United States District Court, D. Oregon
Martin Dolan, DOLAN GRIGGS LLP, Of Attorneys for Plaintiff.
Ellen Rosenblum, Attorney General, Stacy C. Posegate, Attorney in charge, Craig M. Johnson, Assistant Attorney General, DEPARTMENT OF JUSTICE, Of Attorneys for Defendants.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Alina Patru ("Plaintiff") brings this action under 42 U.S.C. § 1983, alleging violations of Plaintiff's rights under the First and Fourteenth Amendments to the United States Constitution. Plaintiff asserts one claim alleging violations of her due process rights, one claim alleging violations of her equal protection rights, and one claim alleging First Amendment retaliation. Defendants Connie Rush, Hazel Lefler, and Marie Cervantes (collectively, "Defendants") move to dismiss Plaintiff's due process claim and equal protection claim for failure to state a claim upon which relief can be granted, pursuant to Federal Rule of Civil Procedure 12(b)(6). In the alternative, Defendants request that the Court order Plaintiff to make her complaint more definite and certain pursuant to Federal Rule of Civil Procedure 12(e). For the reasons discussed below, Defendants' motion is GRANTED in part and DENIED in part.
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. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). 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. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). 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. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). 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 pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Plaintiff is an Adult Foster Home ("AFH") provider in Washington County and has held a Class 3 AFH license since May 22, 2008. Defendants are employees of the Oregon Department of Human Services ("DHS") and are responsible for reviewing and approving ventilatordependent care applications ("VCAs") needed to care for ventilation-dependent residents. In her complaint, Plaintiff alleges that on or about December 4, 2009, Plaintiff filed a VCA with DHS so that Plaintiff could house ventilation-dependent residents. Pl.'s Sec. Am. Compl. ¶ 10, Dkt. 48. Plaintiff alleges that she was qualified and that she met all of the requirements to care for ventilation-assisted patients under Oregon Administrative Rule ("OAR") XXX-XXX-XXXX, id. ¶ 12, but that Defendants did not approve her VCA until October 11, 2011, id. ¶ 17.
Plaintiff alleges that DHS's established practice and procedure is to process VCAs within 60 days-the timeframe that DHS processes AFH licenses. Id. ¶ 9. Plaintiff also alleges that DHS approved other providers for ventilator-assisted care based on the providers' previous experience with ventilator-assisted persons. Id. ¶ 13. Plaintiff claims that Defendants did not approve her VCA for almost two years because Plaintiff had previously made verbal and written objections to citations she had received from DHS in 2009, 2010, and 2011. Id. ¶ 14-15. Plaintiff alleges that Defendants acted individually or in concert to deny Plaintiff's application because Plaintiff engaged in this protected activity. Id. ¶ 32. Plaintiff further alleges that she objected to the delay of the approval of her VCA and communicated her objections to Defendants on numerous occasions during the pendency of her application. Id. ¶ 16. Plaintiff contends that as a result of the delay, she suffered economic damages in the form of lost income and emotional distress. Id. ¶ 25-26, 34-35. She seeks compensatory economic damages of $74, 200 and damages for emotional distress of $125, 000.
Before the Court is Defendants' motion to dismiss Plaintiff's claims for violations of procedural due process, substantive due process, and equal protection. Defendants argue that Plaintiff does not have a constitutionally protected property interest in a VCA approval. Therefore, Defendants argue, Plaintiff's due process and equal protection claims must be dismissed. In the alternative, Defendants argue, Plaintiff's procedural due process claim fails because Oregon law provided Plaintiff with all the process that was due. The Court addresses each of Plaintiff's claims in turn.
A. Procedural Due Process
Defendants argue that Plaintiff does not have a constitutionally protected property interest because Oregon law does not afford Plaintiff a legitimate claim of entitlement to a VCA approval. Plaintiff responds that she has a legitimate claim of entitlement to the approval because the plain language of the ...