Ewing v. City of Sedro Woolley

Opinion

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3 4 5 UNITED STATES DISTRICT COURT AT SEATTLE 7 KEVIN S. EWING, CASE NO. 2:24-cv-01307-JNW 8 Plaintiff, ORDER 9 v. 10 CITY OF SEDRO WOOLLEY; BROCK 11 D. STILES; JAMES M. ZACHOR; HEATHER SHAND; KEVIN L. 12 ROGERSON; DOES 1-10,

13 Defendants. 14 1. INTRODUCTION 15 This matter comes before the Court on pro se Plaintiff Kevin S. Ewing’s 16 Emergency Motion for Recusal and Stay of Proceedings, Dkt. No. 9; Emergency 17 Motion to Void Coerced Scheduling Order and Renewed Objection to Jurisdiction, 18 Dkt. No. 10; and Petition for Writ of Mandamus, Dkt. No. 11. The Court construes 19 these filings as emergency motions for a temporary restraining order or preliminary 20 injunction, governed by Rule 65 of the Federal Rules of Civil Procedure. See Dkt. 21 No. 13 at 1-2. Because Ewing fails to establish a likelihood of success on the merits, 22 the Court DENIES Ewing’s requests for relief. 23 1 2. FINDINGS OF FACT1 2 On October 12, 2023, Sedro-Woolley Police Officers arrested Kevin Ewing and

3 charged him with driving under the influence (RCW 46.61.502), hit and run (RCW 4 46.52.010.2), and reckless endangerment (RCW 9A.36.050). See Dkt. Nos. 4 at 5, 19 5 at 4-6. The facts surrounding this arrest are in dispute.2 6 Ewing claims that he was arrested despite “[n]o observation of driving by any 7 witness,” “[n]o evidence connecting him to operation of any vehicle,” “[k]eys found 8 belonging to a different vehicle entirely,” “[o]nly two glasses of wine consumed over

9 less than an hour,” and “[w]itness testimony suggesting possible drink tampering.” 10 Dkt. No. 4 at 5. Ewing alleges that, after his arrest, Defendants “failed to read [him] 11 his Miranda rights,” falsely imprisoned him without probable cause or a warrant, 12 and “drew blood from [him] without his consent or a valid warrant.” Id. at 20. 13 Defendants counter that before Ewing’s arrest, “multiple witnesses observed 14 and reported a vehicle driven by [Ewing] driving erratically, striking road signs, 15 and nearly hitting a flagger.” Dkt. No. 18. According to Defendants, “Sedro-Woolley

16 police officers responded to the scene, observed [Ewing’s] slurred speech and odor of 17 1 Findings of fact and conclusions of law made in connection with a temporary 18 restraining order are not binding adjudications. Hordphag Rsch. Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007). The Court may come to different, perhaps even 19 opposite, conclusions as the case advances.

20 2 The evidentiary record before the Court is threadbare. Ewing offers no sworn testimony or other evidence to support most of the factual claims in his pleadings. 21 Thus, his factual assertions are largely unsubstantiated. Defendants offer only a copy of the arresting officer’s affidavit and citation from state court, Dkt. No. 19, 22 and a state-court order finding probable cause, Dkt. No. 20. To the extent these documents are offered as hearsay evidence to prove the truth of the matter asserted, 23 the Court is skeptical of their probative value. 1 intoxicants, spoke with witnesses, and arrested [Ewing] for DUI.” Dkt. No. 19 at 2. 2 Defendants claim that “[Ewing] declined a breath test, and the officers then applied

3 for and were granted a warrant for a blood draw.” Id. 4 At least three state judicial officials—all of whom Ewing has named as 5 Defendants in this case—have presided over aspects of Ewing’s state-court criminal 6 proceedings following the arrest: Defendant Judge Brock Stiles, who has presided 7 over most of the case, see Dkt. Nos. 4, 18; Defendant Commissioner Heather Shand, 8 who authorized the blood draw after Ewing’s arrest, see Dkt. No. 16; and Defendant

9 Judge Pro Tem Kevin L. Rogerson, who presided over one hearing, see Dkt. No. 18- 10 3. Ewing asserts that none of these officials “filed the required Oaths of Office or 11 Bonds prior to these proceedings.” Dkt. No. 4 at 6.3 On this basis, Ewing asserts 12 that they lack authority to adjudicate his case. Ewing alleges that on multiple 13 dates, he has appeared in state court solely to contest jurisdiction; and Defendants, 14 he asserts, “[i]gnored [his] jurisdictional challenge,” “[c]ontinued proceedings 15 without establishing jurisdiction,” “[threatened [him] with sanctions for non-

