Sherman v. Kelly et al

Motion for Summary Judgment .

D. Or.November 3, 2016

70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Sharae M. Wheeler, OSB No. 115525 sharae.wheeler@millernash.com MILLER NASH GRAHAM & DUNN LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204 Telephone: 503.224.5858 Fax: 503.224.0155 Attorneys for Defendants Sylvia Kelley, Mary Smith-Abbott, Dan Wenger, Linda Reisser, Ruth McKenna UNITED STATES DISTRICT COURT DISTRICT OF OREGON Portland Division LEASA VANESSA SHERMAN, Plaintiff, v. SYLIVA KELLY, MARY ABBOTT- SMITH, DAN WENGER, LINDA REISSER, RUTH MCKENNA, Defendants. CV No. 3:16-CV-00865-MO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 1 of 27 TABLE OF CONTENTS Page Page i - Table of Contents 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7-1(A) ............................................ 1 LOCAL RULE 7-2 CERTIFICATION ......................................................................................... 1 MOTION........................................................................................................................................ 1 MEMORANDUM ......................................................................................................................... 1 I. INTRODUCTION ............................................................................................................. 1 II. UNDISPUTED MATERIAL FACTS ............................................................................... 2 A. Sherman Raises Concerns About Some of Her Winter 2014 Courses at PCC ........................................................................................................................ 2 B. Sherman Utilizes PCC's Disability Services Office .............................................. 4 C. Sherman Has Not Been a Student at PCC Since July 31, 2014 ............................. 6 D. Sylvia Kelley Begins Her Employment at PCC on August 29, 2014 .................... 6 III. ARGUMENT ..................................................................................................................... 6 A. The Legal Standards Require Sherman to State a Claim or, on Any Viable Claim, to Show a Genuine Dispute as to a Material Fact ...................................... 6 B. Sherman's First Claim Fails as a Matter of Law .................................................... 7 C. Sherman's Second and Fifth Claims Fail as a Matter of Law ................................ 7 1. Sherman Cannot Establish Any Cause of Action on the Basis of Alleged Disability Discrimination Because There Is No Individual Liability Under the ADA or Section 504 ................................................... 8 2. Sherman's Disability Discrimination Claims Are Untimely ...................... 8 a. A One-Year Statute of Limitations Applies to Sherman's Disability Discrimination Claims .................................................. 8 b. Even if a Two-Year Statute of Limitations Applies, Sherman's Claims Fail as a Matter of Law .................................. 11 D. Sherman's Third Claim Fails as a Matter of Law ................................................ 12 1. Sherman Has Failed to State a Title IX Claim ......................................... 12 2. Sherman's Title IX Claim Fails as a Matter of Law................................. 12 3. Sherman's Title IX Claim Is Untimely .................................................... 13 4. To the Extent That Sherman's Third Claim Asserts a Title VI Claim, It Fails as a Matter of Law. .......................................................... 15 E. Sherman's Fourth Claim Fails as a Matter of Law ............................................... 16 Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 2 of 27 TABLE OF CONTENTS (continued) Page Page ii - Table of Contents 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 1. Sherman's Substantive Due Process Claim Is Untimely .......................... 16 2. Sherman Has Failed to State a Cognizable Substantive Due Process Claim........................................................................................... 17 3. Sherman's Substantive Due Process Claim Is Barred by Qualified Immunity .................................................................................................. 18 F. All Claims Should Be Dismissed Because Defendants Were Not Properly Served .................................................................................................................. 19 IV. CONCLUSION ................................................................................................................ 20 Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 3 of 27 TABLE OF AUTHORITIES Page Page iii - Table of Authorities 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Cases Anderson v. Liberty Lobby, Inc., 477 US 242, 106 S Ct 2505, 91 L Ed 2d 202 (1986) .................................................................6 Arpin v. Santa Clara Valley Transp. Agency, 261 F3d 912 (9th Cir 2001) .....................................................................................................16 Ashcroft v. al-Kidd, 563 US 731, 131 S Ct 2074, 179 L Ed 2d 1149 (2011) ...........................................................18 Bateson v. Geisse, 857 F2d 1300 (9th Cir 1988) .............................................................................................17, 18 Bell Atl. Corp. v. Twombly, 550 US 544, 127 S Ct 1955, 167 L Ed 2d 929 (2007) ...............................................................6 Celotex Corp. v. Catrett, 477 US 317, 106 S Ct 2548, 91 L Ed 2d 265 (1986) .................................................................6 Clink v. Or. Health & Sci. Univ., 9 F Supp 3d 1162, 1168 (D Or 2014) ..................................................................................9, 10 G.C. ex rel. Counts v. North Clackamas Sch. Dist., 654 F Supp 2d 1226 (D Or 2009) ............................................................................................12 Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 US 629, 119 S Ct 1661, 143 L Ed 2d 839 (1999) .............................................................12 Douglas v. Noelle, 567 F3d 1103 (9th Cir 2009) ...................................................................................................16 Duvall v. Cty. of Kitsap, 260 F3d 1124 (9th Cir 2001), as amended on denial of reh'g (Oct. 11, 2001) ........................11 Grossman v. City of Portland, 33 F3d 1200 (9th Cir 1994) .....................................................................................................18 Halverson v. Skagit Cty., 42 F3d 1257 (9th Cir 1994), as amended on denial of reh'g (Feb. 9, 1995) .....................17, 18 Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 4 of 27 TABLE OF AUTHORITIES (continued) Page Page iv - Table of Authorities 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Hariri v. Portland State Univ., No. 3:15-CV-1076-PK, 2016 WL 2595476 (D Or May 5, 2016) ...........................................15 Liu