Allen v. Washington State Department of Corrections

Opinion

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5 UNITED STATES DISTRICT COURT AT TACOMA 7 GREGORY ALLEN, CASE NO. C23-5746 BHS 8 Plaintiff, ORDER 9 v. DEPARTMENT OF CORRECTIONS, 11 Defendant. 12

13 This matter is before the Court on plaintiff Gregory Allen’s motion for 14 reconsideration, Dkt. 11, of the Court’s Order dismissing with prejudice Allen’s 42 15 U.S.C. § 1983 claim against the State of Washington, because the State is not a “person” 16 for purposes of § 1983. Dkt. 9 at 5. 17 Allen argues, as he did in opposing the State’s motion to dismiss, that Washington 18 deemed itself a “person” for § 1983 purposes when it waived its sovereign immunity: 19 The State of Washington has subjected itself and waived immunity under its own laws. 20

Washington’s Revised Code, Section 4.92.090 states that the State of 21 Washington “shall be liable for damages arising out of its tortious conduct to the same extent as if it were a private person.” This statute is “one of the 22 1 broadest waivers of sovereign immunity in the country” and makes the State presumptively liable for its alleged tortious conduct “in all instances 2 in which the Legislature has not indicated otherwise.” H.B.H. v. State, 429 P.3d 484, 497 (Wash. 2018) (quoting Savage v. State, 899 P.2d 1270 3 (Wash. 1995)) (internal quotation marks omitted).

4 Dkt. 11 at 2. Allen argues that Washington created a law holding itself out “to the same 5 extend as if it were a private person.” Id. at 3. Thus, he argues, Washington is also a 6 person for purposes of § 1983. He argues this is true notwithstanding the Supreme 7 Court’s holding in Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989), that 8 Michigan was not a person for purposes of § 1983. Allen argues that Michigan’s laws are 9 “not as broad” as are Washington’s. Dkt. 11 at 3. 10 This argument misapprehends the basis of the Court’s Order, and the reasoning 11 behind the overwhelming authority holding that, as a matter of federal law, a state is not a 12 person for purposes of 42 U.S.C. § 1983. 13 This conclusion does not depend on sovereign immunity or on the scope of any 14 state’s waiver of sovereign immunity. See Groten v. California, 251 F.3d 844, 851 (9th 15 Cir. 2001) (“We need not reach the sovereign immunity issue because the State is not a 16 “person” for purposes of § 1983[.]”). The United States Congress, not the Washington 17 Legislature, determines whether a state is “person” for purpose of 42 U.S.C. § 1983. Id. 18 (citing Sable Communications of California Inc. v. Pacific Tel. & Tel. Co., 890 F.2d 184,

19 191 (9th Cir.1989) (“the Supreme Court concluded that Congress did not intend states to 20 be subject to suit under Section 1983.”); see also Jenkins v. Washington, 46 F.Supp.3d 21 1110, 1114–15 (W.D. Wash. 2014) (“States, state agencies, and state officials sued in 22 their official capacity are not persons under § 1983.”). 1 Allen does not address these authorities, and his arguments are unpersuasive in 2 light of them. The claim that Washington is a person for purposes of § 1983, while

3 Michigan is not, does not make sense and would not be workable. 4 Allen cites no case holding that any state is a person for purposes of § 1983. He 5 cannot, because a state is not, as a matter of well-settled federal law. His motion for 6 reconsideration, Dkt. 11, is DENIED. 8 Dated this 16th day of October, 2023. A 9 10 BENJAMIN H. SETTLE 11 United States District Judge

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