Ovitsky v. Washington County Victim Assistance et al, No. 3:2012cv02250 - Document 76 (D. Or. 2013)

Court Description: OPINION and ORDER: Granting County's Motion to Dismiss for Failure to State a Claim 50 ; Granting State's Motion to Dismiss 63 . Therefore, plaintiff's complaint is dismissed as to all claims asserted against the County and the State. Further, WCSD is dismissed as a defendant in this action with prejudice. Signed on 8/20/2013 by Chief Judge Ann L. Aiken. (lg) Modified on 8/22/2013 to add language (lg).

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON ABBY JO OVITSKY, Case No. 3:12-cv-02250-AA OPINION AND ORDER Plaintiff, v. STATE OF OREGON, WASHINGTON COUNTY, WASHINGTON COUNTY SHERIFF'S DEPARTMENT, BEAVERTON SCHOOL DISTRICT, and NEAL EVAN CUTLER, Defendants. Abby Jo Ovitsky 6900 S.W. 195th Avenue #133 Beaverton, Oregon 97007 Pro se plaintiff Chelsea Glynn Assistant County Counsel Office of Washington County Counsel 155 N. First Avenue, Suite 340-MS 24 Hillsboro, Oregon 97124 Attorney for defendants Washington County Sheriff's Department County Ellen F. Rosenblum Attorney General Michael R. Washington Senior Assistant Attorney General Department of Justice 1162 Court Street N.E. Salem, Oregon 97301 Attorneys for defendant State of Oregon Page 1 - OPINION AND ORDER and Washington AIKEN, Chief Judge: Defendants Oregon Washington ("State") County ("County") and the State of separately move to dismiss the claims asserted against them in prose plaintiff Abby Jo Ovitsky's complaint. 1 For the reasons discussed below, these motions are granted. BACKGROUND Plaintiff is a hearing impaired individual who uses Relay, a service that allows hearing impaired individuals to communicate with others. The communication service works through an operator, who reads what the hearing impaired individual types aloud and will type to the hearing impaired individual what another person speaks in response. From October 2012 through December 2012, plaintiff attended juvenile court hearings regarding her son via Relay, which were presided over by Washington County Judge Michele Rini. On December 13, 2012, Washington County Victim Washington County Circuit plaintiff filed a complaint against Assistance, Judge Court, and WCSD, the Rini, Juvenile the Justice Department based on federal question jurisdiction in conformity with 28 U.S.C. § 1331. On January 7, 2013, the Court granted plaintiff's motion to proceed in forma pauperis ("IFP"). On April 20, 2013, this Court granted motions to dismiss from defendants Pat Garrett, Judge Rini, Alan Rappleyea, Lynn Schroeder, and WCSD; the 1 The County also moves to dismiss plaintiff's claims against defendant Washington County Sheriff's Department ("WCSD") because it is not a separate legal entity subject to suit. The County is correct and therefore WCSD is dismissed as a defendant from this action. See Ovitsky v. Wash. Cnty. Victim Assistance, 2013 WL 1767946, *4 (D.Or. Apr. 20, 2013). Because, however, plaintiff is proceeding pro se in this matter, the Court construes plaintiff's allegations against WCSD as though they are asserted against the County. Page 2 - OPINION AND ORDER Court also granted plaintiff leave to amend her complaint. On May 14, 2013, plaintiff filed her first amended complaint, alleging: (1) violation of 42 U.S.C. 1983 against the Beaverton § School District and WCSD; (2) discrimination based on disability in violation of Title II of the ("ADA") against all defendants; Americans with Disabilities Act (3) interference with seclusion in violation of Oregon's privacy laws against WCSD; (4) violation of the Rehabilitation Act against all defendants; (5) violation of Or. Rev. Stat. § 243.672 and Titles I and III of the ADA against the State; and (6) discrimination based on disability in violation of the Oregon Civil Rights Act against all defendants. claims are premised, in part, Plaintiff's on the alleged discrimination she experienced during her son's juvenile hearings because Judge Rini failed to accommodate a slowdown of the Relay operation to 60 words per minute; as a result, the parties were speaking too quickly for plaintiff to listen and understand. filed a motion to dismiss. 