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-01562-

HZ, 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).

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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. 

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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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Case 3:14-cv-00916-MO Document 26 Filed 10/30/14 Page 23 of 24
§ 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

24 - OPINION AND ORDER

Case 3:14-cv-00916-MO Document 26 Filed 10/30/14 Page 24 of 24