Pelster ex rel Boyer v. Walker, No. CIV 00-50-BR.

• Decision Date: 20 August 2001
• Docket Number: No. CIV 00-50-BR.
• Parties: Cynthia PELSTER as guardian ad litem for Amanda Boyer and Anna BOYER, Plaintiffs, v. Greg WALKER, Michelle Reed, Joe Colistro, Denise Kotaniemi, Christin Hanthorn, Steven Funk, Kenneth Hansen, Harry Cheney, the City of Astoria, the Astoria Police Department, Clatsop County, and the Clatsop County Sheriff's Department, Defendants.
• Court: U.S. District Court — District of Oregon

185 F.Supp.2d 1174

Cynthia PELSTER as guardian ad litem for Amanda Boyer and Anna BOYER, Plaintiffs, v. Greg WALKER, Michelle Reed, Joe Colistro, Denise Kotaniemi, Christin Hanthorn, Steven Funk, Kenneth Hansen, Harry Cheney, the City of Astoria, the Astoria Police Department, Clatsop County, and the Clatsop County Sheriff's Department, Defendants.

No. CIV 00-50-BR.

United States District Court, D. Oregon.

August 20, 2001.

Lynn S. Walsh, Portland, OR, for Plaintiffs.

Gerald L. Warren, Salem, OR, for Defendants.

OPINION AND ORDER

BROWN, District Judge.

This matter comes before the Court on Defendants' Motion for Summary Judgment (# 73), Defendants' Motion to Dismiss Individually Named Defendants and to Substitute Public Bodies as the Only Defendants Regarding Plaintiffs' State Tort Claims (# 71), and Defendants' Motion to Strike the Affidavit of Cynthia Pelster Offered in Support of Plaintiffs' Response to Defendants' Motion for Summary Judgment (# 91).

Plaintiffs Amanda Boyer and Anna Boyer, through Cynthia Pelster as guardian ad litem, brought this action for civil rights violations pursuant to 42 U.S.C. § 1983 and for tort claims under state law, alleging they were involuntarily examined by medical personnel to determine whether they had been sexually assaulted. The Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1332(a), 1343(3), and 1367(a).

For the reasons that follow, Defendants' Motion for Summary Judgment (# 73) is GRANTED as to Plaintiffs' Second Claim, which is DISMISSED as time-barred. Defendants' Motion for Summary Judgment (# 73) is DENIED without prejudice and with leave to renew as to Plaintiffs' Third Claim. Defendants' Motion for Summary Judgment (# 73) remains pending as to Plaintiffs' First Claim. The Court requests supplemental briefing concerning Defendants' qualified immunity defense to specifically address the two-step analysis set forth in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 2155-57, 150 L.Ed.2d 272 (2001). Defendants' Motion to Dismiss Individually Named Defendants and to Substitute Public Bodies as the Only Defendants Regarding Plaintiffs' State Tort Claims (# 71) is DENIED without prejudice pending a ruling on the issue by the Oregon Supreme Court with leave to renew at that time. Defendants' Motion to Strike the Affidavit of Cynthia Pelster Offered in Support of Plaintiffs' Response to Defendants' Motion for Summary Judgment (# 91) is GRANTED.

DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SUMMARY OF RELEVANT FACTS¹

On January 8, 1998, medical personnel at Columbia Memorial Hospital in Astoria, Oregon, examined Plaintiffs to determine whether they had been sexually assaulted. These physical examinations and a search of Plaintiffs' home were authorized by the Clatsop County Circuit Court in a search warrant issued on January 7, 1998, in connection with a law enforcement investigation into allegations of criminal mistreatment, drug crimes, alcohol abuse, prostitution, and sexual contact between various adult males and underaged females. The examinations occurred shortly after the search of Plaintiffs' home and the arrest of their parents. Plaintiff Amanda Boyer was 13 years old, and Plaintiff Anna Boyer was 15 years old. Pelster, Plaintiffs' guardian ad litem, is Plaintiffs' mother. Daniel Boyer is Plaintiffs' father.

The primary investigators were Astoria Police Officer Greg Walker and Clatsop County Detective Michelle Reed. Defendants Kotaniemi, Cheney, and Hanthorn were present at the hospital when Plaintiffs were examined.

Pelster and Daniel Boyer ultimately were charged with two counts of criminal mistreatment and one count of hindering prosecution² and filed a Motion to Suppress/Motion to Controvert Evidence that officials seized from their home when executing the search warrant. In an Order issued on April 21, 1998, the Clatsop County Circuit Court ruled there was insufficient evidence to establish probable cause to support the search warrant and granted the motion to suppress on state constitutional grounds. In an opinion issued on February 28, 2001, however, the Oregon Court of Appeals held otherwise and reversed the Circuit Court's Order.

