NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
E.J.T., a minor, by and through his No. 24-1717 Conservator, InTRUSTment Northwest, D.C. No. Inc., 3:20-cv-01990-HZ Plaintiff - Appellant, MEMORANDUM* v.
JEFFERSON COUNTY, a public body; TYLER W. ANDERSON, in his individual capacity; ARJAN ARYANFARD, in his individual capacity,
Defendants - Appellees.
Appeal from the United States District Court for the District of Oregon Marco A. Hernandez, District Judge, Presiding
Argued and Submitted August 19, 2025 Portland, Oregon
Before: CALLAHAN and MENDOZA, Circuit Judges, and SNOW, District Judge.** Partial Concurrence and Partial Dissent by Judge CALLAHAN.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable G. Murray Snow, United States District Judge for the District of Arizona, sitting by designation. In November 2017, when he was two-and-a-half years old, Plaintiff E.J.T.
sustained a traumatic brain injury from severe abuse inflicted by his mother’s
boyfriend, with whom she sometimes resided. The injury left E.J.T. blind, unable to
walk or talk, and dependent upon tubes to eat and breathe. E.J.T. alleges that the
injury could have been prevented had either Deputy Tyler Anderson of the Jefferson
County Police Department (“Deputy Anderson”) or Officer Arjan Aryanfard of the
Warm Springs Reservation Police Department (“Officer Aryanfard”) followed their
legal duties after E.J.T.’s mother reported to them an earlier incident of possible
abuse suffered by E.J.T. that occurred in October 2017. For that incident, E.J.T.’s
mother identified E.J.T.’s father, a member of the Warm Springs Tribe and resident
of the Warm Springs Indian Reservation, as the possible perpetrator.
E.J.T. brought a statutory negligence claim against all defendants for failure
to follow Oregon child abuse reporting statutes under O.R.S. chapter 419B and a
statutory claim for Abuse of a Vulnerable Person under O.R.S. § 124.105. He also
alleged violations of 42 U.S.C. § 1983 against Deputy Anderson and Jefferson
County (the “Jefferson County defendants”).
E.J.T. challenges the district court’s (1) dismissal of the statutory Abuse of a
Vulnerable Person claim against Officer Aryanfard with prejudice; (2) denial of
leave to add an equal protection claim against Officer Aryanfard; (3) dismissal of
the statutory failure-to-report negligence claim against all defendants with prejudice
2 24-1717 and denial of leave to amend to allege a common law negligence claim; (4) grant of
summary judgment to Jefferson County defendants on the § 1983 claims; and (5)
dismissal of the statutory claim for Abuse of a Vulnerable Person against the
Jefferson County defendants.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a dismissal
based on the conclusion that a person is not a state actor de novo and the district
court’s findings of fact for clear error, Lee v. Katz, 276 F.3d 550, 553 (9th Cir. 2002);
a dismissal with prejudice and without leave to amend for abuse of discretion,
Benavidez v. Cnty. of San Diego, 993 F.3d 1134, 1141-42 (9th Cir. 2021); a grant of
summary judgment on a § 1983 claim de novo, L.F. v. Lake Washington Sch. Dist.
#414, 947 F.3d 621, 625 (9th Cir. 2020); and a dismissal based on an interpretation
of a statute de novo, Cal. Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 728 F.3d
868, 872 n.3 (9th Cir. 2013). We affirm in part, reverse in part, and remand for
further proceedings consistent with this disposition.
1. The district court did not err in dismissing E.J.T.’s statutory claim
against Officer Aryanfard for Abuse of a Vulnerable Person. The court dismissed
the claim with prejudice on the basis that Aryanfard was acting solely as a tribal law
enforcement officer. E.J.T. does not contest that dismissal would be appropriate if
Officer Aryanfard were a tribal officer acting solely under his tribal law enforcement
authority. But E.J.T. argues that Officer Aryanfard was instead acting as a state
3 24-1717 officer because he was authorized to enforce state law under O.R.S. § 181A.940 et
seq.
