Willett v. Inslee et al

Filing 9

ORDER DISMISSING FIRST AMENDED COMPLAINT. Signed by Senior Judge Edward F. Shea (cc: Harry Daniel Willett via first class mail). (PL, Case Administrator)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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No.

HARRY DANIEL WILLETT,

4:14-CV-5014-EFS

Plaintiff,
ORDER DISMISSING FIRST AMENDED
COMPLAINT

v.
JAY INSLEE, Washington State
Governor; CHRISTINE GREGOIRE,
Former Washington State Governor;
JOEL SACKS, Washington State
Director of Labor and Industries;
JUDY SCHURKE, Former Washington
State Director of Labor and
Industries; GRANT COUNTY
WASHINGTON BOARD OF COMMISSIONERS;
GRANT COUNTY FIRE DISTRICT 10; and
DOES 10-100,
Defendants.

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I.

INTRODUCTION

Before the Court is pro se Plaintiff Henry Daniel Willett’s

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First Amended Complaint, ECF No. 8, filed July 28, 2014.

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proceeding in forma pauperis.

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required to screen the complaint filed by an individual proceeding in

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forma pauperis.

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Complaint, ECF No. 6, on February 26, 2014, and, after conducting the

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required screening, this Court determined that Plaintiff’s claims were

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barred by the statute of limitations.

Plaintiff is

Under 28 U.S.C. § 1915A, the Court is

28 U.S.C. § 1915A(a).

Plaintiff filed his initial

Order to Amend or Voluntarily

ORDER DISMISSING FIRST AMENDED COMPLAINT - 1

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Dismiss Complaint, ECF No. 7, at 5.

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that

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plausibly

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statute of limitations or his complaint would be dismissed.

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Plaintiff filed his First Amended Complaint on July 28, 2014, ECF No.

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8.

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Court finds that Plaintiff’s First Amended Complaint must be dismissed

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because Plaintiff’s claims are barred by the statute of limitations,

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and Plaintiff has not pleaded facts indicating that equitable tolling

he

must
give

file
rise

an
to

amended
an

This Court informed Plaintiff

complaint

applicable

setting

exception

forth
to

the

facts

that

three-year
Id.

After carefully conducting the required § 1915A(a) screening, the

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of the statute of limitations is appropriate.

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Plaintiff’s claims seek relief from Defendants who are immune from the

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relief sought.
II.

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A.

Additionally, many of

ANALYSIS

Legal Authority for Screening of Plaintiff’s Complaint

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Under the Prison Litigation Reform Act of 1995, the Court is

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required to screen any complaint filed by a party seeking to proceed

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in forma pauperis.

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F.3d 845, 845 (9th Cir. 2001) (holding that § 1915 applies to all

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applicants for in forma pauperis status, prisoner or non-prisoner).

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The Court must dismiss a complaint or portion thereof if the plaintiff

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has raised claims that are legally “frivolous or malicious,” that fail

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to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief.

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U.S.C. § 1915(e)(2); Barren v. Harrington, 152 F.3d 1193, 1194 (9th

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Cir. 1998).

See 28 U.S.C. § 1915(e); Calhoun v. Stahl, 254

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ORDER DISMISSING FIRST AMENDED COMPLAINT - 2

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A claim is legally frivolous when it lacks an arguable basis

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either in law or in fact.

Neitzke v. Williams, 490 U.S. 319, 325

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(1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984).

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The Court may, therefore, dismiss a claim as frivolous where it is

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based on an indisputably meritless legal theory or where the factual

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contentions are clearly baseless.

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critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis.

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885 F.2d 639, 640 (9th Cir. 1989); Franklin, 745 F.2d at 1227.

Neitzke, 490 U.S. at 327.

The

Jackson v. Arizona,

The facts alleged in a complaint are to be taken as true and

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must “plausibly give rise to an entitlement to relief.”

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Iqbal, 556 U.S. 662, 664 (2009).

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entitled to the assumption of truth.”

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more than “a formulaic

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action.”

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must plead “enough facts to state a claim to relief that is plausible

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on its face.”

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B.

Mere legal conclusions “are not
Id.

The complaint must contain

recitation of the elements of a

cause

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

of
It

Id. at 570.

