# Camarata v. Portland Community College

> District Court, D. Oregon · October 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10392610

## Case

- **Court:** District Court, D. Oregon
- **Decided:** October 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10392610

## How later opinions describe it (automated extraction)

- declining to dismiss a complaint where the equitable tolling doctrine applied

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

GENE CAMARATA, No. 3:19-cv-00738-HZ

Plaintiff, OPINION & ORDER

v.

PORTLAND COMMUNITY COLLEGE,
a public college organized under the laws
of the state of Oregon; MARK MITSUI;
LISA AVERY; HEATHER LANG;
GARRETT CIMINO; PCC OFFICER
JEFF FISHBACK; and JOHN DOES 1-5; all
the defendants in their individual and
official PCC capacities,

Defendants.

Gene Camarata
715 NW Hoyt Street
Portland, OR 97208

Pro Se Plaintiff
Cody J. Elliott
MILLER NASH GRAHAM & DUNN LLP
3400 U.S. Bancorp Tower
111 SW Fifth Avenue
Portland, OR 97204

Attorney for Defendants

HERNÁNDEZ, District Judge:

Plaintiff Gene Camarata brings this civil rights and tort action against Defendants
Portland Community College, Mark Mitsui, Lisa Avery, Heather Lang, Garrett Cimino, PCC
Officer Jeff Fishback, and John Does 1–5. This matter comes before the Court on Defendants’
Motion to Dismiss Plaintiff’s Amended Complaint. The Court grants in part Defendants’ Motion
to Dismiss.
BACKGROUND
The facts that led Plaintiff to bring this claim are explained in the Court’s September 26,
2019, Opinion & Order on Defendants’ Motion to Dismiss Plaintiff’s Complaint (“O&O”), ECF
14, and are not reproduced here. The Court granted Defendants’ motion to dismiss Plaintiff’s
Complaint without prejudice. O&O at 12. The Court dismissed Plaintiff’s Complaint because
his claims are barred by the statute of limitations, and the factual allegations did not state a
plausible claim for relief. Id. at 6. The Court granted Plaintiff leave to amend to cure those
deficiencies and to state the statutory basis for his retaliation and discrimination claims. Id. at
12. Plaintiff filed an Amended Complaint in response to the Court’s order. Am. Compl., ECF
15.
Plaintiff’s Amended Complaint alleges state law negligence claims, First, Fifth, and
Fourteenth Amendment violations under 42 U.S.C. § 1983, and claims of unlawful retaliation.
Am. Compl. ¶ 21. It also adds a new claim for breach of contract and no longer alleges an
unlawful discrimination claim. 1 Id. Plaintiff seeks an award of compensatory damages, punitive
damages, and equitable relief. Id. at ¶ 24. Most of the allegations that Plaintiff added to his
Amended Complaint that were not present in his initial Complaint are legal argument and
conclusions. Am. Compl. ¶¶ 12–14, 17–18. The new facts follow.
Plaintiff alleges that on November 15, 2016, he emailed Defendants Lang, Cimino, and

Mitsui to tell them that Portland Community College’s (“PCC”) student conduct policy was
unconstitutional because it violated students’ due process rights. Id. at ¶ 15. He also alleges that
he included a copy of that email with his appeal of his suspension, which he sent to Defendants
Avery, Lang, Cimino, and Mitsui on January 30, 2017. Id. at ¶ 16. Plaintiff alleges that
Defendant Avery’s February 10, 2017, affirmance of his suspension further violated his due
process rights. Id. He appears to allege that because his November 15, 2016, email put
Defendants Avery, Lang, Cimino, and Mitsui on notice that they violated his due process rights
when PCC suspended him, each Defendant violated his due process rights again when Defendant
Avery affirmed his suspension. Id. (“By affirming Camarata’s suspension . . . and not allowing

Camarata any proper due process hearing, Avery – and by extension Lang, Cimino[,] and Mitsui
– violated Camarata’s due process rights[.]”).
Defendants again move to dismiss. Def. Mot. Dismiss, ECF 16. Alternatively,
Defendants move to substitute PCC as the sole defendant in Plaintiff’s tort claims under Or. Rev.
Stat. § (“O.R.S.”) 30.265(3). Plaintiff did not respond to Defendants’ motion to dismiss.

