DiMaio v. County of Snohomish et al

Filing 20

ORDER granting in part and denying in part Defendants' 8 Motion to dismiss and for a more definite statement. The court DENIES the motion under Rule 12(b)(5) but QUASHES Mr. DiMaio's prior attempt at service and EXTENDS the time for effec ting service of process; GRANTS the motion under Rule 12(b)(6) and DISMISSES Mr. DiMaio's complaint without prejudice and with leave to amend; and DENIES as moot Defendants' motion under Rule 12(e). Mr. DiMaio must file an amended complaint no later than August 22, 2017, and accomplish proper service of process no later than August 31, 2017. Signed by Judge James L. Robart. (PM) cc: plaintiff via the U.S. Mail

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 RICHARD DIMAIO, 10 CASE NO. 17-0128JLR ORDER ON MOTION TO DISMISS AND MOTION FOR A MORE DEFINITE STATEMENT Plaintiff, 11 v. 12 COUNTY OF SNOHOMISH, DEPARTMENT OF THE SHERIFF, et al., 13 14 15 Defendants. 16 I. 17 INTRODUCTION Before the court is Defendants County of Snohomish, Department of the Sheriff 18 (“Snohomish County Sheriff’s Office” or “Sheriff’s Office”) and Snohomish County 19 Sheriff Ty Trenary’s (collectively, “Defendants”) motion to dismiss pro se Plaintiff 20 Richard DiMaio’s complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and 21 12(b)(6) and for a more definite statement pursuant to Federal Rule of Civil 22 // ORDER - 1 1 Procedure 12(e). (MTD (Dkt. # 8).) The court has considered the parties’ submissions,1 2 the relevant portions of the record, and the applicable law. Being fully advised, 2 the court 3 grants in part and denies in part Defendants’ motion. Specifically, the court (1) denies 4 Defendants’ motion to dismiss pursuant to Rule 12(b)(5), but quashes Mr. DiMaio’s prior 5 attempt at service and grants Mr. DiMaio an additional 30 days from the date of this 6 order to properly serve Defendants; (2) grants Defendants’ motion to dismiss pursuant to 7 Rule 12(b)(6) and dismisses Mr. DiMaio’s complaint without prejudice and with leave to 8 amend within 30 days; and (3) denies as moot Defendants’ motion for a more definite 9 statement. 10 // 11 1 12 13 14 15 16 17 18 19 20 21 Without leave of the court, Mr. DiMaio filed his response to the motion to dismiss after the deadline set forth in the court’s order granting Mr. DiMaio additional time to respond. (Compare 5/9/2017 Order (Dkt. # 14) (setting May 22, 2017, as the deadline), with Resp. (Dkt. # 16) (filed May 25, 2017).) Although Defendants contend that the court should disregard the response (see Reply (Dkt. # 17) at 1 n.1), the court discerns no prejudice to Defendants from considering the late-filed response because Defendants had an opportunity to reply, (see generally id.) Accordingly, the court considers Mr. DiMaio’s response in spite of his late filing. The court cautions Mr. DiMaio, however, that even though he is proceeding pro se, he is responsible for complying with all court orders and applicable rules. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (“Pro se litigants must follow the same rules of procedure that govern other litigants.”), overruled on other grounds by Lacey v. Maricopa Cty., 693 F.3d 896, 925 (9th Cir. 2012). On June 12, 2017, Mr. DiMaio submitted an additional filing without leave of the court, titled “Response to the defendants Motion to Dismiss and a more definite statement.” (2d Resp. (Dkt. # 19).) This filing is best construed as a surreply. Local Civil Rule 7(g)(1) limits the content of a surreply to a request to strike. See Local Rules W.D. Wash. LCR 7(g)(1). Mr. DiMaio’s filing does not contain a request to strike but instead makes additional substantive arguments and submits what appears to be a copy of a complaint filed in state court and a declaration from Jairus Perryman, a process server. (See generally 2d Resp.) Mr. DiMaio did not seek leave of the court to make additional arguments or submit additional evidence. Thus, the court strikes the filing and does not consider it in ruling on the present motion. 2 22 No party requests oral argument, and the court concludes 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 II. BACKGROUND 2 On January 30, 2017, Mr. DiMaio commenced this litigation by filing a motion for 3 leave to proceed in forma pauperis (“IFP”). (IFP Mot. (Dkt. # 1).) The court granted Mr. 4 DiMaio’s motion on February 7, 2017 (IFP Order (Dkt. # 2)), and docketed his complaint 5 that day (see Compl. (Dkt. # 3)). This lawsuit stems from Mr. DiMaio’s termination from the Snohomish County 6 7 Sheriff’s Office. (Id. ¶ 13.) Mr. DiMaio asserts that he was hired as a sheriff’s deputy by 8 the Snohomish County Sheriff’s Office in 2003. (Id. ¶ 5.) Mr. DiMaio alleges that his 9 former girlfriend falsely accused him of wrongdoing, a “Snohomish Internal Affairs 10 Investigator” credited the false accusations as true, and “a pre-disciplinary investigator” 11 recommended that Mr. DiMaio be terminated. (Id. ¶¶ 7-8, 10-11.) Mr. DiMaio contends 12 that, based on these events, on February 3, 2015, Snohomish County Sheriff Ty Trenary 13 terminated Mr. DiMaio’s employment without cause. (Id. ¶ 13.) Mr. DiMaio claims that 14 as a result he has “experienced financial loss, job and career loss, [and] emotional pain, 15 fear, and anxiety.” (Id. ¶ 25.) 