Liu v. Portland State University et al

Filing 188

Opinion and Order: The Court GRANTS PSU Defendants' Renewed Motion 152 for Summary Judgment and DISMISSES with prejudice Plaintiff's claims against PSU Defendants. Signed on 03/28/2016 by Judge Anna J. Brown. See attached 15 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

HENRY D. LIU,
Plaintiff,

3:14-CV-00908-BR
OPINION AND ORDER

v.
PORTLAND STATE UNIVERSITY, et
al.,
Defendants.

MICAH D. FARGEY
Fargey Law PC
5 Centerpointe Drive, 4th Floor
Lake Oswego, OR 97035
[phone]
Attorneys for Plaintiff
P.K. RUNKLES-PEARSON
SHARAE M. WHEELER
Miller Nash LLP
111 S.W. Fifth Avenue
Suite 3400
Portland, OR 97204
[phone]
Attorneys for Defendants Portland State University,
Jacqueline Balzer, Domanic Thomas, and Joseph Schilling

1 - OPINION AND ORDER

TRACY REEVE
Portland City Attorney
J. SCOTT MOEDE
WADE H. TUCKER
Deputy City Attorneys
1221 S.W. Fourth Avenue, Suite 430
Portland, OR 97204
[phone]
Attorneys for Defendants City of Portland and James
Crooker
KAREN O'KASEY
JASON R. POSS
Hart Wagner LLP
1000 S.W. Broadway, Twentieth Floor
Portland, Oregon 97205
[phone]
Attorneys for Defendant Oregon Health & Sciences
University
DUNCAN K. FOBES
Patterson Buchanan Fobes & Leitch
2112 Third Avenue, Suite 500
Seattle, WA 98121
[phone]
Attorneys for Defendant Cascadia Behavioral Healthcare
BROWN, Judge.
This matter comes before the Court on the Renewed Motion
(#152) for Summary Judgment of Defendants Portland State
University (PSU), Jacqueline Balzer, Domanic Thomas, and Joseph
Schilling (hereinafter referred to collectively as PSU
Defendants).

For the reasons that follow, the Court GRANTS the

Renewed Motion and DISMISSES with prejudice Plaintiff’s claims
against PSU Defendants.

2 - OPINION AND ORDER

BACKGROUND
On May 2, 2014, Plaintiff Henry D. Liu filed pro se a first
amended pro se complaint in Clatsop County Circuit Court against
40 Defendants alleging seventeen claims for relief related to
Plaintiff’s interaction with various Portland police officers,
the seizure of Plaintiff’s guns, Plaintiff’s commitment to the
Oregon Health Sciences University (OHSU) psychiatric ward,
Plaintiff’s expulsion from PSU, and articles about Plaintiff’s
expulsion published by the PSU newspaper The Vanguard, all
occurring between April 2012 and June 2012.
On June 5, 2014, Defendants removed the matter to this Court
on the basis of federal-question jurisdiction.
At some point before June 30, 2014, Plaintiff obtained
counsel.
On August 15, 2014, Plaintiff filed a Second Amended
Complaint against 29 Defendants alleging nine claims for relief
related to Plaintiff’s interaction with various Portland police
officers, the seizure of Plaintiff’s guns, Plaintiff’s commitment
to the OHSU psychiatric ward, and Plaintiff’s expulsion from PSU,
all occurring between April 2012 and June 2012.
On August 28, 2015, PSU Defendants filed a Motion for
Summary Judgment as to all of Plaintiff’s claims against them.
On November 23, 2015, Plaintiff filed a Motion for Extension
of Summary Judgment-Related Court-Imposed Deadlines, which PSU

3 - OPINION AND ORDER

Defendants opposed.
On December 4, 2015, the Court held a status conference.
Based on the parties’ representations at that conference, the
Court ordered the parties to meet in person and to confer
regarding the dismissal of certain parties and claims from this
proceeding.

