Chen et al v. The City of Redmond, et al

Filing 90

ORDER granting in part and denying in part City Defendants' 79 Motion to Dismiss with leave to amend as described in this order. The court also DENIES as moot City Defendants' previously filed motion to dismiss (Dkt. # 66 ). Plaintiffs must file their amended complaint, if any, no later than twenty (20) days from the entry of this order. Signed by Judge James L. Robart. (PM)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

SUSAN CHEN, et al.,

CASE NO. C16-1877JLR

Plaintiffs,

11
v.

ORDER ON MOTION TO
DISMISS

12
13

NATALIE D’AMICO, et al.,
Defendants.

14
15

I.

INTRODUCTION

16

Before the court is Defendants City of Redmond (“the City”), Redmond Police

17

Department (“RPD”), RPD Officer Natalie D’Amico, former RPD Chief Ron Gibson,

18

and former RPD Assistant Chief Kristi Wilson’s (collectively, “City Defendants”) motion

19

to dismiss certain claims. (MTD (Dkt. # 79).)1 Plaintiffs Susan (Shiying) Chen,

20
1

21
22

Prior to filing the present motion, four of the five City Defendants filed a motion to
dismiss Plaintiffs’ first amended complaint. (See Moot MTD (Dkt. # 66); FAC (Dkt. # 21).)
The City did not join in that motion because the court had stricken the amended complaint
against the City. (See 10/16/17 Order (Dkt. # 53) at 6; 10/23/17 Order (Dkt. # 60) at 1-2.)

ORDER - 1

1

Naixiang (Nash) Lian, J.L, and L.L. (collectively, “Plaintiffs”) filed a response (Resp.

2

(Dkt. # 81)), City Defendants filed a reply (Reply (Dkt. # 82)), and Plaintiffs filed a

3

notice of supplemental authority (Notice (Dkt. # 84)). The court has considered the

4

parties’ submissions in support of and in opposition to the motion, the relevant portions

5

of the record, and the applicable law. Being fully advised,2 the court GRANTS in part

6

and DENIES in part City Defendants’ motion to dismiss with leave to amend as

7

described herein.

8

II.

9

BACKGROUND

Ms. Chen and Mr. Lian are the parents of J.L. and L.L. (SAC ¶¶ 3-6.) J.L. was

10

born in 2008, and L.L. was born in 2010. (Id. ¶¶ 5-6.) In 2012, J.L. was diagnosed with

11

gastrointestinal (“GI”) problems and Autism Spectrum Disorder. (Id. ¶¶ 24-25.) From

12

September 2012 to October 2013, Plaintiffs took J.L. to a number of clinics at Seattle

13

Children’s Hospital (“SCH”), as well as a naturopath, to address his GI issues. (Id.

14

¶¶ 27-33.)

15

//

16
17
18
19
20
21
22

Subsequent to that motion, the court granted in part Plaintiffs’ motion for leave to amend (see
11/30/17 Order (Dkt. # 73) at 20-21), and Plaintiffs filed a second amended complaint (SAC
(Dkt. # 76)). The second amended complaint is now the operative complaint, rendering moot the
City Defendants’ initial motion to dismiss. (See MTD at 2 (acknowledging mootness of the first
motion to dismiss); Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc)
(recognizing the general rule that an amended complaint supersedes a previously filed complaint
“and renders it without legal effect”). The court therefore DENIES that motion (Dkt. # 66) as
moot.
2

The parties do not request oral argument (see MTD at 1; Resp. at 1), and the court
determines that oral argument would not be helpful to its disposition of the motion, see Local
Rules W.D. Wash. LCR 7(b)(4).

ORDER - 2

1

On or about October 19, 2013, J.L. suffered significant GI problems. (Id. ¶ 34.)

2

Ms. Chen and Mr. Lian took J.L. to a number of clinics to have blood work done because

3

of creatinine levels in his blood that could harm his kidneys. (Id. ¶¶ 34-36.) The first

4

two clinics Plaintiffs went to refused to perform blood work. (Id.) SCH Urgent Care

5

Clinic, the third location Plaintiffs visited, agreed to perform the blood work and inform

6

Plaintiffs of any abnormal results. (Id. ¶ 36.)

7

The next day, Ms. Chen took J.L. back to SCH Urgent Care Clinic because his

8

condition had not improved. (Id. ¶ 38.) Upon returning to the clinic, Ms. Chen learned

9

that J.L.’s blood work from the previous day revealed dangerously high creatinine levels.

10

(Id.) The clinic recommended that Ms. Chen take J.L. to the emergency room (“ER”).

11

(Id.) The clinic had not notified Ms. Chen about the blood work results before she

12

brought J.L. back the following day. (Id.)

13

Based on the clinic’s recommendation, Ms. Chen and Mr. Lian took J.L. to the

14

emergency room at SCH. (Id.) Medical staff supervised J.L.’s condition for several

15

hours and discharged him later that night. (Id. ¶ 39.) They advised Ms. Chen and Mr.

16

Lian to follow up with Dr. Halamay—who was not J.L.’s typical primary care doctor—in

17

one to three days. (Id.)

18

After their visit to the ER at SCH, Ms. Chen took J.L. to see Dr. Halamay on

19

October 23, 2013. (Id. ¶ 41.) Dr. Halamay “took the positon that Ms. Chen should take

20

J.L. to the SCH emergency department for admission” based on an inaccurate belief that

21

Mr. Chen and Mr. Lian had not already taken J.L. to the ER just a few days before. (Id.)

22

Plaintiffs contend that “[a]fter Ms. Chen expressed her dissatisfaction with Dr.

