Opinion
Civil No. 00-1781-JE.
May 3, 2004
Timothy Bishop, Mt. Dora, FL, Plaintiff Pro Se.
Edward S. McGlone III, Clackamas County General Counsel, Oregon City, OR.
FINDINGS AND RECOMMENDATION
Pro se plaintiff Timothy Bishop brings this action against defendants Clackamas County and Clackamas County Sheriff's Deputies Jodi Westerman and Kevin Layng. Defendants move for summary judgment. The motion should be granted.
Though plaintiff's first amended complaint also names the Clackamas County Sheriff's Department as a defendant, the Sheriff's Department was dismissed earlier.
BACKGROUND
On June 15, 1998, Officers Westerman and Layng stopped plaintiff because the vehicle he was driving, which was registered in Florida, did not have a front license plate. Vehicles registered in Oregon are required to have both front and rear license plates. Florida requires only a rear license plate.
Defendant Layng noticed a strong chemical odor, searched the vehicle, and found items related to the manufacture of methamphetamine. The officers arrested plaintiff for possession and manufacture of a controlled substance, and transported him to the Clackamas County Jail. The officers also seized $1,662.00 in cash. Plaintiff was released from jail the following day, and the criminal charges against him were dropped 30 days later. The cash was not returned, but instead was awarded to the County pursuant to a Judgment of Civil Forfeiture entered on September 8, 1999.
Plaintiff's recitation of these events is set out in more detail in a Findings and Recommendation this court filed on October 15, 2001.
Nearly a year later, in June 1999, plaintiff was arrested by federal authorities in the state of Washington. He was charged with one count of conspiracy to manufacture methamphetamine, one count of establishment of a methamphetamine manufacturing operation, one count of possession of methamphetamine with the intent to distribute, and one count of manufacturing methamphetamine. During plaintiff's trial on those charges in the federal court for the Western District of Washington, evidence seized during plaintiff's stop in Oregon was admitted and used by the government as independent verification that plaintiff had conspired to manufacture methamphetamine and had established a methamphetamine operation in his home in Washington. United States v. Bishop, 264 F.3d 919, 928 (9th Cir. 2001). The trial court dismissed the charge of possession with intent to distribute. The jury acquitted plaintiff on the manufacturing charge, and convicted him on the charges of conspiracy to manufacture methamphetamine and establishment of a methamphetamine operation. Id. at 924.
Plaintiff appealed the Washington conviction. The appeal was based in part on plaintiff's assertion that the evidence derived from the Oregon stop and search was illegally obtained because the officers had no lawful basis for effectuating the stop. In August 2000, after plaintiff had been convicted, the Ninth Circuit decided United States v. Twilley, 222 F.3d 1092 (9th Cir. 2000). In Twilley, the court "found that an officer did not have reasonable suspicion to stop a car bearing only a rear license plate simply because he erroneously believed the law required both a front and rear license plate." Bishop, 264 F.3d at 927 (citing Twilley, 222 F.3d at 1096).
On appeal, apparently based upon the Ninth Circuit's decision in Twilley, the government conceded that the Oregon search was illegal. Id. In September 2001, the Ninth Circuit reversed both counts of plaintiff's Washington conviction and remanded the case for a new trial on the grounds that the evidence derived from the Oregon stop had been unlawfully obtained, and that its admission had not been shown to be harmless error. Bishop, 264 F.3d at 928-29. On remand, plaintiff pleaded guilty to a felony charge of possession of precursor methamphetamine chemicals. He was released from custody in December 2001.
On December 27, 2000, after Twilley had been decided but before the Ninth Circuit reversed his conviction, plaintiff brought the present action, asserting tort claims under state law and federal claims based upon alleged constitutional violations arising from the stop, search, and arrest. Defendants moved to dismiss on the grounds that all of plaintiff's claims were barred by the two-year statute of limitations. They also moved to dismiss claims against the Sheriff's Department on the grounds that it was not a proper defendant.
In a Findings and Recommendation filed on October 15, 2001, I recommended granting the motion to dismiss the claims against the Sheriff's Department, and denying the balance of the motions. Citing Heck v. Humphrey, 512 U.S. 477 (1994), and Harvey v. Waldron, 210 F.3d 1008, 1013-14 (9th Cir. 2000), I noted that some of the damage claims "could not ripen until the criminal charges were resolved in [plaintiff's] favor," and that other claims were "so inextricably intertwined with the arrest and prosecution that [plaintiff] would not have been permitted to assert those claims unless and until the criminal charges had been dismissed." Bishop v. Westerman, CV No. 00-1781, slip op. at 4-5 (D. Or., Oct. 15, 2001). Accordingly, I recommended denying the portion of the motion to dismiss that was based upon the statute of limitations. The Honorable Anna Brown adopted that recommendation in an Order filed on November 13, 2001.
