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Vanvalkenburg v. Oregon Department of Corrections

United States District Court, D. Oregon

October 30, 2014


MATTHEW C. ELLIS, Portland, OR, SHENOA L. PAYNE, Haglund Kelley LLP, Portland, OR, Attorneys for Plaintiffs.

ELLEN F. ROSENBLUM, Attorney General, HEATHER J. VANMETER, SHANNON M. VINCENT, Assistant Attorneys General Oregon Department of Justice, Salem, OR, Attorneys for Defendant.


ANNA J. BROWN, District Judge.

This matter comes before the Court on Defendant Oregon Department of Corrections' Partial Motion (#3) to Dismiss Plaintiff David VanValkenburg's Complaint. The Court heard oral argument on September 15, 2014, and took the matter under advisement.

For the reasons that follow, the Court DENIES Defendant's Partial Motion to Dismiss.


The following facts are taken from Plaintiff's Complaint:

Plaintiff is deaf and communicates primarily through American Sign Language (ASL), although he has some limited communication skills through written notes.

Plaintiff has been incarcerated at correctional institutions managed by Defendant since 2000: Oregon State Penitentiary (November through December 2000), Oregon State Correctional Institution (December 2000 through July 2001), Snake River Correctional Institution (July 2001 through May 2012), Santiam Correctional Institution (May 2012 through January 2014), and Columbia River Correctional Institution (January 2014 to the present).

During his incarceration Plaintiff requested a qualified ASL interpreter on numerous occasions. Between his entry into the Oregon State Penitentiary in November 2000 and his move to Columbia River Correctional Institution in January 2014, however, Defendant failed to provide Plaintiff with qualified interpreters for communications during intake; orientation; processing; counselor assessments; counseling sessions; medical examinations and appointments; disciplinary proceedings; and education, training, work, and religious programs offered at the various institutions. In addition, Defendant required Plaintiff to use nonconfidential, untrained, and primarily unqualified inmates as interpreters during Plaintiff's incarceration at Snake River Correctional Institution and Santiam Correctional Institution between 2001 and 2014. When no inmates who knew ASL were available, Defendant required Plaintiff to teach inmates ASL so that Plaintiff could communicate with Defendant. Defendant paid Plaintiff for this training between approximately 2011 and May 2012.

Beginning January 2014 during Plaintiff's incarceration at Columbia River Correctional Institution, Defendant inconsistently provided Plaintiff with a qualified, non-inmate ASL interpreter, but Defendant failed to provide Plaintiff with a qualified ASL interpreter in pre-scheduled medical appointments in February or March 2014.


On March 20, 2014, Plaintiff gave Defendant timely notice of his tort claim. On May 5, 2014, Plaintiff filed a Complaint in Multnomah County Circuit Court alleging three claims for relief: Disability Discrimination under Oregon Revised Statute § 659A.142 (First Claim); Disability Discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131-12165 (Second Claim); and Unjust Enrichment/ Quantum Meruit (Third Claim). On June 6, 2014, Defendant removed the action to this Court.

On June 13, 2014, Defendant filed a Partial Motion (#3) to Dismiss Plaintiff's claim for unjust enrichment/ quantum meruit (Third Claim), Plaintiff's claim for federal disability discrimination (Second Claim) to the extent that it arises from conduct that occurred more than two years before Plaintiff filed this lawsuit, and Plaintiff's claim for state disability discrimination to the extent that it involves allegations that occurred before the 180-day tort-claim notice period.

In his Response (#8) to Defendant's Motion Plaintiff dismisses the unjust enrichment/ quantum meruit claim without prejudice. Plaintiff argues, however, that his remaining claims are not time-barred. On July 14, 2014, Defendant filed a Reply (#13).

The Court heard oral argument on September 15, 2014. The Court permitted the parties to file no later than September 19, 2014, supplemental authorities of cases in which Oregon appellate courts address the issue whether the Oregon continuing-tort doctrine permits a tort claimant to recover for acts that occurred before the period protected by the tort-claim notice.

The Court took Defendant's Motion under advisement on September 15, 2014.

Plaintiff filed Supplemental Authorities (#16) on September 16, 2014, and Defendant filed Supplemental Authorities (#18) on September 19, 2014.

On October 6, 2014, Plaintiff filed an Amended Complaint (#19).


To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. 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. 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. Where a complaint pleads facts that are ...

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