ORDER - 3

1

Halamay’s treatment of her and J.L.” and left a complaint about the treatment with the

2

receptionist, Dr. Halamay referred J.L’s case to DSHS’s Child Protective Services

3

(“CPS”). (Id.)

4

CPS visited Plaintiffs’ home on October 23, 2013, to investigate Dr. Halamay’s

5

allegation. (Id. ¶ 43.) The CPS social worker convinced Ms. Chen and Mr. Lian to take

6

J.L. to SCH, where he was found to be malnourished and subsequently placed into

7

protective custody. (Id. ¶¶ 43-44.) On October 24, 2013, Officer D’Amico and an

8

unidentified RPD officer searched Ms. Chen and Mr. Lian’s apartment without a warrant

9

or an interpreter. (Id. ¶ 46.) RPD then removed L.L. from Ms. Chen and Mr. Lian’s

10
11

custody.3 (Id. ¶¶ 48-49.)
Soon after the children’s removal, Officer D’Amico led an investigation into

12

possible child neglect by Ms. Chen. (Id. ¶ 59.) On December 9, 2013, Officer D’Amico

13

signed a probable cause affidavit to file criminal charges against Ms. Chen. (Id. ¶ 65.)

14

Plaintiffs allege that the affidavit, made upon Officer D’Amico’s knowledge, contained

15

untrue statements and omitted exculpatory information. (Id. ¶¶ 66-72.) On December

16

13, 2013, Officer D’Amico sent her investigation report and probable cause affidavit to

17

the King County Prosecuting Attorney, whose office filed a criminal information against

18

Ms. Chen on January 31, 2014. (Id. ¶¶ 85-86.) In early 2014, Ms. Chen was arraigned,

19

imprisoned for one day, and released without bail.4 (Id. ¶ 87.) Mr. Lian was not charged

20
21

3

A court later terminated the dependency action DSHS instituted. (Id. ¶ 79.)

22

4

Plaintiffs do not allege specific dates for these events. (Id.)

ORDER - 4

1

with any crime arising from the alleged neglect. (See id. ¶ 21.) On September 19, 2014,

2

the Prosecuting Attorney’s office dropped the charges against Ms. Chen. (Id. ¶ 88.)

3

Plaintiffs allege various constitutional violations pursuant to 42 U.S.C. § 1983 and

4

violations of Washington State law by City Defendants and unnamed John Does A-D;

5

Defendant Washington State Department of Social and Health Services (“DSHS”); and

6

10 named and unnamed DSHS employees.5 (SAC ¶¶ 7-20.) Relevant to City

7

Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6),

8

Plaintiffs assert the following constitutional claims: (1) violation of Ms. Chen’s Fourth

9

and Fourteenth Amendment rights due to her arrest and prosecution without probable

10

cause (id. ¶¶ 110-11); (2) violation of Ms. Chen’s Fourteenth Amendment due process

11

right based on Officer D’Amico’s failure “to use an interpreter to obtain reliable and

12

accurate testimony from Ms. Chen” (id. ¶ 112); (3) violation of Ms. Chen’s right to equal

13

protection of the law due to selective prosecution and failure to provide Ms. Chen “an

14

opportunity to provide exculpatory testimony obtained without an interpreter” (id.

15

¶¶ 114-15); and (4) violation of J.L.’s Fourteenth Amendment due process rights (id.

16

¶ 113). Plaintiffs also bring claims against the City and RPD for those same

17

constitutional violations pursuant to Monell v. Department of Social Services of City of

18

New York, 436 U.S. 658 (1978); claims of supervisory liability against Chief Gibson and

19

Assistant Chief Wilson based on their roles in the constitutional violations; and a claim of

20
At this time, only City Defendants challenge the sufficiency of Plaintiffs’ complaint.
(See Not. (Dkt. # 78) at 1 (withdrawing Defendants Kimberly R. Danner, Timothy Earwood, Jill
Kegel, Bill Moss, Kevin W. Quigley, Tom Soule, and DSHS’s motion to dismiss).) For that
reason, the court does not address the claims against the other defendants.
5

21
22

ORDER - 5

1

malicious prosecution against Officer D’Amico, Chief Gibson, and Assistant Chief

2

Wilson. (Id. ¶¶ 119-41, 187-209.) The court now addresses City Defendants’ motion to

3

dismiss. (See MTD.)

4
5

III.
A.

ANALYSIS

Legal Standard

6

Rule 12(b)(6) provides for dismissal of a complaint for “failure to state a claim

7

upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Although a plaintiff does

8

not have to make “detailed factual allegations,” a complaint must include “more than an

9

unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556

10

U.S. 662, 678 (2009). In other words, a complaint must include sufficient factual

11

allegations to “state a claim to relief that is plausible on its face.” Id. (quoting Bell Atl.

12

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the

13

pleaded factual content allows the court to draw the reasonable inference that the

14

defendant is liable for the misconduct alleged.” Id. Under Rule 12(b)(6), the court can

15

dismiss a complaint based on “the lack of a cognizable legal theory or the absence of

16

sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police

17

Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When considering a motion to dismiss under

18

Rule 12(b)(6), the court construes the complaint in the light most favorable to the

19

nonmoving party, Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946

20

(9th Cir. 2005), and accepts all well-pleaded facts as true and draws all reasonable

21

inferences in the plaintiff’s favor, Wyler Summit P’ship v. Turner Broad. Sys., Inc., 135

22

F.3d 658, 661 (9th Cir. 1998).

ORDER - 6

1
2

B.

