IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

HENRY D. LIU,

Plaintiff,

v.

PORTLAND STATE UNIVERSITY, et

al.,

Defendants.

3:14-CV-00908-BR

 

OPINION AND ORDER 

MICAH D. FARGEY

Fargey Law PC

5 Centerpointe Drive, 4th Floor

Lake Oswego, OR 97035

(503) 946-9426 

Attorneys for Plaintiff

P.K. RUNKLES-PEARSON

SHARAE M. WHEELER

Miller Nash LLP

111 S.W. Fifth Avenue

Suite 3400

Portland, OR 97204

(503) 205-2314

Attorneys for Defendants Portland State University,

Jacqueline Balzer, Domanic Thomas, and Joseph Schilling

1 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 1 of 26
TRACY REEVE

Portland City Attorney

J. SCOTT MOEDE

WADE H. TUCKER

Deputy City Attorneys

1221 S.W. Fourth Avenue, Suite 430

Portland, OR 97204

(503) 823-4047

Attorneys for Defendants City of Portland and James

Crooker

KAREN O'KASEY

JASON R. POSS

Hart Wagner LLP

1000 S.W. Broadway, Twentieth Floor

Portland, Oregon 97205

(503) 222-4499 

Attorneys for Defendant Oregon Health & Sciences

University

DUNCAN K. FOBES

Patterson Buchanan Fobes & Leitch

2112 Third Avenue, Suite 500

Seattle, WA 98121

(206) 462-6700 

Attorneys for Defendant Cascadia Behavioral Healthcare

BROWN, Judge.

This matter comes before the Court on the Motion (#169) for

Summary Judgment of Defendant Oregon Health and Sciences

University (OHSU). For the reasons that follow, the Court GRANTS

OHSU’s Motion and DISMISSES with prejudice Plaintiff’s claims

against OHSU.

2 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 2 of 26
BACKGROUND

The following facts are taken from the Agreed Facts in the

parties’ Pretrial Order and the parties’ materials related to

OHSU’s Motion for Summary Judgment and are undisputed unless

otherwise noted.

Plaintiff Henry D. Liu was enrolled as a graduate student in

the Conflict Resolution Program at Portland State University

(PSU) from the beginning of the fall term in 2011 through 

June 21, 2012.

On April 20, 2012, another graduate student in the Conflict

Resolution Program told PSU Professor Rachel Cunliffe that

Plaintiff had made statements about the faculty that the student

found threatening. At some point the student also reported her

conversation with Plaintiff to PSU Campus Public Safety (CPS)

Officer Sergeant Joseph Schilling. The student specifically

advised Sergeant Schilling that she was a classmate of Plaintiff

and during a break from class on April 12, 2012, Plaintiff told

the student that (1) Plaintiff “had issues” with the Conflict

Resolution Program and its Director, Professor Robert Gould,

because of an unsatisfactory grade that he had received after he

caused another student to cry in class; (2) he “had issues”

because a fellow student had allegedly used the word "chink"

while speaking with him; and (3) he made statements that made the

student believe he was angry because he felt faculty members were

3 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 3 of 26
treating him differently due to his ethnicity. The student also

advised Sergeant Schilling that Plaintiff told her after class on

April 12, 2012, that he had a back or spinal injury and was

taking a large amount of pain medication that often interfered

with his thinking and daily activity. The student suggested

alternatives such as yoga and meditation to relieve stress, but

Plaintiff stated: "[T]his situation is really pushing me over

the edge and we know what happens when students are pushed over

the edge." The student emailed Plaintiff shortly after April 12,

2012, and Plaintiff responded he was very stressed, upset, and

unable to sleep and was “becoming aware of repressed emotions of

anger.” The student told Sergeant Schilling that the student

talked to Plaintiff after class on April 19, 2012, about

Professor Gould, and Plaintiff became agitated, raised his voice,

used profanity, and stated: “I’m about ready to stick a .45 in

his ass.” Plaintiff then lowered his voice and apologized, but

he continued to express frustration and stated he was unable to

sleep. He also repeated he was taking a lot of pain medication,

but it was not helping his pain level. Plaintiff added: 

“Professor Stan Sitnick giving him a [bad] grade did not help 

. . ., ‘he could get shot.’” Plaintiff told the student that he

was noticing he had “a lot of hatred.” The student became

alarmed, changed the subject, and asked Plaintiff if he had

weekend plans. Plaintiff responded he planned to go to “target

4 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 4 of 26
practice on Sunday.” Sergeant Schilling believed the student’s

statements were credible and felt concerned.

