Firey v. Lewis County et al

Filing 32

ORDER denying 13 Plaintiff's Motion for Summary Judgment; granting 21 Defendant Lewis County's Motion for Judgment on the Pleadings; granting 24 Defendant DeLeo's Motion for Judgment on the Pleadings; granting 28 Defendant Rodrigues's Motion for Judgment on the Pleadings; all of Plaintiff's claims are DISMISSED WITH PREJUDICE and without leave to amend; signed by Judge Ronald B. Leighton.(DN) Modified on 9/22/2017 (DN). (cc to pltf)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CASE NO. C17-5473RBL

NINA M FIREY,
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Plaintiff,
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ORDER

v.
LEWIS COUNTY, et al.,

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Defendants.

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THIS MATTER is before the Court on the following motions: pro se Plaintiff Firey’s

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Motion for Summary Judgment [Dkt. #13]; Defendant Lewis County’s Motion for Judgment on

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the Pleadings [Dkt. #21]; Defendant DeLeo’s Motion for Judgment on the Pleadings [Dkt. # 24]

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and Defendant Rodrigues’s Motion for Judgment on the Pleadings [Dkt. # 28]. The case arises

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from a prior Lewis County Superior Court construction defect litigation. Firey sued ten

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defendants, including five contractors she had hired to renovate a home she purchased at

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foreclosure. Defendants DeLeo and Rodrigues represented two of the builders1.

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Rodrigues represented the first contractor on the job, K&T. Firey fired K&T because its hourly rate was excessive.
She then hired Crown Mobile Homes, which worked on the home for ten days before leaving because it was “too
busy.” Exhibit A to Firey’s complaint [Dkt. 1-1] alleges that DeLeo represented Crown. These contractors both
worked on the home in 2011, and she sued that year.

ORDER - 1

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Firey lost on summary judgment, and she appealed. The Court of Appeals affirmed. See

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Firey v Orozco, 190 Wash.App 1025 (2015). Firey tried to appeal to the Washington Supreme

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Court, but her petition for discretionary review was denied.

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In June 2016, Firey sued two of the underlying defendants’ attorneys, alleging they had

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violated a variety of Rules of Professional Conduct, promoted perjury, committed fraud on the

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court, and otherwise violated her constitutional rights. She claims the defendant attorneys’ clients

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and experts lied, and that that is why she lost. Firey also sued Lewis County, complaining about

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a number of the Superior Court’s decisions.

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Firey now seeks summary judgment, asserting that her complaint and documents

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establish that she is entitled to judgment as a matter of law. Each Defendant seeks judgment on

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the pleadings2. The attorneys argue that Firey’s claims are not actionable as a matter of law

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because neither the perjury statute nor the RPCs give rise to a private cause of action. They claim

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that because her “fraud” claims are in effect an appeal of the state court case she has already

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conclusively lost, they are barred by Rooker Feldman. And they argue that because they are not

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state actors as a matter of law, Firey’s § 1983 constitutional claims against them do not and

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cannot state a plausible claim.

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The County argues that the Superior Court is a state entity, not a county one, and that the

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state would be the proper defendant (if the claims were viable). It also relies on Rooker Feldman,

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but it argues primarily that the court and its staff are entitled to absolute judicial immunity.

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DeLeo’s Motion is noted for September 29, and Rodrigues’s is noted for October 6. But Firey has already
responded to both Motions [Dkt. #31] and the Court need not await the defendants’ reply to determine the motions.

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A. Standards for Motions for Judgment on the Pleadings
Dismissal under Rule 12(b)(6) may be based on either the lack of a cognizable legal

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

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

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facts to state a claim for relief that is plausible on its face. See Aschcroft v. Iqbal, 129 S. Ct.

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1937, 1949 (2009). A claim has “facial plausibility” when the party seeking relief “pleads factual

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

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

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conclusory allegations of law and unwarranted inferences will not defeat a Rule 12(c) motion.

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Vazquez v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff’s obligation to provide the ‘grounds’

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of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do. Factual allegations must be enough to

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raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

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(2007) (citations and footnotes omitted). This requires a plaintiff to plead “more than an

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unadorned, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 129 S. Ct. at 1949 (citing

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Twombly).

