Doe v. Josephine County
Filing
319
ORDER ADOPTING IN PART Magistrate Judge Clarke's Findings and Recommendation (291) as follows: ORDER Granting Motion for Summary Judgment (144); Granting Motion for Summary Judgment (146); Granting Motion for Summary Judgment (150); Gr anting Motion for Summary Judgment (153); Granting Motion for Summary Judgment (162); Denying Motion for Partial Summary Judgment (167); Granting Motion for Summary Judgment (171); Granting Motion for Summary Judgment (173); Granting Motion for Summary Judgment (175); Granting Motion for Summary Judgment (177); and Denying Motion to Strike (268). Signed on 5/18/2015 by Chief Judge Ann L. Aiken. Associated Cases: 1:12-cv-02080-CL, 1:13-cv-00724-CL, 1:13-cv-00825-CL (lmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JOHN DOE, JOHN DOE 2, JOHN DOE 3
and JOHN DOE 4,
Plaintiffs,
v.
COUNTY OF JOSEPHINE,
Defendant.
JOHN DOE 5, JOHN DOE 6, and
JOHN DOE 7,
Plaintiffs,
v.
COUNTY OF JOSEPHINE,
Defendant.
JACK DOE, JACK DOE 2, JACK DOE 3
and JACK DOE 4, J.T. and J.J.,
Plaintiffs,
v.
COUNTY OF JOSEPHINE,
Defendant.
1
- OPINION AND ORDER
Lead Case 1:12-cv-2080-CL
Consolidated cases:
1:13-cv-0724-CL
1:13-cv-0825-CL
AIKEN, Chief Judge:
In these consolidated actions, plaintiffs filed suit under 42
U.S.C.
§
1983 alleging federal constitutional violations and state
law claims of negligence and vicarious liability against Josephine
County
(the
County).
Plaintiffs'
claims
arise
from
numerous
instances of sexual abuse committed by a County probation officer,
Ray Luckey, in the 1980s and 1990s.
On March 23, 2015, Magistrate Judge Clarke issued a Report and
Recommendation in this case, recommending that defendant's motions
for summary judgment be granted on plaintiffs' state law claims and
denied on their
1983 claims. Judge Clarke also recommends that
§
plaintiffs' motion for partial summary judgment on the issue of
liability be denied. Plaintiffs and defendant object. When either
party objects to any portion of a magistrate judge's report and
recommendation,
the
district
court
must
make
a
de
novo
determination of that portion of the magistrate judge's report. See
28
U.S.C.
§
636(b) (1);
Business Machines,
Inc.,
McDonnell
656
Douglas
F.2d 1309,
Corp.
1313
v.
Commodore
(9th Cir.
1981).
Plaintiffs and defendant filed timely objections, and I have given
de novo review to Magistrate Judge Clarke's rulings.
I adopt the
Report and Recommendation, in part.
DISCUSSION
The background facts
of these· cases
are
set
forth
in the
parties' briefing and the Report and Recommendation and will not be
2
- OPINION AND ORDER
repeated
here.
In
essence,
plaintiffs
allege
that
they
were
sexually assaulted and abused by Luckey while adolescent boys in
the 1980s and early 1990s; plaintiffs are now in their thirties and
forties.
In
many
cases,
Luckey
was
the
plaintiff's
juvenile
probation officer at the time of the abuse. Plaintiffs allege that
County officials had an unwritten practice of allowing Luckey to
contact
juveniles
contact"
and
"without
contrary
supervision or documentation of the
to
"established
protocols." Sec. Am. Compl. at 7-8
(doc.
policies,
laws,
and
119-1). Plaintiffs also
allege that the County knew or should have known that Luckey "posed
a serious danger to juvenile males because of [his] predilection to
sexually molest and psychologically injure male juveniles." Id.
The
County
moved
for
summary
judgment
on
grounds
that
plaintiffs' claims were barred by the statute of limitations.
In
turn,
to
plaintiffs
liability,
arguing
moved
that
for
the
partial
County
summary
had
judgment
notice
of
as
Luckey's
inappropriate interactions with juvenile boys for many years but
failed to supervise or monitor his conduct.
In ruling on the parties' motions for summary judgment, Judge
Clarke found that the Oregon statute of repose barred plaintiffs'
state law claims because they were filed more than ten years after
the County's alleged negligent supervision of Luckey. See Or. Rev.