Sergeant Schilling ascertained Plaintiff was living off of

the PSU campus. Accordingly, Sergeant Schilling contacted the

Portland Police Bureau and shared with Portland Police Officer

James Crooker the student’s statement about Plaintiff.

Officer Crooker contacted the Project Respond team from

Defendant Cascadia Behavorial Health Care and asked them to

assist in a visit to Plaintiff’s residence for a mental-health

evaluation and possible Director’s Hold pursuant to former Oregon

Revised Statute § 426.233.

On April 20, 2012, Officer Crooker, Portland Police Officer

Jason Walters, Sergeant Schilling, CPS Officer David Baker, and

Cascadia Project Respond personnel Rachel Phariss and Sarah

Schellhorn went to Plaintiff’s residence to address what they

considered to be Plaintiff’s possible threat to the community. 

Phariss and Schellhorn waited around the corner from Plaintiff’s

apartment while Officers knocked on Plaintiff’s door.

Officer Crooker testifies in his Declaration that Plaintiff

“appeared dazed and confused and was unable to communicate

clearly” when he answered the door. Decl. of James Crooker at 

¶ 8. Plaintiff permitted the officers to enter his apartment. 

Officer Crooker asked Plaintiff if there were any firearms in his

apartment, and Plaintiff stated he did not have any firearms. 

5 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 5 of 26
When the officers entered Plaintiff’s apartment, however, they

observed pamphlets for firearms on a table as well as an empty

rifle box. At that point Officer Crooker asked Plaintiff again

if there were any firearms in his apartment. Officer Crooker

testifies in his Declaration that Plaintiff “began to back away

from [Officer Crooker] and the other officers. In response

[Officer Crooker] took [Plaintiff’s] wrist and handcuffed

Plaintiff ‘for his own safety’ and read Plaintiff his Miranda

rights. After some discussion Plaintiff told the officers that

he had firearms and agreed to tell them where they could be found

in his apartment. Officers eventually found unloaded .22 and .45

caliber handguns, an unloaded M4 carbine assault rifle, an

unloaded 9mm handgun, and ‘thousands of rounds of ammunition.’” 

Crooker Decl. at ¶ 10. Officers also found “various knifes,

survival tools (including an axe), a canteen, water bottles,

dressings for wounds, rope, extra magazine clips, and

flashlights.” Id. Officer Crooker testified in his Declaration

that in his experience “[t]he manner in which all these items 

were laid out was consistent with that of a moment's-notice 

preparedness for immediate accessibility to grab pre-packed grab

bags in the event that combat were to occur suddenly.” Id. 

Officers also found prescriptions for Percocet and Tramadol in

Plaintiff’s name, two bottles of Oxycodone prescribed to

Plaintiff’s father, and several empty bottles of alcohol. 

6 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 6 of 26
Officer Crooker spoke with Plaintiff, and, “after a lengthy

conversation,” Plaintiff admitted he had made “bone-headed”

comments “including something about using a .45 caliber handgun

to kill a professor.” Crooker Decl. at ¶ 11.

Phariss and Schellhorn entered Plaintiff’s apartment after

Officer Crooker handcuffed Plaintiff. Phariss and Schellhorn

interviewed Plaintiff for 30 or 40 minutes. Phariss testifies in

her Declaration that Plaintiff agreed the police could remove the

firearms from his apartment. Plaintiff, however, “appeared to be

confused and . . . kept sending the police to the wrong places to

locate the weapons he had throughout his apartment.” Decl. of

Rachel Phariss at ¶ 6. Phariss states 

[Plaintiff] said he could not remember making the

threatening comments he made to [the student], but

he admitted that he may have made such comments. 

[Plaintiff's] conversation was vague and he kept

going off on tangents. His thought process was

circular. He denied hearing voices or having

hallucinations. I could not tell if he was

disoriented, but he did appear to be confused. He

denied any mental health history, and he denied

having any intent to harm himself. He seemed to

marginalize the allegation that he had made

threats about shooting one of his professors. He

also denied having any intention to shoot anyone

at PSU.

