Opinion
3:23-cv-00903-JR
05-13-2024
CYNTHIA BENOIT, as a personal representative of the estate of IKAIKA RYAN CHUNG, deceased, Plaintiff, v. ANDREW GRASLEY; MEGAN HEIDT; INTEGRATED MEDICAL SOLUTIONS, LLC, a Texas limited liability company also known as INTEGRATED MEDICAL SOLUTIONS, INC.; FEDERAL BUREAU OF PRISONS; and UNITED STATES OF AMERICA, Defendants.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Plaintiff Cynthia Benoit, in her capacity as personal representative for the estate of Ikaika Ryan Chung, initiated this action against defendants Andrew Grasley, Megan Heidt, Integrated Medical Solutions, the Federal Bureau of Prisons (“BOP”), and the United States. Grasley, Heidt, and the Untied States now move to partially dismiss plaintiffs complaint pursuant to Fed.R.Civ.P. 12(b)(1) and Fed.R.Civ.P. 12(b)(6). For the reasons stated below, defendants' motion should be granted in part and denied in part.
BACKGROUND
This case arises out of Chung's death, at the age of 42, while incarcerated at FCI Sheridan. Compl. ¶¶ 1, 4 (doc. 1). Chung “had been in federal custody since early 2018” and was first diagnosed with Hepatitis C in 2007. Id. at ¶¶ 10, 13. Shortly after Chung was placed in federal custody, he had an APRI score - used to predict the degree of liver scarring - of 1.4. Id. at ¶ 13, That number climbed to 2.4 in July 2019, 4.1 in January 2020, and 15.5 in February 2021. Id.
“A higher APRI generally corresponds to more advanced or severe [Hepatitis C] complications. An APRI above 2.0 is indicative of advanced liver damage.” Steward v. Dy, 88 F.4th 811, 816 n.2 (9th Cir. 2023).
In March 2019, while housed at Metropolitan Corrections Center San Diego, Chung was “not [eligible for treatment] given his recent hospitalization to acute detox and his pre-sentence status and uncertainty of whether he will be somewhere long enough to finish a course of treatment with good continuity of care and follow-up.” Id. at ¶ 14. Chung “was transferred to FCI Sheridan in the summer of 2019” to serve a ten-year sentence. Id. at ¶ 16.
Chung met Grasley, “a Clinical Director and treating physician at FCI Sheridan,” for the first time on January 7, 2020. Id. at ¶¶ 7, 18. Grasley noted Chung's elevated APRI score, as well as edema in Chung's lower extremities. Id. at ¶ 18. Although Grasley ordered an ultrasound of Chung's liver at this appointment, Chung did not receive that ultrasound until April 5, 2021. Id. at ¶¶ 18, 21. The ultrasound showed advanced cirrhosis. Id. at ¶ 21.
“[L]iver cirrhosis [and edema are known] complication[s] of untreated Hepatitis C.” Compl. ¶ 18 (doc. 1). And “[s]kin infection is a known medical complication that can result from edema.” Id. at ¶ 26.
On April 10, 2021, Chung had a follow-up appointment with Grasley, who ordered a second ultrasound - “with a target date of November 26, 2021” - but did not start Chung on a course of Hepatitis C treatment. Id. at ¶¶ 21-22.
Chung presented for care on April 30, 2021, for “worsening edema.” Id. at ¶ 24. “[E]dema and weight gain” were noted during a June 21, 2021, appointment, but Grasley did not discuss the need for an appropriate follow-up plan with treating staff at that time. Id. When Chung began to show signs of cellulitis in his lower extremities, defendants repeatedly failed to prescribe antibiotics “and his infection worsened,” developing into “cellulitis and eventually into sepsis, causing organ failure.” Id. at ¶¶ 11, 26.
Chung and other prisoners “continuously complained to Defendants' medical staff and correctional staff about the symptoms in his right leg, including increasing swelling, pain, skin tenderness, lesions, discoloration, and pus but he was not provided with minimally adequate medical treatment for these worsening conditions.” Id. at ¶ 27. Heidt, “an EMT employed by the BOP or, in the alternative employed by Integrated Medical Solutions,” was “observed by other prisoners in the unit while she did cell checks and did not offer any medical help.” Id. at ¶¶ 8, 27.
In the weeks leading up to his death, Chung's “legs swelled up to twice their regular size, swelling so much that he was unable to walk.” Id. at ¶ 28. He “began missing meals due to his inability to walk,” as he was not provided with a mobility device. Id. at ¶¶ 28-29. “Other inmates observed that [Chung's] extremely swollen legs had spots bursting open with pus leaking out all over his pillows” and that his “cell smelled like decaying flesh.” Id. at ¶¶ 32-34.
