Opinion
3:20-cv-1877-YY
03-02-2023
SHEILA CORBIN, Plaintiff, v. CINDY BAILEY, WASHINGTON COUNTY ADULT DEVELOPMENTAL DISABILITIES OFFICE, and STATE OF OREGON DEPARTMENT OF HUMAN SERVICES, Defendants.
FINDINGS AND RECOMMENDATIONS
Youlee Yim You United States Magistrate Judge
FINDINGS
Pro se plaintiff Sheila Corbin brings this action against defendants Cindy Bailey, Washington County Adult Developmental Disabilities Office (“Washington County”), and the Oregon Department of Human Services (“Oregon DHS”) asserting a claim under 42 U.S.C. § 1983 based on violations of the equal protection clause of the Fourteenth Amendment, and state law defamation and whistleblower claims.
Defendants have filed motions for summary judgment, seeking dismissal of all of plaintiff's claims. ECF 81, 84. Defendants' motions should be granted for the reasons discussed herein.
These Findings and Recommendations cite to plaintiff's redacted brief in response to defendants' motions for summary judgment. ECF 99. The court previously ordered plaintiff to file a redacted version of her response in the public record and an unredacted version under seal. Order (September 15, 2022), ECF 98. However, plaintiff filed a redacted version under seal and emailed a copy of the unredacted version to the court and defendants' counsel. To date, plaintiff has not filed an unredacted response under seal. To avoid further delay in resolving this case, the court has unsealed the redacted response and conducted an in camera review of the unredacted response, and concluded that the sensitive information contained in the unredacted response as no bearing on the analysis of the motions for summary judgment. Plaintiff still has leave to file the unredacted version of response under seal. See Order (March 1, 2023), ECF 105.
I. Summary Judgment Standard
A motion for summary judgment is evaluated under Rule 56(a), which prescribes that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). Summary judgment is mandated “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing FED. R. CIV. P. 56(c)). The party seeking summary judgment bears the initial burden of showing the absence of a genuine issue of material fact by citing to relevant portions of the record. Id. at 323. The burden then shifts to the nonmoving party to “go beyond the pleadings” and identify facts showing there is a genuine, triable issue. Id. at 324; see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (observing that, in response to a motion for summary judgment, the nonmovant must present sufficient evidence “such that a reasonable jury could return a verdict for the nonmoving party”). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.
At the summary judgment stage, the court does not “weigh the evidence and determine the truth of the matter”; rather, the court's limited role is to determine whether there is a genuine issue for trial. Id. at 249. In making this determination “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor.” Id. at 255.
The Ninth Circuit recognizes that courts have a duty to “ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To this end, “pro se pleadings are liberally construed, particularly where civil rights claims are involved.” Id. This liberal construction also applies to pro se briefs. See id.; Harris v. Borg, 106 F.3d 407 (9th Cir. 1997). The court does not undertake, however, to examine the record for a genuine issue of fact; to do so would be “profoundly unfair to the movant” and take “an enormous amount of time . . . away from other litigants.” Carmen v. San Francisco Unified Sch.Dist., 237 F.3d 1026, 1031 (9th Cir. 2001). Furthermore, the “nonmoving party may not merely state that it will discredit the moving party's evidence at trial and proceed in the hope that something can be developed at trial in the way of evidence to support its claim.” T.W. Elec.Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987).
II. Section 1983 Claim-Equal Protection
To establish a § 1983 claim for a violation of the equal protection clause, plaintiff must show that defendants, acting under color of state law, intentionally discriminated against her because of her membership in a protected class. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir. 2003); see also Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert denied, 525 U.S. 1154 (1999). Evidence that defendants treated plaintiff differently on account of plaintiff's class membership is sufficient to support an equal protection claim. Flores, 324 F.3d at 1135. However, to survive summary judgment, plaintiff must “‘put forward specific, nonconclusory factual allegations' that establish improper motive.” Id. (quoting Jeffersv. Gomez, 267 F.3d 895, 907 (9th Cir.2001)).
