IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MICHAEL MARK MARTIN, 

Plaintiff, 

v. 

OREGON DEPARTMENT OF 

CORRECTIONS, MICHAEL GOWER, 

JEFF PREMO, D. E. LONG, DR. DAGNER, 

PhD, J. LAWSON, SANDRA AGUINAGA, 

NANCY GREEN, CHEMEKETA 

COMMUNITY COLLEGE, OREGON STATE 

BOARD OF HIGHER EDUCATION, and 

JOHN & JANE DOES, 

Defendants. 

PAPAK, Magistrate Judge: 

6:15-CV-226-PK 

OPINION AND ORDER 

On February 9, 2015, plaintiff prose Michael Mark Maitin, an incarcerated prisoner, 

filed this action in Jonna pauperis against defendants Oregon Department of Corrections 

("ODOC"), Michael Gower, Jeff Premo, D. Long, Dr. Dagner, J. Lawson, and John and Jane 

Page 1 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 1 of 18
Does (collectively, the "original ODOC defendants"), each individual defendant purportedly in 

both his individual and official capacities. 1 Martin amended his complaint effective November 3, 

2015. Also on November 3, 2015, I granted Martin leave to substitute Sandra Aguinaga 

(collectively with the original ODOC defendants, the "ODOC defendants") for fictitiouSly named 

· defendant Jane Doe. On March 11, 2016, I granted Matiin leave to amend his complaint a 

second time and to add as additional defendants Chemeketa Community College (the "College") 

and the College's former employee, Nancy Green (collectively, the "College defendants"). 

Although Matiin's second amended complaint is not a model of clarity, my analysis suggests that, 

by and through his second amended complaint, Martin intended to allege (i) the ODOC 

defendants' liability under 42 U.S.C. § 1983 for the violation of his Eighth Amendment right to 

adequate medical treatment and housing conditions, (ii) all defendants' liability under Section 

1983 for the violation of his right under the First Amendment to file grievances regarding the 

terms and conditions of his confinement, (iii) all defendants' liability under Section 1983 for the 

violation of his due process rights under the Fomieenth Amendment, (iv) all defendants' liability 

under Title II of the Americans with Disability Act (the "ADA"), (v) all defendants' liability 

under Section 504 of the Rehabilitation Act (the "RA"), and (vi) all defendants' liability for the 

violation of his right to full-time employment or on-the-job vocational training while 

incarcerated as guaranteed under Atiicle I, Section 41 of the Oregon Constitution. The College 

1 Because it is well established that atl official-capacity suit under 42 U.S.C. § 1983 

"represent[s] only another way of pleading an action against an entity of which an officer is an 

agent," Kentucky v. Graham, 473 U.S. 159, 165 (1985), quoting 1vfonell v. Dep 't of Soc. Servs. of 

NY. C., 436 U.S. 658, 690 n.55 (1978), I construe Matiin's claims to the extent alleged against 

the defendants in their official capacities as though instead alleged against the State of Oregon. 

See Hafter v. 1vfelo, 502 U.S. 21, 25 (1991). 

Page 2 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 2 of 18
moved to dismiss Martin's claims against the College defendants on May 18, 2016. 

Martin amended his complaint a third time effective June 15, 2016, after the College's 

motion to dismiss was filed, adding as an additional defendant the Oregon State Board of Higher 

Education (the "Board"). My analysis of Martin's third amended complaint suggests that he did 

not otherwise intend his amendments of June 15, 2016, to effect significant modification of his 

claims as set f01ih in his second amended complaint. 

Now before the comi is the College's Federal Civil Procedure Rule 12(b)(6) motion (#70) 

to dismiss Maiiin's claims against the College defendants for failure to state a claim. I have 

considered the motion and all of the pleadings and papers on file. For the reasons set foiih 

below, the College's motion is granted in part and denied in part, as discussed below. 

LEGAL STANDARDS 

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint 

must contain more than a "fo1mulaic recitation of the elements of a cause of action;" specifically, 

it must contain factual allegations sufficient to "raise a right to relief above the speculative level." 

Bell Atlantic Corp. v. Twombly, 550 U.S. 433, 555 (2007). To raise a right to relief above the 

speculative level, "[t]he pleading must contain something more ... than ... a statement of facts 

that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright 

& A. Miller,. Federal Practice and Procedure§ 1216, pp. 235-236 (3d ed. 2004); see also Fed. R. 

