Neal v. City of Bainbridge Island

Opinion

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7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 AT TACOMA 10 11 LISA C NEAL, CASE NO. 3:20-cv-06025-DGE 12 Plaintiff, ORDER ON MOTIONS FOR v. SUMMARY JUDGMENT (DKT. 13 NOS. 167, 170) CITY OF BAINBRIDGE ISLAND, 14 Defendant. 15 16 I INTRODUCTION 17 Before the Court are the parties’ cross-motions for summary judgment. Defendant City 18 of Bainbridge Island moves for summary judgment on all of Plaintiff’s claims. (Dkt. No. 167 at 19 1.) Plaintiff Lisa Neal moves for summary judgment on her First Amendment and Equal 20 Protection claims. (Dkt. No. 170 at 1.) For the reasons below, the Court GRANTS Defendant’s 21 motion (Dkt. No. 167) and DENIES Plaintiff’s motion (Dkt. No. 170). 22 23 24 1 II BACKGROUND 2 Plaintiff brings First Amendment, Equal Protection, and conspiracy claims under 42 3 U.S.C. § 1983; and claims for defamation, negligent infliction of emotional distress, and 4 intentional infliction of emotional distress.1 (Dkt. No. 142 at 45–53.) Plaintiff’s claims arise

5 from the City Council’s vote to remove Plaintiff from the City’s Island Center Subarea Planning 6 Process Committee (“Committee”), as well as statements made by various individuals prior to 7 the removal vote. (Dkt. Nos. 142 at 3–4; 102-2.) 8 As provided in the Bainbridge Island Municipal Code (“BIMC”), the Committee is a 9 volunteer citizen advisory committee formed “[u]pon the city council’s approval to commence 10 the subarea planning process for a designated center or neighborhood.” (Dkt. No. 103-1 at 11) 11 (BIMC 2.16.210(E)(1)). The BIMC tasks the Committee with, inter alia, “[e]stablish[ing] a 12 planning process . . . which shall be submitted to the city council for approval,” “develop[ing] a 13 subarea plan consisting of a report and a proposed comprehensive plan amendment,” and 14 “establish[ing] a public participation process.” (Id.) (BIMC 2.16.210(E)(3)(a)–(c)). The City

15 Council makes the final decision on the subarea plan following the Committee’s submission of a 16 final report. (Id.) 17 Plaintiff began serving on the Committee in late 2017. (Dkt. Nos. 142 at 3; 167 at 1.) 18 The City Council removed Plaintiff by a 5-2 vote at a City Council meeting on August 14, 2018, 19 immediately following public statements by Councilmembers, the Mayor, and a member of the 20 City’s Planning Commission. (Dkt. No. 102-2 at 5.) At the same meeting, the City Council 21 22

23 1 The Court has already granted summary judgment to Defendant on Plaintiff’s claim under the Public Records Act. (Dkt. No. 176.) 24 1 voted unanimously to demote the Chair of a different committee, the Environmental Technical 2 Advisory Committee (“ETAC”). (Dkt. No. 103-3 at 8.) 3 Plaintiff’s removal occurred roughly two months after she sent an email (Dkt. No. 184-9 4 at 2–6) on June 13, 2018, to, as described by Plaintiff, “people/groups from which she had

5 received emails about similar matters of public concern” (Dkt. No. 182 at 8). Plaintiff’s email 6 represented that it sought to provide recipients with “more background on . . . the Committee’s 7 work so far.” (Dkt. No. 184-9 at 2.) Among other things, Plaintiff’s email questioned whether 8 fellow members of the Committee had conflicts of interests and provided “additional information 9 on” Plaintiff’s understanding of “a few of the members’ interests.” (Id. at 4–5.) Plaintiff 10 forwarded the email to the City Council five days later, on June 18, along with the introduction 11 that “[t]he following was sent to members of the community, and has been lodged in the public 12 records portal for the Island Center planning.” (Id. at 7–12.) 13 III LEGAL STANDARD 14 Summary judgment is appropriate when “there is no genuine dispute as to any material

15 fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute 16 of material fact is genuine and therefore will preclude summary judgment when “the evidence is 17 such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty 18 Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome 19 of the suit under the governing law will properly preclude the entry of summary judgment. 20 Factual disputes that are irrelevant or unnecessary will not be counted.” Id. Importantly, “[a] 21 motion for summary judgment may not be defeated . . . by evidence that is ‘merely colorable’ or 22 ‘is not significantly probative.’” C.A.R. Transp. Brokerage Co., Inc. v. Darden Restaurants, 23 Inc., 213 F.3d 474, 480 (9th Cir. 2000) (internal quotation and citation omitted).

