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Ewbank v. Richardson

United States District Court, D. Oregon

November 12, 2014

R. DRAKE EWBANK, Plaintiff,
v.
LIANE INKSTER RICHARDSON, et al., Defendants

R. Drake Ewbank, Plaintiff, Pro se Springfield, OR.

FINDINGS & RECOMMENDATION

THOMAS M. COFFIN, United States Magistrate Judge.

Pro se plaintiff brings this action asserting due process and equal protection violations. Certain defendants have moved to dismiss and for summary judgment.

This case represents plaintiff's continued attempts to rectify what he deems unfair treatment by Lane County, Oregon officials and other Oregon officials with respect to service he and his organizations provided to clients of the Behavioral Health Division of the Oregon Health and Human Services Department. Plaintiff R. Drake Ewbank, along with others, initiated an action in this court on July 26, 2010, against the Director of Lane County Health and Human Services, among others, asserting violation of the Americans with Disabilities Act via actions resulting in termination of contracts with entities under the directorship of plaintiff (SAFE, Inc. and Valia). SAFE filed a suit in Lane County Circuit court alleging breach of contract claims against the County. In June of 2010, a jury determined the County did not breach its contract with SAFE and that SAFE had breached its contract with the County. After lengthy motions practice, this court granted Lane County's motion for summary judgment with respect to the ADA claims and dismissed that action on September 26, 2013.

Plaintiff initiated this action April 14, 2014, against various Lane County and State officials asserting claims under 42 U.S.C. § 1983 for violations of equal protection and due process. Plaintiff alleges County and Oregon Department of Justice (DOJ) officials filed false reports to the DOJ inciting the DOJ to take punitive actions that would influence the outcome of the SAFE v Lane County case and exclude plaintiff from working in his profession and denying him benefits to which he was entitled. In essence, plaintiff revisits issues raised in the previous cases and also asserts he has suffered retaliation for asserting his rights in those other cases.

Defendants Lane County, Marcia Johnson (Program Services Coordinator for Lane County Health and Human Services), and Pierre Robert (Assistant Lane County Counsel) move to dismiss and for summary judgment contending the complained of actions occurred outside the statute of limitations and claim and issue preclusion prevent litigation of the claims in this case.

For the most part, plaintiff alleges actions on the part of the moving defendants that took place prior to April 14, 2012. Oregon's statute of limitations for personal injury actions, O.R.S. § 12.110, applies to a section 1983 action. Davis v. Harvey, 789 F.2d 1332 (9th Cir. 1986). Accordingly, the appropriate statute of limitations for the alleged injuries to plaintiff's rights is two years. O.R.S. § 12.110(1). The Amended complaint[1] only includes one reference inside this time period; plaintiff's notice, on April 15, 2012 through discovery in the prior case, that he lost a contract with Laurel Hill, due to acts of defendants.[2] However, the complained of action is Lane County's offer to provide free training services to Laurel Hill which occurred prior December 3, 2010. Plaintiff suffered the alleged injury well before April 15, 2012.

Although Oregon law determines the length of the limitations period, federal law determines when a civil rights claim accrues. Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 926 (9th Cir. 2004). Accordingly, the two year statute of limitations on plaintiff's section 1983 claims begins when the plaintiff knows or has reason to know of the injury which is the basis of the action. Id. Thus, plaintiff's assertion that his claims do not begin to run until he discovers the basis for his claim in addition to the injury is incorrect. Plaintiff's complaint fails to allege a cause of action within the applicable time period. See Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1050 (9th Cir. 2008) (finding persuasive opinions that a plaintiff's action accrues when he discovers that he has been injured, not when he determines that the injury was unlawful). Even if the discovery rule employed by Oregon case law were to apply, the limitations period began running well prior to April 15, 2012 given that plaintiff at least had reason to know that there is enough chance that the defendant had a role in causing his injury sufficient to require further investigation and an investigation would have revealed the defendant's role. See T.R. v. Boy Scouts of Am., 344 Ore. 282, 296, 181 P.3d 758 (2008) (accrual rule means that the time for commencing an action starts running when " (1) the plaintiff knows, or a reasonable person should know, that there is enough chance that the defendant had a role in causing the plaintiff's injury to require further investigation; and (2) an investigation would have revealed the defendant's role."). Accordingly, the amended complaint is subject to dismissal.

Plaintiff also asserts, in his response, denial of membership on the Trillium Lane County Advisory Board in June of 2012 and that Lane County rewrote the rules of LaneCare Operations Council to prevent plaintiff's continued participation on the council in August of 2012. Although the County correctly asserts that there is no constitutional right to such positions, if the motives of the County was to retaliate for plaintiff's assertion of his rights in prior lawsuits, then a possible First Amendment claim may lie. See, e.g., Hyland v. Wonder, 972 F.2d 1129, 1136 (9th Cir. 1992) (the critical question is whether the alleged the loss of a valuable governmental benefit or privilege is in retaliation for speech). However, plaintiff has not, at this stage alleged such a claim. Accordingly, the motion to dismiss should be granted.

In addition, plaintiff faces the obstacle of claim and issue preclusion with respect to the claims regarding Laurel Hill. The rules of claim and issue preclusion apply equally to section 1983 actions in federal courts. Allen v. McCurry, 449 U.S. 90, 98, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980). State court decisions are thus entitled to the same preclusive effect in a section 1983 action as in any other action, namely the preclusive effect they would be given in the courts of the state that issued the judgment. Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 83, 104 S.Ct. 892, 79 L.Ed.2d 56 (1984).

A plaintiff who has prosecuted one action against a defendant and obtained a valid final judgment is barred by res judicata from prosecuting another action against the same defendant where (a) the claim in the second action is one which is based on the same factual transaction that was at issue in the first; (b) the plaintiff seeks a remedy additional or alternative to the one sought earlier; and (c) the claim is of such a nature as could have been joined in the first action. See O.R.S. § 43.130; Van De Hey v. United States Nat'l Bank, 313 Ore. 86, 829 P.2d 695 (1992). Underlying this standard is the need to strike a delicate balance between the interests of the defendant and of the courts in bringing litigation to a close and the interest of the plaintiff in the vindication of a just claim. See Hanson v. Oregon Dep't of Revenue, 294 Ore. 23, 31, 653 P.2d 964 (1982). In this case, plaintiff raised the Laurel Hill issue in his 2010 case where it was determined that plaintiff presented no evidence to support a retaliation claim. Ex. 4 (attached to #17) at p. 12). Accordingly, defendants are entitled to summary judgment on this issue.

Plaintiff does seek to amend his complaint, but it is unclear what amendments he seeks to make given that he has not provided the court with a copy of the proposed complaint. Nonetheless, it is not clear that plaintiff cannot raise a First Amendment retaliation claim or claim for ADA retaliation claim for asserting claims in the previous case. Accordingly, plaintiff's motion to amend should be granted to that extent.

CONCLUSION

For the reasons stated above, the motion to dismiss and for summary judgment should be granted. However, plaintiff should be granted 30 days to file an amended complaint to the extent he can assert any cognizable claim for retaliation.

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.


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