Opinion
3:22-cv-01140-SB
09-01-2023
THOMAS C. MCKENZIE, Plaintiff, v. PORTLAND POLICE DIVISION; CITY OF PORTLAND; IVAN A. ALVAREZ; HILARY J. SCOTT; and JOHN DOES 2-4, Defendants.
FINDINGS AND RECOMMENDATION
HON. STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE
Plaintiff Thomas C. McKenzie (“McKenzie”) filed this case against the City of Portland (the “City”), Portland Police Division (commonly known as the Portland Police Bureau, or “PPB”), Ivan Alvarez (“Alvarez”), and Hilary Scott (“Scott”), alleging constitutional violations pursuant to 42 U.S.C. § 1983. (ECF No. 6.) Now before the Court is Alvarez's and Scott's (together, “Defendants”) motion for summary judgment. (ECF No. 23.)
The Court has jurisdiction over McKenzie's claims pursuant to 28 U.S.C. § 1331, but not all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636.
For the reasons that follow, the Court recommends that the district judge grant Defendants' motion for summary judgment.
DISCUSSION
Defendants move for summary judgment because McKenzie's “sole claim for relief against them is barred by the applicable statute of limitations.” (Defs.' Mot. Dismiss (“Defs.' Mot.”) at 2.) The Court agrees, and therefore recommends that the district judge grant Defendants' motion for summary judgment.
Unless otherwise noted, the following facts are either undisputed or viewed in the light most favorable to McKenzie.
On October 8, 2020, PPB officers arrested McKenzie at the residence of a third party. (See Decl. Trung Tu Supp. Defs.' Mot. Summ. J. (“Tu Decl.”) ¶ 6, Ex. 2; see also First Am. Compl. (“FAC”) at 7, ECF No. 23-1.) According to McKenzie, his arrest and subsequent treatment violated his rights under the Fourth Amendment. (See generally FAC.)
Defendants argue that they can demonstrate there was probable cause for McKenzie's arrest, but that it is not necessary to address the merits of McKenzie's claim because it is barred by the applicable two-year statute of limitations. (Defs.' Mot. at 2.) As such, Defendants argue that “[t[he only material facts that are pertinent to this [m]otion are: (1) the date of the purportedly unlawful arrest . . .; (2) the date that [McKenzie] filed this lawsuit; (3) the date that [McKenzie] requested that Alvarez and Scott be substituted in place of John Doe 1 and John Doe 2; (4) the date the Court granted McKenzie's request . . .; and (5) the date that Alvarez and Scott received notice of [McKenzie's] lawsuit against them.” (Id. at 5-6.)
II. PROCEDURAL HISTORY
On August 4, 2022, McKenzie filed this action naming “Portland Police Division” as the only defendant. (See ECF No. 1.) On August 31, 2022, the Court identified several deficiencies in McKenzie's complaint, and ordered McKenzie to show cause “why the Court should not dismiss his complaint” or to “alternatively, . . . file an amended complaint on or before September 21, 2022, curing the pleading deficiencies discussed herein.” (See Order, ECF No. 5.)
On September 19, 2022, McKenzie filed an amended complaint, naming the City, PPB, and John Does 1-4 as defendants. (See FAC at 1-2.) However, the Court found that McKenzie had not cured all of the pleading deficiencies, and dismissed the City and PPB from this action. (See Order Dismissal, ECF No. 7.) On October 5, 2022, the Court sent a copy of the FAC and a Notice of Lawsuit and Request for Waiver of Service to the City. (See ECF Nos. 8-9.)
On October 31, 2022, the City informed McKenzie and the Court that the City “must respectfully decline the Court's request to waive service on behalf of Defendants John Does 1-4” because “[the City] may not and cannot accept or waive service on behalf of unknown John Does.” (See Notice at 3, ECF No. 10.)
The Court attempted, without success, to appoint pro bono counsel for the “specific purpose of assisting [McKenzie] with ordering the relevant police reports so that he can identify the four Portland Police Bureau officers named as Doe defendants in the amended complaint.” (See Order, ECF No. 14; see also ECF Nos. 16-17.)
On November 17, 2022, McKenzie filed a “request to substitute Ivan A. Alvarez and Hilary J. Scott for two of the four ‘Doe' defendants named in the amended complaint.” (See Pl.'s Mot., ECF No. 15; see also Order, ECF No. 18.) McKenzie acknowledged in his motion that despite naming John Does 1-4 in his FAC, “it[']s really John Doe 1 [and] 2 on the report I received[.]” (Id.) On December 6, 2022, the Court granted McKenzie's request, and the Court sent another Notice of Lawsuit and Request for Waiver of Service to the City. (See ECF No. 18.) On January 6, 2023, a City attorney accepted service on behalf of Scott and Alvarez. (See ECF No. 22.) Defendants filed their motion for summary judgment on February 21, 2023.