On August 4, 2021, approximately one week before Chung's death, Grasley saw “Chung for a medical appointment, and noted the ‘pitting edema,' without measuring the extent of the swelling or coloration,” and that “weight had increased dramatically - twelve pounds in six weeks.” Id. at ¶¶ 34-35. Grasley ordered routine labs, denoting Chung “has a drug sanction, almost ready to start treatment.” Id. at ¶¶ 34, 36. Grasley doubled the dosage of Chung's “Furosemide prescription - from 40 mg to 80 mg - without ordering any follow-up observation or testing to see how [his] blood pressure, kidney and liver function and fluid retention would respond,” Id. at ¶ 37.
For the last days of his life, Chung “became cognitively impaired and was having trouble remembering words.” Id. at ¶ 39. “[H]is eyes also started leaking” and he “was completely bedridden.” Id. at ¶¶ 39-40.
“Sepsis-Associated Delirium is a known medical condition caused by complications from untreated bacterial infections,” Compl. ¶ 39 (doc. 1).
On August 12, 2021, the morning of Chung's death, a correctional officer came to his door for a cell check. Id. at ¶ 41. “Other prisoners told the correctional officer that [Chung] was incoherent and that he needed to see a doctor immediately.” Id. “The correctional officer called the medical unit,” informed them that Chung was incoherent, and requested treatment. Id. Heidt responded that “Chung was not allowed to come to medical.” Id. Later that morning, Heidt went into Chung's cell, “observed [him] and said, ‘He's not going to die today,”' further refusing to administer treatment. Id. at ¶ 42. Shortly thereafter, “another prisoner wheeled [Chung] to the medical unit in a wheelchair, with the tacit agreement of the correctional officer.” Id.
When Chung arrived at the medical unit, Heidt ordered “Chung and the other prisoners to leave and refused to provide... a physical examination.” Id. at¶43. Another medical staff member saw Chung “and immediately knew he needed emergency care,” Id. “Over defendant Heidt's objections, they called an ambulance after noting his disorientation, trouble breathing, and dangerously low blood pressure and heart rate.” Id. “Ambulance records show that after EMR arrival, there was a forty-five-minute delay in prison officials allowing EMR access to [Chung] to transport him to the emergency room.” Id., at ¶ 44.
When Chung “was finally taken by ambulance to Willamette Valley Medical Center, which is just a twenty-minute drive away from FCI Sheridan, medical staff worked tirelessly to try to save his life,” Id., at ¶ 48. He “was immediately intubated and taken to surgery [due to] septic shock [and a] necrotizing soft tissue infection of the right thigh causing multiorgan failure.” Id., Chung was also “immediately started [on] antibiotics,” which could and “should have [been administered] weeks prior.” Id. at ¶ 49. Chung died that night “from septic shock in the ICU after multiple episodes of cardiac arrest and an emergency procedure to surgically debride necrotic tissue in his right leg.” Id. at ¶ 51.
On June 21, 2023, plaintiff filed a complaint in this Court alleging an Eighth Amendment Bivens claim, as well claims for wrongful death and abuse of a vulnerable person under the Federal Torts Claims Act “(FTCA”). On October 30, 2023, defendants filed the present partial motion to dismiss. Briefing was completed regarding that motion on April 29, 2024.
Plaintiff also alleged a Rehabilitation Act claim but “concedes that [it] is moot due to [Chung's] death . . . and the resultant unavailability of appropriate injunctive relief.” Pl.'s Resp. to Mot. Dismiss 3 (doc. 19).
Defendants also moved to strike “unauthenticated Declarations by unnamed prisoners” submitted by plaintiff in conjunction with her response, as well as “‘status reports' and ‘FPD investigator declarations' filed in prior unrelated habeas petitions” submitted by plaintiff in conjunction with her surreply. Defs,' Notice of Written Obj. 1-3 (doc. 31); Defs.' Sur-Surreply 8 (doc. 34). Plaintiff “agrees that the court should not consider extrinsic evidence to determine whether the facts in [her] complaint.. . plausibly allege claims.” Pl.'s Surreply 15 (doc. 32). The Court did not rely on this evidence in evaluating defendants' motion. Cf Perez-Denison v. Kaiser Found. Health Plan of the Nw., 868 F.Supp.2d 1065,1088-89 (D. Or. 2012) (denying an evidentiary objection as moot where “the evidence moved against does not change the [court's] recommendation” regarding summary judgment).
STANDARDS OF REVIEW
Where the court lacks subject matter jurisdiction, the action must be dismissed. Fed.R.Civ.P. 12(b)(1). Questions surrounding sovereign immunity are appropriately resolved pursuant to a Rule 12(b)(1) motion. See, e.g, Raj v. La. State Univ., 714 F.3d 322, 327-29 (5th Cir. 2013). The party who seeks to invoke the subject matter jurisdiction of the court bears the burden of establishing that such jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The court may hear evidence regarding subject matter jurisdiction and resolve factual disputes where necessary. Kingman Reef Atoll Invs., LLC v. United States, 541 F.3d 1189, 1195 (9th Cir. 2008).
