Summary
finding claims against the Oregon state police barred by the Eleventh Amendment
Summary of this case from Hernandez v. Jefferson Cnty. Sheriff's OfficeOpinion
CV 01-1422-BR.
February 20, 2002
RODNEY F. WRIGHT, Portland, OR, Plaintiff, Pro Se.
HARDY MYERS, Attorney General, PHILLIP M. BENDER, Assistant Attorney General Department of Justice, Salem, OR, Attorneys for Defendants State of Oregon, Oregon State Police, Oregon Department of Corrections, The Honorable James R. Ellis, James J. McIntyre, John K. Hoover, Michael D. Schrunk, The Honorable Robert L. Kirkman, Diane Rea, Dianne L. Middle, and Ronald C. Ruecker (collectively referred to as State Defendants).
THOMAS SPONSLER, Multnomah County Attorney, GERALD H. ITKIN, Deputy Multnomah County Attorney, Portland, OR, Attorneys for Defendants Multnomah County, Laurie Calderbank, David A. Bordeaux, Tawnie Gray, Sandy Rorick, Dan Noelle, Elyse Clawson, and Alan Trautwein (collectively referred to as County Defendants).
JEFFREY L. ROGERS, Portland City Attorney, J. SCOTT MOEDE, Deputy Portland City Attorney, Portland, OR, Attorneys for Defendants City of Portland, Terry Wagner, and Ronald Sturdevant (collectively referred to as City Defendants.
DAVID K. MILLER, S. MICHAEL ROSE, Miller Wagner LLP, Portland, OR, Attorneys for Defendants Richard Wollert; Carl Landowske; and Richard Wollert, Ph.D., Associates (collectively referred to as Wollert Defendants).
JONATHAN M. RADMACHER, McEwen, Gisvold, Rankin, Carter Streinz, LLP, Portland, OR, Attorneys for Defendants David Audet; Wade P. Bettis, Jr.; John C. Geil; Gary Kahn; and Rieke, Geil Savage, P.C. (collectively referred to as Attorney Defendants).
OPINION AND ORDER
Plaintiff, appearing pro se, filed a Complaint alleging civil rights and state law claims against more than 30 individuals and entities. This matter comes before the Court on five Motions to Dismiss filed by Defendants (#3, #13, #17, #31, #35).
The Motions to Dismiss filed by the Attorney Defendants (#3) and the Wollert Defendants (#35) are GRANTED on the ground that all of Plaintiff's claims against these Defendants are barred by the applicable statute of limitations. Plaintiff's action against these Defendants, therefore, is dismissed with prejudice. The Motions to Dismiss filed by the State, County, and City Defendants are GRANTED in part and DENIED in part as set forth herein.
PROCEDURAL BACKGROUND
The procedural history is taken from Plaintiff's Complaint as well as public state court records.
Plaintiff was arrested in November 1989. On February 5, 1990, after a stipulated facts trial in Multnomah County Circuit Court, Plaintiff was convicted of two counts of Sexual Abuse in the First Degree, seven counts of Sexual Abuse in the Second Degree, and one count of Public Indecency. He was sentenced to five years in the Oregon State Penitentiary. As a condition of parole, Plaintiff also was required to undergo sex offender evaluation and treatment.
Plaintiff unsuccessfully challenged his conviction by direct appeal. See State v. Wright, 109 Or. App. 495, 820 P.2d 824 (1991). Plaintiff then filed a Petition for Writ of Habeas Corpus in federal court pursuant to 28 U.S.C. § 2254 in which he challenged his state court conviction and sentence. Both the district court and the Ninth Circuit denied his petition. See Wright v. Baldwin, 98 F.3d 1348 (9th Cir. 1996) (unpublished opinion affirming denial of Plaintiff's habeas petition). Plaintiff was released from prison in September, 1996. Thereafter, as required by the conditions of his release, Plaintiff underwent sex offender treatment and was required to register as a sex offender.
