Rheel v. United States Department of Veterans Affairs et al
Filing
27
ORDER - The Court ADOPTS Judge Jelderks' Findings and Recommendations 20 , as supplemented herein. For the reasons set forth in Judge Jelderks' Findings and Recommendation, and supplemented above, Defendants' Motion to Dismiss 8 is GRANTED. This case is DISMISSED with prejudice Signed on 7/29/2013 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
KENNETH RHEEL,
Case No. 3:12-cv-01719-JE
Plaintiff,
ORDER ADOPTING FINDINGS AND
RECOMMENDATION
v.
UNITED STATES OF AMERICA, et al.,
Defendants.
Abraham J. Barnett & Jeremy S. Craft, The Barnett Firm, LLC, 10200 SW Greenburg Road,
Suite 340, Portland, OR 97223. Attorneys for Plaintiff.
S. Amanda Marshall, United States Attorney, and Kevin Danielson, Assistant United States
Attorney, United States Attorney’s Office, District of Oregon, 1000 SW Third Avenue,
Suite 600, Portland, OR 97204-2902. Attorneys for Defendants.
PAGE 1 – OPINION AND ORDER
Michael H. Simon, District Judge.
United States Magistrate Judge John Jelderks issued findings and recommendations in
this case on March 7, 2013. Dkt. 20. Judge Jelderks recommended that Defendants’ Motion to
Dismiss (Dkt. 8) be granted with prejudice.
Under the Federal Magistrates Act (“Act”), the Court may “accept, reject or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate judge’s findings and recommendations,
“the court shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
For those portions of a magistrate judge’s findings and recommendations to which neither
party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474
U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate’s report[.]”); United States. v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc) (the court must review de novo a magistrate judge’s
findings and recommendations if objection is made, “but not otherwise”). Although in the
absence of objections no review is required, the Act “does not preclude further review by the
district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b) recommend that “[w]hen no
timely objection is filed,” the Court review the magistrate judge’s recommendations for “clear
error on the face of the record.”
Plaintiff timely filed objections to Judge Jelderks’ Findings and Recommendation
(Dkt. 22, 25), to which Defendants responded (Dkt. 23, 26). Judge Jelderks recommended that
the Court dismiss Plaintiff’s complaint because the United State has sovereign immunity and
because the Plaintiff’s complaint is untimely. In relevant part, Judge Jelderks recommended that
PAGE 2 – OPINION AND ORDER
the Court reject Plaintiff’s argument that Defendants’ delay in responding to a Freedom of
Information request equitably tolled the statute of limitations. Dkt. 20, at 6-7. Plaintiff does not
object to Judge Jelderks’ application of equitable tolling; rather, Plaintiff, for the first time,
argues that his mental disability should toll the relevant statute of limitations.1
Plaintiff argues2 that because he is mentally disabled, he did not understand that
Defendants John Doe #1 and John Doe #2 (collectively “Defendant Officers”) allegedly acted
tortiously in detaining him on September 30, 2008. Am. Compl. ¶¶ 2, 11-22. Plaintiff further
argues that in September 2010 he became aware of his claim for relief—his disability ceased—
when he received notice that the charges arising out of the 2008 incident had been dismissed.
Dkt. 22, at p. 3-4. Accordingly, Plaintiff concludes, the statute of limitations should be tolled
during this two-year period, rendering his September 24, 2012 complaint timely.
It is not apparent whether Plaintiff’s third and fourth claims allege Fourth Amendment
violations brought pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), or
allege the torts of false arrest and false imprisonment. See Am. Compl. ¶¶ 40-55. The law of the
forum state determines the statute of limitations and tolling provisions applicable to a Bivens
1
Although Plaintiff does not specify the claims or defendants that should not be
dismissed, Plaintiff’s argument can only apply to claims that do not use the Federal Tort Claims
Act’s (“FTCA”) waiver of sovereign immunity. See Marley v. United States, 567 F.3d 1030,
1037 (9th Cir. 2009) (holding that the FTCA’s statute of limitations, 28 U.S.C. § 2401, is
jurisdictional, so “equitable estoppel or equitable tolling [cannot] excuse [a] Plaintiff's
untimeliness”). The Court thus construes Plaintiff’s argument as applying only to his first, third,
and fourth claims against Defendants John Doe #1 and John Doe #2 in their individual
capacities. See Hodge v. Dalton, 107 F.3d 705, 707 (9th Cir. 1997) (“The doctrine of sovereign
immunity applies to federal agencies and to federal employees acting within their official
capacities.”).
