Rogers v. Saylor

• Decision Date: 05 February 1988
• Parties: Lonnie ROGERS, Appellant, v. Sam SAYLOR, John Blackman, Jerry R. Hill, Robert Peterson, Multnomah County, and City of Gresham, Respondents, Harold R. Boehmer, Defendant. A8409 05447; CA A35289. Court of Appeals of Oregon, In Banc
• Court: Oregon Court of Appeals

Page 718

746 P.2d 718

88 Or.App. 480

Lonnie ROGERS, Appellant, v. Sam SAYLOR, John Blackman, Jerry R. Hill, Robert Peterson, Multnomah County, and City of Gresham, Respondents, Harold R. Boehmer, Defendant.

A8409 05447; CA A35289.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted May 16, 1986.

Resubmitted in banc Oct. 7, 1987.

Decided Dec. 9, 1987.

Reconsideration Denied Feb. 5, 1988.

Gregory Kafoury, Portland, argued the cause and filed the briefs for appellant.

Noelle Billups, Portland, argued the cause for respondents. With her on the briefs was John B. Leahy, County Counsel for Multnomah County, Oregon.

Elden M. Rosenthal and Rosenthal & Greene, P.C., Portland, filed a brief amicus curiae for ACLU Cooperating Attorney.

JOSEPH, Chief Judge.

In this action, which is generally subject to the Oregon Tort Claims Act (OTCA), ORS 30.260 to ORS 30.300, plaintiff asserts a violation of 42 U.S.C. § 1983. ¹ He alleges in his first claim that, on September 19, 1982, defendants Saylor, Blackman, Hill, Boehmer and Peterson physically and verbally assaulted him, in violation of his rights under the Fourth, Fifth and Fourteenth Amendments to the federal constitution. The individual defendants, except Peterson, were at that time deputies of the Multnomah County Sheriff; Peterson was an officer in the Gresham Police Department. ² Plaintiff alleges that, as a result of the alleged attack, he suffered general damages of $110,000; in addition, he alleges entitlement to punitive damages and attorney fees.

The trial court dismissed the first claim when plaintiff failed to replead after the court granted defendants' motion to strike plaintiff's allegations of general damages in excess of $100,000, punitive damages and attorney fees. The motion was granted on the ground that plaintiff's remedy against the individual defendants is subject to ORS 30.270, which limits the liability of public bodies and their officials, employes and agents acting within the scope of their employment to $100,000 per claimant for all claims arising out of a single accident or occurrence, prohibits the award of punitive damages and is silent with respect to attorney fees. ³ The court certified the dismissal of the first claim as final, pursuant to ORCP 67B, and plaintiff appeals. We affirm in part and reverse in part.

On appeal, plaintiff contends generally that ORS 30.270 is not applicable to a section 1983 claim. The specific errors which he assigns are directed at the striking of his allegations relating to punitive damages, compensatory damages in excess of $100,000 and attorney fees. ⁴

We held in Nelson v. Lane County, 79 Or.App. 753, 764-66, 720 P.2d 1291 (1986), aff'd 304 Or. 97, 743 P.2d 692 (1987), that the proscription of punitive damages in ORS 30.270(2) is applicable to section 1983 claims brought under OTCA pursuant to former ORS 30.265(1). We concluded that neither section 1983 nor the cases construing it provide a "basis for concluding that Congress intended section 1983 to preempt the Oregon statutory direction that its courts not award punitive damages in actions against its employes." 79 Or.App. at 766, 720 P.2d 1291. That holding in Nelson is not controlling precedent, because the Supreme Court concluded on review that the question of whether punitive damages are awardable did not have to be reached in the case. 304 Or. at 111, 743 P.2d 692. However, we conclude now that our holding and our reasoning in Nelson were correct, and we adhere to them. Plaintiff may not recover punitive damages. Our reasoning in Nelson applies equally to plaintiff's quest for compensatory damages in excess of the limits established by ORS 30.270, and the trial court correctly ruled that he is not entitled to seek damages exceeding $100,000.

However, he may seek attorney fees. We said in Kay v. David Douglas Sch. Dist. No. 40, 79 Or.App. 384, 395, 719 P.2d 875 (1986), rev'd on other grounds, 303 Or. 574, 738 P.2d 1389 (1987): "The right to attorney fees under [42 USC] section 1988 ⁵ * * * is regarded by the United States Supreme Court as 'an integral part of the remedies necessary to obtain' compliance with section 1983 [citing Maine v. Thiboutot, 448 U.S. 1, 11, 100 S.Ct. 2502, 2508, 65 L.Ed.2d 555 (1980) ]." We then held that the plaintiffs in Kay were entitled to seek attorney fees. This case is different in that Kay was a declaratory judgment action in which a section 1983 claim was advanced and, although they should have, the parties and the courts did not treat the action as being subject to OTCA. That distinction does not call for a different result. Section 1988 expressly provides for attorney fee awards in section 1983 actions. Although there would be no basis for an award of fees under Oregon law, the express language of section 1988 is preemptive. The trial court erred by striking the claim for attorney fees.

