Opinion
3:20-cv-1990-JR
07-19-2021
E.J.T., a minor, by and through his Conservator, InTRUSTment, Northwest, Inc., Plaintiff, v. JEFFERSON COUNTY, a public body; TYLER W. ANDERSON, in his individual capacity; and ARJANG ARYANFARD, in his individual capacity, Defendants.
FINDINGS & RECOMMENDATION
Jolie A. Russo United States Magistrate Judge
Plaintiff, E.J.T., through a conservator, brings this action alleging negligence, violation of Or. Rev. Stat. § 124.105, and violation of his right to equal protection pursuant to 42 U.S.C. § 1983. Defendants Jefferson County and Tyler Anderson move to dismiss. Plaintiff moves to certify questions to the Oregon Supreme Court. For the reasons stated below, the motion to dismiss should be denied and the motion to certify should be granted.
Defendants submit additional materials beyond the complaint in an attempt to demonstrate the absence of triable claims, i.e., the absence of a material factual dispute upon which a trier of fact could conclude in plaintiff's favor. The Court should decline defendants offer to convert the motion to a summary judgment motion at this early stage of the litigation.
ALLEGATIONS
Plaintiff is a six-year-old boy who remains in the custody of his mother, Katylynne Rogerson, following her separation from his father, Andre Thomas, in 2017. Thomas is a member of the Confederated Tribes of Warm Springs who resides on the Warm Springs Indian Reservation. Plaintiff and Rogerson reside in Madras in Jefferson County, Oregon.
In early July 2017, after a few months of dating Rogerson, Josue Jair Mendoza-Melo moved in with Rogerson and E.J.T. Rogerson would occasionally leave E.J.T. in Mendoza-Melo's care.
Plaintiff alleges that on July 2, 2017, Rogerson took E.J.T. to the St. Charles Madras Hospital after E.J.T. dislocated his thumb. Plaintiff reported the injury happened from a witnessed fall. Complaint (ECF 1) at ¶ 12
Plaintiff alleges Mendoza-Melo picked up E.J.T. from his regular babysitter, Brittany Fowler, on August 27, 2017 and brought him home. Plaintiff asserts that when E.J.T. left Fowler's home he was uninjured, but after Rogerson dropped him off the following morning, Fowler called Rogerson shortly thereafter to report plaintiff's arm was injured and that he needed medical care. Id. at ¶ 13. Rogerson picked up the plaintiff and when to St. Charles Hospital where he was diagnosed with a dislocated elbow. Id.
Plaintiff alleges that on September 30, 2017, Thomas picked up E.J.T. from Fowler and delivered him to Rogerson at around 9:10 p.m. Plaintiff asserts that at the time E.J.T. exhibited no signs of injury. Id. at ¶ 14.
Plaintiff alleges that on Monday morning, October 1, 2017, Rogerson left E.J.T. in Mendoza-Melo's care at her Madras home during which time Mendoza-Melo assaulted E.J.T. Id. at ¶ 15. On October 2, 2017, while in the care of Fowler, plaintiff alleges Fowler discovered severe bruising around E.J.T.'s genitals while changing him and asked Rogerson to take him to the hospital. Id. at ¶ 16.
At the St. Charles Madras Hospital, an exam revealed scratches under both eyes, dry skin, bruising to scrotal/perineal area, and a small bruise in the inner left thigh. Attending Nurse Briann Mellor advised Rogerson that the nature of plaintiff's injuries required notification to law enforcement and to the Oregon Department of Human Services (DHS). Plaintiff alleges Nurse Mellor also advised Rogerson that DHS would likely come to speak with her at her home and check on E.J.T. Id. at ¶ 17.
Nurse Mellor reported the possible child abuse and defendant Jefferson County Sheriff's Deputy Tyler Anderson, who prior to arriving at the Hospital allegedly reported that Nurse Mellor told him over the phone that the abuse happened at E.J.T.'s father's home the previous Saturday. Id. at ¶ 19.
Plaintiff alleges that when defendant Anderson arrived, he asked where E.J.T.'s father lived to which Rogerson responded the Warm Springs Indian Reservation. Defendant Anderson allegedly raised his hands and told Rogerson that was outside his jurisdiction and left. Id. at ¶ 20. Defendant Anderson then reported to dispatch “the abuse occurred at Warm Springs. Dispatch is giving the call to them. Mom will wait at [St. Charles].” Id. Plaintiff alleges defendant Anderson left without speaking further to hospital staff, without requesting medical records, without examining E.J.T., without questioning Rogerson about E.J.T.'s whereabouts and activities in the preceding days, and without conducting any investigation whatsoever. Plaintiff also asserts Anderson did not notify DHS. Id. at ¶ 21.
