Sanchez v. State of Washington

• Court: District Court, W.D. Washington
• Decided: June 10, 2022
• Docket: 3:21-cv-05915
• Status: Unknown

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 MATHEW E. SANCHEZ, a single person, CASE NO. 21-5915 RJB 11 Plaintiff, ORDER ON MOTION TO DISMISS 12 v. AND MOTION FOR LEAVE TO FILE AMENDED COMPLAINT 13 STATE OF WASHINGTON, WASHINGTON STATE PATROL, 14 CARLOS RODRIGUEZ, in his individual and official capacity, MAURICE RINCON, 15 in his official and individual capacity, KATHRYN CHOVIL-PETERSON, in her 16 individual and official capacity, BARRETT CHING, in his individual and official 17 capacity, DARRELL NOYES, in his individual and official capacity, TRAVIS 18 CALTON, in his individual and official capacity, JENNIFER WILCOX, in her 19 individual and official capacity, WILLIAM STEEN, in his individual and official 20 capacity, KALEB MILLER, in his individual and official capacity, MICHAEL 21 PEASE, in his individual and official capacity, OPERATION UNDERGROUND 22 RAILROAD, INC., a foreign non-profit corporation, KITSAP COUNTY, a 23 municipal subdivision of the State of Washington, COREEN SCHNEPF, former 24 1 Kitsap County Deputy Prosecutor, in her individual and official capacities, JOHN 2 DOE and JANE DOE 1-10, 3 Defendants. 4

5 This matter comes before the Court on the Defendants Kitsap County and Coreen 6 Schnepf’s Motion for Dismissal Pursuant to Fed. R. Civ. P. 12 (b)(6) (Dkt. 39) and Plaintiff’s 7 Motion for Leave to File Amended Complaint (Dkt. 44). The Court has considered the pleadings 8 filed regarding the motions and the remaining file and is fully advised. 9 Plaintiff, Mathew Sanchez, claims that 15 named defendants and John and Jane Does 1- 10 10 violated his federal constitutional rights and committed various state torts against him in 11 connection with his arrest for committing sex crimes against a minor child. Dkt. 1-1. He 12 contends that he suffered damage as a result of defendants’ actions despite the charges against 13 him eventually being dropped. Id. 14 Defendants Kitsap County and Coreen Schnepf bring the pending motion to dismiss. All 15 defendants, however, responded in opposition to Plaintiff’s motion to file an amended complaint. 16 Dkts. 50, 51, 52. Plaintiff has not replied in support of his motion for leave to amend. For the 17 reasons set forth in this order, Kitsap County and Coreen Schnepf’s motion to dismiss should be 18 granted, and they should be dismissed from this matter without prejudice, and Plaintiff’s motion 19 for leave to amend should be denied without prejudice. 20 I. FACTS AND PROCEDURAL BACKGROUND 21 A. FACTS 22 The following facts are taken from the proposed amended complaint (Dkt. 44-1), though 23 many are also included in original complaint (Dkt. 1-1). They are assumed to be true for the 24 purposes of this order only. 1 In 2014, the Washington State Patrol’s Missing and Exploited Children’s Task Force 2 (“Task Force”) consisted of only a few members. Dkt. 44-1 at 8. In 2015, the Washington State 3 Patrol (“WSP”) entered into a contract with Operation Underground Railroad (“OUR”) to 4 support larger sting operations targeting online child predators. Id. WSP and OUR agreed in the 5 contract to work together to develop, train, consult, fund, and provide equipment for online sting

6 operations, which became known as “Net Nanny Stings.” Id. In exchange for helping with these 7 operations, OUR gained publicity, attracted donors, and generated income. Id. 8 According to the proposed amended complaint, defendant Coreen Schnepf, a former 9 Kitsap County deputy prosecutor, led planning, training, investigation, and prosecution of 10 defendants involved in Net Nanny Stings. Id. She worked closely with Task Force supervising 11 detective Carlos Rodriguez. Id. at 12. Both allegedly conspired with OUR to “target, entice, 12 entrap, and convict unsuspecting citizens – most of whom had no criminal history – to increase 13 arrest numbers and financially benefit [WSP] team members and OUR.” Id. at 8. 14 In July 2019, Plaintiff responded to a social media profile on the website “MeetMe,” a

