Shavlik v. Snohomish County Superior Court et al, No. 2:2018cv01094 - Document 37 (W.D. Wash. 2019)

Court Description: ORDER granting Defendants' 27 Motion to Dismiss Amended Complaint; dismissing this action with prejudice. Signed by Judge James L. Robart. (SWT)

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Shavlik v. Snohomish County Superior Court et al Doc. 37 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 LORI D. SHAVLIK, 10 CASE NO. C18-1094JLR ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS Plaintiff, 11 v. 12 SNOHOMISH COUNTY SUPERIOR COURT, et al., 13 14 Defendants. 15 I. INTRODUCTION 16 On December 21, 2018, the court granted Defendants’ motion to dismiss all of 17 Plaintiff Lori D. Shavlik’s claims, except for her claim under Washington State’s Public 18 Records Act (“PRA”), RCW ch. 42.56. (12/21/18 Order (Dkt. # 21); see also Compl. 19 (Dkt. # 6-1).) The court remanded Ms. Shavlik’s PRA claim to state court. (Id. at 20 34-35.) The court further granted Ms. Shavlik leave to amend certain of her claims 21 // 22 ORDER - 1 Dockets.Justia.com 1 within 15 days of the date of that order. (Id. at 34.) On January 8, 2019, Ms. Shavlik 2 filed an amended complaint. (FAC (Dkt. # 24).) 3 Before the court is Defendants Snohomish County, Deputy Prosecuting Attorney 4 (“DPA”) Andrew E. Alsdorf, Detective David Fontenot, DPA Craig S. Matheson, 1 Mark 5 Roe, Philip G. Sayles and the Sayles Law Firm, PLLC’s (“the Sayles Law Firm”) 6 (collectively, “Defendants”) Federal Rule of Civil Procedure 12(b)(6) motion to dismiss 7 Ms. Shavlik’s amended complaint. (2d MTD (Dkt. # 27).) The court has considered the 8 motion, the parties’ submissions in support of and in opposition to the motion, 2 relevant 9 portions of the record, and the applicable law. Being fully advised, 3 the court GRANTS 10 Defendants’ motion and DISMISSES Ms. Shavlik’s amended complaint with prejudice 11 and without leave to amend. 12 II. 13 BACKGROUND The court’s dismissal order sets forth the factual background allegedly 14 underpinning Ms. Shavlik’s claims and provides a detailed summary of Ms. Shavlik’s 15 attendance at the criminal trial of John Reed (“the Reed trial”) in May 2018, and the 16 // 17 1 Ms. Shavlik misspells Mr. Matheson’s name as “Matteson” in both her complaint and amended complaint. (See MTD at 3; Compl. ¶ 2.3; FAC ¶ 2.4.) 18 2 19 20 21 22 Ms. Shavlik filed a “surreply” to Defendants’ motion. (See Surreply (Dkt. # 36).) Ms. Shavlik did not file her surreply in compliance with Local Rule LCR 7(g). See Local Rules W.D. Wash. LCR 7(g). Nevertheless, given Ms. Shavlik’s pro se status, the court reviewed and considered Ms. Shavlik’s surreply. Nothing in Ms. Shavlik’s surreply altered the court’s analysis of Ms. Shavlik’s claims or Defendants’ motion to dismiss her amended complaint. 3 No party has requested oral argument (see 2d MTD at 1; Resp. (Dkt. # 29) at 1), and the court does not consider oral argument helpful to its disposition of the motion, see Local Rules W.D. Wash. LCR 7(b)(4). ORDER - 2 1 show-cause order Judge Bruce Weiss issued to determine if Ms. Shavlik violated his 2 order on filming during the Reed trial. 4 (12/21/18 Order at 2-7.) The court will not 3 repeat that background here but describes only the differences between Ms. Shavlik’s 4 original and amended complaints that are pertinent to Defendants’ motion to dismiss and 5 this order. 6 In her original complaint, Ms. Shavlik sued Snohomish County Superior Court, 7 Snohomish County, Judge Weiss, DPA Alsdorf, DPA Matheson, Mr. Sayles, and the 8 Sayles Law Firm. (Compl. ¶¶ 2.2-2.4, 2.6.) In her amended complaint, she dropped 9 Snohomish County Superior Court and Judge Weiss as defendants. (See generally 10 FAC.) However, she added Mr. Roe, who was formerly the Prosecuting Attorney for 11 Snohomish County, and Detective Fontenot of the Snohomish County Sheriff’s Office. 12 (FAC ¶¶ 1.3-1.4, 2.4-2.5.) 13 The court dismissed the following claims without leave to amend: (1) claims for 14 injunctive and declaratory relief against Judge Weiss (12/21/18 Order at 16-21); (2) a 15 claim for state law writs of prohibition and certiorari (id. at 25); (3) a state law claim 16 under Article I, Section 7 of the Washington State Constitution (id. at 25-26); (4) a state 17 law claim under Washington State Court General Rule 16 (id. at 26-27); (5) a state law 18 claim under RCW 5.68.010 (id. at 27-28); and (6) a state law claim for barratry (id. at 19 28-29). 20 // 21 4 22 The court took judicial notice of Judge Weiss’s show-cause order in its prior dismissal order. (12/21/18 Order at 7-8.) ORDER - 3 1 The court granted Ms. Shavlik leave to amend the following claims: (1) federal 2 constitutional claims against Snohomish County and Mr. Sayles; (2) First Amendment 3 claim against Mr. Alsdorf and Mr. Matheson; (3) abuse of process claims against Mr. 4 Sayles and the Sayles Law Firm; (4) a claim for intentional infliction of emotional 5 distress against Mr. Sayles; (5) a claim for violation of the common law right to privacy 6 against Mr. Sayles; and (6) a claim for unfair competition under Washington State’s 7 Consumer Protection Act (“CPA”), RCW 19.86.010, et seq., against Mr. Sayles. (See 8 12/21/18 Order at 32.) 9 In her amended complaint, Ms. Shavlik expressly delineates four causes of action. 