specially concurring.
Although I agree with the result reached by the majority, I do not agree that our reasoning in Nelson v. Lane Co., 79 Or App 753, 720 P2d 1291 (1986), aff’d 304 Or 97, 743 P2d 692 (1987), resolves the issue of whether the OTCA notice required by ORS 30.275 applies to a section 1983 claim. I would hold that the notice is a procedural requirement when a public official is sued in his or her official capacity, and that a plaintiff in a section 1983 case filed in a state court must comply with the state’s procedural requirements. Certainly the pleadings and service of process must comply with ORCP and the action must be filed within the applicable state Statute of Limitations, see Wilson v. Garcia, 471 US 261, 105 S Ct 1938, 85 L Ed 2d 254 (1985), even though section 1983 contains none of those requirements.
Newman, J., joins in this specially concurring opinion.