Eslick v. State of Washington et al, No. 2:2021cv00282 - Document 34 (E.D. Wash. 2021)
Court Description: ORDER granting 20 Motion to Dismiss for Failure to State a Claim and granting in part and denying in part 30 Motion to Strike. Defendants Anna Gigliotti and Grant County are terminated from this action. Signed by Judge Thomas O. Rice. (BF, Paralegal)
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Eslick v. State of Washington et al Doc. 34 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.350 Page 1 of 19 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 PATRICK ESLICK, NO. 2:21-CV-0282-TOR Plaintiff, 8 9 10 11 12 v. STATE OF WASHINGTON; JASON P. AEBISCHER; GRANT COUNTY, WASHINGTON; ANNA GIGLIOTTI; CITY OF MOSES LAKE, WASHINGTON; TRAVIS RUFFIN; and JOSE PEREZ, ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE 13 Defendants. 14 15 BEFORE THE COURT are Grant County Defendants’ Motion to Dismiss 16 (ECF No. 20) and Motion to Strike (ECF No. 30). These matters were submitted 17 for consideration without oral argument. The Court has reviewed the record and 18 files herein, the completed briefing and is fully informed. 19 BACKGROUND 20 This matter arises from events following a traffic stop in July 2019. At ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 1 Dockets.Justia.com Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.351 Page 2 of 19 1 approximately 1:15AM, Plaintiff was pulled over in Moses Lake, Washington for 2 driving without his headlights turned on. ECF No. 1 at 5, ¶¶ 3.2–3.3. Plaintiff was 3 eventually arrested on a suspicion of Driving Under the Influence (DUI). ECF No. 4 1-1 at 23–31. The vehicle Plaintiff was driving at the time was not his own; it was 5 registered to a third party who was not present at the time. ECF Nos. 1 at 6, ¶ 3.6; 6 1-1 at 33. The car was towed from the scene and subsequently impounded. ECF 7 Nos. 1 at 11, ¶ 3.31; 1-1 at 33. Plaintiff was not ultimately charged with DUI but 8 was cited for Negligent Driving 1st Degree. ECF No. 1-1 at 40. The citation was 9 later dismissed following a hearing. Id. at 49. 10 While the negligent driving charge was still pending, Plaintiff sought a 11 hearing to contest the impoundment of the vehicle. ECF No. 1 at 13–14, ¶ 3.37. 12 An impound hearing was held on September 27, 2019 before Grant County District 13 Court Commissioner Anna Gigliotti, who found the impound proper. ECF Nos. 1 14 at 14, ¶ 3.38; 1-1 at 43. Plaintiff subsequently appealed the decision, but the 15 outcome of the appeal is not apparent from the pleadings. ECF No. 1-1 at 44. 16 Plaintiff also filed an administrative tort claim against the State of Washington on 17 July 1, 2021; only the denial letter is presently before the court. ECF Nos. 1 at 4, ¶ 18 2.5; 1-1 at 50. The letter was issued on September 18, 2021. Id. 19 20 Plaintiff filed the operative Complaint on September 24, 2021, alleging various state and federal law violations. ECF No. 1. Defendant Grant County and ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 2 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.352 Page 3 of 19 1 Commissioner Gigliotti (collectively “Grant County Defendants”) move for 2 dismissal of all claims asserted against them on the grounds that Plaintiff has failed 3 to state claims upon which relief may be granted. 4 DISCUSSION 5 6 I. Motion to Dismiss A motion to dismiss for failure to state a claim under Rule 12(b)(6) “tests the 7 legal sufficiency” of the plaintiff’s claims. Navarro v. Block, 250 F.3d 729, 732 8 (9th Cir. 2001); Fed. R. Civ. P. 12(b)(6). To withstand dismissal, a complaint must 9 contain “enough facts to state a claim to relief that is plausible on its face.” Bell 10 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility 11 when the plaintiff pleads factual content that allows the court to draw the 12 reasonable inference that the defendant is liable for the misconduct alleged.” 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). This requires the 14 plaintiff to provide “more than labels and conclusions, and a formulaic recitation of 15 the elements.” Twombly, 550 U.S. at 555. While a plaintiff need not establish a 16 probability of success on the merits, he or she must demonstrate “more than a sheer 17 possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678. 