III. LEGAL STANDARDS
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). On a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party, and draw all reasonable inferences in favor of that party. See Porter v. Cal. Dep'tof Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (simplified).
IV. ANALYSIS
Defendants move for summary judgment on the ground that the applicable two-year statute of limitations bars McKenzie's claim against Scott and Alvarez. (See Defs.' Mot. at 2.) McKenzie responded to Defendants' motion, but did not address the statute of limitations argument. (See generally Pl.'s Resp. Mot. Dismiss, ECF No. 29.)
A. Relation Back
McKenzie filed his request to substitute Scott and Alvarez six weeks after the two-year applicable statute of limitations expired on October 8, 2022. See Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002) (“Oregon's two-year statute of limitations for personal injury actions applies to actions under 42 U.S.C. § 1983” (citing OR. REV. STAT. § 12.110(1))). As a result, McKenzie's claims against Scott and Alvarez are time-barred unless they “relate back” to his timely-filed original complaint or FAC. See Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 541 (2010) (finding that an amended pleading that relates back to a timely filed pleading “is . . . itself timely even though it was filed outside an applicable statute of limitations”). “Where, as here, ‘the limitations period derives from state law, . . . [the Court must] consider both federal and state law and employ whichever affords the ‘more permissive' relation back standard.” Fudge v. Bennett, No. 2:19-CV-01102-SB, 2021 WL 1414279, at *2 (D. Or. Jan. 5, 2021) (citing Butler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d 1191, 1201 (9th Cir. 2014)), findings and recommendation adopted, No. 2:19-CV-01102-SB, 2021 WL 1414209 (D. Or. Apr. 13, 2021).
1. The Federal Standard
Under Federal Rule of Civil Procedure (“Rule”) 15(c), an amendment relates back to the original pleading if:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.FED. R. CIV. P. 15(C)(1). “Relation back therefore requires that ‘(1) the basic claim must have arisen out of conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it.'” Glass v. Forster, No. 1:18-cv-01859-MC, 2020 WL 3077868, at *9 (D. Or. June 10, 2020) (citing Butler, 766 F.3d at 1202 and quoting Schiavione v. Fortune, 477 U.S. 21, 29 (1986))). “Additionally, the second and third requirements must have been fulfilled within the [90]-day time limit provided by Rule 4(m).” Id. (citation omitted). McKenzie bears the burden of establishing that his proposed amendments relate back to a timely-filed complaint. See Wilkins-Jones v. Cnty. of Alameda, No. C-08-1485 EMC, 2012 WL 3116025, at *14 (N.D. Cal. July 31, 2012) (noting that “it is [the] Plaintiff's burden to show relation back”).
Defendants argue that Rule 15's relation back provision does not apply where-as here- a plaintiff seeks to substitute a Doe defendant. (See Defs.' Mot. at 10, citing Manns v. Lincoln Cnty., 6:17-cv-01120-MK, 2018 WL 7078672, at *5 (D. Or. Dec. 12, 2018)). Indeed, the Ninth Circuit recently held in an unpublished opinion that “replacing a ‘John Doe' defendant with the actual name of a defendant is not a ‘mistake' that allows relation back under Rule 15(c)(1)(C).” Boss v. City of Mesa, 746 Fed.Appx. 692, 695 (9th Cir. 2018) (citing Butler, 766 F.3d at 1203-04); see also Manns, 2018 WL 7078672, at *4-5 (noting “the clear trend in this district” that “relation back does not apply when a plaintiff seeks to replace a ‘Doe' defendant with a newly named party”); cf. Butler v. Robar Enters., Inc., 208 F.R.D. 621, 623 (C.D. Cal. 2002) (acknowledging pre-Boss that “the Ninth Circuit has yet to rule on whether a lack of knowledge of the identity of an individual at the time of the filing of a complaint is a ‘mistake' regarding her identity for purposes of Rule 15(c)” and noting that “the majority of districts in the Ninth Circuit have held that the courts of appeal that have confronted the issue are in near-unanimity that lack of knowledge is not a ‘mistake'”).
This Court would have concluded otherwise, based on the Supreme Court's guidance that Rule 15 “asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint.” Krupski, 560 U.S. at 548.