While Oregon law does “provide authorized tribal police officers with the
ability to exercise the powers” of state law enforcement officers, O.R.S.
§ 181A.944(1) (emphasis added), the statute further provides that “an authorized
tribal police officer is not an officer, employee or agent of the State of Oregon or of
any other public body.” Id. § 181A.944(8). Moreover, Oregon law “does not regulate
the conduct or activities of tribal police officers or tribal governments occurring in
Indian country or on the land of a tribal government or outside of Indian country or
the land of a tribal government but within a tribe’s civil or criminal jurisdiction.” Id.
§ 181A.942(2). Under the plain language of the statute, the mere fact that Officer
Aryanfard was authorized in certain circumstances to act pursuant to state law does
not make tribal police officers subject to civil liability arising from Oregon law when
they are pursuing investigations within a tribe’s criminal jurisdiction.
E.J.T. fails to submit facts demonstrating that Officer Aryanfard was acting
other than under the tribe’s criminal jurisdiction. Officer Aryanfard became involved
in the case when the Jefferson County defendants referred the October 2017 report
that E.J.T. had allegedly been abused by his father on the reservation to the Warm
Springs Reservation Police Department so that a tribal officer could investigate the
incident because Jefferson County lacked jurisdiction to do so. See 18 U.S.C.
4 24-1717 § 1162(a) (granting Oregon “jurisdiction over offenses committed by or against
Indians” in “[a]ll Indian country within the State, except the Warm Springs
Reservation” (emphasis added)). Officer Aryanfard testified in his deposition that he
was pursuing a “tribal investigation” because “[w]e had a tribal suspect . . . [and]
someone I believed to be a tribal victim,” and that the incident “was purported to
have occurred on the reservation.” Looking to Officer Aryanfard’s “function, rather
than intent,” see Bressi v. Ford, 575 F.3d 891, 897 (9th Cir. 2009), as E.J.T. argues,
the evidence indicates that Officer Aryanfard functioned as a tribal actor, not a state
actor. The district court, after authorizing discovery and conducting a separate
hearing on the question, did not err in concluding that Officer Aryanfard was acting
solely under tribal law. Officer Aryanfard was therefore not subject to state law
claims.1
2. Because the district court appropriately held that Officer Aryanfard was
acting solely under tribal law, it did not err in denying leave to amend the complaint
to allege an equal protection claim under § 1983. See R.J. Williams Co. v. Fort
Belknap Hous. Auth., 719 F.2d 979, 982 (9th Cir. 1983) (“[A]ctions taken under
color of tribal law are beyond the reach of § 1983 . . . .”).
1 Given our determination that the district court did not err in determining that Officer Aryanfard was acting solely under tribal law, we need not consider the district court’s alternative ruling dismissing state law claims against Officer Aryanfard due to the need for Plaintiff to exhaust tribal court remedies.
5 24-1717 3. Nor did the district court abuse its discretion in denying E.J.T. leave to
amend his complaint to add common law negligence claims. After dismissal of the
statutory negligence claim against all Defendants, E.J.T. sought to add three new
negligence theories “based on the same alleged facts [and] same general
allegations”: special relationship, negligence per se, and general foreseeability.
E.J.T. did not raise these theories at the outset of the case. Instead, he argued for
certification to the Oregon Supreme Court on whether he could bring his statutory
negligence claim. Under these circumstances, the district court did “not abuse its
discretion in denying a motion to amend where the movant presents no new facts but
only new theories and provides no satisfactory explanation for his failure to fully
develop his contentions originally.” See Bonin v. Calderon, 59 F.3d 815, 845 (9th
Cir. 1995) (citation omitted).
