Matheny v. Clackamas County et al
Filing
50
OPINION and ORDER: The Court GRANTS Defendants' Motion 34 for Judgment on the Pleadings, GRANTS Defendants' Motion 40 for Order Dismissing Complaint and for attorneys' fees to the extent that the Court dismisses Plaintiff 039;s 1983 claims, and DENIES Defendants' Motion 40 for Order Dismissing Complaint and for attorneys' fees to the extent that Defendants seek attorneys' fees. Signed on 01/19/2012 by Judge Anna J. Brown. See attached 17 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MEGAN NICOLE MATHENY,
3:10-CV-1574-BR
Plaintiff,
OPINION AND ORDER
v.
CLACKAMAS COUNTY, a political
subdivision of the State of
Oregon; CRAIG ROBERTS,
Sheriff; and DAVID M. KIRBY,
Undersheriff,
Defendants.
WILLIAM J. HEDGES
2647 S.E. Lake Road
Milwaukie, OR 97222
(503) 650-8303
Attorney for Plaintiff
STEPHEN LEWIS MADKOUR
Clackamas County Counsel
ALEXANDER GORDON
Assistant County Counsel
2051 Kaen Road
Oregon City, OR 97045
503-655-8362
Attorneys for Defendants
1 - OPINION AND ORDER
BROWN, Judge.
This matter comes before the Court on Defendants' Motion
(#34) for Judgment on the Pleadings and Defendants' Motion (#40)
for Order Dismissing Complaint and for attorneys' fees.
For the
reasons that follow, the Court GRANTS Defendants' Motion for
Judgment on the Pleadings and GRANTS in part and DENIES in part
Defendants' Motion for Order Dismissing Complaint and for
attorneys' fees.
BACKGROUND
The following facts are taken from Plaintiff's Third Amended
Complaint.
At some point Plaintiff Megan Nichole Matheny was
incarcerated in the Clackamas County Jail.
Plaintiff alleges
Clackamas County Deputy Sheriff Darin Fox1 sexually harassed her
and forced Plaintiff to have oral sex with him during her
incarceration at Clackamas County Jail.
In March 2007 Plaintiff was released to monitored electronic
detention at the home of her grandfather, Leo Watkins.2
Plaintiff's electronic home detention was supervised by Deputy
Sheriff Fox.
1
Deputy Sheriff Fox was dismissed as a Defendant in this
action by stipulation of the parties on September 19, 2011.
2
Plaintiff is currently incarcerated at Coffee Creek
Correctional Facility.
2 - OPINION AND ORDER
At some point Deputy Sheriff Fox came to Watkins's home
because Plaintiff was not able to hook up the electronicmonitoring equipment.
Plaintiff alleges Fox followed her
throughout the home and made sexual comments.
Plaintiff alleges
Deputy Sheriff Fox also forced her to have oral sex with him at
Watkins's house.
Although the Third Amended Complaint does not contain any
allegation as to the time of Deputy Sheriff Fox's alleged
activities, Plaintiff alleged in her Complaint, Amended
Complaint, and Second Amended Complaint that she was monitored on
electronic home detention from "approximately January through
July 2008."
Compl. ¶ 10; Am. Compl. ¶ 10; Second Am. Compl.
¶ 10.
In her Third Amended Complaint Plaintiff alleges for the
first time that she "did not discovery [sic] that Deputy Fox was
mis-using his position of authority in respect to his
relationship with plaintiff until July 2009."
Third. Am. Compl.
¶ 20.
On December 29, 2010, Plaintiff filed an action in this
Court alleging claims against Clackamas County, Sheriff Craig
Roberts, and Undersheriff David Kirby for violation of the Eighth
Amendment and of Plaintiff's right to equal protection as well as
state-law claims for stalking, battery, and negligent
supervision.
3 - OPINION AND ORDER
On January 5, 2011, Plaintiff filed an Amended Complaint to
correct Plaintiff's last name.
On April 12, 2011, Plaintiff filed a Second Amended
Complaint to add Deputy Sheriff Fox as a Defendant.
On May 18, 2011, Deputy Sheriff Fox filed a Motion to
Dismiss Plaintiff's claims against him on the ground that they
were barred by the applicable statute of limitations.
