4 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE
6 HENRY JAMES, 7 CASE NO. 2:23-cv-00212-RSL Plaintiff, 8 v. 9 ORDER GRANTING DEFENDANTS’ MOTIONS FOR ASIAN FAMILY MARKET, et al., SUMMARY JUDGMENT (DKT. # 33 10 AND DKT. # 35) Defendants. 11
12 This matter comes before the Court on the motions for summary judgment filed by 13 14 defendants Asian Family Market, Maddox Chung, and Kivon Taylor. Dkt. # 33 and Dkt. 15 # 35. The motions were filed on July 20, 2023, but their consideration was continued three 16 times in order to allow plaintiff to pursue discovery regarding his claim that the moving 17 defendants were state actors for purposes of a claim under 42 U.S.C. § 1983. Having 18 19 reviewed the memoranda, declarations, and exhibits submitted by the parties,1 the Court 20 finds as follows: 21
22 1 Plaintiff provided neither a declaration nor exhibits in opposition to the motions for summary judgment. Because 23 he is proceeding pro se, the Court has considered the non-conclusory factual assertions in his opposition as if they were made under penalty of perjury on the assumption that the defect could be corrected at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the summary judgment stage, we do not focus on the admissibility of the 24 evidence’s form. We instead focus on the admissibility of its contents.”) (citations omitted). 25
ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 A. Background 2 Plaintiff asserts claims under Section 1983 for violations of his First, Fourth, and/or 3 Fourteenth Amendment rights by the Asian Family Market and two of its employees. 4 5 Defendant Maddox Chung is the manager of Asian Family Market’s stores, one in Seattle 6 and one in Bellevue. Defendant Kivon Taylor is employed by Asian Family Market to 7 provide security at its Bellevue store. 8 On or about January 25, 2023, plaintiff was leaving the Asian Family Market store 9 10 in Bellevue when Mr. Taylor stopped and detained him for shoplifting. It is undisputed that 11 plaintiff had placed packages of beef tongue in his backpack and left the store without 12 paying for them. Taylor called the Bellevue Police Department, and the responding officer 13 took a statement from Mr. Taylor and questioned plaintiff before arresting him. Plaintiff 14 15 was charged the next day with Theft – Third Degree. Plaintiff asserts that Mr. Taylor used 16 excessive force when handcuffing him (Dkt. # 92 at ¶ 8) and that Mr. Taylor caused the 17 responding officer to double handcuff plaintiff (resulting in further pain and injury) and to 18 charge plaintiff with Theft – Third Degree (Dkt. # 92 at ¶¶ 13 and 18). 19 The Asian Family Market has adopted the Seattle Police Department’s Retail Theft 20 21 Program as a guide for its security officers, and Mr. Taylor acted in accordance with the 22 policies and procedures set forth therein on January 25, 2023. Dkt. # 34 at ¶ 4; Dkt. # 36 at 23 ¶ 15. The Retail Theft Program creates a reporting procedure that enables store security 24 personnel to inform the Seattle Police Department of detainments made for theft and/or 25 26 criminal trespass and “is for use within the Seattle city-limits only.” Id. The Program “does ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 not grant any special police commissions,” and security agents who participate in the 2 program “are not given enhanced arrest powers nor are they transferred authority to issue 3 criminal citations.” Dkt. # 34-1 at 3. The Asian Family Market uses the Retail Theft 4 5 Program to train its security guards at both its Seattle and Bellevue stores and to guide 6 their responses to theft and trespass. Dkt. # 34 at ¶ 4; Dkt. # 36 at ¶ 3. 7 B. Standard of Review 8 Summary judgment is appropriate when, viewing the facts in the light most 9 10 favorable to the nonmoving party, there is no genuine issue of material fact that would 11 preclude the entry of judgment as a matter of law. The party seeking summary dismissal of 12 the case “bears the initial responsibility of informing the district court of the basis for its 13 motion” (Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts 14 15 of materials in the record” that show the absence of a genuine issue of material fact (Fed. 16 R. Civ. P. 56(c)). Once the moving party has satisfied its burden, it is entitled to summary 17 judgment if the non-moving party fails to designate “specific facts showing that there is a 18 genuine issue for trial.” Celotex Corp., 477 U.S. at 324. The Court will “view the evidence 