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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE
9 10 JOSEPH CARTER, CASE NO. C21-1046JLR 11 Plaintiff, ORDER GRANTING v. DEFENDANTS’ MOTION TO 12 DISMISS JENNY A. DURKAN, et al., 13 Defendants. 14
15 I. INTRODUCTION 16 Before the court is Defendants Jenny A. Durkan, Adrian Diaz, Pete Holmes, 17 Officer John Marion, and Officer Jarod Stone’s (collectively, “Defendants”) motion to 18 dismiss pro se Plaintiff Joseph Carter’s complaint pursuant to Federal Rule of Civil 19 Procedure 12(b)(6). (MTD (Dkt. # 9); Reply (Dkt. # 15).) Mr. Carter opposes 20 Defendants’ motion. (Resp. (Dkt. # 14).1) The court has considered the motion, all 21
1 Although Mr. Carter’s response was filed four days late (see Resp.; 11/9/21 Order (Dkt. 22 # 12), the court finds that Mr. Carter’s failure to file his response by the prescribed deadline 1 submissions filed in support of and in opposition to the motion, the relevant portions of 2 the record, and the applicable law. Being fully advised,2 the court GRANTS Defendants’
3 motion. 4 II. BACKGROUND 5 Mr. Carter, who is proceeding pro se and in forma pauperis (see IFP Order (Dkt. 6 # 5)), filed a complaint against Defendants, which was docketed on August 16, 2021 (see 7 Compl. (Dkt. # 6)). His complaint alleges three claims under 42 U.S.C. § 1983: (1) false 8 imprisonment or false arrest3; (2) malicious prosecution; and (3) violation of due process.
9 (See Compl. at 3-7.4) Defendants include Seattle Police Department Officers Stone and 10 Marion, sued in their individual capacities, and the Chief of the Seattle Police 11 constitutes excusable neglect and will consider Mr. Carter’s response. See Fed. R. Civ. P. 12 6(b)(1)(B) (stating that a court may extend the time for filing a response where a party’s failure to meet a deadline was due to excusable neglect); see also Blaisdell v. Frappiea, 729 F.3d 1237, 13 1241 (9th Cir. 2013) (stating that a court must construe liberally a pro se plaintiff’s filings); Brophy v. JPMorgan Chase Bank, N.A., No. 2:14-CV-0411-TOR, 2015 WL 6511627, at *2 14 (E.D. Wash. Oct. 28, 2015) (“The Court construes Plaintiffs’ act of filing a late response as a request to consider their brief past the deadline.”). The court’s consideration of Mr. Carter’s response will not prejudice Defendants because Defendants had the opportunity to file a reply 15 that substantively addressed Mr. Carter’s response. See Brophy, 2015 WL 6511627, at *2 (finding “minimal prejudice” where the other party “was still afforded a chance to file a reply”). 16
2 Neither party requests oral argument (see Mot. at 1; Resp. at 1), and the court finds oral 17 argument unnecessary to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4).
18 3 Mr. Carter refers to the claim as one for false imprisonment, but he includes allegations that are more appropriately identified as a claim for false arrest. See Jacques v. Sharp, 922 P.2d 19 145 (1996) (noting that a false arrest occurs when a person with actual or apparent legal authority to arrest unlawfully restrains or imprisons another person). Because the two are inherently 20 intertwined, the court liberally construes Mr. Carter’s complaint as alleging both claims. Heckert v. City of Yakima, 708 P.2d 407, 407 (Wash. Ct. App. 1985) (“[A] false imprisonment occurs whenever a false arrest occurs . . . .”). 21
4 Unless otherwise indicated, the court uses the CM/ECF page numbers when citing to 22 the Mr. Carter’s complaint. 1 Department, the Mayor of Seattle, and the Seattle City Attorney, sued in their official 2 capacities.5 (See id. at 1-3.) Mr. Carter’s claims appear to stem from his interactions
3 with the Seattle Police Department and the Seattle City Attorney’s Office from sometime 4 before 2015 to 2019. (See id. at 3-7.) His factual allegations, however, are almost 5 entirely dedicated to his June 2015 arrest for criminal trespass. (See generally id. at 3-7.) 6 He begins by discussing his interactions with Officers Stone and Marion “prior to” and 7 during June 2015. (See id. at 5.) Mr. Carter alleges that those two officers have 8 “profile[d] and harass[ed] [him] every time they seen [sic] [him].” (See id.) He allegedly
9 filed a complaint with the “Seattle Office of Police Accountability” against the officers 10 for harassment and profiling. (See id.) Mr. Carter’s interactions with the officers 11 ultimately led to his arrest for criminal trespass on what he alleges to be June 15, 2015. 12 (Compare id., with Ex. A to Resp. (Dkt. # 9-1) (stating that “on or around June 20, 2015” 13 Mr. Carter was arrested for criminal trespass).) His claim of due process violations
14 appears to arise out of this incident, as well as his interactions with Officers Stone and 15 Marion prior to June 2015, which he alleges amounted to racial profiling and harassment 16 in violation of his constitutional rights. (See Compl. at 3-8.) 17 It is less clear, however, what incident(s) form the basis of Mr. Carter’s malicious 18 prosecution and false imprisonment or false arrest claims. (See generally id.) In
19 discussing his malicious prosecution claim, he states that he has been arrested for 20 criminal trespass seven times, “and to date 6 of them [have] been dismissed with 21
5 Mr. Carter’s complaint also references unnamed prosecutors and king county sheriff’s 22 officers. (See Compl. at 6-7.) 1 prejudice.” (See id. at 6-7.) He alleges that the “City of Seattle engaged in prosecution 2 even after the Judge” dismissed the other criminal trespass charges against him. (See id.)