18 When analyzing whether a claim has been stated, the Court may consider the 19 “complaint, materials incorporated into the complaint by reference, and matters of 20 which the court may take judicial notice.” Metzler Inv. GMBH v. Corinthian ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 3 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.353 Page 4 of 19 1 Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 2008) (citing Tellabs, Inc. v. Makor 2 Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). A complaint must contain “a 3 short and plain statement of the claim showing that the pleader is entitled to relief.” 4 Fed. R. Civ. P. 8(a)(2). A plaintiff’s “allegations of material fact are taken as true 5 and construed in the light most favorable to the plaintiff[,]” however “conclusory 6 allegations of law and unwarranted inferences are insufficient to defeat a motion to 7 dismiss for failure to state a claim.” In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 8 1403 (9th Cir. 1996) (citation and brackets omitted). 9 In assessing whether Rule 8(a)(2) has been satisfied, a court must first 10 identify the elements of the plaintiff’s claim(s) and then determine whether those 11 elements could be proven on the facts pled. The court may disregard allegations 12 that are contradicted by matters properly subject to judicial notice or by exhibit. 13 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). The court 14 may also disregard conclusory allegations and arguments which are not supported 15 by reasonable deductions and inferences. Id. 16 The Court “does not require detailed factual allegations, but it demands 17 more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 18 556 U.S. at 662. “To survive a motion to dismiss, a complaint must contain 19 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible 20 on its face.’” Id. at 678 (citation omitted). A claim may be dismissed only if “it ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 4 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.354 Page 5 of 19 1 appears beyond doubt that the plaintiff can prove no set of facts in support of his 2 claim which would entitle him to relief.” Navarro, 250 F.3d at 732. 3 4 A. Judicial Immunity Grant County Defendants seek dismissal of all claims asserted against 5 Commissioner Gigliotti on the grounds that she is entitled to judicial immunity. 6 ECF No. 20 at 8–12. Plaintiff asserts Commissioner Gigliotti conspired with other 7 defendants to violate Plaintiff’s constitutional rights in violation of 42 U.S.C. § 8 1985, and that she aided and abetted those same defendants in furtherance of the 9 conspiracy, in violation of 18 U.S.C. § 2. ECF No. 1 at 17–20, ¶¶ 4.6–4.17. 10 Under the doctrine of judicial immunity, judges and those performing judge- 11 like functions are immune from suit for acts performed in the exercise of their 12 official judicial functions, even where their judicial actions are erroneous, 13 malicious, or performed in excess of judicial authority. Ashelman v. Pope, 793 14 F.2d 1072, 1075 (9th Cir. 1986); Moore v. Brewster, 96 F.3d 1240, 1245 (9th Cir. 15 1996), superseded by statute on other grounds; Mullis v. U.S. Bankr. Court for 16 Dist. Of Nev., 828 F.2d 1385, 1388 (9th Cir. 1987). Judicial immunity can only be 17 overcome if the individual was acting “in the complete absence of all jurisdiction,” 18 or acting outside the individual’s official capacity. Mireles v. Waco, 502 U.S. 9, 19 11–12 (1991). 20 ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 5 Case 2:21-cv-00282-TOR 1 ECF No. 34 filed 12/22/21 PageID.355 Page 6 of 19 The Ninth Circuit has identified several factors to determine whether an 2 individual’s challenged action is judicial in nature. Duvall v. County of Kitsap, 3 260 F.3d 1124, 1133 (9th Cir. 2001). Those factors include whether the precise act 4 is a normal judicial function; whether the events occurred in the judge’s chambers; 5 whether the controversy centered around a case then pending before the judge; and 6 whether the events at issue arose directly and immediately out of a confrontation 7 with the judge in his or her official capacity. Id. Judicial immunity extends to 8 certain others who perform functions closely associated with the judicial process, 9 such as court commissioners. Id. (internal quotations and citation omitted); see 10 also Franceschi v. Schwartz, 57 F.3d 828, 830 (9th Cir. 1995) (finding a municipal 11 court commissioner was entitled to judicial immunity where California law 12 permitted court judges to confer their same jurisdiction, powers, and duties to 13 commissioners). 