Bong

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

JILL BONG, Case No. 6:23-cv-00417-MTK

Plaintiff, OPINION AND ORDER

v.

KATE BROWN; RACHEL BANKS; STEVE

WOODS; REX FULLER; CLINT

THOMPSON; JOHN BOLING; CHARLIE

SAWYER; REBEKAH SAWYER; VALERIE

ANDERSON; HOLLY HILL; BOB

SCONCE; UNKNOWN LEGAL COUNSEL;

OREGON EMPLOYMENT DEPARTMENT;

and OREGON SCHOOL BOARDS

ASSOCIATION,

Defendants.

KASUBHAI, United States District Judge:

Self-represented Plaintiff Jill Bong brings 23 claims arising out of her termination after

she objected to signing a form to receive a religious exception from a COVID-19 vaccine

mandate. Third Am. Compl. (“TAC”), ECF No. 297. Before the Court are Defendant Oregon

School Board Association’s Motion to Dismiss, ECF No. 304; the Days Creek Defendants’

Motion to Dismiss, ECF No. 305; Defendant Bob Sconce’s Motion to Dismiss, ECF No. 307;

and the State Defendants’ Motion to Dismiss, ECF No. 308. For the reasons below, Defendants’

motions are granted in part and denied in part.

BACKGROUND

Plaintiff Jill Bong is a Chinese woman who has “sincerely held spiritual beliefs

influenced by Southeast Asian traditions, including Taoism, Chinese mysticism, and elements of

multiple world religions. Plaintiff’s beliefs are not affiliated with any organized religion, but

include a conscientious objection to participating in or appearing to endorse what she views as

spiritually harmful or deceptive acts.” TAC ¶ 87. Plaintiff worked as a math tutor for Douglas

County School District 15 (“DCSD 15”) beginning in January of 2016. Id. ¶ 19.

On August 19, 2021, former Oregon Governor (and here, Defendant) Kate Brown

announced that all school employees were required to receive a COVID-19 vaccine by October

18, 2021, or six weeks after FDA approval. Id. ¶ 36. The Oregon Education Association

(“OEA”), a teachers’ labor union, released a statement in support of vaccines as a “proven public

health mitigation strateg[y].” Id. ¶ 39. Defendant Oregon School Board Association (“OSBA”)

issued a public letter “urg[ing] all school board members to get vaccinated,” and Defendant

Woods later endorsed that position, too. Id. ¶¶ 40-41.

On August 25, 2021, the Oregon Health Authority (“OHA”) issued Or. Admin. R. 333-

019-1030 (PH 39-2021, repealed June 30, 2023 by PH 31-2023) (“OAR 333-019-1030” or

“Vaccine Rule”), requiring all school staff “to be vaccinated against COVID-19 or request a

medical or religious exception.” PH 39-2021, at 3. “Religious exception means that an individual

has a sincerely held religious belief that prevents the individual from receiving a COVID-19

vaccination.” Id. at 4. Particularly relevant here is the Rule’s requirement that:

A religious exception must be corroborated by a document, on a form prescribed

by the Oregon Health Authority, signed by the individual stating that the individual

is requesting an exception from the COVID-19 vaccination requirement on the

basis of a sincerely held religious belief and including a statement describing the

way in which the vaccination requirement conflicts with the religious observance,

practice, or belief of the individual.

Id. at 5 (“the Form Rule”). The form referenced there, OHA Form 3871, titled “COVID-19

Vaccine Religious Exception Request Form,” is at the center of Plaintiff’s controversy. By its

terms, the Form Rule requires anyone seeking a religious exception to the Vaccine Rule to (1)

sign “a form prescribed by the Oregon Health Authority”; (2) “stat[e] that the individual is

requesting an exception from the [Vaccine Rule] on the basis of a sincerely held religious

belief”; and (3) “includ[e] a statement describing the way in which the vaccination requirement

conflicts with the religious observance, practice, or belief of the individual.” Id.

The top of Form 3871 stated: “I am requesting an exception from the COVID-19

vaccination on the basis of a sincerely held religious belief.” Pl.’s Mot. Judicial Notice 1, ECF

No. 76-3.1 The form asked the individual for their name, date of birth, phone number, employer,

and job title, and provided a box for them to check indicating that “[r]eceiving the COVID-19

vaccination conflicts with [their] religious observances, practices or beliefs as described below.”

Id. The form then asked the individual to “describe [their] religious belief and how it affects

[their] ability to receive a COVID-19 vaccination,” and “certify the above information to be true

and accurate” with a signature and date. Id.

