Lewis v. Bennett

Opinion

No. 871 September 16, 2026 71

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

IN THE COURT OF APPEALS OF THE STATE OF OREGON

Shane Anthony LEWIS,

Plaintiff-Appellant,

v.

Joel BENNETT,

sued in his individual capacity, Defendant-Respondent.

Malheur County Circuit Court 24CV10785; A186279

Robert S. Raschio, Judge. Submitted August 13, 2026. Shane Anthony Lewis filed the briefs pro se. Daniel Rayfield, Attorney General, Paul L. Smith, Interim Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, Kamins, Judge, and Jacquot, Judge.

TOOKEY, P. J. Affirmed.

72 Lewis v. Bennett

TOOKEY, P. J. Plaintiff, an adult in custody of the Oregon Department of Corrections (ODOC), appeals a general judgment dismissing plaintiff’s First Amendment retaliation claim against defendant, an employee of ODOC. In his Second Amended Complaint, plaintiff alleged that defendant had violated his constitutional rights under the First and Fourteenth Amendments to the United States Constitution, and that defendant had retaliated against him. The trial court granted defendant’s motion to dismiss under ORCP 21 A on the grounds that plaintiff had failed to allege facts sufficient to establish the retaliation claim and that he had filed the claim outside the statute of limitations. In four assignments of error, plaintiff appeals the trial court’s order and judgment dismissing his Second Amended Complaint.1 “We review the trial court’s grant of a motion to dismiss under ORCP 21 A * * * for errors of law.” Deep Photonics Corporation v. LaChapelle, 282 Or App 533, 548, 385 P3d 1126 (2016), rev den, 361 Or 874 (2017). We affirm.

Applying Summary Judgment Standards to a Motion to Dismiss. Plaintiff argues that the “trial court erred when it applied summary judgment standards to a motion to dismiss .” “[W]e have treated a motion to dismiss, even one limited to the pleadings, as a motion for summary judgment when the parties themselves treated the motion to dismiss as a motion for summary judgment.” MacLand v. Allen Family Trust, 207 Or App 420, 427, 142 P3d 87 (2006). According to plaintiff, “there were no affidavits or exhibits attached to defendant’s motion or plaintiff’s response,” and “the parties, therefore, did not treat defendant’s motion to dismiss as one for summary judgment.” Therefore, according to plaintiff, the trial court erred when it “appl[ied] the objectively reasonable jury standard associated with summary judgment.”

However, here, plaintiff did not provide a sufficient record for us to review and consider this issue because he 1 Plaintiff moved to waive ORAP 3.05(2) (requiring preparation of a transcript of oral proceedings designated in the notice of appeal as part of the record) and to allow him to proceed only on the trial court file and exhibits. The Appellate Commissioner granted that motion. Accordingly, we have reviewed those materials and the parties’ briefing.

Nonprecedential Memo Op: 353 Or App 71 (2026) 73

did not provide a transcript of the proceedings below. As a result, we are unable to determine what was said at the hearing and whether, for example, the parties introduced any evidence outside of the pleadings which the court may have considered. See L. H. Morris Electric v. Hyundai Semiconductor, 203 Or App 54, 62-63, 125 P3d 1 (2005), rev den, 341 Or 140 (2006) (“When a motion has been styled as a motion for judgment on the pleadings but the parties have introduced evidence outside the pleadings and the trial court has relied on that evidence in ruling on the motion, we have treated the motion as one for summary judgment or directed verdict.”); see also C. P. v. N. L., 274 Or App 180, 181, 359 P3d 1248 (2015) (noting appellant “bears responsibility for providing an appellate record sufficient for us to determine whether the trial court erred as he claims”). Therefore, we conclude that plaintiff has not demonstrated that the trial court erred when it applied summary judgment standards to defendant’s motion to dismiss.

Uniform Trial Court Rule 5.010. Plaintiff argues that “[d]efendant’s motion to dismiss based upon the statute of limitations should have been dismissed because defendant did not comply with UTCR 5.010.” See UTCR 5.010 (“The court will deny any motion made pursuant to ORCP 21 and 23, except a motion to dismiss: (a) for failure to state a claim; or, (b) for lack of jurisdiction, unless the moving party, before filing the motion, makes a good faith effort to confer with the other party(ies) concerning the issues in dispute.”). Here, the trial court opinion does not address the UTCR 5.010 issue. Plaintiff did not provide a transcript of the hearing below, and after reviewing the trial court file, we conclude that we are unable to determine if plaintiff raised the UTCR 5.010 issue during the hearing on the motion to dismiss his Second Amended Complaint. Therefore, plaintiff has not demonstrated that the trial court erred when it did not deny defendant ’s motion to dismiss on UTCR 5.010 grounds.

The Statute of Limitations. Plaintiff further argues that “[t]he trial court erred by using information outside of the face of the pleadings to justify granting defendant’s motion to dismiss.” Plaintiff does not dispute that he filed his claim outside the statute of limitations but argues that 74 Lewis v. Bennett

the trial court erred in granting defendant’s motion to dismiss because “all elements of equitable estoppel [were] met.” According to plaintiff, “[t]he trial court erred by using those [outside] facts to discount plaintiff’s claim that he was coerced by defendant * * * not to file this action, which was the reason why the action was not commenced within the statute of limitations.”

In a written judgment, the trial court stated:

“[P]laintiff did not file his initial complaint until March 1, 2024, after the two-year statute of limitations had passed. He now claims it was because he was coerced to not file prior, but he filed another lawsuit in Malheur County case #24CV11292 at the same time, under a similar theory of contract law and any concerns about retaliation had already transpired well before the filing of the case. It appears to the court that he developed a theory for another lawsuit and decided to apply it to this lawsuit. However, that does not defeat the bar.”

Defendant contends that “the [trial] court had the authority to and may have taken judicial notice of that case and the contents of plaintiff’s pleadings under OEC 201(b).” See OEC 201(b)(2) (stating that “[a] judicially noticed fact must be one not subject to reasonable dispute in that it is * * * [c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned”).

Because plaintiff did not provide a transcript of the proceedings below, we are unable to determine if the trial court took judicial notice of the Malheur County case under OEC 201(b). Therefore, we conclude that the trial court did not err when it “grant[ed] the motion to dismiss on the constitutional claim as the complaint was not filed within the two-year statute of limitations without sufficient legal justification for failing to file it.” Because we conclude that the trial court did not err when it granted defendant’s motion to dismiss plaintiff’s retaliation claim on the grounds that the statute of limitations had lapsed, we do not reach plaintiff ’s additional arguments regarding the adequacy of his pleadings. Because plaintiff has not demonstrated reversible error, we affirm.

Affirmed.