Miller v. City of Goldendale et al

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION IN PART, DISMISSING FIRST AMENDED COMPLAINT WITH PREJUDICE AND DENYING PENDING MOTIONS AS MOOT. 22 Report and Recommendation is adopted in part. 25 Motion to Appoint Counsel, 26 Motion to Serve Complaint as Written, and 24 Motion for Leave to Amend Complaint are denied as moot. The court certifies any appeal of this dismissal would not be taken in good faith. Signed by Senior Judge Lonny R. Suko. (KW, Case Administrator)

1
2
3
4
5

UNITED STATES DISTRICT COURT
6

EASTERN DISTRICT OF WASHINGTON
7
8

MARK LEE MILLER,

9
10
11

Plaintiff,
vs.

12
13

CITY OF GOLDENDALE, et al.,,

14
15

No. 13-CV-00149-JTR

Defendants.

ORDER ADOPTING REPORT AND
RECOMMENDATION IN PART,
DISMISSING FIRST AMENDED
COMPLAINT WITH PREJUDICE AND
DENYING PENDING MOTIONS AS
MOOT

16
17
18
19
20
21

1915(g)
BEFORE THE COURT is Plaintiff’s Objection, ECF No. 23, to the Report and
Recommendation to dismiss his First Amended Complaint, ECF No. 22. Because Mr.
Miller also labeled the caption with various motions, this 48 page document has been
filed as a Motion for Leave to Amend Complaint, ECF No. 24, a Motion for

22

Appointment of Counsel to Assist Plaintiff in the Amendment of Complaint, ECF No.

23

25, and a Motion to Serve the Complaint as Written, ECF No. 26. Plaintiff, a prisoner at

24

the Monroe Correctional Complex - Twin Rivers Unit, is proceeding pro se and in forma

25

pauperis; Defendants have not been served.

26
27
28

ORDER ADOPTING REPORT AND RECOMMENDATION IN PART - - 1

1
2

In his Objections, Plaintiff clarifies that the decision to revoke his Conditional
Discharge from Supervision Certificate (“CDFS”), was not a decision to revoke parole,

3

probation or supervised release. Rather, Plaintiff states that the revocation of this

4

Certificate merely imposed formal supervised release. With this clarification, the

5

preclusive effect of Heck v. Humphrey would not apply. Spencer v. Kemna, 523 U.S. 1,

6

17 (1998) (application of Heck to parole revocation hearing).

7

However, the mere imposition of active parole does not implicate due process

8

concerns as it does not immediately affect one’s release status. See e.g. Sandin v.

9

Conner, 515 U.S. 472, 483-87 (1995) (prisoner has no federal or state protected liberty

10

interest in due process when the sanction imposed neither extends the length of his

11

sentence nor is "atypical and significant" in relation to the ordinary incidents of prison

12

life). As presented, Plaintiff’s contentions that Defendants Nielsen, Duggan, LeCompte,

13

Gobel, LaRosa, DeLano and Sahlberg revoked his CDFS without due process fail to

14

state a claim upon which relief may be granted.

15

In the absence of a due process violation regarding the revocation of the CDFS,

16

Plaintiff’s assertions of municipal liability against the City of Goldendale and the

17

Goldendale Police Department based on the alleged “policy” of referring Plaintiff to the

18

ISRB for revocation of the CDFS must also fail.

19

Objections:

20

I.

Plaintiff’s first objection appears to be in regard to § 1981. He cites to Jett

21

v. Dallas Independent School District, 491 U.S. 701 (1989). In Jett, the U.S. Supreme

22

Court concluded that “the express cause of action for damages created by § 1983

23

constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981

24

by state governmental units.” Id. at 733. Therefore, § 1981 did not provide a separate

25

cause of action against local government entities and § 1981 plaintiffs must assert claims

26

against state actors under § 1983. Id. at 735.

27
28

ORDER ADOPTING REPORT AND RECOMMENDATION IN PART - - 2

1
2

Because Plaintiff is bringing this action against individuals who were acting under
color of state law, he must do so under section 1983. Under 42 U.S.C. § 1983, Plaintiff’s

3

conclusory assertions that he was discriminated against while being arrested, and when

4

he was referred to the ISRB for the purpose of imposing more formal supervision, fail to

5

state plausible claims upon which relief may be granted.

6

Mere legal conclusions “are not entitled to the assumption of truth.” Ashcroft v.