2 On May 28, 2013, the County On June 27, 2013, the State filed a motion to dismiss. STANDARDS OF REVIEW Where the plaintiff effectuates insufficient service of process pursuant to Fed. R. Civ. P. 4, the court must dismiss the action. Fed. R. Ci v. P. 12 (b) ( 5) . Rule should be 4 given a Nonetheless, "the provisions of liberal and flexible construction." 2 While difficult to decipher, plaintiff's claims are also based on several other discrete factual scenarios. See generally Am. Compl.; Pl.'s Resp. to County's Mot. Dismiss; Pl.'s Resp. to States's Mot. Dismiss. These circumstances include, but are not limited to, a 911 call plaintiff placed with the County and job applications plaintiff filed with the State; it is unclear whether and/or how these events relate to her son's juvenile proceedings. Id. Page 3 - OPINION AND ORDER Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984) an earlier version of Fed. R. Civ. P. 4). not required (a) ~if (b) the defendant would suffer no prejudice from the defect in service, failure to As such, dismissal is the party that had to be served personally received actual notice, the (discussing (c) there is a justifiable excuse for serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were dismissed." ~fails Similarly, where plaintiff Id. to state a claim upon which relief can be granted," the court must dismiss the action. Fed. R. Ci v. P. 12 (b) ( 6) . must allege To survive a motion to dismiss, the complaint facts ~enough plausible on its face." 544, 570(2007). is liberally to state a construed 1983) . nothing more than a in favor the plaintiff and its Rosen v. Walters, 719 F.2d 1422, Bare assertions, however, that amount to recitation of the elements" of a ~formulaic conclusory of and not entitled Ashcroft v. Iqbal, 556 U.S. 662, 681 ~are is For purposes of a motion to dismiss, the complaint (9th Cir. claim relief that Bell Atlantic Corp. v. Twombly, 550 U.S. allegations are taken as true. 1424 claim to to (2009). plausible claim for relief, the complaint be assumed true." Rather, to state a ~must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 13 2 S . Ct . 2101 ( 2 0 12) . DISCUSSION I. The County's Motion to Dismiss The County asserts that it is entitled to dismissal of plaintiff's Title II ADA claim because it is actually plead as a 42 U.S.C. § 1983 claim, such that the restrictions governing a Page 4 - OPINION AND ORDER § 1983 claim apply. See County's Mem. in Supp. of Mot. Dismiss at 3-4, 6. Additionally, while the County does not individually plaintiff's state law claims, it argues that they their own [such that] [i]f Plaintiff's address "cannot stand on federal claims are dismissed, then this Court will cease having jurisdiction over the remaining state claims." A. Id. at 7. Preliminary Matter Initially, the Court notes that the County failed to address plaintiff's Rehabilitation Act and 42 U.S.C. motion to dismiss. 3 See generally id. § Thus, 1983 claims in its while the County argues that plaintiff's state law claims should be dismissed due to lack of supplemental jurisdiction, it neglected to establish that this Court is first without original jurisdiction. Nevertheless, the court must dismiss an IFP complaint sua sponte if it "fails to state a claim on which 1915 (e) (2) (B); Lopez v. 2000) relief may be Smith, granted." 203 F.3d 1122, u.s.c. 28 1126-27 § (9th Cir. (en bane); see also Omar v. Sea-Land Serv., Inc., 813 F.2d 986, 991 (9th Cir. 1987). i. To Rehabilitation Act Claim establish plaintiff must a allege violation that: of ( 1) the she is Rehabilitation Act, a handicapped within the meaning of the Rehabilitation Act; (2) she is otherwise qualified for the benefit or services sought; (3) she was denied the benefit 3 While the County failed to separately address plaintiff's claim against WCSD pursuant to 42 U.S.C. § 1983, the Court acknowledges that its arguments in favor of dismissal expressly discuss the requirements of this statute. See, e.g., County's Mem. in Supp. of Mot. Dismiss at 6. The Court notes further that, for the first time in its reply brief, the County argues that plaintiff's Rehabilitation Act claim should be dismissed. See County's Reply to Mot. Dismiss at 2-3. Page 5 - OPINION AND ORDER or services solely by reason of her handicap; and (4) the program providing the assistance. benefit or Lovell v. services Chandler, receives federal 303 F.3d 1039, 1052 financial (9th Cir. 2002) . Here, plaintiff only states that she is handicapped within the meaning of the statute and that she has been denied the benefits of the County's programs. Am. Compl. 