4. The district court properly granted summary judgment to the Jefferson
County defendants on the § 1983 equal protection claims. “The central inquiry in an
Equal Protection Clause claim is whether a government action was motivated by a
discriminatory purpose.” Ballou v. McElvain, 29 F.4th 413, 422 (9th Cir. 2022).
E.J.T. alleges that Deputy Anderson’s decision not to investigate or cross-report
E.J.T.’s alleged abuse by his father to the Oregon Department of Human Services
was motivated by discriminatory intent, based on E.J.T.’s Native American heritage.
But such a bare and conclusory assertion is “inadequate, without substantial factual
6 24-1717 evidence, to raise an issue precluding summary judgment.” See Steckl v. Motorola,
Inc., 703 F.2d 392, 393 (9th Cir. 1983).
Evidence from the record, even viewed in the light most favorable to E.J.T.,
demonstrates that Officer Anderson failed to investigate the report of abuse because
he believed the case was not within the Jefferson County Police Department’s
jurisdiction. Deputy Anderson visited E.J.T. and his family members at the hospital.
They told him that E.J.T. was injured during a visit to his father’s house. When
Deputy Anderson learned that E.J.T.’s father lived on the reservation, he responded
that he did not have jurisdiction and subsequently referred the case to Warm Springs
Police Department. Deputy Anderson stated in his deposition testimony that,
whenever the Jefferson County Police Department received report of an injury that
allegedly occurred within the reservation, “we don’t have jurisdiction, so we always
called the reservation, or their tribal police, to come and take the calls.”
E.J.T. fails to show that a discriminatory purpose “more likely than not”
motivated Officer Anderson, see Ballou, 29 F.4th at 422 (citation modified), or that
a discriminatory purpose “was a motivating factor,” Village of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977), to not investigate or cross-report
the report of abuse. The district court, therefore, did not err in granting summary
judgment to Officer Anderson on E.J.T.’s § 1983 claim. And because
“municipalities cannot be held liable when the individual police officer has inflicted
7 24-1717 no constitutional injury,” Yousefian v. City of Glendale, 779 F.3d 1010, 1016 (9th
Cir. 2015), the district court properly granted summary judgment to Jefferson
County as well.
5. The district court did err, however, in dismissing E.J.T.’s statutory
claim for Abuse of a Vulnerable Person under O.R.S. § 124.105 against the Jefferson
County defendants on the basis that E.J.T. did not meet the statutory definition for a
“vulnerable person.” E.J.T. qualifies as a vulnerable person under O.R.S. § 124.100
because he met the statutory definition for “incapacitated” at the time of his injuries.
The Abuse of a Vulnerable Person statute, O.R.S. § 124.100 et seq., protects
four categories of “vulnerable” persons: (1) elderly persons, (2) financially incapable
persons, (3) “incapacitated” persons, and (4) persons with disabilities. O.R.S.
§ 124.100(1)(e). O.R.S. § 125.005(5), in turn, sets forth the definition of
“incapacitated”:
“Incapacitated” means a condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety.
“Meeting the essential requirements for physical health and safety” means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur.
8 24-1717 Under a plain reading of the statute, E.J.T., as a two-and-a-half-year-old child,
was clearly in a condition in which his “ability to receive and evaluate information
effectively and communicate decisions” was impaired. See O.R.S. § 125.005(5)
(emphasis added). Under the ordinary meaning of “impaired,” E.J.T.’s self-
protecting ability was substantially diminished or made worse due to his young age.