Civ. P. 8(a). Instead, the plaintiff must plead affirmative factual content, as opposed to any 

merely conclusory recitation that the elements of a claim have been satisfied, that "allows the 

cou1i to draw the reasonable inference that the defendant is liable for the misconduct alleged." 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), citing Twombly, 550 U.S. at 556. "In sum, for a 

Page 3 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 3 of 18
complaint to survive a motion to dismiss, the non-conclusory 'factual content, and reasonable 

inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to 

relief." i\1oss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009), citing Iqbal, 556 

U.S. at 678. 

"In ruling on a l 2(b )( 6) motion, a court may generally consider only allegations contained 

in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial 

notice." Swartz v. KP1'.1G LLP, 476 F.3d 756, 763 (9th Cir. 2007). In considering a motion to 

dismiss, this court accepts all of the allegations in the complaint as true and constrnes them in the 

light most favorable to the plaintiff. See Kahle v. Gonzales, 474 F.3d 665, 667 (9th Cir. 2007). 

Moreover, the coUli "presUlne[ s] that general allegations embrace those specific facts that are 

necessary to suppmi the claim." Nat'/ Org. For Women v. Scheidler, 510 U.S. 249, 256 (1994), 

quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). The COUli need not, however, 

accept legal conclusions "cast in the form of factual allegations." Western }vfining Council v. 

Watt, 643 F.2d 618, 624 (9th Cir. 1981). 

The comi must construe the pleadings of a pro se litigant more leniently than those of a 

lawyer. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). When, as here, the plaintiff 

is pro se in a civil rights case, it is the comi' s duty "to construe the pleadings liberally and to 

afford the [plaintiff] the benefit of any doubt." Bretz v. Kelman, 773 F.2d 1026, 1027 n.l (9th 

Cir. 1985) (en bane). A prose plaintiff should be given leave to amend the complaint unless an 

amendment could not cure the complaint's deficiencies. Lopez v. Smith, 203 F.3d 1122, 1130-31 

(9th Cir. 2000) (en bane). 

Page 4 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 4 of 18
FACTUAL BACKGROUND 

I. The Parties 

Plaintiff Mattin is an incarcerated prisoner currently housed at the Columbia River 

Correctional Institution, but previously, and at all material times, housed either at the Oregon 

State Penitentiary ("OSP") or the Snake River Correctional Facility ("SRCF"). Mattin's 

originally filed complaint contains exhibits constituting evidence sufficient to establish that 

Martin had available to him while incarcerated at OSP and SRCF a three-level grievance 

procedure consistent with the regulations set forth in Chapter 291, Division 109, of the Oregon 

Administrative Rules. 

Defendant ODOC is, and at all material times was, an agency of the State of Oregon 

charged with managing the state prison system. Defendant Gower is, and at all material times 

was, employed by ODOC as Assistant Director of the Operations Division. Defendant Premo is, 

and at all material times was, employed by ODOC as Superintendent of the OSP. At all times 

material to Martin's complaint defendant Long was employed by ODOC as a Co11'ectional 

Captain. Defendant Dagner was, at all material times, employed by ODOC as a Conectional 

Physician Specialist. Defendant Lawson was, at all material times, employed by ODOC as a 

Grievance Coordinator. Defendant Aguinaga is, and at all material times was, an employee of 

OSP in its education depaitment. Defendant the College is a community college located in 

Oregon and receiving some funding from the State of Oregon. Defendant Green is a former 

employee of the College. Defendant the Board is the statut01y governing board for the Oregon 

University System. Martin does not allege the identities of the fictitiously named Doe 

defendants, and does not specify the roles they played in the complained-of conduct. 