15 website specifically intended to be used by people age eighteen or older. Id. at 10. The profile 16 depicted a woman named “Ms. Jenkins” who looked like an adult female and whose age was 17 listed as 29. Id. She appeared to be holding a “Bang” energy drink, which is not intended for 18 individuals under age 18. Id. Plaintiff’s profile indicated that he was 24 years old. Id. 19 During a series of messages exchanged on MeetMe, “Ms. Jenkins,” who was actually 20 defendant Rodriguez acting undercover, asked Plaintiff how old he “really was.” Id. Mr. 21 Sanchez said that he was 25. Id. He did not ask Ms. Jenkins how old she was, allegedly because 22 her profile said she was 29 and she appeared to be an adult. Id. Ms. Jenkins then said, “don’t get 23 mad . . . I’m 13 and UR 14, and act way older, I pretty much raised me and my sister on my 24 1 own.” Id. Plaintiff assumed this was a form of online role-play. Id. Eventually, the two 2 exchanged phone numbers and agreed to meet up. Id. at 10–11. According to Plaintiff, “[t]here 3 is nothing in the communication between [Plaintiff] and Anna Jenkins (Det. Rodriguez) that 4 would suggest that [Plaintiff] was seeking to arrange sex with actual underage girls.” Id. at 11. 5 On July 19, 2019, Plaintiff traveled to meet who he believed to be Ms. Jenkins but was instead

6 arrested as part of Net Nanny Sting 16. Task Force officers and defendants Rodriguez, Calton, 7 Chovil-Peterson, Wilcox, Ching, Noyes, Steen, Pease, and Miller were part of the sting 8 operation. Id. at 12. 9 According to the proposed amended complaint, Task Force officers attempted to entice 10 unsuspecting men without a predisposition to commit crimes. Id. at 12–13. This helped the 11 Task Force increase arrest numbers and publicly appear to be preventing sexual exploitation of 12 minors, which increased revenue. Id. at 13. 13 Though Kitsap County arrested and charged Plaintiff based on the Net Nanny Sting, it 14 eventually dropped the charges. Id. at 14–15. Nonetheless, WSP and OUR publicly referred to

15 Plaintiff as a “Dangerous Sexual Predator who targeted Children” and refuse to address or 16 remove that statement. Id. In addition to entrapment, Plaintiff claims that defendants submitted 17 false and misleading reports to the court and repeatedly deleted evidence. Dkt. 44-1 at 9. His 18 alleged injuries include medical and legal expenses and physical and emotional harm. Id. at 16. 19 B. PROCEDURAL BACKGROUND 20 On September 27, 2021, the Plaintiff, acting pro se, filed a complaint in Thurston 21 County, Washington Superior Court. Dkt. 1. Defendants removed the case to this Court on 22 December 16, 2021. Id. Counsel appeared for the Plaintiff on January 24, 2022. Dkt. 10. 23 24 1 On April 28, 2022, defendant OUR filed a motion for a more definite statement. Dkt. 33. 2 On May 5, 2022, defendants Kitsap County and Schnepf filed the pending motion to dismiss. 3 Dkt. 39. Kitsap County and Schnepf argue that there are no facts related to them to support any 4 of the eleven claims asserted in the Complaint. Id. 5 After OUR’s motion for a more definite statement was granted (Dkt. 42), the Plaintiff

6 filed the pending Motion for Leave to File Amended Complaint (Dkt. 44). On May 23, 2022, he 7 responded to Kitsap County and Coreen Schnepf’s motion to dismiss by extensively quoting to 8 the proposed amended complaint. Dkt. 47. This order addresses both pending motions. 9 II. DISCUSSION 10 A. MOTION TO DISMISS 11 Kitsap County and Coreen Schnepf’s motion to dismiss (Dkt. 39) should be granted. 12 While the Plaintiff states that he opposes the motion, he offers no reason to deny it as to the 13 claims asserted against these defendants. He bases all his responsive arguments on the proposed 14 amended complaint, not the original complaint against which defendants bring the motion to

15 dismiss. Furthermore, the complaint is vague, conclusory, and does not plausibly state a claim 16 against these defendants. Dismissal, however, should be without prejudice. Both the original 17 and proposed amended complaint allege that defendant Schnepf, a Kitsap County prosecutor, 18 assisted in planning, investigating, and prosecuting Net Nanny Sting operations. Dkts. 1-1 and 19 44-1 at 8. The proposed amended complaint claims that Kitsap County policies, practices, and 20 customs caused his constitutional violations. Dkt. 44-1 at 27. While the allegations do not 21 include sufficient factual detail to plausibly state a claim for relief, they are not clearly flawed as 22 a matter of law. Therefore, Plaintiff should be given another opportunity to state his claims 23 against these defendants. 24 1 B. MOTION FOR LEAVE 2 Under Federal Rule of Civil Procedure 15(a)(2), the court should freely grant a motion 3 for leave to file an amended complaint “when justice so requires.” This is a generous standard 4 that should be applied with “extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 5 F.3d 1048, 1051 (9th Cir. 2003). However, a court need not always grant leave and valid reasons

