Ross

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

JAMES ARTHUR ROSS,

Plaintiff,

Case No. 2:18-cv-00046-YY

v.

FINDINGS AND

JOHN MYRICK, et al., RECOMMENDATIONS

Defendants.

YOU, Magistrate Judge:

James Arthur Ross, a pro se inmate housed at Two Rivers Correctional Institution in

Umatilla, Oregon, brings this action against former Superintendent John Myrick, the Oregon

Department of Corrections (“ODOC”), and ODOC employees Bob Culp and Debbie Myers.

Ross alleges that defendants collected monies from his prison trust account to satisfy a judgment

for state court filing fees in violation of his state and federal rights, including his right to be free

from illegal search & seizure, cruel and unusual punishment, and all forms of slavery; his right to

equal protection and due process of the law; and his rights under the Oregon Poverty Rule.

Compl. 4, ECF #2. Defendants collectively seek summary judgment (ECF #22), and Ross has

filed a cross-motion for summary judgment in his favor (ECF #26). For the reasons discussed

below, defendants’ motion should be GRANTED, Ross’ cross-motion should be DENIED, and

this action should be dismissed in its entirety.

FACTUAL BACKGROUND

While in ODOC custody, Ross filed a post-conviction case, CV150462, in Umatilla

County Circuit Court. Compl. 4, ECF #2; Culp Decl., Att. 5, ECF #23. The filing fee, in the

amount of $252.00, was deferred. Culp Decl., Att. 5, at 1, ECF #23. On March 26, 2015, the

court issued a limited money judgment creating a lien against Ross’ inmate trust account in that

amount. Id. at 2. In accordance with the judgment, funds deposited into Ross’ inmate trust

account were applied toward the $252.00 filing fee debt. On January 11, 2016, ODOC collected

$49.65 to be held in reserve to satisfy the limited money judgment. Id., Att. 8, at 2. In

subsequent months, withdrawals in the amounts of $34.04, $44.59, $63.39, and $54.39 were held

in reserve by ODOC and, on June 13, 2016, the funds were submitted to the Umatilla County

Circuit Court in full satisfaction of the debt. Id., Att. 7, at 2, and Att. 8, at 3-4.

On February 4, 2016, after the first withdrawal from his trust account, Ross requested

administrative review. Id., Att. 6, at 2. On February 10, 2016, the supervisor of ODOC’s

Central Trust Office, defendant Bob Culp, issued a written decision, concluding that no error

occurred in the collection of this county court filing fee debt. Id. at 1.

STANDARD

Under FRCP 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 FRCP 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.

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 v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

FINDINGS

Defendants move for summary judgment on all claims, arguing that the Eleventh

Amendment bars suit against state agencies in federal court and that the individual defendants

are entitled to qualified immunity because they did not violate Ross’ clearly established

constitutional rights.

I. Eleventh Amendment Sovereign Immunity

A. Claims Against ODOC

Defendants first contend that Ross’ claims against ODOC are barred by the Eleventh

Amendment. Mot. Summ. J. 6, ECF #22. “It is well established that agencies of the state are

immune under the Eleventh Amendment from private damages or suits for injunctive relief

brought in federal court.” Savage v. Glendale Union High School, 343 F.3d 1036, 1040 (9th Cir.

2003); see also Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996); Puerto Rico

Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Howard v. Oregon

Department of Corrections, No. 6:10–cv–06390–AA, 2013 WL 4786483, at *2 (D. Or. Sept. 5,

2013); Grimes v. ODOC Agency, No. 06–CV–619–AS, 2007 WL 1170636, at *2 (D. Or. Apr.

11, 2007). Thus, Ross’ claims against ODOC, a state agency, are precluded under the Eleventh

Amendment and should be dismissed.

B. State-Law Claims Against Individual Defendants

Defendants next contend that under Oregon law, the individual defendants should be

dismissed from Ross’ state-law claims, the State of Oregon substituted in their place, and the

State of Oregon thereafter dismissed under the Eleventh Amendment. Mot. Summ. J. 7, ECF

#22. In support of their argument, defendants cite to ORS 30.265(1), which they contend

provides that the “sole cause of action for any tort of officers, employees or agents of a public

body acting within the scope of their employment or duties . . . shall be an action against the

public body only.” Id.

