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)

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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

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