IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

ELWOOD FOGLEMAN, 

Plaintiff, 

v. 

STATE OF OREGON, DEPARTMENT 

OF CORRECTIONS, 

Defendant. 

MCSHANE, Judge: 

Civ. No. 6:14-cv-02027-MC 

OPINION AND ORDER 

\ 

In July 2013, plaintiff Elwood Fogleman applied for an Inspector II position with 

defendant Oregon Department of Corrections. Plaintiff was ineligible for the position because, as 

a result of glaucoma in both eyes, he did not possess a valid driver's license. Plaintiff requested 

an accommodation, which defendant declined to consider. The issue before this Court is whether 

defendant is immune under the Eleventh Amendment from plaintiffs claims under Title I of the 

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12117, and Oregon's 

antidiscrimination law, ORS § 659A.112. Because defendant's offer ofjudginent does not 

constitute a waiver of sovereign immunity, defendant's partial motion to dismiss, ECF No.9, is 

GRANTED. 

STANDARD OF REVIEW 

To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must contain 

sufficient factual matter that "state[ s] a claim to relief that is plausible on its face." Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual 

allegations allow the court to infer the defendant's liability based on the alleged conduct. 

1 - UPlNlUN ANU UKUbK 

Case 6:14-cv-02027-MC Document 17 Filed 04/20/15 Page 1 of 4
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than "the 

mere possibility of misconduct." !d. at 678. 

While considering a motion to dismiss, the court must accept all allegations of material 

fact as true and construe them in the light most favorable to the non-movant. Burget v. Lokelani 

Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). 

DISCUSSION 

Defendant asserts sovereign immunity under t!"te Eleventh Amendment and moves to 

dismiss plaintiffs claims under Title I of the ADA and ORS § 659A.112. In response, plaintiff 

argues that defendant voluntarily and unequivocally waived its immunity by making an offer of 

judgment under Fed. R. Civ. P. 68. 

The Eleventh Amendment provides states with "sovereign immunity," allowing a state 

immunity from suit in federal court, whether by its own citizens or those of another state. See 

U.S. CONST. amend. XI; Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1637 

(20 11 ). In general, there are three exceptions to this rule. First, Congress may abrogate state 

sovereign immunity by acting pursuant to a grant of constitutional authority. See Kimel v. Fla. 

Bd. of Regents, 528 U.S. 62, 80 (2000). Second, a state may waive its immunity if it does so 

voluntarily and unequivocally. See Coli. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense 

Bd., 527 U.S. 666, 675-76 (1999). Third, under Ex parte Young, 209 U.S. 123 (1908), Eleventh 

Amendment immunity does not bar a claim against a state official when that claim seeks 

prospective injunctive relief. See Puerto Rico Aqueduct & SewerAuth. v. Metcalf & Eddy, Inc., 

506 U.S. 139, 146 (1993). 

I. Plaintiff's claim under the ADA 

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Because Title I of the ADA does not abrogate Oregon's sovereign immunity, 1 this 

Court's analysis focuses on whether defendant voluntarily and unequivocally waived its 

immunity in this case. Plaintiff argues that defendant's voluntary offer of judgment under Fed. R. 

Civ. P. 68 unequivocally waived its immunity. But plaintiff cites no case law, and this Court is 

not aware of case law supportive of this proposition? This Court declines to recognize an offer 

of judgment as an unequivocal waiver of immunity, particularly when such recognition would 

undermine judicial policy. See Marek v. Chesny, 4 73 U.S. 1, 5 (1985) ("The plain purpose of 

Rule 68 is to encourage settlement and avoid litigation."). Thus, plaintiffs ADA claim against 

defendant Oregon Department of Corrections is dismissed. 

Plaintiff may, in an amended complaint, assert an ADA claim under the Ex parte Young 

exception to sovereign immunity. As indicated, that exception is narrow and applies only to 

claims against state officials for "prospective injunctive relief in order to end a continuing 

violation of federal law." See Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 73 (1996) (citation 

and internal quotation marks omitted); see also Prowell v. Oregon, Civ. No. 03-80-HA, 2003 

WL 23537979, at *5-6 (D. Or. Aug. 11, 2003) ("To state a claim under Ex Parte Young a 

plaintiffs suit alleging a violation of federal law must be brought against individual persons in 

their official capacities and the relief sought must be prospective in effect."). 

II. Plaintiff's claim under ORS § 659A.112 

Qefendant is only subject to claims under O~S § 659A.112 if immunity has been waived. 

Defendant's offer of judgment did not accomplish this waiver, see supra § I, nor does ORS § 

1 Title I of the ADA does not abrogate a state's sovereign immunity, and it may not be used to recover monetary 

damages against a state, a state agency, or a government official acting within his or her official capacity. Bd. of Trs. 

of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (200 1 ). 2 This Court notes that Fed. R. Civ. P. 68(b) provides, in relevant part: "[e]vidence of an unaccepted offer is not 

admissible except in a proceeding to determine costs." See also 13 MOORE's FEDERAL PRACTICE § 68.05 (Matthew_ 

Bender 3d. ed. 2014) ("It is improper ... to file an unaccepted Rule 68 offer of judgment with the court, except in 

connection with a proceeding to determine costs or to determine whether an offer of complete relief has mooted the 

case."). 

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Case 6:14-cv-02027-MC Document 17 Filed 04/20/15 Page 3 of 4
659A.112 specify Oregon's intention to be sued infederal court, see Micomonaco v. 

Washington, 45 F.3d 316,319 (9th Cir. 1995) ("[I]n order for a state statute to constitute waiver 

of Eleventh Amendment immunity, the statute at issue must specify the state's intention to be 

sued infederal court, because the state has a constitutional interest in where it may be sued." 

(emphasis in original) (citation omitted)). Thus, defendant's motion to dismiss plaintiffs claim 

under ORS § 659A.112 is GRANTED. Plaintiffs claim under ORS § 659A.112 is dismissed 

without prejudice so that plaintiff may reassert his claim, if he chooses to do so, in state court. 

See Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988) (noting that "[o]rdinarily, a case 

dismissed for lack of subject matter jurisdiction should be dismissed without prejudice so that a 

plaintiff may reassert his claims in a competent court" (citation omitted)). 

CONCLUSION 

For these reasons, defendant's partial motion to dismiss, ECF No.9, is GRANTED. 

Plaintiff is allowed fourteen days from the date of this order to file an amended complaint curing 

the deficiencies identified above. 

IT IS SO ORDERED. 

DATED this 20th day of April, 2015. 

4 - OPINION AND ORDER 

\, L---

Michael J. McShane 

United States District Judge 

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