The Court struck all pending Motions and directed

the parties to file a preliminary Pretrial Order setting out the
parties, claims, and defenses that remained in this matter after
the parties conferral.
On December 18, 2015, the parties filed a Joint Proposed
Pretrial Order in which they dismissed numerous claims and
parties and advised the Court that this matter would proceed only
as to Plaintiff’s claims (1) against the City of Portland and
Officer Crooker pursuant to 42 U.S.C. § 1983 for unlawful seizure
in violation of the Fourth Amendment to the United States
Constitution; (2) against OHSU pursuant to 42 U.S.C. § 1983 for
unlawful confinement in violation of the Fourth Amendment to the
United States Constitution; (3) against PSU, Balzer, and Thomas
pursuant to 42 U.S.C. § 1983 for violation of Plaintiff’s right
to due process under the Fourteenth Amendment to the United
States Constitution; (4) against the City of Portland and Officer
Crooker for false arrest and/or confinement in violation of state
law; (5) against Cascadia Behavioral Healthcare for unlawful
confinement in violation of state law; (6) against PSU,

4 - OPINION AND ORDER

Schilling, and Cascadia for negligence “based on their respective
roles in the arrest of Plaintiff”; and (7) against PSU, Balzer,
and Thomas for negligence in “failing to exercise due care in
connection with the process and proceedings that led to
Plaintiff’s expulsion from PSU.”
On December 23, 2015, PSU Defendants filed a Renewed Motion
for Summary Judgment.

The Court took PSU Defendants’ Motion

under advisement on January 25, 2016.

STANDARDS
Summary judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

In response to a properly

supported motion for summary judgment, the nonmoving party must
go beyond the pleadings and show there is a genuine dispute as to
a material fact for trial.
. . . .

Id.

"This burden is not a light one

The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue."
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
5 - OPINION AND ORDER

In

A dispute as to a material fact is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party."

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

"Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues."

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted).

A “mere

disagreement or bald assertion” that a genuine dispute as to a
material fact exists “will not preclude the grant of summary
judgment.”

Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV-

1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)
(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).

When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive
evidence than otherwise would be necessary."

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted).
The substantive law governing a claim or a defense
determines whether a fact is material.

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.
6 - OPINION AND ORDER

Id.

DISCUSSION
As noted, Plaintiff asserts claims against PSU, Balzer, and
Thomas for violation of Plaintiff’s right to due process under
the Fourteenth Amendment and against all PSU Defendants for
negligence.

PSU Defendants move for summary judgment as to all

of Plaintiff’s claims against them.
I.

Plaintiff failed to properly serve Defendants Balzer,
Thomas, and Schilling.
Defendants assert the Court should dismiss all of

Plaintiff’s claims against Defendants Balzer, Thomas, and
Schilling because Plaintiff failed to properly serve those
Defendants.
Federal Rule of Civil Procedure 4(e) provides in part:
(e) Unless otherwise provided by federal law, service
upon an individual . . . may be effected in any
judicial district of the United States:
(1) pursuant to the law of the state in which the
district court is located.
Oregon Rule of Civil Procedure 7D(3)(a)(i) permits service
on an individual defendant “by personal delivery . . . to such
defendant or other person authorized by appointment of law to
receive service of summons on behalf of such defendant . . . or
by office service.”

With respect to office service, Oregon Rule

of Civil Procedure 7D(2)(c) provides in pertinent part:
If the person to be served maintains an office for
the conduct of business, office service may be
made by leaving true copies of the summons and the
complaint at such office during normal working
7 - OPINION AND ORDER

hours with the person who is apparently in charge.
Where office service is used, the plaintiff, as
soon as reasonably possible, shall cause to be
mailed, by first class mail, true copies of the
summons and the complaint to the defendant at
defendant's dwelling house or usual place of abode
or defendant's place of business or such other
place under the circumstances that is most
reasonably calculated to apprise the defendant of
the existence and pendency of the action.
On October 3, 2014, Plaintiff delivered copies of the
Summons and Complaint addressed to PSU Defendants to Cynthia
Starke in PSU’s Office of the General Counsel.

On October 9,

2014, Plaintiff mailed copies of the Summons and Complaint to
Starke’s office address at the Office of General Counsel.
Defendants Balzer, Thomas, and Schilling, however, did not work
in the PSU Office of General Counsel.
even work at PSU on October 3, 2014.

In fact, Balzer did not
In addition, the record

reflects Starke was not authorized to accept service on behalf of
Balzer, Thomas, or Schilling.

Plaintiff, therefore, did not

accomplish office service or service on Defendants Balzer,
Thomas, and Schilling in any manner specifically permitted under
Oregon Rule of Civil Procedure 7.
Plaintiff does not appear to dispute that he did not
properly accomplish office service.

Plaintiff, however, relies

on Oregon Rule of Civil Procedure 7G to support his assertion
that he properly served Balzer, Thomas, and Schilling because
they received actual notice of the existence of the action, knew
they had been named as defendants, and knew Plaintiff had
8 - OPINION AND ORDER

attempted to serve them.