7

Iqbal, 556 U.S. 662, 680 (2009). A complaint must contain more than “a formulaic

8

recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S.

9

544, 555 (2007). It must plead “enough facts to state a claim to relief that is plausible on

10

its face.” Id. at 570. Although granted the opportunity to do so, Plaintiff's First Amended

11

Complaint failed to state a plausible claim for relief.
Plaintiff argues that Goldendale Police Department Officer Hunziker arrested him

12
13

on a charge (i.e., “disorderly conduct”)1 which Defendant Hunziker knew lacked a legal

14

or factual basis. Although Plaintiff asserts there was no probable cause to arrest him, it

15

appears this charge was eventually dismissed without prejudice in October 2011, despite

16

Plaintiff’s arguments that it should be dismissed with prejudice. Therefore, Plaintiff’s

17

assertion regarding the lack of probable cause to arrest him for disorderly conduct must

18

fail.
Plaintiff claims this arrest was done with the intent to harass, vex and annoy him.

19
20

Again, to state an Equal Protection claim, a plaintiff must allege that he was treated

21

differently from other similarly situated persons. City of Cleburne v. Cleburne Living

22

Center, 473 U.S. 432, 439 (1985); Fraley v. United States Bureau of Prisons, 1 F.3d 924,

23

926 (9th Cir. 1993) (per curiam). Plaintiff’s contentions that various Defendants

24

"willfully and wantonly discriminat[ed] against [Plaintiff] based upon his being a Native

25

1

26

on March 24, 2011, it appears from the documents attached to his Objection that the

27

actual arrest on this charge occurred on May 24, 2011. ECF No. 23, page 46.

28

ORDER ADOPTING REPORT AND RECOMMENDATION IN PART - - 3

Although Plaintiff had asserted in his First Amended Complaint that this arrest occurred

1
2

American transgender person," without any supporting factual allegations, have failed to
state a plausible equal protection claim. Plaintiff presented no facts, other than his

3

conclusory allegations, from which the Court could infer Defendant Hunziker was

4

motivated by Plaintiff’s race and sexual orientation when arresting him for disorderly

5

conduct in 2011.

6

II.

Plaintiff raises objections regarding 42 U.S.C. § 1985. He asserts that not

7

all conspiracies under section 1985 must be motivated by class-based animus, and that

8

his complaint sufficiently alleged facts to establish a conspiracy and conspirators.

9

Plaintiff contends that Defendants Wyzkowski and Nielsen “engaged in a class-

10

based conspiracy” to deny Plaintiff legal rights and to penalize him for his “lawful

11

exercise of legal rights because [he is] a Native American Transgender person.” Plaintiff

12

contends that Defendant Neilsen conspired with others on December 9, 2011, to

13

“organize a malicious prosecution” before the ISRB to have Plaintiff’s CDFS revoked

14

without due process. Once again, because one’s placement on active parole does not, in

15

and of itself, lengthen the period of supervised release, Plaintiff claims do not implicate

16

due process concerns.

17

Plaintiff was charged with the Unlawful Harboring of a Minor under RCW

18

13.32A.080, in December 2011. Plaintiff’s reliance on RCW 13.32A.084 for the

19

proposition that he was immune from “any cause of action,” including the revocation of

20

the CDFS, appears misplaced. Although Plaintiff asserts that he was the biological

21

father of the minor he was sheltering in December 2011, Plaintiff does not allege that he

22

had the legal right to custody of that child. See RCW 13.32A.030 (14)(defining

23

“Parent”). Plaintiff also failed to allege that he provided the required notice under RCW

24

13.32A.082 which would qualify him for the asserted “immunity” under RCW

25

13.32A.084. Plaintiff’s conclusion that Defendant Wyzkowski lacked probable cause to

26

arrest him for interference with the efforts of law enforcement officers to take a runaway

27
28

minor into custody is unsupported by any factual allegations.
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART - - 4

1
2

Plaintiff has made only conclusory assertions that his arrest and recommendations
to the Indeterminate Sentencing Review Board to revoke Conditional Discharge from

3

Supervision Certificate were improperly motivated. It is certainly plausible these actions

4

were motivated by legitimate law enforcement concerns based on Plaintiff’s seven

5

arrests within a 22 month time-frame. At the time formal parole was imposed, charges

6

stemming from four of those arrests were still pending. Plaintiff’s bare allegations of

7

discrimination based on his national heritage and sexuality fail to state a claim upon

8

which relief may be granted.