Defendants incorrectly cite to an old version of ORS 30.265(1).1 The current, relevant

statutory scheme is codified in ORS 30.265(2) through (4). ORS 30.265(2) provides in pertinent

part:

The sole cause of action for a tort committed by officers, employees or agents of a

public body acting within the scope of their employment or duties and eligible for

representation and indemnification under ORS 30.285 or 30.287 is an action

under ORS 30.260 to 30.300.

1 In 1991, the Oregon legislature added the following language to former ORS 30.265(1):

“The sole cause of action for any tort of officers, employees or agents of a public body acting

within the scope of their employment or duties and eligible for representation and

indemnification under ORS 30.285 or 30.287 shall be an action against the public body only.”

Berry v. State, Dep’t of Gen. Servs., 141 Or. App. 225, 227 (1996). However, the statute has

since been amended.

ORS 30.265(3) goes on to provide that, if the alleged damages are equal to or less than the

amount allowed under ORS 30.271, ORS 30.272, or ORS 30.273, the sole cause of action is

against the public body:

If an action under ORS 30.260 to 30.300 alleges damages in an amount equal to

or less than the damages allowed under ORS 30.271, 30.272 or 30.273, the sole

cause of action for a tort committed by officers, employees or agents of a public

body acting within the scope of their employment or duties and eligible for

representation and indemnification under ORS 30.285 or 30.287 is an action

against the public body. If an action is filed against an officer, employee or agent

of a public body, and the plaintiff alleges damages in an amount equal to or less

than the damages allowed under ORS 30.271, 30.272 or 30.273, the court upon

motion shall substitute the public body as the defendant.

ORS 30.265(3). On the other hand, if the alleged damages are greater, the action may be brought

against an individual defendant, pursuant to ORS 30.265(4):

If an action under ORS 30.260 to 30.300 alleges damages in an amount greater

than the damages allowed under ORS 30.271, 30.272 or 30.273, the action may be

brought and maintained against an officer, employee or agent of a public body,

whether or not the public body is also named as a defendant. An action brought

under this subsection is subject to the limitations on damages imposed under ORS

30.271, 30.272 or 30.273, and the total combined amount recovered in the action

may not exceed those limitations for a single accident or occurrence without

regard to the number or types of defendants named in the action.

ORS 30.265(4). In sum, “[u]nder the Oregon Tort Claims Act, an officer, employee, or agent of

a public body may be held personally liable only when the requested prayer for relief exceeds the

damages cap allowed under ORS 30.271, 30.272, or 30.273.” Kramer v. S. Or. Univ., No. 1:13–

cv–00340–CL, 2013 WL 4782154, at *6 (D. Or. Sept. 5, 2013).

Here, however, Ross has not listed a specific amount of damages in the Complaint.2

“Even though ORS § 30.265(4) provides that an action that ‘alleges damages in an amount

greater’ than the applicable cap may be brought against individual agents of the public body, it

2 In the Complaint, Ross alleges, “As I intend this to be a class action, total damages and

monetary awards etc., will need to be set at a later date.” Compl. 6, ECF #2.

does not state that such amount must be alleged in the complaint.” Achcar-Winkels v. Lake

Oswego Sch. Dist., No. 3:15-CV-00385-YY, 2017 WL 2291338, at *10 (D. Or. May 25, 2017).

Because Ross has not alleged damages in an amount equal to or less than the statutory damage

limit, ORS 30.265(3) does not require that the State of Oregon be substituted for the individual

defendants. Id. (“Defendants cannot rely on ORS § 30.265(3) to support their motion to

substitute the District for individual defendants where Plaintiffs have failed to allege a specific

amount.”); see also Mclean v. Pine Eagle School District, No. 61, 194 F. Supp. 3d 1102, 1123

(D. Or. 2016) (holding that defendants could not rely on ORS 30.265(3) to support their motion

to substitute the school district for individual defendants because the plaintiff did “not ‘allege[ ]

damages in an amount equal to or less than’ the statutory damage limit”).