Stat.
§
12.115 (1)
("In no event shall any action for negligent
injury to person or property of another be commenced more than 10
3
- OPINION AND ORDER
years
from
However,
the
Judge
date
of
Clarke
the
act
found
that
or
omission
questions
complained
of
fact
of.") .
precluded
summary judgment on plaintiffs' § 1983 claims, because reasonable
minds could differ as to when plaintiffs knew or should have known
of their psychological injuries and the County's involvement in
causing
them.
Judge
Clarke
also
found
that
questions
of
fact
precluded summary judgment regarding the County's liability.
I agree with Judge Clarke's reasoned analysis regarding the
Oregon statute of repose,
and I find no error.
claims of negligence against the County,
Plaintiffs allege
and § 12.115 imposes a
ten-year statute of repose from the date of the alleged negligence.
See Or. Rev. Stat. § 12.115(1). Plaintiffs' reliance on§ 12.117 the statute of limitations for child abuse claims - is misplaced,
as that statute applies to private rather than public parties. See
Doe I v. Lake Oswego Sch. Dist., 353 Or. 321, 335-36, 297 P.3d 1287
(2013)
(statute of limitations for child abuse applies to claims
against private actors) .
suit more
than ten years
It is undisputed that plaintiffs filed
after the County's
supervision of Luckey. Therefore,
alleged negligent
I agree that plaintiffs'
state
law claims are barred.
However, I disagree that questions of fact exist regarding the
accrual of plaintiffs'
§ 1983 claims.
Instead,
I
find that the
statute of limitations bars plaintiffs' claims and requires summary
judgment in favor of defendant.
4
- OPINION AND ORDER
Oregon's two-year statute of limitations for personal injuries
applies
to
actions
brought
under
1983,
§
and
plaintiffs
were
required to file suit within two years after the accrual of their
claims. Sain v. City of Bend, 309 F. 3d 1134, 1139 (9th Cir. 2002);
Or.
Rev.
Stat.
November 16,
plaintiffs~
§
2012;
12. 110 ( 1) .
April
30,
Plaintiffs
2013;
filed
these
and May 15,
actions
2013.
Thus,
on
if
claims accrued more than two years before those filing
dates, their claims are barred by the statute of i~mitations.
While Oregon's statute of limitations applies to plaintiffs'
§
1983
claims,
federal
law
governs
the
accrual
claims. Wallace v. Kato, 549 U.S. 384, 388
date of a
§
(2007)
date
of
those
("[T]he accrual
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
"when the
plaintiff
knew
or
in
the
exercise of reasonable diligence should have known of the injury
and the cause of that injury." Lukovsky v.
City
&
Cnty.
of San
Francisco, 535 F. 3d 1044, 1050 (9th Cir. 2008); see also Bonneau v.
Centennial Sch. Dist. No. 28J, 666 F.3d 577, 581 (9th Cir. 2012) . 1
Importantly,
the
"actual
1
injury"
is
the
harm
alleged
in
the
Federal accrual law thus incorporates the discovery rule,
which delays accrual of a claim until the plaintiff knew or
should have known of the alleged injury and its cause. Lukovsky,
535 F.3d at 1048; Mangum v. Action Collection Serv., Inc., 575
,F.3d 935, 940-41 (9th Cir. 2009) (accord). "There is a twist to
the discovery rule: The plaintiff must be diligerit in discovering
the critical facts." Bibeau v. Pac. Nw. Research Found. Inc., 188
F.3d 1105, 1108 (9th Cir. 1999).
5
- OPINION AND ORDER
complaint,
not
the
"legal
wrong"
that
renders
the
injury
Q
actionable. Lukovsky, 535 F. 3d at 104 9-50. Regardless, "a plaintiff
wh~
did not actually know that his rights were violated will be
barred from bringing his claim after the running of. the statute of
limitations,
if
he
should
have
known
in
the
exercise
of
due
diligence." Bibeau v. Pac. Nw. Research Found. Inc., 188 F. 3d 1105,
1108
(9th Cir. 1999).
Here, plaintiffs admit that they knew they had been abused by
Luckey, and no plaintiff asserts that he did not know or realize
that Luckey's abuse caused him injury at the time. See Pls.' Decls.
at 2 (docs. 195-203). Further, given plaintiffs' allegations about
the severity of the abuse,
they would have known that Luckey's
actions caused them injury.