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422,1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
Defendants' motion flows from the premise that plaintiff's “exclusive remedy for Inmate Chung's death is a wrongful death suit under the FTCA against the United States.” Defs.' Mot. Dismiss 19, 24 (doc. 12). That is, defendants argue plaintiff's Bivens claim is foreclosed by Egbert v. Boule, 596 U.S. 482 (2022), and “similar authority” because it “presents a new Bivens context, and special factors counsel hesitation in extending Bivens.” Id. at 7-21. Defendants also argue plaintiffs abuse of a vulnerable person claim under Or. Rev. Stat. § 124.000 “must be dismissed [because] the federal government has not waived sovereign immunity to be sued for intentional torts” pursuant to 28 U.S.C. § 2680(h). Id. at 23. In the alternate, defendants contend this claim fails because Chung does not qualify as a “Vulnerable Person [as he] was neither elderly at 42-years of age, nor was he physically incapacitated under the definitions described in this state statute.” Id. at 24. Finally, defendants maintain plaintiffs “request for attorney's fees and juiy trial demand should be stricken” as there is no entitlement to such relief under the FTCA, and that plaintiff s non-economic damages impermissibly exceed the statutory cap for wrongful death cases articulated in Or. Rev. Stat. § 31.710(1). Id.,
For the first time in their reply brief, defendants proffer additional arguments surrounding plaintiffs abuse of a vulnerable person claim. Specifically, defendants assert: (1) plaintiff neglected to “timely file ... a Federal Tort Claims Act (SF95) Administrative Claim against the BOP”; (2) plaintiff “failed to serve the Oregon Attorney General with the complaint in this action within 30 days of filing suit, as required under ORS 124.100, subsection (6)” and Bishop v. Waters, 280 Or.App. 537, 380 P.3d 1114 (2016); (3) “this statute does not fall within the FTCA's waiver of sovereign immunity” because it “requires the Court to find enhanced, treble damages”; (4) “all damages must be recovered in Plaintiffs wrongful death action” pursuant to Martineau v. McKenzie-Willamette Med. Ctr., 371 Or. 247, 533 P.3d 1 (2023); and (5) “plaintiff has not established Inmate Chung was subject to ‘Physical Abuse' under the definitions in ORS 124.100” even “if [the estate] were to sufficiently] plead Inmate Chung was a person with a disability or an incapacitated person.” Defs.' Reply to Mot. Dismiss 11-18 (doc. 26).
Plaintiff asserts defendants' motion should be denied pursuant to LR 7-1(a) because they “failed to confer in good faith prior to filing their motion.” Pl.'s Resp, to Mot. Dismiss 4 (doc. 19). However, the parties' declarations indicate that defendants complied with the spirit of LR 7-1 (a), if not the letter. See Defs.' Reply to Mot. Dismiss 19 (doc. 26) (“Ms. Lo's own sworn Declaration (and attached exhibit documenting counsel's email exchange) (a) admits that defense counsel outlined all of her motion arguments to all three of Plaintiff s retained counsel in writing, and (b) admits that none of Plaintiff s three lawyers attempted to engage in any further meet and confer efforts or even had the courtesy of responding to defense counsel's email prior to the filing of Defendants' motion”). Given the extensive and protracted briefing in this case, the Court finds a decision on the merits is warranted and therefore declines, in its discretion, to deny defendants' motion on this basis.
I. Bivens Claim
In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), the Supreme Court held that, where a plaintiff prevails against a federal official on a claim that his Fourth Amendment rights have been violated, he is entitled to any “remedial mechanism normally available in the federal courts,” including monetary damages. Id. at 397. In 1980, the Supreme Court extended Bivens to violations of the Eighth Amendment for failure to provide adequate medical treatment to an inmate. Carlson v, Green, 446 U.S. 14, 18-19 (1980).
The Supreme Court has since scaled back Bivens. See Ziglar v. Abbasi, 582 U.S. 129, 135 (2017) (“expanding the Bivens remedy is now a disfavored judicial activity” and courts have “consistently refused to extend Bivens to any new context or new category of defendants”) (citations and internal quotations omitted). Indeed, the Supreme Court recently observed: “While our cases describe two steps” - namely, whether “the case presents a new Bivens context” and the “special factors indicate that the Judiciary is at least arguably less equipped than Congress to weigh the costs and benefits of allowing a damages action to proceed” - “those steps often resolve to a single question: whether there is any reason to think that Congress might be better equipped to create a damages remedy,” Egbert, 596 U.S. at 483,492 (internal citations and quotations omitted).