Webster’s Third defines “impair” as “to make worse,” “diminish in quantity, value,
excellence, or strength,” or “do harm to.” Impair, Webster’s Third New Int’l
Dictionary 1131 (unabridged ed. 1993).2 Had E.J.T. been older, he likely could have
“receive[d] and evaluate[d] information effectively”—and would not have been
“presently”3 diminished by his infancy. See O.R.S. § 125.005(5). Thus, E.J.T. was
2 The Oregon Supreme Court “consults Webster’s Third more often than any other dictionary.” Kohring v. Ballard, 325 P.3d 717, 721 n.2 (Or. 2014) (explaining that the dictionary has a “descriptive” focus on “ordinary usage” in contrast with other dictionaries with a “prescriptive” focus on “correct” usage). The current definition of “incapacitated” was added to the Oregon Revised Statues in 1995. See Or. Laws 1995, ch. 664, § 1(5). Because “it is important to use sources contemporaneous with the enactment of the statute,” Comcast Corp. v. Dep’t of Revenue, 337 P.3d 768, 776 n.7 (Or. 2014), the edition of Webster’s Third most contemporary to the enactment of the statutory language is the 1993 edition. 3 Jefferson County defendants argue that E.J.T. “was not incapacitated at all” because he “was a normal developing 2-year-old” at the time of his injuries and that he “had not yet fully developed into a person that could do the things done by an adult.” This argument ignores the import of the word “presently” in the definition of “incapacitated.” See State v. Clemente-Perez, 359 P.3d 232, 239 (Or. 2015) (Oregon courts should “assume that the legislature did not intend any portion of its enactments to be meaningless surplusage.”). Accepting Jeferson County defendants’ argument would transform the statute into one that looks at future capacity, rather than present capacity.
9 24-1717 in an incapacitated “condition,”4 see id., at the time of his injuries, and qualified as
an “incapacitated person” pursuant to § 125.005(5).
In holding that O.R.S. § 125.005(5) required that a “condition” must cause an
impairment for a person to meet the definition of “incapacitated,” the district court
misread the text of the statute. The plain text of the statute states that a person does
not have to be physically or mentally disabled to be vulnerable. In addition to being
elderly or financially incapable, the statute defines someone as vulnerable who either
(1) is incapacitated or (2) has a “disability [and] is susceptible to . . . injury because
of the person’s physical or mental impairment.” O.R.S. § 124.100(1)(e)(D).
The statute’s definition of “person with a disability” does require that a person
have a physical or mental impairment. See id. § 124.100(1)(d). But the statute’s
definition of “incapacitated” carries no such requirement. Rather, incapacity is
determined by a person’s present abilities. Id. § 125.005(5) (“‘Incapacitated’ means
4 Such a construction is supported by the dictionary definition of “condition.” The word can be defined as “a mode or state of being,” a “state with reference to mental or moral nature, temperament character, or disposition,” or “something that exists as an occasion of something else.” Condition, Webster’s Third New Int’l Dictionary 473 (unabridged ed. 1993). And it is in this sense that O.R.S. § 125.005(5) uses the word. For example, earlier in O.R.S. § 125.005, the Oregon legislature defined “financially incapable” as “a condition in which a person is unable to manage financial resources of the person effectively for reasons including . . . mental illness, mental retardation, physical illness or disability . . . .” O.R.S. § 125.005(3). The “condition” of being financially incapable is created by the “reasons” listed in the statute—a similarly passive construction of the word “condition.”
10 24-1717 a condition in which a person’s ability . . . is impaired . . . .”). The statutory definition
does not require that an individual suffer from or have a “condition” that impairs
one’s self-protecting ability. Instead, O.R.S. § 125.005(5) requires that the person’s
“ability” to do certain things must be impaired. In other words, the individual’s
impaired ability creates the “condition” of incapacity—not the reverse. To interpret
the statute as did the district court makes the statute’s inclusion of a “person with a
disability” as a “vulnerable person” mere surplusage and is not appropriate under
Oregon law. See Clemente-Perez, 359 P.3d at 239 (Oregon courts should “assume
that the legislature did not intend any portion of its enactments to be meaningless
surplusage.”).
