Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 1 of 24

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IN THE CIRCUIT COURT OF THE STATE OF OREGON

6

FOR THE COUNTY OF MULTNOMAH

7 DAVID D. VANVALKENBURG,

Case No. 140505831

8

Plaintiff,

COMPLAINT

9

v.

10 OREGON DEPARTMENT OF CORRECTIONS, a state agency,
11
Defendant. 12

13

14

15

16

Disability Discrimination (42 USC § 12112; ORS 659A.142)
Unjust Enrichment/Quantum Meruit
Amount of Claim: $460,000 Fee Authority: Or Laws 2012, ch. 48, sec. 2; ORS 21.160(1)(c) Claim More Than $50,000; Not Subject To Mandatory Arbitration
JURY TRIAL DEMANDED

17

18

Plaintiff alleges:

19

INTRODUCTION

20

1.

21

Plaintiff David D. VanValkenburg is a deaf individual who has been an inmate

22 incarcerated at correctional institutions managed by defendant Oregon Department of

23 Corrections since 2000. During Mr. VanVallcenburg's fourteen years within the Oregon

24 correctional system, defendant has continually and systematically failed to provide Mr.

25 VanValkenburg with an interpreter of any kind and did not engage in effective communication

26 with Mr. Van Valkenburg. Specifically, defendant failed to provide effective communication

Page 1 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777
PORTLAND, OR 97201 0000027807H073 PLO]
Exhibit A, Page 1 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 2 of 24

1 during intake interviews and new inmate orientations, educational Qlasses and training, other

2 classes and programs offered, and in confidential settings such as medical, dental, religious

3 services and counseling meetings. Instead, defendant required Mr. VanValkenburg to train

4 inmates to act as interpreters for him, who were unqualified and failed to keep Mr.

5 VanValkenburg's infoiniation confidential. Defendant's ongoing conduct violates the Americans

6 with Disabilities Act as Amended and Oregon disability discrimination Iaw and constitutes a

7 pattern and practice of discrimination and a disability-based environment of hostility that started

8 in 2000 and continues to this day.

9

PARTIES

10

2.

11

At all times mentioned herein, plaintiff David VanValkenburg, an individual, was an

12 inmate within the Oregon Department of Corrections correctional system, and was housed at the

13 the following facilities: Oregon State Penitentiary ("OSP"), Oregon State Correctional

14 Institution ("OSCI"), Snake River Correctional Institution ("SRCI"), Santiam Correctional

15 Institution ("SCI") and Columbia River Correctional Institution ("CRCI'').

16

.3,

17

At all times mentioned herein, defendant Oregon Department of Corrections

18 ("Defendant") was and is a state agency charged with managing the correctional institutions

19 within the State of Oregon, including OSP, OSCI, SRCI, SCI and CRCI. Defendant is

20 responsible for ensuring that all of its facilities and systems, including its correctional facilities

21 and the employees and agents of those correctional facilities, comply with state and federal

22 disability laws.

23

VENUE

24

4.

25

Defendant has an office for the transaction of business in Multnomah County and

26 conducts regular, sustained business activity in Multnomah County. Defendant operates a prison

Page 2 - COMPLAINT

HAGLIFND KELLEY UP ATTORNEYS AT LAW
200 SW MARKET STREET, SD]TE 1777
PORTLAND, OR 97201
0000027807H07E3 xPLhOi]bit A, Page 2 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 3 of 24

1 in Multnomah County, CRCI, where Plaintiff currently resides,

2

FACTS

3

Mr. VanValkenburg

4

5.

5

At all material times, Mr. VanValkenburg is deaf.

6

6.

7

Mr. VanValkenburg's deafness substantially limits one or more of his major life

8 activities, including but not limited to his ability to hear and to effectively communicate with

9 hearing individuals.

10

7.

Mr. VanValkenburg's primary form of language and communication is American Sign

12 Language ("ASL").

13

8.

14

Mr. VanValkenburg also has some limited communication skills with the English

15 language through written notes. When Mr. VanValkenburg communicates in writing, it is

16 significantly slower and less effective than ASL.

17

Oregon State Penitentiary (OSP)

18

9.

19

On or about November 2000 through December 2000, Mr. VanValkenburg was housed at

20 OSP for processing.

21

10.

22

Defendant's personnel at OSP knew that Mr. VanValkenburg was deaf and did not

23 inquire what auxiliary aids would assist Mr. VanValkenburg while at OSP.

24

11.

25

Defendant did not provide an interpreter for Mr. VanValkenburg during intake,

26 orientation or processing while Mr. VanValkenburg was at OSP.

Page 3 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027071107E3 xPLh0i1bit A, Page 3 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 4 of 24 •r-

1

12,

2

Mr. VanValkenburg was not able to understand any part of the orientation or effectively

3 communicate with defendant while at OSP.

4

13.

5

Mr. VanValkenburg requested interpretive services at OSP, and defendant denied the

6 requests.

7

14.

8

All inmates must have a counselor assessment upon intake and processing when they first

9 come into defendant's custody.

10

15.

11

Mr. VpnValkenburg requested qualified interpretive services for his counselor assessment

12 at OSP; however, his request was denied,

13

16.

14

Mr. VanValkenburg did not understand defendants counselor and defendant's counselor

15 was not able to properly assess Mr. VanValkenhurg in the same manner as non-disabled inmates.

16

17..

17

Defendant conducts an initial medical exam on all inmates when they first come into

18 defendant's custody.

19

18.

20

Mr. VanValkenburg again asked for qualified interpretive services for his medical exam

21 at OSP; however, none were provided.

22

19.

23

Mr. VanValkenburg did riot understand defendants medical personnel and defendant's

24 medical personnel were not able to properly assess Mr. VanValkenburg in the same manner as

25 non-disabled inmates.

26

Page 4 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEXS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027807210E73xKhOiSbit A, Page 4 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 5 of 24

20.

2

At no time while at OSP did Mr. VanValkenburg receive an interpreter of any kind. Any

3 and all of Mr. VanValkenb-arg's requests for an interpreter at OSP were denied.

4

Oregon State Correctional Institution (OSCI)

5

21,

6

From on or about December 2000 through on or about July 2001, Mr. VanValkenburg

7 was housed at OSCI.

8

22.

9

Program counselors at OSCI conduct intake interviews and conduct an orientation for all

10 new inmates at OSCI.

11

23.

12

Despite Mr. VanValkenburg's requests for interpretive services, defendant failed to

13 provide Mr. VanValkenburg an interpreter of any kind and did not engage in effective

14 communication with Mr. VanValkenburg during the intake interviews or new inmate orientation

15 at OSCI.

16

24.

17

At all material times, defendant offered medical services, dental services, and religious

18 services for all inmates at OSCI.

19

25.

20

Despite the confidential nature of those services and despite requests from Mr.

21 VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind

22 for those services and did not engage in effective communication with Mr. VanValkenburg.

23

26.

24

At all material times, defendant offered inmates at OSCI program counseling as part of

25 its offender management and rehabilitation program. Part of the purpose of that program is to

26 reduce recidivism and assist inmates' rehabilitation.

Page 5 COMPLAINT

HACLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027807H0E73xPhLOib] it A, Page 5 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 6 of 24

1

27.

2

Despite the confidential nature of program counseling services and despite requests from

3 Mr. VanValkenburg, defendant did not provide Mr..VanValkenburg with an interpreter of any

4 kind for those services and did not engage in effective communication with Mr. VanValkenburg

5 during any meetings with his program counselor.

6

28.

7

At all material times, defendant offered inmates at OSCI education, training, classes, and

8 other programs, including the opportunity to work. Part of the purpose of those programs is to

9 prepare inmates to successfully re-enter society with practical skills and viable work ethic.

10

29,

11

Defendant failed to provide Mr. VariValkenburg with an interpreter of any kind for the

12 education, training, classes, and other programs offered at OSCI and did not engage in effective

13 communication with Mr. VanValkenburg as part of offering these programs or services.

14

30.

15

Despite requests from Mr. VanValkenburg, defendant did not provide Mr.

16 anValkenburg with an interpreter of any kind while at OSCI and did not engage in effective

17 communication with Mr. VanValkenburg. At no time while at OSCI did defendant provide Mr.

18 anValkenburg with an interpreter of any kind. Any and all of Mr. VanValkenburg's requests

19 for an interpreter at OSCI were denied.

20

Snake River Correctional Institution (SRCI)

21

31.

22

From on or about July 2001 through May 2012, Mr. VanValkenburg was housed at

23 SRCI,

24

32.

25

At all material times, program counselors at SRCI conducted intake interviews and

26 orientations for all new inmates.

Page 6 - COMPLAINT

HA OLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027 g071-10E73xPhLOib' it A, Page 6 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 7 of 24

33.

2

Defendant failed to provide Mr. VanValkenburg an interpreter of any kind and did not

3 engage in effective communication with Mr. VanValkenburg during the intake interviews or new

4 inmate orientation at SRCI.

5

34.

6

At all material times, defendant offered inmates medical services, dental services, and

7 religious services at SRCI,

8

35,

9

Despite the confidential nature of those services and despite requests from Mr.

10 VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind

11 for those services and did not engage in effective communicate with Mr. VanValkenburg while

12 at SRCI.

13

36.

14

At all material times, defendant offered inmates at SRCI program counseling as part of its

15 offender management and rehabilitation program. Part of the purpose of that program is to

16 reduce recidivism and assist inmates' rehabilitation.

17

37.

18

Despite the confidential nature of those counseling services and despite requests from

19 Mr. VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any

20 kind for those services and did not engage in effective communication with Mr. VanValkenburg.

21

38.

22

At SRCI, defendant offered inmates education and training, including the opportunity to

23 work, as well as the opportunity to attend other classes and programs. Part of the purpose of

24 these programs is to prepare inmates to successfully re-enter society with practical skills and

25 viable work ethic.

26

Page 7 - COMPLAINT

-HAGLUND KELLEY LL1) ATTORNEYS AT LAW
20U•SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
00000278071107E3 xPLhOiTbit A, Page 7 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 8 of 24

1

39.

2

Defendant failed to provide Mr. VanValkenburg with an interpreter of any kind for the

3 education, training, classes, and other programs offered at OSCI and did not engage in effective

4 communication with Mr. VanValkenburg as part of offering these programs or services.

5

40.

6

Despite requests from Mr. VanValkenburg, at no time while at SRCI did defendant

7 provide Mr. VanValkenburg with a qualified interpreter.

8

41.

9

If Mr. VanValkenburg and defendant needed to communicate while at SRO, defendant

10 required Mr. VanValkenburg to use non-confidential, untrained and primarily unqualified

11 inmates as interpreters, including known gang members. If no available inmates knew ASL,

12 defendant required Mr, VanValkenburg to teach inmates ASL so that defendant and Mr.

13 VanValkenburg could communicate. However, when an inmate interpreter was transferred,

14 discharged or disciplined, (e.g., sent to "the hole,") Mr. VanValkenburg had to start training a 15 new inmate so that he could have a chance at even limited communication with defendant.

16

42.

17

Defendant's failure to provide qualified interpreter and, specifically, Defendant's practice

18 of using inmate interpreters, caused Mr. VanValkenburg to be disciplined. When Mr.

19 VanValkenburg challenged his discipline, and objected to defendant's use of the inmate

20 interpreter as part of the discipline process, defendant still used the unqualified inmate interpreter

21 as part of the discipline process. Ultimately, Mr. VanValkenburg was sent to solitary 22 confinement. Had qualified, confidential interpreters been provided during the discipline 23 process, and during the occurrences giving rise to the discipline process, Mr. VanValleenburg

24 would not have been

25 26

Page 8 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027807H07E3xP1h.0i1bit A, Page 8 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 9 of 24

1

43.

2

After nearly ten years of working to train his own interpreters at SRCI for free, defendant

3 paid Mr. VanValkenburg to train his own unqualified, inmate interpreters so that Mr.

4 VanValkenburg and defendant could communicate from on or about 2011 through on or about

5 May 2012.

6

Santiani Correctional Institution (SCI)

7

44,

8

From on or about May 2012 through on or about January 2014, Mr. VanValkenburg was

9 housed at SCI. Program counselors at SCI conducted intake interviews and orientations for all

10 new inmates.

11

45,

12

Defendant failed to provide Mr. VanValkenburg an interpreter of any kind and did not

13 engage in effective communication with Mr. VanValkenburg during the intake interviews or new

14 inmate orientation at SCI.

15

46.

16

At all material times, defendant offered medical services, dental services and religious

17 services at SCI.

18

47.

19

Despite the confidential nature of those services and despite requests from Mr.

20 VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind

21 for those services and did not engage in effective communication with Mr. VanValkenburg while

22 at SCI.

23

48.

24

At all material times, defendant offered inmates at SCI program counseling as part of its

25 offender management and rehabilitation program. Part of the purpose of that program is to

26 reduce recidivism and assist inmates' rehabilitation.

Page 9 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUTTE 1777 PORTLAND, OR 97201 0000027807H073 PLO]
Exhibit A, Page 9 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 10 of 24

1

49.

2

Despite the confidential nature of those counseling services and despite requests from

3 Mr. VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any

4 kind for those services and did not engage in effective communication with Mr. VanValkenburg.

5

50.

6

At SCI, defendant offered inmates education and training, including the opportunity to

7 work, as well as the opportunity to attend other classes and programs. Part of the purpose of

8 those programs is to prepare inmates to successfully re-enter society with practical skills and

9 viable work ethic.

10

51.

11

Despite requests from Mr. VanValkenburg, at no time while at SCI did defendant provide

12 Mr. VanValkenburg with a qualified interpreter.

13

52.

14

Defendant told Mr. VanValkenburg that, if he wanted to communicate with defendant via

15 ASL, Mr. VanValkenburg had to teach another inmate ASL.

16

53.

17

Mr. VanValkenburg taught several inmates limited ASL while at SC1, but none could

18 provide effective communication.

19

54.

20

Furthermore, although defendant required Mr. VanValkenburg to train other inmates to

21 act as his interpreter, unlike at SRCI, defendant would not pay Mr. VanValkenburg for his time

22 in training those interpreters because, according to defendant, there was not "a documented need"

23 for such communication.

24

55,

25

Frustrated with defendant's continued refusal to make any attempt whatsoever to

26 accommodate him for over twelve years, on June 3, 2013, Mr. VanValkenburg filed an inmate

Page 10 - COMPLAINT

liAGLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND OR 97201
00000278071-E10x73hPiLbOi]t A, Page 10 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 11 of 24

1 discrimination complaint with defendant.

2

56.

3

The June 3, 2013 complaint referenced that the ADA law required that he be provided a

4 qualified ADA interpreter and defendant was violating the law. Defendant claimed that it did not

5 receive Mr. VanValkenburg's June 3, 2013, complaint until January 29, 2014, and denied the

6 complaint.

7

Columbia River Correctional Institution (CRCI)

8

57.

9

On or about January 2014, defendant transferred Mr. VanValkenburg to CRCI in

10 Portland, Oregon.

11

58.

12

From on or about January 2014 to the present, Mr. VanValkenburg has been housed at

13 CRCI.

14

59.

15

When he arrived at CRCI in Portland defendant finally provided Mr. VanValkenburg

16 with a qualified, non-inmate interpreter. He had not, for fourteen (14) years previously

17 communicated in ASL with any of defendant's employees or agents. However, even at CRCI

18 defendant continued to fail to accommodate him in pre-scheduled medical appointments in

19 February or March 2014. Even at CRCI, defendant fails to follow its own policy of not relying

20 on inmate interpreters.

21

Allegations Relevant to Defendant's Ongoing and Continuous Failure to Accommodate

22

60.

23 Defendant has both previously housed and currently houses inmates who are deaf or
24 bearing impaired, including plaintiff. Defendant has consistently failed to provide those inmates
25 with equal access to its programs or services and has failed to provide them with effective
26

Page 11 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 9720]
000002780714E07x3hPLibOTit A, Page 11 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 12 of 24

1 communication or auxiliary aids,

2

61.

3

By systematically denying deaf or hearing impaired inmates with effective

4 communication, auxiliary aids and equal access to its programs and services, defendant's

5 practices alleged herein constitute on ongoing and longstanding pattern and practice of 6 discrimination and constitute an unlawful disability-based hostile environment, This includes 7 denying deaf Or hearing impaired inmates effective communication, auxiliary aids and equal 8 access to programs and services, including but not limited to, medical and dental appointments, 9 counseling sessions, educational programs, religious services, orientation and intake sessions, 10 opportunities to communicate with family and friends, employment opportunities and other 11 classes and programs. These practices have harmed Mr. VanValkenburg on a continuing and

12 ongoing basis from the time of his intake at OSP to the present.

1:3

62.

14

All but one of the inmate interpreters used by Mr. VanValkenburg were not qualified and

15 could not provide effective communication and none of the inmate interpreters were bound by

16 any confidentiality whatsoever. Because the inmate interpreters were not bound by

17 confidentiality, Mr. YanValkenburg's safety was placed at risk by having to use the inmate

18 interpreters for confidential settings.

19

63,

20

Defendant allows religious groups to hold services at its facilities for the benefit of any

21 inmate who wishes to attend, and to make pastors available to inmates. At all times, prior to

22 January 2014, Mr. VanValkenburg has been excluded from meaningful participation in these

23 religious services. Mr. VanValkenburg has never benefited from these services as non-disabled

24 inmates do and has never been able to meet, confidentially, with any pastors or other clergy

25 persons since at no point prior to January 2014 has defendant ever provided confidential

26 interpreters for such meetings.

Page 12 - COMPLAINT

HAG LUND KELLEY LEP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027507HE07x3 PhLiOb]it A, Page 12 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 13 of 24

1

64.

2

Defendant provides educational classes at its facilities for the benefit of any inmate who

3 wishes to attend. At all times, prior to January 2014, Mr. VanValkenburg has been excluded 4 from meaningful participation in these classes, Mr. VanValkenburg has never benefited from

5 these educational classes as non-disabled inmates do.

6

65.

7

Defendant offers other classes and programs at its facilities for the benefit of any inmate

8 who wishes to attend. At all times, prior to January 2014, Mr. VanValkenburg has been excluded

9 from meaningful participation in these other classes and programs. Mr. VanValkenburg has

10 never benefited from these classes and programs as non-disabled inmates do.

11

66.

12

Defendant has failed to use any method of communication that Mr. VanValkenburg can

13 fully understand. Mostly, personnel orally communicate with Mr. VanValkenburg and he cannot

14 hear their words. As a result of his inability to hear and understand, Mr. VanValkenburg has

15 been disciplined by defendant.

16

67.

17

For many years while housed at correctional facilities managed by defendant, defendant

18 made no telephone access available to Mr. VanValkenburg. From the time he was at SRCI

19 forward, defendant has made available TTY machines for deaf or hearing impaired inmates who

20 wish to use the telephone. However, TTY machines are no longer a practical method for deaf or

21 hearing impaired inmates to make telephone calls. Nearly all deaf or hearing impaired people in

22 the United States now use video telephones so that each participant can see the ASL 23 communication. As a result, TTY technology is effectively obsolete as a means of 24 communication with other deaf persons, and is highly inefficient when communication with 25 hearing persons. As a result, Mr. VanValkenburg has been unable to have the same opportunity 26 to communicate via telephone with his family and others as is provided to non-disabled inmates.

Page 13 - COMPLAINT

HAGLUND KELLEY LuP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027807HE07x3 hPLiOb]it A, Page 13 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 14 of 24

Furthermore, Mr. VanValkenburg was provided with limited access to the TTY machines unlike

2 hearing inmates who had have virtually unlimited access to telephones. For an extended period

of time, the TTYs provided did not work properly. Even when they did work, they took 4 I substantially more time to use than regular telephone communication. Despite numerous
requests from Mr. VanValkenburg, for many years defendant refused to provide Mx, 6 VanValkenburg's requests to extend the amount of time to use TTY to account for the sluggish

7 technology and to accommodate his disability.

8

68.

9

At CRCI, Mr. VanValkenburg has access to a TTY and a video phone. However, unlike

10 the regular telephone, which is in the main area of CRCI and may be accessed by non-disabled

11 inmates at any time, the TTY machine and video phone are locked away in a room which is of

12 limited access to Mr. VanValkenburg. Mr. Va_nValkenburg often must wait for hours at a time

13 in order to make phone calls to friends, family, or his attorneys. Defendant's placement of the

14 videophone in a locked room used by inmates for other purposes denies him equivalent access to

15 telephone services.

16

69.

17

Defendant provides inmates work opportunities during their incarceration. Inmates earn

18 "points" that they can use like money to purchase goods from the prison store. Defendant has

19 passed Mr. VanValkenburg up for work opportunities because he is deaf and failed to make

20 reasonable accommodations to allow Mr. VanValkenburg, a deaf individual, to work in these

21 positions. As a result, Mr. VanValkenburg has been denied an opportunity to work and earn

22 points during his incarceration equal to the opportunity that non-disabled inmates have.

23

Injury

24

70.

25

Defendant's maintenance of a disability-based environment of hostility, evidenced by the

26 actions referenced herein have injured Mr. VanValkenburg and denied him an equal opportunity

Page 14 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
209 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027807HE07x3hPiLb01it A, Page 14 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 15 of 24
•

to take advantage of services that would aid in his ongoing process of rehabilitation. Mr.

2 VanValkenburg has been denied effective communication with his doctors, counselors, and 3 family. He has been subjected to punishment as a result of miscommunication that would not 4 have occurred if a qualified interpreter had been present. He has been denied an opportunity to 5 participate in the same educational, religious, employment, and other classes and programs as 6 non-hearing impaired individuals. As a result of this discrimination, Mr. VanValkenburg has 7 suffered emotional distress including, but not limited to, fear, stress; aggravation, loss of self8 worth, humiliation, frustration, anxiety, depression, as well as physical pain. Accordingly, Mr. 9 VanValkenburg is entitled to compensatory damages pursuant to ORS 659A.885(3) and 42

10 U.S.0 § 12133

11

71.

12

Defendant has also discriminated against Mr. VanValkenburg by denying him

13 employment opportunities that are available to non-hearing impaired individuals. Defendant has

14 utilized unnecessary job requirements that screen out deaf individuals such as Mr.

15 VanValkenburg. Defendant has also refused to provide any reasonable accommodations that

16 may be necessary to allow Mr. VanValkenburg to enjoy the same employment opportunities that 17 are available to non-deaf inmates. As a result of this discrimination, Mr. VanValkenburg has

18 been denied the opportunity to earn compensation and has suffered severe emotional distress

19 including, but not limited to, fear, stress, aggravation, loss of self-worth, humiliation, frustration,

20 anxiety, and depression. Accordingly, Mr. VanValkenburg is entitled to compensatory damages

21 pursuant to ORS 659A.885(3) and 42 -U.S.0 § 12133.

22

72.

23

Unless enjoined, defendant will continue to engage in the unlawful acts and the pattern

24 and practice of discrimination described above. Mr. VanValkenburg has no adequate remedy at

25 law. Mr. VanValkenburg is now suffering and will continue to suffer irreparable injury from

26 defendant's acts and the pattern or practice of discrimination unless relief is provided by this

Page 15 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777
PORTLAND, OR 97201
0000027807H0E73xPhLiObTit A, Page 15 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 16 of 24

1 Court. Accordingly, Mr. VanValkenburg is entitled to injunctive relief pursuant to ORS

2 659A,885(1) and 42 U.S.0 § 12133.

3

FIRST CLAIM FOR RELIEF

4

(Disability Discrimination — ORS 659A,142)

5

73.

6

Mr. VariValkenhorg realleges paragraphs 1 through 72 as though fully set forth herein.

7

74.

8

Mr, VanValkenburg has a physical impairment that substantially limits one or more of his

9 major life activities.

10

75.

11

Mr. VanValkenburg is an individual with a disability, as defined by ORS 659A.104 and

12 is a qualified person with a disability under 42 U.S.C. §12131(2).

13

76.

14

Defendants actions alleged herein constitute a pattern ox practice of discrimination that

15 occurred on an ongoing and continuous basis from 2000 to the present.

16

77.

17

The term "state government," as that term is defined by ORS 659A.142(1) and ORS

18 174.111, includes defendant,

19

78.

20

Defendant has injured Mr. VanValkenburg in violation of ORS 659A.142(5) and its

21 accompanying regulations, including but not limited to OAR 839-006-0270 and OAR 839-006-

22 0295, by committing the following discriminatory acts or practices:

23

a. Refusing to recognize that Mr. VanValkenburg is a qualified individual with a disability;

24

b. Maintaining a pattern and practice of discrimination against Mr. VanValkenburg and all

25

other deaf inmates;

26

c. Intentionally failing to accommodate Mr. VanValkenburg's disability in refusing to

Page 16 - COMPLAINT

PIACiLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027807EE07x3 hP1i,b01it A, Page 16 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 17 of 24

provide an interpreter or adequate auxiliary aids;

2

d. Failing to make reasonable modifications in policies, practices, or procedures, when such

3

modifications were necessary to afford Mr. VanValkenburg with access to defendant's

4

services, programs, or activities, and when such modifications would not be unduly

5

burdensome and would not fundamentally alter the nature of services provided by

6

defendant;

7

e. Intentionally refusing to provide Mr. VanValkenburg with an equally effective method of

8

communication as is provided to other individuals incarcerated at defendant's correctional

9

institutions;

10

f. Excluding Mr. VanValkenburg from and denying Mr. VanValkenburg participation in the

11

benefits of defendant's services, programs, or activities solely by reason of Mr.

12

VanValkenburg's disability;

13

g. 'Failing to provide qualified interpretive services during orientation and counselor

14

assessments and meetings, medical and dental examinations, religious services,

15

educational programs, rehabilitative programs and other voluntary programs and classes

16

offered by or through defendant;

17

h. Using inmates who was are not qualified in ASL to interpret conversations between Mr.

18

VanValkenburg and defendant's personnel, including conversations which involved the

19

disclosure of confidential information;

20

i. Requiring Mr. VatiValkenburg to train his own interpreters, with or without pay;

21

j. Failing to provide qualified interpretive services for support group meetings, thereby

22

excluding Mr. VanValkenburg from participating in these services, programs, or

23

activities;

24

k. Failing to provide qualified interpretive services for religious services and inmate work

25

opportunities, thereby excluding Mr. VanValkenburg from participating in these services,

26

programs, or activities;

Page 17 - COMPLAINT

HAGLUND KELLEY LLP

ATTORNEYS AT LAW

-

200 SW MARKET STREET, SUITE 1777

PORTLAND, OR 97201

0000027807HE0x73hPiLb0i1t A, Page 17 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 18 of 24

1

1. Failing to provide adequate technology that would allow Mr. VanValkenburg the same

2

opportunity to communicate with his family and others as is available to non-hearing

3

impaired inmates;

4

m. Refusing to make reasonable accommodations to job requirements regarding oral and

5

written communication skills, thereby denying Mr. VanValkenburg an equal opportunity

6

to work and earn points during his incarceration, and requiring Mr. VanValkenburg to

7

perform menial work;

8

n. Failing to conduct any investigation to determine what auxiliary aids are necessary and

9

appropriate in order for Mr. VanValkenburg to participate in equal access to its facilities'

10

services, programs, and activities; and

11

o. Failing to provide any means by which Mr. VanValkenburg can understand oral

12

communications and respond to Defendant's staff.

13

p. Maintaining a disability-based environment of hostility.

14

79.

15

Once Defendant had actual knowledge of Mr. VanValkenburg's disability on or about

16 2000 and thereafter, Defendant failed to take reasonable steps necessary to ensure that Mr.

17 VanValkenburg, an individual with a disability, would not be excluded, denied services, 18 segregated or otherwise treated differently from other individuals because of use of inappropriate

19 or ineffective auxiliary aids. At no time did defendant inquire to Mr. VanValkenburg about the

20 best way to communicate with him. As a result, Mr. VanValkenburg has been injured by

21 defendant's discriminatory activities.

22

80,

23

Mr. VanValkenburg has suffered damages, both real and intangible, as a result of

24 defendant's discriminatory conduct.

25

81.

26

Defendant's conduct was carried out with wanton, conscious, reckless, and outrageous

Page 18 - COMPLAINT

HAGLUND KELLEY LIP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
00001027807EE0x73hPiLbOi]t A, Page 18 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 19 of 24
•

disregard for Mr. VanValkenburg's civil rights, mental health, and welfare. 82.

Mr. VanValkenburg is entitled to equitable relief, and is entitled to compensatory

4 damages in an amount to be determined at trial, but in no event less than $450,000, as well as

5 attorney fees and litigation costs pursuant to ORS 659A.885(1) and ORS 20.107.

6

SECOND CLAIM FOR RELIEF

7

(Disability Discrimination — 42 U.S.C. §12131-12165 et seq.)

8

83.

9

Mr. VanValkenburg realleges paragraphs 1 through 72 as though fully set forth herein.

10

84.

11

Defendants actions alleged herein constitute a pattern or practice of discrimination that

12 occurred on an ongoing and continuous basis from 2000 to the present.

13

85.

14

Defendant is a "public entity" as that term is defined under 42 U.S.C. §12131(1).

15

86.

16

Defendant has injured Mr. VanValkenburg in violation of 42 U.S.0 § 12132 and its

17 accompanying regulations, including but not limited to 28 C.F.R. § 35.130 and 28 C.F.R. §

18 35_152, by committing the following discriminatory acts or practices:

19

a. Refusing to recognize that Mr. VanValkenburg is a qualified individual with a disability;

20

b. Maintaining a pattern and practice of discrimination against Mr. VanValkenburg and all

21

other deaf inmates;

22

c. Intentionally failing to accommodate Mr. VanValkenburg's disability in refusing to

23

provide an interpreter or adequate auxiliary aids;

24

d. Failing to make reasonable modifications in policies, practices, or procedures, when such

25

modifications were necessary to afford Mr. VanValkenburg with access to defendant's

26

services, programs, or activities, and when such modifications would not be unduly

Page 19 - COMPLAINT

HAGLUND KELLEY I.LP
ATTORNEYS AT LAW
200 sw MARKET STREET, SUITE 1777
PORTLAND, OR 97201
0000027 5071-1E07x3hP LibOi1t A, Page 19 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 20 of 24

1

burdensome and would not fundamentally alter the nature of services provided by

2

defendant;

3

e. Intentionally refusing to provide Mr. VanValkenburg with an equally effective method of

4

communication as is provided to other individuals incarcerated at defendant's prisons;

5

f. Excluding Mr. VanValkenburg from and denying Mr. VanValkenburg participation in the

6

benefits of defendant's services, programs, or activities solely by reason of Mr.

7

VanValkenburg's disability;

8

g. Failing to provide qualified interpretive services during orientation and counselor

9

assessments and meetings, medical and dental examinations, religious services,

10

educational programs, rehabilitative programs and other programs and classes offered by

11

or through defendant;

12

h. Using inmates who was are not qualified in ASS., to interpret conversations between Mr.

13

VanValkenburg and defendant's personnel, including conversations which involved the

14

disclosure of confidential information;

15

Requiring Mr. VanValkenburg to train his own interpreters, with or without pay;

16

j. Failing to provide qualified interpretive services for suppOrt group meetings, thereby

17

excluding Mr. VanValkenburg from participating in these services, programs, or

18

activities;

19

k. Failing to provide qualified interpretive services for religious services and inmate work

20

opportunities, thereby excluding Mr. VanValkenburg from participating in these services,

21

programs, or activities;

22

1. Failing to provide adequate technology that would allow Mr. VanValkenburg the same

23

opportunity to communicate with his family and others as is available to non-hearing

24

impaired inmates;

25

m. Refusing to make reasonable accommodations to job requirements regarding oral and

26

written communication skills, thereby denying Mr. VanValkenburg an equal opportunity

Page 20 - COMPLAINT

HAGLUND KELLEY IL? ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027807HE07x3 hPLiOb'it A, Page 20 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 21 of 24

1

to work and earn points during his incarceration, and requiring Mr. VanValkenburg to

2

perform menial work;

3

n. Failing to conduct any investigation to determine what auxiliary aids are necessary and

4

appropriate in order for Mr. VariValkenburg to participate in equal access to its facilities'

5

services, programs, and activities; and

6

o. Failing to provide any means by which Mr. VanValkenburg can understand oral

7

communications and respond to defendant's staff.

8

p. Maintaining a disability-based environment of hostility.

9

87.

10

Once defendant had actual knowledge of Mr. VanValkenburg's disability on or about

11 2000 and thereafter, defendant failed to take reasonable steps necessary to ensure that Mr.

12 VanValkenburg, an individual with a disability, would not be excluded, denied services, 1:3 segregated or otherwise treated differently from other individuals because of use of inappropriate 14 or ineffective auxiliary aids. At no time did defendant inquire to Mr. VanValkenburg about the 15 best way to communicate with him. As a result, Mr. VanValkenburg has been injured by

16 defendant's discriminatory activities.

17

88_

18

Mr. VanValkenburg has suffered damages, both real and intangible, as a result of

19 defendant's discriminatory conduct.

20

89.

21

Defendant's conduct was carried out with wanton, conscious, reckless, and outrageous

22 disregard for Mr. VariValkenburg's civil rights, mental health, and welfare.

23

90.

24

Mr. VanValkenburg is entitled to equitable relief, and is entitled to compensatory

25 damages in an amount to be determined at trial, but in no event less than $450,000, as well as

26 attorney fees and litigation costs pursuant to 42 U.S.C. § 12205.

Page 21 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SIMI 1777 PORTLAND, OR 97201
00000278071.E107x3hPLibOTit A, Page 21 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 22 of 24

1

THIRD CLAIM FOR RELIEF

2

(Unjust Enriehment/Quanturn Meruit)

3

91.

4

Mr. VanValkenburg realieges paragraphs 1 through 72 as though fully set forth herein.

5

92.

6

Mr. VanValkenburg conferred a benefit upon defendant by providing a service beneficial

7 to defendant. By teaching defendant's inmates limited ASL and training defendant's inmates to

8 serve as inmate interpreters on a limited basis, Mr. VanValkenburg saved defendant from the

9 expense of paying for a qualified interpreter, training its own employees to become a qualified

10 interpreter, or training its inmates to become qualified interpreters.

11

93.

12

Defendant knew and was aware that Mr. VanValkenburg was conferring that benefit

13 upon defendant.

14

94.

15

It would be unjust to allow defendant to retain:that benefit without requiring defendant to

16 pay for it. Mr. VanValkenburg had a reasonable expectation of payment. Defendant paid him

17 for his services at one point and continues to advertise for inmate interpreters as a paid position.

18

95.

19 Mr. VanValkenburg is entitled to restitution in an amount to be determined at trial, but in no

20 event less than 510,900.

