Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 1 of 17 HON. THOMAS S. ZILLY Noted: August 10, 2018 WITHOUT ORAL ARGUMENT 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 9 10 11 12 BRENDA TAYLOR, individually, and as executor of the Estate of Che Andre Taylor; JOYCE TAYLOR, individually; CHE ANDRE TAYLOR, JR., individually; and SARAH SETTLES on behalf of her minor child, CMT, 13 No. 2:18-CV-00262 DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) Plaintiffs, Note on Motion Calendar: August 10, 2018 WITHOUT ORAL ARGUMENT 14 vs. 15 16 17 18 19 20 21 CITY OF SEATTLE; MICHAEL SPAULDING and "JANE DOE" SPAULDING, and their marital community composed thereof; SCOTT MILLER and "JANE DOE" MILLER, and their marital community composed thereof; TIMOTHY BARNES and "JANE DOE" BARNES, and their marital community composed thereof; and AUDI ACUESTA and "JANE DOE" ACUESTA, and their marital community composed thereof, Defendants. 22 23 DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 1 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 2 of 17 1 Defendants City of Seattle, Michael Spaulding, Scott Miller, Timothy Barnes, and Audi 2 Acuesta (“Defendants” respectfully request this Court to partially dismiss Plaintiffs’ Amended 3 Complaint under Fed. R. Civ. P. 12(b)(6). In support thereof, Defendants state the following: 4 INTRODUCTION 5 This case arises out of the officer-involved shooting death of Che Taylor (“Taylor”) on 6 February 21, 2016. Plaintiffs’ Amended Complaint consists of a confusing and sparsely pled series 7 of claims including federal constitutional claims and those rooted in state law. The Complaint, as 8 pled, prohibits recovery on several fronts: (1) Plaintiffs fail to state several of their alleged claims 9 with sufficient facial plausibility; (2) Plaintiffs fail to state any claims against Officers Audi 10 Acuesta and Timothy Barnes; and (3) Plaintiffs lack standing to bring or recover for several of 11 their stated claims. For the reasons set forth below, Defendants respectfully request dismissal of 12 the identified claims in Plaintiffs’ Amended Complaint. 13 FACTS 14 The facts, as alleged in Plaintiffs’ First Amended Complaint are as follows: On February 15 21, 2016, decedent Taylor was “standing in the doorframe of a white motor vehicle talking to 16 people inside the vehicle.” (Dkt. 6, ¶ 4.3). Taylor was an African American male. (Id. at ¶ 4.1). 17 Officers Michael Spaulding and Scott Miller were in an undercover capacity while observing 18 Taylor from an unmarked police vehicle. (Id. at ¶ 4.4). “Based upon their perceived observations, 19 Officers Spaulding and Miller chose to approach and attempt to arrest” Taylor. (Id. at ¶ 4.5). 20 “Officers Spaulding and Miller chose to approach” Taylor “with long rifles because of the stopping 21 power of these particular firearms.” (Id. at ¶ 4.6). Officers Spaulding and Miller were wearing 22 black tactical jackets. (Id. at ¶ 4.7). Upon Officers Spaulding and Miller’s approach, a marked 23 Seattle Police vehicle containing Officers Barnes and Acuesta approached the scene. (Id. at ¶¶ 4.8- DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 2 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 3 of 17 1 4.9). The marked Seattle Police vehicle captured the audio and video of the incident that forms the 2 basis for this case. (Id. at ¶ 4.10). In the video, Officers Spaulding and Miller can be seen quickly 3 approaching the vehicle that Taylor was standing near with their guns drawn. (Id. at ¶ 4.11). 4 Multiple officers yelled at Taylor from different directions requesting that Taylor put his hands 5 up while other officers yelled at Taylor to get on the ground. (Id. at ¶¶ 4.14-4.15). Taylor put his 6 hands in the air and then attempted to drop on the ground as instructed by officers. (Id. at ¶ 4.16). 7 At approximately 4:15 p.m., Taylor was shot by Officers Spaulding and Miller (Dkt. 6, ¶ 4.1; 4.17). 8 After shooting Taylor, police officers rolled his body over and handcuffed him. (Id. at ¶ 4.18). 9 “Critical minutes lapsed” between the shooting of Taylor “and the time that police officers allowed 10 medical emergency personnel to render aid.” (Id. at ¶ 4.19). 