10 (FAC at 15-16.) In her first cause of action under 42 U.S.C. § 1983, which she brings 11 against all Defendants, she alleges that Defendants denied “her civil rights including but 12 not limited to her right to free speech under the first amendment and denial of due 13 process under the [Fourteenth Amendment].” (FAC at 15.) Ms. Shavlik brings her 14 remaining three state law causes of action against all Defendants “except the 15 prosecutors,” presumably referring to DPA Alsdorf and DPA Matheson. (Id. at 15-16.) 16 As she describes them, her state law claims include: (1) abuse of process, (2) intentional 17 infliction of emotional distress, (3) deceptive trade violations, and (4) common law right 18 to privacy. (Id.) 19 The court now considers Defendants’ motion to dismiss Ms. Shavlik’s amended 20 complaint. 21 // 22 // ORDER - 4 1 2 III. A. ANALYSIS Standard 3 Under the Federal Rules of Civil Procedure, a complaint must contain “a short and 4 plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 5 8(a)(2). The purpose of this rule is to “‘give the defendant fair notice of what . . . the 6 claim is and the grounds upon which it rests.’” Twombly, 550 U.S. at 555 (quoting 7 Conley v. Gibson, 355 U.S. 41, 47 (1957)). “A motion under [Rule] 12(b)(6) tests the 8 formal sufficiency of the statement of claim for relief.” Palms v. Austin, C18-0838JLR, 9 2018 WL 4258171, at *4 (W.D. Wash. Sept. 6, 2018) (quoting Fednav Ltd. v. Sterling 10 11 Int’l, 572 F. Supp. 1268, 1270 (N.D. Cal. 1983)). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain 12 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 13 face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). “A claim has facial 14 plausibility when the plaintiff pleads factual content that allows the court to draw the 15 reasonable inference that the defendant is liable for the misconduct alleged.” Id. This 16 standard is “not akin to a ‘probability requirement,’ but it asks for more than a sheer 17 possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 18 556). When considering a Rule 12(b)(6) motion, the court construes the complaint in the 19 light most favorable to the nonmoving party, Livid Holdings Ltd. v. Salomon Smith 20 Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005), and must accept all well-pleaded 21 allegations of material fact as true, see Wyler Summit P’ship v. Turner Broad. Sys., 135 22 F.3d 658, 661 (9th Cir. 1998). However, the court need not accept as true a legal ORDER - 5 1 conclusion presented as a factual allegation. Iqbal, 556 U.S. at 678 (citing Twombly, 550 2 U.S. at 550). 3 Because Ms. Shavlik is pro se, the court must construe her complaint liberally 4 when evaluating it under the Iqbal standard. See Johnson v. Lucent Techs., Inc., 653 F.3d 5 1000, 1011 (9th Cir. 2011). Although the court holds the pleadings of pro se plaintiffs to 6 “less stringent standards than those of licensed attorneys,” Haines v. Kerner, 404 U.S. 7 519, 520 (1972), “those pleadings nonetheless must meet some minimum threshold in 8 providing a defendant with notice of what it is that it allegedly did wrong,” Brazil v. U.S. 9 Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995). Accordingly, the court should “not 10 supply essential elements of the claim that were not initially pled.” Bruns v. Nat’l Credit 11 Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997). 12 B. 13 Claims the Court Earlier Dismissed Without Leave to Amend Defendants correctly point out that even if Ms. Shavlik does not expressly allege 14 any of the claims that the court previously dismissed without leave to amend, she alludes 15 to some of these dismissed claims in scattered portions of her amended complaint. (MTD 16 at 6-7; see, e.g., FAC at 13:16-14:1 (alleging barratry); id. at 13:16-18 (alleging a 17 violation of RCW 5.68.010); id. at 15:6-9 (alleging that she is entitled to injunctive relief 18 from “an unconstitutionally vague and overbroad Order in Snohomish Court Superior 19 Court”); see also 12/21/18 Order at 29 (dismissing the barratry claim without leave to 20 amend); id. at 28 (dismissing the claim under RCW 5.68.010 without leave to amend); id. 21 at 21 (dismissing the claim against Judge Weiss of the Snohomish County Superior Court 22 without leave to amend); id. at 25 (dismissing the claims for writs of prohibition and ORDER - 6 1 certiorari to issue against the Snohomish County Superior Court without leave to 2 amend).) Defendants ask the court to “reaffirm its dismissal of these claims” to the 3 extent her amended complaint represents an attempt to reassert them. (MTD at 6-7.) In 4 her response, Ms. Shavlik acknowledges that she does not intend to reassert these claims 5 in her amended complaint. (Resp. at 3.) To the extent that her amended complaint could 6 be liberally construed to do so, the court reaffirms its dismissal of these claims without 7 leave to amend. 8 C. Claims Against New Defendants 9 Ms. Shavlik raises claims against two new Defendants in her amended complaint: 10 (1) Mr. Roe, who was formerly the Prosecuting Attorney for Snohomish County, and (2) 11 Detective Fontenot, who Ms. Shavlik alleges is a police detective working for Snohomish 12 County. (See FAC ¶¶ 2.4-2.5.) For the reasons stated below, the court dismisses Ms. 13 Shavlik’s claims against these new Defendants. 14 1. 