Factual Background
The

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Ashcroft v.

following

summarizes

the

relevant

facts

that

relate

to

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Plaintiff’s claims, as best the Court can tell from carefully reading

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Plaintiff’s

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thereto:

First

Amended

Complaint

and

the

attachments

On November 16, 2005, Plaintiff Harry Daniel Willett was working

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55-page

as a maintenance person for Grant County Fire District 10.1

As he was

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1

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Although Plaintiff alleges that he was “working for Grant County,
Washington, Fire District 10 as a maintenance person,” on November 16, 2005,
First Amended Complaint, ECF No. 8, at 8, and that he was removed from fire

ORDER DISMISSING FIRST AMENDED COMPLAINT - 3

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working under the hood on the engine of a fire truck, the Grant County

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Fire Chief accidentally set off an electronic siren within one foot of

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Plaintiff’s head, exposing Plaintiff to an estimated 145 decibels of

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sound.

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Plaintiff did not see a physician at that time, and the incident was

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not reported.

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On

Plaintiff suffered major hearing loss.

March

ECF No. 8, at 8, 19.

Id. at 23–24.
7,

2006,

Plaintiff

attempted

to

file

a

workers

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compensation claim for physical hearing loss at the Washington State

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Department of Labor and Industries Office in Moses Lake, Washington.

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Plaintiff allegedly was told that the Washington State Department of

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Labor and Industries (“the Department”) does not file claims against

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state or government agencies.

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First Amended Complaint whether Plaintiff was told that he could not

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file a claim at all or whether he actually filed a claim that was

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denied.

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informed of his right to appeal or of the time limit to file a claim.

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Id. at 25.

See id.

Plaintiff

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then

Id. at 8, 25.

It is unclear from the

Either way, Plaintiff alleges that he was not

worked

as

a

real

estate

agent

and

as

a

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salesperson, but he was not able to continue at these jobs, due, at

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least in part, to his hearing loss.

In February 2011, Plaintiff filed a workers compensation claim

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Id. at 25–26.

with

the

Department

based

on

his

November

16,

2005

hearing

loss

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service duty on January 5, 2006, id. at 24, the letter from the Grant County
Fire Chief attached to Plaintiff’s First Amended Complaint states that
Plaintiff was released from active duty as a Captain in September 2005 and
“remains a volunteer” as of January 5, 2006. Despite this inconsistency, the
Court construes the First Amended Complaint so as to do justice, Fed. R. Civ.
P. 8(e), and proceeds under the assumption that Plaintiff was an employee of
Fire District 10 at the time of his injury.

ORDER DISMISSING FIRST AMENDED COMPLAINT - 4

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injury.

Id. at 26.

He was evaluated by Nurse Practitioner Karen

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Nguyen, who referred him to audiologist Dr. Aielo.

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Aielo evaluated Plaintiff and diagnosed him with profound hearing loss

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in the high frequencies bilaterally.

Id. at 42.

Dr.

Id. at 55.

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On March 4, 2011, Plaintiff’s workers compensation claim was

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rejected because it had not been filed within one year of the date of

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the injury,2 but the Department did pay for Plaintiff’s initial office

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visit.

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claim, but the order was affirmed on March 21, 2011.

Id. at 52.

Plaintiff objected to the decision rejecting his
Id. at 44.

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Plaintiff was apparently provided with information about appealing

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this order.

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on

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protesting had expired and that the March 21, 2011 order was final and

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binding.

July

21,

Id.

Plaintiff again protested the rejection of his claim

2011,

but

was

told

that

the

60-day

time

frame

for

Id. at 45.

On February 22, 2012, Plaintiff filed a claim for occupational

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hearing loss with the Department.

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attorney representing Plaintiff wrote to the Department to formally

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protest

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Plaintiff.

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claim was first disallowed, but then, on July 31, 2012, the Department

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allowed Plaintiff’s claim for occupational hearing loss and found that

and

request

Id. at 47.

reconsideration

of

all

On March 13, 2012, an

decisions

adverse

Id. at 47-2 (unnumbered page between 47 and 48).

to
The

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2

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Plaintiff expresses his understandable confusion about why RCW 51.28.055
requires a worker to file a hearing loss claim within two years from the last
occupational exposure, yet his claim was rejected because it was not filed
within one year. First Amended Complaint, ECF No. 8, at 28. A claim for an
on-the-job injury like that suffered by Plaintiff must be received within one
year of the injury, whereas a claim for an occupational disease or
occupational hearing loss, that is, hearing loss due to exposure at work over
a period of time, must be filed within two years of the diagnosis by a
doctor. See RCW 51.28.050 & RCW 51.28.055.

