1- OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

JOHN JP DOE,

No. 2:14-cv-01428-HZ

Plaintiff,

OPINION & ORDER

v.

WESTERN AMERICA PROVINCE

OF THE CAPUCHIN FRANCISCAN

FRIARS, ROMAN CATHOLIC BISHOP

OF THE DIOCESE OF BAKER, INC., and 

OUR LADY OF ANGELS CATHOLIC

CHURCH OF HERMISTON, INC.,

Defendants.

Anthony Michael De Marco

LAW OFFICE OF ANTHONY M. DE MARCO

234 E. Colorado Blvd., 8th Floor

Pasadena, CA 91101

Kristian S. Roggendorf

ROGGENDORF LAW LLC

5200 Meadows Rd., Suite 150

Lake Oswego, OR 97035

Attorneys for Plaintiff
2- OPINION & ORDER

Anna M. Helton

Thomas V. Dulcich

SCHWABE WILLIAMSON & WYATT, PC

1211 SW Fifth Ave., Suite 1800

Portland, OR 97204

Paul E. Gaspari

WEINTRAUB TOBIN CHEDIAK COLEMAN 

GRODIN LAW CORPORATION

475 Sansome Street, Suite 1800

San Francisco, CA 94111

Attorneys for Defendant Western America

Province of the Capuchin Franciscan Friars

Ryan C. Kaiser

Gregory P. Lynch

MILLER NASH GRAHAM & DUNN LLP

1567 SW Chandler Ave., Suite 204

Bend, OR 97702

Attorneys for Defendants Roman Catholic

Bishop of the Diocese of Baker, Inc., and 

Our Lady of Angels Catholic Church of 

Hermiston, Inc.

HERNÁNDEZ, District Judge:

This is Defendants’ second motion to dismiss a portion of Plaintiff’s claims regarding 

alleged sexual abuse by a Catholic priest. After this Court’s September 17, 2015 Opinion & 

Order regarding Defendants’ first motions to dismiss or strike portions of Plaintiff’s complaint, 

Plaintiff submitted a Second Amended Complaint in which he brings claims of sexual battery of 

a child and intentional infliction of emotional distress against Defendants, under a theory of 

respondeat superior, as well as a negligence claim. Second Am. Compl. (SAC) ¶¶ 24-47, ECF 

69. Defendants move to dismiss Plaintiff’s third claim for relief: “Intentional Infliction of 

Emotional Distress/Respondeat Superior (Post-Abuse Conduct).” Because Plaintiff’s claim is 

time-barred, the Court grants Defendants’ motion.
3- OPINION & ORDER

BACKGROUND

Plaintiff John JP Doe1 alleges that, when he was nine and ten years old, he was sexually 

abused by Friar Luis Jaramillo, a Catholic priest. SAC ¶ 2. Fr. Jaramillo was a member of the 

Capuchin Franciscan Order, assigned to the Western America Province of the Capuchin 

Franciscan Friars (“the Order”). Id. at ¶ 15. Fr. Jaramillo was an associate pastor at Our Lady of 

Angels Catholic Church of Hermiston, Inc. (“Our Lady of Angels”), which Plaintiff and his 

family attended. Id. at ¶¶ 2, 3.

Plaintiff alleges that he disclosed some of the sexual abuse to his mother in the winter of 

1989. Id. at ¶ 4. According to Plaintiff, his mother immediately complained to the church. Id.

Within a day of the complaint, a supervisor from the Order called Plaintiff’s mother and 

interviewed Plaintiff. Id. Plaintiff disclosed to the priest supervisor some of the sexual abuse. Id.

Plaintiff further alleges that Fr. Jaramillo admitted some of the abuse to the supervisor. Id. at ¶ 5.

Plaintiff alleges that, soon after the call with the supervisor, the “Provincial”—or chief 

executive—of the Order met with Plaintiff’s mother. Id. at ¶ 5. The Provincial “actively 

discouraged Plaintiff’s mother from making any further complaints, including discouraging her 

from reporting Fr. Jaramillo to the police.” Id. Furthermore, the Provincial did not tell Plaintiff’s 

mother about Fr. Jaramillo’s admission. 

STANDARDS

I. Motion to Dismiss

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency 

of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “All allegations of material 

fact are taken as true and construed in the light most favorable to the nonmoving party.” Am. 

