Saade v. State of Washington Department of Health et al, No. 2:2019cv00470 - Document 37 (W.D. Wash. 2019)
Court Description: ORDER granting the deferred portion of Defendant Fenimore's 9 Motion to Dismiss; granting Defendant Fenimore's 28 Motion to Dismiss; all claims against Defendant Fenimore are DISMISSED with prejudice; granting in part and denying in p art the Bellevue Defendants' 29 Motion to Dismiss as follows: Plaintiff's Fourth and Fourteenth Amendment claims against the City of Bellevue are DISMISSED without prejudice. Plaintiff's Negligence claim against all Bellevue Defen dants is DISMISSED with prejudice. The Bellevue Defendants' Motion is DENIED with respect to the Fourth and Fourteenth Amendment claims against Defendants Inman and Neff. Any Amended Complaint shall be filed within thirty (30) days of the date of this Order. The Bellevue Defendants' answers or responsive pleadings are due within fourteen (14) days after any Amended Complaint is filed, but in no event later than 2/24/2020. Signed by Judge Thomas S. Zilly.(MW)
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Saade v. State of Washington Department of Health et al Doc. 37 1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 CHRISTOPHER RYAN SAADE, 8 9 10 11 12 13 14 15 16 Plaintiff, v. TIMOTHY J. FENIMORE, in his individual capacity as an agent of the DEPARTMENT OF HEALTH, THE CITY OF BELLEVUE, a Washington municipal corporation, ELLEN M. INMAN, individually and in her official capacity as an officer of the CITY OF BELLEVUE POLICE DEPARTMENT, and RACHEL M. NEFF, individually and in her official capacity as an officer of the CITY OF BELLEVUE POLICE DEPARTMENT, jointly and severally, C19-470 TSZ ORDER Defendants. 17 18 THIS MATTER comes before the Court on the deferred portion of the Motion to 19 Dismiss brought by Defendant Timothy J. Fenimore (“Fenimore”), docket no. 9, 20 Defendant Fenimore’s Second Motion to Dismiss, docket no. 28, and the Second Motion 21 to Dismiss, docket no. 29, brought by the City of Bellevue, Ellen M. Inman (“Inman”), 22 and Rachel M. Neff (“Neff”) (hereinafter “Bellevue Defendants”). Having reviewed all 23 ORDER - 1 Dockets.Justia.com 1 papers filed in support of and in opposition to the motions, the Court enters the following 2 order. 3 Background By Order dated September 18, 2019, docket no. 22, in connection with 4 5 Defendants’ Motions to Dismiss, the Court dismissed portions of Plaintiff’s original 6 complaint without prejudice, allowing Plaintiff an opportunity to replead those claims. 7 The Court deferred ruling relative to Plaintiff’s Fourth Amendment claim against 8 Defendant Fenimore and directed Plaintiff to file a brief on the issue of qualified 9 immunity. Docket no. 23. In response, Plaintiff filed a supplemental brief. Docket no. 10 27. Plaintiff has now filed an Amended Complaint (“AC”), realleging certain claims that 11 the Court previously dismissed without prejudice as well as the deferred claim. Docket 12 no. 25. 13 Because the parties are familiar with the facts of the case, they are not recited here 14 in great detail. See Order (docket no. 22 at 2-3). In the Amended Complaint, Plaintiff 15 Christopher Ryan Saade (“Saade” or “Plaintiff”) alleges that Defendant Fenimore, an 16 agent of the State of Washington Department of Health (“DOH”), and the Bellevue 17 Defendants violated his civil rights when they interviewed him together for parallel DOH 18 and criminal investigations. AC ¶¶ 47-48; 56-58. After DOH’s investigation, DOH 19 placed Plaintiff’s professional license on probationary status. Id. ¶¶ 41-42. Plaintiff 20 alleges that these Defendants did not inform him that there was an ongoing parallel 21 criminal investigation until after they jointly interviewed him. Id. ¶¶ 31-32. All 22 Defendants now move to dismiss Plaintiff’s Amended Complaint. 