Kosikowski v. Bourne

• Decision Date: 02 December 1981
• Docket Number: 79-4838,Nos. 79-4837,s. 79-4837
• Citation: 659 F.2d 105
• Parties: Holly Hall KOSIKOWSKI, Appellant, v. William BOURNE, personally and in his official capacity as Director of Public Works and Airport Manager for the City of North Bend; B. L. "Bev" Higgins, personally and in his official capacity as Mayor of the City of North Bend, and the City of North Bend, etc., et al., Appellees. John MORSE, Appellant, v. Sandra DIETRICH, personally and in her official capacity as Administrator for Coos-Curry Council of Gov't; Irene Johnson, personally and in her official capacity as Coos County Commissioner and Delegate to the Coos-Curry Council of Gov't, etc., et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 105

659 F.2d 105

Holly Hall KOSIKOWSKI, Appellant, v. William BOURNE, personally and in his official capacity as

Director of Public Works and Airport Manager for the City of

North Bend; B. L. "Bev" Higgins, personally and in his

official capacity as Mayor of the City of North Bend, and

the City of North Bend, etc., et al., Appellees.

John MORSE, Appellant, v. Sandra DIETRICH, personally and in her official capacity as

Administrator for Coos-Curry Council of Gov't; Irene

Johnson, personally and in her official capacity as Coos

County Commissioner and Delegate to the Coos-Curry Council

of Gov't, etc., et al., Appellees.

Nos. 79-4837, 79-4838.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 11, 1981.

Decided Sept. 28, 1981.

Rehearing and Rehearing En Banc Denied Dec. 2, 1981.

Arthur C. Johnson, Johnson, Harrang & Mercer, Eugene, Or., for kosikowski.

William McDaniel, Coos Bay, Or., Daniel H. Skerritt, Lindsay, Hart, Neil & Weigler, George Fraser, Stoel, Rives, Boley, Fraser & Wyse, Portland, Or., argued, for Bourne, et al.; Roger Gould, Bedingfield, Joelson, Gould & Barron, Foss, Whitty & Roess, Coos Bay, Or., Jerard S. Weigler, Lindsay, Hart, Neil & Weigler, Portland, Or., Richard L. Barron, Bedingfield, Joelson, Gould & Barron, Coos Bay, on brief.

Appeal from the United States District Court for the District of Oregon.

Before GOODWIN and SNEED, Circuit Judges, and HALBERT, ^* District Judge.

GOODWIN, Circuit Judge.

Holly H. Kosikowski and John Morse appeal from orders of the district court dismissing their actions for damages against various Oregon local government bodies, public officials and private entities. Appellants contend on this consolidated appeal that the district court erred by holding that their actions brought under 42 U.S.C. § 1983 were time-barred under Oregon's two-year, general tort statute of limitations, Or.Rev.Stat. § 12.110(1), and that neither complaint stated a claim upon which relief could be granted.

In 1976, Kosikowski and Morse initiated litigation challenging a proposed extension of an airport runway in North Bend, Oregon, because of the alleged environmental damage that would result from filling the Coos Bay estuary which was required to complete the project. Morse v. Oregon Division of State Lands, 285 Or. 197, 590 P.2d 709 (1979).

On June 21, 1979, Kosikowski and Morse filed separate actions under 42 U.S.C. § 1983, each alleging that various Oregon local government entities, public officials and private companies violated their civil rights by harassing them so that they would cease their efforts to block the runway extension. The complaints were filed more than two years after the last act of harassment allegedly took place.

The district court dismissed Morse's action on November 15, 1979, and dismissed Kosikowski's action on November 19, 1979. The court held that both actions were time-barred by Oregon's two-year tort statute of limitations, Or.Rev.Stat. § 12.110(1). ¹ The court also held, in the alternative, that neither complaint stated a cause of action because they failed to allege sufficient government involvement to state a claim under § 1983. The cases were consolidated on appeal.

Kosikowski and Morse contend that the district court erred in holding that Or.Rev.Stat. § 12.110 was the Oregon statute of limitations applicable to § 1983 actions. We agree. See Clark v. Musick, 623 F.2d 89, 91-92 (9th Cir. 1980). (Or.Rev.Stat. § 12.110 is not applicable to § 1983 actions.) Nevertheless, although the district court erred, the error was harmless. The Oregon Tort Claims Act two-year statute of limitations, Or.Rev.Stat. § 30.275(3), applies to § 1983 actions, and therefore both complaints were time-barred.

