Emmanuel et al v. King County et al, No. 2:2018cv00377 - Document 91 (W.D. Wash. 2020)
Court Description: ORDER granting Defendants' 61 Motion for Summary Judgment; denying as moot Defendants' 85 Motion motion to supplement the summary judgment record. Signed by Judge James L. Robart. (PM)
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Emmanuel et al v. King County et al Doc. 91 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 KEITH EMMANUEL, et al., CASE NO. C18-0377JLR ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Plaintiffs, 11 v. 12 13 KING COUNTY, et al., Defendants. 14 15 16 I. INTRODUCTION Before the court is Defendants King County, King County Prosecutor Daniel 17 Satterberg, and King County Sheriff John Urquhart’s motion for summary judgment. 18 (See MSJ (Dkt. # 61).) Plaintiff Richard Homchick opposes the motion. (See Resp. (Dkt. 19 # 75-2). 1) The court has considered the motion, the parties’ submissions in support of 20 and in opposition to the motion, the relevant portions of the record, and the applicable 21 1 22 As discussed below, the court considers Mr. Homchick’s “corrected” response and refers to it as his response in this order. See infra § III.A. ORDER - 1 Dockets.Justia.com 1 law. Being fully advised, 2 the court GRANTS Defendants’ motion for summary 2 judgment. 3 4 II. A. BACKGROUND Factual Background 5 1. King County’s Efforts to Combat Prostitution and Trafficking 6 This case involves an investigation into the exploitation of women through 7 prostitution and the aftermath of that investigation. Beginning in 2012, Prosecutor 8 Satterberg directed his criminal division to explore effective “anti-demand strategies” to 9 address the widespread problem of commercial sex exploitation. (See Clark Decl. (Dkt. 10 # 63) ¶ 5.) Data suggested that only about 196 of the 100,000 sex buyers in King County 11 were charged each year for buying sex. (Id. ¶ 7.) The King County Prosecuting 12 Attorney’s Office (“KCPAO”) began working with other law enforcement agencies on its 13 strategies, and their efforts became known as “Operation No Impunity.” (Id. ¶ 6; 1st 14 Montgomery Decl. ¶ 7, Ex. L (“Handout”).) KCPAO also focused its efforts on public 15 information and education strategies, with one goal being to inform potential sex buyers 16 2 17 18 19 20 21 22 Mr. Homchick and Defendants request oral argument. (See MSJ at 1; Resp. at 1.) Oral argument is not necessary where the non-moving party suffers no prejudice. See Houston v. Bryan, 725 F.2d 516, 517-18 (9th Cir. 1984); Mahon v. Credit Bureau of Placer Cty. Inc., 171 F.3d 1197, 1200 (9th Cir. 1999) (holding that no oral argument was warranted where “[b]oth parties provided the district court with complete memoranda of the law and evidence in support of their respective positions,” and “[t]he only prejudice [the defendants] contend they suffered was the district court’s adverse ruling on the motion.”). “When a party has an adequate opportunity to provide the trial court with evidence and a memorandum of law, there is no prejudice [in refusing to grant oral argument].” Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998) (quoting Lake at Las Vegas Inv’rs Grp., Inc. v. Pac. Malibu Dev. Corp., 933 F.2d 724, 729 (9th Cir. 1991)) (alterations in Partridge). Here, the issues have been thoroughly briefed by the parties, and oral argument would not be of assistance to the court. See Local Rules W.D. Wash. LCR 7(b)(4). Accordingly, the court DENIES the parties’ requests for oral argument. ORDER - 2 1 of the risks and impacts of their activities. (Clark Decl. ¶ 7.) Between November 2014, 2 and April 2016, KCPAO suggests it impacted over 1.67 million buyer disruptions, 3 including 334 prosecutions. (Id. ¶ 8.) 4 An advocacy group, Demand Abolition, awarded $205,001.00 in grants to 5 KCPAO, including a $50,000 grant in early 2014. (Id. ¶¶ 9-10.) Demand Abolition 6 seeks to “eradicate[e] the illegal commercial sex industry in the U.S. by combatting the 7 demand for purchased sex and increasing accountability for buyers.” (See 2nd Cassubhai 8 Decl. (Dkt. # 74-1) ¶ 4, Ex. 37.) Additionally, representatives from KCPAO and 9 Demand Abolition communicated frequently during the Operation No Impunity 10 investigation. (See, e.g., id. ¶ 4, Ex. 35.) 11 2. Mr. Homchick’s Promotion of Prostitution and Arrest 12 Mr. Homchick began buying sex in 2010. (1st Montgomery Decl. (Dkt. # 62) ¶ 3, 13 Ex. C (“Homchick Dep.”) at 52:17-25.) By 2014, he began buying sex about twice a 14 month, and by 2016, the frequency increased to once a week. (Id. at 53:15-16.) Over this 15 period, he saw between 30 and 40 different prostituted persons who were typically 16 Korean nationals. (Id. at 100:24-101:2.) Mr. Homchick frequently wrote reviews of his 17 visits under the screen name “Spider Rico” on The Review Board (“TRB”), a 18 password-protected website that served as “a marketplace based upon transactions for sex 19 exchanging” that would “connect[] users with providers.” (Id. at 101:23-103:7; 1st 20 Montgomery Decl. ¶ 6, Ex. E (“Proffer”) at 8:20-24, ¶ 5, Ex. D (“Homchick Reviews”).) 21 Mr. Homchick stated that he wrote reviews in order to help the women he visited “stay 22 busy” and make a “revenue stream.” (Proffer at 12: 20-25.) ORDER - 3 1 Based largely on his online reviews, Mr. Homchick was invited to and joined a 2 group that calls itself the League of Extraordinary Gentlemen (“the League”), an 3 “exclusive group of men dedicated to the commercial sexual exploitation of women, 4 particularly foreign women brought into . . . the United States for prostitution purposes.” 5 (Proffer at 22:20-22.) Members of the League operated additional websites, including 6 www.theloeg.net and www.kgirlsdelights.com. (1st Montgomery Decl. ¶ 2, Ex. B at 1.) 7 Mr. Homchick assisted www.kgirlsdelights.com by uploading pictures of prostituted 8 women. (Homchick Dep. at 109:1-16.) He was also involved in maintaining profiles on 9 www.kgirlsdelights.com for several different regions (see Proffer at 54:15-55:17) and 10 continued to post his own reviews, again under the “Spider Rico” screen name 11 (Homchick Dep. at 110:14-23 (testifying that “Spider Rico was known”).) 12 While Mr. Homchick was engaging in the above activity, the King County 13 Sheriff’s Office and the Bellevue Police Department were investigating the League’s 14 activities. (1st Montgomery Decl. ¶ 2, Ex. B at 1.) That investigation led to Mr. 15 Homchick’s arrest and that of several other men (“the Arrestees”). (See 1st Montgomery 16 Decl. ¶ 7, Ex. F (“Press Conf. Tr.”).) 17 3. Press Conference and Press Release 18 Mr. Homchick’s claims against Defendants in this lawsuit largely revolve around 19 statements made at a press conference (the “Press Conference”) and in a press release 20 (the “Press Release”) announcing the results of the KCSO and BPD’s investigation into 21 the League. (See SAC (Dkt. # 58) ¶¶ 57-96.) On January 7, 2016, Prosecutor Satterberg, 22 Sheriff Urquhart, and Bellevue Police Chief Steven Mylett held the Press Conference to ORDER - 4 1 announce the results of the investigation, including several arrests. (See Press Conf. Tr.) 2 During the Press Conference, Defendants made several statements that are at issue in this 3 case: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 • Sheriff Urquhart: Obviously this is a prostitution case. This is a human trafficking case is a better way to put this. (Id. at 3.) • Sheriff Urquhart: [The prostituted women] weren’t allowed out for the most part. They weren’t given any money, to speak of, for the most part. And they were trafficked up and down the West Coast to other similar situations. (Id. at 6.) • Sheriff Urquhart: These women were trafficked. They were true victims. And this type of crime cannot continue in our area. (Id. at 9.) • Prosecutor Satterberg: It just so happens that January is human trafficking awareness