6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE
8 LINCOLN LANE ADDLEMAN, JR., MELVIN ) LYLE MCCLINTOCK, VINCENT AVI ) 9 STORMFELT, and SHARI LYNN HANSEN, ) No. 2:23-cv-00286-JHC ) 10 Plaintiffs, ) ) ORDER GRANTING KING COUNTY 11 vs. ) DEFENDANTS’ MOTION TO ) DISMISS PURSUANT TO FRCP 12 KING COUNTY; MITIZI G. JOHANKNECHT, ) 12(b)(6) Former Sheriff; CITY OF BURIEN; PATTI ) 13 COLE-TINDALL, Current Sheriff; KING ) COUNTY SEX OFFENDER UNIT; KING ) 14 COUNTY SHERIFF’S OFFICE; EVA CUNIO, ) Supervisor Civil Unit; P. (“Pierre”) THIRY, ) 15 Detective; City of Burien Code Enforcement ) Officer, BARBARA CANFIELD; King County ) 16 Detective MICHAEL W. LuCHAU; King County ) Detective JANETTE LUITGAARDEN; King ) 17 County Registering Officer, E.M.W.; and King ) County Registering Officer, Michelle #74940, ) 18 ) Defendants. ) 19 20 I 21 INTRODUCTION This matter comes before the Court on King County Defendants’ Motion to Dismiss 22 Pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. # 58. The Court has reviewed: the 23 materials submitted in support of, and in opposition to, the motion; pertinent portions of the 1 record; and the applicable law. Being fully advised, the Court DISMISSES claims against the 2 King County Defendants for failure to state a claim upon which relief can be granted. Fed. R. 3 Civ. Proc. 12(b)(6). The Court also DISMISSES Plaintiffs’ Second Amended Complaint 4 (“SAC”) against all Defendants for failure to abide by a prior court order. Fed. R. Civ. P. 41(b).
5 II 6 BACKGROUND This action was brought by Plaintiffs Lincoln Lane Addleman, Jr., Melvin Lyle 7 McClintock, Vincent Avi Stormfelt, and Shari Lynn Hansen. Dkt. # 38. Plaintiffs filed their 8 SAC on June 15, 2023, and are bringing claims against all defendants under 42 U.S.C. § 1983 for 9 alleged violations of several constitutional rights arising out of various events. See, generally Id. 10 Plaintiffs filed their original complaint on March 1, 2023. Dkt. # 7. The Court dismissed 11 that complaint without prejudice and granted plaintiffs leave to file a First Amended Complaint 12 (“FAC”) that met the requirements of Federal Rule of Civil Procedure 8(a). Dkt. # 26. Plaintiffs 13 filed their FAC on May 22, 2023. Dkt. # 30. The Court dismissed that complaint without 14 prejudice and granted Plaintiffs leave to file a SAC, again instructing Plaintiffs to meet the 15 requirements of Rule 8(a). Dkt. # 37. The Court explicitly told Plaintiffs that this would be their 16 “final opportunity to address their complaint’s deficiencies.” Id. at 4. Plaintiffs filed their SAC 17 on June 15, 2023. Dkt. # 38. 18 Plaintiffs list twelve defendants in their SAC. Dkt. # 38 at 1–2. King County; former 19 Sheriff Mitzi G. Johanknecht; Sheriff Patti Cole-Tindal; King County Sex Offender Unit; King 20 County Sherriff’s Office; King County Sherriff’s Office Supervisor, Eva Cunio; Detective 21 Michael W. LuChau; Detective Pierre Thiry; Registering Officer E.M.W.; and Registering 22 Officer – Michelle 74940 (“King County Defendants”) move to dismiss under Rule 12(b)(6). 23 Dkt. # 58. 1 Plaintiffs filed a response on September 7, 2023. Dkt. # 62. While this response is titled 2 as a response to the “Motion for Summary Judgment,” the contents appear to respond, in part, to 3 County Defendant’s motion to dismiss for failure to state a claim under Rule 12(b)(6). Id. 4 Plaintiffs’ response also includes additional allegations that King County and the Washington
5 Association of Sheriff’s & Police Chiefs “decided to destroy evidence” while this Case was 6 active. Id. On September 22, 2023, Plaintiffs filed an Exhibit of their tort claim against the state 7 of Washington regarding this alleged destruction of evidence. Dkt. # 70. Because it is 8 procedurally improper for this Court to consider the additional allegations raised by Plaintiffs in 9 their response brief, and the exhibits filed corresponding to those allegations, in this order the 10 Court focuses solely on the SAC. The King County Defendants replied to Plaintiffs’ response on 11 September 22, 2023. Dkt. # 68. 12 III 13 PLAINTIFFS’ CLAIMS Notwithstanding the SAC, the Court still finds it difficult to understand many claims 14 brought by Plaintiffs and against whom each claim is brought. The Court, to the best of its 15 ability, understands Plaintiffs to be claiming that: 16 1. Defendants Patti Cole-Tindall and Mitzi G. Johanknecht, in their official 17 capacities, violated Article 1, § 10 of the federal Constitution, which prohibits states from passing any laws that apply ex post facto. Dkt. # 38 at 4. Plaintiffs 18 also appear to raise a Fourteenth Amendment substantive due process claim against these Defendants. Dkt. # 38 at 4–5. 19 2. Defendants Registering Officer E.M.W. and Michael W. LuChau, in their 20 personal capacities, “sought a vigilante executioner.” Dkt. # 38 at 4. It is unclear what specific constitutional violation these Defendants allegedly committed. Dkt. 21 # 38 at 4–5.