CLAIMS
As noted above, plaintiff brings claims under state and federal law. Plaintiff's first claim alleges that defendants conspired to stop and search his vehicle in a manner that violated his rights secured under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. The second claim alleges the same violations, but does not allege that the violations were carried out pursuant to a conspiracy.
The balance of plaintiff's claims allege state law torts of Intentional Infliction of Emotional Distress (IIED), Malicious Prosecution, False Arrest and Imprisonment, Gross Negligence, and Negligence.
Plaintiff seeks injunctive and declaratory relief, compensatory damages from all defendants, punitive damages from the individual officers, and recovery of attorney's fees and costs.
STANDARDS FOR EVALUATING MOTIONS FOR SUMMARY JUDGMENT
Federal Rule of Civil Procedure 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show the absence of an issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The moving party may discharge this burden by showing that there is an absence of evidence to support the nonmoving party's case.Id. When the moving party shows the absence of an issue of material fact, the nonmoving party must go beyond the pleadings and show that there is a genuine issue for trial.Id. at 324.
The substantive law governing a claim or defense determines whether a fact is material. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). Reasonable doubts concerning the existence of a factual issue should be resolved against the moving party. Id. at 630-31. The evidence of the nonmoving party is to be believed, and all justifiable inferences are to be drawn in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1985). No genuine issue for trial exists, however, where the record as a whole could not lead the trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
DISCUSSION
1. State law claims
Because Clackamas County is a public body and the individual defendants were its employees acting in the scope of their employment, plaintiff's state law claims are subject to the Oregon Tort Claims Act (OTCA). O.R.S. § 30.265(1) (public body is subject to action for its torts and torts of its officers, employees, and agents acting in scope of employment). Plaintiff's state law tort claims are against the County only because, under the OTCA, the "sole cause of action for any tort of officers . . . acting within the scope of their employment or duties . . . [is] an action against the public body only." Id.
Actions that are subject to the OTCA must comply with the notice requirements set out in O.R.S. § 30.275. That section requires a plaintiff to provide the relevant public body notice of his or her claim within 180 days of the alleged injury. A plaintiff may satisfy this requirement by providing a formal notice of claim, providing actual notice of claim, or bringing an action on the claim. Id. In order to recover under the OTCA, a plaintiff must plead and prove compliance with the notice requirement set out in § 30.275. Urban Renewal Agency of City of Coos Bay v. Lackey, 275 Or. 35, 40, 549 P.2d 657 (1976).
The time for providing notice of a tort claim begins to run when a plaintiff has a reasonable opportunity to discover the injury and the identity of the party who caused the injury.Adams v. Oregon State Police, 289 Or. 233, 239, 611 P.2d 1153 (1980). Plaintiff's state law tort claims all concern injuries that allegedly resulted from the June 15, 1998 stop, search, and arrest, and plaintiff knew of his injuries and the identity of the alleged tortfeasors at that time. Therefore, the time in which to file notice as to all of the claims except for the malicious prosecution claim began to run on the day of the stop, and the 180-day notice period expired on December 14, 1998.
One of the elements in a malicious prosecution claim is the termination of criminal proceedings in the plaintiff's favor.Blandino v. Fischel, 179 Or. App. 185, 190-91, 39 P.3d 258 (2002). Therefore, the 180-day limit for providing notice of that claim began to run a month after plaintiff's arrest, when Clackamas County dismissed the criminal charges against plaintiff, and expired in mid January, 1999.
Plaintiff filed this action on December 27, 2000, well beyond the notice period for all of the state law claims. He has neither pleaded that he provided Clackamas County any other formal or actual notice of his claim that might have satisfied the notice requirement, or shown evidence supporting the conclusion that he provided such notice. In the absence of pleading or evidence that plaintiff provided the notice required under the OTCA, defendants' motion for summary judgment on plaintiff's state law claims should be granted.
I note that I earlier recommended denying a motion to dismiss plaintiff's state law claims on similar grounds. At that time, I acknowledged that I was unable to determine with confidence when plaintiff's various claims ripened, and observed that plaintiff would not be able to assert certain claims until criminal charges were resolved in his favor.Bishop, slip op. at 5 (citing Heck v. Humphrey, 512 U.S. 477 (1994)) (civil claims that necessarily imply invalidity of judgment of conviction do no ripen until charges are dismissed or conviction is overturned).
