Le et al v. Urquart et al

Filing 163

MINUTE ORDER granting in part and denying in part defendants' 162 Motion for Clarification or Reconsideration; VACATING portions of 148 Minute Order. The portions of defendants' motions for summary judgment in which they assert that RCW 4.20.046(1) operates to prohibit non-economic damages as to the § 1983 claim are DEFERRED, and counsel shall be prepared to address this issue at oral argument on 5/16/2019, at 9:00 a.m. Authorized by Judge Thomas S. Zilly. (SWT)

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

4
5
6

BAO XUYEN LE, et al.,
Plaintiffs,

7
8
9

C18-55 TSZ

v.
REVEREND DR. MARTIN LUTHER
KING, JR. COUNTY, et al.,

10

MINUTE ORDER

Defendants.

11
The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:
12
13
14
15
16
17
18
19
20
21
22

(1)
Defendants’ motion for clarification or reconsideration, docket no. 162, is
GRANTED in part and DENIED in part as follows:
(a)
The Court CLARIFIES the Minute Order entered April 26, 2019,
docket no. 148, as follows. Contrary to defendants’ contention, the Court’s ruling
striking the portion of King County’s motion for summary judgment asserting
immunity from suit pursuant to RCW 4.24.420 was not inconsistent with the
survival of the claim brought under 42 U.S.C. § 1983 by plaintiff Bao Xuyen Le,
the Personal Representative of the Estate of Tommy Le. RCW 4.24.420 explicitly
states that it does not affect a right of action under § 1983. With respect to the
survival of § 1983 claims, state law applies to the extent that it is not inconsistent
with federal law and the policies underlying § 1983. See 42 U.S.C. § 1988(a);
Chaudhry v. L.A., 751 F.3d 1096, 1103 (9th Cir. 2014). Defendants’ assertion that
the remaining survival action is premised on a negligence theory under state law,
see Defs.’ Mot. at 5 (docket no. 162), is simply incorrect. The remaining survival
action is brought under § 1983, and is viable because federal law, specifically
§ 1988, incorporates Washington’s law allowing all causes of action to survive to
the personal representative of the decedent’s estate. See RCW 4.20.046(1).
(b)

23
MINUTE ORDER - 1

Defendants’ motion is otherwise denied.

1
2
3
4
5
6
7

(2)
As a result of defendants’ motion for clarification or reconsideration, the
Court has reviewed the jurisprudence concerning the survival of § 1983 claims, and has
concluded that its earlier acceptance of plaintiffs’ concession regarding the unavailability
of damages for “pain and suffering, anxiety, emotional distress, or humiliation” suffered
by Tommy Le prior to his death might have been contrary to binding precedent. See
Chaudhry, 751 F.3d at 1105; see also Erickson v. Camarillo, 2017 WL 2335659 (D. Ariz.
May 30, 2017); Ostling v. City of Bainbridge Is., 872 F. Supp. 2d 1117, 1125-27 (W.D.
Wash. 2012). The Court therefore VACATES the portions of the Minute Order entered
April 26, 2019, docket no. 148, limiting the damages that are recoverable in the survival
action, i.e., the last clause of Paragraph 1(a) and the related language in Paragraph 2(a).
The portions of defendants’ motions for summary judgment in which they assert that
RCW 4.20.046(1) operates to prohibit non-economic damages as to the § 1983 claim are
DEFERRED, and counsel shall be prepared to address this issue at oral argument on
May 16, 2019, at 9:00 a.m.

8
(3)
9 record.
10

The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 8th day of May, 2019.

11

William M. McCool
Clerk

12

s/Karen Dews
Deputy Clerk

13
14
15
16
17
18
19
20
21
22
23
MINUTE ORDER - 2