The Oregon legislature’s creation of a separate category for “elderly persons,”
O.R.S. § 124.100(1)(e)(A), also does not imply that the legislature chose not to
protect infants. It is possible for a person of 65 years of age or older to not be
vulnerable under the statutory definition of incapacitation. Id. § 124.100(1)(a). Thus,
adopting a separate category of “elderly persons” demonstrates that the Oregon
legislature sought to further the protections available under the Abuse of a
Vulnerable Person statute to persons over 65, regardless of incapacitation. It does
not demonstrate that the legislature intended to exclude vulnerable young children.
The Jefferson County defendants argue that the Abuse of a Vulnerable Person
statute only applies to elders and incapacitated adults, which would not include
11 24-1717 E.J.T. Jefferson County defendants rely almost exclusively on the legislative history
of O.R.S. § 124.100 et seq. in advancing this argument. While E.J.T. concedes that
elders and incapacitated adults may have been the population that the drafting
attorney of O.R.S. § 124.100 et seq. originally sought to protect in 1995, the Oregon
legislature’s subsequent update to the statute in 1997 specifically deleted the former
requirement that the protected “incapacitated” person be an adult. See Or. Laws
1997, ch. 249 (introduced as H.B. 2509).5 Because the Jefferson County defendants’
supposed legislative intent does “not find expression in the actual wording of the
statute, that legislative history is entitled to ‘no weight.’” See State v. Rainey, 431
P.3d 98, 103 (Or. Ct. App. 2018) (quoting State v. Gaines, 206 P.3d 1042, 1051 (Or.
2009)).
Accordingly, the district court erred in dismissing E.J.T.’s statutory claim
against the Jefferson County defendants for Abuse of a Vulnerable Person for failure
to satisfy the definition of “incapacitated.” Therefore, the district court is affirmed
in the dismissal of all of E.J.T.’s other claims, but the district court’s dismissal of
the state law claim for Abuse of a Vulnerable Person against Deputy Anderson and
Jefferson County is reversed and remanded for further consideration.
5 H.B. 2509 changed the reference to the definition for “incapacitated person” from the former O.R.S. § 126.003(5), which required that the person be an “adult,” to O.R.S. § 125.005(5), which does not contain such a requirement.
12 24-1717 AFFIRMED in part, REVERSED in part, and REMANDED for further
proceedings consistent with this disposition.
13 24-1717 FILED OCT 23 2025 E.J.T. v. Jefferson County, No. 24-1717 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS CALLAHAN, J., concurring in part and dissenting in part:
I join Parts 1-4 of the panel majority’s memorandum disposition. But I
respectfully dissent from Part 5, which concludes that the district court erred in
dismissing E.J.T.’s statutory claim against the Jefferson County defendants for
abuse of a vulnerable person. I would instead affirm the district court’s dismissal
of that claim because E.J.T., at the time of his injuries, did not qualify as a
“vulnerable person” under O.R.S. § 124.105.
Oregon law provides that a “vulnerable person” may bring a claim against a
defendant “for permitting [a third] person to engage in physical or financial abuse
if the [defendant] knowingly acts or fails to act under circumstances in which a
reasonable person should have known of the physical or financial abuse.” O.R.S.
§ 124.100(5). Section 124.100 enumerates specific categories of individuals who
may qualify as a vulnerable person. Relevant here, the list includes persons who
are “incapacitated.” O.R.S. § 124.100(1)(e)(C). The term “incapacitated” means:
[A] condition in which a person’s ability to receive and evaluate information effectively or to communicate decisions is impaired to such an extent that the person presently lacks the capacity to meet the essential requirements for the person’s physical health or safety. “Meeting the essential requirements for physical health and safety” means those actions necessary to provide the health care, food, shelter, clothing, personal hygiene and other care without which serious physical injury or illness is likely to occur.
O.R.S. § 125.005(5).