month. This is what human trafficking looks like. (Id. at 18-19.) • Prosecutor Satterberg: They euphemistically called themselves hobbyists. And their hobby was the criminal sexual abuse of women brought here, against their will, in servitude to pay off debts back in Korea. (Id. at 19-20.) • Sheriff Urquhart: [The prostituted women] were abused and commercially raped by men here in King County. That’s what this case is about. And that’s what is fueling us. Because this is an international human trafficking ring. It’s right here in King County, Washington. And we’re offended by it. (Id. at 39.) • Police Chief Mylett: [I]n cases such as this, the sexual contact was not consensual, and these women were being forced to perform sexual acts through exploitation, force and coercion. (Id. at 16.) • Police Chief Mylett: These women are being abused, they’re being raped, they’re being murdered. (Id. at 26.) In conjunction with the Press Conference, KCPAO issued the Press Release. (Clark Decl. (Dkt. # 63) ¶ 11, Ex. B (“Press Release”).) The Press Release described the investigation, the arrests, and the activities of the League and the above-referenced ORDER - 5 1 review websites. (See Press Release at 1-3.) In addition, the Press Release included the 2 following statements: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 • The investigation resulted in the filing of criminal charges against over a dozen suspects in connection with the sexual exploitation of women who were being brought into the United States and then prostituted. • An investigation by the King County Sheriff’s Office, with the assistance of the Bellevue Police Department and support from the F.B.I. and the King County Prosecutor’s Office, culminated in the arrests of 11 men earlier this week who were local members of the online network that used its resources to promote prostitution and facilitate sexual exploitation. • ‘The Sheriff’s Office is committed to holding accountable those who prosper from the crime of human trafficking, and to freeing the victims of that crime to live a better life,’ said King County Sheriff John Urquhart. • Bellevue Chief of Police Steve Mylett said, ‘This investigation highlights the fact that human trafficking and sexual exploitation in all its forms, including crimes involving force, fraud, and coercion are happening in communities throughout this nation every day. We will continue to work with our law enforcement partners and victim support organizations to hold the buyers and promoters of these criminal activities accountable for their involvement while identifying and assisting the victims of human trafficking in every possible way.’ • The large-scale investigation also focused on brothel owners, who established a pipeline of foreign women to the Pacific Northwest to meet the burgeoning demand for prostitution fostered by TRB and The League. The brothels provided everything for the prostituted persons, including apartments, advertising, customers and condoms. The prostituted individuals are typically foreign nationals who are transported from major city to major city so that there are always new workers and new ‘experiences’ for the brothels to advertise in order to meet the ever-growing online demand for commercial sex. The women rarely, if ever, left the apartments, and were told by bookers and schedulers in Los Angeles and Dallas when they would be having sex, with whom, and where. The brothels typically made the prostituted women available 12 to 14 hours a day, seven days a week. • ‘These charges reveal a part of our community that most people do not want to believe exists,’ said King County Prosecutor Dan Satterberg. ‘Because ORDER - 6 1 they had money, these men gained access to sexually abuse these vulnerable young women, then put their energies toward a campaign to encourage many more men to do the same. This is what human trafficking looks like,’ he added. 2 3 (Press Release at 2-3.) Defendants did not mention Mr. Homchick by name in the Press 4 Release. (See generally id.) 5 Finally, Defendants provided a handout (“the Handout”) at the Press Conference 6 detailing the Operation No Impunity investigation. (See Handout.) The Handout 7 includes a review written by Mr. Homchick of one of his visits with a prostituted woman. 8 (See id. at 6.) 9 4. Mr. Homchick’s Criminal Case and Guilty Plea 10 KCPAO charged Mr. Homchick by information with one count of Promoting 11 Prostitution in the Second Degree. (Id. ¶ 2, Ex. H (“Information”).) On February 12, 12 2016, Mr. Homchick pled guilty by straight plea to the charged crime, admitting that he 13 “did knowingly advance the profession of prostitution through my internet activities on 14 websites such as: thereviewboard.net, kgirldelights.com and through my email 15 activities.” (Id. ¶ 2, Ex. I at 13-14.) Mr. Homchick was sentenced based on the 16 stipulated facts to zero days in custody, 120 hours of community service, a class, and 17 standard assessments. (Id. ¶ 2, Ex. J.) 18 As part of his plea agreement, Mr. Homchick stipulated to a number of facts, 19 including that he “is a member of an exclusive group of men dedicated to the commercial 20 sexual exploitation of women, particularly foreign women brought into the United States 21 // 22 ORDER - 7 1 for prostitution purposes.” (Id. ¶ 2, Ex. B (“Prosecutor’s Statement”) at 1.) 3 2 Additionally, Mr. Homchick stipulated that his actions promoting prostitution “directly 3 expanded and increased the market for exploited women in the region,” that as a result of 4 his actions “numerous Asian brothels have sprung up in the region to respond directly to 5 the demand for prostitution,” and that “[t]hese brothels serve as part of a national pipeline 6 that transports exploited women around the country for use in prostitution.” (Id.) Mr. 7 Homchick further stipulated that he “maintained constant communication centered on 8 [his] obsession with sexual exploitation” and “contributed to a national network of 9 commercial sexual exploitation and personally engaged in this exploitation time and time 10 again.” (Id.) 11 B. 12 Procedural History Mr. Homchick initially brought this lawsuit on behalf of himself and two other 13 plaintiffs, Keith Emmanuel and Charles Peters, against King County, the City of 14 Bellevue, Sheriff Urquhart, Prosecutor Satterberg, and Police Chief Mylett. (Compl. 15 (Dkt. # 1) at 1.) Early in this case, Defendants filed a combined motion to dismiss under 16 Federal Rule of Civil Procedure 12(b)(6) based largely on Heck v. Humphrey, 512 U.S. 17 477 (1994), and a motion to stay the case pending the outcome of Mr. Homchick’s 18 criminal case. (See MTD (Dkt. # 17).) In relevant part, the court denied the motion to 19 dismiss Mr. Homchick’s federal claims. (7/6/18 Order (Dkt. # 25) at 13.) In doing so, 20 3 21 22 Exhibit B to Mr. Montgomery’s declaration includes both the prosecutor’s statement and the certificate for determination of probable cause. The court cites to the prosecutor’s statement as “Prosecutor’s Statement” and the Certificate for Determination of Probable Case as “Probable Cause Cert.” ORDER - 8 1 the court noted that “Mr. Homchick does not concretely identify how Defendants violated 2 his right to due process.” (Id. at 11.) Although the court did not dismiss Mr. Homchick’s 3 federal claims based on Heck, the court held that Mr. Homchick “cannot proceed on any 4 theory that [his guilty] plea was not knowing and voluntary.” (Id. at 12.) 5 On November 15, 2018, the court granted the parties’ stipulated motion for 6 Plaintiffs Keith Emmanuel and Charles Peters to voluntarily dismiss their claims pursuant 7 to Federal Rule of Civil Procedure 41(a)(1). (11/16/18 Order (Dkt. # 36) at 2.) On April 8 2, 2019, the court granted the parties’ stipulated motion to dismiss Mr. Homchick’s 9 claims against Police Chief Mylett and the City of Bellevue with prejudice. (4/2/219 10 Order (Dkt. # 43) at 3.) 