I observed the following things while I was in

[Plaintiff's] apartment: (1) the receipt from his

recently purchased AR 15 indicated that he had

bought it after his problems with PSU began; 

(2) [Plaintiff] had ammunition and tactical gear,

including duffle bags with dehydrated food,

knives, and "quick stop", which will stop bleeding

if a person is shot by a bullet; (3) there were

empty beer, liquor, and wine bottles strewn about

7 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 7 of 26
the apartment; and (4) there were Percocet and

Tramadol pills on his coffee table as well as two

bottles of Oxycodone with [Plaintiff’s] father's

name on them. 

Phariss Decl. at ¶¶ 7-8. Phariss testifies “[d]iagnosing

[Plaintiff] was difficult because it was unclear whether his

behavior was due to alcohol, drugs, or mental illness.” Phariss

Decl. at ¶ 9. Phariss, therefore, deferred diagnosis, but she

decided Plaintiff “would benefit from a full psychological

evaluation.” Phariss and Schellforn consulted with Meg Kaveny,

Cascadia Project Respond Supervisor, and Kaveny consulted with

Jay Auslander, Cascadia’s Director of Emergency Services. 

Ultimately Phariss, Kaveny, and Auslander concluded a Director’s

Hold on Plaintiff was justified because there was probable cause

to believe Plaintiff was 

dangerous to others and need of immediate

psychological evaluation based on 

(1) [Plaintiff’s] speech latency, which did not

appear to be a language issue; (2) [Plaintiff’s]

apparent confusion; (3) [Plaintiff’s] vague

explanations of his behavior; (4) [Plaintiff]

minimizing the allegations against him and not

appreciating the seriousness of making threats;

(5) the information regarding his statements

threatening to shoot one of his professors; and

(6) the large amount of weapons, ammunition, and

tactical gear found in his apartment. 

Phariss Decl. at ¶ 9. Phariss completed a Report of Peace

Officer Custody of an Allegedly Mentally Ill Person as Directed

by a Community Mental Health Director and issued a Director’s

Hold on Plaintiff for the following reasons:

8 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 8 of 26
Concerns about targeted specific threats, large

number of firearms, ammo & tactical gear, speech

latencies, confusion & vague explanation of

behavior & previous statements that minimize

concerns. Extreme risk of potential harm to

others as evidenced by the above risk factors.

Phariss Decl., Ex. 1 at 1. The Report directed Officer Crooker

to take Plaintiff into custody and to transport Plaintiff to OHSU

for evaluation. Officer Crooker transported Plaintiff to OHSU in

his patrol car.

At OHSU the in-patient nurse Cassondra Richard noted OHSU’s

understanding that Plaintiff had been brought there pursuant to a

Director’s Hold because, according to a fellow student, Plaintiff

had threatened professors and the Dean of PSU with “homicidal

violence,” and police officers had found multiple firearms,

knives, tactical equipment, quikclot dressings, “thousands of

rounds of ammunition,” multiple empty alcohol bottles, and

various prescription drugs in Plaintiff’s apartment. Decl. of

Micha Fargey, Ex. 2 at 8. Nurse Richard also noted Plaintiff

“reportedly purchased [an] assault rifle in February after

threatening a professor for awarding [Plaintiff] with an

unsatisfactory grade.” Id. On April 20, 2012, Plaintiff

underwent a number of intake evaluations including a Social Work

Mental Health Assessment conducted by social worker Erin Copley. 

Copley noted Plaintiff denied homicidal feelings, reported

feeling remorseful for making the statements, and described his

statements as “offhand comment[s].” Id. Copley, however, noted

9 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 9 of 26
Plaintiff’s thought processes were “[d]isorganized, pt had

trouble remembering questions, answering questions sequentially,

etc.” Fargey Decl., Ex. 2 at 9. Copley described Plaintiff’s

memory as “[u]nreliable, pt was not forthcoming with either

officers or SW, reports gaps in his memory.” Id. Copley noted

Plaintiff “presents as very intelligent and manipulative. He

denied having any intent to harm anyone, but PPD report that they

were concerned about the pt’s lack of honesty in disclosing

locations of guns, etc.” Fargey Decl., Ex. 2 at 10. 