STANDARDS
On a motion to dismiss under Fed.R.Civ.P. 12(b), all allegations in the complaint are considered true and are construed in the plaintiff's favor. Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir.), cert. denied, 120 S.Ct. 499 (1999). Moreover, when the plaintiff appears pro se, the court "must liberally construe [the plaintiff's] inartful pleading." Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996). When the plaintiff appears pro se in a civil rights case in particular, the court must construe the pleadings liberally and afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). A pro se litigant must be given leave to amend his complaint unless it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Sands v. Lewis, 886 F.2d 1166, 1168 (9th Cir. 1989) (citations omitted).
DISCUSSION
Plaintiff contends his arrest, prosecution, conviction, unsuccessful direct appeal, and the restrictive conditions of his post-prison supervision were the result of a conspiracy by Defendants to deprive him of his civil rights based on his race in violation of the United States Constitution and various federal and state statutes. Eleven years after his conviction, he now seeks to recover money damages from the City of Portland, Multnomah County, and the State of Oregon as well as from the detectives who arrested him, the lawyers who represented him, the judges who tried and sentenced him, the individuals involved in his parole and post-prison supervision, and the doctors who administered the required sex offender treatment.
Defendants raise various challenges to Plaintiff's Complaint, including judicial and prosecutorial immunity; failure to comply with Oregon's Tort Claims Act, Or. Rev. Stat. § 30.275; lack of personal jurisdiction; failure to state a claim; and failure to commence this action within the time limited by law. The majority of Plaintiff's claims appear to be time-barred; therefore, the Court first addresses Defendants' arguments based on the statute of limitations.
I. Plaintiff's Claims that Accrued Prior to September 26, 1999, Are Time-Barred.
Plaintiff filed his Complaint on September 26, 2001. He asserts claims arising from actions that occurred between 1989 and 1999. The bulk of Plaintiff's claims stem from his arrest and conviction in 1989 and 1990, his efforts to obtain post-conviction relief in 1992, and his post-prison supervision in 1996. In addition, he challenges his detention beginning in November 1999 and the requirement that he register as a sex offender in December 1999. Plaintiff alleges civil rights claims under 42 U.S.C. § 1981, 1983, 1985(3), and 1986.
Claims arising under §§ 1981, 1983, 1985(3), and 1986 are characterized as personal injury actions, and the applicable statute of limitations for each is determined by state law. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1140 (9th Cir. 2000) (§ 1981); Davis v. Harvey, 789 F.2d 1332, 1333 (9th Cir. 1986) (§ 1983). Personal injury claims arising in Oregon are subject to a two-year statute of limitations under Or. Rev. Stat. § 12.110(1). Plumeau v. Yamhill County School Dist. No. 40, 130 F.3d 432, 438 (9th Cir. 1997). Plaintiffs' federal claims, therefore, are subject to a two-year statute of limitations.
Plaintiff's claims under §§ 1985(3) and 1986 consist of allegations that Defendants conspired to violate Plaintiff's constitutional rights. For purposes of the statute of limitations analysis, therefore, the Court treats these claims the same as the claims brought under § 1983.
Plaintiff was incarcerated in April 1990. While Plaintiff was incarcerated, Or. Rev. Stat. § 12.160(3) tolled the running of the statute of limitations for claims that accrued during his imprisonment. Until it was amended in 1997, Or. Rev. Stat. § 12.160(3) provided:
Or. Rev. Stat. § 12.160 was amended effective October 4, 1997, to remove the provision tolling the limitations period for commencement of a cause of action by incarcerated persons. See 1997 Oregon Laws Chapter 339.
If, at the time a cause of action accrues, any person entitled to bring an action . . . is . . . imprisoned on a criminal charge, . . . the time of such disability shall not be a part of the time limited for the commencement of the action; but the period within which the action shall be brought shall not be extended more than five years by any such disability, nor shall it be extended in any case longer than one year after such disability ceases.
Plaintiff alleges his parole commenced on July 23, 1996. The Court infers, therefore, that Plaintiff was released from physical custody at that time. Pursuant to Or. Rev. Stat. § 12.160(3), Plaintiff had to file his action within one year after his release, or two years from the date his claim accrued, whichever was later. See Boag v. Chief of Police, City of Portland, 669 F.2d 587, 589 (9th Cir. 1982) ("Under the most liberal construction given to § 12.160 by the Oregon courts the plaintiff may file suit (1) within the applicable statute of limitations or (2) within one year of the date of termination of disability, whichever is later.").