The Ninth Circuit, however, “continue[s] to apply a two-step framework” post-Egbert, Stanard, 88 F.4th at 816 (citation and internal quotations omitted). In other words, under binding and recent Ninth Circuit precedent, this Court is required to undertake two discrete inquiries, either of which is dispositive. As to the first inquiry, if the case does not present a new Bivens context, “no further analysis is required.” Id., (citation and internal quotations omitted).
Defendants' argument that plaintiffs claim arises in a new context because the facts of this case are too remote from the Eighth Amendment claim in Carlson has been squarely resolved by Stanard. See Defs.' Mot. Dismiss 7-15 (doc. 12) (“[a]ll of Plaintiffs allegations against Dr. Grasley involve things he allegedly failed to do, and none of Plaintiffs allegations resemble the circumstances presented in the Carlson case where faulty equipment was used and contraindicated drugs were administered,” and the complaint otherwise “confirm[s] that Inmate Chung received treatment in the Health Services Department by qualified staff who, on August 12, 2021, immediately referred him out to a local hospital for emergency procedures”).
Critically, in Stanard, an inmate sought relief under Bivens for Eighth Amendment violations by prison officials (including treating providers and a medical director) who repeatedly delayed and denied him treatment for Hepatitis C over a period of over nine months while he was housed at various federal facilities, including FCI Sheridan. Stanard, 88 F.4th at 814. The district court agreed with the defendants that “Stanard's claims would extend Bivens into a new context” and granted dismissal under Rule 12(b)(6) accordingly. Id. at 815. But the Ninth Circuit held that, “[a]long every dimension the Supreme Court has identified as relevant to the inquiry, Stanard's case is a replay of Carlson" Id. at 817 (citation and internal quotations omitted); see also Ziglar, 442 U.S. at 139 (meaningful differences include “the rank of the officers involved; the constitutional right at issue; the extent of judicial guidance for the official conduct; the risk of disruptive intrusion by the Judiciary into the functioning of other branches; or the presence of potential special factors not considered in previous Bivens cases”).
The Ninth Circuit similarly rejected the defendants' assertion “that, unlike the inmate in Carlson, Stanard is challenging a broadly applicable BOP policy governing HCV treatment protocol in federal prisons, rather than a non-policy based pattern of neglect.” Stanard, 88 F.4th at 817. The Ninth Circuit explained: “Even if challenging BOP policy carries a risk of disruptive intrusion by the Judiciary into the functioning of other branches, Defendants' argument mischaracterizes Stanard's claims [insofar as] Stanard is not simply challenging the constitutionality of a broadly applicable BOP policy . . . The core of his complaint concerns the actions and state of mind of Defendants in denying him [Hepatitis C] treatment.” Id. at 817-818 (internal citations and quotations omitted; emphasis in original). Finding the inmate's claim “arise[s] within an existing context,” the Ninth Circuit determined that it “need not proceed to the special factors inquiry,” and reversed the district court's decision. Id. at 818.
Plaintiff here expressly disavows “calling into question the formulation or implementation of any Bureau of Prisons (‘BOP') policies . . . [she] points to existing BOP policies as evidence of Dr. Grasley's responsibilities as the primary provider responsible for delivering medical care to Mr. Chung and supervising the other medical clinic staff in the duties delegated to them.” Pl.'s Surreply 1-2 (doc. 32).
In sum, the Court finds that plaintiffs Bivens claim does not present a new context. As a result, the Court need not reach the second step/special factors analysis and defendants' motion is denied as to plaintiffs Bivens claim.
II. Abuse of a Vulnerable Person Claim
“The FTCA waives the government's sovereign immunity for tort claims arising out of negligent conduct of government employees acting within the scope of employment.” Morales v. United States, 895 F.3d 708, 713 (9th Cir. 2018) (citing 28 U.S.C. § 1346(b)(1)). In an FTCA suit, “the law of the state where the injury occurred is controlling.” Sullivan v. U.S. Dep't of Navy, 365 F.3d 827, 832 (9th Cir. 2004) (citations omitted).
A. Sovereign Immunity
The FTCA's waiver of sovereign immunity excludes several intentional torts - i.e., “[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights.” 28 U.S.C. § 2680(h). Although courts “sometimes have referred loosely to section 2680(h) as an intentional torts exception to the general waiver contained in the FTCA, the provision only preserves the federal government's immunity with respect to claims arising out of certain enumerated torts.” Limone v. United States, 579 F.3d 79, 92 (1st Cir. 2009) (citations and internal quotations omitted). In other words, the exception does not turn on the requisite mental state of the alleged tort - rather, it is the “essence” or “gravamen of the action” that is dispositive. Block v. Neal, 460 U.S. 289, 296 (1983).