v. Portland State Univ., No. 3:14-CV-00908-BR, 2016 WL 1228580 (D Or Mar. 28, 2016) .......................................20 T.L. ex rel. Lowry v. Sherwood Charter Sch., No. 03:13-CV-01562-HZ, 2014 WL 897123 (D Or Mar. 6, 2014) .....................................9, 10 Lumbreras v. Roberts, 319 F Supp 2d 1191 (D Or 2004) ............................................................................................17 Nicol v. Wells Fargo Bank, N.A., 857 F Supp 2d 1067 (D Or 2012) ..............................................................................................6 Nunez v. City of Los Angeles, 147 F3d 867 (9th Cir 1998) ...............................................................................................17, 18 Ramirez v. Parker, No. 3:13-CV-01772-AC, 2014 WL 7187463 (D Or Dec. 16, 2014) ...................................9, 10 Sharkey v. O'Neal, 778 F3d 767 (9th Cir 2015) .......................................................................................................8 Stanley v. Trs. of Ca. State Univ., 433 F3d 1129 (9th Cir 2006) ...................................................................................................13 Taylor v. Regents of Univ. of Ca., 993 F2d 710 (9th Cir 1993) .....................................................................................................15 United States ex rel. Teater v. Shrader, No. CV-05-623-HU, 2006 WL 1030165 (D Or Apr. 18, 2006) ................................................8 Updike v. Clackamas Cty., No. 3:15-cv-00723-SI, 2015 WL 7722410 (D Or Nov. 30, 2015) ..................................8, 9, 10 VanValkenburg v. Oregon Dept of Corrections, No. 3:14-cv-00916-BR, 2016 WL 2337892 (D Or May 2, 2016) .......................................9, 10 Walden v. Dawson, No. 12-cv-02155-MC, 2014 WL 5810824 (D Or Nov. 7, 2014) .........................................9, 10 Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 5 of 27 TABLE OF AUTHORITIES (continued) Page Page v - Table of Authorities 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F3d 1282 (11th Cir 2007) .................................................................................................12 Wilson v. Garcia, 471 US 261, 105 S Ct 1938, 85 L Ed 2d 254 (1985) ...............................................................13 Statutes 20 USC § 1681 .................................................................................................................................2 20 USC § 1681(a) ....................................................................................................................12, 14 42 USC § 1983 .......................................................................................................13, 14, 15, 16, 19 ORS 12.110 ......................................................................................................................................9 ORS 30.275(9) .................................................................................................................................9 ORS 659.850 ........................................................................................................................9, 14, 15 ORS 659.860(2) ...................................................................................................................9, 14, 15 ORS 659.875(1) .............................................................................................................................10 ORS 659A.030 .........................................................................................................................14, 15 ORS 659A.142 .......................................................................................................................8, 9, 10 ORS 659A.875 ...............................................................................................................................10 Other Authorities Fed R Civ P 4(e) ............................................................................................................................19 Fed R Civ P 4(m) ...........................................................................................................................20 Fed R Civ P 56(a) ............................................................................................................................6 Fed R Civ P 56(c) ............................................................................................................................1 ORCP 7 D(2)(c) .............................................................................................................................19 Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 6 of 27 Page 1 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 CERTIFICATE OF COMPLIANCE WITH LOCAL RULE 7-1(a) The undersigned certifies that counsel for defendants, Sylvia Kelley, 1 Mary Smith-Abbott, 2 Daniel Wenger, Linda Reisser, and Ruth McKenna (collectively, "Defendants"), has conferred by telephone conference with pro se plaintiff Leasa Sherman and that the parties were unable to reach agreement. 3 LOCAL RULE 7-2 CERTIFICATION This memorandum complies with the applicable word-count limitation under LR 7-2(a) because it contains 7,017 words, including headings, footnotes, and quotations, but excluding the caption, table of contents, table of cases and authorities, signature block, exhibits, and any certificates of counsel. MOTION Under Fed R Civ P 56(c), Defendants move for summary judgment against Sherman's complaint because the undisputed facts show that Defendants are entitled to judgment as a matter of law. This motion is based on the memorandum below, the declarations of Sylvia Kelley, Ruth McKenna, Kristin Benson, Anita Morris, Linda Reisser, Daniel Wenger, and Mary Smith-Abbott, and the records and files of this case. MEMORANDUM I. INTRODUCTION Sherman's lawsuit against Defendants-all individual current or former employees of Portland Community College ("PCC")-should be dismissed and judgment entered either because her claims are not cognizable or because there is not (and cannot be) a disputed material fact on any claims that one might theorize are viable based on the complaint. Sherman's 1 Identified as "Syliva Kelly" in the complaint. 2 Identified as "Mary Abbott-Smith" in the complaint. 3 When counsel for Defendants spoke with Sherman on October 25, 2016, both agreed that discovery in this matter should be stayed pending resolution of this motion. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 7 of 27 Page 2 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 first claim fails to state any cognizable claim against Sylvia Kelley or any other individual Defendant. In fact, the undisputed facts demonstrate that Ms. Kelley was not even employed by PCC during the relevant period. Sherman's disability discrimination claims (claims II and V) fail as a matter of law because they are untimely, individual liability does not exist under Title II of the Americans With Disabilities Act (42 USC § 12131 et seq.) or Section 504 of the Rehabilitation Act of 1973 (29 USC § 794), and the undisputed facts demonstrate that any claim that potentially falls within the limitations period fails as a matter of law. And Sherman's third claim fails to state a claim under 20 USC § 1681 ("Title IX") or any other statute, there is no liability for individual defendants under Title IX, and any Title IX claim would be time-barred. Sherman's apparent substantive due process claim (claim IV) fails to state a claim and is barred by the statute of limitations and qualified immunity. Sherman's complaint should be dismissed, and judgment should be entered in favor of Defendants. II. UNDISPUTED MATERIAL FACTS A. Sherman Raises Concerns About Some of Her Winter 2014 Courses at PCC. Sherman is a former PCC student. Relevant to this case, Sherman was enrolled in courses during the winter and spring terms of the 2013-2014 academic year, and for a portion of summer term of the 2014-2013 academic year. (Declaration of Kristin Benson ("Benson Decl.") ¶ 3, Ex. 1; ¶ 4, Ex. 2.) Sherman's claims are based on alleged concerns that arose during winter term 2014, which began on January 6, 2014, and ended on March 23, 2014. (Benson Decl. ¶ 4, Ex. 2.) During that term, Sherman was enrolled in two courses for which Mary Smith-Abbott was the instructor-Thought Patterns for a Career and Applied Communications. (Declaration of Mary Smith-Abbott ("Smith-Abbott Decl.") ¶ 2.) On March 23, 2014, Sherman received a "C" grade in Applied Communications and a "B" grade in Thought Patterns for a Career. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 8 of 27 Page 3 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 (Benson Decl. ¶ 5, Exs. 3-4.) Since that time, Sherman has taken no courses for which Ms. Smith-Abbott is an instructor. (Smith-Abbott Decl. ¶ 2.) In late April 2014, Sherman expressed concerns about Ms. Smith-Abbott to Daniel Wenger, the Division Dean for Arts and Professions at PCC's Cascade Campus. (Declaration of Daniel Wenger ("Wenger Decl.") ¶ 2.) Mr. Wenger provided Sherman with links to PCC's formal student complaint and formal grade appeal forms. (Wenger Decl. ¶ 2.) The complaint and appeal forms Sherman submitted reveal that, among other concerns, Sherman disagreed with the "C" grade in Applied Communications (she believed that she should have received a "B"). (Declaration of Anita Morris ("Morris Decl.") ¶ 3, Exs. 1-2.) To formally appeal a grade, students must follow PCC's Grade Appeal Procedure. (Morris Decl. ¶ 4, Ex. 3.) Thus, Sherman was required to inquire about her grade in writing to her instructor within 14 days after the grade was posted: "requesting an explanation of how the grade was determined and stating his/her questions and concerns about the grade assigned. The communication should include specific reasons why the student believes he or she was graded improperly, and supporting evidence, such as statements in the course syllabus, alleged discrepancies in points or grades received, emails to and from the instructor, etc." (Morris Decl. ¶ 4, Ex. 3.) If the student has questions after receiving a response to this inquiry from the instructor, the student is encouraged to discuss the concerns with the instructor. (Morris Decl. ¶ 4, Ex. 3.) Sherman did not send such an inquiry to Ms. Smith-Abbott. (Smith-Abbott Decl. ¶ 3.) Instead, Sherman e-mailed Ms. Smith-Abbott on April 9, 2014, asking to meet with Ms. Smith-Abbott to discuss "my grade." (Smith-Abbott Decl. ¶ 3, Ex. 1.) Ms. Smith-Abbott and Sherman discussed arranging a meeting, but Sherman did not meet with Ms. Smith-Abbott. (Smith-Abbott Decl. ¶ 3, Ex. 1.) On May 7, 2014, PCC received a formal grade appeal form from Sherman, but the question "Have you communicated with your instructor?" was left blank. (Morris Decl. ¶ 3. Ex. 1.) When asked whether Sherman had received a written response from her instructor, she Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 9 of 27 Page 4 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 checked "No, I have not received a response from Instructor." (Morris Decl. ¶ 3, Ex. 1.) Where the form asked "If you had further questions after you received an explanation from your instructor, did you discuss these questions with the instructor?", Sherman checked "no," but wrote that "Mrs. Smith-Abbott was available to discuss my concerns." 4 (Morris Decl. ¶ 3, Ex. 1.) During May 2014, Linda Reisser was the Cascade Campus Dean of Student Development. (Declaration of Linda Reisser ("Reisser Decl.") ¶ 1.) On May 12, 2014, the Cascade Campus Dean of Student Development's office informed Sherman that PCC would not process her grade appeal because she had failed to follow the required procedure by reaching out to her instructor in writing within 14 days after the grade was posted. (Morris Decl. ¶ 5, Ex. 4.) B. Sherman Utilizes PCC's Disability Services Office. During her time at PCC, Sherman was deemed eligible for accommodations through PCC's Disability Services office ("Disability Services"). (Declaration of Ruth McKenna ("McKenna Decl.") ¶ 3.) Under PCC's accommodations procedures, after a student is deemed eligible for accommodations, the student must request the specific accommodations that he or she will require each term. (McKenna Decl. ¶ 3; see also McKenna Decl. ¶ 2, Ex. 1, pp. 25-26.) 5 Disability Services then informs the student's instructors of the requested accommodations, the student is required to discuss the accommodations with his or her instructors, and Disability Services is available to assist the student with any further concerns or needs. (McKenna Decl. ¶ 3; see also McKenna Decl. ¶ 2, Ex. 1, pp. 25-26.) From time to time during 2014, Disability Services counselor Ruth McKenna interacted with Sherman and assisted her with her accommodation needs. (McKenna Decl. ¶ 2.) Relevant to this case, Sherman requested accommodations from Disability Services near the end of winter term 2014, on March 4, 2014. 4 In Sherman's separate student complaint form, she wrote "In April, I had a conversation with Mrs. Smith-Abbott, but was unable to resolve my concerns about my grade." (Morris Decl. ¶ 3, Ex. 2.) 5 Exhibit 1 to Ruth McKenna's declaration has been redacted for personally identifiable information, attorney-client privileged information, and specific medical information. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 10 of 27 Page 5 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 (McKenna Decl. ¶ 4.) On that same date, Disability Services sent Sherman's request to each of Sherman's instructors. (McKenna Decl. ¶ 4.) After March 23, 2014, Sherman interacted with Disability Services as follows:  On April 3, 2014, Sherman inquired about taking a women's studies course, and Ms. McKenna informed her that she had not satisfied the prerequisites for the course. (McKenna Decl. ¶ 2, Ex. 1, p. 14.)  In April 2014, when Disability Services learned that Sherman had not requested accommodations for spring term, Ms. McKenna reminded Sherman that she was required to do so if she needed accommodations. Once Sherman requested her accommodations, Disability Services immediately sent an e-mail to Sherman's instructors, informing them of Sherman's need for accommodations. (McKenna Decl. ¶ 2, Ex. 1, p. 14; pp. 33-37.)  