Liu v. Portland State University et al
Filing
193
Opinion and Order: The Court GRANTS OHSUs Motion 169 for Summary Judgment and DISMISSES with prejudice Plaintiffs claim against OHSU. Signed on 05/16/2016 by Judge Anna J. Brown. See attached 26 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
(503) 946-9426
Attorneys for Plaintiff
P.K. RUNKLES-PEARSON
SHARAE M. WHEELER
Miller Nash LLP
111 S.W. Fifth Avenue
Suite 3400
Portland, OR 97204
(503) 205-2314
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
(503) 823-4047
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
(503) 222-4499
Attorneys for Defendant Oregon Health & Sciences
University
DUNCAN K. FOBES
Patterson Buchanan Fobes & Leitch
2112 Third Avenue, Suite 500
Seattle, WA 98121
(206) 462-6700
Attorneys for Defendant Cascadia Behavioral Healthcare
BROWN, Judge.
This matter comes before the Court on the Motion (#169) for
Summary Judgment of Defendant Oregon Health and Sciences
University (OHSU).
For the reasons that follow, the Court GRANTS
OHSU’s Motion and DISMISSES with prejudice Plaintiff’s claims
against OHSU.
2 - OPINION AND ORDER
BACKGROUND
The following facts are taken from the Agreed Facts in the
parties’ Pretrial Order and the parties’ materials related to
OHSU’s Motion for Summary Judgment and are undisputed unless
otherwise noted.
Plaintiff Henry D. Liu was enrolled as a graduate student in
the Conflict Resolution Program at Portland State University
(PSU) from the beginning of the fall term in 2011 through
June 21, 2012.
On April 20, 2012, another graduate student in the Conflict
Resolution Program told PSU Professor Rachel Cunliffe that
Plaintiff had made statements about the faculty that the student
found threatening.
At some point the student also reported her
conversation with Plaintiff to PSU Campus Public Safety (CPS)
Officer Sergeant Joseph Schilling.
The student specifically
advised Sergeant Schilling that she was a classmate of Plaintiff
and during a break from class on April 12, 2012, Plaintiff told
the student that (1) Plaintiff “had issues” with the Conflict
Resolution Program and its Director, Professor Robert Gould,
because of an unsatisfactory grade that he had received after he
caused another student to cry in class; (2) he “had issues”
because a fellow student had allegedly used the word "chink"
while speaking with him; and (3) he made statements that made the
student believe he was angry because he felt faculty members were
3 - OPINION AND ORDER
treating him differently due to his ethnicity.
The student also
advised Sergeant Schilling that Plaintiff told her after class on
April 12, 2012, that he had a back or spinal injury and was
taking a large amount of pain medication that often interfered
with his thinking and daily activity.
The student suggested
alternatives such as yoga and meditation to relieve stress, but
Plaintiff stated:
"[T]his situation is really pushing me over
the edge and we know what happens when students are pushed over
the edge."
The student emailed Plaintiff shortly after April 12,
2012, and Plaintiff responded he was very stressed, upset, and
unable to sleep and was “becoming aware of repressed emotions of
anger.”
The student told Sergeant Schilling that the student
talked to Plaintiff after class on April 19, 2012, about
Professor Gould, and Plaintiff became agitated, raised his voice,
used profanity, and stated:
his ass.”
“I’m about ready to stick a .45 in
Plaintiff then lowered his voice and apologized, but
he continued to express frustration and stated he was unable to
sleep.
He also repeated he was taking a lot of pain medication,
but it was not helping his pain level.
Plaintiff added:
“Professor Stan Sitnick giving him a [bad] grade did not help
. . ., ‘he could get shot.’”
Plaintiff told the student that he
was noticing he had “a lot of hatred.”
The student became
alarmed, changed the subject, and asked Plaintiff if he had
weekend plans.
Plaintiff responded he planned to go to “target
4 - OPINION AND ORDER
practice on Sunday.”
Sergeant Schilling believed the student’s
statements were credible and felt concerned.
Sergeant Schilling ascertained Plaintiff was living off of
the PSU campus.
Accordingly, Sergeant Schilling contacted the
Portland Police Bureau and shared with Portland Police Officer
James Crooker the student’s statement about Plaintiff.
