Patru v. Rush et al
Filing
39
Opinion and Order - The Court GRANTS IN PART and DENIES IN PART Plaintiff's motion to amend (Dkt. 32 ). Plaintiff will be allowed to amend her complaint to add claims for violation of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment and to add Marie Cervantes as a defendant. Signed on 8/13/2014 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ALINA PATRU,
Plaintiff,
Case No. 3:13-cv-00357-SI
OPINION AND ORDER
v.
CONNIE RUSH and HAZEL LEFLER,
Defendants.
Michael H. Simon, District Judge.
Plaintiff Alinda Patru moves to amend her complaint to assert two additional claims
under 42 U.S.C. § 1983 (for violation of her First Amendment and Fourteenth Amendment
rights) and to add six additional defendants (Marie Cervantes, Trevin Butler, Rey Naravaiz, Alex
Polk, Ann McMichael, and Randy Mifflin). Defendants Connie Rush and Hazel Lefler
(collectively “Defendants”) argue that the Court should deny Plaintiff’s motion to amend as
futile because the additional claims are time barred and do not relate back to Plaintiff’s original
claims, and because the additional defendants did not have notice under Rule 15(c). For the
reasons that follow, the Court grants in part and denies in part Plaintiff’s motion to amend.
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STANDARDS
Federal Rules of Civil Procedure Rule 15(a)(2) allows a party to amend its pleadings
“with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. Proc. 15(a)(2).
“The court should freely give leave when justice so requires.” Id. A district court “‘determines
the propriety of a motion to amend by ascertaining the presence of any of four factors: bad faith,
undue delay, prejudice to the opposing party, and/or futility.’” Serra v. Lappin, 600 F.3d 1191,
1200 (9th Cir. 2010) (quoting William O. Gilley Enter. v. Alt. Richfield Co., 588 F.3d 659, 669
n.8 (9th Cir. 2009)). “Futility of amendment can, by itself, justify the denial of a motion for leave
to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995). An amendment can be futile
when it is barred by the statute of limitations. Sackett v. Beaman, 399 F.2d 884, 892 (9th Cir.
1968) (holding that the district court did not abuse its discretion by denying leave to amend when
the applicable statute of limitations barred the plaintiff’s claim).
BACKGROUND
Plaintiff’s original complaint alleged a single cause of action, under 42 U.S.C. § 1983,
against two employees of the Oregon Department of Human Services (“DHS”) relating to DHS’s
processing of Plaintiff’s application for a license to admit ventilator-dependent residents to her
adult foster home. Plaintiff claimed that the Defendants’ delay in processing her ventilator
license violated Plaintiff’s due process rights under the Fourteenth Amendment. After
conducting discovery, Plaintiff now believes that six additional DHS employees were involved
in violating Plaintiff’s constitutional rights. Plaintiff seeks to add these employees as defendants
to this case. Plaintiff further seeks to amend her complaint to add two additional claims—
alleging that Defendants’ and the six DHS employees’ actions delaying the processing of the
ventilator license were taken in retaliation against Plaintiff’s protected speech under the First
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Amendment, and that these actions were discriminatory in violation of the Equal Protection
Clause of the Fourteenth Amendment.
DISCUSSION
A. Timeliness of New Claims
1. Plaintiff’s Claims Accrued More Than Two Years Ago
Plaintiff argues that the two additional § 1983 claims are timely. Defendants argue that
federal law governs the accrual of § 1983 claims and that the statute of limitations has run.
For actions under 42 U.S.C. § 1983, federal courts apply state statute of limitations
periods for personal injury suits. Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Oregon, the
personal injury statute of limitations is two years. Or. Rev. Stat. § 12.110(1). Accrual of § 1983
claims are governed by federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007) (“While we have
never stated so expressly, the accrual date of a § 1983 cause of action is a question of federal law
that is not resolved by reference to state law.”) (emphasis in original). Under federal law, a claim
accrues when the plaintiff “knows or has reason to know of the injury that is the basis of the
action.” Pouncil v. Tilton, 704 F.3d 568, 574 (9th Cir. 2012). A plaintiff need not know that the
injury was a result of a legal wrong or who caused the injury for the action to accrue. See
Coppinger-Martin v. Solis, 627 F.3d 745, 749 (9th Cir. 2010) (“We have previously held, in the
context of civil rights claims under 42 U.S.C. §§ 1981, 1983, 1985, and 1986, that a plaintiff’s
claim accrues when the plaintiff learns of the ‘actual injury,’ i.e., an adverse employment action,
and not when the plaintiff suspects a ‘legal wrong,’ i.e., that the employer acted with a
discriminatory intent.”); Davis v. United States, 642 F.2d 328, 331 (9th Cir. 1981) (“In the
absence of fraudulent concealment it is plaintiff’s burden, within the statutory period, to
determine whether and whom to sue.”).
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Plaintiff’s alleged injuries stem from the delay of receiving a license to admit ventilatordependent patients into her adult foster home. Her injuries, lost income and emotional distress
from the delay, should have been apparent no later than the day Plaintiff received the license.
Therefore, Plaintiff’s claims accrued in October 2011 (when her license was issued), more than
two years ago.
2. Continuing Violation
Plaintiff next argues that Defendants’ actions amount to a continuing violation, and
therefore, these claims are not time barred. Defendants respond that the facts alleged by Plaintiff
do not support a continuing violation because they are not a “systemic policy or practice.”
