Berry et al v. Pierce County

Filing 13

ORDER by Judge Benjamin H. Settle granting 6 Motion to Dismiss for Failure to State a Claim. Plaintiff is granted leave to amend complaint by 2/3/2017. (TG)

Download PDF
1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 5 6 7 LAURA BERRY and STEVE BERRY, 8 Plaintiffs, 9 10 v. PIERCE COUNTY, 11 Defendant. CASE NO. C16-5868BHS ORDER GRANTING DEFENDANT’S MOTION TO DISMISS AND GRANTING PLAINTIFFS’ LEAVE TO AMEND THE COMPLAINT 12 13 This matter comes before the Court on Defendant Pierce County’s (“County”) 14 motion to dismiss for failure to state a claim (Dkt. 6). The Court has considered the 15 pleadings filed in support of and in opposition to the motion and the remainder of the file 16 and hereby grants the motion for the reasons stated herein. 17 18 I. PROCEDURAL HISTORY On September 1, 2016, Plaintiffs Laura and Steve Berry (“Berrys”) filed a 19 complaint against the County in Thurston County Superior Court for the State of 20 Washington. Dkt. 1, Exh. A (“Comp.”). 21 On October 11, 2016, the County removed the matter to this Court. Dkt. 1. 22 ORDER - 1 1 On October 18, 2016, the County filed the motion to dismiss. Dkt. 6. On 2 November 28, 2016, the Berrys responded. Dkt. 11. On December 2, 2016, the County 3 replied. Dkt. 12. 4 5 II. FACTUAL ALLEGATIONS Mr. Berry is a corrections officer at the County Jail. Comp., ¶ 3.1. On December 6 29, 2014, inmate Aaron Leigh filed a complaint against Mr. Berry alleging that Mr. Berry 7 assaulted him. Id. The Berrys allege that “Mr. Leigh has a violent history, including the 8 shooting of a police officer, numerous drug and firearm related offenses and numerous 9 threats to kill law enforcement officers and their families.” Id., ¶ 3.2. 10 Subsequent to the dismissal of the suit against Mr. Berry, Mr. Leigh filed a public 11 records request. Id., ¶ 3.3. Although Mr. Berry alleges that he was informed of the 12 request as well as the fact that he would be provided with an opportunity to review any 13 material before it was produced, the County produced material to Mr. Leigh without 14 allowing Mr. Berry any review. Id., ¶¶ 3.9, 3.10. The Berrys allege further that: 15 16 17 18 19 On January 25, 2016, Plaintiff Stephen Berry was provided with a copy of what had been released to Mr. Leigh. Within a short time, Plaintiff Stephen Berry discovered that not only had his private information been released to Mr. Leigh, but also the private information of his wife, Plaintiff Laura Berry. Included in the private information were such disclosures as their private residence address, social security numbers, Driver’s License Numbers, home and work phone numbers, and places of employment for both. All such information had been delivered to such address as Mr. Aaron Leigh had directed. 20 Id., ¶ 3.11. In producing this information, the Berrys assert that the County violated state 21 and local statutes and the Berrys’ federal and state constitutional rights. Id., ¶ 5.1. 22 ORDER - 2 1 III. DISCUSSION 2 Motions to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil 3 Procedure may be based on either the lack of a cognizable legal theory or the absence of 4 sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Department, 5 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the 6 complaint is construed in the plaintiff’s favor. Keniston v. Roberts, 717 F.2d 1295, 1301 7 (9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed 8 factual allegations but must provide the grounds for entitlement to relief and not merely a 9 “formulaic recitation” of the elements of a cause of action. Bell Atlantic Corp. v. 10 Twombly, 127 S. Ct. 1955, 1965 (2007). Plaintiffs must allege “enough facts to state a 11 claim to relief that is plausible on its face.” Id. at 1974. When deciding a motion to 12 dismiss, the Court’s consideration is limited to the pleadings. Fed. R. Civ. P. 12(d). 