Opinion
CV 00-639-BR
February 7, 2001
FRANK E. VOTH SID # 6100632 Snake River Correctional Institution Ontario, OR Pro Se Plaintiff.
HARDY MYERS Attorney General LEONARD W. WILLIAMSON Assistant Attorney General Department of Justice Salem, OR Attorneys for Defendants Cook and Weeber
KRISTINE OLSON United States Attorney WILLIAM W. YOUNGMAN Assistant United States Attorney U.S. Attorney's Office, District of Oregon Portland, OR Attorneys for Defendant United States of America.
J. PHILIP PARKS Parks Bauer Sime Winkler, LLP Salem, OR Attorneys for Defendant D. Olcott Thompson.
KEVIN CRAWFORD, P.C. Ashcroft Wiles, LLP Salem OR Attorneys for Defendants Corrections Corporation of America and Transcor America, Inc.
OPINION AND ORDER
This matter comes before the Court on the Motion To Dismiss by Defendant Corrections Corporation of America (CCA) (#78) pursuant to Rule 12(b)(6). Defendant CCA maintains Plaintiff's action is time-barred and should be dismissed on statute of limitations grounds.
Plaintiff Frank E. Voth, appearing pro se, brings this action under 42 U.S.C. § 1983 and the Federal Tort Claims Act. He also asserts pendent state claims. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1343(3) and 28 U.S.C. § 1367(a).
The action arises from Plaintiff's transfer in June 1996 from the Oregon State Penitentiary to a penal institution in the State of Texas. Plaintiff contends the transfer was without his consent and resulted in dismissal of his two habeas corpus appeals then pending before the Oregon Court of Appeals.
Plaintiff's first four claims for relief assert the following state law tort claims for money damages against Defendant CCA: false imprisonment, trespass, statutory negligence, and negligence per se. Plaintiff's sixth through twelfth claims assert CCA conspired in violation of § 1983 to deprive Plaintiff of the following constitutional rights: access to courts, due process, equal protection, freedom from cruel and unusual punishments, freedom from unlawful or false imprisonment, protection from bills of attainder, and freedom from imposition of ex post facto laws. Plaintiff also seeks declaratory relief as well as an award of costs and attorneys' fees.
For the reasons that follow, Defendant CCA's Motion to Dismiss is GRANTED.
In opposition to Defendant CCA's Motion Plaintiff has referred to matters outside the pleadings in the form of exhibits already in the Court file. The Court has not relied on such matters and has excluded them for the purpose of deciding CCA's Motion to Dismiss. See Fed.R.Civ.P. 12(b). See also Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). If such matters were taken into account, however, they would not alter the Court's determination that Plaintiff's claims against Defendant CCA are time-barred.
FACTUAL BACKGROUND
Since the Court is considering a Motion to Dismiss, the Court accepts as true all allegations in Plaintiff's First Amended Complaint.In June 1996, Plaintiff was a convicted prisoner in the custody of the State of Oregon and was incarcerated at the Oregon State Penitentiary in Salem, Oregon. On June 18, 1996, Plaintiff was transferred by the United States Marshal's Service from Oregon to a penal facility in Houston, Texas, to allow for his participation in a mandatory medical treatment program.
On June 15, 2000, the Court granted Plaintiff's Motion for Leave to File First Amended Complaint substituting Defendants Cook and Weeber as Defendants in place of former Defendant ODOC. Plaintiff's claims against Defendants Cook and Weeber were dismissed, and the Cross-Motion for Summary Judgment (Qualified Immunity) by Defendants Cook and Weeber was granted in this Court's Opinion and Order issued January 5, 2001.
Defendant CCA operated the mandatory medical treatment program at the correctional facility in Texas where Plaintiff was incarcerated. Plaintiff was held against his will and forced to participate in the mandatory medical treatment program without his consent from June 18, 1996, through August 18, 1996. As a result, Plaintiff's attorney, Defendant Thompson, caused both habeas corpus appeals to be dismissed on July 29 and 30, 1996.
Plaintiff's claims against Defendant Thompson, including Plaintiff's fifth claim for relief alleging legal malpractice, were dismissed, and Defendant Thompson's Rule 12 Motion to Dismiss and Alternative Cross-Motion for Summary Judgment was granted in this Court's Opinion and Order issued December 14, 2000.
On August 15, 1996, Plaintiff was placed on a bus with other prisoners and transported from Texas to Oregon, arriving in Oregon on August 18, 1996. Throughout the course of the bus ride, which lasted over 78 hours, Plaintiff was restrained in leg irons, belly chains, and handcuffs, and was chained to another prisoner under cruel and inhumane conditions.