24 1 IV DISCUSSION 2 A. Section 1983 Claims 3 Both parties move for summary judgment on Plaintiff’s First Amendment and Equal 4 Protection claims. (Dkt. Nos. 167 at 4; 170 at 1.) Defendant also moves for summary judgment

5 on Plaintiff’s conspiracy claim. (Dkt. No. 167 at 12.) Each of these claims is based on the City 6 Council’s vote to remove Plaintiff. (Dkt. No. 142 at 45–49.) 7 Defendant argues Plaintiff’s § 1983 claims fail because (1) Defendant is entitled to 8 legislative immunity and (2) Plaintiff failed to show that the City may be held liable under 9 Monell for a decision of the City Council. (Dkt. No. 167 at 3–4.) As explained below, the Court 10 disagrees. Defendant is not entitled to legislative immunity and the City Council may be deemed 11 a final policymaker for purposes of imposing liability on the City under Monell. The Court 12 therefore proceeds to assess each § 1983 claim independently, ultimately concluding Plaintiff 13 cannot prevail as a matter of law on any of the claims. 14 1. Legislative Immunity

15 Under federal law, “[l]ocal government officials are entitled to legislative immunity for 16 their legislative actions.” Community House, Inc. v. City of Boise, 623 F.3d 945, 959 (9th Cir. 17 2010) (emphasis added). But “legislative immunity does not extend to municipalities.” 18 Muhammad v. City of Moreno Valley Code Enforcement, 2022 WL 837421, at *7 (C.D. Cal. 19 March 21, 2022); see also A.H.D.C. v. City of Fresno, 2002 WL 34575401, at *9 (E.D. Cal. Oct. 20 17, 2002) (finding a municipality was not entitled to legislative immunity because “[l]egislative 21 immunity from suit under § 1983 is afforded to individual council members only”); Goldberg v. 22 Town of Rocky Hill, 973 F.2d 70, 74 (2d Cir. 1992) (agreeing with the conclusion of “many 23 courts . . . that municipalities are not immune from liability under § 1983 for actions taken in a

24 1 legislative capacity”); Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir. 1983) 2 (explaining a municipality may be held liable for acts “for which the policy-making officials 3 themselves might enjoy absolute immunity because the acts were legislative . . . in character”). 4 As Defendant is a municipality, it is not entitled to legislative immunity with respect to

5 Plaintiff’s § 1983 claims. 6 2. Monell Liability 7 Plaintiff’s § 1983 claims cannot succeed unless the City, as the sole defendant in this 8 action, may be held liable for the City Council’s vote to remove Plaintiff. See Monell v. 9 Department of Social Services of City of New York, 436 U.S. 658, 694 (1978). A municipality 10 may be liable under Monell if the decisionmaker who caused the constitutional violation 11 “functioned as a final policymaker” for the municipality.2 Barone v. City of Springfield, 902 12 F.3d 1091, 1107 (9th Cir. 2018). A plaintiff must show the decisionmaker “had final 13 policymaking authority concerning the [challenged] action” and “was the policymaker for the 14 local governing body for the purposes of the particular act.” Goldstein v. City of Long Beach,

15 715 F.3d 750, 753 (9th Cir. 2013) (internal citation and quotation omitted). 16 “[W]hether a particular official has ‘final policymaking authority’ is a question of state 17 law.” City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (emphasis in original); see also 18 Goldstein, 715 F.3d at 753 (the determination of whether an official acted as a policymaker “is 19 made on a function-by-function approach by analyzing under state law the organizational 20 structure and control over” the decisionmaker). Critically, the Court’s “inquiry is not undertaken 21

22 2 A municipality may also be liable if a municipal employee or official (1) “committed the constitutional violation pursuant to an official policy” or (2) “acted pursuant to a longstanding 23 practice or custom.” Barone, 902 F.3d at 1107. The Court does not address these theories of liability, finding them inapplicable and not raised by Plaintiff. 24 1 in a categorical, ‘all or nothing’ manner, but rather” requires “ask[ing] whether [the officials in 2 question] are final policymakers for the local government in a particular area, or on a particular 3 issue.’” Id. at 753–754 (internal citation and quotation omitted) (emphasis added). 4 The parties’ arguments on liability under Monell are exceedingly thin. (See Dkt. Nos.

