McGregor v. Kitsap County et al

Filing 31

ORDER ON MOTION TO DISMISS, by Judge Ronald B. Leighton. The motion to dismiss [Dkt. 23] is GRANTED IN PART and DENIED IN PART. Defendant Kitsap County Sheriffs Office is DISMISSED. (DK)

HONORABLE RONALD B. LEIGHTON

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

7
8

CORINNA MCGREGOR,

CASE NO. C17-5436 RBL

9
Plaintiff,
10
11
12

ORDER ON MOTION TO DISMISS

v.
KITSAP COUNTY, et al.,
Defendants.

13
14

THIS MATTER is before the Court on Defendants’ Motion to Dismiss [Dkt. 23]. In June

15

2014, Kitsap County Sheriff’s Deputies responded to a 9-1-1 call from Plaintiff Corinna

16

McGregor’s then-husband reporting that McGregor was suicidal. Responding deputies observed

17

McGregor, who was armed with a handgun, exit the residence and walk behind a nearby

18

woodpile. McGregor was shot by Deputy Wilson Sapp during the ensuing standoff. McGregor

19

survived the encounter and now brings a lawsuit alleging various torts and constitutional

20

violations against Kitsap County, Deputy Sapp, and the current and former Kitsap County

21

Sheriffs. Defendants move to dismiss all but two of McGregor’s claims pursuant to Fed. R. Civ.

22

P. 12(b)(6), arguing that as a matter of law, McGregor cannot demonstrate she is entitled to

23

relief. The motion to dismiss is GRANTED IN PART and DENIED IN PART as follows.

24

ORDER ON MOTION TO DISMISS - 1

1

I. LEGAL STANDARD

2

Dismissal under Fed. R. Civ. P. 12(b)(6) may be based on either the lack of a cognizable

3

legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri

4

v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff’s complaint must allege

5

facts to state a claim for relief that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662,

6

678 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual

7

content that allows the court to draw the reasonable inference that the defendant is liable for the

8

misconduct alleged.” Id. Although the court must accept as true the Complaint’s well-pled facts,

9

conclusory allegations of law and unwarranted inferences will not defeat an otherwise proper

10

12(b)(6) motion to dismiss. Vazquez v. Los Angeles Cty., 487 F.3d 1246, 1249 (9th Cir. 2007);

11

Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation

12

to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,

13

and a formulaic recitation of the elements of a cause of action will not do. Factual allegations

14

must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

15

550 U.S. 544, 555 (2007) (citations and footnotes omitted). This requires a plaintiff to plead

16

“more than an unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at

17

678 (citing id.).

18

On a Rule 12(b)(6) motion, “a district court should grant leave to amend even if no

19

request to amend the pleading was made, unless it determines that the pleading could not

20

possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection

21

Serv., 911 F.2d 242, 247 (9th Cir. 1990). However, where the facts are not in dispute, and the

22

sole issue is whether there is liability as a matter of substantive law, the court may deny leave to

23

amend. Albrecht v. Lund, 845 F.2d 193, 195–96 (9th Cir. 1988).

24

ORDER ON MOTION TO DISMISS - 2

1

II. ANALYSIS
McGregor alleges five claims in the Amended Complaint: (1) a § 1983 excessive force

2
3

claim against Deputy Sapp; (2) a § 1983 deprivation of constitutional rights claim against Kitsap

4

County (Monell claim); (3) a negligence claim against Deputy Sapp; (4) a negligent hiring,

5

training, and supervision claim against Kitsap County, Sheriff Simpson, and former Sheriff

6

Boyer; and (5) a respondeat superior claim against Kitsap County. See Dkt. 8.1 Defendants argue

7

that McGregor’s claims, with the exception of the excessive force claim against Deputy Sapp

8

and the Monell claim against Kitsap County, must be dismissed as a matter of law. Dkt. 26 at 1.

9

A. The motion to dismiss is timely.

10

McGregor argues that Defendants’ motion to dismiss is untimely because it was not filed

11

within the twenty-one day window to file a responsive pleading under Fed. R. Civ. P. 12. Dkt. 24

12

at 5. McGregor’s characterization of the motion to dismiss as a responsive pleading is erroneous.

13

See Fed. R. Civ. P. 7(a) (listing the types of pleadings allowed). Because Defendants’ filed their

14

motion to dismiss prior to filing a responsive pleading, it is timely. See Fed. R. Civ. P. 12(b) (“A

15

motion asserting any of these defenses must be made before pleading if a responsive pleading is

16

allowed.”).