From the more fully developed record now before the court, it is clear that plaintiff's state law claims ripened at the latest when Clackamas County dismissed criminal charges against plaintiff one month after his arrest. The 180-day limit for providing the notice of state law claims required under the OTCA expired long before plaintiff was arrested on federal charges, and no other charges that might arguably have prevented plaintiff from bringing his state law claims were pending when the notice period expired. Under these circumstances, the proscription against bringing claims that could challenge the validity of a conviction, which is set out in Heck and related decisions, does not apply.
2. Federal claims
As noted above, plaintiff's federal claims allege that defendants violated plaintiff's rights secured under several amendments to the United States Constitution. These claims allege that the officers lacked a lawful basis to effectuate the stop, and that the search, seizure, and arrest of plaintiff that stemmed from the stop were also unlawful. Though plaintiff's claims do not explicitly refer to the intentional infliction of pain or the application of excessive force, plaintiff's general allegations include the allegation that the officers handcuffed plaintiff in a manner that caused "pain, injury, and discomfort," and denied plaintiff's request that the cuffs be loosened, "allowing further physical injury to plaintiff's person." Based on these allegations, I construe plaintiff's complaint as including a federal claim for unlawful application of force or infliction of pain.
a. Statute of limitations
Plaintiff's federal claims, which are brought pursuant to 42 U.S.C. § 1983, are subject to the two-year statute of limitations that applies to personal injury claims brought under Oregon law.Sain v. City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002); O.R.S. § 12.110(1). Claims brought under § 1983 generally accrue, and the statute of limitations begins to run, when a party knows or has reason to know of the injury on which the claim is based.Kimes v. Stone, 84 F.3d 1121, 1128-29 (9th Cir. 1996).
Defendants contend that plaintiff's federal claims are barred by the statute of limitations because, though all these claims relate to an arrest that occurred in June 1998 and a prosecution that terminated in July 1998, plaintiff did not file this action until December 2000, more than two years after Clackamas County dismissed the charges against him. Except as to plaintiff's claim that is based upon the allegedly unlawful manner in which the officers applied the handcuffs, I disagree. As noted in my earlier Finding and Recommendation, under the doctrine of Heck v. Humphrey, a claim seeking damages under § 1983 that would "necessarily imply the invalidity" of an underlying conviction or sentence does not accrue until the conviction or sentence has been invalidated. Heck, 512 U.S. at 487-90. With the exception of the handcuff claim, a finding in plaintiff's favor on the federal claims would "necessarily imply the invalidity" of plaintiff's conviction on charges of conspiracy to manufacture methamphetamine and establishment of a methamphetamine manufacturing operation. This conclusion is inescapable, given that, after concluding that the stop of plaintiff was unlawful, the Ninth Circuit found that the resulting search was also unlawful, and set aside plaintiff's conviction on those charges. Because the federal claims based upon the stop and resulting search and arrest did not accrue until plaintiff's relevant convictions were set aside in September 2001, plaintiff's assertion of those federal claims here in December 2001 was timely.
A different result is required as to the handcuff claim, because a finding in plaintiff's favor on that claim would in no way imply the invalidity of plaintiff's conviction. All persons have a protected right to be free from excessive force and the wanton infliction of pain when they are taken into custody. Because plaintiff could prevail on his "handcuff" claim without establishing that the related stop, search, and arrest were in any way unlawful, he could prevail on that claim without casting doubt upon his underlying conviction or sentence. Accordingly, the handcuff claim accrued on June 15, 1998, when the handcuffs were applied, and the claim was untimely when it was included in a complaint filed more than two years later.
b. Qualified immunity defense
Defendants also contend that the individual officers are entitled to summary judgment on their qualified immunity defense. Because defendants are entitled to summary judgment on the "handcuff claim" because it was not timely filed, the following analysis does not apply to that claim.
In determining whether a defendant is entitled to qualified immunity, courts first determine whether the facts, viewed in the light most favorable to the plaintiff, demonstrate that the defendant's conduct violated a constitutional right. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc) (citing Saucier v. Katz, 533 U.S. 194 (2001)). If the facts asserted constitute a violation of the plaintiff's federal rights, the court must determine whether the right in question is "delineated with sufficient clarity to make a reasonable officer in the defendant's circumstances aware that what he was doing violated the right." Id. In other words, in the first step, the court determines whether the facts alleged constitute a violation of the plaintiff's rights. Id. If they do, the court then asks "whether the defendant could nonetheless have reasonably but erroneously believed that his or her conduct did not violate the plaintiff's rights." Id.
