Opinion
3:22-CV-00275-YY
10-04-2022
CHAD STANDLEY, on behalf of his minor son, B.M.S., Plaintiff, v. VICKI NELMS, GREG NEUMAN, NORTH CLACKAMAS S.D. 12, an Oregon Public School District, authorized and chartered by the laws of the State of Oregon, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff Chad Standley, on behalf of his minor son, B.M.S., brings this suit against Vicki Nelms, Greg Neuman, and North Clackamas S.D. 12, alleging violations of the Fourteenth Amendment's Due Process Clause, Section 564 of the Food, Drug, and Cosmetic Act, the First Amendment, and O.R.S. § 431.180. First Am. Compl., ECF 14. Plaintiff seeks damages, injunctive relief, and attorney fees. This court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1367.
Defendants have filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Second Mot. Dismiss (“Mot.”), ECF 16. For the reasons that follow, defendants' motion should be GRANTED and plaintiffs' suit should be dismissed with prejudice.
I. Background Factual Allegations
The complaint alleges that plaintiff is a high school sophomore who is home-schooled, but allowed to participate on sports teams affiliated with Adrienne C. Nelson High School (“Nelson HS”). Am. Compl. ¶ 1, ECF 14. Nelson HS falls under the jurisdiction of defendant North Clackamas S.D. 12, an Oregon public school district. Id. ¶ 4. Defendants Nelms and Neuman are assistant principals at Nelson HS, and Nelms also serves as the athletic director. Id. ¶¶ 2-3.
During the COVID-19 pandemic, the Oregon Health Authority (OHA) adopted OAR 333-0190-1015, an administrative rule that requires “schools to ensure that students wear face masks.” Id. ¶ 8. As a result, schools across the state, including Nelson HS, began requiring all students to wear face masks. Id. Plaintiff “refuses to wear a face mask and has never worn a face mask” because (1) he believes he “has a legal right to not wear a face mask,” and (2) a doctor advised him “not to wear a face mask due to the risk to his overall health and development.” Id. ¶ 9.
Plaintiff alleges that his choice to not wear a face mask significantly affected his participation on Nelson HS's athletics teams. He claims that after making the school's varsity football team, he was allowed to eat with his teammates on one occasion before being “forced to eat in the locker room by himself” “because he would not walk into the room wearing a mask.” Id. ¶ 10. Plaintiff also notes he was barred from “rid[ing] on the bus with the team to games.” Id.
Plaintiff also describes a series of events that occurred while trying out for and subsequently participating on Nelson HS's junior varsity basketball team:
• During tryouts, plaintiff threw up from running drills, but was forced to vomit in a trash can rather than a bathroom because he was unmasked. Id. ¶ 12.
• After being selected for the team, plaintiff was informed he could not participate in some away games because of mask mandates at those schools. Id. ¶ 13.
• Plaintiff was allowed to participate in the team photo, despite not adhering to any mask mandate. Id. ¶ 14.
• Plaintiff was then barred from a team meeting and directed to sit in defendant Nelms' office. Defendant Nelms allegedly told plaintiff that she “could not allow [him] to get away with wearing a mask, because then everyone else would not wear a mask.” She also allegedly instructed plaintiff that “he did not even need to wear [the mask] over his nose and mouth,” just under his chin. Id. ¶ 15.
• In early December 2021, plaintiff participated in scrimmage games against teams from other schools. Id. ¶ 18. No mask requirement was enforced during the event. Id.
• The next day, the team's head coach called plaintiff's father and told him that plaintiff could not continue unless he followed the school's mask rules. Id. ¶ 19. The coach explained that defendant Nelms “compelled him to make the call,” and further instructed that if plaintiff came to the school, he was required to arrive at the main entrance and not enter through a side door. Id.
• Even though “staff were deployed at the main entrance,” plaintiff “slipped into a side door of the gym without a mask” to participate in practice. Id. ¶ 22. Defendant Neuman arrived at the practice and ordered the team to put on masks. Id. Plaintiff declined to wear one, and defendant Neuman “forbid him from practicing.” Id. Defendant Neuman later returned to the practice, found plaintiff participating, and informed him that he “was done with practice.” Id. ¶ 23. The entire team, including a coach, walked out of practice in solidarity with plaintiff. Id.