11 On June 4, 2020, King County, Prosecutor Satterberg, and Sheriff Urquhart filed 12 their present motion for summary judgment. (See MSJ.) The court now considers their 13 motion. 14 15 III. A. ANALYSIS Initial Matter 16 Before turning to the merits of Defendants’ summary judgment motion, the court 17 first addresses an initial matter raised by Mr. Homchick’s counsel. Mr. Homchick filed 18 his response to Defendants’ motion for summary judgment and three declarations on June 19 22, 2020. (See Orig. Resp. (Dkt. # 70); Homchick Decl. (Dkt. # 71); Reiten Decl. (Dkt. 20 # 72); 1st Cassubhai Decl. (Dkt. # 73).) Mr. Cassubhai’s first declaration included five 21 exhibits. (See 1st Cassubhai Decl. ¶¶ 4-5, 8, Exs. A-E.) The following day, Mr. 22 Homchick’s counsel filed a praecipe (see 1st Praecipe (Dkt. # 74)) seeking to have the ORDER - 9 1 court consider an additional declaration from Mr. Cassubhai (see 2nd Cassubhai Decl.). 2 Mr. Cassubhai’s second declaration attaches 51 exhibits. (See 2nd Cassubhai Decl. ¶ 4, 3 Exs. 1-51.) Mr. Homchick’s originally filed responsive brief cites to many of these 4 exhibits. (See generally Orig. Resp.) In the first praecipe, Mr. Homchick’s counsel 5 states that “[t]he reason that these materials were not included with [Mr. Homchick’s 6 responsive brief] is due to a number of complications that arose during undersigned 7 counsel’s efforts to assemble the voluminous materials on his own, remotely away from 8 the usual office technology and support staff that would be accessible under normal 9 circumstances.” (Id. at 1-2.) 10 On June 24, 2020, Mr. Homchick’s counsel filed a second praecipe. (See 2nd 11 Praecipe (Dkt. # 75).) The second praecipe seeks to substitute a “corrected” responsive 12 brief (see Resp.) that fixes “a number of record citations in the filed response in order to 13 conform with the submitted evidence” because “exhibit numbering was not final at the 14 time of the filing of the response.” (Id. at 2.) Mr. Homchick’s counsel represents in the 15 second praecipe that the “corrected” responsive brief “should mirror in all respects what 16 was sent to Defendants yesterday,” with the exception of “fixing an inadvertent page 17 break.” (Id.) Mr. Homchick’s counsel also submitted a redlined version of the corrected 18 response. (See Redlined Resp. (Dkt. # 75-1).) Defendants do not address Mr. 19 Homchick’s praecipes in their reply brief and cite to Mr. Homchick’s “corrected” 20 response when referring to Mr. Homchick’s response brief. (See, e.g., Reply (Dkt. # 76) 21 at 4.) 22 // ORDER - 10 1 “Parties are expected to file accurate, complete documents, and the failure to do so 2 may result in the court’s refusal to consider later filed corrections or additions to the 3 record.” Local Rules W.D. Wash. LCR 7(m). Local Civil Rule 7(m) instructs parties to 4 file a praecipe “[i]n the event that an error is discovered.” Id. A party filing a praecipe to 5 correct an error must include the corrected document and must specify the corrections by 6 line and page number. Id. “If the party seeks to add an additional document in support of 7 a previous filing, the praecipe must set forth why the document was not included with the 8 original filing and reference the original filing by docket number.” Id. 9 The court will consider Mr. Homchick’s late filings in this instance. Because both 10 parties refer to and rely on the corrected filings, and because Defendants have not raised 11 any opposition to the court considering the late filings, the court concludes that declining 12 to consider the late filings would serve to create confusion and risk deciding Defendants’ 13 motion on a less-than-complete record. However, the court cautions Mr. Homchick’s 14 counsel that the problems with his filings appear to be due to a lack of preparation, not to 15 inadvertent errors. Simply put, counsel failed to timely file nearly all the exhibits he 16 intended to attach to his client’s responsive brief and included citations in his responsive 17 brief to exhibits that he had yet to file. The court expects counsel to be more prepared in 18 the future. 19 B. 20 Legal Standard Summary judgment is appropriate if the evidence viewed in the light most 21 favorable to the non-moving party shows “that there is no genuine dispute as to any 22 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. ORDER - 11 1 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Beaver v. Tarsadia Hotels, 2 816 F.3d 1170, 1177 (9th Cir. 2016). A fact is “material” if it might affect the outcome 3 of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute 4 is “‘genuine’ only if there is sufficient evidence for a reasonable fact finder to find for the 5 non-moving party.” Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir. 2001) 6 (citing Anderson, 477 U.S. at 248-49). 7 The moving party bears the initial burden of showing there is no genuine dispute 8 of material fact and that it is entitled to prevail as a matter of law. Celotex, 477 U.S. at 9 323. If the moving party does not bear the ultimate burden of persuasion at trial, it can 10 show the absence of such a dispute in two ways: (1) by producing evidence negating an 11 essential element of the nonmoving party’s case, or (2) by showing that the nonmoving 12 party lacks evidence of an essential element of its claim or defense. Nissan Fire & 13 Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party 14 meets its burden of production, the burden then shifts to the nonmoving party to identify 15 specific facts from which a factfinder could reasonably find in the nonmoving party’s 16 favor. Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250. 17 C. 18 Defamation “A defamation action consists of four elements: (1) a false statement [about the 19 plaintiff], (2) publication, (3) fault, and (4) damages.” Duc Tan v. Le, 300 P.3d 356, 363 20 (Wash. 2013). A plaintiff can allege the false statement prong by alleging facts showing 21 that the statement is provably false or “leaves a false impression due to omitted facts.” 22 See Yeakey v. Hearst Commc’ns, Inc., 234 P.3d 332, 335 (Wash. Ct. App. 2010) (citing ORDER - 12 1 Mohr v. Grant, 108 P.3d 768, 773 (Wash. 2005)). “Defamation by implication occurs 2 when ‘the defendant juxtaposes a series of facts so as to imply a defamatory connection 3 between them.’” Corey v. Pierce Cty., 225 P.3d 367, 373 (Wash. Ct. App. 2010) 4 (quoting Mohr, 108 P.3d at 774). 5 Washington courts do “not require a defamation defendant to prove the literal truth 6 of every claimed defamatory statement.” Id. at 775. Rather, “[a] defendant need only 7 show that the statement is substantially true or that the gist of the story, the portion that 8 carries the ‘sting,’ is true.” Id. (quoting Mark v. Seattle Times, 635 P.2d 1081, 1092 9 (Wash. 1981)). The court, not the jury, determines the “sting” of a report. See id. “The 10 ‘sting’ of a report is defined as the gist or substance of a report when considered as a 11 whole.” Id. (quoting Herron v. King Broad., 776 P.2d 98, 102 (Wash. 1989). “Where a 12 report contains a mixture of true and false statements, a false statement (or statements) 13 affects the ‘sting’ of a report only when ‘significantly greater opprobrium’ results from 14 the report containing the falsehood than would result from the report without the 15 falsehood.” Herron, 776 P.2d at 102. To be actionable, the allegedly defamatory 16 statement “must be a statement of fact, not a statement of opinion.” Life Designs Ranch, 17 Inc. v. Sommer, 364 P.3d 129, 135 (Wash. Ct. App. 2015). Additionally, courts are 18 “bound to invest words with their natural and obvious meaning and may not extend 19 language by innuendo or by the conclusions of the pleader.” Lee v. Columbian, Inc., 826 20 P.2d 217, 219 (Wash. Ct. App. 1991) (internal quotation omitted). 