19 in the light most favorable to the nonmoving party . . . and draw all reasonable inferences 20 21 in that party’s favor.” Colony Cove Props., LLC v. City of Carson, 888 F.3d 445, 450 (9th 22 Cir. 2018). Although the Court must reserve for the trier of fact genuine issues regarding 23 credibility, the weight of the evidence, and legitimate inferences, the “mere existence of a 24 scintilla of evidence in support of the non-moving party’s position will be insufficient” to 25 26 avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose 2 resolution would not affect the outcome of the suit are irrelevant to the consideration of a 3 motion for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 4 5 2014). In other words, summary judgment should be granted where the nonmoving party 6 fails to offer evidence from which a reasonable fact finder could return a verdict in its 7 favor. Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 8 C. Discussion 9 10 To survive a motion for summary dismissal of his § 1983 claims against Asian 11 Family Market, Mr. Chung, and Mr. Taylor, plaintiff must provide evidence from which a 12 reasonably jury could conclude (1) that he was deprived of a right secured by the 13 Constitution and laws of the United States, and (2) that the deprivation was committed by a 14 15 person acting under color of state law. Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 16 1143, 1149 (9th Cir. 2011). The moving defendants argue that they are not state actors and 17 were not acting under color of state law when Mr. Taylor apprehended and detained 18 plaintiff. While it is possible for a private actor to act “under color of state law,” plaintiff 19 bears the burden of showing that the conduct of which defendants are accused is “fairly 20 21 attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). 22 The Ninth Circuit has identified four tests that may aid in identifying state action: 23 (1) public function; (2) joint action; (3) governmental compulsion or 24 coercion; and (4) governmental nexus. Satisfaction of any one test is 25 sufficient to find state action, so long as no countervailing factor exists. . . .
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4 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON 5 AT SEATTLE
6 HENRY JAMES, 7 CASE NO. 2:23-cv-00212-RSL Plaintiff, 8 v. 9 ORDER GRANTING DEFENDANTS’ MOTIONS FOR ASIAN FAMILY MARKET, et al., SUMMARY JUDGMENT (DKT. # 33 10 AND DKT. # 35) Defendants. 11
12 This matter comes before the Court on the motions for summary judgment filed by 13 14 defendants Asian Family Market, Maddox Chung, and Kivon Taylor. Dkt. # 33 and Dkt. 15 # 35. The motions were filed on July 20, 2023, but their consideration was continued three 16 times in order to allow plaintiff to pursue discovery regarding his claim that the moving 17 defendants were state actors for purposes of a claim under 42 U.S.C. § 1983. Having 18 19 reviewed the memoranda, declarations, and exhibits submitted by the parties,1 the Court 20 finds as follows: 21
22 1 Plaintiff provided neither a declaration nor exhibits in opposition to the motions for summary judgment. Because 23 he is proceeding pro se, the Court has considered the non-conclusory factual assertions in his opposition as if they were made under penalty of perjury on the assumption that the defect could be corrected at trial. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003) (“At the summary judgment stage, we do not focus on the admissibility of the 24 evidence’s form. We instead focus on the admissibility of its contents.”) (citations omitted). 25
ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 A. Background 2 Plaintiff asserts claims under Section 1983 for violations of his First, Fourth, and/or 3 Fourteenth Amendment rights by the Asian Family Market and two of its employees. 4 5 Defendant Maddox Chung is the manager of Asian Family Market’s stores, one in Seattle 6 and one in Bellevue. Defendant Kivon Taylor is employed by Asian Family Market to 7 provide security at its Bellevue store. 8 On or about January 25, 2023, plaintiff was leaving the Asian Family Market store 9 10 in Bellevue when Mr. Taylor stopped and detained him for shoplifting. It is undisputed that 11 plaintiff had placed packages of beef tongue in his backpack and left the store without 12 paying for them. Taylor called the Bellevue Police Department, and the responding officer 13 took a statement from Mr. Taylor and questioned plaintiff before arresting him. Plaintiff 14 15 was charged the next day with Theft – Third Degree. Plaintiff asserts that Mr. Taylor used 16 excessive force when handcuffing him (Dkt. # 92 at ¶ 8) and that Mr. Taylor caused the 17 responding officer to double handcuff plaintiff (resulting in further pain and injury) and to 18 charge plaintiff with Theft – Third Degree (Dkt. # 92 at ¶¶ 13 and 18). 