ORDER DISMISSING FIRST AMENDED COMPLAINT - 5

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he was entitled to receive medical treatment “and other benefits as

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appropriate under the Industrial Insurance Laws.”

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Department determined that the date of manifestation for compensation

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purposes was March 13, 2009, because that is when the hearing loss

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became partially or totally disabling.

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the Department paid for Plaintiff’s hearing aids.

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C.

Id. at 48.

The

It appears that

Id. at 28.

Plaintiff’s Claims
Plaintiff makes a number of allegations stemming from the events

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Id. at 28, 48.

described above.

The Court is sympathetic to Plaintiff’s struggle

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with hearing loss and to the challenges of bringing a lawsuit pro se.

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The Court has made every effort to identify and understand the claims

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in Plaintiff’s First Amended Complaint, and will now address each in

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turn.

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1.

Legislative Claims

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Plaintiff alleges that he was harmed by a bill that passed the

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Washington State Legislature in March 2004, which decreased the time

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in which workers compensation claims for hearing loss must be filed

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from 20 years to 2 years.

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former Governor Christine Gregoire, who signed the bill into law, and

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against former Director of the Department of Labor and Industries Judy

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Schurke, who championed the bill.

Id. at 10–11.

He brings this claim against

Id. at 10–13.

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Plaintiff also alleges that he was harmed by a bill that passed

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the Washington State Legislature in 2011, which amended RCW 51.28.055.

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Id.

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Protection rights by causing him to be treated differently from other

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similarly situated individuals who received benefits prior to the

at

12–13.

He

asserts

that

the

amendments

ORDER DISMISSING FIRST AMENDED COMPLAINT - 6

violated

his

Equal

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change in law.

Id. at 14.

He brings this claim against former

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Director of the Department of Labor and Industries Judy Schurke, who

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championed the bill.

Id. at 12–13.

State legislators are absolutely immune from liability under 42

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5

U.S.C.

§ 1983

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Harris, 523 U.S. 44, 49 (1998).

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performing discretionary functions, such as advocating for a bill or

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signing it into law, are entitled to qualified immunity in suits for

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civil

damages

for

as

their

long

legislative

as

activities.

Bogan

v.

Scott-

State government executive officials

their

conduct

does

not

violate

clearly

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established statutory or constitutional rights of which a reasonable

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person would have known.

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(1982).

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legislative or executive officials who are immune for the alleged

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conduct, so his claims must be dismissed.
2.

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Harlow v. Fitzgerald, 457 U.S. 800, 818

Plaintiff’s legislative claims all seek monetary relief from

Section 1983

Claims

28 U.S.C. § 1915(e)(2).

Against

Grant

County

Board

of

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Commissioners, Grant County Fire District 10, and Governor

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Jay Inslee

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Plaintiff brings a claim under 42 U.S.C. § 1983 against the

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Grant County Board of Commissioners, Grant County Fire District 10,

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and

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Washington state regulations designed to prevent hearing loss. First

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Amended Complaint, ECF No. 8, at 10, 15, 17.

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he did not receive hearing loss protection or proper training in

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hearing loss prevention when he worked for Grant County Fire District

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10.

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to act, he suffered physical hearing loss and resulting economic loss

Governor

Jay

Id. at 28.

Inslee

for

failing

to

implement

a

number

of

Plaintiff alleges that

He alleges that, as a result of Defendants’ failure

ORDER DISMISSING FIRST AMENDED COMPLAINT - 7

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without just compensation and has been denied due process and the

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equal protection of the laws.

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alleges that the Grant County Defendants violated a number of state

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laws and regulations and his right to due process of law when they

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failed to properly report and document his injury.

Id. at 9, 19, 34–35.

Plaintiff also

Id. at 16, 33.

Section 1983 requires a claimant to prove (1) a person acting

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7

under color of

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claimant

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Constitution or laws of the United States.

Leer v. Murphy, 844 F.2d

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628,

deprives

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constitutional right, within the meaning of section 1983, if he does

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an affirmative act, participates in another's affirmative acts, or

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omits to perform an act which he is legally required to do that

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“causes” the deprivation of which [the plaintiff complains]."

