Blevins et al v. Mason County et al, No. 3:2012cv05451 - Document 18 (W.D. Wash. 2012)
Court Description: ORDER granting 8 Defendant Mason County's Motion to Dismiss; denying 9 Plaintiffs' Motion for Summary Judgment; denying 2 Plaintiffs' Motion to Appoint Counsel; all claims are DISMISSED against Defendant Mason County and they have been terminated from this matter. Signed by Judge Ronald B. Leighton.(DN) Modified on 9/4/2012 (DN). (cc to Thomas Blevins)
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Blevins et al v. Mason County et al Doc. 18 1 HONORABLE RONALD B. LEIGHTON 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 HARRISON BLEVINS, pro se, THOMAS BLEVINS, pro se, CASE NO. 3:12-cv-05451 RBL ORDER 10 Plaintiffs, 11 12 v. COUNTY OF MASON, SHELTON SCHOOL DISTRICT, 13 Defendants. 14 15 THIS MATTER is before the Court on Plaintiffs’ Motion for Appointment of Counsel 16 (Dkt. # 2), Plaintiffs’ Motion for Summary Judgment (Dkt. # 9), and Defendant Mason County’s 17 Motion to Dismiss (Dkt. # 8). The Court has reviewed the Motions, as well as the Complaint 18 (Dkt. # 1). 19 Harrison Blevins, and his son, Thomas Blevins sued the Shelton School District and 20 Mason County, alleging civil rights violations. Pls.’ Compl. (Dkt. # 1). The District notified the 21 Blevins that Thomas would be reported to truancy court due to his poor attendance record. (Dkt. 22 #13). Harrison participated in the Truancy Review proceedings in Mason County Superior 23 Court. See Pls.’ Compl. (Dkt. #1); (Dkt. #s 13-15). At a December 17, 2010, hearing, the 24 ORDER - 1 Dockets.Justia.com 1 Mason County Superior Court compelled school attendance for Thomas. (Dkt. #14). After a 2 series of appeals and motions for dismissal and summary judgment, the Blevins filed this action, 3 seeking: “1) Expungement [sic.] of Thomas Blevins’ truancy and contempt, 2) Mointary [sic.] 4 compensation of $3,203,906.60, and 3) Disciplinary and/or criminal charges referred were [sic] 5 applicable.” Pls.’ Compl. (Dkt # 1). The Blevins’ complaint provides a list of grievances against 6 the District and County based upon actions taken by District and County employees. The crux of 7 the Blevins’ claims is that the District and County committed civil rights violations through the 8 course of the truancy review process. 9 For the reasons below, Plaintiffs’ Motion for Appointment of Counsel is DENIED, 10 Plaintiffs’ Motion for Summary Judgment is DENIED, and Defendant Mason County’s Motion 11 to Dismiss is GRANTED. 12 13 14 I. DISCUSSION A. Plaintiffs’ Motion for Appointment of Counsel No constitutional right to counsel exists for an indigent plaintiff in a civil case unless the 15 plaintiff may lose his physical liberty if he loses the litigation. See Lassiter v. Dept. of Social 16 Servs., 452 U.S. 18, 25 (1981). However, pursuant to 28 U.S.C. § 1915(e)(1), the Court may 17 request an attorney to represent any person unable to afford counsel. Under Section 1915, the 18 Court may appoint counsel in exceptional circumstances. Franklin v. Murphy, 745 F.2d 1221, 19 1236 (9th Cir. 1984). To find exceptional circumstances, the court must evaluate the likelihood 20 of success on the merits and the ability of the petitioner to articulate the claims pro se in light of 21 the complexity of the legal issues involved. Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 22 1983). These factors must be viewed together before reaching a decision on whether to appoint 23 counsel under § 1915(e)(1). Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 24 ORDER - 2 1 The Blevins have not been granted leave to proceed in forma pauperis, but have moved 2 this Court to appoint counsel. No exceptional circumstances exist to warrant appointment of 3 counsel. First, the Blevins’ complaint fails to demonstrate a likelihood of success on the merits. 4 The Blevins have not provided sufficient factual basis to show liability on behalf of the District 5 or County. The factual summary of grievances with Thomas’ high school and Thomas’ truancy 6 review fails to demonstrate the potential liability of the two Defendants. 7 Second, the Blevins fail to state a claim for relief. Although the caption identifies a civil 8 rights violation, the complaint fails to state which civil rights were infringed. The complaint 9 identifies individual employees of the District or County who allegedly acted improperly, but 10 fails to provide a factual basis for a § 1983 claim or to assert any claims against any defendants. 11 The complaint lacks a minimum connection between the actions of the employees and District 12 and County, let alone the higher standard required by a Section 1983 claim. The Blevins have a 13 low likelihood of success on the merits and have failed to articulate any claim. The Motion for 14 Appointment of Counsel is DENIED. 