Preston v. Boyer et al

Filing 145

ORDER DIRECTING SUPPLEMENTAL BRIEFING. Plaintiff shall file a brief by December 5, 2018, that addresses (a) whether he agrees with defendants' claim that Sergeant Boyer was acting within the scope of his employment during the alleged battery a nd outrageous conduct, (b) whether the Court should certify to the Washington Supreme Court the question of whether he may maintain his negligent hiring, retention, and supervision claims, and (c) regardless of his answer to (b), how he would fram e the question to be submitted to the Washington Supreme Court. Snohomish County may file a reply brief by December 14, 2018. The Clerk is directed to RE-NOTE Snohomish County's motion to dismiss (Dkt. 138 ) for December 14, 2018. Signed by Hon. Mary Alice Theiler. (TH)

1
2
3
4
5
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8

ROBERT JOHN PRESTON,
Plaintiff,

9
10
11
12

Case No. C16-1106-JCC-MAT
ORDER DIRECTING
SUPPLEMENTAL BRIEFING

v.
RYAN BOYER, et al.,
Defendants.

13
14

This is a 42 U.S.C. § 1983 prisoner civil rights action. On July 12, 2018, the Honorable

15

John C. Coughenour granted plaintiff’s motion to amend his complaint to add negligent hiring,

16

retention, and supervision claims against Snohomish County, and a battery claim against Sergeant

17

Boyer. (Dkts. 113, 114, 116, 117.) Judge Coughenour declined to allow plaintiff’s proposed

18

outrage claim against Sergeant Boyer because the allegations were insufficient to state a claim, but

19

granted him leave to file a second motion to amend with additional factual allegations. (Dkts. 113,

20

114.) On August 29, 2018, the undersigned granted plaintiff’s motion to amend his complaint to

21

include an outrage claim. (Dkt. 130.)

22

On October 4, 2018, Snohomish County moved to dismiss the negligent hiring, retention,

23

and supervision claims against it. (Dkt. 138.) The County argues that a recent Washington

ORDER DIRECTING SUPPLEMENTAL
BRIEFING - 1

1

Supreme Court case, Anderson v. Soap Lake School District, 191 Wash.2d 343 (2018), clarifies

2

that negligent hiring, retention, and supervision claims cannot be maintained where the employee

3

was acting within the scope of his employment. Because defendants concede—and plaintiff does

4

not appear to dispute—that Sergeant Boyer was acting within the scope of his employment at the

5

relevant time, the County contends that the claims against it must be dismissed. Plaintiff disputes

6

this characterization of Washington law and contends that Anderson actually supports his claims.

7

(Dkts. 140 & 141.) In reply, the County reiterates its position that Washington law demands

8

dismissal of the negligence claims against it, but argues that if the Court finds ambiguity in

9

Washington law, it should certify the question for review by the Washington Supreme Court. (Dkt.

10

142.)
Plaintiff has not been given an opportunity to address the County’s alternative suggestion

11
12

that the Court certify the question to the Washington Supreme Court. The Court thus ORDERS:
(1)

13

Plaintiff shall file a brief by December 5, 2018, that addresses (a) whether he agrees

14

with defendants’ claim that Sergeant Boyer was acting within the scope of his employment during

15

the alleged battery and outrageous conduct, (b) whether the Court should certify to the Washington

16

Supreme Court the question of whether he may maintain his negligent hiring, retention, and

17

supervision claims, and (c) regardless of his answer to (b), how he would frame the question to be

18

submitted to the Washington Supreme Court.
(2)

19
20

\\

21

Snohomish County may file a reply brief by December 14, 2018.

\\

22
23

ORDER DIRECTING SUPPLEMENTAL
BRIEFING - 2

1

(3)

The Clerk is directed to RE-NOTE Snohomish County’s motion to dismiss (Dkt.

2

138) for December 14, 2018, and to send copies of this order to the parties and to Judge

3

Coughenour.

4

Dated this 13th day of November, 2018.

5

A
Mary Alice Theiler
United States Magistrate Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

ORDER DIRECTING SUPPLEMENTAL
BRIEFING - 3