Hudson v. Hous. Auth. of Portland, , Mun. Corp.
| Decision Date | 05 May 2017 |
| Docket Number | 3:16-CV-02364-BR |
| Parties | FRANK HUDSON, an individual, and all others similarly situated, Plaintiffs, v. HOUSING AUTHORITY OF PORTLAND, a public, municipal corporation, dba HOME FORWARD; HOME FORWARD BOARD OF COMMISSIONERS; MICHAEL BUONOCORE, Home Forward Executive Director, in his official and personal capacity; JIM SMITH, Chair, Home Forward Board of Commissioners, in his official and personal capacity; and RACHAEL RUSSELL, Human Resources Supervisor, in her official and personal capacity, Defendants. |
| Court | U.S. District Court — District of Oregon |
Hudsonlaw, LLC
204 S.W. Fifth Avenue
#40452
Portland, OR 97240
(503) 568-6636
Plaintiff, Pro Se
Harrang Long Gary Rudnick, PC
360 E. Tenth Avenue
Suite 300
Eugene, OR 97401-3273
(541) 485-0220
Attorneys for Defendants
This matter comes before the Court on Defendants' Motion (#11) to Dismiss Plaintiff's First Amended Complaint. For the reasons that follow, the Court GRANTS Defendant's Motion and DISMISSES this matter with prejudice.
The following facts are taken from Plaintiff's First Amended Complaint and accepted as true for purposes of Defendant's Motion.
In November 2014 Plaintiff Frank Hudson, a veteran of the United States Marine Corps, applied for a job with Defendant Home Forward and requested a veterans' preference.
On June 9, 2015, Home Forward advised Plaintiff that it had failed to grant him a veterans' preference.
At some point Plaintiff filed a complaint with Oregon's Bureau of Labor and Industries (BOLI) alleging Home Forward had violated the Oregon veterans' preference statute, Oregon RevisedStatutes § 408.230, when it denied Plaintiff a veterans' preference.
On July 15, 2016, BOLI issued to Plaintiff a Notice of Right to File a Civil Suit in which it advised Plaintiff that he could file an action against Home Forward for violation of § 408.230 within 90 days of the date of the Notice.
On December 27, 2016, Plaintiff Frank Hudson filed in this Court a putative class action Complaint pursuant to 42 U.S.C. § 1983 against Defendants Home Forward, Home Forward Board of Commissioners, Michael Buonocore, and Jim Smith in which he alleged they violated veterans' federal due-process rights when they failed to provide veterans with pre-deprivation hearings before "failing to grant" them veterans' preferences in employment with Home Forward. Plaintiff did not allege a claim for violation of Oregon Revised Statutes § 408.230.
On January 30, 2017, before Defendants filed a responsive pleading, Plaintiff filed a First Amended Complaint to add further factual allegations to support his claim for violation of his veterans' federal due-process rights.
On February 21, 2017, Defendants filed a Motion to Dismiss Plaintiff's First Amended Complaint. The Court took Defendants' Motion under advisement on March 14, 2017. The Court concludes the record is sufficiently developed, and, therefore, oral argument would not be helpful.
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." [Bell Atlantic v. Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. 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. Id. at 556 . . . . 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. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. at 557, 127 S. Ct. 1955 (brackets omitted).
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). See also Bell Atlantic, 550 U.S. at 555-56. The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Novak v. U.S., 795 F.3d 1012, 1017 (9th Cir. 2015).
"In ruling on a 12(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." Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)(citation omitted). A court, however, "may consider a writing referenced in a complaint but not explicitly incorporated therein if the complaint relies on the document and its authenticity is unquestioned." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)(citation omitted).
A pro se plaintiff's complaint "must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007). Thus, the Court has an "obligation [when] the petitioner is pro se . . . to construe the pleadings liberally and to afford the petitioner the benefit of any doubt." Akhtar v. Mesa, 698 F.3d at 1212 (quotation omitted). "[B]efore dismissing a pro se complaint the . . . court must provide the litigant with notice of the deficiencies in his complaint in order to ensure that the litigant uses the opportunity to amend effectively." Id. (quotation omitted). "A district court should not dismiss a pro se complaint without leave to amend unless it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Id. (quotation omitted).
Plaintiff alleges Defendants violated his procedural due-process rights pursuant to the Fourteenth Amendment when they failed to provide him with a pre-deprivation hearing before they declined to apply the veterans' preference set out in Oregon Revised Statutes § 480.230.
Oregon Revised Statutes § 408.230(1) provides:
"A public employer shall appoint [a] . . . qualified veteran . . . to a vacant civil service position if the results of a veteran's . . . application examination, when combined with the veteran's . . . preference, are equal to or higher than the results of an application examination for an applicant who is not a veteran." Or. Rev. Stat. § 408.230(4). Violation of the veteran's preference statute "is an unlawful employment practice." Or. Rev. Stat. § 408.230(6).
A veteran who believes a public employer has violated § 408.230 "may file a verified written complaint with the Commissioner of the Bureau of Labor and Industries [BOLI] in accordance with ORS 659A.820." Or. Rev. Stat. § 408.230(7).
If, after an investigation, BOLI finds substantial evidence supports a claimant's allegations, BOLI may attempt to negotiate a settlement between the parties, prepare formal charges, or dismiss the complaint. Or. Rev. Stat. §§ 659A.840, 659A.845. If BOLI prepares formal charges, a contested case hearing is heldat which the parties may be represented by counsel, testimony is taken upon oath or affirmation of the witness, and a record is created. Or. Rev. Stat. § 183.417(1), (6), (8). At the conclusion of the hearing, BOLI issues findings of facts and conclusions of law. Or. Rev. Stat. § 659A.850(2). If BOLI finds the employer has engaged in an unlawful practice, it issues a cease-and-desist order.
If BOLI dismisses the complaint, it issues a 90-day right-to-sue letter informing the claimant that he has 90 days to file an action against the employer.
As noted, Plaintiff did not bring a claim for violation of Oregon Revised Statutes § 408.230, and he cannot do so now because the 90-day deadline for Plaintiff to file such a claim expired on October 13, 2016, before he commenced this action in this Court. Plaintiff asserts only a claim for violation of his right to procedural due process based on Defendants' failure to provide him with a pre-deprivation hearing before declining to give him a veterans' preference.
The Fourteenth Amendment to the United States Constitution provides "[n]o State shall . . . deprive any person of . . . property, without due process of law." U.S. Const. amend. XIV, § 1. Procedural due process focuses on the procedures involved when a state effectuates a deprivation of protectedinterests. Carey v. Piphus, 435 U.S. 247, 259 (1978)("Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property.").
To obtain relief on § 1983 claims based upon procedural due process, the plaintiff must establish the existence of "(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of process."
Guatay Christian Fellowship v. Cty. of San Diego, 670 F.3d 957, 983 (9th Cir. 2011)(quoting Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993)). For purposes of this Motion only, Defendants concede the veterans' preference is a constitutionally protected property interest and that Defendants deprived Plaintiff of that interest. Defendants, however, assert the post-deprivation process provided for under § 408.230 satisfies the requirements of the Due Process Clause.
The type of process required by the Constitution depends in part on the type of deprivation. See Zinermon v. Burch, 494 U.S. 113, 126 (1990)( ...
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