaintiff’s GEI sentence, this relief would necessarily

imply that Plaintiff’s custody at OSH is unlawful. Plaintiff’s claims seeking discharge and

conditional release must therefore be brought under habeas corpus. Because Plaintiff seeks

discharge for their due process claim and parts of their ADA claims, Am. Compl. 34, those

claims must be brought in habeas. Plaintiff’s claim for declaratory relief that the PSRB’s

decision to deny their jurisdictional discharge violated the ADA would also necessarily imply

that their custody is unlawful; therefore, that claim must also be brought under habeas corpus.

B. Exhaustion

A person in the custody of a state must exhaust available state judicial remedies before a

federal court will hear their petition for the writ of habeas corpus. Picard v. Connor, 404 U.S.

270, 275 (1971). As a result, a person confined under state custody must “present the state courts

with the same claim he urges upon the federal courts.” Id. at 276. Because the exhaustion

doctrine aims to give the state courts a fair opportunity to hear that claim, the individual must use

the state’s appellate review process before bringing their claim in federal court. O’Sullivan v.

Boerckel, 526 U.S. 838, 845 (1999).

Defendants, incorporating their prior briefing, argue that Plaintiff has not exhausted their

remedies because Plaintiff did not utilize the administrative or appellate scheme of review for the

PSRB’s decision to deny discharge. See ORS §§ 161.348 (allowing for judicial review of a final

order of the PSRB in the Oregon Court of Appeals), 161.346 (setting forth hearing procedures).

Plaintiff’s amended complaint does not allege that Plaintiff has exhausted their remedies or

sought review in the Oregon Court of Appeals of the Defendants actions, and Plaintiff produces

no evidence to that effect. As a result, Plaintiff’s claims seeking immediate discharge and

declaratory relief are dismissed without prejudice.

III. Plaintiff’s Arguments

Pursuant to its Order, ECF No. 66, the Court construes Plaintiff’s Motion for a

Preliminary Injunction, ECF No. 50, Plaintiff’s Supplemental Brief, ECF No. 67, and Plaintiff’s

summary judgment motion raised in its Response to Defendants’ Motion, ECF No. 70, as a

cross-motion for summary judgment. Because the Court grants summary judgment for

Defendants on Plaintiff’s due process claim and ADA claim on procedural grounds, the Court

does not reach Plaintiff’s cross-motion, which is based on the merits.

CONCLUSION

For the reasons discussed above, Defendants’ Motion (ECF No. 69) is GRANTED.

Plaintiff’s Motions (ECF Nos. 50, 67, 70) are DENIED. This case is dismissed without

prejudice.3

DATED this 3rd day of November 2025.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (he/him)

United States District Judge

3 See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (affirming summary

judgment and dismissal without prejudice of § 1983 claims that should have been brought

through habeas).