21

PRAYER FOR RELIEF

22

WHEREFORE, Mr. VanValkenburg requests a trial by jury and requests the Court

23 should grant judgment in favor of Mr. VanValkenburg against defendant and grant the following

24 relief:

25

A,

26

On plaintiffs First and Second Claims for Relief: 1. Compensatory damages in an amount to be determined at trial but in no

Page 22 - COMPLAINT

HAGLUND KELLEY L.LP ATTORNEYS AT LAW
200 SW MARKEr STREET, SUITE 1777 PORTLAND, OR 97201
0000027107HE07x3hPLibOi1t A, Page 22 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 23 of 24

event less than $450,000;

2

2. Attorneys fees, costs and disbursements, pursuant to ORS 659A.885(1),

3

ORS 20,107 and/or 42 U.S.C. § 12205;

4

3. An Order that:

5

a) Requires defendant to institute a program instructing all employees on the proper and legal obligations to deaf inmates;

6

b) Requires defendant to develop and implement written materials for

7

disabled inmates, which will be provided to them at the time of

their arrival at defendant's facilities, providing disabled inmates

8

notice of their rights pursuant to, and of the availability of

9

accommodations under, ORS 659A.142;

10

c) Requires defendant to implement and enforce an effective communications policy that covers all services, programs, and

11

activities offered at its prisons;

12

d) Requires defendant to implement a grievance procedure to resolve

disability related issues and advise disabled inmates of their rights

13

to access this grievance procedure;

14

e) Requires defendant to enter into a contract with one or more

IS

interpreting services to provide interpreters for deaf or hearing impaired inmates to provide equal access to programs and services,

16

including medical and dental appointments, counseling sessions,

educational programs, religious services, orientation sessions, and

17

other classes and programs offered by defendant;

18

f) Requires defendant to only use qualified interpreters when

interpreters are used to communicate with deaf or hearing impaired

19

inmates;

20

g) Requires that defendant not use other inmates as interpreters;

21

11) Requires defendant to develop and implement a plan to conduct a

22

fact-specific investigation for deaf or hearing impaired inmates as

to what auxiliary aids are necessary and appropriate to ensure

23

equal access to its facilities' services, programs, and activities,

24

including but not limited to ensuring effective communication;

25

i)

Requires defendant to install video phones at each prison and allow

deaf or other hearing impaired inmates the same access to the

26

video phones as hearing inmates have with telephones;

Page 23 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
209 SW MARKET STREET, SUITE 1777 PORTLAND, OR 972111
0000027507E1E07x3hPLibOi]t A, Page 23 of 24

Case 3:14-cv-00916-BR Document 1-2 Filed 06/06/14 Page 24 of 24

1

j)

Requires defendant to modify its job requirements to only require

good oral and written communication skills for those positions

where such skills are essential to the effective performance of the

2

position;

3 k) Requires defendant to waive the requirement of good oral and

4

written communication skills for those positions where such skills

are incidental to the performance of the position and a hearing

5

impaired inmate applies for such a position;

6

1) Requires defendant to develop and implement a system of

notifying deaf or hearing impaired inmates of yard out bells, meal

7

bells, and any other forms of simple communication to all inmates

8

in the block or prison population;

9

10

B. On plaintiffs Third Claim for Relief, restitution in an amount to be determined at

11

trial, but in no event less than $10,000;

12

C. All such other relief as the Court deems just and equitable.

13

Dated this 5th day of May, 2014.

14

HAGLUND KELLY LLP

15

16

Shenoa L. Pa e. OSB #084392 200 SW Market St., Suite 1777

17

Portland, Oregon 92701-5771

Telephone: (503) 225-0777

18

Facsimile: (503) 225-1257

payne@hk-law.com

19

LAW OFFICE OF MATTHEW C. ELLIS

20 Matthew C. Ellis, OSB #075800

21

621 SW Morrison St, Suite 1050 Portland, Oregon 97205

22

Telephone: (503) 226-0072

Facsimile: (503) 765-5358

23

marthevv@emplo_ymentlawpdx,com

24

25

26

Page 24 - COMPLAINT

HAGLUND KELLEY LLP ATTORNEYS AT LAW
200 SW MARKET STREET, SUITE 1777 PORTLAND, OR 97201
0000027807HE07x3 hPLiOb]it A, Page 24 of 24

 
 Case 3:14-cv-00916-BR Document 3 Filed 06/13/14 Page 1 of 11

ELLEN F. ROSENBLUM Attorney General SHANNON M. VINCENT #054700 Senior Assistant Attorney General Department of Justice 1162 Court Street NE Salem, OR 97301-4096 Telephone: (503) 947-4700 Fax: (503) 947-4791 Email: Shannon.M.Vincent@doj.state.or.us
Attorneys for Defendant

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DAVID D. VANVALKENBURG,

Case No. 3:14-cv-00916-BR

Plaintiff,
v. OREGON DEPARTMENT OF CORRECTIONS, a state agency,
Defendant.

DEFENDANT OREGON DEPARTMENT OF CORRECTIONS' PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT
Oral Argument Requested
Fed. R. Civ. P. 12(b)(6)

CERTIFICATE OF CONFERRAL

Pursuant to L.R. 7-1(a)(1)(A), counsel for defendant Oregon Department of Corrections

(ODOC) certifies that the parties made a good faith effort to resolve the dispute in this motion—

discussing each defense at issue below—but were unable to do so. MOTION

Plaintiff David D. VanValkenburg, an inmate in ODOC’s custody, has alleged three

categories of claims for relief in this case: (1) federal disability discrimination claims; (2) state

disability discrimination claims; and (3) quantum meruit/unjust enrichment claims.

Page 1 -

DEFENDANT OREGON DEPARTMENT OF CORRECTIONS' PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT
SMV/cbh/5397633-v1
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4791

Case 3:14-cv-00916-BR Document 3 Filed 06/13/14 Page 2 of 11
ODOC moves for partial dismissal of plaintiff’s claims pursuant to Federal Rule of Civil Procedure 12(b)(6) as follows:
1. First, ODOC moves for an order dismissing plaintiff’s quantum meruit/unjust enrichment claims because the State has not waived its sovereign immunity for quasi-contractual claims.
2. Second, ODOC moves for an order dismissing plaintiff’s state disability discrimination claims to the extent that they involve allegations falling outside the 180-day tort claim notice period.
3. And finally, ODOC moves for an order dismissing plaintiff’s federal disability discrimination claims to the extent that they are rooted in conduct that occurred more than two years before plaintiff filed this lawsuit, because those claims are time-barred.
This motion is supported by the memorandum of law below, as well as the pleadings on file with the Court.
MEMORANDUM OF LAW I. Plaintiff’s Allegations.
Plaintiff filed this lawsuit on May 5, 2014, and he served it on ODOC on May 9, 2014. [Notice of Removal, Dkt. #1, ¶ 1].
In this lawsuit, plaintiff alleges that he “is a deaf individual who has been an inmate incarcerated at correctional institutions managed by defendant Oregon Department of Corrections since 2000,” [Compl., Dkt. #1, ¶ 1], and plaintiff’s lawsuit arises out of ODOC’s alleged failures to accommodate his disability. The allegations relevant to ODOC’s partial motion to dismiss plaintiff’s complaint are outlined below.
A. Plaintiff’s federal and state disability discrimination claims. Plaintiff’s federal and state disability discrimination claims arise out of his allegations that ODOC has failed to accommodate his disability. Plaintiff alleges a series of failures to accommodate over the fourteen year period that plaintiff has been in custody. Page 2 - DEFENDANT OREGON DEPARTMENT OF CORRECTIONS' PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT
SMV/cbh/5397633-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096
(503) 947-4700 / Fax: (503) 947-4791

Case 3:14-cv-00916-BR Document 3 Filed 06/13/14 Page 3 of 11

1. Alleged failures from November 2000-December 2000.

Plaintiff alleges that he was housed at Oregon State Penitentiary (OSP) for processing

from November 2000 through December 2000 [id. at ¶ 9], and plaintiff alleges the following

failures to accommodate during his stay at OSP:

 Plaintiff alleges that OSP did not provide a qualified American Sign Language

(ASL) interpreter for him during intake, orientation, or processing, so he “was not

able to understand any part of the orientation or effectively communicate with

defendant while at OSP” [id. at ¶¶ 11-12];

 Plaintiff alleges that OSP did not provide him with qualified interpretive services

for his counselor assessment at OSP, so he “did not understand defendant’s

counselor and defendant’s counselor was not able to properly assess” him [id. at

¶¶ 15-16]; and

 Plaintiff alleges that OSP did not provide him with qualified interpretive services

for his initial medical exam, so he “did not understand defendant’s medical

personnel and defendant’s medical personnel were not able to properly assess”

him [id. at ¶¶17-19].

2. Alleged failures from December 2000 through July 2001.

Plaintiff alleges that he was housed at Oregon State Correctional Institution (OSCI) from

December 2000 through July 2001 [id. at ¶ 21], and plaintiff alleges the following failures to

accommodate during his stay at OSCI:

 Plaintiff alleges that OSCI did not provide him with a qualified interpreter during

intake interviews and orientation, so he could not engage in effective

communication during his intake and orientation [id. at ¶¶ 22-23]; and

 Plaintiff alleges that OSCI did not provide him with an interpreter for medical

services, dental services, religious services, program counseling, education,

Page 3 -

training, classes, and other programs at OSCI [id. at ¶¶ 24-30].
DEFENDANT OREGON DEPARTMENT OF CORRECTIONS' PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT
SMV/cbh/5397633-v1
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4791

Case 3:14-cv-00916-BR Document 3 Filed 06/13/14 Page 4 of 11

3. Alleged failures from July 2001 through May 2012. Plaintiff alleges that he was housed at Snake River Correctional Institution (SRCI) from July 2001 through May 2012 [id. at ¶ 31], and plaintiff alleges the following failures to accommodate during his stay at SRCI:
 Plaintiff alleges that SRCI did not provide a qualified interpreter for him during intake interviews and orientation, so he could not engage in effective communication during his intake and orientation [id. at ¶¶ 32-33];
 Plaintiff alleges that SRCI did not provide him with an interpreter for medical services, dental services, religious services, program counseling, education, training, classes, and other programs [id. at ¶¶ 34-40].
 Plaintiff alleges that SRCI used “non-confidential, untrained and primarily unqualified inmates as interpreters, including known gang members” and required plaintiff “to teach inmates ASL” [id. at ¶ 41]; and
 Plaintiff alleges that SRCI’s failure to provide him with a qualified interpreter and the practice of using inmate interpreters caused plaintiff to be disciplined and sent to solitary confinement, and “[h]ad qualified, confidential interpreters been provided during the discipline process, and during the occurrences giving rise to the discipline process, [plaintiff] would not have been disciplined” [id. at ¶ 42]. 4. Alleged failures from May 2012 forward.
Plaintiff alleges that he was housed in Santiam Correctional Institution (SCI) from May 2012 through January 2014, and he alleges various failures to accommodate during his stay at SCI. [Id. at ¶¶ 44-56]. Plaintiff alleges that he was transferred to Columbia River Correctional Institution (CRCI) in January 2014. [Id. at ¶¶ 57-59]. Because ODOC is not moving against plaintiff’s disability discrimination claims to the extent that they arise out of plaintiff’s stay at SCI and CRCI, ODOC will not summarize plaintiff’s related allegations here.

Page 4 -

DEFENDANT OREGON DEPARTMENT OF CORRECTIONS' PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT
SMV/cbh/5397633-v1
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4791

Case 3:14-cv-00916-BR Document 3 Filed 06/13/14 Page 5 of 11
B. Plaintiff’s quantum meruit and unjust enrichment claims. Plaintiff alleges that he “conferred a benefit upon defendant by providing a service beneficial to defendant”—namely, allegedly “teaching defendant’s inmates limited ASL and training defendant’s inmates to serve as inmate interpreters on a limited basis.” [Id. at ¶ 92]. Plaintiff alleges that ODOC “knew” that plaintiff was “conferring that benefit” on ODOC, and that “[i]t would be unjust” to allow ODOC to “retain that benefit” without requiring ODOC to pay for it. [Id. at ¶ 94]. Plaintiff claims that he is entitled to at least $10,000 in restitution. II. Applicable Legal Standard. Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint for failure to state a claim upon which relief can be granted. In considering a Rule 12(b)(6) motion to dismiss, the court must accept all of the plaintiff’s material factual allegations as true and view all facts in the light most favorable to the plaintiff. Reynolds v. Giusto, No. 08–CV–6261, 2009 WL 2523727, at *1 (D. Or. Aug. 18, 2009). The Supreme Court addressed the proper pleading standard under Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Twombly established the need to include facts sufficient in the pleadings to give proper notice of the claim and its basis: “While a complaint attacked [under] Rule 12(b)(6) . . . does not need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (brackets omitted). III. Legal Argument. ODOC moves the Court for an order dismissing plaintiff’s complaint in part for failure to state a claim. Plaintiff’s complaint fails to state a claim as follows: (1) plaintiff cannot state a claim for quantum meruit or unjust enrichment against ODOC, because the State has not waived its sovereign immunity for quasi-contractual claims; and (2) plaintiff’s disability discrimination claims are time-barred to the extent that they arise out of conduct occurring outside of the applicable tort claim notice period and statute of limitations. Page 5 - DEFENDANT OREGON DEPARTMENT OF CORRECTIONS' PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT
SMV/cbh/5397633-v1 Department of Justice 1162 Court Street NE Salem, OR 97301-4096
(503) 947-4700 / Fax: (503) 947-4791

Case 3:14-cv-00916-BR Document 3 Filed 06/13/14 Page 6 of 11

A. The State has not waived sovereign immunity for quasi-contractual claims. Plaintiff alleges that he “conferred a benefit upon defendant” by “teaching defendant’s inmates limited ASL and training defendant’s inmates to serve as inmate interpreters on a limited basis,” thus—according to plaintiff—“sav[ing] defendant from the expense of paying for a qualified interpreter, training its own employees to become a qualified interpreter, or training its inmates to become qualified interpreters.” [Compl., Dkt. # 1, ¶ 92]. Plaintiff asserts that he performed at least $10,000 worth of work for the State, and he is entitled to recovery under the quasi-contractual theories of quantum meruit and unjust enrichment. [Id. at ¶¶ 91-95]. As set forth below, the State has not waived its sovereign immunity for these types of claims, so plaintiff’s claims fail as a matter of law.

1. Plaintiff’s quantum meruit claim fails because the State has not waived sovereign immunity.
“That a sovereign state cannot be sued without its consent is a cardinal principle of law so well established as to require no citation.” Rogers v. Holmes, 332 P.2d 608, 611 (Or. 1958). In Rogers v. Holmes, the Supreme Court of Oregon stated that the sovereign prescribes the manner in which it is to be sued, and any statute derogating the sovereign’s immunity from suit “must be given a strict construction.” Id.; see also Or. Const., Art. IV, § 24 (stating that sovereign immunity may only be waived by legislative action). Although the Oregon legislature has waived sovereign immunity for contract claims and tort claims, it has not waived the State’s sovereign immunity for quasi-contract claims—which are neither contract claims nor tort claims. See ORS 30.320 (waiving sovereign immunity for certain contract and tort claims).
a. A quantum meruit claim is not a contract claim. Quantum meruit is a form of restitution that allows a plaintiff to recover the fair value of services rendered to a defendant when no contract exists between the parties. Kashmir Corp. v. Patterson, 602 P.2d 294, 296 (Or. Ct. App. 1979), aff’d, 616 P.2d 468 (Or. 1980). When a plaintiff has performed services for a defendant, “[t]he law, in appropriate situations, will imply

Page 6 -

DEFENDANT OREGON DEPARTMENT OF CORRECTIONS' PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT
SMV/cbh/5397633-v1
Department of Justice 1162 Court Street NE Salem, OR 97301-4096 (503) 947-4700 / Fax: (503) 947-4791

Case 3:14-cv-00916-BR Document 3 Filed 06/13/14 Page 7 of 11

a quasi-contact. . . . . It is not a contract. It is a remedial device which the law affords to accomplish justice and prevent unjust enrichment.” Id. (emphasis added). Thus, quasi-contracts are legally distinct from contracts. Id. at 296.
b. A quantum meruit claim is not a tort claim. Under ORS 30.320, “An action may be maintained against any governmental unit mentioned in ORS 30.310 for liability in tort only as provided in ORS 30.260 to 30.300.” ORS 30.320. Under ORS 30.260(8), “Tort means the breach of a legal duty that is imposed by law, other than a duty arising from contract or quasi-contract, the breach of which results in injury to a specific person or persons for which the law provides a civil right of action for damages or for a protective remedy.” ORS 30.260(8) (emphasis added). Thus, quasi-contracts are legally distinct from torts. In sum, although the Oregon legislature has waived Oregon’s sovereign immunity for contract claims and tort claims, it has not waived sovereign immunity for quasi-contracts. Because the legislature has not waived sovereign immunity for quasi-contracts, plaintiff’s quantum meruit claim against ODOC fails as a matter of law.

2. Plaintiff’s unjust enrichment claim fails because the State has not waived sovereign immunity.
“Unjust enrichment is a theory of ‘quasi-contract’ that depends on the existence of an
implied contract.” Stovall v. State, 922 P.2d 646, 665 (1996). As such, for the same reasons as
stated immediately above in regard to plaintiff’s quantum meruit claim, plaintiff’s unjust
enrichment claim against ODOC fails as a matter of law.

B. Plaintiff’s state law disability discrimination claims are time-barred to the extent that they arise out of conduct occurring outside of the applicable tort claim notice period.
Under the Oregon Tort Claims Act, in order to bring a tort claim against the State, a
plaintiff must provide notice of his claim to the State within 180 days of the loss or injury.
O.R.S. 30.275(2)(b). A plaintiff may maintain a lawsuit without the actual or formal notice

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required by the Oregon Tort Claims Act, but only by filing and serving this suit within the requisite 180 days of the actions complained of. ORS 30.275(3).
Here, there is no allegation in plaintiff’s complaint that plaintiff gave tort claim notice beyond the complaint itself. ODOC was served with this lawsuit on May 9, 2014. [Notice of Removal, Dkt. #1, ¶ 1]. Accordingly, plaintiff’s state law disability discrimination claims are time-barred to the extent they arise out of conduct causing plaintiff harm before November 10, 2013.
The majority of the events alleged in plaintiff’s complaint occurred before November 10, 2013. On its face, plaintiff’s complaint contains allegations of discrete failures to accommodate at different ODOC institutions that plaintiff was housed at for periods pre-dating November 10, 2013, including: (1) alleged failures during plaintiff’s stay at OSP from November 2000 through December 2000; (2) alleged failures during plaintiff’s stay at OSCI from December 2000 through July 2001; and (3) alleged failures during plaintiff’s stay at SRCI from July 2001 through May 2012.1 Accordingly, ODOC moves to dismiss plaintiff’s claims arising out of alleged failures to accommodate his disability at OSP, OSCI, and SRCI as time-barred.
1. The continuing tort doctrine does not apply to plaintiff’s claims. Although plaintiff alleges that ODOC’s conduct was “continuing and ongoing” [Compl., Dkt. #1, ¶ 61], ODOC’s alleged discrete failures to accommodate plaintiff’s disability—each of which allegedly harmed plaintiff—are not a continuing tort. If a plaintiff alleges a continuing tort, “a notice of claim filed at any time during the continuance of the conduct or within 180 days after the conduct has ceased is timely.” Barns v. City of Eugene, 52 P.3d 1094, 1096 (Or. Ct. App. 2002).

1 ODOC is not moving to dismiss plaintiff’s state disability discrimination claims arising out of plaintiff’s stay at SCI from May 2012 through January 2014 or plaintiff’s state disability discrimination claims arising out of his stay at CRCI from January 2014 to the present, because it is not clear from the face of the complaint that the conduct plaintiff is complaining about occurred outside of the tort claim notice period.

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The continuing tort doctrine is based on “the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct.” Davis v. Bostick, 580 P.2d 544, 547 (1978) (emphasis added). A continuing tort occurs when each incident of a series did not by itself support a claim but the incidents as a whole were a “systemic pattern of conduct that led to a specific injury.” Barrington v. Sandberg, 991 P.2d 1071, 1074 (Or. Ct. App. 1999). A series of discrete acts—even if “connected in design or intent”—are not a continuing tort. Richer v. Poisson, 903 P.2d 932, 934 (Or. Ct. App. 1995); see also Holdner v. Columbia County, 627 P.2d 4 (Or. Ct. App. 1981). When each of a defendant’s acts is separately actionable because they individually caused harm, then a plaintiff is not entitled to “ride out the storm and lump sum her grievances.” Davis, 282 Or. at 674. Instead, the statute of limitations begins to run when each incident occurred. Id.
The purpose behind the Oregon Tort Claims Act notice and statute of limitations provisions are to “give the public body timely notice of the tort and allow its officers an opportunity to investigate the matters promptly and ascertain all the necessary facts.” Urban Renewal Agency v. Lackey, 275 Or. 35, 41, 549 P.2d 660 (1976). A plaintiff cannot end-run that policy by designating a series of acts as continuous. Davis, 282 Or. at 674. Therefore, plaintiff’s claim will only constitute a continuing tort if: (1) ODOC’s course of conduct was not individually actionable; and (2) the resulting injury was caused by the cumulative effect of ODOC’s actions. See Davis, 580 P.2d at 547.
Here, plaintiff alleges that his disability was not accommodated at different state prisons he has been housed in over the course of 14 years in custody, but alleged refusals to grant accommodations—each of which allegedly harmed plaintiff—are discrete, separately actionable claims. See, e.g., Barrett v. Marion County, Case No. 07-6337-TC, 2008 WL 4221544, *5 (D. Or. Sept. 15, 2008) (“[R]efusal to grant accommodations and retaliation events are discrete, separately actionable claims and are thus subject to the OTCA.”); Thunderbird v. O.D.O.C., Case No. CV-08-1404-PK, 2011 WL 2971798, * (D. Or. June 28, 2011) (continuing tort theory did Page 9 - DEFENDANT OREGON DEPARTMENT OF CORRECTIONS' PARTIAL MOTION TO
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not apply to ODOC’s alleged failure to make its facilities accessible for people with disabilities). Plaintiff’s claims arising out of his time in custody at OSP, OSCI, and SRCI are time-barred on their fact, because plaintiff has alleged discrete wrongful acts, each of which allegedly harmed plaintiff, and not a “continuing tort.” Accordingly, the Court should dismiss plaintiff’s claims to the extent that they arise out of his time in custody at OSP, OSCI, and SRCI.
C. Plaintiff’s federal law disability discrimination claims are time-barred to the extent that they arise out of conduct occurring outside of the applicable statute of limitations.
Plaintiff’s federal law disability discrimination claims should be dismissed to the extent that the claims are barred by the statute of limitations. Plaintiff’s claims under the Americans with Disabilities Act (ADA) are governed by a two-year statute of limitations. Benton v. Doe 1, Case No. 03:13-cv-00613-ST, 2014 WL 1383606, *4 (D. Or. April 7, 2014). Here, plaintiff filed his complaint on May 5, 2014. Thus, any claims arising before May 5, 2012, are barred by the statute of limitations.2
Most of the events mentioned in plaintiff’s complaint occurred outside of the two-year statute of limitations. Plaintiff’s claims based on those events—specifically, plaintiff’s claims arising out of his time in custody at OSP, OSCI, and SRCI—are barred by the statute of limitations. For the reasons discussed above, the conduct alleged in this case is not a “continuing tort” for purposes of the statute of limitations, because plaintiff has alleged a series of discrete acts (i.e., failures to accommodate his disability), each of which allegedly harmed plaintiff. IV. Conclusion.
For the foregoing reasons, defendants move the Court for an order dismissing plaintiff’s compliant in part as follows: (1) defendants move the Court for an order dismissing plaintiff’s quantum meruit/unjust enrichment claim because the State has not waived its sovereign
2 Defendants note that plaintiff’s claims arising out of his time in custody at OSP and OSCI over ten years before he filed his complaint in this case are barred by the statute of ultimate repose. ORS 12.115. Page 10 - DEFENDANT OREGON DEPARTMENT OF CORRECTIONS' PARTIAL MOTION TO
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immunity for quasi-contractual claims; and (2) defendants move the Court for an order dismissing plaintiff’s state and federal disability discrimination claims to the extent they arise out of plaintiff’s time in custody at OSP, OSCI, and SRCI, because those claims are time-barred.
DATED June 13 , 2014. Respectfully submitted, ELLEN F. ROSENBLUM Attorney General
s/ Shannon M. Vincent SHANNON M. VINCENT #054700 Senior Assistant Attorney General Trial Attorney Tel (503) 947-4700 Fax (503) 947-4791 Shannon.M.Vincent@doj.state.or.us Of Attorneys for Defendant
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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DAVID VANVALKENBURG, Plaintiff,
v. OREGON DEPARTMENT OF CORRECTIONS,
Defendant.

3:14-CV-00916-BR OPINION AND ORDER

MATTHEW C. ELLIS 621 S.W. Morrison St., Ste. 1050 Portland, OR 97205 (503) 226-0072
SHENOA L. PAYNE Haglund Kelley LLP 200 S.W. Market St., Ste. 1777 Portland, OR 97201 (503) 225-0777
Attorneys for Plaintiffs

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ELLEN F. ROSENBLUM Attorney General HEATHER J. VANMETER SHANNON M. VINCENT Assistant Attorneys General Oregon Department of Justice 1162 Court Street N.E. Salem, OR 97301-4096 (503) 947-4700
Attorneys for Defendant
BROWN, Judge. This matter comes before the Court on Defendant Oregon
Department of Corrections’ Partial Motion (#3) to Dismiss Plaintiff David VanValkenburg’s Complaint. The Court heard oral argument on September 15, 2014, and took the matter under advisement.
For the reasons that follow, the Court DENIES Defendant’s Partial Motion to Dismiss.
FACTUAL BACKGROUND The following facts are taken from Plaintiff’s Complaint: Plaintiff is deaf and communicates primarily through American Sign Language (ASL), although he has some limited communication skills through written notes. Plaintiff has been incarcerated at correctional institutions managed by Defendant since 2000: Oregon State Penitentiary (November through December 2000), Oregon State Correctional
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Institution (December 2000 through July 2001), Snake River Correctional Institution (July 2001 through May 2012), Santiam Correctional Institution (May 2012 through January 2014), and Columbia River Correctional Institution (January 2014 to the present).
During his incarceration Plaintiff requested a qualified ASL interpreter on numerous occasions. Between his entry into the Oregon State Penitentiary in November 2000 and his move to Columbia River Correctional Institution in January 2014, however, Defendant failed to provide Plaintiff with qualified interpreters for communications during intake; orientation; processing; counselor assessments; counseling sessions; medical examinations and appointments; disciplinary proceedings; and education, training, work, and religious programs offered at the various institutions. In addition, Defendant required Plaintiff to use nonconfidential, untrained, and primarily unqualified inmates as interpreters during Plaintiff’s incarceration at Snake River Correctional Institution and Santiam Correctional Institution between 2001 and 2014. When no inmates who knew ASL were available, Defendant required Plaintiff to teach inmates ASL so that Plaintiff could communicate with Defendant. Defendant paid Plaintiff for this training between approximately 2011 and May 2012.
Beginning January 2014 during Plaintiff’s incarceration at
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Columbia River Correctional Institution, Defendant inconsistently provided Plaintiff with a qualified, non-inmate ASL interpreter, but Defendant failed to provide Plaintiff with a qualified ASL interpreter in pre-scheduled medical appointments in February or March 2014.
PROCEDURAL BACKGROUND On March 20, 2014, Plaintiff gave Defendant timely notice of his tort claim. On May 5, 2014, Plaintiff filed a Complaint in Multnomah County Circuit Court alleging three claims for relief: Disability Discrimination under Oregon Revised Statute § 659A.142 (First Claim); Disability Discrimination under the Americans with Disabilities Act (ADA), 42 U.S.C. § 12131–12165 (Second Claim); and Unjust Enrichment/Quantum Meruit (Third Claim). On June 6, 2014, Defendant removed the action to this Court. On June 13, 2014, Defendant filed a Partial Motion (#3) to Dismiss Plaintiff’s claim for unjust enrichment/quantum meruit (Third Claim), Plaintiff’s claim for federal disability discrimination (Second Claim) to the extent that it arises from conduct that occurred more than two years before Plaintiff filed this lawsuit, and Plaintiff’s claim for state disability discrimination to the extent that it involves allegations that occurred before the 180-day tort-claim notice period.
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In his Response (#8) to Defendant’s Motion Plaintiff dismisses the unjust enrichment/quantum meruit claim without prejudice. Plaintiff argues, however, that his remaining claims are not time-barred. On July 14, 2014, Defendant filed a Reply (#13).
The Court heard oral argument on September 15, 2014. The Court permitted the parties to file no later than September 19, 2014, supplemental authorities of cases in which Oregon appellate courts address the issue whether the Oregon continuing-tort doctrine permits a tort claimant to recover for acts that occurred before the period protected by the tort-claim notice.
The Court took Defendant’s Motion under advisement on September 15, 2014.
Plaintiff filed Supplemental Authorities (#16) on September 16, 2014, and Defendant filed Supplemental Authorities (#18) on September 19, 2014.
On October 6, 2014, Plaintiff filed an Amended Complaint (#19).
STANDARDS To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to
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a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citations and quotation marks omitted). See also Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013). The pleading standard under Federal Rule of Civil Procedure 8 “does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 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 do.’” Id. (quoting Twombly, 550 U.S. at 555). A complaint also does not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
DISCUSSION As noted, Defendant moves to dismiss Plaintiff’s federal disability-discrimination claim (Second Claim) to the extent that
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it arises from conduct that occurred more than two years before Plaintiff filed this lawsuit and to dismiss Plaintiff’s state disability-discrimination claim (Third Claim) to the extent that it involves allegations that occurred before the 180-day tortclaim notice period. I. Plaintiff’s Federal ADA Disability-Discrimination Claim
Defendant moves to dismiss Plaintiff’s federal disabilitydiscrimination claim to the extent that it arises out of conduct that occurred before May 5, 2012, which is two years before the date that Plaintiff filed his Complaint, on the ground that the two-year statute of limitations had expired on those acts. Defendant also contends the continuing-violations doctrine does not apply here because Plaintiff’s claim does not derive from employment law and is based on a series of discrete acts.
Plaintiff, in turn, asserts his claim is based on a pattern or practice of discrimination by Defendant rather than a series of discrete, individually actionable acts; he brought this action while Defendant's conduct was ongoing, and, therefore, his claim properly includes all of Defendant’s acts; and, accordingly, the continuing-violations doctrine applies under these circumstances. Plaintiff also asserts Defendant's discriminatory conduct resulted in a hostile environment.
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A. The Law 1. Statute of Limitations Because the ADA does not contain a specific statute of
limitations, federal courts apply the statute of limitations of the most analogous state law. See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1137 n.2 (9th Cir. 2002)(applying California’s one-year personal-injury limit to ADA claim). Here the parties do not dispute that federal courts in Oregon apply Oregon Revised Statute § 12.110(1), the two-year personal-injury statute of limitations, to ADA claims outside of employment law. See T.L. ex rel. Lowry v. Sherwood Charter Sch., No. 13-CV-01562HZ, 2014 WL 897123, at *9 (D. Or. Mar. 6, 2014). See also Thunderbird, 2011 WL 2971798, at *3 (“This court has applied the two-year personal injury statute of limitations to ADA [claims.]”).
Although the limitations period is adopted from state law, the claim accrues according to federal law. Ervine v. Desert View Reg’l Med. Ctr. Holdings, LLC, 753 F.3d 862, 869 (9th Cir. 2014)(discussing Rehabilitation Act claim). “A federal claim accrues when the plaintiff knows or has reason to know of the injury that is the basis of the action.” Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012)(citing Bagley v. CMC Real Estate Corp., 923 F.2d 758, 760 (9th Cir. 1991)).
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2. Continuing-Violations Doctrine Discrete discriminatory acts are only actionable when such acts occur within the limitations period “even when they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). “The continuing-violations doctrine extends the accrual of a claim if a continuing system of discrimination violates an individual’s right up to a point in time that falls within the applicable limitations period.” Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 822 (9th Cir. 2001)(emphasis added)(internal quotation marks omitted). A plaintiff establishes a systemic, continuing violation by demonstrating a policy or practice of discrimination. Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 638 (9th Cir. 2002). The plaintiff must show the defendant maintained the discriminatory system both before and during the limitations period. Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 974 (9th Cir. 2010)(citing Douglas, 271 F.3d at 822). See also Gutowsky v. Cnty. of Placer, 108 F.3d 256, 259 (9th Cir. 1997). “The doctrine applies where there is no single incident that can fairly or realistically be identified as the cause of significant harm.” Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002)(internal quotation marks omitted). Hostile environment claims by “[t]heir very nature involve[]
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repeated conduct.” Morgan, 536 U.S. at 115 (citation omitted). “Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id. at 117.
B. Analysis Defendant argues the continuing-violations doctrine does not apply here. Defendant first contends courts have not found the continuing-violations doctrine applicable to ADA claims other than in the employment context. Defendant argues in the alternative that even if the continuing-violations doctrine applied to ADA claims outside of employment law, it would not apply here. Defendant relies primarily on Thunderbird v. Oregon State Department of Corrections, No. 08-1404-PK, 2011 WL 2971798 (D. Or. June 28, 2011), and Atwood v. Oregon Department of Transportation, No. CV-06-1726-ST, 2008 WL 803020 (D. Or. Mar. 20, 2008), to support its arguments.
1. Thunderbird and Atwood are distinguishable from this matter. In Thunderbird an inmate alleged claims against ODOC and various state prisons and prison officials under the Rehabilitation Act of 1973, Title II of the ADA, and 42 U.S.C. § 1983. 2011 WL 2971798, at *1. The claims were based on specific allegations of numerous discriminatory discrete acts by
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the defendants. Id. For example, the plaintiff alleged on September 11, 2000, two officers confiscated and destroyed a pair of his prosthetic boots; on November 8, 2003, an officer confiscated his wheelchair cushion, a medically-necessary device; and on August 18, 2008, defendants denied him insulin. Id., at *9-*10. The plaintiff also alleged a prison doctor inappropriately prescribed a blood-thinning medication that caused the plaintiff to have a severe reaction and then placed the plaintiff in a non-ADA compliant cell without handrails or an accessible toilet. Id., at *9.
In response to the defendants’ motion to dismiss the claims based on acts that did not occur within the statute-oflimitations period, the plaintiff argued the defendant’s conduct constituted longstanding, continuing violations based on discriminatory policies, and, therefore, the continuingviolations doctrine applied. Id., at *4. The court noted “[t]he continuing-violations doctrine involves repeated instances or continuing acts of the same nature, as for instance, repeated acts of sexual harassment or repeated discriminatory employment practices.” Id. (internal quotations marks omitted). The court, however, found the plaintiff actually alleged a series of discrete acts: “While noting that these allegedly illegal policies have been in place for a long time, Thunderbird goes on to allege numerous specific instances where his rights were
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violated as [a] result of these policies.” Id. Thus, the court did not apply the continuing-violations doctrine because the acts alleged were not of the same nature and because the plaintiff alleged that each discrete incident caused him harm. Id. As a result, the court found the plaintiff’s allegations stemming from acts that occurred more than two years before the plaintiff filed a complaint were time-barred. Id.
In Atwood the plaintiff alleged religious discrimination, disability discrimination, violations of the Federal Family and Medical Leave Act and Oregon Family Leave Act, workers’ compensation discrimination, and common-law tort claims. Atwood, 2008 WL 803020, at *1. The plaintiff specifically alleged he requested reasonable accommodation, but the defendant “failed to grant such accommodations or engage him in the interactive process.” Id., at *13. Although the Atwood court discussed the continuing-tort theory in the context of a statelaw claim, it specifically noted “the continuing-violation doctrine under federal law appears perfectly congruous with the lines drawn between continuous torts and separate discrete acts under Oregon law.” Id. The court found a “refusal to grant reasonable accommodations in response to a request would have been a discrete actionable injury.” Id. Accordingly, the court held claims based on those discrete acts that occurred outside of the relevant notice period were time-barred. Id.
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The Court notes in Atwood and Thunderbird the plaintiffs alleged the defendants committed a series of discrete discriminatory acts and only argued the defendants’ acts constituted continuing violations after the defendants filed motions to dismiss the plaintiffs' claims on the basis that they were time-barred. See also Cherosky, 330 F.3d at 1246 (The court held the plaintiffs’ claims time-barred because they were based on discrete acts that occurred outside of the notice period. Nevertheless, “[a]cknowledging that their claims would be untimely under either [the discrete act or hostile work environment test] because no discriminatory act occurred within the limitations period, the [plaintiffs] attempt to cast their allegations as a pattern-or-practice claim[.]”).
That is not the case here. In his Complaint Plaintiff alleged from the beginning that Defendant’s acts constituted a pattern or practice of discrimination. Although Plaintiff alleges specific acts, they are all part of the same alleged course of discriminatory conduct, and they are not disparate acts, different in kind, that would support various theories of recovery. Thus, Plaintiff’s continuing-violation argument is compatible with his Complaint and is not a mere re-casting of his allegations of multiple discrete acts for the purpose of rescuing his claim from Defendant’s Motion to Dismiss.
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2. The continuing-violations doctrine as applied to ADA claims is not exclusive to employment law. Although many of the ADA cases in which courts apply the continuing-violations doctrine arise in the context of employment law, the Court has not found nor have the parties cited to any case that explicitly limits the doctrine to employment law. Although the court in Thunderbird ultimately decided the continuing-violations doctrine did not apply to the plaintiff’s ADA claims, the court did not explicitly base its decision on the principle that the continuing-violations doctrine applies only to employment cases. In fact, the court’s reasoning was based on the differing nature of the discrete acts that the plaintiff alleged and the fact that the plaintiff alleged each act caused him harm. Indeed, if the plaintiff in Thunderbird had alleged “repeated instances or continuing acts of the same nature,” none of which could individually “be identified as the cause of significant harm,” the court may have applied the continuing-violations doctrine. 3. Plaintiff alleges a pattern or practice of disability-discrimination, and, therefore, the continuing-violations doctrine applies to all of Defendant’s acts contributing to that pattern or practice, including those that occurred before May 5, 2012. Defendant alternatively argues even if the continuingviolations doctrine applies to ADA claims arising outside of employment law, it would not apply here. Defendant asserts
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Plaintiff’s claim is based on a series of alleged refusals to accommodate; a refusal to accommodate is a discrete, individually actionable act; and, therefore, the part of Plaintiff’s federal claim of disability discrimination that is based on acts that occurred before May 5, 2012 (i.e., two years before Plaintiff filed his Complaint), is time-barred and must be dismissed.
a. Plaintiff’s claim is based on a pattern or practice of discrimination rather than a series of discrete acts. To state a pattern or practice claim a plaintiff must allege widespread and routine discriminatory conduct rather than merely sporadic discriminatory acts. Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003)(citing Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 336 (1977)). To meet the pleading standard of Federal Rule of Civil Procedure 8, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678. A pattern or practice allegation “without any factual content to bolster it[] is just the sort of conclusory allegation that the Iqbal Court deemed inadequate.” Moss v. U.S. Secret Serv., 675 F.3d 1213, 1226, amended, 711 F.3d 941 (9th Cir. 2013), rev’d on other grounds sub nom, Wood v. Moss, 134 S. Ct. 2056 (2014). Plaintiff alleges Defendant is engaged in a
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pattern or practice1 of discrimination against deaf inmates by failing to provide qualified ASL interpreters or auxiliary aids during nearly all communications between Defendant and deaf inmates. Although Plaintiff alleges specific acts by Defendant (for example, denial of Plaintiff’s request for qualified interpretive services for his medical examination at Oregon State Penitentiary), these acts establish the factual context to bolster Plaintiff’s pattern or practice claim and to satisfy the required pleading standard of Federal Rule of Civil Procedure 8. See Iqbal, 556 U.S. at 678. See also Moss, 675 F.3d at 1226. The crux of Plaintiff’s Complaint, however, is that Defendant’s actions in general “constitute a pattern or practice of discrimination that occurred on an ongoing and continuous basis from 2000 to the present.” First Am. Compl. at ¶ 85.
In addition, although the Atwood court held a “refusal to grant reasonable accommodations in response to a request would have been a discrete actionable injury,” the plaintiff in Atwood did not allege a pattern or practice of discrimination. Here, however, Plaintiff alleges Defendant refused numerous times to accommodate Plaintiff’s known disability, and those refusals constituted part of Defendant’s
1 While pattern or practice claims typically arise in classaction suits, courts have permitted individual plaintiffs to bring pattern or practice claims. See, e.g., Knox v. City of Portland, 543 F. Supp. 2d 1238, 1246 (D. Or. Mar. 5, 2008). 16 - OPINION AND ORDER

