Jenkins

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

DANIEL LOREN JENKINS,

Plaintiff,

Case No. 3:23-cv-01201-YY

v.

OPINION AND ORDER

NURSE ZAVALA, DOROTHY WETTLAUFER,

MS. CLARK, H. ROSSI, K. THOMPSON, J.

BUGHER, WARREN ROBERTS, JENNE

MCKIBBEN, MICHAEL DAY, and SHANNON

O’FALLON,

Defendants.

YOU, Magistrate Judge.

Pro se plaintiff Daniel Jenkins brings this action against Oregon Department of

Corrections (“ODOC”) employees Brandy Zafala, Dorothy Wettlaufer, Cindy Clark, Harry

Rossi, Kaycie Thompson, Warren Roberts, and Joe Bugher; Oregon Health Authority (“OHA”)

employees Jenne McKibben and Michael Day; and Oregon Department of Justice (“ODOJ”)

employee Shannon O’Fallon (collectively, “defendants”).1 Am. Compl. 9-10, ECF 17. In 2021,

Oregon hosted a lottery called Take Your Shot, Oregon! (“TYSO”) to encourage Oregonians to

1 Where the parties have spelled the names of any defendants differently, the court applies the

spellings used in defendants’ filings. Mot. Summ. J. 5-6, ECF 31.

receive the COVID-19 vaccine. McKibben Decl. ¶ 5, ECF 33. Entry was automatic for any

Oregon resident “whose vaccination was entered into [OHA’s] vaccine registry at any time prior

to the drawing deadline.” Id., Ex. 1 at 7. To be eligible for a prize, winners needed to have an

Oregon address and a phone number included in the registry, as winners were contacted by

phone. Id. ¶ 10.

Plaintiff, who was in the custody of ODOC at the Two Rivers Correctional Institute

(“TRCI”), asserts that he was denied entry into TYSO because he “observed blank entry fields

for his individual institutional address and institutional phone number” on his vaccination record.

Am. Compl. 5, ECF 17. Plaintiff claims this constituted a deprivation of his Fourteenth

Amendment rights to equal protection and due process, and brings this 42 U.S.C. § 1983 action

against defendants. Id. at 2. Defendants have filed a motion for summary judgment, ECF 31,

which is granted for the reasons stated below.

I. Legal Standard

A. Summary Judgment

Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant summary judgment

if the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” The party moving for summary judgment bears the

initial responsibility of informing the court of the basis for the motion and identifying portions of

the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate

the absence of a triable issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Once the moving party does so, the nonmoving party must “go beyond the pleadings” and

“designate ‘specific facts showing that there is a genuine issue for trial.’” Id. at 324 (citing Fed.

R. Civ. P. 56(e)).

In determining what facts are material, the court considers the underlying substantive law

regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Otherwise stated,

only disputes over facts that might affect the outcome of the suit preclude the entry

of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient

evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A

“scintilla of evidence” or “evidence that is merely colorable or not significantly probative” is

insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130,

1134 (9th Cir. 2000). The court “does not weigh the evidence or determine the truth of the

matter, but only determines whether there is a genuine issue for trial.” Balint v. Carson City,

Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). “Reasonable doubts as to the existence of material

factual issue are resolved against the moving parties and inferences are drawn in the light most

favorable to the non-moving party.” Addisu, 198 F.3d at 1134 (citation omitted).

B. 42 U.S.C. § 1983

42 U.S.C. § 1983 “is not itself a source of substantive rights, but merely provides a

method for vindicating federal rights elsewhere conferred.” Graham v. Connor, 490 U.S. 386,

393-94 (1989) (internal citation and quotation marks omitted). Section 1983 liability “arises only

upon a showing of personal participation by the defendant,” acting under color of state law, that

deprived the plaintiff of a constitutional or federal statutory right. Taylor v. List, 880 F.2d 1040,

1045 (9th Cir. 1989). “A person ‘subjects’ another to the deprivation of a constitutional right,

within the meaning of section 1983, if he does an affirmative act, participates in another’s

affirmative acts, or omits to perform an act which he is legally required to do that causes the

deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

Federal courts hold a pro se litigant’s pleadings to “less stringent standards than formal

pleadings drafted by lawyers.” Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir.