On April 20, 2012, Plaintiff was evaluated by Drs. Robert

Henrickson, M.D., and Joshua Russell, M.D., who noted Plaintiff

had homicidal ideation and “means to accomplish plan.” Fargey

Decl., Ex. 2 at 2. Drs. Henrickson and Russell relied on

Copley’s “excellent note” regarding Plaintiff’s “presentation” on

arrival at OHSU. Drs. Henrickson and Russell noted Plaintiff

denied his threats were “sincere,” however, they “seem to have

been able to be substantiated and [Plaintiff] would have clear

reason to be less than forthright when faced with being placed on

a psychiatric hold.” Id. at 6.

Plaintiff was also seen by Andrea Moore, M.D., on April 20,

2012. Dr. Moore reported Plaintiff reported “the whole situation

is a misunderstanding.” Fargey Decl., Ex. 2 at 20. Dr. Moore

reported Plaintiff’s thought processes were “somewhat slow,” and

his “associations [were] logical/goal directed, at times

10 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 10 of 26
evasive.” Id. at 23. Dr. Moore noted Plaintiff’s insight was

limited and his judgment was poor. Id. Dr. Moore noted

Plaintiff presented “differently in the ED where he was described

as disorganized, pressured and psychotic, while on the unit here

he has been calm and linear.” Id. at 25. Dr. Moore noted

Plaintiff is “clearly very intelligent and it appears he may have

been purposefully avoiding topics or manipulating our interview

at times.” Id. 

On April 20, 2012, Nurse Miel Nelson noted Plaintiff was

“calm and cooperative” and denied homicidal ideation. Miel

noted, however, that Plaintiff “endorse[d] having feelings of

extreme anger towards his professor for what he says is an unjust

grade he received.” Id. at 14. Miel noted Plaintiff had a “flat

affect and intermittent eye contact” when discussing his threats

and anger. Id. 

Plaintiff remained at OHSU from April 20, 2012, through

April 25, 2012, during which time he was evaluated by numerous

medical professionals including Drs. Anne Gross, Bridgid Crowley,

Joshua Russell, and Robert Henrickson.

On April 25, 2012, Plaintiff was discharged from OHSU. 

Dr. Crowley noted in Plaintiff’s discharge summary that Plaintiff

did not display symptoms of psychosis or depression, and he “did

not endorse” an intent to hurt himself or others. Dr. Crowley

noted Plaintiff had reported throughout his hospitalization that

11 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 11 of 26
he felt “misunderstood regarding statements he had made," and

felt anxious and did not sleep well during his stay. Fargey

Decl., Ex. 2 at 17. Dr. Crowley noted Plaintiff would not have

any access to weapons after he was discharged because his

firearms had been removed from his apartment. Dr. Crowley

described Plaintiff’s judgment and insight as “improving . . .;

at time of discharge he reported feeling ‘regretful’ about the

situation although he maintains that his statements were

misunderstood.” Id. at 18. Plaintiff was discharged with a

prescription for Tramadol “to alleviate his chronic pain [and] to

decrease pain as a possible contribution to his ongoing stress

and to decrease risk of agitation.” Id. at 18.

In June 2012 Plaintiff was expelled from PSU.

On May 2, 2014, Plaintiff filed pro se a first amended

complaint in Clatsop County Circuit Court against 40 Defendants

alleging seventeen claims for relief related to Plaintiff’s

interactions with Portland police officers, the seizure of

Plaintiff’s guns, Plaintiff’s commitment to the OHSU psychiatric

ward, Plaintiff’s expulsion from PSU, and articles about

Plaintiff’s expulsion published by The Vanguard, the PSU

newspaper, all occurring between April 2012 and June 2012.

On June 5, 2014, Defendants removed the matter to this Court

on the basis of federal-question jurisdiction.

At some point before June 30, 2014, Plaintiff obtained

12 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 12 of 26
counsel.

On August 15, 2014, Plaintiff filed a Second Amended

Complaint against 29 Defendants alleging nine claims for relief

related to Plaintiff’s interaction with various Portland police

officers, the seizure of Plaintiff’s guns, Plaintiff’s commitment

to the OHSU psychiatric ward, and Plaintiff’s expulsion from PSU,

all occurring between April 2012 and June 2012.

On August 28, 2015, PSU Defendants filed a Motion for

Summary Judgment as to all of Plaintiff’s claims against them.

On November 23, 2015, Plaintiff filed a Motion for Extension

of Summary Judgment-Related Court-Imposed Deadlines, which PSU

Defendants opposed.

On December 4, 2015, the Court held a status conference. 