21 22 A number of privileges and immunities may bar a defamation claim in some instances. Under the fair report privilege, a report may not be the target of a defamation ORDER - 13 1 claim if “(1) the report is attributable to an official proceeding and (2) the report is an 2 accurate or a fair abridgement of the official report.” McNamara v. Koehler 429 P.3d 6, 3 12 (Wash. Ct. App. 2018). “[T]he fair report privilege applies to news media and other 4 types of media, including websites, webpages, and blogs, reporting on official public 5 proceedings, including judicial proceedings.” Id. The privilege is not limited solely to 6 members of the traditional news media. Id. “For a report to be a fair abridgment of an 7 official proceeding, surgical precision is not required so long as the report is substantially 8 accurate and fair.” Id. (quoting Alpine Indus. Computers, Inc. v. Cowles Pub. Co., 57 9 P.3d 1178, 1187 (Wash. Ct. App. 2002)). “In the summary judgment context, 10 the plaintiff will not overcome the fair reporting privilege if the reviewing court 11 determines as a matter of law that the challenged report is a fair abridgment.” Id. 12 (quoting Alpine, 57 P.3d at 1187). 13 Additionally, law enforcement agencies have “a qualified privilege when releasing 14 information to the public or news media concerning official activities.” Turngren v. King 15 Cty., 705 P.2d 258, 268 (Wash. 1985) (citing Bender v. Seattle, 664 P.2d 492 (Wash. 16 1983)). However, “[a] person abuses the qualified privilege by making a statement 17 knowing it to be false or with reckless disregard as to its truthfulness.” Id. “In order to 18 defeat a motion for summary judgment based upon a qualified privilege, the party 19 prosecuting an action for libel and slander must meet the limited burden of presenting 20 specific facts creating a genuine issue as to the question of whether the defendant’s 21 statements were made after a fair and impartial investigation or upon reasonable grounds 22 // ORDER - 14 1 for belief in their truth.” Id. at 268-69 (citing Twelker v. Shannon & Wilson, Inc., 564 2 P.2d 1131, 1134-35 (1977)). 3 Mr. Homchick alleges that certain statements Defendants made at the Press 4 Conference, in the Press Release, and in the Handout defamed him. (See SAC 5 ¶¶ 169-78.) Defendants move for summary judgment on Mr. Homchick’s defamation 6 claim on the basis that the statements do not meet the elements of a defamation claim. 7 (See MSJ at 13-16, 25-27.) Additionally, Defendants challenge Mr. Homchick’s 8 defamation claim on several other grounds, including that Mr. Homchick cannot show 9 malice or damages and that several privileges and immunities bar Mr. Homchick’s claim. 10 11 (Id. at 17-19.) The statements at issue fall into two categories: (1) statements that Mr. Homchick 12 contends accuse him of trafficking crimes, and (2) statements that Mr. Homchick 13 contends accuse him of additional crimes and abuse of women more generally. The court 14 analyzes Defendants’ motion for summary judgment with respect to each of these two 15 groups of statements. 16 1. Alleged Accusations of Criminal Trafficking 17 The first grouping of statements that Mr. Homchick alleges defamed him relate to 18 the term “trafficking.” Among the statements Defendants made regarding trafficking 19 include the following: 20 21 22 • Sheriff Urquhart: Obviously this is a prostitution case. This is a human trafficking case is a better way to put this. (Press Conf. Tr. at 3.) • Sheriff Urquhart: [The prostituted women] weren’t allowed out for the most part. They weren’t given any money, to speak of, for the most part. And they ORDER - 15 1 were trafficked up and down the West Coast to other similar situations. (Id. at 6.) 2 • Sheriff Urquhart: These women were trafficked. They were true victims. And this type of crime cannot continue in our area. (Id. at 9.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 • Prosecutor Satterberg: It just so happens that January is human trafficking awareness month. This is what human trafficking looks like. (Id. at 18-19.) • ‘The Sheriff’s Office is committed to holding accountable those who prosper from the crime of human trafficking, and to freeing the victims of that crime to live a better life,’ said King County Sheriff John Urquhart. (Press Release at 2.) • ‘These charges reveal a part of our community that most people do not want to believe exists,’ said King County Prosecutor Dan Satterberg. ‘Because they had money, these men gained access to sexually abuse these vulnerable young women, then put their energies toward a campaign to encourage many more men to do the same. This is what human trafficking looks like,’ he added. (Id. at 2.) Additionally, the Press Release includes the following statement from Police Chief Mylett, who is no longer a defendant in this case: Bellevue Chief of Police Steve Mylett said, ‘This investigation highlights the fact that human trafficking and sexual exploitation in all its forms, including crimes involving force, fraud, and coercion are happening in communities throughout this nation every day. We will continue to work with our law enforcement partners and victim support organizations to hold the buyers and promoters of these criminal activities accountable for their involvement while identifying and assisting the victims of human trafficking in every possible way.’ (Id. at 2.) 19 At a fundamental level, the parties dispute to what extent these statements 20 accuse Mr. Homchick himself of “trafficking,” and whether “trafficking” as Defendants 21 used the term refers to a specific trafficking crime. As Defendants’ correctly point out, 22 Mr. Homchick’s name was never mentioned in either the Press Conference or the Press ORDER - 16 1 Release. (See generally Press Conf. Tr.; Press Release.) The only place Mr. Homchick’s 2 name appeared was in the accompanying Handout, and only in reference to a single 3 review Mr. Homchick left on www.thereviewboard.net. (See Handout at 3.) Rather, 4 Defendants generally spoke about the Arrestees as a group of “12 to 14 members of The 5 League in the Seattle area.” (Press Conf. Tr. at 5.) 6 Mr. Homchick “must submit convincingly clear proof of his . . . identity as a target 7 of an allegedly libelous statement to withstand a defense motion for summary judgment.” 8 Camer v. Seattle Post-Intelligencer, 723 P.2d 1195, 1200 (Wash. Ct. App. 1986) (citing 9 Sims v. Kiro, Inc., 580 P.2d 642, 645 (Wash. Ct. App. 1978)). “The identification of the 10 one defamed must be certain and apparent from the words themselves.” Id. “One cannot 11 by implication identify oneself as the target of an alleged libel if the allegedly libelous 12 statement does not point to him or her.” Id. “It is not necessary that the plaintiff be 13 mentioned by name in order to recover damages, but it is sufficient if the audience will 14 conclude from a perusal of the article that the plaintiff is the one against whom 15 publication is aimed.” Id. Moreover, 16 18 “[o]ne who publishes defamatory matter concerning a group or class of persons is subject to liability to an individual member of it if, but only if: (a) the group or class is so small that the matter can reasonably be understood to refer to the member, or (b) the circumstances of publication reasonably give rise to the conclusion that there is particular reference to the member.” 19 Sims v. Kiro, Inc., 580 P.2d 642, 646 (Wash. Ct. App. 1978) (quoting Restatement 20 (Second) of Torts § 564A (1977)). 17 21 22 A review of the trafficking-related statements to which Mr. Homchick points makes clear that they do not accuse the Arrestees of trafficking crimes, but rather relate ORDER - 17 1 to other aspects of the “large-scale investigation” known as Operation No Impunity and 2 about the practice of trafficking and prostitution in the region generally. That 3 investigation focused not only on those promoting prostitution and soliciting prostituted 4 women, but “also focused on brothel owners, who established a pipeline of foreign 5 women to the Pacific Northwest to meet the burgeoning demand for prostitution fostered 6 by TRB and The League.” (Press Release at 2.) Therefore, statements that “these 7 women were trafficked” or about a broader criminal trafficking enterprise do not target 8 Mr. Homchick. 