Graham v. Brown
| Decision Date | 04 November 2021 |
| Docket Number | Civ. No. 6:21-cv-00141-AA |
| Parties | Lindsey GRAHAM; Glamour!, LLC, Plaintiffs, v. Kate BROWN; State of Oregon; Rebecca Jones Gaston; Joel Baxter; Ronika Ferguson; Omar Ruiz; Sylvie Donaldson, Defendants. |
| Court | U.S. District Court — District of Oregon |
Ross A. Day, Day Law, P.C., Tigard, OR, for Plaintiffs.
Marc Abrams, Christina L. Beatty-Walters, Oregon Department of Justice, Portland, OR, for Defendants.
This case comes before the Court on a Motion to Dismiss filed by Defendants. ECF No. 2. The Court concludes that this motion is suitable for resolution without oral argument. For the reasons set forth below, the Motion is GRANTED. The Complaint is dismissed with leave to amend.
To survive a motion to dismiss under the federal pleading standards, the complaint must include a short and plain statement of the claim and "contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Id. The court is not required to accept legal conclusions, unsupported by alleged facts, as true. Id.
Plaintiff Glamour!, LLC ("Glamour") is an Oregon limited liability company with its principal place of business in Marion County, Oregon. Compl. ¶ 11. ECF No. 1. Glamour, "though its independent contractors," offers hair styling, tanning, and other cosmetology services. Id. at ¶ 25. Plaintiff Lindsey Graham is the owner and sole member of Glamour and a resident of Marion County, Oregon. Id. at ¶¶ 10-11. Both Glamour and Graham hold licenses to provide services issued by the relevant Oregon state agencies. Id. at ¶¶ 26-31. Glamour's business space is leased from the City of Salem. Id. at ¶ 65.
Defendant Kate Brown is the Governor of Defendant State of Oregon. Compl. ¶ 12. Defendant Rebecca Jones Gaston is the Director of the Child Welfare Division of the Oregon Department of Human Services ("DHS"). Id. at ¶ 16. Defendants Joel Baxter, Ronika Ferguson, and Omar Ruiz are employees of DHS. Id. at ¶¶ 17-19. Defendant Sylvie Donaldson is the Section Manager of the Health Licensing Office of the Public Health Division of the Oregon Health Authority. Id. at ¶ 20.
In late 2019 and early 2020, COVID-19 emerged as a pandemic disease. COVID-19 is a virus which causes respiratory disease that may lead to serious illness or death. Executive Order ("EO") 20-12, available at https://www.oregon.gov/gov/admin/Pages/eo_20-12.aspx (last accessed November 3, 2021). "COVID-19 spreads person-to-person through coughing, sneezing, and close personal contact, including touching a surface with the virus on it and then touching your mouth, nose, or eyes." Id. "To reduce the spread of COVID-19, the United States Centers for Disease Control and Prevention (CDC) has recommended community mitigation strategies to increase containment of the virus and to slow transmission of the virus, including cancellation of gatherings of people and social distancing in smaller gatherings." Id.
On March 8, 2020, Governor Brown declared a state of emergency under ORS 401.165 et seq. "due to the public health threat posed by the novel infectious coronavirus." EO 20-12. On March 13, 2020, President Trump likewise declared the COVID-19 outbreak to be a national emergency. Id. Governor Brown issued a series of executive orders in response to the emergency posed by COVID-19, aimed at stemming the tide of the virus. Id.
In response to the rising number of COVID-19 cases, Governor Brown issued EO 20-12 on March 23, 2020 "to protect the health and lives of Oregonians, particularly those at highest risk and to help avoid overwhelming local and regional healthcare capacity." EO 20-12. Among other things, EO 20-12 provided:
EO 20-12, available at https://www.oregon.gov/gov/admin/Pages/eo_20-12.aspx (last accessed November 3, 2021).
