PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

KIP A. FARTHING,

Plaintiff,

v.

ERIN KELLY SIEL,

Defendant.

Case No. 3:14-cv-00804-SI

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiff, Kip A. Farthing, filed claims pro se against Defendant Erin Kelly Siel, the 

Director of the Department of Human Services in Oregon. Dkt. 2. Plaintiff also filed an 

application to proceed in forma pauperis (Dkt. 1) and moved for the appointment of a pro bono

attorney. Dkt. 3. The Court granted Plaintiff’s motion to proceed in forma pauperis (Dkt. 9) and 

denied Plaintiff’s motion for the appointment of a pro bono attorney. Dkt. 12. Defendant filed 

her Motion to Dismiss (Dkt. 6) in this matter on June 10, 2014, before service of the complaint 

and summons. As a result, the Court stayed the briefing schedule for Defendant’s Motion to 

Dismiss until after service of process. Plaintiff’s response to the motion was due August 18, 

2014. Dkt. 10. Plaintiff failed to file a response and the Court granted an extension for Plaintiff 

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to file a response no later than September 9, 2014. Dkt. 15. To date, Plaintiff has filed no 

response to Defendant’s motion. 

Under the liberal pleading standards afforded to filings of a pro se plaintiff, the Court 

finds that Plaintiff fails to state a claim upon which relief may be granted. Plaintiff’s claims are 

also barred by the Eleventh Amendment and state law notice requirements. Accordingly, for the 

reasons stated below, this case is dismissed.

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no 

cognizable legal theory to support the claim or when the complaint lacks sufficient factual 

allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., 

Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint’s factual 

allegations, the court must accept as true all well-pleaded material facts alleged in the complaint 

and construe them in the light most favorable to the non-moving party. Wilson v. HewlettPackard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 

992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint 

“may not simply recite the elements of a cause of action, but must contain sufficient allegations 

of underlying facts to give fair notice and to enable the opposing party to defend itself 

effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from 

the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office 

Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the 

plaintiff’s legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 

662, 678-79 (2009).

A complaint must contain sufficient factual allegations to “plausibly suggest an 

entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the 

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expense of discovery and continued litigation.” Baca, 652 F.3d at 1216. “A claim has facial 

plausibility when the pleaded factual content allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the 

benefit of any reasonable doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se

litigant must be given leave to amend his or her complaint unless it is absolutely clear that the 

deficiencies of the complaint could not be cured by amendment.” Karim-Panahi v. Los Angeles 

Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (citation and internal quotation marks omitted).

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, however, every complaint must 

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” 

This standard “does not require ‘detailed factual allegations,’” but does demand “more than an 

unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678, (quoting 

Twombly, 550 U.S. at 555). “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).

BACKGROUND

On May 15, 2014, Plaintiff filed the Complaint in this action. He alleges four claims 

against Defendant: (1) “taxation without representation”; (2) “refusing to take valid grievances

and return written disposition as required by law”; (3) “wrongful and illegal exclusion resulting 

in a false arrest by refusing me a fair hearing required by law so they can prove me guilty and not 

forcing me to prove myself innocent with no venue to do so in. Also, illegal and unconstitutional 

as well”; and (4) “laughing at someone begging for help instead of accommodating his needs as 

required by the [Americans with Disabilities Act “ADA”]. All of these people that are associated 

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with this violation of my civil rights as well as basic human rights should be fired (terminated) 

and lose their P.E.R.S. especially and including my ex primary care doctor, Amy Hennegre.”

Farthing seeks $250,000 in damages. 

DISCUSSION

A. Failure to State a Claim

Plaintiff’s Complaint fails to state a claim under federal law. Plaintiff’s first and second 

claims make no relevant factual allegations, let alone facts that could plausibly give rise to a 

claim under state or federal law. Plaintiff’s third claim appears to allege the tort of false arrest. 

This claim, however, states only that Plaintiff faced “wrongful and illegal exclusion” and was 

refused a fair hearing, but provides no further information. Plaintiff’s fourth claim for violation 

of the ADA alleges only that Plaintiff’s primary care doctor Amy Hennegre and other 

unidentified persons laughed at Plaintiff and did not accommodate his needs. 

Interpreting the facts in the Complaint under the liberal pro se pleading standard and 

affording the Plaintiff “the benefit of any reasonable doubt,” the Complaint contains no facts that 

could support a cause of action under the United States Constitution, the ADA, another federal 

law, or relevant state law. Accordingly, the Court holds that the Complaint fails to state a claim 

on which relief may be granted. 

B. Oregon Tort Claim Notice

Even if Plaintiff had plausibly asserted a claim for false arrest, that claim would be barred 

because Plaintiff failed to file an Oregon Tort Claims Notice as required by Or. Rev. Stat. 

