Flores v. Or. Dep't of Corr.

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RICHARD J. FLORES, Plaintiff, v. OREGON DEPARTMENT OF CORRECTIONS et al., Defendants.

No. 2:22-cv-01399-SB

United States District Court, D. Oregon

November 3, 2023

OPINION AND ORDER

BECKERMAN, U.S. MAGISTRATE JUDGE.

Plaintiff Richard J. Flores (“Flores”), a self-represented adult in custody (“AIC”), alleges claims against the Oregon Department of Corrections (“ODOC”) Oregon Corrections Enterprises (“OCE”), Melanie Doolin, Ken Jeske, Lori Hensel, Theron Rumsey, Tyler Blewett and 99 John and Jane Does (together “Defendants”) related to Defendants' response to the COVID-19 (“COVID”) pandemic at Two Rivers Correctional Institution (“TRCI”).

Now before the Court is Defendants' motion to dismiss (ECF No. 62). The Court has jurisdiction over Flores' claims pursuant to 28 U.S.C. §§ 1331 and 1367, and all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. For the reasons that follow, the Court grants in part and denies in part Defendants' motion to dismiss.

BACKGROUND^[1]

Flores filed several claims, styled as a class action, against Defendants based on their response to the COVID pandemic at TRCI. (See generally First Am. Compl. (“FAC”), ECF No. 61.)

Flores alleges that Defendants failed adequately to respond to COVID. (Id. at 3-8.) Specifically, Defendants knowingly commingled healthy AICs with AICs who had tested positive for COVID or had been exposed to someone who had tested positive for COVID. (Id. at 3.) Further, Defendants forced AICs who had contracted COVID to continue working together with healthy AICs. (Id. at 3-5.) In January 2021, Flores' cell mate contracted COVID while working in the laundry facility. (Id. at 5.) Flores subsequently contracted COVID, although he was never tested because ODOC refused to test him. (Id.)

Accordingly, Flores alleges that Defendants violated his Eighth and Fourteenth Amendment rights, the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and 42 U.S.C. Ch. 21. (Id. at 8.) Additionally, Flores asserts state law claims against Defendants for negligence, gross negligence, negligence per se, dereliction of duty, intentional infliction of emotional distress, and violations of various statutes and administrative rules. (Id. at 9.)

Flores seeks economic and noneconomic damages, declaratory relief, and injunctive relief ordering ODOC and OCE “not to allow cross contamination between known Positive AICs or Staff and Healthy individuals” and “[a]ny other Injunctive relief the Court finds reasonable and to which promotes the health and safety of those who are in the State's care.” (Id. at 10-11.)

LEGAL STANDARDS

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citation omitted). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp., 550 U.S. at 556).

Self-represented litigants' “complaints are construed liberally and ‘held to less stringent standards than formal pleadings drafted by lawyers.'” Hoffman v. Preston, 26 F.4th 1059, 1063 (9th Cir. 2022) (quoting Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)); see also Hebbe, 627 F.3d at 342 (“Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts' treatment of pro se filings[.]”). The court must “afford [a self-represented plaintiff] the benefit of any doubt.” Hoffman, 26 F.4th at 1063 (quoting Hebbe, 627 F.3d at 342). “Unless it is absolutely clear that no amendment can cure the defect, . . . a [self-represented] litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.” Garity v. APWU Nat'l Labor Org., 828 F.3d 848, 854 (9th Cir. 2016) (quoting Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995)).

DISCUSSION

Defendants move to dismiss Flores' claims based on (1) Flores' inability as a self-represented litigant to represent a class; (2) Eleventh Amendment immunity; and (3) failure to state a claim for relief. (Defs.' Mot. Dismiss (“Defs.' Mot.”) at 4-8, ECF No. 62.)

I. CLASS ACTION ALLEGATIONS

Defendants argue that the Court should dismiss Flores' class action allegations because Flores, a self-represented AIC, may not represent a class in a class action. (Id. at 4-5.) Flores responds that dismissal would deprive the class of injured people of their rights and asserts that he continues to seek an attorney. (Pl.'s Resp. Defs.' Mot. Dismiss (“Pl.'s Resp.”) at 1, ECF No. 63.)

