Opinion
3:21-cv-00858-AR
03-24-2023
ALYSHA SCRIBER, Plaintiff, v. COLETTE PETERS, Oregon Department of Corrections ODOC Director; BRIAN BELLEQUE, ODOC Deputy Director former; ROB PERSSON, Superintendent CCCF former; HEIDI STEWARD, ODOC Deputy Director, Superintendent CCCF former; JASON BATTIN, ODOC Correctional Officer; JOHN/JANE DOE, Assistant Superintendent of Security CCCF; JOHN/JANE DOE 1-10, Security staff; JOHN/JANE DOE 11-20, ODOC/CCCF Correctional Officers; JOHN/JANE DOE 2130, ODOC/SIU Investigators; JOHN/JANE DOE 31-40; Supervisory staff; OREGON DEPARTMENT OF CORRECTIONS and the STATE OF OREGON, each sued in their individual and official capacities. Defendants.
FINDINGS AND RECOMMENDATION FILED UNDER PROTECTIVE ORDER
JEFF ARMISTEAD UNITED STATES MAGISTRATE JUDGE
Plaintiff Alysha Scriber is an adult formerly in the custody of the Oregon Department of Corrections (ODOC) who was held at Coffee Creek Correctional Facility (CCCF) between January 15, 2013, and February 4, 2015. (Compl. ¶ 47, ECF No. 1.) She alleges that during her time in custody, ODOC correctional officer Jason Battin sexually abused her-on at least 50 occasions. (Id. ¶¶ 47-58.) Scriber further alleges that Battin accomplished this abuse by using grooming tactics to condition her to comply with his direction and view their relationship as consensual. (Id.) She contends that Battin's supervisors knew of his conduct, yet took no action to stop him until after she had been released from custody. (Id. ¶ 55.) Based on that conduct and inaction, Scriber asserts state law claims of negligence and vicarious liability and federal civil rights claims under 42 U.S.C. §§ 1983 and 1985.
Defendants move for summary judgment, arguing that Scriber failed to provide timely notice of her tort claims and that all of her claims are time-barred under the applicable statutes of limitations. (Defs.' Mot. Summ. J. at 3-5, ECF No. 7.) Scriber counters that summary judgment is inappropriate because there are genuine and material issues of fact about the timeliness of her tort claim notice and claims. (Pl.'s Resp. to Mot. Summ. J. at 10-12, 18-20, ECF No. 32.)
As explained below, defendants' motion should be denied.
BACKGROUND
A. Evidence
Defendants submitted four declarations in support of their motion for summary judgment: (1) the declaration of Assistant Attorney General (AAG) Kate Beck; (2) the declaration of Becky Hawkins, a claims management consultant with the Oregon Department of Administrative Services (DAS); (3) the declaration of Mackenzie Kath, the supervising executive assistant at CCCF; and (4) the declaration of AAG Jessica Spooner. (Decl. of Kate Beck, ECF No. 8; Decl. of Becky Hawkins, ECF No. 9; Decl. of Mackenzie Kath, ECF No. 10.; Decl. of Jessica Spooner, ECF No. 44.) Hawkins' declaration is accompanied by a copy of the Oregon Standard Tort Claim form filed by Scriber's attorney on April 19, 2021, and email notice sent to defendants. (Hawkins Decl. ¶ 3, Ex. 1.) Kath's declaration includes an exhibit of Scriber's housing history during ODOC custody. (Kath Decl. ¶ 4, Ex. 1.) Spooner's declaration includes excerpts of the deposition of Scriber's counselor, Shiloh Satran, LPC, taken on January 12, 2022. (Spooner Decl. ¶ 3, Ex. 1.)
To support her response in opposition to defendants' motion for summary judgment, Scriber submitted her own declaration, the declaration of Kate Hoffman, and the transcript from Satran's deposition. (Decl. of Alysha Scriber, ECF 32-4; Decl. of Kate Hoffman, ECF No. 32-2; Dep. of Shilo Satran LPC, ECF No. 32-3.) Hoffman's declaration is accompanied by exhibits of Scriber's (1) ODOC institutional records; (2) ODOC mental health records; (3) Options for Southern Oregon records; and (4) Asante Family Medicine records. (Hoffman Decl. ¶¶ 3-4, Exs. 1-4.) Satran's deposition includes an exhibit of Scriber's OnTrack Records. (Satran Dep., Ex. 1.)
Those documents are all filed under seal and subject to the parties' protective order.
B. ODOC Custody
Scriber was admitted to ODOC custody on January 15, 2013, and arrived at CCCF for a 37-month sentence with a reduction for time served. (Scriber Decl. ¶¶ 4-5.) She was 29 years old and terrified to be incarcerated in a prison and separated from her three-year-old son for the first time. (Id. ¶ 4.) When she entered CCCF, Scriber “believed in the rule of law and admired, trusted, and respected law enforcement, including correctional officers.” (Id. ¶ 5.)
In late March 2013, Scriber was moved from CCCF to Coffee Creek Correctional Facility - Minimum (CCCM), where she remained until her release from ODOC custody. (See Kath Decl. ¶ 3, Ex. 1.) She was assigned to work in the kitchen-an assignment she describes as “the least desirable job at CCCM.” (Scriber Dec. ¶ 6; Hoffman Decl. ¶ 3, Ex. 1 at 32.) Soon after her transfer to CCCM, correctional officer Battin “befriended” Scriber. (Scriber Decl. ¶ 7.) He flirted with her and told her that she was beautiful, that he wanted to kiss her, and that he would ensure that she did not have to work in the kitchen. (Id.) Subsequently, Scriber was reassigned to a job as an inmate orderly. (Hoffman Decl. ¶ 3, Ex. 1 at 32.) Battin served as Scriber's direct supervisor in her new role and gained her “trust, confidence, friendship, admiration, and obedience as an employee of CCCF.” (Scriber Decl. ¶¶ 7-8.) Based on his “love and adoration,” Scriber began to believe that Battin loved her and that he wanted a relationship with her. (Id.)