Officer Crooker contacted the Project Respond team from
Defendant Cascadia Behavorial Health Care and asked them to
assist in a visit to Plaintiff’s residence for a mental-health
evaluation and possible Director’s Hold pursuant to former Oregon
Revised Statute § 426.233.
On April 20, 2012, Officer Crooker, Portland Police Officer
Jason Walters, Sergeant Schilling, CPS Officer David Baker, and
Cascadia Project Respond personnel Rachel Phariss and Sarah
Schellhorn went to Plaintiff’s residence to address what they
considered to be Plaintiff’s possible threat to the community.
Phariss and Schellhorn waited around the corner from Plaintiff’s
apartment while Officers knocked on Plaintiff’s door.
Officer Crooker testifies in his Declaration that Plaintiff
“appeared dazed and confused and was unable to communicate
clearly” when he answered the door.
¶ 8.
Decl. of James Crooker at
Plaintiff permitted the officers to enter his apartment.
Officer Crooker asked Plaintiff if there were any firearms in his
apartment, and Plaintiff stated he did not have any firearms.
5 - OPINION AND ORDER
When the officers entered Plaintiff’s apartment, however, they
observed pamphlets for firearms on a table as well as an empty
rifle box.
At that point Officer Crooker asked Plaintiff again
if there were any firearms in his apartment.
Officer Crooker
testifies in his Declaration that Plaintiff “began to back away
from [Officer Crooker] and the other officers.
In response
[Officer Crooker] took [Plaintiff’s] wrist and handcuffed
Plaintiff ‘for his own safety’ and read Plaintiff his Miranda
rights.
After some discussion Plaintiff told the officers that
he had firearms and agreed to tell them where they could be found
in his apartment.
Officers eventually found unloaded .22 and .45
caliber handguns, an unloaded M4 carbine assault rifle, an
unloaded 9mm handgun, and ‘thousands of rounds of ammunition.’”
Crooker Decl. at ¶ 10.
Officers also found “various knifes,
survival tools (including an axe), a canteen, water bottles,
dressings for wounds, rope, extra magazine clips, and
flashlights.”
Id.
Officer Crooker testified in his Declaration
that in his experience “[t]he manner in which all these items
were laid out was consistent with that of a moment's-notice
preparedness for immediate accessibility to grab pre-packed grab
bags in the event that combat were to occur suddenly.”
Id.
Officers also found prescriptions for Percocet and Tramadol in
Plaintiff’s name, two bottles of Oxycodone prescribed to
Plaintiff’s father, and several empty bottles of alcohol.
6 - OPINION AND ORDER
Officer Crooker spoke with Plaintiff, and, “after a lengthy
conversation,” Plaintiff admitted he had made “bone-headed”
comments “including something about using a .45 caliber handgun
to kill a professor.”
Crooker Decl. at ¶ 11.
Phariss and Schellhorn entered Plaintiff’s apartment after
Officer Crooker handcuffed Plaintiff.
Phariss and Schellhorn
interviewed Plaintiff for 30 or 40 minutes.
Phariss testifies in
her Declaration that Plaintiff agreed the police could remove the
firearms from his apartment.
Plaintiff, however, “appeared to be
confused and . . . kept sending the police to the wrong places to
locate the weapons he had throughout his apartment.”
Rachel Phariss at ¶ 6.
Decl. of
Phariss states
[Plaintiff] said he could not remember making the
threatening comments he made to [the student], but
he admitted that he may have made such comments.
[Plaintiff's] conversation was vague and he kept
going off on tangents. His thought process was
circular. He denied hearing voices or having
hallucinations. I could not tell if he was
disoriented, but he did appear to be confused. He
denied any mental health history, and he denied
having any intent to harm himself. He seemed to
marginalize the allegation that he had made
threats about shooting one of his professors. He
also denied having any intention to shoot anyone
at PSU.
I observed the following things while I was in
[Plaintiff's] apartment: (1) the receipt from his
recently purchased AR 15 indicated that he had
bought it after his problems with PSU began;
(2) [Plaintiff] had ammunition and tactical gear,
including duffle bags with dehydrated food,
knives, and "quick stop", which will stop bleeding
if a person is shot by a bullet; (3) there were
empty beer, liquor, and wine bottles strewn about
7 - OPINION AND ORDER
the apartment; and (4) there were Percocet and
Tramadol pills on his coffee table as well as two
bottles of Oxycodone with [Plaintiff’s] father's
name on them.