23 ORDER - 2 1 Discussion 2 3 A. Rule 12(b)(6) Standard Although a complaint challenged by a Rule 12(b)(6) motion to dismiss need not 4 provide detailed factual allegations, it must offer “more than labels and conclusions” and 5 contain more than a “formulaic recitation of the elements of a cause of action.” Bell Atl. 6 Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint must indicate more than 7 mere speculation of a right to relief. Id. When a complaint fails to adequately state a 8 claim, such deficiency should be “exposed at the point of minimum expenditure of time 9 and money by the parties and the court.” Id. at 558. A complaint may be lacking for one 10 of two reasons: (i) absence of a cognizable legal theory, or (ii) insufficient facts under a 11 cognizable legal claim. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th 12 Cir. 1984). In ruling on a motion to dismiss, the Court must assume the truth of the 13 plaintiff’s allegations and draw all reasonable inferences in the plaintiff’s favor. Usher v. 14 City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The question for the Court is 15 whether the facts in the complaint sufficiently state a “plausible” ground for relief. 16 Twomb ng a confession. Id. Plaintiff’s reliance on Niemann is misplaced. 22 Unlike Plaintiff’s allegations in this case, the court in Niemann discussed plaintiff’s Fifth 23 ORDER - 5 1 and Fourteenth Amendment rights with regard to the parallel interview, not her Fourth 2 Amendment right to be free from unreasonable seizure. See id. at 667 (“We believe that 3 plaintiff’s contentions are properly understood as alleging a violation of her Fifth or 4 Fourteenth Amendment rights to be free from the coercion of a confession, rather than as 5 a violation of her Fourth Amendment right to be free from the unreasonable seizure of 6 her person.”). Moreover, the Niemann court actually granted Summary Judgment for 7 defendant on plaintiff’s Fourth Amendment claim to the extent it was based on an alleged 8 seizure at the plaintiff’s interview. Id. at 666-67 (“To the extent that plaintiff’s [Fourth 9 Amendment claims] are based on the fact that she was interviewed, defendants are 10 entitled to summary judgment dismissing those claims.”). 1 This Court cannot conclude 11 that the Supreme Court or the Ninth Circuit would decide the issue in favor of Plaintiff,” 12 Elder, 510 U.S. at 512, 516, or that the existence of Niemann places the statutory or 13 constitutional question beyond debate. Foster, 908 F.3d at 1210 (quoting Kisela, 138 S. 14 Ct. at 1152). 15 Moreover, Niemann is a single, out of circuit district court case. A single district 16 court opinion even in its own circuit is insufficient to demonstrate a clearly established 17 right. Thomas v. Cty. of Los Angeles, 703 Fed. Appx. 508, 512 (9th Cir. 2017). 2 18 19 1 Niemann was appealed to the Second Circuit on other grounds. See 107 F.3d 3 (2d. Cir. 1997). After 20 the court’s ruling on summary judgment, a jury found that the defendants had violated plaintiff’s Fifth Amendment rights by coercing her confession. Niemann v. Whalen, 928 F. Supp. 296, 298 (S.D.N.Y. 21 1996), aff'd, 107 F.3d 3 (2d Cir. 1997). The court denied the police investigator’s motion for judgment as a matter of law, and the Second Circuit affirmed. See Niemann, 107 F.3d at 3. 22 23 2 Even courts in the Southern District of New York performing the qualified immunity analysis have rejected Niemann as binding precedent. See Bowman v. City of Middletown, 91 F. Supp. 2d 644, 661 (S.D.N.Y. 2000). ORDER - 6 1 After reviewing the relevant briefing, the Court finds that Plaintiff has not carried 2 his burden of “point[ing] to prior case law that articulates a constitutional rule specific 3 enough to alert the[] [Defendant] in this case that their particular conduct was unlawful.” 4 Hernandez v. City of San Jose, 897 F.3d 1125, 1137 (2018) (quoting Sharp v. Cty. of 5 Orange, 871 F.3d 901, 911 (9th Cir. 2017)). Plaintiff’s Fourth Amendment claim against 6 Defendant Fenimore is DISMISSED. 