Samuels v. Deschutes County et al

Filing 29

ORDER: Defendants' Motion to Dismiss 12 is GRANTED with respect to plaintiff's federal claims for conspiracy to commit civil rights violation and unlawful search and seizure and DENIED in all other respects. Plaintiff is ORDERED to make his malicious prosecution claims more definite and certain within 30 days of the filing date of this order. Furthermore, for the reasons stated on the record, the court imposes sanctions of $48.75 on plaintiff's counsel, which is e quivalent to 15 minutes of defense counsel Sarah Mack's hourly rate 27 , for the delay caused by their failure to appear at oral argument. See Amended Minutes of Proceedings 28 and Declaration of Sarah Mack 27 for further details. Signed on October 16, 2013 by Judge Michael J. McShane. (cp)

. i·

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

RICHARD SCOTT SAMUELS
Civ. No. 6:13-cv-00516-MC
Plaintiff,

v.

DESCHUTES COUNTY, DESCHUTES
COUNTY SHERIFF BLANTON, DEPUTY
TORY FLORY, personally and
individually, RYAN PAUL, and
JUSTIN GREENSLIT, and unknown
John Does

OPINION AND ORDER

Defendants.

MCSHANE, Judge:

Plaintiff brings this action alleging claims under 42 U.S.C. §§ 1983 and 1985 for
violations of his Fourth and Fourteenth Amendment rights, along with pendent state claims.
Plaintiff alleges that defendants falsely and fraudulently provided information that resulted in an
unlawful search of his horne and subsequent arrest and prosecuti9n.

1 - OPINION AND ORDER

Defendants Deschutes County, Sheriff Blanton, and Deputy Flory move to dismiss
plaintiffs unlawful search and seizure and conspiracy claims on the grounds that these federal
claims are barred by the applicable statute of limitations. Defendants also move to dismiss
plaintiffs federal malicious prosecution claim on the ground that plaintiff failed to name a
specific constitutional right that he was deprived of as a result of defendants conduct.
Defendants' motion is GRANTED in part and DENIED in part.

I. BACKGROUND
The search warrant at issue in this matter was executed at plaintiffs home on October 22,
2009. 1 The facts are alleged by plaintiff as follows: An individual identified as "concerned
citizen" or "CC," informed law enforcement officers of a possible drug deal at plaintiffs house.
Officers presented this information to the state court judge when obtaining the search warrant.
However, the officers did not inform the state court judge of the following facts: that "CC" was
being sued by plaintiff for an amount exceeding $50,000; that "CC" had not had contact with
plaintiff for over a year; that "CC" had previously assaulted plaintiff in front of witnesses; and
that "CC" was working with the police for consideration of criminal charges.
In support of the search warrant, officers also relied on information provided by
"Confidential Reliable Infom1ant (CRI) #896" who claimed to have made three narcotics
purchases from plaintiff. In obtaining the warrant, plaintiff asserts that defendant Flory made
false assertions in a supporting affidavit that the CRI made body wire recording purchases of
methamphetamine and that detectives observed the transaction.

1

No dates are indicated in the complaint. The parties have stipulated to this date.
2 - OPINION AND ORDER

Following the institution of criminal charges against plaintiff, defendant Flory refused to
provide discovery regarding the CRI who allegedly made the three body wire recordings of drug
deliveries. At

~orne

point the body wire recordings were received by plaintiffs attorney, but the

CDs were blank. Viable CDs were later produced which revealed information that contradicted
defendant Flory's affidavit and report.
On March 14, 2011, plaintiff filed a motion to suppress. Criminal charges against
plaintiff were dismissed on March 30, 2012. Plaintiff filed the instant action on March 26, 2013.

II. STANDARD OF REVIEW
Under Fed. R. Civ. P. 12(b)(6) a complaint is construed in favor of the plaintiff and its
factual allegations are taken as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th
Cir. 201 0). However, the court need not accept as true "conclusory" allegations, unwarranted
deductions of fact, or unreasonable inferences. I d. "[O]nce a claim has been stated adequately, it
may be supported by showing any set of facts consistent with the allegations in the complaint."

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 563 (2007).
A motion to dismiss on statute of limitations grounds may be granted "only if the
assertions of the complaint, read with the required liberality, would not permit the plaintiff to
prove that the statute was tolled." Morales v. City of Los Angeles, 214 F .3d 1151, 1153 (9th Cir.
2000).

3 - OPINION AND ORDER

III. DISCUSSION
Plaintiff asserts federal claims for conspiracy to commit civil rights violations, unlawful.
search and seizure, and federal and state law claims for malicious prosecution against Deschutes
County, County Sheriff Blanton, Deputy Tory Flory, and other individual defendants. Plaintiff
maintains that the actions of defendants violated his rights under the Fourth and Fourteenth
Amendments and state law, because the defendants conspired to provide false information
resulting irt an unlawful search of plaintiffs home and instituted unwarranted criminal
proceedings against him.

A. Statute of Limitations
Defendants argue that plaintiffs federal claims for conspiracy to commit civil rights
violations and unlawful search and seizure are time-barred because plaintiff did not commence
this action within the required limitations period. Oregon's two-year statute of limitations for
personal injury actions applies to claims brought under § 1983. See Sain v. City of Bend, 309
F.3d 1134, 1139 (9th Cir. 2002). Thus, plaintiff was required to file suit within two years after
his § 1983 claims "accrued" - i.e, after plaintiff knew or had reason to know of critical facts
regarding the injury caused by defendant's actions. Bibeau v. Pac. Nw. Research Found., Inc., 88
F.3d 1105, 1108 (9th Cir. 1999); Cabrera v. City of Huntington Park, 159 F.3d 374, 379 (9th
Cir. 1998).
Defendants argue that plaintiff had knowledge of the critical facts of his alleged injuries
when the officers searched his home, or at least by March 14, 2011 when he filed the motion to
suppress. Plaintiff did not file suit until March 26, 2013, more than two years later.