16 On March 20, 2017, Mr. Perryman personally delivered a copy of the summons in 17 this case, along with a binder of exhibits, to Ashley James, a Law Enforcement 18 Technician at the Snohomish County Sheriff’s Office. (James Decl. (Dkt. # 9) ¶ 2.) Mr. 19 Perryman did not deliver a copy of the complaint. (Id. ¶ 4.) Ms. James was working at 20 the front desk of the Sheriff’s Office when Mr. Perryman handed her the summons and 21 the binder of exhibits. (Id. ¶ 2.) 22 // ORDER - 3 On April 6, 2017, Defendants moved to dismiss Mr. DiMaio’s complaint pursuant 1 2 to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6) and for a more definite 3 statement pursuant to Federal Rule of Civil Procedure 12(e). (See MTD.) That motion is 4 now before the court. 5 6 7 III. A. ANALYSIS Motion to Dismiss for Insufficient Service of Process Defendants contend that service of process was insufficient in two respects: (1) 8 Mr. DiMaio served only a copy of the summons and did not include a copy of the 9 complaint as Federal Rule of Civil Procedure 4(c)(1) requires, and (2) Mr. DiMaio did 10 not serve the person required under Rule 4(j)(2) to effectuate service on a local 11 government entity. (MTD at 4.) The court concludes that Mr. DiMaio has not 12 effectuated proper service under Rule 4. As more fully explained below, the court 13 exercises its discretion to quash Mr. DiMaio’s attempt at service of process and extend 14 the time for Mr. DiMaio to effectuate proper service. 15 1. Legal Standard 16 Rule 12(b)(5) authorizes a defendant to move for dismissal due to insufficient 17 service of process. See Fed. R. Civ. P. 12(b)(5). A federal court cannot exercise 18 jurisdiction over a defendant unless the defendant has been properly served under Rule 4. 19 Direct Mail Specialists, Inc. v. Eclat Computerized Tech., 840 F.2d 685, 688 (9th Cir. 20 1988). Without substantial compliance with Rule 4, “‘neither actual notice nor simply 21 naming the defendant in the complaint will provide personal jurisdiction.’” Id. (quoting 22 Benny v. Pipes, 799 F.2d 489, 492 (9th Cir. 1986), amended, 807 F.2d 1514 (9th Cir. ORDER - 4 1 1987)). “Once service is challenged, [a] plaintiff[] bear[s] the burden of establishing that 2 service was valid under Rule 4.” Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 2004). 3 A plaintiff meets his prima facie burden to show that service was proper by producing the 4 process server’s affidavit of service. Wells Fargo Bank NA v. Kuhn, 5 No. CV137913GAFFFMX, 2014 WL 12560870, at *2 (C.D. Cal. July 23, 2014). 6 “Unless some defect in service is shown on the face of the return, a motion to dismiss 7 under Rule 12(b)(5) requires [the] defendant to produce affidavits, discovery materials, or 8 other admissible evidence establishing the lack of proper service.” Id. (internal quotation 9 omitted). The burden then shifts back to the plaintiff “to produce evidence showing that 10 the service was proper, or creating an issue of fact requiring an evidentiary hearing to 11 resolve.” Id. (internal quotation omitted). 12 In some instances, Rule 4 may be liberally construed “so long as a party receives 13 sufficient notice of the complaint.” United Food & Commercial Workers Union v. Alpha 14 Beta Co., 736 F.2d 1371, 1382 (9th Cir. 1984). The Ninth Circuit has held that failure to 15 strictly comply with service requirements does not warrant dismissal if: “(a) the party 16 that had to be served personally received actual notice, (b) the defendant would suffer no 17 prejudice from the defect in service, (c) there is a justifiable excuse for the failure to 18 serve properly, and (d) the plaintiff would be severely prejudiced if his complaint were 19 dismissed.” Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984) (internal quotation 20 omitted); see S.J. ex rel. S.H.J. v. Issaquah Sch. Dist., No. C04-1926RSL, 2007 WL 21 764916, at *2 (W.D. Wash. Mar. 8, 2007) (applying Borzeka’s four-part test and 22 concluding that the plaintiffs substantially complied with the requirement of Rule 4(j) by ORDER - 5 1 serving the administrative assistant to the superintendent, notwithstanding that such 2 service did not strictly comply with the rule). A plaintiff’s pro se status alone does not 3 provide a justifiable excuse for defective service. See Hamilton v. Endell, 981 F.2d 1062, 4 1065 (9th Cir. 1992). 