16 appearance,” “[f]ailed to provide copies of orders and notices,” and “denied access to 17 court records.” Dkt. No. 11 at 3. At one of these appearances, Ewing alleges that 18 Judge Stiles compelled him to sign a scheduling order “under explicit threat, as 19 evidenced by the judge’s prior issuance of a $100,000 warrant against Plaintiff.” 20 Dkt. No. 10. Ewing alleges that Defendant Judge Brock Stiles, “in retaliation for 21

22 3 Ewing appears to derive this claim from his October 24, 2024, visit to the Skagit County Clerk’s and Auditor’s Offices, where no one was “willing to give [him] a 23 Document to verify… the Bonds and or Oaths” of these officials. Dkt. No. 4-1 at 1. 1 Plaintiff’s lawful filings and without proper cause, issued two bench warrants for 2 $100,000 each when Plaintiff did not appear [in court] in person” and “refused to

3 recuse himself despite [a] clear conflict of interest” stemming from Ewing’s status as 4 a witness in a case involving Judge Stiles’s brother. Id. Ewing alleges that, “[a]s a 5 direct result of Defendant Brock Stiles’ actions and the unlawful proceedings 6 against Plaintiff, the State of Washington has initiated proceedings to suspend 7 Plaintiff’s Commercial Driver’s License,” which “will deprive Plaintiff of his primary 8 means of earning a living as a commercial truck driver.” Id. at 21.

9 On August 21, 2024, with his criminal case pending in state court, Ewing 10 filed this lawsuit alleging various federal civil rights claims for declaratory, 11 injunctive, and monetary relief against Defendants City of Sedro-Woolley, Judge 12 Stiles, attorney James Zachor (the prosecutor on Ewing’s criminal case), and a 13 Sedro-Woolley police officer. Dkt. No. 1. On November 7, Ewing filed an amended 14 Complaint removing the police officer and adding Commissioner Shand and Judge 15 Pro Tem Rogerson as defendants. Dkt. No. 4. On November 18, Ewing filed the

16 instant motions seeking injunctive relief staying all proceedings in his criminal 17 case, ordering Judge Stiles to recuse himself, voiding the state-court scheduling 18 order allegedly signed under duress, and requiring the City Defendants to establish 19 jurisdiction before proceeding with Ewing’s criminal prosecution. Dkt. Nos. 9, 10, 20 11. 21

22 23 1 3. CONCLUSIONS OF LAW 2 3.1 Legal Standard. 3 Temporary restraining orders and preliminary injunctions are “extraordinary 4 remed[ies] that may only be awarded upon a clear showing that the plaintiff is 5 entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). 6 “[A] plaintiff seeking a preliminary injunction must make a clear showing that 7 ‘[they are] likely to succeed on the merits, that [they are] likely to suffer irreparable 8 harm in the absence of preliminary relief, that the balance of equities tips in [their] 9 favor, and that an injunction is in the public interest.’” Starbucks Corp. v. 10 McKinney, 144 S. Ct. 1570, 1576 (2024) (quoting Winter, 555 U.S. at 20). These four 11 elements—the Winter factors—apply whenever a preliminary injunction is sought. 12 Winter, 555 U.S. at 20. To obtain relief, a plaintiff must “make a showing on all four 13 prongs.” All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135. (9th Cir. 2011). 14 The first Winter factor, “[l]ikelihood of success on the merits[,] is the most important 15 factor[.]” Edge v. City of Everett, 929 F.3d 657, 663 (9th Cir. 2019). 16 Injunctive relief can take two forms: prohibitory and mandatory. “A 17 prohibitory injunction prohibits a party from taking action,” while “[a] mandatory 18 injunction orders a responsible party to take action.” Marlyn Nutraceuticals, Inc. v. 19 Mucos Pharma GmbH & Co., 571 F.3d 873, 878-79 (9th Cir. 2009) (internal 20 quotation marks omitted). Ewing requests an injunction affirmatively compelling 21 Defendants to stay and modify ongoing state-court criminal proceedings. The Court 22 construes this as a request for a mandatory injunction; therefore, Ewing “must 23 1 establish that the law and facts clearly favor [his] position, not simply that [he] is 2 likely to succeed.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015). Courts