A law enforcement official "who reasonably but mistakenly" concludes that probable cause exists is entitled to qualified immunity. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam) (quoting Anderson v. Creighton, 483 U.S. 635, 641 (1987)). In analyzing whether an officer could have reasonably believed that his or her conduct did not violate the plaintiff's rights, "courts must determine whether the law was clearly established at the time of the alleged constitutional violation."Mena v. City of Simi Valley, 332 F.3d 1255, 1261 (9th Cir. 2003) (citing Robinson v. Solano County, 278 F.3d 1007, 1013 (9th Cir. 2002) (en banc) (law at the time of conduct in question "must be our guide" in analyzing qualified immunity defense)).
In its decision reversing plaintiff's conviction, the Ninth Circuit clearly concluded that the individual officers violated plaintiff's constitutional rights by stopping his vehicle without reasonable suspicion, and that evidence from the search resulting in plaintiff's arrest was improperly obtained because it was derived from that stop. Therefore, as to the first step in qualified immunity analysis, there is no question that the individual officers violated plaintiff's constitutionally protected rights.
At the second step of qualified immunity analysis, I must determine whether, though they violated plaintiff's federal rights, the officers nevertheless could have reasonably believed that their conduct did not violate those rights. Plaintiff contends that Twilley, 222 F.3d 1092, establishes that the officers are not entitled to qualified immunity. I disagree. Officers must have reasonable suspicion in order to conduct a lawful investigative traffic stop. United States v. Lopez-Soto, 205 F.3d 1101, 1104-05 (9th Cir. 2000). As noted above, theTwilley court concluded that an officer did not have reasonable suspicion to stop a vehicle bearing only one license plate when he erroneously thought that the law required both a front and rear plate. Id. at 1096. However, Twilley was decided in August 2000, more than two years after the officers stopped plaintiff because he did not have a front license plate. Plaintiff has cited, and I have found, no reported decisions from the United States Supreme Court or this circuit predating Twilley that hold or imply that an officer who erroneously thought that two plates were required did not have the reasonable suspicion required to stop a vehicle with only one plate. In the absence of such authority, the individual officers here could have reasonably believed that they had reasonable suspicion to stop plaintiff's car because it did not have two licence plates as is required for vehicles registered in this state.
Prior to the Twilley court's analysis of the issue, the officers could have reasonably believed that their stop of plaintiff was lawful. This conclusion is bolstered by the fact that the trial judge in Bishop, like the trial judge inTwilley analyzing similar circumstances, did not find the stop unconstitutional. These judges obviously would have ruled differently if the law had been clearly established.
In the present action, the search and arrest were based upon information that, except for the stop itself, was lawfully obtained. Because the officers could have reasonably believed that the stop was lawful, they could have reasonably believed that the search and arrest were also lawful. They are therefore entitled to qualified immunity on all the claims arising from plaintiff's stop, search, and arrest.
c. Clackamas County
Defendants correctly note that Clackamas County cannot be liable pursuant to § 1983 for the deprivation of any of plaintiff's constitutionally protected rights on the basis of respondeat superior. Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003), cert. denied, 124 S.Ct. 1042 (2004). Instead, the actions of individual employees can support liability against their governmental employer only if the employees were acting pursuant to an official policy, id. (citing Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986)), or committed a constitutional violation "pursuant to a longstanding practice or custom. . . ." Webb, 330 F.3d at 1164. Liability may also attach "even for an isolated constitutional violation . . . when the person causing the violation has final policymaking authority." Id. Final policymaking authority may be granted by a state legislature or by officials who possess that authority, and whether a particular official has such authority is a question of state law. Pembaur, 475 U.S. at 483.
In his first amended complaint, plaintiff does not allege that the individual officers deprived him of his constitutionally protected rights while acting pursuant to a Clackamas County practice or custom, or pursuant to a policy established by the Clackamas County Sheriff. In addition to this pleading deficiency, plaintiff has not shown evidence from which a reasonable trier of fact could conclude that the stop was carried out pursuant to an unlawful practice, custom, or policy. Under these circumstances, plaintiff cannot establish that Clackamas County is liable for deprivation of his constitutionally protected rights, and defendants' motion for summary judgment as to this defendant should be granted.
CONCLUSION
Defendants' motion for summary judgment (#49) should be GRANTED, and a judgment should be entered dismissing this action with prejudice.
SCHEDULING ORDER
The above Findings and Recommendation are referred to a United States District Judge for review. Objections, if any, are due May 18, 2004. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date.
A party may respond to another party's objections within 10 days after service of a copy of the objection. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or the latest date for filing a response.