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5 UNITED STATES DISTRICT COURT AT TACOMA 7 REBECCA J. LEEPER, CASE NO. C20-5467 BHS-DWC 8 Plaintiff, ORDER ADOPTING REPORT 9 v. AND RECOMMENDATION 10 CITY OF TACOMA, et al. 11 Defendants. 12
13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable David W. Christel, United States Magistrate Judge, Dkt. 50, and 15 Plaintiff Rebecca Leeper’s objections to the R&R, Dkt. 51. 17 In April 2020, Leeper sued Defendants City of Tacoma, Tel Thompson (a former 18 Tacoma Police Department officer), and John Does 1–5 for Thompson’s alleged sexual 19 assault of Leeper while she was working as an employee at Fred Meyer and Thompson 20 served as an off-duty officer at the store. Dkt. 1-1. Leeper brings claims against 21 Thompson for violations of her Fourteenth Amendment rights under 42 U.S.C. § 1983, 22 assault and battery, and intentional infliction of emotional distress. Id. Against the City 1 and Doe Defendants, she alleges violations of her Fourteenth Amendment rights under 2 Monell v. Department of Social Services, 436 U.S. 658 (1978), negligent and grossly 3 negligent hiring, training, and supervision, negligent infliction of emotional distress, and
4 respondeat superior. Id. 5 Leeper filed a motion for partial summary judgment, seeking an order that 6 Defendants’ affirmative defenses of (1) no causation and (2) failure to mitigate are 7 legally deficient. Dkt. 31. The City and Thompson then filed a joint motion for summary 8 judgment as to all of Leeper’s claims against the City and as to all of her claims against
9 Thompson, save for her claims of assault and battery and intentional infliction of 10 emotional distress. Dkt. 33. 11 On June 10, 2021, Judge Christel issued the instant R&R, recommending that the 12 Court grant Defendants’ motion for summary judgment and dismiss the City and Doe 13 Defendants from the case. Dkt. 50. The R&R further recommended that the Court deny
14 as moot Leeper’s motion for partial summary judgment as to causation but grant her 15 motion as to failure to mitigate. Id. On June 18, 2021, Leeper objected to the R&R, 16 arguing in part that the R&R did not view the facts in the light most favorable to her, the 17 non-moving party, and that the questions of material fact preclude summary judgment. 18 Dkt. 51. On July 8, 2021, Defendants responded. Dkt. 53.
20 A. Standard 21 The district judge must determine de novo any part of the magistrate judge’s 22 disposition that has been properly objected to. The district judge may accept, reject, or 1 modify the recommended disposition; receive further evidence; or return the matter to the 2 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 3 B. 42 U.S.C. § 1983 Claims
4 1. Claim Against Thompson 5 Leeper first objects to the R&R’s conclusion that Thompson was not acting under 6 color of state law, arguing that the R&R failed to view the evidence in the light most 7 favorable to her, the non-moving party, and that the R&R erred in the application of law. 8 Dkt. 51 at 3–6. When Thompson allegedly assaulted Leeper, he was providing security
9 services at the Fred Meyer where Leeper worked. Dkt. 41 at 2. Tacoma Police 10 Department (“TPD”) policy allows officers to engage in police-related secondary 11 employment where officers utilize their police powers to provide services for private 12 employers. Dkt. 43, Ex. 2, at 119:5–19. In order to state a claim under § 1983, a plaintiff 13 must show a constitutional violation and that the alleged deprivation of rights “was
14 committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 15 (1988). The R&R concluded that Thompson was not acting under color of law. Dkt. 50 at 16 4–8. 17 The Ninth Circuit has developed a three-part test for determining whether an off- 18 duty officer has acted under the color of state law. The officer must have: “(1) acted or
19 pretended to act in the performance of his official duties; (2) invoked his status as a law 20 enforcement officer with the purpose and effect of influencing the behavior of others; and 21 (3) engaged in conduct that ‘related in some meaningful way either to the officer’s 22 governmental status or to the performance of his duties.’” Hyun Ju Park v. City & Cnty. 1 of Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020) (quoting Anderson v. Warner, 451 F.3d 2 1063, 1069 (9th Cir. 2006)). 3 The R&R concluded that Thompson was not acting under color of law because he
4 “was not exercising or purporting to exercise his official responsibilities, he did not 5 identify himself as an officer, display his badge, or ‘specifically associate’ his actions 6 with his law enforcement duties, and he did not use his official status to deprive [Leeper] 7 of her constitutional rights.” Dkt 50 at 8. 8 The Court agrees with the R&R’s ultimate conclusion that Thompson was not