See Ernstes v.
1338,
(the plaintiff's "age at the time of
1341
(S.D.
Ind.
1994)
Warner,
860 F.
Supp.
the alleged abuse and the nature of the abuse" left no question of
fact concerning whether the plaintiff "knew or should have known of
the
alleged
injury and
its
source") .
Thus,
plaintiffs
knew or
should have known they were injured at the time Luckey abused them
or at least by the time they reached the age of majority.
Nonetheless, plaintiffs argue that their
§
1983 claims did not
accrue until they became aware that their lifelong, psychological
injuries were caused by the sexual abuse they endured. Plaintiffs
maintain that
depression,
6
their ongoing psychological
anxiety,
substance
- OPINION AND ORDER
abuse,
injuries
violence,
including
PTSD,
and
difficulties with interpersonal relationships - can be caused by
many factors; plaintiffs thus contend that they did not realize,
and
could
not
have
realized,
the
connection
between
these
psychological harms and Luckey's abuse until shortly before they
filed suit. Accordingly, plaintiffs argue that their inability to
discern the cause of their ongoing psychological injuries delayed
the accrual of their claims against the County.
In so arguing,
plaintiffs treat the psychological problems
they have experienced in adulthood as separate and distinct from
the injuries they admittedly suffered at the time of their abuse as
juveniles.
See Pls.'
Resp.
to Def.'s Objection at 2
(doc.
317)
("each Plaintiff suffered two distinct injuries"); Pls.' Combined
Opp'n
to
JVlot.
plaintiffs'
'injuries,'
Summ.
Judg.
psychological
at
25
injuries
(doc.
"are
192)
(arguing
separate,
distinct from the physical assault,
that
independent
for purposes of
accrual of the statute of limitations"). However, plaintiffs cannot
defeat
the
statute
of
limitations
by
separating
their
ongoing
psychological injuries from the physical and psychological harm
they suffered at the time of Luckey's abuse; all of the harm arose
from
the
same
wrongful
acts
and
all
of
the
harm
constitutes
plaintiffs' "injury" for purposes of claim accrual. See K.E.S. v.
United States,
38 F.3d 1027, 1030
(8th Cir.
1994)
(rejecting the
argument that the plaintiff's claim was "only for psychological
injury" arising from prior sexual abuse,
7
- OPINION AND ORDER
and that· such claim did
not accrue until she learned that her psychological injury was
caused by the abuse); Raethke v. Ore. Health Sci. Univ.,
App. 195, 199, 837 P.2d 977 (1992)
115 Or.
("The cases are clear, however,
that one may not avoid the Statute of Limitations by characterizing
the harm as two different kinds of injuries rather than one injury
that has caused more damage than was originally contemplated.") . 2
Moreover, it is well-settled that a "cause of action accrues,
and the statute of limitations commences to run, when the wrongful
act or omission results in damages.
even though the full
The cause of action accrues
extent of the injury is not then known or
predictable." Wallace, 549 U.S. at 391 (citation omitted)
added).
"Were it otherwise,
(emphasis
the statute would begin to run only
after a plaintiff became satisfied that he had been harmed enough,
placing the supposed statute of repose in the sole hands of the
party seeking relief." Id. In other words, contrary to plaintiff's
argument, not all injury arising from or caused by tortious conduct
must
be
realized
before
a
cause
of
action
accrues.
Even
if
plaintiffs did not realize or appreciate·the severity or life-long
2
Plaintiffs cite Sackman v. Liggett Group, Inc., 167 F.R.D.
6 (E.D.N.Y. 1996) to support their "separate and distinct"
psychological injuries. However, Sackman involved New York's
"two-injury" rule in the context of medical injuries, and that
rule does not apply here. Regardless, under the New York twoinjury rule, "diseases that share a common cause may nonetheless
be held separate and distinct where the presence of one is not
necessarily a predicate for the other's development." Id. at 13
(citation omitted). Here, plaintiffs' injuries suffered at the
time of the abuse were the necessary predicate for the
development of their psychological injuries.
8
- OPINION AND ORDER
effects of their psychological injuries at the time of the abuse,
that fact does not delay the accrual' of their claims or "restart"
the statute of limitations.
