Ryan Bonneau v. CENTENNIAL SCHOOL DISTRICT NO. D.C. No. 3:10-cv- 28J

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RYAN BONNEAU,
Plaintiff-Appellant,
v. No. 10-36070
CENTENNIAL SCHOOL DISTRICT NO. D.C. No. 3:10-cv-
28J; JANET BURMIESTER; JOHN  00871-KI
GREENHALGH; WILLIAM VAN HORN; OPINION CENTENNIAL SCHOOL DISTRICT
SCHOOL BOARD; GEORGE BENSON,
Dr.,
Defendants-Appellees. 
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted
December 6, 2011—Seattle, Washington
Filed January 11, 2012
Before: A. Wallace Tashima, M. Margaret McKeown, and
Richard C. Tallman, Circuit Judges.
Opinion by Judge McKeown
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COUNSEL
Paul B. Eaglin, EAGLIN LAW OFFICE, Fairbanks Alaska,
for the plaintiff-appellant.
Leslie A. Kocher-Moar, MACMILLAN, SCHOLZ, &
MARKS, P.C., Portland, Oregon, for the defendants-
appellees.
OPINION
McKEOWN, Circuit Judge:
In the wake of concerns about delayed reporting of child
abuse, Oregon, like a number of states, adopted a special stat-
ute of limitations for abuse victims. Under the Oregon statute,
an action must be commenced before the person reaches age
40 or within five years of discovery of the causal connection
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between the abuse and the injury. Or. Rev. Stat. § 12.117(1).
The question we consider is the effect of this statute on Ryan
Bonneau’s federal civil rights claim under 42 U.S.C. § 1983.
In affirming the district court’s dismissal of the action as time
barred, we conclude that Oregon’s general statute of limita-
tions, rather than the specialized abuse statute, governs Bon-
neau’s claims, and that federal, not state, law governs accrual
of his claims.
ANALYSIS
Bonneau, age 34 at the time he filed this action, alleges that
while he was an elementary school student from 1986 to
1988, he was beaten by teachers at the school. Defendants
include the teachers, his then-school principal, and the school
district (collectively, “the District”). Bonneau claims he expe-
rienced physical and emotional injuries at the time of the
alleged beatings.
The district court dismissed Bonneau’s action as untimely,
ruling that the child-abuse specific statute of limitations did
not apply to a § 1983 claim. The court instead applied Ore-
gon’s two-year residual statute of limitations for personal
injury and its related one-year tolling provision for minors
who had reached the age of 18. See Or. Rev. Stat. §§ 12.110,
12.160.
I. OREGON’S GENERAL STATUTE OF LIMITATIONS, NOT THE
SPECIALIZED ABUSE STATUTE, PROVIDES THE RELEVANT
STATUTE OF LIMITATIONS
[1] Three provisions of Oregon statute of limitations law
are relevant to our analysis—the general personal injury stat-
ute, the minor tolling statute, and the child abuse statute. Ore-
gon has a two-year statute of limitations for general personal
injury claims, including assault. Or. Rev. Stat. § 12.110. Toll-
ing for minors generally is governed by Or. Rev. Stat.
§ 12.160, which provides that for “a child who is younger
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than 18 years of age, the statute of limitation . . . is tolled for
so long as the person is younger than 18 years of age” but
“[t]he time for commencing an action may not be extended
. . . for more than five years, or for more than one year after
the person attains 18 years of age, whichever occurs first.”
Finally, Or. Rev. Stat. § 12.117(1), entitled “Child Abuse,”
states:
Notwithstanding ORS 12.110 . . . or 12.160, an
action based on conduct that constitutes child abuse
. . . must be commenced before the person attains 40
years of age, or if the person has not discovered the
causal connection between the injury and the child
abuse, nor in the exercise of reasonable care should
have discovered the causal connection between the
injury and the child abuse, not more than five years
from the date the person discovers or in the exercise
of reasonable care should have discovered the causal
connection between the child abuse and the injury,
whichever period is longer.
Bonneau urges that the child abuse-specific statute should
be applied in his case because his claims are predicated on
child abuse and he filed suit before reaching age 40. Supreme
Court precedent forecloses this approach.
[2] In Wilson v. Garcia, the Supreme Court explained that
a state’s residual personal injury statute of limitations, not a
range of specialized statutes of limitations, should be applied
to § 1983 claims to prevent unnecessary litigation and pre-
serve the efficacy of the § 1983 remedy. 471 U.S. 261 (1985).
Because § 1983 operates with a “broad” “sweep,” a single
§ 1983 claim may “be favorably analogized” to a host of state
law claims. Id. at 272-73. Making the applicable statute of
limitations dependent on the analogous state tort claim would
lead to “uncertainty and time-consuming litigation that is for-
eign to the central purposes of § 1983,” undermine its effi-
cacy, id., and frustrate “a primary goal of statutes of
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limitations”: clarity and certainty in litigation. Owens v.
Okure, 488 U.S. 235, 240 (1989).