Page 5 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 5 of 18
II. Martin's Allegations Regarding the Parties' Dispute 

Mmiin has been in ODOC custody since December 18, 2013. See original ODOC 

Defendants' Answer (#17), ~ 7. On an unspecified date Martin was assigned to and resided in 

cell E-272 with a cellmate. Cell E-272 is on the second floor ofOSP. Martin was assigned to 

the upper bunk. On March 14, 2014, Mmiin fell while climbing down from his bunk and struck 

his right knee on the cell floor. Mmiin asked for help from the duty officer and was told to speak 

to the pill-line staff at normal medication rounds. All meals and the medication rounds occur on 

the first floor ofOSP. The medication nurse told Martin to speak to Sergeant Branch, who 

advised Martin to place a medical request form into the mailbox. Mmiin returned to his second 

floor cell and completed the paperwork. He attempted to give the paperwork to the duty officer, 

and was told to deliver it to the mailboxes on the first floor in the morning. 

Martin delivered his medical request paperwork to the mailbox on March 15, 2014, 

informed the officer on duty at the pill line about his fall, and showed the medication nurse that 

his pant leg could not be pulled over his swollen knee. That evening, Martin asked for help from 

the medication nurse because he could not put weight on his leg. The following morning, Mmiin 

was attempting to get to breakfast and was asked by Sergeant Warren if he was all right. 

Sergeant Warren told Mmiin his knee looked pretty bad. 

On March 17, 2014, Mmiin remained in his cell as he was unable to climb down from his 

bunk and ,elevated the leg to relieve swelling. The following day Martin was summoned to 

medical to see defendant Dagner. The doctor used a reflex hammer on Mmiin's knee two or 

three times before Martin asked him to stop due to pain. Dr. Dagner said the knee was not 

broken, but ordered precautionary x-rays, and placed Martin on crutches. Dr. Dagner gave 

Page 6 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 6 of 18
Martin some light exercises to perfmm and ordered a lower bunk/lower tier restriction, as well as 

a knee suppo1i. On March 19 Martin placed an inmate request about the knee support asking 

when he would receive the support. 

·On March 21, 2014, Matiin's knee was x-rayed. On March 25 Martin was called to see 

Dr. Dagner, who asked why Matiin was not immobilizinghis knee. Dr. Dagner told Matiin there 

was a lateral fracture of the patella and placed a velcro cast to immobilize the knee. Matiin 

advised Dr. Dagner that he had not been moved to a lower bunk, and Dr. Dagner again ordered a 

restriction to a lower bunk and lower tier and added a restriction of no stairs. Matiin was told to 

stop any exercise and to elevate his leg. On return to his cell, Martin informed the unit officer of 

the doctor's orders. The following day Mmiin was told the doctor had not entered an order for a 

lower tier lower bunk and no stairs. Martin continued to climb stairs for each meal and use the 

upper bunk for approximately two weeks, despite his belief that there were ground floor cells 

available. 

On April 14, 2014, Martin filed grievance number OSP-2014-06-005, apparently 

complaining about the cell size and upper bunks without ladders to access them. On April 20 

Maiiin told Sargent Marthaller about the situation. Sargent Maiihaller immediately moved 

Martin to cell Ee 185, which met Dr. Dagner's restrictions. 

In late April or early May Martin was notified that he was to report to the fomih floor 

education depaiiment for work duties. Accordingly, Maiiin climbed four flights of stairs at least 

twice daily while on crutches and in a leg brace, against doctor's orders, until August 2014. 

On July 17, 2014, Maiiin staiied to keep ajoumal and his first appeal of grievance 

number OSP-2014-06-005 was accepted by defendant Lawson. The following day Maiiin was 

Page 7 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 7 of 18
moved from cell E-185 to cell E-101. Cell E-101 is undesirable because it lacks privacy and is 

extremely noisy. Martin asked Officer Richards why he was being moved and was told Captain 

Long said Mat1in had asked for the move. Martin contends Captain Long moved him to the 

undesirable cell out ofretribution for Martin's grievance appeal. On July 20, 2014, Mai1in filed a 

new grievance about the cell change and Long's retribution. 

On July 24 Mai1in filed a move request form and was told he would remain in that cell 

until Captain Long returned from vacation. The following day Sargent Marthaller told lVIartin he 

had been moved for his own safety. On July 26 Martin was harassed by fellow inmates because 

cell E-101 is notorious for housing seX: offenders and informants requiring protection. 