Eventually, Warm Springs Police Officer defendant Arjang Aryanfard called Rogerson for a phone interview advising he spoke with Thomas and wanted to see E.J.T. to take photographs. Plaintiff alleges Warm Springs Police took too long to get to the hospital and the hospital released E.J.T. when Rogerson assured staff she would take E.J.T. to the Warm Springs Police Department. Id. at ¶ 23. After leaving the hospital, plaintiff alleges Rogerson's mother called the Jefferson County Sheriff's Office and Sheriff James Adkins told her to contact Warm Springs police. Id. at ¶ 24.
Plaintiff asserts that upon arrival at the Warm Springs Police Department, defendant Aryanfard took photos and told Rogerson he would figure out what happened. Plaintiff alleges she never heard from Aryanfard again. Id. at ¶ 25.
Plaintiff alleges defendant Aryanfard come to the unreasonable conclusion that E.J.T. injured himself leaning over a coffee table. Aryanfard did not write a report, notify DHS, or do anything further with the photographs. Id. at ¶ 26.
Two days later, hearing nothing from DHS, Rogerson called DHS and discovered DHS had not received a report. Rogerson continued to leave E.J.T. in Mendoza-Melo's care from October 2, 2017 to November 19, 2017. Plaintiff alleges that on the morning of November 19, 2017, Mendoza-Melo assaulted E.J.T. inflicting serious injuries including traumatic brain injury. E.J.T.'s injuries necessitated surgery at Doernbecher Children's Hospital to relieve a subdural brain hematoma and resulted in permanent catastrophic brain damage and disability. Id. at ¶ 30.
After entering a plea, a Jefferson County judge sentenced Mendoza-Melo to a 144-month sentence for the injuries inflicted to E.J.T. on October 1, 2017 and November 19, 2017. Id. at ¶ 33. Plaintiff alleges defendants Jefferson County and Anderson were negligent by:
(a) failing to make a mandatory cross-report of child abuse or neglect to DHS, as was required by ORS 419B.015;
(b) failing to cause an investigation to be made to determine the nature and cause of the abuse of E.J.T., as required by ORS 419.020(1)(a);
(c) failing to cause E.J.T.'s injuries to be photographed and sent to a designated medical professional pursuant to ORS 419B.028; and
(d) failing to ensure that a designated medical professional conducted a medical assessment of E.J.T. within 48 hours, as required by ORS 419B.023(2).Id. at ¶ 36.
Plaintiff asserts that as a result of this negligence, as well as the negligence of defendant Aryanfard, an investigation into the nature and cause of the injuries sustained by E.J.T. on or about October 1, 2017, was not conducted; E.J.T.'s actual assailant was not identified; and E.J.T. was not protected from Mendoza-Melo resulting in the critical injuries suffered on November 19, 2017. Id. at ¶ 37.
Plaintiff alleges defendants Jefferson County and Anderson violated Or. Rev. Stat. § 124.105 by permitting Mendoza-Melo to engage in physical abuse of E.J.T. after October 2, 2017, by knowingly failing to act on and after October 2, 2017, under circumstances in which a reasonable person should have known of the physical abuse. Id. at 42.
Plaintiff alleges defendant Anderson violated 42 U.S.C. § 1983 by failing to investigate E.J.T.'s injuries because of his belief that E.J.T. was Native American in violation of his equal protection rights. Id. at ¶ 47. Plaintiff asserts defendant Jefferson County also violated E.J.T.'s equal protection rights via a policy, custom, or practice by directing deputies to refer child abuse cases to the Warm Springs Police Department without conducting an investigation to determine the location of the abuse, by failing to investigate allegations of child abuse involving Native American children, and by failing to cross-report allegations of child abuse involving Native American children to DHS. Id. at ¶ 51. Plaintiff also alleges Jefferson County failed to adopt a clear policy, custom, or practice for circumstances under which deputies should investigate allegations of child abuse involving Native American children and cross-referrals of such abuse to DHS.
Defendants Jefferson County and Anderson move to dismiss all claims against them.