While detailing these events, plaintiff alleges that “a large portion of the student body and teaching staff at Nelson HS recognize the idiocy of the mask requirement” and “break the rule at every opportunity.” Id. ¶ 16. He adds that his parents have complained about the policy to Nelson HS officials and the school district, to no success. Id. ¶¶ 17, 24-25, 27.
Finally, plaintiff makes a series of allegations questioning the efficacy of wearing masks.
He claims that asymptomatic persons cannot transfer disease to other persons, and thus, “there is no health risk to mitigate” and “there is never a health reason to put a mask on a healthy person.” Id. ¶¶ 29-31. Plaintiff adds that the United States government “prohibits manufacturers of masks from even suggesting that a mask is safe or effective for the prevention of COVID-19,” and provides an image of a disclaimer found on a box of surgical masks. Id. ¶¶ 32-34 (emphasis omitted). He alleges that face masks “cause individuals to experience CO2 levels that violate the national OSHA standard for carbon dioxide” and inhibit brain development by depriving the body of oxygen. Id. ¶¶ 40-42. Plaintiff concludes the “Background” section of his Amended Complaint by likening the continued enforcement of a mask mandate to child abuse, and claims that by “receiving government funding that is tied to its compliance with the mask mandate,” defendant North Clackamas S.D. “is being bribed to abuse its students.” Id. ¶¶ 43-52.
II. Legal Standards
To state a claim for relief, a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). This standard “does not require ‘detailed factual allegations,'” but does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “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).
A Rule 12(b)(6) motion tests whether there is a cognizable legal theory or sufficient facts to support a cognizable legal theory. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). To survive a Rule 12(b)(6) motion, “the complaint must allege ‘enough facts to state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). In evaluating a motion to dismiss, the court must accept all well-pleaded material facts alleged in the complaint as true 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).
III. Mootness
Defendant first argues that plaintiff's suit is moot because the OHA lifted the mask requirement on March 12, 2022. For a federal court to retain Article III jurisdiction, “an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal citation omitted). “The doctrine of mootness, which is embedded in Article III's case or controversy requirement, requires that an actual, ongoing controversy exist at all stages of federal court proceedings.” Bayer v. Neiman Marcus Grp., Inc., 861 F.3d 853, 862 (9th Cir. 2017) (citation omitted). “An action ‘becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.'” Id. (quoting Chafin v. Chafin, 568 U.S. 165, 172 (2013)).
Here, as plaintiff correctly points out, his action is not just for injunctive relief, but also for damages. Thus, while plaintiff's request for injunctive relief may be moot given that the OHA has lifted the mask requirement, this court can still grant “effectual relief” to plaintiff in the form of damages. Bayer, 861 F.3d at 862 (quoting Chafin, 568 U.S. at 172); see also Uzuegbunam v. Preczewski, 141 S.Ct. 792 (2021) (holding that even if an allegedly unconstitutional policy is eliminated during litigation, the constitutional challenge is not rendered moot because an award of nominal damages could still redress the past injury). Accordingly, defendants' mootness argument does not justify granting their motion for summary judgment over the entirety of plaintiff's suit.
IV. Proper Defendants
Defendants also seek dismissal of plaintiff's suit on the basis that they are not the proper defendants for this case. They note that “[e]ach of plaintiff's claims . . . is premised on the existence of OAR 333-019-1015, which, as plaintiff alleges at ¶ 8 of his Amended Complaint, ‘requires schools to ensure that students wear face masks.'” Mot. 6, ECF 16. Defendants then explain that they “are not the State of Oregon” but rather “a local school district and employees thereof, bound by the laws of the State of Oregon, including OAR 333-019-1015.” Id. Said otherwise, defendants claim that if plaintiff wanted to challenge the validity of the statewide school mask mandate, “he should have sued the officials and agencies responsible for enacting that mandate, not the school district legally obligated to enforce it.” Id. at 7.