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v. Cnty. of San Diego, 942 F.2d 1435, 1439 (9th Cir. 1991) (brackets

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in the original); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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of

632-33

state law (2) committed an act

some

(9th

Because

right,

Cir.

section

privilege,

1988).

1983

A

or

immunity

person

contains

no

that deprived
protected

another

specific

by

the
the

"of

a

Redman

statute

of

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limitations, federal courts borrow state statutes of limitations for

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personal injury actions in section 1983 suits.

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549 U.S. 384, 387 (2007); Wilson v. Garcia, 471 U.S. 261, 276 (1985).

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In Washington, this is three years.

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923 F.2d 758, 760(9th Cir. 1991).

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of action accrues and the statute of limitations begins to run for a

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section 1983 claim.

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plaintiff knows or has reason to know of the injury which is the basis

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of the action.

Id.

Id. at 760.

See Wallace v. Kato,

Bagley v. CMC Real Estate Corp.,

Federal law determines when a cause

A federal claim accrues when the

Federal courts borrow all applicable provisions

ORDER DISMISSING FIRST AMENDED COMPLAINT - 8

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for tolling the limitations period found in state law.

See Wallace,

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549 U.S. at 394; Hardin v. Straub, 490 U.S. 536, 539 (1989).
In Washington, a court may toll the statute of limitations when

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justice requires, but it must do so sparingly.

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Bainbridge Island, 153 Wash. App. 366, 379 (2009).

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for equitable tolling are bad faith, deception, or false assurances by

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the defendant and the exercise of diligence by the plaintiff.”

8

v.

9

appropriate

Cam,

135

Wn.

when

2d

196,

206

consistent

10

providing the cause of

11

limitations.”

12

(1998).

with

both

Nickum v. City of
“The predicates

“[E]quitable

the

action and the

purpose

purpose

of

Milay

tolling
the

of the

is

statute

statute

of

805, 812 (1991).

Douchette v. Bethel School Dist. No. 403, 117 Wn. 2d

Plaintiff requests that the Court provide equitable relief by

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tolling the statute of limitations for his claims.

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that he had no access to a law library or a computer and that the

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local

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Washington, where he lived in 2005.

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8,

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prevented him from accessing the legal information needed to file a

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claim, and that his 14-year-old granddaughter has assisted him in

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filing this matter.

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library

at

37.

was

He

open

also

only

states

four

that

hours

per

Plaintiff explains

week

in

Royal

City,

First Amended Complaint, ECF No.
his

lack

of

computer

knowledge

Id. at 37.

The Court does not question that Plaintiff has exercised great

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effort in pursuing his claims.

However, “a showing of hardship or

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understandable delay is insufficient to support tolling of the statute

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of limitations.”

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App. 2004).

Petcu v. State, 121 Wash. App. 36, 72 (Wash. Ct.

Plaintiff has not alleged bad faith, deception, or false

ORDER DISMISSING FIRST AMENDED COMPLAINT - 9

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assurances by the Grant County Defendants that would justify tolling

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the statute of limitations for his claims against them.

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alleged that these Defendants failed to take certain actions, but not

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that they did so in bad faith, attempted to deceive him in any way, or

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made false assurances that prevented Plaintiff from bringing these

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claims sooner.

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three-year statute of limitations and because the conduct he complains

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about occurred more than eight years before he filed his complaint, he

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failed to state claims upon which relief may be granted, and his

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Plaintiff has

Because Plaintiff has alleged no basis for tolling the

claims must be dismissed. 28 U.S.C. § 1915(e)(2).

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Additionally, for the reasons set forth above in Section II.C.1,

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Plaintiff’s claims against Governor Jay Inslee must also be dismissed

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because the Governor has qualified immunity for his discretionary

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actions, such as enforcing the laws.
3.

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28 U.S.C. § 1915(e)(2).

Section 1983 Claims Against Washington State Department of

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Labor

and

Industries

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Director

Joel

Sacks

and

Unnamed

Department Employees

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Plaintiff alleges that the Department failed to properly train

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the employee that Plaintiff spoke to in March 2006 who incorrectly

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informed

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against government agencies and neglected to inform Plaintiff of his

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right to appeal.

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further alleges that the Department violated his due process and equal

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protection rights when it denied his first claim or attempted claim in

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2006.