1987); see Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam) (a document

filed pro se “is to be liberally construed”; a plaintiff need only give the defendant fair notice of

the claim and the grounds on which it rests) (citation omitted). “However, a liberal interpretation

of a civil rights compliant may not supply essential elements of the claim that were not initially

pled.” Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982). In addition, pro se pleadings

may not receive the benefit of every conceivable doubt, but only to reasonable factual inferences

in the plaintiff's favor. McKinney v. De Bord, 507 F.2d 501, 504 (9th Cir. 1974).

II. Discussion

Defendants argue they are entitled to summary judgment because plaintiff cannot

establish an equal protection claim, a due process claim, and any personal participation by

defendants sufficient to support liability under §1983. Defendants also contend that they are

entitled to qualified immunity. Mot. Summ. J. 6, ECF 31.

In his response, plaintiff does not address all of defendants’ arguments; he responds only

to the equal protection claim and introduces a new breach of contract claim. See Resp. 5-11, ECF

60. Some courts have treated a party’s failure to respond to a motion as a concession on the

merits. Lykins v. Hohnbaum, No. 3:01-cv-00063-JO, 2002 WL 32783973, at *3 (D. Or. Feb. 22,

2002) (finding plaintiff conceded dismissal of a claim on motion for summary judgment by not

addressing it); Ward v. Nat'l Entm't Collectibles Ass'n, Inc., No. 2:11-cv-06358-MMM-CW,

2012 WL 12885073, at *10 (C.D. Cal. Oct. 29, 2012) (holding that by failing to oppose

defendants’ motion for summary judgment on damages, plaintiff abandoned the right to seek

such damages); Bolbol v. City of Daly City, 754 F. Supp. 2d 1095, 1115 (N.D. Cal. 2010)

(“[P]laintiff fails to address this issue in her opposition brief and apparently concedes that she

may not proceed on this claim. Accordingly, the court grants summary judgment in favor of

defendants as to this claim.”); Ankele v. Hambrick, 286 F. Supp. 2d 485, 496 (E.D. Pa. 2003)

(“Plaintiff makes no response to this argument, and thus has waived his opportunity to contest it.

Therefore, summary judgment is appropriate.”). Even so, to fully address the issues, the court

reviews each claim on its merits.

A. Equal Protection Claim

The Equal Protection Clause is a guarantee that “[n]o state shall . . . deny to any person

within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The

essence of that guarantee is that “all persons similarly situated should be treated alike.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyer v. Doe, 457 U.S. 202,

216 (1982)). To prevail on an equal protection claim under § 1983, the plaintiff must plead and

prove either “the defendants acted with an intent or purpose to discriminate against the plaintiff

based on membership in a protected class,” Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th

Cir. 2001) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)), or that the

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

no rational relationship for the difference in treatment.” Vill. of Willowbrook v. Olech, 528 U.S.

562, 564 (2000).

Plaintiff asserts a “class-of-one” equal protection claim, alleging that “approximately

1280 [adults in custody] housed at TRCI did participate in the contest while [plaintiff] was

excluded.” Resp. 9, ECF 60. To prevail on a “class-of-one” claim, a plaintiff must show that the

defendant (1) intentionally (2) treated the plaintiff differently than other similarly situated

individuals, (3) without a rational basis. Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1022 (9th

Cir. 2011). Here, plaintiff’s claim fails as he cannot establish any of the three required elements.

First, plaintiff has not shown that any of defendants’ actions or omissions were

intentional. After learning about TYSO from a newspaper article announcing the winner,

plaintiff alleges he met with ODOC defendants Zafala and Wettlaufer. Am. Compl. 5, ECF 17.

Plaintiff claims that, in that meeting, he was shown “ALERT IIS2 and [he] observed the blank

entry fields for his individual institutional address and institutional phone number.” Id.

Separately, plaintiff wrote to TRCI’s Public Information Officer to inquire why inmates were not

included in the lottery pool. Rossi Decl., Ex. 2 at 5, ECF 32. Defendant Thompson responded to

plaintiff, stating that “Department of Corrections Adults in Custody were entered into the lottery,

however none of them won.” Id. Not satisfied with this response, plaintiff alleges that he

continued his investigation by speaking with or sending communication to the other ODOC

defendants—Clark, Bugher, and Roberts. Am. Compl. 6, ECF 17. Plaintiff alleges that,

throughout his investigation, defendants “engaged in a campaign of denial, coverup and

obstruction in order to impede plaintiff’s investigation.” Id. at 9.