DISCUSSION
A. Motion to Dismiss
The Jefferson County defendants assert they did not violate any part of Or. Rev. Stat. § 419B.010 et seq. and that even if they did there is no civil cause of action available for any alleged violation. The Jefferson County defendants also assert the Oregon Tort Claims Act (OTCA) precludes any claims brought pursuant to Or. Rev. Stat. § 124.105 against a public body or its employees and that regardless they did not violate the statute. Finally, defendants argue plaintiff's equal protection claim fails because the decisions made by defendants were not related to E.J.T.'s status as a Native American and because Deputy Anderson is entitled to qualified immunity.
Defendants also argue that the allegations in the complaint and Defendant Anderson's declaration establish that any substantive due process claim fails. However, plaintiff does not assert a claim for violation of his substantive due process rights.
To state an equal protection claim, plaintiff “must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent.” Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir.1998).
The first step in an equal protection analysis is to identify defendant Anderson's classification of groups. Country Classic Dairies, Inc. v. State of Montana, Dep't of Commerce Milk Control Bureau, 847 F.2d 593, 596 (9th Cir.1988). To accomplish this, plaintiff can show that Anderson applied the law in a discriminatory manner or imposed different burdens on different classes of people. Christy v. Hodel, 857 F.2d 1324, 1331 (9th Cir.1988). Next, it is necessary to determine the level of scrutiny. Country Classic Dairies, 847 F.2d at 596. Classifications based on race or national origin, such as those alleged here, are subject to strict scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1988).
Plaintiff has alleged E.J.T.'s father is a member of the Confederated Tribes of the Warm Springs. Plaintiff also alleges that when Anderson discovered that E.J.T.'s father lived in Warm Springs, he “raised his hands and told her this was out of his jurisdiction, then turned and left.” Complaint (ECF 1) at ¶ 20. Plaintiff asserts Anderson conducted no investigation whatsoever, did not write a report, and did not notify DHS. Id. at ¶ 21. Plaintiff specifically alleges Anderson did not investigate E.J.T.'s abuse because of Anderson's belief that E.J.T. was Native American.
The complaint is susceptible to an inference that Anderson deliberately chose not to investigate the abuse suffered by E.J.T. based on a discriminatory purpose. In his declaration, defendant Anderson disputes some of the alleged facts asserting he decided not to investigate because “the abuse took place on the Warm Springs Reservation, at a place located on the reservation, by a person that lived on the reservation” and the referral to Warm Springs had nothing to do with race. Motion to Dismiss (ECF 8) at p. 24. However, the complaint alleges the abuse did not take place at Warm Springs and was not committed by E.J.T.'s father. The complaint is reasonably read to allege the subsequent abuse occurred because of the lack of an investigation by Jefferson County which would have established the true abuser within Jefferson County's jurisdiction before the subsequent abuse took place. Moreover, it is inappropriate to look beyond the complaint on a motion to dismiss.
Defendant Anderson also raises a qualified immunity defense to the equal protection claim. 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). The protection afforded by qualified immunity applies regardless of whether the government official's error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Butz v. Economou, 438 U.S. 478, 507 (1978).
There is generally a two-step sequence for resolving government officials' qualified immunity claims. First, a court must decide whether plaintiff's alleged facts violate a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001) (receded by Pearson v. Callahan, 555 U.S. 223 (2009) (finding Saucier step beneficial, but not mandatory)). Second, the court must decide whether the right at issue was “clearly established” at the time of defendant's alleged misconduct. Id. A right is “clearly established” for purposes of qualified immunity analysis when the contours of the right are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer's conduct would violate the Constitution, the officer should not be subject to liability or indeed, even the burdens of litigation.
It is important to emphasize that this inquiry “must be undertaken in light of the specific context of the case, not as a broad general proposition.”Brosseau v. Haugen, 543 U.S. 194, 198 (2004).
Defendant Anderson asserts there is no clearly established law that would put a reasonable sheriff's deputy on notice that referring “a case and investigation to the police agency that had jurisdiction over a sovereign Indian reservation because the crime took place on the Reservation and the wrongdoer lived on the reservation violated the constitutional rights of the victim of a crime.” Again, however, the complaint alleges the crime was committed by a resident of Jefferson County within the jurisdiction of the Jefferson County Sheriff. Thus, defendant Anderson appears to assert a reasonable mistake of fact, but that is not an issue that can be resolved on a motion to dismiss. Because it cannot be determined from the complaint itself that qualified immunity applies, the motion to dismiss this claim should be denied. See Groten v. California, 251 F.3d 844, 851 (9th Cir.2001) (Under Fed.R.Civ.P. 12(b)(6), dismissal is not appropriate unless it can be determined, based on the complaint itself, that qualified immunity applies.).