In this case, the gravamen of plaintiffs claim is that defendants delayed and failed to provide Chung with necessary and medically appropriate Hepatitis C medication and treatment, resulting in cirrhosis, edema, cognitive impairment, and, ultimately, organ failure and death. The wrongful acts or omissions plaintiff describes thus do not fall within the purview of 28 U.S.C. § 2680(h). See Scott v. United States (“Scott I”), 2023 WL 8789207, *6 (D. Or. Nov. 22), adopted by 2023 WL 8773204 (D. Or. Dec. 18, 2023) (denying the United States' Rule 12(b)(1) motion under virtually identical circumstances).
Further, defendants have not cited to, and the Court is not aware of, any authority construing “treble damages” under Oregon state law as synonymous with § 2674 of the FTCA's preclusion against punitive damages. See Munyua v. United States, 2004 WL 345269, *2 (N.D. Cal. Feb. 3, 2004) (treble damages and civil penalties are not “the equivalent of an award of punitive damages . . . barred by 28 U.S.C. § 2674”) (citing Molzof v. United States, 502 U.S. 301, 30542 (1992)); see also Herring v. Am. Med. Resp. Nw., Inc., 255 Or.App. 315, 323-24, 297 P.3d 9, cert, denied, 353 Or. 867, 306 P.3d 639 (2013) (rejecting the defendant's argument “that the $1,000,000 component of the damages awarded under ORS 124.100 - the amount in excess of the jury verdict - is the functional equivalent of punitive damages”). Accordingly, “the fact that ORS 124.100 requires the Court to find enhanced, treble damages against a person who is found to violate the [abuse of a vulnerable] statute” does not, as defendants contend, preclude its application in the present context. Defs,' Reply to Mot. Dismiss 13 (doc. 26).
B. Exhaustion of Administrative Remedies
Before bringing an FTC A suit in federal court, the plaintiff must exhaust their administrative remedies. 28 U.S.C. § 2675(a). Exhaustion occurs when “a Federal agency receives from a claimant, his duly authorized agent or legal representative, an executed Standard Form 95 or other written notification of an incident, accompanied by a claim for money damages in a sum certain for injury to or loss of property.” 28 C.F.R. § 14.2(a). This requirement is “designed to ensure that compensation is provided in a fair and equitable manner, not to provide a basis for a regulatory checklist which, when not fully observed, permits the termination of claims regardless of their merits.” Blair v. Internal Revenue Serv., 304 F.3d 861, 868 (9th Cir. 2002) (citation and internal quotations omitted); see also Avery v. United States, 680 F.2d 608, 611 (9th Cir. 1982) (“jurisdictional dismissal of FTCA suits brought by plaintiffs who presented only skeletal claims to the agency is not warranted by the statutory language and history,” denoting “minimal notice . .. satisfies] section 2675(a)”).
The record shows that, on April 13,2022, plaintiffs counsel “mailed the tort claims notice with standard form 95 attached to the Federal Bureau of Prisons via certified mail, return receipt requested.” Noble Decl. ¶ 1 (doc. 33). That notice advised: “We intend to pursue any and all claims on behalf of Mr. Chung's estate and on behalf of his daughter arising out of his death.” Noble Decl. Ex. 1¶ at 1 (doc. 33-1). The notice then detailed the circumstances leading up to Chung's death and included medical records and an autopsy report, and articulated the amount of damages sought, both for “personal injury” and “wrongful death.” Id. at 1-4.
The Court finds this notice sufficient to put the United States on notice of both claims that plaintiff asserts under the FTCA, including abuse of a vulnerable person. See Defs.' Sur-Surreply 6 (doc. 34) (acknowledging plaintiff “has exhausted its administrative remedies with regard to a wrongful death lawsuit under the FTCA” but nonetheless concluding that the submitted Standard Form 95 is inadequate as to “the Estate's ‘Abuse of Vulnerable Person Claim'”); see also Estate of Burkhart v. United States, 2008 WL 4067429, *4 (N.D, Cal. Aug. 26, 2008) (denoting that the purposes of FTCA exhaustion “are served when the claim gives the agency sufficient notice to commence investigation” and that “Congress intended section 2675(a)'s notice requirement to be minimal,” such that a plaintiff need only present “bare elements of notice of accident and injury”) (citations and internal quotations and ellipses omitted).
Defendant is correct, however, that “nowhere in Plaintiffs complaint did the Estate mention any exhaustion of administrative remedies or the filing of an SF-95 administrative claim.” Defs.' Sur-Surreply 6 (doc. 34). Accordingly, leave to amend should be granted to allow plaintiff to explicitly allege such facts in the dispositive pleading.
