Lassetter et al v. Brand et al

Filing 38

ORDER by Judge John C Coughenour; The motion for summary judgment of Defendant Daniel Satterberg and the motion to dismiss of Defendant Rob McKenna are GRANTED. (Dkt. Nos. 26 & 30 .) Plaintiff's motions are DENIED. (Dkt. Nos. 28 , 31 , 34 , 35 .) This case is DISMISSED with prejudice against all Defendants.(TF) cc: B Lassetter

THE HONORABLE JOHN C. COUGHENOUR

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
BRIAN LASSETTER, et al,
CASE NO. C11-0482-JCC

10
11
12

Plaintiffs,

13

ORDER

v.

14

NANCY BRAND, et al.,

15

Defendants.

16
17

This matter comes before the Court on the motion for summary judgment of Defendant

18 Daniel Satterberg (Dkt. No. 26), the motion to dismiss of Defendant Rob McKenna (Dkt. No.
19 30), as well as a variety of motions from Plaintiff Brian Lassetter. (Dkt. Nos. 28, 31, 34, 35,)
20 Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral
21 argument unnecessary and hereby rules as follows.
22 I.

BACKGROUND

23

Plaintiff Brian Lassetter is an inmate at the Northern Nevada Correctional Center. He

24 alleges that two of his children were adopted in Washington State on October 17, 2007 by
25 Defendants Wanda and Perry Beiber. (Dkt. No. 1-1 at ¶ 3.) He further alleges that the adoption
26 was finalized without his consent or due process of law. (Id.) He appealed the adoption directly

ORDER
PAGE - 1

1 to the Washington State Supreme Court, and the appeal was denied. (Id.) Plaintiff alleges that on
2 July 21, 2010, he wrote to the Washington State Attorney General, the Federal Bureau of
3 Investigation, and the King County Prosecutor, (the “Government Defendants”) requesting an
4 investigation into his children’s adoption. (Id.) These agencies declined his request. (Id.) Plaintiff
5 now brings a variety of claims. Against the Beibers, Defendant Helene Ellenbogen, and
6 Defendant Nancy Brand, the grandmother of his children, (the “Individual Defendants”) he
7 brings a variety of fraud claims. Against the Government Defendants, he brings claims for failure
8 to investigate his reports of unlawful adoption.
9 II.
10

DISCUSSION
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain

11 statement of the claim showing that the pleader is entitled to relief.” The pleading standard Rule
12 8 announces does not require “detailed factual allegations,” but it demands more than an
13 unadorned, the-defendant-unlawfully-harmed-me accusation. Ashcroft v. Iqbal, --- U.S. ---, 129
14 S. Ct. 1937, 1949 (2009). A pleading that offers “labels and conclusions” or “a formulaic
15 recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
16 544, 555 (2007). Nor does a complaint suffice if it tenders “naked assertion[s]” devoid of
17 “further factual enhancement.” Id., at 557. “To survive a motion to dismiss, a complaint must
18 contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its
19 face.’” Iqbal, 129 S. Ct. at 1949. In reviewing a defendant’s motion, then, the court accepts all
20 factual allegations in the complaint as true and draws all reasonable inferences from those facts
21 in favor of the plaintiff. Al-Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). Although Rule
22 12(b)(6) does not require courts to assess the probability that a plaintiff will eventually prevail,
23 the allegations made in the complaint must cross “the line between possibility and plausibility of
24 entitlement to relief.” Iqbal, 129 S. Ct. at 1949.
25

Summary judgment is appropriate when “the pleadings, the discovery and disclosure

26 materials on file, and any affidavits show that there is no genuine issue as to any material fact

ORDER
PAGE - 2

1 and that the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c). There is no
2 genuine issue of fact for a trial where the record, taken as a whole, could not lead a rational trier
3 of fact to find for the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,
4 475 U.S. 574, 586 (1986). If the nonmoving party fails to establish the existence of a genuine
5 issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477
6 U.S. at 323–24.
7

A.

