1 3 2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Jul 16, 2020 4 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 DARIN FOSTER, 8 NO. 1:20-CV-03048-SAB 9 Plaintiff, 10 ORDER RE: DEFENDANTS’ v. MOTION TO DISMISS AND 11 PLAINTIFF’S CROSS- THE STATE OF WASHINGTON; THE 12 MOTION TO AMEND WASHINGTON STATE PATROL; and 13 JOHN BATISTE, in his official capacity only, 14 15 Defendants. 16 17 Before the Court are Defendants’ Motion to Dismiss, ECF No. 3, and 18 Plaintiff’s Cross-Motion to Amend Complaint, ECF No. 8. The motions were 19 considered without oral argument. Having reviewed the parties’ briefing and the 20 relevant caselaw, the Court grants in part and denies in part Defendants’ Motion to 21 Dismiss, and denies Plaintiff’s Cross-Motion for Leave to Amend. 22 FACTS 23 This case arises under the Uniform Services Employment and 24 Reemployment Rights Act, 38 U.S.C. § 4311(a)-(b), et. seq (USERRA), and the 25 Civil Rights Act, 42 U.S.C. § 1983. ECF No. 8-1. 26 Darin Foster is an honorably discharged veteran of the U.S. Air Force and a 27 current member of the Washington State Patrol. ECF No. 8-1 at 1:1, 7:24. During 28 the course of his employment, Plaintiff requested that Defendants apply veteran 1 preference points to the Patrol’s promotional examination process pursuant to state 2 law. ECF No. 8-1 at 4:6. Plaintiff alleges that Defendants did not initially award 3 him the veteran points to which he was entitled. ECF No. 8-1 at 5:10. When 4 Defendants eventually awarded Plaintiff veteran preference points, Plaintiff argues 5 they were attributed to the wrong date. Plaintiff believes this resulted in delayed 6 promotion and income loss. 7 Plaintiff initially brought suit under USERRA and § 1983 in Yakima County 8 Superior Court. In particular, Plaintiff alleged that Defendants violated his Fifth 9 Amendment right to property by depriving him of the proper application of his 10 veteran promotional points on the date that they should have been applied. Plaintiff 11 also argues that Defendants’ conduct was not objectively reasonable and that 12 Defendants acted arbitrarily by applying the veteran preference points to the wrong 13 date. Defendants removed the action to this Court on April 15, 2020. ECF No. 1. 14 In his initial Complaint, Plaintiff listed as Defendants the State of 15 Washington, the Washington State Patrol, and Chief John Batiste in his official 16 capacity only. Defendants subsequently moved for an order dismissing Plaintiff’s 17 § 1983 claims in their entirety, arguing that Defendants are not “persons” within 18 the meaning of the statute. In response and on a Cross-Motion to Amend, Plaintiff 19 conceded the named Defendants were not “persons” amenable to suit under § 20 1983. Plaintiff’s response memorandum claims that the proposed Amended 21 Complaint names Chief Batiste in his individual capacity only. However, 22 Plaintiff’s proposed caption names each original Defendant as a party to the suit 23 and continues to list Defendant Batiste as an official capacity defendant. 24 Defendants submitted a reply memorandum in support of their motion to dismiss. 25 RULE 12 (b)(6) STANDARD 26 On a motion to dismiss, all well-pleaded allegations of material fact are 27 taken as true and construed in a light most favorable to the non-moving party. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 28 1 1998). Under Federal Rule of Civil Procedure 12(b)(6), a complaint “should not be 2 dismissed unless it appears beyond doubt that [the] plaintiff can prove no set of 3 facts in support of his claim which would entitle him to relief.” Hydranautics v. 4 FilmTec Corp., 70 F.3d 533, 535-36 (9th Cir. 1995). 5 Federal Rule of Civil Procedure 8(a)(2) requires that each claim in a 6 pleading be supported by “a short and plain statement of the claim showing that the 7 pleader is entitled to relief.” To satisfy this requirement, a complaint must contain 8 sufficient factual content “to state a claim to relief that is plausible on its face.” 