To this argument, plaintiff offers a variety of responses, none of which are persuasive. He first writes that an explanation of “‘[j]ust following orders,' is not a defense to violating [] constitutional and other rights.” Opp. 8, ECF 17 (citing Kinney v. Brazelton, No. 114CV00503AWIMJSPC, 2016 WL 4417690, at *2 (E.D. Cal. Aug. 18, 2016), report and recommendation adopted, No. 114CV00503AWIMJSPC, 2016 WL 8731197 (E.D. Cal. Sept. 23, 2016); Kennedy v. City Of Cincinnati, 595 F.3d 327, 330 (6th Cir. 2010)). Notwithstanding plaintiff's ill-fitting reference to the Nuremberg defense, the cases he cites are inapplicable here. In Kinney v. Brazelton, the Eastern District of California held that an officer who “ordered [a plaintiff] onto his knees on the hot pavement” and left him there for “an additional ninety minutes” was not entitled to qualified immunity because a defense that “he was just following orders does not occup[y] a respected position in our jurisprudence.” 2016 WL 4417690, at *3, *8 (citation omitted). Similarly, in Kennedy v. City of Cincinnati, the Sixth Circuit noted that the “‘just following orders' defense has not occupied a respected position in our jurisprudence, and officers in such cases may be held liable under § 1983 if there is a reason why any of them should question the validity of that order.” 595 F.3d at 337 (quoting O'Rourke v. Hayes, 378 F.3d 1201, 1210 n.5 (11th Cir. 2004)). Both cases clearly use the language regarding “following orders” in the context of qualified immunity, which is inapplicable here because defendants are not arguing they are entitled to it.
For similar reasons, plaintiff's reference to Hopkins v. Clemson Agricultural College, 221 U.S. 636, 644 (1911), is unavailing. When properly contextualized, the language plaintiff splices from this opinion simply clarifies that the Eleventh Amendment does not necessarily offer immunity for state officers who enforce blatantly unconstitutional statutes. Opp. 8, ECF 17. That is fundamentally distinct from defendants here, who are not state actors and are alleging the proper defendant is the state entity that promulgated the allegedly unconstitutional rules. And while plaintiff rhetorically questions how defendants “cannot be held accountable for conduct fairly attributable to the State” when private parties can be, the statement dramatically understates the requisite analysis for a private party's actions to constitute state action. See, e.g., Brunette v. Humane Soc'y of Ventura Cnty., 294 F.3d 1205, 1211 (9th Cir. 2002), as amended on denial of reh'g and reh'g en banc (Aug. 23, 2002) (outlining requirements for the joint action test). It is perhaps telling that plaintiff has not cited to a single case where a local school district or private corporation was successfully sued for enforcing a state's mask mandate.
The bottom line here is simple: “[T]he mask mandate to which Plaintiffs object appears to be the one established by the OHA in OAR 333-019-1015, but the Defendants in this lawsuit are not the proper parties against whom Plaintiffs may assert a challenge.” Gunter v. N. Wasco Cnty. Sch. Dist. Bd. of Educ., No. 3:21-CV-1661-YY, 2021 WL 6063672, at *6 (D. Or. Dec. 22, 2021). This particular issue alone-the selection of the wrong defendants for suit-is sufficient to dismiss plaintiff's claims altogether. But for the sake of thoroughness, the plaintiff's claims are analyzed to fully demonstrate that he has no viable cause of action.
V. Fourteenth Amendment Due Process
Plaintiff first asserts that defendants, in enforcing the OHA's mask mandate, violated his “constitutionally protected liberty interest to refuse medical treatment” under the Fourteenth Amendment's Due Process Clause. Am. Compl. ¶ 55, ECF 14. Specifically, plaintiff alleges that his “liberty interest means that he is free to exercise his power of choice,” and that his “right to free exercise of his power of choice for wearing an experimental medical device is a fundamental right.” Id.
A. Legal Standard and Standard of Review
The first step in evaluating a substantive due process claim is to determine whether a plaintiff is alleging harm from an “executive” or “legislative” act. Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (citations omitted) (“While due process protection in the substantive sense limits what the government may do in both its legislative and its executive capacities, criteria to identify what is fatally arbitrary differ depending on whether it is legislation or a specific act of a governmental officer that is at issue.”). A court applies the “shock the conscience” test for executive actions, while the traditional levels of scrutiny (strict scrutiny, intermediate review, or rational basis review) are used for legislative or quasi-legislative acts. Id. at 846-47; Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976) (describing the tiers of scrutiny for “legislative classification[s]”).
While the OAR rule here may have been promulgated by an executive agency, a school board's choice to enforce such a policy is treated as a legislative function, as such decisions are “endowed with a presumption of legislative validity.” Harrah Independent School District v.Martin, 440 U.S. 194, 198 (1979). Thus, defendants' application of OAR 333-019-1015 is analyzed under the traditional three tiers of scrutiny.
