United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
JANICE M. STEWART, Magistrate Judge.
Plaintiffs, Scott and Pamela Richardson, owned and operated a business in Gladstone, Oregon, until 2012. Appearing pro se, they filed this action against the City of Gladstone ("City") and several of its employees for targeting their business with citations for violations of City ordinances without due process of law and retaliating against them for engaging in constitutionally protected speech. This court initially appointed pro bono counsel for plaintiffs for the limited purpose of filing an amended complaint (docket #6). After filing a First Amended Complaint, their counsel requested termination, which was granted (docket #17). Plaintiffs then filed a Second Amended Complaint (docket #34).
The Second Amended Complaint names the following City of Gladstone employees as defendants: Clay Glasgow (Senior Planner), Peter Boyce (City Administrator), James Pryde (Chief of Police), and Sean Boyle (Ordinance Specialist), as well as unidentified John Does 1-99. Second Amended Complaint, ¶¶ 4-9. Plaintiffs allege claims under 42 USC § 1983 based on defendants depriving them of their property interests without due process of law under the Fourth Amendment (Claim 1), depriving them of equal protection under the Fourteenth Amendment (Claim 2), and retaliating against them for exercising their free speech rights under the First Amendment (Claim 3). They also allege common law claims for malicious prosecution (Claim 4), tortious interference with business relations (Claim 5), and intentional infliction of emotional distress ("IIED") (Claim 6). This court has federal question jurisdiction over the § 1983 claims under 28 USC § 1331 and supplemental jurisdiction over the state law claims under 28 USC § 1367(a).
Defendants have filed a Motion to Dismiss the Second Amended Complaint (docket #41) for failure to state a claim upon which relief can be granted. For the reasons stated, defendants' motion should be granted in part and denied in part.
In order to survive a motion to dismiss for failure to state a claim pursuant to FRCP 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir 1995).
Plaintiffs owned and operated the Arlington Mart, a convenience store over which they rented rooms, from 1996 until its closure in 2012. Second Amended Complaint, ¶¶ 3, 10. In 2009, they contracted with Tim Causey, plaintiffs' African-American cousin, to cook and operate a wood "smoker" barbeque in the parking lot. Id., ¶ 11.
In June 2010, the City's Senior Planner, Clay Glasgow ("Glasgow") first informed plaintiffs of a neighbor's complaint about the wood smoker and a possible planning violation. Id., ¶ 11. The next month, an unidentified Fire Marshall observed the barbeque but made no comment about it violating the City's code, and an unidentified police offer at the Arlington Mart on an unrelated call mentioned that the police had received several complaints from neighbors. Id., ¶ 13.
In February 2011, the City's Municipal Ordinance Specialist, Sean Boyle ("Boyle"), notified plaintiffs that the barbeque might be violating the City's code that could result in a $500.00 per day fine. Id., ¶ 14. In response, plaintiffs attempted to avoid a citation by reconstructing the wood smoker to reduce its smoke footprint and requesting to mediate the dispute with the City. Id. The City initially agreed to mediation, but then refused, and in May 2011 cited plaintiffs for conducting business activities outside the Arlington Mart. Id., ¶¶ 15-16. The liquor license for the Arlington Mart allowed outside business activities. Id., ¶ 16. Taverns near the Arlington Mart that operated open-air barbeques never received citations, either because their operations complied with the City's code or the City did not target their non-compliance. Id., ¶ 15.
Plaintiffs gathered signatures from community members, including neighbors of the Arlington Mart, for a petition supporting their barbeque operation. Id., ¶ 17. They also had a collection jar in the Arlington Mart to update customers about the status of their citation and to communicate their disapproval with the City's treatment of their business. Id. "On a number of occasions, City officials or their agents had seen or heard" plaintiffs' public condemnation of the City and "expressed their displeasure with the [plaintiffs'] speech activities through third parties and in court proceedings in an attempt to dissuade [plaintiffs] from engaging in such activities." Id.
In August 2011, the City dismissed the citation due to improper service. Id., ¶ 18. At the trial on the matter, the Gladstone City Attorney referenced, but could not produce evidence of, numerous complaints from neighbors. Id.
In October 2011, the City issued plaintiffs a second citation for failing to adequately buffer smoke from their barbeque. Id., ¶ 21. Plaintiffs learned from a City planning official that the code section under which they were cited applied only to businesses under review by the City Planning Commission and that the section required such review only when a business was seeking a substantial change in the nature of its operation or business hours. Id. Plaintiffs' several attempts to mediate the citation were ignored by the City. Id., ¶ 22.
On November 4, 2011, Boyle made an obscene gesture in the direction of the Arlington Mart while driving by in a City vehicle. Id. Plaintiffs reported Boyle's behavior to the police with a witness statement and Chief of Police James Pryde ("Chief Pryde") conducted a cursory investigation that absolved Boyle. Id. For six days following his decision, Chief Pryde "sent a series of emails to Mr. Richardson threatening Mr. Richardson for false reporting and disparaging Mr. Richardson's character." Id.
