Daniels v. Davis et al

Filing 71

ORDER granting 58 Defendant Whinnery's Motion for Summary Judgment. Plaintiff's Claims are Dismissed With Prejudice. Any other pending motions are Denied as Moot. Order signed by Judge Robert J. Bryan for Ronald B. Leighton. (order mailed to plaintiff)(JAB)

1 2 3 4 5 6 7 8 9 10 11 SHIRLEY O DANIELS, 12 Plaintiff, 13 v. 14 JOHN S DAVIS, et al. 15 Defendants. 16 17 18 19 Defendants' Motion for Summary Judgment [Dkt. #45]. The bulk of Plaintiff's allegations, and a 20 21 22 23 24 25 26 recitation of the evidence considered by the court, is outlined in that Order. However, Plaintiff's allegations about, and claims against, Defendant Whinnery were not addressed in that Order. Whinnery was Plaintiff's neighbor. He is not alleged to be a state actor or employee, or to have otherwise participated in any way in the investigation of Plaintiff Daniels, or in the process which led to her losing her dental license. Instead, Plaintiff Daniels claims that Whinnery permitted the Dental Quality Assurance Commission (DQAC) personnel to use his THIS MATTER is before the Court on Defendant Carl Whinnery's Motion for Summary Judgment [Dkt. #58]. This case is the subject of a prior Order Granting the majority of the State ORDER GRANTING DEFENDANT WHINNERY'S MOTION FOR SUMMARY JUDGMENT [Dkt. # 58] NO. 3:10-cv-05316RBL UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

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property and his Recreational Vehicle as a base from which to conduct "terrorist activities," specifically to spy on her and to steal from her. Presumably, this would have occurred prior to the search and seizure which ultimately led to this litigation, which allegedly occurred on July 11, 2006. This action was filed in May 2010.

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Neither Plaintiff's Response [Dkt. #69], nor any other evidence in the record, provides 20 21 22 23 24 25 26
Nor has Plaintiff provided any legal support for the claim that permitting the DQAC to use his property is somehow actionable.
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Defendant Whinnery moves to dismiss for failure to state a claim, or alternatively, for summary judgment. The Court will focus on the Summary Judgment aspect of the Motion. Whinnery's Motion is based on Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317 (1986). Under these authorities, a moving party without the ultimate burden of persuasion at trial is entitled to summary judgment when it shows that the non-moving party has not submitted evidence of an essential element of her ultimate burden of persuasion. A defendant, can, in other words, "put the Plaintiff to her proof," and if she cannot respond, summary judgment is required. Whinnery argues that Plaintiff Daniels cannot meet her initial burden of proof on any element of any of her claims against him. He argues that there is literally no evidence supporting the allegations, and that any claim is barred by the applicable three year limitations period in any event.

the required evidentiary support for Plaintiff's claims1 against Whinnery. In her Response, Plaintiff argues that it is not sufficient for Whinnery to simply claim she cannot prove her case. This is erroneous as a matter of law. She also suggests that additional discovery would permit her to explore whether Whinnery had unexplained sources of income during the relevant

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period. She also claims that she is aware of neighbors that "knew what was going on." This speculative, inadmissible evidence is not sufficient to warrant another extension of the pending Summary Judgment Motion, and it is not sufficient to defeat the Defendant's Motion. The Plaintiff cannot meet her Summary Judgment burden of demonstrating that Whinnery

5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Defendant Whinnery's Motion for Summary Judgment [Dkt. #58] is therefore GRANTED, and Plaintiff's claims against defendant Whinnery are DISMISSED WITH PREJUDICE. Any other pending Motions are DENIED as moot. IT IS SO ORDERED. DATED this 6th day of April, 2011. actually engaged in any of the "terrorist activities" she alleges. Even if she had, the activities necessarily occurred more than three years before she filed this action. As a result, they are time barred. See 42 U.S.C §1983; RK Venture, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002) (§1983 actions are subject to three year limitations period).

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ROBERT J. BRYAN For Ronald B. Leighton United States District Judge

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