22 3. Defendants King County Sheriff’s Office, Eva Cunio, and Mitzi G. Johanknecht, in their official capacities; and Defendant Pierre Thiry in his personal capacity, 23 “used practice, custom, policy […] in violation of the separation of powers 1 doctrine.” Dkt. # 38 at 5. It is unclear what specific constitutional violation these Defendants allegedly committed. Dkt. # 38 at 5. 2 4. Defendant Pierre Thiry’s posting of an RCW 9A.52.080 Criminal Trespass 911 3 Warning led to violations of Plaintiff Addleman’s First, Fifth, and Fourteenth Amendment Due Process and Equal Protection rights. Dkt. # 38 at 6. In this 4 same paragraph, Plaintiffs claim that Defendant Registering Officer Michelle – 74940 released Plaintiff Addelman’s exact address which resulted in “vigilante 5 destroying his vehicle.” Dkt. # 38 at 6. It is unclear the specific constitutional violation Defendant Registering Officer Michelle – 74940 allegedly committed. 6 Dkt. # 38 at 6.
7 5. Defendants King County, City of Burien, and King County Sex Offender Unit; 8 and Defendant Michael W. LuChau in their personal capacity, deprived Plaintiffs Hansen and Stormfelt’s privacy rights and rights under the First, Fourth, Fifth, 9 and Fourteenth Amendment due to County policy. Dkt. # 38 at 7.1
10 6. Defendants King County and City of Burien, “per custom, practice, or policy, did not report an illegal sewer pipe six (6) inches above ground, being disconnected in 11 2021, and left buried in ground[.]” Dkt. # 38 at 7. Plaintiffs do not state which Plaintiffs these alternate statements apply to, nor is it clear what constitutional 12 violations were allegedly committed. Dkt. # 38 at 7.
13 7. Defendants King County and City of Burien violated Plaintiffs’ Hansen and 14 Stormfelt’s Fourteenth Amendment rights, by custom, practice, or policy, for not including the sex offender registration of “suspected pedophile Robert Ardell 15 Leavitt, Jr.” Dkt. # 38 at 8.
16 8. Defendant King County violated Plaintiffs Addleman, Hansen, Stormfelt, and/or McClintock’s, Fourteenth Amendment Equal Protection and Substantive Due 17 Process Rights, by practice, custom, or policy. Dkt. # 38 at 8. It is unclear what actions led to the alleged constitutional violations. Dkt. # 38 at 8. 18
19 20 21 22 1 Dkt. # 38 at 7, line 20–line 29, outlines “Rule 8(d) Alternate Statements.” Plaintiffs do not state 23 which Defendants these alternate statements apply to, nor is it clear what specific constitutional violations were allegedly committed. Dkt. # 38 at 7. The Court understands these pleadings not as “alternate statements” but attempts by Plaintiffs to provide facts to support their pre ceding claims. 1 Also, Plaintiffs assert a claim against Defendant City of Burien. Dkt. # 38 at 8. 2 However, it is unclear what specific constitutional violation[s] were allegedly committed. 3 Dkt. # 38 at 9.2 4 IV
5 DISCUSSION A. The King County Sheriff’s Office and the King County Sex Offender Unit are not 6 Legal Entities that can be Sued. 7 Under Washington law, when a legal action involves a county, “the county itself is the 8 only legal entity capable of suing and being sued.” Broyles v. Thursdton County, 195 P.3d 985, 9 994 (Wash. Ct. App. 2008) (citing Nolan v. Snohomish County, 802 P.2d 792 (Wash. Ct. App. 10 1990)). To determine whether a public entity may be sued, the court must look to the 11 “enactment providing for its establishment.” Roth v. Drainage Imp. Dist. No. 5, of Clark Cnty., 12 392 P.2d 1012, 1014 (Wash. Ct. App. 1964). 13 The King County Sheriff’s Office is established by RCW 36.28, and the duties, powers, 14 and functions of the office are outlined in this chapter. See RCW 36.28. The King County Sex 15 Offender Unit is a function of the Sheriff’s Office. See RCW 9A.44.130 (outlines the 16 registration process for sex offenders with the county sheriff’s office). Nothing in this chapter 17 allows the Sheriff’s Office to sue or be sued. By contrast, the Washington state legislature has 18 specifically provided that counties have capacity to sue and be sued. RCW 36.01.010 (“The 19 several counties in this state shall have capacity as bodies corporate, to sue and be sued in the 20 manner prescribed by law[.]”); e.g., Foothills Dev. Co. v. Clark Cnty. Bd. of Cnty. Com’rs, 730 21 P.2d 1369, 1374 (Wash. Ct. App. 1986). Therefore, any claims against the King County 22