14 Here, Commissioner Gigliotti’s challenged decision clearly falls within the 15 scope of judicial immunity. As an initial matter, the State of Washington confers 16 judicial authority upon district court commissioners to hear and dispose of cases as 17 a district court judge would, with the exception that commissioners may not 18 preside over trials in criminal matters, or over jury trials in civil matters unless 19 agreed upon by the parties. RCW 3.42.010; 3.42.020. Thus, Commissioner 20 ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 6 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.356 Page 7 of 19 1 Gigliotti was acting within the scope of her official judge-like duties when she 2 presided over Plaintiff’s impound hearing. 3 Commissioner Gigliotti’s decision to uphold the impound also falls within 4 the scope of the Ninth Circuit’s factors for determining whether an act is judicial in 5 nature. First, Commissioner Gigliotti’s decision was precisely the type of judicial 6 function court commissioners are appointed to carry out. Next, the challenged 7 action occurred in Commissioner Gigliotti’s chambers and centered exclusively on 8 the matter pending before the Commissioner at the time, i.e., Plaintiff’s impound 9 hearing. Finally, the challenged action arose directly and immediately out of the 10 impound hearing in front of Commissioner Gigliotti while she was acting in her 11 official capacity. 12 Plaintiff’s disagreement with the Commissioner’s decision is insufficient to 13 overcome the shield of judicial immunity. Thus, the claims against Commissioner 14 Gigliotti are properly dismissed because Plaintiff has failed to state a claim upon 15 which relief may be granted. The claims are dismissed with prejudice because it is 16 “absolutely clear that the deficiencies of the complaint could not be cured by 17 amendment.” Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded on 18 other grounds by statute as stated in Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 19 2012). 20 // ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 7 Case 2:21-cv-00282-TOR 1 2 ECF No. 34 filed 12/22/21 PageID.357 Page 8 of 19 B. Section 1983 Claim Grant County Defendants move for dismissal of Plaintiff’s § 1983 claim 3 against Grant County on the grounds that Plaintiff has failed to sufficiently allege 4 there was an official policy or custom in place that led to the violation of Plaintiff’s 5 constitutional rights. ECF No. 20 at 15. Plaintiff claims the County failed to train 6 its employees in the proper procedures relating to traffic stops for suspected DUIs. 7 ECF No. 1 at 21–25, ¶¶ 4.18–4.27. 8 9 “In order to set forth a claim against a municipality under 42 U.S.C. § 1983, a plaintiff must show that the defendant’s employees or agents acted through an 10 official custom, pattern or policy that permits deliberate indifference to, or violates, 11 the plaintiff’s civil rights; or that the entity ratified the unlawful conduct.” Shearer 12 v. Tacoma Sch. Dist. No. 10, 942 F. Supp. 2d 1120, 1135 (W.D. Wash. 2013) 13 (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690–91 (1978)). As such, a 14 policy, practice, or custom can be established in three ways: (1) an employee acts 15 pursuant to an expressly adopted official policy, (2) an employee acts pursuant to a 16 longstanding practice or custom, or (3) an employee acts as a final policymaker. 17 Lytle v. Carl, 382 F.3d 978, 982–83 (9th Cir. 2004). 18 Absent a formal governmental policy, a plaintiff must show a “longstanding 19 practice or custom which constitutes the standard operating procedure of the local 20 governmental entity.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (quoting ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 8 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.358 Page 9 of 19 1 Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992)). “Liability for 2 improper custom may not be predicated on isolated or sporadic incidents; it must 3 be founded upon practices of sufficient duration, frequency and consistency that 4 the conduct has become a traditional method of carrying out policy.” Id. at 918; 5 see also Meehan v. Cty. of Los Angeles, 856 F.2d 102, 107 (9th Cir. 1988) (two 6 incidents insufficient to establish custom). 