9 Additional statements Defendants made at the Press Conference specifically 10 distinguish the actions of the Arrestees accused of promoting prostitution—who included 11 Mr. Homchick—from the broader trafficking economy. Defendants made clear that the 12 arrestees were being charged with the crime of promoting prostitution, not criminal 13 trafficking. (See, e.g., Press Conf. Tr. at 7 (“[W]e want to send a message to the men in 14 the Seattle area that want to think about starting a website like this, and you are 15 committing a crime of promoting prostitution in the second degree, and those are the 16 arrests we have made now. . . .”), 20 (“These defendants, we allege, promoted the 17 continued exploitation of these women on the site they called TheReviewboard.net. They 18 solicited and encouraged other men to go and pay for sex with these women, and then to 19 post reviews of them.”).) 20 Defendants further clarified their allegations against the Arrestees in response to 21 questions from the press. For example, one member of the press stated that “promoting 22 prostitution is a Class C felony” that carries “one to three months,” and asked if there ORDER - 18 1 “was any talk” about “going after [the Arrestees] federally or with RICO.” (Press Conf. 2 Tr. at 37-38.) Prosecutor Satterberg responded: “Well, promoting prostitution in this 3 case, for the members of The League and the people who put this Review Board together, 4 means that they simply got together to advance prostitution. And I think that’s an 5 accurate label. That may not be where the -- the end of this investigation. It may lead us 6 to other places.” (Id. at 38.) Another question from the press was even more direct: 7 “What about using human trafficking charges?” (Id. at 39.) Prosecutor Satterberg 8 responded: 9 10 11 Again, we’re starting today with the crimes that we know that we can prove. We know that there are people, and they’re not necessarily local, they may be in other parts of the West Coast, that are more involved in the actual receipt of women who are forced, by their criminal counterparts in Korea, to be part of this thing. We know it goes much deeper than what we’ve seen today. 12 (Id. at 39.) In response to another press question about whether the League was 13 “involved in bringing these women here at all,” Sheriff Urquhart responded that for the 14 most part the League “was involved once they got here in promoting them,” again 15 distinguishing the actions of the Arrestees from those who allegedly trafficked the 16 women into the United States in the first place. (Id. at 42.) 17 Given that Defendants repeatedly and clearly distinguished their accusations 18 against the Arrestees from their statements about those who bring the women to the 19 United States, Defendants’ statements about the investigation and trafficking broadly 20 cannot be read to accuse Mr. Homchick of a trafficking crime. Similarly, broader 21 statements about what “this case is about” are not about Mr. Homchick, because those 22 ORDER - 19 1 statements also refer to a broader investigation that goes beyond the Arrestees. See Sims, 2 580 P.2d at 645 (“One cannot by implication identify himself as the target of an alleged 3 libel if the allegedly false statement does not point to him.”). 4 Indeed, elsewhere in his responsive brief, Mr. Homchick appears to concede that 5 statements about Defendants’ broader investigation are not about him. (See Resp. at 6 21-22.) In their motion, Defendants contend that even if the trafficking-related 7 statements targeted Mr. Homchick, Mr. Homchick admitted to involvement in trafficking 8 as part of the stipulation he entered as part of his plea agreement. (See Plea Agreement 9 (1st Montgomery Decl. ¶ 3, Ex. A (“Plea Agreement”); Prosecutor’s Statement at 1.) Mr. 10 Homchick stipulated that “[h]is actions were part of a sophisticated criminal enterprise 11 centered around ‘trafficking’ and ‘human trafficking,’ involving foreign nationals who 12 were ‘trafficked from major city to major city’ for sexual exploitation.” (MSJ at 16 13 (quoting Prosecutor’s Statement at 1).) In response, Mr. Homchick argues that the 14 “Certification of Probable Cause and Prosecutor’s Statement included background 15 information on the investigation that globally applied to all [D]efendants” and “any 16 reference to ‘trafficking,’ even under Defendants’ personal definition of the term, did not 17 connote that Plaintiff himself was specifically involved in that conduct.” (See Resp. at 18 21-22.) In other words, for purposes of avoiding his admission of facts about trafficking, 19 Mr. Homchick contends the statements are generalized and not about him specifically; 20 but for purposes of withstanding summary judgment on his defamation claim, he 21 contends the opposite—that the even more general statements at the Press Conference 22 and in the Press Release specifically targeted him. (Id.) Mr. Homchick cannot have it ORDER - 20 1 both ways. Because Defendants’ statements about trafficking crimes were not about Mr. 2 Homchick, Defendants are entitled to summary judgment on Mr. Homchick’s defamation 3 claim to the extent it rests on such statements. 4 2. Additional Statements 5 Mr. Homchick contends that Defendants’ motion focuses solely on the 6 “trafficking” statements and fails to address statements about other “criminal activity 7 involving force, fraud or coercion, including associating [Mr. Homchick] with . . . sex 8 slavery, kidnapping, rape, criminal sexual abuse, and debt bondage of South Korean 9 women—all of which are provably false statements of fact.” (Resp. at 16.) In doing so, 10 Mr. Homchick cites primarily to his operative complaint—not evidence in the record— 11 and does not specify the statements to which he refers, or even the portion of his 12 operative complaint where those allegations may be found. (See generally id.) 13 Nevertheless, the parties discuss several statements that appear in the record and 14 that reference or relate to some form of “fraud, force, or coercion” or “sex slavery, 15 kidnapping, rape, criminal sexual abuse, [or] debt bondage”: 16 17 18 19 20 21 22 • Prosecutor Satterberg: They euphemistically called themselves hobbyists. And their hobby was the criminal sexual abuse of women brought here, against their will, in servitude to pay off debts back in Korea. (Press Conf. Tr. at 19-20.) • Sheriff Urquhart: [The prostituted women] were abused and commercially raped by men here in King County. That’s what this case is about. And that’s what is fueling us. Because this is an international human trafficking ring. It’s right here in King County, Washington. And we’re offended by it. (Id. at 39.) • Prosecutor Satterberg: Because they had money, these men gained access to sexually abuse these vulnerable young women, then put their energies toward ORDER - 21 1 a campaign to encourage many more men to do the same. (Press Release at 2.) 