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J.M.O. v. Keesee

United States District Court, D. Oregon, Portland Division

May 19, 2015

J.M.O., Plaintiff,


MICHAEL W. MOSMAN, District Judge.

Defendants have separately filed Motions for Summary Judgment [26] and [40]. Defendants argue Plaintiff's claims against them are time-barred. For the following reasons, I hold that Plaintiff's claims are all time-barred. Defendants' Motions for Summary Judgement are granted.


Accepting Plaintiff's factual allegations as true, sometime during the fall of 2006 and the spring of 2007, Denise Keesee, Defendant Keesee's spouse, sexually abused Plaintiff. When Plaintiff came forward to report Mrs. Keesee's abuse, Defendant Keesee began to use his position as a City of Sherwood police officer to intimidate, threaten, ridicule, assault, batter, and falsely imprison Plaintiff in incidents that spanned from September 14, 2007 until April 26, 2009. Plaintiff believes that the Sherwood Police Department's officers and hierarchy repeatedly condoned Defendant Keesee's actions.


"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "The moving party bears the initial burden to demonstrate the absence of any genuine issue of material fact." Harphag Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). The moving party's burden is discharged by "point[ing] to portions of the pleadings, admissions, answers to interrogatories, and depositions which, along with any affidavits, show the absence of a genuine issue of material fact." Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991).


I. Plaintiff's § 1983 Claim

A. Applicable Statute of Limitations

The applicable statute of limitations for actions brought pursuant to 42 U.S.C. § 1983 is the forum state's statute of limitations for personal injury actions. Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003); Owens v. Okure, 488 U.S. 235, 250 (1989). Oregon has a two-year statute of limitations for general personal injury claims, including assault. Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 579 (9th Cir. 2012); Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989); Davis v. Harvey, 789 F.2d 1332, 1333 (9th Cir. 1986). See ORS § 12.110(1).

If a person entitled to bring an action that is subject to ORS § 12.110(1) is younger than eighteen years of age when the cause of action accrues, any tolling provision recognized under state law applies in the Federal lawsuit. Wilson v. Garcia, 471 U.S. 261, 269 (1985); Emrich v. Touche Ross & Co., 846 F.2d 1190, 1199 (9th Cir. 1988). In Oregon, the statute of limitations is tolled for persons younger than eighteen years of age. ORS § 12.160(1). However, the time for "commencing an action may not be extended... for more than five years, or for more than one year after the person attains 18 years of age, whichever occurs first." ORS § 12.160(2) (emphasis added); Bonneau, 666 F.3d at 580.

B. Accrual Date of Plaintiff's Claims

While State law determines the applicable statute of limitations, Federal law determines when plaintiff's § 1983 cause of action accrues. Knox v. Davis, 260 F.3d 1009, 1012-13 (9th Cir. 2001) (for § 1983 claims, federal courts apply the forum state's personal injury statute of limitations and federal law for determining accrual); Fink v. Shedler, 192 F.3d 911, 914 (9th Cir. 1999) (en banc); Cline v. Brusette, 661 F.2d 108, 110 (9th Cir. 1981). A cause of action accrues when the plaintiff knows or should know of the injury which is the basis of his action. Bonneau, 666 F.3d at 581; TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); Fink, 192 F.3d at 914; Cline, 661 F.2d at 110. The Ninth Circuit has interpreted the "question... [of] what... [is] mean[t] by injury" with some flexibility, and held that a "claim accrues" not just when the plaintiff experiences the injury, but "when the plaintiff knew or in the exercise of reasonable diligence should have known of the injury and the cause of that injury." Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1048-1050 (9th Cir. 2008).

With regard to each alleged act of misconduct, Plaintiff knew of his injury and knew the cause of his injury at the time the misconduct occurred. Each injury was open and obvious. Plaintiff did not suffer the type of hidden injury normally seen in cases where plaintiffs argue for a delayed accrual date for their claims (e.g. asbestos or contaminated water injuries that may take years to manifest themselves). Whether it was being pulled over illegally, shouted at, or physically harmed, Plaintiff knew exactly what his injuries were the moment they occurred. In addition, Plaintiff knew the cause of his injuries; Plaintiff knew Defendant Keesee was the perpetrator of each inappropriate act. ...

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