7 Additionally, in limited circumstances, a local government’s failure to train 8 its employees on their legal duties not to violate citizens’ rights may rise to the 9 level of a policy or custom for the purposes of a § 1983 claim. Connick v. 10 Thompson, 563 U.S. 51, 61 (2011). However, “[a] municipality’s culpability for a 11 deprivation of rights is at its most tenuous where a claim turns on a failure to 12 train.” Id. To succeed on a § 1983 claim alleging a failure to train, the challenged 13 action must amount to “deliberate indifference to the rights of persons with whom 14 the untrained employees come into contact.” Id. (internal brackets and citation 15 omitted). Deliberate indifference is a high standard that requires proof of a 16 municipal actor’s disregard for a known or obvious consequence of his action. Id. 17 Thus, when local government policymakers are on actual or constructive notice 18 that a particular omission in their training program causes employees to violate 19 citizens’ constitutional rights, the local government may be deemed deliberately 20 indifferent if the policymakers continue to retain the same training program. Id. ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 9 Case 2:21-cv-00282-TOR 1 ECF No. 34 filed 12/22/21 PageID.359 Page 10 of 19 To plead a § 1983 claim against a local governmental entity, the complaint 2 “must contain sufficient allegations of underlying facts to give fair notice and to 3 enable the opposing party to defend itself effectively,” and “the factual allegations 4 that are taken as true must plausibly suggest an entitlement to relief, such that it is 5 not unfair to require the opposing party to be subjected to the expense of discovery 6 and continued litigation.” AE ex rel. Hernandez v. Cty. of Tular, 666F.3d 631, 637 7 (9th Cir. 2012) (internal quotation marks and citation omitted). 8 9 Here, Plaintiff’s claim for failure to train hinges on his own single experience stemming from a traffic stop. ECF No. 1 at 22–24, ¶¶ 4.18–4.22. 10 Relevant to Grant County Defendants, Plaintiff alleges Grant County failed to train 11 Commissioner Gigliotti on the impound laws related to DUI traffic stops. Id. 12 However, Plaintiff’s single experience with Commissioner Gigliotti is insufficient 13 to establish an improper custom. Meehan, 856 F.2d at 107. Moreover, Plaintiff’s 14 claim does not meet the heightened standard for failure to train claims because he 15 has presented no facts that establish a pattern of constitutional violations such that 16 Grant County would have been on notice of a need to further train Commissioner 17 Gigliotti. Absent proof of Commissioner Gigliotti’s disregard for a known or 18 obvious consequence of an alleged pattern of actions, Grant County cannot be held 19 liable for a failure to train. 20 Plaintiff’s disagreement with the outcome of the DUI traffic stop, and the ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 10 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.360 Page 11 of 19 1 subsequent impound hearing, is insufficient to plead a cause of action under §1983. 2 Plaintiff’s § 1983 claim against Grant County Defendants is properly dismissed 3 because Plaintiff has failed to state a claim upon which relief may be granted. The 4 claim is dismissed with prejudice because it is “absolutely clear that the 5 deficiencies of the complaint could not be cured by amendment.” Noll, 809 F.2d at 6 1448. C. State Law Claims Against Grant County1 7 8 Grant County Defendants move for dismissal of Plaintiff’s state law claims 9 against Grant County on the grounds that the County is entitled to vicarious quasi- 10 judicial immunity under Washington law, or in the alternative, because Plaintiff 11 failed to file a pre-claim notice with the County. ECF No. 20 at 13. Plaintiff, 12 referring generally to all Defendants, alleges he suffered emotional distress. ECF 13 No. 1 at 25, ¶¶ 4.28–4.30. Under Washington law, “a city, county, or state which employs an officer 14 15 also enjoys the quasi-judicial immunity of that officer for the acts of that officer.” 16 17 1 Plaintiff’s state law claims are also asserted against Commissioner Gigliotti. 