11 After the shooting, officers turned their attention to the other individuals in the vehicle. (Id. 12 at ¶ 4.20). Officers commanded the remaining individuals to get out. (Id. at ¶ 4.21). The back-seat 13 passenger was a white female. (Id. at ¶ 4.22). She had difficulty following police commands and 14 failed to follow them. (Id.). Officers did not shoot her. (Id.). The driver of the vehicle was a white 15 male. (Id. at ¶ 4.23). The officers did not pay attention to his actions upon approaching Taylor. 16 (Id.). 17 Plaintiffs claim that as a result of the above-alleged acts: Mr. Taylor was denied due process 18 (Id. at ¶ 4.25); Defendants are liable to all Plaintiffs for negligence (First and Fifth Causes of 19 Action), outrage (Second Cause of Action), false arrest (Third Cause of Action), unlawful seizure; 20 (Fourth Cause of Action), Washington Law Against Discrimination (“WLAD”) (Sixth Cause of 21 Action), deprivation of the substantive due process rights of Taylor’s spouse, Brenda (¶ 5.7); 22 deprivation of the substantive due process rights of Taylor’s mother, Joyce Dorsey (¶ 5.8); 23 deprivation of the substantive due process rights of all of Taylor’s unidentified children (¶ 5.9); DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 3 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 4 of 17 1 deprivation of the substantive due process rights of Taylor’s entire estate and family (¶ 5.10); and 2 excessive force (¶ 5.11). ARGUMENT 3 4 A complaint challenged by a Rule 12(b)(6) motion to dismiss need not provide detailed 5 factual allegations, but it must offer “more than labels and conclusions” and contain more than a 6 “formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 7 544, 555 (2007). The complaint must indicate more than mere speculation of a right to relief. Id. 8 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 9 to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 10 (quoting Twombly, 500 U.S. at 570). A complaint lacks “facial plausibility” if it merely “tenders 11 ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 12 557). When a complaint fails to adequately state a claim, such deficiency should be “exposed at the 13 point of minimum expenditure of time and money by the parties and the court.” Twombly, 500 U.S. 14 at 558. The Supreme Court established a two-prong analysis for sufficiency of a complaint under 15 Fed. R. Civ. P. 8(a)(2) in Iqbal, 556 U.S. at 678-79. The Court first determines which allegations 16 are to receive a presumption of truth, noting that legal conclusions are not presumed to be true. Id. 17 Then, the Court determines whether the factual allegations, presumed to be true, give rise to a 18 “plausible” claim for relief. Id. If the Court dismisses the complaint or portions thereof, it must 19 consider whether to grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). 21 PLAINTIFFS FAIL TO STATE A CLAIM FOR NEGLIGENCE UPON WHICH RELIEF CAN BE GRANTED WHERE THE ALLEGED INCIDENT ARISES OUT OF INTENTIONAL CONDUCT. 22 Plaintiffs bring two causes of action alleging negligence. (Dkt. 6, ¶¶ 5.1 and 5.5 (First and 23 Fifth Causes of Action)). The sole allegation is “[b]y virtue of the facts set forth above, the 20 I. DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 4 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 5 of 17 1 defendants are liable to all plaintiffs for damages for negligence.” (Dkt. 6, ¶¶ 5.1, 5.5). Plaintiffs’ 2 Amended Complaint is devoid of any factual underpinnings detailing what duty was owed to 3 Plaintiffs, how the Defendants breached those duties, and how the alleged breach was the 4 proximate cause of the Plaintiffs’ claimed damages. See generally Bradley v. Wal-Mart Stores, 5 Inc., 544 F. Supp. 2d 1167, 1170 (W.D. Wash. 2008) (citing Reynolds v. Hicks, 134 Wash.2d 491, 6 951 P.2d 761 (1998)). Plaintiffs’ complete failure to identify the essential elements of negligence 7 and to allege sufficient facts to put the Defendants on notice of Plaintiffs’ negligence claim 8 warrants dismissal under Rule 12(b)(6). 