Opinion
3:20-cv-1819-JR
07-13-2023
MELVIA WILSON, Plaintiff, v. STATE OF OREGON, DEPARTMENT OF HUMAN SERVICES, MULTNOMAH COUNTY, JENNIFER COBB, NATALIE TAYLOR, HEATHER KILMER, Defendants.
FINDINGS AND RECOMMENDATION
JOLIE A. RUSSO, United States Magistrate Judge
Plaintiff brings this action alleging various state and federal claims against the State of Oregon Department of Human Services (DHS) and Multnomah County defendants regarding their alleged mistreatment of her foster care facility.
In this nearly three-year-old case, just getting through the pleading stage has been a tortured exercise. See, e.g., Findings and Recommendation (ECF 84) dated June 30, 2022.
Plaintiff retained replacement counsel on December 31, 2022. (ECF 96). On February 27, 2023, the day dispositive motions were due (and filed by all defendants) and discovery closed,plaintiff's counsel sought an extension of time in which to conduct discovery. Plaintiff failed to explain why she had failed to conduct any discovery and the Court denied the motion for failure to show good cause. (ECF 125).
On December 27, 2022, plaintiff sought, via informal email request, an extension of discovery to February 27, 2023, which the Court granted. (ECF 95). On that same day, the Court granted defendants' request to extend the dispostive motion deadline to February 27, 2023, as well. The Court noted that “No further extensions will be granted unless sufficient good cause is shown. Any request for further extensions must be filed not less than seven (7) days before the expiration of the current deadline.” (ECF 95).
After receiving an extension of time to respond to the motions for summary judgment, plaintiff responded on April 3, 2023, primarily asserting a need for additional discovery in order to fully respond. Accordingly, plaintiff also sought to reopen discovery. Pursuant to Fed.R.Civ.P. 56(d), the Court found plaintiff failed to demonstrate due diligence in conducting discovery prior to the filing of the summary judgment motions and did not adequately explain why the subjects into which she sought discovery would influence the outcome of the summary judgment motions. Accordingly, the Court denied the motion to reopen discovery. (ECF 133).
On May 7, 2023, plaintiff moved to voluntarily dismiss this action without prejudice. For the reasons stated below defendant Jennifer Cobb's motion for summary judgment (ECF 102) should be granted, defendants DHS, Natalie Taylor, Heather Kilmer, Stephanie Ting, and Amy Snyder's motion for summary judgment (ECF 106) should be granted, and plaintiff's motion to dismiss (ECF 134) should be denied.
BACKGROUND
Plaintiff's remaining claim against defendant Cobb is a First Amendment retaliation claim pursuant to 42 U.S.C. § 1983. The remaining claims against the State defendants are a First Amendment retaliation claim, violations of procedural due process, and breach of contract. Because plaintiff merely provides a narrative unsupported by reference to the record, the Court draws the factual background from the evidence submitted by defendants.
In 2010, the State first certified plaintiff as a general placement foster parent. The certification lasts for a period of two years at which time it must be renewed following an updated foster care home study. Declaration of Natalie Taylor (ECF 112) at ¶ 8. A renewal home study involves a lengthy review of the foster parent's background, the conditions in the home, and many other things that affect the foster parent's ability to provide foster care to children in DHS's legal custody. Id.
Defendant DHS administers the foster care system through the Office of Child Welfare. DHS through Child Welfare is the final decision-maker with respect to child placement and payment in most child-welfare scenarios. Declaration of Elizabeth McHugh (ECF 103) at ¶ 9; Or. Rev. Stat. §§ 418.635, 418.640, 418.647, 419B.337, 419B.373.
After a home study begun in the Fall 2019, Child Welfare's Alberta Branch certifier Natalie Taylor, along with her supervisor, defendant Heather Kilmer, renewed plaintiff's foster parent certificate for two years beginning January 2020. Declaration of Natalie Taylor (ECF 112) at ¶¶ 9-10. However, the renewal reduced the maximum number of children who could be placed with plaintiff from four to one. Id. at ¶ 10. In making this decision, Child Welfare considered issues such as plaintiff's decisions to end placement of children (L.E., A.V., D.D.) on short notice due to plaintiff's unwillingness to accept purportedly low payments offered by Child Welfare. Id. at ¶¶ 10-13.
The subject children had developmental disabilities and the foster care rules authorize additional payments with greater levels of need. See OAR § 413-090-000(23)(a)-(c); OAR §§ 413-090-000(21), 413-1700020(11), 413-090-0010(2), 413-090-0120, 413-090-0133. The level of care payment is based on the results of Child and Adolescent and Strength (CANS) screening completed by the Child Welfare certifier. OAR § 413-090-0010(2)(a)-(g); OAR § 413-090-0000(7), (29).
Within DHS is the Office of Developmental Disability Services (DDS) which contracts with county disabilities programs to ensure that persons with developmental disabilities have access to support services such as foster care. Or. Rev Stat. § 427.104; Or. Rev. Stat. 430.662(1)(a-d). DDS has contracted with Multnomah County to provide such services where plaintiff provides foster care. DHS works with Multnomah County to identify and meet the needs of children with developmental disabilities by, for instance, placing foster children in foster homes that are certified by DDS through the Multnomah County developmental disabilities program under rules adopted by DDS. Declaration of Julie VanNette (ECF 108) at ¶ 3.