17

B. McGregor’s negligence claim against Deputy Sapp is plausible as pled.

18

Defendants argue that McGregor cannot establish her negligence claim because Deputy

19

Sapp had no duty as a law enforcement officer not to shoot McGregor. Dkt. 23 at 9. McGregor

20

contends that law enforcement’s assurances that she would not be harmed created a special

21
22
1

23
24

Although McGregor’s Amended Complaint names the Kitsap County Sheriff’s Office as a
defendant, McGregor now stipulates to dismiss the Sheriff’s Office as a defendant from this
lawsuit. See Dkt. 24 at 12.

ORDER ON MOTION TO DISMISS - 3

1

relationship, and that Deputy Sapp negligently breached the duty imposed by this special

2

relationship by shooting her when she emerged from behind the woodpile.

3

“As a general rule, law enforcement activities are not reachable in negligence.” Keates v.

4

City of Vancouver, 869 P.2d 88, 93 (Wash. Ct. App. 1994). The public duty doctrine recognizes

5

that the duty of officers to provide protection is normally owed to the public at large and is

6

unenforceable as to individual members of the public. Thomas v. Cannon, No. 3:15-05346 BJR,

7

2017 WL 2289081, at *14 n.7 (W.D. Wash. May 25, 2017). “An exception to the public duty

8

doctrine provides that if a ‘special relationship’ exists between the public officer and the

9

plaintiff, a duty owed to the individual may arise. [ ] Specifically, an actionable duty to provide

10

police services will arise if . . . there are explicit assurances of protection that give rise to reliance

11

on the part of the victim.” Id.; see also Hamilton v. City of Olympia, 687 F. Supp. 2d 1231, 1248

12

(W.D. Wash. Sep. 8, 2009). To create a special relationship between police officer and citizen,

13

Washington law requires direct contact setting the citizen apart from the general public, and

14

‘express assurances’ of assistance that give rise to a justifiable reliance on the part of the

15

citizen.” Beal v. City of Seattle, 954 P.2d 237, 244–45 (Wash. Ct. App. 1998). “[A]n actionable

16

duty to provide police services can arise if all these requirements are met.” Id. at 245.

17

McGregor has pled sufficient facts suggesting that she was assured that she would not be

18

harmed and could speak with her husband if she emerged from behind the wood pile unarmed.

19

Because this claim may benefit from additional factual development and argument by the parties,

20

the Court will not dismiss the negligence claim against Deputy Sapp at this early stage of the

21

litigation. Accordingly, the motion to dismiss the negligence claim against Deputy Sapp is

22

DENIED.

23
24

ORDER ON MOTION TO DISMISS - 4

1

C. McGregor’s negligent hiring, training, and supervision claim against Sheriff Simpson,
former Sheriff Boyer, and Kitsap County are fatally flawed and must be dismissed.

2
McGregor alleges that Kitsap County, Sheriff Gary Simpson, and former Sheriff Steve
3
Boyer, are liable for negligently hiring, training, and supervising Deputy Sapp. Defendants
4
contend there is no legal or factual basis to support this claim. McGregor’s claim is particularly
5
disjointed because she frames her claim in the Amended Complaint as a state law negligent
6
hiring, training, and supervision claim, see Dkt. 8 at ¶¶ 52–57 (articulating the claim in terms of
7
negligence, proximate cause, and failure to use reasonable care), but argues the claim in terms of
8
§ 1983 liability in her response to the motion to dismiss, see Dkt. 24 (alleging liability based on §
9
1983 and defendants final policy-making authority). Although McGregor conflates two different
10
causes of action, she cannot establish a viable claim under either theory.
11
12
13
14
15
16
17

1. McGregor cannot establish a state law claim for negligent hiring, training, and
supervision against Defendants because Deputy Sapp was acting within the course and
scope of his employment.
In her Amended Complaint, McGregor alleges “negligent and grossly negligent hiring,
training and supervision of employees and agents” by Sheriff Boyer, Sheriff Simpson, and
Kitsap County. Dkt. 8 at 9. This claim, however, is fatally deficient.
The Washington Court of Appeals observes,

20

[t]he causes of action for negligent hiring, retention, supervision and training are
analytically different from vicarious liability. These claims arise when the
employee is acting outside the scope of employment. They are based on the concept
that the employer’s own negligence is a wrong to the injured party, independent
from the employer’s liability for its employee’s negligence imputed by the doctrine
of respondeat superior.

21

Evans v. Tacoma Sch. Dist. No. 10, 380 P.3d 553, 564 (Wash. Ct. App. 2016) (internal citations

22

omitted). “Under Washington law, therefore, a claim for negligent hiring, training, and

23

supervision is generally improper when the employer concedes the employee’s actions occurred

18
19

24

ORDER ON MOTION TO DISMISS - 5

1

within the course and scope of employment.” LaPlant v. Snohomish Cty., 271 P.3d 254, 256–57

2

(Wash. Ct. App. 2011).