5 2. Rule 4(c)(1) 6 Rule 4(c)(1) requires that “[a] summons . . . must be served with a copy of the 7 complaint” and that “[t]he plaintiff is responsible for having the summons and complaint 8 served within the time allowed by Rule 4(m).” Fed. R. Civ. P. 4(c)(1). Mr. Perryman’s 9 proof of service does not state that he served a copy of the complaint. (Proof of Serv. 10 (Dkt. # 5).) Ms. James states in her declaration that “[t]here was no copy of a Complaint 11 included in the documents the man delivered.” (James Decl. ¶ 4.) Although Mr. DiMaio 12 argues in response that Mr. Perryman “served the Summons along with the complaint in 13 its entirety,” Mr. DiMaio does not support his assertion with an affidavit or declaration 14 from Mr. Perryman or any other witness.3 (Resp. at 2; see Dkt.) Mr. DiMaio’s own 15 assertions in his responsive brief, not made under penalty of perjury, do not satisfy the 16 requirements of 28 U.S.C. § 1746 for unsworn declarations and affidavits. 4 See 28 17 Although Mr. DiMaio’s improper surreply contains what appears to be a declaration from Mr. Perryman, in which Mr. Perryman makes statements that imply he served the complaint along with the summons, Mr. DiMaio did not timely submit the declaration with his responsive pleading. As discussed above, see supra at n.1, the court strikes Mr. DiMaio’s surreply because he did not seek leave of the court to submit additional evidence. 3 18 19 20 21 22 Title 28 U.S.C. § 1746 permits a witness to submit an “unsworn declaration, certificate, verification, or statement” instead of an affidavit, so long as it is subscribed by its maker as “true under penalty of perjury,” in substantially the following form: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).” 28 U.S.C. § 1746. 4 ORDER - 6 1 U.S.C. § 1746. Mr. DiMaio has not met his burden of producing “evidence showing that 2 the service was proper, or creating an issue of fact requiring an evidentiary hearing to 3 resolve.” Kuhn, 2014 WL 12560870, at *2. 4 3. Rule 4(j)(2) 5 Defendants also contend that Mr. DiMaio did not serve the persons prescribed 6 under the Civil Rules to effectuate service on a local government entity. (MTD at 4-5.) 7 Mr. DiMaio names as defendants the Snohomish County Sheriff’s Office and Snohomish 8 County Sheriff Ty Trenary in his official capacity. (See Compl. ¶¶ 2-3.) First, the 9 Snohomish County Sheriff’s Office—a county department—is not a legal entity subject 10 to suit. McCamey v. Snohomish Cty. Sheriff’s Office, No. C17-0063JCC-BAT, 2017 WL 11 1504234, at *2 (W.D. Wash. Mar. 29, 2017), report and recommendation adopted, 2017 12 WL 1496437 (W.D. Wash. Apr. 25, 2017). A plaintiff “must name the city or county 13 itself as a party to the action, not the particular municipal department or facility where the 14 alleged violation occurred.” Id.; see also Mays v. Pierce Cty., No. C14-5291RBL, 2015 15 WL 5102600, at *3 (W.D. Wash. Aug. 28, 2015) (“The capacity to be sued is limited to 16 the county itself.”). Second, when a plaintiff brings a lawsuit against a government 17 officer in his official capacity, a court treats the suit as a suit against the entity that 18 employs the officer. Kentucky v. Graham, 473 U.S. 159, 166 (1985); see Monell v. Dep’t 19 of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 n.55 (1978) (“[O]fficial-capacity suits 20 generally represent only another way of pleading an action against an entity of which an 21 officer is an agent.”); Updike v. Clackamas Cty., No. 3:15-CV-00723-SI, 2015 WL 22 7722410, at *2-4 (D. Or. Nov. 30, 2015) (dismissing plaintiff’s claims against County ORDER - 7 1 Sheriff in his official capacity as redundant with his claims against the County). For the 2 purposes of resolving this motion, the court construes the action against the Snohomish 3 County Sheriff’s Office and the Snohomish County Sheriff in his official capacity as an 4 action against Snohomish County. Mr. DiMaio did not, however, properly serve the 5 County. 6 Rule 4(j)(2) requires that service on a local government entity like Snohomish 7 County be made by either “delivering a copy of the summons and of the complaint to its 8 chief executive officer” or “serving a copy of each in the manner prescribed by that 9 state’s law for serving a summons or like process on such a defendant.” Fed. R. Civ. P. 10 4(j)(2). In the case of a charter county, like Snohomish County, Washington law requires 11 the plaintiff to serve the complaint and summons “upon the agent, if any, designated by 12 the legislative authority.” RCW 4.28.080(1). The Snohomish County Code designates 13 the County Auditor as the proper recipient of service. SNOHOMISH COUNTY, WA., CODE 14 § 2.90.050(1) (2017). The Auditor’s Office “did not receive any legal documents on 15 behalf of Snohomish County in the lawsuit filed by Mr. DiMaio.” (Smith Decl. 16 (Dkt. # 10) ¶ 5.) 