United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge.
filed a Second Amended Complaint on January 28, 2019.
Defendant Kyes and Defendant Oregon DMV/DOT have now moved to
dismiss the claims against them pursuant to Rule 12(b)(6) of
the Federal Rules (doc. 29). For the reasons below, the
motion is GRANTED.
parties are familiar with the background facts of this case,
which are discussed in the Court's October 9, 2018
Opinion and Order (doc. 23). After dismissing Plaintiffs
claims against Kristopher G. Kyes and Oregon Department of
Transportation and Oregon Department of Motor Vehicles
("Oregon DOT/DMV") (collectively, "State
Defendants"), Plaintiff was given leave to amend his
complaint to add an Americans with Disabilities Act
("ADA") claim. Plaintiff filed his second amended
complaint on January 28, 2019 (doc. 28) but included many of
his previously dismissed claims. State Defendants filed their
motion to dismiss on February 11, 2019 (doc. 29).
survive the motion to dismiss, Plaintiffs pleading must
allege facts sufficient to "state a claim to relief that
is plausible on its face." Bell Atlantic, u.
Twombly, 550 U.S. 544, 545 (2007). In considering the
motion, this Court accepts all of the allegations in the
complaint as true and construes them in the light most
favorable to the plaintiff. See Kahle v. Gonzales,
474 F.3d 665, 667 (9th Cir. 2007). Although the pleading
standard under Fed.R.Civ.P. 8 "does not require
'detailed factual allegations,' it demands more than
an unadorned, 'the-defendant-unlawfully-harmed-me
accusation."' Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Twombly at 550; see also
Fed.R.Civ.P. 8(a)(2). "A pleading that offers
'labels and conclusions' or 'a formulaic
recitation of the elements of a cause of action will not
se litigants are not held to the same standard, as
admitted or bar licensed attorneys. Haines v.
Kerner, 404 U.S. 519, 521 (1972). Thus, the court must
construe pro se filings liberally. If a plaintiff
fails to state a claim, "[l]eave to amend should be
granted unless the pleading 'could not possibly be cured
by the allegation of other facts,' and should be granted
more liberally to pro se plaintiffs."
Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003)
(quoting Lopez v. Smith, 203 F.3d 1122, 1130 (9th
argue that Plaintiff has not presented a prima facie
ADA discrimination claim and thus has failed to state a claim
upon which relief may be granted. I agree.
II of the ADA states that: "no qualified individual with
a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.
Duvall u. Cnty. of Kitsap, 260 F.3d 1124,
1135 (9th Cir. 2001) (quoting 42 U.S.C. § 12132). The
ADA defines "public entity" as "any
department, agency, special purpose district, or other
instrumentality of a State or States or local
government." 42 U.S.C. § 12102(1) (1994). The ADA
defines "disability" as: "(A) a physical or
mental impairment that substantially limits one or more of
the major life activities of such individual; (B) a record of
such an impairment; or (C) being regarded as having such an
impairment." 42 U.S.C. § 12102(2) (1994). To prove
that the ADA was violated, a party must show: "(1) the
plaintiff is an individual with a disability; (2) the
plaintiff is otherwise qualified to participate in or receive
the benefit of some public entity's services, programs,
or activities; (3) the plaintiff was either excluded from
participation in or denied the benefits of the public
entity's services, programs, or activities, or was
otherwise discriminated against by the public entity; and (4)
such exclusion, denial of benefits, or discrimination was by
reason of the plaintiffs disability." Weinreich v.
L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th
respect to the first element of an ADA discrimination claim,
Plaintiff has not sufficiently alleged that he has been
diagnosed with a disability within the meaning of the ADA.
Plaintiff has stated repeatedly that he has a military
service-connected disability but has not presented a
diagnosis of a disability that satisfies the ADA definition.
Thus, he has failed to meet this element of an ADA claim.
Plaintiff did meet the first element, he fails to meet the
fourth element of an ADA claim. Namely, that "such
exclusion, denial of benefits, or discrimination was by
reason of the plaintiffs disability." Id.
Plaintiff states that his service-connected disability was a
diagnosis of post-traumatic stress disorder
("PTSD") and depression. PI. 2d amend, compl. The
DMV revoked his license upon recommendation of a treating
medical provider for a diagnosis of malignant hypertension.
Id. Therefore, any denial of public service was not
by reason of Plaintiffs alleged disability, and this claim
may be dismissed on its merits for failure to state a claim
upon which relief may be granted. Stewart v. U.S.
Bancorp, 297 F.3d 953, 957 (9th Cir. 2002).
ADA retaliation claims against the VA and the DMV are
likewise unsuccessful. An ADA retaliation prima
facie case requires the plaintiff to show "(a) that
he or she was engaged in protected activity, (b) that he or
she suffered an adverse action, and (c) that there was a
causal link between the two." T.B. ex rel. Brenneise
v. San Diego Unified School Dist., 806 F.3d 451, 473
(9th Cir. 2015) (quoting Emeldi u. University of
Oregon, 673 F.3d 1218, 1223 (9th Cir. 2012). The Supreme
Court has held that the standard for the "causal
link" is but-for causation. University of Texas
Southwestern Medical Center v. Nassar, 570 U.S. 338, 351
(2013). But-for causation applies equally to ADA
discrimination and ADA retaliation claims. T.B. ex rel.
Brenneise, 806 F.3d at 473. Thus, but-for causation is
the standard applied to ADA retaliation claims. Id.
Plaintiff has failed to make a but-for causal connection.
Oregon has a mandatory reporter statute for medical
providers. OAR 735-074-0090(1). Therefore, the VA was unable
to exercise'discretion when reporting Plaintiffs health
status to the DMV. Thus, the but-for causation required by
law is broken by the interceding force of the mandatory
reporting law. Further, Plaintiff has failed to sufficiently
show that his claim could overcome this break in causation.
The DMV thereafter had discretion to revoke Plaintiffs
license when it received the VA's report. ORS 809.419(3)
("The department may suspend the driving privileges of a
person who is incompetent to drive a motor vehicle because of
a mental or physical condition or impairment that affects the
person's ability to safely operate a motor vehicle upon
the highways"). Plaintiff claims that the DJWV is
retaliating against him for his "angry complaints"
but has not shown that his angry complaints rather than the
D1Is legal ...