Based on the parties’ representations at that conference, the

Court ordered the parties to meet in person and to confer

regarding the dismissal of certain parties and claims from this

proceeding. The Court struck all pending Motions and directed

the parties to file a preliminary Pretrial Order setting out the

parties, claims, and defenses that remained in this matter after

the parties’ conferral.

On December 18, 2015, the parties filed a Joint Proposed

Pretrial Order in which they dismissed numerous claims and

parties and advised the Court that this matter would proceed only

as to Plaintiff’s claims (1) against the City of Portland and

13 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 13 of 26
Officer Crooker pursuant to 42 U.S.C. § 1983 for unlawful seizure

in violation of Plaintiff’s rights under the Fourth Amendment to

the United States Constitution; (2) against OHSU pursuant to 42

U.S.C. § 1983 for unlawful confinement in violation of the Fourth

Amendment to the United States Constitution; (3) against PSU,

Defendant Jacqueline Balzer, and Defendant Domanic Thomas

pursuant to 42 U.S.C. § 1983 for violation of Plaintiff’s right

to due process under the Fourteenth Amendment to the United

States Constitution; (4) against the City of Portland and Officer

Crooker for false arrest and/or confinement in violation of state

law; (5) against Cascadia Behavioral Healthcare for unlawful

confinement in violation of state law; (6) against PSU,

Schilling, and Cascadia for negligence “based on their respective

roles in the arrest of Plaintiff”; and (7) against PSU, Balzer,

and Thomas for negligence in “failing to exercise due care in

connection with the process and proceedings that led to

Plaintiff’s expulsion from PSU.”

On December 23, 2015, PSU Defendants filed a Renewed Motion

for Summary Judgment.

On January 15, 2016, Cascadia filed a Renewed Motion for

Summary Judgment. 

On January 15, 2016, OHSU filed a Motion for Summary

Judgment. The Court took OHSU’s Motion under advisement on 

March 1, 2016.

14 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 14 of 26
On March 28, 2016, the Court issued an Opinion and Order in

which it granted PSU Defendants’ Renewed Motion for Summary

Judgment and dismissed with prejudice Plaintiff’s claims against

PSU Defendants.

On May 12, 2016, the Court granted Cascadia’s Renewed Motion

for Summary Judgment and dismissed with prejudice Plaintiff’s

claims against Cascadia.

STANDARDS

Summary judgment is appropriate when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011). See also Fed. R.

Civ. P. 56(a). The moving party must show the absence of a

dispute as to a material fact. Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005). In response to a properly

supported motion for summary judgment, the nonmoving party must

go beyond the pleadings and show there is a genuine dispute as to

a material fact for trial. Id. "This burden is not a light one

. . . . The non-moving party must do more than show there is

some 'metaphysical doubt' as to the material facts at issue." In

re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010)

(citation omitted). 

A dispute as to a material fact is genuine "if the evidence

15 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 15 of 26
is such that a reasonable jury could return a verdict for the

nonmoving party." Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). The court must draw all

reasonable inferences in favor of the nonmoving party. Sluimer

v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010). "Summary

judgment cannot be granted where contrary inferences may be drawn

from the evidence as to material issues." Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citation omitted). A “mere

disagreement or bald assertion” that a genuine dispute as to a

material fact exists “will not preclude the grant of summary

judgment.” Deering v. Lassen Cmty. Coll. Dist., No. 2:07-CV1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20, 2011)

(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.

1989)). When the nonmoving party's claims are factually

implausible, that party must "come forward with more persuasive

evidence than otherwise would be necessary." LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citation omitted). 

The substantive law governing a claim or a defense

determines whether a fact is material. Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006). If the

resolution of a factual dispute would not affect the outcome of

the claim, the court may grant summary judgment. Id.

16 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 16 of 26
DISCUSSION

As noted, Plaintiff’s remaining claim against OHSU is for

unlawful confinement in violation of the Fourth Amendment to the

United States Constitution brought pursuant to 42 U.S.C. § 1983. 

OHSU moves to dismiss Plaintiff’s remaining claim against it on

the grounds that Plaintiff’s claim is untimely or, in the

alternative, Plaintiff’s claim against OHSU is without merit.

I. Plaintiff’s claim is timely

As noted, Plaintiff was discharged from OHSU on April 25,

2012. Plaintiff’s claim against OHSU relates solely to his time

at OHSU. Accordingly, Plaintiff’s claim against OHSU accrued no

later than April 25, 2012.