2
Plaintiff’s complaint does not include any allegations of mental disability; nevertheless,
the Court construes Plaintiff’s objection as arguing that the Court should dismiss the case
without prejudice and with leave to amend. See Thinket Ink Info. Res., Inc. v. Sun Microsystems,
Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) (“Dismissal without leave to amend is improper unless
it is clear . . . that the complaint could not be saved by any amendment.”).
PAGE 3 – OPINION AND ORDER
claim.3 See Papa v. United States, 281 F.3d 1004, 1009 (9th Cir. 2002). In Oregon, a two-year
statute of limitations applies to Bivens claims. See Van Strum v. Lawn, 940 F.2d 406, 410 (9th
Cir. 1991) (holding that a forum’s “personal injury statute of limitations” applies to Bivens
claims); Or. Rev. Stat. § 12.110(1). Thus, whether Plaintiff alleges Bivens claims or common law
tort claims, his claims are governed by Oregon’s two-year statute of limitations and tolling
provisions. See Or. Rev. Stat. §§ 12.110(1); 12.160.4
Even assuming Plaintiff was mentally disabled for purposes of Oregon’s tolling statute
for minors and persons who are insane, Or. Rev. Stat. § 12.160,5 from the date his claims accrued
through his receipt of the dismissal notice, tolling cannot preserve Plaintiff’s claims. Under that
tolling statute, “[t]he time for commencing an action may not be extended under [the insanity
subsection, Or. Rev. Stat. § 12.160(3)] . . . for more than five years, or for more than one year
after the person is no longer insane, whichever occurs first.” Or. Rev. Stat. § 12.160(4)
(emphasis added). Plaintiff seeks tolling only through September 2010, implicitly conceding that
3
Although Plaintiff argues that equitable tolling applies, Plaintiff does not cite and the
Court has not seen any Oregon appellate decisions applying the doctrine in the present
circumstances. See, e.g., DeArmond v. Dep't of Revenue, 14 Or. Tax 112, 117 (1997) aff'd, 968
P.2d 1280 (Or. 1998) (declining to apply equitable tolling to tax refund cases). Accordingly, the
Court applies the relevant statutory tolling provision. Cf. Fisher v. Belleque, 409, 240 P.3d 745,
746-47 (Or. App 2010) (declining to expand the scope of a statute of limitations’ “escape
clause,” in part, because the relief sought was co-extensive with Oregon’s disability tolling
statute, Or. Rev. Stat. § 12.160, which the legislature did not make applicable to the petitioner’s
claim).
4
Plaintiff’s first claim alleges a violation of 42 U.S.C. § 1983, which the Court construes
as a Bivens claim for the reason discussed by Judge Jelderks. See Dkt. 20, at 5.
5
The statutory term “insanity” is given a broad meaning by Oregon courts. See, e.g.,
Gaspar v. Vill. Missions, 961 P.2d 286, 290 (Or. App. 1998) (holding insanity tolling requires
the “plaintiff's mental condition [to] have been such as to have actually barred [plaintiff] from
knowing that [the defendant] had harmed [him or] her”); Roberts v. Drew, 804 P.2d 503, 505
(Or. App. 1991). Regardless, for purposes of the pending motion, the Court assumes that
Plaintiff’s impairments qualify him for application of the tolling statute.
PAGE 4 – OPINION AND ORDER
by this time he was no longer insane or otherwise eligible for the benefits of this tolling statute.
See Dkts. 22 (at p. 4) and 25 (at p. 4). Plaintiff, however, did not bring his action within one year
after he was no longer insane, but instead waited approximately two years before filing his
complaint on September 24, 2012. Dkt. 1. Accordingly, Plaintiff’s remaining claims against the
Defendant Officers are barred by the statute of limitations, even if Plaintiff were to be afforded
the benefit of Or. Rev. Stat. § 12.160. See Boag v. Chief of Police, City of Portland, 669 F.2d
587, 589 (9th Cir. 1982) (“The period of disability is not ‘tacked’ to the limitations period. 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.”) (relying on Hamm v. McKenny, 144 P. 435 (Or. 1914); Northrop
v. Marquam, 18 P. 449 (Or. 1888)).
For those portions of Judge Jelderks’ Findings and Recommendation to which neither
party has objected, the Court follows the recommendation of the Advisory Committee and
reviews those matters for clear error on the face of the record. No such error is apparent.
Accordingly, the Court ADOPTS Judge Jelderks’ Findings and Recommendations
(Dkt. 20), as supplemented herein. For the reasons set forth in Judge Jelderks’ Findings and
Recommendation, and supplemented above, Defendants’ Motion to Dismiss (Dkt. 8) is
GRANTED. This case is DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this 29th day of July, 2013.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 5 – OPINION AND ORDER
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