NIKKOLAS WREN KENNETH LOOKABILL, FRANK WESCOM, JR., parent and as personal representative of the Estate of NIKKOLAS LOOKABILL, deceased, and GAGE WESCOM, Plaintiffs,
CITY OF VANCOUVER, Vancouver Police Officers FRANKLIN N. GOMEZ, SERGEANT JOHN DARREN SCHULTZ, GERARDO GUTIERREZ; and DOES 1-5 inclusive, Defendants.
ORDER ON DEFENDANTS' JOINT MOTION FOR SUMMARY JUDGMENT
ROBERT J. BRYAN, District Judge.
This matter comes before the Court on Defendants' Joint Motion for Summary Judgment Re: 1) Lack of Standing, 2) ADA Claims, and 3) State Law Claims. Dkt. 18. The Court has reviewed the pleadings filed regarding the motion and the remaining file.
This case arises from a September 7, 2010 police officer involved shooting that resulted in the death of military veteran Nikkolas Lookabill, who suffered from post traumatic stress disorder. Dkt. 13. Plaintiffs bring constitutional claims pursuant to 42 U.S.C. § 1983, claims under the Americans with Disabilities Act ("ADA"), and claims under state law. Id.
I. FACTS AND PROCEDURAL HISTORY
A. BACKGROUND FACTS
According to the Amended Complaint, on September 7, 2010, Nikkolas Lookabill, a military veteran of Operation Iraqi Freedom who had been suffering from a post-traumatic mental illness, was walking south along Fruit Valley Road from N.W. 31st Street in Vancouver, Washington. Dkt. 13, at 4. Mr. Lookabill had a handgun. Id. He got into an argument, and the police were called. Id., at 5. City of Vancouver police officers responded, and Mr. Lookabill was shot. Id., at 13.
It is undisputed that Mr. Lookabill was not married, had no children, and no one relied upon him for financial support. Plaintiff Frank Wescom, Jr. is Mr. Lookabill's former stepfather and Plaintiff Gage Wescom, who was born in 1991, is Mr. Lookabill's half-brother. Dkt. 13.
B. PROCEDURAL HISTORY
On April 14, 2013, Frank Wescom, Jr., filed a Claim for Damages with Clark County's Risk Management under RCW 4.96.020. Dkt. 20.
On May 29, 2013, Plaintiffs filed a complaint in federal court regarding this matter. Nikkolas Wren Kenneth Lookabill, et al. v. City of Vancouver, Western District of Washington case number 13-5408 RJB, Dkt. 1. It was voluntarily dismissed without prejudice (Dkt. 8) and a minute order closing the case was entered (Dkt. 9). Nikkolas Wren Kenneth Lookabill, et al. v. City of Vancouver, Western District of Washington case number 13-5408 RJB.
Plaintiffs refiled the case on June 11, 2013. Nikkolas Wren Kenneth Lookabill, et al. v. City of Vancouver, Western District of Washington case number 13-5408 BHS. The case was initially assigned to U.S. District Court Judge Benjamin Settle, and reassigned to this Court on June 27, 2013.
On August 12, 2013, Plaintiff Frank Wescom, Jr. filed a Petition for Order Appointing Personal Representative in King County Superior Court. Dkt. 25. Frank Wescom, Jr. also filed an Oath of Personal Representative. Dkt. 30-2. On August 13, 2013, King County Superior Court granted the petition and Frank Wescom, Jr. was appointed as personal representative to decedent Nikkolas Wren Kenneth Lookabill's estate. Dkt. 25, at 5-6.
On August 20, 2013, Plaintiffs filed an Amended Complaint. Dkt. 13. Defendants filed their Answers to the Amended Complaint on September 3, 2013 (Dkts. 14 and 15) and filed Amended Answers to the Amended Complaint on September 12, 2013 (Dkts. 16 and 17).
The Joint Status Report is due on November 5, 2013. Dkt. 23. No discovery has occurred. Dkt. 24.
C. PENDING MOTION
In their motion for summary judgment, the Defendants argue that all federal claims should be dismissed because there is no personal representative to pursue the claims of Nikkolas Lookabill and neither Frank Wescom nor Gage Wescom can sue in their individual capacities. Dkts. 18 and 26. The Defendants also argue that the Plaintiffs fail to state a claim on which relief can be granted regarding their Americans with Disabilities Act claim. Id. The Defendants argue that the Plaintiffs' state law claims should be dismissed because there is no personal representative authorized to pursue them and because the named plaintiffs were not financially dependent on Nikkolas Lookabill. Id. Defendants move for dismissal of the wrongful death claim pursuant to RCW 4.20.010, et. seq.; the"right of survivorship" claim RCW 4.20.046; and "respondeat superior" against the City of Vancouver arguing that they are not really separate theories of liability, but identify either who can recover, or against whom recovery may be had, if negligence and/or assault are proven. Dkt. 18. Defendants also argue that the state law claims should be dismissed because they are barred by the statute of limitations and because no tort claim was filed as required by RCW 4.96.020(4). Id.
Plaintiffs respond and argue that the motion for summary judgment should be denied because Frank Wescom, Jr. was properly appointed as the personal representative of the estate of Mr. Lookabill. Dkt. 24. Plaintiffs argue that Plaintiff Gage Wescom and Frank Wescom, Jr. (personally) can factually state a claim under 42 U.S.C. § 1983 for a"liberty claim under the 14th Amendment, " and"association" under the First Amendment; Plaintiffs move the Court to allow further amendment of their complaint to add a First Amendment claim on behalf of Gage Wescom and Frank Wescom, Jr. Id. Plaintiffs argue their claim under the ADA should not be dismissed because they are not alleging a reasonable accommodation theory, but are asserting a "wrongful arrest" theory. Id. That is, that officers here attempted to arrest Mr. Lookabill"because they misperceived the effects of that disability as criminal activity." Id. Plaintiffs argue that their state law claims should not be dismissed because when Frank Wescom filed his tort claim with the City of Vancouver, it was on notice of the claims raised here and the claim should be liberally construed to achieve justice. Id.
A. SUMMARY JUDGMENT - STANDARD
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)(nonmoving party must present specific, significant probative evidence, not simply"some metaphysical doubt."). See also Fed.R.Civ.P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).
The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at triale.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on ...