5 167 at 4; 170 at 15; 182 at 18; 185 at 11.) The parties offer no analysis of the City Council’s 6 policymaking authority under state law with respect to the removal of Committee members. (See 7 id.) At best, Plaintiff only impliedly suggests liability may be based on the City Council’s 8 authority as a final policymaker. (Dkt. No. 170 at 15.) Nonetheless, “the identification of 9 policymaking officials . . . is not a question of fact in the usual sense,” and “there can be no 10 justification for giving a jury the discretion to determine” where municipal policymaking 11 authority lies. Praprotnik, 485 U.S. at 124, 126. 12 The record and state law make clear the City Council has final policymaking authority 13 with respect to removal decisions, and, therefore, that the City may be liable for the City 14 Council’s vote to remove Plaintiff. In particular, Washington law vests authority in the City

15 Council, providing that the Council’s powers “includ[e] but [are] not restricted to the authority to 16 adopt ordinances and resolutions.” Wash. Rev. Code § 35.18.160. In turn, the BIMC provides 17 that Committee members are to be appointed by the Mayor and confirmed by Council. (Dkt. No. 18 103-1 at 11) (BIMC 2.16.210(E)(1)). And the City’s Manual of City Governance, adopted by 19 resolution of City Council, provides that members of committees who are appointed by the 20 Mayor or City Council and confirmed by Council “may be removed without cause by a majority 21 vote of the Council.” (Dkt. No. 169-1 at 34.) These provisions indicate the City Council has 22 final policymaking authority with respect to decisions concerning the removal of a Committee 23

24 1 member.3 See Gillette v. Delmore, 979 F.2d 1342, 1350 (9th Cir. 1992) (affirming reliance on 2 city charter and municipal ordinances in identifying final policymaker); Ellins v. City of Sierra 3 Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (looking to state statute, local ordinances, and local 4 regulations in analyzing final policymaking authority).

5 3. First Amendment Retaliation Claim 6 Plaintiff’s First Amendment retaliation claim is based on her contention that the City 7 Council voted for Plaintiff’s removal in retaliation for her June 13 email. (Dkt. No. 170 at 4.) 8 Among the points of contention between the parties are whether (1) recent Ninth Circuit caselaw 9 forecloses Plaintiff’s First Amendment retaliation claim (Dkt. Nos. 185 at 13–14; 186 at 7–10) 10 and (2) Plaintiff does not raise a dispute of fact as to the motivation of all five councilmembers 11 who voted to remove her (Dkt. Nos. 167 at 9–10; 182 at 18; 185 at 5, 18–19). The Court finds 12 these issues independently determinative of Plaintiff’s First Amendment claim and concludes 13 Plaintiff’s claim cannot succeed on both grounds. 14

3 Though not in relation to her argument concerning liability under Monell, Plaintiff maintains the 15 Municipal Code and Manual of City Governance provisions cited above do not contain a procedure for removing Committee members. (Dkt. No. 182 at 4–5.) Plaintiff thereby suggests the City 16 Council was without authority to remove her. (Id.) Specifically, Plaintiff highlights that the Manual contains a qualifier, providing that removal may occur “‘by a majority vote . . . unless 17 otherwise provided for in the Code . . . that authorized the creation of the committee.’” (Id.) (emphasis in original) (quoting Dkt. No. 169-1 at 34.) Because the Code that authorized creation 18 of the Committee includes a provision stating that members’ “term[s] . . . shall be until the completion of the subarea planning process” (Dkt. No. 103-1 at 11), Plaintiff argues this provision 19 prohibits the City Council from exercising removal authority. (Dkt. No. 182 at 5.) The Court does not find plausible Plaintiff’s suggestion that the Code’s specification of a “term” for Committee 20 members contains an unspoken prohibition on a member’s removal pursuant to the Manual. In fact, the record reflects Plaintiff herself acknowledging the City Council “has the absolute right to 21 remove [her] for any or no reason.” (Dkt. No. 184-43 at 2.) At any rate, Plaintiff’s argument would weaken her own position that Defendant is liable under Monell: If the City Council lacked 22 authority to remove a member of the Committee, the Court would have greater difficulty concluding the City Council acted as a final policymaker when it voted to remove Plaintiff. See 23 Barone, 902 F.3d at 1108 (“The final policymaker is the individual who had authority in the particular area where the constitutional violation occurred.”). 24 1 a. Applicability of Lathus 2 Defendant urges the Court to find that Plaintiff does not have an actionable First 3 Amendment claim given the Ninth Circuit’s decision in Lathus v. City of Huntington Beach, 56 4 F.4th 1238 (9th Cir. 2023). (Dkt. No. 185 at 13–14.) Plaintiff argues Lathus is distinguishable

5 and therefore not controlling. (Dkt. No. 186 at 8–10.) 6 Lathus held the First Amendment did not “protect[] a volunteer member of a municipal 7 advisory board from dismissal by the city councilperson who appointed her and [wa]s authorized 8 under a city ordinance to remove her.” Lathus, 56 F.4th at 1239. The Ninth Circuit reasoned 9 that the appointing councilperson was “allowed to ‘distance’ herself from an appointee who 10 might be a political liability,” id. at 1244, because the appointee in question effectively served as 11 the councilperson’s “‘public face’ on the board,” id. at 1242. Three “structural features” of the 12 advisory board—each which “flow[ed] directly from the municipal code”—supported this 13 conclusion: First, each councilperson was authorized to appoint a member to the board. Id. at 14 1243–44. Second, each councilperson was authorized to remove their appointee at their