9 Pleading failures aside, Plaintiffs’ Amended Complaint is premised on the intentional acts 10 of Officers Spaulding and Miller. It is well established in Washington that a plaintiff may not base 11 a claim of negligence on an intentional act. See Willard v. City of Everett, 2013 WL 4759064 at 12 *2-*3 (W.D. Wash. Sept. 4, 2013). Characterizing an intentional act as negligence does not 13 transform its fundamental character and does not expose a defendant to potential liability in 14 negligence for intentional acts. Ste. Michelle v. Robinson, 52 Wash. App 309, 314-16, 759 P.2d 15 467 (Wash. 1988); and see O’Donohue v. Riggs, 73 Wash.2d 814, 819, 440 P.2d 823 (Wash. 1968) 16 (plaintiff can establish negligent use of force claim upon showing that someone unintentionally 17 but carelessly used excessive force). 18 Further, courts have found that the public duty doctrine bars tort liability for officers’ use of 19 force during an arrest. “[W]hile it is true that the officers owe a general duty to all citizens of the 20 City to avoid the use of excessive force when effectuating an arrest, it cannot be said that they owe 21 [the plaintiff] a specific duty.” James v. City of Seattle, 2011 WL 6150567, 15 (W.D.Wash. 2011) 22 (unpublished) (citing Pearson v. Davis, No. C06-5444RBL, 2007 WL 3051250, at *4 (W.D.Wash. 23 2007)); see also Jimenez v. City of Olympia, No. C09-5363RJB, 2010 WL 3061799, at *15 DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 5 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 6 of 17 1 (W.D.Wash. 2010) (“It appears that the public duty doctrine bars a claim [for negligence arising out 2 of the use of excessive force] against [the] [o]fficers ... and the City ...”); Nix v. Bauer, No. C05- 3 1329Z, 2007 WL 686506, at *4 (W.D. Wash. 2007) (citing Donaldson v. City of Seattle, 65 Wn. 4 App. 661, 831 P.2d 1098 (1992) (“[P]olice responsibility in regard to any further investigation 5 becomes part of their overall law enforcement function and does not generate a right to sue for 6 negligence.”). Plaintiffs’ negligence claims are premised on the intentional acts of Defendant 7 Officers and devoid of any factual underpinning to state a viable negligence claim. This Court should 8 dismiss Plaintiffs’ First and Fifth Causes of Action. 9 10 II. PLAINTIFFS FAIL TO ALLEGE ANY § 1983 CLAIMS AGAINST THE CITY OF SEATTLE WHERE PLAINTIFF FAILS TO MAKE A PROPER MONELL CLAIM. 11 Plaintiffs’ Amended Complaint has a single line alleging that the “[c]ivil rights violations 12 delineated herein were proximately caused by [the City’s] customs, policies, and usages.” (Dkt. 6, ¶ 13 2.5). Plaintiffs allege throughout the Amended Complaint, that all Defendants, including the City, 14 are liable to all Plaintiffs for each and every cause of action. In essence, Plaintiffs are alleging 15 respondeat superior for federal constitutional violations. 16 It is well settled that “[s]ection 1983 suits against local governments alleging constitutional 17 rights violations by government officials cannot rely solely on respondeat superior liability.” AE ex 18 rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (citing Whitaker v. Garcetti, 486 19 F.3d 572, 581 (9th Cir.2007) and Monell v. Dept. of Social Svcs. of N.Y., 436 U.S. at 658, 691 (1978). 20 To attach liability to a municipality under 42 U.S.C. § 1983, “[t]here must be a “deliberate policy, 21 custom, or practice that was the moving force behind the constitutional violation [plaintiff] 22 suffered.” Whitaker, 486 F.3d at 581. “The action that is alleged to be unconstitutional implements 23 DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 6 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 7 of 17 1 or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated 2 by that body’s officers.” Monell, 436 U.S. at 690. 3 To withstand Rule 12(b)(6), Monell allegations may be considered sufficient where they: 4 “(1) identify [a] challenged policy/custom; (2) explain how the policy/custom is deficient; (3) 5 explain how the policy/custom caused the plaintiff harm; and (4) reflect how the policy/custom 6 amounted to deliberate indifference, i.e. show how the deficiency involved was obvious and the 7 constitutional injury was likely to occur.” McFarland v. City of Clovis, No. 1:15-CV-1530 AWI 8 SMS, 2016 WL 632663, at *2 (E.D. Cal. Feb. 17, 2016) (citing Young v. City of Visalia, 687 F. 9 Supp. 2d 1141, 1149-50 (E.D. Cal. 2009)). 