Martin met with Sargent Matihaller and Ms. Padilla on July 29, 2014. Mai1in described 

his knee inju1y, the move to the undesirable cell, and his grievance. Ms. Padilla took notes and 

said she would speak to her superiors. The following day Matiin was moved into a much better 

cell, E-138, with more privacy. Mmiin met with his psychiatric counselor, Mr. Govro, on August 

1, 2014, and described anxiety over the possibility that Captain Long would transfer him from 

OSP and prevent Martin from taking an automotive vocational training class provided through 

defendant the College. On that date, Mat1in's grievance about the Captain's retaliation was 

assigned number OSP-2014-07-069. 

On August 4, 2014, Captain Long came to the education depat1ment on the fom1h floor 

and asked Martin to come to his office after work. Captain Long said he moved Mm1in from E185 to E-101 for his physical safety. Mat1in said that did not make any sense because E-185 was 

on the ground floor with a single bunk. Captain Long then told Martin he was concerned Martin 

would fake an injury to enhance a lawsuit. Matiin was no longer on crutches or using a knee 

Page 8 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 8 of 18
brace. Martin thought Captain Long threatened to take his job away. Captain Long advised 

Matiin to see the doctor and have the stair restriction removed. Other inmates told Mmiin he 

would soon be transferred. 

On August 7 Mmiin spoke with his counselor, Ms. Dennis, about his fear of transfer, the 

Captain's threats about his job, and his fear of being transfe!Ted to an undesirable double cell. On 

August 11, Martin appealed grievance OSP-2014-07-069 regarding Captain Long's retaliation, 

asserting that transferring him to prevent complaints or a lawsuit violated his civil rights. Two 

days later Captain Long informed Martin he was no longer allowed to work on the fourth floor 

due to the stair restriction. On August 20, 2014, Martin was transferred to the Snake River 

C01Tectional Facility ("SNCF") on Captain's Long's order. It is Mmiin's position that the transfer 

was retaliat01y, and caused him to lose the opportunity to participate in the Residential Drug 

Program and Transitional Leave. Matiin contends that in order to complete the Automotive 

Vocational Program with a November 2015 stmi date, he will have to remain in custody for an 

additional year. 

On August 23 Martin appealed grievance number OSP-2014-06-005. The following day 

Matiin filed two additional grievances, one for OSP's failure to respond to grievance number 

OSP-2014-06-005A and one alleging his transfer to SRCF was an act of retaliation by Captain 

Long. 

On September 7, 2014, the doctor removed the stair restriction from Martin's orders. The 

following month Martin's counselor, Mr. Lewandowski, advised Mmiin that there was a new 

medical restriction preventing Martin's return to OSP. In November 2014 the doctor told Mmiin 

the continuing numbness in his foot was normal and would dissipate over time. Because Mmiin 

Page 9 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 9 of 18
was at SNCF and not OSP, he was not able to start the Automotive Vocational Technology 

program offered through the College and operated by the College's employee defendant Green. 

The program apparently lasts a year and commenced each November. 

Martin filed his Complaint in this court on Februmy 2, 2015, contending he received 

substandard medical care, was not allowed to follow his doctor's orders, and that the cells at OSP 

were too small and dangerous because they lacked ladders to the upper bunks. 

On April 17, 2015, Martin met with his counselor and had a telephone interview for the 

Automotive Vocational Technology program at OSP and was accepted into the program. The 

following week Matiin was transferred back to OSP. In May 2015 ladders were installed in OSP 

cells, and complaining inmates were told to address the issue with the inmate who filed a lawsuit, 

which Martin found threatening. 

ANALYSIS 

As noted above, Matiin alleges the liability of the College defendants under Section 1983 

for the violation of his rights under the First Amendment and for the violation of his due process 

rights under the Fmnieenth Amendment, under Title II of the ADA and Section 504 of the RA, 

and for the violation of his right to full-time employment or on-the-job vocational training while 

incarcerated as guaranteed under Article I, Section 41 of the Oregon Constitution. I address the 

patiies' arguments in connection with those claims in tum, below. 

I. Notice of Tort Claims Under the Oregon Tort Claims Act 

The College moves to dismiss all of Martin's claims against the College Defendants for 

failure to provide notice of tort claims under the Oregon Tort Claims Act (the "OTCA"). Oregon 

Revised Statute 30.275(a), codifying the notice provision of the OTCA provides as follows: 

Page 10 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 10 of 18
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 [governing Oregon statutory tort claims against public bodies] shall be 

maintained unless notice of claim is given as required in this section. 