pattern or practice of discrimination against Plaintiff. Moreover, unlike in the complaint in Thunderbird,
all of the alleged acts that are part of Plaintiff’s pattern or practice claim are “of the same nature.” As noted, in Thunderbird the court determined the plaintiff alleged multiple discrete acts that were not “repeated instances or continuing acts of the same nature, as for instance, repeated acts of sexual harassment or repeated discriminatory employment practices.” Id., at *4 (citation omitted). Although the alleged discriminatory acts in Thunderbird related to the plaintiff’s disability, those acts varied in nature: for example, confiscating the plaintiff’s prosthetic boots and wheelchair cushion, prescribing the wrong medication, placing the plaintiff in a non-ADA compliant cell, denying the plaintiff insulin, etc. Here the acts alleged by Plaintiff as part of Defendant’s pattern or practice of discrimination are all of the same nature: Plaintiff did not receive qualified ASL interpreters or auxiliary aids as the result of Defendant’s pattern or practice of discrimination.
b. Plaintiff alleges Defendant’s pattern or practice of disability discrimination rather than any individual discrete acts caused Plaintiff harm. Plaintiff does not allege a single incident caused him significant harm. As noted, the continuing-violations
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doctrine applies when “there is no single incident that can fairly or realistically be identified as the cause of significant harm.” Flowers, 310 F.3d at 1126 (internal quotation marks omitted)(continuing-violations doctrine does not apply to defamation claim based on publication of allegedly defamatory book). See also Thunderbird, 2011 WL 2971798, at *4 (continuingviolations doctrine does not apply to ADA claim based on numerous discrete acts, varied in nature, each of which caused harm). Like a hostile-environment claim, the “very nature” of a pattern or practice claim “involves repeated conduct.” See Morgan, 536 U.S. at 115 (citation omitted). See also Cherosky, 330 F.3d at 1247. “Such claims are based on the cumulative effect of individual acts.” Morgan, 536 U.S. at 115.
Although Plaintiff alleges some specific acts to support his pattern or practice claim, Plaintiff states Defendant’s continuing pattern or practice of discriminatory conduct caused Plaintiff harm rather than any one specific act by Defendant. For example, in his Complaint Plaintiff states Defendant’s alleged “practices have harmed [Plaintiff] on a continuing and ongoing basis from the time of his intake at [Oregon State Penitentiary] to the present.” First Am. Compl. at ¶ 61. Plaintiff also states he “is now suffering and will continue to suffer irreparable injury from Defendant’s acts and the pattern or practice of discrimination.” Id., at ¶ 72. In
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other words, Plaintiff does not allege a specific injury derived from a specific discrete act.
On this record the Court, therefore, concludes Plaintiff alleges a systemic, continuing violation in the form of a pattern or practice of discrimination on the basis of disability in violation of 42 U.S.C. § 12132, and, therefore, that part of Plaintiff’s federal disability claim that is based on Defendant’s acts that occurred before May 5, 2012, is not time-barred. Accordingly, the Court denies Defendant’s Partial Motion to Dismiss Plaintiff’s federal ADA disability-discrimination claim to the extent that it is based on Defendant’s acts that occurred before May 5, 2012. II. State Disability-Discrimination Claim
Defendant moves to dismiss Plaintiff’s state disabilitydiscrimination claim to the extent that it is based on acts that occurred outside of the 180-day tort-claim notice period.
The OTCA requires a claimant to file notice of a tort claim against a public body within “180 days after the alleged loss or injury” unless it is a wrongful-death claim. Or. Rev. Stat. § 30.275(2). See also Barns v. City of Eugene, 183 Or. App. 471, 474 (2002)(citing Or. Rev. Stat. § 30.275(1)). Under Oregon law “when a continuing-tort is involved, a notice of claim filed any time during the continuance of the conduct or within 180 days after its conclusion is necessarily timely.” Holdner v. Columbia
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Cnty., 51 Or. App. 605, 613 (1981). Although the date that Plaintiff gave Defendant notice was
in dispute at the time of oral argument, Plaintiff has since filed an Amended Complaint (#19) in which he alleges he gave timely notice of his tort claim to Defendant on March 20, 2014. Defendant does not now dispute that Plaintiff’s Notice complies with the OTCA requirement. Defendant, however, moves to dismiss Plaintiff’s state disability-discrimination claim based on Defendant’s conduct before September 21, 2013, which is 180 days before March 20, 2014, when Plaintiff gave Defendant Notice of his tort claim.
A. Evidence of conduct that occurred outside of the notice period is admissible to support the claim for which Plaintiff gave timely notice. It is undisputed that when the continuing-tort doctrine applies, evidence of conduct that occurred outside of the notice period is admissible to support those allegations that are timely. See, e.g., Griffin v. Tri-Met, 112 Or. App. 575, 582 (1992), aff’d in part and rev’d in part on other grounds at 318 Or. 500 (1994)(“The allegations should not have been stricken. Accordingly, plaintiff was entitled to have the evidence supporting the allegations admitted without limitation, not solely for the purpose of proving discriminatory intent.”). As noted, Defendant does not dispute Plaintiff’s Notice of his state tort claim was timely. Defendant, however, asserts a
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tort claimant may not recover for any acts that occurred outside of the notice period even if the continuing-tort doctrine2 applies. In this case the Court need not address whether a tort claimant may seek recovery for acts occurring outside of the OTCA notice period because Plaintiff is seeking damages and equitable relief based on Defendant’s alleged pattern or practice of discrimination that continued during the notice period rather than recovery for specific acts that occurred outside of the OTCA notice period. Thus, if the Court finds the continuing-tort doctrine applies here, evidence of Defendant’s alleged acts before September 21, 2013, is admissible to support Plaintiff’s allegation that Defendant engaged in a pattern or practice of discrimination that continued during the notice period.
B. Oregon’s continuing-tort doctrine applies to Plaintiff’s claim. Although Oregon courts have not considered the continuingtort doctrine in pattern or practice claims, it has applied the doctrine to claims for intentional infliction of emotional distress (IIED), disability discrimination, and hostile work environment. See, e.g., Barrington ex rel. Barrington v. Sandberg, 164 Or. App. 292, 298 (1999)(IIED); Griffin, 112 Or. App. at 582 (disability discrimination); Reyna v. City of
2 Although the Oregon continuing-tort doctrine is similar to the federal continuing-violation doctrine, courts have described the doctrines using different language. See Atwood, 2008 WL 803020, at *13. 21 - OPINION AND ORDER

Portland, No. 02-980-JO, 2005 WL 708344, at *5 (D. Or. Mar. 28, 2005)(state hostile work environment). Application of the doctrine to a pattern or practice claim under the ADA is consistent with the above cases because, like hostile work environment and some IIED claims, the harm in a pattern or practice claim is only actionable at the end of a series of actions. See Boardmaster Corp. v. Jackson Cnty., 224 Or. App. 533, 550 (2008).
The continuing-tort doctrine applies when “each incident of a series [does] not by itself support a claim but the incidents as a whole [are] a systematic pattern of conduct that led to a specific injury.” Barrington, 164 Or. App. at 298 (discussing Griffin, 112 Or. App. at 581-82). In other words, the continuing-tort doctrine applies when “the harm complained of reaches the level of actionability only at the end of the series of actions.” Boardmaster, 224 Or. App at 550 (citing Davis v. Bostick, 282 Or. 667, 672 (1978)). The conduct is less likely to be a continuing tort if each incident has a beginning and end, each incident is separated from the others by a period of relative quiescence, and each incident is capable of producing compensable harm. Barrington, 164 Or. App. at 297 (citing Davis, 282 Or. at 673). Thus, “at the heart of the continuing-tort idea [in Oregon] is the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that
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conduct.” Davis, 282 Or. at 671-72. As noted with regard to Plaintiff’s federal claim, Plaintiff
alleges Defendant is engaged in a pattern or practice of disability discrimination against Plaintiff and other deaf inmates. Defendant, however, argues Plaintiff’s Complaint is based on many discrete acts, and, therefore, Oregon’s continuingtort doctrine does not apply.
Here each incident that Plaintiff identifies does not by itself constitute a pattern or practice of discrimination. Plaintiff, however, alleges the incidents taken as a whole were systemic throughout Plaintiff’s incarceration and contributed to Plaintiff’s injury. See Barrington, 164 Or. App at 298 (“This case is similar to Griffin . . . in which each incident of a series did not by itself support a claim but the incidents as a whole were a systematic pattern of conduct that led to a specific injury.”). In addition, as noted regarding Plaintiff’s federal claim, the harm that Plaintiff alleges stems from Defendant’s pattern or practice of discrimination rather than from the individual acts that constitute the pattern or practice. Thus, Plaintiff seeks to recover “for the cumulative effect of wrongful behavior, not for discrete elements of that conduct.” See Davis, 282 Or. at 671-72.
On this record the Court concludes the Oregon continuingtort doctrine applies to Plaintiff’s claim under Or. Rev. Stat.
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§ 659A.142; evidence of Defendant’s alleged acts before September 21, 2013, is admissible to support Plaintiff’s allegations that Defendant engaged in a pattern or practice of discrimination that continued during the notice period; and, therefore, that part of Plaintiff’s state-law disabilitydiscrimination claim that is based on acts that occurred outside of the 180-day tort-claim notice period (i.e., before September 21, 2013) is not time-barred. Accordingly, the Court denies Defendant’s Partial Motion to Dismiss Plaintiff’s state disability-discrimination claim to the extent that it is based on Defendant’s acts that occurred before September 21, 2013.
CONCLUSION For these reasons, the Court DENIES Defendant’s Partial Motion (#3) to Dismiss Plaintiff’s Complaint. IT IS SO ORDERED. DATED this 30th day October, 2014.
/s/ Anna J. Brown ANNA J. BROWN United States District Judge
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MATTHEW C. ELLIS, OSB No. 075800 matthew@employmentlawpdx.com 621 SW Morrison St Ste 1050 Portland, OR 97205 Telephone: 503/226-0072
SHENOA L. PAYNE, OSB No. 084392 spayne@hk-law.com Haglund Kelley LLP 200 SW Market St Ste 1777 Portland, OR 97201 Telephone: 503/225-0777
Of Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

DAVID D. VANVALKENBURG,

Case No. 3:14-cv-00916-BR

Plaintiff, v.

SECOND AMENDED COMPLAINT

OREGON DEPARTMENT OF CORRECTIONS, a state agency,

Defendant.

Plaintiff alleges: INTRODUCTION 1.
Plaintiff David D. VanValkenburg is a deaf individual who was an inmate incarcerated at correctional institutions managed by defendant Oregon Department of Corrections from 2000 to 2014. During Mr. VanValkenburg's fourteen years within the Oregon correctional system,

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defendant continually and systematically failed to provide Mr. VanValkenburg with an interpreter of any kind and did not engage in effective communication with Mr. Van Valkenburg. Specifically, defendant failed to provide effective communication during intake interviews and new inmate orientations, educational classes and training, other classes and programs offered, and in confidential settings such as medical, dental, religious services and counseling meetings. Instead, defendant required Mr. VanValkenburg to train inmates to act as interpreters for him, who were unqualified and failed to keep Mr. VanValkenburg's information confidential. Defendant's ongoing conduct violates the Americans with Disabilities Act as Amended and Oregon disability discrimination law and constitutes a pattern and practice of discrimination and a disability-based environment of hostility that started in 2000 and continues to this day.
PARTIES 2.
At all times mentioned herein, plaintiff David VanValkenburg, an individual, was an inmate within the Oregon Department of Corrections correctional system, and was housed at the the following facilities: Oregon State Penitentiary ("OSP"), Oregon State Correctional Institution ("OSCI"), Snake River Correctional Institution ("SRCI"), Santiam Correctional Institution ("SCI") and Columbia River Correctional Institution ("CRCI"). On December 1 2014, Plaintiff was released from Defendant’s custody and is currently on Post-Prison Supervision.
3. At all times mentioned herein, defendant Oregon Department of Corrections ("Defendant") was and is a state agency charged with managing the correctional institutions within the State of Oregon, including OSP, OSCI, SRCI, SCI and CRCI. Defendant is responsible for ensuring that all of its facilities and systems, including its correctional facilities and the employees and agents of those correctional facilities, comply with state and federal disability laws.

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VENUE 4.
Defendant has an office for the transaction of business in Multnomah County and conducts regular, sustained business activity in Multnomah County. Defendant operates a prison in Multnomah County, CRCI, where Plaintiff currently resides.
FACTS Mr. VanValkenburg
5. At all material times, Mr. VanValkenburg is deaf.
6. Mr. VanValkenburg's deafness substantially limits one or more of his major life activities, including but not limited to his ability to hear and to effectively communicate with hearing individuals.
7. Mr. VanValkenburg's primary form of language and communication is American Sign Language ("ASL").
8. Mr. VanValkenburg also has some limited communication skills with the English language through written notes. When Mr. VanValkenburg communicates in writing, it is significantly slower and less effective than ASL.
Oregon State Penitentiary (OSP) 9.
On or about November 2000 through December 2000, Mr. VanValkenburg was housed at OSP for processing.

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10. Defendant's personnel at OSP knew that Mr. VanValkenburg was deaf and did not inquire what auxiliary aids would assist Mr. VanValkenburg while at OSP.
11. Defendant did not provide an interpreter for Mr. VanValkenburg during intake, orientation or processing while Mr. VanValkenburg was at OSP.
12. Mr. VanValkenburg was not able to understand any part of the orientation or effectively communicate with defendant while at OSP.
13. Mr. VanValkenburg requested interpretive services at OSP, and defendant denied the requests.
14. All inmates must have a counselor assessment upon intake and processing when they first come into defendant's custody.
15. Mr. VanValkenburg requested qualified interpretive services for his counselor assessment at OSP; however, his request was denied.
16. Mr. VanValkenburg did not understand defendant's counselor and defendant's counselor was not able to properly assess Mr. VanValkenburg in the same manner as non-disabled inmates.
17. Defendant conducts an initial medical exam on all inmates when they first come into defendant’s custody. / / / / / /

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18. Mr. VanValkenburg again asked for qualified interpretive services for his medical exam at OSP; however, none were provided.
19. Mr. VanValkenburg did not understand defendant's medical personnel and defendant's medical personnel were not able to properly assess Mr. VanValkenburg in the same manner as non-disabled inmates.
20. At no time while at OSP did Mr. VanValkenburg receive an interpreter of any kind. Any and all of Mr. VanValkenburg's requests for an interpreter at OSP were denied.
Oregon State Correctional Institution (OSCI) 21.
From on or about December 2000 through on or about July 2001, Mr. VanValkenburg was housed at OSCI.
22. Program counselors at OSCI conduct intake interviews and conduct an orientation for all new inmates at OSCI.
23. Despite Mr. VanValkenburg's requests for interpretive services, defendant failed to provide Mr. VanValkenburg an interpreter of any kind and did not engage in effective communication with Mr. VanValkenburg during the intake interviews or new inmate orientation at OSCI.
24. At all material times, defendant offered medical services, dental services, and religious services for all inmates at OSCI.

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25. Despite the confidential nature of those services and despite requests from Mr. VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind for those services and did not engage in effective communication with Mr. VanValkenburg.
26. At all material times, defendant offered inmates at OSCI program counseling as part of its offender management and rehabilitation program. Part of the purpose of that program is to reduce recidivism and assist inmates' rehabilitation.
27. Despite the confidential nature of program counseling services and despite requests from Mr. VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind for those services and did not engage in effective communication with Mr. VanValkenburg during any meetings with his program counselor.
28. At all material times, defendant offered inmates at OSCI education, training, classes, and other programs, including the opportunity to work. Part of the purpose of those programs is to prepare inmates to successfully re-enter society with practical skills and viable work ethic.
29. Defendant failed to provide Mr. VanValkenburg with an interpreter of any kind for the education, training, classes, and other programs offered at OSCI and did not engage in effective communication with Mr. VanValkenburg as part of offering these programs or services.

30. Despite requests from Mr. VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind while at OSCI and did not engage in effective communication with Mr. VanValkenburg. At no time while at OSCI did defendant provide Mr.

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VanValkenburg with an interpreter of any kind. Any and all of Mr. VanValkenburg's requests for an interpreter at OSCI were denied.
Snake River Correctional Institution (SRCI) 31.
From on or about July 2001 through May 2012, Mr. VanValkenburg was housed at SRCI.
32. At all material times, program counselors at SRCI conducted intake interviews and orientations for all new inmates.
33. Defendant failed to provide Mr. VanValkenburg an interpreter of any kind and did not engage in effective communication with Mr. VanValkenburg during the intake interviews or new inmate orientation at SRCI.
34. At all material times, defendant offered inmates medical services, dental services, and religious services at SRCI.
35. Despite the confidential nature of those services and despite requests from Mr. VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind for those services and did not engage in effective communicate with Mr. VanValkenburg while at SRCI.
36. At all material times, defendant offered inmates at SRCI program counseling as part of its offender management and rehabilitation program. Part of the purpose of that program is to reduce recidivism and assist inmates' rehabilitation.

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37. Despite the confidential nature of those counseling services and despite requests from Mr. VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind for those services and did not engage in effective communication with Mr. VanValkenburg.
38. At SRCI, defendant offered inmates education and training, including the opportunity to work, as well as the opportunity to attend other classes and programs. Part of the purpose of these programs is to prepare inmates to successfully re-enter society with practical skills and viable work ethic.
39. Defendant failed to provide Mr. VanValkenburg with an interpreter of any kind for the education, training, classes, and other programs offered at OSCI and did not engage in effective communication with Mr. VanValkenburg as part of offering these programs or services.
40. Despite requests from Mr. VanValkenburg, at no time while at SRCI did defendant provide Mr. VanValkenburg with a qualified interpreter.
41. If Mr. VanValkenburg and defendant needed to communicate while at SRCI, defendant required Mr. VanValkenburg to use non-confidential, untrained and primarily unqualified inmates as interpreters, including known gang members. If no available inmates knew ASL, defendant required Mr. VanValkenburg to teach inmates ASL so that defendant and Mr. VanValkenburg could communicate. However, when an inmate interpreter was transferred, discharged or disciplined, (e.g., sent to "the hole,") Mr. VanValkenburg had to start training a new inmate so that he could have a chance at even limited communication with defendant.

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42. Defendant’s failure to provide qualified interpreter and, specifically, Defendant’s practice of using inmate interpreters, caused Mr. VanValkenburg to be disciplined. When Mr. VanValkenburg challenged his discipline, and objected to defendant’s use of the inmate interpreter as part of the discipline process, defendant still used the unqualified inmate interpreter as part of the discipline process. Ultimately, Mr. VanValkenburg was sent to solitary confinement. Had qualified, confidential interpreters been provided during the discipline process, and during the occurrences giving rise to the discipline process, Mr. VanValkenburg would not have been disciplined.
43. After nearly ten years of working to train his own interpreters at SRCI for free, defendant paid Mr. VanValkenburg to train his own unqualified, inmate interpreters so that Mr. VanValkenburg and defendant could communicate from on or about 2011 through on or about May 2012.
Santiam Correctional Institution (SCI) 44.
From on or about May 2012 through on or about January 2014, Mr. VanValkenburg was housed at SCI. Program counselors at SCI conducted intake interviews and orientations for all new inmates.
45. Defendant failed to provide Mr. VanValkenburg an interpreter of any kind and did not engage in effective communication with Mr. VanValkenburg during the intake interviews or new inmate orientation at SCI.
46. At all material times, defendant offered medical services, dental services and religious services at SCI.

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47. Despite the confidential nature of those services and despite requests from Mr. VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind for those services and did not engage in effective communication with Mr. VanValkenburg while at SCI.
48. At all material times, defendant offered inmates at SCI program counseling as part of its offender management and rehabilitation program. Part of the purpose of that program is to reduce recidivism and assist inmates' rehabilitation.
49. Despite the confidential nature of those counseling services and despite requests from Mr. VanValkenburg, defendant did not provide Mr. VanValkenburg with an interpreter of any kind for those services and did not engage in effective communication with Mr. VanValkenburg.
50. At SCI, defendant offered inmates education and training, including the opportunity to work, as well as the opportunity to attend other classes and programs. Part of the purpose of those programs is to prepare inmates to successfully re-enter society with practical skills and viable work ethic.
51. Despite requests from Mr. VanValkenburg, at no time while at SCI did defendant provide Mr. VanValkenburg with a qualified interpreter.
52. Defendant told Mr. VanValkenburg that, if he wanted to communicate with defendant via ASL, Mr. VanValkenburg had to teach another inmate ASL.

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53. Mr. VanValkenburg taught several inmates limited ASL while at SCI, but none could provide effective communication.
54. Furthermore, although defendant required Mr. VanValkenburg to train other inmates to act as his interpreter, unlike at SRCI, defendant would not pay Mr. VanValkenburg for his time in training those interpreters because, according to defendant, there was not "a documented need" for such communication.
55. Frustrated with defendant's continued refusal to make any attempt whatsoever to accommodate him for over twelve years, on June 3, 2013, Mr. VanValkenburg filed an inmate discrimination complaint with defendant.
56. The June 3, 2013 complaint referenced that the ADA law required that he be provided a qualified ADA interpreter and defendant was violating the law. Defendant claimed that it did not receive Mr. VanValkenburg's June 3, 2013, complaint until January 29, 2014, and denied the complaint.
Columbia River Correctional Institution (CRCI) 57.
On or about January 2014, defendant transferred Mr. VanValkenburg to CRCI in Portland, Oregon.
58. From on or about January 2014 to the present, Mr. VanValkenburg has been housed at CRCI.

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59. When he arrived at CRCI in Portland defendant finally provided Mr. VanValkenburg with a qualified, non-inmate interpreter. He had not, for fourteen (14) years previously communicated in ASL with any of defendant's employees or agents. However, even at CRCI defendant continued to fail to accommodate him in pre-scheduled medical appointments in February or March 2014. Even at CRCI, defendant fails to follow its own policy of not relying on inmate interpreters.
Allegations Relevant to Defendant's Ongoing and Continuous Failure to Accommodate 60.
Defendant has both previously housed and currently houses inmates who are deaf or hearing impaired, including plaintiff. Defendant has consistently failed to provide those inmates with equal access to its programs or services and has failed to provide them with effective communication or auxiliary aids.
61. By systematically denying deaf or hearing impaired inmates with effective communication, auxiliary aids and equal access to its programs and services, defendant’s practices alleged herein constitute on ongoing and longstanding pattern and practice of discrimination and constitute an unlawful disability-based hostile environment. This includes denying deaf or hearing impaired inmates effective communication, auxiliary aids and equal access to programs and services, including but not limited to, medical and dental appointments, counseling sessions, educational programs, religious services, orientation and intake sessions, opportunities to communicate with family and friends, employment opportunities and other classes and programs. These practices have harmed Mr. VanValkenburg on a continuing and ongoing basis from the time of his intake at OSP to the present.

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62. All but one of the inmate interpreters used by Mr. VanValkenburg were not qualified and could not provide effective communication and none of the inmate interpreters were bound by any confidentiality whatsoever. Because the inmate interpreters were not bound by confidentiality, Mr. VanValkenburg's safety was placed at risk by having to use the inmate interpreters for confidential settings.
63. Defendant allows religious groups to hold services at its facilities for the benefit of any inmate who wishes to attend, and to make pastors available to inmates. At all times, prior to January 2014, Mr. VanValkenburg has been excluded from meaningful participation in these religious services. Mr. VanValkenburg has never benefited from these services as non-disabled inmates do and has never been able to meet, confidentially, with any pastors or other clergy persons since at no point prior to January 2014 has defendant ever provided confidential interpreters for such meetings.
64. Defendant provides educational classes at its facilities for the benefit of any inmate who wishes to attend. At all times, prior to January 2014, Mr. VanValkenburg has been excluded from meaningful participation in these classes. Mr. VanValkenburg has never benefited from these educational classes as non-disabled inmates do.
65. Defendant offers other classes and programs at its facilities for the benefit of any inmate who wishes to attend. At all times, prior to January 2014, Mr. VanValkenburg has been excluded from meaningful participation in these other classes and programs. Mr. VanValkenburg has never benefited from these classes and programs as non-disabled inmates do.

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66. Defendant has failed to use any method of communication that Mr. VanValkenburg can fully understand. Mostly, personnel orally communicate with Mr. VanValkenburg and he cannot hear their words. As a result of his inability to hear and understand, Mr. VanValkenburg has been disciplined by defendant.
67. For many years while housed at correctional facilities managed by defendant, defendant made no telephone access available to Mr. VanValkenburg. From the time he was at SRCI forward, defendant has made available TTY machines for deaf or hearing impaired inmates who wish to use the telephone. However, TTY machines are no longer a practical method for deaf or hearing impaired inmates to make telephone calls. Nearly all deaf or hearing impaired people in the United States now use video telephones so that each participant can see the ASL communication. As a result, TTY technology is effectively obsolete as a means of communication with other deaf persons, and is highly inefficient when communication with hearing persons. As a result, Mr. VanValkenburg has been unable to have the same opportunity to communicate via telephone with his family and others as is provided to non-disabled inmates. Furthermore, Mr. VanValkenburg was provided with limited access to the TTY machines unlike hearing inmates who had have virtually unlimited access to telephones. For an extended period of time, the TTYs provided did not work properly. Even when they did work, they took substantially more time to use than regular telephone communication. Despite numerous requests from Mr. VanValkenburg, for many years defendant refused to provide Mr. VanValkenburg's requests to extend the amount of time to use TTY to account for the sluggish technology and to accommodate his disability.
68. At CRCI, Mr. VanValkenburg has access to a TTY and a video phone. However, unlike the regular telephone, which is in the main area of CRCI and may be accessed by non-disabled

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inmates at any time, the TTY machine and video phone are locked away in a room which is of limited access to Mr. VanValkenburg. Mr. VanValkenburg often must wait for hours at a time in order to make phone calls to friends, family, or his attorneys. Defendant’s placement of the videophone in a locked room used by inmates for other purposes denies him equivalent access to telephone services.
69. Defendant provides inmates work opportunities during their incarceration. Inmates earn "points" that they can use like money to purchase goods from the prison store. Defendant has passed Mr. VanValkenburg up for work opportunities because he is deaf and failed to make reasonable accommodations to allow Mr. VanValkenburg, a deaf individual, to work in these positions. As a result, Mr. VanValkenburg has been denied an opportunity to work and earn points during his incarceration equal to the opportunity that non-disabled inmates have.
Injury 70.
Defendant's maintenance of a disability-based environment of hostility, evidenced by the actions referenced herein have injured Mr. VanValkenburg and denied him an equal opportunity to take advantage of services that would aid in his ongoing process of rehabilitation. Mr. VanValkenburg has been denied effective communication with his doctors, counselors, and family. He has been subjected to punishment as a result of miscommunication that would not have occurred if a qualified interpreter had been present. He has been denied an opportunity to participate in the same educational, religious, employment, and other classes and programs as non-hearing impaired individuals. As a result of this discrimination, Mr. VanValkenburg has suffered emotional distress including, but not limited to, fear, stress, aggravation, loss of selfworth, humiliation, frustration, anxiety and depression. Accordingly, Mr. VanValkenburg is entitled to compensatory damages pursuant to ORS 659A.885(3) and 42 U.S.C § 12133

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71. Defendant has also discriminated against Mr. VanValkenburg by denying him employment opportunities that are available to non-hearing impaired individuals. Defendant has utilized unnecessary job requirements that screen out deaf individuals such as Mr. VanValkenburg. Defendant has also refused to provide any reasonable accommodations that may be necessary to allow Mr. VanValkenburg to enjoy the same employment opportunities that are available to non-deaf inmates. As a result of this discrimination, Mr. VanValkenburg has been denied the opportunity to earn compensation and has suffered severe emotional distress including, but not limited to, fear, stress, aggravation, loss of self-worth, humiliation, frustration, anxiety, and depression. Accordingly, Mr. VanValkenburg is entitled to compensatory damages pursuant to ORS 659A.885(3) and 42 U.S.C § 12133.
72. Unless enjoined, defendant will continue to engage in the unlawful acts and the pattern and practice of discrimination described above. Mr. VanValkenburg has no adequate remedy at law. Mr. VanValkenburg is now suffering and will continue to suffer irreparable injury from defendant's acts and the pattern or practice of discrimination unless relief is provided by this Court. Accordingly, Mr. VanValkenburg is entitled to injunctive relief pursuant to ORS 659A.885(1) and 42 U.S.C § 12133.
73. Plaintiff gave timely notice of his tort claim to Defendant on March 20, 2014.
FIRST CLAIM FOR RELIEF (Disability Discrimination – ORS 659A.142)
74. Mr. VanValkenburg realleges paragraphs 1 through 73 as though fully set forth herein.

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75. Mr. VanValkenburg has a physical impairment that substantially limits one or more of his major life activities.
76. Mr. VanValkenburg is an individual with a disability, as defined by ORS 659A.104 and is a qualified person with a disability under 42 U.S.C. §12131(2).
77. Defendants actions alleged herein constitute a pattern or practice of discrimination that occurred on an ongoing and continuous basis from 2000 to the present.
78. The term "state government," as that term is defined by ORS 659A.142(1) and ORS 174.111, includes defendant.
79. Defendant has injured Mr. VanValkenburg in violation of ORS 659A.142(5) and its accompanying regulations, including but not limited to OAR 839-006-0270 and OAR 839-0060295, by committing the following discriminatory acts or practices: a. Refusing to recognize that Mr. VanValkenburg is a qualified individual with a disability; b. Maintaining a pattern and practice of discrimination against Mr. VanValkenburg and all other deaf inmates; c. Intentionally failing to accommodate Mr. VanValkenburg's disability in refusing to provide an interpreter or adequate auxiliary aids; d. Failing to make reasonable modifications in policies, practices, or procedures, when such modifications were necessary to afford Mr. VanValkenburg with access to defendant's services, programs, or activities, and when such modifications would not be unduly burdensome and would not fundamentally alter the nature of services provided by defendant;

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PORTLAND, OR 97205

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e. Intentionally refusing to provide Mr. VanValkenburg with an equally effective method of communication as is provided to other individuals incarcerated at defendant's correctional institutions;
f. Excluding Mr. VanValkenburg from and denying Mr. VanValkenburg participation in the benefits of defendant's services, programs, or activities solely by reason of Mr. VanValkenburg's disability;
g. Failing to provide qualified interpretive services during orientation and counselor assessments and meetings, medical and dental examinations, religious services, educational programs, rehabilitative programs and other voluntary programs and classes offered by or through defendant;
h. Using inmates who was are not qualified in ASL to interpret conversations between Mr. VanValkenburg and defendant's personnel, including conversations which involved the disclosure of confidential information;
i. Requiring Mr. VanValkenburg to train his own interpreters, with or without pay; j. Failing to provide qualified interpretive services for support group meetings, thereby
excluding Mr. VanValkenburg from participating in these services, programs, or activities; k. Failing to provide qualified interpretive services for religious services and inmate work opportunities, thereby excluding Mr. VanValkenburg from participating in these services, programs, or activities; l. Failing to provide adequate technology that would allow Mr. VanValkenburg the same opportunity to communicate with his family and others as is available to non-hearing impaired inmates; m. Refusing to make reasonable accommodations to job requirements regarding oral and written communication skills, thereby denying Mr. VanValkenburg an equal opportunity to work and earn points during his incarceration, and requiring Mr. VanValkenburg to

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PORTLAND, OR 97205

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perform menial work; n. Failing to conduct any investigation to determine what auxiliary aids are necessary and
appropriate in order for Mr. VanValkenburg to participate in equal access to its facilities' services, programs, and activities; and o. Failing to provide any means by which Mr. VanValkenburg can understand oral communications and respond to Defendant's staff. p. Maintaining a disability-based environment of hostility.
80. Once Defendant had actual knowledge of Mr. VanValkenburg's disability on or about 2000 and thereafter, Defendant failed to take reasonable steps necessary to ensure that Mr. VanValkenburg, an individual with a disability, would not be excluded, denied services, segregated or otherwise treated differently from other individuals because of use of inappropriate or ineffective auxiliary aids. At no time did defendant inquire to Mr. VanValkenburg about the best way to communicate with him. As a result, Mr. VanValkenburg has been injured by defendant's discriminatory activities.
81. Mr. VanValkenburg has suffered damages, both real and intangible, as a result of defendant's discriminatory conduct.
82. Defendant's conduct was carried out with wanton, conscious, reckless, and outrageous disregard for Mr. VanValkenburg's civil rights, mental health, and welfare.
83. Mr. VanValkenburg is entitled to equitable relief, and is entitled to compensatory damages in an amount to be determined at trial, but in no event less than $450,000, as well as attorney fees and litigation costs pursuant to ORS 659A.885(1) and ORS 20.107.