During that time, Scriber was “devastated and severely depressed” and suffering from the physical separation from her son and the dissolution of her past romantic relationship. (Id.; Hoffman Decl. ¶ 3, Ex. 2 at 15, 16, 49, 65.) Scriber experienced nightmares, flashbacks, and withdrawal symptoms related to sexual and emotional abuse that she had experienced as a child. (Scriber Dec. ¶¶ 8, 10; Hoffman Decl. ¶ 3, Ex. 2 at 13, 16, 19-20, 26, 37, 51-52, 60, 64.) During treatment appointments with ODOC mental health providers, she described herself as an “approval addict” and continued to have poor self-concept and boundaries. (Hoffman Decl. ¶ 3, Ex. 2 at 13, 28, 33, 37, 60.) The goals of her treatment were to address those issues. (Scriber Decl. ¶ 9; Hoffman Decl. ¶ 3, Ex. 2 at 25, 33.)
Battin offered Scriber a shoulder to cry on and a listening ear. (Scriber Dec. ¶ 8.) She believed that he understood her struggles, and he made her feel worthy of companionship. (Id.) Scriber explains that, “[t]hrough his contrived friendship, I was able to feel like a real person again, instead of state inmate number 14932611.” (Id.)
Battin also manipulated Scriber's work schedule and dorm assignment so that he could have unfettered access to her. (Id. ¶ 11.) In August 2013, Scriber's orderly job assignment was changed, and she became the inmate orderly for program services. (Id. ¶ 9; Hoffman Decl. ¶ 3, Ex. 1 at 30.) The programs building was not equipped with security cameras and Scriber's new role required her to be isolated from others and allowed Battin complete one-on-one access to her. (Scriber Dec. ¶ 9.). In October 2013, Scriber's bunk was also moved next to a podium where corrections staff, including Battin, observed the unit. (Id.). That placement gave Battin the ability to watch and control her at all times while he was at work. (Id. ¶ 11.)
In fall 2013, Battin approached Scriber in the programs building supply closet, where he kissed her, using his mouth and tongue on her mouth. (Scriber Decl. ¶ 11.) He then began an extended campaign of sexual contact with Scriber in secluded locations: he kissed and sexually fondled her; touched her lips, buttocks, breasts, legs, and vagina; put his penis into her vagina; and ejaculated into her vagina on at least fifty occasions. (Id. ¶¶ 11-12.) He would also bend Scriber over a desk and insert his penis into her vagina while standing behind her, and ejaculate onto her and into her vagina. (Id. ¶ 12.) After those encounters, Battin made Scriber clean herself in the office bathroom before returning to her housing unit. (Id.)
Battin often required Scriber to meet him in the minimum custody program room for those encounters. (Id. ¶ 11.) He would also accompany her one-on-one or follow her into the building minutes after she had entered. (Id.) Because the route from the housing unit to the programs building is easily observable, supervisory staff and corrections officers could see Battin accompany Scriber to the programs building or follow her there shortly after her arrival. (Id.) Additionally, CCCM staff were aware of Battin's actions related to Scriber's job assignment and dorm placement because Scriber's dorm mate reported that Battin was showing her preferential treatment. (Id.) During the investigation into that report, Correctional Officer Wiggins interrogated, screamed at, and threatened Scriber with placement in segregation, and she was “terrified of retaliation from other correctional staff and from Battin if [she] came forward about the relationship between Battin and [herself].” (Id. ¶ 15.) Despite awareness of Battin's actions, CCCF/CCCM staff did not stop his abuse while Scriber was in ODOC custody.
C. Post-Custody
Scriber was released from ODOC custody on February 4, 2015. (Id. ¶ 16.) She successfully completed probation, but maintaining sobriety continued to be a daily struggle. (Id.; Hoffman Decl. ¶ 3, Ex. 3 at 7, 10-11, 13, 17.) Beginning in late February 2015, she accessed services at Choices and Options Treatment Center (Options) in Grants Pass, Oregon. (Hoffman Decl. ¶ 3, Ex. 3 at 21-36.) Scriber also attended Alcoholics Anonymous meetings and found a sponsor, reestablished a relationship with her son, and attended group therapy and individual counseling to develop strategies and understanding related to her feelings of “profound sadness.” (Id. at 21, 26-27, 29, 32-33, 34 (July 27, 2016, progress note: “Client reports depression symptoms and doesn't know why she is depressed.”).)
On November 15, 2017, Scriber reported to her therapist at Options that “when she was in prison, she had a consensual relationship with one of the guards in jail” and was “having more and more intrusive thoughts and flashbacks about this situation.” (Hoffman Decl. ¶ 3, Ex. 3 at 18; Scriber Decl. ¶ 16.) Scriber “did not acknowledge or in any other way indicate that . . . the relationship with the correctional officer was harmful or inappropriate,” and the Options therapist did not advise her that the relationship had been illegal or otherwise problematic at that time. (Scriber Decl. ¶ 16.)
Scriber's mental health continued to deteriorate between 2018 and 2020. She experienced increased anxiety, nightmares, flashbacks, depression, and relapses and reported to her primary care physician and to the emergency room department due to uncontrollable anxiety and severe depression. (Id. ¶ 17; Hoffman Decl. ¶ 3, Ex. 4 at 12-14, 17, 21, 33, 37, 41, 52, 55.) Scriber attests that, although her flashbacks related to her time in prison, she “did not equate Battin's actions, or the inaction of his supervisors, with injuring [her], causing [her] trauma, contributing to [her] relapses, or causing the failure of [her] relationships.” (Scriber Decl. ¶ 17.) She explains:
I made sense of the situation by blaming myself. I reasoned that I deserved how Battin treated me because I must have done something to make him think that it was okay to engage with me sexually. I felt shame that I had allowed the sexual encounters and shame when I cleaned my body of his ejaculate in the staff bathroom. I did not understand that what he did was wrong; I believed that Battin loved me and that out of this love he kissed me, digitally penetrated me and engaged in vaginal and oral sex. Eventually, I felt shame and humiliation that I loved Battin. I was critical of myself for having nightmares and flashbacks about my interactions with Battin, because in my mind, those flashbacks were a result of my own failings, of my own stupidity, and my own incapability to set boundaries.(Id. ¶ 18.) During that period, Scriber “continued to blame [herself] for Battin's actions because [she] had previously allowed him to have sexual encounters with [her], even though during one of [the] last encounters he had used force to pull down [her] pants.” (Id. ¶ 17.)