10 Plaintiffs’ Amended Complaint has a single conclusory statement buried in its identification 11 of parties, that Defendants interpret as an attempt to plead a Monell claim. (Dkt. 6, ¶ 2.5). This 12 conclusory statement fails to sufficiently state a Monell claim, and the Complaint fails to allege or 13 identify the underlying policy, custom or “usage” that constitutes the base of Plaintiff’s Monell 14 claim. Supreme Court and Ninth Circuit case law establishes that this is insufficient to state a claim 15 under Rule 8. 16 In Hernandez, the plaintiff alleged a Monell claim against the County of Tulare with the 17 following allegations: (1) the defendants performed their alleged unconstitutional acts “under the 18 ordinances, regulations, customs, and practices of Defendant COUNTY OF TULARE;” (2) the 19 defendants “maintained or permitted an official policy, custom or practice of knowingly permitting 20 the occurrence of the [] wrongs” alleged in other portions of the plaintiff’s complaint; and (3) the 21 “policy, custom, or practice” related to “the custody, care and protection of dependent minors.” AE 22 ex rel. Hernandez, 666 F.3d at 636-37. These allegations were insufficient to meet the threshold set 23 by Rule 8, Ashcroft v. Iqbal, 556 U.S. 662, and Bell Atlantic Corp. v. Twombly, 550 U.S. 544. AE ex DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 7 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 8 of 17 1 rel. Hernandez, 666 F.3d at 636. In the case at bar, Plaintiffs’ Complaint wholly fails to state any 2 facts sufficiently alleging a Monell claim. See (Dkt. 6). The plaintiff’s complaint in AE ex rel. 3 Hernandez provided much greater detail than that in the instant case – and yet, both the district court 4 and Ninth Circuit held that the pleadings were deficient. See AE ex rel. Hernandez, 666 F.3d at 636- 5 37. This Court should dismiss any claims against the City for § 1983 liability. 6 7 III. PLAINTIFFS FAIL TO STATE A CLAIM FOR A VIOLATION OF THE WASHINGTON LAW AGAINST DISCRIMINATION WHERE PLAINTIFFS FAIL TO MEET THE ESSENTIAL ELEMENTS OF THE STATUTE. 8 Plaintiffs’ Sixth Cause of Action lies under the Washington Law Against Discrimination, 9 RCW 49.60.030 et seq. (“WLAD”) (Dkt 6, ¶ 5.6). WLAD declares that each person has a right to be 10 free from discrimination based on, among other things, race, creed, color, national origin, and mental 11 disability. Wash. Rev. Code § 49.60.030 (West 2018). To advance a prima facie case of race or 12 mental disability discrimination under WLAD, a plaintiff must show (1) that (s)he is a member of a 13 protected class; (2) the establishment is a place of public accommodation or assemblage; (3) the 14 defendant discriminated against the plaintiff by not treating him in a manner comparable to the 15 treatment it provides to persons outside that class; and (4) the protected status was a substantial 16 factor causing the discrimination. Fell v. Spokane Transit Authority, 128 Wash.2d 618, 911 P.2d 17 1319 (Wash. 1996). 18 WLAD applies in certain, specific contexts, including employment, places of public resort, 19 accommodation, assemblage, or amusement, real estate, credit, and insurance transactions, 20 commerce, and breastfeeding mothers in places of public resort, accommodation, assemblage or 21 amusement. Wash. Rev. Code § 49.60.030(1) (West 2018). Indeed, the purpose of statute is clear: 22 A state agency is herein created with powers with respect to elimination and prevention of discrimination in employment, in credit and insurance transactions, in places of public resort, accommodation, or amusement, and in real property 23 DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 8 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 9 of 17 transactions because of race, creed, color, national origin, families with children, sex, marital status, sexual orientation, age, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability; and the commission established hereunder is hereby given general jurisdiction and power for such purposes. 