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PORTLAND, OR 97205

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SECOND CLAIM FOR RELIEF (Disability Discrimination – 42 U.S.C. §12131-12165 et seq.)
84. Mr. VanValkenburg realleges paragraphs 1 through 73 as though fully set forth herein.
85. Defendants actions alleged herein constitute a pattern or practice of discrimination that occurred on an ongoing and continuous basis from 2000 to the present.
86. Defendant is a "public entity" as that term is defined under 42 U.S.C. §12131(1).
87. Defendant has injured Mr. VanValkenburg in violation of 42 U.S.C § 12132 and its accompanying regulations, including but not limited to 28 C.F.R. § 35.130 and 28 C.F.R. § 35.152, by committing the following discriminatory acts or practices: a. Refusing to recognize that Mr. VanValkenburg is a qualified individual with a disability; b. Maintaining a pattern and practice of discrimination against Mr. VanValkenburg and all other deaf inmates; c. Intentionally failing to accommodate Mr. VanValkenburg's disability in refusing to provide an interpreter or adequate auxiliary aids; d. Failing to make reasonable modifications in policies, practices, or procedures, when such modifications were necessary to afford Mr. VanValkenburg with access to defendant's services, programs, or activities, and when such modifications would not be unduly burdensome and would not fundamentally alter the nature of services provided by defendant; e. Intentionally refusing to provide Mr. VanValkenburg with an equally effective method of communication as is provided to other individuals incarcerated at defendant's prisons; f. Excluding Mr. VanValkenburg from and denying Mr. VanValkenburg participation in the

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PORTLAND, OR 97205

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benefits of defendant's services, programs, or activities solely by reason of Mr. VanValkenburg's disability; g. Failing to provide qualified interpretive services during orientation and counselor assessments and meetings, medical and dental examinations, religious services, educational programs, rehabilitative programs and other programs and classes offered by or through defendant; h. Using inmates who was are not qualified in ASL to interpret conversations between Mr. VanValkenburg and defendant's personnel, including conversations which involved the disclosure of confidential information; i. Requiring Mr. VanValkenburg to train his own interpreters, with or without pay; j. Failing to provide qualified interpretive services for support group meetings, thereby excluding Mr. VanValkenburg from participating in these services, programs, or activities; k. Failing to provide qualified interpretive services for religious services and inmate work opportunities, thereby excluding Mr. VanValkenburg from participating in these services, programs, or activities; l. Failing to provide adequate technology that would allow Mr. VanValkenburg the same opportunity to communicate with his family and others as is available to non-hearing impaired inmates; m. Refusing to make reasonable accommodations to job requirements regarding oral and written communication skills, thereby denying Mr. VanValkenburg an equal opportunity to work and earn points during his incarceration, and requiring Mr. VanValkenburg to perform menial work; n. Failing to conduct any investigation to determine what auxiliary aids are necessary and appropriate in order for Mr. VanValkenburg to participate in equal access to its facilities' services, programs, and activities; and

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PORTLAND, OR 97205

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o. Failing to provide any means by which Mr. VanValkenburg can understand oral communications and respond to defendant's staff.
p. Maintaining a disability-based environment of hostility. 88.
Once defendant had actual knowledge of Mr. VanValkenburg's disability on or about 2000 and thereafter, defendant failed to take reasonable steps necessary to ensure that Mr. VanValkenburg, an individual with a disability, would not be excluded, denied services, segregated or otherwise treated differently from other individuals because of use of inappropriate or ineffective auxiliary aids. At no time did defendant inquire to Mr. VanValkenburg about the best way to communicate with him. As a result, Mr. VanValkenburg has been injured by defendant's discriminatory activities.
89. Mr. VanValkenburg has suffered damages, both real and intangible, as a result of defendant's discriminatory conduct.
90. Defendant's conduct was carried out with wanton, conscious, reckless, and outrageous disregard for Mr. VanValkenburg's civil rights, mental health, and welfare.
91. Mr. VanValkenburg is entitled to equitable relief, and is entitled to compensatory damages in an amount to be determined at trial, but in no event less than $450,000, as well as attorney fees and litigation costs pursuant to 42 U.S.C. § 12205.
PRAYER FOR RELIEF WHEREFORE, Mr. VanValkenburg requests a trial by jury and requests the Court should grant judgment in favor of Mr. VanValkenburg against defendant and grant the following relief: a. On plaintiff's First and Second Claims for Relief:

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1. Compensatory damages in an amount to be determined at trial but in no
event less than $450,000;
2. Attorneys fees, costs and disbursements, pursuant to ORS 659A.885(1),
ORS 20.107 and/or 42 U.S.C. § 12205;
3. An Order that:
a) Requires defendant to institute a program instructing all employees on the proper and legal obligations to deaf inmates;
b) Requires defendant to develop and implement written materials for disabled inmates, which will be provided to them at the time of their arrival at defendant's facilities, providing disabled inmates notice of their rights pursuant to, and of the availability of accommodations under, ORS 659A.142;
c) Requires defendant to implement and enforce an effective communications policy that covers all services, programs, and activities offered at its prisons;
d) Requires defendant to implement a grievance procedure to resolve disability related issues and advise disabled inmates of their rights to access this grievance procedure;
e) Requires defendant to enter into a contract with one or more interpreting services to provide interpreters for deaf or hearing impaired inmates to provide equal access to programs and services, including medical and dental appointments, counseling sessions, educational programs, religious services, orientation sessions, and other classes and programs offered by defendant;
f) Requires defendant to only use qualified interpreters when interpreters are used to communicate with deaf or hearing impaired inmates;
g) Requires that defendant not use other inmates as interpreters;
h) Requires defendant to develop and implement a plan to conduct a fact-specific investigation for deaf or hearing impaired inmates as to what auxiliary aids are necessary and appropriate to ensure equal access to its facilities' services, programs, and activities, including but not limited to ensuring effective communication;
i) Requires defendant to install video phones at each prison and allow

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deaf or other hearing impaired inmates the same access to the video phones as hearing inmates have with telephones;
j) Requires defendant to modify its job requirements to only require good oral and written communication skills for those positions where such skills are essential to the effective performance of the position;
k) Requires defendant to waive the requirement of good oral and written communication skills for those positions where such skills are incidental to the performance of the position and a hearing impaired inmate applies for such a position;
l) Requires defendant to develop and implement a system of notifying deaf or hearing impaired inmates of yard out bells, meal bells, and any other forms of simple communication to all inmates in the block or prison population;
B. All such other relief as the Court deems just and equitable.
Dated this 18th day of March, 2015.
_/s Matthew C. Ellis______ Matthew C. Ellis, OSB #075800 621 SW Morrison St., Suite 1050 Portland, Oregon 97205 Telephone: (503) 226-0072 matthew@employmentlawpdx.com
Shenoa L. Payne, OSB #084392 200 SW Market St., Suite 1777 Portland, Oregon 92701-5771 Telephone: (503) 225-0777 Facsimile: (503) 225-1257 spayne@hk-law.com

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PORTLAND, OR 97205

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

DAVID VANVALKENBURG, Plaintiff,
v. OREGON DEPARTMENT OF CORRECTIONS,
Defendant.

3:14-cv-00916-BR
AMENDED OPINION AND ORDER

MATTHEW C. ELLIS Law Office of Matthew C. Ellis 621 S.W. Morrison Street Suite 1050 Portland, OR 97205 (503) 226-0072
SHENOA L. PAYNE Hagglund Kelly, LLP 200 S.W. Market Street Suite 1777 Portland, OR 97201 (503) 225-0777
Attorneys for Plaintiff

1 - AMENDED OPINION AND ORDER

ELLEN F. ROSENBLUM Attorney General HEATHER J. VAN METER SHANNON M. VINCENT Senior Assistant Attorneys General Oregon Department of Justice 1162 Court Street N.E. Salem, OR 97301 (503) 947-4700
Attorneys for Defendant
JESSE A. MERRITHEW Levi Merrithew Horst, LLP 610 S.W. Alder Street, Suite 415 Portland, OR 97205 (971) 229-1241
Attorneys for Amicus HEARD
BROWN, Judge.
This matter comes before the Court on Defendant Oregon
Department of Corrections’ Motion (#49) for Summary Judgment,
Defendant’s Second Motion (#64) for Partial Summary Judgment, and
Plaintiff David VanValkenburg’s Motion (#72) for Partial Summary
Judgment. Although the Court issued its Original Opinion and
Order (#101) on February 4, 2016, the record was not complete as
to the legislative history of Oregon Revised Statute § 30.650 and
its bearing on claim One. The parties have since supplemented
the record with that legislative history and additional argument.
Accordingly, the Court now issues this Amended Opinion and Order
to resolve issues related to § 30.650.
For the reasons that follow, the Court GRANTS in part
2 - AMENDED OPINION AND ORDER

and DENIES in part Defendant’s Motion (#49) for Summary Judgment and Defendant’s Second Motion (#64) for Partial Summary Judgment as follows:
1. The Court GRANTS Defendant’s Motion (#49) as to Plaintiff’s claims for injunctive relief and DISMISSES those claims with prejudice;
2. The Court GRANTS Defendant’s Second Motion (#64) as to the statute of limitations on Plaintiff’s Claim One and limits recovery on Plaintiff’s Claim One to those instances of alleged disability discrimination that occurred on or after September 23, 2013;
3. The Court GRANTS in part and DENIES in part Defendant’s Second Motion (#64) as to the statute of limitations on Plaintiff’s Claim Two and limits recovery on Plaintiff’s Claim Two to those instances of alleged disability discrimination that occurred on or after May 5, 2012;
4. The Court DENIES Defendant’s Motion (#49) as to Plaintiff’s claim for noneconomic damages in Claim One; and
5. The Court GRANTS in part and DENIES in part Defendant’s Motion (#49) as to the limitations on Claim Two pursuant to the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, and DISMISSES with prejudice Plaintiff’s Claim Two to the extent he seeks emotional-distress damages.
The Court also DENIES Plaintiff’s Motion (#72) for Partial 3 - AMENDED OPINION AND ORDER

Summary Judgment.
BACKGROUND The following facts are undisputed and taken from the record on summary judgment: Defendant took Plaintiff into custody in November 2000, and, after Plaintiff instituted this action in June 2014, Plaintiff was released from custody on December 1, 2014. Plaintiff has a significant hearing impairment, but the extent of Plaintiff’s impairment is a matter of dispute between the parties.1 During most of his time in Defendant’s custody, Plaintiff was housed at Snake River Correctional Institution (SRCI), but he was also incarcerated for various periods at Oregon State Penitentiary, Oregon State Correctional Institution, Santiam Correctional Institution, and Columbia River Correctional Institution. Defendant offers religious services, educational classes, work opportunities, and medical and dental services to inmates in its custody, and all inmates receive a counselor assessment when they first come into Defendant’s custody. At the assessment during Plaintiff’s initial intake into
1 For ease of reference the Court will refer to Plaintiff’s hearing impairment as “deafness.” By doing so, however, the Court does not make any determination regarding the extent of Plaintiff’s hearing impairment at this stage of the proceedings. 4 - AMENDED OPINION AND ORDER

Defendant’s custody, Plaintiff’s mental-health services provider noted Plaintiff was “significant[ly] hearing-impaired” and “needed to have most questions written for him despite being able to read lips.”
On November 20, 2003, approximately two years after Plaintiff entered Defendant’s custody, Plaintiff submitted an Inmate Discrimination Complaint (IDC) in which he stated he received a disciplinary sanction as a result of his inability to communicate with officers and in which he requested permission to “carry paper and pen” and to have an interpreter. On January 14, 2004, Defendant rejected Plaintiff’s IDC on the basis that the available information “indicate[d] that [Plaintiff] did understand what the Officer said and failed to follow the Officer’s direction.” Plaintiff appealed this decision on January 9, 2014, but the record does not reflect the disposition of that appeal or whether Plaintiff filed a tort-claim notice regarding that incident.
On November 22, 2003, Plaintiff filed another IDC in which he alleged he was not provided sufficient access to a TTY telephone and in which he requested the same access to the TTY telephone as other inmates have to traditional telephones without having to make an appointment or to submit a written request. Defendant did not find any discrimination as to Plaintiff’s access to a TTY telephone because it was available during the
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same hours as the regular telephones and, although the TTY telephone required staff assistance, Defendant asserted “every effort is made to accommodate your access as quickly as possible.” Plaintiff did not appeal the disposition of this IDC or file a tort-claim notice regarding the IDC.
Plaintiff filed another IDC on October 23, 2008, in which he asserted he was being discriminated against because Defendants had denied him an ear piece that he needed to “hear well.” Defendant rejected Plaintiff’s IDC on the basis that Defendant provided him “with a full-time live-in helper” and Health Services “authorized repair parts for [Plaintiff’s] hearing aids.” Plaintiff appealed the denial. On March 16, 2009, Defendant rejected Plaintiff’s appeal. Plaintiff did not immediately file a tort-claim notice.
On March 11, 2013, Plaintiff sent an Inmate Communication Form (also known as a “kyte”) to Defendant in which Plaintiff requested an interpreter for a yoga class that he was taking because he could not understand many of the instructions. Defendant responded it could only hire interpreters for a “required program.”
On March 19, 2013, Plaintiff sent a kyte to Defendant in which Plaintiff requested an interpreter for job classes to help Plaintiff obtain better employment within the prison system. Defendant initially responded it would look into the availability
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of interpreters for job classes, but on May 10, 2013, Defendant again stated an interpreter would only be provided for required programs.
Plaintiff submitted an IDC dated June 3, 2013, in which Plaintiff stated Defendant discriminated against him by denying him a qualified interpreter for classes that he wanted to take and for other programs. In that IDC Plaintiff listed the date and time of the incident as May 9, 2013. On January 21, 2014, Plaintiff sent a kyte to Defendant in which he attached the June 3, 2013, IDC and stated he sent it to Defendant in May 2013, but he had not heard back. Plaintiff’s IDC is stamped received by Defendant on January 29, 2014. Defendant denied the IDC on the basis that it was received more than 30 days after the incident date and stated “[t]here is no record of [Plaintiff] submitting a discrimination complaint prior to January 29, 2014, nor is there record of any follow-up by [Plaintiff] prior to January 29, 2014.” The record does not reflect Plaintiff appealed the denial of this IDC.
Nonetheless, on March 21, 2014, Plaintiff sent to Defendant a tort-claim notice in which he contended Defendant had systematically and continuously discriminated against Plaintiff on the basis of his deafness by failing to provide Plaintiff with a qualified, noninmate interpreter and, therefore, did not allow Plaintiff equal access to Defendant’s programs, services, and
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activities. Plaintiff instituted an action in the Circuit Court of the
State of Oregon for Multnomah County on May 5, 2014, which Defendant removed to this Court on June 6, 2014, on the basis of federal-question, subject-matter jurisdiction.
Plaintiff was released from Defendant’s custody on December 1, 2014, and thereafter Plaintiff filed a Second Amended Complaint that was identical to his First Amended Complaint except in the Second Amended Complaint Plaintiff alleged he had been released from Defendant’s custody and Plaintiff omitted a previously-included allegation that Plaintiff suffered physical injury as a result of Defendant’s failure to accommodate Plaintiff’s deafness.
Plaintiff brings two claims against Defendant in his Second Amended Complaint (#43). In Claim One Plaintiff alleges Defendant discriminated against Plaintiff on the basis of his disability in violation of Oregon Revised Statute § 659A.142 when Defendant failed to provide Plaintiff with a qualified, noninmate interpreter (and often relied on untrained inmate interpreters) for various services, work and educational opportunities, disciplinary proceedings, counseling sessions, and medical and dental appointments. In Claim Two Plaintiff brings a claim under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12165, et seq., based on the same conduct described in
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Claim One. Plaintiff seeks $450,000.00 in compensatory damages and also seeks injunctive relief regarding the accommodations that Defendant provides deaf inmates and the policies that govern effective communication with deaf inmates.
STANDARDS Summary judgment is appropriate when there is not a “genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Washington Mut. Ins. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R. Civ. P. 56(a). The moving party must show the absence of a dispute as to a material fact. Rivera v. Philip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005). See also Emeldi v. Univ. of Or., 673 F.3d 1218, 1223 (9th Cir. 2012). In response to a properly supported motion for summary judgment, the nonmoving party must go beyond the pleadings and point to “specific facts demonstrating the existence of general issues for trial.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) “This burden is not a light one . . . . The non-moving party must do more than show there is some ‘metaphysical doubt’ as to the material facts at issue.” Id. (citation omitted). A dispute as to a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the
9 - AMENDED OPINION AND ORDER

nonmoving party.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The court must draw all reasonable inferences in favor of the nonmoving party. Sluimer v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). “Summary judgment cannot be granted where contrary inferences may be drawn from the evidence as to material issues.” Easter v. Am. W. Fin., 381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598 (9th Cir. 1982)).
A “mere disagreement or bald assertion” that a genuine dispute as to a material fact exists “will not preclude the grant of summary judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989)). See also Moore v. Potter, 701 F. Supp. 2d 1171 (D. Or. 2010). When the nonmoving party's claims are factually implausible, that party must “come forward with more persuasive evidence than otherwise would be necessary.” LVRC Holdings LLC v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citing Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998)).
The substantive law governing a claim or a defense determines whether a fact is material. Miller v. Glenn Miller Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the
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resolution of a factual dispute would not affect the outcome of the claim, the court may grant summary judgment. Id.
DISCUSSION I. Defendant’s Motion (#49) for Summary Judgment and Second
Motion (#64) for Partial Summary Judgment Defendant moves for summary judgment on the basis that (1) Plaintiff’s requested injunctive relief is moot; (2) Plaintiff’s claims are barred by the applicable statutes of limitations; (3) Plaintiff cannot seek noneconomic damages on Claim One pursuant to Oregon Revised Statute § 30.650 because he has not suffered any economic damages; (4) Plaintiff cannot seek emotional-distress damages on Claim Two under the PLRA, 42 U.S.C. § 1997e(e); and (5) Plaintiff failed to exhaust his administrative remedies on Claim Two as required by the PLRA, 42 U.S.C. § 1997e(a). A. Plaintiff’s Standing to Seek Injunctive Relief Defendant first contends Plaintiff no longer has standing to pursue his claims for injunctive relief because Plaintiff has now been released from custody, and, therefore, there is not a sufficient likelihood that Plaintiff will again be injured by Defendant’s allegedly unlawful conduct. To establish Article III standing to seek prospective relief such as an injunction, a plaintiff must demonstrate “he faces
11- AMENDED OPINION AND ORDER

imminent injury on account of the defendant’s conduct.” Mayfield v. United States, 599 F.3d 964, 970 (9th Cir. 2010). “Past exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the plaintiff does not continue to suffer adverse effects.” Id. After “a plaintiff has been wronged, he is entitled to injunctive relief only if he can show that he faces a ‘real or immediate threat . . . that he will again be wronged in a similar way.’” Id. (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)). “‘The requisite personal interest that must exist at the commencement of the litigation . . . must continue throughout its existence.’” Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007)(quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.2 (1997))(ellipses in original). See also Sanford v. MemberWorks, Inc., 625 F.3d 550, 556 (9th Cir. 2010).
“‘An inmate’s release from prison while his claims are pending generally will moot any claims for injunctive relief relating to the prison’s policies unless the suit has been certified as a class action.’” Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2012)(quoting Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir. 1995)). “The reason is that the released inmate is no longer subject to the prison conditions or policies he challenges.” Alvarez, 667 F.3d at 1064. Any prospective relief sought must have a “practical impact on the inmate’s rights” and
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redress the injury originally asserted. Incumaa, 507 F.3d at 287. See also Alvarez, 667 F.3d at 1064.
Here Plaintiff contends his claims for injunctive relief are not moot under United States v. Howard, 480 F.3d 1005 (9th Cir. 2007), because he challenges an ongoing policy to which other deaf inmates will continue to be subjected.
In Howard the Ninth Circuit held criminal defendants seeking review of a policy that required leg restraints during defendants’ initial appearances could seek injunctive relief because it presented a controversy that was “‘capable of repetition, yet evading review.’” 480 F.3d at 1009 (quoting Gerstein v. Pugh, 420 U.S. 103, 110 n.11 (1975)). The Ninth Circuit noted it had previously “held that a case is capable of repetition when the defendants are challenging an ongoing government policy.” Howard, 480 F.3d at 1010. Thus, Plaintiff contends his claim for injunctive relief remains viable.
In Alvarez, however, the Ninth Circuit substantially limited its broad statement in Howard when it noted: “We have never applied Howard beyond such circumstances involving short-lived pretrial proceedings in criminal prosecutions, where civil class actions would not be conducive to obtaining the relief sought.” Alvarez, 667 F.3d at 1065. In Alvarez an inmate alleged an Oregon Department of Corrections policy burdened his practice of the Native American religion in violation of the Religious Land
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Use and Institutionalized Persons Act (RLUIPA). Id. at 1063. The plaintiff filed his action against ODOC in June 2004, and he was released from incarceration in 2007 during the pendency of the action. Id. at 1063-64. The Ninth Circuit ultimately concluded the Howard rule did not apply and that plaintiff’s claim for injunctive relief was moot because “[t]here is nothing in the record to suggest that these other inmates would generally be unable to litigate their RLUIPA claims to completion, and to do so as a class action if they so chose.” Id. at 1065. The Ninth Circuit in Alvarez, therefore, concluded the Howard rule does not permit a plaintiff to seek prospective relief by challenging an ongoing government policy that no longer applies to that plaintiff even though the policy may apply to other potential plaintiffs who could litigate their own claims.
The Court concludes this case is controlled by Alvarez because other deaf inmates who are currently subject or may become subject to the allegedly unlawful practices and policies that Plaintiff challenges in this action can bring their own claims. As the Ninth Circuit implied in Alvarez, unlike pretrial detention or a policy of shackling criminal defendants at their initial appearance, policies that apply to incarceration are not so inherently transitory as to render them capable of repetition while evading review.
On this record, therefore, the Court concludes Plaintiff’s
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Claims One and Two are moot to the extent that Plaintiff seeks injunctive relief because he has been released from Defendant’s custody. The Court, therefore, dismisses with prejudice these portions of Plaintiff’s Claims One and Two.
B. Statute of Limitations Defendant also moves for summary judgment on the basis that Plaintiff’s claims are barred by the relevant statutes of limitations.
1. Claim One - Oregon Revised Statute § 659A.142 Defendant contends Plaintiff's claim under § 659A.142(5) is governed by the one-year statute of limitations in Oregon Revised Statute § 659A.875(6) and the 180-day limitation in the tort-claim notice provision of the Oregon Tort Claims Act (OTCA), Oregon Revised Statute § 30.265(2). Plaintiff, on the other hand, contends Claim One is subject to the two-year personal-injury statute of limitations contained in Oregon Revised Statute § 12.110(1), and, in any event, none of Claim One is barred by the statute of limitations under Oregon’s continuing-tort doctrine.
a. Applicable Statute of Limitations As noted, Defendant contends the one-year statute of limitations in § 659A.875(6) applies to Plaintiff's disability-discrimination claim under § 659A.142(5). Section 659A.875(6) provides: “Notwithstanding ORS § 30.275(9), a civil
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action under ORS § 659A.885 against a public body . . . based on an unlawful employment practice must be commenced within one year after the occurrence of the unlawful employment practice unless a complaint has been timely filed under ORS § 659A.820.” Section 659A.885, in turn, provides the cause of action for violations of § 659A.142. Accordingly, Defendant contends the one-year statute of limitations contained in § 659A.875(6) applies to Plaintiff's claim under § 659A.142. On the other hand, Plaintiff, as noted, contends the appropriate statutory period is the two-year statute of limitations contained in § 12.110(1).
By its terms § 659A.875(6) only applies to actions brought under one of the specified statutes against a public body “based on an unlawful employment practice.” Plaintiff's Claim One, however, is not “based on an unlawful employment practice.” See Or. Rev. Stat. § 659A.875(6). Accordingly, the Court concludes the one-year statute of limitations contained in § 659A.875(6) does not apply to Plaintiff's Claim One.
Plaintiff's Claim One, however, is against a state entity, and, therefore, the Court concludes the two-year statute of limitations contained in the OTCA, Oregon Revised Statute § 30.275(9), is the applicable statute of limitations and Plaintiff's Claim One is governed by the OTCA’s tort-claim notice requirement. The OTCA requires a plaintiff to provide notice to the relevant agency of any tort claim “within 180 days after the
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alleged loss or injury.” Or. Rev. Stat. § 30.275(2). The Court notes September 23, 2013, was 180 days before Plaintiff's March 21, 2014, tort-claim notice.
b. Continuing-Tort Doctrine Plaintiff, nonetheless, contends neither the statute of limitations nor the tort-claim notice requirement limit Claim One because Claim One is a continuing tort. “A continuing tort is based on ‘the concept that recovery is for the cumulative effect of wrongful behavior, not for discrete elements of that conduct.’” Barrington ex rel. Barrington v. Sandberg, 164 Or. App. 292, 296 (1999)(quoting Davis v. Bostick, 282 Or. 667, 671 (1978)). See also Boardmaster Corp. v. Jackson Cnty., 224 Or. App. 533, 549-50 (2008). Thus, the continuing-tort doctrine does not apply when acts are “separately actionable because they individually caused harm” even if those acts are “all of a piece in intent and content.” Barrington, 164 Or. App. at 296-97. In Davis the Oregon Supreme Court held the continuing-tort doctrine did not apply to a plaintiff’s intentional infliction of emotional-distress claim that stemmed from several incidents of physical and emotional spousal abuse. 282 Or. at 669. Some of these incidents of abuse occurred outside of the relevant statute of limitations. Id. at 669-70. The court, however, held the plaintiff’s “theory is that she
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ought to recover now for a series of wrongs, but her evidence is that she was harmed by each act in the series. We do not think she was entitled to ride out the storm and lump sum her grievances.” Id. at 674.
Plaintiff contends the continuing-tort doctrine, nonetheless, applies here because he seeks recovery for a single, continuous pattern and policy of discrimination by Defendant based on Plaintiff’s deafness. Plaintiff, therefore, asserts his harm, in fact, stems from the overall pattern or practice of the discrimination rather than discrete incidents of Defendant failing to accommodate his deafness by providing effective communication.
According to Defendant, however, the continuing-tort doctrine does not apply here because there was not any singular, continuous policy or practice that Defendant followed regarding Plaintiff's hearing disability, and, in fact, the accommodations provided to Plaintiff by Defendant evolved over the course of Plaintiff’s 14-year incarceration.
The Court concludes this case presents a difficult application of the continuing-tort doctrine because Plaintiff’s characterizations of the nature of his claim are inconsistent; i.e., at times Plaintiff characterizes the harm as arising from the cumulative effects of 14 years of Defendant’s failure to ensure Plaintiff’s ability to communicate, but at other times
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Plaintiff is specific about individual harms that resulted from specific failures to accommodate his deafness. For example, in his argument that his claims for noneconomic damages are not barred by Oregon Revised Statute § 30.650, Plaintiff contends he suffered economic loss because he was not afforded the same work opportunities as other inmates and was not sufficiently accommodated in order to take advantage of certain educational opportunities. See infra Section I(C). Thus, Plaintiff’s assertions that Defendant’s various failures to accommodate him in particular contexts caused distinctly identifiable types of damages is inconsistent with Plaintiff’s contention that he seeks in Claim One to redress a single, continuous violation of § 659A.142(5). See Barrington, 164 Or. App. at 296-97 (the continuing-tort doctrine does not apply when a series of actions are “separately actionable because they individually caused harm.”).
Moreover, Plaintiff’s Claim One implicates several actions that a factfinder would have to analyze separately to determine whether Defendant's conduct was unlawful. A factfinder, for example, could find Defendant reasonably accommodated Plaintiff’s deafness through the use of an inmate interpreter in the context of a yoga class but Defendant unreasonably failed to accommodate Plaintiff’s deafness by using inmate interpreters in the context of a disciplinary proceeding.
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Like the plaintiff in Davis, therefore, Plaintiff’s claim here does not rest on the type of single, continuous action to which the continuing-tort doctrine applies because the various allegedly discriminatory actions for which Plaintiff seeks recovery are separately actionable and require separate elemental analyses. See Davis, 282 Or. at 674.
Accordingly, on this record the Court concludes the continuing-tort doctrine does not apply to Plaintiff’s Claim One, and, therefore, the Court grants in part Defendant’s Motion insofar as Plaintiff’s Claim One is limited to Defendant’s alleged failure to accommodate Plaintiff’s disability on or after September 23, 2013, pursuant to Oregon Revised Statute § 30.275(2).
2. Claim Two - 42 U.S.C. § 12132 Defendant contends Plaintiff’s Claim Two under Title II of the ADA is time-barred as to actions that occurred before May 5, 2013 (one year before Plaintiff filed his Complaint) because the ADA provides for a one-year statute of limitations under Oregon Revised Statute § 659A.875(6). Plaintiff, on the other hand, contends the two-year limitations period in Oregon Revised Statute § 12.110(1) applies to his ADA claim, and, in any event, the continuing-tort doctrine applies to his Claim Two.
a. Applicable Statute of Limitations “Title II of the ADA does not contain an express
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statute of limitations.” Sharkey v. O'Neal, 778 F.3d 767, 770 (9th Cir. 2015). Accordingly, the court “borrow[s] the statute of limitations applicable to the most analogous state-law claim.” Id.
Defendant contends the statute of limitations that applies to the most analogous state-law claim is the one-year limitations period contained in § 659A.875(6). Plaintiff, however, contends the two-year personal-injury statute of limitations in § 12.110(1) applies. See Ramirez v. Parker, No. 3:13-cv-01772-AC, 2014 WL 7187463, at *11 (D. Or. Dec. 16, 2014). See also T.L. ex rel. Lowry v. Sherwood Charter Sch., No. 3:13-cv-01562-HZ, 2014 WL 897123, at *8-*9 (D. Or. Mar. 6, 2014).
As with its analysis as to Claim One, however, the Court concludes § 659A.875(6) is not the state-law statute of limitations most analogous to Plaintiff’s Claim Two because § 659A.875(6) applies specifically to employment-discrimination claims. In addition, although the Court agrees with Plaintiff that § 12.110(1) may apply to the ordinary Title II case, the Court concludes the state-law claim most analogous to Plaintiff’s Claim Two is one brought under § 659A.142(5). As noted, Plaintiff’s action is brought against a state agency, and, therefore, the Court concludes the two-year statute of limitations contained in § 30.275(9) is the statute of
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limitations most relevant to Plaintiff’s Claim Two. b. Continuing-Tort Doctrine As in Claim One, Plaintiff contends he may seek
damages for ADA violations that occurred outside of the two-year statutory period because the continuing-tort doctrine applies to Claim Two.
As noted, the continuing-tort doctrine permits a plaintiff to seek recovery for acts that took place outside of the statutory period. See Cherosky v. Henderson, 330 F.3d 1243, 1245-46 (9th Cir. 2003). The continuing-tort doctrine, however, does not apply to “discrete discriminatory acts . . . even when they are related to acts alleged in timely filed charges.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002). See also Davis v. Tri-County Metropolitan Transp. Dist. of Oregon, No. 3:12-cv-00808-SI, 2015 WL 4403529, at *3 (D. Or. Jul. 17, 2015). “A discrete discriminatory act consists of conduct that ‘occurred’ on the day it ‘happened,’ which includes, for example, ‘termination, failure to promote, denial of transfer, or refusal to hire.’” Davis, 2015 WL 4403529, at *3 (quoting Morgan, 536 U.S. at 114). Even when a plaintiff asserts a “series of discrete acts [that] flow[] from a company-wide, or systematic, discriminatory practice, . . . each incident of discrimination constitutes a separate actionable” violation. Cherosky, 330 F.3d at 1247.
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In Cherosky the defendant denied the 1994 and 1997 requests of postal workers to wear respirators in the workplace. Id. at 1244-45. In 1998 the plaintiffs filed an action under the Rehabilitation Act, 29 U.S.C. §§ 701, et seq., but they had not first consulted with a counselor at the Equal Employment Opportunity Commission within 45 days of the 1994 or 1997 denials as required by 29 C.F.R. § 1614.105(a)(1). Id. at 1245. The plaintiffs contended the 45-day consultation requirement did not bar their action because the defendant’s denial of their use of respirators in the workplace was a continuing violation. The court held the continuing-violation doctrine did not apply because “[t]he individualized decisions are best characterized as discrete acts, rather than as a pattern or practice of discrimination” even though “these discrete acts were undertaken pursuant to a discriminatory policy.” Id. at 1247.
For many of the same reasons that this Court noted with respect to Claim One, Defendant’s alleged ADA violations in Claim Two are best characterized as “discrete acts” that were “undertaken pursuant to a discriminatory policy” (or lack thereof), but that are, nonetheless, independently actionable. See id. The fact that many of the alleged discriminatory actions require different elemental analyses and could yield differing findings as to whether Defendant violated the ADA underscores the discrete nature of Defendant’s allegedly discriminatory actions.
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Accordingly, on this record the Court concludes the continuing-violation doctrine does not apply to Plaintiff’s Claim Two, and, therefore, only those alleged ADA violations that took place on or after May 5, 2012 (two years before Plaintiff instituted this action) fall within the statute of limitations.
C. Availability of Noneconomic Damages as to Claim One Defendant contends Plaintiff’s Claim One must be dismissed as to all damages claims because Plaintiff cannot obtain noneconomic damages without making a showing that he suffered economic damages as a result of Defendant’s allegedly unlawful actions. Oregon Revised Statute § 30.650 provides: “Noneconomic damages . . . may not be awarded to an inmate in an action against a public body unless the inmate has established that the inmate suffered economic damages.” Plaintiff contends § 30.650 does not bar his claim for noneconomic damages in Claim One because (1) he is no longer an “inmate” within the meaning of § 30.650 (he was released from Defendant’s custody after instituting this action), and, therefore, § 30.650 does not apply, and (2) he has suffered economic loss in the form of lost “points” and future earning potential. The parties do not cite and this Court has not located any case that has explicitly addressed whether § 30.650 applies to a
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plaintiff who is incarcerated at the time the plaintiff
institutes the action, but is released before any damages are awarded.2
The Court notes § 30.650 “imposes a condition on the
recovery of noneconomic damages in those kinds of actions.” Voth
v. State, 190 Or. App. 154, 160 (2003). Accordingly, § 30.650
“recognizes implicitly the capacity of an inmate to sue for both
economic and noneconomic damages,” but § 30.650 “operates to bar
the award of noneconomic damages unless the inmate also
establishes that he or she suffered economic damages.” Id. at
160 (emphasis in original).
Statutory interpretation under Oregon law “entails three
sequential levels of analysis to determine the legislature’s
intent.” State v. Gaines, 346 Or. 160, 164 (2009)(citing PGE v.
Bur. of Labor and Indus., 317 Or. 606, 610-12 (1993)). “First,
the court examines the text and context of the statute.” Gaines,
346 Or. at 164. Second, the court will consider legislative
history “after examining text and context, even if the court does
2 Defendant cites Quesnoy v. Oregon, No. 3:10-cv-01538-ST, 2011 WL 5439103, at *4 (Nov. 4, 2011), and Orr v. Peterson, No. 3:14-cv-00898-AC, 2015 WL 2239635, at *6 (May 12, 2015), for the proposition that courts in this district have held § 30.650 applies to an inmate who is released from custody during the pendency of the action. Although those courts appear to have assumed § 30.650 applies in such circumstances, they did not analyze the issue. Accordingly, this Court does not find those cases particularly helpful in deciding the contested question whether § 30.650 applies to a plaintiff who is incarcerated when the action is filed, but is released before any award of damages. 25- AMENDED OPINION AND ORDER

