Gomez v. Kitsap County et al

Filing 10

ORDER by Judge Benjamin H. Settle granting unopposed 8 Motion to Dismiss for Failure to State a Claim; Kitsap County Sheriff's Department terminated. (TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MARY ARLENE GOMEZ,

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Plaintiff,

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ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS

v.
KITSAP COUNTY, et al.,

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CASE NO. C17-5007BHS

Defendants.

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This matter comes before the Court on Defendant Kitsap County Sheriff

14 Department’s (the “Sheriff’s Department”) motion to dismiss (Dkt. 8). The Court has
15 considered the motion and the remainder of the file and hereby grants the motion for the
16 reasons stated herein.
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I. PROCEDURAL HISTORY
On January 6, 2017, the Defendants in this matter removed the proceedings from

19 Kitsap County Superior Court to this Court. Dkt. 1. Plaintiff Mary Arlene Gomez
20 (“Plaintiff”) has raised claims of assault, battery, outrage, negligent infliction of
21 emotional distress, excessive force, false imprisonment, negligence, and violations of 42
22 U.S.C. §§ 1983 and 1985. Dkt. 1-2 at 4–5.

ORDER - 1

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On February 1, 2017, the Sheriff’s Department moved to dismiss for failure to

2 state a claim. Dkt. 8. Plaintiff did not respond.
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II. DISCUSSION

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Motions to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil

5 Procedure may be based on either the lack of a cognizable legal theory or the absence of
6 sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Department, 901
7 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the
8 complaint is construed in the plaintiff’s favor. Keniston v. Roberts, 717 F.2d 1295, 1301
9 (9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed
10 factual allegations but must provide the grounds for entitlement to relief and not merely a
11 “formulaic recitation” of the elements of a cause of action. Bell Atlantic Corp. v.
12 Twombly, 127 S. Ct. 1955, 1965 (2007). Plaintiffs must allege “enough facts to state a
13 claim to relief that is plausible on its face.” Id. at 1974. When deciding a motion to
14 dismiss, the Court’s consideration is limited to the pleadings. Fed. R. Civ. P. 12(d).
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In this case, the Court agrees that Plaintiff fails to state a claim against the

16 Sheriff’s Department. The Sheriff’s Department is not a legal entity capable of being
17 sued under § 1983. See Monell v. Dept. of Social Servs., 436 U.S. 658, 690 (1978);
18 McCloud v. Pierce Cty. Sheriff Dep’t, 2016 WL 3675904, *5 (W.D. Wash. June 6, 2016);
19 Wright v. Clark County Sheriff’s Office, 2016 WL 1643988, *2 (W.D. Wash. April 26,
20 2016). Instead, the proper party is Kitsap County. Because the Sheriff’s Department is
21 not a party and Kitsap County is also named as a defendant, the Court dismisses the
22 Sheriff’s Department from this action.

ORDER - 2

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III. ORDER

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Therefore, it is hereby ORDERED that the Sheriff’s Department’s motion to

3 dismiss (Dkt. 8) is GRANTED and Plaintiff’s claims against the Sheriff’s Department
4 are DISMISSED.
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Dated this 28th day of February, 2017.

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A

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BENJAMIN H. SETTLE
United States District Judge

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ORDER - 3