3 Mr. Carter fails, however, to identify the timeframes of these seven prosecutions or the 4 specific prosecuting attorneys involved in these prosecutions. (See id. at 3-7 (alleging 5 earlier in his complaint that “Pete Holmes has willingly and knowingly” charged him 6 with criminal trespass).) Aside from his June 2015 arrest, the only other specific incident 7 that he mentions is his criminal trespass charge that was still pending in October 2019. 8 (See id. at 6-7.) As such, he appears to associate his malicious prosecution claim with
9 this 2019 criminal trespass prosecution and/or the criminal trespass prosecution stemming 10 from his June 2015 arrest. (See id.) Mr. Carter’s false imprisonment or false arrest claim 11 is similarly vague. (See id. at 7.) He alleges that “to date [he] ha[s] been arrest[ed] 4 12 times by these officers,” even after he has shown them proof that his case has been 13 dismissed with prejudice. (See id.) Mr. Carter again fails to identify the timeframes of
14 these four allegedly unlawful arrests or the specific arresting individuals involved in these 15 four arrests. (See id.) The only arrest that Mr. Carter addresses in his complaint is his 16 June 2015 criminal trespass arrest, as well as the arrest that presumably led to his 2019 17 criminal trespass prosecution. (See id. at 4-7.) Thus, he appears to associate his false 18 imprisonment or false arrest claim with the June 2015 criminal trespass arrest and/or the
19 criminal trespass arrest that led to his 2019 criminal prosecution. (See id.) 20 Defendants now move to dismiss Mr. Carter’s complaint pursuant to Federal Rule 21 of Civil Procedure 12(b)(6). (See MTD at 1.) 22 // 1 III. ANALYSIS 2 The court begins by setting forth the standard of review before turning to its
3 analysis of Defendants’ motion to dismiss. 4 A. Standard of Review 5 Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint for 6 “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To 7 survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted 8 as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
9 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A 10 claim is facially plausible “when the pleaded factual content allows the court to draw the 11 reasonable inference that the defendant is liable for the misconduct alleged.” Id. While 12 “detailed factual allegations” are not required, a complaint must include “more than an 13 unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. The court is not
14 required “to accept as true allegations that are merely conclusory, unwarranted 15 deductions of fact, or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 16 F.3d 979, 988 (9th Cir. 2001). Under Rule 12(b)(6), dismissal can be based on “the lack 17 of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable 18 legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).
19 Further, dismissal is proper on grounds that a claim is barred by the applicable statute of 20 limitations where the running of the limitations period is apparent on the face of the 21 complaint. See Jones v. Block, 549 U.S. 199, 215 (2007) (“If the allegations . . . show 22 that relief is barred by the applicable statute of limitations, the complaint is subject to 1 dismissal for failure to state a claim.”); Morales v. City of L.A., 214 F.3d 1151, 1153 (9th 2 Cir. 2000).
3 When considering a motion to dismiss under Rule 12(b)(6), the court construes the 4 complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. 5 Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept 6 all well-pleaded facts as true and draw all reasonable inferences in the plaintiff’s favor. 7 Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). The 8 court also liberally construes a complaint filed by a pro se litigant like Mr. Carter. See
9 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally 10 construed, and a pro se complaint, however inartfully pleaded, must be held to less 11 stringent standards than formal pleadings drafted by lawyers.” (citations omitted)). 12 However, “pro se litigants in the ordinary civil case should not be treated more favorably 13 than parties with attorneys of record,” Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir.