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Levit v. Yelp!, Inc., 10 765 F.3d 1123, 1135 (9th Cir. 2014) (requirements of notice pleading are met if 11 plaintiff makes a short and plain statement of their claims). A claim for relief is 12 plausible on its face “when the plaintiff pleads factual content that allows the court 13 to draw the reasonable inference that the defendant is liable for the misconduct 14 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating whether a 15 complaint states a plausible claim for relief, courts rely on “judicial experience and 16 common sense” to determine whether the factual allegations, which are assumed to 17 be true, “plausibly give rise to an entitlement to relief.” Id. at 679. 18 DEFENDANTS’ MOTION TO DISMISS 19 The first inquiry is whether states and state agency defendants are 20 susceptible to suit under 42 U.S.C. § 1983. The Eleventh Amendment bars actions 21 for equitable relief in a federal court by (1) a citizen against a state; and (2) a 22 citizen against a state official acting in his official capacity. Edelmann v. Jordan, 23 415 U.S. 651, 677-78 (1974); Quern v. Jordan, 440 U.S. 332, 337 (1979). 24 Likewise, § 1983 does not provide a federal forum for litigants who seek a remedy against a state for alleged deprivations of their civil liberties. 42 U.S.C. § 1983; see 25 Will v. Michigan Dep’t of State Police, 491 U.S. 58, 63 (1989). Plaintiff concedes 26 this point. ECF No. 8 at 1. Thus, dismissal of the claims against Defendants State 27 of Washington and the Washington State Patrol is proper. 28 1 However, neither the Eleventh Amendment nor § 1983 bar claims against 2 state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 27 (1991); 3 see also Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1125 (9th Cir. 4 2007). To succeed in bringing a personal capacity claim against a state employee 5 under § 1983, “a plaintiff must plead that each government-official defendant, 6 through the official's own individual actions, has violated the Constitution.” Iqbal, 7 556 U.S. at 675. 8 On its face, the caption of the Complaint raises claims against Defendant 9 Batiste only in his official capacity. As discussed above, the Eleventh Amendment 10 precludes such claims. However, the body of the Complaint alleges facts that 11 suggests personal capacity claims.
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1 3 2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Jul 16, 2020 4 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 DARIN FOSTER, 8 NO. 1:20-CV-03048-SAB 9 Plaintiff, 10 ORDER RE: DEFENDANTS’ v. MOTION TO DISMISS AND 11 PLAINTIFF’S CROSS- THE STATE OF WASHINGTON; THE 12 MOTION TO AMEND WASHINGTON STATE PATROL; and 13 JOHN BATISTE, in his official capacity only, 14 15 Defendants. 16 17 Before the Court are Defendants’ Motion to Dismiss, ECF No. 3, and 18 Plaintiff’s Cross-Motion to Amend Complaint, ECF No. 8. The motions were 19 considered without oral argument. Having reviewed the parties’ briefing and the 20 relevant caselaw, the Court grants in part and denies in part Defendants’ Motion to 21 Dismiss, and denies Plaintiff’s Cross-Motion for Leave to Amend. 22 FACTS 23 This case arises under the Uniform Services Employment and 24 Reemployment Rights Act, 38 U.S.C. § 4311(a)-(b), et. seq (USERRA), and the 25 Civil Rights Act, 42 U.S.C. § 1983. ECF No. 8-1. 26 Darin Foster is an honorably discharged veteran of the U.S. Air Force and a 27 current member of the Washington State Patrol. ECF No. 8-1 at 1:1, 7:24. During 28 the course of his employment, Plaintiff requested that Defendants apply veteran 1 preference points to the Patrol’s promotional examination process pursuant to state 2 law. ECF No. 8-1 at 4:6. Plaintiff alleges that Defendants did not initially award 3 him the veteran points to which he was entitled. ECF No. 8-1 at 5:10. When 4 Defendants eventually awarded Plaintiff veteran preference points, Plaintiff argues 5 they were attributed to the wrong date. Plaintiff believes this resulted in delayed 6 promotion and income loss. 7 Plaintiff initially brought suit under USERRA and § 1983 in Yakima County 8 Superior Court. In particular, Plaintiff alleged that Defendants violated his Fifth 9 Amendment right to property by depriving him of the proper application of his 10 veteran promotional points on the date that they should have been applied. Plaintiff 11 also argues that Defendants’ conduct was not objectively reasonable and that 12 Defendants acted arbitrarily by applying the veteran preference points to the wrong 13 date. Defendants removed the action to this Court on April 15, 2020. ECF No. 1. 