Indeed, numerous courts have held that a plaintiff need not
realize the extent, seriousness, or permanence of an injury for a
claim to accrue. See Soliman v.
972
(9th Cir.
2002)
Philip Morris Inc., 311 F.3d 966,
(claim accrues when plaintiff first becomes
aware that defendant's conduct caused injury); Gonzalez v. United
States, 284 F.3d 281,
289
(1st Cir.
2002)
("[t]he plaintiff need
not know either the full extent of the injury," or "that it was
negligently inflicted" for a cause of action to accrue)
(citation
omitted); Goodhand v. United States, 40 F. 3d 209, 212-13 (7th Cir.
1994)
of
("The statute of limitations begins to run upon the discovery
the
injury,
even
if
the
full
discovered until much later . .
extent
of
the
injury
is
not
[T]o treat the complications of
an injury as a new injury is pretty much to erase the rule that the
plaintiff cannot wait to sue until he realizes the full extent of
his injury"); Gregg v. Haw. Dep't of Pub. Safety, 2014 WL 4129525,
at *9 (D. Haw. Aug. 18, 2014)
("Plaintiff's claims accrued when she
was aware that she suffered injury from Defendants, and the fact
that it was not until later that Plaintiff was formally diagnosed
and/or that she learned the full extent of injury does not make the
accrual date a moving target."); Maldonado-Gonzalez v. Puerto Rico
Police, 927 F. Supp. 2d 1, 11 (D.P.R. 2013)
9
- OPINION AND ORDER
("Notice of the injury
occurs when there exist some outward or physical signs through
which the aggrieved party may become aware and realize that he has
suffered an injurious after effect,
which when known becomes a
damage even if at the time its full scope and extent cannot be
weighed.")
F. 3d 13,
(quoting Torres v.
19
(1st Cir.
Supp. 2d 657, 665
E. I.
Dupont De Nemours
2000)); Bohrer v.
(N.D. W.Va. 2010)
City Hosp.,
&
Co.,
Inc.
219
681 F.
("To be aware of an injury, a
plaintiff need not know the full extent of his or her injury. The
limitations period will run even though the ultimate damage is
unknown or unpredictable.")
For
example,
in
(citation omitted)
Soliman,
the
Ninth
Circuit
held
that
a
plaintiff's discovery of a subsequent injury does not delay the
accrual of a claim. Soliman, 311 F.3d at 972. There, the plaintiff
filed suit alleging numerous injuries arising from his decades-long
addiction
to
tobacco
products.
Soliman,
311
F.3d
at
970.
The
district court dismissed the plaintiff's action as time-barred, and
the Ninth Circuit affirmed on appeal.
In so ruling,
the Ninth
Circuit specifically rejected the plaintiff's argument that the
statute of limitations did not begin to run until his subsequent
diagnosis of respiratory ailments. Id. at 972. The court explained:
The relevant date, however, is not when Soliman knew
about [his respiratory disorders], but when he should
have known of any significant injury from defendants'
wrongful conduct . . . Soliman alleges that he suffered a
number of significant injuries from the cigarettes he
smoked. The injury he should have known about first i·s
the one that starts the statute of limitations.
10
- OPINION AND ORDER
Id.
(emphasis
added) . 3
Thus,
the
Ninth
Circuit
held
that
the
statute of limitations began running when the plaintiff knew or
should have known of his addiction. Id. at 974-75.
Applying this well-established premise of federal accrual law,
several courts have reached similar conclusions in the context of
psychological
injuries
arising
from childhood sexual
abuse.
In
Varnell v. Dora Consol. Sch. Dist., 756 F.3d 1208 (lOth Cir. 2014),
the plaintiff filed suit against a school district under
§
1983 to
recover damages arising from a coach's sexual abuse. The plaintiff
argued that her claims did not accrue "until she had discovered the
extent of the injury inflicted on her by the abuse," because she
was not able to connect her "chronic psychiatric injuries" to her
coach's abuse until she underwent counseling several years later.
Id.
at 1215.
The Tenth Circuit disagreed:
"Plaintiff knew long
before she filed suit all the facts necessary to sue and recover
damages. Although she may not have known how harmful
was,
[the]
abuse
'[t]he cause of action accrues even though the full extent of
the injury is not then known or predictable.'" Id. at 1216 (quoting
Wallace,
549
U.S.
at
391);
see
also
K.E.S.,
38
F.3d
at
1030
(rejecting the plaintiff's argument that her claim arising from
prior
sexual
abuse
did
not
accrue
until
she
learned
that
her
psychological injury was caused by the abuse) .