The Motion to Dismiss
City Defendants first argue for dismissal of Plaintiffs’ claims against the City for

3

failure to adequately allege municipal liability. (MTD at 6-9.) They further contend that

4

leave to amend those claims would be futile because Plaintiffs cannot plead the

5

underlying constitutional violations. (Id. at 9-13.) City Defendants then argue that (1)

6

qualified immunity bars Plaintiffs’ Section 1983 claims against Officer D’Amico, Chief

7

Gibson, and Assistant Chief Wilson; (2) the applicable statute of limitations bars those

8

same claims against Chief Gibson and Assistant Chief Wilson; and (3) Plaintiffs fail to

9

adequately plead a claim of supervisory liability against Chief Gibson and Assistant

10

Chief Wilson.6 The court addresses the claims against the City first, followed by the

11

claims against the officers.

12

1. Municipal Liability

13

Defendants contend that Plaintiffs fail to plead municipal liability for their Section

14

1983 claims because the complaint lacks sufficient detail regarding a City policy causing

15

the constitutional violations. (MTD at 7.) Plaintiffs claim that the City is responsible for

16

Officer D’Amico’s alleged constitutional violations because the City failed to (1) adopt

17

and implement policies (SAC ¶ 122-23), and (2) train or supervise RPD officers to ensure

18
City Defendants also move to dismiss Plaintiffs’ request for punitive damages against
the City and to dismiss RPD as a party to the case. (MTD at 5-6, 13-14.) Plaintiffs do not object
to those requests. (Resp. at 22 (stating that “Plaintiffs do not object to the dismissal of their
prayer for punitive damages solely as to their direct claims against the City” or “to the dismissal
of their separate claims against RPD).) The court therefore grants City Defendants’ motion to
dismiss RPD from the suit and Plaintiffs’ request for punitive damages. (See 11/30/17 Order
(Dkt. # 73) at 2 n.2 (stating that because the RPD is a City department, it cannot be sued in its
individual capacity)); Ruvalcaba v. City of L.A., 167 F.3d 514, 524 (9th Cir. 1999) (stating that a
plaintiff cannot recover punitive damages from a municipality as a matter of law).
6

19
20
21
22

ORDER - 7

1

constitutional practices (id. ¶ 124). Plaintiffs assert that the City failed to adopt or

2

implement policies and to train and supervise regarding (1) preparing “probable cause

3

affidavits that do not contain material falsehoods or omissions”; (2) accounting for

4

“exculpatory evidence in order to refrain from prosecuting persons without probable

5

cause”; (3) not targeting “persons for investigation and prosecution on the basis of gender

6

or national origin or ethnicity”; (4) not using “unreliable testimony obtained from

7

witnesses who are not English proficient for use in prosecution unless there was a

8

qualified interpreter present at the interrogation”; and (5) providing “prosecutors with

9

exculpatory information to terminate criminal and/or dependency proceedings in order to

10

halt prosecutions not founded upon probable cause.” (Id. ¶¶ 122-24.) In response to City

11

Defendants’ motion, Plaintiffs argue that their complaint adequately pleads both that the

12

City’s actions and inactions led to the constitutional violations asserted. (Resp. at 5.)

13

The court addresses both theories of municipal liability, as well as City Defendants’

14

contentions regarding leave to amend these claims.

15

a. Policy, Custom, or Practice

16

To state a claim against a municipality under Section 1983, a plaintiff must allege

17

facts supporting the reasonable inference that a municipality adopted a policy, custom, or

18

practice that amounted to deliberate indifference to the plaintiff’s constitutional right and

19

resulted in a deprivation of the constitutional right. See Monell, 436 U.S. at 691-92; see

20

also Plumeau v. Sch. Dist. No. 40 Cty. of Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). A

21

plaintiff can plead a policy by supplying sufficient facts demonstrating that the

22

municipality (1) adopted an official policy or had an established custom that led to the

ORDER - 8

1

constitutional violation, (2) failed to act in a way that amounts to a policy of deliberate

2

indifference to constitutional rights, or (3) that an official with final policy-making

3

authority committed the constitutional violation or ratified a subordinate’s violation. See

4

Clouthier v. Cty. of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010), overruled on

5

other grounds by Castro v. Cty. of L.A., 833 F.3d 1060 (9th Cir. 2016). A plaintiff’s

6

allegations “may not simply recite the elements” of municipal liability and instead must

7

“put forth additional facts regarding the specific nature” of the alleged policy and its

8

relationship to the alleged constitutional violation. AE ex rel. Hernandez v. Cty. of

9

Tulare, 666 F.3d 631, 637 (9th Cir. 2012).

10

Under that standard, Plaintiffs fail to sufficiently allege facts from which the court

11

can reasonably infer a municipal policy, custom, or practice. (See generally SAC.) Their

12

complaint alleges only that “customs, longstanding practices, and official policies caused

13

the deprivation of Plaintiffs’ constitutional rights.” (Id. ¶ 125.) That formulaic recitation

14

falls far short of the pleading standard. See AE ex rel. Hernandez, 666 F.3d at 637;

15

Ahmed v. City of Antioch, Cal., No. 16-cv-01693-HSG, 2016 WL 8729938, at *5 (N.D.

16

Cal. July 1, 2016) (dismissing a Monell claim where the complaint did nothing more than

17

use “key buzzwords such as ‘conformity,’ ‘customs,’ ‘policies,’ and ‘practices’”); Alston

18

v. Tassone, No. CIV S-11-2078 JAM GGH PS, 2012 WL 2377015, at *8 (E.D. Cal. June

19

22, 2002) (stating that a Monell claim “must consist of more than mere formulaic

20

recitations of the existence of unlawful policy customs or habits”). Thus, Plaintiffs fail to

21

state a claim based on this theory of municipal liability.