Plaintiff filed his initial pro se complaint in Clatsop

County on April 18, 2014. In his initial complaint Plaintiff

alleged claims against OHSU for intentional infliction of

emotional distress (IIED), negligence, negligence per se,

unlawful imprisonment under state law, and violation of Oregon

Revised Statute § 426. On May 2, 2014, Plaintiff filed pro se an

amended complaint in Clatsop County in which he asserted claims

against OHSU for IIED, negligence, negligence per se, and

unlawful imprisonment under state law. On December 15, 2014,

Plaintiff filed a Second Amended Complaint in this Court while

represented by counsel in which he asserted for the first time a 

§ 1983 claim against OHSU for unlawful arrest in violation of the

17 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 17 of 26
Fourth Amendment. Finally, on December 18, 2015, Plaintiff

asserted for the first time in the Pretrial Order his current 

§ 1983 claim against OHSU for unlawful confinement in violation

of the Fourth Amendment.

OHSU alleges Plaintiff’s § 1983 claim for unlawful

confinement is untimely because it was not filed within two years

of the date of Plaintiff’s release from OHSU and Plaintiff’s 

§ 1983 claim does not relate back to his claim against OHSU for

unlawful imprisonment, which was set out in his initial statecourt complaint.

A. § 1983 Statute of Limitations 

The Ninth Circuit has held courts must apply the forum

state’s statute of limitations for personal-injury claims to any

claims brought under § 1983. See, e.g., Butler v. Nat’l Comm.

Renaissance of Ca., 766 F.3d 1191, 1198 (9th Cir. 2014)(“Section

1983 does not contain its own statute of limitations. Without a

federal limitations period, the federal courts apply the forum

state's statute of limitations for personal injury actions.”). 

Under Oregon law personal-injury claims must be commenced within

two years of the injury. See Or. Rev. Stat. § 12.110(1). 

Plaintiff concedes he did not file his § 1983 for

unlawful confinement in violation of the Fourth Amendment against

OHSU within two years from the date his confinement at OHSU

ended, and, therefore, Plaintiff did not bring his claim within

18 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 18 of 26
two years of his injury. Plaintiff, however, asserts his § 1983

claim relates back to his state-law unlawful imprisonment claim

asserted in his initial complaint, which was filed within the

applicable limitations period. 

B. Relation Back to Plaintiff’s Original Complaint

The Ninth Circuit has held “[s]tate law, rather than

federal law, governs whether amendments relate back to the

original complaint in civil rights actions pursuant to 42 U.S.C.

§ 1983.” M.G. ex rel. Goodwin v. Cnty. of Contra Costa, No.

11–4853, 2013 WL 706801, at *3 (N.D. Cal. Feb. 26, 2013)(quoting

Merritt v. Cnty. of Los Angeles, 875 F.2d 765, 768 (9th Cir.

1989)). Oregon Rule of Civil Procedure 23(c) provides in

pertinent part:

Whenever the claim . . . asserted in the amended

pleading arose out of the conduct, transaction, or

occurrence set forth or attempted to be set forth

in the original pleading, the amendment relates

back to the date of the original pleading.

As noted, Plaintiff asserts his § 1983 claim relates

back to his state-law unlawful imprisonment claim asserted in his

initial complaint, and, therefore, his § 1983 claim is timely. 

Specifically, Plaintiff asserts his § 1983 claim for unlawful

confinement arises out of the same conduct or occurrence as that

set out in his initial state-law claim. 

OHSU, in turn, asserts Plaintiff’s § 1983 claim for

unlawful confinement does not relate back to his state-law

19 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 19 of 26
unlawful imprisonment claim because Plaintiff’s § 1983 claim

cannot be proven by the same kind of evidence as his original

claim. Specifically, OHSU notes government bodies such as OHSU

are not vicariously liable for acts of their employees. See

Monell v. Dep’t of So. Svcs. of City of New York, 436 U.S. 658,

691 (1978). Pursuant to Monell, OHSU can only be held liable

under § 1983 if Plaintiff can establish a policy, custom, or

practice of OHSU deprived Plaintiff of his constitutional rights. 