Phariss Decl. at ¶¶ 7-8.
Phariss testifies “[d]iagnosing
[Plaintiff] was difficult because it was unclear whether his
behavior was due to alcohol, drugs, or mental illness.”
Decl. at ¶ 9.
Phariss
Phariss, therefore, deferred diagnosis, but she
decided Plaintiff “would benefit from a full psychological
evaluation.”
Phariss and Schellforn consulted with Meg Kaveny,
Cascadia Project Respond Supervisor, and Kaveny consulted with
Jay Auslander, Cascadia’s Director of Emergency Services.
Ultimately Phariss, Kaveny, and Auslander concluded a Director’s
Hold on Plaintiff was justified because there was probable cause
to believe Plaintiff was
dangerous to others and need of immediate
psychological evaluation based on
(1) [Plaintiff’s] speech latency, which did not
appear to be a language issue; (2) [Plaintiff’s]
apparent confusion; (3) [Plaintiff’s] vague
explanations of his behavior; (4) [Plaintiff]
minimizing the allegations against him and not
appreciating the seriousness of making threats;
(5) the information regarding his statements
threatening to shoot one of his professors; and
(6) the large amount of weapons, ammunition, and
tactical gear found in his apartment.
Phariss Decl. at ¶ 9.
Phariss completed a Report of Peace
Officer Custody of an Allegedly Mentally Ill Person as Directed
by a Community Mental Health Director and issued a Director’s
Hold on Plaintiff for the following reasons:
8 - OPINION AND ORDER
Concerns about targeted specific threats, large
number of firearms, ammo & tactical gear, speech
latencies, confusion & vague explanation of
behavior & previous statements that minimize
concerns. Extreme risk of potential harm to
others as evidenced by the above risk factors.
Phariss Decl., Ex. 1 at 1.
The Report directed Officer Crooker
to take Plaintiff into custody and to transport Plaintiff to OHSU
for evaluation.
Officer Crooker transported Plaintiff to OHSU in
his patrol car.
At OHSU the in-patient nurse Cassondra Richard noted OHSU’s
understanding that Plaintiff had been brought there pursuant to a
Director’s Hold because, according to a fellow student, Plaintiff
had threatened professors and the Dean of PSU with “homicidal
violence,” and police officers had found multiple firearms,
knives, tactical equipment, quikclot dressings, “thousands of
rounds of ammunition,” multiple empty alcohol bottles, and
various prescription drugs in Plaintiff’s apartment.
Micha Fargey, Ex. 2 at 8.
Decl. of
Nurse Richard also noted Plaintiff
“reportedly purchased [an] assault rifle in February after
threatening a professor for awarding [Plaintiff] with an
unsatisfactory grade.”
Id.
On April 20, 2012, Plaintiff
underwent a number of intake evaluations including a Social Work
Mental Health Assessment conducted by social worker Erin Copley.
Copley noted Plaintiff denied homicidal feelings, reported
feeling remorseful for making the statements, and described his
statements as “offhand comment[s].”
9 - OPINION AND ORDER
Id.
Copley, however, noted
Plaintiff’s thought processes were “[d]isorganized, pt had
trouble remembering questions, answering questions sequentially,
etc.”
Fargey Decl., Ex. 2 at 9.
Copley described Plaintiff’s
memory as “[u]nreliable, pt was not forthcoming with either
officers or SW, reports gaps in his memory.”
Id.
Copley noted
Plaintiff “presents as very intelligent and manipulative.
He
denied having any intent to harm anyone, but PPD report that they
were concerned about the pt’s lack of honesty in disclosing
locations of guns, etc.”
Fargey Decl., Ex. 2 at 10.
On April 20, 2012, Plaintiff was evaluated by Drs. Robert
Henrickson, M.D., and Joshua Russell, M.D., who noted Plaintiff
had homicidal ideation and “means to accomplish plan.”
Decl., Ex. 2 at 2.
Fargey
Drs. Henrickson and Russell relied on
Copley’s “excellent note” regarding Plaintiff’s “presentation” on
arrival at OHSU.