Some comment about the dissents is necessary. They both begin with the premise that, because section 1983 claims against individual defendants could have been brought in the circuit courts before ORS 30.265(1) was amended to provide that section 1983 violations are "torts" that are subject to OTCA, such claims continued to be cognizable by Oregon courts independently of OTCA after that provision was enacted. Judge Young would hold that a plaintiff has the choice of proceeding either under OTCA or under the circuit court's "general jurisdiction" and, apparently, that OTCA's liability limits are applicable only to plaintiffs who choose the statutory route. He then reaches the novel, to say the best about it, conclusion that, although this plaintiff pleaded his claim under OTCA, some of his arguments to the trial court and to us suggest that he really meant to proceed independently of the statute, and we should therefore reverse and remand the trial court's dismissal of the OTCA claim which plaintiff did bring so that he can now consider whether to bring a new and different claim instead.

Judge Buttler's dissent is more direct. He would hold, plainly and simply, that section 1983 claims are federally created and that "plaintiff may maintain that action free of the limits imposed by OTCA." 88 Or.App. at 489, 746 P.2d at 723. Judge Buttler also concludes that federal law preempts the liability limitations of OTCA in connection with section 1983 claims.

We do not agree with the view of both dissents that the circuit court retained authority to entertain section 1983 claims independently of OTCA after ORS 30.265(1) was amended to include them expressly. Although Judge Buttler correctly states that OTCA is not a jurisdictional act, in the traditional sense, and that it does not create causes of action, it is an exercise of the legislature's undoubted authority to make certain actions subject to procedural and substantive requirements. Judge Buttler's dissent acknowledges as much with respect to plaintiff's claim against the city and the county, which he states "is subject, without qualification, to the damage limitations in [OTCA]." 88 Or.App. at 487, 746 P.2d at 722. It is equally clear that the legislature did purport to limit the liability of government employes as well as employers through OTCA and that it can and did make the provisions of OTCA applicable to section 1983 claims brought in state court. By its terms, OTCA was applicable to such claims when plaintiff instituted this action, and it provided as exclusive a vehicle for asserting section 1983 claims against governmental bodies and employes as it did for bringing any other tort claims against them.

The closer and decisive question in this case, as we have indicated, is not whether OTCA applies by its terms to plaintiff's section 1983 claim, but whether the state is precluded by federal law from applying OTCA according to its terms in section 1983 actions. Judge Buttler answers that question by postulating that "[e]ntitlement to [punitive and unlimited compensatory] damages is a part of the federal right" and must accordingly accompany the federal claim when it is made in a state court. 88 Or.App. at 489, 746 P.2d at 723.

Everyone agrees that OTCA places limits on damages which federal law does not impose in section 1983 claims tried in federal courts. The problem with Judge Buttler's reasoning is that it begins and ends with the proposition that federal and state law are different. However, that difference alone does not and cannot constitute preemption. There must also be an affirmative federal intent that its law prevail. As the United States Supreme Court stated in California Federal S. & L. Assn. v. Guerra, 479 U.S. ----, ----, 107 S.Ct. 683, 689, 93 L.Ed.2d 613, 623 (1987), "In determining whether a state statute is pre-empted by federal law and therefore invalid under the Supremacy Clause of the Constitution, our sole task is to ascertain the intent of Congress."

If the issue in this case were whether punitive damages are an appropriate remedy for violations of federal rights, we might agree with Judge Buttler. However, that is not the issue. The question before us is whether section 1983, as it has been construed, was intended by Congress to displace a state statute which limits the monetary remedies which the state's courts may afford. For the reasons stated in Nelson v. Lane County, supra, and restated here, there is no basis for the conclusion that section 1983 was intended to be preemptive when it was enacted or has been made so by later judicial interpretations.

Striking of attorney fees allegations reversed; judgment otherwise affirmed and remanded for proceedings not inconsistent with this opinion.

BUTTLER, Judge, concurring in part; dissenting in part.

Because I believe that plaintiff is entitled to maintain an action against the individual defendants under 42 U.S.C. § 1983 and that the state may not impose limits on the damages that he may seek against them that are inconsistent with the federal law, I dissent. I concur with the...