United States District Court, D. Oregon, Portland Division
ROSLYN A. SHERMAN Plaintiff,
DANIEL STANTON and MULTNOMAH COUNTY BOARD OF PAROLE AND POST PRISON SUPERVISION, Defendants.
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
Roslyn A. Sherman is proceeding pro se in this civil
rights action. Defendants Daniel Stanton and the Oregon Board
of Parole and Post-Prison Supervision (Board) have each filed
motions to dismiss Ms. Sherman's Amended Complaint on the
grounds that the two-year statute of limitations bars her
claims for relief and that she fails to allege any personal
involvement by either defendant in the alleged deprivations
of her civil rights. Defendant Board also argues that it is
immune from suit under the Eleventh Amendment to the United
States Constitution. The parties have fully briefed the
motions, and for the reasons discussed below, I GRANT
Defendants' motions [16 and 18] and dismiss Ms.
Sherman's claims with prejudice.
Sherman filed this lawsuit on October 20, 2017. . I
dismissed her Complaint without service for failure to state
a claim because, among other things, she had failed to allege
how former Multnomah County Sheriff Daniel Stanton personally
participated in the deprivation of her civil rights and the
Eleventh Amendment immunized the Board from lawsuits. . I
granted Ms. Sherman leave to file an amended complaint, and
she did so on December 29, 2017. .
Amended Complaint, Ms. Sherman brings claims under 42 U.S.C.
§ 1983 and appears to allege violations of her
Fourteenth Amendment right to due process and her Eighth
Amendment right to be free from cruel and unusual punishment.
. Specifically, she claims that in 2012 she was taken into
custody based on an erroneous allegation that she had not
completed her Volunteers of America post-prison supervision
program and that she was denied a hearing. [Id. at
p. 4]. Ms. Sherman asserts that she was deprived of a hearing
because of her race. [Id.]. She also appears to
allege that she was denied adequate medical care because she
did not receive "opioids and pain medication for her
broken right shoulder and back pain." [Id. at
must liberally construe documents filed by pro se
litigants, and must hold a pro se complaint,
"however inartfully pleaded, " to a "less
stringent standards than formal pleadings drafted by
lawyers." Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citations omitted). Cf. Fed. Rule Civ. Proc. 8(e)
("Pleadings must be construed as to do justice").
The rule, however, "applies only to a plaintiffs factual
allegations." Neitzke v. Williams, 490 U.S.
319, 330 n.9 (1989). '"[A] liberal interpretation of
a civil rights complaint may not supply essential elements of
the claim that were not initially pled.'" Bruns
v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257
(9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673
F.2d 266, 268 (9th Cir. 1982)).
motion to dismiss brought under Federal Rule of Civil
Procedure 12(b)(6) challenges the legal sufficiency of a
complaint. Ileto v. Glock, Inc., 349 F.3d 1191,
1199-1200 (9th Cir. 2003). While a plaintiff need not plead
specific facts in support of any claim to survive a Rule
12(b)(6) motion, she must allege facts that establish
"more than a sheer possibility that a defendant has
acted unlawfully" and "raise a right to relief
above the speculative level." Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). Put another way, a
claim for relief must be plausible, not just possible.
Id. In determining whether a plaintiff has stated a
plausible claim for relief, a judge must accept as true all
of the factual allegations contained in the complaint.
Statute of Limitations
argue Ms. Sherman's Amended Complaint fails to state
claims against them upon which relief can be granted because
her claims are barred by the statute of limitations. I agree
with respect to Ms. Sherman's Fourteenth Amendment
claims. Civil rights claims brought under § 1983 are
subject to a two-year statute of limitations. Sain v.
City of Bend, 309 F.3d 1134, 1139 (9th Cir. 2002).
Amended Complaint, Ms. Sherman alleges that the events giving
rise to her claims occurred in 2012. [9 at p. 5]. She also
states that she litigated the claims at issue in this lawsuit
in a habeas case filed in Multnomah County on April 14, 2015,
meaning that the events at issue occurred before April 2015.
[Id. at p. 7 and 16, Exhibit 1]. Accordingly, at the
latest, the two-year statute of limitations for the claims at
issue in Ms. Sherman's Amended Complaint expired in April
2017. She did not file this lawsuit until five months later,
on October 20, 2017. .
memorandum she filed in response to Defendants' motions
to dismiss, Ms. Sherman clarifies that she challenges her
placement in county custody on October 1, 2015, and asserts
that "[t]he [statute of limitations] clock re-started on
September 5, 2017, " the effective date of the Court of
Appeals' Judgment in Ms. Sherman's habeas case. This
argument does not persuade me that the statute of limitations
has not run on her Fourteenth Amendment claim. The two-year
statute of limitations started running when Ms. Sherman's
claim "accrued." Lukovsky v. City and Cty. of
San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). Ms.
Sherman's claim about being taken into custody without
due process (in this case a hearing) "accrued" when
she knew or had reason to know of the injuries that formed
the basis for her claims. Id. The habeas case that
Ms. Sherman filed in Multnomah County on April 14, 2015
challenged her October 1, 2015 placement in county custody.
[16, Exhibit 1]. Accordingly, Ms. Sherman knew or had reason
to know of the injuries that formed the basis for the
Fourteenth Amendment claims in this lawsuit on or before
April 14, 2015. The effective date of the appellate Judgement
in her habeas case does not "re-set" the date that
Ms. Sherman's claims accrued. Accordingly, I find the
two-year statute of limitation on 42 U.S.C. § 1983 cases
bars Ms. Sherman's Fourteenth Amendment claims.
cannot, however, conclude on the basis of the record before
me that the two-year statute of limitations bars Ms.
Sherman's Eighth Amendment claims. If Ms. Sherman was
placed in custody on October 1, 2015, it is possible that she
experienced the denial of pain medication on dates after
October 20, 2015, and claims for Eighth Amendment violations