United States District Court, D. Oregon
FINDINGS AND RECOMMENDATION ORDER
A. RUSSO UNITED STATES MAGISTRATE JUDGE.
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.
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
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.
24, 2017, defendants moved to dismiss the TAC. Plaintiff
filed an initial opposition to defendants' motion, as
well as five additional oppositional briefs.
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.
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.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.
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).
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).
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
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, ...