McKenzie v. Portland Police Div.

• Docket Number: 3:22-cv-01140-SB
• Decision Date: 01 September 2023
• Parties: THOMAS C. MCKENZIE, Plaintiff, v. PORTLAND POLICE DIVISION; CITY OF PORTLAND; IVAN A. ALVAREZ; HILARY J. SCOTT; and JOHN DOES 2-4, Defendants.
• Court: U.S. District Court — District of Oregon

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THOMAS C. MCKENZIE, Plaintiff, v. PORTLAND POLICE DIVISION; CITY OF PORTLAND; IVAN A. ALVAREZ; HILARY J. SCOTT; and JOHN DOES 2-4, Defendants.

No. 3:22-cv-01140-SB

United States District Court, D. Oregon

September 1, 2023

FINDINGS AND RECOMMENDATION

HON STACIE F. BECKERMAN, UNITED STATES MAGISTRATE JUDGE

PlaintiffThomas C. McKenzie(“McKenzie”) filed this case against the City of Portland(the “City”)Portland Police Division(commonly known as the Portland Police Bureau, or “PPB”), Ivan Alvarez(“Alvarez”), and Hilary Scott(“Scott”), alleging constitutional violations pursuant to 42 U.S.C. § 1983.(ECF No. 6.)Now before the Court is Alvarez's and Scott's (together “Defendants”)motion for summary judgment.(ECF No. 23.)

The Court has jurisdiction over McKenzie's claims pursuant to 28 U.S.C. § 1331, but not all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C § 636.

For the reasons that follow, the Court recommends that the district judge grant Defendants' motion for summary judgment.

DISCUSSION

Defendants move for summary judgment because McKenzie's “sole claim for relief against them is barred by the applicable statute of limitations.”(Defs.' Mot. Dismiss (“Defs.'Mot.”)at 2.)The Court agrees, and therefore recommends that the district judge grant Defendants' motion for summary judgment.

I.FACTUAL BACKGROUND^[1]

On October 8, 2020, PPB officers arrested McKenzie at the residence of a third party.(SeeDecl. Trung Tu Supp. Defs.' Mot. Summ. J. (“Tu Decl.”)¶ 6, Ex. 2;see alsoFirst Am. Compl. (“FAC”)at 7, ECFNo. 23-1.)According to McKenzie, his arrest and subsequent treatment violated his rights under the Fourth Amendment.(See generally FAC.)

Defendants argue that they can demonstrate there was probable cause for McKenzie's arrest, but that it is not necessary to address the merits of McKenzie's claim because it is barred by the applicable two-year statute of limitations.(Defs.' Mot.at 2.)As such, Defendants argue that “[t[he only material facts that are pertinent to this [m]otion are: (1) the date of the purportedly unlawful arrest . . .; (2) the date that [McKenzie] filed this lawsuit; (3) the date that [McKenzie] requested that Alvarez and Scott be substituted in place of John Doe 1 and John Doe 2; (4) the date the Court granted McKenzie's request . . .; and (5) the date that Alvarez and Scott received notice of [McKenzie's] lawsuit against them.”(Id. at 5-6.)

II.PROCEDURAL HISTORY

On August 4, 2022, McKenzie filed this action naming “Portland Police Division” as the only defendant.(SeeECF No. 1.)On August 31, 2022, the Court identified several deficiencies in McKenzie's complaint, and ordered McKenzie to show cause “why the Court should not dismiss his complaint” or to “alternatively, . . . file an amended complaint on or before September 21, 2022, curing the pleading deficiencies discussed herein.”(SeeOrder, ECF No. 5.)

On September 19, 2022, McKenzie filed an amended complaint, naming the City, PPB, and John Does 1-4 as defendants.(SeeFACat 1-2.)However, the Court found that McKenzie had not cured all of the pleading deficiencies, and dismissed the City and PPB from this action.(SeeOrder Dismissal, ECF No. 7.)On October 5, 2022, the Court sent a copy of the FAC and a Notice of Lawsuit and Request for Waiver of Service to the City.(SeeECF Nos. 8-9.)

On October 31, 2022, the City informed McKenzie and the Court that the City “must respectfully decline the Court's request to waive service on behalf of Defendants John Does 1-4” because “[the City] may not and cannot accept or waive service on behalf of unknown John Does.”^[2](SeeNoticeat 3, ECF No. 10.)