15 In her amended complaint, Ms. Shavlik brings claims against two new defendants: The Addition of New Defendants is Untimely 16 Mr. Roe and Detective Fontenot. (See FAC ¶¶ 1.3-1.4, 2.4-2.5.) Ms. Shavlik filed her 17 amended complaint on January 8, 2019. (See generally id.) However, the deadline for 18 adding new parties expired on November 13, 2018. (Sched. Order (Dkt. # 14) at 1.) 19 Because Ms. Shavlik did not seek to add Mr. Roe and Detective Fontenot until 20 after the deadline for adding new parties had expired, whether she is allowed to do so is 21 governed by Federal Rule of Civil Procedure 16(b)(4), not Rule 15(a). Johnson v. 22 Mammoth Recreations, Inc., 975 F.2d 604, 607-08 (9th Cir. 1992). “Unlike Rule 15(a)’s ORDER - 7 1 liberal amendment policy which focuses on the bad faith of the party seeking to interpose 2 an amendment and the prejudice to the opposing party, Rule 16(b)’s ‘good cause’ 3 standard primarily considers the diligence of the party seeking the amendment. . . . [I]f 4 that party was not diligent, the inquiry should end.’” In re W. States Wholesale Nat. Gas 5 Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013) (quoting Johnson, 975 F.2d at 609). 6 Here, Ms. Shavlik makes no showing at all concerning her diligence in uncovering 7 her claims against the newly added Mr. Roe and Detective Fontenot or why she could not 8 add Defendants at the time she filed her original complaint or at least prior to the deadline 9 for adding new parties. (See generally Resp.) Accordingly, the court dismisses Ms. 10 11 Shavlik’s claims against these new defendants without leave to amend. 2. Ms. Shavlik’s Claims against Detective Fontenot are Barred by Res Judicata or Too Conclusory and Implausible to State a Claim 12 Even if Ms. Shavlik’s addition of Detective Fontenot as a defendant had been 13 timely, the court would still dismiss her claims against him. In her amended complaint, 14 Ms. Shavlik adds new allegations concerning her 2015 prosecution for arson in 15 Snohomish County Superior Court—specifically alleging that Detective Fontenot 16 mishandled evidence. (See FAC at 4:14-9:25.) To the extent that Ms. Shavlik is 17 asserting any claim arising out of her prior 2015 arson prosecution, those claims are 18 barred by res judicata. Ms. Shavlik litigated her claims against Snohomish County and 19 others for alleged civil rights violations in this court in 2017. See Shavlik v. City of 20 Snohomish, et al., No. C17-0144JCC (W.D. Wash.) (“Shavlik I”). The allegations she 21 asserts in her amended complaint are substantially the same as those she alleged in her 22 ORDER - 8 1 prior 2017 lawsuit concerning her 2015 prosecution for arson. (Compare FAC 2 ¶¶ 3.7-3.25 with Shavlik I, Compl. (Dkt. # 1-2) ¶¶ 3.1-3.25.) In her prior lawsuit, Judge 3 John C. Cougenhour granted the defendants’ summary judgment motion and entered final 4 judgment in favor of the defendants on all of Ms. Shavlik’s claims. See Shavlik I, SJ 5 Order (Dkt. # 81), Judgment (Dkt. # 82). 5 6 Res judicata provides that “a final judgment on the merits bars further claims by 7 parties or their privies based on the same cause of action.” United States v. Bhatia, 545 8 F.3d 757, 759 (9th Cir. 2008) (quoting Montana v. United States, 440 U.S. 147, 153 9 (1979)). Res judicata bars both claims the party raised and claims the party could have 10 raised in the prior action. W. Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th 11 Cir. 1997). Judge Coughenour specifically addressed Ms. Shavlik’s allegations against 12 Detective Fontenot. See Shavlik I, Dkt. # 81 at 6 (“Plaintiffs allege: Detective Fontenot 13 lost 28 exculpatory photos . . . . [and] Detective Fontenot fabricated evidence . . . .”). 14 Further, Snohomish County was a defendant in Ms. Shavlik’s prior suit before Judge 15 Coughenour, and Detective Fontenot is in privity with the defendants in that case. “There 16 is privity between officers of the same government so that a judgment in a suit between a 17 party and a representative of the [government] is res judicata in relitigation of the same 18 issue between that party and another officer of the government.” Fund for Animals, Inc. 19 // 20 21 22 5 The court takes judicial notice of prior proceedings in the Western District of Washington. See United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992) (stating that a court may take judicial notice “of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue”). ORDER - 9 1 v. Lujan, 962 F.2d 1391, 1398 (9th Cir. 1992) (citation omitted); Gambocz v. Yelencsics, 2 468 F.2d 837, 841 (3d Cir. 1972) (“[R]es judicata may be invoked against a plaintiff who 3 has previously asserted essentially the same claim against different defendants where 4 there is a close or significant relationship between successive defendants.”). The court 5 concludes that res judicata bars any claim Ms. Shavlik asserts against Detective Fontenot 6 arising from her prior 2015 arson prosecution. 7 Nevertheless, Ms. Shavlik argues that the allegations in her amended complaint 8 concerning Detective Fontenot are merely to “establish a motive and pattern of conduct 9 that supports her claims in this suit.” (Resp. at 5.) In her amended complaint, Ms. 10 Shavlik asserts new allegations related to an entity called “Dawson Place,” which she 11 describes as holding “itself out as a ‘counseling service’ for victims of sexual crime.” 