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Minh Tran v. Kuehl

United States District Court, D. Oregon, Portland Division

August 13, 2018





         Pro se plaintiff Linh Thi Minh Tran (“Tran”) filed suit against defendants Darryn J. Kuehl (“Kuehl”), Benjamin J. Toops (“Toops”), and Ryan Kersey (“Kersey”) (collectively, “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.


         The 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. at 3.)

         That 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.)

         In 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.)

         In 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.)

         In 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).

         Defendants 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.)

         Preliminary Procedural Matters

         Tran's 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.

         Under 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).

         The 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 ...

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