6 for denying leave include moving in bad faith, causing undue delay or prejudice, futility, and 7 where the amended complaint would be subject to dismissal. Architectural Bldg. Prod. V. 8 Franciscan Ceramics, 818 F.2d 1466, 1472 (9th Cir. 1987); Saul v. United States, 928 F.2d 829, 9 843 (9th Cir. 1991). Claims that do not “state a claim to relief that is plausible on its face” are 10 subject to dismissal. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 11 In Plaintiff’s proposed amended complaint, he alleges five claims for relief under 42 12 U.S.C. § 1983.1 More specifically, he claims that defendants seized and arrested him in violation 13 of his Fourth Amendment due process rights, conspired to violate his due process rights, used 14 excessive force in violation of the Fourth Amendment, engaged in judicial deception, and that

15 Kitsap County is liable for his injuries under Monell. Dkt. 44-1 at 16–19, 27. Plaintiff also 16 brings state law claims for malicious prosecution, false arrest, defamation, and negligence. Id. at 17 20–26. The Court will first address the claims raised in the proposed amended complaint, then 18 the reasons for denying the motion for leave to amend the complaint. 19 1. Unconstitutional Seizure and Arrest 20 Plaintiff repeatedly alleges that defendants entrapped him during the Sting. See Dkt. 44-1 21 at 8–9, 16. Defendants emphasize that entrapment cannot serve as the basis of a due process 22 23 1 The proposed amended complaint lists “Third Claim for Relief” twice, so the numbering for subsequent causes of 24 action is incorrect. 1 claim. Dkts. 50 at 4; 52 at 5. 2 The Ninth Circuit does not appear to have considered whether entrapment can support a 3 due process claim under § 1983, but the Supreme Court indicated in United States v. Russell that 4 it alone cannot. 411 U.S. 423 (1973). In Russell, the Court rejected a criminal defendant’s 5 argument that law enforcement officials violated his Constitutional rights by entrapping him and

6 stated that “the Government’s conduct here violated no independent constitutional right of the 7 [defendant].” Id. at 430. Other circuits have interpreted this to mean that a claim of entrapment 8 cannot support a § 1983 claim. See Stokes v. Gann, 498 F.3d 483, 485 (5th Cir. 2007) (to the 9 extent defendants’ actions constituted entrapment under state law, they do not by themselves 10 constitute a violation of a constitutional right); Smith v. Lang, 114 F.3d 1192 (7th Cir. 1997) 11 (even if a plaintiff prevailed on an entrapment defense at a criminal trial, there is no 12 constitutional violation for § 1983 purposes); DiBlasio v. City of New York, 102 F.3d 654 (2d 13 Cir. 1996) (entrapment cannot be the basis for a § 1983 failure-to-train claim); Giovanetti v. 14 Tomasi, 25 F.3d 1048 (6th Cir. 1994); Stevenson v. Bales, 986 F.2d 1429 (10th Cir. 1993) (no §

15 1983 claim because entrapment is not a constitutional violation). 16 Defendants are correct to the extent that Plaintiff claims his allegation of entrapment 17 alone states a due process claim. However, entrapment could be considered within broader 18 allegations to support a due process claim for unlawful arrest or prosecution. See Armstrong v. 19 Siskiyou Cnty. Sheriff’s Dept., Case No. CIV-S-07-1046, 2008 WL 686888, at *6 (C.D. Cal. 20 2008) (citing Baker v. McCollan, 443 U.S. 137, 142–43 (1979); Bretz v. Kelman, 773 F.2d 1026, 21 1031 (9th Cir. 1985) (“if an arrest is made in bad faith, there may be a cause of action under § 22 1983 as an illegal, unconstitutional arrest”); United States v. Chisu, 312 F. Supp. 1307, 1312 23 (D.C. Cal. 1970)); Dubner v. City of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001) (“A claim 24 1 for unlawful arrest is cognizable under § as a violation of the Fourth Amendment, provided the 2 arrest was without probable cause or justification.”); c.f. Awabdy v. City of Adelanto, 368 F.3d 3 1062, 1067 (9th Cir. 2004) (“Among the ways that a plaintiff can rebut a prima facie finding of 4 probable cause is by showing that the criminal prosecution was induced by fraud, corruption, 5 perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith.”).