Scriber “could not understand why, as soon as [she] got clean, [she] would start to have flashbacks and nightmares,” and increasingly struggled to maintain her sobriety. (Id. ¶ 19; Satran Dep. at 45.) On September 4, 2020, she went to OnTrack-a substance abuse treatment center in Grants Pass, Oregon-for assistance with her substance abuse. (Scriber Decl. ¶ 19; Satran Dep. at 5, 12, 69, Ex. 1 at 53.) Shilo Satran, a licensed mental health and drug and alcohol counselor, completed an initial assessment of Scriber's risk of relapse. (Satran Dep. at 13-14, Ex. 1 at 1-13.) When questioned about that initial assessment during her deposition, Satran recalled that Scriber was very tearful, reported feeling “intense emotional pain,” and said that her “body ached and hurt.” (Id. at 16-17.) Following the assessment, Satran recommended that Scriber participate in counseling five times a week for a total of 12 hours per week, including five 90-minute group sessions and one individual session per week. (Id. at 23, Ex. 1 at 17.)
Satran recounts: “So [Scriber] talked about in her assessment how she got clean a number of times, but as soon as she would get clean, within weeks, she would start to have flashbacks[.] She would have flashbacks, and she would have nightmares, and so very soon afterwards, she would start using again in order to numb out those two incidents.” (Satran Dep. at 21.)
Scriber underwent a mental health assessment at OnTrack on September 22, 2020, and was diagnosed with chronic PTSD and severe depression. (Id. at 27, Ex. 1 at 24, 53; Scriber Decl. ¶ 20.) Satran opined during her deposition that, at the time of that assessment, Scriber had “absolutely no understanding” of how trauma can affect someone's emotions and no sense of how her trauma related to her inability to stay sober. (Satran Dep. at 17, 20-21, 27-29, 42, 45.) Similarly, in a service plan review note from November 4, 2021, Satran wrote:
During the [mental health] assessment, [Scriber] reported symptoms of PTSD. She did not know what PTSD was, so writer explained it to her. She reported that she thought only war veterans got PTSD. She reported that she was shocked to find out what she had experienced could be trauma that lead to PTSD.(Id. at 27-28, Ex. 1 at 53.) Satran and Scriber did not discuss how Scriber's prison experience and relationship with Battin related to her PTSD at that time. (Id. at 29, 70.)
Following the mental health assessment, Scriber continued to attend individual therapy with Satran, where they began to address and work through her past traumas. (Id. at 53-54.) Satran explains that, from a therapeutic standpoint, her “way of dealing with trauma is not to deal with the biggest one first.” (Id. at 48.) Instead, the “first thing that [she and Scriber] worked on was her son, and the loss of him, and her reaction to that.” (Id. at 47.) Those discussions led “in to parenting mistakes made by her parents that were traumatic, somewhat abusive” and eventually-though not necessarily in a linear manner-to working through trauma that Scriber carried from being sexually abused by her uncle when she was a child. (Id. at 30, 48.)
Satran identifies Scriber's experience with Battin as her “most active traumatic experience.” (Id. at 29.)
Satran first introduced the concept of “grooming” to Scriber on February 1, 2021, when they were talking about what had happened with her uncle. (Id. at 30, 33.) Satran recalls that, as she explained how Scriber's uncle used grooming tactics to desensitize her to his unacceptable behavior, Scriber “started recognizing some of the things that had happened with her uncle as the same things that had -- the same type of behaviors that had happened with [Battin].” (Id. at 30.) During her deposition, Satran opined that before that counseling session, Scriber
Satran describes grooming as “. . . it's like desensitization. You take one step at a time, and you get -- you get someone accustomed to unacceptable behavior, but it's just a little. Just pushes the boundaries just a little. Then we go just a little bit further.” (Satran Dep. at 31.) Grooming can include trying to make a person of lesser power feel special, complimenting them, flirting with them, isolating them, and exerting their power over them. (Id. at 32-33.)
did not recognize that she had been groomed, and at that point where she recognized that she had been groomed by her uncle, where we broke it down, and I laid out, okay, this is the first thing he did, this is the next thing he did, and then she -- she was able to see that.
[...]
And then she started going through this happened, and then this happened, and this is where [Battin] did -- and she was connecting it to the grooming, which I agreed it was grooming.(Id. at 30-31, 34, Ex. 1 at 44 (emphasis added).) Scriber likewise attests that, before Satran explained grooming to her on February 1, 2021, she “was unaware of this term as related to sexual abuse” and “did not understand that [she] had been groomed or sexually abused by Battin.” (Scriber Decl. ¶ 21.)
Scriber then described to Satran the nightmares that she had about Battin, who she called “the guard.” (Satran Dep. at 36-37, 40, 58; Scriber Decl. ¶ 22.) Satran recalls that Scriber “never told me exactly what happened” with Battin, but reported that her nightmares centered around “the cleanup process; that she was forced to use the guards' bathroom, and she was forced to wash herself in there.” (Id. at 37, 58.) She also recalls that Scriber “believed [that Battin's conduct] was her fault” and “thought that she would get in trouble” if she reported the relationship. (Id. at 35, 45-46, 68.) Scriber told Satran that “she didn't feel she had the ability to say no,” but that “because not all of the sex [with Battin] was forceful, she thought she had consented.” (Id. at 46, 68; Scriber Decl. ¶ 25.) Scriber “now understands that it was nonconsensual” and recognizes that “cleaning ejaculate from [her] body in a staff bathroom caused trauma and that the cause of the trauma was Battin, who was responsible for the actual abuse, and his supervisors for failing to protect [her] from that abuse.” (Satran Dep. at 41, 47; Scriber Decl. ¶¶ 25-26.)