1 2 3 4 5 6 7 8 9 10 11 Wash. Rev. Code § 49.60.010 (West 2018) (emphasis added). A public accommodation is “any place, licensed or unlicensed, kept for gain, hire, or reward” … “whether conducted for the entertainment, housing, or lodging of transient guests, … or for public conveyance or transportation on land, water, or in the air.” Wash. Rev. Code § 49.60.040(2) (emphasis added). The events giving rise to Plaintiffs’ Amended Complaint do not meet the statutory requirements affording Plaintiffs a cause of action under WLAD. The pleadings make clear that events giving rise to Plaintiffs’ Amended Complaint occurred in an around a public street which—although it is a place “for public conveyance or transportation”—is not “kept for gain, hire, or reward” as required by WLAD. In 12 short, the location of events was not one entertained by the statute as a place of public 13 accommodation. See White v. City of Tacoma, No. C12-5987 RBL, 2014 WL 172037, at *12 (W.D. 14 Wash. Jan. 15, 2014) (granting summary judgment on WLAD claim where court found that an 15 16 “apartment building, and the sidewalk in front of [a] building, cannot be considered a place of public accommodation.”). This Court should dismiss Plaintiffs’ Sixth Cause of Action. 17 IV. 18 PLAINTIFFS FAIL TO STATE A CLAIM AGAINST OFFICERS AUDI ACUESTA AND TIMOTHY BARNES. 19 Officers Acuesta and Barnes are identified as Defendants in this case. There are insufficient 20 allegations against Officers Acuesta and Barnes to give rise to a plausible claim for relief. Iqbal, 21 556 U.S. at 678-79. In fact, the only specific factual allegations against Officers Acuesta and 22 Barnes, that formed the basis of this case, are that they drove a vehicle which captured some audio 23 and video portions of the incident (Dkt. 6, ¶ 4.10). This does not give rise to any cause of action. DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 9 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 10 of 17 1 Officers Acuesta and Barnes were not present upon Officer Spaulding and Miller’s initial approach 2 to Taylor. (Id. at ¶ 4.8). Officers Acuesta and Barnes did not seize Taylor. (Id. at ¶ 4.11). Officers 3 Acuesta and Barnes did not shoot Mr. Taylor. (Id. at ¶ 4.17). None of Plaintiffs’ causes of action 4 can extend to any alleged actions of Officers Acuesta and Barnes. Plaintiffs’ Amended Complaint 5 is void of any factual allegations to reasonably put Officers Acuesta and Barnes on notice of the 6 claims against them. Therefore, dismissal of Officers Acuesta and Barnes is warranted. 8 PLAINTIFFS FAIL TO ALLEGE A FALSE ARREST CLAIM WHERE MR. TAYLOR WAS NOT ARRESTED AND WHERE PLAINTIFFS ALREADY BRING AN UNLAWFUL SEIZURE CLAIM. 9 It is unclear if Plaintiffs are attempting to plead Washington or § 1983 claims for 10 unreasonable seizure and false arrest (Third and Fourth Causes of Action). Plaintiffs lack of clarity 11 fails to put Defendants on notice on the types of claims against them. Additionally, these claims 12 are duplicative to a degree. Taylor was seized. (Dkt. 6, ¶¶ 4.6-4.8; 4.13-4.17). Taylor was never 13 arrested. (Id.). There are “seizures [that] are distinct from an actual custodial arrest to detain the 14 person for the purpose of later charging and trial.” State v. Salinas, 169 Wash. App. 210, 217, 279 15 P.3d 917 (Wash. App. Ct. 2012). Without more, it is impossible for Defendants to know whether 16 they must defend state law claims of false arrest, unlawful seizure, federal claims under § 1983, or 17 all three. Finally, as highlighted in the preceding section, only the Estate may bring a cause of 18 action for unlawful seizure. This Court should dismiss Plaintiffs’ Third and Fourth Causes of 19 Action as pleaded. 7 V. 21 JOYCE DORSEY CANNOT RECOVER FOR ANY WASHINGTON STATE LAW CLAIMS ALLEGED UNDER THE WASHINGTON SURVIVAL STATUTES. 22 Plaintiffs fail to identify any Washington statutory authority providing them the right to 23 bring a cause of action upon Taylor’s death. There is no common law right of recovery in 20 VI. DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 10 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 11 of 17 1 Washington state for survival actions. Rentz v. Spokane Cty., 438 F. Supp. 2d 1252, 1257 (E.D. 2 Wash. 2006). In Washington, the only path toward a right of recovery following a decedent’s 3 death is via the Washington Wrongful Death and Survival Statutes. Rev. Code. Wash. 4.20.010 et 4 seq. Here, Plaintiffs fail to allege any claims of how they are entitled to bring a claim or recover 5 for any of the alleged claims in this Amended Complaint. 