After the City issued the first citation, plaintiffs observed increased police surveillance of their business ( id, ¶ 19), and their numerous requests for police protection from increasing racial harassment from the community were ignored. Id., ¶¶ 20, 24. On November 14, 2012, plaintiffs learned through a public records request that Chief Pryde had ordered his officers to only respond to plaintiffs' calls in groups of two or more officers. Id., ¶ 24. "This policy continued to disrupt [plaintiffs'] business activities, embolden their racist assailants, and endanger their lives." Id., ¶ 25.
On November 25, 2011, plaintiffs called the police dispatcher because a group of men who had previously vandalized their barbeque gathered in front of the Arlington Mart yelling imminent threats and racist remarks at plaintiffs. Id., ¶ 24(a). The dispatcher told plaintiffs that such threats were constitutionally protected and that no officer was available to respond. Id. The next morning, an officer on duty the previous night explained to plaintiffs that he was the only officer on duty that night and was responding to another important matter. Id., ¶ 24(b). When plaintiffs attended a City Council meeting to advocate for increased police resources, that same officer changed his story and testified that two officers were on duty the night of November 25. Id., ¶ 24(c).
On November 29, 2011, plaintiffs defended themselves at a trial regarding the second citation. Id., ¶ 23. The court ordered plaintiffs to pay a $500.00 fine and to seek approval from the City Planning Commission for their barbeque operation. Id.
In December 2011, plaintiffs contacted County Resolution Services to clarify with City officials the regulations that applied to their barbeque operation and what permits they needed, but the City refused to cooperate. Id., ¶ 26. Plaintiffs were told by the Fire Marshall that the only City ordinances regulating barbeques applied to apartment building balconies and not businesses. Id., ¶ 27. Likewise, the Oregon Department of Environmental Quality told plaintiffs that no state restrictions affected barbeque operation, but advised lengthening the smokestack, which plaintiffs had already done. Id.
In January 2012, despite plaintiffs' installment of a device that reduced the smoke emissions from their property, the City issued a third citation. Id., ¶ 28. Again, several other businesses located within the same zoning area, including two across the street from City Hall, operated barbeques without citation. Id.
On April 3, 2012, plaintiffs appeared in court for the third citation. At that hearing, Glasgow revealed that his sole source of complaint was a non-resident owner of an empty duplex adjacent to the Arlington Mart who had previously launched racist tirades against plaintiffs and their cousin. Id. The City Attorney proposed to have five test burns to see if the barbeque modification sufficiently mitigated the smoke and have plaintiffs appear before the City Planning Commission for approval. Id., ¶ 30. Based on emails plaintiffs later obtained from Clackamas County on June 8, 2012, pursuant to a public records request, Glasgow wanted plaintiffs brought before the City Planning Commission in order to arbitrarily revoke their business license. Id.
Plaintiffs agreed to coordinate a meeting with the City officials so that they could observe the size of the smoke plume and asked the City Attorney to plan a meeting with Glasgow. Id., ¶ 31. The City Attorney attended one of the five tests and remarked that the smoke plume was negligible, but he never arranged a meeting with Glasgow and no City official attended the subsequent tests. Id.
In court on May 22, 2012, the City Attorney noted that the barbeque emitted very little smoke, but that plaintiffs had been uncooperative with the test dates and had not met with Glasgow. Id., ¶ 32. The judge dismissed the third ticket with no conditions, including no City Planning Commission review. Id.
Ultimately, the financial toll of continuously and unfairly litigating with defendants was too grave, and the Arlington Mart was dissolved in July 2012. Id., ¶ 33. Plaintiffs' business properties were then foreclosed upon and sold in January 2013, resulting in further economic injury due to the loss of rental income. Id. Because of the loss of their business and properties, plaintiffs could no longer pay debts owed by their businesses and declared personal bankruptcy in June 2013. Id.
Defendants seek to dismiss all of plaintiffs' claims as barred by the statute of limitations and for failing to state a claim upon which relief can be granted.
I. Statute of Limitation
Plaintiffs' common law claims (Claims 4-6) are subject to Oregon's two-year statute of limitations under ORS 30.275 for personal-injury torts arising out of any act or omission of a public body or an officer, agent, or employee of the public body. Federal civil rights claims brought under 42 USC § 1983 are subject to the forum state's statute of limitations for personal injury torts. Owens v. Okure, 488 U.S. 235, 249-50 (1989). Therefore, plaintiffs' § 1983 claims (Claims 1-3) are subject to the same two-year statute of limitations in ORS 30.275.
A § 1983 claim accrues, and the statute of limitations begins to run, when the plaintiff knows, or should know, of the injury that is the basis for his or her claims. RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir 2002). Thus, the limitations period begins to run once a plaintiff has knowledge of the "critical facts" of the injury, including "that he has been hurt and who has inflicted the injury." Bibeau v. Pacific Nw. ...