Plaintiff states that her “beliefs include opposition to mandatory COVID-19 mitigation

measures such as masking and vaccination, which Plaintiff believes are driven by malevolent

spiritual forces.” TAC ¶ 87. Plaintiff also “believes that signing [OHA] Form 3871 — without

1 Plaintiff previously moved for judicial notice of several documents related to her case. Pl.’s Mot.

Judicial Notice, ECF No. 76. The Court denied that motion and advised Plaintiff “that she may

seek admission of these documents into evidence at the appropriate stage of litigation.” Order,

ECF No. 103. Now that Plaintiff’s claims are more clearly stated, the Court finds that Exhibit C to

that Motion, OHA Form 3871, is incorporated by reference into Plaintiff’s TAC and appropriate

for consideration at this stage. See U.S. v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (“Even if a

document is not attached to a complaint, it may be incorporated by reference into a complaint if

the plaintiff refers extensively to the document or the document forms the basis of the plaintiff’s

claim.”).

modification or a notation of ‘under duress’ — would constitute spiritual consent to those

forces.” Id. Plaintiff believes that “the only way to avoid spiritual harm” and comply with the

School’s mandate was to “sign[] the form with alterations or a duress notation.” Id.

On September 11, 2021, Plaintiff submitted a “Declination Letter” objecting to OHA

Form 3871 and “explain[ing] that submitting an OHA-approved form would violate [her]

beliefs.” Id. ¶ 51. Plaintiff also discussed her objections to the Vaccine Rule with coworkers. Id.

¶ 55. Plaintiff alleges that “Woods directed Plaintiff to stop discussing the issue,” and another

school administrator instructed Plaintiff to end a similar conversation. Id. ¶ 56.

On October 5, 2021, Plaintiff met with Defendants Woods and Hill to discuss her

exemption request. Id. ¶ 59. Woods asked Plaintiff to sign OHA Form 3871. Id. ¶ 60. Plaintiff

declined and said that she would submit a written religious statement instead. Id. “Woods and

Hill agreed, instructing her to submit it by October 14, or face ineligibility for employment after

October 18.” Id. ¶ 60.

On October 14, 2021, Plaintiff submitted a signed personal religious exemption

statement. Id. ¶ 62. That day, in a meeting where Defendant Sconce was also present, Defendants

Woods and Hill insisted that Plaintiff sign OHA Form 3871 without modification. Id. ¶¶ 65, 69.

“Plaintiff reiterated that doing so would violate her beliefs and offered alternatives, including

signing under duress.” Id. ¶ 70. Sconce and Hill rejected that alternative. Id. ¶ 71.

On October 18, 2021, Plaintiff submitted OHA Form 3871 with “under duress” written in

the signature line. Id. ¶ 74. Woods rejected the form. Id. Woods and Hill met with Plaintiff and

presented her with a blank copy of the form. Id. ¶ 76. Plaintiff refused to sign her name in the

space provided, and Woods issued a termination notice effective October 19, 2021. Id. ¶ 77.

Plaintiff alleges that “[she] was denied an exemption despite submitting a written

religious statement, while others were permitted to alter or omit sections of the official form

without consequence.” Id. ¶ 45. “Other staff submitted partial or modified forms—one unsigned

(Reuben Stratford), another with crossed-out sections (Ruth-Ann Crabtree)—yet neither was

disciplined. Both were white, Christian, and American-born. Plaintiff, by contrast, is a Chinese

woman of minority religious belief.” Id. ¶¶ 81-82.

Plaintiff alleges that this process and the steps taken thereafter violated her rights under

the U.S. Constitution and federal and state law. She filed her original Complaint on March 22,

2023. ECF No. 1. On October 30, 2023, the Court granted Defendants’ motions to dismiss

Plaintiff’s First Amended Complaint (“FAC”). Findings and Recommendation (“F&R”), ECF

No. 139, adopted by Order, ECF No. 166. With respect to the claims dismissed without

prejudice, the Court explained the FAC’s deficiencies and granted Plaintiff leave to file a second

amended complaint that “conforms with the F&R and this Order and . . . clearly links factual

allegations with the surviving individual claims and . . . is free of needlessly repetitive material,

legal conclusions, and irrelevant factual allegations.” Order 3. The Court also noted that

Plaintiff’s FAC violated Fed. R. Civ. P. 8(a) because it was “200 pages long excluding

attachments and contain[ed] over 1000 paragraphs, many of which appear to be irrelevant

statements and legal conclusions.” F&R 6.

On July 14, 2024, Plaintiff filed her Second Amended Complaint (“SAC”). ECF No. 199.

The Court dismissed Plaintiff’s SAC for failure to comply with Rule 8 and allowed her another

attempt to allege her claims. ECF No. 296. Plaintiff then filed the instant TAC and Defendants

again moved to dismiss all claims against them.