14 1986), and the court cannot supply essential facts that the pro se plaintiff has failed to 15 plead, Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). 16 B. Defendants’ Motion to Dismiss 17 Defendants argue that all of Mr. Carter’s claims are subject to dismissal under 18 Federal Rule of Civil Procedure 12(b)(6) because they are barred by the applicable statute
19 of limitations and any timely allegations fail to state a claim for relief. (See MTD at 4-9.) 20 The court begins by addressing the legal standard for Section 1983 claims before turning 21 to its analysis of each of Mr. Carter’s claims. 22 // 1 1. Legal Standard for Section 1983 Claims 2 Section 1983 creates a cause of action against a person who, acting under color of
3 state law, deprives another of rights guaranteed under the Constitution. See 42 U.S.C. 4 § 1983. To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must show: 5 (1) they suffered a violation of rights protected by the Constitution or created by federal 6 statute, and (2) the violation was proximately caused by a person acting under color of 7 state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). To satisfy the 8 second prong, a plaintiff must allege facts showing how individually named defendants
9 caused, or personally participated in causing, the harm alleged in the complaint. See Leer 10 v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988); Arnold v. IBM, 637 F.2d 1350, 1355 (9th 11 Cir. 1981); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). A person subjects 12 another to a deprivation of a constitutional right when committing an affirmative act, 13 participating in another’s affirmative act, or omitting to perform an act which is legally
14 required. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Vague and conclusory 15 allegations of participation in a civil rights violations are not sufficient to support a claim 16 under § 1983. Ivey v. Board of Regents, 673 F.2d 266 (9th Cir. 1982). 17 A defendant cannot be held liable solely on the basis of supervisory responsibility 18 or position. Monell v. N.Y.C. Dept. Soc. Servs., 436 U.S. 658, 694 n.58 (1978). Rather, a
19 plaintiff must allege that a defendant’s own conduct violated his civil rights. City of 20 Canton v. Harris, 489 U.S. 378, 385-90 (1989); Taylor v. List, 880 F.2d 1040, 1045 (9th 21 Cir. 1989) (“A supervisor is only liable for the constitutional violations 22 of . . . subordinates if the supervisor participated in or directed the violations, or knew of 1 the violations and failed to act to prevent them.”). Moreover, a municipality cannot be 2 liable under Section 1983 on a vicarious liability theory. Monell, 436 U.S. at 690-94.
3 Rather, liability only attaches where the municipality or policymaker causes the 4 constitutional violation through a “policy or custom, whether made by its lawmakers or 5 those whose edicts or acts may be fairly said to represent official policy.” Id. 6 2. Claim for False Imprisonment or False Arrest under Section 1983 7 Mr. Carter’s Section 1983 false imprisonment or false arrest claim alleges that he 8 was arrested four times by the “officers” and “King County Sheriff Officer [sic].” (See
9 Compl. at 7.) He claims that the “officers” violated his constitutional rights by arresting 10 him “even after [he] show[ed] them” proof that his “case” had been dismissed with 11 prejudice. (See id.) 12 a. Timeliness 13 Section 1983 provides a federal cause of action, but the limitations period in a
14 § 1983 suit is the same as that which the forum state provides for personal injury torts. 15 Wallace v. Kato, 549 U.S. 384, 387 (2007) (citing Owens v. Okure, 488 U.S. 235, 16 249-250 (1989) (holding that “where state law provides multiple statutes of limitations 17 for personal injury actions, courts considering § 1983 claims should borrow the general 18 or residual statute for personal injury actions.”)). In Washington State, the statute of
19 limitations for personal injury actions is three years, see RCW 4.16.080(2), and this 20 three-year period therefore applies to each of Mr. Carter’s § 1983 claims. See Hays v. 21 City of Spokane, No. C11-0010LRS, 2011 WL 4852311, at *2 (E.D. Wash. Oct. 13, 22 2011) (citing Robinson v. City of Seattle, 830 P.2d 318, 347 (Wash. 1992)); see also 1 Vardanyan v. Port of Seattle, No. C11-1224RSM, 2012 WL 1821212, at *3 (W.D. Wash. 2 May 17, 2012). Although the length of the statutory period is governed by state law, “the