not perceive an ambiguity in the statute’s text, where that legislative history appears useful to the court’s analysis.” Id. at 172. “If the legislature’s intent remains unclear after examining legislative history, ‘the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.’” Id. at 164-65 (quoting PGE, 317 Or. at 612). Nonetheless, “the ‘cardinal rule’ of statutory construction [is] that a court ‘shall pursue the intention of the legislature if possible.’” Gaines, 346 Or. at 165 (quoting Holman Transfer Co. v. City of Portland, 196 Or. 551, 564 (1952)).
On this record the Court finds the most natural reading of the text of § 30.650 is that the statute does not apply to a plaintiff who was an inmate when the case was filed but was released before the action reached the stage at which damages might be awarded because § 30.650 appears to focus on the time at which damages are awarded rather than when any such action is instituted. See Or. Rev. Stat. § 30.650 (“Noneconomic damages . . . may not be awarded to an inmate in an action against a public body unless the inmate has established that the inmate suffered economic damages.”)(emphasis added). This reading is consistent with the Oregon Court of Appeals statement in Voth that § 30.650 “operates to bar the award of noneconomic damages unless the inmate also establishes that he or she suffered
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economic damages.” 190 Or. App. at 160. Nonetheless, because this is not the only possible conclusion to draw from the plain meaning of the statute and because Voth did not address the meaning of § 30.650 in any context that is closely analogous to the issue presented in this case, the rules of statutory interpretation require the Court to look to the legislative history for clues as to the Oregon Legislature’s intent.
This issue ultimately turns on whether the Legislature intended § 30.650 to operate as a limitation on damages that can be awarded to an inmate or as a limitation on the types of actions that an inmate can file. Under the first interpretation a claim for noneconomic damages brought by an inmate can go forward notwithstanding the absence of economic damages as long as the plaintiff is no longer an inmate at the time the damages are awarded. Under the second interpretation, however, § 30.650 would prohibit an action seeking noneconomic damages that is initiated by a plaintiff who is an inmate at the time of filing regardless whether that plaintiff was later released from custody before the conclusion of the action. Nothing in the legislative history of § 30.650 speaks directly to which of these interpretations the Legislature intended.
Defendant contends the legislative history indicates the Legislature intended House Bill 2256 (of which § 30.650 was a portion) to “put[] prisoner lawsuits in Oregon on the same
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footing with prisoner lawsuits in federal court.” Van Meter Decl. (#104) at 13. Defendant points out that the Legislature was aware at the time that it passed HB 2256 that the PLRA had “effectively reduced the number of federal civil lawsuits filed in federal courts against state officers nationwide by 46 percent” and desired the same result under state law by passing HB 2256, which included § 30.650. See id.
As Plaintiff points out, however, HB 2256 did not incorporate every aspect of the PLRA. Moreover, the comparison between § 30.650 to its closest analog in the federal PLRA (42 U.S.C. § 1997e(e)) is instructive. Whereas § 1997e(e) explicitly focuses on whether the plaintiff is an inmate at the time an action is initiated (see infra § I(D)(1)), the focus of § 30.650 is on whether the plaintiff is an inmate at the time damages are awarded. See Or. Rev. Stat. § 30.650 (“Noneconomic damages . . . may not be awarded to an inmate . . . .”)(emphasis added). If the Legislature intended to “put[] prisoner lawsuits in Oregon on the same footing with prisoner lawsuits in federal court” by enacting § 30.650 and prohibiting prisoners from filing lawsuits against a public body for noneconomic damages when there was not any claim for economic damages, it could have done so by mirroring § 1997e(e), which it did not do. Thus, the Court concludes the difference between the plain meanings of § 30.650 and § 1997e(e) is dispositive.
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Accordingly, on this record the Court concludes § 30.650
does not apply to Plaintiff’s Claim One for noneconomic damages
because Plaintiff is no longer an “inmate” within the meaning of
§ 30.650.
In the alternative, even assuming § 30.650 applies to
Plaintiff’s Claim One, the Court concludes Plaintiff has
established there is a genuine dispute of material fact as to
whether Plaintiff suffered economic damages within the meaning of
§ 31.710(2)(a), and, therefore, Defendant has not established at
this stage that Plaintiff is precluded from recovering
noneconomic damages under § 30.650. Oregon law defines
“noneconomic damages” as “subjective, nonmonetary losses,
including but not limited to pain, mental suffering, emotional
distress, humiliation, injury to reputation, loss of care,
comfort, companionship and society, loss of consortium,
inconvenience and interference with normal and usual activities
apart from gainful employment.” Or. Rev. Stat. § 31.710(2)(b).
“Economic damages” are defined as:
[O]bjectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.
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Id. § 31.710(2)(a). Here Plaintiff has shown there is a genuine dispute of
material fact as to whether he has suffered economic damages. For example, Plaintiff submits evidence that he was unable to obtain a higher-paying job during his incarceration and was unable to participate in job-training classes as a result of Defendant’s failure to accommodate his deafness. VanValkenburg Decl. (#54). The Court concludes this is sufficient to create a genuine dispute of material fact as to whether Plaintiff suffered “loss of income and past and future impairment of earning capacity.” See Or. Rev. Stat. § 31.710(2)(a).
In summary, on this record the Court concludes § 30.650 does not bar Plaintiff’s claim for noneconomic damages as to Claim One because Plaintiff is no longer an “inmate” within the meaning of § 30.650. In the alternative, the Court holds a genuine dispute of material fact exists as to whether Plaintiff suffered economic damages.
D. PLRA Requirements as to Claim Two Defendant contends it is entitled to summary judgment on Plaintiff’s Claim Two under the PLRA because (1) Plaintiff cannot recover any emotional-distress damages under 42 U.S.C. § 1997e(e) as to Claim Two because he did not suffer any physical injury as a result of Defendant’s alleged discrimination and (2) Plaintiff failed to exhaust his administrative remedies as required by 42
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U.S.C. § 1997e(a). 1. Emotional-Distress Damages As noted, Defendant first contends Plaintiff cannot
recover damages for any mental or emotional injury under § 1997e(e) without demonstrating that he suffered a physical injury.
Section 1997e(e) provides: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act.”
Plaintiff contends his claims for emotional-distress damages as to Claim Two are not barred by § 1997e(e) because (1) he is no longer a prisoner; (2) this action is not a “Federal civil action” within the meaning of § 1997e(e) because Plaintiff originally filed his action in state court; and (3) Plaintiff has made a “prior showing” of physical injury.
a. Whether Plaintiff’s action was “brought” by a “prisoner” within the meaning of the PLRA
As noted, Plaintiff contends his claim for emotional-distress damages in Claim Two is not barred by § 1997e(e) because Plaintiff is no longer a “prisoner” within the meaning of the PLRA. Plaintiff asserts this action was not “brought” by a prisoner because he filed his Second Amended Complaint on March 18, 2015, after he was released from 31- AMENDED OPINION AND ORDER

Defendant’s custody. Plaintiff relies on Cano v. Taylor for the proposition that under the PLRA the “date of the filing [of the amended complaint] is the proper yardstick” for determining when Plaintiff “brought” the relevant action. 739 F.3d 1214, 1220 (9th Cir. 2014).
Defendant contends Cano only permits “claims which are added to a suit” in an amended complaint to avoid the requirements of the PLRA, and, therefore, Plaintiff’s Claim Two is subject to the PLRA physical-injury requirement because Claim Two preexisted the filing of Plaintiff’s Second Amended Complaint. See Cano, 739 F.3d at 1221 (emphasis added). See also Rhodes v. Robinson, 621 F.3d 1002, 1006 (9th Cir. 2010)(“[T]he new claims in Rhodes’ [second amended complaint] were ‘brought’ within the meaning of § 1997e on March 20, 2006, when he tendered that complaint for filing with his motion for leave to file an amended complaint.”). Here Defendant contends Plaintiff’s Claim Two was “brought by a prisoner” within the meaning of § 1997e(e) at the time that Plaintiff filed the original complaint because “‘an action is ‘brought’ for purposes of § 1997e(a) when the complaint is tendered to the district clerk.’” Vaden v. Summerhill, 449 F.3d 1047, 1050 (9th Cir. 2006)(quoting Ford v. Johnson, 362 F.3d 395, 400 (7th Cir. 2004)). Although Vaden addressed the PLRA exhaustion requirement in § 1997e(a), Plaintiff, nevertheless, contends the same rule
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should apply to the identical operative statutory language in § 1997e(e).
Implicit in Cano and Rhodes is the principle that the “action” to which § 1997e applies is claim-specific, and, therefore, the “action” was “brought” when the Plaintiff filed the complaint that first raised that claim. In this case, however, Plaintiff brought Claim Two in his original Complaint (#1-2) filed in the Multnomah County Circuit Court on May 5, 2014, while Plaintiff was indisputably a prisoner. Thus, the Court agrees with Defendant that Cano and Rhodes are distinguishable from this case because, unlike the plaintiffs in those cases, Plaintiff did not bring any new claims in his Second Amended Complaint.
Accordingly, the Court concludes Plaintiff “brought” Claim Two for purposes of § 1997e on May 5, 2014, when he filed his Complaint in Multnomah County Circuit Court and while he was still a “prisoner” within the meaning of the PLRA.
b. Whether Plaintiff’s Claim Two is a “Federal civil action” within the meaning of § 1997e(e)
Plaintiff contends the physical-injury requirement of § 1997e(e) does not apply to Claim Two because he originally brought Claim Two in state court, and, therefore, Claim Two was not a “Federal civil action” within the meaning of § 1997e(e) when it was first brought. Plaintiff asserts the differing
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language between the exhaustion requirement of § 1997e(a) and the physical-injury requirement of § 1997e(e) indicates Congress only intended the latter to apply to actions originally brought by a prisoner in federal court. The exhaustion requirement of § 1997e(a) provides: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner . . . until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). On the other hand, § 1997e(e) provides: “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.” Plaintiff contends § 1997e(a) by its plain terms applies to all actions brought under federal law but Congress’s use of different language in § 1997e(e) (i.e., “[n]o Federal civil action . . .”) indicates Congress intended that requirement to apply only to claims brought by the prisoner in federal court.
According to Defendant, the “[n]o Federal civil action” language in § 1997e(e) “means all federal claims, including constitutional claims.” Napier v. Preslicka, 314 F.3d 528, 532 (11th Cir. 2002)(citing Harris v. Garner, 216 F.3d 970, 984-85 (11th Cir. 2000)(en banc)). See also Jacobs v. Pennsylvania Dep’t of Corrections, No. 04-1366, 2011 WL 2295095, at *23-*24 (Jun. 7, 2011)(collecting cases and holding “the plain
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meaning of the term ‘Federal civil action’ to mean an action in which civil claims over which the federal court has jurisdiction are brought, i.e., all claims over which the court has original jurisdiction under 28 U.S.C. § 1331, and supplemental jurisdiction under 28 U.S.C. § 1367.”).
The cases on which Defendant relies, however, do not address the circumstances at issue here. The Napier and Harris courts merely addressed whether § 1997e(e) applied to constitutional as well as statutory claims. Napier, 314 F.3d at 532; Harris, 216 F.3d at 984-85. Accordingly, those cases are not by themselves persuasive as to the issue in this case; i.e., whether a prisoner plaintiff who brought a federal statutory cause of action in state court has brought a “Federal civil action” within the meaning of § 1997e(e). In Jacobs the court addressed a situation in which a prisoner plaintiff brought a state-law cause of action in federal court, and the court concluded § 1997e(e) applied to the plaintiff’s state-law claim. 2011 WL 2295095, at *23-*24. Accordingly, Jacobs is not directly applicable to the issue before this Court.
On the other hand, Plaintiff’s reasoning in comparing the language of § 1997e(a) with § 1997e(e), although plausible on its face, is also unpersuasive. Contrary to Plaintiff’s contention that § 1997e(e) necessarily means something different from § 1997e(a), the “Federal civil action”
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language in § 1997e(e) can be read as shorthand for the following language in § 1997e(a): “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner . . . .” The statutory language, therefore, is ambiguous on its face.
When a statute is ambiguous, the court looks to legislative history and the statutory purpose to determine the meaning of the statute. Fang Lin Ai v. United States, 809 F.3d 503, 512-13 (9th Cir. 2015). Citing the Eleventh Circuit’s decision in Harris, the Ninth Circuit has noted the physicalinjury requirement is “intended to curtail frivolous prisoner litigation.” See Oliver v. Keller, 289 F.3d 623, 628 (9th Cir. 2002)(citing Harris, 216 F.3d at 977). The Ninth Circuit in Oliver, however, also cited the Second Circuit’s decision in Dawes v. Walker for the proposition that “‘Congress intended § 1997e(e) to reduce the burgeoning volume of prisoner litigation in the federal courts.’” Oliver, 289 F.3d at 627-28 (quoting Dawes v. Walker, 239 F.3d 489, 495 (2d Cir. 2001))(emphasis added). Thus, although the Oliver court found Congress intended to curtail prisoner litigation that it deemed frivolous (i.e., actions brought by prisoners for emotional-distress damages without any attendant physical injury), the Ninth Circuit did not directly address the issue raised here: Whether Congress intended to bar prisoner litigation that it deemed frivolous or
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whether it only intended to keep such actions out of federal courts and to leave it to the state courts to adjudicate such claims.
In any event, the Court concludes if § 1997e(e) permitted prisoners to bring federal-law claims for emotionaldistress damages in state court without any showing of physical injury, the legislative purpose would be frustrated because, as in this case, any such claim ultimately could be removed to federal court under 28 U.S.C. § 1331. There is not any indication in the statute or the legislative history that Congress intended to close the front door to federal court for such claims while leaving the back door open.
Accordingly, on this record the Court concludes Plaintiff’s Claim Two is a “Federal civil action” to which the physical-injury requirement applies.
c. Whether Plaintiff has established a genuine dispute of material fact exists as to physical injury
In any event, Plaintiff contends he has sufficiently established a genuine dispute of fact exists as to physical injury and, therefore, the Court should deny this part of Defendant’s Motion.
To establish a physical injury sufficient to permit an action for emotional-distress damages under § 1997e(e), the plaintiff must prove a physical injury that is more than “de
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minimis,” but it “‘need not be significant.’” Oliver, 289 F.3d at 626-27 (quoting Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)). See also Pierce v. Cnty. of Orange, 526 F.3d 1190, 1124 (9th Cir. 2008). The Ninth Circuit has held medical conditions such as bed sores and bladder infections are sufficient to pass the de minimis physical-injury requirement. Pierce, 52d F.3d at 1224.
As noted, in his Second Amended Complaint Plaintiff omitted any allegation that he suffered a physical injury as a result of Defendant’s alleged failure to accommodate Plaintiff’s deafness. Plaintiff, nonetheless, points out that he testified in his deposition that he suffered two injuries related to communication difficulties arising from the lack of accommodations for his deafness: Plaintiff testified he was punched in the stomach and in the back by another inmate in 2003 because he refused to pay other inmates $20 per week in exchange for having closed-captioning on the television. Plaintiff also testified he suffered a broken tooth in an altercation with another inmate in either 2004 or 2005 that was caused by the other inmate being angry that he did not get a job serving as Plaintiff’s noninmate interpreter. According to Plaintiff, these incidents constitute a “prior showing of physical injury.” See 42 U.S.C. § 1997e(e). Although Plaintiff acknowledges he does not seek any damages for these incidents, he contends, without
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citation to authority, that the physical injury does not have to be an actionable part of his claim in order to satisfy the physical-injury requirement of § 1997e(e).
The Court disagrees. The physical injury that Plaintiff relies on to satisfy the requirement of § 1997e(e) must be “caused by” the unlawful actions that are the basis for the recovery that Plaintiff seeks. See Medcalf v. Sonnen, 216 F. App’x 665, 666 (9th Cir. 2007)(“Medcalf points to no evidence of any physical injury caused by the acts he claims violated his constitutionally protected rights.”). See also Vega v. Nunez, No. LA CV 13-09530-VBF-E, 2014 WL 1873265, at *8 (C.D. Cal. May 8, 2014)(“As currently written, however, the complaint does not allege that plaintiff suffered any physical injury as a result of the cell transfer.”). As noted, Plaintiff can only seek recovery for ADA violations that took place within the twoyear statute of limitations. The only physical injuries alleged, however, took place between 2003 and 2005; i.e., long before the relevant statutory period. Accordingly, Plaintiff’s alleged physical injuries were not “caused by” any actionable ADA violation, and, therefore, Plaintiff has not made any “prior showing of physical injury” pursuant to § 1997e(e).
Accordingly, on this record the Court concludes § 1997e(e) precludes Plaintiff’s claim for emotional-distress damages as to Claim Two. The Court, however, does not dismiss
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Claim Two in its entirety because, as with Claim One, Plaintiff also seeks economic damages as a result of his alleged lostearnings capacity and lower compensation for work performed in prison as a result of Defendant’s alleged ADA violations.
2. Exhaustion of Administrative Remedies Section 1997e(a) provides: “No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Defendant argues Plaintiff’s Claim Two must be dismissed because Plaintiff failed to exhaust his administrative remedies as required by § 1997e(a). Plaintiff, on the other hand, contends Claim Two is not subject to the exhaustion requirement of § 1997e(a) because it was not “brought . . . by a prisoner” in light of the fact that Plaintiff was released from Defendant’s custody before filing his Second Amended Complaint and, in any event, a genuine dispute of material fact exists as to whether Plaintiff met his exhaustion obligations. The Court rejects Plaintiff’s contention that Claim Two was not “brought . . . by a prisoner” for the same reason that Plaintiff’s argument concerning identical statutory language failed under § 1997e(e): i.e., that Plaintiff was a prisoner at
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the time he filed Claim Two. “Prisoners must . . . exhaust all ‘available’ remedies,
not just those that meet federal standards.” Woodford v. Ngo, 548 U.S. 81, 85 (2006). “To be available, a remedy must be available ‘as a practical matter’; it must be ‘capable of use; at hand.’” Albino v. Baca, 747 F.3d 1162, 1171 (9th Cir. 2014).
“[F]ailure to exhaust administrative remedies is an affirmative defense that the defendant must plead and prove in a PLRA case.” Albino, 747 F.3d at 1175. “[D]efendant’s burden is to prove that there was an available administrative remedy, and that the prisoner did not exhaust that available remedy.” Id. at 1172. After the defendant has carried that burden, “the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him.” Id.
“Section 1997e(a) requires an inmate not only to pursue every available step of the prison grievance process but also to adhere to the ‘critical procedural rules’ of that process.” Reyes v. Smith, No. 13-17119, 2016 WL 142601, at *2 (9th Cir. Jan. 12, 2016)(quoting Woodford, 548 U.S. at 90). “‘[I]t is the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.’” Reyes, 2016 WL 142601, at *2 (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)). “Exhaustion
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gives an agency ‘an opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court,’ and it discourages ‘disregard of [the agency's] procedures.’” Id. at 89 (quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992)).
Plaintiff’s IDC dated June 3, 2013, is the only IDC that directly addresses the issues presented in this action and, therefore, Plaintiff’s only relevant attempt at exhaustion. As noted, although the IDC was dated June 3, 2013, and Plaintiff listed the incident date as May 9, 2013, Defendant did not indicate the IDC had been received until January 29, 2014, after Plaintiff sent his January 28, 2014, kyte to Defendant inquiring whether his June 3, 2013, IDC had been processed. In any event, the parties dispute whether Plaintiff filed the IDC in June 2013 and Defendant failed to respond to it or whether Plaintiff failed to submit the IDC until January 2014. In any event, on February 24, 2014, Defendant rejected Plaintiff’s IDC on the ground that it was received more than 30 days after the date of the incident. As noted, Plaintiff did not appeal the denial of his IDC, but instead he filed a tort-claim notice on March 21, 2014, and brought this action on May 5, 2014.
“A discrimination complaint received more than 30 days after the last date of the incident giving rise to the complaint will be rejected as untimely.” Or. Admin. R. 291-006-0031(2)(b).
42- AMENDED OPINION AND ORDER

“A discrimination complaint that has been returned to the inmate by the discrimination complaint coordinator for procedural reasons cannot be reviewed. An inmate may elect to resubmit the discrimination complaint if the procedural errors can be corrected.” Or. Admin. R. 291-006-0035(9).
When Defendant rejected Plaintiff’s June 3, 2013, IDC as untimely, Plaintiff did not have any additional levels of review to pursue as to that IDC because, as noted, under Oregon Administrative Rule 291-006-0035(9) an IDC returned to the inmate “for procedural reasons cannot be reviewed.” If Plaintiff timely filed his June 3, 2013, IDC but Defendant failed to timely address it as a result of administrative error, therefore, Plaintiff would have exhausted his administrative remedies as to the June 3, 2013, IDC because he would have complied with every procedural requirement applicable to him and sought every avenue of relief available with regard to that IDC. The exhaustion doctrine does not require a prisoner to start the administrative process over again as a result of the defendant’s administrative error.
If, on the other hand, Plaintiff failed to timely file
43- AMENDED OPINION AND ORDER

his IDC and Defendant correctly rejected it as untimely,3 Plaintiff would not have “adhere[d] to the ‘critical procedural rules’” of the IDC process. See Reyes, 2016 WL 142601, at *2 (quoting Woodford, 548 U.S. at 90). Under Oregon Administrative Rule 291-006-0035(9) Plaintiff may have been able to correct this error if he had filed a new IDC alleging the same ADA violations, but he failed to do so.
On this record, however, Defendant has not established whether the delay in considering Plaintiff’s June 3, 2013, IDC was caused by an administrative error on the part of Defendant or Plaintiff’s failure to submit the IDC timely. The Court, therefore, concludes a genuine dispute of material fact exists as to whether Plaintiff exhausted his administrative remedies as to Claim Two.
In summary, the Court concludes Plaintiff’s claim for emotional-distress damages in Claim Two is barred by § 1997e(e). Accordingly, the Court grants Defendant’s Motion as to Plaintiff’s Claim Two on that basis. The Court, however, concludes a genuine dispute of material fact exists as to whether Plaintiff exhausted his administrative remedies and, therefore,
3 Plaintiff contends Defendant wrongly rejected the IDC as untimely even if it was not filed until January 2014 because the description of the reason for the complaint made it clear that the IDC addressed ongoing issues. This argument is unpersuasive, however, in light of the fact that Plaintiff listed the date and time of the “incident” as May 9, 2013. 44- AMENDED OPINION AND ORDER

denies Defendant’s Motion as to the remaining portion of Plaintiff’s Claim Two in which Plaintiff seeks economic damages. II. Plaintiff’s Motion (#72) for Partial Summary Judgment
Plaintiff moves for partial summary judgment as to Defendant’s liability on Claims One and Two (but not as to damages) on the basis that there is not any genuine dispute of material fact as to whether Defendant sufficiently investigated and accommodated Plaintiff’s deafness.
Plaintiff contends the analyses on Claims One and Two are identical because Oregon Revised Statute § 659A.142 “shall be construed to the extent possible in a manner that is consistent with any similar provisions of the federal Americans with Disabilities Act of 1990.” Or. Rev. Stat. § 659A.139(1). See also Quesnoy, 2011 WL 5439103, at *5-*7 (analyzing an ADA Title II claim together with a claim under § 659A.142).
“Pursuant to Title II of the ADA, a ‘qualified individual with a disability’ cannot, ‘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.’” Pierce, 526 F.3d at 1214 (quoting 42 U.S.C. § 12132). “Generally, public entities must ‘make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the
45- AMENDED OPINION AND ORDER

public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.’” Pierce, 526 F.3d at 1215 (quoting 28 C.F.R. § 35.130(b)(7)). Whether an accommodation is “reasonable (or even required) is necessarily a fact-specific inquiry, requiring ‘analysis of the disabled individual's circumstances and the accommodations that might allow him to meet the program's standards.’” Castle v. Eurofresh, Inc., 731 F.3d 901, 910 (9th Cir. 2013)(quoting Wong v. Regents of Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999)). See also Pierce, 526 F.3d at 1217.
Plaintiff’s contentions fall into three general categories: (1) Defendant failed to undertake any investigation to determine how to provide Plaintiff with equal access to services. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1136 (9th Cir. 2001)(“[T]he ADA imposes an obligation to investigate whether a requested accommodation is reasonable.”). (2) Defendant failed to accommodate Plaintiff’s disability when it failed to provide Plaintiff with a qualified American Sign Language (ASL) interpreter during intake and orientation; during medical, dental, and mental-health examinations; during religious services; during classes, jobtraining opportunities and other prison programs;
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during disciplinary proceedings; and during counselor meetings and assessments. (3) Defendant’s use of unqualified inmate interpreters for many of the services provided to Plaintiff was insufficient as a matter of law. Accordingly, Plaintiff contends he is entitled to summary judgment as to Defendant’s liability on both Claim One and Claim Two. Defendant, on the other hand, contends Plaintiff is not entitled to summary judgment because genuine disputes of material fact exist as to the extent of Plaintiff’s hearing disability and, therefore, as to whether the accommodations were sufficient. In addition, Defendant asserts Plaintiff fails to identify specific instances of insufficient accommodation with respect to many of Plaintiff’s claims. As to Plaintiff’s claim regarding Defendant’s investigation of Plaintiff’s hearing disability, the Court agrees genuine disputes of material fact exist as to whether Defendant’s investigation was adequate. For example, Debbie Allen, a counselor at Santiam Correctional Institution where Plaintiff was housed from May 2012 to February 2014, testified part of her job was to determine the communication needs of inmates based on a review of the inmate’s file, her interactions with the inmate, and her experience assessing an inmate’s ability to communicate.
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Whether this investigation was sufficient to gauge the extent of Plaintiff’s hearing disability and the necessity of particular accommodations is a determination of fact that this Court cannot make on summary judgment.
Moreover, Defendant is also correct that on this record there remain genuine disputes of material fact regarding the extent of Plaintiff’s hearing impairment. Although Plaintiff has produced evidence (including expert opinion) that alternative forms of accommodation such as lipreading, spoken language, and writing are insufficient to adequately communicate with Plaintiff, Defendant presents evidence from which a rational jury could conclude such alternative forms of communication were sufficient for Plaintiff in practice including evidence that Plaintiff communicates with his family through some of these alternative forms because his family is unable to communicate through ASL.
The Court, therefore, concludes Plaintiff has not established Defendant’s accommodations were unreasonable.
On this record, therefore, the Court denies Plaintiff’s Motion on the ground that genuine disputes of material fact exist that preclude summary judgment in favor of Plaintiff.
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CONCLUSION For these reasons, the Court GRANTS in part and DENIES in part Defendant’s Motion (#49) for Summary Judgment and Defendant’s Second Motion (#64) for Partial Summary Judgment as follows: 1. The Court GRANTS Defendant’s Motion (#49) as to Plaintiff’s claims for injunctive relief and DISMISSES those claims with prejudice; 2. The Court GRANTS Defendant’s Second Motion (#64) as to the statute of limitations on Plaintiff’s Claim One and limits recovery on Plaintiff’s Claim One to those instances of disability discrimination that occurred on or after September 23, 2013; 3. The Court GRANTS in part and DENIES in part Defendant’s Motion (#64) as to the statute of limitations on Plaintiff’s Claim Two and limits recovery on Plaintiff’s Claim Two to those instances of alleged disability discrimination that occurred on or after May 5, 2012; 4. The Court DENIES Defendant’s Motion (#49) as to Plaintiff’s claim for noneconomic damages in Claim One; and 5. The Court GRANTS in part and DENIES in part Defendant’s Motion (#49) as to the limitations on Claim Two pursuant to the PLRA, 42 U.S.C. § 1997e, and DISMISSES with prejudice Plaintiff’s Claim Two to the extent he seeks emotional-distress damages. 49- AMENDED OPINION AND ORDER

The Court also DENIES Plaintiff’s Motion (#72) for Partial Summary Judgment in its entirety.
IT IS SO ORDERED. DATED this 2nd day of May, 2016.
/s/ Anna J. Brown ANNA J. BROWN United States District Judge
50- AMENDED OPINION AND ORDER

 
 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

DAVID D. VANVALKENBURG, Plaintiff,
v.

No. 3:14-cv-00916-MO OPINION AND ORDER

OREGON DEPARTMENT OF CORRECTIONS,

Defendant.

MOSMAN, J.,

Plaintiff David VanValkenburg brought this suit against the Oregon Department of

Corrections (“ODOC”), alleging violations of federal and state anti-discrimination laws while he

was in custody. Mr. VanValkenburg’s state-law claim was tried to a jury, beginning on

November 1, 2016. The jury returned a verdict in favor of Mr. VanValkenburg, awarding him

$400,000 in noneconomic damages [183]. On December 5, 2016, ODOC filed post-trial motions

for judgment as a matter of law, a new trial, and remittitur [200]. Mr. VanValkenburg responded

in opposition [203], and ODOC replied [209]. For the reasons explained below, ODOC’S

motions are DENIED.

I. BACKGROUND

Mr. VanValkenburg is a hearing-impaired individual who was housed at multiple prisons

run by ODOC from 2000 to 2014. In 2014, he brought this case against ODOC based on

allegations that it violated state and federal anti-discrimination laws when it failed to provide him

1 – OPINION AND ORDER

with accommodations for his hearing disability that would allow him to meaningfully participate in prison programs and services provided to inmates. Mr. VanValkenburg’s claims were grounded in violations of federal and state anti-discrimination laws. He sought injunctive relief, economic, and noneconomic damages. After receiving full briefing on ODOC’s Motion for Summary Judgment, this Court dismissed Mr. VanValkenburg’s claims for injunctive relief, and his alleged emotional distress damages based on his Americans with Disabilities Act (“ADA”) claim. The Court also narrowed the period of time from which Mr. VanValkenburg could recover damages to instances of discrimination that occurred on or after May 5, 2012, for his federal-law claim and September 23, 2013, for his state-law claim.
During a telephone oral argument on September 20, 2016, ODOC conceded that Mr. VanValkenburg was a qualified individual with a disability, and that his need for accommodation was obvious. But, ODOC contended that Mr. VanValkenburg’s ADA claim was procedurally barred because he failed to exhaust his administrative remedies. As a result, on October 17, 2016, I held a bench-trial on the issue of exhaustion, where I found that he had not exhausted his administrative remedies, and dismissed Mr. VanValkenburg’s ADA claim.
On November 1, 2016, a jury trial commenced on Mr. VanValkenburg’s remaining statelaw claim for alleged disability discrimination between September 23, 2013, and his release from prison in 2014. The issues for trial were whether the accommodations ODOC provided so that Mr. VanValkenburg could equally participate in its programs and services were reasonable, and whether further accommodations would have posed an undue burden on ODOC. Specifically, Mr. VanValkenburg alleged that he was discriminated against when ODOC (1) failed to provide him with effective communication for five medical appointments, (2) refused to consider his application to work in the prison canteen, (3) failed to provide him with effective communication
2 – OPINION AND ORDER

to participate in the “Road to Success” class, and (4) failed to provide him with equivalent access to the videophone system as hearing inmates had to prison phones. In presenting his case to the jury, Mr. VanValkenburg introduced documentary evidence, testimony from an expert witness, and testimony from a state-wide disability services coordinator. He also testified on his own behalf. ODOC moved for judgment as a matter of law before jury deliberations began. I DENIED ODOC’s motion. After a three-day trial, the jury found in favor of Mr. VanValkenburg on these claims and awarded him $400,000 in noneconomic damages. II. ANALYSIS
Pursuant to Federal Rule of Civil Procedure 50, ODOC has renewed its motion for judgment as a matter of law. In the alternative, ODOC moves for a new trial under Federal Rule of Civil Procedure 59(a). Finally, ODOC moves for an order of remittitur and/or conditioning the denial of its motion for new trial on a reduction of the jury’s damages award to $25,000 total. Mr. VanValkenburg objects to all three motions.
A. Motion for Judgment as a Matter of Law To succeed in their motion for judgment as a matter of law, the defendants must show that “a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a); see also Fed R. Civ. P. 50(b) (allowing for a renewed motion for judgment as a matter of law after trial). “[I]n entertaining a motion for judgment as a matter of law, the court should review all of the evidence in the record.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). The “court must draw all reasonable inferences in favor of the nonmoving party” and “give credence to the evidence favoring the nonmovant.” Id. at 150-51. Judgment as a matter of law is appropriate when “the evidence, construed in the light most favorable to the nonmoving party permits only one reasonable
3 – OPINION AND ORDER

conclusion, and that conclusion is contrary to the jury’s verdict.” Acosta v. City of Costa Mesa, 718 F.3d 800, 828 (9th Cir. 2013). Additionally, the court must uphold the jury’s verdict “if it is supported by substantial evidence, which is evidence adequate to support the jury’s conclusion, even if it is also possible to draw a contrary conclusion.” Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002).
After reviewing all of the evidence in the record, I have determined that the jury’s verdict is supported by substantial evidence in the record. From the outset, it is important to note that ODOC conceded before trial that Mr. VanValkenburg’s disability and need for accommodations were obvious. Thus, the questions for the jury were limited to whether ODOC’s accommodations were sufficient, and, if not, whether further accommodations posed an undue burden on ODOC. Evidence presented to the jury supports Mr. VanValkenburg’s claim that ODOC discriminated against him when it failed to (1) provide him with effective communication during five of his medical appointments, (2) consider him for the canteen position, (3) provide him with effective communication at the Road to Success class, and (4) provide him with equivalent access to the videophone as hearing people had to the prison phones.
As to the medical appointments, Mr. VanValkenburg’s expert witness testified about his difficulty communicating by writing or lip-reading. At trial, ODOC did not dispute that prison medical staff used those methods of communication to communicate with Mr. VanValkenburg during the medical appointments at issue. Mr. VanValkenburg’s testimony confirmed these facts and his preference for communicating through qualified sign language interpreters. In addition, Mr. VanValkenburg described the frustration, confusion, and fear that resulted from his inability to speak with and ask questions to his doctors. While ODOC suggested that providing a qualified ASL interpreter at these medical appointments would have posed an undue burden, this
4 – OPINION AND ORDER

evidence was disputed and other evidence suggested that ODOC failed to pursue other accommodations that were available. Accordingly, the jury’s finding of discrimination as to Mr. VanValkenburg’s medical appointments is supported by the record.
As to the canteen position, Mr. VanValkenburg introduced evidence of an inmate communication form that responded to his request to apply for an opening in the canteen. On the face of that form, the prison responded that he could not apply for the position because of his disability. Based on that statement and testimony from Ms. Carsner about ODOC’s failure to investigate ways to accommodate Mr. VanValkenburg, the jury could find that ODOC discriminated against him. Although ODOC argued that he ultimately received a higher paying position, such evidence would only serve to undermine economic damages, which he did not seek at trial. Indeed, to support his claim for noneconomic damages, Mr. VanValkenburg testified about the mental anguish he experienced by not being allowed to apply for the position.
As to the Road to Success course, Mr. VanValkenburg testified that he was unable to take the class, which is intended to prepare incarcerated individuals for successful release, because he was not provided with a translator after requesting one at least twice. While ODOC tried to rebut Mr. VanValkenburg’s testimony with documents that suggest he agreed to participate in one-onone meetings with his counselor and parole officer instead of taking the course, Mr. VanValkenburg denied these claims. The jury was entitled to evaluate Mr. VanValkenburg’s credibility and believe his testimony. Ultimately, substantial evidence in the record supports the jury’s finding that ODOC discriminated against Mr. VanValkenburg as to his participation in this class.
Finally, as to the videophone usage, Mr. VanValkenburg testified that he had difficulty accessing it because it was kept in a locked room that was used for other purposes. He claimed
5 – OPINION AND ORDER

that he had to wait hours and sometimes days to use the phone, which he found very frustrating. He was also frustrated because hearing inmates had regular access to telephones in their unit. Evidence adduced at trial showed that ODOC eventually put the phone in a location near his unit, where he had easier access to it. While ODOC presented evidence to substantiate the need to keep the videophone in a locked room, the jury could find based on the evidence presented that ODOC discriminated against Mr. VanValkenburg by not providing him with easier access to the videophone. Accordingly, the jury’s verdict is supported by substantial evidence in the record.
B. Motion for a New Trial A party moving for judgment as a matter of law under Rule 50(b) may also, in the alternative, file a motion for a new trial under Rule 59 of the Federal Rules of Civil Procedure. Morris v. Walgreen Oshkosh, Inc., 3:14-cv-01718-ST, 2016 WL 1704320, at *2 (D. Or. April 28, 2016). The authority to grant a new trial under Rule 59 “is confided almost entirely to the exercise of discretion on the part of the trial court.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). A court may order a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed .R.Civ.P. 59(a)(1)(A). “Historically recognized grounds include, but are not limited to, claims ‘that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.’” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)). The Ninth Circuit has held that a new trial may be granted “‘only if the verdict is contrary to the clear weight of the evidence, is based upon false or perjurious evidence, or to prevent a miscarriage of justice.’” Id. (quoting Passantino v. Johnson & Johnson Consumer Prods., 212
6 – OPINION AND ORDER