67-69. 91:91: She does not, however, allege that she is qualified for the benefits sought or that the programs providing benefits assistance. Dismiss. See generally id.; receive Pl.'s Resp. federal to financial County's Mot. Moreover, it is unclear upon which factual circumstances this claim is based. Therefore, plaintiff's Rehabilitation Act claim against the County is dismissed. ii. 42 U.S.C. In order to state a the plaintiff must governmental violation. 658, 694 conscious § 1983 Claim 1983 claim against a government entity, § demonstrate policy or custom a direct and the causal link between a alleged constitutional Monell v. Dep't of Soc. Serv. of City of N.Y., 436 U.S. ( 1978) . choice The policy or custom must be a deliberate or by a government entity's final policy-making official and cannot be imposed via respondeat superior. Id.; see also City of Canton v. Harris, 489 U.S. 378, 385 (1989); Penbaur v. City of Cincinnati, 475 U.S. 469, 483 (1986). Here, plaintiff neither alleges a specific constitutional violation nor does she identify a particular County policy or custom. See generally Am. Compl.; see also Pl.'s Resp. to County's Mot. Dismiss at 14, 36-37. Accordingly, plaintiff's 42 U.S.C. is dismissed. Page 6 - OPINION AND ORDER § 1983 claim against the County B. ADA Claim In order to state a claim of disability discrimination under Title II of the ADA, a plaintiff must allege that: individual with a disability"; participate in or receive (1) she "is an (2) she "is otherwise qualified to the benefit services, programs, or activities"; (3) of some public entity's she "was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity"; and (4) "such exclusion, denial of benefits, or discrimination was by reason of [her] disability." Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002), cert. denied, 538 u.s. 921 (2003). The Court finds the County's motion unpersuasive to the extent it argues that plaintiff's Title II ADA claim should be dismissed because it is actually alleged as a 42 U.S.C. § 1983 claim and plaintiff did not identify a County policy or custom that caused her injury. Plaintiff's filings makes clear that her Title II claim is premised on disability discrimination in violation of the ADA. See Am. Compl. Dismiss at 9. ~~ 49-56, 58-61; Pl's. Resp. to County's Mot. Further, the County has not cited to, and the Court is not aware of, any authority that requires allegations beyond those articulated in Thompson, 295 F.3d at 895, to state a viable Title II ADA claim against a government entity. County's Mem. in Supp. of Mot. Dismiss; See generally County's Reply to Mot. Dismiss; see also 42 U.S.C. § 12132 (Title II of the ADA inheres specifically to public entities). Nonetheless, plaintiff's claim fails at the pleadings level. See 28 U.S.C. § 1915(e)(2)(B); Lopez, 203 F.3d at 1126-27. Page 7 - OPINION AND ORDER While plaintiff recites a series of events that allegedly occurred between her and County employees, she does not explain how any of these events resulted in discrimination based on her disability. Specifically, although she states that the County refused to use Relay, and instead sent a deputy to her house to investigate a 911 call, she does not specify how this action led to the denial of some service, program, or activity she was qualified to participate in. See generally Am. Compl.; see also Pl.'s Resp. Mot. Dismiss at 14. to County's She also concludes that the County failed to accommodate her disability in various ways; however, plaintiff does not specify which particular County-provided denied as a result of her hearing impairment. Even construing plaintiff's pro se services she was Id. pleadings in the most favorable and liberal light, vague