6 Plaintiff does not merely allege that Defendants entrapped him. He claims that WSP 7 officers “routinely delet[ed] evidence” and “submitted false, misleading information to the 8 court[.]” Dkt. 44-1 at 8–9. He also indicates that he was arrested without probable cause. See 9 id. at 11, 15. However, aside from detailing how Plaintiff was allegedly entrapped, the 10 allegations are vague and conclusory. Plaintiff does not specify what other evidence, if any, was 11 allegedly deleted or false or which defendants were allegedly involved. He does not make clear 12 whether he intends to bring this claim against all defendants. Taken together the allegations are 13 not clear enough to determine whether Plaintiff plausibly alleges that certain or all defendants 14 unconstitutionally seized and arrested him. Therefore, Plaintiff’s proposed amended due process

15 claim would be subject to dismissal. 16 2. Conspiracy to Violate Due Process 17 To allege a conspiracy under § 1983, a plaintiff must show “an agreement or ‘meeting of 18 the minds’ to violate constitutional rights.” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) 19 (citing United Steelworkers of Am. v. Phelps Dodge Corp., 663 F.2d 1539, 1540 – 41 (9th Cir. 20 1989) (en banc)). “To be liable, each participant in the conspiracy need not know the exact 21 details of the plan, but each participant must at least share the common objective of the 22 conspiracy.” Id. Parallel conduct may be enough to plausibly allege a common objective, but it 23 must be more likely than not that an illicit agreement caused the alleged constitutional 24 1 deprivation. Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009). In addition, a plaintiff must allege a 2 viable underlying constitutional claim. Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006). 3 First, as discussed in the previous section, Plaintiff’s conspiracy claim fails because he 4 does not plausibly allege an underlying due process claim. Furthermore, Plaintiff does not 5 plausibly allege a conspiracy to violate his constitutional rights. The proposed complaint states

6 that “OUR entered into a written contract with the Washington State Patrol to assist in the 7 development, training, consulting, funding, and the providing of equipment for the Net Nanny 8 sting operations conducted in Kitsap County, and throughout Washington State[.]” Dkt. 44-1 at 9 8, 17. While Plaintiff clearly alleges an agreement, the alleged agreement is not to violate 10 constitutional rights. Working together on development, training, consulting, and fundraising 11 does not raise constitutional concerns. Plaintiff also claims that defendants failed to disclose 12 exculpatory evidence and gave the court and prosecutor false and misleading evidence. While 13 multiple people presenting misleading evidence could indicate parallel behavior, the proposed 14 amended complaint does not specify who may have been involved or what evidence they

15 misrepresented. The Court cannot determine whether parallel conduct indicates a conspiracy to 16 violate constitutional rights without more specific allegations about who did what. Therefore, 17 Plaintiff’s proposed amended complaint does not state a claim for conspiracy to violate his 18 constitutional due process rights. 19 3. Excessive Force 20 Force is “excessive” under the Fourth Amendment if it is objectively unreasonable based 21 on the totality of the circumstances. Espinosa v. City and Cnty. of San Francisco, 598 F.3d at 22 528, 537 (9th Cir. 2010). Courts use a three-step analysis to make this determination. Id. 23 First, we must assess the severity of the intrusion . . . by evaluating ‘the type and amount of force inflicted.’ Next, we evaluate the government’s interests by 24 1 assessing (1) the severity of the crime; (2) whether the suspect posed an immediate threat to the officers’ or public’s safety; and (3) whether the suspect was resisting 2 arrest or attempting to escape. Third, ‘we balance the gravity of the intrusion on the individual against the government’s need for that intrusion. 3 Id. (quoting Miller v. Clark Cnty., 340 F.3d 959, 964 (9th Cir. 2003). 4 Plaintiff does not provide enough information to make this assessment. He alleges that 5 defendants Ching, Noyes, Calton, Ricon, Steen, and Pease, all WSP officers, and affiliate law 6 enforcement officers used excessive force when the pointed their guns at him. Dkt. 44-1 at 17. 7 Pointing a gun at an unarmed suspect may constitute excessive force, Robinson v. Solano Cnty., 8 278 F.3d 1007, 1013 (9th Cir. 2002), but Plaintiff does not include enough detail about the 9 totality of the circumstances to make this assessment. Furthermore, he appears to bring this 10 claim against each defendant, but it is not clear how this claim applies to defendants other than 11 the officers who pointed a gun at him. Dkt. 44-1 at 18. Plaintiff must provide more information 12 about the totality of the circumstances to determine whether the force used against him could 13 have been objectively unreasonable and, if so, which defendants were responsible. Therefore, 14 Plaintiff’s proposed amended complaint does not state an excessive force claim. 15 4. Judicial Deception 16 To state a claim for judicial deception, a plaintiff must be able to demonstrate (1) 17 deliberate falsehood or reckless disregard for the truth and (2) the search and arrest would not 18 have occurred but for the dishonesty. Chism v. Washington, 661 F.3d 380, 387 (9th Cir. 2011). 19 Plaintiff’s judicial deception claim is vague and conclusory. He states that various 20 defendants made deliberate falsehoods, misrepresentations, and omissions in sworn statements 21 either to the Kitsap County Prosecutor’s office or the Kitsap County court. Dkt. 44-1 at 20. It is 22 not clear what falsehoods, misrepresentations, or omissions were hidden that would have 23 24 1 prevented his arrest, nor does he allege who made the falsehoods, misrepresentations, or 2 omissions. Therefore, Plaintiff does not plausibly state a judicial deception claim. 3 5. Monell 4 Plaintiff appears to allege a Monell claim against Kitsap County only. Dkt. 44-1 at 27. 5 “To establish liability for governmental entities under Monell, a plaintiff must prove ‘(1)