9

III.

Plaintiff presents an objection regarding his claim of malicious prosecution

10

under Washington tort law. He asserts that he was arrested under the Goldendale

11

Municipal Code for “disorderly conduct.” The Court takes judicial notice of Goldendale

12

Municipal Code, Sections 9.14.010 and 9.14.020. One of the code’s definitions of

13

“disorderly persons” is “Any person who, in a manner or under circumstances likely to

14

cause an assault, uses vulgar, profane, or indecent language or gestures.” Section

15

9.14.010(C). Contrary to Plaintiff’s assertion , this section has no “public place”

16

requirement.

17

Plaintiff’s bare conclusion that there was no probable cause for Defendant

18

Hunziker to institute the offense is insufficient to state a plausible claim for relief. Again,

19

the charged offense was dismissed in October 2011, without prejudice to the prosecutor

20

re-instituting the charge. Plaintiff’s assertions do not demonstrate a lack of probable

21

cause to arrest.

22

IV.

Plaintiff also appears to object to the Magistrate Judge’s finding that

23

consent to a search waives the warrant requirement under the Fourth Amendment.

24

Illinois v. Rodriguez, 497 U.S. 177 (1990). He argues that the officer’s conduct in

25

dealing with Plaintiff prior to Plaintiff’s sister granting the officer permission to search

26

her home for a minor was “unreasonable.” Regardless, any legal arguments Plaintiff

27
28

may have had regarding a warrant requirement were mooted by his sister’s consent.
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART - - 5

1
2

The Court cannot infer an unlawful search or the excessive use of force from
Plaintiff’s allegations. Plaintiff has alleged no injury. His reference to Wilkins v. Gaddy,

3

559 U.S. 34 (2010) is unavailing. In that decision, a state prisoner's allegations that

4

corrections officer punched, kicked, kneed, choked, and body slammed him maliciously

5

and sadistically and without any provocation, leaving him with a bruised heel, back pain,

6

and other injuries requiring medical treatment, stated a claim under § 1983 for use of

7

excessive force, in violation of Eighth Amendment prohibition of cruel and unusual

8

punishment. Id., at 38. Plaintiff’s allegations of threats and intimidation do not rise to

9

the level of a constitutional violation.

10

For the reasons set forth above, in the Orders and in the Report and

11

Recommendation by the Magistrate Judge, the Court finds that Mr. Miller has failed to

12

state a plausible claim for relief. Therefore, IT IS ORDERED the Report and

13

Recommendation is ADOPTED with the exception of the preclusive effect of Heck v.

14

Humphrey to Plaintiff’s claims.

15

Therefore, IT IS ORDERED this action is DISMISSED with prejudice for

16

failure to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915A(b)(1) and

17

1915(e)(2). The Court declines to exercise supplemental jurisdiction over Plaintiff’s state

18

law claims under 28 U.S.C. § 1367. IT IS FURTHER ORDERED that all pending

19

Motions are DENIED as moot.

20

Pursuant to 28 U.S.C. § 1915(g), enacted April 26, 1996, a prisoner who brings

21

three or more civil actions or appeals which are dismissed as frivolous or for failure to

22

state a claim will be precluded from bringing any other civil action or appeal in forma

23

pauperis “unless the prisoner is under imminent danger of serious physical injury.” 28

24

U.S.C. § 1915(g). Plaintiff is advised to read the new statutory provisions under 28

25

U.S.C. § 1915. This dismissal of Plaintiff's complaint may count as one of the three

26

dismissals allowed by 28 U.S.C. § 1915(g) and may adversely affect his ability to file

27
28

future claims.
ORDER ADOPTING REPORT AND RECOMMENDATION IN PART - - 6

1
2

IT IS SO ORDERED. The District Court Executive is directed to enter this
Order, enter judgment, forward copies to Plaintiff at his last known address, and close

3

the file. The District Court Executive is further directed to forward a copy of this Order

4

to the Office of the Attorney General of Washington, Criminal Justice Division. The

5

Court certifies any appeal of this dismissal would not be taken in good faith.

6

DATED this

26th

day of November, 2013.

7
8
9
10

s/Lonny R. Suko
LONNY R. SUKO
UNITED STATES DISTRICT JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

ORDER ADOPTING REPORT AND RECOMMENDATION IN PART - - 7