23 2 Because the Motion to Dismiss was filed by only the King County Defendants, the Court does not address claims brought against Defendants City of Burien or Barbara Canfield in the Rule 12(b)(6) a nalysis. 1 Sheriff’s Office and the King County Sex Offender Unit, a component of the Sheriff’s Office, 2 are DISMISSED as these entities cannot be sued under Washington law. 3 B. Plaintiffs’ Remaining Claims Against the King County Defendants are Dismissed Under Rule 12(b)(6) for Failure to State a Claim. 4 Section 1983 provides: 5 Every person who, under color of any statute, ordinance, regulation, custom, or 6 usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, 7 privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for 8 redress.
9 42 U.S.C. §1983. Therefore, to sustain a claim under Section 1983, Plaintiffs must show that (1) 10 a right secured by the United States Constitution or United States Law was violated and (2) that 11 the violation was committed by a person acting under the color of State Law. Long v. County of 12 Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). 13 Rule 12(b)(6) provides for dismissal when a complaint “fail[s] to state a claim upon 14 which relief can be granted.” Fed. R. Civ. P. 12(b)(6). The Court construes the complaint in the 15 light most favorable to the nonmoving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 16 416 F.3d 940, 946 (9th Cir. 2005). “To survive a motion to dismiss, a complaint must contain 17 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” 18 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 19 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows 20 the court to draw the reasonable inference that the defendant is liable for the misconduct 21 alleged.” Id. A court may dismiss a complaint under Rule 12(b)(6) that lacks a “cognizable 22 legal theory” or fails to allege “sufficient facts” under a cognizable legal theory. Balistreri v. 23 Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Because Plaintiffs are pro se, the Court must construe their pleadings liberally. See Hebbe v. Pliler, 627 F .3d 338, 342 (9th Cir. 2010). 1 But pro se pleadings still “must meet some minimum threshold in providing a defendant with 2 notice of what it is that it allegedly did wrong.” Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 3 199 (9th Cir. 1995). 4 1. Plaintiffs do not State Article 1, Section 10 Ex Post Facto or Fourteenth Amendment Due Process claims against Defendants Patti Cole-Tindall 5 and Mitzi G. Johanknecht. 6 Article 1, Section 10 of the United States Constitution prohibits the retroactive increase 7 of criminal punishment. Calder v. Bull, 3 U.S. 386, 390–91 (1798). The Due Process Clause of 8 the Fourteenth Amendment provides that a State may not “deprive any person of life, liberty, or 9 property, without due process of law.” U.S. Const. amend. XIV, § 1. “The Supreme Court has 10 held that the clause guarantees not only fair process but also certain substantive rights.” Peck v. 11 Montoya, 51 F.4th 877, 892 (9th Cir. 2022) (citing Washington v. Glucksberg, 521 U.S. 702, 719 12 (1997)). 13 Plaintiffs state that Plaintiff Addleman “was told at guilty plea December 7, 1978, max
14 sentence would be ’15 years[]’” and that Defendant Patti Cole-Tindall’s announcement “that 15 Addleman has ‘Release Date: 09/25/2014” for 1978 Utah Conviction’” was a violation of Article 16 1, Section 10. Dkt. # 38 at 4. Plaintiffs have not pleaded any factual content for this Court to 17 infer that Defendant Patti Cole-Tindal decided or allegedly modified Plaintiff Addleman’s 18 release date. Similarly, Plaintiffs state that Defendant Mitzi G. Johnanknecht “more than 19 doubled” Plaintiff Addleman’s sentence “by giving it a ‘09/25/2014’ Release Date after the 20 maximum expired 08/04/1988” in violation of Article 1, Section 10. Again, Plaintiffs have not 21 pleaded any factual content for this Court to infer that Defendant Mitzi G. Johnanknecht decided 22 or allegedly modified Plaintiff Addleman’s release date. Plaintiffs also do not allege how either 23 of these Defendants would have such power. Nor have Plaintiffs pleaded factual content that, if taken as true, would show that Defendants Patti Cole-Tindall and M