and conclusory allegations such as these are insufficient to survive a motion to dismiss. See Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 n.4 (9th Cir. 2011), cert. denied, 132 S.Ct. 1000 (2012) (because pro se plaintiffs do not have the benefit of legal counsel, their pleadings are "held to less stringent standards" than those drafted by lawyers) . Therefore, the County's motion is granted as to plaintiff's Title II ADA claim. C. State Law Claims Contrary to the County's assertions, dismissal of federal claims does not automatically deprive a district court of subject matter jurisdiction over any supplemental claims. Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009). Rather, where a district court dismisses "all claims over which it has original jurisdiction," it may, in its discretion, Page 8 - OPINION AND ORDER "decline to exercise supplemental U.S.C. § jurisdiction" 1367(c) (3); over pendent state law claims. see also Lacey v. Maricopa Cnty., 28 649 F.3d 1118, 1137 (9th Cir. 2011). Ordinarily, this Court would decline to exercise supplemental jurisdiction over a plaintiff's state law claims. Here, however, because plaintiff is proceeding pro se, and her complaint is being dismissed without prejudice, the Court will retain jurisdiction of these claims, at least at this stage in the proceedings, in order to briefly address their merits. See Carnegie-Mellon Uni v. Cohill, 484 (retaining pendent state U.S. law 343, 351 claims (1988) is appropriate v. jurisdiction over where it serves the interests of efficiency and judicial economy). i. Civil Rights Act Claim Oregon's Civil Rights Act prohibits discrimination in any place of public accommodation "on account of race, color, religion, sex, sexual orientation, national origin, marital status or age." Or. Rev. defined Stat. as "a § 659A. 403 (1). business or A place of public accommodation commercial privileges or advantages to the public." Fraternal Order of Eagles, ( 2002) ; see also Or. Rev. 180 Or.App. Stat. § enterprise that offers Lahmann v. Grand Aerie of 420, 659A. 400. 429, 43 P.3d 1130 Plaintiff does not identify a place of public accommodation owned or operated by the County in which she allegedly experienced discrimination, and the County itself is neither a business nor commercial enterprise. generally Am. Compl.; Pl.'s Resp. to County's Mot. Dismiss. See In addition, while she alleges discrimination based on her disability, plaintiff does not include any allegations pertaining to race, color, religion, sex, sexual orientation, national origin, marital Page 9 - OPINION AND ORDER status, or age. Therefore, the County's motion is granted as to plaintiff's claim under Or. Rev. Stat. ii. 659A.403. § Privacy Law Claim As this Court explained previously, Or. Rev. Stat. and Or. Rev. Stat. § 163.700 166.065 are criminal statutes that do not provide a civil cause of action. *4. § See Ovitsky, 2013 WL 1767946 at Furthermore, neither statute applies here; the former governs the recording of another person in a state of nudity, without consent, for the purposes of sexual gratification and the latter deals with "offensive physical abusive words provoke a 166.065. or violent gestures contact" or public manner intended and in a response." See Or. Rev. Stat. insults §§ "by likely to 163.700, Plaintiff does not allege any facts indicating that such activities occurred in the case at bar. Pl.'s Resp. to County's Mot. Dismiss. See generally Am. Compl.; Therefore, the County's motion is granted. II. The State's Motion to Dismiss The State argues that plaintiff's claims against it should be dismissed because the Eleventh Amendment applies to violations of Titles I and II of the ADA. The State also asserts that it is not a "private entity" within the meaning of Title III of the ADA. Additionally, the State contends that plaintiff inadequately plead a claim under the Rehabilitation Act. State argues that plaintiff's claims In the alternative, should be dismissed the for insufficient service of process. 