Another method ODHS can use to do that is by placing the child in a foster home certified by ODHS Child Welfare. That is, a DD-specific foster care certification is not necessary as long as ODHS can assure the child's needs will be met there. ODHS can be so assured if the foster parent has sufficient skill or training, or if the foster parent's services are appropriately supplemented by additional services available through the local community DD program. Such supplemental services may be available through the “K-plan,” a provision of Medicaid that is intended to encourage states to prioritize making I/DD services more accessible in home or community-based settings, rather than in institutional settings. Through so-called K-plan services, a child in a Child Welfare-certified foster home may receive supports such as attendant care, daily relief care, behavior consultation, and assistive devices. Different funding mechanisms support each of these methods, and the resulting payments the foster parent may receive may not necessarily be the same under each mechanism.Id.
Plaintiff does not have DDS certification. Declaration of Elizabeth McHugh (ECF 103) at ¶ 12. However, she may house children with developmental disabilities by submitting a provider enrollment application and agreement (PEA) to DDS. Id. at ¶ 13. In July 2019, plaintiff signed a PEA prior to placement of A.V. in her home and agreed to fully comply with all requirements applicable to fostering developmentally disabled children and to accept the rate authorized by DHS as payment in full for the Child's care. Id. at ¶ 20 and at Ex. 2, p. 4.
Child L.E. came into the custody of Child Welfare in November 2018 and was placed in plaintiff's care on November 8, 2018. Declaration of Blissarah Mills (ECF 107) at ¶ 4. At the time of placement, L.E.'s level of care was not fully known. Plaintiff preferred L.E. be placed at a level of care provided by a DDS certified foster provider so as to increase her potential foster care payment. Id. at ¶ 8. However, plaintiff already had two other boys with high needs in her care and did not have paid support staff to meet their needs. Id. at ¶ 9. Accordingly, on December 18, 2018, DHS, in consultation with Multnomah County, decided to meet L.E.'s needs by paying plaintiff the welfare foster care rate plus the level 2 personal care rate plus whatever rate would be available based on a CANS assessment, along with additional home support provided by the K-plan through funding to third parties. Id. at ¶ 10. Plaintiff responded that she would not accept that level of payment and wanted L.E. removed before Christmas. Id.
As noted, plaintiff was not certified, but could provide such care pursuant to a PEA.
When K-plan funds first became available in 2014, DHS implemented a policy “to use Child Welfare-funded foster placements to the extent possible. The intention of that policy was to place children in the least restrictive settings possible and to increase permanency for children. Under that policy, case managers were to consider whether placement in a Child Welfare-funded foster placement, plus additional supports such as those available under the K-plan, could meet the child's needs. Case managers were generally expected to try a Child Welfare-funded foster placement supplemented by K-plan supports if that approach could reasonably be expected to meet the child's needs before attempting an ODDS-funded foster placement.” Declaration Julie Vannette (ECF 108) at ¶ 4. At the time, the base rate was $733/month (OAR § 413-090-0010(1)(b)(C)), the level 2 care rate was $461/month (OAR 413-090-0150(1)(b)), and the CANS screening ranged up to $960/month (OAR 413-090-010(2)(g)). The K-plan service was provided by third parties.
Because new placement could not be made before January 2, 2019, Child Welfare requested that plaintiff continue to care for L.E. until that time. Plaintiff refused to continue L.E.'s care necessitating removal from plaintiff's home on Christmas eve. However, on that day, plaintiff stated she was willing to consider continuing care while she learned about the K-plan. Id. at ¶ 13. L.E. was ultimately removed that day. Id.
Plaintiff had already been provided a pamphlet about the K-plan on November 19, 2018, and had received more information about it at a December 5, 2018 meeting with Child Welfare. Declaration of Blissarah Mills (ECF 107) at ¶ 13.
Child Welfare notified defendant Jennifer Cobb in late June 2019, that there were issues with child A.V.'s current foster home necessitating his need to move. Declaration of Elizabeth McHugh (ECF 103) at ¶ 20-21. On June 25, 2019, DHS placed brothers A.V. and R.V. in plaintiff's home with the ultimate goal of reuniting them with their father. Declaration of Jill Parmen (ECF 109) at ¶¶ 4-5. While A.V. qualified for developmental disability services, R.V. did not. Id. at ¶¶ 6-7. A.V.'s previous foster placement had received, on A.V.'s behalf, a foster payment of $1734 per month, plus $599 per month for room and board, as well as a social security stipend of $172 per month which was also offered to plaintiff, but plaintiff expected $3,000 to care for A.V. Id. at ¶¶ 7-8. However, after Multnomah County developmental disability services confirmed the amount, plaintiff completed the PEA on June 25, 2019, and agreed to accept the payment for developmental disability services for A.V. Declaration of Elizabeth McHugh (ECF 103) at ¶ 20.