Flores styled his complaint as a class action, purporting to raise his claims on behalf of himself and “AICs and Staff housed or working at TRCI during the time of the Claims.” (FAC at 2.) A self-represented plaintiff may not represent other plaintiffs in litigation. See Johns v. Cnty. Of San Diego, 114 F.3d 874, 877 (9th Cir. 1997) (“[A] non-lawyer ‘has no authority to appear as an attorney for others than himself.'” (quoting C.E. Pope Equity Tr. v. United States, 818 F.2d 696, 697 (9th Cir. 1966))). In addition, “it is well established that a layperson cannot ordinarily represent the interests of a class.” Hirt v. Jackson Cnty., No. 1:19-cv-00887-AC, 2020 WL 3104502, at *2 (D. Or. June 11, 2020) (citing McShane v. United States, 366 F.2d 286 (9th Cir. 1966)). “This rule becomes almost absolute when, as here, the putative class representative is incarcerated and proceeding pro se.” Id. (citation omitted).

Because Flores may not represent the interests of a class without counsel, the Court dismisses Flores' class action allegations. See White v. Geren, 310 Fed.Appx. 159, 160 (9th Cir. 2009) (“The district court properly dismissed [the plaintiff's] class action claims because [the plaintiff], proceeding pro se, was not an adequate class representative.” (citing FED. R. CIV. P. 23(a)(4) and McShane, 366 F.2d at 288)); Abel v. Alameda Cnty., No. 3:07-cv-03247-MJJ-PR, 2007 WL 3022252, at *1 (N.D. Cal. Oct. 13, 2007) (“Pro se prisoner plaintiffs may not bring class actions. They are not qualified to act as class representatives as they are unable to fairly represent and adequately protect the interests of the class.”) (citations omitted). Flores may pursue claims only on his own behalf.

II. ELEVENTH AMENDMENT IMMUNITY

Defendants argue that the Court should dismiss Flores' Section 1983 claims against ODOC and OCE because the Eleventh Amendment bars the suit. (Defs.' Mot. at 5.) Defendants also argue that Eleventh Amendment immunity bars any claim for damages against Melanie Doolin, Ken Jeske, Lori Hensel, Theron Rumsey, Tyler Blewett, and 99 John and Jane Does (together, “individual defendants”) in their official capacities. (Id. at 6.) The Court agrees.

“The Eleventh Amendment bars suits against the State or its agencies for all types of relief, absent unequivocal consent by the state.” Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir. 1999) (citing Pennhurst v. Halderman, 465 U.S. 89, 100 (1984)). Accordingly, “agencies of the state are immune from private damage actions or suits for injunctive relief brought in federal court.” Brown v. Cal. Dep't of Corr., 554 F.3d 747, 752 (9th Cir. 2009) (citation omitted); see also Sato v. Orange Cty. Dep't of Educ., 861 F.3d 923, 928 (9th Cir. 2017) (noting that state agencies' immunity in federal court from suits for private damages or injunctive relief “is well established”) (citation omitted). Additionally, “damages claims against the individual defendants in their official capacities are barred by the Eleventh Amendment.” Brown v. Or. Dep't of Corr., 751 F.3d 983, 989 (9th Cir. 2014).

Section 1983 permits suit against “persons,” which the U.S. Supreme Court has construed to mean “state officials sued in their individual capacities[.]” Hafer v. Melo, 502 U.S. 21, 23 (1991). “State agencies . . . are not ‘persons' within the meaning of § 1983, and are therefore not amenable to suit under that statute.” Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004) (citing Will v. Mich. Dep't of State Police, 491 U.S. 58, 70 (1989)).

Flores appears to acknowledge that the Court must dismiss his claims against ODOC, but he argues that the Court should not dismiss the claims against OCE because OCE is not an agency of the state but rather a corporation. (Pl.'s Resp. at 1.) Defendants, in reply, assert that OCE is immune from suit because the legislature established OCE as a semi-independent state agency. (Defs.' Reply Pl.'s Resp. Defs.' Mot. Dismiss (“Defs.' Reply”) at 3, ECF No. 64.)

To determine whether an agency is immune from suit under the Eleventh Amendment, courts must consider “whether a money judgment would be satisfied out of state funds, whether the entity performs central governmental functions, whether the entity may sue or be sued, whether the entity has the power to take property in its own name or only the name of the state, and the corporate status of the entity.” Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988) (citing Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982)). “To determine these factors, the court looks to the way state law treats the entity.” Id. (citations omitted).

Applying these factors, the Court concludes that OCE is a state agency. It is not clear from its statutory framework whether OCE would satisfy a money judgment from state funds or whether OCE may...