United States District Court, D. Oregon
Merrithew, Levi Merrithew Horst PC, Of Attorneys for
William M. Manlove, Senior Deputy City Attorney, Office of
the City Attorney, Of Attorneys for Defendants.
OPINION AND ORDER
Michael H. Simon, District Judge.
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.
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).
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
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.
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.
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.
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.
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. §
12.110(1). Thus, any ...