Unpublished Disposition, 907 F.2d 154 (9th Cir. 1987)

MEMORANDUM^* 

Shirley L. Langley appeals the district court's dismissal of her civil rights action against the City of Eugene ("city") and one of its police officers, Judy Rodenhuis. The court granted summary judgment in favor of the city upon determining that the city's police officers were not following or establishing municipal policy or custom when they allegedly used excessive force against Langley and abridged Langley's right to free speech. The court granted summary judgment in favor of Rodenhuis on the ground that Langley's claims against Rodenhuis were time-barred. Langley's pendent state claims were dismissed. We affirm.

DISCUSSION

Municipalities may be sued under 42 U.S.C. § 1983 (1982) where the action that is alleged to be unconstitutional either implements or executes a policy officially adopted and promulgated by that body's officers or was undertaken pursuant to governmental custom even though such custom had not received formal approval through the body's official decisionmaking channels. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 690-91 (1978). Langley contends that the city's police officers acted pursuant to an unconstitutional city policy that permits the use of excessive force during the execution of a search warrant. The city's police manual provides that during the execution of a search warrant, " [i]f necessary for officer safety, the occupants may be detained and prevented from moving about" and that officers "may use the degree of force, short of deadly physical force, against persons ... as is reasonably necessary." If this written policy is unconstitutional on its face, then the causal relationship between the municipal policy and the constitutional tort may be proved by evidence of a single event. Kirkpatrick v. City of Los Angeles, 803 F.2d 485, 492 (9th Cir. 1986).

We conclude that the city's written policy is not unconstitutional on its face. In Kirkpatrick we held that a city's policy regarding strip searches of police officers for investigative purposes was not unconstitutional on its face because the policy permitted consideration of all circumstances surrounding an accusation against an officer before a strip search was conducted. Id. Furthermore, the policy condoned such searches only when they were reasonable. Id. Similarly, the city's policies here mandate consideration of the surrounding circumstances and only condone the use of force when it is "reasonably necessary."

Langley also argues that the city's policies are so vague in describing the amount of force an officer can use that officers have unfettered discretion to use any force or conduct short of deadly force. She apparently contends that the city's policies have the effect of delegating authority to individual officers and therefore the city should be liable for its officers' unconstitutional actions. We rejected a similar argument in Davis v. City of Ellensburg, 869 F.2d 1230, 1234 (9th Cir. 1989). We reasoned that " [t]he mere absence of a written policy is not sufficient to support an inference that policymaking authority has been delegated to the rank and file." Id. Rather, the plaintiff must show the existence of a widespread practice or custom in contrast to a single act by a non-policymaking employee. Id. at 1235. Here the city has a written policy that defines the amount of force an officer may use in the execution of a search warrant. The officers do not have unfettered discretion to use excessive force. Furthermore, Langley failed to show an "express municipal policy ... so permanent and well settled as to constitute a custom or usage with the force of law." Id. (internal quotations and original emphasis omitted).

Finally, Langley contends that the district court erred in not allowing her to amend her complaint to allege an additional theory against the city based on Canton v. Harris, 109 S. Ct. 1197, 1204 (1989) (holding that inadequacy of police training may serve as the basis for liability where the failure to train amounts to deliberate indifference). The additional theory, however, was already available to Langley when she filed her original complaint. See Bergquist v. County of Cochise, 806 F.2d 1364, 1370 (9th Cir. 1986) ("a policy of gross negligence in training or supervision gives rise to Sec. 1983 liability"). We conclude that justice did not require the district court to grant Langley's motion for leave to amend her complaint. See Mir v. Fosburg, 646 F.2d 342, 347 (9th Cir. 1980) ("district court has broad discretion to grant or deny leave to amend, particularly where the court has already given the plaintiff one or more opportunities to amend").

The district court did allow Langley to file an amended complaint naming Rodenhuis in place of the "Jane Doe" defendant in Langley's original complaint. The court later ruled, however, that the amended complaint did not relate back for purposes of imposing a statute of limitations. The issue is controlled by state law. See Merritt v. County of Los Angeles, 875 F.2d 765, 768 (1989) (state's relation back doctrine governs in section 1983 actions). Oregon law specifically allows for the use of fictitious-name pleading. See Or.R.Civ.P. 20H. Whether a substitution of the defendant's proper name should relate back, however, is controlled by Or.R.Civ.P. 23C. Under that rule, an amendment relates back only if, inter alia, "within the period of the statute of limitations, the new party ... received notice of the litigation." Johnson v. MacGregor, 55 Or.App. 374, 377, 637 P.2d 1362, 1364 (1981), review denied, 292 Or. 589, 644 P.2d 1130 (1982).

Here, there can be no dispute that Rodenhuis did not receive notice within the statutory period. Langley filed her original complaint on April 10, 1987, three days before the expiration of the statute of limitations. The complaint was served on the city six days later and three days after the expiration of the statute of limitations. Although the city was timely served, Rodenhuis did not receive notice of the action until she was later named in the amended complaint.

Langley nevertheless contends that any notice deficiency to Rodenhuis is cured by application of the three-year limitations period in Or.Rev.Stat. Sec. 12.100(1) rather than the two-year period specified in Or.Rev.Stat. Sec. 12.110(1). We conclude that the three-year limitation period is not applicable. We have previously applied section 12.110(1), the two-year statute of limitations, to section 1983 claims. See Cooper v. City of Ashland, 871 F.2d 104, 105 (9th Cir. 1989).

Finally, Langley contends that Rodenhuis waived her defense when she failed to object to the magistrate's granting of the motion to amend. The magistrate ruled, however, that despite Rodenhuis' subsequent participation in pretrial proceedings, she was not barred from contesting whether the amended complaint adding her in place of "Jane Doe" should relate back in time to the commencement of the action. He reasoned that although he granted the motion to allow the filing of the amended complaint, he did not specifically rule on Langley's request to have the amendment relate back. We accept the magistrate's explanation of the events and conclude that Rodenhuis did not waive her right to contest the relation back. Moreover, Rodenhuis specifically preserved in every answer her contention that Langley's action against her was time-barred.

Langley argues that the district court erred in dismissing her pendent state claims. We disagree. Whenever a district court dismisses all federal claims, leaving only state claims for resolution, the court should decline jurisdiction over the state claims and dismiss them without prejudice. Les Shockley Racing Inc. v. National Hot Rod Ass'n, 884 F.2d 504, 509 (9th Cir. 1989). Langley argues that the district court here should have retained jurisdiction over her pendent claims because she is now time-barred from asserting those claims in state court. See Danner v. Himmelfarb, 858 F.2d 515, 524 (9th Cir. 1988) (the prejudicial passage of state limitations period is a factor for the district court to consider in determining whether to retain jurisdiction over pendent state claims), cert. denied, 109 S. Ct. 2067 (1989).

Oregon law specifically provides, however, that a plaintiff has one year to commence a new action upon dismissal or reversal on appeal. Or.Rev.Stat. Sec. 12.220; see also Hatley v. Truck Ins. Exch., 261 Or. 606, 615, 494 P.2d 426, 430 (1972) (section 12.220 applies to pretrial dismissals on jurisdiction grounds); Beetham v. Georgia-Pacific Corp., 87 Or.App. 592, 596 n. 2, 743 P.2d 755, 757 n. 2 (1987) (section 12.220 "gives plaintiffs a year after the Ninth Circuit issues its mandate to refile the claims in the state courts"). Thus we reject Langley's argument that the district court abused its discretion by not retaining jurisdiction over the pendent claims.

AFFIRMED.