6 Reading Plaintiffs’ Amended Complaint very broadly, Plaintiffs may argue that they are 7 attempting to bring survival claims. The Washington Survival Statutes, see RCW §§ 4.20.060 and 8 4.20.046, authorize the personal representative of an estate to bring claims on behalf and for the 9 benefit of statutory beneficiaries identified in RCW 4.20.020. That statute, in turn, designates “the 10 wife, husband, state registered domestic partner” and children as beneficiaries. Wash. Rev. Code. 11 Ann. § 4.20.020. If none of those people exist, then dependent siblings and parents are designated 12 as beneficiaries if they are financial dependents of the decedent. Id. 13 In this case, the personal representative, Brenda Taylor is Taylor’s wife. She may bring 14 Washington state causes of action to recover for the designated statutory beneficiaries of the estate. 15 However, Joyce Dorsey, Taylor’s mother is prohibited from recovery, as she is not an authorized 16 statutory beneficiary. Wash. Rev. Code. Ann. § 4.20.020. This Court should dismiss all 17 Washington state law claims that Plaintiff Joyce Dorsey is asserting in this action. 18 19 20 VII. ONLY THE PERSONAL REPRESENTATIVE MAY BRING § 1983 CLAIMS UNDER THE FOURTH AMENDMENT. Plaintiffs seek to litigate their Fourth Amendment § 1983 claims on behalf of all “the plaintiffs.” (Dkt. 6 at ¶ 5.11). Only Brenda Taylor, acting as personal representative of the Estate, 21 has standing to bring a Fourth Amendment claim under § 1983. Fourth Amendment rights are 22 personal rights which may not be vicariously asserted. Alderman v. United States, 394 U.S. 165, 174 23 DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 11 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 12 of 17 1 (1969). The Ninth Circuit holds that in § 1983 suits, the survivors of an individual may assert a 2 Fourth Amendment claim on the individual’s behalf if the relevant state law authorizes a survival 3 action. Moreland v. Las Vegas Metropolitan Police Dept., 159 F.3d 365, 369 (9th Cir. 1998). 4 The survival of actions in Washington is governed by Washington’s survival statutes. See 5 Wash. Rev. Code §§ 4.20.046 (general survival statute) and 4.20.060 (special survival statute). 6 Courts in the Western District apply these statutes to determine which parties have standing in the 7 context of § 1983. See Ostling v. City of Bainbridge Island, 872 F.Supp.2d 1117, 1124-25 (W.D. 8 Wash. 2012), Lookabill v. City of Vancouver, No. 13–5461 RJB, 2013 WL 5770381 at *4 (W.D. 9 Wash. Oct. 24, 2013) (granting standing to a parent “in his representative capacity.”). 10 The state’s wrongful death statutes, by contrast, create statutory beneficiaries and a right of 11 action for them in specific circumstances. See Wash. Rev. Code. §§ 4.20.010, 4.20.020 (West 2018). 12 Some district courts applied them in the context of a survival action for vindication of constitutional 13 rights through § 1983. See Rentz v. Spokane County, 438 F.Supp.2d 1252 (E.D. Wash. 2006), Davis 14 v. City of Ellensburg, 651 F.Supp. 1248 (E.D. Wash, 1987) (both holding that the wrongful death 15 statute governed the survival of actions but limiting standing to one immediate family member who 16 was personal representative). Washington’s wrongful death statutes do not help the plaintiffs in this 17 suit, because the Ninth Circuit expressly dictated that the survivors of an individual may assert that 18 individual’s § 1983 claims “if the relevant state law authorizes a survival action.” Moreland, 159 19 F.3d at 369 (emphasis added). “The state's survival law must be followed unless it is inconsistent 20 with the Constitution and the laws of the United States.” Berger v. Spokane County, NO: 2:15-CV- 21 140-RMP, 2017 WL 579897 at *5 (E.D. Wash. Feb. 13, 2017). 22 “Unlike Washington’s wrongful death statutes, the survival statutes do not create new causes 23 of action for statutorily named beneficiaries but instead preserve causes of action for injuries suffered DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 12 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 13 of 17 1 prior to death.” Otani ex rel. Shigaki v. Broudy, 151 Wash.2d 750, 755 (Wash. 2004). The right of 2 action initially belonged to the decedent and passes to his or her personal representative. Otani, 151 3 Wash.2d at 755-56. This is consistent with the Supreme Court’s treatment of Fourth Amendment 4 rights generally, which must be asserted by the person suffering the deprivation. Alderman, 394 U.S. 5 at 174. Limiting