STANDARDS

I. Federal Rule of Civil Procedure 8

Under Fed. R. Civ. P. 8, a complaint must contain a “short and plain statement of the

claim showing that the pleader is entitled to relief,” and “[e]ach allegation must be simple,

concise, and direct.” Fed. R. Civ. P. 8(a), (d). While a self-represented plaintiff’s complaint is

construed liberally, a plaintiff must still allege a minimum factual and legal basis for each claim

sufficient to give a defendant fair notice of what the claims are and the grounds upon which they

rest. Brazil v. U.S. Dep’t of Navy, 66 F.3d 193, 199 (9th Cir. 1995). To this end, a complaint

must be logically organized and clearly specify each claim, so that the defendant would have “no

difficulty in responding to the claims[.]” Hearns v. San Bernardino Police Dep’t, 530 F.3d 1124,

1131-32 (9th Cir. 2008).

II. Federal Rule of Civil Procedure 12(b)(6)

A motion to dismiss for failure to state a claim may be granted only when there is no

cognizable legal theory to support the claim or when the complaint lacks sufficient factual

allegations to state a facially plausible claim for relief. Los Angeles Lakers, Inc. v. Fed. Ins. Co.,

869 F.3d 795, 800 (9th Cir. 2017). In evaluating the sufficiency of a complaint’s factual

allegations, the court must accept as true all well-pleaded material facts and construe them in the

light most favorable to the non-moving party. Id. To be entitled to a presumption of truth,

allegations in a complaint “may not simply recite the elements of a cause of action, but must

contain sufficient allegations of underlying facts to give fair notice and to enable the opposing

party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All

reasonable inferences must be drawn in favor of the plaintiff. Los Angeles Lakers, 869 F.3d at

800. The court need not, however, credit the plaintiff’s legal conclusions that are couched as

factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

Self-represented pleadings are held to a less stringent standard than those drafted by

lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many

circumstances, instructs the self-represented litigant regarding deficiencies in the complaint and

grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). “Although a

[self-represented] litigant . . . may be entitled to great leeway when the court construes his

pleadings, those pleadings nonetheless must meet some minimum threshold in providing a

defendant with notice of what it is that it allegedly did wrong.” See Brazil v. U.S. Dep't of Navy,

66 F.3d 193, 199 (9th Cir. 1995). A self-represented plaintiff’s claims may be dismissed with

prejudice only where it appears beyond doubt the plaintiff can prove no set of facts that would

entitle them to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).

DISCUSSION

I. Non-Parties to this Case

As an initial matter, though Plaintiff purports to allege claims against the State of Oregon,

OHA, DCSD 15, and Douglas ESD, none of those entities have been named in the case caption

or properly served. They are not parties to this case.

The Court has alerted Plaintiff of this problem several times and previously denied

multiple motions for default against those entities, advising Plaintiff that “[a]n individual or

entity is a party to this lawsuit only if they have been named in the case caption and properly

served.” ECF No. 132 (denying Plaintiff’s Motion for Entry of Default against the State, OHA,

and DCSD 15 because they are not parties to this case); ECF No. 318 (same, against the State,

OHA, and Douglas ESD); ECF No. 333 (same, against the State and OHA). The Court discussed

this issue at length with Plaintiff during oral argument on October 25, 2023, and advised Plaintiff

that naming an individual in their official capacity does not make the entity that employs that

individual a defendant to the case. ECF No. 158, at 20-35. The Court also told Plaintiff she could

remedy any perceived deficiencies: “If you think that there’s somebody who should be named as

a defendant who is not in the caption, then . . . there’s a process by which you can request

amendment to . . . the complaint.” ECF No. 158, at 29. Plaintiff has taken advantage of multiple

opportunities to amend her complaint but still has not taken the necessary steps to bring claims

against the State of Oregon, OHA, DCSD 15, and Douglas ESD.

Plaintiff argues, as she has before, that the entities are defendants because she brought

official-capacity suits against their officers or employees under Kentucky v. Graham, 473 U.S.

159, 166 (1985). But that case held that official capacity suits are “to be treated as a suit against

the entity” for the purposes of damages claims. 473 U.S. at 166 (emphasis added). Contrary to

Plaintiff’s suggestion, that case did not hold that naming an individual in their official capacity

automatically names as a defendant the entity that employs that individual. Rather, the case is

treated as a suit against the entity because the entity would be financially responsible for

damages arising therefrom, even if not technically a party. See id.

Accordingly, the Court again holds that “[a]n individual or entity is a party to this lawsuit

only if they have been named in the case caption and properly served.” ECF No. 132.

The caption of Plaintiff’s TAC references the State, OHA, DCSD 15, and Douglas ESD

only to describe the official positions of Defendants Brown, Banks, Woods, and Hill. TAC 1.

Plaintiff has not provided proof of service for any of those parties. The TAC lists OHA, DCSD

15, and Douglas ESD under the heading of “PARTIES” and states that the “State of Oregon is

named as a party for claims involving its agencies and officials.” TAC ¶¶ 4-5, 9, 12. Those

attempts do not cure the deficiencies long noted by the Court. All claims against those entities

are dismissed without prejudice.