On February 10, 2021, Scriber consulted an attorney, who explained to her that Battin's supervisors had the duty to supervise him, to protect her, and to investigate claims of sexual misconduct. (Scriber Decl. ¶¶ 28-29.) She filed a Tort Claims Notice on April 19, 2021, and brought this action on June 4, 2021. (Id. ¶ 32.)
LEGAL STANDARD
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). The party moving for summary judgment bears the initial responsibility of informing the court of the basis for the motion and identifying portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material fact. CelotexCorp. v. Catrett, 477 U.S. 317, 323 (1986).
If the moving party shows the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324 (citing FED. R. CIV. P. 56(e)). The court must view the evidence in the light most favorable to the nonmoving party. Curley v. City of N. Las Vegas, 772 F.3d 629, 631 (9th Cir. 2014). However, deference to the nonmoving party has limits. A party asserting that a fact cannot be true or is genuinely disputed must support the assertion with admissible evidence. FED. R. CIV. P. 56(c). Therefore, 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., Ltd. v.Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
Defendants argue that the notice and limitations periods for Scriber's claims necessarily accrued no later than February 4, 2015, when the last alleged sexual contact with Battin could have occurred. (Defs.' Mot. Summ. J. at 3-5.) Scriber counters that her claims did not accrue until February 1, 2021, when she first learned about “grooming” in the context of sexual assault at a therapy appointment with Satran and began to understand that her relationship with Battin had not been consensual. (Pl.'s Resp. at 13-15, 18-22.) Despite defendants' argument in its motion for summary judgment that the notice and limitation periods are governed by when the alleged conduct occurred, the court analyzes the timeliness of Scriber's claims-as is appropriate under state and federal law-by considering whether there is evidence in the record from which a jury could find that Scriber reasonably discovered her injuries at a time that falls within the notice and limitation periods.
A. State Law Claims (Claims 6, 8 and 9)
Scriber asserts three state law claims against defendants. In Claims 6 and 8, she alleges that various supervisory and security staff at CCCF negligently failed to protect her and other inmates from Battin's grooming and abuse and failed to investigate complaints about his misconduct. (Compl. ¶¶ 109-119; 128-132.) In Claim 9, she asserts that the State of Oregon is responsible for Battin's sexual abuse under a theory of respondeat superior. (Id. ¶¶ 133-139.) Defendants argue that those state law claims are untimely under the notice and limitations provisions of the Oregon Tort Claims Act (OTCA), ORS 30.275.
The OTCA's notice provision mandates that, before bringing an action “arising from any act or omission of a public body or an officer, employee or agent of a public body,” a plaintiff must provide notice of the tort claims “within 180 days after the alleged loss or injury.” ORS 30.275(2)(b). The OTCA's state of limitations requires that such actions be brought “within two years of the alleged loss or injury.” ORS 30.275(9).
Oregon courts apply a “discovery” rule to determine the accrual date of the OTCA's notice and limitations periods. Adams v. Oregon State Police, 289 Or. 233, 239 (1980). Neither period begins to run until the “plaintiff has [had] a reasonable opportunity to discover [her] injury and the identity of the party responsible for that injury.” Id. An “injury” is a legally cognizable harm comprised of three elements: (1) harm; (2) causation; and (3) tortious conduct. Gaston v. Parsons, 318 Or. 247, 255 (1994). Therefore, the accrual period is triggered when “the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exist.” Id. at 256 (emphases added); Kaseberg v. Davis WrightTremaine, LLP, 351 Or. 270, 278 (2011). “When the facts that should alert a plaintiff to a defendant's role are different for different defendants, the date of accrual may also be different as to each.” T.R. v. Boy Scouts of Am., 344 Or. 282, 292 (2008) (applying discovery accrual rule to § 1983 claims).
The Oregon Supreme Court has emphasized that the “should have known” prong of the discovery rule is an objective test. Gaston, 318 Or. at 256. “In most cases, the inquiry will concern what a plaintiff should have known in the exercise of reasonable care.” Id. The court reviews the evidence from the perspective of a reasonable person in the circumstances of the plaintiff. SeeDoe 1 v. Lake Oswego Sch. Dist., 353 Or. 321, 333 (2013) (relevant circumstances may include the plaintiff's age, the relationship between the parties, and the nature of the harm suffered). “Application of the discovery accrual rule presents a factual question for determination by a jury unless the only conclusion a jury could reach is that the plaintiff knew or should have known the critical facts at a specified time and did not file suit within the requisite time thereafter.” Kaseberg, 351 Or. at 278.
Beginning with the first prong of the discovery rule, defendants argue that evidence in the record establishes that Scriber discovered her injury no later than February 2015. Specifically, they point to Scriber's declaration that she was “terrified of retaliation from other correctional staff and from Battin if [she] came forward about the relationship between Battin and [herself].” (Defs.' Reply at 3.) They also reference Satran's testimony that Scriber “believed it was her fault” and “didn't feel that she had the ability to say no” as evidence that Scriber knew, in 2015, that “there was something to report.” (Id.)
Viewing that evidence in the light most favorable to Scriber, however, the court finds that a rational jury could draw other conclusions. For instance, although Scriber states that she feared retaliation if she reported her relationship with Battin, the record does not indicate the precise reason for that fear. Satran testified:
Well, she thought she would get in trouble. Somehow, she would get in trouble, and she never told me what she thought the trouble would be, but she told me that there were a lot of ways that you could, you know, get in trouble in the prison.(Satran Dep. at 68.) That general fear appeared to be well-founded, as when Scriber was investigated about Battin's “preferential treatment” for her, a correctional officer interrogated, screamed at, and threatened her with placement in segregation. (Scriber Decl. ¶ 11.) Moreover, despite knowledge of Battin's “preferential treatment” for Scriber, corrections staff made no effort to confront Battin or discipline him for such behavior-leading Scriber to believe that “it was acceptable.” (Scriber Decl. ¶ 14.) Given that evidence, a jury could find that Scriber's fear of retaliation stemmed more generally from the prison environment itself, rather than specific knowledge that Battin's conduct was tortious or caused her harm.