 1 “Plaintiff is proceeding under a pseudonym pursuant to the accepted practices of the federal courts of 

the United States, allowing those who have been victims of sexual assault and/or who fear reprisals from 

the particular litigation to commence cases under assumed names[.]” SAC ¶ 11. 
4- OPINION & ORDER

Family Ass'n, Inc. v. City & Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). However, the 

court need not accept conclusory allegations as truthful. See Warren v. Fox Family Worldwide, 

Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e are not required to accept as true conclusory 

allegations which are contradicted by documents referred to in the complaint, and we do not 

necessarily assume the truth of legal conclusions merely because they are cast in the form of 

factual allegations.”) (internal quotation marks, citation, and alterations omitted). Rather, to state 

a plausible claim for relief, the complaint “must contain sufficient allegations of underlying 

facts” to support its legal conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). 

A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the 

“grounds” of his “entitlement to relief” with nothing “more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555 (2007). “Factual allegations must be enough to raise a right to relief above the 

speculative level on the assumption that all the allegations in the complaint are true (even if 

doubtful in fact)[.]” Id. (citations and footnote omitted).

To survive a motion to dismiss, a complaint “must contain sufficient factual matter, 

accepted as true, to state a claim to relief that is plausible on its face[,]” meaning “when the 

plaintiff pleads factual content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 

(internal quotation marks omitted). A complaint must contain “well-pleaded facts” which 

“permit the court to infer more than the mere possibility of misconduct[.]” Id. at 679. 

///
5- OPINION & ORDER

DISCUSSION

Defendants2 move to dismiss Plaintiff’s claim for intentional infliction of emotional 

distress caused by “post-abuse conduct” because it is time-barred. Alternatively, Defendants 

argue that Plaintiff fails to allege the required elements of “intent” and “severe emotional 

distress.” Because the Court agrees that Plaintiff’s claim is time-barred, the Court declines to 

reach Defendants’ alternative argument. 

Plaintiff’s third claim for relief alleges that Defendants’ prevention of further disclosure 

of the alleged sexual abuse caused mental injury to Plaintiff. SAC ¶ 35. Plaintiff alleges that, 

after Plaintiff’s mother reported the sexual abuse to the church, one or more of the Defendants 

took the following actions: 

- Convinced Plaintiff’s mother not to report the abuse to the police; 

- Found a “sympathetic social worker” to whom they could report the abuse without facing 

further scrutiny or disclosing Plaintiff’s identity, in order to ensure there was no law 

enforcement investigation of the allegations;

- Promised to help Plaintiff and his mother but failed to do so; and

- Threatened Plaintiff’s mother “with both physical and spiritual harms to prevent the 

reporting of Jaramillo to authorities.”

Id. at ¶¶ 33-36. Plaintiff alleges that “as a direct result of Defendants’ actions, Plaintiff was 

isolated, he minimized his abuse psychologically, refused to disclose or suppressed his abuse 

later in counseling, and thereby suffered additional emotional damages[.]” Id. at ¶ 35.

The parties agree that Plaintiff’s claim is time-barred unless the conduct alleged falls 

within ORS 12.117, which provides for an extended statute of limitations for actions “based on 

 2 Defendant Order filed a motion to dismiss Plaintiff’s third claim on October 13, 2015. Order Mot. 

Dismiss, ECF 72. On November 16, 2015, Defendants Our Lady of Angeles and the Diocese moved to 

join the Order’s motion. Mot. to Join, ECF 78. The Court granted to motion to join on November 30, 

2015. Order, Nov. 30, 2015, ECF 81.
6- OPINION & ORDER

conduct that constitutes child abuse or conduct knowingly allowing, permitting, or encouraging 

child abuse[.]” ORS 12.117(1); see also Bonneau v. Centennial Sch. Dist. No. 28J, 666 F.3d 577, 

578-79 (9th Cir. 2012) (“In the wake of concerns about delayed reporting of child abuse, Oregon, 

like a number of states, adopted a special statute of limitations for abuse victims.). “Child abuse” 

is defined, in part, as: 

(a) Intentional conduct by an adult that results in:

(A) Any physical injury to a child; or

(B) Any mental injury to a child which results in observable and substantial 

impairment of the child's mental or psychological ability to function caused by

cruelty to the child, with due regard to the culture of the child[.]

ORS 12.117(2).