22

//

ORDER - 9

1
2

b. Inaction
A municipality can also be liable “if it has a policy of inaction and such inaction

3

amounts to a failure to protect constitutional rights.” Oviatt v. Pearce, 954 F.2d 1470,

4

1474 (9th Cir. 1997); see also Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir.

5

2012) (“A policy of inaction or omission may be based on failure to implement

6

procedural safeguards to prevent constitutional violations.”). A plaintiff who asserts this

7

theory of liability faces “heightened requirements” because otherwise “when a municipal

8

employee commits a constitutional tort, it could always be alleged that the municipality

9

failed to enact a policy that would have prevented the tort.” Id. at 1143-44. Thus, to

10

adequately plead deliberate indifference in this context, a plaintiff must plead facts

11

supporting a reasonable inference that the municipality was on actual or constructive

12

notice that its inaction would likely result in a constitutional violation, id. at 1144, and

13

that the inaction was “the result of a conscious or deliberate choice among various

14

alternatives,” Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004) (internal citations

15

omitted).

16

Plaintiffs also fail to adequately plead facts supporting a theory of municipal

17

liability based on a policy of inaction. Although Plaintiffs identify a lack of policy in five

18

areas (see SAC ¶¶ 122-24), the complaint contains no facts regarding whether the City’s

19

inaction was the result of a conscious or deliberate choice or that the City knew that the

20

lack of policy in those areas would result in constitutional violations (see generally id.).

21

Rather, Plaintiffs merely restate the elements of a Monell claim, asserting that the City

22

had “awareness” its “acts and omissions violated Plaintiffs’ constitutional rights.” (Id.

ORDER - 10

1

¶ 126.) They also state that the City’s “acts and omissions” caused the constitutional

2

deprivation through “deliberate indifference to the risk that [the City’s] customs,

3

practices, and policies were inadequate to train RPD officers to prevent deprivation of

4

rights”7 (id. ¶ 127), and the City’s failure to adopt such policies was “the moving force

5

that caused the deprivation of Plaintiffs’ rights” (id.). However, simply invoking the

6

phrases “deliberate indifference” and “moving force”—even when coupled with a

7

statement of the policies Plaintiffs contend that the City should have adopted and

8

enacted—is insufficient to withstand a motion to dismiss. See Dougherty v. City of

9

Covina, 654 F.3d 892, 900-01 (9th Cir. 2011) (upholding the dismissal of a complaint

10

that “pointed to no instances of deliberate indifference” or “any facts demonstrating that

11

[the plaintiff’s] constitutional deprivation was the result of a custom or practice . . . or

12

that the custom or practice was the ‘moving force’ behind his constitutional

13

deprivation”); United Motors Int’l, Inc. v. Hartwick, No. CV 17-00243 BRO (Ex), 2017

14

WL 888304, at *14 (C.D. Cal. Mar. 6, 2017) (concluding that the complaint failed to

15

state a Monell claim based on omissions or failures to act because it contained no

16

allegations regarding a pattern of constitutional violations sufficient to demonstrate

17

deliberate indifference).

18

Plaintiffs’ failure to train and supervise theory is even more deficient. To

19

adequately plead municipal liability based on a failure to train or supervise, a plaintiff

20

must allege that (1) the current training program is inadequate given the tasks the officers

21
7

22

In this regard, Plaintiffs conflate their failure to adopt and implement theory with their
failure to train and supervise theory, which the court addresses below.

ORDER - 11

1

must perform; (2) the failure to train amounts to deliberate indifference of the rights of

2

the people with whom the officers will come into contact; and (3) the inadequate training

3

actually caused the deprivation of the constitutional right. See Dougherty, 654 at 900.

4

“A municipality’s culpability for a deprivation of rights is at its most tenuous where a

5

claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). The

6

plaintiff must therefore allege facts that the defendant disregarded known or obvious

7

consequences arising from a particular omission in its training program that would cause

8

its officers to violate constitutional rights. See Flores v. City of L.A., 758 F.3d 1154,

9

1159 (9th Cir. 2014).

10

Here, Plaintiffs do not identify what training and supervision practices are

11

deficient or how the deficiencies harmed Ms. Chen. See Young v. City of Visalia, 687 F.

12

Supp. 2d 1141, 1149-50 (E.D. Cal. 2009) (concluding that the complaint failed to identify

13

“what the training and hiring practices were, how the training and hiring practices were

14

deficient, or how the training and hire practices caused Plaintiff’s harm”). Indeed,

15

Plaintiffs allege only that the City failed to train and supervise officers in the five areas

16

identified above. (SAC ¶ 124.) Nowhere do they allege facts giving rise to the plausible

17

inference that the City’s existing training and supervisory programs are deficient. (See

18

generally id.) And as with their failure to adopt and implement theory, Plaintiffs state in

19

conclusory fashion that the City’s failure amounts to deliberate indifference and was the

20

moving force behind the alleged constitutional violations. (See id. ¶¶ 126-27.) For these

21

reasons, Plaintiffs fail to state a Section 1983 claim based on a failure to train and

22

supervise.

ORDER - 12

1

Because Plaintiffs’ complaint contains insufficient factual allegations giving rise

2

to a reasonable inference of the City’s liability, the court grants City Defendants’ motion

3

to dismiss Plaintiffs’ Monell claims.