Defendant Oregon DHS asserts, and plaintiff appears to acknowledge, that plaintiff is prohibited from bringing § 1983 claims against Oregon DHS in federal court because it is a state agency. Oregon DHS Mot. Summary J. 5, ECF 81; Resp. 12, ECF 99. Absent waiver by the state or authorization by Congress, the Eleventh Amendment bars individuals from bringing lawsuits against states in federal court. Virginia Off. for Prot. & Advoc. v. Stewart, 563 U.S. 247, 254 (2011). The Eleventh Amendment similarly immunizes state agencies from suit in federal court. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 113 S.Ct. 684, 687-88 (1993). Oregon DHS is a state agency, and thus cannot be subject to a § 1983 claim in federal court. See Johnson v. Oregon, No. 3:21-CV-00702-MO, 2022 WL 1224897, at *4 (D. Or. Apr. 26, 2022) (holding that Eleventh Amendment barred § 1983 claim against Oregon DHS in federal court); Snell v. McCauley Potter Fain Assocs., No. 3:18-CV-227-SI, 2018 WL 3468364, at *4 (D. Or. July 18, 2018) (holding that Eleventh Amendment proscribed suit against Oregon DHS in federal court). Accordingly, plaintiff's § 1983 claim against Oregon DHS must be dismissed.
When pressed for details about her claim against Washington County, plaintiff testified at her deposition that “pattern and practice is a big part of proving racial discrimination.” Corbin Dep. 174, ECF 86-1. Washington County argues that summary judgment must be granted because plaintiff has failed to present any evidence that it possessed a policy or practice of discrimination or demonstrated indifference to discrimination as a consequence of its inaction. Washington County Mot. Summary J. 13, ECF 84.
To establish a § 1983 claim against a municipality, a plaintiff must present evidence that the municipality caused a constitutional violation through execution of a “policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy.” Monell v. Dep't of Soc. Serv. Of N.Y., 436 U.S. 658, 694 (1978). “There are three ways to show a policy or custom of a municipality: (1) by showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (3) by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate.” Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (internal quotation marks omitted). A municipality may also be liable under § 1983 where its failure to act constitutes “deliberate indifference” to the rights of its inhabitants. City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). A municipality cannot be held liable under § 1983 for the actions of its employees solely under a respondeat superior theory. Ulrich v. City & Cnty. Of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002).
Plaintiff has failed to offer evidence on which a reasonable trier of fact could find a § 1983 claim against Washington County. In fact, at her deposition, plaintiff conceded that she did not know of any pattern or practice of racial discrimination in Washington County. Mansfield Decl., Ex. 4 (“Corbin Dep.”), at 174, ECF 86-1. On summary judgment, plaintiff has presented no evidence suggestive of a Washington County policy or custom that deprived her of a constitutional right. Plaintiff describes actions by Washington County employees but provides no facts that indicate these employees were policymakers, or that a policymaker authorized or ratified their actions. Moreover, the incidents plaintiff describes do not show that the Washington County employees were motivated by racial animus. Plaintiff has proffered no evidence from which to infer that Washington County was indifferent to racial discrimination. Accordingly, Washington County is entitled to summary judgment on plaintiff's § 1983 claim.
Finally, Bailey argues that plaintiff has not identified any evidence that she acted with discriminatory intent. Washington County Mot. Summary J. 13, ECF 84. To support her equal protection claim, plaintiff was required to present cognizable evidence that Bailey treated plaintiff differently from other similarly situated foster home providers because of her race. Plaintiff has not met that burden.