Yet nothing in the record shows that any of the defendants acted intentionally to

discriminate against plaintiff. His complaint history at ODOC reflects the many grievances he

filed against ODOC staff regarding TYSO. See Rossi Decl., Ex. 1 at 1, 4, ECF 32; Id., Ex. 2 at 2-

4, 7-8, 10, 21-23, 38-40, 45-47, ECF 32. The evidence also shows that each grievance was

reviewed and responded to by ODOC employees. Id., Ex. 2 at 1, 6, 9, 12, 16, 20, 25-26, 33, 37,

43-44. In their responses, ODOC employees explained to plaintiff that TYSO “is outside of

2 Alert IIS (Immunization Information System) is Oregon’s statewide immunization registry that

consolidates immunization information into one reliable source. McKibben Decl. ¶ 4, ECF 33.

ODOC jurisdiction,” (Id. at 6) and that phone numbers were not required to be entered in

ALERT ISS (Id. at 20, 37).

As for the OHA and ODOJ defendants, plaintiff alleges they “attempted to manufacture

the false premise that plaintiff’s exclusion [from TYSO] was based on a lack of a contact phone

number[.]” Am. Compl. 8, ECF 17. But like the allegations against ODOC defendants, plaintiff

offers no evidence that OHA and ODOJ defendants intentionally excluded him from the lottery

or that they fabricated an excuse for his exclusion. Instead, consistent with ODOC’s response to

plaintiff’s grievances, ODOJ likewise responded to plaintiff and explained that ODOC “was not

required to provide phone numbers when entering COVID-19 vaccination information [in]

ALERT ISS.” Rossi Decl., Ex. 2 at 41, ECF 32.

Second, plaintiff has not established that he was treated differently than other similarly

situated individuals. Plaintiff contends that “1,280 [adults in custody] housed at TRCI

participated in the lottery contest.” Am. Compl. 7, ECF 17. But plaintiff has presented no

evidence that other adults in custody were included in the lottery. Instead, plaintiff makes vague

and conclusory allegations that there is “highly relevant and damning evidence,” id., and that he

had provided defendants “with enough evidence to go forward with re-opening discovery.” Resp.

9, ECF 60. Without actual evidentiary support, these allegations are insufficient to show a

genuine dispute of material fact.

Lastly, plaintiff has not shown that the phone number requirement for TYSO entrants

lacks a rational basis. Defendants maintain that there was “a legitimate state interest in including

only individuals with phone numbers in the ALERT IIS data extract for the TYSO drawing.”

Mot. Summ. J. 8, ECF 31. “Individuals needed to have phone numbers to be included in the data

extract, because winners for the drawing were contacted by phone.” McKibben Decl. ¶ 10, ECF

33. Plaintiff offers no contrary argument suggesting that this rationale is arbitrary or unrelated to

a legitimate state interest. In sum, because plaintiff fails to establish any of the three elements for

a “class of one” claim, his equal protection claim fails as a matter of law.

B. Due Process Claim

To assert a violation of the Due Process Clause of the Fourteenth Amendment, a plaintiff

must demonstrate that (1) the plaintiff was deprived of a constitutionally protected liberty

or property interest, and (2) constitutionally insufficient procedural protections accompanied the

deprivation. Johnson v. Ryan, 55 F.4th 1167, 1179 (9th Cir. 2022). “To have a property interest

in a benefit, a person clearly must have more than an abstract need or desire for it. . . . [The

person] must, instead, have a legitimate claim of entitlement to it.” Id. at 1192. Property

interests, of course, are not created by the Constitution. Bd. of Regents v. Roth, 408 U.S. 564, 577

(1972). Rather, “they are created and their dimensions are defined by existing rules or

understandings that stem from an independent source such as state law – rules or understandings

that secure certain benefits and that support claims of entitlement to those benefits.” Id.; see also

Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005) (“[A] benefit is not a

protected entitlement if government officials may grant or deny it in their discretion.”).