Sherman scheduled an appointment with Disability Services for May 30, 2014, but did not attend that meeting. (McKenna Decl. ¶ 2, Ex. 1, p. 15; p. 37.)  On June 4 and 5, 2014, Sherman notified Disability Services of a thumb injury. (McKenna Decl. ¶ 2, Ex. 1, pp. 15; 19.) On June 5, Sherman spoke with Ms. McKenna and presented a doctor's note excusing Sherman from classes until June 10, but informed Ms. McKenna that she wanted to finish her finals and would need a scribe to type an essay and a take-home final for WR 93, one of her spring- term courses. (McKenna Decl. ¶ 2, Ex. 1; pp. 15; 19.) Disability Services scheduled a scribe to type both documents for Sherman on June 9, 2014, but Sherman did not meet the scribe. (McKenna Decl. ¶ 2, Ex. 1, pp. 15; 19.) Sherman received an "A" in WR 93. (Benson Decl. ¶ 1, Ex. 1, p.2.)  On July 31, 2014, Sherman contacted Disability Services, mentioned a knee injury, and asked to drop a course. (McKenna Decl. ¶ 2, Ex. 1, p. 15.) Sherman was walked to the registration office to speak with the appropriate contact regarding dropping her course. (McKenna Decl. ¶ 2, Ex. 1, p.15.) Sherman withdrew from the last course she was enrolled in at PCC on July 31, 2014. (Benson Decl. ¶ 6.)  On August 29, 2014, Sherman e-mailed Ms. McKenna about scheduling an appointment and was referred to the Disability Services scheduling contact, but the Full Report does not indicate that a meeting was scheduled. (McKenna Decl. ¶ 2, Ex. 1, p. 16.)  Disability Services sent Sherman a number of "bulk" e-mails sent to students generally about Disability Services. (McKenna Decl. ¶ 2, Ex. 1, pp. 40-48.)  Between August 2015 and June 2016, Disability Services interacted with Sherman regarding her request for her Disability Services records. (McKenna Decl. ¶ 2, Ex. 1, pp. 16-18.) Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 11 of 27 Page 6 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 C. Sherman Has Not Been a Student at PCC Since July 31, 2014. On July 31, 2014, Sherman withdrew from the last PCC course that she was enrolled in. (Benson Decl. ¶ 6.) Sherman has not enrolled in any PCC courses since that date. (Benson Decl. ¶ 6.) D. Sylvia Kelley Begins Her Employment at PCC on August 29, 2014. Sylvia Kelley became Executive Vice President of PCC on August 29, 2014. (Kelley Decl. ¶ 2.) III. ARGUMENT A. The Legal Standards Require Sherman to State a Claim or, on Any Viable Claim, to Show a Genuine Dispute as to a Material Fact. Dismissal for failure to state a claim is appropriate if there is a "'lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Nicol v. Wells Fargo Bank, N.A., 857 F Supp 2d 1067, 1069 (D Or 2012) (quoting Conservation Force v. Salazar, 646 F3d 1240, 1242 (9th Cir 2011) (internal quotation marks and citation in Conservation Force omitted)). This means that a "complaint must have sufficient facts to state a facially plausible claim to relief." Nicol, 857 F Supp 2d at 1069 (describing the holding of Bell Atl. Corp. v. Twombly, 550 US 544, 570, 127 S Ct 1955, 167 L Ed 2d 929 (2007)). And summary judgment is proper if there is no genuine issue as to any material fact and the record demonstrates that the moving party is entitled to judgment as a matter of law. Fed R Civ P 56(a). A court should enter summary judgment against a party that fails to make a showing sufficient to establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 US 317, 322, 106 S Ct 2548, 91 L Ed 2d 265 (1986). "The mere existence of a scintilla of evidence" favoring the nonmoving party will not prevent entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 US 242, 252, 106 S Ct 2505, 91 L Ed 2d 202 (1986). Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 12 of 27 Page 7 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 B. Sherman's First Claim Fails as a Matter of Law. Sherman's first claim asserts: "In 2014 Ms. Syliva Kelly Interm President of Portland Community Colleges should have been aware of the numerous prior complaints against Ms. Mary Abbott-Smith for her physical, verbal, mental abuse against students and faculty. In addition, Ms. Kelly should have been aware of Mr. Wenger, Dr. Linda Reisser and Ms. Ruth McKenna." (Complaint at 3, § III, Claim I.) This claim does not state a cognizable legal theory on which Sherman can obtain relief; thus, Sherman's first claim should be dismissed. Further, the undisputed facts reveal that no claim could be asserted against Ms. Kelley because she was not an employee at PCC while Sherman was enrolled. Sherman withdrew from her last PCC course on July 31, 2014, and has not enrolled in a course at PCC since that time. (Benson Decl. ¶ 6.) But Ms. Kelley was not employed at PCC until August 29, 2014. (Kelley Decl. ¶ 2.) Sherman's first claim should be dismissed. C. Sherman's Second and Fifth Claims Fail as a Matter of Law. Although vague, Sherman's second and fifth claims appear to assert disability discrimination claims under Title II of the Americans With Disabilities Act ("ADA") and Section 504 of the Rehabilitation Act. 6 Dismissal of these claims is warranted as a matter of law because (1) there is no individual liability under Title II of the ADA or Section 504; (2) Sherman's claims are untimely; and (3) even if Sherman's fifth claim was not untimely, the undisputed facts reveal that Sherman was deprived of no benefit on account of her disability within the applicable limitations period. 6 To the extent that Sherman's second claim could also be read to assert a discrimination claim based on race-which Defendants deny-any such claim would fail because Title VI claims may not be brought against individual defendants and any alleged claim would be time-barred, as discussed in further depth in Section D(4), below. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 13 of 27 Page 8 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 1. Sherman Cannot Establish Any Cause of Action on the Basis of Alleged Disability Discrimination Because There Is No Individual Liability Under the ADA or Section 504. "[D]efendants may not be sued in their individual capacities under Title II of the ADA or § 504 of the Rehabilitation Act because neither statute provides for individual liability." United States ex rel. Teater v. Shrader, No. CV-05-623-HU, 2006 WL 1030165, at *4 (D Or Apr. 18, 2006) (footnote omitted) (citing Becker v. Oregon, 170 F Supp 2d 1061, 1066-67 (D Or 2001)) (Mosman, J., accepting Findings and Recommendation of Hubel, J.). Sherman has brought her claims against individuals; thus, her disability discrimination claims should be dismissed. 