4 4 Because, as discussed below, the State's motion is granted, the Court declines to address its insufficient service of process argument. Nonetheless, while not dispositive, the Court notes briefly that dismissal would not be required under Page 10- OPINION AND ORDER A. Preliminary Matter Like the County, the State failed to address all of the claims alleged against it, Stat including plaintiff's claims under Or. 243.672 and the Oregon Civil Rights Act. § State's Mem. in Supp. of Mot. Dismiss. Rev. See generally As discussed above, the court must dismiss an IFP complaint sua sponte if it "fails to state a claim on which relief may be granted." 28 u.s.c. § 1915(e)(2)(B); Lopez, 203 F.3d at 1126-27. i. Or. Or. Rev. Stat. Rev. Stat § § 243.672 Claim 243.672 governs unfair labor practices by public employers and prohibits discrimination in regard to hiring "for the purpose of encouraging or discouraging membership in an employee organization." Or. Rev. Stat. § 243.672(1) (c). In other words, this statute protects an individual's right to participate in a labor union. See generally id. Plaintiff has not alleged any facts indicating that the State participated in any of the behavior covered by this statute. State's Mot. Dismiss. See generally Am. Compl.; Pl.'s Resp. to Accordingly, plaintiff's Or. Rev. Stat. § 243.672 claim against the State is dismissed. these circumstances. See Borzeka, 739 F.2d at 447. Plaintiff is proceeding pro se in this lawsuit and was granted IFP status. As a result, the Court, to the best of its ability, effectuated service of process on her behalf. See Am. Compl. ~ 12; see also Pl.'s Proposed Summons to State; Washington Decl. ~ 3 & Ex. 1. Further, the State acknowledges that it received actual notice of plaintiff's claims and, moreover, timely moved to dismiss plaintiff's complaint. As such, the State does not argue, and the Court does not find, that the State suffered any prejudice as a result of plaintiff's allegedly insufficient service. See generally State's Mem. in Supp. of Mot. Dismiss. Page 11- OPINION AND ORDER ii. As Oregon Civil Rights Act Claim discussed above, Or. Rev. Stat. 659A.403 § prohibits discrimination in any place of public accommodation. County, Like the the State itself is neither a business nor a commercial enterprise. Moreover, while plaintiff asserts that she was discriminated against in state court due to her hearing impairment, she does not include any allegations concerning race, color, religion, sex, sexual orientation, national origin, marital status, or age. B. Therefore, this claim is dismissed. Title II ADA Claim The Eleventh Amendment prohibits a citizen from suing a state in federal Regents, court 528 U.S. without 62, its 72-73 States' Eleventh Amendment intends to do constitutional Amendment. so and consent. (2000). Kimel v. Fla. Bd. of "Congress may abrogate the immunity when it both unequivocally 'act[s] authority,'" pursuant such as to 5 § a valid of the grant of Fourteenth Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001); Tennessee v. Lane, 541 U.S. 509, 517-18 (2004). Under abrogate Title of the Eleventh Amendment (citing 42 U.S.C. whether II Congress § ADA, immunity. 12202). was Congress acting constitutional authority under Lane, Accordingly, pursuant clearly to 541 intended U.S. at to 518 the question here is a valid grant of 5 of the Fourteenth Amendment. § "Section 5 legislation is valid if it exhibits a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." quotations omitted). Id. at 520 (citation and internal This is an "as applied" test, meaning that a fact-specific inquiry is required. Page 12- OPINION AND ORDER Id. at 532-34. In Lane, the Supreme Court conducted this inquiry and determined that Title II did not exceed congressional authority under § 5 of the Fourteenth Amendment in cases that implicate the fundamental right of access to courts under the Due Process clause. Id. at 533-34 ("we find that Title II unquestionably is valid § 5 legislation as it applies to the class of cases implicating the accessibility of judicial services") . Subsequent cases interpreting Lane have refined this rule and hold that Title II of the ADA validly abrogates state sovereign immunity insofar as it creates a private cause of action violates the Fourteenth Amendment. 5 4 6 U . S . 