Likewise, Satran's testimony that Scriber “believed [the relationship] was her fault” and “thought she couldn't say no” does not establish that Scriber knew of her injury in February 2015. As reflected in the record, Scriber was experiencing the dissolution of a past romantic relationship and separation from her son when she entered ODOC custody. (Scriber Decl. ¶¶ 78.) She was also a self-described “approval addict” with poor self-concept and boundaries, and was receiving treatment to address those issues. (Id. ¶ 9.) And before engaging in sexual contact with Scriber, Battin used grooming tactics to “befriend” and manipulate her into believing that his advances were romantic, rather than abusive, in nature. (Id. ¶¶ 7-8.) Given those circumstances, a jury could reasonably find that Scriber's self-blame and feeling that she could not “say no” to Battin stemmed from myriad causes, not simply an understanding that Battin's conduct constituted sexual abuse.
Additionally, Scriber has presented evidence from which a rational jury could find that she did not actually discover her alleged injury until February 1, 2021, when she first learned at a therapy appointment with Satran that Battin had “groomed” her. (Pl.'s Resp. at 13-15, 18-22; Scriber Decl. ¶¶ 21-24; Satran Dep. at 30-31, 34, Ex. 1 at 44.) Before that date, Scriber concedes that she understood that the prison experience and separation from her son had caused her trauma, but she explains that she “did not equate Battin's actions, or the inaction of his supervisors, with injuring [her], causing [her] trauma, contributing to [her] relapses, or causing the failure of [her] relationships” because she believed that Battin was having sex with her because he loved her and she was not aware that Battin's supervisors had a duty to protect her from what she had viewed as a consensual relationship. (Scriber Decl. ¶¶ 24-25, 27-29.)Accordingly, a genuine dispute of material fact exists as to when Scriber actually discovered her alleged injury.
Although Scriber disclosed the sexual nature of her relationship with Battin to a therapist in November 2017, she did not indicate that she believed the relationship was abusive and the therapist did not tell that it was inappropriate or illegal at that time. (Scriber Decl. ¶ 16.)
Turning to the second prong of the discovery rule, the remaining question presented is whether-as a matter of law-Scriber should have discovered her injury no later than February 2015. Defendants argue that Scriber's knowledge at that time should have alerted her to the substantial possibility that Battin's sexual contact and the inaction of his supervisors caused her harm and was tortious. (Defs.' Reply at 4, ECF No. 43.) Scriber counters that there is sufficient evidence from which a jury could find that the delayed discovery of her injury was objectively reasonable under the circumstances. (Pl.'s Resp. at 12-14.) The court analyzes the parties' evidence with respect to each element of Scriber's alleged injury-cognizant that a genuine dispute of material fact as to any element will preclude summary judgment.
1. harm
Defendants argue that-given her age, intellectual ability, and experience with sexual abuse-Scriber reasonably should have understood that she experienced harm when Battin sexually touched her between 2013 and 2015. (Defs.' Mot. Summ. J. at 5; Defs.' Reply at 4.) Scriber counters that Battin's grooming tactics obscured the nature of his sexual advances and, because of those tactics, she reasonably did not perceive Battin's conduct as harmful at the time it occurred. (Pl.'s Resp. at 15.)
Viewing the evidence in the light most favorable to Scriber, the court finds a genuine and material issue of fact as to when she reasonably became aware that she experienced harm. Notably, Scriber's claims are not based on allegations that the allege sexual abuse caused her physical harm; instead, she alleges that, as a result of defendants' conduct, she “continues to suffer from mental distress, anxiety, anger, hopelessness, depression, and ongoing battles with stress,” as well as other forms of emotional and psychological distress, for which she has sought treatment. (Compl. ¶¶ 67, 79.) The record echoes those allegations, reflecting that Scriber's harm manifested as depression; PTSD with flashbacks, nightmares, and intrusive thoughts; self-blame; drug and alcohol abuse; and difficulty maintaining romantic relationships. (Scriber Decl. ¶¶ 8, 10, 19; Hoffman Decl. ¶ 3, Ex. 3 at 12-14, 21-36, 55; Satran Dep. at 21, 45.)
That, upon her release from custody, Scriber accessed services as early as February 2015 for assistance with maintaining her sobriety and coping with worsening psychological symptoms suggests that, on some level, she was aware that the prison experience had caused her trauma. Nevertheless, given Scriber's unfortunate past experience with sexual and emotional abuse, those emotional and psychological symptoms already existed, to an extent, when she was in custody at CCCF. (Scriber Dec. ¶¶ 8, 10; Hoffman Decl. ¶ 3, Ex. 2 at 13, 16, 19-20, 26, 37, 51-52, 60, 64.) Thus, it is difficult to discern exactly when Scriber knew or should have known that she was experiencing harm related to defendants' alleged conduct. That question of fact must be resolved by a jury.
2. causation
Even assuming that Scriber was aware of her harm as early as February 2015, a rational jury could find that she reasonably did not discover that Battin's conduct and his supervisors' inaction directly or indirectly caused that harm until a later date. Oregon courts have recognized that a plaintiff's delayed discovery of the causal link between a defendant's conduct and the harm suffered may be objectively reasonable in the context of sexual assault, particularly where grooming has been used to desensitize the plaintiff to a defendant's inappropriate behavior. See Jasmin v. Ross, 177 Or.App. 210, 216 (2001). In Jasmin, the plaintiff alleged that the defendant, her step-uncle, sexually molested her during adolescence after using grooming tactics to persuade her that they had a “special relationship.” Id. at 212. As an adult, she manifested various psychological harms, including an “inability to maintain relationships, drug and alcohol abuse, self-mutilation, explosive anger, and violence toward others.” Id. at 213. In time and with counseling, she understood that the relationship had been abusive and brought suit. Id. The case proceeded to trial, where the defendant moved for a directed verdict on the ground that the plaintiff's claims were time-barred by the applicable statute of limitations. Id. at 212. The trial court denied the defendant's motion, and the plaintiff prevailed at trial. Id.