3 accrual date of a § 1983 cause of action is a question of federal law that is not resolved by 4 reference to state law.” Wallace, 549 U.S. at 388. A civil rights claim accrues under 5 federal law “when the plaintiff knows or has reason to know of the injury that is the basis 6 of the action.” Belanus v. Clark, 796 F.3d 1021, 1025 (9th Cir. 2015). 7 The Supreme Court has expressly held “that the statute of limitations upon a 8 § 1983 claim seeking damages for a false arrest or false imprisonment in violation of the
9 Fourth Amendment, where the arrest is followed by criminal proceedings, begins to run 10 at the time the claimant becomes detained pursuant to legal process.” Wallace, 549 U.S. 11 at 397; see also id. at 389 (“[Because] false imprisonment consists of detention without 12 legal process, a false imprisonment [claim accrues] once the victim becomes held 13 pursuant to such process – when, for example, he is bound over by a magistrate or
14 arraigned on charges.”); West v. City of Mesa, 594 F. App’x 923, 924 (9th Cir. 2014) 15 (noting plaintiff’s false imprisonment claim accrued “when his detention was validated 16 by legal process”). 17 Within the section of his complaint dedicated to the false imprisonment claim, Mr. 18 Carter alleges that he was unlawfully arrested four times, but he does not specifically
19 identify the date of the allegedly unlawful arrests nor does he identify the officers 20 involved. (See Compl. at 7.) Earlier in his complaint, however, he states that Officers 21 Stone and Marion unlawfully arrested him in June 2015 for criminal trespass. (See id. at 22 5-6.) Thus, the court liberally construes Mr. Carter’s false imprisonment or false arrest 1 claim as arising out of his June 2015 arrest by Officers Stone and Marion. The court takes 2 judicial notice of the fact that Mr. Carter was arrested on June 20, 2015 for criminal
3 trespass and the criminal charge for that incident was filed on June 23, 2015. (See Ex. A 4 to Resp.); Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986) (stating 5 that a court may take judicial notice of “matters of public record” when considering a 6 12(b)(6) motion). Thus, the statute of limitations began to accrue on June 23, 2015, when 7 Mr. Carter became “detained pursuant to legal process.” Wallace, 549 U.S. at 397. 8 Accordingly, Mr. Carter’s claim for false imprisonment or false arrest is time-barred
9 because he filed the instant complaint more than three years after the limitations period 10 for his allegedly unlawful June 2015 arrest began to accrue. 11 Mr. Carter’s complaint, however, also references a criminal trespass charge that 12 was still pending in October 2019. This reference presumably refers to Mr. Carter’s 13 August 29, 2018 arrest for criminal trespass.6 (See Ex. C to Resp.) To the extent that Mr.
14 Carter meant to base this claim on his 2018 criminal trespass arrest, he must explicitly 15 state that. Mr. Carter’s false imprisonment or false arrest claim would not be time-barred 16 if it was based on his August 2018 arrest because Mr. Carter commenced this lawsuit on 17 August 16, 2021, before the three-year limitations period had run. (See generally 18 //
19 20 6 The court takes judicial notice of the fact that Mr. Carter was arrested for criminal trespass on August 29, 2018, was charged on June 18, 2019, and that the charge was dismissed 21 with prejudice on December 17, 2019. (See Ex. C to Resp. (Dkt. # 9-1); Ex. D to Resp. (Dkt. # 9-1)); Mack, 798 F.2d at 1282. 22 1 Compl.; Dkt.) As discussed below, however, Mr. Carter’s timely claim fails to state a 2 plausible claim for relief.
3 b. Failure to State a Claim 4 A claim for unlawful arrest or imprisonment “is cognizable under § 1983 as a 5 violation of the Fourth Amendment provided that the arrest was made without probable 6 cause or other justification.”7 See Dubner v. City and Cnty. of S.F., 266 F.3d 959, 964 7 (9th Cir. 2001); see also Owusu v. Bank of Am., N.A., No. C15-1606JLR-JPD, 2016 WL 8 4742487, at *3 (W.D. Wash. Aug. 9, 2016), report and recommendation adopted, No.