12 (FAC ¶ 3.4.) She describes her dissatisfaction with this entity and the services it 13 provided to her daughter. (Id. ¶ 3.5.) She describes conducting her own investigation 14 into Dawson Place and asserts that, through their alleged involvement in Dawson Place, 15 Defendants “committed federal criminal wire fraud.” (Id. ¶ 3.6; see also id. 16 ¶¶ 3.26-3.32.) She posits that, “[f]rom her activism at “Dawson Place, it could be 17 plausibly argued that . . . [Detective] Fontenot . . . retaliated by attempting to frame [her] 18 on an arson charge for exposing their illicit and unlawful undercover scheme at Dawson 19 Place.” (Id.) Thus, based on her own description, her First Amendment “retaliation” 20 claim against Detective Fontenot is bound up with the claims and factual allegations in 21 her prior federal suit. See generally Shavlik I, Compl. (Dkt. # 1-2). She provides no 22 explanation for failing to bring the retaliation claim against Detective Fontenot in her ORDER - 10 1 prior suit. (See generally Resp.) Indeed, she could have brought this claim in that suit, 2 but did not. As noted above, res judicata bars both the claims Ms. Shavlik brought in her 3 earlier lawsuit as well as those she could have brought. W. Radio Servs. Co., 123 F.3d at 4 1192. The court, therefore, concludes that all of Ms. Shavlik’s claims against Detective 5 Fontenot are barred by res judicata. 6 In any event, Ms. Shavlik’s allegations concerning Dawson Place and Detective 7 Fontenot are conclusory and implausible. She appears to allege that Dawson Place is a 8 RICO enterprise where unidentified “defendants” masquerade as social workers. (See 9 FAC ¶¶ 3.6, 3.30-3.32.) She asserts no factual allegations concerning who is 10 masquerading or what facts support these allegations. (See generally id.) She alleges no 11 connection at all between Detective Fontenot and Dawson Place. (Id.) Regarding the 12 Reed trial, which formed the basis for her original claims, she simply added Detective 13 Fontenot to a list of Defendants she previously accused of coaching a witness. (Compare 14 Compl. at 12:8-12, with FAC ¶ 3.37.) Thus, the totality of her allegations against 15 Detective Fontenot concerning the Reed trial are as follows: 16 18 [Ms.] Shavlik . . . noticed that . . . [Detective] Fontenot [was] coaching a Washington State’s [sic] witness: Snohomish County Coroner David Smith. [Ms.] Shavlik witnessed . . . [Detective] Fontenot . . . tampering with this witness who was in the midst of testifying when the coaching took place in [the Reed trial]. 19 (FAC ¶ 3.37.) She does not connect this allegation with any other alleged misconduct in 20 her amended complaint; nor does she connect this allegation to any of her causes of 21 action. The court concludes that these allegations—on their own or in combination with 17 22 ORDER - 11 1 her allegations concerning Dawson Place—are insufficient to state a claim against 2 Detective Fontenot. 3 Based on the foregoing, the court concludes that even if Ms. Shavlik had timely 4 added Detective Fontenot as a defendant, her claims are either barred by the doctrine of 5 res judicata or too conclusory and implausible to state a claim against him. Accordingly, 6 the court dismisses Ms. Shavlik’s claims against him. 7 3. Ms. Shavlik’s Claims against Mr. Roe Are Too Conclusory and Implausible to State a Claim 8 Like her claims against Detective Fontenot, even if Ms. Shavlik’s addition of Mr. 9 Roe as a defendant had been timely, the court would still dismiss her claims against him. 10 Ms. Shavlik’s allegations concerning Mr. Roe are sparse. She alleges that he worked as a 11 prosecutor in Snohomish County. (Id. ¶ 2.4.) She further alleges that Mr. Roe was in the 12 courtroom when Judge Weiss, who presided over the Reed trial, conducted a May 17, 13 2018, hearing concerning the videotaping of the trial. (Id. ¶¶ 3.33-3.34.) She also 14 contends that Mr. Roe “spent 30% of his time inside of Dawson Place and is the 15 [P]resident of Dawson Place.” (Id. ¶ 3.31; see also id. ¶ 3.6 (“Public disclosure request 16 disclosed that . . . [Mr.] Roe spent over 30% of his work time, working for Dawson Place 17 and worked in executive positions.”).) Finally, she asserts that, while she was conducting 18 her “investigation” into Dawson Place, Mr. Roe retired as a prosecutor. (Id.) However, 19 she provides no factual basis for her conclusion that Mr. Roe spent “30% of his time” at 20 Dawson Place, and does not connect either that allegation or her other allegations 21 22 ORDER - 12 1 concerning Mr. Roe’s connection to the Reed trial or Dawson Place to any of her causes 2 of action. (See id.) 3 Based on these allegations, the court concludes that Ms. Shavlik fails to plead 4 “factual content” that allows the court to draw a reasonable inference that Mr. Roe is 5 liable to her for any misconduct. See Iqbal, 556 U.S. at 678 (“A claim has facial 6 plausibility when the plaintiff pleads factual content that allows the court to draw the 7 reasonable inference that the defendant is liable for the misconduct alleged.”). Even 8 under the more relaxed standard applicable to a pro se litigant, Ms. Shavlik fails to meet 9 the minimum threshold of providing Mr. Roe with notice of what it is that he allegedly 10 did wrong. See Brazil, 66 F.3d at 199. Accordingly, the court dismisses Ms. Shavlik’s 11 claims against him. 12 D. 13 Federal Claims Against Snohomish County In dismissing Ms. Shavlik’s federal claims against Snohomish County, the court 14 informed Ms. Shavlik that she could not rely upon a respondeat superior