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Ewbank v. Emrick

United States District Court, D. Oregon

April 16, 2018

ROBERT DRAKE EWBANK, Plaintiff,
v.
JEFF EMRICK, individually and in his official capacity as (former) Deputy Director of the Addictions and Mental Health Division (“AMHD”) of the Oregon Health Authority (“OHA”); ROBERT LEE, individually and in his official capacity as former State of Oregon Housing Analyst and AMHPAC Olmstead/Housing Subcommittee co-chair and volunteer; PAMELA MARTIN, individually and in her official capacity as (former) Director of the AMHD of the OHA; LYNN SAXTON, individually and in her official capacity as Director of the OHA; DARCY STRAHAN, individually and in her capacity as an AMHD supervisory manager; RICHARD WILCOX, in his official capacity as Olmstead Plan Coordinator and assigned AMHPAC Olmstead/Housing Subcommittee staff; THE STATE OF OREGON; OHA; THE OHA HEALTH SERVICES DIVISION AS THE OREGON AMHD; NICOLE CORBIN, individually and in her official capacity as AMHD/HSD Adult Services Coordinator; and JANE/JOHN DOES 1-3 Oregon AMHD employees, Defendants.

          FINDINGS AND RECOMMENDATION ORDER

          JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE.

         Defendants Jeff Emrick, Robert Lee, Pamela Martin, Lynn Saxton, Darcy Strahan, Richard Wilcox, Nicole Corbin, the State of Oregon, the OHA, the AMHD, and Jane/John Does move to dismiss pro se plaintiff Robert Drake Ewbank's complaint under Fed.R.Civ.P. 12(b)(6). For the reasons set forth below, defendants' motion to dismiss should be granted.

         BACKGROUND

         On February 2, 2017, plaintiff filed this lawsuit against the State of Oregon and its various agencies and employees/contractors, alleging discrimination and retaliation. Plaintiff's initial complaint was 20 pages long, encompassing 113 paragraphs and nine claims. On February 13, 2017, the Court granted plaintiff's motion to proceed in forma pauperis. On February 28, 2017, the Court denied plaintiff's motion for appointment of pro bono counsel, finding that his initial filing demonstrated sufficient ability to articulate his claims pro se, especially given that he had previously litigated several federal lawsuits in this District without the benefit of counsel and was generally familiar with the applicable rules and procedures.

         Between March 24, 2017, and April 14, 2017, plaintiff lodged two separate amended, expanded complaints. On July 10, 2017, plaintiff filed his Third Amended Complaint (“TAC”), which was 40 pages long, 352 paragraphs, and asserted nineteen claims under the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, 42 U.S.C. § 1983, and state law. Plaintiff requested $949, 376 in compensatory and punitive damages, as well as attorney fees and declaratory and injunctive relief.

         On July 24, 2017, defendants moved to dismiss the TAC. Plaintiff filed an initial opposition to defendants' motion, as well as five additional oppositional briefs.

         On October 17, 2017, this Court entered a Findings and Recommendation dismissing Plaintiff then filed a 36-page Fourth Amended Complaint (“FAC”), containing 54 pages of exhibits. Plaintiff alleges claims under Titles II and V of the ADA, the Rehabilitation Act § 504, 42 U.S.C. § 1983 through the First, Fourth, and Fourteenth Amendments, and conspiracy under 42 U.S.C. § 1985(3). Plaintiff requests $949, 376 in compensatory and punitive damages, as well as attorney fees and declaratory and injunctive relief. Pursuant to Fed.R.Civ.P. 12(b)(6), defendants filed a second motion to dismiss.

         FACTUAL BACKGROUND

         Plaintiff is a mental health advocate and mental health resource “consumer” as a result of Post-Traumatic Stress Disorder. FAC ¶¶ 34, 36 (doc. 61). He advocates for mental health “consumers” by volunteering on various state committees, including the State of Oregon Consumer Advisory Council (“OCAC”), OCAC subcommittees, and the State Addictions and Mental Health Planning and Advisory Council (“AMHPAC”). FAC ¶ 24 (doc. 61). In a “contentious” and “acerbic” April 2015 subcommittee meeting, plaintiff argued about the scope and purpose of the subcommittee. FAC ¶¶ 79, 81 (doc. 61). Plaintiff's primary points of contention related to the participation of mental health “consumers” on the OCAC and advocating for peer providers' eligibility to receive Medicaid funds. FAC ¶ 80 (doc. 61). In June 2015, plaintiff voluntarily stepped down from his position as a subcommittee member because state employees had raised “dire questions” about emails he sent them, which were characterized as abusive. FAC Exhibit 5 at 1 (doc. 61). It is unclear whether plaintiff voluntarily resigned from all committees, or if he was removed from one or more committees by one of the defendants.[1]After his removal or voluntary resignation, plaintiff attended various committee meetings as an audience member and continued his advocacy work. FAC ¶ 100 (doc. 61). Plaintiff alleges that defendants Emrick and Martin “set up punitive and overly reactive security” protocols at the Oregon Health and Human Services building, however it is unclear what those protocols entailed and how they might have impacted plaintiff. FAC ¶ 103 (doc. 61). Plaintiff alleges defendants excluded him from membership in state advisory bodies or committees and spread rumors that he was dangerous and unstable. FAC ¶ 110 (doc. 61). Plaintiff subsequently filed this lawsuit.

         STANDARDS

         Where the plaintiff “fails to state a claim upon which relief can be granted, ” the court must dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Nevertheless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).

         Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs the pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A pro se plaintiff's claims may be dismissed with prejudice only where it appears beyond doubt the plaintiff can prove no set of facts that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).

         DISCUSSION

         The Court adopts the rationales stated in its previous Findings and Recommendation and dismisses plaintiff's claims under Or. Rev. Stat. § 430.073 and claims related to travel reimbursement. Findings and Recommendation at 7-8 (doc. 54).

         I.ADA Claims

         Construed liberally, plaintiff's complaint alleges several claims under the antidiscrimination section of the ADA's Title II. To succeed on a Title II discrimination claim, a plaintiff must prove:

(1) he is a ‘qualified individual with a disability;' (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, ...

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