15 discretion. Id. And third, the purpose of the board was “to advise about public policy” and 16 “interface with the City Council’s constituents.” Id. at 1244. 17 The Ninth Circuit’s decision in Lathus represents an application of “the Branti 18 exception”—a principle which, generally speaking, precludes a First Amendment retaliation 19 claim based on a plaintiff’s termination from public employment when the plaintiff served in a 20 policymaking or political capacity. See Lathus, 56 F.4th at 1243 n.2 (discussing Branti v. Finkel, 21 445 U.S. 507 (1980)); Hobler v. Brueher, 325 F.3d 1145, 1150 (9th Cir. 2003) (explaining “some 22 positions must be subject to patronage dismissal for the sake of effective governance and 23 implementation of policy” and that “where the Branti exception applies[,] the employee can be

24 1 fired ‘for purely political reasons’”) (internal citation omitted). The applicability of “the Branti 2 exception [] is properly determined by summary judgment . . . rather than by trial.” Id. 3 The circumstances of the instant case are similar to those in Lathus in material respects, 4 requiring dismissal of Plaintiff’s First Amendment claim. That Plaintiff was accountable to the

5 City Council as a whole, rather than a single councilperson, is not dispositive. Rather, what 6 matters is that in both Lathus and the instant case, the authority alleged to have committed 7 retaliation held power with respect to appointments and was expressly permitted to remove a 8 member without cause. See Lathus, 56 F.4th at 1243–1244. And as in Lathus, members were 9 tasked with advising the City Council on matters of policy and interfacing with the public. See 10 id. at 1244. For instance, the BIMC provides the Committee was to “[e]stablish a planning 11 process” that would be “submitted to the city council for approval,” “prepare a final report” to be 12 reviewed by the City Council, “establish a public participation process,” and “conduct an initial 13 public meeting.” (Dkt. No. 103-1 at 11–12.) Under these conditions, Committee members 14 served as “public surrogates” or “political extension[s]” of the City Council. Lathus, 56 F.4th at

15 1240, 1243. As Plaintiff in this capacity “could plainly undermine [the City Council’s] 16 credibility and goals” in initiating the subarea planning process, the City Council was entitled to 17 remove Plaintiff. Id. at 1242 (internal citation and quotation omitted). 18 b. Retaliatory Motive 19 Defendant also argues Plaintiff’s First Amendment claim cannot succeed because the 20 record does not reflect that “each of [the] five” councilmembers who voted for removal did so to 21 retaliate for Plaintiff’s speech. (Dkt. No. 185 at 5; see also Dkt. Nos. 167 at 10; 185 at 18–19.) 22 In Defendant’s view, Plaintiff improperly seeks to impose liability on the City based on evidence 23 relating to the motive of a single member of the City Council, even though liability may only be

24 1 established if each member who voted for removal did so to retaliate against Plaintiff. (Dkt. 2 Nos. 167 at 9–10; 185 at 10.) 3 Plaintiff responds that she need not prove that “all five councilmembers who voted to 4 remove her shared the same improper motive” because of the general principle that a

5 “municipality may be liable under § 1983 for a single decision by its properly constituted 6 legislative body.” (Dkt. No. 182 at 18) (internal quotation and citation omitted). Plaintiff further 7 asserts that she submitted both indirect and direct evidence that Plaintiff’s removal was in 8 retaliation for her June 13 email. (Id.) 9 Plaintiff’s § 1983 claim cannot succeed unless Plaintiff establishes that the five City 10 Council members who voted to remove her were substantially motivated by a desire to retaliate 11 for Plaintiff’s protected speech. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1071 (9th Cir. 12 2004); Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1239 (9th Cir. 1994). The Court finds 13 Kawaoka particularly instructive on this point: There, the Ninth Circuit found a municipality 14 could not be liable for an Equal Protection claim under § 1983 where the city council served as

15 the final policymaker, but “there [wa]s no evidence that” more than one “council member acted 16 with discriminatory intent or that the council as a whole took the action with discriminatory 17 intent.” Id. 18 Plaintiff argues Kawaoka is inapplicable because it’s holding was in the context of an 19 Equal Protection claim rather than a First Amendment claim. (Dkt. No. 182 at 18.) But the 20 Court does not find Kawaoka’s reasoning so confined as to render it inapplicable to a non-Equal 21 Protection claim brought under § 1983, so long as that claim requires a plaintiff to prove an 22 illegal motivation of a final policymaker. To that end, Kawaoka’s rationale for requiring a 23 plaintiff to show an illegal motivation of the city council as a whole (and not just a single