Plaintiff asserts Oregon law clearly establishes a duty to report child abuse to DHS and investigate child abuse under Or. Rev. Stat. § 419B.010. However, there appears to be no case law to suggest violation of the duties imposed by this statute amount to a constitutional violation.
Defendant Anderson does not assert there is no case law establishing a failure to investigate to ascertain the identity of the abuser amounts to a constitutional violation. Arguably, such a duty is clearly established even assuming a witness told him that E.J.T.'s father committed the abuse. Cf. Rios v. City of San Diego, 2015 WL 12513462, at *10 (S.D. Cal. Oct. 13, 2015):
it was clearly established that an officer has a duty to investigate a witness' report of a crime in order to establish probable cause. See, e.g., Hopkins, 573 F.3d at 771-72 (“[T]his court determined as early as 1991 that ‘police officers ha[ve] a duty to conduct an investigation into the basis of [a] witness' report' and that absent such investigation the report alone does not support probable cause.”); Arpin, 261 F.3d at 925 (“In establishing probable cause, officers may not solely rely on the claim of a citizen witness that he was a victim of a crime, but must independently investigate the basis of the witness' knowledge or interview other witnesses.”); Fuller, 950 F.2d at 1444 (“We decline to adopt Appellees' argument that merely because citizen witnesses are presumptively reliable, the officers in this situation had no duty to examine further the basis of the witness' knowledge or talk with any other witnesses.”). However, it has been noted that the law holds that a police officer does not have a clearly established constitutional duty to continue to investigate a crime. Kompare v. Stein, 801 F.2d 883, 890 (7th Cir.1986). Nor is there a clearly established constitutional duty to investigate thoroughly. Id. Nonetheless, there is case law establishing failure to investigate can violate equal protections rights when such failure is based on discriminatory intent. See Snyder v. Smith, 7 F.Supp.3d 842, 866-67 (S.D.Ind. 2014) (City police officers were not entitled to qualified immunity from party attendee's equal protection claim arising from officers' alleged failure to investigate her allegations that she was sexually assaulted at a party due to the officers' ties to assailants; law was clearly established that withholding all police protection from a plaintiff, at least when prompted by invidious personal motives, violated the Equal protection Clause). It cannot be determined from the complaint itself that qualified immunity applies at this stage of the proceedings.
Defendants also move to dismiss the Monell claim against Jefferson County for violation of E.J.T.'s equal protection rights contending Jefferson County cannot be held liable because Anderson did not violate the equal protection clause of the Fourteenth Amendment. As noted above, the complaint adequately alleges an equal protection claim against Anderson, and plaintiff further alleges the violation resulted from a policy, custom, or practice of Jefferson County. The motion to dismiss plaintiff's equal protection claims should be denied.
2. Or. Rev. Stat. § 419B Claims
As noted above, plaintiff alleges defendants failed to make mandatory reports, investigate abuse, take photographs to be sent to a medical professional, and ensure that a medical assessment was conducted in violation of Or. Rev. Stat. §§ 419B.015-028. Although defendants dispute a number of factual allegations made in the complaint and submit hospital records and declarations in support of their version of the facts, on a motion to dismiss, the Court is generally confined to the four corners of the complaint.
Defendants again rely on their assertion that Warm Springs had jurisdiction to handle the report of abuse. Defendants also assert many of the reporting and investigatory obligations were in fact handled by Warm Springs. However, plaintiff asserts the Jefferson Count defendants neglected to perform the obligations the statute imposed on them and alleges that the abuse occurred within the jurisdiction of Jefferson County who conducted no investigation.
In order to allege a negligence claim based on a statutory duty, plaintiff must establish that: (1) a statute imposed a duty on defendant; (2) the legislature expressly or impliedly intended to create a private right of action for violation of the duty; (3) defendant violated the duty; (4) plaintiff is a member of the group that the legislature intended to protect by imposing the duty; and (5) plaintiff suffered an injury that the legislature intended to prevent by creating the duty. Deckard v. Bunch, 358 Or. 754, 759-60, 370 P.3d 478, 482 (2016).