Specifically, Deputy Sheriff Fox noted Plaintiff did not join him
as a Defendant until April 2011; the Second Amended Complaint
alleges Plaintiff was monitored on home detention only until July
2008; the applicable statutes of limitations for Plaintiff's
§ 1983 claims and her state-law claims is two years; and,
therefore, Plaintiff's claims against Deputy Sheriff Fox were
untimely.
On June 20, 2011, the Court held a hearing on Deputy Sheriff
Fox's Motion to Dismiss at which Plaintiff conceded the Motion on
the basis that she failed to bring any of her claims against
Deputy Sheriff Fox within the applicable limitations period.
The
Court, therefore, granted Deputy Sheriff Fox's Motion to Dismiss
all of Plaintiff's claims against him and directed Plaintiff to
file a Third Amended Complaint by June 24, 2011.
On June 24, 2011, Plaintiff filed a Third Amended Complaint
in which she removed Deputy Sheriff Fox as a Defendant, removed
the allegation that she was on home detention through July 2008,
4 - OPINION AND ORDER
and added the allegation that she was not aware Deputy Sheriff
Fox was "mis-using his position of authority in respect to this
relationship with plaintiff until June 2009."
On August 15, 2011, Defendants filed a Motion for Judgment
on the Pleadings on the grounds that Plaintiff failed to give
notice of her state-law claims as required by the Oregon Tort
Claims Act (OTCA), Or. Rev. Stat. § 30.275, and Plaintiff's
§ 1983 claims are barred by the applicable statute of limitation.
Plaintiff failed to file a timely Response.
On September 19, 2011, Defendants filed a Motion for Order
Dismissing Complaint and for attorneys' fees.
On November 3, 2011, the Court held oral argument on
Defendants' Motions.
At oral argument Plaintiff conceded she
failed to give notice of her state-law claims as required by the
OTCA.
Defendants advised the Court that both of their Motions
raise the same question; i.e., whether Plaintiff's Third Amended
Complaint states a timely claim for violation of § 1983.
On November 3, 2011, the Court issued an Order in which,
among other things, it granted Defendants' Motion for Judgment on
the Pleadings as to Plaintiff's state-law claims, granted
Defendants' Motion for Order Dismissing Complaint to the extent
that the Court struck Plaintiff's untimely Response, and took
Defendants' Motions under advisement as to Plaintiff's claims
under § 1983.
5 - OPINION AND ORDER
STANDARDS
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
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.
General 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.").
6 - OPINION AND ORDER
DISCUSSION
I.
Plaintiff's claims against Clackamas County under § 1983
As noted, Plaintiff brings claims against Clackamas County
under § 1983 for violation of her rights under the Eighth
Amendment and the Equal-Protection Clause of the United States
Constitution.
Specifically, Plaintiff brings § 1983 claims
against Clackamas County pursuant to Monell v. Department of
Social Services, 436 U.S. 658 (1978).
A.
Municipal liability under Monell generally
Section 1983 liability of a local governing body arises
only when "action pursuant to official . . . policy of some
nature caused a constitutional tort" and not on the basis of
respondeat superior.
Id. at 691-94.
"The 'official policy'
requirement was intended to distinguish acts of the municipality
from acts of employees of the municipality, and thereby make
clear that municipal liability is limited to action for which the
municipality is actually responsible."
(1986)(emphasis in original).
Pembaur, 475 U.S. at 479
Municipal "[l]iability may attach
. . . only where the municipality itself causes the constitutional violation through 'execution of a government's policy or
custom, whether made by its lawmakers or by those whose edicts or
acts may fairly be said to represent official policy.'"
Ulrich
v. City and Cnty. of San Francisco, 308 F.3d 968, 984 (9th Cir.
2002)(quoting Monell, 436 U.S. at 694).
7 - OPINION AND ORDER
B.
Claims accrual for Monell claims
Clackamas County moves for judgment on the pleadings as
to Plaintiff's § 1983 claims against it on the ground that they
are barred by the applicable statute of limitations.
The Ninth Circuit has made clear that the statute of
limitations for § 1983 actions is determined by state law.
Douglas v. Noelle, 567 F.3d 1103, 1109 (9th Cir. 2009).
See
Section
1983 actions are characterized as personal-injury actions for
statute-of-limitations purposes.
Id.
Under Oregon law the
statute of limitations period for general tort actions is two
years.
