United States District Court, D. Oregon
OPINION AND ORDER
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.
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).
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 Amendment, and that these actions were discriminatory in violation of the Equal Protection Clause of the Fourteenth Amendment.
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.").
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 ...