Former Or. Rev. Stat. § 419B.015 imposed on law enforcement agencies, during the relevant time period, a requirement to report child abuse to DHS when it receives such a report. Former Or. Rev. Stat. § 419B.020(1)(a) required law enforcement agencies to cause an investigation to be made to determine the nature and cause of abuse of child when it receives a report a child abuse. Former Or. Rev. Stat. § 419B.023(2) allowed a person conducting such investigation who has a reasonable suspicion that an injury is the result of abuse to take photos of the injury and ensure that a designated medical professional conducts an assessment within 48 hours.
The complaint alleges statutorily imposed duties, as noted above, of a failure to report, investigate, photograph, and ensure a medical assessment. Although it is alleged that defendant Anderson was informed that the abuse took place at E.J.T.'s father's home in Warm Springs, such allegations do not negate the duties imposed by the statute and an inference can be drawn from the complaint that had Anderson performed those duties he would have ascertained that the abuse had in fact occurred within Jefferson County's jurisdiction. In addition, even assuming other law enforcement at Warm Springs complied with the statutorily imposed duties and a medical assessment was completed, it does not demonstrate that the complaint fails to plead the Jefferson County defendants' negligence in this regard. To the extent defendants attempt to have the Court weigh the facts, such is inappropriate on a motion to dismiss.
The significant issue here is whether the Oregon legislature intended to create a private cause of action for violation of the duties imposed by Or. Rev. Stat. § 419B.010 et. seq. It appears that on this issue the federal and state courts in Oregon are in conflict.
Judge Youlee You determined that in enacting a version of the statute at issue that is materially the same as the version at issue in this case, the Oregon Legislature did not expressly or impliedly intend to create a private right of action to remedy a violation of the duties that the statute imposes. Lowry v. Univ. of Oregon Med. Sch., 2018 WL 5780849, *8 (D. Or. Sept. 28, 2018), report and recommendation adopted, 2018 WL 5777482 (D. Or. Nov. 1, 2018).
However, the Oregon Court of Appeals allowed a claim for negligence to go forward against the State of Oregon Children's Services Division based on a violation of a statute substantially similarly to the statute now codified as Or. Rev. Stat. § 419B.020. Blachly v. Portland Police Dep't, 135 Or.App. 109, 116-17, 898 P.2d 784, 789 (1995). Similarly, in Shin v. Sunriver Preparatory Sch., Inc., 199 Or.App. 352, 111 P.3d 762 (2005), the Oregon Court of Appeals upheld a jury verdict imposing liability for negligence based in part on a failure to report abuse to authorities as required by statute.
However, Judge You specifically noted:
Statutory liability “arises when a statute either expressly or impliedly creates a private right of action for the violation of a statutory duty.” Deckard v. Bunch, 358 Or. 754, 759 (2016). “Whether a statute does so is a question of statutory interpretation.” Doyle v. City of Medford, 356 Or. 336, 344 (2014) (internal citations omitted). Oregon courts first ask whether the text, context, or legislative history of the statute indicate that the legislature expressly or impliedly intended to create a private right of action to remedy a violation of the duty that the statute imposes. Doyle, 356 Or. at 368. If there is no such indication, courts then ask “whether creation of the common-law right of action that plaintiffs advance would be consistent with the legislative purpose, appropriate for promoting its policy, and needed to ensure its effectiveness.” Id. (citing Bob Godfrey Pontiac, Inc. v. Roloff, 291 Or. 318, 330 (1981) and Restatement (Second) of Torts § 874A, comment h). Lowry relies on Nearing v. Weaver, 295 Or. 702 (1983), and Scovill ex rel. Hubbard v. City of Astoria, 324 Or. 159 (1996), and argues the two factors articulated in those cases are present here: that (1) the statute refers to civil liability in some way, and (2) the plaintiff will be left with no remedy unless the legislature impliedly created one or the court itself provided one. See Resp. at 16, ECF #43 (citing Nearing, 295 Or. at 707-09)). However, these cases pre-date “the adoption of [the] current statutory interpretation methodology.” Deckard, 358 Or. at 760. The Oregon Supreme Court has more recently held that these “factors are neither exclusive nor talismanic” and “may not advance the analysis very far.” Id. The court held that “the proper methodology for determining whether the legislature (either expressly or by implication) intended to create a right of action for enforcement of a statutory duty is the familiar holistic framework of the statutory text, context, and legislative history.” Deckard, 358 Or. at 760.Lowry, 2018 WL 5780849, at *7 (emphasis added). The same issues exist with Blachly. Nonetheless, plaintiff highlights Oregon trial court cases in line