9 C15-1606JLR-JPD, 2016 WL 4761940 (W.D. Wash. Sept. 12, 2016); Borunda v. 10 Richmond, 885 F.2d 1384, 1391 (9th Cir.1988) (“[A]n arrest without probable cause 11 violates the Fourth Amendment and gives rise to a claim for damages under § 1983.”); 12 Baker, 443 U.S. at 142 (noting that when a detention occurs as the result of a false arrest 13 in violation of the Fourth Amendment, a false imprisonment claim also arises). Thus, in
14 order to prevail on § 1983 claims for false arrest and false imprisonment, a plaintiff “must 15 demonstrate that there was no probable cause to arrest him.” Cabrera v. City of 16 Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998); see also Kessack v. Wash. Dep’t of 17 Corr., No. C19-0423TOR, 2021 WL 2832948, at *7 (E.D. Wash. July 7, 2021). 18 “Probable cause to arrest exists when officers have knowledge or reasonably trustworthy
20 7 The loss of liberty caused by an individual’s mistaken incarceration “after the lapse of a certain amount of time” can also give rise to a claim under the Due Process Clause of the Fourteenth Amendment. Lee v. City of L.A., 250 F.3d 668, 683 (9th Cir. 2001) (citing Baker v. 21 McCollan, 443 U.S. 137, 145 (1979)); see also Reynolds v. Lewis Cty. Washington, No. C13- 6062BHS, 2015 WL 1538539, at *7 (W.D. Wash. Apr. 7, 2015), aff’d, 700 F. App’x 747 (9th 22 Cir. 2017) (discussing due process violations in the context of allegedly unlawful arrests). 1 information sufficient to lead a person of reasonable caution to believe that an offense has 2 been or is being committed by the person being arrested.” United States v. Lopez, 482
3 F.3d 1067, 1072 (9th Cir. 2007) (citing Beck v. Ohio, 379 U.S. 89, 91 (1964)). 4 Mr. Carter’s complaint is deficient as to this claim in a number of ways. First, he 5 fails to specify which of the named defendants, if any, were involved in his allegedly 6 unlawful 2018 arrest for criminal trespass. If he seeks to hold Officers Stone and Marion 7 liable for this claim, he must establish their personal involvement in the alleged 8 constitutional violation. See Leer, 844 F.2d at 633 (stating that a plaintiff in a Section
9 1983 action must allege facts showing how the named defendants caused, or personally 10 participated in causing, the harm alleged). Moreover, as discussed below, to the extent 11 Mr. Carter seeks to hold Mayor Durkan or Police Chief Diaz liable for this claim in their 12 official capacities, he must establish that, as policymakers, they caused the constitutional 13 violation through an official “policy or custom.” See infra Section III.B.5. Second, to
14 establish that he was unlawfully arrested in violation of his constitutional rights, Mr. 15 Carter must establish that he was arrested without probable cause. However, Mr. Carter’s 16 complaint only alleges that his arrest was unlawful because the officers arrested him 17 “even after [he] show[ed] them” proof that his “case” had been dismissed with prejudice. 18 (See Compl. at 7.) He implies, with no authority, that the dismissal of his other criminal
19 trespass charges preempted or invalidated his August 2018 criminal trespass arrest. (See 20 id.) The fact that his other criminal trespass charges had been dismissed with prejudice is 21 insufficient to establish that the “officers” lacked probable cause to arrest him for 22 criminal trespass in 2018. 1 In sum, to the extent that Mr. Carter’s false imprisonment or false arrest claim 2 arises from his June 2015 arrest, it is time-barred. And to the extent that Mr. Carter’s
3 claim arises from his August 2018 arrest, his complaint fails to state a plausible claim for 4 relief. Thus, the court GRANTS Defendants’ motion to dismiss Mr. Carter’s false 5 imprisonment or false arrest claim. 6 3. Claim for Malicious Prosecution under Section 1983 7 Mr. Carter’s malicious prosecution claim vaguely alleges that “the City of Seattle” 8 engaged in malicious prosecution when it again prosecuted him for criminal trespass after
9 the Judge dismissed the earlier cases against him. (See Compl. at 6-7 (noting that the 10 2015 criminal trespass charge was dismissed with prejudice in 2016); see also Ex. B to 11 Resp. (Dkt. # 9-1) (same).) He also alleges that, after he was arrested and incarcerated, 12 the “City of Seattle prosecutor” would not bring him before the court knowing “that they 13 were in violation of the judge order of dismissal with prejudice.” (See id.)