18 However, because the Court has already determined Commission Gigliotti is 19 entitled to judicial immunity, the Court’s analysis of Plaintiff’s state law claims is 20 limited to Grant County. ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 11 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.361 Page 12 of 19 1 Lutheran Day Care v. Snohomish Cty., 119 Wash. 2d 91, 101 (1992); Dutton v. 2 Washington Physicians Health Program, 87 Wash. App. 614 (1997); Webster v. 3 Bronson, No. C07-5661 FDB, 2009 WL 3185922, at *7 (W.D. Wash. Oct. 2, 4 2009), aff’d, 402 F. App’x 280 (9th Cir. 2010). The Washington Supreme Court 5 requires a “detailed policy-oriented factual inquiry” to determine whether an 6 employee’s immunity will extend to its state or county employer. Savage v. State, 7 127 Wash. 2d 434, 440 (1995) (internal quotations, ellipses, and citation omitted). 8 9 The Washington Supreme Court has not addressed the extension of immunity in the context of a county court commissioner. However, the policy 10 considerations underpinning the extension of prosecutorial immunity to a county 11 employer are instructive. In that regard, the Washington Supreme Court has stated 12 the policy purposes of judicial and quasi-judicial immunity serve to protect the 13 public by ensuring that judicial officers, including prosecutors, remain active and 14 independent. Creelman v. Svenning, 67 Wash. 2d 882, 884, (1966). Additionally, 15 the public policy interests in ensuring the continued exercise of judicial function 16 and enforcement of the law “outweighs the disadvantage to the private citizen in 17 the rare instance where he might otherwise have an action against the county and 18 state.” Creelman, 67 Wash. 2d at 885; Lutheran Day Care, 119 Wash. 2d at 127. 19 If a prosecutor is forced to weigh the possibility of triggering tort liability 20 involving his county employer against his duties to prosecute criminal cases, “his ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 12 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.362 Page 13 of 19 1 freedom and independence in proceeding with criminal prosecutions will be at an 2 end.” Creelman, 67 Wash. 2d at 885. Thus, the Supreme Court has found that 3 extending quasi-judicial immunity to the county that employs a prosecutor is 4 necessary to fulfill important public policy goals. See Creelman, 67 Wash. 2d at 5 885. 6 Washington courts have applied the same vicarious quasi-judicial immunity 7 in other contexts as well. For example, Washington’s Department of Health and 8 the State itself enjoyed the quasi-judicial immunity of the State’s Medical 9 Disciplinary Board where a plaintiff failed to allege any specific claims against 10 those entities aside from the common law theory of vicarious liability. Dutton v. 11 Washington Physicians Health Program, 87 Wash. App. 614, 619 (1997). 12 Washington courts have also applied vicarious quasi-judicial immunity to a family 13 court services program for the tortious conduct of its employee because the 14 program acted as an arm of the local county courts. Reddy v. Karr, 102 Wash. 15 App. 742, 753 (2000) 16 The Court finds the same policy considerations underpinning vicarious 17 quasi-judicial immunity are present here. First, Plaintiff does not explicitly state a 18 claim against Grant County; his claim for emotional distress refers broadly to all 19 Defendants. Thus, his claim against Grant County can only proceed on the theory 20 of vicarious liability. Second, if county commissioners are forced to weigh the ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 13 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.363 Page 14 of 19 1 possibilities of triggering tort litigation arising from their decisions, particularly 2 where their county employer is involved, their judicial duties would become 3 severely impaired. Applying vicarious quasi-judicial immunity to Grant County 4 serves the “sound public policy” of ensuring “active and independent action by 5 individuals charged with fashioning judicial determinations.” Reddy v. Karr, 102 6 Wash. App. 742, 748 (2000) (citing Anderson v. Manley, 181 Wash. 327, 331 7 (1935); Taggart v. State, 118 Wash. 2d 195, 203 (1992)). 