B. Jus Cogens Norms
In his opposition to defendants' motion, plaintiff argues that because he is being coerced to use an “experimental device,” his constitutional claims should be reviewed under a much higher level of scrutiny, to wit, the norms of jus cogens recognized in the Nuremberg Code. Opp. 18-19, ECF 17. Thus, he asserts that the standard of review for his constitutional claims should be “no derogation [] permitted.” Id. at 19.
To be sure, the Ninth Circuit has suggested that jus cogens norms are applicable in domestic disputes within federal courts. United States v. Struckman, 611 F.3d 560, 576 (9th Cir. 2010). But it is an “exacting standard,” and a plaintiff must demonstrate the jus cogens rights through “the works of jurists, writing professedly on public law; or by the general usage and practice of nations; or by judicial decisions recognizing and enforcing that law.” Id. A plaintiff asserting the use of the standard often provides “international law materials concerning the jus cogens rights he asserts . . . that address the application of the asserted rights under the circumstances of this case.” Id.
Here, plaintiff has not offered any materials indicating that school mask mandates during a worldwide pandemic constitute the forced or coerced use of a medical device. At best, he offers a passing comparison to an impermissible medical experiment barred under the Nuremberg Code. Opp. 18-19, ECF 17. But the Nuremberg Code was developed from the Nuremberg Trials, where Nazi war criminal doctors were convicted of war crimes and crimes against humanity for conducting medical experiments on persons against their will. See Abdullahi v. Pfizer, Inc., 562 F.3d 163, 177-78 (2d Cir. 2009). The context here is vastly different; this suit, at best, constitutes a challenge to a mask mandate issued during a public health emergency that requires Oregon students to wear face coverings in school to prevent the
spread of an incredibly viral and transmissible disease. Simply put, plaintiff has come nowhere close to meeting the demanding “exacting standard” that requires the demonstration of an accepted international norm showing that the challenged conduct is equivalent to prohibited medical experimentation. Johnson v. Brown, 567 F.Supp.3d 1230, 1248 (D. Or. 2021) (quotation marks omitted) (citing Struckman, 611 F.3d at 576).
The other flaw with plaintiff's invocation of jus cogens is that he still retains the option of choosing to wear a mask or not. OAR's rule provides the choice to either wear a mask or attend a school that does not have a mask requirement. In plaintiff's case, the choice is even less compelling, as his home-schooled status means that the mask mandate only affects his participation in extracurricular athletics. Simply put, plaintiff cannot show that the international community collectively condemns defendants' actions as coercion that, under the circumstances of a global pandemic, is prohibited by the Nuremberg Code. Thus, plaintiff's suggestion that jus cogens norms be used to evaluate this case fails.
C. No Fundamental Right
Having rejected plaintiff's invocation ofjus cogens norms, the analysis now proceeds to a more traditional review of government action that allegedly infringes upon a constitutional right. The analysis begins by determining whether a plaintiff has plausibly asserted the violation of a fundamental right. Reno v. Flores, 507 U.S. 292, 302 (1993). A fundamental right is one that is either “deeply rooted in our history and traditions” or “fundamental to our concept of constitutionally ordered liberty.” Washington v. Glucksberg, 521 U.S. 702, 727 (1997).
To start, the parties disagree on what liberty interest is at stake: plaintiff frames it as a right to refuse medical treatment, while defendant characterizes it as a right to refrain from wearing a cloth mask. But in either scenario, there is no fundamental right.
First, while plaintiff may liken the mask mandate to the compelled use of a device for medical treatment, “the mask mandate ‘no more requires a medical treatment than laws requiring shoes in public places or helmets while riding a motorcycle.” Gunter, 2021 WL 6063672, at *9 (citations omitted) (quoting Doe v. Franklin Square Union Free Sch. Dist., 568 F.Supp.3d 270, 290 (E.D.N.Y. 2021), appeal withdrawn, No. 21-2759, 2022 WL 1316221 (2d Cir. Mar. 17, 2022)). “[T]he circumstance of being required to wear a mask is distinguishable from compulsory medical treatment and [a mask mandate] therefore, does not implicate [a plaintiff's] right to bodily autonomy.” Lloyd v. Sch. Bd. of Palm Beach Cnty., 570 F.Supp.3d 1165, 1180 (S.D. Fla. 2021).