On June 27, 2019, defendant Cobb met with plaintiff who requested a new support needs assessment profile (SNAP) assessment. Due to the need for a multitude of parties to conduct the assessment and the backlog of assessments to be conducted, an assessment could not be conducted before August 23, 2019, at which time it was anticipated that R.V. and A.V. would be returned to their father. Declaration of Jill Parmen (ECF 109) at ¶¶ 11-13.
“Where a child is placed in ODDS-funded DD foster care, the foster care rate paid on behalf of that child is determined according to an assessment called a SNAP, a “Support Needs Assessment Profile.” The process for a SNAP generally involves a meeting between the foster provider(s), the child's DD service coordinator, and the child's ODHS case worker. This group, called the “respondents,” chosen because of their knowledge of the child, meet with an assessor, who is a person from ODDS or the local county's DD program who is trained to conduct a SNAP. The assessor goes over a series of questions regarding the child's support needs in areas such as activities of daily living, communications, and medical and behavioral needs, and explains the answer choices. The respondents discuss and describe the supports that are needed. The assessor and the respondents discuss and choose the coding choice that best matches the needed supports. A SNAP is a consensus-based assessment, such that before the assessment adjourns, each party must agree to each chosen rating code and acknowledge that the assessment captures an accurate and complete picture of the child's support needs. The rating codes are then processed by an algorithm to reach the SNAP rate.” Declaration of Carolyn Sahr (ECF 117) at ¶ 2. A SNAP assessment was completed for A.V. on December 18, 2018. Upon new placement, another assessment could be conducted within 30 days, but a new SNAP generally would not be done earlier than 60 days after placement which was explained to plaintiff. Declaration of Jill Parmen (ECF 109) at ¶ 10.
By August 6, 2019, it became clear the boys would not be returned home to their father and plaintiff stated she would keep the boys but demanded the SNAP be done immediately. Id. at ¶ 14. After substantial effort to accommodate plaintiff, a SNAP assessment was scheduled for August 19, 2019. Id. at ¶¶ 15-16. However, the result of the SNAP assessment decreased the developmental disability rate to $996 (plus the $599/month room and board and $172/month SSI). Id. at ¶ 18. Consequently, plaintiff gave notice, on August 20, 2019, that both A.V. and R.V. must be removed from her home within 30 days. Plaintiff further stated she would have requested removal at the original rate to which she had already agreed. Id.
Nonetheless, plaintiff requested a new SNAP assessment which was conducted on September 9, 2019, resulting in an increase to $1156/month developmental disability rate. Id. at ¶ 21. Plaintiff expressed her displeasure with the new rate but stated she did not intend to appeal. Id. Plaintiff demanded removal of A.V. and R.V. by September 23, 2019. Declaration of Elizabeth McHugh (ECF 103) at ¶ 32. Meanwhile, defendant Cobb and Child Welfare continued to look for a new placement for A.V. and R.V. Id. at ¶ 22.
With a planned removal of the brothers scheduled for September 23, 2019, plaintiff emailed a number of people at DHS and Multnomah County on September 22, 23, and 24, 2019, requesting reconsideration of the SNAP rate for A.V. Declaration of Jill Parmen (ECF 109) at ¶ 23. Meanwhile, Child Welfare continued to search for a replacement home. Id. at ¶¶ 24-25.
On September 24, 2019,
in order to find placement for A.V. and R.V., ODHS decided to attempt an emergency trial reunification with father. The father required significant supports. He worked graveyard shifts at his job, requiring overnight respite care for the boys. The father worked out an arrangement in which the boys' mother, who was not yet considered safe to be with boys without supervision, agreed to provide that overnight respite care, supervised by a safety service provider contracted by ODHS. Mother promptly reversed course and was no longer willing to participate. The father left his job in order to provide care for the boys. This was a risky reunification because it did not benefit from comprehensive planning and thoughtful transition period.Id. at ¶ 26.
A similar scenario played out with another child, D.D., who was placed in plaintiff's home on July 8, 2019. A CANS screening resulted in a level 2 finding where D.D. had previously been a level 0. Declaration of Gregory Goss (ECF 111) at ¶¶ 4-6. Before plaintiff received the CANS screening results, plaintiff requested a hearing. Id. at ¶¶ 6-8. After an informal review finding the level appropriate, plaintiff remained unsatisfied. Id. at ¶ 9. Accordingly, the matter was referred for a hearing on November 20, 2019, but ultimately did not occur given that D.D. was returned to his mother divesting plaintiff of representative status. Id. at ¶ 10. Nonetheless, plaintiff received retroactive pay of an extra $468/month back to September 1, 2019, for the increased CANS rate. Id. at ¶ 12.
During the time D.D. remained in plaintiff's home, conflicts between plaintiff and D.D. emerged creating risk for D.D. Declaration of Beverly Logan (ECF 110) at ¶¶ 12-16. As a result, DHS permitted D.D. an extended respite visit and accelerated the plan to return him to his mother despite her lack of readiness. Id. at ¶¶ 13-16.