itzi G. Johanknecht 1 interfered with Plaintiffs’ substantive rights. Therefore, these claims against Defendants Patti 2 Cole-Tindall and Mitzi G. Johanknecht are DISMISSED for failure to state a claim upon which 3 relief can be granted. 4 2. Plaintiffs do not state a claim against Defendants Registering Officer E.M.W. or Detective Michael W. LuChau. 5 Plaintiffs claim that Defendants Registering Officer E.M.W. and Detective Michael W. 6 LuChau “sought a vigilante executioner by releasing Addleman’s former ‘exact address’ from 7 Registry Website[.]” Dkt. # 38 at 4–5. Plaintiffs appear to claim that this action violated RCW 8 4.24.550. Id. at 5. While Plaintiffs do not explicitly state this in their complaint, they seem to 9 contend that the release of Plaintiff Addleman’s address violated RCW 4.24.550(5)(a)(i) which 10 requires listing addresses of level III offenders “by hundred block.” Plaintiffs’ allegation is 11 contradicted by Exhibit KCA-001 filed by Plaintiffs which lists Plaintiff Addleman’s address as 12 “10800 block of Rainer Ave S.” Id. at 13. Plaintiffs’ claim that Defendants Registering Officer 13 E.M.W. and Detective Michael W. LuChau released Plaintiff Addleman’s “exact address” is not 14 supported by the exhibits submitted by Plaintiff. Plaintiffs have not pleaded any factual content 15 for this Court to infer that Defendants Registering Officer E.M.W. and Detective Michael W. 16 LuChau committed a wrongful act resulting in a constitutional violation. Therefore, these claims 17 against Defendants Registering Officer E.M.W. and Detective Michael W. LuChau are 18 DISMISSED for failure to state a claim upon which relief can be granted. 19 3. Plaintiffs do not state a claim against Defendants Eva Cunio, Mitzi G. 20 Johanknecht, and Pierre Thiry. Plaintiffs claim that Defendants Eva Cunio and Mitzi G. Johanknecht, “used practice, 21 custom, policy” to have Defendant Pierre Thiry “enter into verbal contract with Level III sex 22 offender Addleman, which voided the writ of restitution in violation of the separation of powers 23 doctrine.” Dkt. # 38 at 5. Plaintiffs do not identify what practice, custom, or policy they are 1 referring to. Plaintiffs have not pleaded any factual content for this Court to infer that 2 Defendants Eva Cunio, Mitzi G. Johanknecht, and Pierre Thiry committed a constitutional 3 violation for this conduct. Therefore, this claim against Defendants Eva Cunio, Mitzi G. 4 Johanknecht, and Pierre Thiry is DISMISSED for failure to state a claim upon which relief can
5 be granted. 6 4. Plaintiffs do not state First, Fifth, or Fourteenth Amendment Due Process and Equal Protection claims against Defendant Detective Pierre Thiry. 7 Plaintiffs claim that Defendant Pierre Thiry violated the First, Fifth, and Fourteenth 8 Amendment when Defendant posted an RCW 9A.52.080 Criminal Trespass 911 Warning. Dkt. 9 # 38 at 6. It is unclear whose First, Fifth, and Fourteenth Amendment Due Process and Equal 10 Protection rights Defendant violated. 11 Following these claims of constitutional violations, Plaintiffs provide several “Rule 8(d) 12 Alternate Statements” which discuss various facts, including supposed “abandoned property” 13 that had been found, the alleged permission of a “fugitive suspect” to use a house as a “hide- 14 out,” an apparent “stash house” where stolen property was kept, and reports of “vigilantes” 15 “terrorizing the community […] with impunity.” Dkt. # 38 at 6. It is unclear, as Plaintiffs do not 16 explain, how these activities relate to allegations against, or conduct done by Detective Pierre 17 Thiry. 18 The First Amendment’s freedom of speech, press, assembly, and petition and the free 19 exercise and establishment of religion are rights applicable to the states through the Fourteenth 20 Amendment. See Duncan v. State of La., 391 U.S. 145, 148 (1968). To state a claim under the 21 First Amendment against Defendant Detective Pierre Thiry, Plaintiffs must provide facts in their 22 complaint which, if taken as true, state a claim under the First Amendment. Plaintiffs have not 23 pleaded any factual content for this Court to infer that their freedom of speech, press, assembly, 1 or petition nor their free exercise and establishment of religion have been impeded by Detective 2 Pierre Thiry’s actions. Dkt. # 38 at 6. 3 Plaintiffs also allege violations of the Fourteenth Amendment due process and equal 4 protection clauses. Dkt. # 38 at 6.
