UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

JANE DOE and JEAN COE [fictitious names], 

Plaintiffs, 

6: l 5-cv-154-TC 

FINDINGS AND RECOMMENDATION 

v. 

CITY OF EUGENE, PETE KERNS, and 

JENNIFER BILLS, 

Defendants. 

COFFIN, Magistrate Judge: 

Plaintiffs, the fictitiously named Jane Doe and Jean Coe, bring this action asserting 

substantive due process claims, pursuant to 42 U.S.C. § 1983, against the City of Eugene, Eugene 

Police Chief Pete Kerns, and Eugene Police supervisor Jennifer Bills. 

Plaintiffs filed their complaint on January 28, 2015. On July 1, 2015, defendants moved to 

dismiss. On July 21, 2015, plaintiffs sought an extension of time in which to reply to the motion. 

The court granted plaintiffs an extension to July 27, 2015, but on that date, plaintiff chose to file an 

amended complaint and asserted that the motion to dismiss was moot despite the barely perceptible 

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changes to the allegations. 1 Defendants then filed another motion to dismiss on August 5, 2015. 

Plaintiff finally responded on August 24, 2015. With nearly two months to marshal an argument in 

opposition, plaintiffs instead sought the court's authorization to go on a discovery expedition, via 

conclusory allegations oflaw, in hopes of finding a case rather than alleging factual allegations that 

plausibly state claim at the outset. The court heard argument on the second motion to dismiss on 

September 25, 2015. Because the amended complaint still failed to meet basic pleading 

requirements, particularly with regard to what actions were taken under color of law for purposes 

of section 1983 liability, the court granted plaintiffs leave to again amend for another opportunity 

to plead the necessary specifics to make their section 1983 claims plausible. 

Plaintiffs filed their second amended complaint October 5, 2015. Defendants again move 

to dismiss plaintiffs' latest iteration (the third) of their complaint. 

ALLEGATIONS 

Former Eugene Police Officer, Stefan Zeltvay, lived near plaintiff Jane Doe and Jean Coe 

and allegedly physically assaulted both plaint~ffs several times over several years ending in July of 

2012. Plaintiffs allege that Zeltvay "acted under color of state law, in that he misused his power 

possessed by virtue of state law and acted in a way possible because he was clothed with the 

authority of state law." Second Amended Complaint (SAC) at if 13. Specifically, plaintiffs allege 

1

Plaintiffs added a paragraph asse1iing that the Eugene police officer committing the 

alleged underlying constitutional violation acted under color of law via misuse of power because 

he was clothed with authority of state law cir 11 ), inserted some case cites (~21 ), added a 

paragraph alleging that discovery will reveal that defendant Kerns had notice of numerous 

incidents alleged in the complaint (if29), and added an introduction ("The following allegations 

are likely to have evidentiary support after a reasonable opportunity for further investigation or 

discovery:") to previous paragraph 38 (~40). First Amended Complaint (#27). 

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that Zeltvay 

displayed his police powers in the neighborhood even when he was off-duty, driving 

his police car with his emergency lights flashing, following people driving through 

the neighborhood; and displayed his service firearm to plaintiffs and others while 

off-duty. 

SAC at if 14. 

Plaintiffs allege that they both knew Zeltvay was police officer and that they were both 

intimidated and dissuaded from reporting the assaults because they feared they would not be 

believed. SAC at if 15.2 Moreover, plaintiffs assert they 

believed that Zeltvay was acting or purporting to act in the performance of his official 

duties, with the purpose and effect of influencing the behavior of others; and his 

behavior was related in a meaningful way to Zeltvay's governmental status, in that 

that status intimidated the plaintiffs into not making complaints about his behavior. 

SAC at if 17. 

Plaintiffs allege the Eugene Police Department (EPD) began an official investigation into 

Zeltvay's sexually abusive behavior in July of 2012 with Zeltvay going on administrative leave in 

December of 2012 and ultimately resigning and pleading guilty to five counts of sexual harassment 

and one count of sexual abuse on July 24, 2013. SAC at iii! 18-20. 