24 1 councilmember) was tied to the rule, which applies to any § 1983 claim, that a municipality 2 cannot be liable unless the constitutional violation “stem[med] from [an] ‘official municipal 3 policy.’” Kawaoka, 17 F.3d at 1239. Where the “official municipal policy” is a decision of a 4 final policymaker, and where the final policymaker is not an individual but is a legislative body,

5 a plaintiff cannot succeed by showing that only a single member of that body held an illegal 6 motivation.4 See id. 7 The evidence proffered by Plaintiff does not support a finding that the City Council as a 8 whole was substantially motivated to remove Plaintiff in retaliation for her speech. The “direct” 9 evidence to which Plaintiff cites (Dkt. No. 182 at 18) at most implicates the motivation of a 10 single councilmember, Sarah Blossom. But a considerable amount of the evidence concerns 11 statements and attitudes attributed to Plaintiff’s fellow Committee members and other 12 individuals affiliated with the City—not councilmembers. (See, e.g., Dkt. No. 184 at 24–26; 13 184-20.) The Court cannot on this record find Plaintiff’s “direct” evidence raises a dispute of 14 fact as to the motive of the five councilmembers who voted for removal.

15 The “indirect” evidence on which Plaintiff relies fares no better. In particular, Plaintiff 16 points out that her June 13 email preceded (1) the addition of an item titled “removal of a 17 committee member” on the City Council’s meeting agenda, and (2) the ultimate removal vote on 18 August 14. (Dkt. Nos. 170 at 4–5; 182 at 9, 18.) While the Court acknowledges timing may be 19 probative of retaliatory motive, the timing in the instant case is insufficient to raise a dispute of 20 fact as to the reason each councilmember voted to remove Plaintiff. Indeed, the agenda item 21

22 4 Kawaoka’s reasoning was founded on principles of municipal liability under Monell. However, as Kawaoka’s analysis is intertwined with an assessment of a substantive element of Plaintiff’s 23 First Amendment claim (i.e., retaliatory motive), the Court analyzes its applicability in conjunction with its discussion of Plaintiff’s First Amendment claim. 24 1 concerning removal was first added to the June 26 meeting agenda by the City Manager, Morgan 2 Smith, and not a member of the City Council. (Dkt. No. 184 at 23; 184-1 at 4.) Councilmember 3 Blossom thereafter moved to remove the item from the agenda on the same day. (Dkt. Nos. 184 4 at 23; 184-29 at 2.) And the item reappeared on the agenda on July 30 (Dkt. Nos. 184 at 24; 184-

5 1 at 7), more than two weeks following an email in which Blossom was asked by the Mayor 6 what she “want[s] to do in regards to Mrs. Neal” (Dkt. No. 184-31 at 2). Even assuming the 7 item’s reappearance on the agenda reflected Blossom’s input as a councilmember, it says nothing 8 about the motive of the other councilmembers. Moreover, the item’s deletion and subsequent 9 reinsertion undermines Plaintiff’s implication that removal flowed directly from her email. 10 Again, Plaintiff’s evidence is insufficient to allow a jury to conclude the City Council was 11 substantially motivated to retaliate against Plaintiff.5 12 In sum, Plaintiff’s First Amendment claim cannot succeed for at least two independent 13 reasons: First, because the City’s liability is foreclosed by Lathus. And second, because 14 Plaintiff fails to raise a dispute of fact as to the motivation of the City Council as a whole. The

15 Court GRANTS Defendant’s motion (Dkt. No. 167) and DENIES Plaintiff’s motion (Dkt. No. 16 170) with respect to Plaintiff’s First Amendment claim. 17 4. Equal Protection Claim 18 Plaintiff bases her Equal Protection claim on her contention that the City Council “treated 19 [Plaintiff] differently” by removing her from the Island Center Subarea Planning Process 20

5 Plaintiff’s partial motion for summary judgment asks the Court to construe as an admission 21 Defendant’s objection to Plaintiff’s RFA 44, which requested Defendant to admit or deny that Plaintiff “was removed from the Island Center Committee in retaliation for her June 13, 2018 22 email.” (Dkt. No. 170 at 7.) The Court declines to construe Defendant’s objection as an admission. A matter is not deemed admitted if the responding party “serves . . . a written answer or objection.” 23 Fed. R. Civ. P. 36(a)(3) (emphasis added). Plaintiff does not dispute that Defendant served an objection. 24 1 Committee, while, in comparison, demoting a Chair of ETAC. (Dkt. No. 170 at 8–9.) Plaintiff 2 asserts “the actions against both Plaintiff and the ETAC member were prompted by their speech” 3 and that Defendant cannot “show a rational basis for the difference in treatment.” (Id. at 15.) 4 As Plaintiff does not base her Equal Protection claim on membership in a protected class,