II. Claims for Declaratory/Injunctive Relief

Plaintiff seeks declaratory and injunctive relief for many of her claims but does not allege

facts that allow the Court to infer that she is likely to be subjected to the same harms. Those

claims must be dismissed for lack of subject matter jurisdiction because Plaintiff lacks standing.

See, e.g., Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 865 (9th Cir. 2017) (former

employee had no standing for injunctive or declaratory relief against former employer’s practices

because there was no evidence that employee would work for employer again); Melendres v.

Arpaio, 695 F.3d 990, 997 (9th Cir. 2012) (“To have standing to assert a claim for prospective

injunctive relief, a plaintiff must demonstrate ‘that he is realistically threatened by a repetition of

[the violation].’”) (citation omitted). Plaintiff’s claims for declaratory and injunctive relief are

dismissed with prejudice.

III. Defendants’ Motions to Dismiss Under Rules 8 and 12(e)

Defendant Sconce and the Days Creek Defendants move to dismiss Plaintiff’s TAC for

failure to comply with Rule 8 and the Court’s Order that the TAC be concise and direct, free of

legal conclusions, and limited to 50 pages.

Plaintiff’s TAC is 48 pages long and attaches 13 exhibits amounting to 163 additional

pages—211 pages in total. TAC ¶ 18, TAC Exs. A-M. But Plaintiff’s TAC also outlines each

claim, the relevant Defendants, relief sought, and specific paragraphs meant to support that

claim. Although the exhibits exceed the 50-page limit, Plaintiff’s allegations are stated in the

TAC such that the exhibits need not be referenced to determine whether Plaintiff has stated a

claim for relief. The TAC gives Defendants fair notice of Plaintiff’s claims and their grounds.

Defendants’ Rule 8 motions are denied.

The Days Creek Defendants also move for an order requiring a more definite statement

from Plaintiff under Rule 12(e). That rule allows a party to “move for a more definite statement

of a pleading . . . which is so vague or ambiguous that the party cannot reasonably prepare a

response.” Fed. R. Civ. P. 12(e). The rule requires the movant to “point out the defects

complained of and the details desired.” Id. The Days Creek Defendants fail to do that, and the

Court otherwise finds Plaintiff’s TAC is not so vague and ambiguous as to require further

clarification. This motion is denied.

IV. Defendant OSBA’s Motion to Dismiss Under Rule 12(b)(6)

Plaintiff’s claims against Defendant OSBA stem from allegations that OSBA attorneys

provided other Defendants with improper legal advice about the COVID-19 mitigation

requirements. OSBA moves to dismiss all claims against it for failure to state a claim.

A. Claims 1 & 11: Conspiracy & Neglect to Prevent, 42 U.S.C. §§ 1983, 1986

Defendant OSBA moves to dismiss Plaintiff’s claims under 42 U.S.C. §§ 1983 and 1986

for conspiracy against rights and neglect to prevent, noting that the Court already dismissed

those claims with prejudice because OSBA is not a state actor.2 OSBA is correct that these

claims were dismissed with prejudice and thus may not be relitigated here. See F&R 7-9.

2 Plaintiff clarifies that she did not intend to assert these claims against OSBA again. Notice of

Errata, ECF No. 301 (clarifying that Count 11 for neglect to prevent “is not asserted against OSBA

as an institutional or official-capacity defendant”); Notice of Errata, ECF No. 302 (clarifying that

Count 1 for conspiracy against rights does not seek declaratory and injunctive relief against

OSBA); Notice of Errata, ECF No. 303 (clarifying that Count 1 for conspiracy against rights “does

not seek damages—or any other form of relief—against OSBA”).

B. Claim 17: Tortious Interference with Existing Contract

Defendant OSBA argues that Plaintiff fails to allege facts to show that OSBA

intentionally interfered with her employment contract for an improper purpose or by improper

means. This claim was previously dismissed for failure to state a claim based on similar

allegations. F&R 9 (“Providing legal advice . . . is a legitimate purpose, and does not support a

claim for tortious interference with contract.”).

In her TAC, Plaintiff again takes issue with the allegedly unlawful results of Defendant

OSBA’s advice and does not sufficiently allege any improper means or purpose. See, e.g.,

Wampler v. Palmerton, 250 Or. 65, 73 (1968) (noting that an interference is only actionable if it

is “a knowing and not an inadvertent of [sic] incidental invasion of plaintiff’s contractual

interests”). Plaintiff’s TAC does nothing to remedy this fatal deficiency. This claim is dismissed

with prejudice.