Plaintiffs allege that the EPD investigation revealed a number of women who were sexually 

abused by Zeltvay over several years including co-workers and relatives of co-workers. SAC at iii! 

21-23. Plaintiffs .further allege that the investigation report makes clear that Zeltvay's sexually 

aggressive and assaultive behavior was notorious among EPD supervisors and tolerated. SAC at if 

24. 

2

Plaintiffs further allege that an EPD investigator later noted regarding plaintiff Coe that 

it was apparent that had Zeltvay not been a police officer she would have aded more 

immediately. SAC at if 16. 

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Plaintiffs also allege several EPD employees stated it was common knowledge for years that 

Zeltvay was sexually harassing women asserting that at a wedding in 2010 or 2011 Zeltvay bit 

woman and forced another to sit on his lap in view of numerous EPD staff. SAC at 1127-28. In 

May of2012, plaintiffs allege, Zeltvay pursued a slain EPD officer's female relative at that officer's 

memorial and that the relative asked defendant EPD supervisor Jennifer Bills "to run interference." 

SAC 130. Plaintiffs alleges that Bills was uncomfortable around Zeltvay because of his "close and 

touchy method of interaction with women." SAC at 131. Plaintiffs also allege that discovery will 

reveal other facts such as defendant EPD chief Pete Kerns knowledge of Zeltvay's conduct. SAC 

at 133. 

Plaintiffs also allege discovery will reveal that defendant the City of Eugene knew of 

Zeltvay's conduct and acquiesced in that conduct by failing to properly supervise and discipline its 

officers. SAC at 1141, 45. 

DISCUSSION 

Defendants move to dismiss arguing that the complaint fails to state a claim of a 

constitutional violation, fails to state a claim on whether Zeltvay acted under color of state law, fails 

to state a claim of supervisor liability, and fails to state a Monell claim. Defendants also argue that 

the claims are barred by the statute of limitations at any rate. 

A. Failure to State a Claim 

[w]hile a complaint ... does not need detailed factual allegations, a plaintiffs 

obligation to provide the "grounds" of his "entitle[ ment] to relief' requires more than 

labels and conclusions, and a formulaic recitation of the elements of a cause of action 

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will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 

209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal 

conclusion couched as a factual allegation"). Factual allegations must be enough to 

raise a right to relief above the speculative level. ... 

Bell Atlantic Corp. v. Twombly, 550 U.S. at 555 (2007) (citations omitted). Moreover, the Supreme 

Court has emphasized that, when assessing the sufficiency of a complaint, a court must distinguish 

factual contentions-which allege behavior on the part of the defendant that, if true, would satisfy one 

or more elements of the claim asserted-and" [ t ]hreadbare recitals of the elements of a cause of action, 

supported by mere conclusory statements." Ashcroft v. Iqbal, 556 U.S. at 678 (2009). In short, "a 

complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is 

plausible on its face." Id. 3 

.L Under Color of Law 

To state aclaim under42 U.S.C. § 1983, plaintiffs must allege the violation of aright secured 

by the Constitution and laws of the United States and that the alleged deprivation was committed by 

3

Plaintiffs asserts that they need only plead allegations of supervisor and Monell liability 

generally and that they can fill in the gaps with discovery. See, e.g., Amnesty America v. Town 

of West Hartford, 363 F.3d 113, 130, n. 10 (2d Cir. 2004) ("It is unlikely that a plaintiff would 

have informcition aqout the city's training programs or about the cause of the misconduct at the 

pleading stage, and therefore need only plead that the city's failure to train caused the 

constitutional violation."). However, while there is no heightened pleading standard for Monell 

claims, post Iqbal, there must be more than mere conclusory allegations. See, e.g., Young v. City 

of Visalia, 687 F.Supp.2d 1141, 1149 (E.D. Cal. 2009) ("However, Iqbal has made clear that 

conclusory, "threadbare" allegations that merely recite the elements of a cause of action will not 

defeat a motion to dismiss .... In light oflqbal, it would seem that the prior Ninth Circuit pleading 

standard for Monell claims (i.e. 'bare allegations') is no longer viable."); AE v. County of Tulare, 

666 F.3d 631, 637 (9th Cir. 2012) (Monell allegations in a complaint may not simply recite the 

elements of a cause of action, but must contain sufficient allegations of underlying facts to give 

fair notice and to enable the opposing party to defend itself effectively). 