Second, there is no fundamental right to refrain from wearing a mask at a public school. “In the context of public education, courts regularly uphold restrictions relating to medical requirements.” Gunter, 2021 WL 6063672, at *9; see. e.g., Zucht v. King, 260 U.S. 174, 176 (1922) (rejecting challenge to Texas ordinance requiring vaccination to attend school); Phillips v.City of New York, 775 F.3d 538, 542 (2d Cir. 2015) (rejecting argument that a mandatory vaccine requirement violated provisions of the U.S. Constitution, including substantive due process). And when addressing public health concerns, schools have greater latitude in establishing medical requirements without implicating public interests. See Guilfoyle v. Beutner, 2021 WL 4594780, at *17 n.8 (C.D. Cal. Sept. 14, 2021) (“To the extent Plaintiffs allege their children have a fundamental right not to wear a mask or a fundamental right not to be screened for COVID-19 before entering their schools, the Fourteenth Amendment does not recognize such rights. Thus, defendants' decision to enforce the OAR's mask mandate does not infringe upon any of plaintiff's fundamental rights.
D. Rational Basis Review
Because the right to decline wearing a mask at a school is not a fundamental one, the OHA's rule need only be “rationally related to legitimate government interests.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985). Under rational basis review, the government's conduct is presumed valid and will be upheld so long as the above standard is met. Id.
In Jacobson v. Commonwealth of Massachusetts, the Supreme Court rejected a challenge to a vaccine mandate in circumstances similar to the ones here. 197 U.S. 11 (1905).
In response to a devastating smallpox outbreak, Massachusetts imposed criminal penalties on adults who refused a free vaccination. Id. at 12-13. The plaintiff, citing his personal views and “those of the medical profession who attach little or no value to vaccination,” argued that the mandate violated his Fourteenth Amendment liberties. Id. at 30. But the Supreme Court disagreed, writing that “a community has the right to protect itself against an epidemic of disease [that] threatens the safety of its members.” Id. at 27-28. And while the mode of combatting such a compelling health risk may be “distressing, inconvenient, or objectionable to some,” the Jacobson court found that “the wishes or convenience of the few” cannot diminish “the interests of the many.” Id. at 28-29. Massachusetts officials were tasked with determining the best practice for reducing smallpox transmission, and “no court . . . is justified in disregarding the action of the legislature simply because in its ....option that particular method was-perhaps, or possibly-not the best either for children or adults.” Id. at 35.
Plaintiff's current challenge is no more compelling than the Jacobson plaintiff's was from over a century ago. The Supreme Court has acknowledged that “[s]temming the spread of COVID-19 is unquestionably a compelling interest.” Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S.Ct. 63, 67 (2020) (per curiam). Plaintiff may not dispute that statement, but also believes “it is irrational to compel healthy people to wear a mask.” Am. Compl. ¶ 31, ECF 14. But the standard is not based in estimations of rationality: “[a] legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data.” Heller v. Doe by Doe, 509 U.S. 312, 320 (1993) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993)). Said otherwise, “courts are compelled under rational-basis review to accept a legislature's generalizations even when there is an imperfect fit between means and ends.” Id.
To be sure, plaintiff has offered his own view, developed through various studies, that (1) “there is no health risk to mitigate” between asymptomatic persons, (2) face masks are “ineffective in preventing the spread of COVID-19 or any other virus,” and (3) wearing a mask leads to “constant deprivation of oxygen,” which “inhibits the development of the brain [and] create[es] irreversible damage.” Am. Compl. ¶¶ 31-32, 42, ECF 14. But regardless of the strength of plaintiff's views, the responsibility of choosing between multiple options lies soundly with policymakers, not the courts. “When . . . officials ‘undertake[] to act in areas fraught with medical and scientific uncertainties,' their latitude ‘must be especially broad.'” S. Bay United Pentecostal Church v. Newsom, 140 S.Ct. 1613, 1613 (2020) (Roberts, C.J., concurring in denial of application for injunctive relief) (quoting Marshall v. United States, 414 U.S. 417, 427 (1974)). Otherwise said, policymakers “should not be subject to second-guessing by an unelected federal judiciary, which lacks the background, competence, and expertise to assess public health and is not accountable to the people.” Id. (citing Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 545 (1985)). Because it cannot be said that school
masking policies are not rationally related to the legitimate government interest of slowing the spread of COVID-19, plaintiff's substantive due process claim fails.