theory, but 15 rather was required to plead facts establishing the County’s liability as required by 16 Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 691, 694 17 (1978). (See 12/21/18 Order at 12-13.) Specifically, the court stated that Ms. Shavlik 18 “pleads no facts that would suggest that the County . . . had a custom or policy amounting 19 to deliberate indifference of the rights she claims were violated.” (Id. at 13.) Her 20 amended complaint fares no better in this regard. (See generally FAC.) She has still 21 failed to allege a Monell claim against Snohomish County. (See id.) She argues that her 22 inclusion of Mr. Roe, “who is the elected prosecutor of Snohomish County . . . and has ORDER - 13 1 the power to establish custom and policy with respect to the retaliation directed at 2 [her] . . . establishes Monell [sic] liability . . . .” (Resp. at 7.) Even assuming Mr. Roe 3 has such authority, merely adding him to her amended complaint as described above, see 4 supra § III.C.3., is insufficient to plead the existence of “policy or custom” as required 5 under Monell, 436 U.S. at 694. Accordingly, the court dismisses Ms. Shavlik’s claims 6 against the County. 7 E. 8 9 First Amendment Claim Ms. Shavlik’s First Amendment claim, which she asserts against all Defendants, rests upon substantially the same allegations set forth in her original complaint. 10 (Compare Compl. at 11-14, with FAC ¶¶ 3.36-3.44.) As the court indicated in its prior 11 order, Ms. Shavlik appears to allege that Defendants acted in concert to retaliate against 12 her for filming the Reed trial, which she frames as an exercise of her First Amendment 13 rights as a news or investigative reporter or a blogger. (See 12/21/18 Order at 13-14; see 14 also FAC at 8 (describing Ms. Shavlik as “an investigative reporter/blogger”), 14 15 (describing Ms. Shavlik as “a news reporter”).) For her First Amendment retaliation 16 claim, Ms. Shavlik must plead plausible factual allegations showing that: (1) a defendant 17 took some form of state action that would deter a reasonable person from engaging in 18 First Amendment activities, and (2) the “desire to cause the chilling effect was a but-for 19 cause of the defendant’s action.” Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1232 (9th 20 Cir. 2006). 21 22 In its prior order, the court concluded that, even liberally construed, Ms. Shavlik’s complaint failed to allege a cognizable First Amendment retaliation claim. (12/21/18 ORDER - 14 1 Order at 14.) Specifically, the court stated that Ms. Shavlik alleged no facts suggesting 2 that Judge Weiss entered the show-cause order for any reason other than the reason stated 3 in the order—that Ms. Shavlik had filmed the Reed trial in violation of his order limiting 4 videography to a single news outlet. (Id.) The court further stated that Ms. Shavlik did 5 not allege facts sufficient to show that Defendants harbored a retaliatory motive or acted 6 in a manner that would deter a reasonable person from engaging in protected First 7 Amendment activities. (Id.) 8 Despite this ruling delineating the deficiencies in her claim, Ms. Shavlik adds only 9 one substantive factual allegation to her First Amendment retaliation claim. Ms. Shavlik 10 now alleges that “[i]n issuing his [show cause] order[,] Judge Weiss relied upon perjured 11 testimony of [D]efendants Alsdorf and Sayles who claimed [that Ms. Shavlik] was in 12 violation of [Judge Weiss’s] order by filming, when they knew that the order only applied 13 when KING-TV was present and filming.” (FAC ¶ 3.39.) She relies on this new 14 allegation and the allegation that Defendants acted in concert. (See id. ¶¶ 3.36-3.45.) 15 These conclusory allegations concerning Defendants’ testimony and knowledge and 16 Judge Weiss’s alleged reliance on that testimony, even when liberally construed, fail to 17 pass the Iqbal/Twombly standard. See Johnson, 653 F.3d at 1011 (“Because [the 18 plaintiff] proceeded pro se before the district court, we must construe his complaints 19 liberally even when evaluating it under the Iqbal standard.”). Further, Ms. Shavlik adds 20 nothing to her already inadequate allegations that Mr. Sayles, a private attorney, acted in 21 concert with Defendants to violate Ms. Shavlik’s constitutional rights. (Compare 22 generally FAC with Compl.) ORDER - 15 1 More fundamentally, however, Ms. Shavlik fails to identify a First Amendment 2 protected activity that was chilled or deterred by Defendants’ alleged actions. See Skoog, 3 469 F.3d at 1232. She alleges that, on May 18, 2018, she “appeared as a member of the 4 press seeking to videotape [the Reed trial]” (FAC at 10), and that Judge Weiss’s show 5 cause order “sought to punish [her], via sanctions, and/or threats of criminal prosecution” 6 for that allegedly First Amendment protected activity (id. at 14). Yet, the Ninth Circuit 7 has stated that “the media’s right to gather information during a criminal trial is no more 8 than a right to attend the trial and report their observations.” Radio & Television News 9 Ass’n of S. Cal. v. U.S. Dist. Court for Cent. Dist. of Cal., 781 F.2d 1443, 1447 (9th Cir. 10 1986) (internal quotation marks omitted) (citing United States v. Hastings, 695 F.2d 11 1278, 1280 (11th Cir. 1983)) (stating that the press’s right of access is the right to attend 12 and not to televise a criminal trial). 