4
5

c. Leave to Amend Claims Against the City
City Defendants argue that the court’s dismissal of Plaintiffs’ Monell claims

6

should be without leave to amend. (MTD at 9-10.) Specifically, they argue that

7

amendment would be futile because Plaintiffs’ underlying constitutional claims are

8

deficient.8 (Id.) In essence, City Defendants challenge the sufficiency of the factual

9

allegations supporting the constitutional claims, and the court therefore analyzes whether

10
11

dismissal of those claims—and if so, leave to amend—is appropriate.
Before embarking on that analysis, the court first notes that futility alone justifies

12

denying leave to amend. Novak v. United States, 795 F.3d 1012, 1020 (9th Cir. 2015)

13

(citing Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995)). Amendment is futile “if no

14

set of facts can be proved under the amendment to the pleadings that would constitute a

15

valid and sufficient claim or defense.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214

16

(9th Cir. 1988); see also Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.

17

1998) (“A claim in a proposed amended complaint is futile if it would be immediately

18

subject to dismissal pursuant to Rule 12(b)(6) . . . .”).

19
20
City Defendants challenge only Ms. Chen’s claims related to the failure to use an
interpreter, for selective prosecution based on gender, and lack of probable cause. (See id. at
9-13.) They do not address J.L.’s Fourteenth Amendment due process rights. (See generally id.;
see also SAC ¶ 113.)
8

21
22

ORDER - 13

1
2

i. National Origin
City Defendants first challenge Plaintiffs’ “national-origin claim.” (Id. at 10.)

3

City Defendants focus on Plaintiffs’ allegations regarding Officer D’Amico’s failure to

4

use an interpreter when interviewing Ms. Chen. (Id. at 10-11; SAC ¶¶ 112, 114-15.)

5

They argue that there is no constitutional right to an interpreter during a noncustodial

6

interview, and thus Ms. Chen fails to state a claim—and cannot do so, even with further

7

amendment—for national origin discrimination. (See id. at 11.) In response, Plaintiffs

8

clarify that their constitutional claims referring to Officer D’Amico’s failure to use an

9

interpreter are based in unlawful discrimination, not on a constitutional right to an

10

interpreter.9 (See Resp. at 12.) Based on that clarification, the court construes Plaintiffs’

11

complaint as pleading only an Equal Protection claim based on national origin

12

discrimination and accordingly addresses that claim.10

13

The Equal Protection Clause of the Fourteenth Amendment directs that “all

14

similarly situated persons . . . be treated alike.” City of Cleburne v. Cleburne Living Ctr.,

15
9

16
17
18
19
20
21
22

In any event, although a criminal defendant has a constitutional right to an interpreter in
certain circumstances, the Ninth Circuit has not recognized a right to an interpreter during a
police interview. See United States v. Mayans, 17 F.3d 1174, 1180 (9th Cir. 1994) (“Various
cases have recognized a constitutional right to an interpreter.”); see also United States v. Si, 333
F.3d 1041, 1042 (9th Cir. 2003) (“In a judicial proceeding where a defendant lacks the ability to
speak or understand English, an interpreter can be essential for ensuring a fair trial.”).
10

To the extent Plaintiffs intend to bring a substantive due process claim under the
Fourteenth Amendment for the alleged discrimination, they are unable to do so. (See SAC
¶ 112); see Johnson v. State of Cal., 207 F.3d 650, 656 (9th Cir. 2000) (affirming dismissal of
substantive due process claims with prejudice because “the Equal Protection Clause covers the
actions challenged in the complaint”); Hufford v. McEnaney, 249 F.3d 1142, 1151 (9th Cir.
2001) (“When a plaintiff’s claim can be analyzed under an explicit textual source of rights in the
Constitution, a court should not resort to the more subjective standard of substantive due
process.” (internal quotation marks omitted)).

ORDER - 14

1

473 U.S. 432, 439 (1985). To state a claim under Section 1983 for violation of the Equal

2

Protection Clause, the plaintiff must plead facts supporting the reasonable inference that

3

the defendant “acted with an intent or purpose to discriminate against the plaintiff based

4

upon membership in a protected class.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th

5

Cir. 1998). A plaintiff must therefore allege that “a class that is similarly situated has

6

been treated disparately,” Christian Gospel Church, Inc. v. City & Cty. of S.F., 896 F.2d

7

1221, 1225-26 (9th Cir. 1990), and that the defendant acted with discriminatory intent,

8

Barren, 152 F.3d at 1194.

9

Plaintiffs plead no facts regarding the City’s use of interpreters in general or the

10

use of interpreters for similarly situated individuals. (See SAC.) They allege only that

11

Officer D’Amico violated the Equal Protection Clause “by depriving Ms. Chen of an

12

opportunity to provide exculpatory testimony through an interpreter” because of Officer

13

D’Amico’s “bias against Ms. Chen’s national origin and/or ethnicity.” (Id. ¶ 115.) That

14

statement—uncoupled from any allegations regarding similarly situated individuals,

15

Officer D’Amico’s discriminatory intent, or even the City’s use of interpreters in

16

general—fails to state an equal protection claim for national origin discrimination. See

17

Lam v. City & Cty. of S.F., 868 F. Supp. 2d 928, 951 (N.D. Cal. 2012). Nevertheless,

18

contrary to City Defendants’ contention, the court cannot conclude at this time that Ms.

19

Chen could not plead any facts supporting such a claim. Thus, the court grants Plaintiffs

20

leave to amend.

21

//

22

//

ORDER - 15

1

ii. Gender
City Defendants next argue that Plaintiffs’ claim regarding gender discrimination

2
3

is meritless because Ms. Chen does not have a “constitutional right to have Mr. Lian

4

prosecuted.” (Id. at 13.) But City Defendants mischaracterize the right alleged; Plaintiffs

5

assert that Ms. Chen was selectively prosecuted because of her gender. (See SAC ¶ 114;

6

Resp. at 11.)