In the meantime, Plaintiffs filed their Complaint and initiated this action on January 7, 2000. Plaintiffs served Defendants with Summons and Complaint on the following dates: Walker, August 18, 2000; Reed, August 19, 2000; Colistro, August 29, 2000; Kotaniemi, August 19, 2000; Hanthorn, August 24, 2000; Funk, August 29, 2000; Hansen, August 24, 2000; Cheney, August 18, 2000; City of Astoria, August 18, 2000; Astoria Police Department, August 18, 2000; Clatsop County Sheriff's Department, August 18, 2000; and Clatsop County, September 18, 2000.

STANDARDS FOR SUMMARY JUDGMENT

Fed.R.Civ.P. 56(c) authorizes summary judgment if no genuine issue exists regarding any material fact and the moving party is entitled to judgment as a matter of law. The moving party must show an absence of any genuine issue of material fact. Hanon v. Dataproducts Corp., 976 F.2d 497, 500 (9th Cir.1992). In response to a properly-supported motion for summary judgment, the nonmoving party must go beyond the pleadings and show there is a genuine issue of material fact for trial. Fed.R.Civ.P. 56(e). Evidence must be significantly probative to present a genuine issue of material fact. United Steelworkers of America v. Phelps Dodge Corp., 865 F.2d 1539, 1542 (9th Cir.), cert. denied, 493 U.S. 809, 110 S.Ct. 51, 107 L.Ed.2d 20 (1989). When the nonmoving party's claims are factually implausible, that party must come forward with more persuasive evidence than would otherwise be required. Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1147 (9th Cir.1998).

The substantive law governing a claim or defense determines whether a fact is material. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000). The Court must resolve against the moving party all reasonable doubts about whether issues of material fact exist, and the Court must view all inferences drawn from the facts in the light most favorable to the nonmoving party. Id. A mere disagreement about a material issue of fact does not preclude summary judgment. California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006, 108 S.Ct. 698, 699, 98 L.Ed.2d 650 (1988).

DISCUSSION

Defendants contend Plaintiffs' state law and federal claims are barred by applicable statutes of limitations and, alternatively, qualified immunity protects all individual defendants from liability for alleged constitutional violations.

1. Oregon Law Controls Whether Plaintiffs' State Law Claims Are Time-Barred

In their Second Claim, Plaintiffs assert state law claims against Defendants Astoria Police Department, City of Astoria, Clatsop County Sheriff's Department, and Clatsop County (Public Body Defendants). In their Third Claim, Plaintiffs assert state law claims against Defendants Walker, Reed, Colistro, Kotaniemi, Hanthorn, Funk, Hansen, and Cheney (Individual Defendants).

Defendants contend Oregon law applies to Plaintiffs' state law claims, and those claims are time-barred under the two-year limitation period in Or.Rev.Stat. § 30.275(8), which provides:

Except as provided in ORS 12.120 [Action on escape; action for defamation] and ORS 12.135 [Action for damages from construction, alteration or repair of improvement to real property], but notwithstanding any other provision of ORS chapter 12 or other statute providing a limitation on the commencement of an action, an action arising from any act or omission of a public body or an officer, employee or agent of a public body within the scope of ORS 30.260 to 30.300 [the Oregon Tort Claims Act] shall be commenced within two years after the alleged loss or injury.

(Emphasis added.) Although Plaintiffs filed their Complaint on the eve of the two-year anniversary of the incident, Defendants maintain Plaintiffs' state claims, nevertheless, are time-barred because Plaintiffs did not effect service on Defendants within the time required by Oregon law.

Oregon Rule of Civil Procedure 3 provides: "Other than for purposes of statutes of limitations, an action shall be commenced by filing a complaint with the clerk of the court." (Emphasis added.) More particularly, Or.Rev.Stat. § 12.020(1) provides:

Except as provided in subsection (2) of this section, for the purpose of determining whether an action has been commenced within the time limited, an action shall be deemed commenced as to each defendant, when the complaint is filed, and the summons served on the defendant, or on a codefendant who is a joint contractor, or otherwise united in interest with the defendant.

(Emphasis added.)

In this regard, Or.Rev.Stat. § 12.020(2) effectively extends the statutory limitations period under certain circumstances:

If the first publication of summons or other service of summons in an action occurs before the expiration of 60 days after the date on which the complaint in the action was filed, the action against each person of whom the court by such service has acquired jurisdiction shall be deemed to have been commenced upon the date on which the complaint in the action was filed.

Defendants contend Plaintiffs first attempted service by mail on June 23, 2000, more than 166 days after filing their Complaint on January 7, 2000. It is undisputed that Plaintiffs completed proper service on Individual Defendants and Public Body Defendants on or after August 18, 2000, more than 220 days after filing their Complaint. Accordingly, Defendants assert Plaintiffs' state law claims are time-barred because Plaintiffs' action commenced on the dates Defendants were served and do not relate back to the date Plaintiffs filed their Complaint.

According to Plaintiffs, however, federal law determines whether their state law claims were commenced timely. Pursuant to Fed.R.Civ.P. 3, a civil action...