Given the events that transpired with respect to A.V., D.D. and L.E., DHS stopped placing children with plaintiff and reduced her certification capacity to one child for the 2020-22 certification period. Defendant Taylor sought and received feedback from a permanency case worker and determined it would not be in the best interests for any additional children to be placed in plaintiff's home. See, e.g., Declaration of Heather Kilmer (ECF 113) at ¶ 6 (After the removal of A.V. and R.V., placement of additional children in plaintiff's home could not be approved due to significant concerns regarding child well-being and permanency going forward until concerns could be addressed); Declaration of Natalie Taylor (ECF 112) at ¶ 19 (home study revealed failure to mitigate issues with communication style and volume, unreasonable expectations of caseworkers, rigidity in problem-solving, commitment and responsibility including willingness to remove or threaten to remove children as a means of resolving ordinary difficulties inherent in foster parenting, such as foster payment amounts, scheduling of SNAP assessments, and identifying service providers). Defendant Taylor would not have supported the reduction if plaintiff had simply recognized the seriousness of her conduct and its potential harm to children and resolved to work with ODHS to address these issues. Id.
On February 4, 2020, DHS issued the renewed certificate with the one-child limit. However, on February 3, 2020, plaintiff had already requested a hearing to challenge the one-child limit. Declaration of Heather Kilmer (ECF 113) at ¶ 12. DHS determined plaintiff was not entitled to a hearing and plaintiff has not petitioned for judicial review in State Court. Id. at ¶ 13.
DHS continued the one-child limit after the 2022 recertification process. Declaration of Stephanie Ting (ECF 119) at ¶¶ 4-5; Declaration of Amy Snyder (ECF 114) at ¶¶ 4-7 (home study revealed no reason to believe plaintiff understood the agency's concerns, much less attempted to resolve those concerns).
DISCUSSION
As noted above, both the State defendants and defendant Jennifer Cobb move for summary judgment as to all claims. Defendant Cobb asserts plaintiff's complaints are more appropriately directed against the State, plaintiff has no basis for a First Amendment claim against Cobb, and nonetheless Cobb is entitled to qualified immunity. The State defendants assert plaintiff's retaliation claims fails as a matter of law, Or. Rev. Stat. § 659A.199 does not apply, plaintiff's due process claim fails as a matter of law, the individual State defendants are entitled to qualified immunity, and the breach of contract claim has previously been dismissed.
A. Defendant Cobb
1. First Amendment Retaliation
Although there is no evidence that plaintiff was an employee of either the State or Multnomah County, the retaliation standards for government contractors is likely applicable.
When a business vendor operates under a contract with a public agency, we analyze its First Amendment retaliation claim under § 1983 using the same basic approach that we would use if the claim had been raised by an employee of the agency.... Accordingly, the contractor must establish that (1) it engaged in expressive conduct
that addressed a matter of public concern; (2) the government officials took an adverse action against it; and (3) its expressive conduct was a substantial or motivating factor for the adverse action.... If the contractor meets its burden, the government officials (and the government itself) can nonetheless escape liability if they demonstrate either that: (a) under the balancing test established by Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), legitimate administrative interests in promoting efficient service-delivery and avoiding workplace disruption outweigh the contractor's free speech interests; or (b) under the mixed motives analysis established by Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977), they would have taken the same actions in the absence of the contractor's expressive conduct.Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir. 2004) (internal citations omitted).
As noted above, plaintiff failed to seek discovery and failed to show good cause for such failure but regardless relies on her argument that the Court should deny summary judgment to allow further discovery. Accordingly, plaintiff offers little in the way of argument or support regarding the merits of her claims. To the extent plaintiff argues summary judgment is premature, the Court should decline to delay a merits decision as plaintiff is not entitled to reopen discovery, and thus further delay would not aid her in providing record support to show that genuine issues of fact remain. As such, the Court is left with plaintiff's operative complaint to discern any argument in support of her claims.
Plaintiff asserts:
Defendant Cobb took an adverse action against Ms. Wilson by wrongfully withholding and reducing benefits, and denying a SNAP assessment, because Ms. Wilson made protected statements to the State of Oregon and DHS and other governmental agencies concerning the public benefits, level of care, and compensation being provided in connection raising her foster children. In so doing, Defendant Cobb, an employee of Multnomah County, was acting as an agent of the State of Oregon and DHS.
Third Amended Complaint (ECF 71) at ¶ 86. The record now demonstrates DHS through Child Welfare is the final decision-maker with respect to child placement and payment in most childwelfare scenarios. While defendant Cobb may have played a role in the placement of children with developmental disabilities, State and County officials work with foster providers in that placement and the ultimate decision regarding payment and placement resides with DHS. This is evidenced by, among other regulations, the contested case procedures available should foster care providers like plaintiff wish to dispute such issues. OAR 411-001-0500. The record also demonstrates that the SNAP assessment was made by the State, and that the decisions regarding payments for A.V., D.D. and L.E. were made pursuant to the regulatory guidelines. The record further demonstrates defendant Cobb did not make the SNAP assessments and was not part of DHS's placement decisions. Accordingly, even if plaintiff made protected statements on matters of public concern, defendant Cobb did not take the adverse actions alleged by plaintiff. Moreover, plaintiff fails to identify any other action by Cobb that was substantially motived by plaintiff's expressive conduct. Accordingly, the Court should grant defendant Cobb's motion for summary judgment. See, e.g., Lakeside-Scott v. Multnomah Cnty., 556 F.3d 797, 806 (9th Cir. 2009) (where the evidence shows the final decision-maker made a wholly independent, legitimate decision, uninfluenced by the retaliatory motive of others, the neutrality of the decision-making process eliminated any causal link).