7 8 b. Fourteenth Amendment Plaintiff also alleges in the Amended Complaint that Defendant Fenimore violated 9 his due process rights as a result of the interview at issue. The Court concludes that 10 Plaintiff has not met his burden in establishing that the Fourteenth Amendment right that 11 Defendant Fenimore allegedly violated was clearly established at the time of the alleged 12 violation. Plaintiff cites two cases in support of finding a clearly established due process 13 right—Niemann, 911 F. Supp. 656 and Jones v. State, 170 Wn. 2d 338 (2010). As stated 14 in Section B(a), supra, Niemann is a single, out of circuit district court case that is not 15 even binding precedent in its own circuit. The Court declines to rely on Niemann to find 16 that the Fourteenth Amendment right Defendant Fenimore allegedly violated was clearly 17 established. Plaintiff also cites Jones v. State to support his due process claim. The 18 Washington Supreme Court found that a procedure “based on a fabricated emergency” is 19 inherently defective and implicates a party’s due process rights. Jones, 170 Wn. 2d at 20 351. Jones does not involve a discussion of whether a parallel criminal and civil 21 22 23 ORDER - 7 1 investigation (as is the case here) violates due process. Jones is also insufficient to create 2 a clearly established right that was violated. 3 3 Defendant Fenimore is therefore entitled to qualified immunity on both counts. 4 The Court GRANTS the deferred portion of Defendant Fenimore’s Motion to Dismiss 5 and Defendant Fenimore’s Second Motion to Dismiss. Plaintiff’s claims against 6 Defendant Fenimore are dismissed with prejudice. 4 7 C. Fourth and Fourteenth Amendment Claims Against the City of Bellevue 8 Plaintiff alleges that the Bellevue Defendants “acted pursuant to an expressly 9 adopted official policy or a widespread or longstanding practice or custom” of the City of 10 Bellevue and “advanced the policy, practice, or custom that permitted subordinates to 11 commit constitutional violation[s], acquiesced in the constitutional deprivation by 12 subordinates, and/or developed policies, training, and supervision that failed to prevent 13 14 15 16 17 18 19 20 3 The 9th Circuit addressed the constitutionality of parallel criminal and civil investigations in U.S. v. Stringer, 535 F.3d 929 (9th Cir. 2008), a case neither party cites in the briefs. In Stringer, the 9th Circuit stated that the Supreme Court has “emphatically upheld the propriety of such parallel investigations,” and “the government may conduct parallel civil and criminal investigations without violating the due process clause, so long as it does not act in bad faith.” Id. at 936-37. An example of government bad faith is where a civil interview is a “pretext” for a criminal investigation. Id. at 939. The Stringer court found that a civil investigation was not pretextual where the SEC’s civil investigation was opened first and led to the SEC’s civil enforcement jurisdiction. Id. The same is true in this case. The DOH began its civil investigation first and then pursued administrative sanctions pursuant to its findings. AC ¶¶ 19; 21. To date, the Bellevue Police Department has not brought criminal charges. The civil interview was therefore not mere “pretext” for the criminal investigation performed by the Bellevue Defendants. Even considering Stringer, the Supreme Court or the Ninth Circuit would not decide the issue in favor of Plaintiff. See Elder, 510 U.S. at 512, 516. Stringer also does not place the statutory or constitutional question beyond debate for the purposes of qualified immunity. See Foster, 908 F.3d at 1210 (quoting Kisela, 138 S. Ct. at 1152). 4 The Court declines to give Plaintiff an additional opportunity to amend his complaint with regard to the 21 claims against Defendant Fenimore. Plaintiff has had multiple opportunities to address whether the constitutional rights allegedly violated were clearly established but has repeatedly failed to do so. See, 22 e.g., Response to Defendant Fenimore’s Motion to Dismiss (docket no. 15); Amended Complaint (docket 23 no. 25); Plaintiff’s Brief Regarding Clearly Established Fourth Amendment Right (docket no. 27); Response to Defendant Fenimore’s Second Motion to Dismiss (docket no. 30). ORDER - 8 1 violations of law and/or failed to adequately train its employees and agents.” AC ¶¶ 492 50; 61-62. 