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Heilbrun v. Washington County

United States District Court, D. Oregon

January 23, 2019

MICHAEL E. HEILBRUN, Plaintiff,
v.
WASHINGTON COUNTY; KEN ROLFE; CORIZON MEDICAL, INC.; PAT GARRETT; JOSEPH MCCARTHY; STOLZ COLIN; and CITY OF HILLSBORO, Defendants.

          ORDER

          Michael H. Simon Michael H. Simon United States District Judge

         In October 2017, the Ninth Circuit affirmed in part and vacated in part and remanded this Court's previous order dismissing this case. ECF 16. The Ninth Circuit noted that the previous order from this Court “did not address Heilbrun's allegations in his verified complaint that adverse side effects from pain medication and failure to install safety measures resulted in his back injury, and that he was administered medication without his informed consent.” ECF 16-1 at 2. Accordingly, the Ninth Circuit vacated the judgment in part and remanded for this Court to consider these allegations and determine whether to allow leave to amend. Id. at 2-3. On November 21, 2017, this Court ordered that if Plaintiff desired to continue the case, he must file an amended complaint within 30 days. ECF 17. The Court also required that, if Plaintiff chose to file an amended complaint, he must name all Defendants in the caption of that pleading and separately describe how each of the named Defendants personally participated in the alleged violations. Id. On December 22, 2017, Plaintiff filed his amended complaint, alleging 17 separate claims. ECF 18. Now pending before the Court are: (a) Defendant City of Hillsboro's Motion to Dismiss (ECF 30); (b) Defendants Washington County, Ken Rolfe, and Pat Garrett's Motion to Dismiss (ECF 31), and (c) Defendants Corizon Medical, Inc. (“Corizon”), Joseph McCarthy, and Stolz Colin's Motion to Dismiss (ECF 33). Plaintiff did not respond. For the reasons that follow these motions to dismiss are granted in part and denied in part.

         STANDARDS

         A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the Plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quotation marks omitted).

         DISCUSSION

         Plaintiff alleges in his amended complaint seventeen separate claims for relief against defendants. ECF 18. The Court will analyze each claim as they pertain to each of the three motions to dismiss.

         A. City of Hillsboro's Motion to Dismiss

         Four of Plaintiff's claims are alleged against the City of Hillsboro. Plaintiff's eleventh claim is for failure to train a Washington County employee, Ken Rolfe; his twelfth claim is for failure to train an intern for Corizon Medical, Stolz Colin; his thirteenth claim alleges conspiracy and retaliation designed to suppress Plaintiff's free speech rights; and his fifteenth claim is for negligence in failing to protect Plaintiff through jail housing at the Washington County jail and from side effects from his medical treatment. ECF 18. Defendant Hillsboro argues that these claims are both barred by the respective statutes of limitations, and that Plaintiff has failed to allege any facts that would support a claim against the City of Hillsboro. ECF 30.

         The Court finds that Plaintiff has failed to state a claim against the City of Hillsboro. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft, 556 U.S. at 678. A municipality can only be held liable for “those deprivations resulting from the decisions of its duly constituted legislative body or of those officials whose acts may fairly be said to be those of the municipality.” Bd. of Cnty Com'rs of Bryan Cnty, Okl. v. Brown, 520 U.S. 397, 403-04 (1997).

         Plaintiff's four claims against the City of Hillsboro cannot be attributed to the City. A defendant must be potentially liable for misconduct, and the complained of acts here cannot be fairly said to be those of any City of Hillsboro actors or policymakers. The claims against the City of Hillsboro are all based on actions by persons not employed by the City, or by landowners other than the City. Plaintiff has not alleged that Mr. Rolfe or Mr. Colin are employees of the City of Hillsboro, and Plaintiff alleges no facts to show how the City could be liable for a failure to train people it does not employ. Similarly, Plaintiff's thirteenth claim alleges that the City retaliated and violated his First Amendment rights through the District Attorney's alleged intimidation of Plaintiff during a criminal proceeding. ECF 18. The District Attorney is not a City employee. ORS 8.650, et seq, and the City is not involved in State criminal prosecutions.

         Finally, Plaintiff's final claim against the City of Hillsboro is a state negligence claim. ECF 18. Plaintiff alleges that he was injured due to unsafe housing when he was incarcerated in the Washington County Jail. Id. But Plaintiff acknowledges that it was the County Jail and a County building where he was detained, and thus has not alleged how the City could be found liable. Because Plaintiff has not stated a claim upon which relief can be granted, the City of Hillsboro's Motion to Dismiss (ECF 30) is granted.

         B. Washington County, Ken Rolfe, and Pat Garrett's Motion to Dismiss

         Defendants Washington County, Ken Rolfe, and Pat Garrett (“County Defendants”) move to dismiss Plaintiff's first, fourth, eighth, ninth, eleventh, twelfth, thirteenth, fifteenth, sixteenth, and seventeenth claims because Defendants assert they are untimely. Plaintiff's first, fourth, eighth, ninth, eleventh, twelfth, and thirteenth claims arise under 42 U.S.C. § 1983 (“§ 1983”) and are therefore subject to a two-year limitations period. See Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989) (“Oregon's two-year statute of limitations for personal injury actions applies to actions under 42 USC § 1983.”). Plaintiff's fifteenth, sixteenth, and seventeenth claims are state tort-law claims. The Oregon Tort Claims Act provides in relevant part that tort claims against a public ...


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