C. Claim 20: RICO, 18 U.S.C. § 1962

Defendant OSBA also moves to dismiss Plaintiff’s RICO claim, contending that

providing legal advice to a client does not constitute extortion or involuntary servitude. This

claim was previously dismissed on those grounds. F&R 9-10; see also Baumer v. Pachl, 8 F.3d

1341, 1344 (9th Cir. 1993) (holding that an attorney who provided services was not liable under

RICO because he did not direct or control the alleged enterprise). Plaintiff’s new allegations do

nothing to remedy this deficiency. This claim is dismissed with prejudice.

Defendant OSBA’s Motion to Dismiss is granted and all claims against OSBA are

dismissed with prejudice.

V. Days Creek Defendants’ Motion to Dismiss Under Rule 12(b)(6)

The Days Creek Defendants also move to dismiss the TAC for failure to state a claim.

A. Claims 1 & 10: Conspiracy Claims

Plaintiff alleges conspiracy claims against the Days Creek Defendants under 42 U.S.C.

§§ 1983, 1985(3). These claims were previously dismissed because “it is simply not plausible,

and Plaintiff has provided no factual details to suggest, that . . . [Defendants] came to an

agreement regarding a common objective to deprive Plaintiff of her rights.” F&R 15-17.

Plaintiff’s TAC does not remedy that finding, so Claims 1 and 10 are dismissed with prejudice.

B. Claim 2: Equal Protection

Plaintiff alleges a violation of her Equal Protection rights by Defendants Woods and Hill,

who move to dismiss under the two-year statute of limitations. Defendants state that this claim

“is alleged on these facts for the first time in” the TAC, filed in May of 2025, and thus cannot

challenge conduct that occurred in 2021. Days Creek Defs.’ Mot. Dismiss 6-7.

Plaintiff correctly notes that Fed. R. Civ. P. 15(b) allows the amendments in her TAC to

“relate[] back to the date of the original pleading” because “the amendment asserts a claim or

defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set

out—in the original pleading.” Plaintiff’s original Complaint was filed in March of 2023 and

challenged conduct that occurred less than two years earlier, beginning around August of 2021.

Accordingly, Plaintiff’s Equal Protection claim is not time-barred. Defendant’s motion is denied

as to that claim.

C. Claims 3 & 17: Tortious Interference

Plaintiff also alleges claims for tortious interference with contract and prospective

economic relations against Defendants Woods and Hill. To establish an intentional interference

with economic relations claim, Plaintiff must allege “(1) the existence of a professional or

business relationship (which could include, e.g., a contract or a prospective economic

advantage); (2) intentional interference with that relationship or advantage; (3) by a third party;

(4) accomplished through improper means or for an improper purpose; (5) a causal effect

between the interference and the harm to the relationship or prospective advantage; and (6)

damages.” Allen v. Hall, 328 Or. 276, 281 (1999) (noting that these elements apply to claims

regarding both existing “business and contractual relationships and prospects”). Here, Plaintiff

fails to plausibly allege that Defendants “interfered for an improper purpose rather than for a

legitimate one,” such as enforcing a lawful vaccine mandate and accommodation process.

Straube v. Larson, 287 Or. 357, 361 (1979) (quotation marks and citation omitted). Accordingly,

Plaintiff’s third and seventeenth claims are DISMISSED with prejudice.

D. Claim 7: First Amendment Free Exercise

Plaintiff also alleges a Free Exercise claim under the First Amendment. The Court notes

at the outset that, besides Plaintiff’s request to not sign OHA Form 3871, Plaintiff alleges that

Defendants accommodated “all other religious, medical, and administrative exemptions” to the

Vaccine Rule. TAC ¶ 126. Plaintiff also alleges that Defendants granted two individual

exceptions from the Form Rule to “white, Christian, and American-born” individuals. Id. ¶¶ 81-

82. As noted above, the Form Rule specifically required the religious exception to be “on a form

prescribed by the Oregon Health Authority, signed by the individual stating that the individual is

requesting an exception from the COVID-19 vaccination requirement on the basis of a sincerely

held religious belief . . . .” OAR 333-019-1030. Plaintiff eventually submitted the form “with

‘under duress’ written in the signature line,” which Defendant Woods rejected. Id. ¶ 74.

Ultimately, Plaintiff challenges Defendants’ requirement under the Form Rule that

Plaintiff sign a designated OHA form affirming and describing her religious conflict with the

COVID-19 vaccine in order to be exempted from the mandate.3 Defendants do not meaningfully

grapple with this theory and instead argue against Plaintiff’s challenges to the Vaccine Rule.

The Free Exercise Clause of the First Amendment, which applies to the states through the

Fourteenth Amendment, provides that “Congress shall make no law . . . prohibiting the exercise

of religion.” U.S. Const. amend. I; Fulton v. City of Philadelphia, 593 U.S. 522, 532 (2021). “To

avoid strict scrutiny, laws that burden religious exercise must be both neutral and generally

applicable.” Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ., 82

F.4th 664, 685 (9th Cir. 2023) (citation omitted).

