UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

ELUID NEWSOME, 

Plaintiff, 

v. 

STATE OF OREGON-OREGON HEALTH 

AUTHORITY, 

Defendant. 

ACOSTA, Magistrate Judge: 

Introduction 

Case No. 3:16-CV-00561-AC 

FINDINGS AND 

RECOMMENDATION 

Plaintiff, Eluid Newsome ("Newsome"), brings this lawsuit pursuant to 42 U.S.C. § 1983 

alleging violations of his Fourteenth Amendment due process rights. Newsome alleges defendant 

State of Oregon ("Oregon") violated his substantive and procedural due process rights with respect 

to an administrative investigation which resulted in a finding of "substantiated abuse" against 

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Newsome and the termination of his employment. Oregon moves to dismiss pursuant to Federal 

Rule of Civil Procedure ("Rule") 12(b)(2) and 12(b)(6) on two grounds: (1) it is immune from suit 

in federal court under the Eleventh Amendment; and, (2) the State is not a "person" within the 

meaning of 42 U.S.C. § 1983. For the reasons that follow, the State's motion to dismiss should be 

granted. 

Background 

Prior to the termination which precipitated these proceedings, Newsome was employed by 

Adult Leaming Systems of Oregon ("ALSO") as a Direct Support Professional ("DSP"). (Comp!., 

ECF No. 1, at if 2.) His duties as a DSP "includ[ ed] caring for residents of group homes who have 

mental or physical disabilities that require professional care." (Id.) Newsome apparently got in a 

physical altercation with one of the residents on or around March 16, 2014. (Id. at ifif 2-3.) As a 

result, "unknown persons reported that [Newsome] had allegedly abused [the resident,]" which led 

to the administrative investigation. (Id. at if 4.) 

Leslie Davies ("Davies"), a Clackamas County Program Service Investigator, conducted the 

investigation. (Id.) Davies apparently interviewed several individuals in the course of her 

investigation, including Newsome and the alleged victim. (Id.) Ultimately, Davies filed a report that 

substantiated Newsom had abused the resident. (Id.) Newsome alleges that, as a result of Davies' 

report of"substantiated abuse," he was terminated from his job with ALSO and was unemployed for 

three weeks. (Id. at if 5.) Newsome requested a review of the report and it was reviewed by Oregon 

Health Authority Deputy Director John Thompson ("Thompson"). (Id. at if 7.) In a letter to 

Newsome, Thompson upheld the finding of substantiated abuse. (Id.) 

Newsome alleges his procedural due process rights were violated because he was not 

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informed as to the procedures by which contested cases are heard under Oregon's Administrative 

Procedures Act. (Id at if 8.) He alleges he did not receive notice of these procedures because "his 

situation was not properly classified as a 'contested case."' (Id. at if 9.) Newsome asserts he should 

have received a contested case hearing and notice of his appeal rights. (Id.) He also asserts that his 

substantive due process rights have been violated because he "has a right to liberty, which includes 

the right to seek gainful employment, pursue an education, and the right to have his name and 

reputation free of unsupported allegations of abuse." (Id at if 11.) Newsome seeks monetary relief 

on both claims. (Id. at ifif 13, 17.) 

Legal Standards 

I. Motion to Dismiss for Lack of Personal Jurisdiction 

A motion to dismiss for lack of personal jurisdiction is governed by Rule 12(b )(2). See FED. 

R. C1v. P. l 2(b )(2). When opposing a defendant's motion to dismiss for lack of personal jurisdiction, 

"the plaintiffbears the burden of establishing that jurisdiction is proper." Boschetto v. Hansing, 539 

F.3d 1011, 1015 (9th Cir.2008) (citing Sher v. Johnson, 911F.2d1357, 1361 (9th Cir.1990)). In 

evaluating the defendants' motion, "[t]he court may consider evidence presented in affidavits to 

assist it in its determination and may order discove1y on the jurisdictional issues." Doe v. Unocal 

Corp., 248 F.3d 915, 922 (9th Cir. 2001) (citing Data Disc, Inc. v. Systems Technology Assoc., Inc., 

557 F.2d 1280, 1285 (9th Cir. 1977)). If the court does not conduct an evidentiary hearing, "the 

plaintiff need make only a prima facie showing of jurisdictional facts to withstand the motion to 

dismiss." Id (quoting Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). 

II. Motion to Dismiss for Failure to State a Claim 

A motion to dismiss for failure to state a claim upon which relief may be granted is governed 

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by Rule 12(b)(6). See FED. R. Crv. P. 12(b)(6). A well-pleaded claim requires "a short and plain 

statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8( a)(2) (2015). 