F.3d 493, 510 n.15 (9th Cir. 2000)). In determining whether a verdict is contrary to the clear weight of the evidence, the court “has ‘the duty . . . to weigh the evidence as [the court] saw it’” and may set aside the verdict even if it is supported by substantial evidence. Id. (quoting Murphy v. City of Long Beach, 914 F.2d 183, 187 (9th Cir. 1990)).
I do not find the jury’s verdict to be contrary to the clear weight of the evidence. In addition, I do not find that a miscarriage of justice will ensue by failing to grant ODOC a new trial. Aside from reincorporating arguments about the sufficiency of the evidence from the motion for judgment as a matter of law, ODOC principally argues that a new trial should be granted because it was improper to exclude evidence of Mr. VanValkenburg’s crime of conviction, because ODOC lacked notice of the discrete medical appointments Mr. VanValkenburg planned to take issue with at trial, and because Mr. VanValkenburg’s closing argument improperly asked the jury to “send a message” and compensate all disabled persons.
Excluding evidence of Mr. VanValkenburg’s crime of conviction has not created a miscarriage of justice. First, ODOC appears to forget that it agreed to exclude information about Mr. VanValkenburg’s crime of conviction if he dropped his claim for economic damages, which he did. Thus, evidence about the crime was only admissible if Mr. VanValkenburg opened the door during his case in chief. Contrary to ODOC’s argument, Mr. VanValkenburg’s testimony about his feelings of emotional distress that resulted from the discrimination he faced did not open the door to his crime of conviction. The emotional distress testimony was all related directly to the discrimination he experienced—feelings of anxiety, frustration, anger, and humiliation. Pursuant to my pretrial rulings, ODOC could inquire about his ability to distinguish between emotional distress caused by the discrimination and emotional distress that came naturally from being incarcerated as a convicted felon. The jury did not need to understand the
7 – OPINION AND ORDER

nature of his crime to realize that many of those feelings could result from being incarcerated at all. ODOC had the opportunity to make this argument, and the jury had the opportunity to consider it. Accordingly, no miscarriage of justice will ensue without a new trial due to the jury’s failure to learn of Mr. VanValkenburg’s crime of conviction.
Second, ODOC has failed to articulate a clear theory for why a new trial should be granted on the grounds that it was unaware of which specific medical appointments Mr. VanValkenburg planned to pursue at trial. The statute of limitations was set months before trial, which significantly narrowed the time period in question. The five medical appointments that Mr. VanValkenburg pursued at trial were all within that statute of limitations. While the narrowing of the number of medical appointments at issue occurred late in the case, it is unclear how this prejudiced ODOC, since it already had to investigate and prepare to respond to Mr. VanValkenburg’s allegations of discrimination during these appointments; fewer appointments suggests less work for ODOC, not more. Ultimately, ODOC does not argue it was unaware of any of the medical appointments at issue during the trial, or that any of the appointments were outside the statute of limitations. Thus, there is no manifest unjustice with regard to the narrowing of the medical appointments.
Finally, ODOC argues that I improperly curtailed the introduction of evidence regarding the numerous other medical appointments that Mr. VanValkenburg attended during the relevant period. ODOC argues this was manifestly unjust because it improperly precluded ODOC from showing that Mr. VanValkenburg communicated with medical staff on multiple occasions without ASL interpreters.
As an initial matter, ODOC already conceded that Mr. VanValkenburg’s need for an accommodation was obvious. In addition, Mr. VanValkenburg conceded he did not need a
8 – OPINION AND ORDER

qualified interpreter in all communications, especially those that were fairly simple and straight forward. Accordingly, I sustained Mr. VanValkenburg’s objection to this line of testimony under Rule 403 of the Federal Rules of Evidence because I determined that the probative value was substantially outweighed by a danger of unfair prejudice and the evidence was cumulative. ODOC had already introduced evidence about various medical appointments that were not at issue in the case, from which it laid the foundation to argue that Mr. VanValkenburg was able to communicate with medical providers without an ASL interpreter. The jury could properly weigh all of the evidence in the case and determine whether ODOC provided Mr. VanValkenburg with effective communication during the five medical appointments at issue in the case.
C. Motion for Remittitur In deciding Defendant’s Motion for Remittitur, I must determine whether the motion is governed by federal law or Oregon law. Under federal law, a court may conditionally grant a defendant’s motion for a new trial unless the plaintiff agrees to a reduced damages award, also known as a remittitur. See Hetzel v. Prince William Cty., Va., 523 U.S. 208, 211 (1998); see also Morgan v. Woessner, 997 F.2d 1244, 1258 (9th Cir. 1993) (explaining that a court cannot order reduced damages without providing plaintiff with the option for a new trial on the issue of damages). In general, a “motion for remittitur of a jury verdict is subject to the same standard as a motion for new trial under FRCP 59.” Morris, 2016 WL 1704320, at *3; see also BrowningFerris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989) (explaining that Rule 59 applies to motions for a new trial and remittitur). In federal question cases, federal courts “allow substantial deference to a jury’s finding of the appropriate amount of damages . . . unless the amount is grossly excessive or monstrous, clearly not supported by the evidence, or based
9 – OPINION AND ORDER

only on speculation or guesswork.” Del Monte Dunes at Monterey, Ltd. v. City of Monterey, 95 F.3d 1422, 1435 (9th Cir. 1996).
In federal cases based on diversity jurisdiction, however, state substantive law determines whether a jury verdict is excessive or inadequate. Browning-Ferris Indus., 492 U.S. at 278-79; see also Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 430-31 (1996). To the extent that Oregon law differs from federal law in determining whether the jury’s damages award was appropriate, I must follow Oregon law in this case.
Article VII, Section 3 of the Oregon Constitution limits a court’s discretion to award a remittitur. It states: “[n]o fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict.” Or. Const. art. VII, § 3; see also Van Lom v. Schneiderman, 210 P.2d 461, 465 (Or. 1949) (explaining that Oregon courts do not have the common-law power to re-examine the evidence and set aside a verdict because it was excessive) overruled on other grounds by DeMendoza v. Huffman, 51 P.3d 1232 (Or. 2002). Thus, in determining whether to grant a motion for remittitur in this case, I must ask whether there is no evidence to support the damages award. That appears to be a higher bar than determining whether the damages award is “grossly excessive or monstrous, clearly not supported by the evidence, or based only on speculation or guesswork.” Del Monte Dunes, 95 F.3d at 1435.
ODOC argues that the jury’s award for noneconomic damages is improperly high. ODOC suggests $10,000 is an appropriate amount of noneconomic damages for its discrimination in regard to Mr. VanValkenburg’s medical appointments, which equates to $2,000 per visit. In addition, ODOC suggests a noneconomic damages award of $5,000 is appropriate for discriminating against Mr. VanValkenburg with regard to the Road to Success class; $5,000
10 – OPINION AND ORDER

is appropriate for discriminating against Mr. VanValkenburg in his application to work in the Canteen; and $5,000 is appropriate for discriminating against Mr. VanValkenburg with regard to his access to the videophone. In sum, ODOC argues that total noneconomic damages award should be reduced to $25,000.
ODOC has not provided me with a principled basis for determining that there is no evidence to support the damages award. In theory, I agree that it is extraordinary for the jury to award damages in excess of that requested by a plaintiff, and under the federal standard, I may be persuaded to grant the motion for remittitur on the grounds that the award is grossly excessive. It is also theoretically possible under Oregon law for a jury to award such an extremely high amount of compensatory damages that it simply would not be supported by the evidence presented at trial. But, ODOC has not provided me with a principle upon which I can find that is the case here. Instead of proposing a reasonable damages award that is linked to the evidence presented at trial, ODOC simply substitutes its own judgment for that of the jurors and argues that a substantially smaller damages award is appropriate. ODOC’s proposed damages award, which is approximately 6% of what the jury awarded, is nothing more than conjecture and guesswork in and of itself.
Testimony from Mr. VanValkenburg’s expert witness and from Mr. VanValkenburg provided evidence from which a jury could conclude that he experienced, and will continue to experience, mental pain and suffering as a result of the discrimination he experienced. Thus, there is some evidence in the record to support the jury’s non-economic damages award. In closing argument, Mr. VanValkenburg’s attorneys argued that $140,000 was “a good starting place” when thinking about appropriate compensation for the “mental suffering and emotional distress” he has and will suffer in the future. But, in his Second Amended Complaint [43], Mr.
11 – OPINION AND ORDER

VanValkenburg sought $450,000 in compensatory damages for his state and federal claims. While the complaint included more instances of discrimination than were presented to the jury, which may substantiate a higher damages award, I cannot substitute my own opinion for the jury and find that there was no evidence to support the jury’s damages award. Accordingly, ODOC’s Motion for Remittitur is DENIED.
CONCLUSION For the reasons stated above, Defendants’ Motions for Judgment as a Matter of Law, New Trial, and Remittitur [200] are DENIED. IT IS SO ORDERED. DATED this 8th day of February, 2017.
/s/ Michael W. Mosman_________ MICHAEL W. MOSMAN Chief United States District Judge
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 Case 3:14-cv-00916-MO Document 240 Filed 06/09/17 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

DAVID D. VANVALKENBURG, Plaintiff,
v.

No. 3:14-cv-00916-MO OPINION AND ORDER

OREGON DEPARTMENT OF CORRECTIONS,

Defendant.

MOSMAN, J.,

Plaintiff David VanValkenburg brought this suit against the Oregon Department of

Corrections (“ODOC”), alleging violations of federal and state anti-discrimination laws while he

was in custody. Mr. VanValkenburg’s state-law claim was tried by a jury, beginning on

November 1, 2016. The jury returned a verdict in favor of Mr. VanValkenburg, awarding him

$400,000 in noneconomic damages [183]. On February 8, 2017, I DENIED Defendant’s

Motions for Judgment as a Matter of Law, New Trial, and Remittitur [210]. Mr. VanValkenburg

now moves for attorney fees and costs [215].

BACKGROUND

Mr. VanValkenburg is a hearing-impaired individual who was housed at multiple prisons

run by ODOC from 2000 to 2014. In 2014, he brought this case based on allegations that ODOC

violated state and federal anti-discrimination laws when it failed to provide him with

accommodations for his hearing disability that would allow him to meaningfully participate in

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prison programs and services provided to inmates. After a three-day trial in November, 2016, the jury found in favor of Mr. VanValkenburg and awarded him $400,000 in noneconomic damages. Mr. VanValkenburg has now moved to recover his attorney fees, costs, and litigation expenses as the prevailing party on his state-law claim.1
DISCUSSION Mr. VanValkenburg is seeking to recover a total of $911,062.21 in attorney fees, costs, and litigation expenses as the prevailing party on his state-law disability discrimination claim. That amount includes a fee multiplier to compensate Mr. VanValkenburg’s attorneys for their performance in this case and the risk they undertook in representing Mr. VanValkenburg on a contingency fee basis. Mr. VanValkenburg also seeks additional attorney fees to cover the cost of litigating his fee award. ODOC objects to Mr. VanValkenburg’s motion on several grounds. First, ODOC argues that I should decline to award any fees in this case because (1) doing so is discretionary and (2) Mr. VanValkenburg was not the prevailing party on any of his claims. Alternatively, ODOC suggests that I should implement “an across-the-board percentage cut” to reflect Mr. VanValkenburg’s “partial success” on the claims overall. In addition, ODOC objects to the award of any fee multiplier in this case, as well as a prevailing party fee that Mr. VanValkenburg seeks by statute. Finally, ODOC objects to some of the costs and litigation expenses that Mr. VanValkenburg seeks to recover. As explained below, I find that Mr. VanValkenburg is the prevailing party on his statelaw disability discrimination claim. As such, he is entitled to recover his attorney fees, costs, and litigation expenses. I also award his requested attorney fees for the cost of litigating this attorney
1 Only the state-law claim went to trial. Mr. VanValkenburg’s ADA claim was dismissed before the jury trial for failure to exhaust his administrative remedies.
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fee motion. Additionally, I agree a fee multiplier is appropriate in this case based on the risk involved in this case and the performance of Mr. VanValkenburg’s attorneys. That said, I find the requested fee multiplier to be excessive and thus, I adopt a smaller multiplier. Finally, some of the litigation expenses are not reimbursable under state law, resuling in a reduction to Mr. VanValkenburg’s requested expense award. In total, I award Mr. VanValkenburg $683,873.13 in attorney fees, $18,155.19 in costs, and $3,924.79 in litigation expenses.
I. Attorney Fee Award Mr. VanValkenburg is seeking to recover attorney fees for over 1300 hours that his attorneys claim they spent on this case. Specifically, Mr. VanValkenburg seeks to recover (1) attorney fees based on the number of hours spent on the case, (2) extra attorney fees pursuant to a discretionary fee multiplier, and (3) attorney fees for the time spent litigating this motion for attorney fees. For the reasons discussed below, I find that Mr. VanValkenburg is entitled to attorney fees and that the standard lodestar calculation of those fees based on his attorneys’ hourly rate and the number of hours spent litigating this case is the proper method for calculating those fees. I also find that a fee multiplier is appropriate in this case. Finally, I grant Mr. VanValkenburg’s request to recover attorney fees for the time spent litigating this attorney fee memo. In total, Mr. VanValkenbug is entitled to recover $683,873.13 in attorney fees.
A. Calculation of Attorney Fees Mr. VanValkenburg argues that he is entitled to recover reasonable attorney fees because he is the prevailing party in this case. Specifically, he argues that he is entitled to recover attorney fees based on his attorneys’ reasonable billing rate and the hours his attorneys spent litigating his state-law antidiscrimination claim. ODOC argues that Mr. VanValkenburg is not entitled to any attorney fees because he is not the prevailing party on any of his claims. And, in
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any event, ODOC argues that the award should be reduced to reflect what it argues was a narrow victory.
For the following reasons, I have determined that an award of attorney fees to Mr. VanValkenburg is mandatory under Oregon statutory law. Because the state and federal claims in this case have common issues of law and fact, Mr. VanValkenburg’s attorneys’ time was reasonably spent litigating both claims, and they are not required to apportion their time by claim. Accordingly, I do not reduce the hours spent on the case to reflect Mr. VanValkenburg’s loss on the federal claim, except to the extent that Mr. VanValkenburg is not entitled to attorney fees for the time spent on litigating whether he exhausted his administrative remedies under his federal claim. I also find the hourly rates requested by Mr. VanValkenburg’s attorneys to be reasonable. In sum, Mr. VanValkenburg is entitled to an attorney fee award of 385,217.50 based on calculations under the lodestar method.2
1. An Attorney Fee Award is Mandatory Because Mr. VanValkenburg is the Prevailing Party on the State-Law Claim
Oregon law governs whether an attorney fee is available in a case that is based on state law. Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011) (“State laws awarding attorneys’ fees are generally considered to be substantive laws under the Erie doctrine . . .”). In Oregon, severeal statutes govern the award of attorney fees. Specifically, Oregon Revised Statute § 20.107 states:
(1) In any civil judicial proceeding . . . based on a claim of unlawful discrimination, the court shall award to the prevailing plaintiff attorney and expert witness fees reasonably and necessarily incurred in connection with the discrimination claim, at the trial court . . .
2 This fee award is calculated as follows: Mr. Ellis: (517.50 hours) x ($325.00 per hour) = $168,187.50 Ms. Payne: (672.10 hours) x ($300.00 per hour) = $201,630.00 Paralegal and Law Clerk: (88.8 hours) x ($175.00 per hour) = $15,400.00
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(2) In making an award under this section, the court shall calculate attorney and expert witness fees on the basis of a reasonable hourly rate at the time the award is made, multiplied by the amount of time actually and reasonably spent in connection with the discrimination claim. In addition, Oregon Revised Statute § 659A.885(1) states: “[i]n any action under this subsection, the court may allow the prevailing party costs and reasonable attorney fees at trial and on appeal.” In fact, “Oregon courts have construed [§ 659A.885(1)] as mandatory and highly favorable to plaintiffs, holding that prevailing plaintiffs are entitled to recover their attorney fees.” Hamlin v. Hampton Lumber Mills, Inc., 205 P.3d 70 (Or. App. 2009). Accordingly, given the text of Oregon Revised Statute 20.107, explaining that I shall award fees to the prevailing plaintiff’s attorney, and Hamlin, making such an award mandatory under Oregon Revised Statute § 659A.885(1), I am required to award attorney fees to Mr. VanValkenburg so long as he was the prevailing plaintiff. To determine whether Mr. VanValkenburg was the prevailing party in this case, I again look to Oregon law. Oregon Revised Statute § 20.077 defines the prevailing party “[f]or the purposes of making an award of attorney fees on a claim,” as “the party who receives a favorable judgment . . . on the claim.” Or. Rev. Stat. § 20.077(2). The text of the statute makes clear that I must look at each claim to determine who the prevailing party was on that claim. Eagles Five, LLC. v. Lawton, 280 P.3d 1017, 1026 (Or. App. 2012) ODOC argues that Mr. VanValkenburg was not the prevailing party in this case because his federal claim was dismissed and on his state-law claim was limited to a smaller time period than he initially sought in his Complaint. Mr. VanValkenburg concedes that he was not the prevailing party on his Section 1983 claim alleging violations of the ADA. But he argues he was
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the prevailing party on his state-law claim because the jury returned a verdict in his favor on that claim and awarded him $400,000 in damages.
I agree that Mr. VanValkenburg was the prevailing party on his state-law claim. ODOC does not cite any legal authority to support its proposition that Mr. VanValkenburg was not the prevailing party on the state-law claim simply because he did not recover all of the relief he sought. In fact, the text of the statute only calls for “a favorable judgment” on the claim; it does not require all of the relief sought. See Or. Rev. Stat. § 20.077(2); see also Eagles Five, 280 P.3d at 1026 (explaining that the “prevailing party” is the one that received a “favorable judgment” and that “it does not necessarily follow that, merely because a party does not obtain all the relief sought, a party is not a prevailing party” (citation omitted)). Accordingly, because Mr. VanValkenburg received a favorable judgment on his state-law claim, he is entitled to recover attorney fees for prevailing on that claim.
2. Calculating the Attorney Fee Award Mr. VanValkenburg seeks to recover for 528.50 hours spent on the case by Mr. Ellis at a rate of $325.00 per hour; 683.80 hours spent on the case by Ms. Payne3, at a rate of $300 per hour; and 88.8 hours spent on the case by a paralegal and a law clerk at a rate of $175.00 per hour. In total, Mr. VanValkenburg seeks to recover $392,232.50 in attorney fees based on the lodestar calculation. ODOC does not dispute the total number of hours Mr. VanValkenburg’s attorneys claim they spent on the case, nor does ODOC argue the hourly rates requested are unreasonable. Rather, ODOC objects to an award for all of the hours the attorneys spent on the case, given that Mr. VanValkenburg only prevailed on his state-law claim, and even then, only for a narrow time
3 Ms. Payne’s hours include 423.10 hours as an associate at Haglund Kelley LLP and an additional 260.70 as a solo practitioner.
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period. ODOC argues that Mr. VanValkenburg’s billing records should be broken out by claim, and that he should only receive attorney fees for the hours spent litigating the state-law claim. Because the billing records do not break out the attorney’s time on a claim-by-claim basis, ODOC argues that I should reduce the fee request by 65% and only award 35% of the amount requested by Mr. VanValkenburg, or $137,281.38.
Oregon courts generally award attorney fees based on the lodestar method, although there is room for adjustment based on the factors set forth in Oregon Revised Statute § 20.075. See generally Strawn v. Farmers Ins. Co. of Or., 297 P.3d 439, 447-48 (Or. 2013) (“Strawn I”). Under the lodestar method, courts multiply the reasonable hourly rate for each timekeeper by the reasonable number of hours the timekeeper worked on the case. Or. Rev. Stat. § 20.107(2).
a. Reasonable Number of Hours Spent on the Case Although ODOC does not object to the overall number of hours Mr. VanValkenburg’s attorneys claim they spent on the case, it argues that he should only recover attorney fees for the hours spent litigating the state-law claim. Mr. VanValkenburg argues that the number of hours spent on each claim cannot be apportioned because there were common issues between the state and federal claims. While it is true that a prevailing plaintiff is only entitled to recover attorney fees for the claim upon which he prevailed, time spent on other claims is recoverable when “there are common issues among the claims.” Freedland v. Trebes, 986 P.2d 630, 632 (Or. App. 1999) (citation omitted). This is so because courts recognize it may take “roughly the same amount of time to litigate a case in which the successful claim was the sole claim as it took to litigate the case in which it was one among several claims.” Id. Accordingly, when common issues prevail
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among the claims, it is not “necessary to apportion the fees to reflect the lack of success on the other claims.” Id.
This case is precisely the case where, as a general matter, it would not make sense to try to apportion the time spent on litigating the state-law claim and the federal-law claim. The issues of fact and the issues of law were largely the same between both claims. The claims are grounded in the same legal theory—that the same discriminatory acts violated federal and state law. And Oregon’s antidiscrimination law largely incorporates federal law under the ADA. As such, it would have been nearly impossible for Mr. VanValkenburg’s attorneys to apportion their time. Furthermore, ODOC’s suggestion that I should award only 35% of the requested fees is completely arbitrary. Accordingly, because there were common issues of law and fact between both claims, I decline to reduce the fee award on the basis that Mr. VanValkenburg did not prevail on his federal claim.
That said, the time that Mr. VanValkenburg’s attorneys spent litigating the issue of whether he exhausted his administrative remedies, as required to pursue his federal claim, can be separated from the total number of hours spent litigating the case. While some of the evidence and testimony at that bench trial may have been helpful for the jury trial, in my view the exhaustion trial was too tangential to the underlying substantive merits of the state-law discrimination claim to conclude that the prevailing issues at the trial were common to the statelaw claim. Accordingly, Mr. VanValkenburg is not entitled to recover attorney fees for the time spent on litigating the issue of whether he exhausted his administrative remedies. I, therefore, reduce the attorney fee request by 11.7 hours for Ms. Payne and 9 hours for Mr. Ellis, which reflects the amount of time they claim they spent on litigating the exhaustion issue.
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b. Reasonable Hourly Rate Mr. Ellis reports that he typically bills $315 an hour and Ms. Payne reports that she typically bills $300 an hour. ODOC does not object to the hourly rates provided by Mr. VanValkenburg for his attorneys. Courts determine the reasonable hourly rate by looking at the fee customarily charged in the locality and the experience, reputation, and ability of the lawyers involved. Precision Seed Cleaners v. Country Mut. Ins. Co., 976 F. Supp. 2d 1228, 1243 (D. Or. 2013). In fact, it is wellsettled law that: The prevailing market rate in the community is indicative of a reasonable hourly rate . . . The fee applicant has the burden of producing satisfactory evidence, in addition to the affidavits of its counsel, that the requested rates are in line with those prevailing in the community for similar services of lawyers of reasonably comparable skill and reputation. Orme v. Burlington Coat Factory of Or., LLC, No. CV 07-859-MO, 2010 WL 1838740, at *1 (D. Or. May 3, 2010) (quoting Jordan v. Multnomah Cty., 815 F.2d 1258, 1262-63 (9th Cir. 1987)). In support of the attorney fees motion, Mr. VanValkenburg provided declarations from practitioners in the community who attested to their belief that his attorneys’ hourly rates are reasonable, given their reputation, experience, and level of expertise. The hourly rates are also within the range of what other attorneys charge in Portland according to the 2012 OSBAR report. For example, the average billing rate for personal injury Plaintiffs’ lawyers in Portland is between $239 per hour at the 25th percentile and $385 per hour at the 95th percentile. Given the specialty area within which Ms. Payne and Mr. Ellis practice, and their experience and reputation, I find that their billing rates are reasonable even though they are slightly higher than average for other attorneys with the same number of years of experience.
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c. Other Statutory Factors In determining the amount of attorney fees to award a prevailing plaintiff, I must consider the sixteen factors listed by statute. Or. Rev. Stat. § 20.075(1)-(2); Strawn I, 297 P.3d at 448-49. ODOC does not argue that Mr. VanValkenburg’s requested attorney fee award should be reduced based on any of these factors. Indeed, after reviewing these factors, I do not find any of them to be prejudicial to Mr. VanValkenburg, and thus, they do not require me to reduce the attorney fee award in this case.
B. Fee Multiplier In addition to an attorney fee award based on the hourly rate and number of hours expended, Mr. VanValkenburg argues I should award a fee multiplier to compensate his attorneys for the high degree of risk involved in this case. Specifically, Mr. VanValkenburg seeks a multiplier of x2.25. ODOC objects to the award of a fee multiplier. It argues there is no statutory support for doing so, and that there is no “common benefit” or “common fund” involved in this case. Although the argument is unclear, ODOC also suggests that a fee enhancement award is not available here because this is not a classic contingency fee case, whereby Mr. VanValkenburg’s attorneys only receive a portion of his recovery. First, it is clear under Oregon case law that I have discretion to award an enhancement to Mr. VanValkenburg’s requested regular attorney fees in the form of a fee multiplier. See Griffin By & Through Stanley v. Tri-Cty. Metro. Transp. Dist. of Or., 831 P.2d 42, 48 (Or. App. 1992), aff’d in part and rev’d in part on other grounds 870 P.2d 808 (Or. 1994). “Oregon law permits an enhancement of fees when it is supported by the facts and circumstances of the case.” Beck v. Metro. Prop. and Cas. Ins. Co., 3:13-cv-00879-AC, 2016 WL 4978411, at *22 (D. Or. Sept. 16, 2016). In some contingent fee cases, “attorneys may be compensated at a higher rate than what
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would be charged in a noncontingent fee setting.” Tanner v. Or. Health Scis. Univ., 980 P.2d 186, 189 (Or. App. 1999) (citation omitted); see also Moro v. Oregon, 384 P.3d 504, 519 (Or. 2016) (“[A] fee multiplier may be justified when the attorney’s payment is based on a contingency-fee arrangement or there is otherwise a delay in getting paid.”).
Second, while an Oregon court has approved the award of an attorney fee enhancement in a case where the proceeds were to be paid from a common fund, see Moro, 384 P.3d at 510, there is no support in that case or any other for ODOC’s proposition that fee enhancements are only available when they are to be paid out of a common fund. Further, there is no support for ODOC’s apparent proposition that fee enhancements are only available in classic contingency fee cases where attorney fee awards are based on a set percentage of the client’s recovery. In fact, Oregon cases support the proposition that fee enhancements are available under the contingency fee arrangement at issue in this case—one where statutory attorney fees are only available if the client is the prevailing party.4 See, e.g., Tanner, 980 P.2d at 189-90 (concerning a contingency fee case where the plaintiff could recover fees as the prevailing party based on the attorney’s hourly billing rate). Accordingly, ODOC’s argument that a fee multiplier is not available in this case is unavailing.
Having determined that I have the discretion to award a fee multiplier, I must now determine whether this is one of the cases where the award of a fee multiplier is appropriate, and if so, whether Mr. VanValkenburg’s requested multiplier of x2.25 is the appropriate amount. Typically, enhanced fee awards are appropriate in cases where the recovery was an “exceptional success,” even if plaintiffs did not prevail on all claims, and other favorable factors exist,
4 For further explanation, see Mariam-Webster’s Collegiate Dictionary 270 (11th ed. 2005), which defines “contingency fee” as “a fee for services (as of a lawyer) paid upon successful completion of the services.” While that fee is “usu[ally] calculated as a percentage of the gain realized for the client,” id., such a calculation is not the only way to arrive at the fee award under a contingency fee agreement, as the contingent nature of receiving the fee at all is the necessary element under the term.
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including “the difficulty and complexity of the issues involved in the case, the value of the interests at stake, as well as the skill and professional standing of lawyers involved.” Strunk v. Pub. Emps. Ret. Bd., 169 P.3d 1242, 1254 (Or. 2007); see also Strawn v. Farmers Ins. Co., MCCC Case No. 9908-09080 (J. Labarre) (“Farmers”), aff’d, 226 P.3d 86 (Or. App. 2010) (“Strawn II”) (awarding a fee multiplier based on counsel’s skill and “superb” performance, the “remarkable” results of the case, the enormous risk involved in litigating the case, the high damages award, and the fact that Oregon courts wanted to encourage litigation of consumer protection cases). I also consider the factors set out by statute for determining the amount of attorney fees to award in order to determine if an enhanced fee is appropriate. Or. Rev. Stat. § 20.075(1)-(2); Strawn II, 226 P.3d at 95 (explaining that a Court must consider the criteria set out in Or. Rev. Stat. 20.075(2) in determining whether to grant a fee enhancement, and if so, the amount).
In my view, most of the factors identified in Section 20.075 are neutral—they do not favor one party more than the other. For example, the conduct of the parties appeared to be reasonable, and their actions and diligence in litigating the case are in line with what I would expect in litigating a contentious case on difficult legal issues. The claims and defenses that both parties made appeared to be reasonable. Although ODOC conceded some of the elements of the state-law claim on the brink of trial, the information in the record does not persuade me that the timing was a result of bad faith or of wanting to drag out the litigation. In my experience, cases are often narrowed as the trial approaches because the parties focus on the issues more closely.
Several § 20.075 factors, however, weigh in favor of an attorney fee multiplier in this case. First, as ODOC concedes, Mr. VanValkenburg’s attorneys clearly attained an extraordinary result in this case. This is not simply reflected by the high damages award. It is
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also reflective of the high level of skill of Mr. VanValkenburg’s attorneys. For example, the merits of this case involved complex legal issues of first impression in antidiscrimination law, requiring Mr. VanValkenburg’s attorneys to make novel arguments of law and develop original jury instructions where no uniform instructions were available.
Second, this case involved a high degree of risk for Mr. VanValkenburg’s attorneys, given that they agreed to represent him on a contingency fee basis. The complex legal issues involved in the case and Mr. VanValkenburg’s sex offender conviction both increased the risk of loss beyond the risk associated with many civil rights cases. Given these challenges, Mr. VanValkenburg’s attorneys took on the case with great risk of no recovery at all.
Finally, an enhanced fee award in this case will serve to encourage other attorneys in Oregon to represent inmates in risky, complex, and difficult civil rights cases. In contrast, refusing to award an enhancement might deter attorneys from representing clients in these types of cases.
Under the above analysis, I find that a fee enhancement is appropriate in this case. I believe, however, that an enhancement of x2.25 is excessive. In my view, such an incredible amount should be reserved for the most unusual cases. In fact, awarding an extremely high fee enhancement may serve too much of a deterrent effect, in that it could deter defendants like ODOC from properly litigating close-call cases. Accordingly, after considering cases where courts have awarded a fee enhancement and the factors under Section 20.075, I find a fee multiplier of x1.75 to be appropriate in this case. Accordingly, I award $675,268.13 in attorney fees to Mr. VanValkenburg, which is an additional $290,050.63 above their usual fees based on their typical billing rate.
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C. Fees For Litigating Attorney Fees Motion In Mr. VanValkenburg’s response to ODOC’s objections to his attorney fees, he seeks reimbursement for the costs associated with litigating his attorney fee request. Specifically, he is seeking fees for the 18 hours Ms. Payne and 9.4 hours Mr. Ellis spent litigating the fee request. Courts may award fees for services provided in conjunction with the recovery of attorney fees. Emerald People’s Util. Dist. v Pacificorp, 801 P.2d 141, 143 (Or. 1990). “[T]he recovery of attorney fees, costs and expenses to which a prevailing party is entitled by statute is related to the prosecution or defense of the action.” Id. And, attorney fees for an attorney fee petition are related to the prosecution of the action. Id. Given Pacificorp, it is clear that I may award attorney fees to Mr. VanValkenburg for the costs associated with litigating their attorney fee petition. The time spent by Ms. Payne and Mr. Ellis is reasonable, and thus, I award the full fees requested, for a total amount of $8,605.00.5 The fee multiplier is not applied to this award. II. Costs and Disbursements Mr. VanValkenburg also seeks reimbursement for his costs in this case. ODOC objects to some of the costs on the grounds that they are not recoverable under federal law. For the following reasons, Mr. VanValkenburg may recover $18,155.19 in costs and disbursements. The Ninth Circuit applies “state law in determining not only the right to fees, but also [] the method of calculating the fees,” when the fees are based on state law claims. Mangold v. Cal. Pub. Utils. Comm’n, 67 F.3d 1470, 1478 (9th Cir. 1995) (explaining that “calculation of the amount of the fee is bound up in the substantive state right”). ODOC relies on Hunt v. City of Portland, CV 08-802-AC, 2011 WL 3555772 (D. Or. Aug. 11, 2011), to argue that federal law
5 Ms. Payne spent 18.5 hours on the attorney fee petition and response. At her hourly rate of $300 per hour, her attorney fees total $5,550. Mr. Ellis spent 9.4 hours on the attorney fee petition and response. At $325 per hour, his attorney fees total $3,055.
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governs the award of costs in this case. There, Judge Acosta applied Federal Rule of Civil Procedure 54 and federal statutory law to determine the award of costs in a case where the party prevailed on both federal and state-law claims. Id. at *5-6. But Judge Acosta did not analyze whether state or federal law governed the award of costs, so it is not clear why he applied federal law. It is possible that federal law governed in that case because the party prevailed on a mix of federal and state law claims. The Ninth Circuit clearly explained, however, in Mangold that state law governs in diversity cases where the plaintiff prevails on a state law claim, and thus, state law governs Mr. VanValkenburg’s petition for costs and disbursements.
Having determined that state law governs the award of costs in this case, I turn to the Oregon Rules of Civil Procedure to analyze what costs may be recovered by Mr. VanValkenburg. Oregon Rule of Civil Procedure 68 provides:
[C]osts and disbursements shall be allowed to the prevailing party unless these rules or any other rule or state direct that in the particular case costs and disbursements shall not be allowed to the prevailing party . . ., or unless the court otherwise directs. If, under a special provision of these rules or any other rule or statute, a party has a right to recover costs, that party shall also have a right to recover disbursements. Or. R. Civ. Pro. 68(B). Costs and disbursements are defined as: [R]easonable and necessary expenses incurred in the prosecution or defense of an action, other than for legal services, and include the fees of officers and witnesses; the expense of publication of summonses or notices, and the postage where the same are served by mail; . . . the expense of copying of any public record, book, or document admitted into evidence at trial; . . . ; and any other expense specifically allowed by agreement, by these rules, or by any other rule or statute. Or. R. Civ. Pro. 68(A)(2). In addition, courts have the discretion to award reasonable costs for interpreter services. Id. But the expense of depositions is not recoverable even if they were used at trial. Id.
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Based on Rule 68, Mr. VanValkenburg is entitled to recover his costs for witness subpoena fees ($93.59), copies of documents admitted into evidence ($421.40), and fees for service of summons ($226.75). I also find that Mr. VanValkenburg may recover costs for the use of interpreter services ($6,940.00). ODOC does not object to the cost for interpreter services, and given the nature of this case, such services were clearly a reasonable expense.
Mr. VanValkenburg also seeks to recover costs for several expert witnesses. First, he seeks to recover $5,080.95 in witness fees for Dr. Jean Andrews, who testified on his behalf at trial. In addition, he seeks to recover $4,817.50 in fees for three expert opinions he provided in support of his fee petition. Dr. Andrews’s expert witness fees are recoverable under Oregon Rule of Civil Procedure 68 as a cost incurred in the litigation. In addition, under Pacificorp, the fees for the expert opinions in support of Mr. VanValkenburg’s fee petition are also recoverable. 801 P.2d at 143 (explaining that courts may award “fees for services provided in conjunction with the recovery of the underlying [attorney] fees.”); see also Or., By and Through Dept. of Transp. v. Gonzales, 703 P.2d 271, 273 (Or. App. 1985). Accordingly, Mr. VanValkenburg is entitled to recover $9,898.45 in expert witness expenses for all four experts.
Finally, Mr. VanValkenburg is also entitled to recover a $575.00 prevailing party fee under Oregon Law. Or. Rev. Stat. § 20.190(2)(a)(B) (explaining that a party that has the right to recover costs and disbursements also has the right to recover the prevailing party fee). Although I have discretion to award an enhanced prevailing party fee under Oregon Law, see Or. Rev. Stat. § 20.190(3), I decline to do so here. I believe the fee multiplier already awarded is sufficient to compensate for the Section 20.190 factors that I already found weighed in favor of Mr. VanValkenburg. Those factors do not justify an additional prevailing party fee in this case.
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III. Litigation Expenses Finally, Mr. VanValkenburg seeks to recover $5,383.89 in litigation expenses. Specifically, Ms. Payne incurred out-of-pocket litigation expenses totaling $294.99 for copying costs, travel reimbursement, and parking expenses. She claims those expenses are not included in her hourly fee, as she typically bills clients for those expenses. Mr. Ellis’s litigation expenses total $2,098.92 and include expenses for postage, messenger charges, travel reimbursement, and focus group costs. He also states that these expenses are not included in his hourly rate and that he typically bills his clients separately for these expenses. Finally, Haglund Kelley LLP’s litigation expenses total $2,989.98 and they include expenses for filing fees, deposition costs, messenger service costs, and mileage costs. ODOC did not object to these expenses. Regardless of whether ODOC objected to the litigation expenses, Mr. VanValkenburg’s ability to recover the expenses is governed by state law, so I must review the itemized expenses to ensure they comport with what is allowed under the law. Under Oregon law, courts should “include expenses specially billed to the client in the attorney fees award when they are properly documented and are reasonable.” Willamette Prod. Credit Ass’n v. Borg-Warner Acceptance Corp., 706 P.2d 577, 580 (Or. App. 1985). These expenses are separate from an attorney’s hourly rate. Id.; see also Strawn II, 266 P.3d at 96. Here, Haglund Kelly LLP seeks to recover $1,459.10 in deposition costs as litigation expenses even though those costs are not recoverable under Oregon Rule of Civil Procedure 68. I do not believe circumventing Rule 68 by charging such costs as litigation expenses is appropriate. See Robinowitz v. Pozzi, 872 P.2d 993, 997 (Or. App. 1994) (explaining that the “trial court had no authority to circumvent the distinction in ORCP 68 between attorney fees and
17 – OPINION AND ORDER

