Keller v. City of Mountlake Terrace

Opinion

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

RAYMOND J. KELLER, et al., CASE NO. C25-1005JLR Plaintiffs, ORDER v. CITY OF MOUNTLAKE TERRACE, et al., Defendants. I. INTRODUCTION Before the court are (1) pro se Plaintiffs Raymond J. Keller, Jolene V. Johnson, Jeffery M. Johnson, Ryan S. Arnold, and Kelsey N. Donavan’s (together, “Plaintiffs”) complaint (Compl. (Dkt. # 10)) and (2) United States Magistrate Judge S. Kate Vaughan’s order granting Plaintiffs’ applications to proceed in forma pauperis (“IFP”) and recommending that the court review the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) (IFP Order (Dkt. # 9)). Under 28 U.S.C. § 1915(e)(2)(B), district courts have authority to review IFP complaints and must dismiss them if “at any time” the court determines that a complaint fails to state a claim on which relief may be granted. 28

U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (clarifying that § 1915(e) applies to all IFP proceedings, not just those filed by prisoners). The court has considered Plaintiffs’ complaint and determined that the allegations therein fail to state a claim upon which relief can be granted. Accordingly, the court DISMISSES Plaintiffs’ complaint with partial leave to amend.

This matter arises from Defendants the City of Montlake Terrace (the “City”), the Montlake Terrace Police Department, Montlake Terrace Code Enforcement, and City Attorney Hillary Evans’s alleged harassment of Plaintiffs after they brought their property into “full compliance with all City of Mountlake Terrace codes and ordinances” on or about October 21, 2022. (Compl. ¶ 15.) Plaintiffs allege that Defendants circulated

“false documents regarding alleged nuisance conditions” on their property, causing them “social isolation and reputational harm[.]” (Id. ¶ 17.) At a time not stated in the complaint, Defendants allegedly “executed an illegal abatement action” during which they caused property damage, removed Plaintiffs’ personal property, and “cut the main cable wire to Plaintiffs’ house with a chainsaw[.]” (Id. ¶¶ 19-27.) Plaintiffs further

allege that Defendants threatened them with jail time, surveilled their property without authorization, and defamed them to guests and visitors. (Id. ¶¶ 26-29.) Plaintiffs now raise constitutional claims against Defendants pursuant to 42 U.S.C. § 1983 (Counts II, III, V, VI, VII, X) along with state-law claims for illegal abatement under RCW 7.48.230 (Count I) and defamation (Count VIII). (See id. ¶¶ 25-71.1) They seek damages of $50 million. (Id. ¶ 46.)

Title 28 U.S.C. § 1915(e)(2)(B) authorizes a district court to dismiss a claim filed IFP “at any time” if it determines (1) the action is frivolous or malicious; (2) the action fails to state a claim; or (3) the action seeks relief from a defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B). Because Plaintiffs are proceeding pro se, the court must construe their pleadings liberally. See McGuckin v. Smith, 974 F.2d 1050,

1055 (9th Cir. 1992). Nevertheless, dismissal is proper when there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). The complaint must contain factual allegations sufficient “to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although

“detailed factual allegations” are not required, the plaintiff must allege more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555) (requiring the plaintiff to “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”); see Fed. R. Civ. P. 8(a)(2) (requiring a

pleading to contain “a short and plain statement of the claim showing that the pleader is entitled to relief”). The court reviews Plaintiffs’ claims below.

1 Plaintiffs’ complaint does not include a Count IV or a Count IX. (See generally id.) A. Section 1983 Claims To state a claim under § 1983, Plaintiffs must plausibly allege (1) that they

suffered a violation of rights protected by the Constitution or created by federal statute and (2) the violation was proximately caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Thus, Plaintiffs must include in their complaint short, plain statements specifying: (1) the constitutional right Plaintiffs believe was violated; (2) the name or names of the person, persons, or entity who violated the right; (3) exactly what each individual or entity did or failed to do and when they did or failed

to do it; (4) how the action or inaction of each individual or entity is connected to the violation of Plaintiffs’ constitutional rights; and (5) what specific injury Plaintiffs suffered because of the individuals’ conduct. See Rizzo v. Goode, 423 U.S. 362, 371-72, 377 (1976). 1. Section 1983 Claims against the Mountlake Terrace Police Department and Mountlake Terrace Code Enforcement As a general matter, only certain entities may be sued under § 1983 for constitutional violations, even for conduct that occurs under color of state law. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978) (“municipalities and other local government units . . . [are] among those persons to whom § 1983 applies.”); see also Bd. of Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997). Neither the Mountlake Terrace Police Department nor Mountlake Terrace Code Enforcement is a “person” that can be sued under § 1983. See Saved Mag. v. Spokane Police Dep’t, 505 F. Supp. 3d 1095, 1105 (E.D. Wash. 2020), aff’d, 19 F.4th 1193 (9th Cir. 2021); see also Maclay v. Cty. of Spokane, No. 14-cv-91-RMP, 2014 WL 7336903, at *5 (E.D. Wash. Dec. 22, 2014) (collecting cases from federal district courts in Washington holding that Washington

municipal police and sheriff’s departments are not legal entities subject to suit). Therefore, the court DISMISSES Plaintiffs’ constitutional claims against these agencies. 2. Section 1983 Claim against the City Although a municipality may be sued under § 1983, it cannot be held liable for such a claim absent a municipal policy or custom that caused the plaintiff’s injury. Brown, 520 U.S. at 403 (citing Monell, 436 U.S. at 691-94). A municipality may not be

held vicariously liable for the acts of its employees. Brown, 520 U.S. at 403. Here, Plaintiffs do not allege that their injuries were the result of any specific City policy or custom. (See generally Compl.) Therefore, the court DISMISSES Plaintiffs’ constitutional claims against the City. 3. Section 1983 Claim against Ms. Evans