To the extent plaintiff seeks to hold defendant Cobb liable as some sort of agent of DHS, the intergovernmental agreement between DHS and Multnomah County makes clear that the County is not an officer, employee, or agent of the State. Declaration of Elizabeth McHugh (ECF 103) at ¶ 1, p. 15.
2. Qualified Immunity
Qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably. The protection afforded by qualified immunity applies regardless of whether the government official's error is “a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact.” Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy, J., dissenting) (quoting Butz v. Economou, 438 U.S. 478, 507 (1978)).
There is generally a two-step sequence for resolving government officials' qualified immunity claims. First, a court must decide whether plaintiff's alleged facts violate a constitutional right. Saucier v. Katz, 533 U.S. 194, 201 (2001) (receded by Pearson v. Callahan, 555 U.S. 223 (2009) (finding Saucier step beneficial, but not mandatory)). Second, the court must decide whether the right at issue was “clearly established” at the time of defendant's alleged misconduct. Id.
A right is clearly established if its contours are “sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002) (citation and internal quotations omitted). The dispositive inquiry is whether the state actor had “‘fair warning' that his conduct deprived his victim of a constitutional right.” Id. at 740 (citation omitted); see also Mullenix v. Luna, 577 U.S. 7, 11-12 (2015) (“[w]e do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate”).
Plaintiff fails to present evidence in support of her claim or discuss any case law demonstrating First Amendment retaliation is clearly established in this context. To the extent there is any ambiguity in the record as to whether a genuine issue of fact exists, plaintiff fails to demonstrate the right allegedly violated was clearly established. Accordingly, defendant Cobb is also entitled to summary judgment for this reason. See, e.g., Callahan v. Unified Gov't of Wyandotte Cty., 806 F.3d 1022, 1027 (10th Cir. 2015) (“When a defendant raises the defense of qualified immunity, the plaintiff bears the burden to demonstrate that the defendant violated his constitutional rights and that the right was clearly established.”); Findlay v. Lendermon, 722 F.3d 895, 900 (7th Cir. 2013) (plaintiff failed to “carry his burden of showing a clearly established right” when he failed to identify precedent showing that “any reasonable officer would know [the conduct at issue] violated the constitution”); Romero v. Kitsap Cty., 931 F.2d 624, 627 (9th Cir. 1991) (“[t]he plaintiff bears the burden of proof that the right allegedly violated was clearly established at the time of the alleged misconduct.”).
The issue of burden of proof on qualified immunity is somewhat muddy in the Ninth Circuit. Compare Frudden v. Pilling, 877 F.3d 821, 831 (9th Cir. 2017) (“[q]ualified immunity is an affirmative defense that the government has the burden of pleading and proving.”) with LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000) (“[o]nce the defense of qualified immunity is raised by the defendant, the plaintiff bears the burden of showing that the rights allegedly violated were ‘clearly established.'”). However, a review of the caselaw reveals a decision turns on the second step of the qualified immunity analysis where the dispositive question is whether the violative nature of particular conduct is clearly established. Mullenix v. Luna, 577 U.S. 7, 12 (2015). As to that question, there appears to be little debate that the plaintiff bears the burden to show the official violated a “clearly established” federal right. Sweaney v. Ada County, 119 F.3d 1385, 1388 (9th Cir. 1997). In this case, plaintiff fails to even address this issue.
B. State Defendants
1.First Amendment Retaliation
As noted above, to prevail on this claim, plaintiff must establish that (1) she engaged in expressive conduct that addressed a matter of public concern; (2) State officials took an adverse action against her; and (3) her expressive conduct was a substantial or motivating factor for the adverse action.
Speech involves matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public. Lane v. Franks, 573 U.S. 228, 241 (2014). Speech that deals with individual personnel disputes and grievances and that has no relevance to the public's evaluation of the performance of governmental agencies is generally not of public concern. Turner v. City & Cnty. of San Francisco, 788 F.3d 1206, 1211 (9th Cir. 2015). Accordingly, a contractor's motivation for speaking is relevant to the inquiry of whether the speech is a matter of public concern. Id. at 1210. In this regard, the Court analyzes why the contractor spoke and does the speech seek to bring to light actual or potential wrongdoing or breach of public trust, or is it animated instead by dissatisfaction with the provision of services by and payment to the contractor? Id.