VI. Section 564 of the Food, Drug, and Cosmetic Act
Next, plaintiff asserts that defendants' enforcement of the OHA's mask mandate violates Section 564 of the Food, Drug, and Cosmetic Act, 21 U.S.C. § 360bbb-3 (“Section 564”). Am. Compl. ¶ 60, ECF 14. That statute outlines federal informed consent laws associated with products that are given Emergency Use Authorization (EUA) by the Secretary of Health and Human Services. 21 U.S.C. § 360bbb-3. According to plaintiff, “the use of face masks is only authorized by an emergency use authorization (EUA)” issued by the Food and Drug Administration (FDA). Id. ¶ 63. He adds that “Section 564's history, statutory framework, and implementation all reflect that ‘the option to accept or refuse' was intended to continue the longstanding principle that it is not permissible to coerce anyone to receive an unlicensed medical product.” Id. ¶ 64. According to plaintiff, defendants “failed to acknowledge [his] right to informed consent” and violated his “right to refuse to wear an experimental medical device.” Id. ¶¶ 67-68.
As defendants correctly note, there are at least two fatal problems with plaintiff's claim. First, there is no private right of action to enforce Section 564; 28 U.S.C. § 337 provides that “all such proceedings . . . of this chapter,” which includes Section 564, “shall be by and in the name of the United States,” with one exception: a state. 21 U.S.C. § 337(a), (b)(1). Plaintiff is neither, and thus cannot seek vindication of his allegedly violated rights through this provision.
Second, Section 564 “only applies to the Secretary of Health and Human Services . . . [it] directs the [HHS Secretary] to establish conditions that ensure recipients of EUA medical devices give informed consent.” Johnson, 567 F.Supp.3d at 1255 (emphasis added).
Moreover, the conditions surrounding informed consent “only relate to those who ‘carr[y] out any activity for which the authorization is issued,' which are the medical providers who issue the vaccines, not those who issue vaccine mandates.” Id. (citing Valdez, 559 F.Supp.3d at 1170-72 (stating that 21 U.S.C. § 360bbb-3(e)(1)(A) only applies to medical providers who are “directly administering the vaccine”)). Plaintiff has not alleged that the school district or the named defendants provided masks; he only alleges that they enforce an unconstitutional OHA mandate. Thus, regardless of plaintiff's claims that masks are medical devices, or that the use of masks are somehow only authorized through the issuance of an EUA, he cannot use Section 564 to pursue vindication of his alleged injuries.
VII. First Amendment
Plaintiff next alleges that the mask mandate violated his First Amendment right to free expression. However, none of his formulations of the alleged violation pass muster.
First, plaintiff claims that “[f]ace masks interfere one's ability to communicate by masking facial expressions and suppressing the volume and clarity of one's voice.” Opp. 27, ECF 17. But “[f]ree expression applies to the content of speech, not the mechanics of speaking clearly and being able to smile.” Young v. Becerra, No. 3:20-CV-05628-JD, 2021 WL 1299069, at *2 (N.D. Cal. Apr. 7, 2021) (emphasis added) (citing Texas v. Johnson, 491 U.S. 397, 404 (1989)). Said otherwise, “[t]he First Amendment does not prevent restrictions directed at . . . conduct from imposing incidental burdens on speech.” Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011).
Plaintiff also alleges that masking requirements are “unconsciously and universally associated with a gag” and serve as “a symbol for the oppression of speech.” Opp. 28-29, ECF 17. “In considering whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, [the Supreme Court] has asked whether ‘an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” Johnson, 491 U.S. at 404. Plaintiff has failed to demonstrate either of these elements: he does not plead that the government intended to convey a particularized message by forcing individuals to wear masks, nor does wearing a mask convey an “overwhelmingly apparent” message that the wearer is “a subject of the State who will obey the State's orders.” Id.; Opp. 29, ECF 17. Instead, as other courts have found, “wearing a face covering would be viewed as a means of preventing the spread of COVID-19, not as expressing any message.” Antietam Battlefield KOA v. Hogan, 461 F.Supp.3d 214, 237 (D. Md. 2020), appeal dismissed, No. 20-1579, 2020 WL 6787532 (4th Cir. July 6, 2020), and aff'd in part, appeal dismissed in part, No. 20-2311, 2022 WL 1449180 (4th Cir. May 9, 2022).