9 acting under color of law. Thompson was off duty at Fred Meyer when the assault 10 occurred. Notably, however, Thompson wore his full uniform and everything he would 11 typically wear when on duty with TPD while working at Fred Meyer, including carrying 12 his service pistol and handcuffs. Dkt. 43, Ex. 12, Deposition of Tel Thomson, at 45:21– 13 46:19. Thompson also did not indicate any differences between his duties specific to Fred
14 Meyer and his duties as an active TPD officer. See id. at 54:12–22. The Court declines to 15 adopt the R&R’s analysis that Thompson did not identify himself as an officer or display 16 his badge because Thompson was wearing his full TPD uniform while working off duty. 17 But the fact that Thompson was identifiable as an officer because he was wearing 18 a uniform and badge does not result in Thompson acting under color of law. See Watkins
19 v. Oaklawn Jockey Club, 183 F.2d 440, 443 (8th Cir. 1950) (fully-uniformed, off-duty 20 officer not acting under color of law). Viewing the evidence in the light most favorable to 21 Leeper, the Court concludes that there is no question of material fact here. While 22 Thompson may have acted or pretended to act in the performance of his official duties by 1 wearing his uniform, there is no evidence from which a jury could decide that Thompson 2 used his official status to influence the behavior of others when the alleged assault 3 occurred. Cf. Anderson, 451 F.3d at 1069. The Court further agrees with the R&R that
4 Thompson did not specifically associate his actions with his law enforcement duties. In 5 sum, Leeper has not met her burden to establish that Thompson was acting under color of 6 law to preclude summary judgment. 7 The Court therefore adopts the R&R as to this issue. 8 2. Monell Liability
9 Leeper next objects to the R&R’s recommendation to grant Defendants’ motion as 10 to her § 1983 Monell claim against the City. Dkt. 51 at 6–7. She argues that the R&R 11 again failed to view the evidence in the light most favorable to her and that there are 12 genuine issues of material fact precluding summary judgment. Id. To maintain a claim 13 against the City for Thompson’s asserted constitutional violations, there must be a “a
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5 UNITED STATES DISTRICT COURT AT TACOMA 7 REBECCA J. LEEPER, CASE NO. C20-5467 BHS-DWC 8 Plaintiff, ORDER ADOPTING REPORT 9 v. AND RECOMMENDATION 10 CITY OF TACOMA, et al. 11 Defendants. 12
13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable David W. Christel, United States Magistrate Judge, Dkt. 50, and 15 Plaintiff Rebecca Leeper’s objections to the R&R, Dkt. 51. 17 In April 2020, Leeper sued Defendants City of Tacoma, Tel Thompson (a former 18 Tacoma Police Department officer), and John Does 1–5 for Thompson’s alleged sexual 19 assault of Leeper while she was working as an employee at Fred Meyer and Thompson 20 served as an off-duty officer at the store. Dkt. 1-1. Leeper brings claims against 21 Thompson for violations of her Fourteenth Amendment rights under 42 U.S.C. § 1983, 22 assault and battery, and intentional infliction of emotional distress. Id. Against the City 1 and Doe Defendants, she alleges violations of her Fourteenth Amendment rights under 2 Monell v. Department of Social Services, 436 U.S. 658 (1978), negligent and grossly 3 negligent hiring, training, and supervision, negligent infliction of emotional distress, and
4 respondeat superior. Id. 5 Leeper filed a motion for partial summary judgment, seeking an order that 6 Defendants’ affirmative defenses of (1) no causation and (2) failure to mitigate are 7 legally deficient. Dkt. 31. The City and Thompson then filed a joint motion for summary 8 judgment as to all of Leeper’s claims against the City and as to all of her claims against
9 Thompson, save for her claims of assault and battery and intentional infliction of 10 emotional distress. Dkt. 33. 11 On June 10, 2021, Judge Christel issued the instant R&R, recommending that the 12 Court grant Defendants’ motion for summary judgment and dismiss the City and Doe 13 Defendants from the case. Dkt. 50. The R&R further recommended that the Court deny
14 as moot Leeper’s motion for partial summary judgment as to causation but grant her 15 motion as to failure to mitigate. Id. On June 18, 2021, Leeper objected to the R&R, 16 arguing in part that the R&R did not view the facts in the light most favorable to her, the 17 non-moving party, and that the questions of material fact preclude summary judgment. 18 Dkt. 51. On July 8, 2021, Defendants responded. Dkt. 53.