Case 3:14-cv-00916-MO Document 240 Filed 06/09/17 Page 18 of 18
costs by including what are unrecoverable costs as attorney fees”). Accordingly, I decline to award deposition costs as part of the litigation expenses.
All other litigation expenses are reasonable, and thus, Mr. VanValkenburg is entitled to recover a total of $3,924.79 in litigation expenses. This includes $294.99 in litigation expenses for Ms. Payne, $2,098.92 in litigation expenses for Mr. Ellis, and $1,530.88 in litigation expenses for Hanglund Kelly LLP.
CONCLUSION Pursuant to the above analysis, Mr. VanValkenburg is entitled to recover attorney fees, costs, and litigation expenses. Specifically, I award Mr. VanValkenburg $683,873.13 in attorney fees, $18,155.19 in costs, and $3,924.79 in litigation expenses. IT IS SO ORDERED. DATED this __9_t_h_ day of June, 2017.
__/s_/_M__i_c_h_a_e_l__W_._M__o_s_m__a_n______
MICHAEL W. MOSMAN Chief United States District Judge
18 – OPINION AND ORDER

 
 Case 3:14-cv-916 As of 01/29/2019 12:37 PM PST Page 1 of 20 Page ID#: <pageID>
CT,JT,PARTCONS,PROTECTIVE ORD,TERMINATED
U.S. District Court District of Oregon (Portland (3)) CIVIL DOCKET FOR CASE #: 3:14−cv−00916−MO

VanValkenburg v. Oregon Department of Corrections Assigned to: Chief Judge Michael W. Mosman Demand: $460,000 Case in other court: Multnomah County Circuit Court,
140505831
Ninth Circuit Court of Appeals, 17−35203
9th Circuit Court of Appeals, 17−35222 Cause: 42:12102 Americans With Disabilities Act
Plaintiff

Date Filed: 06/06/2014 Date Terminated: 02/08/2017 Jury Demand: Both Nature of Suit: 446 Civil Rights: Americans with Disabilities Act − Other Jurisdiction: Federal Question

David VanValkenburg

represented by Matthew C. Ellis Law Office of Matthew C. Ellis 621 SW Morrison St. Suite 1025 Portland, OR 97205 503−345−5497 Email: matthew@employmentlawpdx.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Shenoa L. Payne Richardson Wright LLP Fox Tower 805 SW Broadway Suite 470 Portland, OR 97205 503−517−8203 Fax: 503−296−2296 Email: shenoa@richardsonwright.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Oregon Department of Corrections

represented by Heather J. Van Meter Oregon Department of Justice 1162 Court Street, NE Salem, OR 97301−4096 503−947−4700 Fax: 503−947−4791 Email: heather.j.vanmeter@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
Shannon M. Vincent Oregon Department of Justice Trial Division, CLS 1162 Court Street, NE Salem, OR 97301−0346 503−947−4700 Fax: 503−947−4791 Email: shannon.m.vincent@doj.state.or.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case 3:14-cv-916 As of 01/29/2019 12:37 PM PST Page 2 of 20 Page ID#: <pageID>

Denise G. Fjordbeck State of Oregon Department of Justice 1162 Court, NE Salem, OR 97301 (503) 378−4402 Fax: (503) 378−6306 Email: denise.fjordbeck@doj.state.or.us ATTORNEY TO BE NOTICED

Amicus HEARD

represented by Jesse A. Merrithew Levi Merrithew Horst LLP 610 SW Alder St. Suite 415 Portland, OR 97205 971−229−1241 Fax: 971−544−7092 Email: jesse@lmhlegal.com ATTORNEY TO BE NOTICED

Date Filed 06/06/2014
06/06/2014
06/13/2014 06/19/2014 06/19/2014 06/23/2014 06/24/2014 06/25/2014 06/25/2014
06/30/2014
07/01/2014

# Docket Text
1 Notice of Removal of Case Number 1400505831 from Multnomah. DEMAND FOR JURY TRIAL Filing Fee in amount of $400 collected. Agency Tracking ID: 0979−3708757 issued.. Filed by Oregon Department of Corrections (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B). (Vincent, Shannon) (Entered: 06/06/2014)
2 Notice of Case Assignment to Judge Anna J. Brown and Discovery and Pretrial Scheduling Order. Discovery is to be completed by 10/6/2014. Joint Alternate Dispute Resolution Report is due by 11/3/2014. Pretrial Order is due by 11/3/2014. Ordered by Judge Anna J. Brown. (cib) (Entered: 06/06/2014)
3 Motion to Dismiss (Partial). Oral Argument requested. Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 06/13/2014)
4 Fed. R. Civ. P. 26(a)(1) Agreement . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 06/19/2014)
5 Report of the Parties' Rule 26 Conference. Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 06/19/2014)
6 Stipulated Motion for Protective Order . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 06/23/2014)
7 Stipulated Protective Order: Granting Motion for a Protective Order 6 . Signed on 06/24/2014 by Judge Anna J. Brown. See attached Stipulated Protective Order. (bb) (Entered: 06/24/2014)
8 Memorandum in Opposition to Motion to Dismiss (Partial) 3 . Filed by David VanValkenburg. (Payne, Shenoa) Modified docket text on 6/27/2014 (cib). (Entered: 06/25/2014)
9 Declaration of Matthew C. Ellis in Opposition to Defendant's Partial Motion to Dismiss. Filed by David VanValkenburg. (Related document(s): Motion to Dismiss 3 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3) (Payne, Shenoa) (Entered: 06/25/2014)
10 Order to Show Cause. The Court ORDERS Defendant to perfect the removal or show cause in writing by July 11, 2014, why this Court should not on its own motion remand this matter to Multnomah County Circuit Court. See attached Order to Show Cause. (bb) (Entered: 06/30/2014)
11 Response to Order to Show Cause . Filed by Oregon Department of Corrections. (Attachments: # 1 Exhibit A (part 1 of 2), # 2 Exhibit A (part 2 of 2), # 3 Exhibit B, #

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07/08/2014
07/14/2014 07/25/2014 08/27/2014 09/15/2014
09/16/2014 09/19/2014 10/06/2014 10/14/2014 10/16/2014 10/17/2014 10/17/2014

4 Exhibit C) (Vincent, Shannon) (Entered: 07/01/2014)
12 ORDER: The Court acknowledges receipt of Plaintiff's 7/1/2014 Response 11 to the Court's Order 10 to Show Cause issued 6/30/2014 and finds Plaintiff has satisfied the removal issues raised in the Order. The Court regrets the error in overlooking Defendant's filing of its Motion 3 , and the Court thanks Defendant for supplementing the record as to the other matters. Ordered by Judge Anna J. Brown. (mr) (Entered: 07/08/2014)
13 Reply in Support of Defendant Oregon Department of Corrections' Partial Motion to Dismiss Plaintiff's Complaint. Filed by Oregon Department of Corrections. (Related document(s): Motion to Dismiss 3 .) (Vincent, Shannon) (Entered: 07/14/2014)
14 Notice of Association of Attorney Shannon M. Vincent,Heather J. Van Meter for Oregon Department of Corrections. Filed by Oregon Department of Corrections (Vincent, Shannon) (Entered: 07/25/2014)
15 Scheduling Order by Judge Anna J. Brown. Oral Argument on Motion to Dismiss (Partial) 3 is SET for 9/15/2014 at 10:00 AM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 08/27/2014)
17 MINUTES of Proceedings: Oral Argument on Motion to Dismiss 3 . Parties to file a supplemental notice of authority. Rule 16 Conference held. Joint Status Reports due 10/17/2014, 12/17/2014, 2/17/2015 and 4/17/2015, regarding any discovery disputes that are ripe for the Courts resolution. Amended Complaint due no later than 10/06/2014; response to Amended Complaint due no later than 10/20/2014; reply due no later than 10/27/2014. Amendment to pleadings/joining of parties due no later than 1/9/2015. Discovery is to be completed by 4/17/2015. The last date to file any discovery motion is 4/3/2015, and responses to such motions are due no later than seven (7) calendar days after the initiating motion is filed; no replies are permitted for discovery motions. Initial expert disclosures are due no later than 3/2/2015. Rebuttal expert disclosures are due no later than 3/30/2015. Joint Statement of Agreed Material Facts due 5/8/2015. Updated Joint Alternate Dispute Resolution Report is due 5/8/2015. Dispositive Motions are due by 5/22/2015. Jointly proposed Pretrial order/jointly proposed Verdict form shall be filed by 9/30/2015. Pretrial Documents are due 10/8/2015 by NOON. Pretrial Conference is SET for 10/21/2015 at 09:00 AM in Portland Courtroom 14A before Judge Anna J. Brown. Jury Trial (6 days) is SET for 10/27/2015 at 09:00 AM in Portland Courtroom 14A before Judge Anna J. Brown. See attached Case−Management Order. Matthew Ellis, Shenoa Payne present as counsel for plaintiff(s). Heather Van Meter, Shannon Vincent present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 09/17/2014)
16 Notice re Motion to Dismiss 3 Supplemental Authorities Filed by David VanValkenburg (Related document(s): Motion to Dismiss 3 .) (Payne, Shenoa) (Entered: 09/16/2014)
18 Supplement (titled Supplemental Authorities in Support of Partial Motion to Dismiss). Filed by Oregon Department of Corrections. (Related document(s): Motion to Dismiss 3 .) (Van Meter, Heather) (Entered: 09/19/2014)
19 First Amended Complaint . Filed by David VanValkenburg against Oregon Department of Corrections. (Ellis, Matthew) (Entered: 10/06/2014)
20 Unopposed Motion for Extension of Time to Respond to Amended Complaint, Motion for Extension of Time to Answer . Filed by All Defendants. (Van Meter, Heather) (Entered: 10/14/2014)
21 ORDER by Judge Anna J. Brown. Granting Unopposed Motion for Extension of Time to Respond to Amended Complaint 20 . Answer or responsive pleading to the First Amended Complaint 19 is now due two weeks after the Court's ruling on Defendant's pending Motion to Dismiss 3 . (bb) (Entered: 10/16/2014)
22 Unopposed Motion for Extension of Time . Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 10/17/2014)
23 Declaration of Shannon Vincent . Filed by Oregon Department of Corrections. (Related document(s): Motion for Extension of Time 22 .) (Van Meter, Heather)

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10/20/2014 10/30/2014 10/30/2014 11/04/2014
11/13/2014 11/17/2014 11/21/2014 11/21/2014 11/25/2014 12/11/2014

(Entered: 10/17/2014)
24 ORDER: Granting Defendant's Unopposed Motion 22 for Extension of Time to file Joint Status Report. Joint Status Report is due by 10/31/2014. The Court provides additional time to ensure that the parties complete full and meaningful conferral on disputed discovery issues before submitting them to the Court for its consideration. Ordered by Judge Anna J. Brown. (sm) (Entered: 10/20/2014)
25 Joint Status Report . Filed by David VanValkenburg. (Attachments: # 1 Exhibit A) (Payne, Shenoa) (Entered: 10/30/2014)
26 Opinion and Order: The Court DENIES Defendant's Partial Motion 3 to Dismiss Plaintiff's Complaint. Signed on 10/30/2014 by Judge Anna J. Brown. See attached 24 page Opinion and Order for full text. (bb) (Entered: 10/30/2014)
27 Order by Judge Anna J. Brown. The Court has reviewed the Joint Status Report 25 of the parties and directs the parties as follows: 1. Pursuant to Local Rule 37−1(a), the parties must not file in the record their various discovery requests and responses served on each other. The point of the Court's previous directions to the parties regarding an informal submission of discovery disputes was to provide a format for the parties to articulate concisely any ripe, disputed discovery issue and the parties positions about such disputes. At this stage the Court declines to review the parties' historical discovery requests and responses attached to their Joint Status Report 25 . 2.Defendant asserted in the Joint Status Report that various disputes were not ripe for resolution either because the parties were waiting for the Court's ruling 6 on Defendant's previously pending Motion 3 or for other reasons. The Court concludes it was improvident to condition the submission of disputes on an agreement by both parties that the dispute was ripe. Accordingly, the Court will hear the merits of any discovery dispute that either party believes is ripe provided there has, in fact, been meaningful conferral about the dispute between lead lawyers for each party in real time (i.e., not by unilateral messaging). 3. The Court directs the parties to confer again and to submit as soon as practicable an updated, single filing that articulates concisely (preferably in chart form); (a) any discovery issue on which there has been full conferral and either party presently seeks a ruling; (b) the specific position of each party as to the dispute; and(c) the basis for the position taken by each party as to the dispute.Upon receipt thereof, the Court will determine whether it can rule on the record of the updated submission or whether a hearing will be necessary, and the Court will advise the parties accordingly. (bb) (Entered: 11/04/2014)
28 Answer to 19 Amended Complaint with Jury Demand . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 11/13/2014)
29 Status Report by David VanValkenburg. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 11/17/2014)
30 Scheduling Order by Judge Anna J. Brown. Hearing on Plaintiff's Status Report 29 is SET for 11/25/2014 at 01:30 PM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 11/21/2014)
31 Scheduling Order by Judge Anna J. Brown. Due to a conflict in the Court's schedule, the hearing on Plaintiff's Status Report 29 is RESET AS TO TIME ON TO 11/25/2014 at 11:00 AM in Portland Courtroom 14A before Judge Anna J. Brown. (bb) (Entered: 11/21/2014)
32 Scheduling Order by Judge Anna J. Brown. Due to a conflict in the Court's schedule, the Discovery Hearing set for 11/25/2014 is VACATED and is RESET for 12/11/2014 at 02:00 PM in Portland Courtroom 14A before Judge Anna J. Brown. The Court is requesting that the parties appear in person. (bb) (Entered: 11/25/2014)
33 MINUTES of Proceedings: Discovery Hearing held before Judge Anna J. Brown. Formal Order to Issue. Further Discovery Hearing is set for 2/13/2015 at 01:30PM in Portland Courtroom 14A before Judge Anna J. Brown. Joint Status Report is now due by NOON on 2/10/2015. Matthew C. Ellis and Shenoa L. Payne present as counsel for plaintiff(s). Heather J. Van Meter and Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (pvh) (Entered: 12/15/2014)

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12/22/2014
01/05/2015 01/20/2015 01/20/2015 01/27/2015 02/02/2015
02/10/2015 02/13/2015
03/18/2015 03/18/2015 03/20/2015 04/08/2015 04/17/2015 04/20/2015 04/23/2015

34 Order. Defendant shall file its opening brief concerning accommodations Defendant made for other deaf inmates no later than January 5, 2015. Plaintiff's response brief is due no later than January 20, 2015. Defendant's optional reply brief is due no later than January 27, 2015, at which time the Court will take that issue under advisement. The Court SETS an additional discovery hearing on February 13, 2015, at 1:30 p.m. The parties shall file a joint status report no later than Noon on February 10, 2015, in which the parties enumerate any ripe issues they request the Court to address at the discovery hearing. Signed on 12/22/2014 by Judge Anna J. Brown. (bb) (Entered: 12/22/2014)
35 Memorandum Regarding Protection of Individually Identifiable Health Information. Filed by Oregon Department of Corrections. (Related document(s): Order,, 34 .) (Vincent, Shannon) (Entered: 01/05/2015)
36 Response Memorandum Regarding Protection of Individually Identifiable Health Information. Filed by David VanValkenburg. (Related document(s): Memorandum 35 , Order,, 34 .) (Attachments: # 1 Appendix A) (Payne, Shenoa) (Entered: 01/20/2015)
37 Declaration of Shenoa L. Payne. Filed by David VanValkenburg. (Related document(s): Response 36 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Payne, Shenoa) (Entered: 01/20/2015)
38 Reply in Support of Defendant's Memorandum Regarding Protection of Individually Identifiable Health Information. Filed by Oregon Department of Corrections. (Related document(s): Memorandum 35 .) (Vincent, Shannon) (Entered: 01/27/2015)
39 Opinion and Order. The Court ORDERS Defendant to provide substantive responses to Plaintiff's discovery requests consistent with this Opinion and Order no later than February 27, 2015. Signed on 02/02/2015 by Judge Anna J. Brown. See attached 10 page Opinion and Order for full text. (bb) (Entered: 02/02/2015)
40 Joint Status Report . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 02/10/2015)
41 MINUTES of Proceedings: Discovery Conference held.Matthew Ellis, Shenoa Payne present as counsel for plaintiff(s). Heather Van Meter, Shannon Vincent present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 02/19/2015)
42 Stipulation to File Second Amended Complaint by David VanValkenburg. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 03/18/2015)
43 Second Amended Complaint . Filed by David VanValkenburg against Oregon Department of Corrections. (Ellis, Matthew) (Entered: 03/18/2015)
44 Order by Judge Anna J. Brown. Answer or responsive pleading to Second Amended Complaint 43 is due by 4/8/2015. (bb) (Entered: 03/20/2015)
45 Answer to 43 Amended Complaint with Jury Demand (titled "Defendant's Answer and Defenses to Plaintiff's Second Amended Complaint"). Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 04/08/2015)
46 Joint Status Report by David VanValkenburg. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 04/17/2015)
47 Scheduling Order by Judge Anna J. Brown. Status Conference is set for 4/23/2015 at 11:00AM in Portland by telephone before Judge Anna J. Brown. The parties to call the court's conference line. Ordered by Judge Anna J. Brown. (dls) (Entered: 04/20/2015)
48 MINUTES of Proceedings: Telephone Status Conference held. The Court reviewed with the parties their Joint Status Report 46 and, in the exercise of its case management discretion, the Court resets the case−management schedule as follows: Discovery is extended from 4/17/2015, to be completed by 8/17/2015. The last date to file any discovery motion is 8/3/2015, and responses to such motions are due no later than seven (7) calendar days after the initiating motion is filed. Initial expert disclosures are extended from 3/2/2015, due no later than 7/20/2015. Rebuttal expert disclosures are extended from 3/30/2015, due no later than 8/7/2015. Dispositive Motions are extended from 5/22/2015, due by 9/11/2015. Joint Statement of Agreed Material Facts extended from 5/8/2015, due 8/31/2015. If none is filed the court will maintain the previously set pretrial conference date of 10/21/2015 and the 6 day Jury

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06/16/2015 06/16/2015 06/16/2015 07/10/2015 07/10/2015 07/10/2015 07/13/2015 07/13/2015 07/14/2015
07/17/2015 07/27/2015 07/27/2015

Trial set for 10/27/2015. If a Joint Statement of Agreed Material Facts is filed the alternative trial schedule is as follows: Pretrial Order is due by 1/25/2016. Trial Papers due 2/5/2016. Pretrial Conference is set for 2/18/2016 at 09:00AM in Portland Courtroom 14A before Judge Anna J. Brown. Jury Trial is set for 2/23/2016 at 09:00AM in Portland Courtroom 14A before Judge Anna J. Brown. Status Report is due by 8/31/2015. Matthew C. Ellis and Shenoa L. Payne present as counsel for plaintiff(s). Heather Van Meter present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (dls) (Entered: 04/23/2015)
49 Motion for Summary Judgment . Oral Argument requested. Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 06/16/2015)
50 Declaration of Heather Van Meter in Support of Defendant's Motion for Summary Judgment. Filed by Oregon Department of Corrections. (Related document(s): Motion for Summary Judgment 49 .) (Van Meter, Heather) (Entered: 06/16/2015)
51 Joint Concise Statement of Material Fact . Filed by Oregon Department of Corrections. (Related document(s): Motion for Summary Judgment 49 .) (Van Meter, Heather) (Entered: 06/16/2015)
52 Response in Opposition to Motion for Summary Judgment 49 Oral Argument requested. Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 07/10/2015)
53 Declaration of Shenoa L. Payne in Opposition to Defendant's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Response in Opposition to Motion 52 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Payne, Shenoa) (Entered: 07/10/2015)
54 Declaration of David D. VanValkenburg in Opposition to Defendant's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Response in Opposition to Motion 52 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Payne, Shenoa) (Entered: 07/10/2015)
55 Unopposed Motion for Extension of Time to Extend Expert Disclosure Deadline. Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 07/13/2015)
56 Declaration of Shenoa L. Payne . Filed by David VanValkenburg. (Related document(s): Motion for Extension of Time 55 .) (Payne, Shenoa) (Entered: 07/13/2015)
57 ORDER: In light of the fact that Plaintiff's counsel has advised the Court that Plaintiff intends to file a dispositive motion by 9/11/2015, the previously−set deadline for dispositive motions, the Court will hold Defendant's Motion 49 for Summary Judgment in abeyance until the Court can address all dispositive motions at one time. When all dispositive motions have been received, the Court will determine whether oral argument is needed.
The tentatively set trial date of 10/27/2015 is hereby STRICKEN, and a jury trial (6 days) will be held on 2/23/2016. As previously ordered, the Pretrial Order and proposed Verdict Form are due on 1/25/2016, Pretrial Documents are due 2/5/2016, and the Pretrial Conference will be held on 2/18/2016 at 9:00 a.m. in Courtroom 14A. An updated Joint ADR Report is due 8/7/2015. Ordered by Judge Anna J. Brown. Modified on 7/14/2015 to correct ADR report date. (mr) (Entered: 07/14/2015)
58 ORDER: At the parties' request the Court extends the Expert Disclosure Deadlines as follows: Initial Expert Disclosures due no later than 8/10/15 and Rebuttal Expert disclosures due no later than 8/28/15. All other case−management dates remain in effect as previously set. Ordered by Judge Anna J. Brown. (mr) (Entered: 07/17/2015)
59 Reply to Motion for Summary Judgment 49 . Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 07/27/2015)
60 Second Declaration of Heather J. Van Meter in Support of Defendant's Motion for Summary Judgment. Filed by Oregon Department of Corrections. (Related document(s): Reply to Motion 59 , Motion for Summary Judgment 49 .) (Van Meter, Heather) (Entered: 07/27/2015)

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07/27/2015 07/27/2015 08/04/2015 08/28/2015 08/28/2015 08/31/2015 08/31/2015
09/11/2015 09/17/2015 09/17/2015 09/18/2015 09/18/2015 09/18/2015
09/18/2015

61 Declaration of Becky Boast . Filed by Oregon Department of Corrections. (Related document(s): Motion for Summary Judgment 49 .) (Van Meter, Heather) (Entered: 07/27/2015)
62 Declaration of Scott Sanetel . Filed by Oregon Department of Corrections. (Related document(s): Motion for Summary Judgment 49 .) (Van Meter, Heather) (Entered: 07/27/2015)
63 Joint ADR Report . Filed by David VanValkenburg.(Payne, Shenoa) (Entered: 08/04/2015)
64 Motion for Partial Summary Judgment titled "Defendant's Second Motion for Summary Judgment (Partial Summary Judgment". Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 08/28/2015)
65 Declaration of Heather J. VanMeter . (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Oregon Department of Corrections. (Related document(s): Motion for Partial Summary Judgment 64 .) (Van Meter, Heather) (Entered: 08/28/2015)
66 Scheduling Order by Judge Anna J. Brown. Telephonic Conference is SET for 8/31/2015 at 01:30 PM in Portland Courtroom 14A before Judge Anna J. Brown. Counsel were emailed the conference call in number. (bb) (Entered: 08/31/2015)
67 MINUTES of Proceedings: Scheduling Conference held. Any supplemental joint Statement of Agreed Facts is due 09/11/2015. Response to Motion for Partial Summary Judgment 64 is due 10/09/2015; reply is due 10/21/2015. Plaintiff's Motion for Summary Judgment is due 09/18/2015. Response is due 10/9/2015; reply is due 10/21/2015. Oral Argument is SET for 11/13/2015 at 9:00 am in Courtroom 14A. Matthew Ellis, Shenoa Payne present as counsel for plaintiff(s). Heather Van Meter present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 09/02/2015)
68 Supplemental Concise Statement of Material Fact for Plaintiff's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Motion for Summary Judgment 49 .) (Ellis, Matthew) (Entered: 09/11/2015)
69 Motion to File Excess Pages to Memorandum in Support of Plaintiff's Motion for Summary Judgment. Expedited Hearing requested. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 09/17/2015)
70 Declaration of Matthew C. Ellis in Support of Plaintiff's Motion to File Excess Pages to Memorandum in Support of Plaintiff's Motion for Summary Judgment.. Filed by David VanValkenburg. (Related document(s): Motion to File Excess Pages 69 .) (Ellis, Matthew) (Entered: 09/17/2015)
71 ORDER by Judge Anna J. Brown. Granting Plaintiff's Motion to Allow Filing of a Legal Memorandum in Support of His Motion for Summary Judgment that Exceeds Page Limits 69 . Plaintiff is grant leave to file a brief of no more than 42 pages. (bb) (Entered: 09/18/2015)
72 Motion for Partial Summary Judgment . Oral Argument requested. Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 09/18/2015)
73 Declaration of Jean F. Andrews, PH.D in Support of Plaintiff's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Motion for Partial Summary Judgment 72 .) (Attachments: # 1 Exhibit A (Part 1 of 14), # 2 Exhibit A (Part 2 of 14), # 3 Exhibit A (Part 3 of 14), # 4 Exhibit A (Part 4 of 14), # 5 Exhibit A (Part 5 of 14), # 6 Exhibit A (Part 6 of 14), # 7 Exhibit A (Part 7 of 14), # 8 Exhibit A (Part 8 of 14), # 9 Exhibit A (Part 9 of 14), # 10 Exhibit A (Part 10 of 14), # 11 Exhibit A (Part 11 of 14), # 12 Exhibit A (Part 12 of 14), # 13 Exhibit A (Part 13 of 14), # 14 Exhibit A (Part 14 of 14)) (Payne, Shenoa) (Entered: 09/18/2015)
74 Declaration of Merle Baldridge in Support of Plaintiff's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Motion for Partial Summary Judgment 72 .) (Payne, Shenoa) (Entered: 09/18/2015)

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09/18/2015
09/18/2015
09/18/2015
09/18/2015
09/28/2015 09/29/2015 10/06/2015
10/09/2015 10/09/2015 10/09/2015 10/09/2015 10/09/2015 10/09/2015
10/20/2015 10/21/2015 10/21/2015 10/21/2015

75 Declaration of Matthew C. Ellis in Support of Plaintiff's Motion for Summary Judgment. (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by David VanValkenburg. (Related document(s): Motion for Partial Summary Judgment 72 .) (Attachments: # 1 Exhibit A) (Payne, Shenoa) (Entered: 09/18/2015)
76 Declaration of Nina E. Festa in Support of Plaintiff's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Motion for Partial Summary Judgment 72 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Payne, Shenoa) (Entered: 09/18/2015)
77 Declaration of Shenoa L. Payne in Support of Plaintiff's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Motion for Partial Summary Judgment 72 .) (Attachments: # 1 Exhibit A (Part 1 of 2), # 2 Exhibit A (Part 2 of 2), # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I) (Payne, Shenoa) (Entered: 09/18/2015)
78 Declaration of David D. VanValkenburg in Support of Plaintiff's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Motion for Partial Summary Judgment 72 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E) (Payne, Shenoa) (Entered: 09/18/2015)
79 Motion to Appear as Amicus Curiae . Filed by HEARD. (Attachments: # 1 Exhibit Proposed Brief) (Merrithew, Jesse) (Entered: 09/28/2015)
80 Response in Opposition to Motion to Appear as Amicus Curiae 79 . Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 09/29/2015)
81 Scheduling Order by Judge Anna J. Brown.Oral Argument set for 11/13/2015 is VACATED and is RESET for 11/16/2015 at 9:00 AM in Courtroom 14A regarding Motion for Summary Judgment 49 , Motion for Partial Summary Judgment 72 and Motion to Appear as Amicus Curiae 79 . (bb) (Entered: 10/06/2015)
82 Response to Motion for Partial Summary Judgment 72 . Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 10/09/2015)
83 Declaration of Heather J. VanMeter . (DOCUMENT RESTRICTED ACCORDING TO PROTECTIVE ORDER) Filed by Oregon Department of Corrections. (Related document(s): Response to Motion 82 .) (Van Meter, Heather) (Entered: 10/09/2015)
84 Declaration of Kimberly Hendricks . Filed by Oregon Department of Corrections. (Related document(s): Response to Motion 82 .) (Van Meter, Heather) (Entered: 10/09/2015)
85 Declaration of Leonard Blix . Filed by Oregon Department of Corrections. (Related document(s): Response to Motion 82 .) (Van Meter, Heather) (Entered: 10/09/2015)
86 Declaration of Marica Ventura . Filed by Oregon Department of Corrections. (Related document(s): Response to Motion 82 .) (Van Meter, Heather) (Entered: 10/09/2015)
87 Memorandum in Opposition to Motion for Partial Summary Judgment titled "Defendant's Second Motion for Summary Judgment (Partial Summary Judgment" 64 Oral Argument requested. Filed by David VanValkenburg. (Payne, Shenoa) Modified docket text on 10/20/2015 (cib). (Entered: 10/09/2015)
88 Supplemental Declaration of Heather J. Van Meter . Filed by Oregon Department of Corrections. (Related document(s): Response to Motion 82 .) (Van Meter, Heather) (Entered: 10/20/2015)
89 Reply In Support of Plaintiff's to Motion for Partial Summary Judgment 72 . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 10/21/2015)
90 Supplemental Declaration of David D. VanValkenburg In Support of Plaintiff's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Reply to Motion 89 .) (Payne, Shenoa) (Entered: 10/21/2015)
91 Supplemental Declaration of Shenoa L. Payne In Support of Plaintiff's Motion for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Reply to Motion 89 .) (Attachments: # 1 Exhibit J, # 2 Exhibit K) (Payne, Shenoa) (Entered:

Case 3:14-cv-916 As of 01/29/2019 12:37 PM PST Page 9 of 20 Page ID#: <pageID>

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12/07/2015 12/07/2015 01/05/2016 02/04/2016
02/16/2016

10/21/2015)
92 Reply to Motion for Partial Summary Judgment titled "Defendant's Second Motion for Summary Judgment (Partial Summary Judgment" 64 . Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 10/21/2015)
93 Order by Judge Anna J. Brown. In light of the lapses in communication that apparently caused HEARD to miss the deadline to file a motion to appear as amicus curiae and in the interest of justice, the Court excuses the late filing of HEARD's Motion 79 to Appear as Amicus Curiae and GRANTS HEARD's Motion. The Court directs HEARD to re−file no later than November 3, 2015, as a separate document and as its Amicus Brief that which was attached to HEARD's Motion as Exhibit 1. In addition, the Court finds the parties should be given an opportunity to respond to arguments presented in HEARD's amicus brief. Accordingly, no later than November 10, 2015, Plaintiff and Defendant may file optional supplemental memoranda, not to exceed 10 pages each, that respond to arguments contained in HEARD's memorandum. Finally, counsel for HEARD may participate in oral argument on November 16, 2015, at 9:00 a.m. (bb) (Entered: 10/29/2015)
94 Brief of Amicus Curiae. Filed by HEARD. (Related document(s): Motion for Partial Summary Judgment 72 .) (Merrithew, Jesse) (Entered: 10/30/2015)
95 Response to Amicus Curiae HEARD's Brief. Filed by Oregon Department of Corrections. (Related document(s): Brief 94 .) (Van Meter, Heather) (Entered: 11/10/2015)
96 Declaration of Heather J. Van Meter in Support of Defendant's Response to Amicus Curiae HEARD's Brief. Filed by Oregon Department of Corrections. (Related document(s): Response 95 .) (Van Meter, Heather) (Entered: 11/10/2015)
97 MINUTES of Proceedings: Oral Argument on Motion for Summary Judgment 49 , Motion for Partial Summary Judgment 64 and Motion for Partial Summary Judgment 72 . Optional Simultaneous supplemental briefing is due no later than 12/7/2015. Motions will go under advisement 12/7/2015. The Court STRIKES all pending case−management dates. Matthew Ellis, Shenoa Payne present as counsel for plaintiff(s). Heather Van Meter, Shannon Vincent, Jesse Merrithew (Amicus) present as counsel for defendant(s). Court Reporter: Amanda LeGore. Judge Anna J. Brown presiding. (bb) (Entered: 11/18/2015)
98 Supplemental Brief In Opposition to Defendant's Motions for Summary Judgment. Filed by David VanValkenburg. (Related document(s): Motion for Partial Summary Judgment 64 , Motion for Summary Judgment 49 , Motion for Partial Summary Judgment 72 .) (Attachments: # 1 Exhibit A) (Ellis, Matthew) (Entered: 12/07/2015)
99 Supplemental Brief Re: Summary Judgment. Filed by Oregon Department of Corrections. (Related document(s): Declaration, 54 , Response in Opposition to Motion 52 , Motion for Summary Judgment 49 .) (Van Meter, Heather) (Entered: 12/07/2015)
100 Notice of Change of Address. Filed by David VanValkenburg (Payne, Shenoa) (Entered: 01/05/2016)
101 ORDER: The Court GRANTS in part and DENIES in part Defendants Motion 49 for Summary Judgment and Defendants Second Motion 64 for Partial Summary Judgment. The Court also DENIES Plaintiffs Motion 72 for Partial Summary Judgment in its entirety. The Court directs the parties to confer and to submit no later than February 16, 2016, an updated, jointly proposed case management schedule for the Courts consideration in which the parties address all further motion practice and proceedings needed before the filing of a final Pretrial Order and the scheduling of a firm jury−trial date, including any additional briefing regarding the applicability of Oregon Revised Statute§ 30.650. Signed on 02/04/2016 by Judge Anna J. Brown. (bb) (Entered: 02/04/2016)
102 Joint Motion for Extension of Time (titled) Joint Proposed Schedule for Additional Briefing and Pretrial Order. Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 02/16/2016)