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a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). 

The claims against the individual defendants and the City are based on alleged constitutional 

torts committed by Stefan Zeltvay, a former Eugene police officer. As noted above, plaintiffs allege 

Zeltvay "acted under color of state law, in that he misused his power possessed by virtue of state law 

and acted in a way possible because he was clothed with the authority of state law." Plaintiffs 

attempt to provide factual support for this allegation by alleging that Zeltvay "displayed his police 

powers in the neighborhood even when he was off-duty, driving his police car with his emergency 

lights flashing, following people driving through the neighborhood; and displayed his service firearm 

to plaintiffs and others while off-duty." Finally, plaintiffs allege they knew he was an EPD officer 

and thus were intimidated and dissuaded from reporting his assaults. 

These allegation are nothing more than a bare legal conclusion even when considered in the 

context of the complaint as a whole. Indeed, the law provides that an individual acts under color of 

state law when he exercises power "possessed by virtue of state law and made possible only because 

the wrongdoer is clothed with the authority of state law." United States v. Classic, 313 U.S. 299, 326 

(1941 ). 

Section 1983 does not make all torts committed by a law enforcement officer constitutional 

in nature, particularly when the officer is off-duty. See Naffe v. Frey, 789 F.3d 1030, 1036 (9th Cir. 

2015). Whether an off duty officer acts under color oflaw turns on the nature and circumstances of 

the officer's conduct and the relationship of that conduct to the performance of his official duties. 

Id. To accept plaintiffs bare legal conclusion would render any tortious conduct a constitutional 

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violation when an officer displays his patrol vehicle at his home and in his neighborhood.4 

An off-duty police officer 

acts under color of state law when (1) the [officer] "purport[s] to or pretend[s] to act 

under color oflaw," Stanewich, 92 F.3d at 838; McDade, 223 F.3d at 1141, (2) his 

"pretense of acting in the performance of his duties ... had the purpose and effect of 

influencing the behavior of others," Anderson, 451 F.3d at 1069, and (3) the harm 

inflicted on plaintiff " 'related in some meaningful way either to the officer's 

governmental status or to the performance of his duties,'" id. (quoting Martinez v. 

Colon, 54 F.3d 980, 987 (1st Cir.1995)). On the other hand, an [officer] does not act 

under color of state law when he pursues private goals via private actions. See id.; 

see also Townsend v. Moya, 291F.3d859, 861-62 (5th Cir.2002). 

Id. at 1037. 

The mere fact that Zeltvay used his police car in the neighborhood and displayed his side arm 

which alerted plaintiffs to Zeltvay's status as a police officer, does not transform his subsequent and 

umelated actions into acts performed under color of state law. The focus of the inquiry is not on 

what plaintiffs knew about his employment, but rather on how Zeltvay used his position as an officer 

to harm them. See id. at 1039. 

Plaintiffs have had numerous opportunities to allege facts beyond mere legal conclusions in 

response to the three motions to dismiss and have not done so. In this third opportunity to allege 

4

Plaintiffs' cite to Anderson v. Warner, 451 F.3d 1063 (9th Cir. 2006) does not support 

that the alleged conduct states action under color of law. In that case, an off-duty officer 

assaulted the plaintiff after being involved with him in a motor vehicle accident. The officer told 

witnesses that he was a cop and to stay back. Id. at 1065-66. Someone further told the crowd to 

disperse and that it was a police matter and the officer did not contradict the statement. Id. The 

court found such statements had the effect of influencing the witnesses showing action under 

color of state law. Id.; see also, Naffe, 789 F.3d at 1038 (specifically associating actions with 

law enforcement position suffices to show conduct under color oflaw). In this case, plaintiffs 

allege, after three attempts nothing more than their own personal knowledge of Zeltvay's position 

as an EPD officer. Plaintiffs allege no facts demonstrating Zeltvay associated his actions during 

the alleged attacks with his position as an EPD officer. Indeed, plaintiffs provide no specific 

allegations regarding the assaults themselves despite the court's request for such allegations 

following the second motion to dismiss. 