recovery to personal representatives is “sufficient to serve the goals of § 1983,” and 6 the multiplication of parties “would not appreciably enhance the service of those goals.” Rentz, 438 7 F. Supp. 2d at 1263, n.11. Ms. Brenda Taylor is the personal representative of Taylor’s estate. (Dkt. 8 6, ¶ 2.1) Therefore, only she may bring a claim on behalf of the Estate for deprivation of Taylor’s 9 Fourth Amendment rights, as well as any claims under state law which are governed by the general 10 and special survival statutes. Any Fourth Amendment claims asserted by Plaintiffs other than Brenda 11 Taylor as personal representative should be dismissed. 12 VIII. ONLY THE ESTATE CAN PURSUE A CAUSE OF ACTION FOR THE TORTS OF OUTRAGE AND ASSAULT. 13 To the extent Taylor would have had a right to a claim of outrage or assault, and that right of 14 action is preserved under the survival statute, Plaintiffs’ outrage and assault claims as pleaded should 15 be dismissed. Plaintiffs allege that all Defendants are liable to all Plaintiffs under the tort of outrage 16 and assault. (Dkt. 6, ¶ 1.1 and ¶ 5.2 (Second Cause of Action)). The estate is the only party that has 17 standing to bring a cause of action for the tort of outrage or assault under the survival statutes. See 18 Sections VI and VII supra. 19 20 21 22 23 None of the individual Plaintiffs have pleaded any facts entitling them to recover personally for the tort of outrage. To prevail on a claim of outrage, Plaintiffs would have to identify that the Defendants engaged in “extreme and outrageous conduct,” “intentional or reckless infliction of emotional distress,” thereby causing Plaintiffs “severe emotional distress.” Kloepfel v. Bokor, 149 DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 13 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 14 of 17 1 Wn.2d 192, 195 (2003). In addition to the foregoing, there is a requirement that the Plaintiffs be 2 “immediate family member of the person who is the object of the defendant's actions,” and present 3 at the time of the alleged outrageous conduct. Reid v. Pierce Cnty., 136 Wash. 2d 195, 202, 961 P.2d 4 333, 337 (1998); Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d (1975). Plaintiffs have not and cannot 5 viably assert such a claim. Likewise, under Washington law, “[a]n assault is any act that causes a 6 person apprehension that harmful or offensive contact is imminent.” McCarthy v. Barrett, 804 F. 7 Supp. 2d 1126, 1146 (W.D. Wash. 2011) (citing McKinney v. Tukwila, 103 Wash.App. 391, 408, 13 8 P.3d 631 (2000)). Plaintiffs have not and cannot make any claim that Defendants assaulted them 9 individually. This Court should dismiss Plaintiffs’ assault claim and Second Cause of Action for 10 11 12 13 14 15 outrage as pleaded. IX. CLAIMS OF USE OF FORCE SHOULD BE ANALYZED SOLELY THROUGH THE LENS OF THE FOURTH AMENDMENT. Plaintiffs allege a single paragraph in their Amended Complaint stating, “[a]s a result of the actions of the police officers in this incident . . . [Taylor] was denied due process of law. (Dkt. 6, ¶ 4.25). The Supreme Court unequivocally held, 20 all claims that law enforcement officers have used excessive force— deadly or not—in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach. Because the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of “substantive due process,” must be the guide for analyzing these claims. 21 Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989) (emphasis in original). This 22 Court should reject any substantive due process claim on behalf of Taylor to the extent Plaintiffs’ 16 17 18 19 23 DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 14 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 15 of 17 1 Amended Complaint attempts to assert a substantive due process claim for the use of force in this 2 case. 3 4 X. SOME OF PLAINTIFFS’ SUBSTANTIVE DUE PROCESS CLAIMS UNDER § 1983 SHOULD BE DISMISSED. Paragraphs 5.7 through 5.10 of Plaintiffs’ Amended Complaint allege that all Defendants 5 are liable due to the deprivation of familial relationship afforded by the Fourteenth Amendment. 