[3] Bonneau urges that considerations unique to child
abuse counsel adoption of § 12.117 instead of § 12.110. The
Court made clear, however, that § 1983 does not incorporate
the policy considerations that underlie specific torts and their
statutes of limitations, as it both “override[s]” and is “supple-
mentary to any remedy any State might have.” Wilson, 471
U.S. at 272 (internal quotation marks and citations omitted).
Hence, identification of the appropriate statute of limitations
for § 1983 claims “is essentially a practical inquiry” that is
mindful of the purposes of § 1983, Owens, 488 U.S. at 242,
and allows “the identification of the appropriate statute of
limitations to be an uncomplicated task for judges, lawyers,
and litigants, rather than a source of uncertainty, and unpro-
ductive and ever-increasing litigation.” Wilson, 471 U.S. at
275. Notably, in Owens, the Court listed special statutes of
limitations for child abuse victims as examples where it
feared “confusion over the choice among . . . multiple inten-
tional tort provisions.” 488 U.S. at 244 & n.8. Accordingly,
in this § 1983 suit, the district court appropriately borrowed
Oregon’s residual two-year statute of limitations for personal
injury actions. Or. Rev. Stat. § 12.110.
II. OR. REV. STAT. § 12.117 DOES NOT TOLL BONNEAU’S
ACTION
[4] Because Bonneau was a minor when the alleged inci-
dents occurred, we also borrow the “related” tolling statute,
§ 12.160, which tolled Bonneau’s claims until he reached age
19 at the latest. Wilson, 471 U.S. at 269. Recognizing that he
has an uphill battle in invoking the child abuse statute as the
applicable statute of limitations, Bonneau shifts gears and
argues that the statute should be treated as a tolling provision.
He reasons that by allowing a victim to bring a claim before
the age of 40, § 12.117 tolls § 12.110’s two year limitations
period. This argument fails because even if construed as a
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tolling statute, § 12.117 does not satisfy the requirement of
being “closely related” to the two-year residual statute of lim-
itations for purposes of borrowing a tolling provision from
state law.
[5] The tolling rule must be “closely related” to the bor-
rowed statute of limitation. Sain v. City of Bend, 309 F.3d
1134, 1138 (9th Cir. 2002). It would no less frustrate “the fed-
eral interest in uniformity and the interest in having firmly
defined, easily applied rules” were we to obediently apply the
residual statute of limitations, only to then adopt a tort-
specific tolling provision. Wilson, 471 U.S. at 270 (internal
quotation marks omitted). Such a holding “would succeed
only in transferring the [ ] confusion over the choice among
multiple [statutes of limitations] to a choice among multiple
[tolling] provisions.” Owens, 488 U.S. at 244. We decline
Bonneau’s invitation to apply § 12.117 as a tolling statute for
the two-year limitations period in § 12.110.
III. REPRESSED MEMORY IN THIS CASE DOES NOT DELAY
ACCRUAL
Bonneau alleged, for the first time in his motion for recon-
sideration in the district court, that accrual of his claims
should be delayed because he repressed memories of the beat-
ings. We generally do not consider arguments raised for the
first time in a motion for reconsideration. Wagner v. United
States, 374 F.2d 86, 87 (9th Cir. 1967). Even if we exercise
the leniency sometimes afforded pro se plaintiffs, the argu-
ment does not succeed.1
Consistent with Wilson and Owens, federal, not state, law
determines when a federal cause of action accrues. Wallace v.
Kato, 549 U.S. 384, 388 (2007). Although Bonneau pays lip
1Although Bonneau was pro se in the district court, he was ably repre-
sented on appeal by a counsel appointed through the Ninth Circuit’s Pro
Bono Program.
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service to federal law, he spends much of his brief explaining
how the accrual rule of § 12.117 applies, arguing in passing
that the state rule essentially mirrors federal accrual doctrine.
However, the Supreme Court instructs that in the case of
accrual, rather than considering state law, we must revert to
“federal rules conforming in general to common-law tort prin-
ciples.” Id. A consistent accrual principle for § 1983 claims
reflects Wilson‘s direction that such claims are distinct from
and unaffected by the manner in which a state chooses to
shape a state law cause of action. We therefore do not—and
need not—analyze Bonneau’s claims under state law.
[6] The general common law principle is that a cause of
action accrues when “the plaintiff knows or has reason to
know of the injury.” TwoRivers v. Lewis, 174 F.3d 987, 991
(9th Cir. 1999). We have interpreted the “question . . . [of]
what . . . we mean by injury” with some flexibility, and held
that a “claim accrues” not just when the plaintiff experiences
the injury, but “when the plaintiff knew or in the exercise of
reasonable diligence should have known of the injury and the
cause of that injury.” Lukovsky v. City & Cnty. of San Fran-
cisco, 535 F.3d 1044, 1050 (9th Cir. 2008). In this case, Bon-
neau was aware of the injuries he experienced as a child as
well as their causes at the time of the beatings. Indeed, he
immediately confided in other teachers and his parents, and he
alleges no other injuries whose cause he belatedly discovered
can be traced to the alleged abuse. Under the common law
rule, Bonneau has not alleged sufficient facts to support
delayed accrual of his claims.
AFFIRMED.
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