IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID VANVALKENBURG, 3:14-cv-00916-BR

Plaintiff, OPINION AND ORDER

v.

OREGON DEPARTMENT OF 

CORRECTIONS,

Defendant.

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

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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. 

For the reasons that follow, 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;

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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

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,

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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

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

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.

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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

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

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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

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

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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

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 

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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

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.

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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

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

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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

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment. Id.

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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

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

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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

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

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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

Use and Institutionalized Persons Act (RLUIPA). Id. at 1063. 

The plaintiff filed his lawsuit against ODOC in June 2004, and he

was released from incarceration in 2007 during the pendency of

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the lawsuit. 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

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

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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

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

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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

lawsuits 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

alleged loss or injury.” Or. Rev. Stat. § 30.275(2). The Court

notes September 23, 2013, was 180 days before Plaintiff's March

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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

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

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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

Plaintiff is specific about individual harms that resulted from

specific failures to accommodate his deafness. For example, in

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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. 

Like the plaintiff in Davis, therefore, Plaintiff's claim here

does not rest on the type of single, continuous action to which

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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

statute of limitations.” Sharkey v. O'Neal, 778 F.3d 767, 770

(9th Cir. 2015). Accordingly, the court “borrow[s] the statute

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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

limitations most relevant to Plaintiff’s Claim Two.

b. Continuing-Tort Doctrine

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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.

In Cherosky the defendant denied the 1994 and 1997

requests of postal workers to wear respirators in the workplace. 

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Id. at 1244-45. In 1998 the plaintiffs filed a lawsuit 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 lawsuit 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.

Accordingly, on this record the Court concludes

the continuing-violation doctrine does not apply to Plaintiff’s

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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

plaintiff who is incarcerated at the time the plaintiff

institutes the action, but is released before any damages are 

 - OPINION AND ORDER 24

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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

not perceive an ambiguity in the statute’s text, where that

legislative history appears useful to the court’s analysis.” Id.

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 lawsuit. 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.

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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

economic damages.” 190 Or. App. at 160. Nonetheless, because

this is not the only possible conclusion to draw from the plain

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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 legislature’s intent.

The parties, however, did not address the legislative

history of § 30.650 and that legislative history is not readily

available to the Court. The Court, therefore, does not have the

requisite information before it to resolve properly this novel

and important issue of state law. Accordingly, the Court

declines to rule presently on the applicability of § 30.650 to

this matter and grants the parties leave to seek such a ruling

after properly briefing and presenting a comprehensive statutoryinterpretation analysis.

In any event, even assuming at this stage that § 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,

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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.

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). 

Accordingly, on this record the Court concludes § 30.650

does not bar Plaintiff’s claim for noneconomic damages as to

Claim One at this stage of the proceedings because there exists a

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genuine dispute of material fact as to whether Plaintiff suffered

economic damages. As noted, however, the Court grants leave to

the parties to submit further argument and a comprehensive

analysis as to whether § 30.650 applies to Plaintiff’s Claim One

on a briefing schedule to be later determined.

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. § 1977e(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

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

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Case 3:14-cv-00916-MO Document 101 Filed 02/04/16 Page 29 of 48
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

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.

 - OPINION AND ORDER 30

Case 3:14-cv-00916-MO Document 101 Filed 02/04/16 Page 30 of 48
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

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

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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

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 lawsuits 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.” 

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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

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

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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”

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.

 - OPINION AND ORDER 34

Case 3:14-cv-00916-MO Document 101 Filed 02/04/16 Page 34 of 48
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

whether it only intended to keep such lawsuits 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. 

 - OPINION AND ORDER 35

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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 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

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

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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

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

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Case 3:14-cv-00916-MO Document 101 Filed 02/04/16 Page 37 of 48
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

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

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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

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

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Case 3:14-cv-00916-MO Document 101 Filed 02/04/16 Page 39 of 48
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

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

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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). 

“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,

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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 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

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.

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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,

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

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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

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

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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;

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

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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. 

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. 

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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.

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;

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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.

The Court also DENIES Plaintiff’s 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 casemanagement schedule for the Court’s 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. 

IT IS SO ORDERED.

DATED this 4th day of February, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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