14 In his initial Complaint, Plaintiff listed as Defendants the State of 15 Washington, the Washington State Patrol, and Chief John Batiste in his official 16 capacity only. Defendants subsequently moved for an order dismissing Plaintiff’s 17 § 1983 claims in their entirety, arguing that Defendants are not “persons” within 18 the meaning of the statute. In response and on a Cross-Motion to Amend, Plaintiff 19 conceded the named Defendants were not “persons” amenable to suit under § 20 1983. Plaintiff’s response memorandum claims that the proposed Amended 21 Complaint names Chief Batiste in his individual capacity only. However, 22 Plaintiff’s proposed caption names each original Defendant as a party to the suit 23 and continues to list Defendant Batiste as an official capacity defendant. 24 Defendants submitted a reply memorandum in support of their motion to dismiss. 25 RULE 12 (b)(6) STANDARD 26 On a motion to dismiss, all well-pleaded allegations of material fact are 27 taken as true and construed in a light most favorable to the non-moving party. Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 28 1 1998). Under Federal Rule of Civil Procedure 12(b)(6), a complaint “should not be 2 dismissed unless it appears beyond doubt that [the] plaintiff can prove no set of 3 facts in support of his claim which would entitle him to relief.” Hydranautics v. 4 FilmTec Corp., 70 F.3d 533, 535-36 (9th Cir. 1995). 5 Federal Rule of Civil Procedure 8(a)(2) requires that each claim in a 6 pleading be supported by “a short and plain statement of the claim showing that the 7 pleader is entitled to relief.” To satisfy this requirement, a complaint must contain 8 sufficient factual content “to state a claim to relief that is plausible on its face.” 9 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Levit v. Yelp!, Inc., 10 765 F.3d 1123, 1135 (9th Cir. 2014) (requirements of notice pleading are met if 11 plaintiff makes a short and plain statement of their claims). A claim for relief is 12 plausible on its face “when the plaintiff pleads factual content that allows the court 13 to draw the reasonable inference that the defendant is liable for the misconduct 14 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In evaluating whether a 15 complaint states a plausible claim for relief, courts rely on “judicial experience and 16 common sense” to determine whether the factual allegations, which are assumed to 17 be true, “plausibly give rise to an entitlement to relief.” Id. at 679. 18 DEFENDANTS’ MOTION TO DISMISS 19 The first inquiry is whether states and state agency defendants are 20 susceptible to suit under 42 U.S.C. § 1983. The Eleventh Amendment bars actions 21 for equitable relief in a federal court by (1) a citizen against a state; and (2) a 22 citizen against a state official acting in his official capacity. Edelmann v. Jordan, 23 415 U.S. 651, 677-78 (1974); Quern v. Jordan, 440 U.S. 332, 337 (1979). 24 Likewise, § 1983 does not provide a federal forum for litigants who seek a remedy against a state for alleged deprivations of their civil liberties. 42 U.S.C. § 1983; see 25 Will v. Michigan Dep’t of State Police, 491 U.S. 58, 63 (1989). Plaintiff concedes 26 this point. ECF No. 8 at 1. Thus, dismissal of the claims against Defendants State 27 of Washington and the Washington State Patrol is proper. 