Singh v. Franke, et al
Filing
139
Opinion and Order: The Court GRANTS State Defendants Rule 12(b)(6) Motion [111-1] to Dismiss and Rule 12(c) Motion [111-2] for Judgment on the Pleadings, DISMISSES without prejudice Plaintiffs claims against Defendants Wettlaufer and Belleque, and DISMISSES with prejudice Plaintiffs claims againstDefendant Lytle. Signed on 03/26/2014 by Judge Anna J. Brown. See attached 13 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROTISH VIKASH SINGH,
Plaintiff,
v.
STEVE FRANKE; MICHAEL GOWER;
D. WETTLAUFER; S. SHELTON;
GREG LYTLE; LINDA GRUENWALD;
O. HANSEN; M.E. PERKINS;
M. MATHISEN; B. MARTINEZ;
V. REYNOLDS; D. BROWN;
K. JACKSON; TOM CLARK;
S. JOHNSTON; K. FANGER;
J. TAYLOR; B. BELLEQUE,
Defendants.
ROTISH VIKASH SINGH
# 11852604
Two Rivers Correctional Institution
82911 Beach Access Road
Umatilla, OR 97882-9419
Plaintiff, Pro Se
1 - OPINION AND ORDER
2:12-CV-00873-BR
OPINION AND ORDER
ELLEN ROSENBLUM
Attorney General
SHANNON M. VINCENT
Assistant Attorney General
1162 Court Street N.E.
Salem, OR 97301
(503) 947-4700
Attorneys for Defendants B. Belleque, D. Brown,
K. Fanger, Steve Franke, Michael Gower, Linda
Gruenwald, O. Hansen, K. Jackson, S. Johnston, Greg
Lytle, B. Martinez, M. Mathisen, M.E. Perkins,
V. Reynolds, S. Shelton, J. Taylor, and D. Wettlaufer
(State Defendants)
STEVEN A. KRAEMER
LESLIE ANNE EDENHOFER
MARK C. SHERMAN
Hart Wagner, LLP
1000 S.W. Broadway
Suite 2000
Portland, OR 97205
(503) 222-4499
ROBERT C. DOUGHERTY
1130 S.W. Morrison Street
Suite 210
Portland, OR 97205-2213
(503) 241-2331
Attorneys for Defendant Tom Clark
BROWN, Judge.
This matter comes before the Court on State Defendants’ Rule
12(b)(6) Motion (#111-1) to Dismiss and Rule 12(c) Motion
(#111-2) for Judgment on the Pleadings.
For the reasons that
follow, the Court GRANTS Defendants’ Motions, DISMISSES without
prejudice Plaintiff’s claims against Defendants Wettlaufer and
Belleque, and DISMISSES with prejudice Plaintiff’s claims against
2 - OPINION AND ORDER
Defendant Lytle.
BACKGROUND
On May 16, 2012, Plaintiff Rotish Vikash Singh, an inmate at
Two Rivers Correctional Institution, filed a pro se Complaint
pursuant to 42 U.S.C. § 1983 and alleged claims against various
prison officials,1 including Greg Lytle, D. Wettlaufer, and B.
Belleque, for cruel and unusual punishment, deliberate
indifference to a serious medical need, and retaliation.
On September 3, 2013, Plaintiff filed a Second Amended
Complaint asserting the same claims against the same Defendants
and including additional facts to support his claims.
On November 18, 2013, State Defendants filed a Rule 12(b)(6)
Motion to Dismiss and Rule 12(c) Motion for Judgment on the
Pleadings in which they seek dismissal of Plaintiff’s claims
against Defendants Wettlaufer, Belleque, and Lytle.
The Court
took State Defendants’ Motions under advisement on January 22,
2014.
1
Plaintiff also alleged claims against Tom Clark, a private
individual. The Court dismissed Plaintiff’s claims against Clark
with prejudice on December 20, 2013. Opin. and Order (#126).
3 - OPINION AND ORDER
STANDARDS
I.
Dismissal for Failure to State a Claim Pursuant to Rule
12(b)(6)
To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as
true, to “state a claim to relief that is
plausible on its face.” [Bell Atlantic v.
