United States District Court, D. Oregon
OPINION AND ORDER
AIKEN UNITED STATES DISTRICT JUDGE
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),  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.
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.
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.
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.
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.
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
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.
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."
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.
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.
the Oregon Supreme Court rejected plaintiffs attempts to seek
review of the Oregon Court of ...