On November 17, 2022, McKenzie filed a “request to substituteIvan A. Alvarez and Hilary J. Scott for two of the four ‘Doe'defendants named in the amended complaint.”(SeePl.'sMot., ECF No. 15;see alsoOrder, ECF No. 18.)McKenzie acknowledged in his motion that despite naming John Does 1-4 in his FAC, “it[']s really John Doe 1 [and] 2 on the report I received[.]”(Id.)On December 6, 2022, the Court granted McKenzie's request, and the Court sent another Notice of Lawsuit and Request for Waiver of Service to the City.(SeeECF No. 18.)On January 6, 2023, a City attorney accepted service on behalf of Scott and Alvarez.(SeeECF No. 22.)Defendants filed their motion for summary judgment on February 21, 2023.

III.LEGAL STANDARDS

Summary judgment is appropriate if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”FED. R. CIV. P. 56(a).On a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party, and draw all reasonable inferences in favor of that party.SeePorter v. Cal. Dep'tof Corr., 419 F.3d 885, 891(9th Cir.2005).The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute.SeeAnderson v. Liberty Lobby, Inc., 477 U.S. 242, 249(1986).“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.”Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587(1986)(simplified).

IV.ANALYSIS

Defendants move for summary judgment on the ground that the applicable two-year statute of limitations bars McKenzie's claim against Scott and Alvarez.(SeeDefs.'Mot. at 2.)McKenzie responded to Defendants' motion, but did not address the statute of limitations argument.(See generallyPl.'s Resp. Mot. Dismiss, ECF No. 29.)

A.Relation Back

McKenzie filed his request to substitute Scott and Alvarez six weeks after the two-year applicable statute of limitations expired on October 8, 2022.SeeSain v. City of Bend, 309 F.3d 1134, 1139(9th Cir.2002)(“Oregon's two-year statute of limitations for personal injury actions applies to actions under 42 U.S.C. § 1983”(citingOR. REV. STAT. § 12.110(1))).As a result, McKenzie's claims against Scott and Alvarez are time-barred unless they“relate back” to his timely-filed original complaint or FAC.SeeKrupski v. Costa Crociere S.p.A., 560 U.S. 538, 541(2010)(finding that an amended pleading that relates back to a timely filed pleading “is . . . itself timely even though it was filed outside an applicable statute of limitations”).“Where, as here, ‘the limitations period derives from state law, . . . [the Court must] consider both federal and state law and employ whichever affords the ‘more permissive' relation back standard.”Fudge v. Bennett, No. 2:19-CV-01102-SB, 2021 WL 1414279, at *2(D. Or.Jan. 5, 2021)(citingButler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d 1191, 1201(9th Cir.2014)), findings and recommendation adopted, No. 2:19-CV-01102-SB, 2021 WL 1414209(D. Or.Apr. 13, 2021).

1.The Federal Standard

Under Federal Rule of Civil Procedure (“Rule”)15(c), an amendment relates back to the original pleading if:

(A) the law that provides the applicable statute of limitations allows relation back;

(B)the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading; or

(C)the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the merits; and

(ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

FED. R. CIV. P. 15(C)(1).“Relation back therefore requires that ‘(1) the basic claim must have arisen out of conduct set forth in the original pleading; (2)the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it.'”Glass v. Forster, No. 1:18-cv-01859-MC, 2020 WL 3077868, at *9(D. Or.June 10, 2020)(citingButler, 766 F.3d at 1202 and quoting Schiavione v. Fortune, 477 U.S. 21, 29(1986))).“Additionally, the second and third requirements must have been fulfilled within the [90]-day time limit provided by Rule 4(m).”Id.(citation omitted).McKenzie bears the burden of establishing that his proposed amendments relate back to a timely-filed complaint.SeeWilkins-Jones v. Cnty. of Alameda, No. C-08-1485 EMC, 2012 WL 3116025, at *14(N.D. Cal.July 31, 2012)(noting that “it is [the]Plaintiff's burden to show relation back”).

Defendants argue that Rule 15's relation back provision does not apply where-as here- a plaintiff seeks to substitute a Doe defendant.(SeeDefs.' Mot.at 10, citingManns v. Lincoln Cnty., 6:17-cv-01120-MK, 2018 WL 7078672, at *5(D. Or.Dec. 12, 2018)).Indeed, the Ninth Circuit recently held in an unpublished opinion that “replacing a ‘John Doe'defendant with the actual name of a defendant is not a ‘mistake' that allows relation back under Rule 15(c)(1)(C).”^[3]Boss v. City of Mesa, 746 Fed.Appx. 692, 695(9th Cir.2018)(citingButler766 F.3d at 1203-04);see alsoManns, 2018 WL 7078672, at *4-5(noting“the clear trend in this district” that “relation back does not apply when a plaintiff seeks to replace a ‘Doe'defendant with a newly named party”);cf.Butler v. Robar Enters., Inc., 208 F.R.D. 621, 623(C.D. Cal.2002)(acknowledging pre-Boss that “the Ninth Circuit has yet to rule on whether a lack of knowledge of the identity of an individual at the time of the filing of a...