Plaintiff’s initial and amended complaints in state court did not

allege any policy, custom, or practice that OHSU violated nor is

there any indication in those complaints that Plaintiff intended

to assert his unlawful imprisonment claim arose out of a policy,

practice, or custom of OHSU. In addition, because Plaintiff did

not allege a § 1983 claim in his initial complaint against OHSU,

OHSU did not have any reason to believe that Plaintiff intended

to challenge its policies, practices, or customs rather than the

actions of individual doctors. According to OHSU, therefore,

Plaintiff’s initial complaint failed to notify OHSU that its

policies, customs, or practices resulted in tortious conduct,

and, therefore, Plaintiff’s current § 1983 claim against OHSU

does not relate back to Plaintiff’s initial complaint. 

Plaintiff’s state-law unlawful imprisonment claim

asserted against OHSU in his initial complaint arose out of

Plaintiff’s hospitalization at OHSU. Plaintiff’s § 1983 claim

20 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 20 of 26
against OHSU for unlawful confinement arises out of the same

hospitalization. Nevertheless, those two claims do not arise out

of the same conduct or occurrence because in his initial

complaint Plaintiff complained about the actions of the

individual OHSU doctors who involuntarily committed Plaintiff. 

In his § 1983 unlawful confinement claim Plaintiff complains

about a policy or custom of OHSU that resulted in his

confinement. The Court notes, however, Plaintiff does not

identify with any degree of specificity what alleged policy or

custom of OHSU is at issue in his Second Amended Complaint, in

the Pretrial Order, or in his Response to OHSU’s Motion for

Summary Judgment. Thus, OHSU was not on notice that Plaintiff

was asserting an unidentified policy, custom, or practice of OHSU

was at issue in his unlawful confinement claim until Plaintiff

filed his Second Amended Complaint in December 2014, which was

more than two years after his confinement ended. 

The Court concludes on this record that Plaintiff’s 

§ 1983 claim against OHSU does not relate back to his unlawful

imprisonment claim, and, therefore, Plaintiff’s claim against

OHSU is untimely.

II. Plaintiff has not established a § 1983 claim for unlawful

confinement.

Even if Plaintiff’s § 1983 unlawful confinement claim

relates back to his initial complaint and is, therefore, timely,

the Court concludes Plaintiff has not established a genuine

21 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 21 of 26
dispute of material fact exists as to the lawfulness of

Plaintiff’s confinement at OHSU.

As noted, liability of a government body will lie only when

"action pursuant to official municipal policy of some nature

caused a constitutional” violation and not on the basis of

respondeat superior. Monell, 436 U.S. at 691. Such liability

may attach only when an employee acted pursuant to an expresslyadopted official policy or pursuant to a longstanding practice or

custom. See, e.g., Lytle v. Carl, 382 F.3d 978, 981 (9th Cir.

2004); Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir. 2003). "The

'official policy' requirement was intended to distinguish acts of

the municipality from acts of employees of the municipality, and

thereby make clear that municipal liability is limited to action

for which the municipality is actually responsible." Pembaur v.

City of Cincinnati, 475 U.S. 469, 479 (1986)(emphasis in

original). Municipal "[l]iability may attach . . . only where

the municipality itself causes the constitutional violation

through 'execution of a government's policy or custom, whether

made by its lawmakers or by those whose edicts or acts may fairly

be said to represent official policy.'" Ulrich v. City and Cnty.

of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002)(quoting

Monell, 436 U.S. at 694). 

The circumstances in which Monell liability may be found

under § 1983 are "carefully circumscribed." Fuller v. City of

22 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 22 of 26
Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). See also Westwood

v. City of Hermiston, 787 F. Supp. 2d 1174, 1207 (D. Or. 2011)

(same). The Ninth Circuit has noted:

Showing a "longstanding practice or custom which

constitutes the 'standard operating procedure’ of

the local government entity” is one way to

establish municipal liability. Jett v. Dallas

Indep. Sch. Dist., 491 U.S. 701, 737, 109 S. Ct.

2702, 105 L. Ed.2d 598 (1989); Hopper v. City of

Pasco, 241 F.3d 1067, 1083 (9th Cir. 2001). . . . 

There are, however, two other routes available for

a plaintiff to establish the liability of

municipal defendants: (1) by showing that the

decision-making official was, as a matter of state

law, a final policymaking authority “whose edicts

or acts may fairly be said to represent official

policy” in the area of decision, Monell, 436 U.S.

at 694, 98 S. Ct. 2018; City of St. Louis v.