8 Consequently, Grant County is protected by vicarious quasi-judicial 9 immunity from claims arising from the alleged tortious conduct of Commissioner 10 Gigliotti. Plaintiff’s state tort claims against Grant County are properly dismissed 11 because Plaintiff has failed to state a claim upon which relief may be granted. The 12 claims are dismissed with prejudice because it is “absolutely clear that the 13 deficiencies of the complaint could not be cured by amendment.” Noll, 809 F.2d at 14 1448. The Court need not reach Grant County Defendants’ alternative theory of 15 dismissal because Plaintiff’s tort claims are precluded by Grant County’s 16 immunity. 17 II. 18 Motion to Strike Grant County Defendants move to strike Plaintiff’s document styled as First 19 Amended Complaint (ECF No. 25) and Plaintiff’s sur-reply styled as Response to 20 Defendants Reply (ECF No. 27). Plaintiff argues the “motion to strike procedure” ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 14 Case 2:21-cv-00282-TOR 1 2 ECF No. 34 filed 12/22/21 PageID.364 Page 15 of 19 under “§ 525(4)(b)” is unconstitutional. ECF No. 32. As an initial matter, it is unclear what authority Plaintiff is attempting to 3 invoke with his citation to “§ 525(4)(b).” To the extent that Plaintiff refers to 4 RCW 4.24.525, his argument is without merit, as the statute has been repealed. 5 RCW 4.24.525, Repealed by Laws 2021, ch. 259, § 15, eff. July 25, 2021. 6 Under Rule 15(a)(1), a party may amend his pleadings once as a matter of 7 course within 21 days after serving the pleading, or, if a responsive pleading is 8 required, 21 days after receiving service of a responsive pleading or 21 days after 9 service of a motion under Rule 12(b), (e), or (f), whichever is earlier. Fed. R. Civ. 10 P. 15(a)(1). Under any other circumstances, “a party may amend its pleading only 11 with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 12 15(a)(2). In the Ninth Circuit, a pro se litigant’s request for leave to amend under 13 Rule 15(a) is treated very liberally, and pro se litigants should be provided the 14 opportunity to correct deficiencies in their pleadings. Id.; Wennihan v. AHCCCS, 15 525 F. Supp. 2d 1040, 1043–44 (9th Cir. 2005). However, “leave to amend need 16 not be granted if the proposed amended complaint would be subject to dismissal.” 17 Ritzer v. Gerovicap Pharmaceutical Corp., 162 F.R.D. 642, 645 (D. Nevada 1995) 18 (citing Johnson v. American Airlines, 834 F.2d 721, 724 (9th Cir. 1987) (stating 19 that “courts have discretion to deny leave to amend a complaint for ‘futility’, and 20 futility includes the inevitability of a claim’s defeat on summary judgment”). ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 15 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.365 Page 16 of 19 1 Here, City Defendants and Grant County Defendants filed their Answers to 2 the operative Complaint on October 19, 2021 and October 20, 2021, respectively. 3 ECF Nos. 16, 19. Plaintiff filed the document styled as “First Amended 4 Complaint” on November 15, 2021, over 21 days after Defendants filed their 5 Answers. Plaintiff did not he seek leave from the Court or opposing parties before 6 filing the document. Consequently, the document has no legal effect. Ritzer, 162 7 F.R.D. at 644; Hoover v. Blue Cross & Blue Shield, 855 F.2d 1538, 1544 (11th Cir. 8 1988) (plaintiff improperly filed amended complaint so amended complaint had no 9 legal effect). Nonetheless, for the purposes of this Order, the Court will construe 10 11 Plaintiff’s “First Amended Complaint” as a proposed amended complaint. Defendants seek to strike Plaintiff’s document pursuant to Rule 12(f). ECF 12 No. 30 at 7. However, a motion to strike is not the proper procedural ground for 13 dismissal of a complaint; a Rule 12(b)(6) motion for failure to state a claim is the 14 proper procedural vehicle, and, to the extent that Grant County Defendants’ motion 15 seeks to strike the “First Amended Complaint,” the Court will treat that portion of 16 the motion as a motion to dismiss. See Ritzer, 162 F.R.D. at 644. 17 The issue here is whether Plaintiff’s proposed amended complaint sets forth 18 claims for which relief could be granted. The factual allegations in the proposed 19 complaint are nearly identical to those contained in the original Complaint. 20 Compare ECF No. 25 with ECF No. 1. The claims in the proposed amended ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 16 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.366 Page 17 of 19 1 complaint are also nearly identical, with the exception of two additional claims. 