Plaintiff brought this action in state court on or about February 1, 2000, and the action was removed to this Court on May 10, 2000.
STANDARDS
Dismissal under Fed.R.Civ.P. 12(b)(6) "for failure to state a claim is proper `only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir. 1993) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). The court's review is limited to the complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the non-moving party. Gilligan v. Jamco Development Corp., 108 F.3d 246, 248 (9th Cir. 1997).
A defense of statute of limitations may be raised by a motion to dismiss if the running of the relevant statute of limitations period is apparent on the face of the complaint. Ledesma v. Jack Stewart Produce, Inc., 816 F.2d 482, 484 n. 1 (9th Cir. 1987) (citing Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)). When a motion to dismiss is based on the running of a statute of limitations, the motion can be granted "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Jablon v. Dean Witter Co., 614 F.2d 677, 682 (9th Cir. 1980) (citation omitted).
DISCUSSION
The Court concludes Plaintiff's claims against Defendant CCA are time-barred.
1. Plaintiff's § 1983 Claims Against Defendant CCA Are Time-Barred
Section 1983 claims are characterized as personal injury actions, and the applicable statute of limitations is determined by state law. Davis v. Harvey, 789 F.2d 1332, 1333 (9th Cir. 1986) (citing Wilson v. Garcia, 471 U.S. 261, 280 (1985)). Personal injury claims arising in Oregon are subject to a two-year statute of limitations under Or. Rev. Stat. § 12.110(1). Plumeau v. School Dist. No. 40 County of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997).
Or. Rev. Stat. § 12.110(1) provides in relevant part:
An action for . . . any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years.
Federal law determines when a cause of action under § 1983 accrues. Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981). A claim accrues and the statute begins to run when the plaintiff knows or has reason to know of the injury, its cause, and the person who caused it. Bilbeau v. Pacific Northwest Research Foundation Inc., 188 F.3d 1105, 1108 n. 2 (9th Cir. 1999), amended on denial of reh'g, 208 F.3d 831 (9th Cir. 2000). See also Cline v. Brusset, 661 F.2d at 110 (under federal law, "a cause of action generally accrues when a plaintiff knows or has reason to know of the injury which is the basis of his action").
In support of its Motion, Defendant CCA contends the events underlying Plaintiff's claims occurred and were known to him no later than August 18, 1996. CCA argues, therefore, Plaintiff is precluded from asserting his claims against CCA pursuant to Or. Rev. Stat. § 12.110(1) because Plaintiff delayed until February 1, 2000, to bring this action. Plaintiff, however, maintains Or. Rev. Stat. § 12.160 tolled the statute of limitations from running.
Formerly, Or. Rev. Stat. § 12.160(3) tolled the running of statutes of limitation while a claimant was imprisoned. Boag v. Chief of Police, 669 F.2d 587, 589 (9th Cir.), cert. denied, 459 U.S. 849 (1982). The statute did not preclude an early lawsuit but merely provided imprisoned persons with more time to bring lawsuits than persons who were at liberty. Harris v. Craig, 299 Or. 12, 15, 697 P.2d 189 (1985).
Or. Rev. Stat. § 12.160 formerly provided in relevant part:
If, at the time the cause of action accrues, any person entitled to bring an action mentioned in ORS 12.010 to 12.050, 12.070 to 12.250 and 12.276 is:
* * * *
(3)Imprisoned on a criminal charge, or in execution under the sentence of a court for a term less than the person's natural life, the time of such disability shall not be a part of the time limited for the commencement of the action; but the period within which the action shall be brought shall not be extended more than five years by any such disability, nor shall it be extended in any case longer than one year after such disability ceases.
In 1997, however, the Oregon legislature revised Or. Rev. Stat. § 12.160 and removed subsection (3). Stupek v. Wyle Laboratories Corp., 327 Or. 433, 436 n. 3, 963 P.2d 678 (1998). The legislature intended the amendments to the statute to "apply to all causes of action, whether arising before, on or after" the amendments' effective date of October 4, 1997. See Or. Laws 1997, ch. 339 § 2. Anyone who could have brought an action under the former statute "on the day before the effective date of" the amendments was authorized to "bring an action within one year after the effective date" or "within the time provided by [former] ORS 12.160 . . . whichever expire[d] first." Id.