Or. Rev. Stat. § 12.110(1).
Accordingly, the limitations
period for § 1983 actions in Oregon is two years.
The Ninth Circuit has also made clear that even though
state law determines the limitations period for § 1983 actions,
federal law governs as to when a § 1983 claim begins to accrue.
Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048
(9th Cir. 2008).
"Under federal law, a claim accrues when the
plaintiff knows or has reason to know of the injury which is the
basis of the cause of action.”
Id.
Plaintiff relies on T.R. v. Boy Scouts of America, 344
Or. 282 (2008), to support her position that her claim did not
accrue until June 2009 when she became aware that Deputy Sheriff
Fox was "mis-using his authority."
In T.R., however, the Oregon
Supreme Court applied Oregon's state-law rule for claims accrual.
8 - OPINION AND ORDER
Specifically, the court concluded in T.R. that "the statute of
limitations does not begin to run until a reasonably prudent
plaintiff perceives both the injury and the role that the
defendant has played in that injury.
In both respects Oregon law
mirrors the generally applicable common-law discovery rule.”
at 291-92.
Id.
Plaintiff's reliance on T.R. and its application in
this case, however, is incorrect.
As noted, pursuant to Ninth
Circuit precedent, federal law governs as to when Plaintiff's
claim accrued.
Accordingly, the Court declines to apply the
standard for claims accrual set out in T.R.
Clackamas County asserts the proper federal claimsaccrual analysis is the one used by the Ninth Circuit in
Dyniewicz v. United States, 742 F.2d. 484, 486 (9th Cir. 1984).
In Dyniewicz decedents were killed on March 17, 1980, when a
flood swept their car off a highway in Hawaii.
The plaintiffs
initially brought a wrongful-death action against the State of
Hawaii on October 6, 1980, alleging the State was negligent when
it failed to close a road.
The plaintiff contended they found
during discovery on June 12, 1982, that National Park Service
rangers might have been the cause of the accident.
On March 11,
1983, the plaintiffs filed an action for wrongful death in
federal court under the Federal Tort Claims Act (FTCA) against
the United States.
The Ninth Circuit held the plaintiffs did not
bring their FTCA claim within the applicable two-year limitations
9 - OPINION AND ORDER
period because even though they might not have been aware that
federal agents were involved until June 1982, they "knew both the
fact of injury and its immediate physical cause, the flooded
highway, when the bodies of Mr. and Mrs. Dyniewicz were found [in
1980].
time.
[Under federal law, the] cause of action accrued at that
Their ignorance of the involvement of United States
employees is irrelevant."
742 F.2d at 486-87.
According to Clackamas County, therefore, Plaintiff's
claims in this case accrued at the time that she became aware of
the injury and its immediate cause; i.e., when she knew about the
sexual assault and harassment by Deputy Sheriff Fox, which
occurred at some point during or before June 2008.
As the Court noted at oral argument, Dyniewicz involved
claims accrual under the FTCA rather than claims accrual against
a municipality in the context of Monell.
Here the matter before
the Court is a § 1983 claim under Monell, and the claims accrual
analysis may differ from the analysis of claims for violations of
other federal statutes because Monell claims stem from a
municipality's policy or custom rather than from the particular
actions of an individual or agency.
Although the Ninth Circuit
has not specifically addressed the issue of claims accrual in the
context of a Monell claim, other courts that have addressed the
issue have held a different accrual analysis applies.
For
example, in Pinaud v. County of Suffolk, the Second Circuit
10 - OPINION AND ORDER
reasoned:
Since an actionable claim under § 1983 against a
county or municipality depends on a harm stemming
from the municipality's “policy or custom,” see
Monell v. Department of Social Services, 436 U.S.
658, 694, 98 S. Ct. 2018, 2037, 56 L. Ed.2d 611
(1978), a cause of action against the municipality
does not necessarily accrue upon the occurrence of
a harmful act, but only later when it is clear, or
should be clear, that the harmful act is the
consequence of a county “policy or custom.”
* * *
The dissent intimates that our determination of
when the claim against the County accrues is
inconsistent with this Court's decision in
Eagleston. But . . . Eagleston's statute-oflimitations discussion only addresses issues
relating to the accrual of claims against
individual defendants, see 41 F.3d at 870-72,
claims that do not require a “policy or custom,”
as do claims against a municipality. The issue
before us, instead, is precisely that of when [the
plaintiff] knew or should have known enough to
claim the existence of a “policy or custom” so
that he could sue the County.