3 Plaintiff has not met the standards for pleading a plausible Monell-based 4 constitutional claim against the City of Bellevue. Monell v. Department of Social 5 Services, 436 U.S. 658 (1978). Municipal liability attaches under Monell only if (1) the 6 municipal employee acted pursuant to a policy, custom or practice, (2) the individual who 7 committed the constitutional tort was an official with final policy making authority, or 8 (3) such an official ratified a subordinate’s unconstitutional action. Id. at 690. Plaintiff 9 has failed to plead sufficient facts in the Amended Complaint relating to the City of 10 Bellevue’s liability based on Monell. Barebones allegations that the actions of individual 11 defendants were performed pursuant to an established policy of the municipal defendant 12 or as a result of a failure to train cannot survive a motion to dismiss. AE ex rel. 13 Hernandez v. County of Tulare, 666 F.3d 631, 636-37 (9th Cir. 2012). The mere 14 recitation of the elements of a Monell claim here does not include enough underlying 15 facts to give the City of Bellevue fair notice of the claim. Id. at 637. However, the Court 16 must allow Plaintiff an opportunity to cure the deficiency in his Monell claim. 5 Id. 17 18 19 5 Plaintiff alleges that the fact that “[t]his was not the only time that Fenimore had worked in close 20 conjunction with law enforcement” shows a pattern and practice sufficient for municipal liability. AC ¶ 33. This vague and unsupported fact is insufficient to support Plaintiff’s municipal liability claims. 21 Plaintiff alleges that the Bellevue Defendants collaborated with DOH frequently and that Plaintiff made public records requests “to obtain evidence to demonstrate the pattern and practice of the two Defendant 22 agencies.” Plaintiff’s Response to the Bellevue Defendants’ Second Motion to Dismiss, docket no. 34 at 23 14. The Court thus gives Plaintiff leave to amend his Fourth and Fourteenth Amendment claims against the City of Bellevue to add facts supporting a plausible municipal liability claim. ORDER - 9 Plaintiff’s Fourth and Fourteenth Amendment Monell-based claims (Counts I and 1 2 II) against the City of Bellevue are dismissed without prejudice. D. Fourth Amendment Claim Against Defendants Inman and Neff 3 As the Court stated in its order, docket no. 22, whether the Defendants Inman and 4 5 Neff violated Saade’s Fourth Amendment right involves genuine issues of material fact. 6 Defendants Inman and Neff now contend that Plaintiff’s new allegation that 7 Defendant Inman told him he was “free to leave at any point if you want to” should 8 change the Court’s conclusion in its previous order denying Defendant’s Motion to 9 Dismiss as to the Fourth Amendment claim. 6 AC ¶ 36. Whether a person was told they 10 were free to leave is not dispositive of a Fourth Amendment claim. United States v. 11 Craighead, 539 F.3d 1073, 1088 (9th Cir. 2008) (“The mere recitation of the statement 12 that the suspect is free to leave or terminate the interview, however, does not render an 13 interrogation non-custodial per se.”). Assuming the truth of Plaintiff’s allegations and 14 drawing all reasonable inferences in his favor, the Court concludes that material issues of 15 fact preclude summary judgment on this issue. 16 Defendants Inman and Neff’s Motion to Dismiss Plaintiff’s Fourth Amendment 17 Claim is DENIED. 18 19 20 21 6 The Court notes that the Bellevue Defendants’ argument in the Motion focuses on whether Plaintiff was seized, not whether that seizure was unreasonable. See docket no. 29 at 6 (“The Fourth Amendment 22 claim fails, because there was no seizure.”); docket no. 35 at 3 (“Mr. Saade hasn’t adequately pleaded a Fourth Amendment claim, because he hasn’t alleged any facts from which it could plausibly be inferred that he was seized.”). Thus, the Court does not address the reasonableness of any alleged seizure. 23 ORDER - 10 1 E. Fourteenth Amendment Procedural Due Process Claim Against Defendants Inman and Neff 2 To state a procedural due process claim, a plaintiff must allege: (1) a liberty or 3 property interest protected by the Constitution; (2) a deprivation of the interest by the 4 government; and (3) lack of process. Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 5 (9th Cir. 1993). 