with Blachly since the decision in Deckard. See H.H. v. State of Oregon et al., Marion Co. No. 16CV24119 (March 10, 2017, Abar, J.) (denying city's motion to dismiss negligence claim based on Karly's Law, a component of Oregon's mandatory child abuse reporting law) (ECF 24 at Ex. 18)); Kuranz v. Lifeways, Inc. et al., Umatilla Co. No. 18CV03629 (August 31, 2018, Lieuallen, J.) (denying Lifeways' motion to dismiss plaintiff's negligence per se claim based on the failure of its employees to make a mandatory child abuse report) (ECF 24 at Ex. 19). Moreover, plaintiff notes that the Oregon State Professional Liability Fund has paid claims for attorneys found to have violated mandatory child abuse reporting laws. Declaration of Erin K. Olson (ECF 24) at ¶ 18. The Oregon Supreme Court has not directly addressed this issue. Although, I agree with Judge You's assessment, given the imposition of liability in the Oregon trial courts and other state forums, I recommend the Court seek input from the Oregon Supreme Court before deciding the issue as noted below in the discussion of the motion to certify. Accordingly, I recommend the Court deny the motion to dismiss the Or. Rev. Stat. § 419B claims without prejudice pending the Oregon Supreme Court's response.
Indeed, defendants note the scope of liability that would be imposed upon thousands of people who may not have adequate insurance and the inadequate resources of law enforcement agencies who would also be subject to the reporting laws if a private cause of actions exists. Given that such liability is currently being imposed in the trial courts in Oregon, a definitive answer from the Oregon Supreme Court is necessary.
3. Or. Rev. Stat. § 124.105 Claim
Plaintiff alleges defendants violated Or. Rev. Stat. § 124.1055 by permitting Mendoza-Melo to engage in physical abuse of E.J.T., a vulnerable person, after October 2, 2017 by knowingly failing to act under circumstances in which a reasonable person should have known of the abuse. Defendants assert the “undisputed facts” show no violation because they did not know Mendoza-Melo existed. However, the facts have not been developed in this case and the allegations in the complaint must be taken as true for purposes of a motion to dismiss. Those allegations plausibly allow a trier of fact to infer that the defendants' failure to fulfill their duties to investigate resulted in abuse, subsequent to the abuse they had already been called upon to investigate by the same person. The allegations are sufficient to withstand a motion to dismiss a claim made pursuant to Or. Rev. Stat. § 125.105.
A vulnerable person who suffers injury by reason of physical abuse may bring an action against any person who has caused the physical abuse or who has permitted another person to engage in physical abuse. Or. Rev. Stat. § 124.100(2) (emphasis added).
The Jefferson County defendants also assert the OTCA precludes a claim brought pursuant to Or. Rev. Stat. § 124.105. This Court has on numerous occasions found such claims precluded under the OTCA including a decision by the undersigned:
Subject to the limitations of ORS 30.260 to 30.300, every public body is subject to civil action for its torts and those of its officers, employees and agents acting within the scope of their employment or duties....Or. Rev. Stat. § 30.265(1) (emphasis added).
However:
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. The remedy provided by ORS 30.260 to 30.300 is exclusive of any other action against any such officer, employee or agent of a public body whose act or omission within the scope of the officer's, employee's or agent's employment or duties gives rise to the action. No. other form of civil action is permitted.Or. Rev. Stat. § 30.265(2) (emphasis added).
Plaintiffs rely on case law allowing the abuse of a vulnerable person claim to go forward against employees of a public body. See Piazza v. State ex rel. Dep't of Human Servs. & Oregon Youth Auth., 261 Or.App. 425, 428, 323 P.3d 444, 446 (2014). However, plaintiffs offer no authority analyzing whether a claim for abuse of a vulnerable person is precluded by the sole cause of action limitation in the OTCA. Two decisions from this court indicate the OTCA does indeed preclude a claim for abuse of a vulnerable person against a public body. See Slaughter v. Will, 2016 WL 4087278, at *2 (D. Or. June 15, 2016), report and recommendation adopted sub nom. Slaughter v. Officer Nate Will, 2016 WL 4087107 (D. Or. July 27, 2016) (“The statute is clear that this remedy is ‘exclusive of any other action' and ‘[n]o other form of civil action is permitted.'”); A.G. v. Or. Dep't of Human Servs., 2015 WL 5178707, at *14 (D. Or. Sept. 3, 2015) (“[t]he plain text of the OTCA is quite clear that a plaintiff may not pursue a state-law civil action against a state official unless the claim arises out of the OTCA.”).Sawyer for Est. of Sawyer v. Cent. Oregon Cmty. Coll., 2018 WL 2946417, at *7 (D. Or. Apr. 5, 2018), report and recommendation adopted sub nom. Sawyer v. Cent. Oregon Cmty. Coll., 2018 WL 2946396 (D. Or. June 11, 2018).