Twombly, 550 U.S. 554,] 570, 127 S. Ct. 1955. A
claim has facial plausibility when the plaintiff
pleads factual content that allows the court to
draw the reasonable inference that the defendant
is liable for the misconduct alleged. Id. at 556.
. . . The plausibility standard is not akin to a
“probability requirement,” but it asks for more
than a sheer possibility that a defendant has
acted unlawfully. Ibid. Where a complaint pleads
facts that are “merely consistent with” a
defendant's liability, it “stops short of the line
between possibility and plausibility of
‘entitlement to relief.’” Id. at 557, 127 S. Ct.
1955 (brackets omitted).
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
Atlantic, 550 U.S. at 555-56.
See also Bell
The court must accept as true the
allegations in the complaint and construe them in favor of the
plaintiff.
Din v. Kerry, 718 F.3d 856, 859 (9th Cir. 2013).
"In ruling on a 12(b)(6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice."
Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir.
2012)(citation omitted).
A court, however, "may consider a
writing referenced in a complaint but not explicitly incorporated
therein if the complaint relies on the document and its
authenticity is unquestioned."
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Swartz v. KPMG LLP, 476 F.3d 756,
763 (9th Cir. 2007)(citation omitted).
A pro se plaintiff's complaint “must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Thus, the Court has
an "obligation [when] the petitioner is pro se . . . to construe
the pleadings liberally and to afford the petitioner the benefit
of any doubt."
omitted).
Akhtar v. Mesa, 698 F.3d at 1212 (quotation
"[B]efore dismissing a pro se complaint the . . .
court must provide the litigant with notice of the deficiencies
in his complaint in order to ensure that the litigant uses the
opportunity to amend effectively.”
Id. (quotation omitted).
"A
district court should not dismiss a pro se complaint without
leave to amend unless it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment."
Id. (quotation omitted).
II.
Judgment on the Pleadings
Federal Rule of Civil Procedure 12(c) provides:
After the pleadings are closed but within such
time as not to delay the trial, any party may move
for judgment on the pleadings. If, on a motion
for judgment on the pleadings, matters outside the
pleadings are presented to and not excluded by the
court, the motion shall be treated as one for
summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable
opportunity to present all material made pertinent
to such a motion by Rule 56.
For purposes of a motion pursuant to Rule 12(c), the court must
accept the nonmoving party's allegations as true and view all
5 - OPINION AND ORDER
inferences in a light most favorable to the nonmoving party.
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
A
judgment on the pleadings is properly granted when, taking all
allegations in the nonmoving party's pleadings as true, the
moving party is entitled to judgment as a matter of law.
Compton
Unified Sch. Dist. v. Addison, 598 F.3d 1181, 1185 (9th Cir.
2010).
"To survive a Rule 12(c) motion, the complaint must
contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face."
Davis v. Astrue,
Nos. C–06–6108 EMC, C–09–0980 EMC, 2011 WL 3651064, at *1 (N.D.
Cal. Aug. 18, 2011)(citation omitted).
See also Cafasso v. Gen.
Dynamics C4 Sys., Inc., 637 F.3d 1047, 1055 n.4 (9th Cir. 2011)(A
Rule 12(c) motion is “functionally identical to a Rule 12(b)(6)
motion to dismiss for failure to state a claim, and therefore the
same legal standard applies.").
DISCUSSION
I.
Motion to Dismiss
State Defendants move to dismiss Defendants Wettlaufer and
Belleque pursuant to Rule 12(b)(6) on the ground that Plaintiff
did not plead any facts establishing personal participation by
Wettlaufer or Belleque in the alleged violations.
To establish a claim under § 1983 against an individual
defendant, a plaintiff must plead facts sufficient to show
6 - OPINION AND ORDER
personal participation in the alleged constitutional deprivation
by each defendant.
See Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009)(“Because vicarious liability is inapplicable to . . .
§ 1983 suits, a plaintiff must plead that each Governmentofficial defendant, through the official’s own individual acts,
has violated the Constitution.”).