5 The Fourteenth Amendment due process clause includes two possible claims: a 6 procedural due process claim and a substantive due process claim. See Polanco v. Diaz, 76 F.4th 7 918, 925 (9th Cir. 2023) (citing DeShaney v. Winnebago Cnty. Dep’t of Soc. Servs., 489 U.S. 8 189, 195–95 (1989)). It is unclear under which Due Process prong Plaintiffs allege a violation 9 occurred. Even so, Plaintiffs have not pleaded any factual content for this Court to infer that 10 their procedural or due process claims were violated by the actions of Defendant Detective Pierre 11 Thiry. 12 “The Equal Protection Clause of the Fourteenth Amendment commands that no State 13 shall deny to any person within its jurisdiction the equal protection of the laws, which is
14 essentially a direction that all persons similarly situated should be treated alike.” Lee v. City of 15 Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (internal quotation omitted) (citing City of 16 Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)). “To state a claim under 42 U.S.C. § 17 1983 for violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must 18 show that the defendants acted with an intent or purpose to discriminate against the plaintiff 19 based upon membership in a protected class.” Lee, 250 F.3d at 686 (internal quotation omitted). 20 Plaintiffs have not provided facts indicating what protected class the plaintiff or plaintiffs are 21 members of, nor have they provided facts which, if taken as true, suggest Defendant Detective 22 Pierre Thiry acted with an intent or purpose to discriminate based on this unnamed protected 23 class. 1 Finally, Plaintiffs allege a Fifth Amendment violation against Defendant Detective Pierre 2 Thiry. Dkt. # 38 at 6. The rights against self-incrimination and arbitrary taking of private 3 property without due compensation within the Fifth Amendment have been incorporated to the 4 states through the Fourteenth Amendment. See Duncan, 391 U.S. at 148. It is unclear what
5 aspect of the Fifth Amendment Plaintiffs allege were violated; but even with the most generous 6 reading, the complaint fails to plead facts that allege any Fifth Amendment violation resulting 7 from Defendant Detective Pierre Thiry’s actions. 8 Plaintiffs have not pleaded any factual content for this Court to infer that Defendant 9 Detective Pierre Thiry violated Plaintiffs First, Fifth, or Fourteenth Amendment rights. 10 Therefore, these claims against Defendant Detective Pierre Thiry are DISMISSED for failure to 11 state a claim upon which relief can be granted. 12 5. Plaintiffs do not state a claim against Defendant Registering Officer Michelle – 74940. 13 Plaintiffs state that “Addleman put in a change of registration with defendant Registering 14 Officer Michelle – 74940,” [Exhibit KCA-004] who released his “exact address” 10/25/2021 that 15 resulted in vigilante destroying his vehicle 03/05/2023. [Police report filed].” Dkt. # 38 at 6. 16 Plaintiff Addleman appears to contest Defendant Registering Office Michelle – 74940’s listing 17 of his specific address, rather than his address by the hundred block as outlined in RCW 18 4.24.550. Id. at 16. But this does not amount to factual content pleaded for this Court to infer 19 that Defendant Officer Michelle – 74940 violated one of Plaintiff Addleman’s constitutional 20 rights. Plaintiffs do not plead facts which connect Defendant Registering Officer Michelle – 21 74940’s change of registration filing with Plaintiff Addleman’s vehicle being allegedly destroyed 22 by a “vigilante.” Id. “[A] plaintiff’s obligation to provide the grounds of [their] entitlement to 23 relief requires more than labels and conclusions[.]” Bell Atl. Corp., 550 U.S. at 554. A motion 1 to dismiss may be granted when there is a lack of a cognizable legal theory or absence of 2 sufficient facts to support a cognizable legal theory. Balistreri, 901 F.2d at 699. 3 The claim against Defendant Registering Officer Michelle – 74940 is followed by several 4 “Rule 8(d) Alternate Statements” which discuss various facts. Dkt. # 38 at 6. The Court cannot
5 determine, and Plaintiffs do not explain, how these activities relate to allegations against, or 6 conduct done by Defendant Registering Officer Michelle – 74940. Therefore, these claims 7 against Defendant Registering Officer Michelle – 74940 are DISMISSED for failure to state a 8 claim upon which relief can be granted. 9 6. Plaintiffs do not state First, Fourth, Fifth, or Fourteenth Amendment claims or a privacy claim against Defendant Detective Michael W. 10 LuChau. 11 Because the Court struggles to understand Plaintiffs’ factual allegations, it copies 12 Plaintiffs allegations here. Plaintiffs assert: 13 Grievance officer Robert Hansen claims King County did not do anything wrong, but King County went along with a verbal contract made with a Level III pedophile, 14 rapist, kidnapper, and honored that verbal contract for twenty (20) months to shock and utter dismay of ADA prior rape victims Shari Lynn Hansen and Vincent Avi 15 Stormfelt [two plaintiffs in this case] while depriving both Hansen and Stormfelt a fundamental right to privacy under the First, Fourth, Fifth, and Fourteenth 16 Amendment due to County policy.