§ 30.275(a). This statute provides: “No action arising from any act or omission of a public body 

or an officer, employee or agent of a public body arising within the scope of ORS 30.260 to 

30.300 [torts] shall be maintained unless notice of claim is given as required in this section.” Or. 

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Rev. Stat. § 30.275(a). Therefore, Plaintiff’s failure to file the required Oregon Tort Claims 

Notice is a separate and independent basis requiring dismissal of Plaintiff’s claim for false arrest. 

C. Eleventh Amendment

This action is brought against Erin Kelley Siel, the Director of the Department of Human 

Services. Plaintiff makes no allegations that Ms. Siel personally took any action against plaintiff. 

Therefore, the Court assumes the action is brought against her in her official capacity.

Accordingly, Plaintiff’s claims for money damages for “taxation without representation,” refusal 

to take grievances, and false arrest are barred by the Eleventh Amendment. Brown v.

Oregon Dept. of Corrections, ___ F.3d ___, 2014 WL 1687758 at *5 (9th Cir. April 29, 2014)

(noting that damages claims against state officials in their official capacities are barred by the 

Eleventh Amendment); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) (“It is 

clear ... that in the absence of consent a suit in which the State or one of its agencies or 

departments is named as the defendant is proscribed by the Eleventh Amendment.”). Because an 

Eleventh Amendment violation cannot be cured by amendment, these claims are dismissed with 

prejudice.

Plaintiff’s claim under the ADA is a different matter. Plaintiff cannot seek damages under 

the ADA against the defendant in her individual capacity. See Eason v. Clark County School 

Dist., 303 F.3d 1137, 1145 (9th Cir. 2002). The Eleventh Amendment does not, however, 

necessarily bar ADA suits against state officials in their official capacities for injunctive relief or 

damages. See Phiffer v. Columbia River Corr. Inst., 384 F.3d 791, 791-92 (9th Cir. 2004); Video 

Gaming Technologies, Inc. v. Bureau of Gambling Control, 621 F. Supp. 2d 918, 920 (E.D. Cal. 

2008) (“The Ninth Circuit has repeatedly found that Congress validly abrogated state immunity 

when it enacted Title II of the ADA.”). 

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To state a claim for disability discrimination under Title II of the ADA, Plaintiff must 

allege four elements: 

(1) he is an individual with a disability; (2) he is otherwise 

qualified to participate in or receive the benefit of some public 

entity's services, programs, or activities; (3) he was either excluded 

from participation in or denied the benefits of the public entity's 

services . . . or was otherwise discriminated against by the public

entity; and (4) such exclusion, denial . . . or discrimination was by 

reason of his disability. 

McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (citation and internal quotation 

marks omitted). To recover monetary damages under Title II of the ADA, Plaintiff must establish 

intentional discrimination on the part of the state officials. Ferguson v. City of Phoenix, 157 F.3d 

668, 674 (9th Cir. 1998).

In determining under the ADA whether a defendant acted with intentional discrimination 

towards a plaintiff because of his or her disability, the United States Court of Appeals for the 

Ninth Circuit applies the “deliberate indifference” standard. Duvall v. County of Kitsap, 260 

F.3d 1124, 1138 (9th Cir. 2001); see also Daniel v. Levin, 172 F. App’x 147, 150 (9th Cir. 2006) 

(unpublished) (applying the “deliberate indifference” standard to the discriminatory intent 

requirement for ADA claims). A defendant acts with deliberate indifference only if: (1) the 

defendant has knowledge from which an inference could be drawn that a harm to a federally 

protected right is substantially likely; and (2) the defendant actually draws that inference and 

fails to act upon the likelihood. See Duvall, 260 F.3d at 1138-39; see also Toguchi v. Chung, 391 

F.3d 1051, 1057 (9th Cir. 2004). The first element is satisfied when the public entity has notice 

that an accommodation is required. Duvall, 260 F.3d at 1139. The second element is satisfied if 

the entity’s “failure to act [is] a result of conduct that is more than negligent, and involves an 

element of deliberateness.” Id. Under the second element, “a public entity does not ‘act’ by 

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proffering just any accommodation: it must consider the particular individual’s need when 

conducting its investigation into what accommodations are reasonable.” Id. (footnote omitted).

Plaintiff has failed to state facts sufficient to state a claim under the ADA or to 

demonstrate intentional discrimination. Accordingly, Plaintiff’s ADA claim is dismissed. 

Because that claim is not necessarily barred by the Eleventh Amendment, however, the Court 

dismisses Plaintiff’s ADA claim without prejudice. 

CONCLUSION

Defendant’s motion to dismiss (Dkt. 6) is GRANTED. Plaintiff’s claim under the ADA is 

dismissed without prejudice; his remaining claims are dismissed with prejudice. Plaintiff may 

file an amended complaint as to his ADA claim within 30 days of the date of this Opinion if he 

can cure the deficiencies identified in this Opinion.

IT IS SO ORDERED.

DATED this 9th day of October, 2014.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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