2 Additionally, Police Chief Mylett made the following statements: 3 4 5 6 7 • Police Chief Mylett: [I]n cases such as this, the sexual contact was not consensual, and these women were being forced to perform sexual acts through exploitation, force and coercion. (Press Conf. Tr. at 16.) • Police Chief Mylett: These women are being abused, they’re being raped, they’re being murdered. (Id. at 26.) As discussed above, Defendants delineated multiple times the differences between 8 what they alleged the Arrestees did—promoting prostitution through review websites— 9 and what they allege a broader group of individuals did: forcing women against their will 10 to travel to the United States to engage in prostitution. See supra § III.C.1. Similarly, 11 the context of the Press Release and Press Conference made clear that none of the 12 Arrestees were accused of kidnapping, murder, or rape, and that they were only charged 13 with promoting prostitution. See id. 14 The parties may disagree on the semantics of what specific activities constitute 15 “sexual abuse,” “commercial rape,” and “commercial exploitation.” However, to the 16 extent the remaining statements about “hobbyists,” “these men,” and the Arrestees target 17 Mr. Homchick, they are insufficient to withstand summary judgment on Mr. Homchick’s 18 defamation claim because the “sting” of Defendants’ statements about Mr. Homchick in 19 the Press Conference and Press Release are true. See Mohr, 108 P.3d at 775 (“A 20 defendant need only show that the statement is substantially true or that the gist of the 21 story, the portion that carries the ‘sting,’ is true.”); id. (holding that the court, not the jury, 22 determines the “sting” of a report); see also Herron, 776 P.2d at 102 (“Where a report ORDER - 22 1 contains a mixture of true and false statements, a false statement (or statements) affects 2 the ‘sting’ of a report only when ‘significantly greater opprobrium’ results from the 3 report containing the falsehood than would result from the report without the 4 falsehood.”). 5 Among the facts to which Mr. Homchick stipulated are that Mr. Homchick “is a 6 member of an exclusive group of men dedicated to the commercial sexual exploitation of 7 women, particularly foreign women brought into the United States for prostitution 8 purposes.” (Prosecutor’s Statement at 1 (emphasis added).) Additionally, Mr. Homchick 9 stipulated that his actions promoting prostitution “directly expanded and increased the 10 market for exploited women in the region,” that as a result of his actions “numerous 11 Asian brothels have sprung up in the region to respond directly to the demand for 12 prostitution” and that “[t]hese brothels serve as part of a national pipeline that transports 13 exploited women around the country for use in prostitution.” (Id.) Mr. Homchick further 14 stipulated that he “maintained constant communication centered on [his] obsession with 15 sexual exploitation” and “contributed to a national network of commercial sexual 16 exploitation and personally engaged in this exploitation time and time again.” Id. Mr. 17 Homchick may not relitigate these facts to which he stipulated. See Wingate v. City of 18 Seattle, 198 F. Supp. 3d 1221, 1226 (W.D. Wash. 2016) (noting that parties cannot 19 challenge stipulated facts made the during course of their prosecutions); (see also 7/6/18 20 Order at 12) (ruling that Mr. Homchick “cannot proceed on any theory that [his guilty] 21 plea was not knowing and voluntary.”).) 22 // ORDER - 23 1 Mr. Homchick claims that he is not proceeding “on any theory that his plea was 2 not knowing or voluntary.” (Resp. at 33.) Because Mr. Homchick admitted to 3 contributing “to a national network of commercial sexual exploitation and personally 4 engaged in this exploitation time and time again,” Mr. Homchick’s defamation claim 5 must rest on fine-tooth distinctions between “sexual exploitation” (to which he admitted) 6 and “sexual abuse,” “commercial rape,” and “commercial exploitation” (which he 7 contends defamed him). These distinctions are too fine to sustain a defamation claim. 8 Even if those terms were meaningfully different—and it is far from clear that they are— 9 the court concludes that the “sting” of the Press Release and Press Conference, when 10 considered as a whole, is true. See Mohr, 108 P.3d at 775. As discussed above, 11 Defendants made clear that the Arrestees—which included Mr. Homchick, although they 12 did not use his name—were charged with promoting prostitution, not more serious crimes 13 such as trafficking, rape, or murder. See supra § III.C.1. Defendants’ use of these 14 additional terms must be read in that context and cannot be fairly read to allege that Mr. 15 Homchick committed crimes beyond the crime of promoting prostitution that he was 16 charged with and to which he pleaded guilty. See id. (“The ‘sting’ of a report is defined 17 as the gist or substance of a report when considered as a whole.”) (quoting Herron, 776 18 P.2d at 102). 19 20 For these reasons, the court concludes that Defendants are entitled to summary judgment on Mr. Homchick’s defamation claim. 4 21 4 22 In Defendants’ reply brief, Defendants move to strike a “report summary” submitted by Lauren A. Freeman on behalf of Mr. Homchick on the ground that her interpretations of the ORDER - 24 1 2 D. False Light “False light differs from defamation in that it focuses on compensation for mental 3 suffering, rather than reputation.” Corey v. Pierce Cty., 225 P.3d 367, 373 (Wash. Ct. 4 App. 2010). Nevertheless, “like defamation, false light claims require a showing of 5 falsity and knowledge of, or reckless disregard for that falsity.” Id. “A false light claim 6 arises when ‘someone publicizes a matter that places another in a false light if (a) the 7 false light would be highly offensive to a reasonable person and (b) the actor knew of or 8 recklessly disregarded the falsity of the publication and the false light in which the other 9 would be placed.’” Id. (quoting Eastwood v. Cascade Broad. Co., 722 P.2d 1295, 1297 10 (Wash. 1986)). “[A] plaintiff must present a prima facie case of false light to overcome a 11 motion for summary judgment.” Seaquist v. Caldier, 438 P.3d 606, 616 (Wash. Ct. App. 12 2019) (affirming a summary judgment in favor of the defendant where the plaintiffs 13 failed to present prima facie evidence of falsity). 14 Mr. Homchick rests his false light claim on the same statements made by 15 Defendants at the Press Conference, in the Press Release, and in the Handout. (See Resp. 16 at 30.) For the same reasons Mr. Homchick fails to show falsity—and that several of the 17 alleged statements were about him in the first place—for his defamation claim, see supra 18 19 20 21 22 Washington Rules of Professional Conduct amount to opinions of law that are reserved for the court. (See Reply at 19 (citing 2nd Cassubhai Decl. ¶ 4, Ex. 1 (“Freeman Rpt.”).) Mr. Homchick relies on Ms. Freeman’s report primarily to attack Defendants’ invocation of the law enforcement privilege. (See Resp. at 28.) Because the court need not address the law enforcement privilege to dispose of Mr. Homchick’s defamation claim, the court denies as moot Defendants’ motion to strike Mr. Freeman’s report. For the same reasons, the court denies as moot Mr. Homchick’s separately filed motion to supplement the summary judgment record (see Mot. to Supplement (Dkt. # 85)) with the expert rebuttal expert report of Bruce A. Green, which is directed at Ms. Freeman’s report. ORDER - 25 1 § III.C, he fails to show falsity for his false light claim. Therefore, Defendants are 2 entitled to summary judgment on Mr. Homchick’s false light claim. 3 E. 4 Aiding and Abetting Defamation and False Light Mr. Homchick includes two claims in his operative complaint for aiding and 5 abetting allegedly defamatory statements by Police Chief Mylett, who is no longer a 6 defendant in this case, Demand Abolition, and “City of Bellevue Agents.” (See SAC 7 ¶¶ 189-93.) Defendants contend they are entitled to summary judgment on these claims 8 (see MSJ at 26-27), and the court agrees. Mr. Homchick concedes that “there is no 9 specific case” in a Washington court recognizing a cause of action for aiding and abetting 10 defamation or false light but contends that “there is nothing extraordinary about the 11 theory under basic principles of common law.” (Resp. at 31.) Even if the court were to 12 recognize an aiding and abetting theory for defamation or false light, Mr. Homchick has 13 not met his burden to show that the underlying statements of which he complains are 14 defamatory or placed him in a false light. Thus, Defendants are entitled to summary 15 judgment on Mr. Homchick’s aiding and abetting claims as well. 16 F. 17 Intentional Infliction of Emotional Distress The burden of proof on an intentional infliction of emotional distress (“IIED”) 18 claim is stringent. See Lyons v. U.S. Bank Nat. Ass’n, 336 P.3d 1142, 1151 (Wash. 2014). 