13 Further, numerous courts have upheld rules prohibiting photography and 14 videography in the courtroom and found that such rules do not impermissibly infringe on 15 the press’s First Amendment right of access to judicial proceedings. See United States v. 16 Edwards, 785 F.2d 1293, 1296 (5th Cir. 1986) (“Given the Supreme Court’s indication 17 that the First Amendment right of access to criminal trials does not extend to include a 18 right to broadcast such trials, [the plaintiff’s] First Amendment challenge to [court rules 19 prohibiting photographs in the courtroom] must fail.”); Conway v. United States, 852 20 F.2d 187, 188 (6th Cir. 1988) (upholding the constitutionality of court rules prohibiting 21 broadcasting, telecasting, and photographing of judicial proceedings when faced with a 22 First Amendment challenge); United States v. Kerley, 753 F.2d 617, 622 (7th Cir. 1985) ORDER - 16 1 (finding the court’s rule “ban[ning] . . . cameras in the courtroom to be a reasonable 2 exercise of the rulemaking power and not in violation of [the plaintiff’s] first amendment 3 rights.”); Combined Commc’ns Corp. v. Finesilver, 672 F.2d 818, 821 (10th Cir. 1982) 4 (“The First Amendment does not guarantee the media a constitutional right to televise 5 inside a courthouse.”); see also United States v. Moussaoui, 205 F.R.D. 183, 185 (E.D. 6 Va. 2002) (“[T]he First Amendment does not include a right to televise, record or 7 otherwise broadcast federal criminal trial proceedings.”). Ms. Shavlik never alleges that 8 she was denied access to the courtroom during the Reed trial or the right to report on her 9 observations. (See generally FAC.) The court therefore concludes that her allegations 10 concerning Judge Weiss’s show-cause order and the local rule limiting videography in 11 the courtroom fail to state a First Amendment claim. 12 F. 13 Fourteenth Amendment Claim Ms. Shavlik continues to press her Fourteenth Amendment due process claim. 14 (Resp. at 7.) She argues that her allegations that Judge Weiss based his show-cause order 15 on perjured testimony are sufficient to state a due process claim under the Fourteen 16 Amendment. (See id.) As the court explained in its earlier order, “[t]he show-cause 17 order satisfied the notice due under the Fourteenth Amendment and Washington law 18 because it informed Ms. Shavlik of the time and place of the hearing, and the nature of 19 the charges pending.” (12/21/18 Order at 14-15 (internal quotation marks omitted) 20 (citing In re Marriage, 737 P.2d 671, 704 (Wash. 1987); Cherry v. City Coll. of S.F., 21 No. C04-04981 WHA, 2007 WL 2904188, at *3 (N.D. Cal. Oct. 1, 2007)). Thus, Judge 22 Weiss adequately provided Ms. Shavlik the opportunity to present evidence and argument ORDER - 17 1 concerning the alleged perjured testimony and to otherwise show that a finding of 2 contempt was not warranted. Further, Ms. Shavlik’s allegation that she was “afraid to 3 attend [the show-cause hearing] because she could not obtain counsel and might be jailed 4 for improperly invoking her rights” is not plausible. (See FAC ¶ 3.40); see also Iqbal, 5 556 U.S. at 678. Judge Weiss’s show-cause order expressly states: “Jail time is not 6 being requested.” (See OSC (Dkt. # 12-1) at 2.) Accordingly, the court dismisses Ms. 7 Shavlik’s Fourteenth Amendment due process claim. 8 G. 9 State Law Claims Ms. Shavlik alleges state law claims against all Defendants “except the 10 prosecutors.” (FAC at 15-16.) She alleges that Mr. Alsdorf, Mr. Matteson, and Mr. Roe 11 are prosecutors. (Id. at 3.) By process of elimination, the court concludes that Ms. 12 Shavlik alleges her state law claims against Snohomish County, Detective Fontenot, Mr. 13 Sayles, and the Sayles Law Firm. (See generally id.) Ms. Shavlik alleges four state law 14 claims in her amended complaint: (1) abuse of process; (2) intentional infliction of 15 emotional distress; (3) deceptive trade violations; and (4) common law right to privacy. 16 (See id. at 15-16.) The court addresses each of these claims in turn. Abuse of Process 17 1. 18 In her original complaint, Ms. Shavlik alleged abuse of process against Mr. Sayles 19 only, suggesting that he had used the contempt proceedings to retaliate against her for 20 filming his interactions with a witness at the Reed trial. (Compl. at 19.) The court 21 concluded that she alleged “no facts capable of supporting that conclusory allegation; nor 22 . . . facts capable of showing Mr. Sayles somehow exerted influence over the contempt ORDER - 18 1 proceedings.” (12/21/18 Order at 30.) She argues that, with the additional allegations in 2 her amended complaint that Judge Weiss relied upon perjured testimony from Mr. 3 Alsdorf and Mr. Sayles in issuing his order to show cause, she has now adequately 4 pleaded this claim. (See Resp. at 8.) 5 The mere institution of a legal proceeding even with a malicious motive does not 6 constitute an abuse of process. Loeffelholz v. Citizens for Leaders with Ethics & 7 Accountability Now (C.L.E.A.N.), 82 P.3d 1199, 1217 (Wash. Ct. App. 2004). Instead, 8 the “gist” of the action is the misuse or misapplication of the process, after it has once 9 been issued, for an end other than that which it was designed to accomplish. Id. “In 10 other words, the action requires ‘a form of extortion, and it is what is done in the course 11 of negotiation, rather than the issuance or any formal use of the process itself, which 12 constitutes the tort.’” Id. (quoting Batten v. Abrams, 626 P.2d 984, 989 (Wash. Ct. App. 13 1981)). 