On appeal, the defendant argued that, because the plaintiff had disclosed the sexual nature of their relationship on medical forms, she reasonably should have known that his conduct caused her harm. Id. at 212. The court disagreed, concluding:
There is ample evidence from which a jury could find that, before 1995, plaintiff did not believe that her problems were caused by defendant's sexually abusive conduct; in her mind, the problems were caused not by sexual abuse but by a failed romance.Id. at 216.
As in Jasmin, there is sufficient evidence here from which a jury could conclude that, before her therapy session on February 1, 2021, Scriber reasonably attributed her psychological and emotional harms to the failure of her “romantic relationship” with Battin or to sources other than Battin's conduct and his supervisors' inaction. For instance, Scriber attests that: “I believed that Battin loved me and that out of this love he kissed me, digitally penetrated me and engaged in vaginal and oral sex.” (Scriber Decl. ¶ 18.) She also states that she initially believed that her depression and sobriety struggles stemmed from the physical separation from her son and the dissolution of a past romantic relationship. (Scriber Decl. ¶ 7-8, 19; Hoffman Decl. ¶ 3, Ex. 2 at 15-16, 34.) Likewise, Satran's testimony and medical notes reflect that, even though Scriber was aware that she felt “profound sorrow” and struggled to maintain her sobriety, she had “absolutely no understanding” of how trauma affected her emotions, did not know why she was depressed, and believed that only veterans experienced PTSD. (See Satran Dep. at 17, 20-21, 27-29, 42, 45; Hoffman Decl. ¶ 3, Ex. 3 at 34.) Therefore, even though Scriber's nightmares and flashbacks recurringly centered on how she had to clean herself after encounters with Battin, a jury could find that she reasonably did not recognize that Battin's conduct caused those symptoms until February 1, 2021, when she began to understand that their relationship had not been consensual.
3. tortious conduct
Finally, genuine and material issues of fact exist as to when Scriber reasonably should have discovered that defendants' actions were tortious. As with causation, a plaintiff's delayed discovery of the tortious nature of a defendant's conduct can be objectively reasonable in the context of sexual assault. SeeSkille v. Martinez, 288 Or.App. 207, 218 (2017) (jury could find that plaintiff's delayed discovery of injury was reasonable where she alleged that defendant used his custodial position to groom her and exploit her mental illness and claimed that she did not understand that his conduct was tortious until she learned of other lawsuits against him).
The plaintiff alleged that the officer led her to believe that they were in a romantic relationship by befriending her, telling her that she “seemed normal and did not seem to be a mental patient,” giving her gifts, and telling her that she could trust him. Skille, 288 Or.App. at 210-11. He then manipulated her transport schedule so that he transported her on trips alone and used those trips to kiss her, touch her breasts and between her legs, and solicit oral sex. Id.
For example, in Doe 1 v. Lake Oswego School District, the Oregon Supreme Court explained that “knowledge that an actor committed an act that resulted in harm is not always sufficient to establish that a plaintiff also knew that the act was tortious.” 353 Or. at 333. In Doe 1, a group of adult plaintiffs alleged that, when they were in the fifth grade between 1968 and 1984, their teacher sexually battered them after he had “engaged in a ‘grooming' process that involved befriending [them], gaining their trust, admiration, and obedience, and conditioning them to respect [him] as a person of authority.” Id. at 323. Although the last sexual contact occurred in 1984, the plaintiffs did not file suit until 2008, alleging that because of the grooming, they “reasonably did not discover the abusive or tortious nature of [the teacher's] conduct at the time it occurred” and did not discover their injuries until at least 2006. Id. at 324, 328-29. The school district moved to dismiss the claims as untimely under the OTCA, arguing that the plaintiffs should have known that the touching was abusive when it occurred. Id. at 329. The trial court agreed and dismissed the action, and the court of appeals affirmed. Id. at 326.
The school district did not contend that that the plaintiffs' battery claims necessarily accrued at some date after 1984 or challenge the plaintiffs' allegations that they did not discovery their injuries until 2006 at the earliest. Doe 1, 353 Or. at 329.
On appeal, the Oregon Supreme Court reversed that decision and remanded for further proceedings. Id. at 323. The Court examined the elements of a battery claim in the context of the Gaston definition of “injury” and explained that battery recognizes two kinds of tortious conduct: “harmful contact,” and “offensive contact.” Id. at 330 (citing Restatement (Second) ofTorts § 18(1) (1965)). Because the plaintiffs alleged that they did not comprehend the abusive nature of the touching when it occurred “given their status as minors, their relationship with [the teacher], and the nature of the harm that his acts inflicted,” the Court reasoned that a jury could find that they “reasonably did not know that [the teacher's] acts were offensive when they occurred.” Id. at 334.
Under Oregon law, a common law claim for battery consists of the following elements: “(1) an actor acts intending to cause a harmful or offensive touching with the person of another or a third person;” and “(2) a harmful or offensive contact with the person of the other directly or indirectly results.” Skille, 288 Or.App. at 214.
Like the Doe 1 plaintiffs, Scriber argues that she reasonably did not discover that Battin's conduct was tortious when it occurred because his grooming process obscured the fact that such contact was harmful or offensive. (Pl.'s Resp. at 15.) A rational jury could reach that conclusion. As the Court recognized in Doe 1, “the line between offensive and socially acceptable touching [] may be difficult to ascertain,” especially where a defendant has used grooming tactics. Doe 1, 353 Or at 333. Here, the evidence reflects that Battin engaged in grooming tactics by abusing his position to exploit Scriber's vulnerabilities, gaining her trust and obedience, making her feel “worthy of companionship,” and then manipulating her work and dorm assignment to give himself one-on-one access to sexually abuse her. (Scriber Decl. ¶¶ 9-12.) Scriber's circumstances understandably rendered her vulnerable to such tactics, obscuring the harmful and offensive nature of Battin's conduct.