7

A selective prosecution claim is a specific kind of an equal protection claim for

8

which a plaintiff must allege facts supporting the reasonable inference that similarly

9

situated individuals of another gender “could have been prosecuted but were not.”11 See

10

United States v. Ford, No. 3:14-cr-00045-HZ, 2016 WL 4443167, at *4 (D. Or. Aug. 22,

11

2016); see also United States v. Arenas-Ortiz, 339 F.3d 1066, 1068 (9th Cir. 2003)

12

(stating that to prove discriminatory effect, a defendant must show that similarly situated

13

individuals of a different ethnic origin were not prosecuted). Individuals are similarly

14

situated “when their circumstances present no distinguishable legitimate prosecutorial

15

factors that might justify making different prosecutorial decisions with respect to them.”

16

Id. (quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)). Discriminatory

17

intent requires that the prosecutor took a course of action at least in part because of “its

18

adverse effects upon an identifiable group.” Id. at *7 (internal quotation marks omitted).

19

//

20
11

21
22

Although Plaintiffs style their claim as one of selective prosecution (SAC ¶ 115), their
claim may be more aptly described as a selective enforcement claim based on differential
treatment in investigation and arrest. However, a selective enforcement claim is substantially
similar to a selective prosecution claim. See Lacey, 693 F.3d at 920.

ORDER - 16

1

As with their national origin claim, Plaintiffs allege no facts related to Officer

2

D’Amico’s discriminatory intent in referring Ms. Chen for prosecution. (See generally

3

SAC.) The court therefore dismisses the selective prosecution claim because the

4

complaint contains no allegations giving rise to a plausible inference of discriminatory

5

intent or motive.12 (See generally id.) However, the court cannot conclude at this time

6

that Plaintiffs cannot allege any facts supporting a claim. Thus, the court grants leave to

7

amend.

8

iii. Probable Cause

9

Lastly, City Defendants state that if Plaintiffs “intend to allege the existence of” a

10

policy encouraging false statements in probable cause affidavits, “they should identify it

11

in their response.” (MTD at 13.) If Plaintiffs fail to do so, City Defendants argue that the

12

court should deny leave to amend. (Id.) City Defendants’ argument falls short, however,

13

because Plaintiffs are not required to identify specific amendments to their complaint in

14

responsive briefing. Although Plaintiffs fail to plead sufficient facts regarding the City’s

15

policies or lack thereof, nothing in City Defendants’ briefing convinces the court that

16

amendment of the Monell claims related to probable cause would be futile. See supra

17

§ III.B.1.

18

//

19
20
21
22

Despite City Defendants’ statement that a selective prosecution claim cannot be based
on differential treatment between Ms. Chen and only one other person—Mr. Lian—at least one
other court has said such an allegation is sufficient at the pleading stage. (See MTD at 13 n.5);
Williams v. Cty. of Alameda, 26 F. Supp. 3d 925, 942 (N.D. Cal. 2014) (declining to dismiss the
plaintiff’s equal protection claim because he identified “his fiancé as a[ similarly situated]
individual [to] whom he can be compared”).
12

ORDER - 17

1

For these reasons, the court dismisses the Equal Protection Clause claims for

2

national origin and gender discrimination but denies City Defendants’ request to prohibit

3

leave to amend Plaintiffs’ Section 1983 claims against the City and the constitutional

4

violations underlying those claims.13

5

2. Qualified Immunity

6

City Defendants next argue that qualified immunity bars Plaintiffs’ Equal

7

Protection claims for national origin and gender discrimination. (Mot. at 10-16.)

8

Qualified immunity shields government officials from suits for civil liability unless the

9

official violated a clearly established statutory or constitutional right of which a

10

reasonable person would have known. Reichle v. Howards, 566 U.S. 658, 654 (2012).

11

The court must determine whether (1) the plaintiff sufficiently alleges that an official’s

12

conduct violated a constitutional right, and (2) the right was clearly established at the

13

time of the alleged violation. Pearson v. Callahan, 555 U.S. 223, 232 (2009). “A right is

14

clearly established when the contours of the right [are] sufficiently clear that a reasonable

15

official would understand that what he is doing violates that right.” Castro v. Cty. of

16

L.A., 833 F.3d 1060, 1067 (9th Cir. 2016) (internal quotation marks omitted; alteration in

17

original). The court may address either inquiry first. Pearson, 555 U.S. at 236. Where a

18
19
20
21
22

In their response to City Defendants’ motion to dismiss, Plaintiffs contend that their
complaint contains a claim for “improper intrusions into their constitutionally protected liberty
interest in familial relations.” (Resp. at 15 n.2.) And on February 1, 2018, Plaintiffs filed a
notice of supplemental authority, alerting the court to the Ninth Circuit’s decision in Demaree v.
Pederson, 880 F.3d 1066 (9th Cir. 2018) (per curiam), which involved the “well-elaborated
constitutional right to live together without governmental interference,” id. at 1069 (internal
quotation marks omitted). However, Plaintiffs have not asserted such a claim against City
Defendants. (See generally SAC.)
13

ORDER - 18

1

defendant presents a qualified immunity defense in a Rule 12(b)(6) motion, “dismissal is

2

not appropriate unless [the court] can determine, based on the complaint itself, that

3

qualified immunity applies.” Groten v. California, 251 F.3d 844, 851 (9th Cir. 2001).