6 that the plaintiff possessed a constitutional right of which she was deprived; (2) that the 7 municipality had a policy; (3) that this policy amounts to deliberate indifference to the plaintiff’s 8 constructional right; and (4) that the policy is the moving force behind the constitutional 9 violation.’” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. 10 Sch. Dist. No. 40 Cnty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). As with a conspiracy 11 claim, a plaintiff cannot support a Monell claim without showing an underlying constitutional 12 violation. See id. 13 Plaintiff’s Monell claim fails both because, as explained in the previous sections, he does 14 not state an underlying constitutional violation and because he does not identify the policy or

15 practice at issue with sufficient detail. He claims that “failure to train and supervise prosecutors” 16 was the proximate cause of his injuries. Dkt. 44-1 at 27. To support a failure to train claim, the 17 need for additional training must be so obvious that it amounts to “deliberate indifference.” 18 Connick v. Thompson, 563 U.S. 51, 61 (2011). Plaintiff alleges that defendant Schnepf, a Kitsap 19 County Prosecutor, “assisted in planning, training, investigation, and later prosecution of 20 defendants surrounding the Net Nanny sting operations” (Dkt. 44-1 at 8) and that “the Kitsap 21 County Prosecuting Attorney’s Office allowed non-law enforcement OUR employees to be 22 present and participate in the undercover operation” (id. at 12). The Court cannot assess whether 23 these actions were deliberately indifferent without more information about what it knew, what its 24 1 policy or practice entailed, and how it allegedly harmed Plaintiff. Therefore, Plaintiff’s proposed 2 amended complaint does not plausibly state a claim for relief under Monell. 3 6. State Law Claims 4 While the parties do not seriously address Plaintiff’s state law claims, Plaintiff’s motion 5 for leave to amend should also be denied as to these claims. Plaintiff must state a federal cause

6 of action for the Court to have supplemental jurisdiction over the related state law claims. 28 7 U.S.C. § 1367. Furthermore, the claims appear to suffer in large part from the same failures as 8 the federal claims. For example, Plaintiff appears to base his malicious prosecution claim on the 9 allegation that law enforcement should have known that he was not a sexual predator and that 10 they acted unreasonably in pursuing charges against him. The proposed amended complaint 11 alleges that WSP officers drafted false police reports and materially misled the court, and that 12 Plaintiff was arrested and prosecuted without probable cause. Dkt. 44-1 at 21. However, it is 13 not clear what was allegedly false or misleading about WSP officer’s reports. Moreover, 14 Plaintiff brings this claim against all defendants, but it is not clear how this claim applies to all

15 defendants, notably to OUR, which is a private entity. 16 7. Conclusion 17 For the reasons listed in this Order, Plaintiff’s proposed amended complaint would be 18 subject to dismissal. Therefore, his motion for leave to file an amended complaint should be 19 denied. However, it is not clear whether he might be able to state a claim by providing more 20 clarity and factual information. While the Court is cognizant of the potential burden and 21 prejudice associated with numerous opportunities to amend a complaint, especially in a 22 complicated case like this that includes so many defendants and causes of action, dismissal 23 should nonetheless be without prejudice. 24 1 Therefore, IT IS HEREBY ORDERED THAT: 2  Defendants Kitsap County and Coreen Schnepf’s Motion for Dismissal Pursuant 3 to Fed. R. Civ. P. 12 (b)(6) (Dkt. 39) IS GRANTED, and they are dismissed from 4 this matter without prejudice; 5  Plaintiff’s Motion for Leave to Filed Amended Complaint IS DENIED without

6 prejudice. 7 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 8 to any party appearing pro se at said party’s last known address. 9 Dated this 10th day of June, 2022. 10 A

11 ROBERT J. BRYAN 12 United States District Judge

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