Enquist v. Conger et al

Filing 22

ORDER granting 15 Motion to Dismiss for Failure to State a Claim by Judge Benjamin H. Settle. Plaintiff shall file amended complaint by 6/23/2017 or case will be dismissed. (TG; cc mailed to plaintiff)

1
2
3

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

4
5

GERALD D. ENQUIST,
6

Plaintiff,
v.

7
8

CASE NO. C17-5091 BHS

ANDRIA SHAW CONGER, et al.,

ORDER GRANTING
DEFENDANTS’ MOTION TO
DISMISS AND GRANTING
PLAINTIFF LEAVE TO AMEND

Defendants.

9
10

This matter comes before the Court on Defendants Andria Shaw Conger, Paul

11
12

Pastor, and Pierce County Sheriff’s Department’s (“Defendants”) motion to dismiss (Dkt.

13

15). The Court has considered the pleadings filed in support of and in opposition to the

14

motion and the remainder of the file and hereby grants the motion for the reasons stated

15

herein.
I.

16

PROCEDURAL HISTORY

17

On February 7, 2017, Plaintiff Gerald Enquist (“Enquist”) filed a motion to

18

proceed in forma pauperis and a proposed complaint. Id. Enquist alleges that, as a result

19

of a 1976 arrest and conviction, he must register with the Pierce County Sex/Kidnapping

20

Offender Registration Unit (“SKORU”). Id. He claims that he must report on a weekly

21

basis because he is a transient, while similarly situated individuals with a fixed address

22

must only contact SKORU once or if they move to a new address. Id. Enquist asserts

ORDER - 1

1

that RCW 9A.44.130 violates his constitutional right to travel, due process rights, and

2

equal protection rights. Id.

3
4

On April 11, 2017, Defendants filed a motion to dismiss. Dkt. 15. On April 26,
2017, Enquist responded. Dkt. 17. On May 5, 2017, Defendants replied. Dkt. 21-1.

5

II.

6

FACTUAL BACKGROUND

On August 1, 2016, Enquist contacted SKORU requesting permission to travel

7

outside of Pierce County. Although not clearly alleged in his complaint, Enquist has

8

provided additional information alleging that Defendant Conger told Enquist that, before

9

he could travel outside of Pierce County, Enquist must provide the dates and addresses of

10

where he would be staying in advance and that traveling without providing this

11

information would result in a felony warrant for his arrest. Dkt. 17 at 4.

12
13

III.
A.

DISCUSSION

Standard

14

Motions to dismiss brought under Fed. R. Civ. P. 12(b)(6) may be based on either

15

the lack of a cognizable legal theory or the absence of sufficient facts alleged under such

16

a theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Material

17

allegations are taken as admitted and the complaint is construed in the plaintiff’s favor.

18

Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive a motion to

19

dismiss, the complaint does not require detailed factual allegations but must provide the

20

grounds for entitlement to relief and not merely a “formulaic recitation” of the elements

21

of a cause of action. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff

22

ORDER - 2

1

must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at

2

570.

3

B.

4

Facial Challenge
Defendants argue they are not the proper parties to defend a facial challenge to

5

RCW § 9A.44.130(b)(6). Dkt. 15 at 5. The Court agrees to the extent that Enquist

6

alleges any enforcement of the statute is unconstitutional. Thus, pursuant to Fed. R. Civ.

7

P. 5.1(a), the attorney general must be notified of this matter. If Enquist asserts a facial

8

challenge in an amended complaint, the Court will direct the Clerk to notify the

9

Washington attorney general.

10

C.

11

Pierce County Sheriff’s Department
Defendants argue that the Pierce County Sheriff’s Department is not an entity

12

capable of being sued. Dkt. 15 at 9. The Court agrees and grants Enquist leave to amend

13

to remove the Sheriff’s Department and add Piece County as a party.

14

D.

15

Official Capacity
Defendants contend that Defendants Pastor and Conger may not be sued in their

16

official capacity and that Enquist fails to allege facts to support a claim that either

17

defendant acted in his or her individual capacity. Dkt. 15 at 10. Based on the complaint,

18

the Court agrees. Enquist, however, asserts that he intended to sue them in their

19

individual capacities. Dkt. 17 at 8. Because the deficiencies in the complaint may be

20

cured by amendment, the Court grants Enquist leave to amend his complaint.

21
22

ORDER - 3

1

E.

2

Qualified Immunity
Without an operative complaint, the Court declines to review the issue of qualified

3

immunity. Thus, the Court denies this portion of the motion without prejudice.

4

F.

Jurisdiction

5

The parties should also consider Enquist’s standing to assert the as-applied

6

challenge to RCW 9A.44.130. While the parties are more familiar with the statute than

7

the Court, it appears that Enquist may travel wherever he wishes as long as he complies

8

with the registration requirement of notifying the sheriff of the county he travels to. Any

9

“threat” that failure to register would result in a felony arrest warrant appears to be valid

10

enforcement of the statute as opposed to a violation of his constitutional rights. If so,

11

Enquist would lack standing because there is no constitutional violation and no injury.

12

Moreover, it does not appear that he is entitled to any “preapproved” vacation or

13

officially approved relief from his reporting requirements. Thus, the Court is concerned

14

that it may be engaging in an advisory opinion. See, e.g., Westlands Water Dist.

15

Distribution Dist. v. Nat. Res. Def. Council, Inc., 276 F. Supp. 2d 1046, 1051 (E.D. Cal.

16

2003) (“the advisory opinion prohibition stands at the “core” of Article III, and animates

17

the justiciability doctrines of standing, ripeness, and mootness”).

18
19

IV.

ORDER

Therefore, it is hereby ORDERED that Defendants’ motion to dismiss (Dkt. 15) is

20

GRANTED and Enquist is GRANTED leave to file an amended complaint correcting

21

the deficiencies identified above. Enquist shall file an amended complaint no later than

22

ORDER - 4

1

June 23, 2017. Failure to do so or otherwise respond will result in DISMISSAL of his

2

claims with prejudice and without further order of the Court.

3

Dated this 1st day of June, 2017.

A

4
5

BENJAMIN H. SETTLE
United States District Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

ORDER - 5