20 A. Standard 21 The district judge must determine de novo any part of the magistrate judge’s 22 disposition that has been properly objected to. The district judge may accept, reject, or 1 modify the recommended disposition; receive further evidence; or return the matter to the 2 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 3 B. 42 U.S.C. § 1983 Claims
4 1. Claim Against Thompson 5 Leeper first objects to the R&R’s conclusion that Thompson was not acting under 6 color of state law, arguing that the R&R failed to view the evidence in the light most 7 favorable to her, the non-moving party, and that the R&R erred in the application of law. 8 Dkt. 51 at 3–6. When Thompson allegedly assaulted Leeper, he was providing security
9 services at the Fred Meyer where Leeper worked. Dkt. 41 at 2. Tacoma Police 10 Department (“TPD”) policy allows officers to engage in police-related secondary 11 employment where officers utilize their police powers to provide services for private 12 employers. Dkt. 43, Ex. 2, at 119:5–19. In order to state a claim under § 1983, a plaintiff 13 must show a constitutional violation and that the alleged deprivation of rights “was
14 committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 15 (1988). The R&R concluded that Thompson was not acting under color of law. Dkt. 50 at 16 4–8. 17 The Ninth Circuit has developed a three-part test for determining whether an off- 18 duty officer has acted under the color of state law. The officer must have: “(1) acted or
19 pretended to act in the performance of his official duties; (2) invoked his status as a law 20 enforcement officer with the purpose and effect of influencing the behavior of others; and 21 (3) engaged in conduct that ‘related in some meaningful way either to the officer’s 22 governmental status or to the performance of his duties.’” Hyun Ju Park v. City & Cnty. 1 of Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020) (quoting Anderson v. Warner, 451 F.3d 2 1063, 1069 (9th Cir. 2006)). 3 The R&R concluded that Thompson was not acting under color of law because he
4 “was not exercising or purporting to exercise his official responsibilities, he did not 5 identify himself as an officer, display his badge, or ‘specifically associate’ his actions 6 with his law enforcement duties, and he did not use his official status to deprive [Leeper] 7 of her constitutional rights.” Dkt 50 at 8. 8 The Court agrees with the R&R’s ultimate conclusion that Thompson was not
9 acting under color of law. Thompson was off duty at Fred Meyer when the assault 10 occurred. Notably, however, Thompson wore his full uniform and everything he would 11 typically wear when on duty with TPD while working at Fred Meyer, including carrying 12 his service pistol and handcuffs. Dkt. 43, Ex. 12, Deposition of Tel Thomson, at 45:21– 13 46:19. Thompson also did not indicate any differences between his duties specific to Fred
14 Meyer and his duties as an active TPD officer. See id. at 54:12–22. The Court declines to 15 adopt the R&R’s analysis that Thompson did not identify himself as an officer or display 16 his badge because Thompson was wearing his full TPD uniform while working off duty. 17 But the fact that Thompson was identifiable as an officer because he was wearing 18 a uniform and badge does not result in Thompson acting under color of law. See Watkins
19 v. Oaklawn Jockey Club, 183 F.2d 440, 443 (8th Cir. 1950) (fully-uniformed, off-duty 20 officer not acting under color of law). Viewing the evidence in the light most favorable to 21 Leeper, the Court concludes that there is no question of material fact here. While 22 Thompson may have acted or pretended to act in the performance of his official duties by 1 wearing his uniform, there is no evidence from which a jury could decide that Thompson 2 used his official status to influence the behavior of others when the alleged assault 3 occurred. Cf. Anderson, 451 F.3d at 1069. The Court further agrees with the R&R that
4 Thompson did not specifically associate his actions with his law enforcement duties. In 5 sum, Leeper has not met her burden to establish that Thompson was acting under color of 6 law to preclude summary judgment. 7 The Court therefore adopts the R&R as to this issue. 8 2. Monell Liability
9 Leeper next objects to the R&R’s recommendation to grant Defendants’ motion as 10 to her § 1983 Monell claim against the City. Dkt. 51 at 6–7. She argues that the R&R 11 again failed to view the evidence in the light most favorable to her and that there are 12 genuine issues of material fact precluding summary judgment. Id. To maintain a claim 13 against the City for Thompson’s asserted constitutional violations, there must be a “a