4

To make their qualified immunity argument, City Defendants refer to their

5

arguments that amendment of Plaintiffs’ constitutional claims would be futile.14 (MTD at

6

16.) For the reasons stated above, Plaintiffs fail to state constitutional claims under the

7

Equal Protection Clause, which satisfies the first prong of the qualified immunity analysis

8

as to those claims.15 See supra § III.B.1.a-b. Because Plaintiffs’ constitutional claims

9

fail for lack of sufficient factual allegations rather than the lack of a cognizable legal

10

theory, the court’s dismissal on this basis is with leave to amend. See Elsmore v. Patrol,

11

No. ED CV 15-1556 RGK (MRW), 2016 WL 4479547, at *1 (C.D. Cal. July 26, 2016)

12

(granting leave to amend after dismissing the complaint based on qualified immunity

13

grounds); Bradley v. Crowther, No. 2:17-CV-93 TS, 2017 WL 3037377, at *3 n.16 (D.

14

Utah July 17, 2017) (collecting cases); cf. Morales v. Fry, 873 F.3d 817, 823 (9th Cir.

15
16
17
18
19
20
21
22

Because City Defendants did not actually address the substance of Plaintiffs’ lack of
probable cause claims (see MTD at 13, 15), the court construes the motion to dismiss as
requesting dismissal of only the equal protection claims on this ground.
14

15

City Defendants also state in cursory fashion that the constitutional rights alleged are
were not clearly established at the time of the alleged violations. (See MTD at 16 (“There is no
clearly established right to an interpreter in a non-custodial interview. Nor does focusing a
criminal child-abuse investigation on one parent violate any clearly established rights.”).)
However, as the court discussed above, City Defendants mischaracterize Plaintiffs’ claimed
constitutional rights and Plaintiffs clarify that they do not assert a constitutional right to an
interpreter during a police interview. See supra § III.B.1.a. Moreover, the right to be free from
national origin and gender discrimination in criminal proceedings is clearly established, see
Elliot-Park v. Manglona, 592 F.3d 1003, 1008-09 (9th Cir. 2010), although the court will revisit
this issue if City Defendants assert the qualified immunity defense again.

ORDER - 19

1

2017) (stating that “qualified immunity was conceived of as a summary judgment

2

vehicle”). However, City Defendants may raise a qualified immunity defense again in

3

response to a future amended complaint.

4

3. Statute of Limitations

5

City Defendants next contend that Plaintiffs’ claims against Chief Gibson and

6

Assistant Chief Wilson are barred by the applicable statute of limitations. State law

7

provides the statute of limitations for Section 1983 suits, Trimble v. City of Santa Rosa,

8

49 F.3d 583, 585 (9th Cir. 1995) (per curiam), and Washington applies its three-year

9

statute of limitations for personal injury suits to Section 1983 claims, Southwick v. Seattle

10

Police Officer John Doe #s 1-5, 186 P.3d 1089, 1092 (Wash. Ct. App. 1998). Federal

11

law, however, dictates when a cause of action accrues and the limitations period begins to

12

run. Klein v. City of Beverly Hills, 865 F.3d 1276, 1278 (9th Cir. 2017). Federal law

13

provides that a claim accrues “when the plaintiff knows or has reason to know of the

14

injury which is the basis of the action.” Maldonado v. Harris, 370 F.3d 945, 955 (9th

15

Cir. 2004).

16

The parties dispute when the limitations period began to run on Plaintiffs’ claims.

17

City Defendants contend that Ms. Chen’s gender and national origin discrimination

18

claims accrued no later than February 18, 2014, and therefore expired on February 18,

19

2017.16 (MTD at 17.) Ms. Chen and Mr. Lian filed the suit involving City Defendants

20

on March 17, 2017, in King County Superior Court. Chen, et al. v. City of Redmond,

21
16

22

City Defendants state that Ms. Chen was arraigned on February 18, 2014. (MTD at
17.) However, Plaintiffs’ complaint states only that Ms. Chen was arraigned “in early 2014.”

ORDER - 20

1

No. C17-0569JLR, Dkt. # 1. Plaintiffs contend that their claims accrued at the

2

termination of criminal proceedings against Ms. Chen on September 19, 2014, because

3

the alleged “wrongful acts . . . are part of a continuous and connected string of wrongful

4

acts” that concluded on that date.17 (Resp. at 18.) The only support they offer for this

5

theory is that a malicious prosecution claim accrues when the proceedings against a

6

plaintiff terminate such that they cannot be revived. (See id. at 19 (citing Bradford v.

7

Scherschligt, 803 F.3d 382, 387 (9th Cir. 2015).)

8
9

Based on the facts in the complaint, the court reasonably infers that by the time
Ms. Chen was arraigned “in early 2014,” she knew or had reason to know of any national

10

origin discrimination arising from Officer D’Amico’s failure to use an interpreter in

11

interviewing her prior to the charges and of any gender discrimination arising from the

12

choice to prosecute Ms. Chen but not Mr. Lian for the same conduct. (See SAC ¶¶ 112,

13

114-15.) Thus, the statute of limitations bars those claims, and the court dismisses them

14

on this basis. The court’s dismissal is without prejudice, however, because there is no

15

indication that Plaintiffs could not amend their complaint to allege facts that they became

16
17
18
19
20
21
22

(SAC ¶ 87.) Because the court only looks at the complaint in determining its sufficiency and
City Defendants have not requested judicial notice of the arraignment date (see generally MTD),
the court does not credit the February 18, 2014, date as the specific date of the arraignment.
17

Plaintiffs also argue that because J.L. and L.L. are minor children, their claims are not
time-barred. (Resp. at 18.) City Defendants state only that “Plaintiffs do not allege any violation
of J.L.’s or L.L.’s constitutional rights by City Defendants.” (Reply (Dkt. # 82) at 10.)
However, Plaintiffs allege that City Defendants violated J.L.’s Fourteenth Amendment rights in
his dependency action. (SAC ¶ 113.) Because City Defendants misread the complaint in this
regard and provide no further argument, the court declines to address the constitutional claim
brought specifically by J.L. In addition, City Defendants move to dismiss only the claims
against Chief Gibson and Assistant Chief Wilson on this basis.