Drs. Henrickson and Russell noted Plaintiff
denied his threats were “sincere,” however, they “seem to have
been able to be substantiated and [Plaintiff] would have clear
reason to be less than forthright when faced with being placed on
a psychiatric hold.”
Id. at 6.
Plaintiff was also seen by Andrea Moore, M.D., on April 20,
2012.
Dr. Moore reported Plaintiff reported “the whole situation
is a misunderstanding.”
Fargey Decl., Ex. 2 at 20.
Dr. Moore
reported Plaintiff’s thought processes were “somewhat slow,” and
his “associations [were] logical/goal directed, at times
10 - OPINION AND ORDER
evasive.”
Id. at 23.
Dr. Moore noted Plaintiff’s insight was
limited and his judgment was poor.
Id.
Dr. Moore noted
Plaintiff presented “differently in the ED where he was described
as disorganized, pressured and psychotic, while on the unit here
he has been calm and linear.”
Id. at 25.
Dr. Moore noted
Plaintiff is “clearly very intelligent and it appears he may have
been purposefully avoiding topics or manipulating our interview
at times.”
Id.
On April 20, 2012, Nurse Miel Nelson noted Plaintiff was
“calm and cooperative” and denied homicidal ideation.
Miel
noted, however, that Plaintiff “endorse[d] having feelings of
extreme anger towards his professor for what he says is an unjust
grade he received.”
Id. at 14.
Miel noted Plaintiff had a “flat
affect and intermittent eye contact” when discussing his threats
and anger.
Id.
Plaintiff remained at OHSU from April 20, 2012, through
April 25, 2012, during which time he was evaluated by numerous
medical professionals including Drs. Anne Gross, Bridgid Crowley,
Joshua Russell, and Robert Henrickson.
On April 25, 2012, Plaintiff was discharged from OHSU.
Dr. Crowley noted in Plaintiff’s discharge summary that Plaintiff
did not display symptoms of psychosis or depression, and he “did
not endorse” an intent to hurt himself or others.
Dr. Crowley
noted Plaintiff had reported throughout his hospitalization that
11 - OPINION AND ORDER
he felt “misunderstood regarding statements he had made," and
felt anxious and did not sleep well during his stay.
Decl., Ex. 2 at 17.
Fargey
Dr. Crowley noted Plaintiff would not have
any access to weapons after he was discharged because his
firearms had been removed from his apartment.
Dr. Crowley
described Plaintiff’s judgment and insight as “improving . . .;
at time of discharge he reported feeling ‘regretful’ about the
situation although he maintains that his statements were
misunderstood.”
Id. at 18.
Plaintiff was discharged with a
prescription for Tramadol “to alleviate his chronic pain [and] to
decrease pain as a possible contribution to his ongoing stress
and to decrease risk of agitation.”
Id. at 18.
In June 2012 Plaintiff was expelled from PSU.
On May 2, 2014, Plaintiff filed pro se a first amended
complaint in Clatsop County Circuit Court against 40 Defendants
alleging seventeen claims for relief related to Plaintiff’s
interactions with Portland police officers, the seizure of
Plaintiff’s guns, Plaintiff’s commitment to the OHSU psychiatric
ward, Plaintiff’s expulsion from PSU, and articles about
Plaintiff’s expulsion published by The Vanguard, the PSU
newspaper, 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
12 - OPINION AND ORDER
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
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
13 - OPINION AND ORDER
Officer Crooker pursuant to 42 U.S.C. § 1983 for unlawful seizure
in violation of Plaintiff’s rights under 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,
Defendant Jacqueline Balzer, and Defendant Domanic 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,
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.
On January 15, 2016, Cascadia filed a Renewed Motion for
Summary Judgment.
On January 15, 2016, OHSU filed a Motion for Summary
Judgment.
The Court took OHSU’s Motion under advisement on
March 1, 2016.
14 - OPINION AND ORDER
On March 28, 2016, the Court issued an Opinion and Order in
which it granted PSU Defendants’ Renewed Motion for Summary
Judgment and dismissed with prejudice Plaintiff’s claims against
PSU Defendants.
On May 12, 2016, the Court granted Cascadia’s Renewed Motion
for Summary Judgment and dismissed with prejudice Plaintiff’s
claims against Cascadia.
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."
In
re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)
(citation omitted).