Again, plaintiff's failure to respond to the merits of the motions complicates the analyses of plaintiff's expressive conduct. Nonetheless, the record demonstrates plaintiff's complaints did not relate to, for instance, the well-being of the foster children in her care, but to her own interests regarding payment, scheduling of assessments, and her preferred therapists for developmentally disabled children in her care. Plaintiff's failure to address these issues or identify any specific communication or response in support of her claims shows a lack of genuine issue of material fact with respect to whether plaintiff engaged in expressive conduct addressing a matter of public concern. Plaintiff does offer some general arguments that she hoped to spur DHS to take necessary action to get needed resources for D.D., for example, but she fails to provide any record support of specific facts supporting such assertions.
The State also presents unrefuted evidence that it did not take the adverse actions based on any retaliatory motive, and plaintiff offers only general speculative arguments that DHS agents and employees subjected her to retaliatory conduct. The record supports a finding that defendants Natalie Taylor and Heather Kilmer acted out of concern for the safety and well-being of the children in plaintiff's care because of plaintiff's threats of removal and then the actual removal of children in her care without sufficient time to find adequate alternative care. Plaintiff does not present admissible evidence to refute the fact that plaintiff made such threats not out of concern for children in the system, but because she was upset with the payment amounts she would receive for their care. In addition, plaintiff provided no evidence the State actors were motivated in any way by plaintiff's complaints regarding, for instance SNAP assessment timing or conclusions, to the extent she communicated such complaints. Accordingly, the State defendants are entitled to summary judgment on the First Amendment retaliation claim. See, e.g., Heffernan v. City of Paterson, 578 U.S. 266, 272 (2016) (“To win [a retaliation claim], the employee must prove an improper employer motive.”).
Moreover, the State defendants present unrefuted evidence that the public interest in stability and permanence for children in foster care outweigh any purported interest plaintiff may have had in expressive conduct. As noted above, the government can escape liability if it demonstrates that legitimate administrative interests outweigh the contractor's free speech interests. Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 923 (9th Cir. 2004). This is especially true given the process available to plaintiff to contest the placement and payment decisions made by DHS to which she failed to fully avail herself and the fact that plaintiff made no effort to alert the public to the purported problems regarding providing adequate support to special needs children. The State defendants are entitled to summary judgment on the First Amendment retaliation claims for this reason as well.
In addition to her section 1983 retaliation claim, plaintiff asserts DHS and the State of Oregon violated Or. Rev. Stat. § 659A.199 by retaliating against her for reporting violations of law. The State provides evidentiary support demonstrating plaintiff is not an employee for purposes of the statute. Plaintiff does not address this issue. Accordingly, for the reasons stated in the State defendant's motion for summary judgment (ECF 106) at pp. 25-31 the Court should find that plaintiff is not an employee employed by DHS. See also Hannah Roman, Foster Parenting As Work, 27 Yale J.L. & Feminism 179, 193 (2016) (The agencies that supervise foster parents, whether public or private, generally do not consider them to be employees, and foster parents are not covered by the Fair Labor Standards Act); Greenup v. Morris, 2021 WL 5405273, at *6 (D. Idaho Nov. 18, 2021) (“the weight of the caselaw overall supports a finding that foster parents are not employees of the state. See Becerra v. Gonzales, 32 Cal.App.4th 584, 591, 38 Cal.Rptr.2d 248 (1995) (finding that foster parents, while paid by the state, are not employees “of the state or of any other public entity”); Mitzner v. State, 257 Kan. 258, 891 P.2d 435, 440 (1995) (same); Kern v. Steele County, 322 N.W.2d 187, 189 (1982) (same); District of Columbia v. Hampton, 666 A.2d 30, 40 (1995) (same); Simmons v. Robinson, 305 S.C. 428, 409 S.E.2d 381, 383 (1991) (same); Nichol v. Stass, 192 Ill.2d 233, 248 Ill.Dec. 931, 735 N.E.2d 582, 587 (2000) (same); Stanley v. State Industries, Inc., 267 N.J.Super. 167, 630 A.2d 1188 (1993); I.H. v. County of Lehigh, 610 F.3d 797 (2010) (same)”). Accordingly, DHS and the State are entitled to summary judgment as to this claim. See Or. Rev. Stat. § 659A.199(1) (“it is an unlawful employment practice for an employer to discharge, demote, suspend or in any manner discriminate or retaliate against an employee with regard to promotion, compensation or other terms, conditions or privileges of employment for the reason that the employee has in good faith reported information that the employee believes is evidence of a violation of a state or federal law, rule or regulation.”).
In addition, plaintiff fails to show, and no reasonable fact finder could conclude, that she made a protected report that DHS violated the law. Moreover, as noted above, plaintiff fails to present a genuine issue of fact regarding any retaliatory conduct motivated by plaintiff's complaints. Accordingly, the State defendants are entitled to summary judgment regarding the whistleblower claims for this reason as well.
3. Due Process
Plaintiff alleges defendants Taylor and Kilmer:
deprived Plaintiff of her property interest without adequate procedural protections when they placed conditions on her foster care certificate from September 2019 up to January 27, 2020, without providing Plaintiff written notice of the specific conditions imposed, why such conditions were imposed, and the right to request a hearing or administrative rule in violation of OAR 411-346-0220 (1).