14 direct causal link between a municipal policy or custom and the alleged constitutional 15 deprivation.” City of Canton v. Harris, 489 U.S. 378, 385 (1989). The R&R concluded 16 that Leeper failed to present specific and significant evidence of an official policy or 17 custom of the City ignoring complaints about Thompson’s sexual harassment. Dkt. 50 at 18 10. The R&R also concluded that Leeper failed to identify any authorized decision
19 makers who endorsed such a custom or policy. Id. at 11. 20 Even if the R&R erred in concluding that Leeper failed to present evidence 21 sufficient to create a genuine dispute of material fact as to whether there was an official 22 policy or custom of ignoring complaints about Thompson, the Court agrees that Leeper 1 failed to identify any authorized decision makers. A custom or policy of inaction “must 2 be the result of a ‘conscious’ or ‘deliberate choice to follow a course of action . . . made 3 from among various alternatives by the official or officials responsible for establishing
4 final policy with respect to the subject matter in question.’” Lee v. City of L.A., 250 F.3d 5 668, 681 (9th Cir. 2001) (quoting City of Canton, 489 U.S. at 389 and Oviatt v. Pearce, 6 954 F.2d 1470, 1477 (9th Cir. 1992)). Neither Leeper’s objections nor her response to 7 Defendants’ motion addresses whether the purported policy of inaction was made by 8 officials responsible for establishing final policies. See Dkt. 51 at 6–7; Dkt. 41 at 24–26.
9 The Court therefore adopts the R&R as to this issue. 10 C. Negligence-Based Claims 11 Additionally, Leeper argues that the R&R erred in dismissing her negligent 12 retention and supervision claim against the City because foreseeability is a question for 13 the trier of fact. Dkt. 51 at 7. However, Leeper raised this argument in opposition to
14 Defendants’ motion, and foreseeability was considered by the R&R. Compare id. with 15 Dkt. 41 at 30. Objections to a R&R are not a vehicle to relitigate the same arguments 16 carefully considered and rejected by the Magistrate Judge. See, e.g., Fix v. Hartford Life 17 & Accident Ins. Co., CV 16–41–M–DLC–JCL, 2017 WL 2721168, at *1 (D. Mont. June 18 23, 2017) (collecting cases). The Court agrees with the R&R that there are no questions
19 of material facts as to whether the City negligently supervised Thompson. The Court 20 therefore adopts the R&R as to this issue. 21 Similarly, the Court agrees with the R&R’s conclusion to grant summary 22 judgment as to Leeper’s negligent infliction of emotional distress claim. Dkt. 50 at 14– 1 15. The R&R concluded that Leeper could not maintain her negligent infliction of 2 emotional distress claim because it determined that the City did not negligently supervise 3 Thompson. Id. Leeper’s objections do not challenge this conclusion and rather focus on
4 the objective symptomatology she has suffered as a result of Thompson’s alleged assault. 5 Dkt. 51 at 7–8. The Court therefore adopts the R&R as to this issue. 6 Leeper’s objections to the R&R’s conclusion to deny as moot her motion for 7 partial summary judgment as to Defendants’ no causation affirmative defense fare no 8 better. See Dkt. 51 at 8–9. The R&R recommended denying her motion for partial
9 summary judgment because all of her claims against the City had been dismissed. Dkt. 50 10 at 17. As the Court agrees with the R&R’s recommendation and analysis as to Leeper’s 11 claims against the City, it also agrees that her motion for partial summary judgment as to 12 causation should be denied as moot. The Court therefore adopts the R&R as to this issue.
14 The Court having considered the R&R, Plaintiff’s objections, and the remaining 15 record, does hereby find and order as follows: 16 (1) The R&R is ADOPTED; 17 (2) Defendants’ motion for summary judgment, Dkt. 33, is GRANTED; 18 (3) Leeper’s motion for partial summary judgment, Dkt. 31, is GRANTED in
19 part and DENIED as moot in part; 20 (4) The Clerk shall terminate the City and Doe Defendants as parties in this 21 action; and 22 1 (5) The remaining parties shall submit a joint status report regarding trial 2 availability and trial length within thirty days of the entry of this Order. 3 Dated this 28th day of September, 2021. A 4 5 BENJAMIN H. SETTLE 6 United States District Judge
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