Additionally, a jury could find that Scriber reasonably did not discover that Battin's supervisors breached a duty to protect her from his conduct until February 2021. Scriber attests that, although “there was some information about PREA” during her incarceration, she understood that information to prohibit “inmate-on-inmate sexual assault,” not “relationships between corrections staff and inmates.” (Id. ¶ 31.) She contends that, because Battin's actions were “easily observable” but not stopped by corrections staff, she “thought that [their ‘relationship'] was acceptable.” (Id. ¶¶ 14-15.) Given that evidence, Scriber has raised genuine and material issues of fact as to when she should have discovered that the alleged inaction of Battin's supervisors was also tortious.
The Prison Rape Elimination Act (PREA) of 2003 is a federal law that seeks to “establish a zero-tolerance policy regarding rape and sexual abuse inside correctional facilities” by publishing standards to improve prevention, detection, and response strategies in addressing sexual abuse and assault. (Compl. ¶¶ 28-29; see 34 U.S.C. § 30301.) In September 2018, ODOC adopted the mandates of PREA in ODOC Policy 40.1.13.
In conclusion, because a rational jury could find that Scriber reasonably did not discover her injury before February 1, 2021, genuine disputes of material fact remain as to the timeliness of Scriber's claims under the OTCA's notice and limitations periods. Thus, defendants' motion for summary judgment should be denied.
Scriber also argues that her state claims are timely because the OTCA's notice and limitations periods were tolled from March 8, 2020, until September 26, 2021, due to the Covid-19 pandemic. (Pl.'s Resp. at 11 (citing Oregon Executive Order Nos. 20-03 and Oregon House Bill 4212).) Because the material and genuine issues of fact exist as to when Scriber discovered and should have discovered her injury, the court need not reach that argument.
B. Federal Claims (Claims 1, 2, 3, 4, 5, and 7)
Scriber asserts six federal civil rights claims under 42 U.S.C. §§ 1983 and 1985. In Claim 1, she alleges that Battin violated her rights to personal bodily integrity and to be secure from undue excessive force under the Eighth and Fourteenth Amendments. (Compl. ¶¶ 59-69.) In Claims 2, 3, and 7, she alleges that all defendants violated her Eighth Amendment right to be free from cruel and unusual punishment by failing to ensure that she was afforded the appropriate conditions of confinement, failing to protect her from Battin's affirmative actions of sexual abuse, and failing to comply with mandates of the PREA. (Id. ¶¶ 70-94, 120-137.) Finally, in Claims 4 and 5, she contends that various supervisory defendants failed to adequately train and supervise Battin and other correctional staff, failed to adequately investigate complaints about Battin, and failed to properly follow PREA guidelines. (Id. ¶¶ 95-108.)
The limitations period for claims brought under §§ 1983 and 1985 is determined by the forum state's statute of limitations for personal injury actions. Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 2001) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)). In Oregon, that limitation period is two years. See ORS 12.110(1). Although ORS 12.110(1) dictates the length of the limitations period, federal law governs the accrual date of that period. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“[T]he accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law.”). A civil rights claim accrues under federal law “not just when a plaintiff experiences the injury, but ‘when the plaintiff knew or in the exercise of reasonable diligence should have known of the injury and the cause of that injury.'” Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 581 (9th Cir. 2012) (quoting Lukovskyv. City and Cnty. of San Francisco, 535 F.3d 1044, 1050 (9th Cir. 2008)); Bibeau v. Pac. Nw. Rsch. Found. Inc., 188 F.3d 1105, 1108 (9th Cir. 1999) (“[T]he discovery rule has been observed as a matter of federal law.”) A plaintiff “must be diligent in discovering the critical facts” regarding her injury because a cause of action accrues even if “the full extent of the injury is not yet known.” Bibeau, 188 F.3d at 1108; Wallace, 549 U.S. at 391.
Defendants argue that Scriber's federal claims accrued no later than February 4, 2015, when she was released from ODOC custody and the last alleged contact with Battin could have occurred. (Defs.' Mot. Summ. J. at 5.) Scriber counters that she did not discover her injury or defendants' causal role in her injury until her therapy session on February 1, 2021. (Pl.'s Resp. at 22-23.) She argues, moreover, that a jury could find that her delayed discovery of that injury and causal role was objectively reasonable. (Id.)
In support, Scriber distinguishes her circumstances from two cases in which Oregon district courts granted the defendants' motions for summary judgment on statutes of limitation grounds. See Wilson v. Oregon by and through Dep't of Corr., Case No. 3:20-cv-2078-SI, 2021 WL 3779630, at *1 (D. Or. Aug. 25, 2021); Doe v. Cnty. of Josephine, Case No. 1:12-cv-2080-CL, 2015 WL 2412181, at *8 (D. Or. May 18, 2015), aff'd sub nom. Doe, 7 v. Josephine Cnty., 687 Fed.Appx. 567 (9th Cir. 2017). In Wilson, the plaintiff-an adult-in-custody held at CCCF- alleged that she was sexually assaulted during a medical examination in July 2017. 2021 WL 3779630, at *1. She filed a grievance detailing the assault and provided tort claim notice in June 2018. Id. at *1, 4. However, she did not file her complaint until December 1, 2020-more than two years after that grievance and notice. Id. at *4. Defendants moved to dismiss the complaint as untimely, and the plaintiff countered that “she did not discover her injury [in June 2018] because she did not know about her psychological harm.” Id. The court disagreed, finding her claims time-barred and granting summary judgment for the defendants. The court explained that, when the plaintiff filed her tort claim notice, “she knew at least that she had been sexually assaulted and had suffered at least some harm warranting damages,” even if she was unaware of the full extent of her harm. Id.
The court later granted the plaintiff's motion for reconsideration and denied summary judgment, finding that, “[d]ue to Oregon's COVID-19 related tolling of the statutes of limitation, the relevant statutes of limitation did not expire on June 12, 2020.” Wilson, Case No. 1:12-cv-2078-SI (Order, ECF No. 40.)