52 F.3d 1139, 1157, 1158 n.17 (1995).
See also Branch v.
Guilderland Cent. Sch. Dist., 239 F. Supp. 2d 242, 249 (N.D.N.Y.
2003)(same).
In addition, at least one district court in the Ninth
Circuit has adopted the claims-accrual analysis of the Pinaud
court.
In Temple v. Adams the plaintiff brought § 1983 claims
against Yuba City and Sutter County, among others, for various
alleged constitutional violations stemming from the plaintiff's
role as a suspect in a murder case.
11 - OPINION AND ORDER
No. CV-F-04-6716 OWW DLB
(NEW DJ), 2006 WL 2454275, at *1 (E.D. Cal. Aug. 23, 2006).
The
municipal defendants moved to dismiss the plaintiff's claims on
the basis that they were barred by the applicable statute of
limitations.
In determining when the plaintiff's claim against
the municipal defendants accrued, the court noted:
Section 1983 claims against a county or a
municipality require an allegation that a harm
stems from the municipality's “policy or custom.”
Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694
(1978). A claim based on a “policy or custom”
does not necessarily accrue at the time of the
harmful act, but rather only later when it is
clear, or should be clear, that the “policy or
custom” caused the wrongful act. Pinaud v. County
of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995).
“Where no single act is sufficiently decisive to
enable a person to realize that he has suffered a
compensable injury, the cause of action may not
accrue until the wrong becomes apparent.” Id.
Id., at *10.
The Court finds the analysis of Pinaud, Branch, and
Temple to be persuasive and adopts it.
Accordingly, the Court
concludes Plaintiff's cause of action against Clackamas County
did not accrue until it was clear or should have been clear that
a policy or custom of Clackamas County caused the wrongful act.
Plaintiff, however, does not allege any policy or
custom of Clackamas County caused Deputy Sheriff Fox to sexually
abuse her.
In fact, Plaintiff alleges only that she became aware
in June 2009 that Deputy Sheriff Fox was "mis-using his
authority."
An allegation of misuse of authority undermines any
suggestion that Deputy Sheriff Fox was acting pursuant to a
12 - OPINION AND ORDER
custom or policy of Clackamas County when he allegedly sexually
abused Plaintiff.
In addition, the Court finds no reasonable
juror could conclude that Plaintiff was unaware or that she
should not have been aware that sexual abuse was outside of
Deputy Sheriff Fox's duties or responsibilities as a Deputy
Sheriff.
The Court finds any such allegation to be implausible.
See Cafasso v. General 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.").
See also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)("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.").
As noted, Plaintiff filed her Complaint on December 29,
2010, and makes clear in her original, Amended, and Second
Amended Complaints that her house arrest and interactions with
Deputy Sheriff Fox terminated in July 2008, which is more than
two years before Plaintiff implausibly alleges she became aware
that Deputy Sheriff Fox's abuse and other actions were not an
appropriate exercise of his authority.
The Court, therefore,
concludes Plaintiff failed to bring her § 1983 claims within the
applicable limitations period.
Accordingly, the Court grants Clackamas County's Motion
13 - OPINION AND ORDER
for Judgment on the Pleadings and grants Clackamas County's
Motion for Order Dismissing Complaint to the extent that
Clackamas County seeks dismissal of Plaintiff's § 1983 claims
against it.
Finally, because Plaintiff has filed four different
Complaints in this action, the Court concludes Plaintiff has had
more than a sufficient opportunity to allege any viable § 1983
claim against Clackamas County.
Thus, the Court declines to
allow Plaintiff leave to amend her Complaint for a fifth time.
II.
Plaintiff's § 1983 claims against the individual Defendants
In her Third Amended Complaint, Plaintiff alleges she brings
her Eighth Amendment and Equal Protection claims under § 1983
against Sheriff Roberts and Undersheriff Kirby in their
"supervisory capacity."
In Lukovsky the Ninth Circuit made clear that in § 1983
actions brought against individuals, the claim accrues "when the
plaintiff knows or has reason to know of the injury which is the
basis of the action."