Here, plaintiff asserts the “sole cause of action” provision only limits the liability of public bodies to a capped amount of money.
In J.M. v. Major, 2018 WL 7104882, (D. Or. Oct. 2, 2018), report and recommendation adopted, 2019 WL 281299 (D. Or. Jan. 22, 2019), Judge You impliedly addressed this argument:
Finally, plaintiffs cite ORS 124.135, which states that “[t]he remedies provided by ORS 124.100 are in addition to any other remedy, civil or criminal, that may be available under any other provision of law.” They argue that, if the legislature intended for ORS 124.100 to be a “tort” within the scope of the OTCA, then ORS 124.135 conflicts with ORS 30.265(2), which states that the “sole cause of action for a tort” committed by public employees acting within the scope of their employment is an action under the OTCA.
This court discerns no such conflict. In determining the intent of the legislature in enacting ORS 124.100, the court follows the framework set forth in State v. Gaines, 346 Or. 160, 171-72 (2009) (en banc). The first step in statutory construction is “an examination of text and context” of the statute. Id. at 171. Whether or not there is an ambiguity in the statute, the court may also consider legislative history “where that legislative history appears useful to the court's analysis.” Id. at 172. “[T]he extent of the court's consideration of that history, and the evaluative weight that the court gives it, is for the court to determine.” Id. Otherwise stated, the court is obligated “to consider proffered legislative history only for whatever it is worth- and what it is worth is for the court to decide.” Id. at 173. “If the legislature's intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.” Id. at 172.
The text of ORS 30.265(2) broadly bars any other form of civil action: it states that 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” is the OTCA. It further emphasizes that this remedy is “exclusive of any other action” and that “[n]o other form of civil action is provided.” Id. As discussed at length above, a civil right of action contemplated by ORS 124.100 constitutes a “tort” within the scope of the OTCA. Thus, at least as to state employees acting within the scope of their employment, there is no other form of civil action “available under any other provision of law, ” including under ORS 124.100.
Nothing in the text or context of ORS 124.135 indicates it was intended to thwart the categorical limitation of ORS 30.265(2) applicable to torts committed by public employees. Plaintiffs have offered no legislative history establishing that the legislature intended to open the door to civil actions against public employees when it enacted ORS 124.100. The “particular intent” evident in ORS 30.265(2) to bar any form of civil action against state employees except as provided in the OTCA is “paramount” to the “general intent” evident in ORS 124.135 that the remedies of ORS 124.100 are in addition to any other remedy. See ORS 174.020 (“When a general provision and a particular provision are inconsistent, the latter is paramount to the former so that a particular intent controls a general intent that is inconsistent with the particular intent.”). Accordingly, ORS 124.135 does not create an exception to the limitation on civil actions permitted against public employees.Id. at *10.
Plaintiffs, however, suggest the OTCA encompasses a waiver for torts committed by public employees (to be asserted against the public body) including statutory torts like that enacted in Or. Rev. Stat. § 124.105. Indeed, plaintiff notes that the Oregon Supreme Court has allowed claims brought pursuant to Or. Rev. Stat. § 659.425 while limiting only the liability of the public body against whom the claim was brought to the cap established by the OTCA. See Griffin By & Through Stanley v. Tri-Cty. Metro. Transp. Dist. of Oregon, 318 Or. 500, 507, 870 P.2d 808, 811 (1994) (state agency's breach of its statutory duty to assist individuals in reestablishing their business was a “tort” within the meaning of the OTCA); Id. at 515, 870 P.2d at 815 (in an employment discrimination action under Or. Rev. Stat. § 659.425, the $100,000 liability limit in Or. Rev. Stat. § 30.270(1)(b) at the time of the alleged tort applies not only to the award of damages, but also to any award of attorney fees and costs). This decision suggests that the Oregon Supreme Court may indeed allow a claim under the abuse of a vulnerable statute to proceed despite the sole cause of action provision in the OTCA while limiting the cap on damages including fees and treble damages to that stated in the OTCA.
