Opinion
Civil No. 02-6314-TC.
July 14, 2004
FINDINGS AND RECOMMENDATION
Plaintiff asserts four claims arising from the entry of plaintiff's home by Deschutes County Sheriff Deputies. Defendant removed this action from state court to federal court on the basis of plaintiff's § 1983 claim. Defendant now brings a motion (#36) for summary judgment against plaintiff's three state law claims and the § 1983 claim.
As discussed below, the § 1983 claim fails. As such, subject matter jurisdiction is not present and the remainder of the action should be remanded to state court.
Standards
Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Rule 56(c) mandates the entry of summary judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. Id. at 32. There is also no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355 (1986); Taylor v. List, 880 F.2d 1040 (9th Cir. 1989).On a motion for summary judgment, all reasonable doubt as to the existence of a genuine issue of fact should be resolved against the moving party. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1976). The inferences drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.Valadingham v. Bojorquez, 866 F.2d 1135, 1137 (9th Cir. 1989). Where different ultimate inferences may be drawn, summary judgment is inappropriate. Sankovich v. Insurance Co. of North America, 638 F.2d 136, 140 (9th Cir. 1981).
Discussion
Plaintiff's allegations for the § 1983 claim are based solely on the conduct of the Deputies and not on any Deschutes County custom or policy. As such, the § 1983 claim fails as Deschutes County cannot be liable on the basis of respondeat superior.Monell v. New York City, 436 U.S. 658, 691 (1978).
Despite plaintiff's arguments to the contrary, dismissal of the § 1983 claim is proper as Deschutes County is the only defendant named by plaintiff. Plaintiff contends he was precluded by the Oregon Tort Claims Act from naming the Deputies as individual defendants. Such contention is incorrect. Rogers v. Saylor, 306 Or. 267, 272, 286 (1988). Plaintiff states that he could amend the complaint now to add the Deputies as individual defendants. However, the statute of limitations has expired. Plaintiff contends that the statute of limitations problem can be overcome with the rule allowing amendments to relate back to the date of the original pleadings under certain circumstances. The rule, however, is not applicable. It requires a mistake concerning the identity of the proper party. Plaintiff knew the identity of the parties. An error of judgment or mistake about who should be sued under the circumstances is not a "mistake" covered by the rule.Louisiana-Pacific Corporation v. Asarco, Inc., 5 F.3d 431, 434 (9th Cir. 1993); Rendall-Speranza v. Nassim, 107 F.3d 913, 918-920 (D.C. Cir. 1997).
Plaintiff incorrectly cites ORCP 23(c). Fed.R.Civ.P. 15(c) is applicable in Federal Court. However, the analysis of the rules is the same in the circumstances of this case due to the similarity of the rules.
Conclusion
Defendant's motion (#36) for summary judgment should be allowed to the extent the § 1983 claim should be dismissed. As such, subject matter jurisdiction is not present and the remainder of the action should be remanded to the Deschutes County Circuit Court.