17 Mr. DiMaio does not offer contrary evidence. Instead, he contends that he called 18 “the county civil unit and spoke with a call taker” who “advised that the summons could 19 be served on the clerk at the front desk.” (Resp. at 2.) Mr. DiMaio again makes this 20 assertion in the body of his responsive brief and fails to conform to the requirements for 21 an unsworn affidavit or declaration. See 28 U.S.C. § 1746. Moreover, this alleged 22 inaccurate representation that the clerk has authority to accept service does not constitute ORDER - 8 1 proof that the clerk actually has such authority. See j2 Glob., Inc. v. Fax87.Com, 2 No. CV 13-05353 DDP AJWX, 2014 WL 462832, at *3 (C.D. Cal. Feb. 5, 2014) 3 (quoting U.S. Commodity Futures Trading Comm’n v. Paron Capital Mgmt., LLC, No. C 4 11-4577 CW, 2012 WL 1156396, at *2 (N.D. Cal. Apr. 6, 2012)) (“[E]ven if a person 5 states that he or she is authorized to accept service, that is not proof that the person 6 actually has the authority to do so.”). Rather, Rule 4 requires that the purported agent 7 have actual authority for service to be adequate. See Fed. R. Civ. P. 4(e)(2)(C). 8 Accordingly, Mr. DiMaio has not met his burden of establishing that he complied with 9 Rule 4(j)(2). 10 Mr. DiMaio’s failure to strictly comply with Rule 4 is not excused under 11 Borzeka’s four-part test because he has not offered a justifiable excuse for his failure to 12 effectuate proper service. See 739 F.2d at 447. Even given Mr. DiMaio’s pro se status, 13 inadvertent error or lack of knowledge of the governing rules does not constitute a 14 justifiable excuse. See Hamilton, 981 F.2d at 1065. Evidence that someone mistakenly 15 told a plaintiff that an individual had authority to accept service can under some 16 circumstances support finding a justifiable excuse. See S.J. ex rel. S.H.J., 2007 WL 17 764916, at *2 (finding a justifiable excuse for defective service where “the administrative 18 assistant to the superintendent told plaintiffs’ courier she was authorized to accept service 19 of process, and signed an affidavit for each defendant acknowledging this authority”). 20 Here, however, Mr. DiMaio does not support with evidence his assertion that he was told 21 the Sheriff’s Office clerk could accept service. (See Resp. at 2.) Accordingly, Mr. 22 DiMaio’s failure to strictly comply with Rule 4 is not excused. ORDER - 9 1 4. Remedy 2 If the plaintiff is unable to satisfy his burden of demonstrating effective service, 3 the court has broad discretion to either dismiss the complaint or quash the attempted 4 service of process. S.J. v. Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 5 2006) (citing Stevens v. Sec. Bank Pac. Nat’l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976)). 6 Where there is a reasonable prospect that service may yet be accomplished and no unfair 7 prejudice to the defendant, a court should quash service rather than dismiss the action, 8 and permit the plaintiff to effect proper service. Wick Towing, Inc. v. Northland, 9 No. C15-1864JLR, 2016 WL 3461587, at *2 (W.D. Wash. June 21, 2016) (citing 10 Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir. 1992)). Further, although Rule 4(m) 11 requires service within 90 days after the complaint is filed, it “contemplates the 12 possibility of an extension of time.” S.J., 470 F.3d at 1293; see also Fed. R. Civ. P. 4(m). 13 A court must extend Rule 4(m)’s 90-day time period if the plaintiff shows good cause for 14 failure to timely serve a defendant. Efaw v. Williams, 473 F.3d 1038, 1040 (9th Cir. 15 2007). Even without good cause, however, the court has broad discretion to extend the 16 time for service. Id. In exercising this discretion, the court may consider factors such as 17 the length of delay in proper service, the statute of limitations, prejudice to the defendant, 18 actual notice of the lawsuit, and eventual service. Id. at 1040-41. 19 Applying the relevant factors under Efaw, the court exercises its discretion to 20 quash service and extend Rule 4(m)’s 90-day time period to allow Mr. DiMaio to 21 effectuate proper service. It appears there is a reasonable prospect that Mr. DiMaio can 22 make effective service, and Defendants do not raise any unfair prejudice they would ORDER - 10 1 suffer. See Umbenhauer, 969 F.2d at 30. Although Mr. DiMaio has not shown good 2 cause for failure to timely serve Defendants, the court concludes the length of delay in 3 proper service is not significant. Mr. DiMaio attempted to serve defendants within Rule 4 4(m)’s 90-day time period, and granting a brief extension of that time period will delay 5 proper service by only approximately three months. Additionally, Defendants concede 6 they had actual notice of the suit. (See MTD at 5.) The court thus exercises its discretion 7 to grant Mr. DiMaio until August 31, 2017, to accomplish proper service of process 8 pursuant to Rule 4(m). 