In Schmidt v. Mt. Angel Abbey, 347 Or. 389, 393, 223 P.3d 399, 402 (2009), the Oregon 

Supreme Court analyzed the meaning of “mental injury. . . caused by cruelty to the child,” as 

defined in ORS 12.117(2)(a)(B). In Schmidt, the court found that forcing a teenage seminary 

student to watch a priest masturbate under his cassock resulted in “mental injury caused by 

cruelty.” The court held that:

[T]he term “cruelty to [a] child,” as used in ORS 12.117(2)(a)(B), most reasonably is 

interpreted to include (1) acts that are performed with the specific intent of injuring or 

harming the child and that are capable of producing those results and (2) acts that, by 

their very nature, demonstrate a willful and wanton disregard for the child's welfare, such 

that one can infer a willingness to have the child injured.

Id. at 399. The Schmidt court noted the duration of the encounter between the student and the 

priest (30-45 minutes), the nature of the priest’s conduct and its potential for inflicting severe 

emotional injury, and the nature of the priest and the student’s relationship and power dynamic. 

Id. at 400. The court concluded that “a reasonable trier of fact could find that the conduct 

described above demonstrates a wanton disregard for plaintiff's welfare and a willingness to have 

plaintiff suffer psychological harm as a result of [the priest’s] acts. Id.
7- OPINION & ORDER

The parties do not cite, and this Court does not find, subsequent cases applying Schmidt 

to identify other conduct that may constitute “cruelty to a child” in the context of ORS 12.117.

Therefore, this Court must determine whether any of the conduct alleged in this claim rises to the 

level of cruel conduct found to be sufficient in Schmidt.

Plaintiff argues that a reasonable jury could find that “forbidding a mother who did not 

speak English from going to police to discuss her son’s molestation at the hands of a revered 

Catholic priest” and “manipulating a Latino child into never telling police about his abuse” 

amounted to actions that “‘by their very nature, demonstrate a willful and wanton disregard for 

the child’s welfare.’” Pl.’s Resp. 4, 5 (quoting Schmidt, 347 Or. 389, 399.). 

However, unlike Schmidt, in this case all of the conduct alleged to have caused mental 

injury to Plaintiff occurred outside of Plaintiff’s physical presence and was directed towards a 

third-party, Plaintiff’s mother.

3 Therefore, even if Defendants did threaten Plaintiff’s mother, 

Plaintiff did not observe this conduct and would only have been aware of it to the extent his 

mother told him about her interactions with Defendants. Based on Plaintiff’s response to 

Defendant Order’s motion to dismiss, it appears that Plaintiff, in fact, was unaware of the 

conversations between Defendants and his mother. See Pl.’s Resp. 8 (arguing that the Provincial 

“secretly convinced” Plaintiff’s mother to betray the best interests of her son and she did so

“without the knowledge of her son, and maintained that secret for decades.”). 

This Court fails to see how these private, albeit troubling, conversations between 

Defendants and Plaintiff’s mother amount to actions that “by their very nature, demonstrate a 

willful and wanton disregard for the child’s welfare,” such that they caused mental injury to 

 3 The only allegation in Plaintiff’s third claim that may have occurred in his presence is that “Defendants 

promised Plaintiff and his mother that they would help him.” SAC ¶ 34. However, Defendants argue in 

their motion that none of the alleged conduct occurred in Plaintiff’s presence and Plaintiff does not rebut 

this argument in his Response. Furthermore, even if it did occur in Plaintiff’s presence, clearly an offer to 

help would not constitute “cruelty.” 
8- OPINION & ORDER

Plaintiff. See Schmidt, 347 Or. 389, 399. As compared to the direct conduct in Schmidt of a 

priest masturbating in front of a student, the conduct alleged here, which was directed entirely at 

Plaintiff’s mother, is too attenuated from Plaintiff’s alleged mental injury for the Court to find 

that it constitutes “cruelty to the child” as defined in ORS 12.117.

CONCLUSION

Defendants’ motion to dismiss [72] Plaintiff’s third claim for relief is granted. Plaintiff is 

directed to submit an amended complaint consistent with this Opinion & Order within seven 

days of the date below. Due to the age of this case, Defendants are directed to respond to 

Plaintiff’s amended complaint within seven days of service of the amended pleading. If and 

when an Answer is filed, the parties are directed to contact the Courtroom Deputy within five

days of that filing in order to set a scheduling conference.

IT IS SO ORDERED.

Dated this __________ day of ____________________, 2015.

 

________________________________________________

MARCO A. HERNÁNDEZ

United States District Judge

13 December