7 2. Sherman's Disability Discrimination Claims Are Untimely. a. A One-Year Statute of Limitations Applies to Sherman's Disability Discrimination Claims. Even if Sherman's claims could proceed against individual defendants, Sherman's disability discrimination claims are time-barred. Title II of the ADA and Section 504 of the Rehabilitation Act do not contain limitations periods, so courts must look to "the statute of limitations applicable to the most analogous state-law claim, so long as 'it is not inconsistent with federal law or policy to do so.'" Sharkey v. O'Neal, 778 F3d 767, 770 (9th Cir 2015) (quoting Wilson v. Garcia, 471 US 261, 266-67, 105 S Ct 1938, 85 L Ed 2d 254 (1985), partially superseded by statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 US 369, 377-80, 124 S Ct 1836, 158 L Ed 2d 645 (2004)) (applying the statute of limitations to a Title II ADA claim that the court found to be "an almost identical state-law counterpart to Title II", 778 F3d at 771). The Ninth Circuit has not determined what Oregon state law claim is most analogous to Title II of the ADA and Section 504, but recent cases in this District have held that ORS 659A.142 is the closest analogue. See, e.g., Updike v. Clackamas Cty., No. 3:15-cv-00723- 7 Sherman has not asserted disability discrimination claims against the other Defendants, but any such claim would also fail for this reason. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 14 of 27 Page 9 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 SI, 2015 WL 7722410, at *4-5 (D Or Nov. 30, 2015); VanValkenburg v. Oregon Dept of Corrections, No. 3:14-cv-00916-BR, 2016 WL 2337892, *6 (D Or May 2, 2016); Walden v. Dawson, No. 12-cv-02155-MC, 2014 WL 5810824, at *6 (D Or Nov. 7, 2014); Clink v. Or. Health & Sci. Univ., 9 F Supp 3d 1162, 1168 (D Or 2014); T.L. ex rel. Lowry v. Sherwood Charter Sch., No. 03:13-CV-01562-HZ, 2014 WL 897123, at *5 (D Or Mar. 6, 2014)(appeal pending); Ramirez v. Parker, No. 3:13-CV-01772-AC, 2014 WL 7187463, * 11-15 (D Or Dec. 16, 2014). Defendants understand the reasoning of these opinions with regard to finding ORS 659A.142 to be most analogous to Title II of the ADA and Section 504, but in this case-in which a former community college student alleges that college employees discriminated against her on the basis of a disability-ORS 659.850 is the more analogous statute from which to borrow the statute of limitations. But see T.L. ex rel. Lowry, 2014 WL 897123, at *8 n.1 (rejecting a similar argument because the ADA and the Rehabilitation Acts "apply more broadly to a variety of public and private sector entities" and are limited to disability discrimination.) That statute prohibits educational institutions from engaging in disability discrimination "where the program, service, school or activity is financed in whole or in part by moneys appropriated by the Legislative Assembly," ORS 659.850(1)-(2), and has a one-year statute of limitations, ORS 659.860(2). And even if ORS 659A.142 is the closest analogue, Defendants assert that a one- year statute of limitations should apply. Because ORS 659A.142 has no statute of limitations, recent decisions by courts in this District have applied a two-year statute of limitations, looking to either ORS 12.110 or, when a public body is involved, ORS 30.275(9). See, e.g., Updike, 2015 WL 7722410, at *4-5 (D Or Nov. 30, 2015) (describing cases); see also VanValkenburg v. Oregon Dept of Corrections, No. 3:14-cv-00916-BR, 2016 WL 2337892, *7-8 (D Or May 2, 2016)(applying ORS 30.275(9)). Although Defendants recognize that their argument has been rejected by these courts, Defendants assert that the one-year statute of limitations applicable to Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 15 of 27 Page 10 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 unlawful employment practices in ORS 659A.875(1) and (6) apply to ORS 659A.142 claims because those statutes are the only specifically enumerated statutes of limitations for any type of claim under ORS 659A.142. See Clink, 9 F Supp 3d at 1168 (recognizing that ORS 659A.875(1) provides a one-year statute of limitations for a claim for employment discrimination under Section 504); but see VanValkenburg v. Oregon Dept of Corrections, No. 3:14-cv-00916-BR, 2016 WL 2337892, *6 (D Or May 2, 2016)("By its terms [ORS] 659A.875(6) only applies to actions brought under one of the specified statutes against a public body “'based on an unlawful employment practice.'”)(ORS 659A.875(6)); Updike, 2015 WL 7722410, at *4-5 (holding that the one-year statute of limitations in ORS 659A.875(1) does not apply to actions under ORS 659A.142(5)(a) that are not based on an unlawful employment action or the federal ADA and Rehabilitation Act claims at issue in that case and applying a two-year statute of limitations); Walden, 2014 WL 5810824, at *6 (holding that the one-year statute of limitations in ORS 659A.875(1) does not apply to actions under ORS 659A.142(5)(a) that are not based on an unlawful employment action or the federal ADA claim at issue in that case and applying a two- year statute of limitations); T.L. ex rel. Lowry, 2014 WL 897123, at *5 (holding that the one-year statute of limitations in ORS 659A.875(1) does not apply to actions under ORS 659A.142(5)(a) that are not based on an unlawful employment action or the federal ADA and Rehabilitation Act claims at issue in that case and applying a two-year statute of limitations); Ramirez, 2014 WL 7187463, *11-15 (D Or Dec. 16, 2014)(holding that the one-year statute of limitations in ORS 659.875(1) does not apply to actions under ORS 659A.142 that are not based on an unlawful employment action of the federal ADA and Section 504 claims at issue in that case and applying a two-year statute of limitations). Sherman was last enrolled at PCC on July 31, 2014; thus, any claims of alleged disability discrimination arising from her time at PCC should have been filed by July 31, 2015, at the very latest. Sherman did not file in time, and claims II and V should be dismissed. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 16 of 27 Page 11 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 b. Even if a Two-Year Statute of Limitations Applies, Sherman's Claims Fail as a Matter of Law. Even if the court applies a two-year statute of limitations, Sherman's claims are untimely. Under a two-year statute of limitations, Sherman may rely only on acts that occurred after May 18, 2014. But Sherman's claims appear to arise from her time in Mary Smith-Abbott's courses during winter term 2014. March 23, 2014, was the last day of winter term 2014 and the day on which Sherman received her grades for Ms. Smith-Abbott's courses. (Benson Decl. ¶ 4, Ex. 2.) Thereafter, Sherman enrolled in no further courses for which Ms. Smith-Abbott was the instructor. (Smith-Abbott Decl. ¶ 2.) Thus, any claims based on acts that occurred during winter term 2014 are untimely, and any cause of action based on them should be dismissed. Further, the undisputed facts reveal that Disability Services did not deny Sherman any benefit on the basis of an alleged disability within a two-year limitations period. To prove a violation of Title II of the ADA, "a plaintiff must show: (1) he is a "'qualified individual with a disability'"; (2) he was either excluded from participation 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. Cty. of Kitsap, 260 F3d 1124, 1135 (9th Cir 2001), as amended on denial of reh'g (Oct. 11, 2001). To prove a violation of Section 504, a plaintiff must show that: "(1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance." Id. But Sherman cannot establish that she was denied any benefits based on a disability after May 18, 2014. The only accommodation that Sherman requested after that date was for a scribe to type two assignments because of Sherman's thumb injury. (McKenna Decl. ¶ 2, Ex. 1.) The accommodation was arranged, but Sherman did not attend the scheduled appointment. (McKenna Decl. ¶ 2, Ex. 1.) Sherman's second and fifth claims should be dismissed because they are untimely. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 17 of 27 Page 12 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 D. Sherman's Third Claim Fails as a Matter of Law. Sherman's third claim for relief alleges that she raised concerns of discrimination with Dan Wenger and that: "I was not protected against the discriminatory and hostile actions from Ms. Abbott-Smith. Mr. Wenger did not address these issues in according to Title IX. Ms. Sherman grade point average was continually reduced because of the racist action taken against her from Mr. Wenger, Ms. Linda Reisser and Ms. Abbott-Smith." (Complaint at 4, § III, Claim III.) Sherman's third claim fails as a matter of law because (1) Sherman has failed to state a claim, (2) Sherman cannot bring a Title IX claim against an individual, and (3) Sherman's Title IX claim is untimely. To the extent that Sherman's third claim could be read to assert a claim for race discrimination under Title VI against Mr. Wenger or any other Defendant, such a claim also fails because a Title VI claim may not be brought against an individual, and would be untimely. 1. Sherman Has Failed to State a Title IX Claim. A Title IX claim exists only if the allegedly discriminatory conduct is "on the basis of sex." 20 USC § 1681(a). Sherman has failed to state a cognizable claim under Title IX because Sherman has failed to allege any facts that plausibly suggest that Mr. Wenger's actions were motivated by Sherman's sex. Sherman's third claim should be dismissed on this basis. 2. Sherman's Title IX Claim Fails as a Matter of Law. Sherman's Title IX claim also fails as a matter of law because "[c]ourts have consistently held that Title IX does not subject school officials to liability in their individual capacities." G.C. ex rel. Counts v. North Clackamas Sch. Dist., 654 F Supp 2d 1226, 1237 (D Or 2009) (internal quotation marks and citation omitted); see also Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F3d 1282, 1300 (11th Cir 2007) ("Title IX does not allow claims against individual school officials; only funding recipients can be held liable for Title IX violations."); Davis Next Friend LaShonda D. v. Monroe Cty. Bd. of Educ., 526 US 629, 641, 119 S Ct 1661, 143 L Ed 2d 839 (1999) ("The Government's enforcement power may only be exercised against Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 18 of 27 Page 13 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 the funding recipient, see § 1682, and we have not extended damages liability under Title IX to parties outside the scope of this power."). Because Sherman's third claim asserts liability against Mr. Wenger in his individual capacity, it should be dismissed. 8 3. Sherman's Title IX Claim Is Untimely. Defendants assert that Sherman's Title IX claim is precluded by the applicable statute of limitations. While "Title IX does not expressly provide any statute of limitations * * *, [it] 'borrow[s] the most appropriate state statute of limitations.'" Stanley v. Trs. of Ca. State Univ., 433 F3d 1129, 1134 (9th Cir 2006) (quoting Cholla Ready Mix, Inc. v. Civish, 382 F3d 969, 974 (9th Cir 2004), cert denied, 544 US 974 (2005) (citing Wilson v. Garcia, 471 US at 268). The most appropriate state statute of limitations is the statute "most analogous" to Title IX. See Wilson, 471 US at 271. In Wilson, the Supreme Court considered which statute of limitations to apply to claims brought under 42 USC § 1983, which lacks a statute of limitations. The Court concluded that a state's personal-injury statute of limitations is the most analogous to claims under Section 1983. Neither the District of Oregon nor the Ninth Circuit has determined what Oregon law is most analogous, hence most appropriate to apply, to Title IX. In Stanley, the Ninth Circuit analogized Title IX claims to Section 1983 claims and, citing Wilson and related cases, determined that the California personal-injury statute applied to Title IX claims, reasoning that "every circuit to consider the issue has held that Title IX * * * borrows the relevant state's statute of limitations for personal injury" and that "[t]he close similarity between Title VI and Title IX also supports applying the statute of limitations for personal injury." Stanley, 433 F3d at 1134-136. But Wilson's rationale is specific to 1983 claims and the diversity of claims that may be asserted under Section 1983, the tort nature of many of those claims, the historical context, and the "unique" nature of 1983 as a federal remedy. Wilson, 471 US at 271-72 8 Sherman does not assert a Title IX claim against any other Defendant, but to the extent that her complaint could be read to do so, such a claim would be subject to dismissal for the same reason. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 19 of 27 Page 14 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 (quoting Mitchum v. Foster, 407 US 225, 239, 92 S Ct 2151, 32 L Ed 2d 705 (1972)). Section 1983 is qualitatively different from Title IX (and Title VI). For example, Section 1983 claims may be brought against a government official who inflicted personal injury on a plaintiff (e.g., excessive force by a police officer), but Title IX claims may be brought only against institutions, not individuals, and Title IX's charge is preventing recipients of federal funding from discriminating in educational programs. 20 USC § 1681(a). At the time Title IX was enacted in 1972, Oregon already had a state law prohibiting discrimination in employment on the basis of sex. ORS 659A was originally enacted in 1949 (as ORS 659) and amended in 1969 to prohibit discrimination on the basis of sex. Therefore, at the time Congress passed Title IX, the most analogous state law in Oregon was its prohibition on employment discrimination, which has a one-year statute of limitations. ORS 659A.030. Oregon subsequently passed a state law specifically prohibiting gender discrimination in educational institutions. ORS 659.850. That statute also has a one-year statute of limitations. ORS 659.860(2). One or both of these statutory schemes is the most analogous Oregon law to Title IX, and therefore a one year statute of limitations applies to Sherman's claim. Assuming that Sherman's claims arise from her time at PCC, the last possible date of action is July 31, 2014, and the filing of the complaint on May 18, 2016, was far too late. And even assuming that Sherman's third claim for relief is based on the date on which Mr. Wenger informed Sherman of his findings on her complaint 9 -February 23, 2015-Sherman's complaint was still filed too late. (Wenger Decl. ¶ 3, Ex. 1.) Sherman's Title IX claim was not timely and should be dismissed. 