Although Ross’ state-law claims against the individual defendants are not precluded

under the Eleventh Amendment, they otherwise lack merit for the reasons discussed in

subsection IV, infra. The individual defendants are also entitled to qualified immunity, as

discussed below.

II. Qualified Immunity

The individual defendants contend that they are entitled to qualified immunity. Mot.

Summ. J. 14-15, ECF #22. The defense of 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.” Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity ‘represents the norm’ for

government officials exercising discretionary authority.” Lacey v. Maricopa Cty., 693 F.3d 896,

915 (9th Cir. 2012) (quoting Harlow, 457 U.S. at 807). “Under qualified immunity, an officer is

protected from suit when he makes a reasonable mistake of law or fact.” Id. (citing Pearson v.

Callahan, 555 U.S. 223, 231 (2009)). “[Q]ualified immunity is an immunity from suit and not

merely damages.” Id. “Only when an officer’s conduct violates a clearly established

constitutional right—when the officer should have known he was violating the Constitution—

does he forfeit qualified immunity.” Id.

The court engages in a two-part analysis in determining whether a defendant is entitled to

qualified immunity. First, the court asks, “[t]aken in the light most favorable to the party

asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional

right?” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at

235–236. Second, the court asks “whether the right was clearly established.” Id. A right is

clearly established if “it would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” Id. at 202. The court has discretion to decide “which of the two

prongs of the qualified immunity analysis should be addressed first in light of the circumstances

in the particular case at hand.” Pearson, 555 U.S. at 236; see also Mueller v. Auker, 576 F.3d

979, 993–94 (9th Cir. 2009).

Here, as detailed below, Ross has failed to establish the violation of any statutory or

constitutional right, i.e., the first prong of the qualified immunity test. Thus, the individual

defendants are entitled to qualified immunity.

III. Federal Constitutional Claims

To state a claim pursuant to 42 USC § 1983, a plaintiff must allege that a right secured by

the Constitution or laws of the United States was violated. See West v. Atkins, 487 U.S. 42, 48

(1988); Ketchum v. Alameda Cnty., 811 F.2d 1243, 1245 (9th Cir. 1987); Felix v. Chambers, No.

1:14–cv–0889–MJS (PC), 2015 WL 2128503, at *1 (E.D. Cal. 2015). Here, Ross has not

established any such violation.

A. Fourth Amendment

Prisoners have “extremely limited” Fourth Amendment rights while incarcerated. United

States v. Vallez, 653 F.2d 403, 406 (9th Cir. 1981). “Lawful incarceration necessarily entails

limitations upon many of the rights enjoyed by ordinary citizens.” Taylor v. Knapp, 871 F.2d

803, 806 (9th Cir. 1989) (citing Hudson v. Palmer, 468 U.S. 517, 524 (1984); Pell v. Procunier,

417 U.S. 817, 822 (1974)). “An inmate’s fourth amendment rights are among the rights subject

to curtailment. In particular, the fourth amendment does not protect an inmate from the seizure

and destruction of his property.” Id. (citations omitted). “Hence it cannot protect an inmate

from the conversion of his property.” Id. Based on this reasoning, an inmate does not have a

Fourth Amendment right to be free from the seizure of funds from his trust account. Felix, 2015

WL 2128503, at *2; see also Jackson v. SCI-Camp Hill, No. 1:11–CV–1135, 2012 WL 3990888,

at *5 (M.D. Pa. Sept. 11, 2012) (an inmate has no Fourth Amendment rights in connection to his

inmate account).

Moreover, inmates do not have a reasonable expectation of privacy in their trust accounts

due to the “competing institutional security interests” of the prison. Witherow v. Cortez-Masto,

No. 1:11–CV–1135, 2010 WL 1292968, at *5 (D. Nev. January 14, 2010), report and

recommendation adopted, 2010 WL 1292466 (D. Nev. Mar. 30, 2010). ODOC manages inmate

funds and assesses them pursuant to administrative rules. See OAR 291-158-0005(3)(b). There

are many justifications for allowing ODOC to manage inmate accounts, including the need to

deter escape and prevent the use of funds for extortion and other illegal purposes. Id.; see also

Oliver v. Sundquist, 11 Fed. Appx. 570, 571 (6th Cir. 2001) (finding no reasonable expectation

of privacy in prisoner sales of arts and crafts); Soto v. Meachum, Civ. No. B–90–270 (WWE),

1991 WL 218481, *7 (D. Conn. Aug. 28, 1991) (“plaintiff has no reasonable expectation

of privacy in the contents of his inmate account”). For all of these reasons, Ross’ Fourth

Amendment claim fails.