19 The Asian Family Market has adopted the Seattle Police Department’s Retail Theft 20 21 Program as a guide for its security officers, and Mr. Taylor acted in accordance with the 22 policies and procedures set forth therein on January 25, 2023. Dkt. # 34 at ¶ 4; Dkt. # 36 at 23 ¶ 15. The Retail Theft Program creates a reporting procedure that enables store security 24 personnel to inform the Seattle Police Department of detainments made for theft and/or 25 26 criminal trespass and “is for use within the Seattle city-limits only.” Id. The Program “does ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 not grant any special police commissions,” and security agents who participate in the 2 program “are not given enhanced arrest powers nor are they transferred authority to issue 3 criminal citations.” Dkt. # 34-1 at 3. The Asian Family Market uses the Retail Theft 4 5 Program to train its security guards at both its Seattle and Bellevue stores and to guide 6 their responses to theft and trespass. Dkt. # 34 at ¶ 4; Dkt. # 36 at ¶ 3. 7 B. Standard of Review 8 Summary judgment is appropriate when, viewing the facts in the light most 9 10 favorable to the nonmoving party, there is no genuine issue of material fact that would 11 preclude the entry of judgment as a matter of law. The party seeking summary dismissal of 12 the case “bears the initial responsibility of informing the district court of the basis for its 13 motion” (Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts 14 15 of materials in the record” that show the absence of a genuine issue of material fact (Fed. 16 R. Civ. P. 56(c)). Once the moving party has satisfied its burden, it is entitled to summary 17 judgment if the non-moving party fails to designate “specific facts showing that there is a 18 genuine issue for trial.” Celotex Corp., 477 U.S. at 324. The Court will “view the evidence 19 in the light most favorable to the nonmoving party . . . and draw all reasonable inferences 20 21 in that party’s favor.” Colony Cove Props., LLC v. City of Carson, 888 F.3d 445, 450 (9th 22 Cir. 2018). Although the Court must reserve for the trier of fact genuine issues regarding 23 credibility, the weight of the evidence, and legitimate inferences, the “mere existence of a 24 scintilla of evidence in support of the non-moving party’s position will be insufficient” to 25 26 avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th Cir. ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes whose 2 resolution would not affect the outcome of the suit are irrelevant to the consideration of a 3 motion for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 4 5 2014). In other words, summary judgment should be granted where the nonmoving party 6 fails to offer evidence from which a reasonable fact finder could return a verdict in its 7 favor. Singh v. Am. Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 8 C. Discussion 9 10 To survive a motion for summary dismissal of his § 1983 claims against Asian 11 Family Market, Mr. Chung, and Mr. Taylor, plaintiff must provide evidence from which a 12 reasonably jury could conclude (1) that he was deprived of a right secured by the 13 Constitution and laws of the United States, and (2) that the deprivation was committed by a 14 15 person acting under color of state law. Chudacoff v. Univ. Med. Ctr. of S. Nev., 649 F.3d 16 1143, 1149 (9th Cir. 2011). The moving defendants argue that they are not state actors and 17 were not acting under color of state law when Mr. Taylor apprehended and detained 18 plaintiff. While it is possible for a private actor to act “under color of state law,” plaintiff 19 bears the burden of showing that the conduct of which defendants are accused is “fairly 20 21 attributable to the State.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). 22 The Ninth Circuit has identified four tests that may aid in identifying state action: 23 (1) public function; (2) joint action; (3) governmental compulsion or 24 coercion; and (4) governmental nexus. Satisfaction of any one test is 25 sufficient to find state action, so long as no countervailing factor exists. . . .