9 If this case were to proceed-which Defendants contend that it should not-Defendants reserve the right to challenge whether this date could legally serve as the trigger date for any alleged claim. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 20 of 27 Page 15 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 4. To the Extent That Sherman's Third Claim Asserts a Title VI Claim, It Fails as a Matter of Law. 10 To the extent that Sherman's allegation that her "grade point average was continually reduced because of the racist action taken against her from Mr. Wenger, Ms. Linda Reisser and Ms. Abbott-Smith," could be read to assert a claim under Title VI of the Civil Rights Act of 1964, this claim fails as a matter of law because such a claim cannot be brought against an individual. Hariri v. Portland State Univ., No. 3:15-CV-1076-PK, 2016 WL 2595476 (D Or May 5, 2016) (granting defendants' motion for summary judgment on plaintiff's Title VI claim against an individual defendant because the individual defendant did not receive funds directly from the federal government in her individual or official capacity). Further, any alleged Title VI claim is untimely. Title VI does not contain a statute of limitations, so an appropriate statute of limitations must be borrowed from state law. See Taylor v. Regents of Univ. of Ca., 993 F2d 710, 712 (9th Cir 1993). Although the Ninth Circuit has held that Title VI actions should be governed by the "same state limitations period applicable to claims brought under § 1983," Taylor, 993 F2d at 712, Defendants assert that Title VI and Section 1983 are qualitatively different and should not be subject to the same statute of limitations. At the time Congress passed Title VI, the most analogous state law in Oregon was its prohibition on employment discrimination, which has a one-year statute of limitations. ORS 659A.030. Oregon subsequently passed a state law specifically prohibiting race discrimination in educational institutions. ORS 659.850. That statute also has a one-year statute of limitations. ORS 659.860(2). One or both of these statutory schemes is the most analogous Oregon law to Title VI, thus, plaintiff's Title VI claim is untimely. 10 In Section II of the complaint, Sherman claims that her claims are based on "Title VII," but the complaint does not state a viable claim under Title VII of the Civil Rights Act of 1964, 42 USC § 2000e et seq. because Sherman does not-and cannot-allege that any alleged discrimination arose from an employment relationship with PCC. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 21 of 27 Page 16 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Even if a two-year statute of limitations is applied, see Douglas v. Noelle, 567 F3d 1103, 1109 (9th Cir 2009) (applying a two-year statute of limitations to a Section 1983 claim based on Oregon's personal-injury statute of limitations), any Title VI claim based on events prior to May 18, 2014, are untimely. Thus, any purported Title VI claim is undisputedly 11 untimely as to Ms. Smith-Abbott and Ms. Reisser. Sherman's "C" grade was posted on March 23, 2014 (Benson Decl. ¶ 5, Ex. 3), and the Dean of Student Development's office informed Sherman that her grade appeal would not be processed on May 12, 2014 (Morris Decl. ¶ 5, Ex. 4)-both acts occurred more than two years before Sherman filed her claims. Any purported Title VI claim should be dismissed. E. Sherman's Fourth Claim Fails as a Matter of Law. In her fourth claim, Sherman alleges that she was denied "substantial due process" because Linda Reisser, then Cascade Campus Dean of Student Development, allegedly denied her grade appeal. Sherman's claim fails as a matter of law because: (1) any alleged Section 1983 claim is time-barred; (2) Sherman has not stated a cognizable substantive due process claim; and (3) Ms. Reisser is entitled to qualified immunity. 1. Sherman's Substantive Due Process Claim Is Untimely. Because "a litigant complaining of a violation of a constitutional right * * * must utilize 42 U.S.C. § 1983," Arpin v. Santa Clara Valley Transp. Agency, 261 F3d 912, 925 (9th Cir 2001), Sherman's fourth claim is subject to a two-year statute of limitations. Douglas, 567 F3d at 1109 (applying a two-year statute of limitations to a Section 1983 claim based on Oregon's personal-injury statute of limitations). PCC received a formal grade appeal form from Sherman on May 7, 2014, and on May 12, 2014, a representative from PCC's Dean of Student Development's office informed her that she "would have had to submit a request in writing to her 11 Any alleged Title VI claim against Mr. Wenger may also be untimely under a two-year statute of limitations, but plaintiff's third claim for relief does not allege facts sufficient to determine this at this stage. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 22 of 27 Page 17 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 instructor by April 6th for an official grade appeal to be considered." (Morris Decl. ¶ 3, Ex. 1; ¶ 5, Ex. 4.) Sherman did not file this lawsuit until May 18, 2016-more than two years later. Sherman's claim should be dismissed. 2. Sherman Has Failed to State a Cognizable Substantive Due Process Claim. Sherman alleges violations of her substantive due process rights, but those rights were not implicated by the alleged failure to process a grade appeal because that conduct did not deprive Sherman "of life, liberty, or property," was not irrational or arbitrary, and did not "shock[] the conscience." Nunez v. City of Los Angeles, 147 F3d 867, 871 (9th Cir 1998) (internal quotation marks and citation omitted). "'[T]he due process clause includes a substantive component which guards against arbitrary and capricious government action," but this substantive component is generally reserved for the protection of fundamental rights. Halverson v. Skagit Cty., 42 F3d 1257, 1261- 62 (9th Cir 1994), as amended on denial of reh'g (Feb. 9, 1995) (quoting Sinaloa Lake Owners Ass'n v. City of Simi Valley, 882 F2d 1398, 1407 (9th Cir 1989), overruled on other grounds by Armendariz v. Penman, 75 F3d 1311 (9th Cir 1996), and citing Albright v. Oliver, 510 US 266, 272, 114 S Ct 807, 127 L Ed 2d 114 (1994) ("The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.")). Thus, substantive due process guards against governmental "interference with property rights [that is] irrational or arbitrary," Bateson v. Geisse, 857 F2d 1300, 1303 (9 th Cir 1988), and conduct that "shocks the conscience or interferes with rights implicit in the concept of ordered liberty," Nunez, 147 F3d at 871 (internal quotation marks and citation omitted). But it "is not 'a guarantee against incorrect or ill-advised' decisions." Lumbreras