Plaintiff cites no direct evidence, such as that Bailey made any remarks regarding her race. Plaintiff proffers circumstantial evidence that Bailey made the statement “if your daughter can pass a background check.” Resp. 4, ECF 99. But that statement is insufficient to show racial bias; the law requires criminal background checks for all individuals over 18 years of age who will be in the household of the foster parent. O.R.S. 418.016(2)(b). Other than conclusory remarks and vague references to “other providers” in Washington County (see, e.g., Resp. 12, ECF 99; Am. Compl. 10, ECF 6), plaintiff alleges only one incident involving Bailey's purportedly preferential treatment of another foster home provider: in her amended complaint, plaintiff describes that she “left [her] seat to go to the restroom and another favored Adult Foster Care Provider (of another ethnicity) sat in my chair, and upon my returning to the meeting, Cindy Bailey ran over to help this other provider as if I had done something wrong in returning to my original chair that I had put my jacket on to indicate that someone was occupying it.” Am. Compl. 10, ECF 6. Plaintiff's subjective belief that Bailey acted with discriminatory motive, in the absence of any evidence supporting that belief, is not sufficient to sustain her claim. See Carmen, 237 F.3d at 1028 (finding that the plaintiff's unsubstantiated belief about the defendant's motives was not cognizable evidence on summary judgment). Because plaintiff has not produced evidence that Bailey treated plaintiff differently from other foster home providers on account of plaintiff's race, plaintiff's § 1983 claim against Bailey fails to survive summary judgment.
The factual statements presented in plaintiff's verified brief are properly considered as evidence at summary judgment to the extent they are based on personal knowledge. See Jones v. Lopez, 465 Fed.Appx. 701, 702 (9th Cir. 2012) (treating statements in verified opposition brief as evidence demonstrating a question of fact at summary judgment); Thomas v. Hernandez, No. C 01-4685 TEH, 2003 WL 21518750, at *3 (N.D. Cal. June 30, 2003) (“[At summary judgment t]he court also may consider the opposition brief because it was signed under penalty of perjury; of course, only factual statements in the opposition brief are used as evidence and the numerous argumentative statements do not become evidence merely because the document has been signed under penalty of perjury.”).
III. Defamation Claim
“The elements of a claim for defamation are: (1) the making of a defamatory statement; (2) publication of the defamatory material; and (3) a resulting special harm, unless the statement is defamatory per se and therefore gives rise to presumptive special harm.” Nat'l Union Fire Ins.Co. of Pittsburgh Pennsylvania v. Starplex Corp., 220 Or.App. 560, 584 (2008). To be actionable, the alleged defamatory statement must have been “conveyed to a third party.” Wallulis v. Dymowski, 323 Or. 337, 343 (1996).
As discussed above, defendant Oregon DHS, because it is a state agency, is immune from suit in federal court except where Oregon has consented to be sued or where authorized by the legislature. See Stewart, 563 U.S. at 254. Oregon has not consented to be sued for torts in federal court. Acri v. Vanderveen, 162 F.3d 1167 (9th Cir. 1998); Blair v. Toran, No. CV-99-956-ST, 1999 WL 1270802, at *23 (D. Or. Dec. 2, 1999), aff'd, 12 Fed.Appx. 604 (9th Cir. 2001); Odom v. Russ, No. 6:19-CV-00832-MC, 2022 WL 772926, at *2 (D. Or. Mar. 10, 2022). Thus, Oregon DHS is immune from state law claims in federal court, and any state law claims against it must be dismissed. Cram v. Oregon, No. 08-6365-HO, 2010 WL 1062555, at *3 (D. Or. Mar. 23, 2010) (dismissing state law claims against Oregon DHS based on Eleventh Amendment immunity).
Washington County and Bailey assert that Bailey's disclosures to Oregon DHS regarding plaintiff were privileged, and otherwise were never published. Washington County Mot. Summary J. 16, ECF 84. “[A]n employee of an executive agency has an absolute privilege to make defamatory statements in the exercise of official duties, even if the statements were malicious and the person who made the statements is a lower-level employee.” Christianson v.State, 239 Or.App. 451, 459 (2010) (citing Shearer v. Lambert, 274 Or. 449, 452-54 (1976) (finding that Oregon DHS employee was entitled to absolute immunity for statements employee made about a supervisee rendered pursuant to her official duties). Here, Bailey's statements that were submitted to inform Oregon DHS's decision whether to renew plaintiff's foster home provider license were absolutely privileged. Bailey, in fulfillment of her responsibilities as a program coordinator for Washington County and liaison to the licensing unit at Oregon DHS, conveyed information about plaintiff to Oregon DHS, which issued a Notice of Intent to Deny Renewal of Adult Foster Home License to plaintiff based on Bailey's disclosures. Bailey Decl. ¶¶ 1, 3, 5, ECF 85; Winje Decl. ¶ 5, ECF 83; id., Ex. 2, ECF 83. Because Bailey's statements were made in furtherance of her duty to assist with licensing foster home providers, these statements cannot support a defamation claim. Furthermore, plaintiff has not met her burden of showing that any alleged defamatory statements Bailey made to plaintiff, regarding plaintiff's care for her foster residents, were conveyed to a third-party. Resp. 17, ECF 99. Accordingly, plaintiff's defamation claim must be dismissed.