ORDER - 21

1

aware of the injury at a later time upon learning, for example, of an allegedly

2

unconstitutional policy of differential treatment in the provision of interpreters or

3

prosecution. See supra § III.B.1.a-b (giving Plaintiffs leave to amend to state a claim of

4

municipal liability based on a policy or inaction).

5

Plaintiffs’ constitutional claims related to lack of probable cause and their claim of

6

malicious prosecution are subject to a slightly different analysis. Plaintiffs allege that

7

Officer D’Amico obtained an arrest warrant for Ms. Chen that was “not founded on

8

probable cause” (SAC ¶ 110) and submitted “a probable cause affidavit that contained

9

material falsehoods and omissions that failed to acknowledge exculpatory evidence” (id.

10

¶ 111). Based on those allegations, Plaintiffs appear to assert a judicial deception claim,

11

which involves “false or misleading misrepresentations that may not be readily apparent

12

at the time” a warrant is executed. See Klein, 865 F.3d at 1279 (“In a traditional Fourth

13

Amendment case, the plaintiff is placed on constructive notice of the illegal conduct

14

when the search and seizure takes place.”). “In order to discover the underlying illegality

15

in a judicial deception case, the plaintiff must have access to the underlying affidavit.”

16

Id. Such a claim begins to accrue “when the underlying affidavit” becomes “reasonably

17

available.” Id. at 1278-79.

18

Here, construing the complaint in the light most favorable to Plaintiffs, the factual

19

allegations give rise to the reasonable inference that Ms. Chen learned of the false or

20

misleading representations in the affidavit at the time she was charged or arraigned. (See

21

SAC ¶¶ 86 (alleging that on January 31, 2014, the Prosecuting Attorney filed a criminal

22

information that contained Officer D’Amico’s probable cause affidavit), 87 (“In early

ORDER - 22

1

2014, Ms. Chen appeared . . . for arraignment in her criminal case.”).) The court

2

therefore dismisses these claims as to Chief Gibson and Assistant Chief Wilson.18

3

However, the court grants Plaintiffs leave to amend the complaint to allege facts

4

regarding when Ms. Chen became aware of the misrepresentations because at this time,

5

amendment would not be futile.
Finally, Plaintiffs’ malicious prosecution claim against Chief Gibson and Assistant

6
7

Chief Wilson accrued when the criminal proceedings against Ms. Chen terminated. See

8

Bradford, 803 F.3d at 387. Those proceedings ended on September 19, 2014 (SAC ¶ 88);

9

thus, Plaintiffs’ malicious prosecution claim is timely, and the court denies the motion to

10

dismiss this claim. The court notes that City Defendants also include a paragraph in

11

which they assert that Plaintiffs fail to adequately plead the malicious prosecution claim

12

because they do not “allege any wrongful conduct.” (MTD at 19.) However, City

13

Defendants provide no substantive argument or legal authority on this point. Thus, the

14

court declines at this time to address the sufficiency of the claim.

15

C.

16

Leave to Amend
In summary, the court grants City Defendants’ motion to dismiss Plaintiffs’ claims

17

against the City for failure to adequately allege municipal liability; the underlying Equal

18

Protection Clause claims against Officer D’Amico, Chief Gibson, and Assistant Chief

19

Wilson for failure to plead sufficient facts supporting those claims and on the basis of

20
18

21
22

Because the court concludes that the constitutional claims against Chief Gibson and
Assistant Chief Wilson pursuant to Section 1983 are time-barred and dismisses on that basis, the
court declines to address City Defendants’ argument that Plaintiffs fail to adequately plead
supervisory liability for those claims. (See MTD at 18-19.)

ORDER - 23

1

qualified immunity; and the constitutional claims related to lack of probable cause against

2

Chief Gibson and Assistant Chief Wilson as barred by the statute of limitations. The

3

court denies the City’s motion to dismiss the probable cause malicious prosecution claim

4

against Chief Gibson and Assistant Chief Wilson. The court grants Plaintiffs leave to

5

amend the dismissed claims, however, because there is no indication at this time that

6

leave to amend would be futile.

7

The court cautions Plaintiffs that they will not receive multiple opportunities to

8

amend their complaint. Their failure to allege sufficient facts giving rise to their

9

constitutional claims and the City’s liability for the asserted violations will demonstrate

10

that further amendment would be futile. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261

11

(9th Cir. 1992) (affirming dismissal with prejudice where district court had instructed the

12

pro se plaintiff regarding the deficiencies in a prior order and granted leave to amend); cf.

13

Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989) (“The district

14

court’s discretion to deny leave to amend is particularly broad where plaintiff has

15

previously amended the complaint.”).

16

IV.

17

CONCLUSION

For the reasons set forth above, the court GRANTS in part and DENIES in part

18

City Defendants’ motion to dismiss (Dkt. # 79) with leave to amend as described herein.

19

The court also DENIES as moot City Defendants’ previously filed motion to dismiss

20

(Dkt. # 66). Plaintiffs must file their amended complaint, if any, no later than twenty (20)

21

days from the entry of this order. Failure to file an amended complaint or to remedy the

22

//

ORDER - 24

1

deficiencies identified in this order will result in the court dismissing the matter without

2

leave to amend.

3

Dated this 27th day of March, 2018.

4
5

A

6

JAMES L. ROBART
United States District Judge

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

ORDER - 25