4 - OPINION AND ORDER

In Wallace v. Kato, 549 U.S. 384,

388~90

(2007), the Supreme Court held that a§ 1983

claim based upon illegal conduct leading to an arrest accrues at the time of injury~- While the
Court did not specifically address § 1983 claims based on unlawful search and seizure, the Court
did determine that there is no federal tolling of § 1983 claims while a plaintiff is subject to
criminal proceedings. Id. at 394-95. However, the Court noted that the tort of malicious
prosecution is "entirely distinct" from this analysis because it requires a showing of "wrongful
institution ofthejudicial process." Id. at 389-90; See also Heckv. Humphrey, 512 U.S. 477,484,
489 (1994).
The Ninth Circuit has held that § 1983 claims premised on an unlawful search and
seizure generally accrue at the time the search and seizure occurs. See Matthews v. lvfacanas, 990
F.2d 467, 469 (9th Cir. 1993), abrogated on other grounds; and Venegas v. Wagner, 704 F.2d
1144, 1146 (9th Cir. 1983) ("where false arrest or illegal search and seizure is alleged, the
conduct and asserted injury are discrete and complete upon occurrence, and the cause of action
can reasonably be deemed to have accrued when the wrongful act occurs."). Following Ninth
Circuit precedent, subsequent court deCisions have held that a search and seizure claim brought
pursuant to § 1983 commences to run on the date of the search and seizure. See Lindsey v. Myer,
2012 U.S. Dist. LEXIS 46086, 2012 WL 1114181, at *8 (D. Or. Feb. 13, 2012) (statute of
limitations for alleged violation of Fourth Amendment right to be free from unlawful search and
seizure commenced to run on the date of the search and seizure); Easley v. Cnty. of El Dorado,
2010 U.S. Dist. LEXIS 117033, 2010 WL 4569137, at *5 (E.D. Cal. Nov. 3, 2010) (section 1983
claims premised on an alleged illegal search and seizure generally accrue at the time of the
search and seizure); and Kamar v. Krolczyk, 2008 U.S. Dist. LEXIS 55975, 2008 WL 2880414,
at *13-(E.D. Cal. July 16, 2008) (search and seizure claim accrued on the date ofthe search).
5 - OPINION AND ORDER

Here, the alleged unlawful search and seizure occurred on October 22, 2009. Plaintiffs
claims for conspiracy and unlawful search and seizure are both premised upon this incident.
Thus, plaintiffs claims in these regards accrued on October 22, 2009, and the statute of
limitations period ran on October 22, 2011. Alternatively,· even if the plaintiff did not have a
cause of action until March 14, 2011, the date of the motion to suppress, then the statute ran on
March 14, 2013. Plaintiff did not file the instant matter until March 26, 2013, after the statute of
limitations expired. Therefore, the conspiracy and unlawful search and seizure claims are barred.

B. Malicious Prosecution

"In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff 'must show
that the defendants prosecuted [him] with malice and without probable cause, and that they did
so for the purpose of denying [him] equal protection or another specific constitutional right.' "
Awabdy v. City ofAdelanto, 368 F.3d 1062, 1066 (9th Cir.2004) (citing Freeman v. City of Santa
Ana, 68 F.3d 1180, 1189 (9th Cir.1995)). Defendants argue that plaintiff has failed to show a

specific constitutional right that was violated by defendants' alleged conduct.
It is unclear from the complaint what specific constitutional deprivation plaintiff alleged

in his federal claim for malicious prosecution. However, given the liberal pleading standards in
federal court, the court requires plaintiff to make his claims more definite and certain under Rule
12(e).See Fed. R. Civ. P. 15(a)(2). Relief under Rule 12(e) is warranted where "the complaint is

so indefinite that the defendants cannot ascertain the nature of the claims being asserted and
literally cannot frame -a responsive pleading." Prychyna v. Barrett Business Services, Inc., No.

6 - bPINION AND ORDER

CY-11-122-HZ, 2011 WL 4498843, at *3 (D. Or. Sept. 27, 2011) (quoting Hubbs v. Cnty. of
San Bernardino, 538 F. Supp. 2d 1254, 1262 (C.D. Cal. 2008) (internal quotations and citations

omitted)). Plaintiff is hereby ordered to amend his complaint to make more definite and certain
the basis ofhis malicious prosecution claim, within 30 days ofthe filing date of this order.

CONCLUSION
Defendants' motion to dismiss is GRANTED with respect to plaintiffs federal claims
for conspiracy to commit civil rights violation and unlawful search and seizure and DENIED in
all other respects. Plaintiff is ORDERED to make his malicious prosecution claims more
definite and certain within 30 days of the filing date of this order.

Furthermore, for the reasons stated on the record, the court imposes sanctions of $48.75
on plaintiffs counsel, which is equivalent to 15 minutes of defense counsel Sarah Mack's hourly
rate [#27], for the delay caused by their failure to appear at oral argument.

See Amended

Minutes of Proceedings [#28] and Declaration of Sarah Mack [#27] for further details.
IT IS SO ORDERED.

DATED this 16th day of October, 2013.

L

L--

Michael J. McShane
United States District Judge

7 - OPINION AND ORDER