While state law determines the period of limitation, federal law determines when a cause of action accrues. Cline v. Brusett, 661 F.2d 108, 111 (9th Cir. 1981). Under federal law, an action accrues when "a plaintiff knows or has reason to know of the injury which is the basis of his action." Id. Plaintiff has not pled any facts from which the Court could infer that Plaintiff did not know of his alleged injury at the time of the alleged wrongful conduct. The Court, therefore, concludes each of Plaintiff's claims accrued at the time of the alleged wrongful conduct.
Based on the foregoing, claims arising from conduct that allegedly occurred prior to Plaintiff's incarceration in 1990 are time-barred. The tolling provision of Or. Rev. Stat. § 12.160 does not apply to these claims because Plaintiff was not incarcerated at the time they accrued. See id. See also Or. Rev. Stat. § 12.160 (1995). Plaintiff's claims arising from conduct that allegedly occurred between April 1990 and September 26, 1996, also are time-barred. Plaintiff had one year following his release on September 26, 1996, to file any action regarding the claims that accrued during his incarceration. Plaintiff, however, did not file the Complaint in this matter until September 26, 2001, which was five years after his release from prison.
II. Claims that Accrued Within Two Years of September 26, 2001, Are Not Time-Barred.
Although it is difficult to determine the exact nature of Plaintiff's many claims, it is clear Plaintiff's allegations also involve events occurring within the two-year limitations period. Complaint at 21, 24. The Court, therefore, must determine whether Plaintiff can effectively state claims against any of the Defendants based on these later events.
Plaintiff alleges he was detained for 30 days at the Multnomah County Justice Center beginning on November 4, 1999, for alleged post-prison supervision violations. He contends his detention violated various Oregon statutes and was part of a racially-motivated conspiracy to deprive him of his rights under state and federal constitutions. Plaintiff also alleges Defendants Sturdevant and Wagner, detectives with the City of Portland Police Bureau, compelled Plaintiff to sign sex offender registration forms between November 16, 1999, and December 11, 1999. Plaintiff also challenges numerous Oregon statutes as unconstitutional.
Plaintiff names the following Defendants in connection with his claims arising during and after November 1999: Multnomah County and its employees Gray, Trautwein, Calderbank, Rorick, Clawson; City of Portland and its employees Detectives Sturdevant and Wagner (Plaintiff also alleges Detectives Sturdevant and Wagner were "registering agents on behalf of the Oregon State Police"); and Oregon State Police and its employee Ruecker. Only Plaintiff's claims against these Defendants that arose during and after November 1999 are potentially viable; therefore, Plaintiff's remaining claims against these and all other Defendants must be dismissed with prejudice.
A. Plaintiff Failed to Allege Compliance With Oregon's Tort Claims Act.
Or. Rev. Stat. § 30.275 prohibits any action based on state law against a public body or an officer, employee, or agent of a public body unless the plaintiff first gives notice of the claim within 180 days after the alleged loss or injury. In order to plead a state law tort claim against a public body or its employees, a plaintiff must allege sufficient notice was given to satisfy the requirements of Or. Rev. Stat. § 30.275. Plaintiff failed to do so. In his Complaint, therefore, Plaintiff fails to plead any state law tort claim against the City of Portland, Multnomah County, the State of Oregon, or any of their employees acting in their official capacities.
Although the Court is uncertain whether Plaintiff can correct this deficiency by repleading, the Court grants Plaintiff leave to amend his Complaint to address the issue of notice as set out above with respect to state law claims against these Defendants that accrued on or after September 26, 2001.
B. The Record is Inadequate to Determine Whether Defendants Were Properly Served.
The Multnomah County Defendants, the City Defendants, and the State Defendants contend this Court lacks personal jurisdiction over them because Plaintiff failed to properly serve them with the Complaint. None of these Defendants, however, cites any authority in support of their argument.
A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P. 4. However, Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint. Nonetheless, without substantial compliance with Rule 4 neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction.
Direct Mail Specialists, Inc. v. Eclat Computerized Technologies, Inc., 840 F.2d 685, 688 (9th Cir. 1988) (internal quotations and citations omitted).