14 Here, Ms. Shavlik never alleges that Judge Weiss’s order to show cause or the 15 subsequent hearing, which she declined to attend, culminated in the entry of a contempt 16 order against her. (See generally FAC.) She does not allege how Defendants used either 17 Judge Weiss’s initial show-cause order or a contempt order, if any, as “a form of 18 extortion” during negotiation after the lodging of the claim. See Batten, 626 P.2d at 989. 19 Further, although she alleges in a conclusory fashion that Mr. Sayles, Mr. Alsdorf, and 20 Mr. Matteson “abuse[d] the process . . . to stifle and punish free speech during the 21 criminal trial” (FAC ¶ 3.42), the court has already concluded that she did not have a First 22 Amendment right to film the trial, see supra § III.E., and she has not otherwise alleged ORDER - 19 1 any impingement on her “free speech” rights (see generally FAC). Thus, the court 2 concludes that Ms. Shavlik has failed to adequately plead her abuse of process claim and 3 accordingly dismisses it. Intentional Infliction of Emotional Distress 4 2. 5 The court dismissed Ms. Shavlik’s claim for intentional infliction of emotional 6 distress in her original complaint but granted her leave to amend the claim. (12/21/18 7 Order at 31.) The elements of the claim include: (1) extreme and outrageous conduct, 8 (2) intentional or reckless infliction of emotional distress, and (3) severe emotional 9 distress. See Reid v. Pierce Cty., 961 P.2d 333, 337 (Wash. 1998); Christian v. Tohmeh, 10 366 P.3d 16, 30 (Wash. Ct. App. 2015). Ms. Shavlik now argues that “[w]ith the 11 additional allegations that [Defendants] made misrepresentation to the court, along with 12 the long history of retaliation [Defendants] have directed against her, [she] has now 13 established the detail the court said was missing in her original complaint.” (Resp. at 9.) 14 The court disagrees. Washington courts have repeatedly held that false 15 accusations and the institution of allegedly false or harassing lawsuits are not sufficient to 16 constitute the tort of outrage. For example, in Lawson v. Boeing Co., 792 P.2d 545, 17 550-51 (Wash. Ct. App. 1990), the court held that false allegations of sexual harassment 18 that resulted in the supervisor’s demotion were insufficient to constitute intentional 19 infliction of emotional distress. Likewise, in Saldivar v. Momah, 186 P.3d 1117, 1130-31 20 (Wash. Ct. App. 2008), the court held that the filing of a suit alleging sexual abuse by a 21 physician, even with malicious intent, “is not ‘so outrageous in character, [and] so 22 extreme in degree, as to go beyond all possible bounds of decency’ and to be ‘utterly ORDER - 20 1 intolerable in a civilized community.’” Id. at 1131 (quoting Grimsby v. Samson, 530 2 P.2d 291, 295 (Wash. Ct. App. 1975) (alterations in Saldivar). If the conduct in Lawson 3 and Saldivar was insufficient to state a claim for the intentional infliction of emotional 4 distress, Defendants’ alleged conduct in wrongfully accusing Ms. Shavlik of filming 5 court proceedings in violation of Judge Weiss’s order is also insufficient as a matter of 6 law. Further, none of the other allegations in Ms. Shavlik’s amended complaint reach the 7 level of outrage required to state a claim for this tort. (See generally FAC.) Accordingly, 8 the court dismisses her claim for intentional infliction of emotional distress. 9 10 3. Consumer Protection Act The court liberally construed Ms. Shavlik’s claim for “deceptive trade violations” 11 and “unfair competition” in her original complaint as a claim for unfair competition 12 under Washington’s CPA and dismissed it with leave to amend. (12/21/18 Order at 32.) 13 Ms. Shavlik now argues that “[w]ith the additional allegations the [Defendants] made 14 misrepresentations to the court, along with the long history of retaliation [Defendants] 15 have directed against her, [she] has now established the detail the court said was missing 16 in her original complaint by showing [Defendants] interfered with her business as a 17 journalist.” (Resp. at 10.) 18 To state a claim under the CPA, a plaintiff must allege five elements: (1) “an 19 unfair or deceptive act or practice,” (2) occurring “in trade or commerce,” (3) “a public 20 interest,” (4) “injury to the plaintiff in his or her business or property,” and (5) “a causal 21 link between the unfair or deceptive act and the injury suffered.” Indoor 22 Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 170 P.3d 10, 17 (Wash. 2007) ORDER - 21 1 (citing Hangman Ridge Training Stables v. Safeco Title Ins. Co., 719 P.2d 531, 535 2 (Wash. 1986)). An unfair or deceptive act is an act that deceives or “[has] the capacity to 3 deceive a substantial portion of the public.” Indoor Billboard, 170 P.3d at 18. 4 Ms. Shavlik again fails to allege a claim under the CPA. Even assuming that her 5 allegations that Defendants perjured themselves constitute “a deceptive act” under the 6 CPA, she has not alleged how Defendants’ alleged testimony in a court proceeding could 7 be said to occur in trade or commerce. See Indoor Billboard/Wash., Inc., 170 P.3d at 17. 