United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
plaintiff Linh Thi Minh Tran (“Tran”) filed suit
against defendants Darryn J. Kuehl (“Kuehl”),
Benjamin J. Toops (“Toops”), and Ryan Kersey
“Defendants”), asserting constitutional
violations under 42 U.S.C. § 1983. Currently before the
court are Tran's Motion to Stay the Instant Case Pending
a State Court Appeal (ECF No. 107), and Kersey's Request
for Judicial Notice of Tran's State Court Conviction (ECF
No. 114). The court should grant Kersey's request for
judicial notice and deny Tran's motion to stay.
relevant facts appear in Tran's complaint, which the
court liberally construes in her favor, and in this
court's prior Findings and Recommendation. On December
23, 2015, a repairman visited Tran's residence to repair
her water heater. (Am. Compl., ECF No. 52, at 54.) After an
altercation, the repairman called 9-1-1, and Happy Valley
Police Officers Kuehl and Toops responded to the call at
Tran's residence. (Id. at 58.) Tran alleges
Kuehl and Toops then arrested her for theft of services and
harassment, based on the repairman's false allegations.
(Findings and Recommendation (“F&R”), ECF No.
45, at 2.) She claims Kuehl and Toops used excessive force
during the arrest, which resulted in bruising on her chest
and neck, shortness of breath, and chest pain. (F&R, at
2.) During the arrest, Tran requested medical assistance from
a female, which Kuehl and Toops did not provide.
(Id.). Tran also requested a female officer perform
any body search, but Kuehl ignored her request and searched
her. (Id.) While searching Tran, Kuehl touched her
pants, underwear, buttocks, and genitals. (Id.) When
transferred to jail, Tran did not receive medical assistance,
warm clothing, a warm blanket, food, or water. (Id.
same day, Happy Valley Code Compliance Supervisor Ryan Kersey
visited Tran's residence to investigate a suspected
zoning ordinance violation, and informally warned Tran's
“tenants” about the observed violation. (Mot. to
Dismiss, ECF No. 56, at 8.) Tran alleges Kersey illegally
worked or acted on behalf of the bank and threatened her
property, saying the “property would be foreclos[ed]
very soon by [the] bank and everyone would receive eviction
notice[s] to move out.” (Am. Compl., at 6.)
Kersey's actions caused mental health issues for Tran,
including “anxiety, depression, severe stress, vision
[reduction] . . . and high blood pressure.” (Am.
Compl., at 7.) Tran believes Kuehl and Toops arrested her to
facilitate Kersey's improper foreclosure on her property.
(F&R, at 3.)
January 2016, Clackamas County prosecutors charged Tran with
theft of services, harassment, and resisting arrest.
(Id. at 12-13.) Tran was later convicted in
Clackamas County Circuit Court of harassment and resisting
arrest (“Arrest Conviction”). (Clackamas County
Circuit Court Case No. 16CR03390 (Sept. 26, 2017);
see ECF No. 110, at 11-12.) Tran timely filed an
appeal and that appeal remains pending with the Oregon Court
of Appeals. (Id. at 1; see Oregon Court of
Appeals Case No. A166044.)
April 2016, Tran filed this lawsuit asserting constitutional
violations under 42 U.S.C. § 1983 stemming from her 2015
arrest. (Compl., ECF No. 2, Ex. 2, at 1.) Tran alleges the
officers discriminated against her on the basis of
nationality and gender, and used excessive force to make a
false arrest. (Id. at 2-4.) Tran also alleges she
was denied medical attention during her arrest and time in
jail. (Id. at 4-5.)
January 2017, the Clackamas County Circuit Court convicted
Tran of operating a rooming house in a residential
neighborhood (“Zoning Conviction”). (Clackamas
County Circuit Court Case No., 16V183928, ECF No. 115, at 8.)
Tran appealed that conviction, and in December 2017, the
Oregon Court of Appeals affirmed without an opinion the lower
court's decision. Happy Valley Mun. Ct. v. Tran,
289 Or.App. 377 (2017). Later, the Supreme Court of Oregon
denied a writ of certiorari to hear the appeal. Happy
Valley Mun. Ct. v. Tran, 362 Or. 860 (2018).
Kuehl, Toops, and Kersey have filed motions to dismiss.
(See Kersey's Mot. to Dismiss, ECF No. 56; Toops
& Kuehl's Mot. to Dismiss, ECF No. 61.) These motions
remain pending before the court. Tran now moves to stay this
case pending the appeal of her criminal conviction.
(Pl.'s Mot. to Stay, ECF No. 107.)
Zoning Conviction was affirmed without an opinion by the
Oregon Court of Appeals on December 13, 2017. Kersey now
requests the court judicially notice the appellate
court's decision. (Kersey's Req. for Jud. Notice, ECF
No. 114.) Kersey argues that the basis Tran asserts to
support her request for a stay, the Arrest Conviction, does
not involve him. He observes that the only proceeding he is a
part of, the Zoning Conviction, has been affirmed, and a stay
based on Tran's other case, the Arrest Conviction, would
be particularly burdensome to him. Tran objects to
Kersey's motion, arguing that the affirmance was made in
error and that she will be pursuing additional appeals.
Federal Rule of Evidence 201, a court may take judicial
notice of a fact “that is not subject to reasonable
dispute because it: (1) is generally known within the trial
court's territorial jurisdiction; or (2) can be
accurately and readily determination from sources whose
accuracy cannot reasonably be questioned.” Fed.R.Evid.
201 (2018). Courts readily take judicial notice of
“undisputed matters of public record” and
“documents on file in federal or state courts.”
Harris v. County of Orange, 682 F.3d 1126, 1132 (9th
Cir. 2012). The court may take judicial notice of an opinion
filed in another case to determine what issues were before
that court and what was actually litigated. Reyn's
Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746
n.6 (9th Cir. 2006).
Oregon Court of Appeal judgment is a matter of public record
and, therefore, is appropriate for judicial notice. The
appellate court's decision is relevant to Tran's
motion to stay, because it supports that the grounds Tran
asserts to justify the stay applies only to the arresting
defendants, Kuehl and Toops, and does not apply ...