6 The Court dismissed Plaintiff’s Fourteenth Amendment procedural due process 7 claim with leave to amend. Plaintiff now alleges in the Amended Complaint that 8 Defendants Inman and Neff violated his due process rights when they conducted the 9 parallel interview with Defendant Fenimore, coerced statements out of him, and that he 10 was deprived of “his rights to maintain his unblemished occupational license and 11 deprived of his ability to pursue his chosen profession.” AC ¶ 59. 7 Plaintiff’s 12 professional license is presently in a probationary status while he exhausts his 13 administrative remedies. Id. ¶ 42. Plaintiff states a Fourteenth Amendment claim against 14 Defendants Inman and Neff. 15 A professional license is a property interest protected by the Constitution. Mishler 16 v. Nevada State Bd. of Med. Examiners, 896 F.2d 408, 409-10 (9th Cir. 1990); Gallo v. 17 U.S. Dist. Court For Dist. of Arizona, 349 F.3d 1169, 1179 (9th Cir. 2003) (applying 18 procedural due process analysis to revocation of California State Bar license because a 19 20 7 Many of the facts in Plaintiff’s Amended Complaint Fourteenth Amendment relate to the Fifth or Fourth 21 Amendments. See AC ¶¶ 57, 59 (allegations that Plaintiff was “deprived of the right to remain silent and not to make statements that could be used against him”; “restrained in a manner in which he did not feel 22 free to leave”; and not “informed of his Garrity rights”). The analysis in this order only pertains to 23 Plaintiff’s Fourteenth Amendment allegations as they relate to the deprivation of his professional license without due process. ORDER - 11 1 “professional license, once conferred, constitutes an entitlement subject to constitutional 2 protection”). Probation of a professional license is a deprivation of the interest by the 3 government. 4 The question is thus whether Defendants’ dual criminal-civil interview of Plaintiff 5 constituted a lack of process. 8 Generally, “the government may conduct parallel civil and 6 criminal investigations without violating the due process clause.” United States v. 7 Stringer, 535 F.3d 929, 936 (9th Cir. 2008) (citing United States v. Kordel, 397 U.S. 1, 8 11 (1970)). However, due process rights may be implicated in a dual investigation where 9 consent was “induced by fraud, deceit, trickery or misrepresentation.” United States v. 10 Heine, 2016 WL 6808595, at *13 (D. Or. Nov. 17, 2016) (quoting United States v. 11 Peters, 153 F.3d 445, 451 (7th Cir. 1998)). Plaintiff alleges that Defendants deceived 12 him when they coerced his participation in the interview and hid the existence of the 13 criminal complaint from him until after the interview ended. AC ¶¶ 31; 36; 39; 59. 14 Assuming the truth of the Plaintiff’s allegations and drawing all reasonable inferences in 15 his favor, the facts in the Amended Complaint state a plausible ground for relief on 16 Plaintiff’s due process claim. The Bellevue Defendant’s Second Motion to Dismiss the 17 due process claim is DENIED as to Defendants Inman and Neff. 18 19 8 Defendant Inman and Neff note that Plaintiff “doesn’t allege that Bellevue or its detectives conducted the administrative proceeding or used the statements against him.” Docket 35 at 4. It is not necessary 20 that a Defendant took away the liberty interest. Rather, the causation element for a § 1983 claim is met if the plaintiff shows the defendant official set in motion a series of acts by others which the official knew 21 or reasonably should have known would cause others to inflict the constitutional injury. Dahlia v. Rodriguez, 735 F.3d 1060, 1078 n.22 (9th Cir. 2013) (quotation marks and citation omitted). Plaintiff 22 alleges that the Bellevue Defendants’ dual interview “set in motion” the administrative proceedings that resulted in the constitutional injury—the probation of his license. Thus, Plaintiff has alleged causation under § 1983. 