1 The Court notes that Plaintiff has abandoned his discrimination claim by failing to plead it in
his Amended Complaint. King v. Attiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“All causes of
action alleged in an original complaint which are not alleged in an amended complaint are
waived.”) (citing London v. Cooper & Lybrand, 644 F.2d 811, 814 (9th Cir. 1981)).
STANDARD OF REVIEW
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). When evaluating the
sufficiency of a complaint’s factual allegations, the Court must accept all material facts alleged
in the complaint as true and construe them in the light most favorable to the non-moving party.

Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012). 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[.]” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotation marks omitted). A complaint must state a plausible
claim for relief and contain “well-pleaded facts” that “permit the court to infer more than the
mere possibility of misconduct[.]” Id. at 679.
Courts must liberally construe pro se pleadings. Wolfe v. Strankman, 392 F.3d 358, 362
(9th Cir. 2004). A court cannot dismiss a pro se complaint without first explaining to the
plaintiff the deficiencies of the complaint and providing a chance to amend. Ferdik v. Bonzelet,
963 F.2d 1258, 1261 (9th Cir. 1992). Dismissal of a pro se complaint without leave to amend is
proper only if it is clear that the deficiencies of the complaint could not be cured by amendment.
Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
DISCUSSION
Defendants move to dismiss Plaintiff’s Amended Complaint because he failed to cure the
deficiencies in his original Complaint. The Court agrees.
“A statute-of-limitations defense, if ‘apparent from the face of the complaint,’ may
properly be raised in a motion to dismiss.” Seven Arts Filmed Entm’t Ltd. v. Content Media

Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Conerly v. Westinghouse Elec. Corp.,
623 F.2d 117, 119 (9th Cir. 1980)). “If the allegations, for example, show that relief is barred by
the applicable statute of limitations, the complaint is subject to dismissal for failure to state a
claim[.]” Jones v. Bock, 549 U.S. 199, 215 (2007); see also Supermail Cargo, Inc. v. United
States, 68 F.3d 1204, 1206–07 (9th Cir. 1995) (“A motion to dismiss based on the running of the
statute of limitations period may be granted only if the assertions of the complaint, read with the
required liberality, would not permit the plaintiff to prove that the statute was tolled.”) (internal
quotations and citations omitted). However, “a complaint cannot be dismissed unless it appears
beyond a doubt that plaintiff can prove no set of facts that would establish the timeliness of the

claim.” Supermail Cargo, 68 F.3d at 1207 (declining to dismiss a complaint where the equitable
tolling doctrine applied). When claims are barred by the statute of limitations, a court may
dismiss the plaintiff’s claims without leave to amend because amendment would be futile. Platt
Elec. Supply, Inc. v. EOFF Elec. Inc., 522 F.3d 1049, 1060 (9th Cir. 2008).
I. Section 1983 and Tort Claims
Plaintiff’s Amended Complaint alleges that his cause of action accrued on February 10,
2017, the date that Defendant Avery denied Plaintiff’s appeal of his suspension. Am. Compl. ¶
17. Because he filed suit two years later on February 10, 2019, his Amended Complaint alleges,
his claims are not barred by the two-year statute of limitations. Alternatively, Plaintiff alleges
that the statute of limitations was tolled between January 9, 2017, and February 10, 2017,
because the doctrines of exhaustion of administrative remedies and equitable tolling apply. Id. at
¶ 18. Plaintiff’s Amended Complaint also offers another argument in the alternative that
Defendant Avery’s February 10, 2017, denial of the appeal of his suspension “was a separate act
of wrongdoing.” Id. at ¶ 11.

A. Accrual Date
None of the authority offered by Plaintiff in his Amended Complaint changes the Court’s
conclusion that Plaintiff’s section 1983 and negligence claims accrued on or before January 9,
2017, when PCC suspended him. The factual allegations in Plaintiff’s Amended Complaint
describe incidents that began or occurred on one of four dates. First, Plaintiff alleges that on
November 9, 2016, Defendants began a “campaign to improperly harass, torment, expel, ban,
suspend, and criminally trespass” him. Id. at ¶ 6. Second, he alleges that on December 2, 2016,
PCC held a disciplinary conference and gave him insufficient notice and opportunity to be heard
at that conference. Id. at ¶ 8. Next, he alleges that on January 9, 2017, Defendant suspended