3
Though the case was brought under California rather than
federal law, the analysis and application of the discovery rule
leads to the same result. See Soliman, 311 F.3d at 971-73.
11
- OPINION AND ORDER
Similarly,
in
Singleton
v.
Clash,
951
F.
Supp.
2d
578
(S.D.N.Y. 2013), the district court discussed the accrual of claims
alleged by victims of childhood sexual abuse against their abuser
under 18 U.S.C.
plaintiffs
1
2255(a).
argument
that
Id.
at 587-88.
their
claims
The court rejected the
accrued only when
they
connected their ongoing psychological injuries to the abuse they
suffered as minors. The district court reasoned that "[t]he dates
on which the plaintiffs connected their psychological injuries to
their victimizations are irrelevant to the dates on which their
claims accrued." Id. at 58 8. Thus,
for
the
purpose
of
accrual
" [ t] he plaintiffs 1
under
victimizations by the defendant,
Section
2255
1
injuries 1
were
their
not their appreciation of the
subsequent psychological harm." Id. at 589. The Court of Appeals
for
the Second Circuit affirmed,
finding that
"the plaintiffs 1
complaints indicate that they were aware of this alleged conduct at
the time that it occurred." S.M. v. Clash,
558 Fed. Appx.
44,
45
(2d Cir. 2014); see also Doe 171 v. Order of Saint Benedict, 2012
WL 1410320, at *2-3 (D.P.R. April 20, 2012)
(claim seeking redress
for childhood sexual abuse was time-barred where plaintiff knew the
identity and conduct of abuser at the time of the abuse); Cooksey
v. Portland Pub. Sch. Dist., 143 Or. App. 527, 534, 923 P.2d 1328
( 1996)
("That plaintiff later experienced physical and emotional
symptoms resulting from the same incidents [of abuse] does not mean
that the claims arising out of those incidents accrued later.").
12
- OPINION AND ORDER
Likewise, this Court has found that the statute of limitations
barred claims arising from a physical and sexual assault allegedly
suffered at the hands of City of Medford police officers when the
plaintiff was a juvenile. V.T. v. City of Medford, 2015 WL 300270
(D. Or. Jan. 22, 2015). There, the plaintiff disclosed the abuse to
a mental health counselor over twenty-five years later and filed
suit against the city. The city argued that the plaintiff's claim
was time-barred and the court agreed. Specifically, the court found
that
the
plaintiff's
§
1983
claim accrued
at
the
time
of
the
alleged abuse. "Although Plaintiff alleges that he did not discover
his psychological injuries
until
later,
the direct
and violent
nature of the alleged abuse" was such that "Plaintiff was aware of
the injury." Id. at *3. The same is true in this case.
Here, each plaintiff stated in a declaration that he knew he
was abused by Luckey. Pls.' Decls. at 2 (docs. 195-203). Further,
the plaintiffs testified during depositions that they felt pain,
shame,
Luckey.
fear,
anger
Several
and/or
plaintiffs
embarrassment
turned
to
after
drugs
being
and/ or
abused by
alcohol
to
"forget" the abuse or "cover" their shame, while others were afraid
that
their
families
and communi ties
would
reject
them if
they
revealed the abuse; many did not disclose it for that reason. See
Franz Decl. Ex. 101 at 42-45, 51, 53 (doc. 145-1); Franz Decl. Ex.
101 at 22-23, 25,
15,
13
19,
42
(doc.
28-29,
42
(doc. 147-1); Franz Decl. Ex. 101 at
151-1); Franz Decl.
- OPINION AND ORDER
Ex.
101 at 17-20,
23
(doc.
154-1); Franz Decl. Ex. 101 at 21, 24, 27, 32 (doc. 163-1); Franz
Decl. Ex. 101 at 27-28, 36-40 (doc. 172-1); Franz Decl. Ex. 101 at
19-21, 24, 30 (doc. 174-1); Franz Decl. Ex. 101 at 12-14, 16-17, 19 ·
(doc. 176-1); Franz Decl. Ex. 101 at 18-19, 35-39, 45 (doc. 178-1).