Following Boss, district courts in the Ninth Circuit have universally recognized that Rule 15(c)'s relation back provision does not apply to the untimely substitution of Doe defendants. See, e.g., Deal v. Dasch, No. 6:19-cv-01596-MK, 2023 WL 2707453, at *3 (D. Or. Mar. 30, 2023) (denying request to substitute a Doe defendant and holding that the plaintiff could not satisfy Rule 15's mistake requirement because “there has been no ‘mistake' which would allow relation back” (citing, inter alia, Boss, 746 Fed.Appx. at 695); Finicum v. United States, No. 2:18-cv-00160-SU, 2021 WL 3502462, at *9 (D. Or. Aug. 5, 2021) (holding that “the naming of Doe defendants is not a mistake for purposes of [Rule 15]” (citing Manns, 2018 WL 7078672, at *4-5)); see also Dana v. Tewalt, No. 1:18-cv-00298-DCN, 2022 WL 3598311, at *9 (D. Idaho Aug. 23, 2022) (“[T]he Ninth Circuit has expressly held that ‘replacing a ‘John Doe' defendant with the actual name of a defendant is not a ‘mistake' that allows relation back under Rule 15(c)(1)(C).'” (quoting Boss, 746 Fed.Appx. at 695)); Smith v. Shartle, No. CV-18-00323-TUC-RCC, 2021 WL 842144, at *4 (D. Ariz. Mar. 5, 2021) (“[T]he Ninth Circuit has determined that simply ‘[r]eplacing a ‘John Doe' defendant with the actual name of a defendant is not a ‘mistake' that allows relation back under Rule 15(c)(1)(C).'” (quoting Boss, 746 Fed.Appx. at 695)).
Pursuant to Ninth Circuit authority, Rule 15(c)(1) does not allow McKenzie's untimely substitution of the Doe defendants here, and the Court therefore turns to Oregon's relation back rule.
2. The Oregon Standard
Oregon Rule of Civil Procedure (“ORCP”) 23C governs relation back under Oregon law:
Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the
original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be brought in by amendment, such party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining any defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party brought in by amendment.OR. R. CIV. P. 23C (emphasis added).
“Oregon law distinguishes between ‘misnomer' cases, to which only the first sentence [of ORC 23C] applies, and ‘misidentification' cases, to which both sentences apply.” Finicum, 2021 WL 3502462, at *7 (citing Worthington v. Estate of Davis, 282 P.3d 895, 898 (Or. Ct. App. 2012)). “The former occurs when ‘the plaintiff chooses the correct defendant and simply misnames it,' while the latter ‘occurs when the plaintiff mistakenly sues a person or entity other than the one whose conduct allegedly harmed the plaintiff.'” Id. (citing Worthington, 282 P.3d at 898). “If, considering all the allegations of the original complaint and the summons, an entity could reasonably identify itself as the entity intended to be sued, a misnomer has occurred, and only the first sentence of the rule must be satisfied.” Id. (simplified).
“Oregon courts have not decided whether the naming of a ‘John Doe' defendant qualifies as a misnomer or a misidentification.” Glass, 2020 WL 3077868, at *10 (citing Hagen v. Williams, No. 6:14-cv-00165-MC, 2014 WL 6893708, at *7 (D. Or. Dec. 4, 2014)). However, in a similar case addressing the untimely substitution of Doe defendants, this court recently recognized that “the Oregon Court of Appeals [has] limited the doctrine of misnomer to those cases in which the correct defendant was timely served but misnamed, and the court distinguished those cases in which the correct defendant was ‘not served with the original complaint[ ] and for that reason alone [was] not brought in by the original complaint[ ].'” Finicum, 2021 WL 3502462, at *8 (citing Harmon v. Meyer, 933 P.2d 361, 364-65 (Or. App. 1997)). Applying Harmon to the substitution of Doe defendants, the court noted that “[i]n cases of misnomer, the correct defendant ‘should reasonably have understood from the pleadings that it is the entity intended to be sued'” but a “John Doe defendant who is not served the original complaint will never understand from the pleadings, which he never received, that he is the person intended to be sued.” Id. (quoting Harmon, 933 P.2d at 364). Thus, “[t]he inquiry, as described in Harmon, rests entirely on whether the correct defendant was in fact timely provided the pleadings, from which the defendant should have understood that he or she was the person intended to be sued.” Finicum, 2021 WL 3502462, at *8; see also Hagen, 2014 WL 6893708, at *7 (holding that where a plaintiff “intentionally [chooses] to name John [or Jane] Doe Defendants[,]” the case automatically is one of misidentification because it requires “a change in parties”); Fudge, 2021 WL 1414279, at *4 (“The ‘misidentification' reasoning of Hagen applies here because [the plaintiff] seeks to change a party by substituting newly-named individuals for Doe defendants.”). Accordingly, McKenzie “must satisfy the entirety of Oregon Rule of Civil Procedure 23C” here. Finicum, 2021 WL 3502462, at *8.