him for one year. Id. at ¶ 9. Finally, he alleges that on February 10, 2017, PCC denied his
appeal of his suspension. Id. at ¶ 11.
Plaintiff’s section 1983 and tort claims allege that PCC violated the Fourteenth
Amendment’s due process clause when it suspended him on January 9, 2017, and when it denied
his appeal of his suspension without a hearing on February 10, 2017. Id. at ¶¶ 5, 7–9, 11–14.
Federal courts apply the forum state’s statute of limitations for personal injury actions to section
1983 claims. Owens v. Okure, 488 U.S. 235, 240–41 (1989). Under Oregon law, personal injury
tort claims have a two-year statute of limitations. O.R.S. 12.110(1). As a result, section 1983
claims brought in Oregon have a two-year statute of limitations. Sanok v. Grimes, 306 Or. 259,
263, 760 P.2d 228 (1988). Federal law, on the other hand, determines when a section 1983 claim
accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007). As the Court explained in its previous
Opinion & Order, a section 1983 claim accrues when “the plaintiff has a complete and present
cause of action, that is, when the plaintiff can file suit and obtain relief.” Id. (internal quotation
marks and citations omitted).

Plaintiff alleges that PCC “suspended [him] for the duration of one year, but banned
[him] for all intents and purposes permanently” on January 9, 2017. Am. Compl. ¶ 9. Plaintiff
had a “complete and present cause of action” under section 1983 on January 9, 2017, because
that is the date that both the alleged conduct causing his injury and causation of his damages
occurred. Id. As a result, Plaintiff’s failure to file suit within two years of his January 9, 2017,
suspension bars his section 1983 claim.
As for Plaintiff’s tort claims, under Oregon law, a negligence cause of action accrues
“when all of the facts exist that the plaintiff must prove in order to recover on the claim.”
Murphy v. Allstate Ins. Co., 251 Or. App. 316, 321 (2012). Plaintiff knew or should have known

that Defendants’ tortious conduct had caused him harm on January 9, 2017. Flug v. Univ. of Or.,
170 Or. App. 660, 675, 13 P.3d 544 (2000), aff’d, 335 Or. 540 (2003) (the plaintiff’s claim
accrued when they had “sufficient information to raise an issue of fact on each element of [their]
claim”). Because negligence claims in Oregon have a two-year statute of limitations, O.R.S.
12.110(1), Plaintiff’s negligence claim is barred by the statute of limitations because he brought
the claim after two years had elapsed. Doughton v. Morrow, 255 Or. App. 422, 428, 298 P.3d
578 (2013) (a plaintiff must bring a negligence claim within two years of accrual).
Plaintiff’s second argument—contained in the allegations of his Amended Complaint—is
equally unavailing. Plaintiff alleges that even if his claims accrued before February 10, 2017, the
denial of his appeal on that date was an independent injury that gave rise to a new cause of
action. Plaintiff is mistaken. He suffered no new injury as a result of the denial of his appeal.
Because the harm he alleges to have suffered had occurred when PCC suspended him on January
9, 2017, and simply continued after PCC denied his appeal in February 2017, no new “harm”
occurred in February 2017 that could sustain an independent cause of action.

Finally, Plaintiff alleges an unlawful retaliation claim. The unlawful retaliation claim in
his Amended Complaint suffers from the same deficiencies as the unlawful retaliation claim he
alleged in his original complaint. Plaintiff again failed to specify the legal basis for his unlawful
retaliation claim in his Amended Complaint. The Court is thus unable to determine whether
Plaintiff’s retaliation claim is timely. The Court grants Plaintiff leave to amend his unlawful
retaliation claim to state the facts and legal basis for that claim.
The Court dismisses Plaintiff’s tort and section 1983 claims because they are barred by
the statute of limitations, so the Court need not address Defendants’ arguments about the factual
sufficiency of the allegations stating those claims or the applicability of qualified immunity to

Plaintiff’s section 1983 claims. Plaintiff’s tort and section 1983 claims are dismissed with
prejudice. Plaintiff’s unlawful retaliation claim is dismissed without prejudice.
B. Exhaustion of Administrative Remedies
Generally, “exhaustion is not a prerequisite to an action under § 1983.” Patsy v. Bd. of
Regents, 457 U.S. 496, 501 (1982); see also Steffel v. Thompson, 415 U.S. 452, 472–73 (1974)
(“When federal claims are premised on [section 1983] . . . we have not required exhaustion of
state judicial or administrative remedies[.]”). Thus, Plaintiff’s contention that he was “required to
exhaust his administrative remedies by filing and pursuing the internal appeal” before he could
bring his Section 1983 claims is unfounded. Am. Compl. ¶ 7.
Similarly, Plaintiff was not required to exhaust any administrative remedies before
pursuing his tort claims against Defendants. Plaintiff cited some authority in his Amended
Complaint about the applicability of the doctrine of exhaustion in other contexts, but he cited no
authority to support his contention that he was required to exhaust administrative remedies in
order to pursue his tort claims against Defendants, and the Court has identified none. Am.