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specifics that would give rise to a plausible section 1983 claim, plaintiffs have still failed to allege 

specific facts or circumstances that would satisfy the elements of such a claim. Rather, it is obvious 

that their legahheory essentially boils down to the proposition that the mere facts that Zeltvay was 

employed as a police officer and plaintiffs were aware of his employment is sufficient to supply the 

"acting under color oflaw" element to any and all of Zeltvay's conduct towards plaintiffs even while 

off-duty. Such a theory essentially transforms the "acting under color of law" element to "being 

vested with the power to act under color oflaw." Such is clearly not the law. See id. at 1038 (not 

every act of a person known to be a state employee, even some acts informed by employment 

experience, is state action). Accordingly, the entire complaint should be dismissed as the failure to 

allege an underlying constitutional violation necessarily negates supervisor and Monell liability. A 

finding that an officer inflicted no constitutional injury on a plaintiff in a Section 1983 action is not 

only conclusive as to the officer, but also as to the city. City of Los Angeles v. Heller, 4 75 U.S. 796, 

799 (1986). Moreover, a supervisor is only liable for actions or omissions that are causally 

connected to the alleged constitutional violation. Where there is no constitutional violation, there 

can be no supervisor liability under section 1983. Cf. id. 

2. Supervisory Claim 

A defendant may be held liable as a supervisor under § 1983 "if there exists either 

(1) his or her personal involvement in the constitutional deprivation, or (2) a 

sufficient causal connection between the supervisor's wrongful conduct and the 

constitutional violation." Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). "[A] 

plaintiff must show the supervisor breached a duty to plaintiff which was the 

proximate cause of the injury. The law clearly allows actions against supervisors 

under section 1983 as long as a sufficient causal connection is present and the 

plaintiff was deprived under color oflaw of a federally secured right." Redman, 942 

F.2d at 1447. 

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Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 

The causal connection may be established by, for instance, knowingly refusing to terminate 

a series of acts by others which the supervisor knew or reasonably should have known would cause 

others to inflict a constitutional injury. Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 968 

(9th Cir. 2001). In other words, a supervisor may be liable for acquiescing to the constitutional 

violation. 

Here, again, plaintiffs merely plead a legal conclusion and assert discovery will show that 

the legal standard is met. However, plaintiffs must allege sufficient facts to plausibly establish the 

defendant's "knowledge of' and "acquiescence in" the unconstitutional conduct of subordinates. 

Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2011) (quoting Starr, 652 f.3d at 1206-07). 

The only attempt in the complaint to allege facts are a conclusory5 reference to Zeltvay's 

conduct being common knowledge at the Department and two specific examples: (1) an off duty 

incident at a wedding involving Zeltvay biting a woman and forcing another to sit on his lap; and (2) 

an incident out of town during a memorial for a slain officer in which Zeltvay allegedly pursued the 

slain officer's female relative to the extent that she asked defendant Bills to run interference. 

Plaintiffs also allege that Bills was aware some women were uncomfortable around Zeltvay. These 

allegations do not plausibly suggest Bills or Kerns had knowledge of any unconstitutional conduct 

on the part of Zeltvay and acquiesced to it. At best, it suggests that Bills may have known about 

some ordinary tortious conduct. 

5

Plaintiff does reference an "investigation memorandum" in which a "sergeant" was aware 

of background information pertinent to Zeltvay's conduct including conduct directed toward the 

sergeant's wife. SAC at if 29. But this does not reference the individual defendants' knowledge 

and it is dated after the Department placed Zeltvay on leave. 