The Ninth Circuit has outlined “three bedrock requirements of the Free Exercise Clause

that the government may not transgress, absent a showing that satisfies strict scrutiny.”

Fellowship of Christian Athletes, 82 F.4th at 686. In other words, a law is not neutral or

generally applicable unless it meets all three bedrock requirements of the Free Exercise Clause.

Id. First, a law is not neutral nor generally applicable if the law “invites the government to

consider the particular reasons for a person’s conduct by providing a mechanism for

individualized exemptions.” Id. at 687 (quoting Fulton, 593 U.S. at 1877). Second, a law is

neither neutral nor generally applicable “whenever [the government] treat[s] any comparable

secular activity more favorably than religious exercise.” Id. at 688 (quotation marks and citation

omitted). Third, a law is not neutral nor generally applicable if the government acts “in a manner

‘hostile to ... religious beliefs’ or inconsistent with the Free Exercise Clause’s bar on even ‘subtle

3 At times, Plaintiff appears to take issue with the vaccine mandate as a “compelled medical

procedure,” but as Plaintiff acknowledges, Defendants readily granted exemptions to that mandate,

and Plaintiff does not allege that she was denied any such exemption. TAC ¶ 44. To the extent

Plaintiff challenges the Vaccine Rule itself, rather than the Form Rule, the Court reiterates its

previous finding that the Vaccine Rule satisfies rational basis review, and Plaintiff’s claims on this

theory are dismissed with prejudice. F&R 18-19.

departures from neutrality.’” Id. at 686 (quoting Masterpiece Cakeshop, Ltd. v. Colo. Civ. Rts.

Comm'n, 584 U.S. 617, 638 (2018); Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S.

520, 543 (1993)). To evaluate the third bedrock requirement, courts must “examine ‘the

historical background of the decision under challenge, the specific series of events leading to the

enactment or official policy in question, and the legislative or administrative history, including

contemporaneous statements made by members of the decisionmaking body.’” Id. at 689

(quoting Masterpiece Cakeshop, 584 U.S. at 639).

“The failure to meet any of these requirements subjects a governmental regulation to

review under strict scrutiny.” Id. at 686. Under strict scrutiny, a law “must be justified by a

compelling governmental interest and must be narrowly tailored to advance that interest.”

Church of Lukumi Babalu Aye, Inc., 508 U.S. at 531–32.

Here, it is unclear based on Plaintiff’s allegations whether the Form Rule was neutral and

generally applicable, and the Court reserves ruling on that question. Plaintiff alleges that two

individuals were granted exemptions from the Form Rule, but it is unclear if those were religious

or secular in nature or whether those individuals were similarly situated to Plaintiff. Nonetheless,

taken in the light most favorable to Plaintiff, those facts allow the Court to infer that Defendants’

enforcement of the Form Rule may not have been neutral and generally applicable and may have

violated her Free Exercise rights. Defendants’ motion is denied as to this claim.

E. Claim 8: Freedom from Association

Plaintiff alleges that the “[Vaccine] Rule and its implementation compelled Plaintiff to

associate with government-endorsed political and ideological messaging.” TAC ¶ 136.

Specifically, “OHA Form 3871 required employees to describe ‘the way in which the

vaccination requirement conflicts with the religious observance, practice, or belief of the

individual.’” Id. at ¶ 140.

This claim fails because OHA Form 3871 did not compel any protected expression or

association with any organization; it merely asked Plaintiff to affirm the minimum legal

requirement to obtain a religious exception. See, e.g., Crowe v. Oregon State Bar, 112 F.4th

1218, 1233 (9th Cir. 2024) (discussing cases and noting that the right to freedom from

association protects compelled association with an organization “only . . . to the extent that they

are expressive”). This claim is dismissed with prejudice.

F. Claim 11: Neglect to Prevent

Plaintiff’s neglect to prevent claim under 42 U.S.C. § 1986 is dismissed with prejudice

because she has not alleged a predicate violation of § 1985. Mollnow v. Carlton, 716 F.2d 627

(9th Cir. 1983); see F&R 9 n.2.

G. Claim 12: Title VII Discrimination

The Days Creek Defendants also argue that Plaintiff’s Title VII claims are time-barred.

They rely on an EEOC right-to-sue letter issued on June 2, 2022 that gave Plaintiff 90 days to

file. Plaintiff filed her Complaint on March 22, 2023. Plaintiff provides the right-to-sue letter

related to the correct Charge No. 551-2022-01064, issued on February 2, 2023, which allowed 90

days to file. Compare Mersereau Decl. Ex. 2, ECF No. 306, with Bong Decl. Ex. 2, ECF No.