I recognize that each plaintiff also declared that he "did not
realize that the cause
o~
[his] emotional and other problems was
the sexual abuse" or "that Josephine County itself might be liable
for
[his]
injuries."
psychologist
who
Pls. '
examined
Decls.
at
plaintiffs
2
(docs.
similarly
195-2 03) .
stated
A
that
plaintiffs were ''unaware until shortly before the filing .of this
lawsuit that
[their] psychological harms were caused by Luckey's
sexual abuse." Harper Decl.
Decl.
at
2
(doc.
233)
at 3
(docs.
204-10);
see also Oneal
(regarding J.J.) . 4 In other words,
while
plaintiffs knew they were abused, they did not realize the extent
of harm caused by Luckey's abuse. As the preceding discussion of
legal precedent makes clear, however, the fact that plaintiffs were
unaware of the extent of the psychological harm they suffered does
not negate the fact that plaintiffs were aware of some injury at
4
Two other experts rendered opinions as to why child abuse
victims often cannot appreciate or understand the connection
between the abuse and their ongoing psychological injuries. Freyd
Dec. (doc. 211); Brown Decl. (doc. 212). However, I note that
these experts did not meet, examine, or interview any of the
plaintiffs and rendered gerieral opinions based on their review of
the record. Further, I do not find that their opinions alter the
relevant legal standard for determining the accrual of
plaintiffs' claims.
14
- OPINION AND ORDER
the time
belated
of the abuse or shortly thereafter.
discovery
psychological
accrual
of
of
the
injuries
and
their
claims
or
connection
Luckey's
Thus,
between
abuse
otherwise
5
plaintiffs
their
does
not
restart
the
ongoing
delay
statute
the
of
limitations.
Finally,
I
am not persuaded by plaintiffs'
reliance on the
Ninth Circuit's comment in Bonneau. See 666 F.3d at 581. There, the
Ninth Circuit
held that
the
statute
of
limitations
barred
the
plaintiff's § 1983 claims arising from beatings he suffered from
elementary teachers as a child.
The court declined to apply the
delayed accrual doctrine, because the plaintiff "was aware of the
injuries he experienced as a child as well as their causes at the
time of the beatings." Bonneau,
555 F. 3d at 581.
In dicta,
the
court noted that the plaintiff "allege[d] no other injuries whose
cause he belatedly discovered can be traced to the alleged abuse."
5
Consequently, unlike many of the cases cited by plaintiffs,
this is not a case where the plaintiffs had "no idea" that they
had been harmed at the time of the abuse. Bibeau, 188 F.3d at
1108; see, e.g., Simmons v. United States 805 F.2d 1363, 1367
(9th Cir. 1986) (questions of fact precluded summary judgment
where the plaintiff alleged that she did not know a sexual
relationship with her therapist caused her injury until a
subsequent psychiatric consultation); J.I. v. United States, 2007
WL 2751597, at *3, 6-7 (W. D. Wash. 2007) (district court found
questions of fact regarding accrual of claims arising from
childhood sexual abuse where the plaintiff alleged ''that he did
not realize that he was injured by the sexual contact until well
after the events occurred," and a psychologist reported that the
plaintiff had viewed the molestation as "love" rather than
abuse); Mason v. Marriage & Family Ctr., 228 Cal.App.3d 537, 544
(1991). Unlike Simmons, ~' and Mason, plaintiffs here do not
maintain that they did not realize Luckey's abuse harmed them.
15
- OPINION AND ORDER
Id. Notably,
this statement has no supporting legal citation and
was made in the context of remarking that a claim accrues when the
plaintiff "'knew or in the exercise of reasonable diligence should
have
known
of the
injury and the
cause
of that
injury. '"
Id.
(quoting Lukovsky, 535 F.3d at 1050). I therefore decline to rely
on this statement to hold that a claim arising from sexual abuse
does
not accrue
until a
plaintiff discovers
the
extent of all
psychological harm caused by that abuse.
Accordingly, the statute of limitations in these cases did not
begin to run only after plaintiffs realized that their ongoing
psychological
injuries
were
caused by
Luckey's
abuse.
Rather,
plaintiffs' claims accrued and the statute of limitations began to
run when they "knew or in the exercise of reasonable diligence
should have
known"
of some injury caused by the abuse and the
causal connection between the County's conduct and their injuries.
Lukovsky, 535 F.3d at 1050.