B. Eighth Amendment

Likewise, the withdrawal of funds from Ross’ trust account does not rise to the level of

cruel and unusual punishment in violation of the Eighth Amendment. “The Eighth

Amendment’s prohibition of cruel and unusual punishment imposes duties on prison officials to

provide prisoners with the basic necessities of life such as food, clothing, shelter, sanitation,

medical care and personal safety.” Cockcroft v. Kirkland, 548 F. Supp. 2d 767, 774 (N.D. Cal.

2008). Here, Ross alleges no facts supporting a claim that he was denied “the minimal civilized

measures of life’s necessities.” Ellington v. Prunty, 182 F.3d 925 (9th Cir. 1999). The

withdrawal of funds from an inmate trust account pursuant to court orders to pay debts that a

prisoner elected to incur is not a “punishment” or a denial of “humane conditions of

confinement” to which the Eighth Amendment applies. Alexander v. Hicks, 2017 WL 1356071,

at *2 (E.D. Cal. April 6, 2017); Felix, 2015 WL 2128503, at *3; see also Erdman v. Martin, 52

Fed. Appx. 801 (6th Cir. 2002).

C. Equal Protection

Ross also fails to establish that defendants violated his equal protection rights. He offers

no evidence that defendants discriminated against him on the basis of his membership in a

protected class. Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001). Moreover, there

is no evidence that he was treated differently than other similarly situated inmates. Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Martin v. Crandall, No. C-94-3811 MHP,

1995 WL 498844, at *2 (N.D. Cal. Aug. 17, 1995).

D. Due Process

The Due Process Clause of the Fourteenth Amendment protects individuals from

arbitrary government action by prohibiting states from depriving people of “life, liberty, or

property without due process of law.” U.S. Const. amend. XIV; Martin, 1995 WL 498844, at *1.

Prisoners retain their right to due process, subject to the restrictions imposed by the nature of the

penal system. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). However, the Due Process Clause

is violated when the agency “prescribes and enforces forfeitures of property without underlying

statutory authority and competent procedural protections.” Nevada Dept. of Corrections v.

Greene, 648 F.3d 1014, 1019 (9th Cir. 2011) (citing Vance v. Barrett, 345 F.3d 1083, 1090 (9th

Cir. 2013)) (internal quotations omitted).

ODOC is authorized by state law to assess inmate accounts for court-ordered costs and

fees, including those assessed in post-conviction cases. OAR 291-158-0005(3)(b); OAR 291-

158-0015(2); ORS 138.590(8)(b).3 Administrative review is available, not to contest the

underlying debt that is the subject of a court order, but to identify errors in the collection of the

debt. OAR 291-158-0065.4 Here, where the collection of funds from the inmate trust account

3 In the Declaration of Bob Culp (ECF #23), defendants rely on ORS 30.643(4), but that section

addresses an “action against a public body.” An “action against a public body” is elsewhere

expressly defined to exclude petitions for post-conviction relief. ORS 30.642(1). The more

appropriate statute appears to be ORS 138.590(8)(b), which allows for the post-conviction filing

fee to be “drawn from, or charged against, the petitioner’s trust account if the petitioner is an

inmate in a correctional facility.”

4 The version of OAR 291-158-0065 that was in effect at the time and is attached as an exhibit to

the Culp Declaration provides for administrative review of the collection of ODOC debts. Court

fees are non-ODOC debt. See Farrar v. Peters, No. 6:15-cv-00952-KI, 2016 WL 3156311 at

*10 (D. Or. June 3, 2016) (referencing “non-DOC debt, such as court fees and garnishment

orders”). Nonetheless, there is no dispute that Ross was provided with administrative review.

was pursuant to a valid state court order and Ross sought and received administrative review, this

court should find competent procedural protections.

