Opinion
6:23-cv-01101-MK
10-25-2023
MARGARET HENSON, Plaintiff, v. PEACEHEALTH PEACE HARBOR MEDICAL CENTER, Defendant.
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI (HE / HIM) UNITED STATES MAGISTRATE JUDGE
Plaintiff Margaret Henson (“Plaintiff”) filed this action against former employer PeaceHealth (“Defendant”) alleging state and federal law claims of religious discrimination as well as violations of the Due Process clause of the Fourteenth Amendment and violations of her right to informed consent. Before the Court is Defendant's Motion to Dismiss Plaintiff's third and fourth claims pursuant to Fed.R.Civ.P. 12(b)(6). ECF No. 5. For the reasons below, Defendant's motion should be granted.
BACKGROUND
Plaintiff began working for Defendant in May 2010 as a medical assistant. Compl. ¶ 7, ECF No. 1. On August 4, 2021, Governor Brown announced a mandate that all health care workers must be fully vaccinated or subject to weekly COVID-19 testing. The Oregon Health Authority (“OHA”) subsequently determined that weekly testing would not be sufficiently effective in addressing patient and co-worker safety risks, and the mandate was changed to require that all health care workers be fully vaccinated. In summer of 2021, Defendant announced its intent to impose a COVID-19 vaccine mandate in accord with the mandate. Compl. ¶ 8. In November 2021, the U.S. Center for Medicare and Medicaid Services imposed a nationwide vaccine mandate for healthcare workers. The U.S. Supreme Court upheld the federal vaccine mandate and affirmed that the vaccine was “necessary to promote and protect patient health and safety.” Biden v. Missouri, 142 S.Ct. 647, 652 (2002).
Both the state and federal vaccine mandates allowed for exceptions based on religious or disability-related accommodation requests but required that such accommodations not pose a health risk to others, primarily patients and coworkers. Plaintiff applied for a religious exception to the vaccine mandate and her request was granted. Compl. ¶¶ 9, 12. Plaintiff was subsequently placed on administrative leave and exhausted her paid time off by October 13, 2021. Compl. ¶ 12. Plaintiff's medical insurance was terminated on November 30, 2021, after which she ceased to receive any benefits or income from Defendant. Id. Plaintiff filed this action on July 27, 2023, alleging state and federal law claims of employment discrimination based on religious faith, violations of the Due Process clause of the 14th Amendment, and violations of the right to informed consent.
STANDARD OF REVIEW
A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Los Angeles Lakers, Inc. v. Federal Insurance Company, 869 F.3d 795, 800 (9th Cir. 2017). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Id. To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Los Angeles Lakers, 869 F.3d 795 at 800. The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
DISCUSSION
Defendant moves to dismiss Plaintiff's Third and Fourth Claims for relief. Plaintiff's Third Claim asserts a violation of the Due Process clause of the 14th Amendment under 42 U.S.C. § 1983. Plaintiff's Fourth Claim asserts a violation of the right to informed consent, also under § 1983.
I. Due Process Claim
Plaintiff's Third Claim asserts a violation of the Due Process clause of the 14th Amendment under 42 U.S.C. 1983. The crux of Defendant's argument is that Plaintiff's Third Claim should be dismissed because Defendant is a private corporation and as such cannot be subject to a § 1983 claim.
A plaintiff may bring a claim under § 1983 to redress violations of his or her “rights, privileges, or immunities secured by the Constitution and [federal] laws” by a person acting under the color of state law. 42 U.S.C. § 1983; Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). As such, a defendant cannot be liable under § 1983 unless they are a state actor, or a private individual acting under color of law. See Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999). A person acts under color of state law only when exercising power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” United States v. Classic, 313 U.S. 299, 326 (1941). The Supreme Court has adopted a two-part test determining whether private conduct is attributable to the government: first, the deprivation must result from a governmental policy; second, “the party charged with the deprivation must be a person who may fairly be said to be a [governmental] actor.” Sutton, 192 F.3d at 835 (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999) (alternation in original).
Determining whether a private party is a governmental actor is a “necessarily fact-bound inquiry,” Mathis v. Pac. Gas and Elec. Co., 891 F.2d 1429 (9th Cir. 1989) (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 939, 102 S.Ct. 2744, 2755, 73 L.Ed.2d 482 (1982)), and the Court must “start with the presumption that private conduct does not constitute governmental action.” See Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999) (citation omitted). Here, Defendant acted in compliance with state law by requiring employees to take a COVID-19 vaccine or submit a religious exemption form. Merely following the law, however, does not convert an employer to a government actor. button, 192 F.3d at 83839. As the Ninth Circuit has noted,
Supreme Court precedent does not suggest that governmental compulsion in the form of a generally applicable law, without more, is sufficient to deem a private entity a governmental actor. Instead, the plaintiff must establish some other nexus sufficient to make it fair to attribute liability to the private entity.Id. at 841.