Plaintiff

that

the

Department

does

not

file

complaints

First Amended Complaint, ECF No. 8, at 11. Plaintiff

Id. at 11–12, 34. He brings these claims against Department

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ORDER DISMISSING FIRST AMENDED COMPLAINT - 10

1

Director

Joel

2

Department.

Sacks

and

unnamed

employees

and

supervisors

of

the

Id. at 11–12, 20–21.

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Plaintiff relies on Department of Labor and Industries of State

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of Washington v. Fields Corporation, 112 Wash. App. 450 (Wash. Ct.

5

App. 2002).

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res judicata effect of an order adverse to Fields Corporation because

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it was impossible for Fields to have known the facts giving rise to an

8

appeal during the appeal time period.

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distinguishable

In that case, the court granted equitable relief from the

from

the

case

at

hand,

Id. at 454-61.
however.

In

Fields is
Fields,

the

10

parties agreed that it was impossible for Fields to have known the

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facts giving rise to its appeal before the time to appeal expired.

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Here, Plaintiff does not allege that it was impossible for him to know

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that the employee had been improperly trained or that his claim had

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been improperly denied before the three-year statute of limitations

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expired.

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As discussed above in Section II.C.2, Plaintiff’s claims are

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subject to a three-year statute of limitations, which may only be

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equitably tolled upon a showing of bad faith, deception, or false

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assurances by the Defendants and the exercise of diligence by the

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Plaintiff.

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judgment that it is unjust to fail to put the adversary on notice to

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defend within a specified period of time and that the right to be free

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of stale claims in time comes to prevail over the right to prosecute

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them.”

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quotation marks omitted).

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and promotes justice by preventing the revival of claims for which

Statutes of limitations “represent a pervasive legislative

United States v. Kubrick, 444, U.S. 111, 117 (1979) (internal
A statute of limitations ensures fairness

ORDER DISMISSING FIRST AMENDED COMPLAINT - 11

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evidence

has

been

lost,

memories

have

faded,

2

disappeared due to the passage of time.

3

and

witnesses

have

Ry. Express Agency, 321 U.S. 342, 348-49 (1944).

Order of R.R. Telegraphers v.

4

Plaintiff’s plead facts fail to outweigh these important policy

5

considerations and therefore fail to show a basis for the Court to

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apply equitable tolling of the statute of limitations.

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that the Department failed to train its employee to provide Plaintiff

8

with

9

failure

accurate
to

information,

train

or

the

however,
failure

he
to

does

not

provide

He alleges

allege

him

with

that

the

accurate

10

information was anything more than a mistake or a misunderstanding.

11

He does not allege that the Department’s actions were taken in bad

12

faith or with the intent of deceiving or falsely assuring Plaintiff.

13

Therefore, the Court does not find Plaintiff has pleaded facts that

14

constitute an adequate basis for equitably tolling the statute of

15

limitations on his claims against the Department and its employees.
III. CONCLUSION

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For the reasons set forth above and in the Court’s previous

18

order, ECF No. 7, all of Plaintiff’s claims must be dismissed because

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they are barred by the statute of limitations and, in some cases, seek

20

relief from individuals who are immune.

21

if he chose to amend his complaint and the Court found the amended

22

complaint failed to state facts plausibly giving rise to an exception

23

to the three-year statute of limitations and therefore failed to state

24

a claim, the amended complaint would be dismissed pursuant to 28

25

U.S.C. §§ 1915A(b) and 1915(e)(2).

26

//

Plaintiff was cautioned that

ORDER DISMISSING FIRST AMENDED COMPLAINT - 12

1

Accordingly, IT IS HEREBY ORDERED:

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1. The First Amended Complaint, ECF No. 8, is DISMISSED with

3

prejudice for failure to state a claim upon which relief may

4

be

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defendant who is immune from such relief.

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7

2. The

granted

Clerk’s

and

because

Office

is

it

seeks

directed

monetary

to

enter

relief

judgment

from

a

against

Plaintiff.

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3. The file shall be CLOSED.

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IT IS SO ORDERED.

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The Clerk’s Office is directed to enter this

Order, enter Judgment, and forward a copy to Plaintiff.
DATED this

18th

day of November 2014.

12
13

s/Edward F. Shea
EDWARD F. SHEA
Senior United States District Judge

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Q:\EFS\Civil\2014\5014.order.dismiss.lc2.docx

ORDER DISMISSING FIRST AMENDED COMPLAINT - 13