The County argues that plaintiffs should have known at the
time of their abuse that the County potentially contributed to
their injuries because Luckey was a County employee. However, some
plaintiffs were not supervised formally by Luckey and they and
others were abused in Luckey's home or places unaffiliated with the
County.
Depending
on
the
circumstances,
the
fact
of
Luckey's
employer might not have placed plaintiffs on notice that the County
somehow
16
contributed
to
- OPINION AND ORDER
Luckey's
criminal
actions.
Further,
plaintiffs were minors at the time, and Luckey allegedly threatened
them with retribution. See Or. Rev. Stat.
§
12. 160 ( 1) , ( 2)
(statute
of limitations is "tolled for so long as the [plaintiff] is younger
than 18 years of age" but may not extend "for more than one year
after the person attains 18 years of age"); Douglas v. Noelle, 567
F.3d 1103, 1109 (9th Cir. 2009)
limitations period for
§
("State law governs the statute of
1983 suits and closely related questions
of tolling."); M.N.O. v. Magana, 2006 WL 559214, at *3 (D. Or. Mar.
6, 2006)
(threats to a plaintiff may toll the limitations period).
I therefore cannot find that the statute of limitations began
running· at the time of Luckey's abuse.
Further,
given the record
before the court, questions of fact remain as to the precise date
on which plaintiffs' claims accrued and the statute of limitations
began to run. Nonetheless, for purposes of defendant's motions, it
is not necessary to determine the exact date on which plaintiffs'
claims
accrued.
Instead,
I
need
only
determine
undisputed facts establish that plaintiffs'
whether
the
claims accrued more
than two years before they filed suit. I find that they do.
Notably, plaintiffs allege that it was "common knowledge" that
Luckey had a "prurient interest" in juvenile boys and "had molested
juvenile males in his charge" during the time he abused plaintiffs
in the 1980s and 1990s.
Pls.'
Combined Opp'n to Mot.
Luckey's
17
See Sec.
conduct
toward
-OPINION AND ORDER
Amend.
Summ.
juvenile
Compl.
Judg.
15-16
boys
was
3
(doc.
(doc.
119-1);
192).
commonly
If
known,
presumably such information would have been readily discoverable
before
2010.
More
significantly,
in
1994
a
former
juvenile
probationer filed a federal lawsuit against both the County and
Luckey, alleging sexual abuse by Luckey and failure to act by the
County. See Haney v. Josephine County, Case No. 3:94-cv-3003-AS. As
in these cases,
the plaintiff alleged that County officials had
received notice of Luckey's inappropriate contact with juvenile
males and failed to take action.
187-3)
See Peterson Decl.
Ex.
3
(doc.
(Haney complaint). While the Haney case was pending, Luckey
committed suicide and the case eventually settled. The complaint in
Haney
was
not
sealed
and
the
names
of
the
plaintiff
and
his
attorney were publicly known. Further, Luckey committed suicide in
1994, and all plaintiffs had turned eighteen by the end of 1996. 6
At a
result,
any tolling of the statute of limitations due to
Luckey's threats or the plaintiffs' minor status ceased.
In
light
of
Luckey's
"commonly
known"
and
inappropriate
interest in boys and the federal claims asserted against the County
in 1994, a reasonably diligent investigation would have revealed
the facts
supporting plaintiffs'
claims against the County long
before these suits were filed in 2012 and 2013.
6
See Bibeau,
188
0f the plaintiffs relevant to these motions, John Doe
turned 18 on September 23, 1996; John Doe 2 on July 6, 1993; John
Doe 3 on September 4, 1988; John Doe 5 on August 14, 1992; John
Doe 6 on April 22, 1987; John Doe 7 on December 20, 1986; Jack
Doe 3 on November 6, 1993; J.J. on December 11, 1988; and J.T on
November 30, 1983. See Def. 's Objections to Rep. & Rec. (docs.
299, 301, 303, 305, 307' 309, 311, 313, 315).
18
- OPINION AND ORDER
F. 3d at 1108
(a plaintiff "must be diligent in discovering the
critical facts").
Plaintiffs nonetheless assert that they "knew none of these
facts,
and had no reason to investigate the County's potential
liability." Pls.'
discovery
rule
Combined Opp'n at 16
employs
an
objective,
(doc.