Defendants Taylor and Kilmer deprived Plaintiff of her property interest without adequate procedural protections when they placed conditions on her foster care certificate from on January 27, 2020, without providing Plaintiff with an explanation of their findings or why such conditions were being imposed in violation of OAR 411-346-0220. Defendants Taylor and Kilmer further deprived
Plaintiff of her property interest by actively preventing Plaintiff from having a hearing on the matter.Third Amended Complaint (ECF 71) at ¶¶ 55-56.
Plaintiff alleges defendants Snyder Ting:
perpetuated that same injustice when they deprived Ms. Wilson of her property interest without adequate due process when they placed conditions on her foster care certificate from in early 2022, in a home study that fails to provide Ms. Wilson with an adequate explanation of their findings, why such conditions were being imposed in violation of OAR 411-346-0220, or how Ms. Wilson could remediate the purported issues. Instead, Defendants Ting and Snyder merely readopted the findings of the 2020 home study and certification without providing a just or constitutional cause. Instead, Defendants Ting and Snyder provided circular reasoning for the continued restriction on Ms. Wilson's certificate-Defendants Ting and Snyder failed to observe the conduct justifying the restriction but purportedly saw no reason to believe it would not resurface, and gave no reason how the purported misconduct could be rectified.Id. at ¶ 64.
Defendants assert plaintiff had no protected interest in future placement or any particular foster child capacity or number. In addition, defendants note that plaintiff received sufficient process.
The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in “property” or “liberty.” See U.S. Const., Amdt. 14 (“nor shall any State deprive any person of life, liberty, or property, without due process of law”); Mathews v. Eldridge, 424 U.S. 319, 332 (1976). To have a property interest in a benefit, a person clearly must have more than an abstract need or desire and more than a unilateral expectation of it. She must, instead, have a legitimate claim of entitlement to it. Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972).
Whether an expectation of entitlement is sufficient to create a property interest “will depend largely upon the extent to which the statute contains mandatory language that restricts the discretion of the [decisionmaker].” Jacobson v. Hannifin, 627 F.2d 177, 180 (9th Cir.1980). If “the decision to confer a benefit is unconstrained by ‘particularized standards or criteria,' no entitlement exists.” Fidelity Financial Corp. v. Federal Home Loan Bank, 792 F.2d 1432, 1436 (9th Cir.1986). Accordingly, discretion resting with decisionmakers regarding the certification plaintiff holds negates a claim to a protectable property interest. Jacobson, 627 F.2d at 180.
Here, plaintiff points to no regulation broadly granting her a right to specific conditions on her certificate to provide foster care including the number of placements she may have, and the amount of payments she will receive. Selecting a placement is left to the discretion of DHS. Or. Rev. Stat. § 419B.349(1) (The actual planning and placement of the child or ward is the responsibility of the department); Adams v. Oregon State Children's Servs. Div., 131 Or.App. 396, 406, 886 P.2d 19, 25 (1994) (except in extraordinary circumstances, a juvenile court cannot involve itself in specific placement decisions; those are entirely within the province of CSD). Indeed, the Ninth Circuit has observed, a foster parent has no liberty or property interest in a child where the State has authority to deny or revoke certification. Backlund v. Barnhart, 778 F.2d 1386, 1390 (9th Cir. 1985). Thus, plaintiff has no property interest in a certain capacity either. DHS may, at its discretion, modify any certificate to increase or decrease the maximum capacity of children for whom a foster parent is certified. OAR 413-200-0278(6). The same is true with respect to foster care payments because the payments are made on behalf of the child. Or. Rev. Stat. § 418.647(1). Accordingly, the State defendants are entitled to summary judgment as to plaintiff's due process claim.
In addition, as noted above, plaintiff agreed to the payments when she accepted the subject children into her care but later sought an increase in those payments through, for example, the SNAP assessment. Plaintiff provides no authority to suggest she has a property interest to an increase in payments on behalf of the children.
Moreover, although plaintiff was denied a contested case hearing when she asked for one, she did not seek judicial review. A decision not to provide a contested case hearing is a final decision reviewable by an Oregon Circuit Court pursuant to Or. Rev. Stat. § 183.484(1). The circuit court may provide relief through modifying or setting the decision aside. Or. Rev. Stat. § 183.484(5)(a). Although plaintiff declined to avail herself of this process, it was sufficient to satisfy any process that would be due assuming she had any protectable property interest. See Raditch v. United States, 929 F.2d 478, 480 (9th Cir.1991) (holding that the plaintiff received all the process he was due where the deprivation of process occurred because of an unauthorized act of a government official in violation of the Office of Workers' Compensation Programs procedures, and adequate post-deprivation remedies for the violation existed).
