Cannon v. Polk County District Attorney

MEMORANDUM * Appellants Philip Scott Cannon, Mathias Cannon, and Philip Scott Cannon, on behalf of his minor child, QC, appeal the district court’s orders granting the State Appellees’ and the Morrow Estate’s motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and the County and City Appellees’ motion for summary judgment. We have jurisdiction pursuant to 28 U.S.C. § 1291 and now affirm in part and reverse in part. First, Appellants argue that the district court erred in ruling Claims 4, 13, and 14 for negligence are barred by Oregon’s 10-year statute of ultimate repose, which is triggered by the relevant act or omission. Or.Rev.Stat. § 12.115(1); Shasta View Irrigation Dist. v. Amoco Chems. Corp., 329 Or. 151, 162, 986 P.2d 536 (1999). With respect to these three state claims, the district court correctly determined that all of the alleged conduct had occurred more than ten years before the filing of the complaint. Accordingly, we affirm the dismissal of these claims. Appellants argue for an exception based on a continuous relationship with certain Appellees, but this argument was not raised before the district court, and so we deem it waived. United States v. Suarez, 682 F.3d 1214, 1219 n. 1 (9th Cir.2012). Second, Appellants argue the district court erred in applying the statute of ultimate repose to Claims 3, 5, 6, 7, 8, 10, 11, and 12 for violations of 42 U.S.C. § 1983. We agree and now reverse. By its express terms, Oregon Revised Statutes § 12.115(1) only applies to negligence claims and, therefore, is inapplicable to these Section 1983 actions. Though Appellant waived this argument by failing to raise it below, we reach it “to prevent a miscarriage of justice” and because “the issue is purely one of law.” AlohaCare v. Hawaii, Dep’t of Human Servs., 572 F.3d [613] 740, 744-45 (9th Cir.2009) (quotation marks omitted). Third, Appellants argue that they gave notice of their state claims to Appel-lees within the 180-day period set forth in the Oregon Tort Claims Act. Or.Rev.Stat. § 30.275(2)(b). The district court ruled that notice was untimely because, while the Complaint was filed on February 26, 2010, less than 180 days after the claims accrued on September 1, 2009, Appellants were not served with a summons until after the 180-day period expired. We disagree. Oregon Revised Statutes § 30.275(3)(c) provides that the OTCA notice requirement may be satisfied by the “[cjornmencement of an action” within the 180-day period, and Section 12.020(2) states that an action is deemed commenced when the complaint is filed, if a summons is served within 60 days of that filing. See Baker v. City of Lakeside, 343 Or. 70, 164 P.3d 259, 266 (2007) (holding § 12.020(2)’s 60-day summons rule applies to the OTCA’s statute of limitations). Since Appellants served all Appellees with a summons within 60 days of filing their Complaint, the action commenced on February 26, 2010, thereby providing timely notice. Appellees urge us to restrict Baker to the OTCA’s limitations period and to create a summons receipt rule that would effectively require actual notice as in § 30.275(3)(b). We find no authority for these contentions and so reverse. Fourth, Appellees Fisher and Ny-hus are shielded by absolute prosecutorial immunity. The allegations against them concern actions in furtherance of the prosecution, not “investigative or administrative tasks.” Van de Kamp v. Goldstein, 555 U.S. 335, 342, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009); see also Genzler v. Longanbach, 410 F.3d 630, 639 (9th Cir.2005). Appellee Gerber is immune from claims attacking her representation of the government in the post-conviction proceedings. Fry v. Melaragno, 939 F.2d 832, 837 (9th Cir.1991). We affirm the dismissal of Claims 3, 9, and 10 through 12 as to these three individuals. Fifth, Appellants ask us to reverse the lower court’s finding that the government’s expert witnesses are protected by absolute immunity under Briscoe v. LaHue, 460 U.S. 325, 328-29, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983). While “this immunity does not shield non-testimonial conduct,” Paine v. City of Lompoc, 265 F.3d 975, 981 (9th Cir.2001), the preparation of testimony is immunized to the same extent as the presentation itself. Buckley v. Fitzsimmons, 952 F.2d 965, 966 (7th Cir.1992) (per curiam), rev’d on other grounds, 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993). Since the claims against Conrady, Kloeko, Rutter, and Birch attack their trial testimony or its preparation, we affirm the dismissal of Claims 6, 7, and 10 through 12 as to those individuals. Sixth, we affirm the dismissal of the Polk County District Attorney’s office from Claims 1 and 2, because it is entitled to Eleventh Amendment immunity, since “DAs ... act as state officials ... when acting in their prosecutorial capacity.” Del Campo v. Kennedy, 517 F.3d 1070, 1073 (9th Cir.2008) (quotation marks and alterations omitted). The district court neglected to dismiss the Polk County DA from Claim 15 on this basis. Finally, Appellants argue that the district court improperly entered summary judgment in favor of Appellees on the false imprisonment claim. Unlawful confinement is a necessary element of that cause of action. Stone v. Finnerty, 182 Or.App. 452, 458, 50 P.3d 1179 (Or.Ct.App.2002). The district court correctly determined that, at all times, Cannon was held pursuant to legal process and, therefore, his [614] confinement was lawful. We affirm the entry of summary judgment in favor of the Polk County Sheriff with respect to Claim 15. Each party shall bear its own costs. AFFIRMED in part; REVERSED in part. Footnotes [*] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.