5 the Court analyzes Plaintiff’s claim as a “class of one” claim. See Village of Willowbrook v. 6 Olech, 528 U.S. 562, 564 (2000) (recognizing “successful equal protection claims brought by a 7 ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from 8 others similarly situated and that there is no rational basis for the difference in treatment”); 9 SmileDirectClub, LLC v. Tippins, 31 F.4th 1110, 1122 (9th Cir. 2022) (stating “an equal 10 protection claim can in some circumstances be sustained even if the plaintiff has not alleged 11 class-based discrimination, but instead claims that she has been irrationally singled out as a so- 12 called ‘class of one’”) (internal citation and quotation omitted). 13 Defendant argues Plaintiff’s “class of one” claim cannot succeed because, inter alia, (1) 14 “[a]llegations of different treatment based on First Amendment speech do not implicate the

15 Equal Protection Clause” (Dkt. No. 167 at 11), and (2) “a ‘class of one’ claim is not recognized” 16 when the challenged decision was by its nature discretionary and individualized (id.; see also 17 Dkt. No. 188 at 5). Plaintiff disputes that her Equal Protection claim is merely a “repackaged 18 First Amendment retaliation claim.” (Dkt. No. 182 at 19.) Plaintiff does not directly address 19 Defendant’s second argument. 20 The Court addresses each argument below, ultimately finding Plaintiff’s Equal Protection 21 claim cannot succeed on either ground raised by Defendant. 22 a. Equal Protection Claims Based on First Amendment Retaliation 23 “Federal courts have precluded assertion of First Amendment claims as Equal Protection

24 claims.” Occhionero v. City of Fresno, 2008 WL 2690431, at *8 (E.D. Cal. July 3, 2008). Put 1 differently, Equal Protection claims will not succeed when the claim, “[a]t its core,” is based on 2 allegations of “different treatment in retaliation for speech.” Id.; see also Papas v. Leonard, 3 2012 WL 1445853, at *15 (D. Ore. April 25, 2012) (“Plaintiffs’ right to be free from retaliation 4 for exercising their rights under the First Amendment must be vindicated under the First

5 Amendment rather than under the Equal–Protection Clause.”). 6 In an effort to argue her Equal Protection claim is not a “repackaged” First Amendment 7 claim, Plaintiff reframes her theory of the reason for her removal. (Dkt. No. 182 at 19.) 8 Whereas Plaintiff’s opening motion argues the City Council’s “actions against both Plaintiff and 9 the ETAC member were prompted by [each members’] speech” (Dkt. No. 170 at 15), she 10 subsequently maintains the City Council’s actions were due to “interpersonal issues” (Dkt. No. 11 186 at 12; see also Dkt. No. 182 at 19) and “ill will” against Plaintiff (id. at 19). But Plaintiff 12 cannot have it both ways: Plaintiff cannot argue for purposes of her First Amendment claim that 13 the removal was driven by her speech, while arguing for purposes of her Equal Protection claim 14 that the removal was due to interpersonal conflict.

15 Notwithstanding the shift in narrative, Plaintiff’s partial motion for summary judgment 16 and complaint make it abundantly clear she believes she was removed for speech and set out to 17 base her § 1983 claims on that premise. Indeed, her opening motion represents that her 18 “Complaint” (and not just her First Amendment Claim), “distilled to its essence, is that the City . 19 . . wrongfully removed her from [the Committee] . . . in violation of her Constitutional right to 20 free speech.” (Dkt. No. 170 at 1–2) (emphasis added). The Court rejects Plaintiff’s attempt to 21 distance her “class of one” claim from the purview of the First Amendment. As such, Plaintiff’s 22 “class of one” claim cannot succeed. 23 b. Discretionary and Individualized Decisionmaking

24 1 Defendant asks the Court to analogize the instant case to Engquist v. Oregon Dep’t of 2 Agriculture, 553 U.S. 591, 598 (2008), in which the Supreme Court held that “the class-of-one 3 theory of equal protection does not apply” to claims asserting different treatment “in the public 4 employment context.” (See Dkt. Nos. 167 at 11; 185 at 20.) As the Supreme Court reasoned,