Rule 7G provides in pertinent part:

Failure to comply with provisions of this rule
relating to the . . . issuance of summons . . .
shall not affect the validity of service of
summons . . . if the court determines that the
defendant received actual notice of the substance
and pendency of the action. . . . The court shall
disregard any error in the content of summons that
does not materially prejudice the substantive
rights of the party against whom summons was
issued.
According to Plaintiff, therefore, the Court should disregard any
error in service.
The Oregon Supreme Court, however, has made clear that “the
fact that a defendant somehow received actual notice of the
existence and pendency of an action, unrelated to service of a
summons, does not satisfy the requirements of the rule [ORCP 7].”
Jordan v. Wiser, 302 Or. 50, 60 (1986), disapproved of on other
grounds by Baker v. Foy, 310 Or. 221, 228 (1990).

The court

explained in Jordan that
the first sentence of ORCP 7G, which requires the
court to ignore defects of service when there is
actual notice, does not specifically apply to
‘manner’ of service. This was done intentionally
and is consistent with the concept that service of
a summons is required. It is possible that a
defendant could receive actual notice from service
of a summons that did not comply with ORCP 7D(1).
If, for example, summons was served by leaving
papers at an address which was not that of the
defendant, but the persons receiving the summons
recognized the defendant's name and sent the
defendant the summons, this would hardly be a
manner of service reasonably calculated to apprise
the defendant of the existence and pendency of the
action. Even though the defendant received actual
notice of the action, he or she would not have
9 - OPINION AND ORDER

received it by a service which complied with ORCP
7.
Id. (quotation omitted)(emphasis added).
did not properly serve defendant Wiser.

In Jordan the plaintiff
Wiser received actual

notice of the action from his insurance company and from a second
defendant.

The Oregon Supreme Court concluded actual notice was

insufficient:

“Reading a summons received from an unauthorized

delivery would only increase Wiser's actual notice.

Actual

notice is not enough to trigger the application of ORCP 7G.”

Id.

at 59.
Here, as in Jordan, Plaintiff delivered the summons and
Complaint to an individual at PSU who was not authorized to
accept service on behalf of Balzer, Thomas, or Schilling.

The

fact that Balzer, Thomas, and Schilling may have received actual
notice of the action does not “trigger the application of ORCP
7G” and is not a method “reasonably calculated to provide notice
of the action” to Balzer, Thomas, and Schilling.

The Court,

therefore, concludes Plaintiff did not properly serve Balzer,
Thomas, and Schilling.
In addition, Plaintiff may not serve Balzer, Thomas, or
Schilling now because Plaintiff’s claims against Balzer, Thomas,
and Schilling are untimely.

State rules concerning statutes of

limitations and related requirements for service of process
determine whether state-law claims asserted in federal court are
timely.

Walker v. Armco Steel Corp., 446 U.S. 740, 753 (1980).

10 - OPINION AND ORDER

See also Hall v. City of Beaverton, No. CV 08-113-JE, 2008 WL
4534105, at *2 (D. Or. Oct. 6, 2008)(state law determines whether
state-law claims are timely filed in federal court); Lyons v. H &
R Transport, Inc., 231 F. Supp. 2d 1009, 1011-12 (D. Or. 2001)
(same).

Oregon Revised Statute § 12.110(1) provides a plaintiff

must commence a negligence claim within two years of the acts
giving rise to the claim.

In addition, the Ninth Circuit has

held courts must apply the forum state's statute of limitations
for personal-injury claims to any § 1983 claims.

See, e.g.

Butler v. Nat'l Comm. Renaissance of Cal., 766 F.3d 1191, 1198
(9th Cir. 2014)("Section 1983 does not contain its own statute of
limitations.

Without a federal limitations period, the federal

courts apply the forum state's statute of limitations for
personal injury actions.").

Under Oregon law personal-injury

claims must be commenced within two years of the injury.
Rev. Stat. § 12.110(1).

See Or.

Finally, when, as here, a plaintiff

serves a defendant more than 60 days after the filing of the
complaint, under Oregon law the action is considered commenced on
the date of service rather than on the date the complaint was
filed.

Or. Rev. Stat. § 12.020(2).

The last act that Plaintiff alleges in the Pretrial Order
that forms the basis for his claims against Balzer, Thomas, and
Schilling (denial of Plaintiff’s student-conduct appeal by PSU)
occurred on August 16, 2012.