O.R.S. § 30.275(a). 

Although compliance with the notice requirement of the OTCA is "a mandatory 

requirement and a condition precedent to recove1y under the Oregon Tort Claims Act," Urban 

Renewal Agency v. Lackey, 275 Or. 35, 40 (1976), it is wholly inapplicable to federal claims, 

because the Oregon legislature lacks authority to impose limitations on the rights of plaintiffs to 

the protections of federal law. See Rogers v. Saylor, 306 Or. 267, 277-278 (1988). The College's 

OTCA t01t notice argument is therefore without merit to the extent it addresses Martin's Section 

1983, ADA, and RA claims. Moreover, for reasons set forth below, it is clear that Martin cannot 

state a claim against the College defendants under Article I, Section 41 of the Oregon 

Constitution. The court therefore need not address the question whether Mmtin's Oregon 

constitutional claim could be construed as arising within the scope of Or. Rev. Stat. §§ 30.260 to 

30.200. The College's motion (#70) is therefore denied to the extent premised on Martin's 

purported failure to comply with OTCA tort notice provisions. 

II. Martin's Section 1983 Claims 

In two separate claims, Mmtin alleges the College defendants' liability under Section 

1983 for the violation of his Fourteenth Amendment due process rights and for the violation of 

his rights under the First Amendment. Section 1983: 

affords a "civil remedy"' for deprivations of federally protected rights caused by 

persons acting under color of state law without any express requirement of a 

particular state of mind. Accordingly, in any § 1983 action the initial inqui1y must 

focus on whether the two essential elements to a§ 1983 action are present: 

Page 11 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 11 of 18
( 1) whether the conduct complained of was committed by a person acting under 

color of state law; and (2) whether this conduct deprived a person of rights, 

privileges, or immunities secured by the Constitution or laws of the United States. 

Parratt v. Taylor, 451 U.S. 527, 535 (1981). It is undisputed for purposes of the College's 

motion that the College defendants are state actors. 

A. Martin's Fourteenth Amendment Claim 

Martin alleges the liability of the College defendants under Section 1983 for the violation 

of his due process rights under the Fourteenth Amendment arising out of their conduct in denying 

him entry to the Automotive Vocational Technology program. The Fourteenth Amendment 

prohibits the deprivation of liberty or prope1iy without due process of law. To prevail on a 

procedural due process claim under Section 1983, a plaintiff must establish: "( 1) a libe1iy or 

property interest protected by the Constitution; (2) deprivation of the interest by the government; 

and (3) lack of process." Wright v. Rive/and, 219 F.3d 905, 913 (9th Cir. 2000) (internal 

modifications omitted), quoting Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 

1993). 

A due process claim is cognizable only ifthere is a recognized liberty or property interest 

at stake. It is well established that a convicted prisoner has no protected liberty or property 

interest in a vocational instruction course because there is no constitutional right to rehabilitation. 

Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985) (citing Hoptowit v. Ray, 682 F.2d 1237, 

1254-55 (9th Cir. 1982); see also Coakley v. 1\!Jwphy, 884 F.2d 1218, 1221 (9th Cir. 1989); Smith 

v. Lambert, 12 Fed. Appx. 570, 571 (9th Cir. 2001). Accordingly, Maiiin's Fomieenth 

Amendment claim against the College defendants is without merit, and the College's motion 

(#70) is granted with prejudice to the extent it addresses the Fourteenth Amendment claim. 

Page 12 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 12 of 18
B. ~Iartin's First Amendment Claim 

Martin alleges the liability of the College defendants under Section 1983 for the violation 

of his rights under the First Amendment arising out of their conduct in denying him access to the 

Automotive Vocational Technology program in retaliation for exercising his First Amendment 

right to file this lawsuit, and, more specifically, for adding defendant Aguinaga as a defendant 

herein. A properly pied complaint which alleges retaliation for the exercise of a constitutional 

right states a cause of action under 42 U.S.C. § 1983. }vlt. Healthy City Bd Of Ed. V Doyle, 429 

U.S. 274 (1977). The claim must include an allegation that the plaintiff engaged in conduct that 

is constitutionally protected and that the conduct was a substantial or motivating factor for the 

defendant's action. Id. at 287. 