8

Plaintiff seeks to sue Robert McKenna and Daniel Satterberg in their official capacities as

Claims Against Government Defendants

9 Washington State Attorney General and King County Prosecuting Attorney, respectively. Both
10 Defendants are protected from suit by absolute prosecutorial immunity for discretionary charging
11 decisions. Imbler v. Pachtman, 424 U.S. 409, 430-431 (U.S. 1976). All of Plaintiff’s claims
12 against the Government Defendants appear to be related to their charging and investigating
13 decisions. (Dkt. No. 7 at 10.) Accordingly, Plaintiff’s claims against both Defendants are
14 dismissed. Plaintiff’s claims against the FBI are dismissed for the same reason.
15

B.

16

Plaintiff invokes several federal statutes in his complaint. 42 U.S.C. §§ 1343 (a), 1981,

Claims Against Individual Defendants

17 1983, 1985, 1986, 1987, 1988; 18 U.S.C. § 241, 242, 245, 1028. But Plaintiff’s complaint does
18 not support these claims. 18 U.S.C. § 1028 concerns fraud, but does not create a private right to
19 sue. 18 U.S.C. §§ 241, 242, and 245 do not create a private right to sue. 42 U.S.C. §§ 1343(a),
20 1985, and 1986 require Plaintiff to allege racial animus, which he has not done. Caldeira v.
21 County of Kauai, 866 F.2d 1175 (9th Cir. 1989). 42 U.S.C. §§ 1987 and 1988 do not create a
22 private right to sue. 42 U.S.C. § 1983, does create a private right to sue for deprivation of
23 constitutional rights, but in order to do so, a plaintiff must state the constitutional right of which
24 he has been deprived. Plaintiff does not do this. Instead, his allegations are vague, conclusory,
25 and devoid of any factual enhancement. This issue was raised in the Government Defendants’
26 motion and Plaintiff had an opportunity to respond, but failed to do so. Accordingly, his

ORDER
PAGE - 3

1 complaint against the Individual Defendants is DISMISSED pursuant to FED. R. CIV. P. 56(f).
2 See Celotex, 477 U.S. at 323–24.
3

Plaintiff also moves for default judgment pursuant to FED. R. CIV. P. 55 against

4 Defendant Brand. (Dkt. No. 28.) Default is entered only when a party against whom a judgment
5 for relief is sought has failed to plead or otherwise respond. FED. R. CIV. P. 55(a). Defendant
6 Brand responded to the complaint on May 19, 2011. Plaintiff appears to disagree with the
7 content of Defendant Brand’s answer, but a motion for default is not the remedy. Accordingly,
8 Plaintiff’s motion is without merit and DENIED.
9

Finally, the Court considers Plaintiff’s motion for appointment of counsel. In proceedings

10 in forma pauperis, the district court “may request an attorney to represent any person unable to
11 afford counsel.” 28 U.S.C. § 1915(e)(1). The decision to appoint such counsel is within “the
12 sound discretion of the trial court and is granted only in exceptional circumstances.” Franklin v.
13 Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of the exceptional circumstances of the
14 plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff’s
15 success on the merits and an evaluation of the plaintiff’s ability to articulate his claims “in light
16 of the complexity of the legal issues involved.” Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th
17 Cir. 1986). Here, in evaluating the Plaintiff’s likelihood of success on the merits, it appears that
18 Plaintiff has no federal cause of action and is merely challenging the results of the adoption
19 proceedings in state court after an unsuccessful appeal to the Washington State Supreme Court.
20 Plaintiff’s motion is DENIED.
21 //
22 //
23 //
24
25
26

ORDER
PAGE - 4

1 III.

CONCLUSION

2

For the foregoing reasons, the motion for summary judgment of Defendant Daniel

3 Satterberg and the motion to dismiss of Defendant Rob McKenna are GRANTED. (Dkt. Nos. 26
4 & 30.) Plaintiff’s motions are DENIED. (Dkt. Nos. 28, 31, 34, 35.) This case is DISMISSED
5 with prejudice against all Defendants.
6

DATED this 4th day of October 2011.

7

A

8
9
10

John C. Coughenour
UNITED STATES DISTRICT JUDGE

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

ORDER
PAGE - 5