26 ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 The public function test is satisfied only on a showing that the function at 2 issue is both traditionally and exclusively governmental. The close nexus and joint action tests may be satisfied where the court finds a sufficiently close 3 nexus between the state and the private actor so that the action of the latter 4 may be fairly treated as that of the State itself, or where the State has so far insinuated into a position of interdependence with the private party that it 5 was a joint participant in the enterprise. Governmental compulsion or 6 coercion may exist where the State has exercised coercive power or has 7 provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State. 8
9 At bottom, the inquiry is always whether the defendant has exercised power possessed by virtue of state law and made possible only because the 10 wrongdoer is clothed with the authority of state law. 11 Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747–48 (9th Cir. 2020) (internal 12 quotation marks, citations, and alterations omitted). Because the constitutional standards 13 apply only to government actors, liability attaches “only when it can be said that the State 14 is responsible for the specific conduct of which the plaintiff complains,” either because it 15 granted the wrongdoer a badge of authority or because the wrongdoer represents the 16 government in some way. Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis in 17 original). 18 Plaintiff asserts that Mr. Taylor is a state actor because he exercised a public 19 function, namely arrest and detention (Dkt. # 92 at ¶ 20), he wore a security uniform and 20 carried weapons and handcuffs (Dkt. # 92 at ¶ 10), he had the same goals and acted in 21 22 concert with the Bellevue Police Department regarding the protection of private property, 23 handcuffing procedures, plaintiff’s arrest, and the decision to charge plaintiff with Theft 3 24 (Dkt. # 92 at ¶¶ 3-6, 21 and 23), and he misrepresented facts to convince the Bellevue 25 Police Department that there was probable cause for the arrest (Dkt. # 92 at ¶ 22). In 26 ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 Washington, a private person who witnesses a misdemeanor, such as a store security 2 officer who observes a theft, is permitted to intercept and detain the suspect. State v. 3 Garcia, 146 Wn. App. 821, 824 (2008). Plaintiff’s premise that Mr. Taylor undertook a 4 5 function reserved to state actors is therefore incorrect. 6 The “joint action” assertions are equally unavailing. The fact that private security 7 personnel are employed to safeguard private property, wear uniforms, and carry weapons 8 does not convert them into public law enforcement or support an inference that the private 9 10 employee and the responding police officer are engaged in joint action. The joint action 11 test focuses on whether state officials and private parties have acted in concert in bringing 12 about the particular deprivation of constitutional rights of which plaintiff complains. Tsao 13 v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012). The unconstitutional conduct 14 15 plaintiff identifies in his opposition involves the use of excessive force in handcuffing and 16 then re-handcuffing him and the officer’s acquiescence in Mr. Taylor’s request to charge 17 plaintiff with Theft 3. There is no indication that the Bellevue Police Department 18 instructed Mr. Taylor to detain plaintiff, much less to handcuff him or to use excessive 19 force while doing so. In performing his security duties, Mr. Taylor was guided by the 20 21 Seattle Police Department’s Retail Theft Program, but those procedures in no way 22 compelled or instructed Mr. Taylor to violate plaintiff’s right to be free of excessive force. 23 Plaintiff’s assertions that Mr. Taylor double handcuffed plaintiff, instructed the 24 responding officer to double handcuff plaintiff, and/or compelled the responding officer to 25 26 charge plaintiff with Theft - Third Degree are conclusory and contradicted by the facts in ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 the record. Plaintiff acknowledges that it was the responding officer who double 2 handcuffed him and that he did so in accordance with the standard procedures of the 3 Bellevue Police Department. Dkt. # 92 at ¶¶ 13-14 and 23. Plaintiff also acknowledges that 4 5 the charging decision was made by the state, although he alleges that it was based on 6 misinformation allegedly provided by Mr. Taylor. Dkt. # 92 at ¶ 22. Calling the police and 7 providing information – even false information -- that results in an arrest is not enough to 8 convert the private party’s acts into state action. See Dietrich v. John Ascuaga’s Nugget, 9 10 548 F.3d 892, 900 (9th Cir. 2008); Collins v. Womancare, 878 F.2d 1145, 1155 (9th Cir. 11 1989). Just as importantly, plaintiff does not argue that his conduct did not satisfy the 12 elements of Theft – Third Degree, that the responding officer failed to adequately 13 investigate the charge, or that the assistant prosecuting attorney who filed the criminal 14 15 complaint failed to exercise independent judgment in the matter.2 The circumstances of 16 this case simply do not raise a triable inference that the state and Mr. Taylor so far 17 insinuated themselves into a position of interdependence that they must be recognized as a 18 joint participants in either the handcuffing or the charging at issue. Collins, 878 F.2d at 19 1155. 20 21 D. Conclusion 22 For all of the foregoing reasons, the Court finds that plaintiff has failed to provide 23 evidence from which a reasonable jury could conclude that Asian Family Market, Maddox 24 25
26 2 Plaintiff was not charged with criminal trespass despite the responding officer’s conclusion that there was probable cause to arrest for both theft in the third degree and trespass in the first degree. Dkt. # 34-8; Dkt. # 77 at ¶ 10. ORDER GRANTING DEFENDANTS’ MOTIONS FOR 1 Chung, and/or Kivon Taylor were state actors. His claims against those defendants 2 therefore fail as a matter of law and are hereby DISMISSED. 3 4 Dated this 22nd day of March, 2024. 5
6 7 Robert S. Lasnik United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER GRANTING DEFENDANTS’ MOTIONS FOR