14 a. Timeliness 15 The Ninth Circuit has held that a claim for malicious prosecution does not accrue 16 until proceedings are terminated in favor of the accused, because that is an element of the 17 cause of action. Cline v. Brusett, 661 F.2d 108, 110 (9th Cir. 1981). It is unclear from 18 Mr. Carter’s complaint, however, when the alleged malicious prosecutions occurred or
19 who was involved. (See Compl. at 6-7.) While Mr. Carter alleges that he has been 20 arrested seven times for criminal trespass, and that six have been dismissed, the only 21 prosecution that Mr. Carter specifically mentions in his complaint is one for criminal 22 trespass that was still pending in October 2019. (See id. at 6-7.) The court takes judicial 1 notice of the fact that Mr. Carter was arrested for criminal trespass in August 2018, and 2 that the charge was dismissed with prejudice on December 17, 2019. (See Ex. C to
3 Resp.; Ex. D to Resp.); Mack, 798 F.2d at 1282. Thus, liberally construing Mr. Carter’s 4 complaint, he implies that Seattle City Attorney’s Office’s institution of legal 5 proceedings against him based on his 2018 criminal trespass arrest constituted a 6 malicious prosecution because his earlier criminal trespass charges was dismissed with 7 prejudice.8 (See Compl. at 6-7.) Because the three-year statute of limitations on Mr. 8 Carter’s claim for malicious prosecution arising out of the 2018 criminal trespass arrest
9 began to run on December 17, 2019, when the charge was dismissed, the court finds that 10 his malicious prosecution claim is not time-barred. As discussed below, however, the 11 court concludes that Mr. Carter’s timely malicious prosecution claim fails to state a 12 plausible claim for relief. 13 b. Failure to State a Claim
14 Generally, “a claim of malicious prosecution is not cognizable under 42 U.S.C. 15 § 1983 if process is available within the state judicial system to provide a remedy.” Bretz 16 v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985). An exception applies, however, and that 17 is where prosecution was undertaken for the purpose of denying a constitutional right. 18 Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). “In order to prevail on
19 a § 1983 claim of malicious prosecution, a plaintiff ‘must show that the defendants 20
8 To the extent that Mr. Carter bases this claim on the 2015/16 criminal trespass arrest 21 and prosecution, that claim is time-barred by the applicable three-year statute of limitations. See Hays, 2011 WL 4852311, at *2; (see also Ex. A to Resp.; Ex. B to Resp. (noting that the charge 22 was dismissed in March 2016)). 1 prosecuted him with malice and without probable cause, and that they did so for the 2 purpose of denying him equal protection or another specific constitutional right.’” Id.
3 (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)). Federal 4 courts rely on state common law for elements of malicious prosecution. Mills v. City of 5 Covina, 921 F.3d 1161, 1169 (9th Cir. 2019). To prevail on a claim for malicious 6 prosecution in Washington, a plaintiff must show that: 7 (1) the prosecution was instituted or continued by the defendant, (2) there was want of probable cause for the institution or continuation of the 8 proceeding, (3) the proceeding was instituted or continued through malice, (4) the proceeding was terminated on the merits in favor of the plaintiff or 9 was abandoned, and (5) plaintiff suffered injury as a result of the prosecution.
10 Bender v. City of Seattle, 664 P.2d 492, 500 (Wash. 1983). Accordingly, in addition to 11 having to make a showing on those five elements, a Washington plaintiff bringing a 12 § 1983 claim of malicious prosecution must show that the defendants prosecuted him for 13 the “purpose of denying him equal protection or another specific constitutional right.’” 14 Awabdy, 368 F.3d at 1066. 15 Mr. Carter’s claim fails to allege facts sufficient to state a claim for malicious 16 prosecution under Section 1983 for multiple reasons. First, Mr. Carter does not name the 17 prosecutor that pursued the allegedly unlawful charges in 2018/19, nor does he 18 specifically associate this claim with any of the named Defendants. (See generally 19 Compl.) Although he begins his complaint by stating that “City of Seattle Attorney Pete 20 Holmes has willingly and knowingly has [sic] charged [him] with criminal trespass after 21 [his] cases ha[ve] been dismissed with prejudice,” he does not allege why Seattle City 22 Attorney Holmes, who is sued in his official capacity, bears liability for this claim as a 1 policymaker. (See Compl. at 3.) As discussed below, to hold Seattle City Attorney 2 Holmes liable in his official capacity, Mr. Carter must allege facts sufficient to establish
3 that Seattle City Attorney Holmes caused the alleged constitutional violation through an 4 official “policy or custom.” See infra Section III.B.5. Second, the mere fact that his 5 other charges had been dismissed with prejudice is insufficient to establish that there was 6 a want of probable cause for the institution or continuation of the prosecution based on 7 his 2018 criminal trespass arrest, or that the proceedings were instituted or continued 8 through malice. (See Compl. at 6-7.) Thus, Mr. Carter fails to allege sufficient facts to
9 state a cognizable claim for malicious prosecution under Section 1983. 10 Accordingly, the court GRANTS Defendants’ motion to dismiss Mr. Carter’s 11 malicious prosecution claim. 12 4. Claim for Violation of Due Process under Section 1983 13 Mr. Carter alleges that Officers Stone and Marion violated his Fifth and
14 Fourteenth Amendment due process rights by, among other things, profiling him because 15 of his race, harassing him, and failing to follow department policies. (See Compl. at 6.) 16 He claims that his due process rights were violated in connection with his 2015 arrest for 17 criminal trespass and the Officers’ conduct prior to that arrest. (See id. at 5-6 (describing 18 the harassment and profiling prior to his June 2015 arrest).) Because Mr. Carter’s
19 complaint was not filed until August 16, 2021 (see Compl.), his § 1983 claim for 20 violation of due process is barred by the applicable three-year statute of limitations. The 21 court also finds that this claim fails as a matter of law because (1) the Fifth Amendment 22 Due Process Clause does not apply to actions by local law enforcement or government 1 officials, see Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008) (“[T]he Fifth 2 Amendment’s due process clause only applies to the federal government.”); and (2) Mr.