A dispute as to a material fact is genuine "if the evidence
15 - OPINION AND ORDER
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.
16 - OPINION AND ORDER
Id.
DISCUSSION
As noted, Plaintiff’s remaining claim against OHSU is for
unlawful confinement in violation of the Fourth Amendment to the
United States Constitution brought pursuant to 42 U.S.C. § 1983.
OHSU moves to dismiss Plaintiff’s remaining claim against it on
the grounds that Plaintiff’s claim is untimely or, in the
alternative, Plaintiff’s claim against OHSU is without merit.
I.
Plaintiff’s claim is timely
As noted, Plaintiff was discharged from OHSU on April 25,
2012.
Plaintiff’s claim against OHSU relates solely to his time
at OHSU.
Accordingly, Plaintiff’s claim against OHSU accrued no
later than April 25, 2012.
Plaintiff filed his initial pro se complaint in Clatsop
County on April 18, 2014.
In his initial complaint Plaintiff
alleged claims against OHSU for intentional infliction of
emotional distress (IIED), negligence, negligence per se,
unlawful imprisonment under state law, and violation of Oregon
Revised Statute § 426.
On May 2, 2014, Plaintiff filed pro se an
amended complaint in Clatsop County in which he asserted claims
against OHSU for IIED, negligence, negligence per se, and
unlawful imprisonment under state law.
On December 15, 2014,
Plaintiff filed a Second Amended Complaint in this Court while
represented by counsel in which he asserted for the first time a
§ 1983 claim against OHSU for unlawful arrest in violation of the
17 - OPINION AND ORDER
Fourth Amendment.
Finally, on December 18, 2015, Plaintiff
asserted for the first time in the Pretrial Order his current
§ 1983 claim against OHSU for unlawful confinement in violation
of the Fourth Amendment.
OHSU alleges Plaintiff’s § 1983 claim for unlawful
confinement is untimely because it was not filed within two years
of the date of Plaintiff’s release from OHSU and Plaintiff’s
§ 1983 claim does not relate back to his claim against OHSU for
unlawful imprisonment, which was set out in his initial statecourt complaint.
A.
§ 1983 Statute of Limitations
The Ninth Circuit has held courts must apply the forum
state’s statute of limitations for personal-injury claims to any
claims brought under § 1983.
See, e.g., Butler v. Nat’l Comm.
Renaissance of Ca., 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.
See Or. Rev. Stat. § 12.110(1).
Plaintiff concedes he did not file his § 1983 for
unlawful confinement in violation of the Fourth Amendment against
OHSU within two years from the date his confinement at OHSU
ended, and, therefore, Plaintiff did not bring his claim within
18 - OPINION AND ORDER
two years of his injury.
Plaintiff, however, asserts his § 1983
claim relates back to his state-law unlawful imprisonment claim
asserted in his initial complaint, which was filed within the
applicable limitations period.
B.
Relation Back to Plaintiff’s Original Complaint
The Ninth Circuit has held “[s]tate law, rather than
federal law, governs whether amendments relate back to the
original complaint in civil rights actions pursuant to 42 U.S.C.
§ 1983.”
M.G. ex rel. Goodwin v. Cnty. of Contra Costa, No.
11–4853, 2013 WL 706801, at *3 (N.D. Cal. Feb. 26, 2013)(quoting
Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 768 (9th Cir.
1989)).
Oregon Rule of Civil Procedure 23(c) provides in
pertinent part:
Whenever the claim . . . asserted in the amended
pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth
in the original pleading, the amendment relates
back to the date of the original pleading.
As noted, Plaintiff asserts his § 1983 claim relates
back to his state-law unlawful imprisonment claim asserted in his
initial complaint, and, therefore, his § 1983 claim is timely.
Specifically, Plaintiff asserts his § 1983 claim for unlawful
confinement arises out of the same conduct or occurrence as that
set out in his initial state-law claim.
OHSU, in turn, asserts Plaintiff’s § 1983 claim for
unlawful confinement does not relate back to his state-law
19 - OPINION AND ORDER
unlawful imprisonment claim because Plaintiff’s § 1983 claim
cannot be proven by the same kind of evidence as his original
claim.
Specifically, OHSU notes government bodies such as OHSU
are not vicariously liable for acts of their employees.