Plaintiff asserts that defendants violated his due process rights by depriving him of the

“right to participate in the contest.” Am. Compl. 9, ECF 17. Defendants point to Mazzarino v.

Massachusetts State Lottery Comm'n, 616 F. Supp. 3d 118 (D. Mass. 2022), and Hatch v. Sharp,

919 F.2d 1266 (7th Cir. 1990), to argue that participating in a lottery is not a constitutionally

protected interest. Mot. Summ. J. 9, ECF 31. In Mazzarino, a civilly committed plaintiff claimed

he was denied the opportunity to participate in the state lottery open to vaccinated individuals

due to a rule that prohibited detainees from registering. 616 F. Supp. 3d at 130. The court

dismissed his due process claim, holding that the ability to enter a state-sponsored lottery is not a

fundamental right. Id. at 132. Similarly, in Hatch, an inmate alleged his due process rights were

violated when he was denied permission to participate in the state lottery via mail subscription.

919 F.2d at 1268. The Seventh Circuit found no liberty interest was involved, as the rules did not

require that inmates be allowed to play the lottery, leaving participation to the discretion of

prison officials. Id. at 1270.

Here, TYSO rules stated that there was “no guarantee that any person will be entered or

win a prize.” Skaro Decl., Ex. 1 at 15, ECF 34. Its Limitation of Liability stated:

The State of Oregon is not liable for losses, damages, or injuries

associated with a person’s participation in [TYSO] or failure to

win a prize or be accurately entered into any of the drawings.

Participation is voluntary and there is no guarantee that any person

will be entered or win a prize.

. . .

It is possible a person may be eligible but, through technical issue,

human error, or other reason, the person was not included in the

list of eligible entries provided to the Lottery. Neither the Lottery,

nor the Oregon Health Authority, nor any other state agency are

liable for such errors, and such person is not entitled to a prize or

any remedy.

Id. These terms, while not explicitly barring inmates from participation, effectively limit any

entitlement to participate or win. This aligns with Hatch and Mazzarino, where participation in

similar state lotteries was not guaranteed and, therefore, not a constitutionally protected liberty or

property interest.

Furthermore, even if plaintiff had a protected fundamental right to participate in TYSO,

he was afforded sufficient procedural protections. See Hudson v. Palmer, 468 U.S. 517, 534

(1984) (holding that “an unauthorized intentional deprivation of property by a state employee

does not constitute a violation of the procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful postdeprivation remedy for the loss” is available, such as

the prison grievance system or state tort process). ODOC had a prison grievance system that

plaintiff utilized on multiple occasions. From August 2021 to December 2022, plaintiff

submitted six grievances. See Rossi Decl., Ex. 2 at 2-4, 7-8, 10, 21-23, 38-40, 45-47, ECF 32.

Plaintiff appealed those grievances on four separate occasions. Id. at 13-15, 17-19, 27-32, 34-36.

Each grievance and appeal was responded to by ODOC and ODOJ personnel. Id. at 5-6, 9, 12,

16, 20, 25-26, 33, 37, 41, 43-44. The record, therefore, shows that the prison grievance process

afforded plaintiff multiple procedural protections to raise and address his concerns. Because

plaintiff was deprived of neither a constitutionally protected interest nor adequate procedural

protections, he fails to establish a genuine issue of material fact supporting a due process

violation.

C. Personal Involvement

To establish a cognizable claim under § 1983, a plaintiff must demonstrate causation by

showing that a particular defendant engaged in “an affirmative act, participat[ed] in another's

affirmative act, or omit[ted] to perform an act which he is legally required to do that causes the

deprivation of which complaint is made.” Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d

1175, 1183 (9th Cir. 2007). The inmate must “set forth specific facts as to each individual

defendant’s” causal role in the alleged constitutional deprivation. Leer v. Murphy, 844 F.2d 628,

634 (9th Cir. 1988). “Sweeping conclusory allegations will not suffice to prevent summary

judgment.” Id.

Defendants argue that plaintiff’s allegations “fall short of the kind of personal

involvement required for his equal protection and due process claims.” Mot. Summ. J. 10, ECF

31. Plaintiff claims that defendants Zafala and Wettlaufer showed him ALERT IIS on the

computer, where plaintiff observed that the phone number and address entries were blank. Am.