15 16 B. Plaintiffs’ Motion for Summary Judgment Summary judgment is appropriate when, viewing the facts in the light most favorable to 17 the nonmoving party, there is no genuine issue of material fact which would preclude summary 18 judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to 19 summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to 20 interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for 21 trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of 22 evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v. 23 Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not 24 ORDER - 3 1 affect the outcome of the suit are irrelevant to the consideration of a motion for summary 2 judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, 3 “summary judgment should be granted where the nonmoving party fails to offer evidence from 4 which a reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 5 1220. 6 The Blevins have failed to demonstrate they are entitled to judgment as a matter of law. 7 A plaintiff alleging municipal liability for civil rights violations must prove three elements: (1) a 8 violation of his/her constitutional rights, (2) the existence of a municipal policy or custom, and 9 (3) a causal nexus between the policy or custom and the constitutional violation. Monell v. New 10 York City Dept. of Social Services, 436 U.S. 658, 691 (1978). To sustain a § 1983 claim, the 11 Blevins must show a constitutional violation by the municipality. Villegas v. Gilroy Garlic 12 Festival Ass’n, 541 F.3d 950, 957 (9th Cir. 2008). 13 Although the Blevins’ motion summarily asserts constitutional violations, a single 14 instance or action by a municipal’s employee is insufficient to grant relief as a matter of law. 15 Under § 1983, there is no liability based upon an employment relationship or theory of 16 respondeat superior. Polk County v. Dodson, 454 U.S. 312, 325 (1981); Monell, 436 U.S. at 17 690-94. A proper § 1983 claim identifies “a municipal ‘policy’ or ‘custom’ that caused the 18 plaintiff’s injury.” Bd. of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403, 117 S.Ct. 19 1382 (1997). A plaintiff must show that the municipality acted with the requisite degree of 20 culpability, and he must demonstrate a direct casual link between the municipal action and the 21 deprivation of federal rights. Id. at 404. In other words, the municipality’s actions must be the 22 “moving force” behind the rights deprivation. Id. 23 24 ORDER - 4 1 The Blevins’ dissatisfaction with Thomas’ truancy review hearings and sentiment that 2 constitutional violations occurred are insufficient to rise to a § 1983 claim. There is no alleged 3 policy or custom that caused injury and no asserted link between any municipal action and a 4 deprivation of federal rights. No allegation or factual assertion by the Blevins support that the 5 Defendants were a “moving force” behind any deprivation of rights. Therefore, the Blevins have 6 utterly failed to meet their burden of establishing judgment as a matter of law and their Motion 7 for Summary Judgment is DENIED. 8 9 C. Defendant Mason County’s Motion to Dismiss The County moves to dismiss Plaintiffs’ claims under Fed. R. Civ. P. 12(b)(4) and 10 12(b)(5). (Dkt. # 8). The County first asserts that service on the Mason County Prosecutor’s 11 Office is insufficient service of process on the County. Second, even had service been proper, 12 the complaint does not contain facts that state a constitutional claim against the County, and 13 should therefore be dismissed. A plaintiff must serve a local government or municipal 14 corporation by “delivering a copy of the summons and complaint to its chief executive officer, or 15 serving a copy of each in the manner prescribed by that state’s law…” Fed. R. Civ. P. 4(j)(2). 16 Under RCW 4.28.080(1), plaintiffs suing a county must serve the county auditor or deputy 17 auditor. The Blevins served the summons on the Mason County Prosecutor’s Office. Proof of 18 Service (Dkt. # 5). Therefore, Defendant Mason County was not properly served. 19 The Blevins have also failed to state a claim against the County. They list several actions 20 taken by County employees that they feel violated an unspecified constitutional right. They have 21 failed to allege facts, which taken as true, demonstrate a deprivation of rights by any County 22 custom or policy. The Blevins’ have not articulated a violation of any constitutional or federal 23 statutory right, nor have they articulated any basis for holding the County liable for any such 24 ORDER - 5 1 violation. An assertion that a County employee acted fraudulently or in a manner which subverts 2 the Blevins’ “legal and civil rights” is insufficient to support § 1983 liability. See Pls.’ Comp. at 3 3 (Dkt. # 1). No facts allege Mason County is the “moving force” behind any potential 4 constitutional violation. Thus, the claims against Mason County are DISMISSED with 5 prejudice. 6 7 II. CONCLUSION Plaintiffs’ Motion for Appointment of Counsel (Dkt. # 2) and Motion for Summary 8 Judgment (Dkt. # 9) are hereby DENIED. Defendant Mason County’s Motion to Dismiss (Dkt. 9 # 8) is GRANTED and Plaintiffs’ claims against Mason County are DISMISSED with 10 prejudice. 11 12 Dated this 4th day of September, 2012. 14 A 15 Ronald B. Leighton United States District Judge 13 16 17 18 19 20 21 22 23 24 ORDER - 6
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