19 To prevail on an IIED claim, “a plaintiff must prove (1) outrageous and extreme conduct 20 by the defendant, (2) the defendant’s intentional or reckless disregard of the probability 21 of causing emotional distress, and (3) actual result to the plaintiff of severe emotional 22 // ORDER - 26 1 distress.” Steinbock v. Ferry Cty. Pub. Util. Dist. No. 1, 269 P.3d 275, 282 (Wash. Ct. 2 App. 2011). 3 “The first element requires proof that the conduct was ‘so outrageous in character, 4 and so extreme in degree, as to go beyond all possible bounds of decency, and to be 5 regarded as atrocious, and utterly intolerable in a civilized community.’” Lyons, 336 6 P.3d at 1151 (quoting Robel v. Roundup Corp., 59 P.3d 611, 619 (Wash. 2002); Dicomes 7 v. State, 782 P.2d 1002, 1012 (Wash. 1989)). “The question of whether certain conduct 8 is sufficiently outrageous is ordinarily for the jury, but it is initially for the court to 9 determine if reasonable minds could differ on whether the conduct was sufficiently 10 extreme to result in liability.” Id. (quoting Dicomes, 782 P.2d at 1013). Similarly, “[i]t is 11 for the court to determine whether on the evidence severe emotional distress can be 12 found; it is for the jury to determine whether, on the evidence, it has in fact 13 existed.” Id. (quoting Restatement (Second) of Torts § 46 (1965)). 14 Defendants are entitled to summary judgment on Mr. Homchick’s IIED claim 15 because reasonable minds could not differ on whether Defendants actions at the Press 16 Conference and in the Press Release went “beyond all possible bounds of decency.” 17 Lyons, 336 P.3d at 1151. As discussed above, Defendants announced the initial results of 18 a broad investigation into prostitution and trafficking in the Seattle area, and did not 19 accuse Mr. Homchick of crimes beyond those with which he was charged. See supra 20 § III.C. Although the topics addressed at the Press Conference and in the Press Release 21 are not for the faint of heart, discussing Defendants’ investigation into these activities is 22 hardly outrageous. ORDER - 27 1 G. Negligent Infliction of Emotional Distress 2 Negligent infliction of emotional distress (“NIED”) is a narrowly construed tort 3 under which a plaintiff must prove (1) that he or she suffered emotional distress that is 4 within the scope of foreseeable harm of the negligent conduct, (2) the plaintiff reasonably 5 reacted given the circumstances, and (3) objective symptomatology confirms the 6 distress.” Repin v. State, 392 P.3d 1174, 1184 (Wash. Ct. App. 2017) (citing Bylsma v. 7 Burger King Corp., 293 P.3d 1168, 1170-71 (Wash. 2013)). “[T]o satisfy the objective 8 symptomology requirement . . . a plaintiff’s emotional distress must be susceptible to 9 medical diagnosis and proved through medical evidence.” Hegel v. McMahon, 960 P.2d 10 424, 431 (Wash. 1998). The plaintiff must provide “objective evidence regarding the 11 severity of the distress, and the causal link between the observation at the scene and the 12 subsequent emotional reaction.” Id. 13 Defendants contend that they owed no relevant duty of care to Mr. Homchick, and 14 that Mr. Homchick fails to provide evidence of any medical diagnosis that supports the 15 objective symptomology element. Mr. Homchick’s response does not refute these 16 arguments and does not point to medical evidence of objective symptomology. (See 17 generally Resp.) Accordingly, Defendants are entitled to summary judgment on Mr. 18 Homchick’s NIED claim. 19 H. 20 Claims Under 42 U.S.C. § 1983 Mr. Homchick brings two claims against Defendants under 42 U.S.C. § 1983, one 21 for Fourteenth Amendment due process violations (SAC ¶¶ 149-58) and one for “abuse 22 // ORDER - 28 1 of process” (id. ¶¶ 159-68). Defendants move for summary judgment on both claims. 2 (See MSJ at 12-25.) 3 Section 1983 provides a private right of action against government officials for a 4 deprivation “of any rights, privileges, or immunities secured by the Constitution and 5 laws.” 42 U.S.C. § 1983. “The purpose of § 1983 is to deter state actors from using the 6 badge of their authority to deprive individuals of their federally guaranteed rights and to 7 provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 8 (1992). Section 1983 is not itself a source of substantive rights. Graham v. Connor, 490 9 U.S. 386, 393-94 (1989). Rather, it provides a cause of action for the vindication of 10 federal rights. Id. “[S]ection 1983 ‘imposes liability for violations of rights protected by 11 the Constitution, not for violations of duties of care arising out of tort law.’” Johnson v. 12 Barker, 799 F.2d 1396, 1399 (9th Cir. 1986) (quoting Baker v. McCollan, 443 U.S. 137, 13 146 (1979)). “The Fourteenth Amendment is not a ‘font of tort law to be superimposed 14 upon whatever systems may already be administered by the States.’” Id. (quoting Paul 15 v. Davis, 424 U.S. 693, 701 (1976)). “In order to achieve constitutional import, there 16 must be a deprivation of a protected interest.” Id. 17 1. Due Process Claim 18 The Fourteenth Amendment’s guarantee of due process applies when a 19 constitutionally protected liberty or property interest is at stake. Vanelli v. Reynolds Sch. 20 Dist. No. 7, 667 F.2d 773, 777 (9th Cir. 1982). An analysis of a due process claim 21 requires the court to ask “(1) Was the plaintiff deprived of a protected interest; and (2) if 22 // ORDER - 29 1 so, what process was due?” Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982); see 2 also Mishler v. Nev. State Bd. of Med. Examiners, 896 F.2d 408, 409 (9th Cir. 1990). 3 Defendants discuss Mr. Homchick’s defamation allegations as part and parcel of his 4 § 1983 claim for due process violations. (See, e.g., MSJ at 12-13 (“[Mr.] Homchick’s 5 due process theory under [§] 1983 revolves around defamation. . . . To establish a claim 6 for defamation under § 1983, [Mr.] Homchick must first establish defamation under state 7 law.”).) In response, Mr. Homchick states that he “is not seeking to federalize his 8 common law defamation claim and, thus, no response to the defamation-plus line of 9 argument is necessary.” (Resp. at 34 n.9.) However, Mr. Homchick does not identify 10 any other basis for his due process claim. (See id. at 33 (stating that Mr. Homchick “does 11 not accept” that “King County can conflate the prostitution crime for which he pled out 12 with accusations of sex trafficking, sex slavery, rape, kidnaping, criminal sexual abuse, 13 and other conduct involving force or coercion”).) The most charitable view of Mr. 14 Homchick’s due process claim is that it relates to either vague allegations of impropriety 15 with respect to his state court prosecution (which he is barred from challenging under 16 Heck), or with respect to King County’s relationship with Demand Abolition. In either 17 case, however, Mr. Homchick fails to identify the liberty or property right that he alleges 18 Defendants violated. (See generally Resp.) 19 This is not the first time Mr. Homchick has failed to identify the theory behind his 20 § 1983 due process claim. In denying Defendants’ earlier motion to dismiss Mr. 21 Homchick’s federal claims, the court noted that Mr. Homchick “does not concretely 22 identify how Defendants violated his right to due process.” (7/6/18 Order at 11.) ORDER - 30 1 Although the court did not dismiss Mr. Homchick’s federal claims based on Heck, the 2 court held that Mr. Homchick “cannot proceed on any theory that [his guilty] plea was 3 not knowing and voluntary.” (Id. at 12.) Now, at the summary judgment stage, Mr. 4 Homchick’s failure to identify a protected liberty or property interest is fatal to his due 5 process claim. 