13 In this case, the Court agrees with the County that the Berrys’ claims fails to 14 identify sufficient facts to state claims. Regarding the federal claim, the Berrys assert 15 that the “release of Plaintiffs’ confidential information by Defendant acting under color 16 of law constitutes a deprivation of Plaintiffs’ right of privacy, in violation of 42 USC 17 1983.” Comp., ¶ 5.1(h). This claim fails for numerous reasons, including the fact that 18 the County must act through an individual employee. See, e.g., Hanigan v. City of Kent, 19 C06-176JLR, 2006 WL 3544603, at *6 (W.D. Wash. Dec. 8, 2006). The Berrys may 20 only recover from the County if their injury was inflicted pursuant to city policy, 21 regulation, custom, or usage. See Monell v. Dept. of Soc. Serv. of City of N.Y., 436 U.S. 22 658, 690–91 (1978). The Berrys’ claim does not include sufficient allegations to meet ORDER - 3 1 even these threadbare elements of their claim. Moreover, the Berrys’ brief argues a state2 created danger claim, Dkt. 11 at 15, but the complaint is silent on this issue. Thus, the 3 County is entitled to dismissal of the federal claim. 4 Regarding the state law torts, the Berrys’ claims, as currently stated, also fail. The 5 Court agrees with the County that the complaint alleges nothing more than a negligent 6 release of information. On the other hand, the Court agrees with the Berrys that 7 discovery may uncover additional information to support these intentional torts and that 8 the Berrys are not “privy” to the “inner workings of the county’s record review and 9 disclosure mechanisms . . . .” Dkt. 11 at 15. Complaints, however, must either allege 10 sufficient information to state valid claims or should be amended once discovery 11 establishes the basis for additional claims. If the Berrys believe they have sufficient 12 information to allege an intentional act by a County employee, then they should allege 13 such an act. Otherwise, they should proceed on a negligence theory. Accordingly, the 14 Berrys’ claims for the intentional torts of invasion of privacy and outrage fail to state a 15 claim. 16 Regarding the state and county statutory violations, the County argues that it is 17 entitled to immunity. No cause of action exists against the County as long as it acted in 18 “good faith” in attempting to comply with the public records act. RCW 42.56.060. The 19 County argues that the Court should consider and analyze this immunity similar to 20 federal qualified immunity. Dkt. 12 at 1–4. While the Court has doubts that the 21 Washington legislature intended state statutory immunity to be similar to federal 22 constitutional immunities, the County raised the majority of these arguments in its reply ORDER - 4 1 brief, which precluded an adequate response from the Berrys. Regardless, the issue need 2 not be addressed at this time because the Berrys failed to allege any breach of good faith 3 or that the County did not “attempt” to comply with the statute. Accordingly, the Court 4 grants the County’s motion on this issue. 5 Regarding the state constitutional claim, the Berrys concede that no cause of 6 action exists. Dkt. 11 at 10. Thus, the Court grants the County’s motion on this claim. 7 Finally, “dismissal is proper only if it is absolutely clear that the deficiencies of 8 the complaint could not be cured by amendment.” Broughton v. Cutter Labs., 622 F.2d 9 458, 460 (9th Cir. 1980). The only claim that could absolutely not be cured by 10 amendment is the state constitutional claim. Thus, the Court dismisses that claim with 11 prejudice. Otherwise, the Court grants the Berrys leave to amend their complaint. 12 13 IV. ORDER Therefore, it is hereby ORDERED that County’s motion to dismiss for failure to 14 state a claim (Dkt. 6) is GRANTED and the Berrys are GRANTED leave to amend. The 15 Berrys shall file an amended complaint no later than February 3, 2017. 16 Dated this 24th day of January, 2017. A 17 18 BENJAMIN H. SETTLE United States District Judge 19 20 21 22 ORDER - 5

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?