United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE.
David Harris moves to proceed in forma pauperis. Upon
examination of plaintiffs affidavit, I find that plaintiff is
unable to afford the costs of this action. Accordingly,
plaintiffs application to proceed in forma pauperis (doc. 2)
is GRANTED. This action may go forward without the payment of
fees or costs.
plaintiff is proceeding in forma pauperis, I am required to
dismiss this action if I determine that it fails to state a
claim upon which relief may he granted. 28 U.S.C. §
1915(e)(2)(B)(ii). In federal court, a complaint must contain
a "short and plain statement of the claim showing that
the pleader is entitled to relief." Fed.R.Civ.P.
8(a)(2). That pleading standard "does not require
'detailed factual allegations, ' but it demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Ashcroft v. Iqbal, 556 U.S, 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombfy, 550
U.S. 544, 555 (2007)). To state a claim for relief, the
plaintiff must plead "factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged." Id. Here,
the complaint does not contain enough factual content to
support either of plaintiff s claims.
formerly worked as a therapist for defendant UBH of Oregon,
LLC ("UBH").He alleges that in August 2015, he was
placed on administrative leave after psychiatric patients
reported him for misconduct. Plaintiff further asserts that
his supervisor, Shanna Branham, knew or should have known
that the misconduct allegations were false. Plaintiff avers
that two days after he was placed on administrative leave,
Branham sent him two text messages telling him he could
return to work the following day. When plaintiff returned to
work, he was terminated.
alleges that during his administrative leave, Branham
publicized defamatory statements regarding plaintiff to UBH
management. Plaintiff contends that the statements were
intended to harm his trade or profession and that, at the
time she made the statements, Branham either knew they were
false or made in them in reckless disregard of their truth or
falsity, Finally, plaintiff asserts Branham sent him the text
messages telling him he could return to work with the intent
of causing him severe emotional distress.
first claim is for intentional infliction of emotional
distress. Under Oregon law, to state such a claim, a
plaintiff "must plead that (1) the defendant intended to
inflict severe emotional distress on the plaintiff, (2) the
defendant's acts were the cause of plaintiffs severe
emotional distress, and (3) the defendant's acts
constituted an extraordinary transgression of the bounds of
socially tolerable conduct." McGanty v.
Staudenraus, 901 P.2d 841, 849 (Or. 1995) (citing
Sheets v. Knight, 779 P.2d 1000, 1010 (Or. 1989)).
The Oregon Court of Appeals has explained that a claim for
intentional infliction of emotional distress requires
"conduct that is outrageous in the extreme. Conduct that
is merely rude, boorish, tyrannical, churlish and mean does
not satisfy that standard, nor do insults, harsh or
intimidating words, or rude behavior ordinarily result in
liability even when intended to cause distress."
Watte v. Edgar Maeyens, 828 P.2d 479, 481 (Or. Ct.
App. 1992) (citations and quotation marks omitted).
complaint meets the first two requirements by adequately
alleging intent and causation. However, I cannot infer from
the complaint that Branham's conduct was an
"extraordinary transgression of the bounds of socially
tolerable conduct." McGanty, 901 P.2d at 849.
Drawing all reasonable inferences in plaintiffs favor,
Branham (1) texted plaintiff to tell him to return to work as
a ruse so that she could fire him and (2) reported patient
allegations of misconduct to supervisors even though she knew
those allegations were false. Those facts, even if true,
"do not sink to the actionable level" with respect
to a claim for intentional infliction of emotional distress.
Watte, 828 P.2d at 481. Telling an employee that he
can return to work when in fact he is going to be fired is,
at worst, mean or rude. Id. Unless the text messages
contained particularly offensive content or there are other
exacerbating factors, sending the messages was not the sort
of "extraordinary transgression" the Oregon courts
recognize as actionable. With respect to the reports to
management, in a typical healthcare workplace, a supervisor
likely has an obligation to report patient
complaints regarding employee misconduct to her
superiors-even if she knows the complaints are unfounded.
Without exacerbating factors, Branham's report of the
misconduct complaints therefore cannot support a claim for
intentional infliction of emotional distress.
second claim is for defamation. To state such a claim, the
complaint "must state facts sufficient to establish that
the defendant published to a third person a defamatory
statement about plaintiff." Marleau v. Truck Ins.
Exch., 37 P.3d 148, 155 (Or. 2001). "A defamatory
statement is one that would subject another to hatred,
contempt or ridicule or tend to diminish the esteem, respect,
goodwill or confidence in which the other is held or to
excite adverse, derogatory or unpleasant feelings or opinions
against the other." Id. (quotation marks
omitted and alterations normalized). In Oregon, unlike in
many other jurisdictions, "a defamatory communication
from one corporate employee to another corporate employee
concerning the job performance of a third employee is
'published' for the purpose of defamation
claim." Wallulis v. Dymowski, 918 P.2d 755, 760
complaint does not currently state a claim for defamation
because it sets out legal conclusions rather than specific
facts. The complaint does not describe the content of the
statements Branham made to senior administrative personnel;
it simply asserts that the statements were false and intended
to harm plaintiff in his trade or profession. In order to
proceed on his defamation claim, plaintiff must provide
factual content sufficient to support the inference that the
statements Branham made to management meet the standard from
Wallulis set out above.
the complaint does not state a claim for relief, I cannot
find that further amendment would be futile. Therefore, given
plaintiff spro se status, I will afford plaintiff
the opportunity to amend his complaint.
is HEREBY ORDERED to file an amended complaint within thirty
days from the date of this order. The amended
complaint shall briefly and plainly state the facts
supporting plaintiffs claims of intentional infliction of
emotional distress and defamation. Plaintiff is advised that
failure to file an amended complaint as ordered will
result in the dismissal of this proceeding.