5 6 2. Abuse of Process Claim 7 In the first instance, the court notes that the Ninth Circuit has never held that an 8 abuse of process claim is cognizable under § 1983. See West v. City of Mesa, 708 F. 9 App’x 288, 292 (9th Cir. 2017) (concluding that “[e]ven assuming an abuse of process 10 claim is cognizable under § 1983 in our circuit, [the plaintiff] failed to plead sufficient 11 facts to establish the elements of such a claim”). Indeed, “[m]ost federal courts to 12 consider whether a state actor’s alleged abuse of process can give rise to a constitutional 13 claim under § 1983 have concluded that there is no constitutional violation absent 14 conscience-shocking egregious wrongdoing.” Brown v. Lever, No. 15 // 16 17 18 19 20 21 22 5 Mr. Homchick requests that the court “allow him to complete discovery that could inform the Court’s review of whether the conduct at issue arises to conscience-shocking.” (Resp. at 33.) Mr. Homchick also includes, in a standalone paragraph, a request for a “continuance” on the grounds that “additional discovery may be helpful before determination of at least the federal claims.” (Id. at 34.) “If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. Civ. P. 56(d). Mr. Homchick’s counsel contends that more discovery is necessary to determine whether Defendants’ actions with respect to their relationship with Demand Abolition “shock the conscience.” (See 1st Cassubhai Decl. ¶ 3.) However, Mr. Homchick fails to identify what facts he hopes to uncover with this additional discovery and fails to explain what liberty or property interest of Mr. Homchick’s is at stake, as is necessary to sustain a due process claim. Therefore, the court DENIES Mr. Homchick’s request for a Rule 56(d) continuance. ORDER - 31 1 2:17-cv-00828-JAD-PAL, 2018 WL 1903120, at *6 (D. Nev. Apr. 20, 2018) (citing 2 Martin A. Schwartz, Section 1983 Claims & Defenses, § 3.18 Malicious Prosecution; 3 Abuse of Civil Process (4th ed. 2018 Supp.) (collecting cases)). 4 Even if the court were to recognize an abuse of process claim under § 1983, Mr. 5 Homchick’s claim fails for a similar reason as his due process claim, namely that he does 6 not identify the process that was abused. At best, Mr. Homchick contends that an abuse 7 of process claim arises in the presence of “conscience-shocking conduct,” and argues that 8 King County’s relationship with Demand Abolition somehow amounts to such conduct. 9 However, Mr. Homchick cites no authority for the proposition that a county receiving 10 funding from an advocacy organization aligned with the county’s priorities constitutes an 11 abuse of process. 6 Accordingly, Defendants are entitled to summary judgment on Mr. 12 Homchick’s abuse of process claim. 13 3. Monell Claim Against Defendant King County 14 In addition to the individual Defendants, Mr. Homchick alleges his § 1983 claims 15 against Defendant King County on the basis that King County “failed to train and/or 16 supervise its employees with deliberate indifference” to Mr. Homchick’s rights. (SAC 17 ¶¶ 155, 166.) Under the Monell doctrine, “a municipality cannot be held liable under 18 § 1983 on a respondeat superior theory.” Monell v. New York City Dep’t of Soc. Servs., 19 // 20 21 22 6 Mr. Homchick’s failure to identify a protected liberty or property interest or an abuse of process also entitles Defendants to qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (explaining that government officials are entitled to qualified immunity if the plaintiff fails to point to facts that support a violation of a clearly established constitutional right) (discussing Saucier v. Katz, 533 U.S. 194, 201 (2001)). ORDER - 32 1 436 U.S. 658, 691 (1978). “Instead, a plaintiff can allege that the action inflicting injury 2 flowed from either an explicitly adopted or a tacitly authorized city policy.” Vinatieri v. 3 Mosley, 787 F. Supp. 2d 1022, 1034-35 (N.D. Cal. 2011) (citing Monell, 436 U.S. at 4 690-91); Harris v. City of Roseburg, 664 F.2d 1121, 1130 (9th Cir. 1981) (“Official 5 policy within the meaning of Monell [encompasses situations] where a municipality 6 impliedly or tacitly authorized, approved, or encouraged illegal conduct by its police 7 officers.”) (internal quotations and citations omitted) (alterations in Harris)). “[B]ecuase 8 Monell held that a municipality may not be held liable under a theory of respondeat 9 superior, a plaintiff must show that the municipality’s deliberate indifference led to the 10 omission and it caused the employed to commit the constitutional violation.” Vinatieri, 11 787 F. Supp. 2d at 1035 (citing Gibson v. Cty. of Washoe, Nev., 290 F.3d 1175, 1186 (9th 12 Cir. 2002)). “In order to do so, the plaintiff must also show that the municipality was on 13 actual or constructive notice that its omission would likely result in a constitutional 14 violation.” Id. (citing Gibson, 290 F.3d 1175 at 1186; Farmer v. Brennan, 511 U.S. 825, 15 841 (1994)). 16 Taken together, to survive summary judgment on his Monell claim, Mr. Homchick 17 must show “(1) that an officer employed by [King County] violated [Mr. Homchick’s] 18 rights; (2) that [King County] has customs or policies that amount to deliberate 19 indifference . . .; and (3) that these policies were the moving force behind the officer’s 20 violation of [Mr. Homchick’s] constitutional rights, in the sense that [King County] 21 would have prevented the violation with an appropriate policy.” See id. at 1035 22 (citing Gibson, 290 F.3d 1175 at 1186; Amos v. City of Page, 257 F.3d 1086, 1094 (9th ORDER - 33 1 Cir. 2001)). A Monell claim must be based on “a deliberate choice to follow a course of 2 action . . . made from among various alternatives by the official or officials responsible 3 for establishing final policy with respect to the subject matter in question.” See Gillette v. 4 Delmore, 979 F.2d 1342, 1347 (9th Cir. 1992); see also id. (“The cases make clear that 5 the unconstitutional discretionary actions of municipal employees generally are not 6 chargeable to the municipality under section 1983.”). 7 Defendants contend they are entitled to summary judgment on Mr. Homchick’s 8 § 1983 claim against King County because Mr. Homchick fails to demonstrate a basis for 9 Monell liability. (MSJ at 20.) Mr. Homchick spends only two paragraphs in his 10 responsive brief on his Monell claim and fails to identify (1) any constitutional violation 11 or (2) any King County policy that was the “moving force” behind such a violation. (See 12 Resp. at 32.) Mr. Homchick’s only substantive argument is that “the resolution of [Mr. 13 Homchick’s] claim against King County under Monell flows in large part from 14 Defendants’ broad admissions concerning their ideological and policy-based views 15 conflating prostitution and trafficking.” (Id.) In making this argument, Mr. Homchick 16 fails to cite any evidence in the record and fails to cite legal authority for the proposition 17 that Defendants’ “ideological and policy-based views” rise to the level of a constitutional 18 violation against Mr. Homchick. Accordingly, Defendant King County is entitled to 19 summary judgment on Mr. Homchick’s Monell claim. 20 // 21 // 22 // ORDER - 34 1 2 IV. CONCLUSION For the foregoing reasons, the court GRANTS Defendants’ motion for summary 3 judgment (Dkt. # 61) and DENIES AS MOOT Defendants’ motion to supplement the 4 summary judgment record (Dkt. # 85). 5 Dated this 21st day of August, 2020. 6 7 A 8 JAMES L. ROBART United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 35
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