9 B. 10 11 Motion to Dismiss for Failure to State a Claim Defendants also contend that Mr. DiMaio’s complaint fails to state a viable claim and should be dismissed under Rule 12(b)(6).5 (MTD at 6-7.) 12 1. Legal Standard 13 Rule 12(b)(6) provides for dismissal for “failure to state a claim upon which relief 14 can be granted.” Fed. R. Civ. P. 12(b)(6). When considering a motion to dismiss under 15 Rule 12(b)(6), the court construes the complaint in the light most favorable to the 16 nonmoving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 17 (9th Cir. 2005). The court must accept all well-pleaded facts as true and draw all 18 19 20 21 22 5 Courts routinely consider 12(b)(6) motions after dismissing or quashing service of process under Rule 12(b)(5). See, e.g., Morgan v. Capitol Indem. Corp., No. C17-0754JCC, 2017 WL 2717576, at *1-2 (W.D. Wash. June 23, 2017); Bratset v. Davis Joint Unified Sch. Dist., No. 216CV0035GEBDBPS, 2016 WL 7212779, at *5 (E.D. Cal. Dec. 12, 2016); Dillard v. Red Canoe Fed. Credit Union, No. C14-1782JLR, 2015 WL 1782083, at *4 (W.D. Wash. Apr. 17, 2015). Moreover, the court has an independent obligation to screen an IFP complaint and dismiss if it is frivolous or fails to state a claim. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). ORDER - 11 1 reasonable inferences in favor of the plaintiff. Wyler Summit P’ship v. Turner Broad. 2 Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). “To survive a motion to dismiss, a 3 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 4 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Telesaurus VPC, LLC v. 6 Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A claim has facial plausibility when the 7 plaintiff pleads factual content that allows the court to draw the reasonable inference that 8 the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 677-78. It is not 9 enough for a complaint to “plead[] facts that are ‘merely consistent with’ a defendant’s 10 liability.” Id. at 678 (quoting Twombly, 550 U.S. at 557). Dismissal under Rule 12(b)(6) 11 can be based on the lack of a cognizable legal theory or the absence of sufficient facts 12 alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 13 696, 699 (9th Cir. 1990). Although the court liberally construes a pro se plaintiff’s 14 complaint, Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014), the court cannot 15 supply essential facts that the plaintiff has failed to plead, Pena v. Gardner, 976 F.2d 469, 16 471 (9th Cir. 1992). 17 Moreover, when a plaintiff proceeds IFP, as Mr. DiMaio does here, the court must 18 conduct an independent review of the complaint and dismiss if the complaint fails to state 19 a claim upon which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). The court 20 applies the same Rule 12(b)(6) dismissal standard to determine whether dismissal is 21 warranted under Section 1915(e)(2)(B)(ii). Watison v. Carter, 668 F.3d 1108, 1112 (9th 22 Cir. 2012). ORDER - 12 1 // 2 2. Mr. DiMaio’s Claims 3 Although Mr. DiMaio’s complaint is confusingly structured, the court liberally 4 construes it to assert several constitutional claims against Snohomish County under 42 5 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must plead facts giving 6 rise to an inference that (1) he suffered a violation of rights protected by the Constitution 7 or created by federal statute, and (2) the violation was proximately caused by a person 8 acting under color of state or federal law. See, e.g., Crumpton v. Gates, 947 F.2d 1418, 9 1420 (9th Cir. 1991). A local government unit or municipality can be sued as a “person” 10 under Section 1983 provided a plaintiff identifies a municipal “policy” or “custom” that 11 caused his or her injury. Bryan Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997) (citing 12 Monell, 436 U.S. at 694). Thus, to state a Section 1983 claim against Snohomish County, 13 Mr. DiMaio must plead facts supporting (1) a violation of his constitutional rights, and 14 (2) that the County’s custom or policy caused the constitutional violation. Thomas v. City 15 of Seattle, 395 F. Supp. 2d 992, 999 (W.D. Wash. 2005). A plaintiff may plead a 16 municipal policy or custom by alleging facts that give rise to (1) an inference of a 17 longstanding practice or custom which constitutes the municipality’s standard operating 18 procedure; (2) an inference that the decisionmaking official was a final policymaking 19 authority under state law whose edicts or acts may fairly be said to represent official 20 policy in the area of decision; or (3) an inference that an official with final policymaking 21 authority either delegated that authority to, or ratified the decision of, a subordinate. 