Or. Rev. Stat. § 12.160 now provides:
If, at the time the cause of action accrues, any person entitled to bring an action mentioned in ORS 12.010 to 12.050, 12.070 to 12.250 and 12.276 is within the age of 18 years or insane, the time of such disability shall not be a part of the time limited for the commencement of the action; but the period within which the action shall be brought shall not be extended more than five years by any such disability, nor shall it be extended in any case longer than one year after such disability ceases.
Plaintiff acknowledges the 1997 legislation abolished the five-year tolling statute for prisoners, but Plaintiff states Or. Rev. Stat. § 12.160 tolled the period from running during the time Plaintiff was required to pursue administrative remedies against Defendant United States of America. Plaintiff asserts he was required under 28 U.S.C. § 2675(a) to exhaust his administrative remedies against Defendant United States of America before he could bring his claims against Defendant CCA.
Plaintiff's claims against Defendant United States of America were dismissed, and Defendant United States's Alternative Motion for Summary Judgment was granted in this Court's Opinion and Order issued November 3, 2000.
28 U.S.C. § 2675(a) provides in relevant part:
An action shall not be instituted upon a claim against the United States for money damages for . . . personal injury . . . caused by the negligent or wrongful act or omission of any employee of the Government . . . unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency. . . .
Moreover, Plaintiff points out the United States of America was named as a Defendant in this action and transferred this action from state court to this Court. Plaintiff argues, therefore, the proper statute of limitations in this action is six years pursuant to 28 U.S.C. § 2401(a).
Plaintiff relies on and quotes from the part of 28 U.S.C. § 2401(a) that provides:
Except as provided by the Contract Disputes Act of 1978, every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.
Defendant CCA, however, is an independent entity that is separate and distinct from the United States of America. Plaintiff's claims against Defendant CCA are not claims against the United States of America. Plaintiff has not alleged facts nor submitted evidence to support his contention that 28 U.S.C. § 2675(a) barred Plaintiff from bringing claims against Defendant CCA until Plaintiff's administrative remedies against the United States of America were exhausted. Neither has Plaintiff shown that 28 U.S.C. § 2401(a) applies to his claims against Defendant CCA.
Additionally, Plaintiff's claims against Defendant CCA are premised on events that occurred and were known to Plaintiff on or before August 18, 1996. Plaintiff alleges in his First Amended Complaint that he was transported from Oregon to the correctional facility in Texas on June 18, 1996, and was returned to Oregon in mid-August 1996. In his First Amended Complaint, Plaintiff has identified August 18, 1996, as the date of his return to Oregon after he endured cruel and inhumane conditions of confinement for over 78 hours while being transported by bus to Oregon.
Plaintiff knew or should have known of the events underlying this action and the alleged participation and tortious conduct of Defendant CCA at the time such events took place in August 1996. Plaintiff has not asserted any argument or submitted any evidence to establish a valid basis to toll the two-year statute of limitations governing his § 1983 claims against CCA. Also, Plaintiff's § 1983 claims against Defendant CCA accrued well over two years before Plaintiff initiated this action. Plaintiff's § 1983 claims, therefore, are time-barred.
2. Plaintiff's State Law Claims Against Defendant CCA Are Time-Barred
In addition to the § 1983 claims, Plaintiff asserts four state law tort claims against Defendant CCA. Such claims also are subject to the two-year limitations contained in Or. Rev. Stat. § 12.110(1).
Accrual of a tort cause of action under Or. Rev. Stat. § 12.110(1) is assessed under an objective test. Timber By-Products, Inc., 148 Or. App. 415, 419, 939 P.2d 1177, review denied, 326 Or. 62, 944 P.2d 949 (1997). The statute begins to run when the claimant "knew, or in the exercise of reasonable care, should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements [of legally cognizable harm] (harm, causation, and tortious conduct) exists." Oregon Life and Health Ins. Guar. Ass'n v. Inter-Regional Financial Group, Inc., 156 Or. App. 485, 492, 967 P.2d 880 (1998), review withdrawn, 329 Or. 10 (1999) (citation and internal quotations omitted).
As noted with respect to Plaintiff's § 1983 claims, in August 1996 Plaintiff was aware of or should have known of the events at issue as well as the asserted involvement and tortious conduct of Defendant CCA. Plaintiff has not offered evidence that would justify tolling the statute of limitations. Accordingly, Plaintiff's state law tort claims also are time-barred.
CONCLUSION
Based on the foregoing, Defendant CCA's Motion to Dismiss (#78) pursuant to Rule 12(b)(6) is GRANTED.
IT IS SO ORDERED.