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103 Response Additional Briefing Re: ORS 30.650. Filed by Oregon Department of Corrections. (Related document(s): Order on motion for summary judgment, Order on motion for partial summary judgment,,,,,,,,,, 101 .) (Van Meter, Heather) (Entered: 03/07/2016)
104 Declaration of Heather Van Meter in Support of Defendant's Additional Briefing Re: ORS 30.650. Filed by Oregon Department of Corrections. (Related document(s): Response 103 .) (Van Meter, Heather) (Entered: 03/07/2016)
105 ORDER: Granting Joint Motion for Extension of Time (titled) Joint Proposed Schedule for Additional Briefing and Pretrial Order 102 . The deadline for Defendant's supplemental briefing re ORS 30.650 is now due 03/07/2016. Deadline for Plaintiff's response to supplemental briefing is due 03/21/2016. Deadline for Defendant's reply (if any) is due 03/28/2016. Matter will go under advisement 3/28/2016. Jointly proposed Pretrial Order and proposed Verdict form is due by 6/16/2016. Pretrial documents are due no later than 06/30/2016 by NOON. Pretrial Conference is SET for 7/21/2016 at 10:00 AM in Portland Courtroom 14A before Judge Anna J. Brown. Jury Trial (4 days) is SET for 8/2/2016 at 09:00 AM in Portland Courtroom 14A before Judge Anna J. Brown. Ordered by Judge Anna J. Brown. (bb) (Entered: 03/10/2016)
106 Response to Defendant's Additional Briefing RE: ORS 30.650. Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 03/21/2016)
107 Declaration of Matthew C. Ellis. Filed by David VanValkenburg. (Related document(s): Response to Motion 106 .) (Payne, Shenoa) (Entered: 03/21/2016)
108 Notice of Change of Address. Filed by David VanValkenburg (Payne, Shenoa) (Entered: 04/20/2016)
109 AMENDED Opinion and Order. Signed on 05/02/2016 by Judge Anna J. Brown. (bb) (Entered: 05/03/2016)
110 Order by Judge Anna J. Brown. The Court directs the parties to confer and to submit no later than May 13, 2016, a Joint Status Report that reflects whether the existing pretrial and trial schedule remains realistic in light of the time needed to resolve dispositive motions and, if not, to propose a joint schedule for new dates for the filing of a final Pretrial Order and the scheduling of a firm jury trial date. (bb) (Entered: 05/03/2016)
111 Joint Status Report . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 05/13/2016)
112 Notice of Case Reassignment: This case has been reassigned from Judge Anna J. Brown to Judge Michael W. Mosman. (eo) (Entered: 05/19/2016)
113 Scheduling Order by Chief Judge Michael W. Mosman. Rule 16 Conference is set for 6/22/2016 at 02:00PM in Portland by telephone before Chief Judge Michael W. Mosman. The parties will call the court's conference line. Ordered by Chief Judge Michael W. Mosman. (dls) (Entered: 06/20/2016)
114 MINUTES of Proceedings: Telephone Rule 16 Conference held. Order GRANTING the parties' oral request for a settlement judge and to reset the trial dates. RESETTING the Pretrial Conference FROM 7/21/2016 at 10:00AM, SET FOR 10/17/2016 at 02:00PM − 04:00PM in Portland Courtroom 16 before Chief Judge Michael W. Mosman. RESETTING the 4−day Jury Trial FROM 8/2/2016 at 09:00AM, SET FOR 5−day Jury Trial on 10/31/2016 at 09:00AM in Portland Courtroom 16 before Chief Judge Michael W. Mosman. Trial Management Order to follow. The Joint Alternative Dispute Resolution and Pretrial Order are WAIVED. Matthew C. Ellis and Shenoa L. Payne present as counsel for plaintiff(s). Heather J. Van Meter and Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Bonita Shumway. Chief Judge Michael W. Mosman presiding. (dls) Modified on 6/23/2016 (dls). (Entered: 06/23/2016)
115 Scheduling Order: by Magistrate Judge Youlee Yim You. SETTING a Settlement Conference for 8/10/2016 at 10:00AM in 12B Chambers before Magistrate Judge Youlee Yim You. (pvh) (Entered: 07/18/2016)

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116 MINUTES of Proceedings: Settlement Conference held on 8/10/2016. Case does not settle. Matthew C. Ellis and Shenoa L. Payne present as counsel for plaintiff. Shannon M. Vincent present as counsel for defendant. Court Reporter: N/A. Interpreter: Stephen Marceno. Magistrate Judge Youlee Yim You presiding. (pvh) Modified on 8/16/2016 to add interpreter information. (eo) (Entered: 08/10/2016)
117 Trial Management Order. Signed on 8/15/2016 by Judge Michael W. Mosman. (mjp) (Entered: 08/15/2016)
118 Motion for Writ of Habeas Corpus ad testificandum(Writ of Transport). Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 09/08/2016)
119 Declaration of Matthew C. Ellis In Support of Writ of Transport. Filed by David VanValkenburg. (Related document(s): Writ of Habeas Corpus ad testificandum 118 .) (Attachments: # 1 Exhibit 1) (Ellis, Matthew) (Entered: 09/08/2016)
120 Joint Proposed Jury Verdict Form. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 09/12/2016)
121 Joint Proposed Jury Instructions . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 09/12/2016)
122 Motion to Bifurcate (for PLRA Exhaustion Bench Trial). Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 09/14/2016)
123 Response in Opposition to Motion for Writ of Habeas Corpus ad testificandum(Writ of Transport) 118 . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 09/16/2016)
124 Declaration of Nina Sobotta . Filed by Oregon Department of Corrections. (Related document(s): Response in Opposition to Motion 123 .) (Vincent, Shannon) (Entered: 09/16/2016)
125 Declaration of Robert C. Fhuere . Filed by Oregon Department of Corrections. (Related document(s): Response in Opposition to Motion 123 .) (Vincent, Shannon) (Entered: 09/16/2016)
126 Objection(s) to 120 Jury Verdict Form − Proposed, 121 Jury instructions − Proposed . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 09/16/2016)
127 Exhibit List . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 09/19/2016)
128 Scheduling Order by Judge Michael W. Mosman. Oral Argument is set for 9/20/2016 at 01:30PM in Portland by telephone before Judge Michael W. Mosman, regarding Motion for Writ of Habeas Corpus ad testificandum(Writ of Transport) 118 . The parties to call the court's conference line. Ordered by Judge Michael W. Mosman. (dls) Modified on 9/19/2016 (dls). (Entered: 09/19/2016)
129 Witness Statement . Filed by David VanValkenburg. (Attachments: # 1 Exhibit 1) (Ellis, Matthew) (Entered: 09/19/2016)
130 Objection(s) to 121 Jury instructions − Proposed . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 09/19/2016)
131 Objection(s) to 120 Jury Verdict Form − Proposed . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 09/19/2016)
132 Statement of Special Damages . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 09/19/2016)
133 MINUTES of Proceedings: Telephone Motion Hearing Held regarding Writ of Habeas Corpus ad testificandum 118 . Plaintiff's Motion for Writ of Habeas Corpus ad testificandum 118 is DENIED on the grounds that the proposed testimony of the witnesses is not relevant. Plaintiff has until Friday, September 23, 2016 to file an Amended Witness Statement providing further information on the testimony of Ms. Karen Ricketts and Mr. David VanValkenburg. Mr. VanValkenburg's Witness Statement should be amended to identify the substance of anything he plans to testify about that was not discussed during discovery. Plaintiff has until Wednesday, September 28, 2016 to file a Response to Defendant's Motion to Bifurcate 122 .

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Defendant has until Friday, September 23, 2016 to provide Amended Proposed Jury Instructions. Matthew C. Ellis present as counsel for plaintiff(s). Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Bonita Shumway. Judge Michael W. Mosman presiding. (Related document(s): Writ of Habeas Corpus ad testificandum 118 .) (dls) (Entered: 09/22/2016)
134 Amended Proposed Jury Instructions . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 09/23/2016)
135 Amended Proposed Jury Instructions . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 09/23/2016)
136 Amended Witness Statement . Filed by David VanValkenburg. (Attachments: # 1 Exhibit 1) (Ellis, Matthew) (Entered: 09/23/2016)
137 Trial Memorandum . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 09/26/2016)
138 Exhibit List . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 09/26/2016)
139 Witness Statement . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 09/26/2016)
140 Trial Memorandum . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 09/26/2016)
141 ORDER: GRANTING Motion to Bifurcate (for PLRA Exhaustion Bench Trial) 122 . Ordered by Judge Michael W. Mosman. (dls) (Entered: 09/29/2016)
142 Scheduling Order by Judge Michael W. Mosman.PLRA Exhaustion Court Trial is set for 10/17/2016 at 02:00PM − 05:00PM in Portland Courtroom 16 before Judge Michael W. Mosman. ASL Interpreters requested for 10/17/2016 Court Trial. RESETTING the Pretrial Conference FROM 10/17/2016 at 2:00PM − 04:00PM, SET FOR 10/20/2016 at 10:00AM − 12:00PM in Portland Courtroom 16 before Judge Michael W. Mosman. The 5−day Jury Trial set for 10/31/2016 at 09:00AM in Portland Courtroom 16 before Chief Judge Michael W. Mosman will remain set. ASL Interpreters requested for 10/31/2016 5−day Jury Trial. Ordered by Judge Michael W. Mosman. (dls) (Entered: 09/29/2016)
143 Motion in limine . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 10/03/2016)
144 Voir Dire . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 10/03/2016)
145 Motion to Exclude Portions of Plaintiff's Proposed Expert Testimony (Daubert Motion). Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 10/03/2016)
146 Objection to Trial Exhibit . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 10/03/2016)
147 Objection(s) to Plaintiff's Witnesses. Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 10/03/2016)
148 Objection(s) to 138 Exhibit List . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/06/2016)
149 Proposed Voir Dire . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/06/2016)
150 Objection(s) to 139 Witness statement . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/06/2016)
151 Declaration of Matthew C. Ellis In Opposition to Defendant's Witness Statement. Filed by David VanValkenburg. (Related document(s): Objection 150 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Ellis, Matthew) (Entered: 10/06/2016)

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152 Amended Exhibit List in Rebuttal. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/06/2016)
153 Motion in limine . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 10/06/2016)
154 Objection(s) to 145 Motion − Miscellaneous (Daubert Motion). Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/13/2016)
155 Declaration of Matthew C. Ellis In Support of Plaintiff's Opposition to Defendant's Daubert Motion. Filed by David VanValkenburg. (Related document(s): Motion − Miscellaneous 145 .) (Attachments: # 1 Exhibit 1) (Ellis, Matthew) (Entered: 10/13/2016)
156 Response to 146 Objection to Trial Exhibit . Filed by David VanValkenburg. (Ellis, Matthew) Modified to add response to docket text on 10/14/2016 (cib). (Entered: 10/13/2016)
157 Response to 147 Objection to Plaintiff's Witnesses. Filed by David VanValkenburg. (Payne, Shenoa) Modified to add response on 10/14/2016 (cib). (Entered: 10/13/2016)
158 Response to Motion in limine 143 . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 10/13/2016)
159 Objection(s) to 149 Proposed Voir Dire . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 10/13/2016)
160 Response to Plaintiff's Objections to Defendant's Exhibit List. Filed by Oregon Department of Corrections. (Related document(s): Objection 148 .) (Vincent, Shannon) (Entered: 10/13/2016)
161 Response to Plaintiff's Objections to Defendant's Witness Statements. Filed by Oregon Department of Corrections. (Related document(s): Objection 150 .) (Vincent, Shannon) (Entered: 10/13/2016)
162 Declaration of Shannon Vincent . Filed by Oregon Department of Corrections. (Related document(s): Response 161 .) (Vincent, Shannon) (Entered: 10/13/2016)
163 Response . Filed by Oregon Department of Corrections. (Related document(s): Motion in Limine 153 .) (Vincent, Shannon) (Entered: 10/13/2016)
166 MINUTES of Proceedings: RECORD OF FIRST DAY AND FINAL DAY OF COURT TRIAL: Witnesses sworn and evidence adduced. See separate list of witnesses and exhibits. For the reasons stated on the record, the Court finds the Defendant met its burden of proving Plaintiff failed to exhaust his Inmate Discrimination Complaint dated 9 May 2013. Failure to exhaust as to on−going discrimination based on the re−submission of that Inmate Discrimination Complaint in January, 2014 is TAKEN UNDER ADVISEMENT. The parties may submit additional material by email no later than 2:00pm on 10/19/2016. Matthew C. Ellis and Shenoa L. Payne present as counsel for plaintiff(s). Heather J. Van Meter and Shannon M. Vincent present as counsel for defendant(s). ASL Interpreters: Lisa Crawford and Richard Hall. Court Reporter: Bonita Shumway. Judge Michael W. Mosman presiding. (dls) (Entered: 10/19/2016)
167 Clerks List of Exhibits & Witnesses. (dls) (Entered: 10/19/2016)
164 Amended Trial Memorandum . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/19/2016)
165 Supplemental Trial Brief regarding PLRA Exhaustion. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/19/2016)
169 MINUTES of Proceedings: RECORD OF FIRST DAY OF PRE−TRIAL CONFERENCE: For the reasons stated on the record, this Court holds that Plaintiff failed to exhaust his Inmate Discrimination Complaint, and therefore, Claim 2 is dismissed with prejudice. Per the Courts Opinion and Order dated 2/4/2016 101 , the statute of limitations for the state law claim (Claim 1), will remain limited to Defendant's alleged failure to accommodate Plaintiff's disability on or after September 23, 2013. Accordingly, Plaintiff may submit evidence of discrete events of

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discrimination within that time frame to establish liability for discrimination. Plaintiff's Motion in Limine No. 1 and Defendant's Motion in Limine No. 4 is DENIED with leave to renew as the objection relates to individual pieces of evidence submitted by the parties. Plaintiff's Motion in Limine No. 2 is GRANTED in PART and Defendant's Motion in Limine No. 3 is DENIED with leave to renew if Plaintiff submits evidence related to his being isolated in prison due to his lack of effective communication. Defendant's Motion in Limine No. 1 is GRANTED. Defendant's Motion in Limine No. 5 is GRANTED. Defendant's Motion in Limine No. 6 is GRANTED. Defendant's Motion in Limine No. 7 is GRANTED. Defendant's Motion in Limine No. 8 is GRANTED in PART. Plaintiff can say "This is an important case to Plaintiff" at trial. Plaintiff's Motion in Limine No. 3 is DENIED. Plaintiff's Motion in Limine No. 8 is DENIED with leave to renew should Defendant admit evidence regarding the change of the Effective Communications Policy. Final Pretrial Conference is set for Monday, October 31, 2016 at 9:00am. RESETTING the the 5 day jury trial FROM 10/31/2016, SET FOR a 3−4 day Jury Trial set for Tuesday, November 1, 2016 at 9:00am. Judge Michael W. Mosman presiding. Matthew Ellis; Shenoa Payne present as counsel for plaintiff(s). Heather Van Meter; Shannon Vincent present as counsel for defendant(s). (Court Reporter: Bonita Shumway.) (mjp) (Entered: 10/21/2016)
168 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Telephone Oral Argument held on 9/20/2016 before Chief Judge Michael W. Mosman, Court Reporter Bonita J. Shumway, telephone number 503−326−8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 10/31/2016. Redaction Request due 11/17/2016. Redacted Transcript Deadline set for 11/25/2016. Release of Transcript Restriction set for 1/23/2017. (Shumway, Bonita) (Entered: 10/21/2016)
170 Second Exhibit List (Amended). Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/26/2016)
171 ORDER: The Court SUSTAINS Defendant's General Objection to Plaintiff's Exhibits. Plaintiff should provide clean copies of the exhibits to the jury. The exhibits should not include highlighting or underlining unless such marks were original to the exhibit. Defendant's Objections to Plaintiff's Exhibit 1, Exhibit 2, Exhibit 3, Exhibit 5, Exhibit 6, Exhibit 7, Exhibit 9, Exhibit 10, Exhibit 11, Exhibit 12, and Exhibit 27 are OVERRULED. Defendant's Objection to Plaintiff's Exhibit 4 is SUSTAINED. Plaintiff should fix the exhibit list so that it matches the dates of the exhibit. Defendant's Objection to Plaintiff's Exhibit 13 is SUSTAINED. Defendant's Objection to Plaintiff's Exhibit 17 is SUSTAINED in PART as to the NAD flyer; it is OVERRULED as to the other documents. Defendant's Objection to Plaintiff's Exhibit 24 is SUSTAINED. Defendant's Objection Plaintiff's Exhibit 25 is SUSTAINED. Defendant's Objection to Plaintiff's Exhibit 30 is SUSTAINED. Plaintiff should separate the exhibits. Defendant's Objection to Plaintiff's Exhibit 31 is OVERRULED. Defendant may introduce other parts of the report as necessary to make it complete. Defendant's Objections to Plaintiff's Exhibit 35, Exhibit 36, Exhibit 37, and Exhibit 38 are SUSTAINED. Plaintiff's Objections to Defendant's Exhibits 514, 515, 516, 517, 518, 519, 520, 521, 522, 523, 524, 525, and 526 are OVERRULED. Plaintiff's Objection to Defendant's Witness Statement of Kimberly Hendricks is OVERRULED with leave to renew during trial as her testimony relates to her personal knowledge of ODOC's accommodation decisions. Plaintiff's Objection to Defendant's Witness Statement of Becky Boast is SUSTAINED. Plaintiff's Objection to Defendant's Witness Statement of Jennifer Carsner is SUSTAINED. Plaintiff's Objection to Defendant's Witness Statement of Marcus Ford is OVERRULED as to Mr. Ford's testimony about Plaintiff's psychological state. Mr. Ford may testify about his personal observations about Mr. VanValkenburg's demeanor. The remaining objections to Mr. Ford's testimony will be considered during the pre−trial conference. Plaintiff's Objection to Defendant's Witness Statement of Ms. Linda Lacy is OVERRULED to the extent Ms. Lacy testifies based on her personal observations. All remaining objections and motions will be considered during the pre−trial conference. Ordered by Judge Michael W. Mosman. (dls) (Entered: 10/26/2016)

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172 Third Exhibit List (Amended). Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/28/2016)
173 Objection(s) to Proposed Final Instruction on Claims and Defenses. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 10/28/2016)
174 Amended Exhibit List . Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 10/28/2016)
175 Amended Witness Statement . Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 10/28/2016)
176 MINUTES of Proceedings: RECORD OF SECOND DAY OF PRE−TRIAL CONFERENCE. Defendant's Motion in Limine No. 2 is GRANTED. Plaintiff's Motion in Limine No. 4 is DENIED. Plaintiff's Motion in Limine No. 5 is DENIED. Plaintiff's Motion in Limine No. 6 is DENIED. Plaintiff's Motion in Limine No. 7 is DENIED. Defendant's Daubert Motion 145 is GRANTED in PART and DENIED in PART. Defendant's Objections to Mr. VanValkenburg's Witness Statement is OVERRULED with leave to renew at trial. Defendant's Objection to Plaintiff's calling witness Debbie Allen as a rebuttal witness is OVERRULED. Defendant's Motion to complete direct examination of witness Kimberly Hendricks immediately after she is called in Plaintiff's case in chief is GRANTED. Plaintiff's objection to statements by witness Marcus Ford about Mr. VanValkenburg seeking a job is SUSTAINED with leave to renew. The Court GRANTS Defendant's Objection to Plaintiff's proposed jury instruction on Claims and Defenses; the instruction will not include a claim for discrimination due to failure to provide an interpreter during counselor meetings because notice of specific instances of that alleged discrimination was not provided to Defendant. Matthew C. Ellis and Shenoa L. Payne present as counsel for plaintiff(s). Heather J. Van Meter and Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Bonita Shumway. Judge Michael W. Mosman presiding. (dls) (Entered: 10/31/2016)
177 Scheduling Order by Judge Michael W. Mosman. RESETTING THE TIME ONLY for the Jury Trial FROM 11/1/2016 at 9:00AM, SET FOR 11/1/2016 at 08:45AM in Portland Courtroom 16 before Judge Michael W. Mosman. Ordered by Judge Michael W. Mosman. (dls) (Entered: 10/31/2016)
178 MINUTES of Proceedings: RECORD OF THE FIRST DAY OF JURY TRIAL: Jury Instructions discussed. Jury voir dired, selected and sworn. See separate sheet for voir dire questions. Preliminary Instructions read by the court. Opening statements given by counsel. Witnesses sworn and evidence adduced. See separate list of witnesses and exhibits on the last day of trial. Defendant's Objection related to opening the door during the Plaintiff's opening statement to further information about Plaintiff's conviction is taken under advisement. Defendant objected to Plaintiff's expert witness's testimony about the inaccuracy in her report related to Plaintiff's ASL level. The objection was OVERRULED, Defendant may use testimony for impeachment as stated on the record. Court in recess until 8:45a.m., Wednesday, November 2, 2016. Matthew C. Ellis and Shenoa L. Payne present as counsel for plaintiff(s). Heather J. Van Meter and Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Bonita Shumway. Interpreters: Richard Hall and Andrea Medlock. Judge Michael W. Mosman presiding. (Attachments: # 1 Attachment Voir Dire questions) (dls) Docket text modified and PDF of minutes replaced on 11/3/2016 to add the names of the ASL Interpreters. (eo). Modified on 11/4/2016 (dls). Modified on 11/21/2016 (dls). (Entered: 11/02/2016)
179 MINUTES of Proceedings: RECORD OF SECOND DAY OF JURY TRIAL: Jury Instructions discussed. Witnesses sworn and evidence adduced. Juror Questions A & B RECEIVED and discussed. Juror Question C Received and Discussed. Plaintiff objected to Defendant's cross−examination of Mr. VanValkenburg about kytes he sent that are not related to the claims in this case. Objection was SUSTAINED under Federal Rule of Evidence Rule 403 as stated on the record. Plaintiff rests. Plaintiff's Motion for Directed Verdict is DENIED for the reasons stated on the record. Defendant rests. Defendant's Motion for Directed Verdict is DENIED for the reasons stated on the record. Jury Instructions and Verdict Form discussed. Court in recess until 8:45 on Thursday, November 3, 2016. Matthew C. Ellis and Shenoa L. Payne present as counsel for plaintiff(s). Heather J. Van Meter and Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Bonita Shumway. Interpreters:

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11/03/2016 11/03/2016
11/03/2016 11/03/2016 11/03/2016 11/03/2016 11/07/2016 11/11/2016 11/16/2016 11/23/2016 11/23/2016 11/23/2016
11/23/2016
11/23/2016

Richard Hall and Damon Thayer. Judge Michael W. Mosman presiding. (dls) (Entered: 11/04/2016)
180 Jury Instructions. (dls) (Entered: 11/04/2016)
181 MINUTES of Proceedings: RECORD OF THIRD AND FINAL DAY OF JURY TRIAL: Court instructs the jury. Closing Argument given. Jury deliberations begin. ORDER: 7 juror lunches to be provided from Big City Cafe during deliberations. Jury returns a Verdict in favor of Plaintiff for $400,000.00 Jury polled. The court discharges the jury. All exhibits returned. Post−trial motions are due within 21 days. Responses to post−trial motions are due within 10 days after filing of post−trial motions. Plaintiff's proposed form of judgment and Defendant's objections thereto are due within 7 days. Court adjourned. Matthew C. Ellis and Shenoa L. Payne present as counsel for plaintiff(s). Heather J. Van Meter and Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Bonita Shumway. Interpreters: Richard Hall and Damon Thayer. Judge Michael W. Mosman presiding. (dls) (Entered: 11/04/2016)
182 Verdict Form Unredacted Version Filed Under Seal . (dls) (Entered: 11/04/2016)
183 Verdict Form. In favor of the plaintiff in the amount of $400,000.00. (dls) (Entered: 11/04/2016)
184 Jury Notes A, B, C, and D. (dls) (Entered: 11/04/2016)
185 Clerks List of Exhibits & Witnesses. (dls) (Entered: 11/04/2016)
186 Transcript Designation and Order Form for the hearing held on 10/20/16, 10/31/16, 11/1/16−11/3/16 before Judge Hon. Michael Mosman. . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 11/07/2016)
187 Proposed Form of Order Submitted (Proposed Judgment). Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 11/11/2016)
188 Proposed Form of Order Submitted (titled Defendant's Proposed Judgment). Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 11/16/2016)
189 Unopposed Motion for Extension of Time for Filing Post−Trial Pleadings. Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 11/23/2016)
190 Declaration of Heather J. Van Meter . Filed by Oregon Department of Corrections. (Related document(s): Motion for Extension of Time 189 .) (Van Meter, Heather) (Entered: 11/23/2016)
191 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Pretrial Conference − Day 1 held on 10/20/2016 before Chief Judge Michael W. Mosman, Court Reporter Bonita J. Shumway, telephone number 503−326−8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/5/2016. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/30/2016. Release of Transcript Restriction set for 2/24/2017. (Shumway, Bonita) (Entered: 11/23/2016)
192 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Pretrial Conference − Day 2 held on 10/31/2016 before Chief Judge Michael W. Mosman, Court Reporter Bonita J. Shumway, telephone number 503−326−8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/5/2016. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/30/2016. Release of Transcript Restriction set for 2/24/2017. (Shumway, Bonita) (Entered: 11/23/2016)
193 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Jury Trial − Day 1 held on 11/1/2016 before Chief Judge Michael W. Mosman, Court Reporter Bonita J. Shumway, telephone number 503−326−8188 or bonita_shumway@ord.uscourts.gov.

Case 3:14-cv-916 As of 01/29/2019 12:37 PM PST Page 17 of 20 Page ID#: <pageID>

11/23/2016
11/23/2016
11/28/2016 12/05/2016 12/05/2016 12/05/2016 12/05/2016 12/05/2016 12/13/2016 12/14/2016 12/14/2016 12/15/2016

Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/5/2016. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/30/2016. Release of Transcript Restriction set for 2/24/2017. (Shumway, Bonita) (Entered: 11/23/2016)
194 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Jury Trial − Day 2 held on 11/2/2016 before Chief Judge Michael W. Mosman, Court Reporter Bonita J. Shumway, telephone number 503−326−8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/5/2016. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/30/2016. Release of Transcript Restriction set for 2/24/2017. (Shumway, Bonita) (Entered: 11/23/2016)
195 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Jury Trial − Day 3 held on 11/3/2016 before Chief Judge Michael W. Mosman, Court Reporter Bonita J. Shumway, telephone number 503−326−8188 or bonita_shumway@ord.uscourts.gov. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through the Court Reporter or PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 12/5/2016. Redaction Request due 12/19/2016. Redacted Transcript Deadline set for 12/30/2016. Release of Transcript Restriction set for 2/24/2017. (Shumway, Bonita) (Entered: 11/23/2016)
196 ORDER: GRANTING Defendants' Motion for Extension of Time 189 . Post−trial motions are due on December 5, 2016. Additionally, parties have through December 5, 2016 to file objections to Proposed Form of Order [187, 188]. Ordered by Judge Michael W. Mosman. (dls) (Entered: 11/28/2016)
197 Objection(s) (titled Defendant's Objections to Plaintiff's Proposed Judgment). Filed by Oregon Department of Corrections. (Related document(s): Proposed Form of Order or Judgment 187 .) (Vincent, Shannon) (Entered: 12/05/2016)
198 Objection(s) to 188 Proposed Form of Order or Judgment . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 12/05/2016)
199 Declaration of Shenoa L. Payne In Support of Plaintiff's Opposition to Defendant's Proposed Judgment. Filed by David VanValkenburg. (Related document(s): Objection 198 .) (Attachments: # 1 Exhibit A) (Ellis, Matthew) (Entered: 12/05/2016)
200 Motion for Judgment , Motion for New Trial (titled Defendant's Post−Trial Motions (JMOL, New Trial, Remittitur)). Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 12/05/2016)
201 Declaration of Heather J. Van Meter . Filed by Oregon Department of Corrections. (Related document(s): Motion for judgment, Motion for new trial 200 .) (Van Meter, Heather) (Entered: 12/05/2016)
202 ORDER: The Proposed Forms of Order [187, 188] are taken under advisement. The Court will rule on the judgments after ruling on Defendant's post−trial motions 200 . Ordered by Judge Michael W. Mosman. (dls) (Entered: 12/13/2016)
203 Response to Motion for Judgment Motion for New Trial (titled Defendant's Post−Trial Motions (JMOL, New Trial, Remittitur)) 200 . Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 12/14/2016)
204 Declaration of Matthew C. Ellis . Filed by David VanValkenburg. (Related document(s): Motion for judgment, Motion for new trial 200 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 51, # 8 Exhibit 511, # 9 Exhibit 513) (Ellis, Matthew) (Entered: 12/14/2016)
205 Motion for Extension of Time . Filed by Oregon Department of Corrections. (Vincent, Shannon) (Entered: 12/15/2016)

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12/15/2016 12/15/2016 12/30/2016 01/25/2017 02/08/2017 02/08/2017
03/01/2017 03/01/2017 03/01/2017 03/02/2017 03/02/2017 03/02/2017 03/02/2017
03/02/2017 03/02/2017 03/02/2017 03/02/2017 03/02/2017 03/02/2017

206 Declaration of Shannon Vincent . Filed by Oregon Department of Corrections. (Related document(s): Motion for Extension of Time 205 .) (Vincent, Shannon) (Entered: 12/15/2016)
207 Response in Opposition to Motion for Extension of Time 205 . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 12/15/2016)
208 ORDER: GRANTING Motion for Extension of Time 205 . Defendants have until January 25, 2017 to file a reply in support of pending post−trial motions. Ordered by Judge Michael W. Mosman. (dls) (Entered: 12/30/2016)
209 Reply to Motion for Judgment Motion for New Trial (titled Defendant's Post−Trial Motions (JMOL, New Trial, Remittitur)) 200 . Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 01/25/2017)
210 OPINION AND ORDER: Defendants' Motions for Judgment as a Matter of Law, New Trial, and Remittitur 200 are DENIED. Signed on 02/08/2017 by Judge Michael W. Mosman. (rs) (Entered: 02/09/2017)
211 JUDGMENT: IT IS ORDERED AND ADJUDGED that Judgment is entered for Plaintiff and against Defendant in the amount of $400,000 with interest accruing from the date of entry of this judgment at the amount of 0.64% on Plaintiff's claim under ORS 659A.142(5). Judgment is entered for Defendant on Plaintiff's claim under the Americans with Disabilities Act. Signed on 02/08/2017 by Judge Michael W. Mosman. (rs) (Entered: 02/09/2017)
212 Motion to File Excess Pages . Expedited Hearing requested. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 03/01/2017)
213 Declaration of Matthew C. Ellis In Support of Motion to File Excess Pages. Filed by David VanValkenburg. (Related document(s): Motion to File Excess Pages 212 .) (Ellis, Matthew) (Entered: 03/01/2017)
214 ORDER: Plaintiff's Motion to File Excess Pages 212 is GRANTED. Plaintiff's Brief in Support of his Motion for Attorney's fees and Costs is limited to 20 pages. Ordered by Judge Michael W. Mosman. (rs) (Entered: 03/01/2017)
215 Motion for Attorney Fees , Costs and Disbursements. Filed by David VanValkenburg. (Ellis, Matthew) (Entered: 03/02/2017)
216 Declaration of Matthew C. Ellis . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4) (Ellis, Matthew) (Entered: 03/02/2017)
217 Declaration of R. Kyle Busse . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Ellis, Matthew) (Entered: 03/02/2017)
218 Declaration of Shenoa Payne . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F) (Payne, Shenoa) (Entered: 03/02/2017)
219 Declaration of Stephen L. Brischetto . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Ellis, Matthew) (Entered: 03/02/2017)
220 Declaration of Kathy Wilde . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Ellis, Matthew) (Entered: 03/02/2017)
221 Declaration of Joel Greenberg . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Ellis, Matthew) (Entered: 03/02/2017)
222 Declaration of Beth Creighton . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Ellis, Matthew) (Entered: 03/02/2017)
223 Declaration of Dana Sullivan . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Payne, Shenoa) (Entered: 03/02/2017)
224 Declaration of Brent Barton . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Ellis, Matthew) (Entered: 03/02/2017)

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03/02/2017 03/09/2017 03/09/2017 03/10/2017 03/15/2017 03/15/2017 03/16/2017 03/16/2017 03/16/2017 03/29/2017 03/29/2017 03/29/2017
04/06/2017 04/06/2017 04/10/2017
05/02/2017

225 Declaration of Michael Haglund . Filed by David VanValkenburg. (Related document(s): Motion for Attorney Fees 215 .) (Attachments: # 1 Exhibit A) (Payne, Shenoa) (Entered: 03/02/2017)
226 Notice of Appeal to the 9th Circuit from Judgment, 211 Filing fee $505 collected; Agency Tracking ID 0979−4934113: . Filed by Oregon Department of Corrections. (Fjordbeck, Denise) (Entered: 03/09/2017)
227 Representation Statement re Notice of Appeal 226 . Filed by Oregon Department of Corrections. (Fjordbeck, Denise) (Entered: 03/09/2017)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal 226 . Case Appealed to Ninth Circuit Court of Appeals Case Number 17−35203 assigned. (sss) (Entered: 03/14/2017)
228 Cross Notice of Appeal to the 9th Circuit Filing fee $505 collected; Agency Tracking ID 0979−4940409: . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 03/15/2017)
229 Representation Statement re Notice of Appeal 228 . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 03/15/2017)
USCA Case Number and Notice confirming Docketing Record on Appeal re Notice of Appeal 228 . Case Appealed to 9th Circuit Court of Appeals Case Number 17−35222 assigned. (sss) (Entered: 03/16/2017)
230 Objections (titled Objections to Plaintiff's Motion for Attorney Fees, Costs and Disbursements). Filed by Oregon Department of Corrections. (Van Meter, Heather) (Entered: 03/16/2017)
231 Declaration of Heather J. Van Meter . Filed by Oregon Department of Corrections. (Related document(s): Objections to Bill of Costs 230 .) (Van Meter, Heather) (Entered: 03/16/2017)
232 Motion for Extension of Time to File a Response/Reply to Motion for Attorney Fees , Costs and Disbursements 215 . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 03/29/2017)
233 Declaration of Shenoa Payne. Filed by David VanValkenburg. (Related document(s): Motion for Extension of Time to File Response/Reply to a Motion 232 .) (Payne, Shenoa) (Entered: 03/29/2017)
234 ORDER: GRANTING Plaintiff's Motion for Extension of Time 232 . Plaintiff's Response to Defendant's Objections to Motion for Attorney Fees, Costs and Disbursements is due April 6, 2017. Ordered by Judge Michael W. Mosman. (rs) (Entered: 03/29/2017)
235 Reply to Motion for Attorney Fees , Costs and Disbursements 215 . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 04/06/2017)
236 Supplemental Declaration of Shenoa Payne. Filed by David VanValkenburg. (Related document(s): Reply to Motion 235 .) (Attachments: # 1 Exhibit A, # 2 Exhibit B) (Payne, Shenoa) (Entered: 04/06/2017)
237 Transcript Designation and Order Form for the hearing held on 11/16/2015; 9/20/2016; 10/20/2016; 10/31/2016; 11/1/2016−11/3/2016 before Judge Anna J. Brown; Michael W. Mosman. Court Reporter: Amanda LeGore; Bonita Shumway. regarding Notice of Appeal 226 . Filed by Oregon Department of Corrections. Transcript is due by 5/10/2017. (Fjordbeck, Denise) (Entered: 04/10/2017)
238 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Oral Argument held on November 16, 2015 before Judge Anna J. Brown, Court Reporter Amanda LeGore, telephone number 503−326−8184. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. Afterwards it may be obtained through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 5/9/2017. Redaction Request due 5/23/2017. Redacted Transcript Deadline set for 6/2/2017. Release of Transcript Restriction set for 7/31/2017. (LeGore, Amanda) (Entered: 05/02/2017)

Case 3:14-cv-916 As of 01/29/2019 12:37 PM PST Page 20 of 20 Page ID#: <pageID>

06/09/2017 06/09/2017 06/29/2017 07/05/2017
09/21/2017
11/03/2017

239 Notice of Change of Address. Filed by David VanValkenburg (Payne, Shenoa) (Entered: 06/09/2017)
240 OPINION AND ORDER Signed on 06/09/2017 by Judge Michael W. Mosman. (rs) (Entered: 06/09/2017)
241 Supplemental Proposed Form of Order Submitted . Filed by David VanValkenburg. (Payne, Shenoa) (Entered: 06/29/2017)
242 SUPPLEMENTAL JUDGMENT. Judgment is entered for Plaintiff and against Defendant on Plaintiff's ORS 659A.142(5) claim in the amount of $683,873.13 in attorney fees, $18,155.19 in costs, and $3,924.79 in litigation expenses, with interest accruing from the date of entry of this Supplemental Judgment, at the amount of 1.21%. This Judgment is supplemental to the Judgment entered on February 9, 2017, which entered Judgment for Plaintiff in the amount of $400,000. Signed on 7/5/17 by Judge Michael W. Mosman. (dls) (Entered: 07/06/2017)
243 Order of USCA for the 9th Circuit, USCA # 17−35203, 17−35222, re Notice of Appeal 226 , Notice of Appeal 228 . Pursuant to stipulation of the parties (docket #15,#14), these appeals are voluntarily dismissed. Fed. R. App. P. 42(b). The parties shall bear their own fees and costs. This order served on the district court shall act as and for the mandate of this court. (jtj) (Entered: 09/21/2017)
244 Satisfaction re Judgment, 211 , Order,, 242 by Oregon Department of Corrections. Filed by Oregon Department of Corrections. (Fjordbeck, Denise) (Entered: 11/03/2017)