22 Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). ORDER - 13 1 // 2 Defendants construe Mr. DiMaio’s complaint to allege two constitutional claims 3 under Section 1983: (1) deprivation of Mr. DiMaio’s “First Amendment right to access 4 legal counsel and the legal process to redress matters of public concern involving 5 unconstitutional action,” and (2) deprivation of his Fourteenth Amendment right to equal 6 protection of the laws. (MTD at 6.) Defendants argue that Mr. DiMaio fails to plead 7 sufficient facts to state these claims. (Id.) As explained more fully below, the court 8 concludes that Mr. DiMaio’s complaint fails to state claims under the First Amendment 9 and the equal protection clause of the Fourteenth Amendment. Accordingly, the court 10 grants Defendants’ motion and dismisses Mr. DiMaio’s First Amendment and equal 11 protection claims under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii). The court 12 discerns a third constitutional claim: deprivation of Mr. DiMaio’s employment without 13 procedural due process.6 (See Compl. at 3.) Because Mr. DiMaio fails to allege 14 sufficient facts to state a procedural due process claim, the court dismisses that claim 15 pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).7 16 Although Defendants argue in their reply that Mr. DiMaio’s complaint fails to state a procedural due process claim (see Reply at 5), a litigant may not raise a new issue in reply, Coos Cty. Bd. of Cty. Comm’rs v. Kempthorne, 531 F.3d 792, 812 (9th Cir. 2008). The court therefore reviews the procedural due process claim under 28 U.S.C. § 1915(e)(2)(B)(ii) rather than Rule 12(b)(6). 6 17 18 19 20 21 22 7 Mr. DiMaio submitted hundreds of pages of exhibits with his complaint, but he does not cite the exhibits in his complaint. A plaintiff may not “attach hundreds of pages of exhibits to his complaint and expect the defendants, or the court, to wade through in the hopes of finding potential claims.” Wilkerson v. Haabs, No. 10-1067, 2010 WL 1687896, at *1 (C.D. Ill. Apr. 23, 2010). Accordingly, the court has not “sift[ed] through those exhibits to determine how they might support the various claims” Mr. DiMaio asserts in this action. Cohen v. Hodges, No. CIVA 08CV-02806-BNB, 2009 WL 440906, at *2 (D. Colo. Feb. 13, 2009). If Mr. DiMaio ORDER - 14 1 i. First Amendment Claims 2 Mr. DiMaio claims that defendants “penalized [Mr.] DiMaio’s First Amendment 3 right to access legal counsel and the legal process to redress matters of public concern.” 4 (Compl. ¶ 23.) Mr. DiMaio fails to state a First Amendment claim for two reasons. First, 5 Mr. DiMaio fails to state a cognizable legal claim that Defendants violated his First 6 Amendment “right to access legal counsel.” The court “is unaware of 7 constitutionally-protected rights to counsel other than those guaranteed by the Fifth and 8 Sixth Amendments, neither of which is at issue in this case.” Bouma v. Trent, 9 No. CV-10-0267-PHX-NVW, 2010 WL 1531171, at *4 (D. Ariz. Apr. 15, 2010). 10 Second, although Mr. DiMaio does not specify the legal basis for the claim he intends to 11 support with his allegation that Defendants penalized his First Amendment right to access 12 “the legal process,” the court addresses several possibilities and concludes that his 13 complaint pleads insufficient facts to state a claim. (See Compl. ¶ 23.) 14 The First Amendment broadly guarantees the right “to petition the Government for 15 a redress of grievances.” See U.S. Const. amend. I. A government actor infringes this 16 right by directly interfering with the right to present a grievance or imposing restrictions 17 on the ability to present a grievance that have a “chilling” effect on a citizen’s exercise of 18 that right. See O’Keefe v. Van Boening, 82 F.3d 322, 325 (9th Cir. 1996). More 19 specifically, the First Amendment guarantees the right of prisoners to meaningfully 20 21 22 chooses to amend his complaint, he should include in the amended complaint any factual allegations that support his claims, and any attached exhibits must be cited and explained in the amended complaint. ORDER - 15 1 access the legal process of the courts to present complaints. Hudson v. Palmer, 468 U.S. 2 517, 523 (1984) (citing Johnson v. Avery, 393 U.S. 483 (1969)). It also protects a 3 qualified right of access for the press and public to observe government activities, 4 including criminal judicial proceedings. See Richmond Newspapers, 448 U.S. 555, 580 5 (1980). 6 Defendants argue that Mr. DiMaio fails to plead facts showing that Defendants 7 have prevented him from presenting grievances or have otherwise imposed any 8 restriction on his ability to do so. (MTD at 6.) The court agrees. (See generally Compl.) 