535 F.3d at 1048.
The Court does not see
any basis to conclude the reasoning of Dyniewicz is not equally
applicable to claims against individual supervisory actors under
§ 1983 because such claims do not involve a policy or custom.
As
noted, the court in Dyniewicz concluded the plaintiffs "knew both
the fact of injury and its immediate physical cause, the flooded
highway, when the bodies of Mr. and Mrs. Dyniewicz were found [in
14 - OPINION AND ORDER
1980].
time.
[Under federal law, the] cause of action accrued at that
Their ignorance of the involvement of United States
employees is irrelevant."
742 F.2d at 486-87.
The Court concludes any claim Plaintiff may have had against
individual Defendants Sheriff Roberts and Undersheriff Kirby
accrued at the time Plaintiff became aware of the injury and its
immediate cause; i.e., when she knew of the sexual assault and
harassment by Deputy Sheriff Fox, which occurred at some point
during or before June 2008.
Plaintiff, however, did not file
this action until December 29, 2010, which is more than two years
after Plaintiff was aware of the sexual assault and harassment by
Deputy Sheriff Fox.
Plaintiff, therefore, failed to bring her
claims against Sheriff Roberts and Undersheriff Kirby within the
applicable limitations period.
Accordingly, the Court grants the individual Defendants'
Motion for Judgment on the Pleadings and grants the individual
Defendants' Motion for Order Dismissing Complaint to the extent
that they seek dismissal of Plaintiff's § 1983 claims.
Again, because Plaintiff has filed four Complaints in this
action, the Court concludes Plaintiff has had more than a
sufficient opportunity to allege any viable § 1983 claim against
the individual Defendants.
Thus, the Court declines to allow
Plaintiff leave to amend her Complaint for a fifth time.
15 - OPINION AND ORDER
III. Attorneys' Fees
In their Motion for Order Dismissing Complaint and for
attorneys' fees, Defendants request attorneys' fees pursuant to
42 U.S.C. § 1988(b) for their defense against Plaintiff's § 1983
claims.
42 U.S.C. § 1988(b) provides in pertinent part:
"In any
action or proceeding to enforce a provision of section[] . . .
1983 . . . of this title, . . . the court, in its discretion, may
allow the prevailing party . . . a reasonable attorney's fee as
part of the costs."
"The Supreme Court has instructed that a prevailing
defendant in a § 1983 action is entitled to an attorney's fees
award under § 1988 only when the plaintiff's action is
'frivolous, unreasonable, or without foundation.'"
Tutor-Saliba
Corp. v. City of Hailey, 452 F.3d 1055, 1060 (9th Cir. 2006)
(quoting Hughes v. Rowe, 449 U.S. 5, 14 (1980)).
When
determining "whether this standard has been met, a district court
must assess the claim at the time the complaint was filed, and
must avoid 'post hoc reasoning by concluding that, because a
plaintiff did not ultimately prevail, his action must have been
unreasonable or without foundation.'"
Id. (quoting Warren v.
City of Carlsbad, 58 F.3d 439, 444 (9th Cir. 1995)).
Defendants assert Plaintiff's claims were unreasonable,
frivolous, or meritless because Plaintiff refused to voluntarily
16 - OPINION AND ORDER
dismiss her § 1983 claims notwithstanding the statute-oflimitations issue.
The Court disagrees.
As noted, the Ninth Circuit has not addressed the standard
to apply to determine when a § 1983 claim begins in circumstances
like those at issue here.
In light of the unsettled law in this
Circuit, the Court concludes Plaintiff's arguments as to when her
claims against Defendants began to accrue were not so lacking in
merit as to warrant an award of attorneys' fees.
Accordingly,
the Court denies Defendants' Motion for Order Dismissing
Complaint to the extent that Defendants seek attorneys' fees.
CONCLUSION
For these reasons, the Court GRANTS Defendants' Motion (#34)
for Judgment on the Pleadings, GRANTS Defendants' Motion (#40)
for Order Dismissing Complaint and for attorneys' fees to the
extent that the Court dismisses Plaintiff's § 1983 claims, and
DENIES Defendants' Motion (#40) for Order Dismissing Complaint
and for attorneys' fees to the extent that Defendants seek
attorneys' fees.
IT IS SO ORDERED.
DATED this 19th day of January, 2012.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
17 - OPINION AND ORDER
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