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Although Iqbal establishes the standard for deciding a Rule 12(b)(6) motion, Rule 12(c)

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is “functionally identical” to Rule 12(b)(6) and that “the same standard of review” applies to

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motions brought under either rule. Cafasso, U.S. ex rel. v. General Dynamics C4 Systems, Inc.,

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647 F.3d 1047 (9th Cir. 2011), citing Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192

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(9th Cir.1989); see also Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (applying Iqbal to

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a Rule 12(c) motion).

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

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amend the pleading was made, unless it determines that the pleading could not possibly be cured

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by the allegation of other facts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242,

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247 (9th Cir. 1990). However, where the facts are not in dispute, and the sole issue is whether

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there is liability as a matter of substantive law, the court may deny leave to amend. Albrecht v.

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

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A pro se plaintiff’s complaint is to be construed liberally, but like any other complaint it

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must nevertheless contain factual assertions sufficient to support a facially plausible claim for

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relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A

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claim for relief is facially plausible when “the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

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Iqbal, 556 U.S. at 678.

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B. Defendant Attorneys’ Motions.

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DeLeo and Rodrigues argue that Firey’s “perjury” and “RPC” violation claims are not

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plausible, and that she cannot make them so by any conceivable amendment. They argue it is

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well-settled that “no action lies to recover damages caused by perjury, false swearing, and

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subornation of perjury or an attempt to suborn perjury.” W.G. Platts, Inc. v. Platts, 73 Wn.2d

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434, 440 (1968). And while perjury is a crime, it is not one that gives rise to a private right of

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action for damages. RCW 9A.72.020. Nor, they claim, can Firey maintain an action for claimed

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violations of the Rules of Professional Conduct; the exclusive remedy for such violations is

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disciplinary action by the Bar. See Hetzel v. Parks, 93 Wn. App. 929, 935 (1999).

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Firey’s response suggests that she is not asserting these violations as stand-alone claims,
but instead that she claims these actions violated her constitutional rights. Those claims are

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discussed below. But the attorney defendants’ claim that the perjury and RPC claims against

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them are fatally flawed is correct, and those claims are DISMISSED with prejudice and without

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leave to amend.

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This Court cannot and will not review or reverse decisions made in state court. The

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Rooker-Feldman doctrine precludes “cases brought by state-court losers complaining of injuries

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caused by state-court judgments . . . and inviting district court review and rejection of those

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judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S. Ct. 1517,

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1521, 161 L. Ed. 2d 454 (2005). [W]hen a losing plaintiff in state court brings a suit in federal

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district court asserting as legal wrongs the allegedly erroneous legal rulings of the state court and

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seeks to vacate or set aside the judgment of that court, the federal suit is a forbidden de facto

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appeal. Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir. 2003); Carmona v. Carmona, 603 F.3d 1041,

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1050 (9th Cir. 2008).

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The attorneys argue that Firey’s “fraud” claims are in fact an effort to undo what the state

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court did. Indeed, she seeks a reversal of those final determinations in her claim for relief. Firey

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claims to rely on “extrinsic fraud,” which the defendants concede may be actionable

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notwithstanding Rooker Feldman. But it is clear that the conduct she describes as fraud was not

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extrinsic to the case; she specifically complained to the Court about the attorney defendants’

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“fraudulent” conduct (lies, perjury) [Dkt. #1 at 3], and she now claims that the Superior Court

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Judge was a party to the fraud.

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Firey’s fraud claims3 against the attorneys are a de facto appeal of the adverse state court

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decisions, which are final. This Court cannot grant her the relief she seeks, and this claim too is

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DISMISSED with prejudice and without leave to amend.

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The attorney defendants argue that Firey’s § 1983 claims are flawed for a number of

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reasons, including particularly that they are not state actors as a matter of law; they were and are

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private attorneys representing private clients.

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A plaintiff cannot assert a 42 U.S.C. § 1983 claim against any defendant who is not a

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state actor. See West v. Atkins, 487 U.S. 42, 48 (1988). This determination is made using a two-

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part test: (1) “the deprivation must . . . be caused by the exercise of some right or a privilege

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created by the government or a rule of conduct imposed by the government;” and (2) “the party

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charged with the deprivation must be a person who may fairly be said to be a governmental

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actor.” Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999)

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(emphasis added).

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Because the defendant attorneys are not state actors, they cannot, as a matter of law,

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infringe upon Firey’s constitutional rights. Firey’s § 1983 claims against the attorney defendants

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are fatally flawed and she cannot remedy the defect through amendment. They are DISMISSED

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with prejudice and without leave to amend.