9 Moreover, Mr. DiMaio is not a prisoner, and his complaint does not allege any facts 10 giving rise to an inference that Defendants deprived him of the opportunity to observe 11 governmental activities or proceedings. (See generally Compl.) For these reasons, Mr. 12 DiMaio fails to allege facts giving rise to First Amendment claims. The court thus 13 dismisses those claims under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii). 14 ii. Equal Protection Claim 15 Mr. DiMaio also contends that Defendants deprived Mr. DiMaio of “14th 16 amendment Equal Protection of Laws.” (Compl. ¶ 24.) To state a Section 1983 claim for 17 violation of the Equal Protection Clause of the Fourteenth Amendment, Mr. DiMaio must 18 allege that Defendants have adopted a classification that affects two or more similarly 19 situated groups in an unequal manner and that Defendants “‘acted with an intent or 20 purpose to discriminate against the plaintiff based upon membership in a protected 21 class.’” Lee v. City of L.A., 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. 22 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), cert. denied, 525 U.S. 1154 (1999)). ORDER - 16 1 As Defendants argue, Mr. DiMaio does not plead facts giving rise to the plausible 2 inference that he belongs to a protected class or that he was treated differently in his 3 termination proceedings based on his membership in a protected class. (See MTD at 7; 4 see generally Compl.) Thus, the court dismisses Mr. DiMaio’s equal protection claim 5 under Rule 12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii). 6 iii. Procedural Due Process 7 Finally, the court discerns a claim that Defendants violated Mr. DiMaio’s 8 procedural due process rights. (See Compl. at 3.) Mr. DiMaio alleges that Defendants 9 deprived him of “presumptively continuing government employment” without providing 10 “a meaningful post-termination opportunity to bring [before] a neutral fact finder 11 testimonial evidence of his innocence and the falsity of accusations against him.” (Id.) 12 To state a claim for a violation of procedural due process, Mr. DiMaio must allege 13 facts that give rise to an inference of: “(1) a liberty or property interest protected by the 14 Constitution; (2) a deprivation of the interest by the government; [and] (3) lack of 15 process.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). A 16 government employee has a constitutionally protected property interest in continued 17 employment if a law or rule creates a legitimate claim of entitlement to his job. Bd. of 18 Regents v. Roth, 408 U.S. 564, 577 (1972). A public employee with a protected property 19 interest in his job is entitled to “oral or written notice of the charges against him, an 20 explanation of the employer’s evidence, and an opportunity to present his side of the 21 story” before he is terminated. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 22 (1985). In identifying this minimum requirement for pre-termination process, the ORDER - 17 1 Supreme Court relied on the fact that state law provided the employee with a full 2 post-termination hearing. Id. at 548. “The general rule is that the less the pre-deprivation 3 process, the greater must be the post-deprivation process.” Cassim v. Bowen, 824 F.2d 4 791, 798 (9th Cir. 1987). 5 Mr. DiMaio’s complaint fails to state a procedural due process claim for two 6 reasons. First, Mr. DiMaio’s complaint fails to plead or suggest a basis on which he 7 claims a property interest in his continued employment with the Snohomish County 8 Sheriff’s Office. Mr. DiMaio merely alleges in conclusory fashion that Defendants 9 deprived him of “presumptively continuing government employment.” (Compl. at 3.) 10 Second, the failure to afford a post-termination hearing, by itself, is an insufficient 11 basis to infer that Plaintiff received constitutionally deficient process. Whether due 12 process requires that Mr. DiMaio receive a post-termination hearing depends upon the 13 constitutional adequacy of the pre-termination safeguards he received. See Cassim, 824 14 F.2d at 798. Mr. DiMaio does not make factual allegations that suggest the 15 pre-termination procedures were inadequate. (See generally Compl.) His most relevant 16 factual allegations are that a “Snohomish Internal Affairs investigator reviewed the 17 [police department] record and DiMaio and [his former girlfriend’s] answers; disregarded 18 the findings of [the police department]; and credited as true the false accusations made by 19 [Mr. DiMaio’s former girlfriend],” and a “pre-disciplinary investigator recommended that 20 [Mr.] DiMaio be terminated from Snohomish and summoned [Mr.] DiMaio to give 21 rebuttal at a January, 2015 meeting.” (Compl. ¶¶ 10-11.) These allegations do not give 22 rise to an inference of constitutionally deficient procedures. At best, these allegations are ORDER - 18 1 “merely consistent with” liability, which is insufficient under Iqbal. See 556 U.S. at 678. 