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Smith v. Powell

United States District Court, D. Oregon

July 12, 2017

RONNIE SMITH, Plaintiff,

          Jesse Merrithew, Levi Merrithew Horst PC, Of Attorneys for Plaintiff.

          William M. Manlove, Senior Deputy City Attorney, Office of the City Attorney, Of Attorneys for Defendants.


          Michael H. Simon, District Judge.

         Plaintiff Ronnie Smith (“Smith”) brings this lawsuit against the City of Portland (“City”) and Portland Police Officers Brian Powell, David McGuffey, and Justine Winter. In his first claim for relief, Smith alleges that Defendant Powell used excessive force and falsely arrested Smith on May 23, 2014. In his second claim for relief, Smith alleges that Defendants McGuffey and Winter used excessive force against Smith on May 25, 2014. Based on these allegations, Smith asserts civil rights claims against the Defendants under 42 U.S.C. § 1983 alleging violations of Smith's rights under the Fourth Amendment, as incorporated by the Fourteenth Amendment. Defendants, Powell and the City move to dismiss Smith's first claim for relief, arguing that it is time-barred under the applicable two-year statute of limitations because Smith, while incarcerated, placed his Complaint in the correction institution's mailing service on May 24, 2016. For the reasons discussed below, the motion to dismiss is granted in part and denied in part.


         A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

         Although a statute of limitations defense is usually raised in an answer, it may be presented in a motion to dismiss, but only “when the running of the statute is apparent from the face of the complaint.” U.S. ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174, 1178 (9th Cir. 2013) (quoting Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010)). “A motion to dismiss based on the running of the statute of limitations period may be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206-07 (9th Cir. 1995) (internal citations and quotation marks omitted). In order to dismiss a claim as untimely on a Rule 12(b)(6) motion, it must “appear[ ] beyond doubt that the plaintiff can prove no set of facts that would establish the timeliness of the claim.” Id. at 1207.


         In his Second Amended Complaint, Smith alleges that on May 23, 2014, an employee of a bar in Portland, Oregon, had called the police to report that someone was refusing to leave the bar. Portland Police Officer Powell responded and found Smith outside the bar. Powell approached Smith and demanded to see Smith's identification. Smith refused and tried to walk away. According to Smith, Powell grabbed Smith, brought him to the ground, and kicked him in the ribs. After Smith was handcuffed, Powell transported Smith to the Multnomah County Detention Center on charges of furnishing false information to a peace officer, resisting arrest, and criminal trespass in the second degree. Smith also alleges that two days later, on May 25, 2014, Portland Police Officers McGuffey and Winter slammed Smith to the ground, causing him injury, after Smith refused to provide his identification to those officers.

         As presented in his Second Amended Complaint, Smith's first claim alleges that Defendant Powell violated Smith's Fourth Amendment rights by (1) using excessive force; and (2) unlawfully arresting Smith without probable cause. Smith also alleges in his first claim that the City has a custom and practice of unconstitutionally dealing with citizens who refuse to provide identification and ratified Powell's actions. Smith's second claim alleges that Defendants McGuffey and Winter violated Smith's Fourth Amendment rights by using excessive force. In his second claim, Smith also asserts the same “custom and practice” and “ratification” allegations against the City that he asserted in his first claim. Only the first claim is at issue in the pending motion to dismiss.

         By May 2016, Smith was incarcerated at the Two Rivers Correctional Institution in Umatilla, Oregon. On May 24, 2016, Smith signed and dated his original Complaint and certified that he personally placed a copy of that Complaint in the correctional institution's mailing service. ECF 2 at 6-7.


         Powell and the City move to dismiss Smith's first claim because it is based on events occurring before May 24, 2014, and is thus barred under the applicable statute of limitations. The statute of limitations in a lawsuit brought under § 1983 is the same as provided under state law for personal-injury torts. Wallace v. Kato, 549 U.S. 384, 387 (2007). The relevant statute of limitations for personal injury claims under Oregon law is two years. Or. Rev. Stat. ยง 12.110(1). Thus, any ...

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