Willis v. State of Oregon et al

Filing 35

ORDER TO DISMISS: Granting Defendant's Motion to Dismiss 25 ; and Denying Plaintiff's Motion for Summary Judgment 28 . Signed on 3/28/11 by Judge Ancer L. Haggerty. (mkk)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION SHANE D. WILLIS, Plaintiff, CV. 08-1510-HA ORDER TO DISMISS

v.
CITY OF SALEM, CITY OF SALEM POLICE DEPARTMENT, A. DEDEK, and OFFICER RENZ, Defendants. HAGGERTY, District Judge. This prisoner 42 U.S.C.
§

1983 action comes before the court

on defendants' Rule 12(b) Motion to Dismiss [25] and plaintiff's Motion for Summary Judgment or Default Judgment [28]. For the

reasons which follow, defendants' Motion to Dismiss is granted, and plaintiff's dispositive Motion is denied.
BACKGROUND

In his Amended Complaint, plaintiff alleges he was the victim of an unlawful search and seizure during a traffic stop by two 1 - ORDER TO DISMISS

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Salem Police Officers, defendants Dedek and Renz.

Plaintiff also

alleges that these defendants used excessive force against him during the course of their arrest, and that the Salem Police He

Department fails to properly train and supervise its officers. seeks monetary damages in the amount of $250,000. Defendants move to dismiss (1) (2) plaintiff has not

the Amended Complaint because: served any defendant; and

properly

plaintiff failed to timely file this case.

Plaintiff seeks

either summary or default judgment based upon defendants' alleged failure to timely file a responsive pleading. DISCUSSION I. Service Issues Defendants first move to dismiss plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 12(b) (2) for lack of personal Plaintiff

jurisdiction due to plaintiff's failure to serve them. moves for summary judgment or a default

judgment based on the

failure of defendants to file a timely responsive pleading. The court advised defendants of this lawsuit upon remand from the Court of Appeals, and asked the Salem City Attorney to waive service on December 15, 2010. On December 17, 2010, defendants

filed their Motion to Dismiss and on January 10, 2011 counsel for defendants refused to waive service on behalf of defendants. As

defendants have not yet been properly served, plaintiff's Motion for Summary Judgment or Default Judgment is denied.

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Although counsel for defendants refused to waive service in this matter, plaintiff can cure this deficiency with the assistance of the U.S. Marshal since he is an in forma pauperis litigant. Fed. R. Civ. P. 4(c) (3) (providing for U.S.
See

Marshal assistance However, dismissal is

where litigant is granted in because plaintiff's Fed. R.

forma pauperis status).

Amended Complaint Civ. P. 12 (b) (6) engage

is

subj ect

to

pursuant to untimely,

on the basis that it the services of the

the

court

need not

U. S.

Marshal's Office to assist plaintiff with service in this matter.

II.

Statute of Limitations: Failure to State a Claim A. Standards

Dismissal is appropriate if plaintiff fails to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b) (6). A

complaint which has not been filed within the applicable statute of limitations is subject to dismissal for failure to state a claim.
Jones v. Bock, 127 S.Ct.

910, 920-22 (2007).

A complaint should

not be dismissed for failure to state a claim, however, unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Terracom v.
Valley Nat'l Bank, 49 F.3d 555, 558 (9th Cir. 1995).

Dismissal question of law.

for

failure

to state a

claim is a

ruling on a

Parks School of Business, Inc., v. Symington, 51

F.3d 1480, 1483 (9th Cir. 1995). of the complaint and any

Review is limited to the contents exhibits.
Id

attached

at

1484.

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Allegations of fact

in the complaint must be taken as true and
Id.

construed in the light most favorable to the non-moving party. From the facts alleged,

the court also must draw all reasonable
Usher v. City of Los

inferences in favor of the nonmoving party.
Angeles,

828

F.2d

556,

561

(9th

Cir.

1987).

But

conclusory

allegations, without more, are insufficient to defeat a motion to dismiss for failure to state a claim.
McGlinchy v. Shell Chemical

Co., 845 F.2d 802, 810 (9th Cir. 1988).

B.

Analysis
§

Forty-two U.S.C. of limitations,

1983 does not have an independent statute the applicable limitation period is

therefore

borrowed from the forum state. (1985) . personal

Wilson v. Garcia, 471 U.S. 261, 279

Actions filed pursuant to § injury actions for statute

1983 are characterized as of limitations 672-73 purposes. (9th Cir.
§

McDougal v.

County of Imperial,

942 F.2d 668,

1991)

(applying state personal injury limitations period to In Oregon, this period is two years.

1983

actions).

O.R.S. 12.110(1).

Plaintiff alleges that defendants violated his constitutional rights during a traffic stop on May 19, 2005, but he did not file this civil rights action until December 22, 2008." Plaintiff does

1 Although the court did not receive the original Complaint until December 30, 2009, plaintiff signed the pleading on December 22, 2009. Under the "prison mailbox rule," a prisoner's documents are deemed filed at the moment the prisoner delivers them to prison authorities for forwarding to the Clerk of Court. Saffold v. Newland, 224 F.3d 1087, 1091 (9th Cir. 2000)

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not dispute that he failed to file this action within two years of the incident about which he complains, but first asserts that his case is nevertheless timely because the statute of limitations should be tolled until April 10, 2008, the date on which he became aware that his criminal charge for Resisting Arrest was dismissed, thereby showing that the officers' use of force against him was unnecessary. District courts are obliged to borrow the applicable

provisions for tolling the limitations period from the forum from which it also borrows the statute of limitations, itself.
v. Straub,

Hardin

490 U.S. 536, 539 (1989); TwoRivers v. Lewis, 174 F.3d (9th Cir. 1999). Plaintiff has not identified, and the

987,

992

court is unable to locate, any authority for the proposition that a damages claim based on excessive force during the course of

arrest is so dependent upon the adjudication of criminal charges against the litigant as to toll the statute of limitations pending resolution of the criminal charges. Indeed, plaintiff was aware of

the amount of force used against him on May 19, 2005 and was in a position to judge at that time whether the force was justifiable regardless of what his subsequent Indictment alleged. Alternatively, plaintiff argues that the statute of

limitations should not begin to run until all of the effects of the beating he allegedly suffered during the course of his arrest, such as headaches and blurred vision, have subsided entirely and require

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no medication or other treatment.

There is no support in the

relevant case law for the proposition that the personal injury statute of limitations does not begin to run until all injuries from an alleged assault have fully healed and require no further medication or treatment. Because the two-year statute of limitations began to run on May 19, 2005, and as plaintiff did not file his original Complaint until December 22, 2008, this action is dismissed on the basis that it is untimely.
CONCLUSION

Plaintiff's Motion for Summary Judgment or Default Judgment [28) is DENIED. the basis that Defendants' Motion to Dismiss [25) is GRANTED on plaintiff failed Amended to timely file is this action. with

Accordingly, prejudice.

the

Complaint

[13)

DISMISSED

IT IS SO ORDERED. DATED this

J~

day of March, 2011.
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