To the extent plaintiff asserts a due process violation due to lack of notice as to why she received the reduction in capacity, the record conclusively demonstrates otherwise. For example, in the renewal home study, defendants Tayler and Kilmer explained:
Over the course of the last 2 years, some children's well-being needs have not been met and they have experienced placement moves due to Ms. Wilson requesting their removal over reimbursement rates. The impact this has had on children includes them being emotionally and behaviorally upset and dysregulated, and experiencing moves without a transition. As described earlier in this assessment, transitions are essential for a child's overall well-being, and it is the department's position that a transition period must occur unless safety is compromised. Children with a CANS higher than a zero Should over time be decreasing in their level based on care they are receiving in the home. We do not
want to be in the position to be setting children up for what we know will be a move once there is a decrease in payment. What the children in the DHS system who have experienced trauma need, more than anything, is someone who is willing to commit to them no matter what they are reimbursed. There is concern regarding the high likelihood that if additional children were placed with Ms. Wilson, they would experience placement moves based on foster care reimbursements and have their well-being negatively impacted; therefore, her capacity will be changed to 1.Declaration of Heather Kilmer (ECF 113) at Ex. 1, pp. 12-13.
The study further explained:
Despite Ms. Wilson agreeing that the children were a good fit and making progress in her home, she gave notice for the boys to be moved. Certification has discussed the area of Ms. Wilson's commitment to the children placed in her home and she has not been able to articulate an understanding of how detrimental it is to the wellbeing of a child to be moved solely based on the financial reimbursement.Id. at Ex. 131, p. 4.
4. Qualified Immunity
The individual state defendants also assert they are qualifiedly immune for damages regarding the section 1983 claims. Defendants argue no clearly established law exists regarding the due process claims and First Amendment claim demonstrating their actions in this case were unconstitutional. As with defendant Cobb above, plaintiff fails to meet her burden demonstrating a clearly established right and the individual defendants are entitled to summary judgment as to the claims against them for this additional reason.
5. B reach of Contract
The Court previously dismissed plaintiff's breach of the covenant of good faith and fair dealing claim with prejudice and plaintiff asserts similar facts in support of her breach of contract claim. In response to the summary judgment motion, plaintiff fails to address why the claim should remain. Accordingly, the breach of contract claim should be dismissed with prejudice as well.
C. Motion to Voluntarily Dismiss
Plaintiff seeks dismissal under Fed.R.Civ.P. 41(a)(2) asserting her “ability to proceed in this matter is presently hampered by her inability to proceed at the present time. It would be appropriate to take a voluntary dismissal without prejudice at this juncture to allow Plaintiff the time and opportunity to discuss and reassess this matter with counsel to determine the more appropriate strategical posture to pursue going forward.” Motion for Voluntary Dismissal (ECF 134) at p. 3. It appears plaintiff's intent in bringing the motion is to avoid the consequences of failing to conduct discovery and avoid a ruling on the pending motions for summary judgment. See id. at p. 2 (“There has been a concerted effort to preclude Plaintiff from access to the information and documentation necessary to proceed with this matter and leaves Plaintiff in a position where she is unable to proceed in forward with the prosecution of this matter at the present time.”). As noted above, the failure to obtain “access to information” is plaintiff's failure to conduct discovery and then show cause for that failure.
Generally, motions filed under Fed.R.Civ.P. 41(a)(2) should be liberally granted, as long as no other party is prejudiced. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 604 (5th Cir. 1976). In the Ninth Circuit, the decision to grant a voluntary dismissal under Rule 41(a)(2) is addressed to the sound discretion of the district court. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980). The district court must consider whether the defendant will suffer some plain legal prejudice as a result of the dismissal. Hamilton v. Firestone Tire & Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). Plain legal prejudice does not result simply when a “defendant faces the prospect of a second lawsuit,” or when plaintiff “merely gains some tactical advantage.” Id. Neither does plain legal prejudice arise from defendant's missed opportunity for a legal ruling on the merits. In re Fed. Election Campaign Act Litigation, 474 F.Supp. 1051, 1052 (D.D.C. 1979); Wainwright Sec., Inc. v. Wall St. Transcript Corp., 80 F.R.D. 103, 106 (S.D.N.Y. 1978). Plain legal prejudice may be shown where actual legal rights are threatened or where monetary or other burdens appear to be extreme or unreasonable. For example, plain legal prejudice has been shown where the motion for voluntary dismissal came at such an advanced stage of the proceedings so as to prejudice defendant by waste of time and expense
in preparation of defense. See Green Giant Co. v. M/V Fortune Star, 92 F.R.D. 746 (S.D.Ga.1981).Watson v. Clark, 716 F.Supp. 1354, 1355-56 (D. Nev. 1989), affd, 909 F.2d 1490 (9th Cir. 1990)
This case has been pending for nearly three years. Through several motions to dismiss, defendants have engaged in considerable effort to eliminate claims that were not viable; to conduct discovery into those claims; and finally, to provide a cogent argument as to why those remaining claims should be dismissed on summary judgment. As noted above, plaintiff made the first effort substantially more difficult through her failure to respond, she made no effort to engage in discovery, and now has made virtually no effort to respond to the motions for summary judgment. To dismiss the case now, without prejudice, would be grossly prejudicial to the defendants. Accordingly, the Court should deny plaintiff's motion for voluntary dismissal and grant the motions for summary judgment for the reasons stated above.
CONCLUSION
Defendants' motions for summary judgment (ECF 102, 106) should be granted and plaintiff's motion for voluntary dismissal (ECF 134) should be denied. A judgment should be entered in defendants' favor as to all claims against them.
This recommendation is 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 the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.