Opinion
Civil No. 01-732-TC
June 7, 2004
ORDER
Plaintiff, an inmate at the Snake River Correctional Institution, filed a complaint under 42 U.S.C. § 1983 alleging that defendants violated his First and Fourteenth Amendment rights by failing to allow him to receive and possess the Green Lantern comic book (one years subscription), the July 1999 issue of "Heavy Metal" magazine, issue #8 of "Muscle Elegance" and three issues of the "White Dwarf" a role playing fantasy game publication which supports games similar to dungeons and dragons (issues October and December of 2000 and January 2001).
By Order (#51) entered January 24, 2002, and Judgment (#52) entered January 25, 2002, this court allowed defendants' Motion for Summary Judgment (#42) and dismissed this case. The Ninth Circuit Court of Appeals affirmed the judgment as to plaintiff's federal constitutional claims but remanded the case for this court's consideration of its exercise of supplemental jurisdiction over plaintiff's claim under the Oregon Constitution.
Plaintiff's Claim 6 alleged: Due process and Art. 1 Section 8 of the Oregon Constitution in application are violated by DOC actions." As "supporting facts" plaintiff alleged: "Under Oregon law the free speech `of any kind' may not be squashed unless historical exception or haemful (sic) effects allow such bans. Here the Oregon Constitution may be more protective of inmates free speech rights than the federal constitution when it does not allow due course or process when it allows DOC to violate its citizens guaranteed rights." Complaint (#2) p. 3-4. In plaintiff's Opposition to Defendants' Motion for Summary Judgment (#47), plaintiff argued: "Claim 6 — attempts to incorporate Oregon's Art. 1 Sec. 8 which affords greater protection than the U.S. First Amendment to free speech by requiring "`a showing of harm' and `focusing on the effects' of such speech." Plaintiff's claim 6 was not otherwise briefed by either party.
If federal claims are dismissed before trial, supplemental state law claims may be dismissed as well (without prejudice). 28 U.S.C. § 1367(c) (3). Executive Software N. Am., Inc. v. United States District Court, 24 F.3d 1545, 1557-58 (9th Cir. 1994). Some cases hold that the proper exercise of discretion requires dismissal of state law claims unless "extraordinary" circumstances justify their retention. Wren v. Sletten Const. Co., 654 F.2d 529, 536 (9th Cir. 1981); Wentzka v. Gellman, 991 F.2d 423, 425 (7th Cir. 1993).
However, most courts hold that whether to dismiss supplemental claims is fully discretionary with the district court. Schneider v. TRW, Inc., 938 F.2d 986, 993-994 (9th Cir. 1991); Newport Ltd v. Sears, Roebuck Co., 941 F.2d 302, 307 (5th Cir. 1991) [abuse of discretion to dismiss supplemental claims on eve of trial after lengthy and extensive pre-trial proceedings].
Various factors may justify retention of the case after dismissal of the federal claim, including:
1.) the state law claim can be decided as a matter of law by the federal court, so that there is no purpose in requiring further litigation in state court. For example, where the issues decided on dismissal of the federal claim are dispositive of the state claim. See,Wright v. Associated Ins. Co. Inc., 29 F.3d 1244, 1251); or
2.) the supplemental claim involves an issue of federal law (eg., application of Federal Arbitration Act); or
3.) the case is approaching trial and a good deal of judicial time and effort has been invested in it (Schneider v. TRW, supra,); or
4.) the state law claims are now time barred in state court, See, Financial Gen. Bankshares, Inc. v. Metzger, 680 F.2d 768 (D.C. Cir 1982); or
5. the plaintiff is engaged in forum shopping by seeking dismissal of its own supplemental claims after resolution of the federal claim, In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 738 (3rd Cir. 1994).
The only one of these factors that may be relevant to the case before the court is the statute of limitations issue. In Financial General Bankshares, counsel for the appellant argued that the statute of limitations had been tolled during the pendency of the federal. Tolling of the limitations period is arguably a persuasive argument to the statute of limitations issue in the case at bar. However, the other alternative is the defendants' agreement to waive the statute of limitations. See, Financial Gen Bankshares, Inc. v. Metzger, supra (remand with instructions not to dismiss the case until the plaintiff had filed an action in the Superior Court of the District of Columbia and the defendant had filed with that court a record waiver of any applicable statute of limitations); McGaughlin v. Campbell, 410 F. Supp. 1321, 1326 (D. Mass, 1976) (deciding not to exercise pendent jurisdiction over state law claims, but withholding entry of judgment until it had been established that the claims were not barred by the statute of limitations); cf. U.S. Industries, Inc. v. Blake Construction Co., 671 F.2d 539, 551 (D.C. Cir. 1982) (instructing District Court that it may condition its suspension of proceedings pending disposition of suits in D.C. Superior Court upon defendant's abandonment of statute of limitations defenses asserted in those suits).
Based on all of the foregoing, I find that there are no compelling circumstances to justify this court's exercise of jurisdiction over plaintiff's supplemental claim that defendants' conduct violated his rights under the Oregon Constitution. All of plaintiff's federal claims have been dismissed and the only remaining claim involves an issue of purely state law. Therefor, the remaining claim "substantially predominates" over the claims over which this court had original jurisdiction
Accordingly, plaintiff's supplemental claim (Claim 6) is dismissed. However, since there may arguably be a statute of limitations defense to plaintiff pursuing a state court action regarding his Oregon constitutional claim, the dismissal is without prejudice to plaintiff's right to re-open this case if he files a state court proceeding regarding the supplemental claim alleged in this case and if defendants assert a statute of limitations defense to that claim.
Defendants' Motion urging court to decline exercise of supplemental jurisdiction (#16) is allowed to the extent set forth above. Plaintiff's motion (#67) urging court to accept supplemental jurisdiction, to forward to trial and for summary judgment, and Motion (#72) to take judicial notice, to "resurrect" and to accept jurisdiction, are denied.