See also Zellmer v.
Constantine, 520 F. App’x 564, 565 (9th Cir. 2013)(“The district
court properly dismissed defendant Constantine because Zellmer
failed to show that Constantine had any personal involvement in
the alleged violations.”); Arizmendi v. City of San Jose,
No. 5:08–CV–05163 EJD, 2012 WL 5471152, at *4 (N.D. Cal. Nov. 9,
2012)(“A plaintiff must establish “integral participation” of the
individual officer in the alleged constitutional violation.
Summary Judgment, therefore, is proper when there is no question
of fact or dispute that specific individual defendants did not
participate personally in an allegedly unconstitutional search.”
(citations omitted.)).
In addition, “‘[a] supervisor is only liable for
constitutional violations of his subordinates if the supervisor
participated in or directed the violations, or knew of the
violations and failed to act to prevent them.
There is no
respondeat superior liability under section 1983.’”
Torlucci v.
Norum, 509 F. App’x 636, 637 (9th Cir. 2013)(quoting Taylor v.
List, 880 F.2d 1040, 1045 (9th Cir. 1989)).
7 - OPINION AND ORDER
Plaintiff does not allege any facts in his Second Amended
Complaint that show any personal participation by Wettlaufer or
Belleque in the alleged violations of his Constitutional rights.
Plaintiff concedes in his Response to Defendants’ Motion to
Dismiss that he did not allege facts that show personal
participation by Wettlaufer or Belleque and states he does not
object to dismissal of those Defendants without prejudice.
Accordingly, the Court grants State Defendants’ Motion to
Dismiss Defendants Wettlaufer and Belleque and dismisses
Plaintiff’s claims against them without prejudice.
II.
Judgment on the Pleadings
State Defendants move for judgment on the pleadings as to
Plaintiff’s claims against Defendant Greg Lytle on the ground
that Lytle died before Plaintiff filed this action, Plaintiff did
not petition for the appointment of a personal representative for
Lytle, Plaintiff did not substitute the personal representative
of Lytle as a Defendant, and now any claim against a personal
representative of Lytle is time-barred.
“It is undisputed that survival actions are permitted under
§ 1983 if authorized by the applicable state law.”
Byrd v.
Guess, 137 F.3d 1126, 1131 (9th Cir. 1998), abrogation on other
grounds recognized by Moreland v. Las Vegas Metro. Police, 159
F.3d 365, 369-70 (9th Cir. 1998)).
Oregon law provides:
“If a
person against whom an action may be brought dies before the
8 - OPINION AND ORDER
expiration of the time limited for its commencement, an action
may be commenced against the personal representative of the
person after the expiration of that time, and within one year
after the death of the person.”
Or. Rev. Stat. § 12.190(2).
Oregon courts have made clear that when a plaintiff files a
complaint that names a person who has already died as a defendant
and then later amends the complaint to name the personal
representative of the decedent’s estate, the personal
representative “brought in by amendment” must receive adequate
notice of the action within one year of the decedent’s death.
See, e.g., Worthington v. Estate of Davis, 250 Or. App. 755, 764
(2012).
Thus under Oregon law when a potential defendant dies
before a plaintiff files an action, a plaintiff may bring the
action against the would-be defendant’s personal representative
only if (1) the action is filed within the applicable statute-oflimitations period, (2) the action is filed not more than one
year from the decedent’s death, and (3) the personal
representative has notice of the action within one year from the
decedent’s death.
Here Lytle died in 2011 before Plaintiff filed this action.
According to State Defendants, there has not been any personal
representative appointed for Lytle.2
2
Thus, even if a personal
The Oregon Court of Appeals has held when a personal
representative has not been appointed, it is the responsibility
of a plaintiff seeking to file an action against a personal
9 - OPINION AND ORDER
representative was appointed for Lytle at this time, the claims
that Plaintiff seeks to bring against Lytle would be time-barred
as to Lytle’s personal representative because Plaintiff did not
bring this action against the personal representative within one
year of Lytle’s death.
Moreover, the Ninth Circuit has held courts must apply the
forum state’s statute of limitations for personal-injury claims
to any claims under § 1983.