Compl. 5, ECF 17. His claims against defendants Thompson and Rossi arise from their responses

to plaintiff’s grievances concerning his exclusion from the lottery. Id. at 5-6. As to the remaining

ODOC defendants—Clark, Bugher, and Roberts—plaintiff claims he either spoke with them or

sent communications to them during his inquiry about his exclusion from the lottery. Id. at 6.

Regarding the OHA and ODOJ defendants—McKibben, Day, and O’Fallon—plaintiff alleges

they attempted to “manufacture the false premise that plaintiff’s exclusion was based on a lack of

a contact phone number,” while engaging in “a campaign of denial, coverup and obstruction” to

impede his investigation. Id. at 8-9.

Even assuming that participation in TYSO constituted a constitutional right, none of

these actions by defendants demonstrate personal involvement in the alleged deprivation of that

right. There is no evidence that the ODOC defendants had any role in conducting or

administering the lottery. The Oregon State Lottery promulgated the rules that governed the

TYSO drawing and the Oregon Immunization Program gathered the data for the lottery.

McKibben Decl. ¶¶ 7, 9, ECF 33. Moreover, plaintiff’s allegation that ODOC and OHA

employees “engaged in a campaign of denial, coverup, and obstruction” is without any

evidentiary support and is precisely the type of sweeping conclusory allegation that the Ninth

Circuit has held insufficient to prevent summary judgment. See Leer, 844 F.2d at 634.

D. Qualified Immunity

Notwithstanding plaintiff’s constitutional claims, defendants assert they are entitled to

qualified immunity. Mot. Summ. J. 11, ECF 31. “Qualified immunity ‘protects all but the plainly

incompetent or those who knowingly violate the law.’” Gordon v. County of Orange, 6 F.4th

961, 968 (9th Cir. 2021) (quoting White v. Pauly, 580 U.S. 73, 79 (2017)). “In § 1983 actions,

qualified immunity protects government officials from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” Sampson v. County of Los Angeles, 974 F.3d 1012, 1018

(9th Cir. 2020) (citations and internal quotation marks omitted). Qualified immunity generally

protects discretionary acts by officials. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). If a

plaintiff either fails to show the official’s conduct violated a constitutional right or that the right

was not clearly established, then the official is entitled to qualified immunity. Lacey v. Maricopa

Cnty., 649 F3d 1118, 1131 (9th Cir. 2011), on reh'g en banc, 693 F.3d 896 (9th Cir. 2012).

Here, plaintiff has not shown (1) that defendants’ conduct violated a constitutional right,

or (2) that the alleged right—to participate in a state lottery—is clearly established. Courts

considering similar claims have held that participation in a state lottery is not a fundamental or

constitutionally protected right. See Mazzarino, 616 F. Supp. 3d at 132; Hatch, 919 F.2d at 1270.

Accordingly, defendants are entitled to qualified immunity.

E. Breach of Contract Claim

A district court need not address allegations raised for the first time in response to a

motion for summary judgment if the plaintiff’s “pleadings did not provide sufficient notice of

those allegations.” Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 965 (9th Cir.2006).

In his response, plaintiff raises a contract claim for the first time, asserting that (1) TYSO

constituted a unilateral contract, in which the offer was made when the Governor publicly

announced the lottery on May 21, 2021, and (2) defendants breached this contract. Resp. 5-7, 10-

11, ECF 60. But such claims were not included in plaintiff’s original or amended complaint.

Furthermore, this court’s order from July 24, 2025, stated that “[i]if plaintiff wishes to seek leave

to file a second amended complaint, he shall file a motion for leave to do so within 21 days of

this order.” ECF 69. Plaintiff failed to seek leave within that timeline. Thus, the court need not

address the breach of contract issue.

ORDER

Plaintiff has not established viable claims for the deprivation of his Fourteenth

Amendment rights to equal protection or due process. Additionally, defendants are entitled to

qualified immunity. Therefore, defendants’ Motion for Summary Judgment (ECF 39) is granted

and this case is dismissed.

DATED January 2, 2026.

/s/ Youlee Yim You

Youlee Yim You

United States Magistrate Judge