To state a claim under § 1983, a plaintiff must allege (1) that he or she suffered a specific injury as the result of the conduct of a specific defendant, and (2) facts showing how each defendant caused or personally participated in causing the harm alleged. See Rizzo, 423 U.S. at 370-72, 377. Although Plaintiffs name Ms. Evans as a Defendant, they do not allege that she engaged in any conduct that caused them injury. (See generally

Compl.) Therefore, the court DISMISSES Plaintiffs’ constitutional claims against Ms. Evans. B. State-Law Claims 1. Failure to File Tort Claim

Washington’s claims presentment statute prohibits the filing of any state-law action for damages against local government entities and their “officers, employees, or volunteers, acting in such capacity” until 60 days after the claimant has filed a notice of tort claim with the appropriate designee. RCW 4.96.020(2).2 Although the statute is liberally construed, it requires that claims for damages be presented on the standard tort claim form or an alternative form created by the local government entity. RCW

4.96.020(3), (5). “A court must dismiss any action commenced in violation of a statutorily mandated claim filing condition precedent.” Westway Const., Inc. v. Benton Cty., 136 Wn. App. 859, 867 (Wash. Ct. App. 2006). Here, Plaintiffs have not alleged that they filed a notice of tort claim with the City 60 days before filing this lawsuit. Accordingly, the court DISMISSES Plaintiffs’ state-law claims for failure to exhaust.

2. Defamation Even if Plaintiffs had filed a notice of tort claim, the court would still dismiss their defamation claim for failure to state a claim. In Washington, a plaintiff suing for defamation must plausibly allege: (1) the defendant made a false statement that presents a substantial danger to the plaintiff’s personal or business reputation, (2) the false

statement was published, (3) the defendant is at fault, and (4) the statement proximately caused damages. Duc Tan v. Le, 300 P.3d 356, 363 (Wash. 2013) (citation omitted);

2 The notice of tort claim provisions do not apply to Plaintiffs’ § 1983 claims. Felder v. Casey, 487 U.S. 131, 133 (1988). Wood v. Battle Ground Sch. Dist., 27 P.3d 1208, 1219 (Wash. Ct. App. 2001). Here, Plaintiffs allege that

Defendants defamed Plaintiffs by telling guests and visitors that Plaintiffs’ home was a ‘drug house’ and threatening to arrest anyone who returned to the ‘home of ill repute,’ falsely claiming prostitution was occurring on the property. As a result of Defendants’ defamatory statements, Plaintiffs lost social connections and no longer receive visitors at their home.

(Compl. ¶¶ 29-30.) To state a defamation claim, Plaintiffs must allege who made each allegedly false statement and which Plaintiff or Plaintiffs the speaker was referring to when he or she made the statement. Plaintiffs do neither. Accordingly, the court DISMISSES Plaintiffs’ defamation claim. 3. Illegal Abatement Finally, even if Plaintiffs had filed a notice of tort claim, their claim for illegal abatement under RCW 7.48.230 would also be subject to dismissal. (See Compl. ¶¶ 25-30.) That statute, commonly known as the “self-help statute,” provides that “[a]ny person may abate a public nuisance which is specially injurious to him by removing, or if necessary, destroying the thing which constitutes the same, without committing a breach of the peace, or doing unnecessary injury.” RCW 7.48.230; see Nystrand v. O’Malley, 375 P.2d 863, 864 (Wash. 1962). The court has not found any case law authorizing a suit for damages under RCW 7.48.230, although in at least one case, the defendant in a trespass action raised the self-help statute as a defense. See Nystrand, 375 P.2d at 864. Because no Washington case has endorsed a private right of action for violations of RCW 7.48.230, the court DISMISSES Plaintiffs’ unlawful abatement claim. C. Leave to Amend Under Federal Rule of Civil Procedure 15(a), district courts are ordinarily to

“freely give” leave to amend a claim subject to dismissal. Fed. R. Civ. P. 15(a)(2). Leave to amend is not required, however, where amendment would be futile, such as when the pleading could not possibly be cured by further factual allegations. Foman v. Davis, 371 U.S. 178, 182 (1962); Ebner v. Fresh, Inc., 838 F.3d 958, 968 (9th Cir. 2016). Here, the court DENIES Plaintiffs leave to amend their § 1983 claims against the Mountlake Terrace Police Department and Mountlake Terrace Code Enforcement

because these agencies are not proper defendants in a § 1983 case. The court also DENIES Plaintiffs leave to amend their illegal abatement claim under RCW 7.48.230 because that statute does not authorize a private right of action. As a result, amendment of these claims would be futile. These claims are, therefore, DISMISSED with prejudice. However, the court GRANTS Plaintiffs leave to amend their § 1983 claims against

the City and Ms. Evans and their defamation claim. Plaintiffs are DIRECTED to carefully review this order and ensure that their amended complaint, if any, cures the defects discussed above. With respect to their defamation claim, Plaintiffs must include allegations demonstrating that they properly filed a notice of tort claim at least 60 days before filing this lawsuit.

For the foregoing reasons, the court DISMISSES Plaintiffs’ complaint (Dkt. # 10). Plaintiffs’ § 1983 claims against the Mountlake Terrace Police Department and Mountlake Terrace Code Enforcement and Plaintiffs’ illegal abatement claim under RCW 7.48.230 are DISMISSED with prejudice and without leave to amend. Plaintiffs’ remaining claims are DISMISSED with leave to file an amended complaint that corrects

the deficiencies identified herein by no later than October 21, 2025. Failure to file an amended complaint by this deadline will result in the dismissal of this action. Dated this 23rd day of September, 2025. A United States District Judge