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Douglas v. Oregonian Publshing Co.

United States District Court, D. Oregon

September 25, 2017

DAMEION DOUGLAS, Plaintiff,
v.
OREGONIAN PUBLISHING CO., JOURNALIST STUART TOMLISON, JOURNALIST ANN SAKER, OFFICER SCOTT THRAN, JOHN DOE, Defendants.

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE

         Plaintiff, an inmate at Oregon State Penitentiary appearing pro se, filed suit against the Oregonian Publishing Co., journalists Stuart Tomlinson and Anne Saker (collectively, the Oregonian defendants), [1] and Lake Oswego Police Sgt. Scott Thran under 42 U.S.C. § 1983. Plaintiff alleges that defendants defamed plaintiff and caused injury to his reputation and constitutional rights when they colluded to republish an article attributing a false statement to plaintiff. The Oregonian defendants now move for dismissal or summary judgment with respect to the claims against them. The motion is granted.

         BACKGROUND

         Plaintiff and co-defendants Marcus Orozco and Jeremy Pomerenke were charged with murder, robbery, burglary, and other crimes relating to a shooting on February 12, 2001. Daniels Decl. Ex. 4 at 16-19 (ECF No. 41). Plaintiffs claims in this action arise from a statement the Oregonian republished in a 2010 article about the legal proceedings against Orozco.

         Specifically, plaintiff alleges, "On or about June 24th, 2010, the Oregonian published a 2 page article on the web page www.oregonlive.com titled: 'Portland man sentenced to 20 years for Lake Oswego drug murder.'" Third Am. Compl. at 11 (ECF No. 26). The article, written by Tomlinson, reported that Joshua Lane Toomey "was shot to death in his brother's apartment in the Mountain Park neighborhood during a February 2001 drug deal." Third Am. Compl. Ex. 1. The article also stated that during Orozco's 2007 bail hearing "Lake Oswego Sgt. Scott Thran testified [that]...Douglas, Pomerenke and Orozco planned to rob Toomey on the pretext of a marijuana buy." Id. Ex. 2. The article then republishes a statement from a 2007 article that is the basis of plaintiffs claims: "But Douglas told police later that when Toomey opened the door, Orozco suddenly shot him in the chest." Id. This statement appeared only on the oregonlive.com website and not in the article published in the newspaper. Id. Ex. 3.

         The original 2007 article, written by defendant Saker, related to a bail hearing for Orozco and contained the same allegedly defamatory statement that appeared in the 2010 article: "But Douglas told police later that when Toomey opened the door, Orozco suddenly shot him in the chest." Third Am. Compl. Ex. 4.

         In 2007, plaintiff filed a federal action against the Oregonian Publishing Co., Anne Saker, and Sgt. Thran, alleging the same claims he alleges in this action. Douglas v. Oregonian Pub. Co., Civ. No. 6:07-cv-01811-AA. On January 24, 2008, I dismissed the complaint for failure to state a claim and allowed plaintiff leave to file an amended complaint. Plaintiff filed an amended complaint and on April 22, 2008, 1 dismissed plaintiffs federal claims for failure to state a claim and dismissed plaintiffs supplemental state law claim without prejudice. Plaintiff appealed to the Ninth Circuit.

         In June 2011, plaintiff brought the instant action and also filed suit in state court against the defendants. Similar to the allegations in his federal actions, plaintiffs state court complaint alleged:

On or about June 24th, 2010, the Oregonian published a 2 page article on the web page www.oregonlive.com titled: 'Portland man sentenced to 20 years for Lake Oswego drug murder.' The defamatory dangerous lies I'm suing for appears at the bottom of the second page at the beginning of the last paragraph (exhibit 1-2): "But Douglas told police later that when Toomey opened the door, Orozco suddenly shot him in the chest."

Daniels Decl. Ex. 3 at 3.

         On January 11, 2012, the Ninth Circuit affirmed dismissal of plaintiffs federal claims against the Oregonian and Saker in No. 6:07-cv-01811-AA, because he "failed to allege that they acted under color of state law." Douglas v. Oregonian Pub. Co., 465 Fed.Appx. 714 (9th Cir. 2012). The Ninth Circuit specifically found that plaintiffs allegations were insufficient to show the Oregonian defendants were "joint actors with the state." Id. However, the Ninth Circuit remanded with respect to plaintiffs claim against Sgt. Thran, finding that the officer's alleged action in "falsely labeling him a 'snitch'...sufficiently alleges a Fourteen Amendment violation of his right to safety while in custody." Id.

         On March 2, 2012, the state trial court entered a Limited Judgment dismissing plaintiffs state court action against the Oregonian defendants. Daniels Decl. Exs. 6 and 7. On April 5, 2012, plaintiff appealed the dismissal to the Oregon Court of Appeals and on June 14, 2012, the Court of Appeals issued an Appellate Judgment dismissing the appeal "for want of prosecution." A/. ¶lO&Ex. 8.

         On September 30, 2014, I stayed this action and No. 6:07-cv-01811-AA pending developments in plaintiffs state court appeal. ECF No. 57. On October 20, 2016, 1 lifted the stay in this case and ordered plaintiff to respond to the Oregonian defendants' motion to dismiss.

         Recently, the Oregon Supreme Court rejected plaintiffs attempts to seek review of the Oregon Court of ...


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