The restrictions of EO 20-12 did not apply to cosmetology services that are "provided as part of the health and safety of those living in senior housing and long term care setting," which were "permitted to operate under current facility contracts while adhering to guidance and policies on screening, social distancing, personal protection equipment and sanitization guidelines that the facility has in place." Compl. ¶ 40.1
Plaintiffs were subject to EO 20-12. Compl. ¶ 39. Consistent with EO 20-12, Plaintiffs stopped their operations on March 24, 2020. Id. at ¶ 45. On May 2, 2020, Graham decided she would no longer comply with EO 20-12. Id. at ¶ 54. On May 3, 2020, Graham announced on social media that Glamour would reopen on May 5, 2020. Id. at ¶ 57. Plaintiffs planned reopening was reported in the news media on May 4, 2020. Id. at ¶ 59.
On May 4, 2020, a representative of the Oregon Occupational Safety and Health Administration ("OSHA") notified Plaintiffs that they might be subject to a fine if they went forward with the reopening. Compl. ¶ 61. Plaintiffs allege that the OSHA representative never returned to Glamour. Id. at ¶ 63. Plaintiffs do not allege that they were ever fined or sanctioned by OSHA.
Plaintiffs went forward with the planned reopening on May 5, 2020 at an event attended by hundreds of people and covered by the news media. Compl. ¶ 64. Governor Brown made public comments critical of Plaintiffs' reopening. Id. at ¶ 69.
On May 5, 2020, Plaintiffs received a notice from the City of Salem "suggesting that Glamour may be in violation of its lease, and therefore may be in default of Glamour's lease with the city of Salem." Compl. ¶ 65. The City of Salem never took action against Plaintiffs. Id. at ¶ 66. The City of Salem is not a party to this action.
On May 6, 2020, Plaintiffs received a letter from the Oregon state agency that licenses Plaintiffs. Compl. ¶ 67. The letter threatened Plaintiffs with civil penalties, license forfeiture, and criminal penalties for Plaintiffs' failure to comply with EO 20-12. Id. The Complaint does not allege that Plaintiffs were ever penalized by the licensing agency.
On May 6, 2020, DHS received an anonymous complaint concerning Graham and her children. Compl. ¶ 71. Joel Baxter received the complaint as the DHS call screener. Id. at ¶¶ 71, 75. Baxter consulted with his supervisor, Ronika Ferguson. Id. at ¶ 75. The case was assigned to DHS caseworker Omar Ruiz. Id. at ¶ 76. On May 8, 2020, Ruiz contacted Graham concerning the report and on May 11, 2020, Ruiz interviewed Graham and her family. Id. at ¶¶ 77-78. Following the interview, Ruiz found that the complaint was "unfounded/unsubstantiated" and closed the investigation. Id. at ¶ 79. The Complaint does not allege that any further action was taken against Graham or her family by DHS.
On May 14, 2020, Governor Brown issued EO 20-25, which superseded EO 20-12 and instituted a phased re-opening of closed businesses aimed at "balanc[ing] important health outcomes with the need to restore and strengthen Oregon's social and economic wellbeing." EO 20-25, available at https://www.oregon.gov/gov/admin/Pages/eo_20-25.aspx (last accessed November 1, 2021).
Plaintiffs filed this action on December 18, 2020 in Marion County Circuit Court and Defendants removed the case to this Court on January 28, 2021. ECF No. 1.
Plaintiffs brings a claim for violation of civil rights pursuant to 42 U.S.C. § 1983. This first claim is divided into five counts alleging (1) violation of Plaintiffs' procedural due process rights against Governor Brown and the State of Oregon; (2) violation of Plaintiffs' equal protection rights against Governor Brown and the State of Oregon; (3) retaliation for exercise of First Amendment rights against all Defendants; (4) violation of Plaintiffs' substantive due process rights against all Defendants; (5) and an unlawful taking in violation of the Fifth and Fourteenth Amendment against Governor Brown and the State of Oregon. Plaintiffs' second claim for relief alleges "intentional or negligent infliction of emotional distress" on behalf of Graham against the individual Defendants. Plaintiffs' third claim alleges abuse of process and wrongful use of civil proceedings against all Defendants. Plaintiffs' fourth claim seeks a declaratory judgment that Governor Brown and the State of Oregon violated Article I, section 18 of the Oregon Constitution and that all Defendants violated Article I, section 20 of the Oregon Constitution. Plaintiffs...
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