3

Defendants concede, and McGregor acknowledges that Deputy Sapp was acting within

4

the scope of his employment when McGregor was injured. See Dkt. 24 at 16 (“Defendant Sapp

5

was an agent of Kitsap County and . . . was performing police functions and carrying a firearm

6

for that purpose when he shot Plaintiff.”). Because it is undisputed that Deputy Sapp was acting

7

within the course and scope of his employment, McGregor’s claim for negligent hiring, training,

8

and supervision fails. See id. (“In Washington, a cause of action for negligent supervision

9

requires a plaintiff to show that an employee acted outside the scope of his or her employment.

10

But when an employee commits negligence within the scope of employment, a different theory

11

of liability—vicarious liability— applies”). Accordingly, the motion to dismiss this claim is

12

GRANTED.

13

2. A claim for inadequate training or supervision under § 1983 is duplicative of McGregor’s
Monell claim.

14
To the extent McGregor’s fourth claim from the Amended Complaint is actually alleging
15
a cause of action against former Sheriff Boyer, Sheriff Simpson, or Kitsap County under § 1983
16
for inadequate training or supervision, it is duplicative of her Monell claim against the County
17
and must be dismissed. Luke v. Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997) (“[I]t is no longer
18
necessary or proper to name as a defendant a particular local government officer acting in
19
official capacity. . . If only the official-capacity officer is named, it would be proper for the
20
Court upon request to dismiss the officer and substitute instead the local government entity as the
21
correct defendant.”).
22
23
24

ORDER ON MOTION TO DISMISS - 6

1

D. McGregor does not allege sufficient facts to maintain a § 1983 cause of action against
Sheriff Simpson or former Sheriff Boyer.

2
McGregor alleges that Simpson and Boyer are liable in their official capacities because
3
they had final policymaking authority and supervisory authority over Deputy Sapp and “ratified
4
the unconstitutional actions of [Deputy] Sapp.” Dkt. 24 at 5, 10–11. “Under § 1983, supervisory
5
officials are not liable for actions of subordinates under any theory of vicarious liability.”
6
Hansen v. Black, 885 F.2d 642, 645–46 (9th Cir. 1989). Thus, a supervisor is typically only
7
liable in a civil rights action for the actions of subordinates if he was personally involved in the
8
constitutional deprivation or there is a sufficient causal connection between the supervisor’s
9
wrongful conduct and the constitutional violation. Lacey v. Maricopa Cty., 693 F.3d 896, 916
10
(9th Cir. 2012) (en banc). McGregor does not allege, and there is no indication, that either
11
Sheriff Simpson or Sheriff Boyer were present or in any manner personally involved in
12
McGregor’s shooting.
13
McGregor’s argument for Simpson and Boyer’s liability based on their position as final
14
policymakers fares no better. McGregor contends “it is believed that Defendant Sheriff Boyer
15
delegated policymaking authority to [Simpson],” in his supervisory role as a Division Chief. Dkt.
16
24 at 11. But McGregor’s belief, without more, is an unwarranted inference that is insufficient to
17
withstand the motion to dismiss. Twombly, 550 U.S. at 555; Vazquez, 487 F.3d at 1249.
18
Accordingly, Sheriff Simpson and former Sheriff Boyer are DISMISSED WITH PREJUDICE
19
as defendants from this lawsuit.
20
21

E. McGregor pleads a viable respondeat superior claim based on Deputy Sapp’s
negligence.

22

McGregor brings a respondeat superior claim against Kitsap County, arguing the County

23

is “responsible for the actions of their agents and employees including [Deputy] Sapp,” Dkt. 8 at

24

10. Because McGregor alleges a plausible negligence claim against Deputy Sapp, her respondeat

ORDER ON MOTION TO DISMISS - 7

1

superior claim against Kitsap County also survives, and the motion to dismiss this claim is

2

DENIED.

3
4

III. CONCLUSION
The motion to dismiss [Dkt. 23] is GRANTED IN PART with respect to the negligent

5

hiring, training, and supervision claim and to Defendants Simpson and Boyer. The motion is

6

DENIED IN PART with respect to the negligence claim against Deputy Sapp and the

7

respondeat superior claim against Kitsap County. Pursuant to the parties’ stipulation, Defendant

8

Kitsap County Sheriff’s Office is DISMISSED from the lawsuit. McGregor’s following claims

9

remain:

10



§ 1983 excessive force claim against Deputy Sapp;

11



Monell claim against Kitsap County;

12



Negligence claim against Deputy Sapp; and

13



Respondeat superior claim against Kitsap County.

14

IT IS SO ORDERED.

15

Dated this 27th day of December, 2017.

16
17

A

18

Ronald B. Leighton
United States District Judge

19

20
21
22
23
24

ORDER ON MOTION TO DISMISS - 8