Gunter v. N. Wasco Cnty. Sch. Dist. Bd. of Educ.

• Decision Date: 22 December 2021
• Docket Number: Case No. 3:21-cv-1661-YY
• Citation: 577 F.Supp.3d 1141
• Parties: Jennifer Rae GUNTER, individually and as a natural parent of A.G.; Robert Jay Schwartz, individually and as a natural parent of J.S.; Holly Lynn Gove, individually and as a natural parent of M.G.; Chelsea Elizabeth Perritt, individually and as a natural parent of L.P., Plaintiffs, v. NORTH WASCO COUNTY SCHOOL DISTRICT BOARD OF EDUCATION, Carolyn Bernal, in her individual capacity and in her official capacity as Superintendent of the North Wasco County Public School District; and Rebecca Thistlethwaite, Dawn Rasmussen, David Jones, John Nelson, Brian Stevens, Jose Aparicio, Judy Richardson, all in their individual capacities and in their capacities as members of the North Wasco County School District Board of Education, Defendants.
• Court: U.S. District Court — District of Oregon

577 F.Supp.3d 1141

Jennifer Rae GUNTER, individually and as a natural parent of A.G.; Robert Jay Schwartz, individually and as a natural parent of J.S.; Holly Lynn Gove, individually and as a natural parent of M.G.; Chelsea Elizabeth Perritt, individually and as a natural parent of L.P., Plaintiffs,

v.NORTH WASCO COUNTY SCHOOL DISTRICT BOARD OF EDUCATION, Carolyn Bernal, in her individual capacity and in her official capacity as Superintendent of the North Wasco County Public School District; and Rebecca Thistlethwaite, Dawn Rasmussen, David Jones, John Nelson, Brian Stevens, Jose Aparicio, Judy Richardson, all in their individual capacities and in their capacities as members of the North Wasco County School District Board of Education, Defendants.

Case No. 3:21-cv-1661-YY

United States District Court, D. Oregon.

Signed December 22, 2021

Jennifer Rae Gunter, Robert Jay Schwartz, Holly Lynn Gove, and Chelsea Elizabeth Perritt. Plaintiffs Pro se.

Brett Mersereau, The Law Office of Brett Mersereau, 2100 NE Broadway #119, Portland, OR 97232. Of Attorneys for Defendants.

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiffs Jennifer Rae Gunter, Robert Jay Schwartz, Holly Lyn Gove, and Chelsea Elizabeth Perritt have sued the North Wasco County School District (District) Board of Education (Board) and its Superintendent and Board members. Plaintiffs bring claims both on their own behalf, as parents of children attending school within the District, and on behalf of their minor children. Plaintiffs invoke 42 U.S.C. § 1983, asserting that the Board's compliance with a statewide regulation requiring that schools implement a mask mandate for all school staff, students, and other attendees violates Plaintiffs’ rights under the U.S. and Oregon Constitutions.

Before the Court is Plaintiffs’ motion a temporary restraining order (TRO), asking the Court to enjoin enforcement of the Board's mask mandate for all schools in the District. Also before the Court is Defendants’ motion to dismiss, under Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that Plaintiffs, who are all proceeding pro se , cannot represent other people, even their own children, without a lawyer. Thus, argue Defendants, the Court must dismiss all claims brought on behalf of Plaintiffs’ minor children. Defendants also argue that Plaintiffs fail to state a claim for violation of their own rights under either the U.S. or Oregon constitutions. For the following reasons, the Court grants Defendants’ motion to dismiss and denies Plaintiffs’ motion for TRO as moot.