See
Monell v. Dep’t of So. Svcs. of City of New York, 436 U.S. 658,
691 (1978).
Pursuant to Monell, OHSU can only be held liable
under § 1983 if Plaintiff can establish a policy, custom, or
practice of OHSU deprived Plaintiff of his constitutional rights.
Plaintiff’s initial and amended complaints in state court did not
allege any policy, custom, or practice that OHSU violated nor is
there any indication in those complaints that Plaintiff intended
to assert his unlawful imprisonment claim arose out of a policy,
practice, or custom of OHSU.
In addition, because Plaintiff did
not allege a § 1983 claim in his initial complaint against OHSU,
OHSU did not have any reason to believe that Plaintiff intended
to challenge its policies, practices, or customs rather than the
actions of individual doctors.
According to OHSU, therefore,
Plaintiff’s initial complaint failed to notify OHSU that its
policies, customs, or practices resulted in tortious conduct,
and, therefore, Plaintiff’s current § 1983 claim against OHSU
does not relate back to Plaintiff’s initial complaint.
Plaintiff’s state-law unlawful imprisonment claim
asserted against OHSU in his initial complaint arose out of
Plaintiff’s hospitalization at OHSU.
20 - OPINION AND ORDER
Plaintiff’s § 1983 claim
against OHSU for unlawful confinement arises out of the same
hospitalization.
Nevertheless, those two claims do not arise out
of the same conduct or occurrence because in his initial
complaint Plaintiff complained about the actions of the
individual OHSU doctors who involuntarily committed Plaintiff.
In his § 1983 unlawful confinement claim Plaintiff complains
about a policy or custom of OHSU that resulted in his
confinement.
The Court notes, however, Plaintiff does not
identify with any degree of specificity what alleged policy or
custom of OHSU is at issue in his Second Amended Complaint, in
the Pretrial Order, or in his Response to OHSU’s Motion for
Summary Judgment.
Thus, OHSU was not on notice that Plaintiff
was asserting an unidentified policy, custom, or practice of OHSU
was at issue in his unlawful confinement claim until Plaintiff
filed his Second Amended Complaint in December 2014, which was
more than two years after his confinement ended.
The Court concludes on this record that Plaintiff’s
§ 1983 claim against OHSU does not relate back to his unlawful
imprisonment claim, and, therefore, Plaintiff’s claim against
OHSU is untimely.
II.
Plaintiff has not established a § 1983 claim for unlawful
confinement.
Even if Plaintiff’s § 1983 unlawful confinement claim
relates back to his initial complaint and is, therefore, timely,
the Court concludes Plaintiff has not established a genuine
21 - OPINION AND ORDER
dispute of material fact exists as to the lawfulness of
Plaintiff’s confinement at OHSU.
As noted, liability of a government body will lie only when
"action pursuant to official municipal policy of some nature
caused a constitutional” violation and not on the basis of
respondeat superior.
Monell, 436 U.S. at 691.
Such liability
may attach only when an employee acted pursuant to an expresslyadopted official policy or pursuant to a longstanding practice or
custom.
See, e.g., Lytle v. Carl, 382 F.3d 978, 981 (9th Cir.
2004); Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003).
"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."
Pembaur v.
City of Cincinnati, 475 U.S. 469, 479 (1986)(emphasis in
original).
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).
The circumstances in which Monell liability may be found
under § 1983 are "carefully circumscribed."
22 - OPINION AND ORDER
Fuller v. City of
Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995).
See also Westwood
v. City of Hermiston, 787 F. Supp. 2d 1174, 1207 (D. Or. 2011)
(same).
The Ninth Circuit has noted:
Showing a "longstanding practice or custom which
constitutes the 'standard operating procedure’ of
the local government entity” is one way to
establish municipal liability. Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct.
2702, 105 L. Ed.2d 598 (1989); Hopper v. City of
Pasco, 241 F.3d 1067, 1083 (9th Cir. 2001). . . .
There are, however, two other routes available for
a plaintiff to establish the liability of
municipal defendants: (1) by showing that the
decision-making official was, as a matter of state
law, a final policymaking authority “whose edicts
or acts may fairly be said to represent official
policy” in the area of decision, Monell, 436 U.S.
at 694, 98 S. Ct. 2018; City of St. Louis v.