3 Carter fails to identify which of his substantive or procedural due process rights under the 4 Fourteenth Amendment were allegedly violated by Officers Stone and Marion, see, .e.g., 5 Reynolds, 2015 WL 1538539, at *6 (discussing Section 1983 due process claims related 6 to the plaintiff’s arrest). The court, therefore, GRANTS Defendants’ motion to dismiss 7 Mr. Carter’s claim for violation of due process. 8 5. Section 1983 Official-Capacity Claims Against Local Government Officials
9 Official-capacity suits filed against local government officials are merely an 10 alternative way of pleading an action against the entity of which the defendant is an 11 officer.9 See Hafer v. Mello, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473 U.S. 159, 12 165 (1985). Such officials are “persons” under section 1983, but only for purposes of 13 prospective injunctive relief, and only if the plaintiff establishes that a policy or custom
14 of the governmental entity of which the official is an agent was the moving force behind 15 the violation. See Hafer, 502 U.S. at 25; Graham, 473 U.S. at 166; Galen v. Cnty. of 16 L.A., 477 F.3d 652, 667 (9th Cir. 2007). Municipal liability based on an official policy 17 can be established where “the appropriate officer or entity promulgates a generally 18 applicable statement of policy and the subsequent act complained of is simply an
20 9 “Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law.” Graham, 473 U.S. at 166. “Official-capacity suits, in contrast, ‘generally represent only another way of pleading an action against an entity of which 21 an officer is an agent.’” Id. (quoting Monell, 436 U.S. at 690 n.55). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is . . . not a suit 22 against the official personally, for the real party in interest is the entity.” Id. 1 implementation of that policy.” Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 417 2 (1997). The ratification of a subordinate’s unconstitutional action by an official with
3 policymaking authority can also invite municipal liability. See City of St. Louis v. 4 Praprotnik, 485 U.S. 112, 126-28 (1988) (plurality opinion); Larez v. City of L.A., 946 5 F.2d 630, 646 (9th Cir.1991) (noting that a policymaker’s decision to “ma[ke], or ratif[y] 6 a decision that deprived plaintiffs of their constitutional rights would suffice for official 7 liability”); McRorie v. Shimoda, 795 F.2d 780, 784 (9th Cir. 1986) (stating that a policy 8 or custom may be inferred if, after the subordinate’s unconstitutional action, the
9 policymakers took no steps to reprimand or discharge the subordinates). Moreover, 10 liability can be established where a policymaker’s one-time decision to follow a specific 11 course of action causes the constitutional violation. Pembaur, 475 U.S. at 481 12 (“Municipal liability attaches only where the decisionmaker possesses final authority to 13 establish municipal policy with respect to the action ordered.”); see also Oklahoma City
14 v. Tuttle, 471 U.S. 808, 823 (1985) (stating that a “‘policy’ generally implies a course of 15 action consciously chosen from among various alternatives”). 16 In his complaint, Mr. Carter names Mayor Durkan, Chief Diaz, and Seattle City 17 Attorney Holmes, in their official capacities, as defendants in this action. While Mr. 18 Carter does not specifically identify which of his claims he is bringing against these
19 defendants, any claims against them are appropriately considered claims against their 20 respective local governmental entities. (See Compl.); see also Graham, 473 U.S. at 21 165-66; Streit v. Cnty. of L.A., 236 F.3d 552 (9th Cir. 2001). His complaint, however, is 22 devoid of any facts setting forth a “policy or custom” from each of their respective 1 offices that allegedly violated his constitutional rights. (See generally Compl.) He does 2 not, for example, allege these defendants had final decision-making authority on a certain
3 issue and promulgated or ratified specific policies that caused the alleged constitutional 4 violations. (See generally id.) Under Iqbal, the court finds Mr. Carter’s bare allegations 5 as to his claims against these three defendants to be insufficient to give fair notice and to 6 enable them to defend themselves effectively. See Little v. Gore, 148 F. Supp. 3d 936, 7 957 (S.D. Cal. 2015) (stating that, following Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), 8 [c]ourts in this circuit now generally dismiss claims that fail to identify the specific