17 Dkt. # 38 at 7. Nothing in this statement illustrates the allegedly wrongful conduct in which 18 Defendant Detective Michael W. LuChau engaged. Plaintiffs provide two “Rule 8(d) Alternate 19 Statements” following this initial allegation, which appear to be attempts by Plaintiffs to provide 20 facts to support their preceding claims. Id. However, the only facts provided about actions taken 21 by Defendant Detective Michael W. LuChau exists at Dkt. # 38 at 7 lines 23–28: “[D]etective 22 LuChau (2015-2021), visiting 312 property 23 more times never reported exposed sewer pipe 23 […] No EPA impact study (09/01/2015 to current date) on water line and sewer line in same 1 trench reported by detective LuChau 08-25-2015; [Exhibit KCA-091 08/25/2015] went 2 unattended for six (6) years[.]” 3 The legal standards to state a claim under the First, Fifth, and Fourteenth Amendments 4 are outlined above. See supra at p. 10 (First Amendment), 11 (Fifth Amendment), 10–11
5 (Fourteenth Amendment). The Fourth Amendment rights to be free from unreasonable searches 6 and seizures and to have excluded from criminal trials any evidence illegally seized is 7 incorporated to the states through the Fourteenth Amendment. Duncan, 391 U.S. at 148. 8 Plaintiffs have pleaded no facts for this Court to infer that Plaintiffs’ rights under the 9 First, Fourth, Fifth, or Fourteenth Amendment were violated by Defendant Detective Michael W. 10 LuChau’s described actions. Nor have Plaintiffs provided facts to illustrate what privacy rights 11 were violated. Therefore, these claims against Defendant Detective Michael W. LuChau are 12 DISMISSED for failure to state a claim upon which relief can be granted. 13 7. Plaintiffs do not State Monell claims against King County for a practice, custom, or policy that led to alleged Constitutional violations. 14 Plaintiffs assert several claims against Defendant King County. Plaintiffs allege that 15 Defendant King County: (1) deprived Plaintiffs Hansen and Stormfelt’s privacy rights and rights 16 under the First, Fourth, Fifth, and Fourteenth Amendment, Dkt. # 38 at 7; (2) “per custom, 17 practice, or policy, did not report an illegal sewer pipe six inches above ground, being 18 disconnected in 2021, and left buried in ground,” Dkt. # 38 at 7; (3) violated Plaintiffs Hansen 19 and Stormfelt’s Fourteenth Amendment rights, by custom, practice, or policy, for not including 20 the sex offender registration of “suspected pedophile Robert Ardell Leavitt, Jr.,” Dkt. # 38 at 8; 21 and (4) violated Plaintiffs Addleman, Hansen, Stormfelt, and/or McClintock’s Fourteenth 22 Amendment equal protection and substantive due process rights, by practice, custom, or 23 policy[,]” Dkt. # 38 at 8. 1 Section 1983 cannot be read to impose vicarious liability “on governing bodies solely on 2 the basis of the existence of an employer-employee relationship with a tortfeasor.” Monell v. 3 Dep’t. of Soc. Svcs., 436 U.S. 658, 692 (1978); Connick v. Thompson, 563 U.S. 51, 60 (2011). 4 “A government entity may not be held liable under 42 U.S.C. § 1983, unless a policy, practice,
5 or custom of the entity can be shown to be a moving force behind a violation of constitutional 6 rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. 7 at 694). Although a constitutional violation must result from “official municipal policy,” a 8 county need not expressly adopt the policy. It is sufficient that the constitutional violation 9 occurred pursuant to a “longstanding practice or custom.” Christie v. Iopa, 176 F.3d 1231, 1235 10 (9th Cir. 1999) (quoting Gillette v. Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992)). To establish 11 liability against a government entity under Monell, a plaintiff must prove “(1) that [the plaintiff] 12 possessed a constitutional right of which [they were] deprived; (2) that the municipality had a 13 policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s constitutional
