Faust v. Inslee

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 REBECCA FAUST, CASE NO. C20-5356 BHS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR LEAVE TO AMEND, DEFENDANTS’ 10 JAY INSLEE, Governor of the State of MOTION TO DISMISS, AND Washington; CHRIS LIU, Director of PLAINTIFF LEAVE TO AMEND 11 Enterprise Services, 12 Defendants. 13

This matter comes before the Court on Defendants Jay Inslee (“Inslee”) and Chris 14 Liu’s (“Liu”) (collectively “Defendants”) amended motion to dismiss, Dkt. 37, and 15 Plaintiff Rebecca Faust’s (“Faust”) motion to amend, Dkt. 38. 16 On May 28, 2020, Faust filed an amended complaint against Defendants alleging 17 that her constitutional rights have been violated by Inslee’s emergency proclamations and 18 Liu’s denial of her application to hold peaceful protests at the state capital. Dkt. 28-1. 19 On June 11, 2020, Defendants filed an amended motion to dismiss. Dkt. 37. On June 12, 20 2020, Faust filed a motion for leave to amend. Dkt. 38. On June 30, 2020, Defendants 21 responded to Faust’s motion, stated that they did not oppose the motion, and requested 22 1 that the Court consider Faust’s amended complaint when addressing their motion to 2 dismiss. Dkt. 39. Based on Defendants’ concession, the Court GRANTS Faust’s motion

3 for leave to amend and will consider her proposed amended complaint, Dkt. 38-2, as the 4 operative complaint. 5 On July 6, 2020, Faust responded to Defendants’ motion to dismiss. Dkt. 41. On 6 July 10, 2020, Defendants replied. Dkt. 45. 7 In this case, Defendants move to dismiss Faust’s amended complaint for lack of 8 jurisdiction and for failure to state a claim. Dkt. 37. The Court agrees with Defendants

9 on both issues. First, the Court lacks jurisdiction to consider the claims against Inslee 10 because he lacks the power to enforce any relevant portion of his proclamations. See 11 MacEwen v. Inslee, C20-5423 BHS, 2020 WL 4261323 (W.D. Wash. July 24, 2020). 12 The Court also lacks jurisdiction to consider claims for monetary relief against Liu 13 because the Eleventh Amendment prohibits “‘federal courts from hearing suits brought

14 by private citizens against state governments without the state’s consent.’” Id. at *1 15 (quoting Sofamor Danek Grp., Inc. v. Brown, 124 F.3d 1179, 1183 (9th Cir. 1997)). 16 Therefore, the Court grants Defendants’ motion as to Faust’s claims against Inslee and 17 Faust’s claims for monetary relief against Liu. 18 Second, it seems possible that Faust could maintain a claim for injunctive relief

19 against Liu under Ex parte Young, 209 U.S. 123 (1908). Faust alleges that Liu has a 20 direct connection to the denial of her permit to protest, which Faust alleges violates her 21 First Amendment rights. The problem, however, is that the complaint fails to clearly 22 articulate a claim for prospective relief. In other words, it is unclear whether Faust is 1 alleging injury based on purely past violations of her right to protest or whether she 2 intends to apply for future protests. Thus, the Court grants Defendants’ motion on this

3 claim because Faust fails to clearly state a claim upon which relief may be granted. Bell 4 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (To survive a motion to dismiss, the 5 complaint does not require detailed factual allegations but must provide the grounds for 6 entitlement to relief and not merely a “formulaic recitation” of the elements of a cause of 7 action.). 8 Finally, in the event the court finds that dismissal is warranted, the court should

9 grant the plaintiff leave to amend unless amendment would be futile. Eminence Capital, 10 LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Here, the Court is unable to 11 conclude that any amendment would be futile. Therefore, the Court grants Faust leave to 12 file an amended complaint. 13 In sum, the Court GRANTS Faust’s motion to amend, Dkt. 38, Defendants’

14 motion to dismiss, Dkt. 37, and Faust leave to file an amended complaint. Faust shall file 15 an amended complaint no later than August 28, 2020. Failure to timely file an amended 16 complaint or otherwise respond will result in dismissal. 17 IT IS SO ORDERED. 18 Dated this 19th day of August, 2020. A 19 20 BENJAMIN H. SETTLE 21 United States District Judge