v. Roberts, 319 F Supp 2d 1191, 1211 (D Or 2004) (quoting Collins v. City of Harker Heights, 503 US 115, 129, 112 S Ct 1061, 117 L Ed 2d 261 (1992)(internal quotation marks and citation is Collins omitted)), aff'd 156 Fed App'x 952 (Dec. 7, 2005). And for claims not affecting a Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 23 of 27 Page 18 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 fundamental right, the court "merely look[s] to see whether the government could have had a legitimate reason for acting as it did." Halverson, 42 F3d 1257 at 1262 (internal quotation marks and citation omitted). "If it is at least fairly debatable that the [government's] conduct is rationally related to a legitimate governmental interest, there has been no violation of substantive due process." Id. (internal quotation marks and citation omitted). Sherman was not deprived of a fundamental right, and Sherman cannot provide facts to show that a decision that Sherman could not appeal her grade was plausibly "irrational or arbitrary," Bateson, 857 F2d at 1303, or "shock[ed] the conscience or interfere[d] with rights implicit in the concept of ordered liberty," Nunez, 147 F3d at 871 (internal quotation marks and citation omitted). Rather, the undisputed facts provide a legitimate reason for why Sherman's grade appeal was not processed-the grade appeal form she submitted did not demonstrate that Sherman had followed PCC's Grade Appeal Procedure. (Morris Decl. ¶ 3, Ex. 1.) Sherman has not stated a cognizable substantive due process claim, and her fourth claim should be dismissed. 3. Sherman's Substantive Due Process Claim Is Barred by Qualified Immunity. "Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly established' at the time of the challenged conduct." Ashcroft v. al-Kidd, 563 US 731, 735, 131 S Ct 2074, 179 L Ed 2d 1149 (2011) (quoting Harlow v. Fitzgerald, 457 US 800, 818, 102 S Ct 2727, 73 L Ed 2d 396 (1982)). Put differently, a public official's claim of qualified immunity is defeated only if "'in the light of pre-existing law' the unlawfulness of his conduct was 'apparent.'" Grossman v. City of Portland, 33 F3d 1200, 1208 (9th Cir 1994) (quoting Anderson v. Creighton, 483 US 635, 640, 107 S Ct 3034, 97 L Ed 2d 523 (1987)). Sherman cannot establish that Ms. Reisser violated a statutory or constitutional right Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 24 of 27 Page 19 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 that was clearly established at the time of the alleged conduct; thus, Sherman's claims are barred by discretionary immunity. 12 F. All Claims Should Be Dismissed Because Defendants Were Not Properly Served. To avoid waiving their rights to be properly served in this matter, Defendants assert that all of Sherman's claims should be dismissed because Sherman has not properly served any of the Defendants. Fed R Civ P 4(e) provides that a party may be served, among other ways, using means that follow the law of the state in which the district court is located. Here, Sherman attempted to accomplish "office service" under Oregon law; this requires delivering the service documents to the person in charge of the office that the individual maintains for the conduct of business and mailing them to a location most reasonably calculated to provide notice of the pendency of the action. ORCP 7 D(2)(c). Office service is complete upon mailing. Id. On August 24, 2016, a U.S. Marshal delivered copies of the summons and complaint addressed to Kelley, Smith-Abbott, Wenger, McKenna, and Reisser to Kristen Rosenblum in the PCC Human Resources office. Dkt. 15-19. None of the Defendants received a copy of the summons and complaint in the mail from Sherman. (Kelley Decl. ¶ 4; Smith- Abbott Decl. ¶ 4; Wenger Decl. ¶ 4; McKenna Decl. ¶ 5; Reisser Decl. ¶ 2.) PCC's Human Resources office was not authorized to accept service on behalf of Kelley, Smith-Abbott, Wenger, McKenna, and Reisser, and none of those individuals worked in the PCC Human Resources office. (Kelley Decl. ¶ 3, 4; Smith-Abbott Decl. ¶ 4; Wenger Decl. ¶ 4; McKenna Decl. ¶ 5; Reisser Decl. ¶ 2.) In fact, none of the Defendants maintained an office at the building in which the documents were served, and Ms. Reisser did not even work at PCC when the documents were delivered. (Kelley Decl. ¶ 3; Smith-Abbott Decl. ¶ 4; Wenger Decl. ¶ 4; McKenna Decl. ¶ 5; Reisser Decl. ¶ 2.) 12 Sherman has not asserted a Section 1983 claim against any of the other Defendants, but any such claim would also be barred by qualified immunity. Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 25 of 27 Page 20 - Defendants' Motion for Summary Judgment 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 Sherman failed to effect office service because the service documents were delivered to the PCC Human Resources office, where none of the Defendants worked, rather than to the offices they maintained for the conduct of business and Sherman did not mail copies of the summons and complaint to Defendants. See Liu v. Portland State Univ., No. 3:14-CV- 00908-BR, 2016 WL 1228580 (D Or Mar. 28, 2016) (finding that individual defendants were not properly served because copies of the summons and complaint were delivered to the university's Office of General Counsel, but none of the defendants worked in that office). Because Sherman failed to properly serve each of the Defendants within 90 days of filing the complaint, all claims against them should be dismissed. See Fed R Civ P 4(m) ("If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period."). IV. CONCLUSION The undisputed facts demonstrate that not one of Sherman's five alleged claims should survive summary judgment. Defendants therefore respectfully request that the court grant summary judgment on all of Sherman's claims, dismiss the complaint, and enter judgment in favor of Defendants. DATED this 3rd day of November, 2016. MILLER NASH GRAHAM & DUNN LLP s/Sharae M. Wheeler Sharae M. Wheeler, OSB No. 115525 sharae.wheeler@millernash.com Telephone: 503.224.5858 Fax: 503.224.0155 Attorneys for Defendants Sylvia Kelley, Mary Smith-Abbott, Dan Wenger, Linda Reisser, Ruth McKenna Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 26 of 27 Page 1 - Certificate of Service 70133218.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing Defendants' Motion for Summary Judgment on: Ms. Leasa Sherman 4022 N. Attu Street Portland, Oregon 97203 Pro Se Plaintiff by the following indicated method or methods on the date set forth below:  CM/ECF system transmission.  E-mail. As required by Local Rule 5.2, any interrogatories, requests for production, or requests for admission were e-mailed in Word or WordPerfect format, not in PDF, unless otherwise agreed to by the parties.  Facsimile communication device.  First-class mail, postage prepaid.  Hand-delivery.  Overnight courier, delivery prepaid. DATED this 3rd day of November, 2016. s/Sharae M. Wheeler Sharae M. Wheeler, OSB No. 115525 Of Attorneys for Defendants Case 3:16-cv-00865-MO Document 23 Filed 11/03/16 Page 27 of 27