But see Korbe v. Hilton Hotels Corp., No. 08-1309-PK, 2009 WL 723348, at *7 (D. Or. Mar. 13, 2009) (finding that where the original complaint described the Doe defendant and his alleged conduct in considerable detail, the case was one of misnomer because if he had “been served with the original complaint, he would have understood that he was the intended defendant, notwithstanding the fact that the complaint identified him as John Doe”); see also Finicum, 2021 WL 3502462, at *8 (“Korbe cannot be reconciled with Harmon.”).
The entirety of ORCP 23C requires both that the defendant received notice of the action within the limitations period and that the defendant knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the defendant. SeeOR. R. CIV. P. 23C. With respect to the mistake requirement, courts have held-similar to the Ninth Circuit's interpretation of Rule 15(c)-that naming a Doe defendant is not a mistake concerning the identity of the party and therefore ORCP 23C's relation-back provision does not apply to the untimely substitution of Doe defendants. See, e.g., Finicum, 2021 WL 3502462, at *9 (“The [ORCP 23C] analysis ‘is analogous to the federal standard.'” (quoting Glass, 2020 WL 3077868, at *10); Glass, 2020 WL 3077868, at *10 (“Consistent with this [c]ourt's [] decision in Hagen, the [c]ourt concludes that [the plaintiff's] decision to name Doe Defendants was intentional, based on a lack of knowledge, and was not a mistake. The proposed amendment . . . does not relate back to the date of the original complaint [and] the proposed amendments seek to name those officers after the running of the two-year statute of limitations . . . the claims would be untimely and the proposed amendment is therefore futile.”); Strong v. Cityof Eugene, No. 6:14-cv-01709-AA, 2015 WL 2401395, at *5 (D. Or. May 19, 2015) (“[A] ‘lack, of knowledge regarding a defendant's identity is not a ‘mistake' for purposes of OR. R. CIV. P. 23.'” (quoting Clavette v. Sweeney, 132 F.Supp.2d 864, 874 (D. Or. 2001))), aff'd, 735 Fed.Appx. 312 (9th Cir. 2018).
Even if naming a Doe defendant qualifies as a mistake under Oregon law and relation back under ORCP 23C applies here, McKenzie cannot satisfy ORCP 23C's notice requirement. There is nothing in the record before the Court to dispute Defendants' representation that Scott and Alvarez did not receive notice of this case before the limitations period expired. (See Tu Decl. ¶ 9, testifying that December 7, 2022 “was the first time that either [Alvarez or Scott] was notified and/or learned about this lawsuit”); see also Gowin v. Multnomah Cnty., 28 F.Supp.2d 1188, 1190 (D. Or. 1998) (“As is clear from the language of Rule 23C, and from Oregon case law, the party to be brought in by amendment must receive notice of the institution of the action within the limitations period.” (citing Harmon, 933 P.2d at 361)). Accordingly, McKenzie's substitution of Scott and Alvarez as Doe defendants is also untimely under Oregon law, and therefore McKenzie's claim is barred by the two-year statute of limitations.
Even if McKenzie had argued that his service of the FAC on the City qualified as constructive notice to Scott and Alvarez, McKenzie did not provide sufficient detail in his original or amended complaints to put Scott or Alvarez on constructive notice of his claim against them. McKenzie alleges in his FAC that the Portland police arrested him on “Oct[ober] 5,” but he did not include the year. (FAC at 7.) In fact, McKenzie was arrested on October 8, 2020. (See Tu Decl. ¶ 6, Ex. 2, demonstrating that PPB officers took McKenzie into custody on October 8, 2020.) McKenzie also failed to include the address at which he was arrested. (See generally FAC.) McKenzie's vague and inaccurate references to details of his arrest were insufficient to put Scott and Alvarez on constructive notice that McKenzie had filed an action against them. Cf. Butler, 766 F.3d at 1203 (finding the plaintiff's amended complaint naming individual defendants in place of Doe defendants “did not relate back under Rule 15(c)(1)(C)” where “other than identifying the date of the search, the body of the original complaint offer[ed] no clues as to the location of [the plaintiff's] apartment [where the] address of [the] apartment is not mentioned, nor is the city, county, or even state where that apartment is located”).
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT Defendants' motion for summary judgment (ECF No. 23).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.