Asserting that it is a due process violation to deplete his trust account funds, Ross

contends that he is entitled to a $400 “personal property exemption.” Compl. 6, ECF #2. He

relies on a March 2, 2013 newspaper article detailing a Multnomah County Circuit Court

decision to apply a personal property exemption to a compensatory fine imposed on an inmate in

a criminal case. Reply 3-5, Ex. 1, ECF #35. The Oregon legislature subsequently enacted ORS

423.105, which authorizes ODOC to collect “court-ordered financial obligations” from an

inmate’s trust account and set up a $500 “transitional fund” for inmates who have not been

sentenced to death or life imprisonment. “Court-ordered financial obligations” are defined as

compensatory fines, restitution, child support, monetary awards for crime victims, and monetary

awards arising out of assaults of ODOC employees. ORS 423.105(1)(b). Filing fees, however,

are not included in this exemption. Id.

Given that Ross voluntarily incurred the filing fees, failed to provide evidence of

ODOC’s violation of state law concerning the administration of inmate trust accounts, and

availed himself of administrative review procedures, there can be no violation of the due process

clause. Alexander, 2017 WL 1356071, at *3 (finding no due process violation where filing fees

for two cases were withdrawn from the inmate’s trust account in accordance with the controlling

federal statute).

E. Thirteenth Amendment

Ross contends that the collection of funds from his prison trust account implicates his

constitutional right to be free from slavery. Compl. 4, ECF #2. The Thirteenth Amendment,

however, expressly creates an exception for the prison context. “Neither slavery nor involuntary

servitude, except as punishment for crime whereof the party shall have been duly convicted, shall

exist within the United States, or any place subject to their jurisdiction.” U.S. Const. amend XIII

(emphasis added). Accordingly, convicted criminals are not protected against involuntary

servitude by the Thirteenth Amendment. Hale v. State of Arizona, 993 F.2d 1387, 1394 (9th Cir.

1993); Canell v. Multnomah County, 141 F. Supp. 2d 1046, 1058 (D. Or. 2001).

IV. State-Law Claims

Ross asks this court to invoke the Oregon Poverty Law, but neither defendants nor this

court could identify any such law. To the extent Ross is attempting to reference the exemptions

codified in ORS 423.105, those exemptions do not apply to deductions from inmate trust

accounts for court fees, as discussed above in subsection III.D.

Ross also alleges claims under the Oregon Constitution, Article 1, sections 10, 16, 20,

and 21. Claims under the Oregon Constitution are barred by sovereign immunity. See Webber v.

First Student, Inc., No. CIV. 11-3032-CL, 2011 WL 3489882, at *5 (D. Or. July 12, 2011),

report and recommendation adopted, 2011 WL 3489915 (D. Or. Aug. 9, 2011) (“The doctrine of

sovereign immunity is implicit in article IV, section 24 of the Oregon Constitution.”); Stearns v.

Williamson, No. 2:13–cv–00479–AA, 2013 WL 6328091, at *2 (D. Or. Dec. 4, 2013) (“Plaintiff

has no private right of action to sue for money damages under the Oregon Constitution.”);

Hunter v. City of Eugene, 309 Or. 298, 302 (1990) (“Oregon’s Bill of Rights provides no textual

or historical basis for implying a right to damages for constitutional violations.”).

Violations of the Oregon Constitution may be actionable as torts under the Oregon Tort

Claims Act (“OTCA”), ORS 30.260-30.300. See Margulies v. Tri-Cty. Metro. Transp. Dist. of

Oregon, No. 3:13-CV-00475-PK, 2014 WL 4419263, at *8 (D. Or. Sept. 8, 2014) (“In enacting

the OTCA, the Oregon legislature partially waived sovereign immunity, thereby allowing

‘injured persons to assert—albeit with some limitations—the same tort claims against public

bodies that they could, at common law, assert against other tortfeasors.’”); Webber, 2011 WL

3489882, at *5 (holding the OTCA is a limited waiver of sovereign immunity for torts

committed by public bodies or their employees, agents, and officers acting within the scope of

their employment). Ross does not reference the OTCA in his Complaint, although he attached a

tort claim notice dated May 16, 2016, as an exhibit. Compl., Ex. 1, ECF #2.