1 Thus, a person qualifies as “incapacitated” only if he is in a “condition in
which [his] ability . . . is impaired.” Id. Here, the plain meaning of “condition” is
“a state of health” or “a state of readiness or physical fitness.” Condition,
Webster’s II New College Dictionary (1995); accord Condition, Merriam-
Webster’s Collegiate Dictionary (10th ed. 1995). “Impair” means “to damage or
make worse by or as if by diminishing in some material respect.” Impair,
Merriam-Webster’s Collegiate Dictionary (10th ed. 1995); accord Impaired,
Webster’s II New College Dictionary (1995). And “impaired” means “being in a
less than perfect or whole condition: as . . . handicapped or functionally defective –
often used in combination,” e.g., “hearing-impaired.” Impaired, Merriam-
Webster’s Collegiate Dictionary (10th ed. 1995).
At the relevant time, E.J.T. suffered from no condition that impaired his
abilities. Nothing had handicapped him, and he “was a generally healthy,
normally-developed, 2-year-old child.” Therefore, based on the plain meaning of
the statutory text, E.J.T. was not an “incapacitated person.”
The statutory context also supports this interpretation. For one, the
Legislature explicitly protected the category of “elderly persons,” defined as all
persons aged 65 and older, as “vulnerable persons”—regardless of whether their
abilities are impaired. O.R.S. § 124.100(1)(a), (1)(e)(A). This shows that the
Legislature knew how to protect persons with normal abilities for their age when it
2 intended to do so. But the Legislature did not create any separate category of
“vulnerable persons” to cover young children. Notably, in adopting the definition
of “incapacitated” from Chapter 125, the Legislature did not also adopt that
chapter’s definition of “minor,” which includes “any person who has not attained
18 years of age.” O.R.S. § 125.005(6).1
Second, at the time that this statutory scheme was enacted, there already
existed a separate statutory scheme governing the mandatory reporting of child
abuse, which now exists in O.R.S. Chapter 419B. See E. J. T. by and through
InTRUSTment, Nw., Inc. v. Jefferson County, 518 P.3d 568, 226 (Or. 2022)
(describing the mandatory child abuse reporting scheme as “the product of
numerous legislative enactments over the course of six decades”). The legislative
history of the statutory scheme at issue here indicates that the Legislature intended
to address elder abuse and the abuse of incapacitated adults (as distinct from child
abuse) by providing a “separate cause of action for physical or financial abuse of
an elderly person or incapacitated adult.” See Wyers v. Am. Med. Response Nw.,
Inc., 377 P.3d 570, 580 (Or. Ct. App. 2016). 2 I am not aware of any indication that
1 Meanwhile, status as a “minor” and status as an “incapacitated person” are independent grounds for the appointment of a guardian or conservator. See O.R.S. §§ 125.305(1)(a), 125.400. 2 The statutory scheme originally applied to “elderly persons” (“65 or more years of age”) and to “incapacitated persons.” Or. Laws 1995, ch. 671, § 1. The 3 the Legislature intended its newly created cause of action—one that provides for
treble damages and attorney fees, O.R.S. § 124.100(2)—to apply to all cases of
abuse of young children.
Finally, two of the three courts that have addressed this question of whether
a young child with normal abilities is an “incapacitated person”—the district court
in this case and the trial court in Piazza v. State ex rel. Department of Human
Services and Oregon Youth Authority, 323 P.3d 444, 446-47 (Or. Ct. App. 2014)—
have answered “no.” But see T.N. v. Harper, No. 24CV03587, 2024 Ore. Cir.
LEXIS 6410, at *10 (Or. Cir. Ct. June 28, 2024) (granting leave to amend to
plaintiff who was abused between the ages of 4 and 9 and reasoning that “[a]
person’s young age may prompt favorable inferences that they are incapacitated”).
Because the Oregon Court of Appeals has yet to weigh in, see Piazza, 323 P.3d at
451-52 (affirming on alternative grounds), we should interpret the statute
consistent with its plain meaning. Because the panel majority declines to do so, I
respectfully dissent.
Legislature later introduced the term “vulnerable person” and added the category of “person[s] with disabilities” in 2005. Or. Laws 2005, ch. 386, § 1a. 4