Because the OHA's rule makes no distinction based on content, and does not appear to be based on hostility toward the expression of any point of view, it is subject to, at worst, intermediate scrutiny. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989); Clark v. Cmty.for Creative Non-Violence, 468 U.S. 288, 293 (1984). Under a time, place, and manner-based analysis, regulations must (1) serve a substantial government interest unrelated to the content of speech, (2) be “narrowly tailored to serve” that interest, and (3) “leave open ample alternative channels for communication of the information.” McCullen v. Coakley, 573 U.S. 464, 477 (2014). And school masking requirements have consistently passed muster under such an analysis, as they are “content neutral and impose[] reasonable time, place and manner requirements that are narrowly tailored to serve a significant government interest, namely controlling a pandemic with a high illness and death toll.” Young, 2021 WL 1299069, at *2 (citing United States v. Grace, 461 U.S. 171, 177 (1983)). Thus, plaintiff has not stated a viable First Amendment claim.
VIII. Negligence Per Se
Lastly, plaintiff alleges that defendants committed negligence per se in violating O.R.S. § 431.180 “by mandating [him] to wear a face mask.” That statute reads, in relevant part, that no Oregon public health law shall be construed to authorize “the Oregon Health Authority or its representatives, or any local public health authority or its representatives, to interfere in any manner with an . . . individual's choice of mode of treatment.” O.R.S. § 431.180. To demonstrate negligence per se under Oregon law, plaintiff must allege four elements:
(1) [Defendants violated a statute; (2) that plaintiff was injured as a result of that violation; (3) that plaintiff was a member of the class of persons meant to be protected by the statute; and (4) that the injury plaintiff suffered is of a type that the statute was enacted to prevent.McAlpine v. Multnomah Cnty., 131 Or.App. 136, 144 (1994).
Yet there are serious problems that undermine the applicability of all the McAlpine factors to this case. First, and fundamentally, O.R.S. § 431.180's clauses apply to “the Oregon Health Authority or its representatives, or any local public health authority or its representatives.” Id. None of the defendants in this case are health authorities or representatives thereof; they are a school district and employees of the school district. See Am. Compl. ¶¶ 2-4, ECF 14. Plaintiff counters that “[d]efendants are the representatives of the Oregon Health Authority because the Mask Rule coopts schools into enforcing the Mask Rule.” Opp. 31-32, ECF 17. This logic is unpersuasive for two reasons. Plaintiff's interpretation would inexplicably mean that any entity (including private businesses) that enforced any of the Oregon Health Authority's administrative rules would suddenly become “representatives” of the state agency- an unprecedented premise not cited to nor found in any law. Moreover, if plaintiff was correct, and defendants indeed “are the representatives of the Oregon Health Authority,” then this federal court cannot adjudicate the portions of plaintiff's suit that seek injunctive relief, as the Eleventh Amendment bars federal courts from providing forward-looking relief against a state official based on state law absent consent. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104 (1984).
Second, plaintiff cannot demonstrate that he was injured as a result of defendants' enforcement of the OHA's administrative rule. While plaintiff does allege medical harms associated with wearing a mask, see Am. Compl. ¶¶ 40-42, ECF 14 (describing oxygen deficiency from wearing a covering), the entire premise of his suit is that he “stood up to [defendants' attempts to infringe his rights” by refusing to comply with the OHA's directive. Opp. 34, ECF 17. Said otherwise, plaintiff was not “injured as a result of [defendants'] violation” because he declined to engage in conduct that constituted the alleged violation. And while plaintiff may have suffered administrative consequences for refusing to wear a mask, those consequences arose from his own refusal to comply with the agency's requirements, not from the enforcement of the statute itself.
Lastly, plaintiff cannot demonstrate the other two McAlpine factors-that he is a “member of the class of persons meant to be protected by the statute” or that “the injury plaintiff suffered is of a type the statute was enacted to prevent.” 131 Or.App. at 144. Read plainly, the statute affirms the right of a patient to seek, if the patient so desires, the physician or professional of the patient's choice, or the mode of treatment the patient desires (including a right to choose a treatment that is more spiritual in nature). The entire premise of plaintiff's suit is that he is healthy, asymptomatic, and not in need of any treatment, and that wearing a mask is unnecessary for a perfectly healthy individual. Moreover, as stated earlier, he has declined to engage in wearing a mask, and thus, does not fall in the class of persons protected by the statute (individuals who are otherwise denied their choice of treatment for a condition or ailment they are suffering from). Thus, plaintiff has not demonstrated any of the four factors needed to sustain a negligence per se claim.
RECOMMENDATIONS
Defendants' Second Motion to Dismiss (ECF 16) should be GRANTED and plaintiffs' suit should be dismissed with prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Tuesday, September 06, 2022. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.