"A prisoner suing state prison officials under section 1983 for retaliation must allege that 

he was retaliated against for exercising his constitutional rights and that the retaliatmy action 

does not advance legitimate penological goals, such as preserving institutional order and 

discipline." Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994); Rizzo v. Dawson, 788 F.2d 

527, 531 (9th Cir. 1985). "To demonstrate retaliation in violation of the First Amendment, 

[plaintiff! must ultimately prove that [defendants] took action that 'would chill or silence a 

person of ordinmy finnness from future First Amendment activities."' Skoog v. Cnty. Of 

Clackamas, 469F.3d 1221, 1231-32 (9th Cir. 2006) (quoting i'vlendocino Envtl. Ctr. v. 

lvlendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999)). Additionally, plaintiff must demonstrate 

that defendants' "desire to chill his speech was a but-for cause of their allegedly unlawful 

conduct." Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013). 

Martin alleges he "began to have problems at his job in education after he wrote a motion 

Page 13 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 13 of 18
to the federal comi asking to add Ms. Sandra Aguinaga to his Federal 1983 suit." Third Am. 

Comp!. at~ 118. Martin alleges that after he filed the motion to amend, Ms. Aguinaga began 

writing him up with 'Daily Fail' repo1is that were "ficticious and retribut01y in nature." Third 

Am. Comp!. at~ 119. Martin contends that after filing the motion, on September 14, 2015, 

Green "called the plaintiff into her office and asked him about his suing 'Sandra."' Third Am. 

Comp!. at~ 120. Martin responded that he "was uncomfortable talking about any legal issues 

due to the fact that Ms. Green was obviously ve1y agitated. Plaintiff was then told that if he was 

suing one of her staff members, then he would be removed from his job in education, as well as 

his VT Automotive Program." Id. Martin contends he was removed from his education job and 

denied access to the VT Automotive program the following day. Third Am. Comp!. at~ 122. 

These allegations are sufficient to state a Section 1983 claim for violation of the First 

Amendment. In consequence, the College's motion (#70) is denied to the extent it addresses 

Mmiin's First Amendment claim. 

III. Martin's ADA and Rehabilitation Act of 1973 Claims 

As noted above, Martin alleges the College defendants violated his rights under the ADA 

and RA by removing him from the Automotive Vocational Technology program. In support of 

his ADA and RA claims, Martin contends: 

On 8-19-2015, Ms. Nancy Green, the college coordinator in charge of the VT 

Automotive program, learned that plaintiff had added one of her staff to his civil 

suit in the federal cou1is. She immediately told him that he would be removed 

from his job and programming, she told him that he probably couldn't perfo1m his 

school [sic] anyway because he [sic] of his knee. This is a direct violation of both 

Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. 12132; and 

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794. 

Third Am. Comp!. at~ 37. 

Page 14 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 14 of 18
Mmiin's claims are properly constrned as "reasonable accommodation" discrimination 

claims. "Discrimination includes a failure to reasonably accommodate a person's disability," 

Sheehan v. City & Cnty. ofS.F., 743 F.3d 1211, 1231 (9th Cir. 2014) (ADA), cert. granted, 135 

S.Ct. 1765 (2015) on remand Sheehan v. City & Cnty. of S.F., 793 F.3d 1009 (9th Cir. 2015); 

1'1/ark H v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010) (Rehabilitation Act). 

Title II of the ADA and the Rehabilitation Act both prohibit the exclusion of a qualified 

individual with a disability from the pmiicipation in, or the denial of benefits of, services, 

programs, or activities of a public entity. 42 U.S.C. § 12132 (ADA); 29 U.S.C. § 794 

(Rehabilitation Act). To prove that a public program or service violated Title II of the ADA, a 

plaintiff must show: (!)he is a "qualified individual with a disability"; (2) he was either 

excluded from pmiicipation in or denied the benefits of a public entity's services, programs, or 

activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, 

denial of benefits, or discrimination was by reason of his disability. Duvall v. Cnty. a/Kitsap, 

260 F.3d 1124, 1135 (9th Cir. 2001). Similar standards apply to the Rehabilitation Act claim. 

Id., see also 1'vlark H, 620 F.3d at 1097-98 (explaining that to establish defendant violated 

section 504 of the Rehabilitation Act by denying plaintiff reasonable accommodation, plaintiff 

had to show: (1) she needed disability-specific services to enjoy meaningful access to the benefits 

of a public education, (2) the defendant was on notice that plaintiff needed those specific 

services, but did not provide those services, and (3) the specific services were available as a 

reasonable accommodation). 