Praprotnik, 485 U.S. 112, 124, 108 S. Ct. 915, 99

L.Ed.2d 107 (1988)(plurality); Pembaur, 475 U.S.

at 480-81, 106 S. Ct. 1292; or (2) by showing that

an official with final policymaking authority

either delegated that authority to, or ratified

the decision of, a subordinate. 

Ulrich, 308 F.3d at 984-85. See also Booke v. County of Fresno,

98 F. Supp. 3d 1103, 1123 (E.D. Cal. 2015)(“A municipality,

however, cannot be held liable solely because it employs a

tortfeasor — or, in other words, a municipality cannot be held

liable under [42 U.S.C. § 1983] under a respondeat superior

theory. Liability only attaches where the municipality itself

causes the constitutional violation through execution of a

government's policy or custom, whether made by its lawmakers or

by those whose edicts or acts may fairly be said to represent

official policy.”)(quotations omitted).

23 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 23 of 26
As noted, Plaintiff fails to identify in his Second Amended

Complaint a policy, custom, or practice of OHSU that allegedly

caused him to be unlawfully confined by OHSU. The only

allegation Plaintiff makes in his Second Amended Complaint

related to any policy is contained in the section titled

“Damages”:

The official policies, customs, and practices of

the City, PSU, and OHSU caused the deprivation of

Plaintiff’s rights as alleged in this complaint. 

The policies, customs, and practices of these

entities to inadequately train its employees,

including the individual defendants, caused the

violation of Plaintiff’s rights.

Second Am. Compl. at ¶ 86. Similarly, the Pretrial Order does

not contain any allegation or facts by Plaintiff related to any

policy, practice, or custom of OHSU that allegedly caused his

constitutional violation. In his Response to OHSU’s Motion for

Summary Judgment Plaintiff asserts OHSU did not have probable

cause to detain Plaintiff and “Plaintiff’s . . . confinement

w[as] caused by an OHSU policy,” but Plaintiff does not identify

any policy at issue and instead points to a statement made by 

Dr. Gross at deposition that she 

in general [does] not drop notices of mental

illness. There is a protocol that we follow which

includes close collaboration with the county that

the patients will displace. I have dropped holds,

but it is not something that I standardly do.

Fargey Decl., Ex. 6 at 10. Plaintiff appears to suggest there is

a policy or practice at OHSU to “rubber-stamp” the admission of

24 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 24 of 26
patients who come into OHSU on Director’s Holds without

conducting an independent evaluation, but Plaintiff does not

provide any authority for his assertion that a statement by an

individual doctor as to that doctor’s general practice is

sufficient to establish that a broader policy, practice, or

procedure exists at OHSU. At best, a statement by an individual

doctor is likely to establish only culpable conduct by the

individual doctor. 

In any event, even if a single statement by a single doctor

as to her routine procedure was sufficient to establish that

procedure was actually a policy, practice, or procedure of the

governmental body, Dr. Gross’s statement does not do so. 

Dr. Gross went on to state in her next sentence: “In addition, I

think that [Plaintiff] deserved and warranted very thorough

evaluation for diagnostic purposes and to evaluate his safety.” 

Fargey Decl., Ex. 6 at 10. Dr. Gross also testified she has

“dropped a notice of mental illness” in the past; specifically,

she has not admitted to OHSU a patient who came in on a

Director’s Hold five to ten times while working at OHSU. 

Finally, the record reflects Drs. Gross, Crowley, Russell, and

Henrickson as well as social workers and other mental-health

workers independently evaluated Plaintiff when he arrived at OHSU

and throughout his confinement. Plaintiff does not point to any

expert evidence in the record that indicates the evaluations of

25 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 25 of 26
the various mental-health providers were medically incorrect,

incomplete, or inaccurate or that his hold did not have a

medically reasonable basis.

On this record the Court concludes Plaintiff has not

established OHSU has a “policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to

represent official policy” that caused any constitutional

violation of Plaintiff’s rights. Accordingly, the Court grants

OHSU’s Motion for Summary Judgment.

CONCLUSION

For these reasons, the Court GRANTS OHSU’s Motion (#169) for

Summary Judgment and DISMISSES with prejudice Plaintiff’s claim

against OHSU.

IT IS SO ORDERED.

DATED this 16th day of May, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

26 - OPINION AND ORDER

Case 3:14-cv-00908-BR Document 193 Filed 05/16/16 Page 26 of 26