IV. Whistleblower Retaliation Claim
Plaintiff asserts claims for whistleblower retaliation against Washington County and Bailey under O.R.S. 659A.199 and O.R.S. 659A.203. Under O.R.S. 659A.199, an employer may not “discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.” O.R.S. 659A.203 states that a public employer may not “[p]rohibit any employee from disclosing, or take or threaten to take disciplinary action against an employee for the disclosure of any information that the employee reasonably believes is evidence of [a] violation of any federal, state or local law, rule or regulation” by the employer. To establish a prima facie case under O.R.S. 659A.199 or O.R.S. 659A.203, “a plaintiff must show that he (1) engaged in a protected activity, (2) suffered an adverse employment decision, and (3) there was a causal link between the protected activity and the adverse employment decision.” Lindsey v. Clatskanie People's Util. Dist., 140 F.Supp.3d 1077, 1091 (D. Or. 2015) (quoting Neighorn v. Quest Health Care, 870 F.Supp.2d 1069, 1102 (D. Or. 2012); Shepard v.City of Portland, 829 F.Supp.2d 940, 965 (D. Or. 2011)).
It appears plaintiff is not asserting a whistleblower claim against Oregon DHS because, as Oregon DHS asserts, plaintiff stated in her deposition that the whistleblower claim is solely against Washington County and Bailey. Oregon DHS Mot. Summary J. 9, ECF 81; Corbin Dep. 24-25, ECF 86-1. And plaintiff did not respond to Oregon DHS's argument stating the same in its motion for summary judgment. Nevertheless, as discussed above, Oregon DHS is immune from suit in federal court for state law torts. Thus, to the extent plaintiff asserts a whistleblower retaliation claim against defendant Oregon DHS, the claim must be dismissed.
At the outset, Washington County and Bailey contend, and plaintiff appears to acknowledge, that plaintiff was not employed by them in her capacity as a foster home provider and, therefore, plaintiff cannot bring a claim under these statutes. Washington County Mot. Summary J. 19, ECF 84; Resp. 12, ECF 99. Regardless, plaintiff has not adduced evidence in satisfaction of the elements of a whistleblower retaliation claim. Plaintiff was required to show that defendants took or threatened to take action against her based on her disclosure of evidence that defendants violated a legal provision. But plaintiff does not allege such a disclosure. This lawsuit appears to be the first and only instance of plaintiff asserting that defendants' behavior constituted a violation of law, and all of defendants' actions took place prior to the filing of this action. Accordingly, plaintiff's whistleblower claim fails.
V. Remaining Claims
Lastly, in the amended complaint, plaintiff expresses an “intent to file claims” for relief under a string of legal theories. Am. Compl. 9, ECF 6. It is unclear which of these theories plaintiff is proceeding under in this lawsuit because, as defendant points out, during her deposition, plaintiff abandoned all claims except for the ones analyzed above. Corbin Depo. 2728, ECF 86-1. Moreover, defendants directly addressed only those claims analyzed above in their motions for summary judgment, and plaintiff did not advance any other legal theories in her response. “[C]laims can be abandoned if their dismissal is unopposed.” V. V. V. & Sons Edible Oils Ltd. v. Meenakshi Overseas, LLC, 946 F.3d 542, 547 (9th Cir. 2019) (citing Jenkins v. Cnty.of Riverside, 398 F.3d 1093, 1095 n.4 (9th Cir. 2005) (holding the plaintiff “abandoned her . . . claims by not raising them in opposition to the County's motion for summary judgment”).
RECOMMENDATIONS
Defendants' motions for summary judgment (ECF 81, 84) should be granted against all claims, and this case should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Monday, April 03, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.