C. Service on the Attorney General
As both parties acknowledge, the Oregon Legislature amended Or. Rev. Stat. § 124.100(6) following Bishop to remove the 30-day deadline and clarify that “[f]ailure to mail a copy of the complaint or pleading is not a jurisdictional defect and may be cured at any time prior to entry of judgment.” See id. (“[p]laintiff is correct that after the Oregon Court of Appeals' decision in Bishop v. Waters, the Oregon Legislature amended ORS 124.100 to remove the 30-day deadline to serve a complaint for Abuse of Vulnerable Person on the Oregon Attorney General”); see also Scott v. United States (“Scott IP), 2024 WL 1462221, *2 n.3 (D. Or. Apr. 4, 2024) (“[t]he Oregon legislature amended ORS § 124.100, effective January 1, 2020, to remove the thirty-day service requirement”).
Moreover, plaintiffs counsel's office manager represented, under penalty of perjury, that she “mailed a copy of the complaint to the Oregon Attorney General on February 21, 2024 via certified mail, return receipt requested.” Noble Decl. ¶ 5 (doc. 33). Defendants' argument that plaintiff failed to timely serve the Oregon Attorney General under Bishop is therefore unavailing.Nevertheless, leave to amend should be granted in order for plaintiff to plead service on the Attorney General in compliance with Or. Rev. Stat. § 124.100(6).
Perhaps acknowledging as much, defendants raise yet another new argument in their sur-surreply surrounding this service requirement: “The fact that the statute requires service of the Complaint on a state Attorney General at all demonstrates that this is a claim limited to state actors, not the United States, because (a) the state Attorney General cannot sue the United States for the acts alleged in this medical malpractice lawsuit, [and] (b) the state Attorney General cannot require the BOP, a federal agency, to comply with an investigative demand.” Defs.' Sur-Surreply 6-7 (doc. 34); see also id. at 6 (contending plaintiffs abuse of a vulnerable person claim fails because “neither the Court nor counsel have proof that the Attorney General has been properly served” since “the return receipt card was lost in the mail”). The Court declines to address the merits of this new argument given that it is procedurally improper, and plaintiff has not had an opportunity to respond. See Scott II, 2024 WL 1462221 at *3 n.4 (court need “not address the United States' [arguments] raised for the first time in its reply”).
D. Wrongful Death Damages as the Sole Remedy
As discussed herein, Oregon law does not operate to preclude the monetary relief plaintiff is seeking. This is especially true considering that a “[p]laintiff may allege claims in the alternative at the pleading stage.” Freeman v. Indochino Apparel, Inc., 443 F.Supp.3d 1107, 1114 (N.D. Cal. 2020).
Further, Martineau does not speak to the precise issue before the Court - i.e., whether Oregon's abuse of vulnerable persons statute authorizes damages beyond those articulated in Oregon's wrongful death statute. In particular, Martineau analyzed the interplay between Or. Rev. Stat. § 30.020(2) (Oregon's wrongful death statute) and Or. Rev. Stat. § 30.075(2) (Oregon's survival statute). Martineau, 371 Or. at 278. The court relied on the 1995 amendments to these statutes to conclude the Oregon legislature “did not intend for plaintiffs to continue bringing claims under the survival statute ... in order to recover attorney fees when bringing a wrongful death claim.” Id at 275; see also Scott I, 2023 WL 8789207 at *4 (explaining that, prior to Martineau, “both wrongful death and survivor claims may coexist in the same action” but, following that case, two distinct injuries must be alleged - i.e., death “caused by the wrongful acts or omissions of another” vs. “injuries - but not the decedent's death - [caused] by the wrongful acts or omissions of another”).
As addressed in Section III, plaintiff is not pursuing attorney fees. Furthermore, the Oregon legislature enacted the abuse of vulnerable persons statute in 1995 and specifically delineated that the remedies provided therein “are in addition to any other remedy, civil or criminal, that may be available under any other provision of law.” Or. Rev. Stat. § 124.135; see also Wyers v. Am. Med, Response Nw., Inc., 268 Or.App. 232, 251, 342 P.3d 129 (2014), aff'd, 360 Or. 211, 377 P.3d 570 (2016) (“[s]ince its enactment in 1995, the legislature has amended [Oregon's Abuse of Vulnerable Person Act] numerous times . . . extend[ing] the scope and reach of that scheme [in each instance]”). It is thus not clear that Martineau appertains to the facts and circumstances of this case. Even so, plaintiff does allege that defendants' wrongful conduct resulted in injuries suffered by Chung before his death, as well as the loss of a chance to live with reduced or no symptoms. See, e.g., Compl. ¶¶ 1, 11-14, 17, 23-26 (doc. 1). Thus, applying Martineau, plaintiff has alleged two discrete injuries such that there is no basis to limit her relief to the remedies articulated in Or. Rev. Stat. § 30.020(2).