229. Plaintiff timely raised her Title VII claims following the relevant EEOC right-to-sue letter.

The Days Creek Defendants do not otherwise engage with the merits of Plaintiff’s Title

VII claim. Their motion is therefore denied as to this claim.

H. Claim 15: First Amendment Retaliation

Plaintiff alleges that Defendant Woods violated the First Amendment when she “directed

Plaintiff to stop discussing [the Vaccine Rule] with coworkers” and then terminated her two

months later. TAC ¶ 183.

A claim for First Amendment retaliation looks to “whether the plaintiff’s protected

speech was a substantial or motivating factor in the adverse employment action,” and “whether

the state would have taken the adverse employment action even absent the protected speech.”

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Here, Plaintiff does not allege sufficient

facts that allow the Court to infer that Defendants terminated her because of her discussions of

the Vaccine Rule. Rather, Plaintiff’s allegations indicate that she was terminated for failure to

comply with the Form Rule. This claim is dismissed with prejudice.

I. Claim 18: Procedural Due Process

Plaintiff also alleges a claim for procedural due process and contends the hearings

surrounding her termination were deficient. Plaintiff’s “due process claim depends on her having

had a property right in continued employment.” Walker v. City of Berkeley, 951 F.2d 182, 183

(9th Cir. 1991). “A state law which limits the grounds upon which an employee may be

discharged, such as conditioning dismissal on a finding of cause, creates a reasonable

expectation of continued employment, and thus a protected property right.” Brady v. Gebbie, 859

F.2d 1543, 1548 (9th Cir. 1988). The type and extent of the property interest created depends on

the individual’s rights under the employment contract and state law. Armstrong v. Reynolds, 22

F.4th 1058, 1066-70 (9th Cir. 2022) (discussing cases and holding that plaintiff “had a property

interest in continued employment without discipline or discharge for properly exercising her

rights as a whistleblower”).

Here, Plaintiff alleges that she had a one-year probationary contract governed by Or. Rev.

Stat. § (“ORS”) 342.835. That statute allows the school board to “discharge or remove any

probationary teacher . . . at any time during a probationary period for any cause considered in

good faith sufficient by the board.” ORS 342.835(1) (emphasis added). Accordingly, Plaintiff’s

property interest only existed to the extent that the school board did not have “any cause

considered in good faith sufficient” to terminate her. See Brady, 859 F.2d at 1548 (“Where state

employees serve at the will of the appointing authority, however, there is no such reasonable

expectation of continued employment, and thus no property right.”). Plaintiff’s allegations

establish that the board did, in fact, find sufficient cause to terminate her and thus she had no

remaining property interest in her continued employment. This claim is dismissed with prejudice.

J. Claim 20: RICO, 18 U.S.C. § 1962

Plaintiff’s Claim 20 is dismissed with prejudice as to the Days Creek Defendants for the

same reasons discussed with regard to Defendant OSBA: Plaintiff fails to allege an underlying

crime amounting to extortion or involuntary servitude.

K. Claim 22: Substantive Due Process

Claim 22 alleges a violation of substantive due process based on Plaintiff’s right to refuse

medical treatment. But Plaintiff was not required to undergo any medical treatment. Plaintiff

does not allege that she was denied an exception to the Vaccine Rule; rather, she alleges that she

was denied an exception to the Form Rule. The Form Rule did not require any medical treatment

and thus did not implicate Plaintiff’s Fourteenth Amendment interest in refusing medical

treatment. See Cruzan v. Director, Missouri Dep’t of Health, 497 U.S. 261, 279 (1990). This

claim is dismissed with prejudice.

Accordingly, the Days Creek Defendants’ Motion to Dismiss is granted in part and

denied in part. All claims except Claims 2, 7, and 12, are dismissed with prejudice as to the Days

Creek Defendants.

VI. Defendant Sconce’s Motion to Dismiss Under Rule 12(b)(6)

Defendant Sconce also moves to dismiss all claims against him—Claims 1, 7, 8, 10, 17,

and 20—for failure to state a claim under Rule 12(b)(6).

Plaintiff’s allegations about Defendant Sconce are too sparse to state a claim against him.

She alleges that Defendant Sconce, a Uniserv Consultant for the OEA, “participated in an

October 14, 2021 meeting regarding Plaintiff’s religious exemption and employment status” and

“acted jointly with Superintendent Woods and HR Director Hill to enforce [the Vaccine Rule] in

a manner that violated Plaintiff’s constitutional rights.” TAC ¶¶ 17, 98. Plaintiff states that she is

not a union member, but that Defendant “Hill later testified that Sconce was acting as Plaintiff’s

representative.” Id. ¶ 94. Plaintiff does not allege that Sconce employed her or had any authority

over the decision to terminate her. Rather, Plaintiff generally alleges that “Sconce’s actions,

conducted in coordination with school officials, set in motion the chain of events that resulted in

her termination.” Id. ¶ 100. These allegations are not enough.