Under the doctrine of continuing violation, “[a] plaintiff has adequately pled an ongoing
claim if she can show a systemic policy or practice that operated, in part, within the limitations
period—a systemic violation.” Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 973-74
(9th Cir. 2010) (quotation marks omitted). Plaintiff’s assertion that Defendants first delayed
issuing the ventilator license and then delayed in approving Plaintiff’s first ventilator-dependent
resident, even if accepted as true, does not amount to a “systemic violation.” Instead, Plaintiff
alleges two separate actions by the Defendants and other DHS employees—first the delay of her
ventilator license and then the delay of approving her first ventilator dependent patient. Plaintiff
has not provided evidence of any “systemic policy or practice.” Therefore, in order for Plaintiff’s
new claims to survive the statute of limitations, they must related back.
3. Relation Back for Existing Defendants
Plaintiff’s third argument is that her new claims alleging violations of the First
Amendment and Equal Protection Clause relate back to her original Due Process Clause claim.
Defendants argue that the added claims do not arise “out of the conduct, transaction, or
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occurrence set out—or attempted to be set out—in the original pleading,” Fed. R. Civ. P.
15(c)(1)(B), and therefore do not relate back.
A claim arises out of the same conduct, transaction, or occurrence if it “share[s] a
common core of operative facts such that the plaintiff will rely on the same evidence to prove
each claim.” Williams v. Boeing Co., 517 F.3d 1120, 1133 (9th Cir. 2008) (holding that there was
no common core of operative facts between a compensation discrimination claim and promotion
discrimination, hostile work environment, and retaliation claims) (citation and quotation marks
omitted). For a claim to relate back if must arise from “the same general conduct, transaction,
[or] occurrence” as the original claim. Tillman v. Atl. Coast Line R. Co., 323 U.S. 574, 581
(1945). In this case, all three of Plaintiff’s claims arise from the same “general conduct”—
Defendants’ actions in delaying the issuance of Plaintiff’s ventilator permit. Therefore,
Plaintiff’s First Amendment and Equal Protection Clause claims relate back, and Plaintiff is
granted leave to amend her complaint to add these new claims.
B. Addition of New Defendants
Plaintiff also seeks to amend her complaint to add six new defendants: Marie Cervantes,
Trevin Butler, Rey Naravaiz, Alex Polk, Ann McMichael, and Randy Mifflin. After conducting
several depositions, Plaintiff asserts that she discovered that these DHS employees, in addition to
the two original Defendants, were involved in unlawfully delaying her ventilator license.
When a plaintiff seeks to amend the party against whom a claim is asserted, three
conditions must be met for the claim to relate back: (1) the amendment must assert a “claim or
defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set
out—in the original pleading”; (2) the new party to be brought in by amendment must have
“received such notice of the action that it [would] not be prejudiced in defending on the merits”;
and (3) the new party to be brought in by amendment “knew or should have known that the
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action would have been brought against it, but for a mistake concerning the proper party’s
identity.” Fed. R. Civ. P. 15(c)(1)(B)-(C).
Defendants argue that the second and third elements of Rule 15(c) are not satisfied in this
case because the six additional DHS employees did not have notice that they would be
defendants in this litigation and because there was no “mistake” that the DHS employees should
have been aware of. Defendants further argue that the fact that Plaintiff did not know before
discovery which DHS employees were involved in the issuance of Plaintiff’s license is not
relevant. See Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548-49 (2010) (discussing how
the plaintiff’s knowledge of the proper party is not directly relevant to the inquiry under Rule
15(c)(1)(C)—but only relevant “if it bears on the proposed defendant’s understanding of whether
the plaintiff made a mistake regarding the proper party’s identity”).
Plaintiff counters that the additional DHS employees had notice of the lawsuit because
they all worked for the same office and were aware of the litigation. Plaintiff further argues that
Defendants should have known that Plaintiff mistakenly did not include all of these DHS
employees, particularly considering that Marie Cervantes was the final decision maker regarding
the issuance of ventilator licenses and the direct supervisor of the two named Defendants, Connie
Rush and Hazel Lefler. In response, Defendants argue that although the six DHS employees
knew that the lawsuit was moving forward, they did not have notice that they themselves would
be anything more than just witnesses in the lawsuit.
The Court finds that Marie Cervantes, as the supervisor and final decision-maker
regarding ventilator licenses, both received adequate notice of the lawsuit and “should have
known that the action would have been brought against [her], but for a mistake.” See Fed. R. Civ.
P. 15(c)(1)(C). The other DHS employees, who were not supervisors or final decision-makers,
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and it appears were somewhat marginally involved in processing the ventilator licenses, did not
receive adequate notice that they might be defendants in this lawsuit and would not have known
that but for a mistake, they would have been named. Therefore, the Court will allow Plaintiff to
add Marie Cervantes as a defendant in the amended complaint.
CONCLUSION
The Court GRANTS IN PART and DENIES IN PART Plaintiff’s motion to amend
(Dkt. 32). Plaintiff will be allowed to amend her complaint to add claims for violation of the
First Amendment and the Equal Protection Clause of the Fourteenth Amendment and to add
Marie Cervantes as a defendant.
IT IS SO ORDERED.
DATED this 13th day of August, 2014.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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