2 Instead, Mr. DiMaio’s allegations show only a result with which Mr. DiMaio disagrees. 3 “The Due Process cause of the Fourteenth Amendment is not a guarantee against 4 incorrect or ill-advised personnel decisions.” Portman, 995 F.2d at 908. Absent facts 5 giving rise to a reasonable inference that the pre-termination procedures were not 6 themselves sufficient to satisfy due process, the allegation that Mr. DiMaio has not been 7 given a post-termination hearing is insufficient by itself to state a viable Section 1983 8 claim. 9 Moreover, Mr. DiMaio fails to plead sufficient facts to support Monell liability. 10 Mr. DiMaio makes only the bare assertion that “[b]y standard procedure or official policy 11 the individual Defendant ratified the summary deprivations.” (Compl. ¶ 22.) Although 12 previous Ninth Circuit authority required a plaintiff in a civil rights action against a local 13 government to set forth no more than a bare allegation that government officials’ conduct 14 conformed to an unidentified government policy or custom, “the Ninth Circuit explicitly 15 found that authority to be overruled post-Iqbal.” Wyrzykowski v. Cty. of Marin, 16 No. 3:14-CV-03825-LB, 2015 WL 3613645, at *10 (N.D. Cal. June 9, 2015) (citing AE 17 ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012)). Mr. DiMaio does 18 not plead nonconclusory facts that give rise to the inference that he was terminated 19 pursuant to a longstanding practice or custom that constitutes Snohomish County’s 20 standard operating procedure, that Snohomish County Sheriff Ty Trenary was a final 21 policymaking authority with respect to personnel decisions, or that an official with such 22 final policymaking authority delegated that authority to Sheriff Trenary or ratified Sheriff ORDER - 19 1 Trenary’s decision. Cf. Menotti, 409 F.3d at 1147. The court thus dismisses Mr. 2 DiMaio’s claim that Defendants deprived him of procedural due process. See 28 U.S.C. 3 § 1915(e)(2)(B)(ii). 4 3. Leave to Amend 5 When a court dismisses a pro se plaintiff’s complaint, the court must give the 6 plaintiff leave to amend unless it is absolutely clear that amendment could not cure the 7 defects in the complaint. Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995). 8 Because it is possible that Mr. DiMaio can cure the defects in his complaint with 9 additional factual allegations, the court grants Mr. DiMaio leave to amend his complaint. 10 Mr. DiMaio must file an amended complaint, if any, that corrects the deficiencies the 11 court identifies herein no later than August 22, 2017.8 If Mr. DiMaio chooses to amend 12 his complaint, his amended complaint must include a short and plain statement that 13 describes (1) the factual circumstances of the alleged harm, e.g., where and when it 14 occurred; (2) the actions of Defendants that give rise to Mr. DiMaio’s claims; (3) the 15 basis for the court’s jurisdiction; and (4) the relief Mr. DiMaio seeks. See Fed. R. Civ. P. 16 8(a)(1)-(3). Mr. DiMaio must timely serve the appropriate defendants with the amended 17 complaint, if any, by August 31, 2017. If Mr. DiMaio fails to timely comply with this 18 // 19 // 20 // 21 22 8 The court cautions Mr. DiMaio that an amended complaint will supersede his original complaint and leave his original complaint without legal effect. Lacey v. Maricopa Cty., 693 F.3d 896, 927 (9th Cir. 2012) (en banc). ORDER - 20 1 order or fails to file an amended complaint that remedies the deficiencies identified 2 herein, the court will dismiss his complaint without leave to amend.9 3 IV. CONCLUSION 4 For the reasons set forth above, the court GRANTS in part and DENIES in part 5 Defendants’ motion to dismiss and for a more definite statement (Dkt. # 8). The court 6 DENIES the motion under Rule 12(b)(5) but QUASHES Mr. DiMaio’s prior attempt at 7 service and EXTENDS the time for effecting service of process; GRANTS the motion 8 under Rule 12(b)(6) and DISMISSES Mr. DiMaio’s complaint without prejudice and 9 with leave to amend; and DENIES as moot Defendants’ motion under Rule 12(e). Mr. 10 DiMaio must file an amended complaint no later than August 22, 2017, and accomplish 11 proper service of process no later than August 31, 2017. 12 Dated this 1st day of August, 2017. 13 14 A 15 JAMES L. ROBART United States District Judge 16 17 18 19 20 21 22 9 Defendants also move for a more definite statement pursuant to Rule 12(e) on the basis that Mr. DiMaio’s complaint is confusing because it contains paragraphs labeled 1-13 and 22-25 and two pages appear to be transposed. (See MTD at 5.) Because the court dismisses the complaint in its entirety for failure to state a claim, the court concludes that Defendants’ Rule 12(e) motion on this ground is moot. See infra § III.B.3. ORDER - 21

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