23 ORDER - 12 1 2 F. Negligence Claim Against Bellevue Defendants The Court previously dismissed Plaintiff’s negligence claims against the Bellevue 3 Defendants without prejudice for failure to allege a statutory exception to the Public Duty 4 Doctrine. See Order, docket no. 22 at 11-12. In this case, the only exception upon which 5 plaintiff might rely is a “special relationship.” To establish a special relationship creating 6 an actionable duty on the part of a governmental entity, a plaintiff must show: (i) the 7 plaintiff had direct contact or privity with a public official, thereby setting the plaintiff 8 apart from the general public; (ii) the public official gave “express assurances” to the 9 plaintiff; and (iii) the plaintiff justifiably relied on such express assurances to his or her 10 detriment. See Cummins v. Lewis County, 156 Wn.2d 844, 854 (2006). Plaintiff has 11 alleged no facts in the Amended Complaint of any “express assurances” by a public 12 official upon which he could have justifiably relied to his detriment. 13 In the Amended Complaint, Plaintiff alleges that the Bellevue Defendants “had 14 direct contact with Saade in a manner that set him aside from the general public.” 15 AC ¶ 67. Namely, Defendant Inman gave Plaintiff “express assurances that their 16 presence . . . was ‘normal’” and “done in an effort to be ‘courteous.’” Id. ¶ 68. Plaintiff 17 alleges he justifiably relied on these express assurances and that as a result, he was “set 18 apart from the general public.” Id. ¶ 69. 19 However, Plaintiff has not alleged express assurances. Express assurances must 20 be unequivocal. Vergeson v. Kitsap County, 145 Wn. App. 526, 539 (2008). Plaintiff 21 cites Noakes v. City of Seattle, in which a 911 operator gave express assurances to the 22 caller that they would “send someone out.” 77 Wn. App. 694 (1995). In that case, the 23 ORDER - 13 1 court found that “we’ll send someone out” could be construed by a reasonable trier of 2 fact as an “express and explicit assurance that police would be right out” sufficient to 3 constitute the special relationship exception to the public duty doctrine. Here, however, 4 there are no allegations that Defendants Inman and Neff made specific statements or 5 promises about how material from the interview would be used. Defendant Inman 6 merely said the interview was “normal” and that she was trying to be “courteous.” Those 7 statements were not express assurances, and they cannot be construed as promises under 8 the special relationship exception to the public duty doctrine. Plaintiff’s negligence claim 9 against the Bellevue Defendants is now DISMISSED with prejudice. 9 10 Conclusion 11 For the foregoing reasons, the Court ORDERS: 12 (1) The deferred portion of Fenimore’s Motion to Dismiss, docket no. 9, is 13 GRANTED. Defendant Fenimore’s Second Motion to Dismiss, docket 14 no. 28, is GRANTED. All claims against Defendant Fenimore are 15 DISMISSED with prejudice. 16 (2) The Bellevue Defendants’ Second Motion to Dismiss, docket no. 29, is 17 GRANTED in part and DENIED in part as follows: 18 (a) Plaintiff’s Fourth and Fourteenth Amendment claims against the City of 19 Bellevue are DISMISSED without prejudice. 20 21 22 23 9 Plaintiff has had multiple opportunities to plead an exception to the public duty doctrine but has failed to do so. The Court dismisses Plaintiff’s negligence claim with prejudice as to all Bellevue Defendants. ORDER - 14 (b) Plaintiff’s Negligence claim against all Bellevue Defendants is 1 2 DISMISSED with prejudice. 3 (c) The Bellevue Defendants’ Motion is DENIED with respect to the 4 Fourth and Fourteenth Amendment claims against Defendants Inman 5 and Neff. 6 (3) Any Amended Complaint shall be filed within thirty (30) days of the date 7 of this Order. The Bellevue Defendants’ answers or responsive pleadings 8 are due within fourteen (14) days after any Amended Complaint is filed, 9 but in no event later than February 14, 2020. 10 (4) Summary of Remaining Claims: 11 (a) Fourth Amendment claim against Defendants Inman and Neff. 12 (b) Fourteenth Amendment claim against Defendants Inman and Neff. 13 (5) 14 IT IS SO ORDERED. 15 Dated this 27th day of December, 2019. 16 The Clerk is directed to send a copy of this Order to all counsel of record. A 17 18 Thomas S. Zilly United States District Judge 19 20 21 22 23 ORDER - 15
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