14 right; and (4) that the policy is the moving force behind the constitutional violation.” Dougherty, 15 654 F.3d at 900 (internal quotation marks omitted). 16 First, as established above, Plaintiffs fail to state a claim that Plaintiffs Hansen and 17 Stormfelt’s privacy rights and rights under the First, Fourth, Fifth, and Fourteenth Amendment 18 were violated. See supra at p. 12–13. Nor do Plaintiffs identify a policy, practice, or custom 19 held by King County that caused this alleged violation. 20 Second, Plaintiffs state that King County violated their constitutional rights “per custom, 21 practice, or policy” when they “did not report an illegal sewer pipe six inches above ground, 22 being disconnected in 2021, and left buried in ground[.]” Dkt. # 38 at 7. It is unclear which 23 Plaintiffs this allegation refers to and, regardless, Plaintiffs have not pleaded any factual content 1 for this Court to conclude that this lack of reporting resulted from King County’s custom, 2 practice, or policy or that it resulted in any constitutional violation. 3 Third, Plaintiffs state that Defendant King County violated Plaintiffs Hansen and 4 Stormfelt’s Fourteenth Amendment rights, by custom, practice, or policy, for not including the
5 sex offender registration of “suspected pedophile Robert Ardell Leavitt, Jr.” Dkt. # 38 at 8. 6 Plaintiffs allege that King County “invidiously discriminate[d]” under the Fourteenth 7 Amendment “in arbitrarily without any rational basis providing or not providing Web Site 8 notification of sex offenders.” Id. Plaintiffs do not specify if they are alleging an Equal 9 Protection, Procedural Due Process, or Substantive Due Process Claim. The legal standards for 10 these constitutional violations are stated above. See supra at p. 10–11. Plaintiffs have not 11 pleaded any factual content for this Court to draw the conclusion that not providing web site 12 notification of sex offenders violated Plaintiffs’ Fourteenth Amendment rights nor that the 13 alleged violations resulted from King County’s custom, practice, or policy.
14 Fourth, Plaintiffs state that King County violated Plaintiffs Addleman, Hansen, Stormfelt, 15 and/or McClintock’s Fourteenth Amendment equal protection and substantive due process rights, 16 by practice, custom, or policy. Dkt. # 38 at 8. Plaintiffs refer to several incidents including the 17 County’s failure to alert Plaintiffs of the “bagging” of several individuals, the inclusion of true 18 and “exact addresses” of Plaintiffs by the state and federal Clerks office, and the alleged use of a 19 “decoy Web Site to obtain ‘grant money’ funding issued by Congress to fake ‘public 20 notification’ while illegals financially supporting cartel ‘human trafficking,’ Child rape, 21 kidnapping, are not made to register and have address verified every ninety (90) days.” Id. The 22 legal standards for these constitutional violations are stated above. See supra at p. 10–11. 23 Plaintiffs have not pleaded any factual content for this Court to conclude that King County took 1 any action that resulted in the violation of Plaintiffs Equal Protection or Substantive Due Process 2 rights under the Fourteenth Amendment nor that it was King County’s custom, practice, or police 3 that led to this alleged violation. 4 Because Plaintiffs have failed to provide a “cognizable legal theory” and failed to allege
5 “sufficient facts” under a cognizable legal theory for any of their constitutional claims against 6 King County, they have not established liability against a government entity under Monell and 7 their claims against King County are DISMISSED. Monell, 436 U.S. at 694. 8 C. The Court need not Reach the Question of Qualified Immunity. 9 The King County Defendants state that Plaintiffs cannot state a claim against the 10 individual defendants because they are entitled to qualified immunity. Dkt. # 58 at 9. To 11 determine the validity of a qualified immunity claim, a court determines “whether the defendants 12 violated a constitutional right and whether the constitutional right was clearly established at the 13 time of the defendants’ actions.” Krainski v. Nevada ex rel. Bd. of Regents of Nevada Sys. of
14 Higher Educ., 616 F.3d 963, 969 (9th Cir. 2010). Because, here, the Court has determined that 15 Plaintiffs have failed to state a claim upon which relief can be granted for their various causes of 16 action against the individual King County defendants, we need not reach the question of 17 qualified immunity. E.g., O’Brien v. Welty, 818 F.3d 920, 936 (9th Cir. 2016) (“The district 18 court held that because defendants had not violated any of [Plaintiff’s] constitutional rights, they 19 were necessarily entitled to qualified immunity. The district court did not need to reach the 20 question of qualified immunity, given its conclusion that defendants had not violated the 21 Constitution.”). 22 D. The SAC is Dismissed with Prejudice for Failure to Abide by Court Order. The King County Defendants also assert that this Court should dismiss Plaintiffs’ SAC 23 for failure to abide by Rule 8(a). Dkt. # 58 at 3–4. Rule 8(a) requires a pleading stating a claim 1 for relief to include “a short and plain statement of the claim showing that the pleader is entitled 2 to relief[.]” While this Court has concluded above that dismissal is proper under Rule 12(b)(6) 3 for claims against the King County Defendants, the Court also reviews the SAC for failure to 4 abide by Rule 8(a) for all Defendants, including Defendants City of Burien and Barbara