6 7 (Dkt. 6, ¶¶ 5.7-15.10). Paragraph 5.7 makes this claim on behalf of Taylor’s spouse, Brenda Taylor. (Id.at ¶ 5.7). Paragraph 5.9 asserts this claim by the Estate on behalf of Taylor’s “children.” (Id. at 8 ¶ 5.9). Paragraph 5.10 asserts this claim on behalf of the Estate. (Id. at ¶ 5.10). The Ninth Circuit 9 affords a substantive due process right for deprivation of companionship and society in a parent10 child relationship. It notes: 11 16 While the person who claims excessive force was directed at him or her can only raise a fourth amendment claim, a parent who claims loss of the companionship and society of his or her child, or vice versa, raises a different constitutional claim. The Ninth Circuit recognizes that a parent has a constitutionally protected liberty interest under the Fourteenth Amendment in the companionship and society of his or her child . . . and that a “child's interest in her relationship with a parent is sufficiently weighty by itself to constitute a cognizable liberty interest[.]” . . . Thus, Graham v. Connor does not bar the parents' and children's due process claims. 17 Curnow By & Through Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) (internal 18 citations omitted). The right to assert this claim has not been extended to the marital relationship 19 between husband and wife. Allen v. Washington, No. C05-5502KLS, 2006 WL 7132918, at *25 20 (W.D. Wash. Oct. 24, 2006). As such, Brenda Taylor’s claim is barred and should be dismissed. (See 21 Dkt. 6, ¶ 5.7). 12 13 14 15 22 “[A] party bringing a discrimination action must, as a prudential matter, assert his own rights 23 and interests, not those of third parties.” Estate of Amos v. City of Page, 257 F.3d 1086, 1093 (9th DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 15 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 16 of 17 1 Cir.2001). Plaintiffs may not “sue on behalf of anyone else” and must sue on behalf of their “own 2 rights to be free” from discrimination. Maynard v. City of San Jose, 37 F.3d 1396, 1403 (9th Cir. 3 1994). In Paragraph 5.9, the Estate attempts to bring the claim on behalf of all of Taylor’s “children.” 4 (Id. at ¶ 5.9). This too is not an appropriate assertion of this substantive due process claim because 5 it is the Estate bringing claims on behalf of unidentified “children.” This warrants dismissal. Finally, 6 in Paragraph 5.10, the Estate brings this claim on behalf of Taylor’s entire family. (Id. at ¶ 5.10). 7 Paragraph 10 fails for the same reason. Accordingly, this Court should dismiss Plaintiffs’ asserted 8 substantive due process claims in Paragraphs 5.7, 5.9, and 5.10 of the Amended Complaint. 9 CONCLUSION 10 Plaintiffs’ Amended Complaint is deficient on multiple fronts. It fails to state a claim for 11 several of the alleged causes of action. It asserts rights to sue and recover on behalf of Plaintiffs that 12 do not have those rights under the law. It asserts claims against two Defendant Officers without any 13 factual underpinning. Fundamentally, Plaintiffs’ Amended Complaint fails to put Defendants on 14 notice of the claims against them. This Court should dismiss. 15 16 DATED this 13th day of July, 2018. PETER S. HOLMES Seattle City Attorney 17 18 19 20 21 22 23 By: s/ Ghazal Sharifi Ghazal Sharifi, WSBA# 47750 Jeff Wolf, WSBA# 20107 Assistant City Attorneys E-Mail: Ghazal.Sharifi@seattle.gov E-Mail: Jeff.Wolf@seattle.gov Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Phone: (206) 684-8200 Attorneys for Defendants City of Seattle, and Officers Spaulding, Miller, Acuesta, and Barnes DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 16 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 Case 2:18-cv-00262-TSZ Document 21 Filed 07/13/18 Page 17 of 17 1 CERTIFICATE OF SERVICE 2 3 4 5 6 7 8 9 10 11 12 I hereby certify that on July 13, 2018, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: James Bible, Esq., WSBA# 33985 James Bible Law Group 14205 SE 36th Street, Suite 100 Bellevue, WA 98006 [Attorney for Plaintiffs] Shakespear N. Feyissa, Esq., WSBA# 33747 Law Offices of Shakespear N. Feyissa 1001 4th Avenue, Suite 3200 Seattle, WA 98154 [Attorney for Plaintiffs] Jesse Valdez, Esq. WSBA# 35278 Valdez Lehman, PLLC 600 108th Ave., NE, Suite 347 Bellevue, WA 98004-5101 [Attorney for Plaintiffs] 13 14 _s/ Ghazal Sharifi Ghazal Sharifi, Assistant City Attorney 15 16 17 18 19 20 21 22 23 DEFENDANTS’ PARTIAL MOTION TO DISMISS UNDER 12(b)(6) - 17 2:18-CV-00262 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200