Moreover, plaintiff submits numerous state trial court decisions allowing claims for abuse of a vulnerable person to go forward against public bodies and suggests the Oregon Attorney General has abandoned its argument the OTCA bars such claims in an apparent attempt to avoid the Oregon Supreme Court deciding the issue. The Court should thus refer the question of whether the OTCA bars the section 124.105 claim to the Oregon Supreme Court as noted below and deny the motion to dismiss the claim as barred by the OTCA without prejudice pending an answer.
See Declaration of Erin K. Olson (ECF 24) at Ex. 30 (DHS withdraws argument that section 124.100 claim is barred by the OTCA); Ex. 31, p. 11 (abandoning claim that section 124.100 claim is a free standing claim barred by the OTCA) at p. 7 (State of Oregon believes a section 124.100 claim can be made under the constraints of the OTCA).
B. Motion to Certify Questions to the Oregon Supreme Court
Plaintiff moves to certify the following questions to the Oregon Supreme Court:
(1) Can a violation of Oregon's mandatory child abuse reporting law serve as a basis for statutory liability?
(2) Is a claim for Abuse of a Vulnerable Person under Or. Rev. Stat. §124.100 et seq., available against public bodies?
The Supreme Court may answer questions of law certified to it by the Supreme Court of the United States, a Court of Appeals of the United States, a United States District Court, a panel of the Bankruptcy Appellate Panel Service or the highest appellate court or the intermediate appellate court of any other state, when requested by the certifying court if there are involved in any proceedings before it questions of law of this state which may be determinative of the cause then pending in the certifying court and as to which it appears to the certifying court there is no controlling precedent in the decisions of the Supreme Court and the intermediate appellate courts of this state.Or. Rev. Stat. § 28.200.
Before the Oregon Supreme Court's discretion is called upon, however, the questions must meet five criteria: (1) The certification must come from a designated court; (2) the question must be one of law; (3) the applicable law must be Oregon law; (4) the question must be one that “may be determinative of the cause;” and (5) it must appear to the certifying court that there is no controlling precedent in the decisions of this court or the Oregon Court of Appeals. W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 311 Or. 361, 364, 811 P.2d 627, 630 (1991).
This Court is designated to certify questions. The questions present a legal question. The applicable law concerns interpretation of Oregon statutes. The answer to the questions may dispose of the claims in this case if answered in the negative. To the extent the Oregon Court of Appeals in Blachly v. Portland Police Dep't, 135 Or.App. 109, 116-17, 898 P.2d 784, 789 (1995) provided controlling precedent as to question one, this Court has rejected such opinion given subsequent intervening Oregon Supreme Court cases regarding a related analysis. See Lowry v. Univ. of Oregon Med. Sch., 2017 WL 2450283, at *4 (D. Or. June 2, 2017) (citing Blachly even though the Court rejected a cause of action under Or. Rev. Stat. § 419B.00); Deckard v. Bunch, 358 Or. 754, 759, 370 P.3d 478, 482 (2016); and Doyle v. City of Medford, 356 Or. 336, 344, 337 P.3d 797, 803 (2014). In addition, there is no controlling precedent as to the second question.
Although this Court has already exercised its decision-making authority in the past answering both questions in the negative, the question returns to this Court repeatedly and plaintiff presents compelling issues suggesting a conflict may exist between this Court and the Oregon state courts. A final resolution by the Oregon Supreme Court of the above questions would be helpful to both courts and have broad legal consequence in the state and federal system. Accordingly, the motion to certify questions should be granted.
Defendants suggest certification is waste of judicial resources because they will prevail on the section 1983 claim at summary judgment and the Court will not need to reach the state law questions if it declines to retain jurisdiction. Even assuming a defense win at the summary judgment stage is a forgone conclusion, which it is not, plaintiff will then be free to pursue the state law claims, starting from scratch, in the state courts which will not result in a conservation of judicial resources.
CONCLUSION
Defendants' motion to dismiss (ECF 8) should be denied and plaintiff's motion to certify questions to the Oregon Supreme Court (ECF 23) should be granted and this action should be stayed pending the Oregon Supreme Court's answers.
This recommendation is 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 the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.