STANDARDS

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc. , 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co. , 668 F.3d 1136, 1140 (9th Cir. 2012) ; Daniels-Hall v. Nat'l Educ. Ass'n , 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus., Inc. v. Ikon Office Sol. , 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit a plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal , 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr , 652 F.3d at 1216. "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, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Mashiri v. Epsten Grinnell & Howell , 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

Plaintiffs representing themselves, or proceeding pro se , receive special consideration from the Court. A court must liberally construe the filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. Pliler , 627 F.3d 338, 342 (9th Cir. 2010). Further, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Florer v. Congregation Pidyon Shevuyim, N.A. , 639 F.3d 916, 923 n.4 (9th Cir. 2011) (quotation marks omitted). "Unless it is absolutely clear that no amendment can cure the defect, ... a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action." Garity v. APWU Nat'l Lab. Org. , 828 F.3d 848, 854 (9th Cir. 2016) (alteration in original) (quoting Lucas v. Dep't of Corr. , 66 F.3d 245, 248 (9th Cir. 1995) (per curiam)).

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure every complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." This standard "does not require ‘detailed factual allegations,’ " but does demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). "A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’ " Id. (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ).

BACKGROUND

A. Oregon Health Authority's Mask Regulation

Under Oregon Revised Statutes § 413.042, the Director of the Oregon Health Authority (OHA) "may adopt rules necessary for the administration of the laws that the [OHA] is charged with administering." OHA has "direct supervision of all matters relating to the preservation of life and health of the people of [Oregon.]" Or. Rev. Stat. § 431.110(1). OHA also has the authority to, by rule, "prescribe the measures and methods for ... controlling reportable diseases." Or. Rev. Stat. § 433.004(d).

On August 2, 2021, OHA approved Temporary Administrative Order PH 33-2021, which established a new temporary rule, Oregon Administrative Rule (OAR) 333-019-1015, effective from August 2, 2021 through January 28, 2022. This rule required that

Schools must ensure that all individuals, including but not limited to staff, students, contractors and visitors wear a mask ... when in an indoor setting:

(a) At school during regular school hours;

(b) Engaged in educational activities ... during regular school hours; and

(c) At school when engaged in educational activities outside of regular school hours.

OAR 333-019-1015(3) (Aug. 2, 2021). Children under the age of two and persons engaged in certain activities such as eating, sleeping, playing a musical instrument, and participating in certain sports were exempt, and people could wear a face shield if they were unable to wear a mask due to medical reasons. A "mask" was defined as a cloth, polypropylene, paper, or other face covering that rests above the nose and below the mouth. The rule also expressly stated that it did not prohibit schools from complying with the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Individuals with Disabilities Education Act, allowing for reasonable accommodations. Any school that violated OAR 333-019-1015 was subject to civil penalties of $500 per day per violation.

OHA explained its determination of the need for the rule as follows:

Children are required to attend school, which is a congregate setting where COVID-19 can spread easily if precautions are not taken. Two of the most important tools the state has to control COVID-19 are vaccination

and masking. However, currently children under the age of 12 are not eligible to receive the COVID-19 vaccines authorized for emergency use. In order to protect students under age 12, individuals who are not vaccinated, and those with underlying health conditions that make them more susceptible to complications from COVID-19, as well as to minimize the disruption of student education in schools because of exposure to a confirmed or suspected case of COVID-19, requiring universal use of masks inside schools is necessary.

OAR 333-019-1015(1) (Aug. 2, 2021). In adopting this rule, OHA cited documents relied upon and provided links to Centers for Disease Control and Prevention (CDC) documents on masking science and K-12 guidance. Additionally, OHA explained why a temporary rule was justified:

The [OHA] finds that failure to act promptly will result in serious prejudice to the public interest, the [OHA], and students and staff in K-12 schools. These rules need to be adopted promptly so that we can protect, to the greatest extent possible, students, staff and others from being exposed to or contracting COVID-19, for the upcoming 2021-2022 school year. A masking requirement will help to avoid school disruptions from COVID-19 school related outbreaks. Permanent rules cannot be adopted in time to be in effect for the upcoming school year.

On August 13, 2021, OHA approved Temporary Administrative Order PH 36-2021, which...