Plaintiff alleges that Defendant acted under color of law when it enforced the state and federal vaccine mandate because it was “coerced by” both the state and federal government by threats of fines and withdrawal of Medicare and Medicaid reimbursement funding. Compl. ¶ 18. State action may be found where the state has “exercised coercive power or has provided such significant encouragement, either overt or covert, that the [private actor's] choice must in law be deemed to be that of the state.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). As this Court recently stated, however, the state's imposition of a consequence for failing to follow state law “cannot convert a private company's compliance with state law into state action, or nearly every private entity complying with state law would be deemed a state actor.” Kiss v. Best Buy Stores, No. 3:22-CV-00281-SB, 2022 WL 17480936, at *5 (D. Or. Dec. 6, 2022).
Plaintiff nevertheless asserts that the threat of a recurring $500 fine and of the withdrawal of funding converts Defendant into a state actor, citing Mathis v. Pacific Gas & Elec. Co., 891 F.2d 1429 (9th Cir. 1989). In Mathis, the Ninth Circuit found that the defendant, a licensee of a government regulatory commission, could qualify as a state actor where the defendant instituted an undercover investigation of narcotics activities by its employees pursuant to direction or encouragement by its licensor, the Nuclear Regulatory Commission. Id. at 1433. Mathis, the employee, was subsequently denied access to defendant's facilities, allegedly without due process of law. Mathis alleged both governmental compulsion and that the defendant and the NRC were “willful participant[s] in joint activity.” Lugar, 457 U.S. at 941. Mathis alleged that the NRC and the private defendant had agreed to a division of labor in which the private defendant would take responsibility for preventing drug use at its facilities, in exchange for the NRC's agreement not to implement formal regulations on the subject. Sutton, 192 F.3d at 842. On those facts, the court concluded that Mathis had adequately alleged that his employer's actions could “be ascribed to a governmental decision” for the purposes of a Bivens action based on a “joint action” theory of state action. Id. at 1434 (citation and internal quotation marks omitted). Here, by contrast, Plaintiff has alleged no joint action between Defendant and the state or federal government. Rather, Plaintiff has alleged that the Defendant took measures to comply with state law. Without more, Plaintiff has failed to establish an additional nexus between Defendant and the state sufficient to attribute § 1983 liability to a private entity. Sutton, 192 F.3d at 841. Plaintiff's Due Process claim should be dismissed.
II. Informed Consent Claim
Plaintiff's Fourth Claim asserts a violation of the “right to informed consent.” Compl. ¶¶ 84-92. This Claim alleges violations of Section 564 of the Food, Drug, and Cosmetic Act, the Emergency Use Authorization statute (“EUA”). While Plaintiff concedes that Section 564 does not create a private cause of action, she argues that this claim is asserted under 42 U.S.C. § 1983 as the vindication of a federally protected right. Without deciding whether Section 564 creates a federal right that can be asserted under § 1983, the Court notes that the statutory provisions of the EUA, including the informed consent requirement, do not apply to an employer when the employer is not “directly administering the vaccine.” Burcham v. City of Los Angeles, 562 F.Supp.3d 694, 708 (C.D. Cal. 2022) (citing Klaassen v. Trustees of Indiana University, 549 F.Supp.3d 836 (N.D. Ind. 2021); vacated on other grounds, Klassen v. Trustees of Indiana Univ., 24 F.4th 638 (7th Cir. 2022). Here, Plaintiff has not alleged that Defendant was directly administering the vaccine to employees. See Compl.
Further, the informed consent requirement of the EUA requires only that individuals are informed of “the option to accept or refuse” the administration of an unapproved vaccine, and “the consequences, if any, of refusing administration of the product.” See 21 U.S.C.A. § 360bbb-3(e)(1)(A)(ii). Here, Plaintiff was given the opportunity to refuse the vaccine by filling out a religious exemption form, which was approved by Defendant. Compl. ¶ 9. On this record, Plaintiff has not stated a claim that Defendant violated any rights secured by Section 564.
Plaintiff argues that because she was ultimately placed on administrative leave after refusing to take the vaccine, she was not offered a meaningful choice and was therefore “coerce[d] ..,[in]to accepting an unlicensed, and hence experimental, medical product” in violation of Section 564. Pl.'s Resp. at 9, ECF No. 8. On the contrary, Plaintiff was free to accept or refuse the vaccine and was informed of the consequences of refusing administration of the product as required by 21 U.S.C.A. § 360bbb-3(e)(1)(A)(ii). Even assuming that the EUA creates a right enforceable under § 1983, then, Defendant could not have violated Plaintiff's right of informed consent by placing Plaintiff on administrative leave. Because any amendment would be futile, Plaintiff's Fourth Claim for relief should be dismissed with prejudice.
RECOMMENDATION
For the reasons above, Defendant's motion (ECF No. 5) should be GRANTED.
Plaintiff's third claim for relief should be dismissed. Plaintiff's fourth claim should be dismissed with prejudice.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order.
The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).