5 employment decisions “by their nature involve discretionary decisionmaking based on a vast 6 array of subjective, individualized assessments,” such that “treating like individuals differently is 7 an accepted consequence of the discretion granted.” Id. at 603. To that end, “allowing a 8 challenge based on the arbitrary singling out of a particular person would undermine the very 9 discretion that such state officials [we]re entrusted to exercise.” Id. 10 Engquist supports the proposition that “the class-of-one doctrine should not extend to 11 forms of state action which involve discretionary decision-making.” See Mazzeo v. Gibbons, 12 2010 WL 4384207, at *7 (D. Nev. Oct. 28, 2010). Rather, the “[‘class of one’] doctrine was 13 intended for use in cases where the government departs from an objective standard.” Id. at *6. 14 Accordingly, while Plaintiff was a volunteer and not a public employee, Engquist applies with

15 the same force. See id. (“numerous district and circuit courts have extended [Engquist’s] 16 rationale to other contexts in which plaintiffs challenge discretionary state action under a class- 17 of-one theory”). The City Council’s removal decision did not involve the application of an 18 objective standard. Instead, the decision was by its nature individualized and discretionary, with 19 the City’s Manual providing for removal “without cause.” (Dkt. No. 169-1 at 34.) Plaintiff may 20 not “challenge [] what in its nature is a subjective, individualized decision.” Engquist, 553 U.S. 21 at 604. 22 Plaintiff’s Equal Protection claim cannot succeed because (1) it is founded on allegations 23 of different treatment based on speech, and (2) it seeks to challenge an inherently discretionary

24 1 and individualized decision. The Court GRANTS Defendant’s motion (Dkt. No. 167) and 2 DENIES Plaintiff’s motion (Dkt. No. 170) with respect to Plaintiff’s Equal Protection claim.6 3 5. Conspiracy Claim 4 Defendant argues Plaintiff’s § 1983 conspiracy claim fails as a matter of law because (1)

5 “[Plaintiff] cannot establish an underlying constitutional violation” and (2) “[t]he City is the only 6 Defendant in this action and cannot conspire with itself.” (Dkt. No. 167 at 12.) 7 Plaintiff responds that § 1983 claims may “lie against agents of the same defendant.” 8 (Dkt. No. 182 at 21.) Plaintiff further contends “[t]he evidence shows that” various Committee 9 members and the “former Mayor . . . conspired with then-Councilmember Sarah Blossom, then- 10 City Manager Morgan Smith, then-Planning Commissioner Jon Quitslund . . . and then-Mayor 11 Kol Medina to remove Plaintiff because of her speech . . . and/or to defame her.” (Id.) 12 Because Plaintiff cannot, as a matter of law, establish an underlying First Amendment or 13 Equal Protection violation, Plaintiff cannot prevail on her conspiracy claim. See Lacey v. 14 Maricopa County, 693 F.3d 896, 935 (9th Cir. 2012) (“Conspiracy is not itself a constitutional

15 tort under § 1983” because “there must always be an underlying constitutional violation”). 16 But even assuming the existence of an underlying constitutional violation, Plaintiff’s 17 conspiracy claim would not succeed. While Plaintiff contends courts have found § 1983 18 conspiracy claims may be brought “against agents of the same defendant,” Plaintiff does not 19

6 Plaintiff appears to contend that she brought an additional claim under the Fourteenth 20 Amendment, which she describes as a “Stigma Plus” claim. (Dkt. No. 182 at 20.) Plaintiff contends Defendant did not seek summary judgment on this claim, citing four paragraphs of her 21 complaint to demonstrate the claim was properly alleged. (Id.) (citing Dkt. No. 142 at ¶¶ 3.14– 3.16, 4.12). Upon review of Plaintiff’s complaint, the Court cannot reasonably find Plaintiff to 22 have stated a Fourteenth Amendment due process claim. See Oliver v. Ralphs Grocery Co., 654 F.3d 903, 908 (9th Cir. 2011) (a complaint must provide a defendant with fair notice of the claim). 23 The Court therefore rejects Plaintiff’s suggestion that her “stigma plus” due process claim should be permitted to proceed to trial. 24 1 bring her conspiracy claim “against agents of the same defendant.” (Dkt. No. 182 at 21.) 2 Rather, she brings her claim against a single defendant: the City. Accordingly, the Court finds 3 inapplicable Plaintiff’s contention that “agents of [a] defendant” may be sued for conspiracy. 4 See Avalos v. Baca, 517 F. Supp. 2d 1156, 1170 (C.D. Cal. 2007) (rejecting § 1983 conspiracy

5 claim because “a municipal entity cannot conspire with itself”); Rabkin v. Dean, 856 F. Supp. 6 543, 551–52 (N.D. Cal. 1994) (rejecting § 1983 conspiracy claim when “the conspiratorial 7 conduct challenged [wa]s essentially a single act by a single governmental body acting 8 exclusively through its own officers”). 9 The Court GRANTS Defendant’s motion for summary judgment (Dkt. No. 167) on 10 Plaintiff’s conspiracy claim. 11 B. Defamation Claim 12 Defendant moves for summary judgment on Plaintiff’s defamation claim (Dkt. No. 167 at 13 12), which is based on statements made during the August 14 City Council meeting (Dkt. No. 14 182 at 11, 22). In particular, Plaintiff’s defamation claim challenges statements by