8 Further, her only allegations concerning any injury to her business or property consist of 9 stating that Defendants’ actions “plac[ed] [her] and her business in a bad light within the 10 court process.” (FAC at 15.) As the court previously stated, this “is precisely the sort of 11 ‘unadorned, “the-defendant-unlawfully-harmed-me accusation”’ that fails to satisfy the 12 federal pleading standards.” (12/21/18 Order at 33 (quoting Iqbal, 556 U.S. at 678).) 13 Accordingly, the court grants Defendants’ motion and again dismisses Ms. Shavlik’s 14 CPA claim. Right of Privacy 15 4. 16 In its prior order, the court rejected Ms. Shavlik’s claim that Defendants violated 17 her privacy under Article I, Section 7 of the Washington Constitution because the 18 Washington Supreme Court has declined to recognize a private right of action under that 19 provision. (12/21/18 Order at 26 (citing Reid, 961 P.2d at 342-43).) The court 20 nevertheless granted Ms. Shavlik leave to amend her complaint to allege a common law 21 violation of privacy claim. (Id.) 22 // ORDER - 22 1 To establish an invasion of privacy claim, a plaintiff must prove the following 2 elements: (1) “[A]n intentional intrusion, physically or otherwise, upon the solitude or 3 seclusion of plaintiff, or his private affairs;” (2) “[W]ith respect to the matter or affair 4 which plaintiff claims was invaded, that plaintiff had a legitimate and reasonable 5 expectation of privacy;” (3) “[T]he intrusion would be highly offensive to a reasonable 6 person; and” (4) “[T]hat the defendant’s conduct was a proximate cause of damage to the 7 plaintiff.” Doe v. Gonzaga Univ., 24 P.3d 390, 399 (Wash. 2001), reversed on other 8 grounds, 536 U.S. 273 (2002) (relying upon Restatement (Second) of Torts § 652B 9 (1977)); see also McLenan-Kenny v. Washington Dep’t of Labor & Indus., No. C13-6026 10 RBL, 2014 WL 1648501, at *3 (W.D. Wash. Apr. 24, 2014). Ms. Shavlik argues that 11 from her allegations there is a “reasonable inference” that the purpose of Defendants’ 12 actions was “to thrust her into the limelight as a bad person in a highly publicized double 13 murder case” resulting in the “private details” of her name and address being placed in 14 the public record. (Resp. at 10.) 15 Despite Ms. Shavlik’s assertions, she fails to state a claim for common law 16 invasion of privacy. Liberally construing her claim, Ms. Shavlik alleges that Defendants 17 perjured themselves before Judge Weiss to undermine Ms. Shavlik’s ability to film and 18 report on a criminal trial. (See FAC at 13.) Contrary to her assertions, these allegations 19 do not allege a violation of her common law right to privacy. (See id. at 16.) 20 Defendants’ alleged acts do not intrude upon her solitude or seclusion or her private 21 affairs. See Doe, 24 P.3d at 399. Nothing about her alleged attendance at, reporting on, 22 or filming of a public criminal trial can be described as private; nor can she assert that she ORDER - 23 1 has a legitimate expectation of privacy in these public acts. See id. The court, therefore, 2 grants Defendants’ motion and dismisses her claim for common law invasion of privacy. 3 H. Leave to Amend 4 Under Federal Rule of Civil Procedure 15(a)(2) , the court should “freely give 5 leave [to amend a pleading] when justice so requires,” Fed. R. Civ. P. 15(a)(2), “and 6 should be granted more liberally to pro se plaintiffs,” McQuillion v. Schwarzenegger, 369 7 F.3d 1091, 1099 (9th Cir. 2004). However, “[t]he [c]ourts discretion to deny an 8 amendment is ‘particularly broad’ where a plaintiff has previously amended his 9 complaint.” Renner v. Bank of Am., N.A., No. CV-14-08051-PCT-JAT, 2014 WL 10 4209254, at *2 (D. Ariz. Aug. 26, 2014) (quoting Allen v. City of Beverly Hills, 911 F.2d 11 367, 373 (9th Cir. 1990)). Indeed, pro se litigants are not entitled by law to multiple 12 opportunities to amend their pleadings. See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 13 (9th Cir. 1995) (per curiam) (noting that “a pro se litigant is entitled to notice of the 14 complaint’s deficiencies and an opportunity to amend prior to dismissal”). If factors such 15 as undue delay, bad faith, dilatory motive, undue prejudice, or futility of amendment are 16 present, leave to amend may properly be denied in the district court’s discretion. 17 Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th Cir. 2003). 18 The court already gave Ms. Shavlik leave to amend her original complaint and 19 explained in detail the deficiencies found therein. (See generally 12/21/18 Order.) Her 20 amended complaint is also fatally deficient. See supra § III.A.-G. Although the court is 21 aware that Ms. Shavlik is a pro se litigant and understands the difficulties of navigating 22 the legal system without counsel, the court will not grant Ms. Shavlik leave to amend her ORDER - 24 1 amended complaint because granting such leave would likely be futile. After carefully 2 analyzing both Ms. Shavlik’s original and amended complaints and her response the 3 present motion (see Compl., FAC, Resp.), the court discerns no facts that could 4 potentially support a claim for relief. Accordingly, the court denies leave to amend and 5 dismisses Ms. Shavlik’s amended complaint with prejudice. 6 IV. CONCLUSION 7 Based on the foregoing analysis, the court GRANTS Defendants’ motion to 8 dismiss Ms. Shavlik’s amended complaint (Dkt. # 27) and DISMISSES her action WITH 9 PREJUDICE. 10 Dated this 26th day of June, 2019. 11 12 A 13 JAMES L. ROBART United States District Judge 14 15 16 17 18 19 20 21 22 ORDER - 25

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