3 do not issue mandatory injunctions in “doubtful cases.” Id. (quoting Park Vill. 4 Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1160 (9th 5 Cir.2011)); see also Hernandez v. Sessions, 872 F.3d 976, 999 (9th Cir. 2017) 6 (quoting Marlyn Nutraceuticals, 571 F.3d at 879) (“Mandatory injunctions, while 7 subject to a higher standard than prohibitory injunctions, are permissible when 8 ‘extreme or very serious damage will result’ that is not ‘capable of compensation in

9 damages,’ and the merits of the case are not ‘doubtful.’”). 10 3.2 Ewing fails to demonstrate a likelihood of success on the merits. 11 Defendants argue that Ewing has failed to demonstrate a likelihood of 12 success on the merits because his claims are barred by Younger v. Harris, 401 U.S. 13 37 (1971). Dkt. Nos. 16; 18 at 4-8. The Court agrees. 14 Under the Younger abstention doctrine, federal courts will not interfere 15 where “(1) there is ‘an ongoing state judicial proceeding’; (2) the proceeding 16 ‘implicate[s] important state interests’; (3) there is ‘an adequate opportunity in the 17 state proceedings to raise constitutional challenges’; and (4) the requested relief 18 ‘seek[s] to enjoin’ or has ‘the practical effect of enjoining’ the ongoing state judicial 19 proceeding.” Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018) (quoting 20 ReadyLink Healthcare, Inc. v. State Comp. Ins. Fund, 754 F.3d 754, 758 (9th Cir. 21 2014)). Where there is bad faith, harassment, or some other circumstance that 22 23 1 would make abstention inappropriate, Younger does not apply. Middlesex Cnty. 2 Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 435 (1982).

3 Here, the Court concludes that all four requirements for Younger abstention 4 are met. First, there is an ongoing state judicial proceeding in which Ewing faces 5 criminal charges, as discussed above. See Dkt. No. 18-3 (showing pending case as of 6 August 2024). Second, Ewing does not contest the importance of the state’s interest 7 in criminal law enforcement. See Gilbertson v. Albright, 381 F.3d 965, 977 (9th Cir. 8 2004) (“[J]udicial proceedings or disciplinary proceedings which are judicial in

9 nature are the type of proceeding that does implicate an important state interest.”) 10 Third, Ewing can raise his challenges in state court. See generally Hirsh v. Justices 11 of Supreme Court of State of Cal., 67 F.3d 708, 713 (9th Cir. 1995) (discussing this 12 Younger factor); Washington Criminal Rules for Courts of Limited Jurisdiction 13 (CrRLJ) 3.5 (establishing procedure for challenging admissibility of statements in 14 municipal courts); CrRLJ 3.6 (establishing procedure for suppression of evidence in 15 municipal courts); Wash. Const., Art. 1, §22 (guaranteeing “right to appeal in all

16 [criminal] cases”); Washington State Court Rules for Appeal of Decisions of Courts 17 of Limited Jurisdiction 2.2(a); Washington State Court Rules of Appellate Procedure 18 2.2(a); Green Mountain Sch. Dist. No. 103 v. Durkee, 351 P.2d 525, 529 (1960) (“The 19 proper and exclusive method of determining the right to public office is under the 20 quo warranto statute,” chapter 7.56 RCW). And fourth, the requested relief, on its 21 face, seeks to enjoin a state judicial proceeding.

22 Nor does Ewing demonstrate a likelihood of establishing an exception to 23 Younger abstention. Ewing points out that “exceptions [to Younger abstention] exist 1 where state proceedings are conducted in bad faith or with the purpose to harass.” 2 Dkt. No. 9 at 3 (citing Younger). But Ewing offers no evidence that Defendants are

3 prosecuting or adjudicating his criminal proceeding in bad faith or with malicious 4 intent. Thus, this Court finds no reason to depart from Younger. 5 4. CONCLUSION 6 Ewing seeks preliminary injunctive relief enjoining ongoing state criminal 7 proceedings. Because Younger abstention prohibits such relief, the Court finds that 8 Ewing has failed to establish a likelihood of success on the merits. Therefore, the

9 Court DENIES Ewing’s motions for emergency relief. Dkt. Nos. 9, 10, 11. 10 It is so ORDERED. 11 Dated this 26th day of November, 2024. 12 a Jamal N. Whitehead 13 United States District Judge 14 15 16 17 18 19 20 21 22 23