Plaintiff has had four attempts to allege a claim against Defendant Sconce and still

nothing suggests he acted unlawfully. Defendant Sconce’s Motion to Dismiss under Rule

12(b)(6) is granted and Plaintiff’s claims against Sconce are dismissed with prejudice.

VII. State Defendants’ Motion to Dismiss Under Rule 12(b)(6)

Finally, the State Defendants also move to dismiss, arguing that Plaintiff fails to state a

claim and that qualified immunity bars the claims against them.

Plaintiff fails to state a cognizable claim for relief against the State Defendants for the

same reasons identified as to Defendant OSBA and the Days Creek Defendants in Claims 1, 8,

20, and 22. Those claims are dismissed with prejudice as to the State Defendants, too.

A. Claim 7: First Amendment Free Exercise

In Claim 7, Plaintiff alleges that the State Defendants violated her right to free exercise of

her religion by creating and enforcing the Vaccine Rule. But the State Defendants did not apply

the rules to Plaintiff and were not responsible for the allegedly discriminatory application of the

Form Rule. To the extent Plaintiff challenges the rules themselves, the State Defendants are

entitled to legislative immunity because the creation of such rules involves the formulation of

policy that applies to the general public. See Kaahumanu v. Cnty. of Maui, 315 F.3d 1215, 1220

(9th Cir. 2003). This claim is dismissed with prejudice as to the State Defendants.

B. Claim 23: Substantive Due Process

Claim 23 alleges that Defendant Banks violated Plaintiff’s due process right to vocation

in promulgating the Vaccine Rule. As with Claim 7, this claim is barred by legislative immunity

because Banks’ promulgation of the rules was a legislative function. Additionally, Plaintiff fails

to allege “that the state’s actions are clearly arbitrary and unreasonable, having no substantial

relation to the public health, safety, morals or general welfare.” Slidewaters LLC v. Washington

State Dep’t of Lab. & Indus., 4 F.4th 747, 758 (9th Cir. 2021), cert denied, 142 S. Ct. 779

(2021). Claim 23 is dismissed with prejudice.

C. Qualified Immunity

Further, even if Plaintiff had stated a claim against the State Defendants, her claims

arising out of the State’s COVID-19 policies are barred by qualified immunity, because her

rights were not ‘“clearly established’ at the time of the challenged conduct.” Ashcroft v. al-Kidd,

563 U.S. 731, 735 (2011); see, e.g., Johnson v. Kotek, No. 22-35624, 2024 WL 747022, at *3

(9th Cir. Feb. 23, 2024) (mem.) (noting that even if Jacobson were distinguishable, “the validity

of these vaccine mandates . . . is debatable,” so defendants are entitled to qualified immunity in

enforcing them); Armstrong v. Newsom, No. 21-55060, 2021 WL 6101260, at *1 (9th Cir. Dec.

21, 2021) (mem.) (California governor’s “stay-at-home order did not violate clearly established

law” because “[i]n March 2020, Jacobson v. Massachusetts was the law on the authority of

governments in public health emergencies, and the order . . . had a real or substantial relation to

protecting public health and was not ‘beyond all question, a plain, palpable invasion of rights

secured by the fundamental law.’”).

Accordingly, the State Defendants’ Motion to Dismiss is granted and all claims against

them are dismissed with prejudice.

CONCLUSION

For the reasons discussed above, Plaintiff’s claims against non-parties State of Oregon,

OHA, DCSD 15, and Douglas ESD are DISMISSED without prejudice. Plaintiff’s claims for

declaratory and injunctive relief are DISMISSED with prejudice.

Defendant OSBA’s Motion to Dismiss (ECF No. 304) is GRANTED and Plaintiff’s

claims against OSBA are DISMISSED with prejudice.

The Days Creek Defendants’ Motion to Dismiss (ECF No. 305) under Rule 8 is

DENIED. The Days Creek Defendants’ Motion to Dismiss under Rule 12(b)(6) is GRANTED in

part and DENIED in part. Plaintiff’s claims against the Days Creek Defendants are DISMISSED

with prejudice except for Claims 2, 7, and 12.

Defendant Sconce’s Motion to Dismiss (ECF No. 307) under Rule 8 is DENIED.

Defendant Sconce’s Motion to Dismiss under Rule 12(b)(6) is GRANTED and Plaintiff’s claims

against Sconce are DISMISSED with prejudice.

The State Defendants’ Motion to Dismiss (ECF No. 308) is GRANTED and Plaintiff’s

claims against the State Defendants are DISMISSED with prejudice.

DATED this 18th day of March 2026.

s/ Mustafa T. Kasubhai

MUSTAFA T. KASUBHAI (he/him)

United States District Judge