Nonetheless, to the extent Ross has validly pled any tort claims pursuant to the OTCA,

they lack merit. Section 10 of Article I of the Oregon Constitution provides:

No court shall be secret, but justice shall be administered, openly and without

purchase, completely and without delay, and every man shall have remedy by due

course of law for injury done him in his person, property, or reputation.

“Article I, section 10, is not a ‘due process’ clause.” Smith v. Dep’t of Corr., 219 Or. App. 192,

196 (2008) (citing Davis v. Board of Parole, 200 Or. App. 366, 369 n. 3 (2005)); see also State v.

Stroup, 290 Or. 185, 200 (1980) (noting the “Oregon Constitution does not have a due process

clause of its own”). “Its principal function is to bar the legislature from eliminating common-law

remedies that were available to redress injuries to ‘person, property, or reputation,’ without

providing a ‘constitutionally adequate substitute remedy.’” Smith, 219 Or. App. at 196 (citation

omitted). “Here, to the extent that the protections of Article I, section 10, extend to [Ross] in this

context, the challenged rules do not violate the provision.” Id. at 197. “On their face, the

challenged rules merely outline administrative procedures governing [inmate funds]; they do not

limit or eliminate any common-law remedy that might be available to inmates for any

deprivation of their rights. Hence, the rules do not offend Article I, section 10.” Id.

Section 16 contains Oregon’s cruel and unusual punishment clause. “Oregon courts have

largely interpreted the Oregon State Constitution’s prohibition of cruel and unusual punishment

parallel to the U.S. Constitution Eighth Amendment prohibition of cruel and unusual

punishment.” Taylor v. Ridley, No. 2:18-CV-00314-SU, 2018 WL 3550266, at *4 (D. Or. July

24, 2018). As discussed in subsection III.B above, ODOC’s actions have not violated Ross’

right to be free of cruel and unusual punishment.

Section 20 provides that “No law shall be passed granting to any citizen or class of

citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all

citizens.” “In general, equal protection analysis is the same under both article I, section 20 of the

Oregon Constitution and the Fourteenth Amendment of the U.S. Constitution. Webber, 2011

WL 3489882, at *7 (citing State v. Borowski, 231 Or. App. 511, 519–20 (2009) (identifying

article I, section 20 of the Oregon Constitution as the state analog of the Fourteenth

Amendment); Babcock v. Emp’t Div., 72 Or. App. 486, 491 (1985) (applying the Oregon and

federal equal protection claims identically); City of Klamath Falls v. Winters, 289 Or. 757, 774–

75 (1980) (“[I]n the usual case substantially the same analysis is applicable in determining

whether there has been a denial of equal protection of the laws or a grant of a privilege or

immunity on terms not equally applicable to all citizens.”)). As discussed above in subsection

III.C, Ross’ equal protection claim lacks merit.

Finally, section 21 contains a prohibition against ex-post facto laws. As with all of his

Oregon constitutional claims, Ross does not provide any specific argument regarding how this

constitutional provision was violated. Where Ross has failed to identify an ex post facto

violation, the claim should be denied.

RECOMMENDATIONS

Defendants’ Motion for Summary Judgment (ECF #22) should be GRANTED in its

entirety and all claims dismissed with prejudice. Ross’ Cross Motion for Summary Judgment

(ECF #26) should be DENIED in its entirety.

SCHEDULING ORDER

These Findings and Recommendations will be referred to a district judge. Objections, if

any, are due Monday, January 14, 2019. If no objections are filed, then the Findings and

Recommendations will go under advisement on that date.

If objections are filed, then a response is due within 14 days after being served with a

copy of the objections. When the response is due or filed, whichever date is earlier, the Findings

and Recommendations will go under advisement.

NOTICE

These Findings and Recommendations are not an order that is immediately appealable to

the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal

Rules of Appellate Procedure, should not be filed until entry of a judgment.

DATED December 26, 2018.

Youlee Yim You

United States Magistrate Judge