192). However,
rather
than
the
subjective,
standard. Gonzalez, 284 F.3d at 288; Singleton, 951 F. Supp. 2d at
589. Plaintiffs provide no explanation or evidence as to why they
did not or could not investigate the County's potential liability,
particularly after the 1994 lawsuit against the County. Moreover,
plaintiffs have emphasized that they did not obtain new information
regarding the County's
liability until discovery in this
case,
meaning that the facts discoverable before they filed suit would
have been discoverable at a much earlier date.
Thus,
plaintiffs
cannot now maintain that they were unable to discover the basis of
their claims until shortly before filing suit. 7 See S.M. v. Clash,
7
Plaintiffs also argue that the statute of limitations is
subject to equitable tolling and equitable estoppel. Plaintiffs
assert that equitable tolling is appropriate because
"extraordinary circumstances" and the harms they sustained from
Luckey's abuse affected their ability to pursue their claims.
Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1052 (9th Cir. 2013) ("a
litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his
rights diligently, and (2) that some extraordinary circumstances
stood in his way") ( citation omitted) . However, plaintiffs cite
no declarations or other evidence to support this assertion.
Pls.' Combined Opp'n at 31; see Doe 171, 2012 WL 1410320, at *3
(finding that "the sheer number of years since the [childhood
sexual] abuse and the lack of extenuating circumstances" did not
support tolling) .
19
- OPINION AND ORDER
558 Fed. Appx. at 45 ("While the plaintiffs assert that they 'could
not
reasonably have been expected to
know'
that
they
suffered
psychological harm as a result of the alleged abuse prior to 2012,
they provide no explanation for this assertion.").
I recognize that what plaintiffs knew and when they knew it
ordinarily are questions of fact precluding summary judgment. See
Simmons, 805 F.2d at 1368. Indeed, if plaintiffs had brought their
claims fifteen or even ten years earlier,
find
that
questions
of
fact
exist
I might be inclined to
regarding
the
information
plaintiffs knew or should have known, given their ages, the nature
of
the
claims,
and
the
surrounding
circumstances.
However,
plaintiffs long ago reached adulthood, and information supporting
their claims has been a matter of public record since 1994; these
facts were not "inherently unknowable" or "incapable of detection."
Gonzalez,
Thus,
284
F. 3d at 289;
Gregg,
2014 WL 4129525,
at *9,
n. 6.
at this point, no genuine issue of material fact_precludes
finding that plaintiffs
diligence
should have
knew,
known,
or in the exercise of reasonable
the
facts
supporting their claims
Plaintiffs also assert that the County should be estopped
from asserting a statute of limitations defense, because Luckey
threatened them with retribution and the County destroyed
documents pertinent to Luckey sometime after the Haney case.
However, plaintiffs fail to explain how Luckey's threats kept
them from filing suit in the years following his suicide, and
plaintiffs do not dispute that the County's destruction of
documents occurred years after the Haney lawsuit and pursuant to
its records retention policy._ Plaintiffs produce no evidence to
support equitable tolling or estoppel in these circumstances.
20
- OPINION AND ORDER
against the County more than two years before these lawsuits were
filed. Accordingly, plaintiffs'
1983 claims are barred.
§
This conclusion is not reached lightly or without empathy for
plaintiffs. To the contrary, I recognize that the insidious nature
of child sexual abuse - particularly when committed by a person in
a position of authority like Luckey - may result in further tragedy
when the attendant fear and shame prevents a victim from disclosing
the abuse or seeking legal recourse for his or her injuries within
the
limitations
district
court
limitations
period.
to
alter
period
for
However,
it
causes
of
not
the
role
of
common
federal
is
law
and
the
relevant
action
seeking
this
redress
for
psychological injuries arising from childhood sexual abuse.
CONCLUSION
For the reasons set forth above,
Report
and
Recommendation
Plaintiffs'
motions
declaration
(docs.
(doc.
for partial
167, 268)
291)
Magistrate Judge Clarke's
is
ADOPTED,
in
part.
summary judgment and to
strike
are DENIED, and defendant's motions
for summary judgment (docs. 144, 146, 150, 153, 162, 171, 173, 175,
177) are GRANTED.
IT IS SO ORDERED.
Dated this
rl:t~
I g day
-'-------""--
of May, 2015.
Ann Aiken
United States District Judge
21
- OPINION AND ORDER
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