Fed.R.Civ.P. 4(j)(2) provides for service upon a state, municipal corporation, or other governmental organization "by delivering a copy of the summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by" state law. None of the Defendants addresses whether Plaintiff effected service by serving a copy of the Summons and Complaint on the Defendants' chief executive officers. Instead, each Defendant skips to the second part of Fed.R.Civ.P. 4(j)(2) and contends generally that Plaintiff failed to effect service under Oregon law. Aside from citing to ORCP 7, however, no Defendant analyzes the requirements for proper service under Oregon law.
In Baker v. Foy, 310 Or. 221, 797 P.2d 349 (1990), the Oregon Supreme Court articulated a two-part test for determining the adequacy of service under ORCP 7. First the court must determine whether the method used was permitted by ORCP 7 D and was accomplished in accordance with ORCP 7 D(2). Id. at 228-29. If so, service is presumed adequate. If the requirements of ORCP 7 D are not met, then the court must consider whether service is otherwise adequate under the reasonable notice standard set forth in ORCP 7 D(1). Id. The court must examine the totality of the circumstances as they were known to the plaintiff at the time of service and determine whether service was adequate to provide the defendant with reasonable notice of the existence and pendency of the action against him. Hoeck v. Schwabe, Williamson Wyatt, 149 Or. App. 607, 617, 945 P.2d 534 (1997).
The Court cannot determine from the existing record whether service was adequate under Oregon law. It is unclear whether Plaintiff properly effected service on each of the Defendants, and there is no evidence as to whether the method of service was "reasonably calculated, under all the circumstances, to apprise the defendant of the pendency of the action and to afford the defendant a reasonable opportunity to appear and defend." Baker, 310 Or. at 229.
If Plaintiff served Defendants by certified mail only, such service is not specifically permitted under ORCP 7 D(3) on any of the City, State, or County Defendants in either their official or individual capacities. Plaintiff, therefore, bears the burden to show that service was reasonably calculated to inform Defendants of the action against them and to afford them a reasonable opportunity to defend. See Edwards v. Edwards, 310 Or. 672, 678-79, 801 P.2d 782 (1990). Plaintiff must plead facts showing service was made on each Defendant in compliance with Oregon law because Plaintiff bears the burden of establishing adequacy of service.
If Defendants later succeed in establishing that Plaintiff did not properly serve them, any remaining claims may be barred by the two-year statute of limitations. Although Plaintiff may correct inadequate service by properly serving Defendants, any such corrected service will be beyond the two-year limitation period and, therefore, Defendants may still be able to establish such claims are time-barred.
Based on the foregoing and due to an inadequate record, the Court denies Defendants' Motion to Dismiss for lack of personal jurisdiction based on improper service of process. The Court, however, grants Defendants leave to raise this issue again based on a more complete record.
C. The Record Is Insufficient to Determine Whether Defendants Sturdevant and Wagner Are Entitled to Qualified Immunity.
Detectives Sturdevant and Wagner contend they are entitled to qualified immunity. The Court finds it difficult, however, to determine from the Complaint and Defendants' Motions the exact nature of Plaintiff's allegations against Detectives Sturdevant and Wagner. The Court, therefore, cannot determine at this stage of the litigation whether Detectives Sturdevant and Wagner are entitled to immunity. Accordingly, the Court denies the City Defendants' Motion to Dismiss Plaintiff's claims against Detectives Sturdevant and Wagner to the extent the Motion is based on the defense of qualified immunity. The Court, however, grants these Defendants leave to raise this issue again when the record has been developed more fully.
The Court notes it would be more appropriate to raise the issue of qualified immunity by a motion for summary judgment after the factual record has been more fully developed.
D. Defendants State of Oregon, Oregon State Police, and Ruecker in His Official Capacity Are Immune Pursuant to the Eleventh Amendment.
Defendants State of Oregon and the Oregon State Police and its employee Ronald Ruecker contend Plaintiff's claims against them are barred under the Eleventh Amendment. Under the Eleventh Amendment, "an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 663 (1974). Immunity under the Eleventh Amendment extends to employees of the State who are sued in their official capacity. Will v. Michigan Dept. of State Police, 491 U.S. 58, 67 (1989).