The College points to Mmiin's exhibit X-8 submitted with his second amended 

complaint. The exhibit is a December 2, 2015 memorandum from OSP Superintendent Premo to 

Page 15 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 15 of 18
Martin in which Premo advises Martin he was never admitted to the automotive vocational 

program but had been on a waiting list for the program. Premo asse1ts Martin was not 

guaranteed a place in the program, and that the Oregon Depmiment of Corrections "has full 

discretion on whom to assign to programs." Pltf. Ex. X-8. The memorandum contains several 

allegations of misconduct by Martin. 

Mmtin's ADA and Rehabilitation Act claims fail because he cannot show he was 

otherwise entitled to be included in the Automotive Vocational Technology program. As 

discussed above, prisoners do not have a guaranteed right to educational programs. In addition, 

Mmtin submitted evidence tending to establish that ODOC has discretion about who to admit to 

programs, suggesting that the College defendants were without authority either to admit or deny 

him admission. Moreover, to the extent it is Martin's position that he was removed from or 

denied admission to the vocational program in retaliation for adding Aguinaga as a defendant in 

this lawsuit, that conduct, if established would not give rise to an ADA or RA claim. 

Accordingly, the College's motion (#70) is granted with prejudice to the extent it addresses 

Martin's ADA and RA claims. 

IV. lWartin's Oregon Constitutional Claim 

Mmtin alleges that the College defendants violated Alticle I, Section 41 of the Oregon 

Constitution by denying him pmticipation in the Automotive Vocational Technology program. 

Martin's third amended complaint does not refer to the Oregon Constitution. It is Mmtin's 

position, specifically, that: 

Alticle I, Section 41 of the Oregon Bill of Rights was violated when the 

[defendants] failed to allow the plaintiff to participate in the programs he had 

qualified for even though there was no disciplinmy reason, nor was there any 

Page 16 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 16 of 18
benefit to the safety or security of the institution. These were attempts to stop his 

complaints and to chill his desire to access the cou11s. These actions resulted in 

severe depression, feelings of hopelessness and even suicidal thoughts. This 

resulted in mental and emotional damages that are ongoing. 

Mem. (#68) in Supp011, ~ 7(e). 

Article I Section 41 of the Oregon Constitution provides in relevant part: 

Section 41. Work and training for co11'ections institution inmates; work programs; 

limitations; duties of co11'ections director. .. (2) All inmates of state co11'ections 

institutions shall be actively engaged full-time in work or on-the-job training. The 

work or on-the-job training programs shall be established and overseen by the 

corrections director .... (3) .... However, no inmate has a legally enforceable 

right to a job or to otherwise participate in work, on-the-job training or 

educational programs .... 

Or. Const., Art. I, § 41 (emphasis supplied). 

The plain language of Section 41 (3) precludes Martin's claim that the College defendants 

violated the Oregon constitution by failing to allow Mm1in access to the educational program, in 

that it clearly establishes that he had no "legally enforceable right" under the Oregon constitution 

to participate in the program. Accordingly, Mm1in's Oregon constitutional claim is without 

merit, and the College's motion (#70) is granted with prejudice to the extent it addresses Martin's 

Oregon constitutional claim. 

CONCLUSION 

For the reasons set foith above, the College's motion (#70) to dismiss is granted to the 

extent it addresses Mmtin's Fourteenth Amendment, ADA, RA, and Oregon constitutional claims 

I II 

I II 

I II 

Page 17 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 17 of 18
and is otherwise denied, and those claims are accordingly dismissed with prejudice to the extent 

alleged against the College defendants, or either of them. 

Dated this 9th day of Jannary, 2017. 

onorable Paul 'Papak 

United States Magistrate Judge 

Page 18 - OPINION AND ORDER 

Case 6:15-cv-00226-PK Document 97 Filed 01/09/17 Page 18 of 18