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Finally, the attorney defendants argue that the rest of Firey’s constitutional claims (§§

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1981, 1982, 1985, 1988) fail because she has not pled, and apparently cannot plead, that she is a

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member of a protected class. Firey claims that the constitution applies to everyone. It does, but

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These claims are also barred by RCW 4.16.080(4)’s three year limitations period; she sued more than three years
after the Superior Court granted summary judgment.

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she has not and cannot assert a plausible claim under those provisions. These claims too are

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DISMISSED, with prejudice and without leave to amend.
The defendant attorneys’ motions for judgment on the pleadings are GRANTED and

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Firey’s claims against them are DISMISSED with prejudice and without leave to amend.

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C. Lewis County’s Motion for Judgment on the Pleadings.
Lewis County argues primarily that Firey’s claims are asserted against the wrong party; it

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is a state court, not a county court. This is true, but it is not the major flaw in her claims: even if

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she sued the state for the state court judge’s decisions, the judge would still be entitled to judicial

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immunity. Lewis County also makes this argument, and the Rooker Feldman argument discussed

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above.
A litigant cannot sue the judge or the court presiding over her case in federal court (or

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anywhere else) for ruling against her. See Pierson v Ray, 386 U.S. 547, 553-54 (1967); Stump v.

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Sparkman, 435 U.S. 349, 355-56 (1978) (Judges enjoy absolute judicial immunity from civil suit

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for judicial acts taken within the scope of their jurisdiction). The Clerk is similarly entitled to

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quasi-judicial immunity from all such claims. Mireles v. Waco, 502 U.S. 9 (1991); Ashelman v.

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Pope, 793 F.2d 1072, 1074 (9th Cir. 1986); Giampa v. Duckworth, 586 F. App’x 284 (2014)

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(clerk has quasi-judicial immunity). If and to the extent Firey sues the Lewis County prosecutor

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for failing to bring criminal charges, the prosecutor is also cloaked in immunity. See Imbler v.

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Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976).

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Firey’s claims against Lewis County are fatally flawed for each of these reasons. She

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cannot amend her pleading to assert a plausible claim, as a matter of law. The County’s Motion

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for Judgment on the Pleadings is GRANTED and all of her claims against it are DISMISSED

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with prejudice and without leave to amend.

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ORDER - 7

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D. Firey’s Motion for Summary Judgment
Summary judgment is proper “if the pleadings, the discovery and disclosure materials on

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file, and any affidavits show that there is no genuine issue as to any material fact and that the

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movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). In determining whether

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an issue of fact exists, the Court must view all evidence in the light most favorable to the

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nonmoving party and draw all reasonable inferences in that party’s favor. Anderson Liberty

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Lobby, Inc., 477 U.S. 242, 248-50 (1986); Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir. 1996).

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A genuine issue of material fact exists where there is sufficient evidence for a reasonable

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factfinder to find for the nonmoving party. Anderson, 477 U.S. at 248. The inquiry is “whether

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the evidence presents a sufficient disagreement to require submission to a jury or whether it is so

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one-sided that one party must prevail as a matter of law.” Id. at 251-52. The moving party bears

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the initial burden of showing that there is no evidence which supports an element essential to the

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nonmovant’s claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the movant has

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met this burden, the nonmoving party then must show that there is a genuine issue for trial.

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Anderson, 477 U.S. at 250. If the nonmoving party fails to establish the existence of a genuine

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issue of material fact, “the moving party is entitled to judgment as a matter of law.” Celotex, 477

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U.S. at 323-24.

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Plaintiff Firey’s Motion is moot in light of the determinations above. But even if the

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defendants had not moved, Firey has not demonstrated that she is entitled to judgment as a

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matter of law against this standard. She has simply stated that various things were lies or fraud or

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violations. Conclusory claims are not enough to defeat summary judgment, and they certainly are

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not enough to obtain a summary judgment. Firey’s Motion is DENIED.
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ORDER - 8

None of Firey’s claims against any of the defendants in this case are plausible and they

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cannot be cured by amendment. They are DISMISSED with prejudice and without leave to

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amend.

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IT IS SO ORDERED.

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Dated this 22nd day of September, 2017.

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A

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Ronald B. Leighton
United States District Judge

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ORDER - 9