Or.Rev.Stat. § 30.275(3) provides that "(n)o action (under the Oregon Tort Claims Act, Or.Rev.Stat. § 30.260 to 30.300) shall be maintained unless ... the action is commenced within two years after the date of such accident or occurrence." ² Or.Rev.Stat. § 30.265 establishes the scope of liability of public bodies, officers, employees and "Subject to the limitations of ORS 30.260 to 30.300, every public body is liable for its torts and those of its officers, employes and agents acting within the scope of their employment or duties, whether arising out of a governmental or proprietary function. As used in this section and in ORS 30.285, 'tort' includes any violation of 42 USC section 1983." (Emphasis added.)

agents under the Act. In 1975, Or.Rev.Stat. § 30.265(1) was amended to add the italicized reference to 42 U.S.C. § 1983 actions:

In 1977, the Oregon Legislature again amended Or.Rev.Stat. § 30.265(1), changing the last sentence of the subsection to provide that "(a)s used in ORS 30.260 to 30.300, 'tort' includes any violation of 42 U.S.C. section 1983." (Emphasis added.) By applying the provisions of Or.Rev.Stat. § 30.265 to 30.300 to § 1983 actions, the 1977 amendments made applicable the Or.Rev.Stat. § 30.275(3) two-year statute of limitations to § 1983 actions. This was not inadvertent. The legislative history of the 1977 amendment demonstrates that the Oregon Legislature intended to amend Or.Rev.Stat. § 30.265(1) to insure that the two-year statute of limitations applied to § 1983 actions. See Minutes of House Committee on Judiciary, May 24, 1977, 59th Oregon Legislative Assembly 4 (1977).

This precise expression of the intent of the Oregon Legislature makes unnecessary a resort to a characterization of appellants' cause of action in the manner employed by this court in Clark v. Musick, 623 F.2d 89 (9th Cir. 1980). Such characterization serves no purpose other than to provide guidance in the selection of the applicable state statute. When the state has expressly made that selection the federal courts should accept it unless to do so would frustrate the purposes served by the federal law upon which the plaintiff's claims rest.

Title 42 U.S.C. § 1983 does not contain a limitations period; therefore, federal courts look to the state statute of limitations that applies to the most analogous state cause of action, Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-1795, 64 L.Ed.2d 440 (1980), as long as the statute is not inconsistent with the Constitution and the laws of the United States. 42 U.S.C. § 1988. We must accept the decision of the Oregon Legislature to apply the two-year statute of limitations to § 1983 actions. See Major v. Arizona State Prison, 642 F.2d 311, 313 (9th Cir. 1981). See also, United Parcel Service, Inc. v. Mitchell, --- U.S. ----, ----, 101 S.Ct. 1559, 1564-1565, 67 L.Ed.2d 732 (1981).

Kosikowski and Morse contend that we are bound by our decision in Clark holding that in § 1983 actions the six-year statute of limitations applicable to causes of action created by statute (Or.Rev.Stat. § 12.080(2)) rather than the general tort two-year limitation (Or.Rev.Stat. § 12.110(1)) applies.

This argument would have been sound if the state legislative assembly had not intervened. As a general rule, "we have consistently characterized § 1983 claims as actions created by statute, and, whenever possible, the statute of limitations for actions founded on a liability created by statute has been borrowed." Major v. Arizona State Prison, supra, 642 F.2d at 312. Thus, the Clark court concluded that as between the statute of limitations applicable to causes of action created by statute and the statute of limitations applicable to common law tort actions, the statutory cause of action limitation period applied. 623 F.2d at 92. But the Clark court had to engage in characterization because it had no opportunity to consider whether Or.Rev.Stat. § 30.275(3) applied to § 1983 actions. Because that question was not before the Clark court, it was not decided. That question has now been decided by the Oregon Legislature. Therefore, Clark 's characterization in the absence of a local statute is no longer controlling in this case. ³

We hold that Or.Rev.Stat. § 30.275(3) is the Oregon statute of limitations applicable to § 1983 actions. Both complaints were time-barred. The orders of dismissal, therefore, must be affirmed, and we do not reach the question whether the claims attempted to be stated survived attack under Fed.R.Civ.P. 12(b)(6).

Affirmed.

ON REHEARING

In a petition for rehearing, the plaintiff appellants argue that in following Or. Rev. Stat. Sec. 30.265(1) as amended in 1977, we produced a result inconsistent with earlier case law in this circuit. This is true. The earlier cases, however, did not deal with Or. Rev. Stat. Sec. 30.265(1). Accordingly, the earlier "common law" treatment of the problem of borrowing state statutes of limitations is irrelevant when the state has enacted a specific statute expressly dealing with the limitations question before this court. Accordingly,Plummer v. Western Inter. Hotels Co., Inc., 656 F.2d 502 (9th Cir. 1981), which deals with actions brought under 42 U.S.C. Sec. 1981, does not control a case brought under 42 U.S.C. Sec. 1983. Even though both logic and legislative symmetry would seem to commend to the Oregon State Legislative Assembly a limitations scheme treating both kinds of cases equally, we are not at liberty to make that choice for the State of Oregon. The state legislature expressed its intent with reference to Sec. 1983 actions and did not express its intent with reference to Sec. 1981 actions. This court, under its duty to follow its own precedents until contrary legislative signals appear, must treat the two statutes...