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Again, plaintiffs were made aware of the deficiencies in the complaint regarding the failure 

to allege sufficient facts to plausibly plead supervisor liability and have failed to do so in the 

amended complaint. In addition, plaintiffs do not suggest what additional facts they might plead in 

support of their claims. 6 The supervisor liability claims should be dismissed with prejudice . 

.1. Monell Liability 

Plaintiffs appear to argue that merely alleging the constitutional deprivation resulted from 

official policy, custom, or practice is sufficient to state a Monell claim. However, as noted above, 

post-Iqbal, plaintiffs must now allege specific facts. 

A city may be liable for a section 1983 violation under Monell v. Department of Soc. Servs., 

436 U.S. 658 (1978), only where the municipality itself causes the constitutional violation through 

"execution of a goveniment's policy or custom, whether made by its lawmakers or by those whose 

edicts or acts may fairly be said to represent official policy." Id. at 694. 

Municipal liability may be premised on: (1) conduct pursuant to an expressly adopted official 

policy; (2) a longstanding practice or custom which constitutes the 'standard operating procedure' 

of the local government entity; (3) a decision of a decision-making official who 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; or ( 4) an official with final policymaking authority either delegating 

that authority to, or ratifying the decision of, a subordinate. See Price v. Sery, 513 F.3d 962, 966 (9th 

6

Indeed, plaintiffs fail to address supervisory liability in their response to this motion to 

dismiss. With respect to previous motions to dismiss, plaintiffs counsel misinterpreted the law 

as permitting conclusory allegations with discovery to fill in the holes, further demonstrating a 

lack of any factual support at the outset to support a plausible claim. 

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Cir. 2008); Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004); Ulrich v. City and County of San 

Francisco, 308 F.3d 968, 984-85; Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 

Plaintiffs do not allege any facts suggestive of an expressly adopted policy, a longstanding 

practice or custom, ratification of conduct, or a decision by a decision-maker that resulted in the 

alleged constitutional deprivation beyond mere conclusions. Plaintiffs do assert that the postconduct investigation, the conclusory "common knowledge" allegation, and the wedding and 

memorial incidents offer factual support for the Monell claim. Thus, it appears that plaintiffs rely 

on a deliberate indifference theory or custom of accepting such behavior. 

Generally, absent a formal governmental policy, plaintiffs must allege a "longstanding 

practice or custom which constitutes the standard operating procedure of the local government 

entity." Gillette v. Delmore, 979 F .2d 1342, 1346-4 7 (9th Cir. 1992). The custom must be so 

"persistent and widespread" that it constitutes a "permanent and well settled city policy." Monell, 

436 U.S. at 691. Liability for improper custom may not be predicated on isolated or sporadic 

incidents; it must be founded upon practices of sufficient duration, frequency and consistency that 

the conduct has become a traditional method of can)'ing out policy. Bennett v. City of Slidell, 728 

F.2d 762, 767 (5th Cir. 1984); see also, Meehan v. Los Angeles County, 856 F.2d 102 (9th Cir. 

1988) (two incidents not sufficient to establish custom); Davis v. Ellensburg, 869 F.2d 1230 (9th Cir. 

1989) (manner of one arrest insufficient to establish policy). 

If plain tiffs meant to rely on a lack of training as the basis for liability, then the need for more 

or different training must be so obvious, and the inadequacy so likely to result in the violation of 

constitutional rights, that the policymakers of the city can reasonably be said to have been 

deliberately indifferent to the need. City of Canton, Ohio v. Harris, 489 U.S. 378, 390 (1989). The 

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complaint is simply devoid of such facts and, in light oflqbal, plaintiffs' assertion that a discovery 

fishing expedition will reveal the necessary facts is insufficient. Again, the failure to plead facts at 

this point or to even alert the court to further facts in the response to the third motion to dismiss, 

should result in the dismissal of this claim with prejudice. 

B. Statute of Limitations 

Regardless of whether plaintiffs have or could plead sufficient facts to plausibly allege claims 

for Monell or supervisor liability, the amended complaints along with plaintiffs' responsive briefs 

now makes clear that all claims are barred under the statute oflimitations. Plaintiffs attempt to save 

their claims by asserting that the statute oflimitations does not begin to run until they discovered the 

named defendants' roles in their injuries, but under federal law, the claims accrued when plaintiffs 

knew of the injuries themselves. 