To survive a motion to dismiss, a claim "must contain sufficient factual matter, accepted as true, to 

state a claim to relief that is plausible on its face." Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 

2015) ( quotingAschcroft v. Iqbal, 556 U.S. 662, 678 (2009)). "A claim has facial plausibility when 

the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell At!. Corp. v. 

Twombly, 550 U.S. 544, 556 (2007)). The court may "consider only allegations contained in the 

pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Akhtar 

v. Mesa, 698F.3d1202, 1212 (9th Cir. 2012) (quotingSwartzv. KPMG LLP, 476F.3d 756, 763 (9th 

Cir. 2007) ). The court must assume all facts alleged in a claim are true and view them in the light 

most favorable to the plaintiff. Iqbal, 556 U.S. at 678. The court does not assume legal conclusions 

are true. Id. 

Discussion 

Oregon moves to dismiss Newsome' s due process claims for lack of personal jurisdiction on 

the grounds the State is entitled to Eleventh Amendment immunity from suit in this court. It is well 

established that, absent waiver, the Eleventh Amendment bars a suit in federal court against a state 

or agencies acting under its control. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 

506U.S. 139, 144 (1993);Alabamav. Pugh, 438U.S. 781, 782 (1978);Edelmanv. Jordan,415 U.S. 

651, 662-63 (1974). Therefore, a state may not be sued in federal court by a private citizen unless 

the state has waived its sovereign immunity or Congress has abrogated the state's sovereign 

immunity by appropriate federal legislation. Va. Office for Prat. & Advocacyv. Stewart, 131 S. Ct. 

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1632, 1638 (2011). 

I. Eleventh Amendment Immunity 

Newsome asserts due process violations under 42 U.S.C. § 1983 against Oregon. In Quern 

v. Jordan, the Supreme Court held that§ 1983 does not abrogate the states' Eleventh Amendment 

immunity. Quern v. Jordan, 440 U.S. 332 (1979); see also Will v. Michigan Dep't of State Police, 

491 U.S. 58, 66 (1989) (reiterating that Congress, in passing§ 1983, had no intention to disturb the 

States' Eleventh Amendment immunity). In fact, § 1983 claims against the state are "without 

arguable legal basis" unless that state has waived immunity. Jackson v. Arizona, 885 F.2d 639, 641 

(9th Cir. 1989) (superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 

1130 (9th Cir. 2000) (en bane)). Consequently, Newsome's claims are barred by Oregon's Eleventh 

Amendment immunity and should be dismissed. 

II. Oregon Is Not A "Person" Under § 1983 

Furthermore, Oregon is not a "person" under 42 U.S.C. § 1983, and therefore cannot be sued 

under the statute. Will, 491 U.S. at 65. Therefore, even if Oregon waived its Eleventh Amendment 

immunity, which it has not done in this case, Newsome would still be unable to assert his § 1983 

claims against the state. 

III. Leave to Amend 

The Ninth Circuit has repeatedly held that dismissal without leave to amend is improper, 

even if no request to amend the pleading was made, unless it is clear that the defective pleading 

cannot possibly be cured by the allegation of additional facts. Snell v. Cleveland, Inc., 316 F .3d 822, 

828 n.6 (9th Cir. 2002) (citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th Cir. 2001)); Lopez 

v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000). In this case, because Eleventh Amendment 

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immunity bars Newsome' s claims against Oregon, any amended claims against the state (or one of 

its agencies) would be futile. However, Newsome indicates in his Response to Defendant's Motion 

to Dismiss that he intends to amend his complaint to assert claims against Thompson, an individual. 

Because it is unknown whether the facts alleged state a claim against Thompson, the court should 

give Newsome leave to amend his complaint to assert claims against Thompson. 

Recommendation 

For the reasons stated above, Defendant's Motion to Dismiss (ECF No. 7) should be granted. 

Newsome, should be given leave to amend his complaint to assert claims against Thompson. 

This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure Rule 

4(a)(l) should not be filed until entry of the district court's judgment or appealable order. 

The Report and Recommendation will be referred to a district judge. Objections to this 

Report and Recommendation, if any, are due no later than fourteen (14) days from today's 

date. If objections are filed, any response is due fourteen (14) days from the date of the 

objections. See Rule 72, 6. Parties are advised that the failure to file objections within the 

specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 

F.2d 1153 (9th Cir. 1991). 

DATED this 22"d day of August, 2016. 

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l /'' 1· , I ! /! ! )r \,. ,_,,. \ I ~¢~V·~·~ 

\JOHN V. ACOSTA 

Unite{lStates Magistrate Judge 

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