11 - OPINION AND ORDER

Thus, any attempt to serve Balzer,

Thomas, and Schilling would be futile because Plaintiff’s claims
against them are now untimely.
Accordingly, the Court grants PSU Defendants’ Motion for
Summary Judgment as to all of Plaintiff’s claims against
Defendants Balzer, Thomas, and Schilling.
II.

Plaintiff’s Sixth and Seventh Claims for negligence against
PSU are untimely.
PSU Defendants seek summary judgment as to Plaintiff’s Sixth

and Seventh Claims for negligence against PSU on the grounds that
they are untimely and unsupported by the law.
As noted, the last act on which Plaintiff relies to support
his negligence claims against PSU is the August 16, 2012, denial
of his student-conduct appeal.

Plaintiff filed his initial

complaint in Clatsop County Circuit Court on April 18, 2014.
Plaintiff, however, did not complete even his improper service on
PSU until October 9, 2014.

As also noted, the limitations period

for negligence claims under Oregon law is two years from the acts
that form the basis for the negligence claim and when, as here, a
plaintiff serves a defendant more than 60 days after the filing
of the complaint, the action is deemed commenced on the date of
service rather than on the date the complaint was filed.

Thus,

even if Plaintiff’s October 2014 service on PSU had been proper,
he did not commence his negligence claims against PSU within two
years of August 16, 2012.

Plaintiff’s negligence claims against

PSU, therefore, are untimely.
12 - OPINION AND ORDER

Accordingly, the Court grants PSU Defendants’ Motion for
Summary Judgment as to Plaintiff’s Sixth and Seventh negligence
claims.
III. Plaintiff’s § 1983 claim against PSU for violation of
Plaintiff’s right to due process under the Fourteenth
Amendment
Defendant PSU seeks summary judgment as to Plaintiff’s
§ 1983 claim for violation of Plaintiff’s right to due process on
the ground that the Ninth Circuit has held PSU is an arm of the
State of Oregon and Congress did not abrogate the State’s
Eleventh Amendment immunity when it passed § 1983.

Hagel v.

Portland State Univ., 237 F. App’x 146, 147-48 (9th Cir. 2007)
(“We affirm the district court's dismissal of Portland State
University as a defendant [to the plaintiff’s § 1983 claims].
The University is an arm of the state of Oregon and, therefore,
immune from suit under the Eleventh Amendment.”).

See also

Rounds v. Or. State Bd. of Higher Educ., 166 F.3d 1032, 1035 (9th
Cir. 1999)(“[W]e have specifically found that the Board of Higher
Education is immune from suit under 42 U.S.C. § 1983:

There is

no doubt that suit under [§] 1983 against the [Oregon] State
Board of Higher Education is a suit against the state qua state
and is, therefore, barred by the Eleventh Amendment. . . .

The

Eleventh Amendment therefore bars suit against the University and
the Board of Higher Education alike.”).
Plaintiff, relying on Lapides v. Board of Regents of
13 - OPINION AND ORDER

University System of Georgia, 535 U.S. 613 (2002), asserts PSU
waived its Eleventh Amendment immunity when it removed the matter
to this Court.

In Lapides, however, the Court expressly noted

its holding regarding waiver of Eleventh Amendment immunity
applied only to the defendant’s state-law claims:
[W]e must limit our answer to the context of
state-law claims, in respect to which the State
has explicitly waived immunity from state-court
proceedings. That is because Lapides' only
federal claim against the State arises under 42
U.S.C. § 1983 . . . and we have held that a State
is not a “person” against whom a § 1983 claim. . .
might be asserted. Will v. Michigan Dept. of
State Police, 491 U.S. 58, 66 (1989).
Lapides, 535 U.S. at 617.

The Court in Lapides, therefore,

specifically upheld its decision in Will that states are immune
from suit for claims brought under § 1983.
Accordingly, the Court grants PSU Defendants’ Motion for
Summary Judgment as to Plaintiff’s § 1983 claim that PSU violated
his right to procedural due process.

CONCLUSION
For these reasons, the Court GRANTS PSU Defendants’ Renewed
Motion (#152) for Summary Judgment and DISMISSES with prejudice

14 - OPINION AND ORDER

Plaintiff’s claims against PSU Defendants.
IT IS SO ORDERED.
DATED this 28th day of March, 2016.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

15 - OPINION AND ORDER