2 However, Plaintiff is not entitled to relief under either of the new claims. 3 First, Title 10 of the United States Code governs only the military and its 4 personnel; thus, Plaintiff cannot recover under its provisions. See 10 U.S.C. Subt. 5 A, Pt. II, Ch. 47, et seq. Second, Plaintiff’s additional cause of action under 42 6 U.S.C. § 1986 does not contain any new factual allegations that are not already 7 alleged in the original Complaint under Plaintiff’s § 1985 claim, which the Court 8 has already determined is subject to dismissal with prejudice against Grant County 9 Defendants. Compare ECF No. 25 at 23–25, ¶¶ 4.11–4.13 with ECF No. 1 at 19, 10 ¶¶ 4.11–4.13. The remaining claims stated in Plaintiff’s proposed amended 11 complaint are duplicative of the facts and claims alleged in the original Complaint. 12 Consequently, the Court finds Plaintiff’s proposed amended complaint 13 would be subject to dismissal as to Grant County Defendants for the reasons 14 discussed in this Order. Additionally, the Court finds Plaintiff’s duplicative factual 15 allegations and claims would be futile as to the remaining Defendants because they 16 do not state new claims upon which relief may be granted. The Court will not 17 grant Plaintiff leave to file the proposed amended complaint. Grant County 18 Defendant’s Motion to Strike Plaintiff’s Amended Complaint, treated in part as a 19 motion to dismiss, is granted in part. The claims are dismissed with prejudice 20 because it is “absolutely clear that the deficiencies of the complaint could not be ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 17 Case 2:21-cv-00282-TOR 1 ECF No. 34 filed 12/22/21 PageID.367 Page 18 of 19 cured by amendment.” Noll, 809 F.2d at 1448. 2 A. Sur-reply 3 Grant County Defendants also seek to strike Plaintiff’s sur-reply, styled as 4 Response to Defendants Reply (ECF No. 27), on the grounds that Plaintiff failed to 5 seek leave from the Court before filing the sur-reply, and because Grant County 6 Defendants did not raise any new arguments in their Reply that would warrant a 7 sur-reply. ECF No. 30 at 5–7. Generally, under this Court’s scheduling orders, no supplemental response 8 9 or supplemental replies to any motion may be filed unless the Court grants a 10 motion to file such documents. However, no scheduling order has been issued in 11 this case. The Court reminds Plaintiff to review Local Civil Rule 7, which 12 provides for one response memorandum for each motion.2 13 The Court finds it unnecessary to strike Plaintiff’s sur-reply. In any event, 14 the Court’s review of Plaintiff’s allegations is limited to the operative Complaint, 15 documents incorporated to the Complaint by reference, and judicial notice. 16 Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d at 1061. To the extent 17 that Plaintiff raises new allegations in the sur-reply, the material is not dispositive 18 19 20 2 Local Civil Rules Eastern District of Washington | Eastern District of Washington (uscourts.gov) ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 18 Case 2:21-cv-00282-TOR ECF No. 34 filed 12/22/21 PageID.368 Page 19 of 19 1 to the current Order. The Court denies Grant County Defendants’ Motion to 2 Strike, in part. 3 4 ACCORDINGLY, IT IS HEREBY ORDERED: 1. Grant County Defendants’ Motion to Dismiss (ECF No. 20) is 5 GRANTED. The claims asserted against Defendants Grant County and 6 Commissioner Anna Gigliotti in Plaintiff’s Complaint (ECF No. 1) are 7 DISMISSED with prejudice. 8 9 10 11 2. The Clerk of the Court is directed to TERMINATE Defendants Grant County and Commissioner Anna Gigliotti from this action and adjust the docket sheet accordingly. 3. Grant County Defendants’ Motion to Strike Plaintiff’s Amended 12 Complaint (ECF No. 30) is GRANTED in part and denied in part. 13 The claims asserted in the document styled as “First Amendment to 14 Complaint for Damages” (ECF No. 25) are DISMISSED with 15 prejudice. 16 17 18 The District Court Executive is directed to enter this Order and furnish copies to counsel. DATED December 22, 2021. 19 20 THOMAS O. RICE United States District Judge ORDER GRANTING GRANT COUNTY DEFENDANTS’ MOTION TO DISMISS AND ORDER GRANTING IN PART AND DENYING IN PART GRANT COUNTY DEFENDANTS’ MOTION TO STRIKE ~ 19
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