Compl. ¶ 19 (citing cases related to exhaustion of administrative remedies before challenging a
tax assessment).
C. Equitable Tolling
The Court borrows the State’s equitable tolling rules to determine the statute of
limitations for a section 1983 action. Bd. of Regents v. Tomanio, 446 U.S. 478, 486–87 (1980)
(no federal policy offended by applying State tolling rules to determine the timeliness of a §
1983 action). A plaintiff can avoid the bar of a statute of limitations “if despite the exercise of
all due diligence he is unable to obtain vital information bearing on the existence of his claim.”
D.H.M. v. Or. Youth Auth., No. 06143-KI, 2008 WL 1766727, at *5 (D. Or. Apr. 8, 2008)

(citing Shropshear v. Corp. Counsel of City of Chicago, 275 F.3d 593, 595 (7th Cir. 2001)).
O.R.S. 30.275 contains no equitable tolling provision, and Plaintiff provided no authority to
suggest that equitable tolling applies to his section 1983 claims under Oregon law. See
Alexander v. Dorn, No. 3:11-cv-00102-ST, 2011 WL 4975258, at *3 (D. Or. Jul. 18, 2011),
adopted by 2011 WL 5023838 (D. Or. Oct. 19, 2011). Plaintiff has alleged no circumstances
that prevented him from filing a complaint within the limitations period.2 As a result, even if

2 Plaintiff asserted in his Amended Complaint that a three-prong test from Cervantes v. City of
San Diego, 5 F.3d 1273, 1275 (9th Cir. 1993), establishes whether equitable tolling applies to his
claims. Plaintiff is mistaken. The court in Cervantes applied California’s equitable tolling test,
which does not apply here.
equitable tolling were available to toll the statute of limitations for his section 1983 claims,
Plaintiff has not alleged any facts to establish that it applies.
D. Oregon Tort Claims Act
The Oregon Tort Claims Act contains a notice provision that requires a person suing a
public body or its agents to give notice of the claim within 180 days of the occurrence. O.R.S.

30.275(2). But the notice requirement of O.R.S. 30.275 does not toll the statute of limitations
during the 180-day period. O.R.S. 30.275(9) (“an action arising from any act or omission of a
public body or an officer, employee or agent of a public body within the scope of ORS
30.260 to 30.300 shall be commenced within two years after the alleged loss or injury.”). If a
claimant fails to give the required notice, then their claim is barred. O.R.S. 30.275(2). There
were no other administrative requirements that Plaintiff had to meet to before he could sue
Defendants.
Plaintiff first gave written notice of his claim on August 9, 2017, more than 180 days
following his January 9, 2017, suspension. Am. Compl. ¶ 4. Thus, his tort claims against PCC

and its officers are barred by the 180-day notice provision of the Oregon Tort Claims Act. Orr v.
City of Eugene, 151 Or. App. 541, 543 (1997) (“The requirement that notice be given timely is a
substantive condition precedent to recovery under the Oregon Tort Claims Act that, if not
satisfied, deprives a plaintiff of the right to make a claim.”) (quotation marks omitted).
II. Breach of Contract
Plaintiff appears to assert a breach of contract claim in his amended complaint. Am.
Compl. ¶ 21. However, he alleged no facts that establish the existence, performance, or breach
of any contract between Plaintiff and Defendants that could state a plausible claim for relief.
Thus, Plaintiff has not sufficiently stated a cause of action for breach of contract. The Court
grants Plaintiff leave to amend this claim to allege sufficient facts to state a plausible claim for
breach of contract.
CONCLUSION
Defendants’ Motion to Dismiss Plaintiff’s Amended Complaint [16] is GRANTED IN
PART. Plaintiff’s section 1983 claim and tort claims against all Defendants are dismissed with

prejudice. Plaintiff’s unlawful retaliation and breach of contract claims are dismissed without
prejudice. Plaintiff may file a second amended complaint within thirty (30) days of the date of
this order that plausibly alleges his unlawful retaliation and breach of contract claims.
IT IS SO ORDERED.

DATED October 25, 2020 .

MARCO A. HERNÁNDEZ
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10392610. Public record. Not legal advice.