5 Canfield. 6 Federal Rule of Civil Procedure 41(b) allows a district court to dismiss a complaint with 7 prejudice for failure to abide by Rule 8(a)’s requirements. See Hearns v. San Bernardino Police 8 Dept., 530 F.3d 1124, 1129 (9th Cir. 2008). To comply with Rule 8(a), Plaintiffs “must plead a 9 short and plain statement of the elements of [their] claim, ‘identifying the transaction or 10 occurrence giving rise to the claim and the elements of a prima facie case.’” Rodriguez v. 11 Northwest Tr. Services, Inc., No. C17-1627-RAJ, 2018 WL 317274, at *1 (W.D. Wash. Jan. 8, 12 2018) (quoting Bautista v. Los Angeles County, 216 F.3d 837, 840 (9th Cir. 2000)). Because 13 “[d]ismissal with prejudice of a complaint under Rule 41(b) is a harsh remedy,” this Court must
14 evaluate whether a less drastic alternative is available. McHenry v. Renne, 84 F.3d 1172, 1178 15 (9th Cir. 1996). Two considerations a court may take when considering dismissal are (1) 16 whether allowing plaintiffs to replead would be futile and (2) the strength of the plaintiff’s case. 17 Id.; Hearns, 530 F.3d at 1132. 18 This Court dismissed Plaintiffs’ original complaint, Dkt. # 26, and FAC, Dkt. # 37, 19 finding neither complaint met the requirements of Rule 8(a). Dkt. # 26 at 2–3, Dkt. # 37 at 2. 20 The Court granted leave to file a SAC, but advised Plaintiffs that the SAC would be the “final 21 opportunity to address their complaint’s deficiencies.” Dkt. # 37 at 4. Plaintiffs have an 22 obligation to clearly and concisely state which defendants are liable to which plaintiffs, for 23 which wrongs, and based on evidence. McHenry, 84 F.3d at 1178 (A complaint must include 1 “who is being sued, for what relief, and on what theory, with enough detail to guide discovery.”). 2 Even with the repleading done by Plaintiffs in their SAC, Plaintiffs do not state and support with 3 factual allegations what actions each defendant committed that caused the alleged constitutional 4 violation for each plaintiff. The SAC leaves defendants guessing which claims were brought
5 against them and what actions allegedly caused the constitutional violations. Given the multiple 6 opportunities granted to Plaintiffs to correct their pleading deficiencies, and lack of clarity in 7 Plaintiffs’ SAC, allowing Plaintiffs to replead for a third time appears futile. McHenry, 84 F.3d 8 at 1178; Hearns, 530 F.3d at 1132. 9 This Court has also found that the claims against the King County Defendants, as far as 10 this Court can discern them, fail to state a claim upon which relief can be granted. As discussed 11 above, those claims are dismissed. While this Court has not analyzed the claims under Rule 12 12(b)(6) for Defendants City of Burien and Barbara Canfield, because several claims dismissed 13 against the King County Defendants were also brought against City of Burien; it is unclear what
14 if any claims are brought against Defendant Barbara Canfield; and most of the claims brought by 15 Plaintiffs are dismissed under 12(b)(6), the weakness of Plaintiffs’ SAC supports dismissal under 16 Rule 41(b) for failure to abide by Rule 8(a). McHenry, 84 F.3d at 1178; Hearns, 530 F.3d at 17 1132. 18 For the reasons stated above, the Court DISMISSES Plaintiffs’ SAC, Dkt. # 38, with 19 prejudice. 20 V 21 CONCLUSION For the foregoing reasons, the Court DISMISSES Plaintiffs’ claims against the King 22 County Defendants for failure to state a claim upon which relief can be granted under Rule 23 1 || 12(b)(6). The Court also DISMISSES Plaintiffs’ SAC, Dkt. # 38, with prejudice for all 2 || Defendants for failure to abide by a court order under Rule 41(b). 3 , DATED 23” day of October, 2023.
5 4. Chur 6 JOHN H. CHUN UNITED STATES DISTRICT JUDGE
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ORDER GRANTING KING COUNTY DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(b)(6) (2:23-cv-00286-JHC) - 19