Although the Oregon Department of Corrections and its employees also contend Plaintiff's claims against them are barred by the Eleventh Amendment, their contentions are moot in light of the Court's ruling that Plaintiff's claims against these Defendants are barred by the statute of limitations.
The Eleventh Amendment provides: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by citizens or Subjects of any Foreign State." U.S. Const. amend. XI.
Neither the State of Oregon nor the Oregon State Police have consented to this suit. Plaintiff's claims against them for money damages, therefore, are barred by the Eleventh Amendment. Plaintiff, however, also named Defendant Ruecker both "personally and in his official capacity as director of the Oregon State Police." Complaint at 6, ¶ 31. Insofar as Plaintiff seeks to hold Defendant Ruecker liable in an individual capacity, the Eleventh Amendment does not bar Plaintiff's claim.
Plaintiff also asserts claims for injunctive relief. Plaintiff alleges the Oregon statutes requiring sex offender treatment and registration are unconstitutional, and he seeks to enjoin the State Defendants from enforcing them. The Eleventh Amendment does not bar Plaintiff's claims against the State Defendants for prospective injunctive relief. See Austin v. State Indus. Ins. Sys., 939 F.2d 676, 680 n. 2 (9th 1991). Plaintiff's claims for prospective injunctive relief against the State Defendants, therefore, remain potentially viable.
E. The Rooker-Feldman Doctrine Does Not Bar Plaintiff's Action.
The State, County, and City Defendants also contend Plaintiff's action is barred by the Rooker-Feldman doctrine, which prohibits federal courts from reviewing final determinations of state court proceedings. See Worldwide Church of God v. McNair, 805 F.2d 888, 890 (9th Cir. 1986). Defendants assert Plaintiff's claims are "directed at getting this Court to review state court decisions made during his state court criminal proceedings." After reviewing the Complaint, the Court, however, cannot determine that was Plaintiff's only intent. Plaintiff alleges he was illegally detained beginning November 4, 1999, and improperly compelled to register as a sex offender in December 1999. He also challenges the constitutionality of various Oregon statutes regarding sex offender registration. Construing the Complaint in the light most favorable to Plaintiff, the Court cannot conclude that Plaintiff only seeks review of a state court determination. In his prayer for relief, however, Plaintiff specifically asks to have his state "arrest and conviction record" expunged. The Court concurs that this type of relief is barred by Rooker-Feldman. The Court, therefore, directs Plaintiff to strike that language from his prayer if he chooses to amend his Complaint.
III. Summary of Permissible Amendments.
Plaintiff may amend his Complaint only as to the claims against the following Defendants: State of Oregon (for injunctive relief only), Multnomah County, Gray, Trautwein, Calderbank, Rorick, Clawson, City of Portland, Sturdevant, and Wagner.
Plaintiff's Amended Complaint may not include any claims based on actions that occurred more than two years before Plaintiff filed his original Complaint.
In addition, Plaintiff must plead facts to show he complied with the requirements of the Oregon Tort Claims Act, Or. Rev. Stat. § 30.275, with respect to any state law claims against public bodies or their employees. If Plaintiff cannot assert truthfully that he has complied with the Act's requirements, he may not plead any state law claims against any public bodies or their employees acting in their official capacities.
Plaintiff also must plead facts sufficient to enable the Court to determine whether Plaintiff adequately served all remaining Defendants with the original Summons and Complaint pursuant to ORCP 7.
Finally, to the extent Plaintiff asserts claims based on a racially-motivated conspiracy arising within two years of the filing of his original Complaint, Plaintiff must plead sufficient facts to support such a conspiracy.
CONCLUSION
The Motions to Dismiss filed by the Attorney Defendants (#3) and the Wollert Defendants (#35) are GRANTED on the ground that all of Plaintiff's claims against these Defendants are barred by the applicable statute of limitations. Plaintiff's action against these Defendants is DISMISSED WITH PREJUDICE. The Motions to Dismiss filed by the State, County, and City Defendants are GRANTED in part and DENIED in part as set forth above.
The Court grants Plaintiff leave to amend his Complaint by March 22, 2002, consistent with this Opinion and Order.
IT IS SO ORDERED.