E. Sufficiency of Plaintiffs Pleadings
Oregon law provides, in relevant part: “A vulnerable person who suffers injury, damage or death 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). “Vulnerable person” is defined to include an “incapacitated person” or a “person with a disability who is susceptible to force, threat, duress, coercion, persuasion or . physical or emotional injury because of the person's physical or mental impairment.” Or. Rev. Stat. § 124.100(1)(e).
i. Person With a Disability
“Person with a disability” means a person with a physical or mental impairment that:
(A) Is likely to continue without substantial improvement for no fewer than 12 months or to result in death; and (B) Prevents performance of substantially all the ordinary duties of occupations in which an individual not having the physical or mental impairment is capable of engaging, having due regard to the training, experience and circumstances of the person with the physical or mental impairment.Or. Rev. Stat § 124.100(1)(d).
The complaint's qualifying “person with a disability” allegations are premised on the complications that Chung developed as a result of his untreated Hepatitis C. Compl. ¶¶ 1, 11-12, 107, 111-14 (doc. 1). But plaintiff has not cited to, and the Court is not aware of, any authority that supports the proposition that ordinarily treatable conditions such as Hepatitis C can be considered “likely to continue without substantial improvement for no fewer than 12 months or to result in death,” or to preclude the “performance of substantially all the ordinary duties of occupations.” Or. Rev. Stat § 124.100(1)(d). See Scott II, 2024 WL 1462221 at *4 (dismissing, with prejudice, an FTCA/abuse of a vulnerable person claim based on an inmate's “seizure disorder [that could be but was not] controlled by medication” during his incarceration and which resulted in death); see also Washburn v. Columbia Forest Prods., Inc., 340 Or. 469, 478-49, 134 P.3d 161 (Or. 2006) (“the legislature did not intend to categorize an impairment as substantially limiting [if] medication could ameliorate the effects of impairment such that the individual would be capable of performing the otherwise affected major life activity ... To illustrate, if courts fail to consider the effects of mitigating measures, they might [wrongfully] conclude that an individual afflicted by hypertension is a ‘disabled person' simply because for most people, the failure to treat that condition eventually results in substantial limitations to at least one major life activity”).
Stated differently, plaintiff does not allege facts meeting the statutory definition of a “person with a disability” because she does not indicate that Chung's Hepatitis C would have prevented him from working so long as he received medication. See Compl. ¶ 17 (doc. 1) (“Chung had Genotype 3 Hepatitis, which is treated and curable with an eight or twelve-week course of oral medication”); see also id. at ¶ 23 (“treatment could prevent the development of [liver] disease”); id. at ¶ 26 (skin “infections are easily treated”). Defendants' motion is granted in this regard.
ii. Incapacitated Person
“Incapacitated” is “a condition in which a person's ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person's physical health or safety.” Or. Rev. Stat. §§ 124.100(1)(c), 125.005(5). “Meeting the essential requirements for physical health and safety” means “those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur.” Id.
The Oregon Court of Appeals has clarified the meaning of “incapacitated person.” In Herring, the plaintiff sought relief under Oregon's Vulnerable Person Act after a paramedic sexually abused her while she was briefly incapacitated en route to the hospital. Herring, 255 Or.App. at 317. The defendants argued that the plaintiff was not a “vulnerable person” within the meaning of the statute insofar as its definition of “incapacitated” is “simply incompatible with the notion of temporary or episodic incapacity.” Id at 319. Herring rejected that interpretation, observing “[p]eople completely but briefly lose consciousness in any number of situations,” and that a claim can be grounded in “a ‘fleeting' period of a person's impaired ability to protect his or her health and safety.” Id. at 320.
Critically, defendants do not meaningfully address the “incapacitated person” prong as it relates to Herring or the immediate period leading up to Chung's death, instead relying on allegations from weeks in advance showing that Chung “attempt[ed] to play cards” prior to collapsing and repeatedly sought medical care. Defs.' Mot. Dismiss 24 (doc. 12); Defs.' Reply to Mot. to Dismiss 14 (doc. 26), Defendants nonetheless acknowledge welkplcad facts demonstrating that “Chung's ultimate condition on the day of his death” included a “period of sepsis and mental delirium.” Defs.' Reply to Mot. to Dismiss 14 (doc. 26).