The parties agree that the applicable statute of limitations is two years under O.R.S. § 

30.275(9). Plaintiff filed this action on January 28, 2015. There are no allegations in the second 

amended complaint within the limitations period even with plaintiff Doe's tolling agreement from 

June 25, 2014 until December 20, 2014. 

Plaintiffs assert that although they knew of the injuries which form the basis of their claims, 

the cause of action did not accrue until they discovered the named defendants were responsible, 

which apparently did not happen until they obtained documents subsequent to the investigation at 

some unspecified time, but after July of 2012. SAC 126. 

Although Oregon law provides the statute oflimitations period, accrual is the date on which 

the statute oflimitations begins to run. Under federal law, a claim accrues when the plaintiff knows 

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or has reason to know of the injury which is the basis of the action. Lukavsky v. City and County of 

San Francisco, 535 F.3d 1044, 1048 (9th cir. 2012).7 

Plaintiffs assertion that the claims accrue when they discover the responsible party, is based 

on an Oregon case. See Cole v. Sunnyside Marketplace, LLC, 212 Or. App. 509, 519 (2007) 

(discovery rule provides that claim accrues when plaintiff should know of harm to a legally protected 

interest and that the defendant is the responsible party). However, Chief Judge Aiken of this court 

rejected a similar argument stating: 

Finally, plaintiffs' assertion regarding the tolling of the statute of limitations is 

without merit. Even assuming that plaintiffs did not have knowledge of the additional 

defendants' roles until after the limitations period lapsed, the fact remains that 

"federal law determines when a civil rights claim accrues." Lukavsky v. City & Cnty. 

of S.F., 535 F.3d 1044, 1048 (9th Cir. 2008), cert. denied, 556 U.S. 1183 (2009) 

(citation omitted). Under federal law, the statute of limitations begins to run "when 

the plaintiff knows or has reason to know of the injury which is the basis of the 

action." Id. (citation and internal quotations omitted); see also Clavette v. Sweeney, 

132 F.Supp.2d 864, 874 (D.Or. 2001) ("[t]he Ninth Circuit has stated repeatedly the 

plaintiff need not also know the identity of the person who caused the injury" for a 

claim to accrue under federal law) (citations omitted). For this reason, the precedent 

that plaintiffs rely on in support of their tolling argument is unpersuasive. 

Strongv. CityofEugene, 6:14-cv-1709-AA(D.Or.) Opinion and Order dated May 19, 2015 atp. 12-

13. 

Accordingly, plaintiffs' claims are time-barred and this action should be dismissed. 

Ill 

Ill 

7

Even with respect to a Monell claim, the period begins to run when the injury is 

discovered rather than when the City's role is discovered. See, e.g., Lawson v. Rochester City 

School Dist., 446 Fed.Appx. 327, 329 (2d Cir. 2011) ("We decline to eviscerate that rule by 

holding that the limitations period for a cause of action against a municipality runs anew upon 

the future discovery of facts tangentially related to a Monell claim."). 

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CONCLUSION 

For the reasons stated above, defendants' motion to dismiss (#40) should be granted and this 

action should be dismissed. 

This recommendation is not an order that is immediately appealable to the Ninth Circuit 

Court of appeals. Any notice of appeal pursuant to Rule 4(a)(l), Federal Rules of Appellate 

Procedure, should not be filed until entry of the district court's judgment or appealable order. The 

parties shall have fomieen (14) days from the date of service of a copy of this recommendation 

within which to file specific written objections with the court. Thereafter, the parties shall have 

fourteen (14) days within which to file a response to the objections. Failure to timely file objections 

to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right 

to de novo consideration of the factual issues and will constitute a waiver of a party's right to 

appellate review of the findings of fact in an order or judgment entered pursuant to this 

recommendation. 

DATED this ) { day of January 2016. 

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