28 1 However, neither the Eleventh Amendment nor § 1983 bar claims against 2 state officials in their personal capacities. Hafer v. Melo, 502 U.S. 21, 27 (1991); 3 see also Stoner v. Santa Clara Cty. Office of Educ., 502 F.3d 1116, 1125 (9th Cir. 4 2007). To succeed in bringing a personal capacity claim against a state employee 5 under § 1983, “a plaintiff must plead that each government-official defendant, 6 through the official's own individual actions, has violated the Constitution.” Iqbal, 7 556 U.S. at 675. 8 On its face, the caption of the Complaint raises claims against Defendant 9 Batiste only in his official capacity. As discussed above, the Eleventh Amendment 10 precludes such claims. However, the body of the Complaint alleges facts that 11 suggests personal capacity claims. Thus, the question is whether the Complaint 12 adequately pleads a claim that Defendant Batiste in his personal capacity (1) 13 violated Plaintiff’s Fifth Amendment right to property; and (2) further engaged in 14 conduct that was not objectively reasonable. 15 Plaintiff alleges that Defendant Batiste violated his Fifth Amendment right 16 to property by depriving him of the proper application of his veteran promotional 17 points on the date that they should have been applied. Plaintiff’s assertion that 18 Batiste personally maintained a role in denying, delaying, or curtailing the amount 19 of employees’ available veteran points is an adequate factual hook from which this 20 Court can infer possible liability. Therefore, dismissal of the claim against 21 Defendant Batiste in his personal capacity only—as referenced in the body of 22 Plaintiff’s original Complaint—is improper. 23 PLAINTIFF’S CROSS-MOTION TO AMEND COMPLAINT 24 The Court next considers Plaintiff’s Cross-Motion to Amend Complaint, 25 ECF No. 8. Although Plaintiff has not formally moved to amend, the Court 26 construes Plaintiff’s response to the Motion to Dismiss as a Cross-Motion to Amend his complaint. Ultimately, the Court must decide whether Plaintiff’s 27 motion will succeed on procedural grounds. Local Rule 7(i)(2)(A) requires the 28 1 hearing for a non-dispositive motion to occur at least 30 days after the motion’s 2 filing. Plaintiff’s proposed Amended Complaint was noted without hearing on June 3 18, 2020. Plaintiff executed the document on May 31. ECF No. 8-1 at 12. 4 Although Local Civil Rule 7(c)(2)(B) permits represented parties 14 days to 5 respond to a non-dispositive motion, Plaintiff’s error shortens Defendants’ 6 response time to a seven-day window. See ECF No. 7. This seven-day window 7 expired on June 8, seven days after Plaintiff filed his Motion to Amend. See ECF 8 No. 7; ECF No. 8. 9 Although Rule 15 liberally allows parties leave to amend, Plaintiff’s motion 10 must still be absent any evidence of bad faith, undue delay, or undue prejudice to 11 Defendants. A shortened response time unduly prejudices Defendants as they were 12 denied an opportunity to present facts or evidence which would have been offered 13 had Plaintiff’s motion complied with Local Rule 7(i)(2)(A). Thus, Plaintiff’s cross- 14 motion to amend is denied as untimely. Additionally, it is unclear how the 15 proposed amendment modified the claims from Plaintiff’s original Complaint. 16 Accordingly, IT IS HEREBY ORDERED: 17 1. The Defendants’ Rule 12(b)(6) Motion to Dismiss, ECF No. 3, is 18 GRANTED IN PART and DENIED IN PART. 19 2. Plaintiff’s 42 U.S.C. § 1983 claims against the State of Washington, the 20 Washington State Patrol, and Chief John Batiste in his official capacity 21 are DISMISSED WITH PREJUDICE. 22 // 23 // 24 // 25 // 26 // 27 // 28 1 3. Plaintiff's Cross-Motion to Amend their Complaint, ECF No. 8, is DENIED with leave to renew. Any subsequent motions to amend must 3 comply with local and federal rules of procedure. IT IS SO ORDERED. The District Court Executive is hereby directed to 5|| file this Order and provide copies to counsel. DATED this 16th day of July 2020. 7 © 9 ‘ Sock yl Sect □ Stanley A. Bastian 3 United States District Judge l 15 1 17 18 19 2 21 2 23 2 25 2 27 28 ORDER RE: DEFENDANTS’ MOTION TO DISMISS AND PLAINTIFF’S ODACE LATION TA ANTURTN A Cc