151 , 15 8 - 5 9 (2 0 0 6 ) for conduct that See United States v. Georgia, ( " [ w] hi 1 e the Members of this Court have disagreed regarding the scope of Congress's enforcement powers under one doubts that § § actually 'prophylactic' 5 of the Fourteenth Amendment . 5 grants Congress the power to . no 'enforce the provisions' of the Amendment by creating private remedies against the States for actual violations of those provisions") and emphasis omitted) . Thus, in order to (citation determine whether plaintiff's Title II claim is precluded by the Eleventh Amendment, this Court must examine: "(1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated Amendment; the Fourteenth and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment." Here, Id. at 159. the State concedes individual with a disability. that plaintiff is a qualified See State's Mem. in Supp. of Mot. Dismiss at 6-7. It is unclear, however, from plaintiff's complaint and filings subsequent as Page 13- OPINION AND ORDER to what extent the State's conduct allegedly violated the ADA and/or the Due Process clause of the Fourteenth Amendment. This is because plaintiff does not identify the capacity in which she was participating in her son's juvenile proceedings - i.e. as his guardian ad litem, as a witness for or against him, or as an observer. See Am. Compl. ~~ 26, 57; see also Pl.'s Resp. to State's Mot. to Dismiss at 12, 15, 19-22, 32-33, 39. The nature of her son's juvenile hearings is also unclear, including whether such proceedings were civil or criminal, or were substantive or merely status-related. Additionally, plaintiff has not alleged that she suffered an actual loss or injury due to her partially reduced ability to listen to these proceedings. As a result, this Court cannot determine whether plaintiff's participation fundamental in right the proceedings protected by the at issue Due pertained Process clause to a of the Fourteenth Amendment or even involved a violation of the ADA. See Lane, 541 U.S. at 523 (recognizing limited circumstances wh~re the due process clause protects an individual's right of access to the courts); see also Georgia, 546 U.S. at plaintiff's prose complaint where it was the conduct underlying [his] Title II"). Therefore, 158-59 ~unclear (dismissing a to what extent constitutional claims also violated the State's motion is granted as to plaintiff's Title II claim. C. Title I ADA Claim Plaintiff's Title I claim is barred by the Eleventh Amendment. See Garrett, 531 U.S. at 37 4. As such, the State's motion is granted as to plaintiff's Title I ADA claim. Page 14- OPINION AND ORDER D. Title III ADA Claim To demonstrate a Title III discrimination claim, a plaintiff must allege: (1) she is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and ( 3) she was denied accommodations by the defendant because of her disability. v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007) omitted). Molski (citations The ADA defines "private entity" as "any entity other than a public entity." 42 U.S.C. 12181(6). § includes "any State or local government." The public State acknowledges is this not fact a private in her A "public entity" 42 U.S.C. entity. In complaint. § fact, See Am. (describing the State as a "public entit[y]"). 12131(1) (A). plaintiff Compl. <[ 23 Thus, the State's motion is granted as to plaintiff's Title III ADA claim. E. Rehabilitation Act Claim As discussed in section I (A) (I) above, plaintiff failed to allege facts in support of her Rehabilitation Act claim. Compare Lovell, 303 F.3d at 1052 (outlining the elements of a claim under the Rehabilitation Act), with Am. Compl. State's motion is granted. Page 15- OPINION AND ORDER <j[<j[ 67-69. Therefore, the CONCLUSION The County's Motion to Dismiss State's Motion to Dismiss (doc. plaintiff's DISMISSED complaint is against the County and the State. 63) (doc. 50) is also GRANTED. as to all IT IS SO ORDERED ~of August 2013. Ann Alke United States District Judge Page 16- OPINION AND ORDER The Therefore, claims asserted Further, WCSD is DISMISSED as a defendant in this action with prejudice. Dated this is GRANTED.

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