In Doe, the plaintiffs filed § 1983 claims against the county defendant in 2012 and 2013, alleging numerous instances of sexual abuse by a county juvenile probation officer in the 1980s and 1990s. Id. at *1. The county moved for summary judgment, arguing that the plaintiffs should have known of their injuries and the county's causal role in those injures no later than 1994, when another plaintiff filed a lawsuit against the probation officer and the county alleging sexual abuse. Id. at *8. The district court granted summary judgment. Id. It noted that, although the fact of the probation officer's county employment alone might not have put the plaintiffs on notice of the county's causal connection to the injury, by 1994, it was “common knowledge” that the probation officer had molested juvenile males under his supervision. Id. at *7. Based on that “common knowledge” and the existence of the 1994 lawsuit against the county, the court concluded that “a reasonably diligent investigation would have revealed the facts supporting plaintiffs' claims against the County long before the suits were filed in 2012 and 2013.” Id. at *8.
The Doe opinion resolved three consolidated cases, which were filed on November 16, 2012; April 30, 2013; and May 15, 2013. Doe, 2015 WL 3413181, at * 2.
In contrast to the circumstances in Wilson, Scriber has presented evidence that she did not understand that Battin's conduct was sexual abuse until February 1, 2021, when she began to understand that their relationship was not consensual while processing her psychological trauma with Satran. (Scriber Decl. ¶¶ 7-8, 17-18, 25, 27.) After Satran explained the concept of grooming to Scriber in relation to her uncle, Scriber “started recognizing some of the things that had happened with her uncle as the same things that had -- the same type of behaviors that had happened with [Battin].” (Satran Dep. at 30.) Thereafter, she promptly sought legal counsel, filed tort notice, and brought this action seeking relief. (Id. ¶ 32 (noting that Scriber provided tort claim notice within 77 days and filed this action within 123 days of her February 1, 2021, appointment).) Scriber also attests that, before February 10, 2021, she was “unaware that other litigation had been filed against Battin”-distinguishing her circumstances from the “common knowledge” charged against the Doe plaintiffs. (Id. ¶ 30.)
Defendants nevertheless challenge Scriber's position on three grounds. First, they assert that Scriber's circumstances are “akin” to those of the plaintiff in V.T. v. City of Medford, Case No. 1:09-cv-03007-PA, 2015 WL 300270, at *1 (D. Or. Jan. 22, 2015). (Defs.' Reply at 6.) In V.T., a plaintiff alleged that in 1981, when he was sixteen-years old, two police officers arrested and violently sodomized him while he was in custody. (Id. at *1.) The plaintiff did not disclose the assault until 2007, when he told his mental health counselor. (Id.) He then provided tort notice and filed suit in 2008, asserting federal claims under § 1983 claims and state law claims for sexual battery and vicarious liability. (Id.) The defendants moved for summary judgment on the basis that the claims were untimely because the plaintiff knew of his injury in 1981, which the court granted. (Id. at *6.)
Contrary to defendants' position, the court finds V.T. readily distinguishable from the circumstances presented in this case. In particular, the nature of the misconduct alleged by Scriber-sexual abuse obscured by grooming-differs starkly from the violent misconduct alleged by the V.T. plaintiff. Given that difference, the V.T. plaintiff did not raise arguments regarding delayed discovery of his injury, and the V.T. court, therefore, did not have reason to grapple with the arguments presented in this action.
Second, defendants argue that Scriber's delayed understanding of her psychological harm does not affect the accrual date of her claims because she knew or should have known that Battin's conduct was abusive when it occurred. (Defs.' Reply at 7 (citing Doe, 2015 WL 2412181, at *3 (noting that “plaintiffs cannot defeat the statute of limitations by separating their ongoing psychological injuries from the physical and psychological harm they suffered”).) That argument mischaracterizes the nature of Scriber's alleged injury. Unlike the Wilson and V.T. plaintiffs, who knew that they had been sexually assaulted, and thus knew that they had been injured at the time of the assault, Scriber has presented evidence that she believed that she had consented to Battin's conduct and did not understand that his sexual touching was abusive when it occurred. (Pl.'s Resp. at 22; Scriber Decl. ¶¶ 8, 16, 18; Satran Dep. at 41, 46-47.) Under Ninth Circuit precedent, a jury could find that her belated discovery of the nature of her relationship with Battin-and corresponding discovery that her psychological harm was caused by tortious conduct, not a failed romance-was objectively reasonable in light of Battin's manipulations and his supervisors' inaction. SeeSimmons v. United States, 805 F.2d 1363, 1367-68 (9th Cir. 1986) (affirming trial court's finding that the date on which a plaintiff should have discovered her injury was a question of fact because there was evidence that she did not know that a sexual relationship with her therapist was inappropriate and caused her harm until a psychiatric diagnosis several years later); Gregg v. Hawaii, Dep't of Pub. Safety, 870 F.3d 883, 887-88 (9th Cir. 2017) (“Psychiatric injury and its cause . . . are subtler and more complicated than other injuries.”).
Third, defendants reassert that Scriber's claims accrued in February 2015 because her statements regarding fear of retaliation, belief that she was at-fault for Battin's conduct, and feeling that she could not “say no” to Battin demonstrate that she knew his conduct was abusive at that time. (Defs.' Reply at 6.). As explained above, however, a rational jury could draw different conclusions from those statements. Accordingly, because factual questions remain regarding the timeliness of Scriber's federal claims, defendants' motion for summary judgment should be denied.
Defendants offer no argument that Scriber should have discovered the cause of her injury at some point between February 2015 and February 2021 due to “common knowledge” or other external factors. Even if they had, such argument would not justify summary judgment in this instance because Scriber has offered evidence that, before February 2021, she was not aware that Battin's relationship with her was inappropriate, did not know that Battin's supervisors had a duty to supervise Battin and protect her from his advances, understood the PREA to address only “inmate-on-inmate” sexual assault, and was unaware that other litigation has been filed against Battin. (Scriber Decl. ¶¶ 29-31.)
CONCLUSION
For the above reasons, defendants' motion for summary judgment (ECF No. 7) should be DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within fourteen 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 days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.