Indeed, the complaint expressly alleges that, in the days leading up to August 12, 2021, Chung was “incoherent as he went into shock” while attempting to play cards, thereafter, becoming completely bedridden and seriously cognitively impaired, to the point that he “was having trouble remembering words.” Compl. ¶¶ 39-41 (doc. 1). Based on these allegations, the Court finds that plaintiff has adequately alleged facts establishing Chung qualified as an “incapacitated person,” at least for the immediate period leading up to his death.
iii. Physical Abuse
“Physical abuse” includes “[c]riminal mistreatment” as defined under the provisions of Or. Rev. Stat. §§ 163.200 and 163.205. Or. Rev. Stat. § 124.105(1)(d). Under Or. Rev. Stat. § 163.200, a person commits criminal mistreatment in the second degree if
(a) In violation of a legal duty to provide care for another person, the person withholds necessary and adequate food, physical care, or medical attention from that person; or (b) Having assumed the permanent or temporary care, custody, or responsibility for the supervision of another person, the person withholds necessary and adequate food, physical care, or medical attention from that person.Or. Rev. Stat. § 163.200(1). “Criminal negligence” is further defined to mean “that a person, fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists [that] constitutes a gross deviation from the standard of care.” Or. Rev. Stat. § 161.085(10). The relevant “standard of care” is determined by what “a reasonable person would observe in the same factual context,” and “the ordinary civil negligence standard of care provides the benchmark.” State v. Fruitts, 290 Or.App. 222, 228, 414 P.3d 881 (2018) (citations and internal quotations omitted).
Plaintiff alleges that defendants' treatment of Chung constituted “criminal mistreatment” and substantially deviated from the standard of acceptable medical care. Compl. ¶¶ 13,15, 17, 23, 25, 38, 61, 114-15 (doc. 1). The complaint likewise asserts it was obvious that Chung needed immediate medical care, especially as his conditions progressed. See, e.g., id at ¶¶ 13, 18, 27-46. Plaintiff need not provide the actual mens rea of defendants at this stage of the proceedings. Cf E.J.T. by & through InTRUSTment, Nw., Inc. v. Jefferson Cnty., 2021 WL 3046707, *8 (D. Or. June 15), adopted by 2021 WL 3038865 (D. Or. July 16, 2021) (denying the defendants' Rule 12(b)(6) motion in regard to a challenge under Or. Rev. Stat. § 124.105 where the complaint detailed the circumstances of the abuse and well-plead facts suggested the defendants “fail[ed] to fulfill their duties” to investigate when they knew or should have known of said abuse). In sum, plaintiffs allegations plausibly show criminal mistreatment and, by extension, physical abuse.
III. Attorney Fees and Jury Trial Demand
Plaintiff “concedes that she does not have a claim for attorney fees.” Pl.'s Resp. to Mot. Dismiss 18 (doc. 19), Additionally, defendants' jury trial argument is based exclusively on the FTCA. See, e.g., Defs.' Mot. Dismiss 24 (doc. 12); Def's Reply to Mot. to Dismiss 19 (doc. 26). In other words, while defendants are correct that “any action against the United States under [the FTCA] shall be tried by the court without a jury,” as discussed herein, plaintiff has also adequately plead an Eighth Amendment claim under Bivens. 28 U.S.C. § 2402. And “a plaintiff [may] opt for a jury .. . in & Bivens suit.” Carlson, 446 U.S. at 22.
IV. Non-Economic Damages
A dispute is constitutionally ripe only if “there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality.” Golden v. Cal. Emergency Physicians Med. Grp., 782 F.3d 1083, 1086 (9th Cir. 2015) (citation and internal quotations omitted) Thus, “[a] claim is not ripe if it involves contingent future events that may not occur as anticipated, or indeed may not occur at all.” United States v. Streich, 560 F.3d 926, 931 (9th Cir. 2009) (citation and internal quotations omitted).
In light of these principles, “[c]ourts have consistently deferred the question of whether a damages cap applies until after trial,” including in relation to Or. Rev. Stat. § 31.710(1). Scott II, 2024 WL 1462221 at *5. Moreover, defendants implicitly acknowledge that non-economic damages more than the statutory cap may be available regarding plaintiffs non-FTCA claims. See Def's Reply to Mot. to Dismiss 19 (doc. 26) (“[i]nthe event the Court dismisses Plaintiffs Bivens claims, Defendants request the Court likewise strike any references in the Complaint regarding treble damages, punitive damages, or any non-economic damages in excess of the statutory cap of $500,000”). The Court therefore denies defendants' request to limit plaintiffs non-economic damages, with leave to renew post-trial.
RECOMMENDATION
For the foregoing reasons, defendants' Motion to Dismiss (doc. 12) should be granted as to plaintiff s Rehabilitation Act claim and abuse of a vulnerable person claim to the extent it is premised on the “person with a disability” clause, and denied in all other respects. Any motion to amend the complaint must be filed within 30 days of the District Judge's Order.
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 judgement 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 the 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 the fact in an order or judgement entered pursuant to this recommendation.