Nickerson v. Washington State et al

Filing 15

ORDER granting 9 Motion to Dismiss for Failure to State a Claim and granting 12 Motion to Withdraw as Attorney. Signed by Judge Thomas O. Rice. (BF, Paralegal) (Service of Notice on parties not registered as users of the Court CM/ECF system accomplished via USPS mail.)

Case 4:22-cv-05093-TOR

ECF No. 15

filed 01/17/23

PageID.71 Page 1 of 5

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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JASON NICKERSON,
NO. 4:22-CV-5093-TOR

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Plaintiff,
v.

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WASHINGTON STATE
ATTORNEY GENERAL’S OFFICE
(KEVIN HARTZE #16779);
WASHINGTON ATTORNEY
GENERAL BOB FERGUSON,

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Defendants.

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ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS AND
MOTION TO WITHDRAW AS
COUNSEL

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BEFORE THE COURT are Defendants’ Motion to Dismiss (ECF No. 9)
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and Motion to Withdraw as Counsel (ECF No. 12). These matters were submitted
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for consideration without oral argument. The Court has reviewed the record and
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files herein and is fully informed. For the reasons discussed below, Defendants’
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Motion to Dismiss (ECF No. 9) and Motion to Withdraw as Counsel (ECF No. 12)
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are GRANTED.
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND
MOTION TO WITHDRAW ~ 1

Case 4:22-cv-05093-TOR

ECF No. 15

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BACKGROUND
This matter relates primarily to a Washington state child support order that

3 was entered against Plaintiff. Plaintiff’s Complaint challenges Defendants’
4 representation of the State of Washington in a review hearing for the child support
5 order. ECF No. 1 at 6. Plaintiff alleges the child support order violates federal law
6 and seeks to have the order vacated by this Court. Id. at 7. Defendants move to
7 dismiss Plaintiff’s Complaint on the grounds that Plaintiff failed to properly serve
8 Defendants, the Court lacks subject matter jurisdiction, and Plaintiff has failed to
9 state claims upon which relief may be granted. ECF No. 9 at 1–2.
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DISCUSSION

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I.

Motion to Dismiss

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Pursuant to Rule 12(b)(1), Defendants argue dismissal is appropriate

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because they are protected under the doctrines of sovereign immunity and Eleventh

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Amendment immunity. ECF No. 9 at 7. A defendant may move for dismissal of a

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complaint if the court lacks subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1).

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However, “Eleventh Amendment immunity . . . does not implicate a federal court's

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subject matter jurisdiction in any ordinary sense.” ITSI T.V. Prods., Inc. v. Agric.

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Associations, 3 F.3d 1289, 1291 (9th Cir. 1993). Rather, the Ninth Circuit treats

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Eleventh Amendment immunity as an affirmative defense, and defendants bear the

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burden to prove they are entitled to its protections. Id.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND
MOTION TO WITHDRAW ~ 2

Case 4:22-cv-05093-TOR

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It is well settled that states and state agencies are “immune under the

2 Eleventh Amendment from private damages or suits for injunctive relief brought in
3 federal court.” Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa
4 Cnty., 343 F.3d 1036, 1040 (9th Cir. 2003); Pennhurst State Sch. & Hosp. v.
5 Halderman, 465 U.S. 89, 100 (1984). There are three exceptions to this immunity.
6 Deanco Healthcare, LLC v. Becerra, 365 F. Supp. 3d 1029, 1035 (C.D. Cal.
7 2019), aff'd, 806 F. App'x 581 (9th Cir. 2020). First, Congress may abrogate
8 immunity through its lawmaking powers; second, a state may waive its immunity
9 by consenting to suit; and third, state officials acting in their official capacity are
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not immune from suit where prospective relief is sought. Id. None of these

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exceptions apply in the case at hand.

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There is no Congressional abrogation under any of Plaintiff’s causes of

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action nor have Defendants consented to suit. Moreover, although Plaintiff names

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Attorney General Bob Ferguson and Assistant Attorney General Kevin Hartze in

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their official capacities as defendants in this matter, he does not seek prospective

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relief from those individuals. Rather, Plaintiff challenges Defendants’

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representation of the State of Washington in a review hearing for the child support

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order and seeks to have the order vacated by this Court. ECF Nos. 1 at 7; 9 at 10.

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Therefore, it appears Plaintiff’s true complaint lies with the Attorney General’s

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Office, not with the named defendants. Because the Attorney General’s Office is

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND
MOTION TO WITHDRAW ~ 3

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1 an entity of Washington State, Eleventh Amendment immunity applies. See Leer
2 v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988) (“The state need not be a named
3 party defendant for the eleventh amendment to apply.”); Kentucky v. Graham, 473
4 U.S. 159, 166 (1985) (“[A]n official-capacity suit is, in all respects other than
5 name, to be treated as a suit against the entity.”). Notably, Plaintiff’s Response
6 seems to concede as much, stating Plaintiff “brought this case . . . to try to get the
7 State of Washington to follow the Black and White letter of the law.” ECF No. 10
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Because the State of Washington is the true party in interest in this matter,

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the Court finds Defendants are entitled to Eleventh Amendment immunity. The

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Court need not reach Defendants’ other theories of dismissal. Additionally, a

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review of Plaintiff’s claims reveals it is “absolutely clear that the deficiencies of

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the complaint could not be cured by amendment.” Noll v. Carlson, 809 F.2d 1446,

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1448 (9th Cir. 1987), superseded on other grounds by statute as stated in Akhtar v.

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Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Accordingly, Plaintiff’s claims against

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Defendants are dismissed with prejudice.

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II.

Motion to Withdraw

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Defendants filed a Motion to Withdraw as Counsel on behalf of Assistant

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Attorney General Bernadette Gomez, who has since passed away. ECF No. 13.

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Assistant Attorney General Joseph Christy, Jr. remains as Defendants’ counsel of

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND
MOTION TO WITHDRAW ~ 4

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1 record. Pursuant to LCivR 83.2(d), Defendants’ motion is granted.
2 ACCORDINGLY, IT IS HEREBY ORDERED:
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1. Defendants’ Motion to Dismiss (ECF No. 9) is GRANTED. The claims

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asserted against Attorney General Ferguson and Assistant Attorney

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General Hartze are DISMISSED with prejudice.

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2. Defendants’ Motion to Withdraw Assistant Attorney General Bernadette

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Marie Gomez as Counsel (ECF No. 12) is GRANTED.

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3. The Clerk of the Court shall adjust the docket accordingly.

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The District Court Executive is directed to enter this Order and Judgment

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accordingly, furnish copies to the parties, and close the file.
DATED January 17, 2023.

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THOMAS O. RICE
United States District Judge

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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND
MOTION TO WITHDRAW ~ 5