Praprotnik, 485 U.S. 112, 124, 108 S. Ct. 915, 99
L.Ed.2d 107 (1988)(plurality); Pembaur, 475 U.S.
at 480-81, 106 S. Ct. 1292; or (2) by showing that
an official with final policymaking authority
either delegated that authority to, or ratified
the decision of, a subordinate.
Ulrich, 308 F.3d at 984-85.
See also Booke v. County of Fresno,
98 F. Supp. 3d 1103, 1123 (E.D. Cal. 2015)(“A municipality,
however, cannot be held liable solely because it employs a
tortfeasor — or, in other words, a municipality cannot be held
liable under [42 U.S.C. § 1983] under a respondeat superior
theory.
Liability only attaches 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.”)(quotations omitted).
23 - OPINION AND ORDER
As noted, Plaintiff fails to identify in his Second Amended
Complaint a policy, custom, or practice of OHSU that allegedly
caused him to be unlawfully confined by OHSU.
The only
allegation Plaintiff makes in his Second Amended Complaint
related to any policy is contained in the section titled
“Damages”:
The official policies, customs, and practices of
the City, PSU, and OHSU caused the deprivation of
Plaintiff’s rights as alleged in this complaint.
The policies, customs, and practices of these
entities to inadequately train its employees,
including the individual defendants, caused the
violation of Plaintiff’s rights.
Second Am. Compl. at ¶ 86.
Similarly, the Pretrial Order does
not contain any allegation or facts by Plaintiff related to any
policy, practice, or custom of OHSU that allegedly caused his
constitutional violation.
In his Response to OHSU’s Motion for
Summary Judgment Plaintiff asserts OHSU did not have probable
cause to detain Plaintiff and “Plaintiff’s . . . confinement
w[as] caused by an OHSU policy,” but Plaintiff does not identify
any policy at issue and instead points to a statement made by
Dr. Gross at deposition that she
in general [does] not drop notices of mental
illness. There is a protocol that we follow which
includes close collaboration with the county that
the patients will displace. I have dropped holds,
but it is not something that I standardly do.
Fargey Decl., Ex. 6 at 10.
Plaintiff appears to suggest there is
a policy or practice at OHSU to “rubber-stamp” the admission of
24 - OPINION AND ORDER
patients who come into OHSU on Director’s Holds without
conducting an independent evaluation, but Plaintiff does not
provide any authority for his assertion that a statement by an
individual doctor as to that doctor’s general practice is
sufficient to establish that a broader policy, practice, or
procedure exists at OHSU.
At best, a statement by an individual
doctor is likely to establish only culpable conduct by the
individual doctor.
In any event, even if a single statement by a single doctor
as to her routine procedure was sufficient to establish that
procedure was actually a policy, practice, or procedure of the
governmental body, Dr. Gross’s statement does not do so.
Dr. Gross went on to state in her next sentence:
“In addition, I
think that [Plaintiff] deserved and warranted very thorough
evaluation for diagnostic purposes and to evaluate his safety.”
Fargey Decl., Ex. 6 at 10.
Dr. Gross also testified she has
“dropped a notice of mental illness” in the past; specifically,
she has not admitted to OHSU a patient who came in on a
Director’s Hold five to ten times while working at OHSU.
Finally, the record reflects Drs. Gross, Crowley, Russell, and
Henrickson as well as social workers and other mental-health
workers independently evaluated Plaintiff when he arrived at OHSU
and throughout his confinement.
Plaintiff does not point to any
expert evidence in the record that indicates the evaluations of
25 - OPINION AND ORDER
the various mental-health providers were medically incorrect,
incomplete, or inaccurate or that his hold did not have a
medically reasonable basis.
On this record the Court concludes Plaintiff has not
established OHSU has a “policy or custom, whether made by its
lawmakers or by those whose edicts or acts may fairly be said to
represent official policy” that caused any constitutional
violation of Plaintiff’s rights.
Accordingly, the Court grants
OHSU’s Motion for Summary Judgment.
CONCLUSION
For these reasons, the Court GRANTS OHSU’s Motion (#169) for
Summary Judgment and DISMISSES with prejudice Plaintiff’s claim
against OHSU.
IT IS SO ORDERED.
DATED this 16th day of May, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
26 - OPINION AND ORDER
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