See, e.g., Traxtle v. Holman, 502 F.
App’x 709, 709 (9th Cir. 2013)(“[F]or § 1983 claims, courts apply
the forum state's statute of limitations for personal injury
claims.”).
Personal-injury claims in Oregon must be commenced
within two years of the injury.
See Or. Rev. Stat. § 12.110(1).
As noted, Lytle died in 2011, and, accordingly, any injury that
Lytle might have caused Plaintiff would have occurred in 2011,
which is more than two years ago.
Accordingly, Plaintiff’s
claims against any personal representative of Lytle would also be
time-barred.
Nevertheless, Plaintiff seeks an order naming Steve Franke,
Steven Shelton, or defense counsel as Lytle’s personal
representative in this action and seeks leave to amend his Second
Amended Complaint to assert his claims against Franke, Shelton,
representative to file a petition with the probate court seeking
the appointment of a personal representative. See Wheeler v.
Williams, 136 Or. App. 1, 5-6 (1995)(“Plaintiff did not have a
personal representative appointed and served within the statutory
period. Accordingly, her complaint was properly dismissed.”).
10 - OPINION AND ORDER
or defense counsel as Lytle’s personal representative.
As noted,
even if Franke, Shelton, or defense counsel were appropriate
personal representatives for Lytle (which they are not), any such
amendment would be futile.
As the Oregon Court of Appeals
explained:
[T]he personal representative of a deceased
person's estate is not merely the decedent by a
different name. . . . Thus, the decedent and the
personal representative do not have coextensive
legal identities any more than they have
coextensive lives. Consequently, when a plaintiff
sues a person who has died, rather than the
personal representative of the decedent's estate,
the plaintiff has chosen the wrong person to sue.
[H]e has not merely misnamed the correct
defendant.
To summarize: When a plaintiff files a complaint
that names a person who already has died as a
defendant, and the plaintiff later amends the
complaint to name the personal representative of
the decedent's estate as the defendant, that
amendment “chang[es] the party against whom [the]
claim is asserted” for purposes of ORCP 23 C
. . . . Consequently, the amended complaint will
relate back to the date of the original complaint
only if the requirements of both sentences of ORCP
23 C are met, including that the personal
representative who was “brought in by amendment”
received adequate notice of the action “within the
period provided by law for commencing the action”
against him.
Wortington, 250 Or. App. at 764-65.
In Worthington the court
concluded the trial court properly dismissed the plaintiff’s
negligence claim against the decedent’s personal representative
because
[b]y the time plaintiff took steps to have a
personal representative of Davis's estate named so
11 - OPINION AND ORDER
that she could sue that personal representative,
the two-year limitations period for negligence
already had expired. Consequently, the personal
representative did not have notice of the
litigation “within the period of law for
commencing the action,” as the second sentence of
ORCP 23 C requires. Plaintiff's amended complaint
did not, therefore, relate back to the date on
which she had filed her original complaint.
250 Or. App. at 765-66 (citations omitted).
Here, as in Worthington, any personal representative
appointed for Lytle at this point would not receive notice of the
action within § 1983's two-year limitations period, and,
therefore, Plaintiff’s claims against the personal representative
would not relate back to the date on which Plaintiff filed his
original Complaint.
Thus, Plaintiff’s claims against Lytle’s
personal representative would be untimely.
Accordingly, the Court grants State Defendants’ Motion for
Judgment on the Pleadings as to Plaintiff’s claims against Lytle
and dismisses those claims with prejudice.
CONCLUSION
For these reasons, the Court GRANTS State Defendants’ Rule
12(b)(6) Motion (#111-1) to Dismiss and Rule 12(c) Motion
(#111-2) for Judgment on the Pleadings, DISMISSES without
prejudice Plaintiff’s claims against Defendants Wettlaufer and
Belleque, and DISMISSES with prejudice Plaintiff’s claims against
Defendant Lytle.
12 - OPINION AND ORDER
IT IS SO ORDERED.
DATED this 26th day of March, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
13 - OPINION AND ORDER
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