9 content of the municipal entity’s alleged policy or custom”). Accordingly, if Mr. Carter 10 wishes to maintain his official capacity claims against Mayor Durkan, Chief Diaz, and 11 Seattle City Attorney Holmes for malicious prosecution and false imprisonment or false 12 arrest, he must identify a “policy or custom” from each of their respective offices that led 13 to the constitutional violations alleged within those claims. See Castro v. Cnty. of Los
14 Angeles, 833 F.3d 1060, 1073 (9th Cir. 2016) (en banc), cert. denied sub nom. L.A. Cnty. 15 v. Castro, 137 S. Ct. 831 (2017). 16 C. Leave to Amend 17 As a general rule, when a court grants a motion to dismiss, the court should 18 dismiss the complaint with leave to amend. See Eminence Capital, LLC v. Aspeon, Inc.,
19 316 F.3d 1048, 1051-52 (9th Cir. 2003) (citing Fed. R. Civ. P. 15(a)). In determining 20 whether dismissal without leave to amend is appropriate, courts consider such factors as 21 undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 22 cure deficiencies by amendments previously allowed, undue prejudice to the opposing 1 party by virtue of allowance of the amendment, and futility of amendment. Foman v. 2 Davis, 371 U.S. 178, 182 (1962). The Ninth Circuit has further instructed that a district
3 court should not dismiss a pro se complaint without leave to amend unless “it is 4 absolutely clear that the deficiencies of the complaint could not be cured by amendment.” 5 Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Schucker v. Rockwood, 6 846 F.2d 1202, 1203 (9th Cir. 1988)). 7 Because Mr. Carter’s due process claim, and his false imprisonment or false arrest 8 and malicious prosecution claims arising out of his 2015/16 criminal trespass arrest and
9 prosecution, are barred by the statute of limitations, any amendments as to these claims 10 would be futile. See Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1060 11 (9th Cir. 2008). Although Mr. Carter has failed to plausibly plead his malicious 12 prosecution and false arrest or false imprisonment claims arising out of his 2018/19 13 criminal trespass arrest and prosecution against Defendants, at present, the court cannot
14 conclude that “it is absolutely clear that the deficiencies of the complaint could not be 15 cured by amendment.” Id. Thus, the court GRANTS Mr. Carter leave to amend his 16 malicious prosecution and false imprisonment or false arrest claims arising out of his 17 2018/19 criminal trespass arrest and prosecution. If he intends to continue to pursue a 18 § 1983 civil rights action for such claims in this court, he must file an amended complaint
19 setting forth a short, plain statement telling the court: (1) the constitutional right he 20 believes was violated; (2) a specific description of the person who violated the right; (3) 21 when the violation occurred; (4) exactly what the individual did or failed to do; (5) how 22 the action or inaction of the individual is connected to the violation of his constitutional 1 rights; and (6) what specific injury he suffered because of the individual’s conduct. See 2 Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). Further, to the extent he wishes to
3 maintain official-capacity claims against Mayor Durkan, Chief Diaz, and Seattle City 4 Attorney Holmes for the actions of their subordinates, Mr. Carter’s amended complaint 5 must also identify the “policy or custom” that led to the alleged constitutional violations. 6 IV. CONCLUSION 7 For the foregoing reasons, the court: 8 1. GRANTS Defendants’ motion to dismiss (Dkt. # 9);
9 2. DISMISSES Mr. Carter’s due process claim under 42 U.S.C. § 1983 WITH 10 PREJUDICE and WITHOUT LEAVE TO AMEND; and 11 3. DISMISSES Mr. Carter’s claims for false arrest or false imprisonment and 12 malicious prosecution under 42 U.S.C. § 1983 against Defendants WITHOUT 13 PREJUDICE and WITH LEAVE TO AMEND. Mr. Carter may file an amended
14 complaint for false imprisonment or false arrest and malicious prosecution related to the 15 2018/19 criminal trespass arrest and prosecution that alleges specific facts that resolve the 16 issues stated above no later than 21 days from the date of this order. The court warns Mr. 17 Carter that failure to file an amended complaint that resolves the issues stated above 18 within that timeframe will result in dismissal of this case with prejudice.
19 // 20 // 21 // 22 // 1 Dated this 22nd day of December, 2021. 2 A 3 4 JAMES L. ROBART United States District Judge 5 6 7 8 9 10 11 12 13
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