15 Councilmember Sarah Blossom; Mayor Kol Medina; and a member of the City’s Planning 16 Commission, Jon Quitslund. (Id.; Dkt. No. 142 at 28–29, 33–34.) 17 Defendant argues it should not be held liable for statements of “speakers not authorized 18 to legally bind the City.” (Dkt. No. 167 at 16.) Plaintiff argues Defendant may be held liable 19 under a theory of respondeat superior, citing Robel v. Roundup Corp., 59 P.3d 611 (Wash. 20 2002), for the proposition that employers may be liable for statements of an employee made 21 when the employee “was acting within the scope of his employment.” (Dkt. No. 182 at 26.) 22 Plaintiff has not shown how Councilmember Blossom, Mayor Medina, or Planning 23 Commission member Quitslund are employees of the City. Rather, Councilmember Blossom

24 1 and the Mayor are elected officials, who, acting within the scope of their duties, are afforded 2 absolute immunity for their statements. See Bender v. City of Seattle, 664 P.2d 492, 504 (Wash. 3 1983) (examples of instances where absolute immunity is applied include “[l]egislatures in 4 debate” and “statements of executive or military personnel acting within the duties of their

5 offices”); Twelker v. Shannon & Wilson, Inc., 564 P.2d 1131, 1133 (Wash. 1977). Quitslund is a 6 member of the City’s Planning Commission. (Dkt. Nos. 184 at 39; 167 at 20.) Plaintiff does not 7 contend or show that Quitslund, as a member of the Planning Commission, was an employee7 of 8 the City, or that he was speaking in that capacity. Instead, the record reflects Quitslund spoke 9 only upon the Mayor offering to hear public comment. (Dkt. No. 102-2 at 4.) Plaintiff fails to 10 provide authority—and Court is unaware of any—that would allow the Court to hold the City 11 liable for statements made by these individuals during a City Council meeting. 12 As Plaintiff has not shown how the City may be liable for statements of elected officials 13 and a Planning Commission member at a City Council meeting, the Court need not analyze any 14 further the alleged defamatory statements Plaintiff attributes to them. The Court therefore

15 GRANTS Defendant’s motion for summary judgment (Dkt. No. 167) on defamation. 16 C. Intentional and Negligent Infliction of Emotional Distress Claims 17 Plaintiff describes her emotional distress claims as based on “Defendant’s retaliatory, 18 unconstitutional, [and] false statements made to silence Plaintiff’s perceived ‘anti-development’ 19 stance or concerns about ethics.” (Dkt. No. 182 at 27.) Among Defendant’s arguments on 20 summary judgment is that an emotional distress claim cannot be based on an unsuccessful 21 defamation claim. (Dkt. No. 167 at 22.) 22

23 7 To the contrary, Defendant represents Quitslund is a “citizen volunteer” on the City’s Planning Commission. (Dkt. No. 167 at 20.) Plaintiff does not appear to dispute this representation. 24 1 The Court agrees. Because “[a]n emotional distress claim based on the same facts as an 2 unsuccessful defamation claim ‘cannot survive as an independent cause of action,’” Plaintiff’s 3 emotional distress claims cannot succeed. Phillips v. World Pub. Co., 822 F. Supp. 2d 1114, 4 1120 (W.D. Wash. 2011); see also Carr v. Michaelson, 2002 WL 1609043, at *9 (Wash. Ct.

5 App. 2002). Moreover, the Court has already concluded Defendant may not be liable for 6 statements made by its councilmembers, the Mayor, and a member of the City’s Planning 7 Commission (speaking as a member of the public) at a City Council meeting. Plaintiff’s 8 emotional distress claims fail on this basis, as well. 9 The Court GRANTS Defendant’s motion for summary judgment (Dkt. No. 167) on 10 Plaintiff’s emotional distress claims. 11 V CONCLUSION 12 The Court GRANTS Defendant’s motion for summary judgment (Dkt. No. 167) and 13 DENIES Plaintiff’s partial motion for summary judgment (Dkt. No. 170). The Court further 14 DENIES Plaintiff’s request for judicial notice (Dkt. No. 166), finding the request immaterial to

15 the disposition of this case. 16 Having ruled in favor of Defendant as to all claims, all other pending motions (Dkt. Nos. 17 194, 197), hearings and the trial date are STRICKEN. 18 Dated this 22nd day of April 2024. 19 A 20 David G. Estudillo 21 United States District Judge

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