United States District Court, W.D. Washington, Seattle
ORDER ON MOTION TO DISMISS
JAMES L. ROBART, District Judge.
Before the court is Defendant Snohomish County's Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Plaintiff Marcus Ross' complaint for failure to state a claim upon which relied can be granted. (Mot. (Dkt. # 29).) The court has considered the motion, the parties' submissions filed in support of and opposition thereto, the balance of the record, and the applicable law. Being fully advised, the court GRANTS in part and DENIES in part Snohomish County's motion as explained below.
This is a civil rights case. Mr. Ross alleges that Snohomish County, unnamed Snohomish County Police Officers,  and Does 6-10 (collectively "Snohomish County") discriminated against him on the basis of his race, assaulted him, and falsely imprisoned, arrested, and maliciously prosecuted him. ( See Am. Compl. (Dkt. # 2).) Mr. Ross' allegations stem from two incidents in which he was detained by Snohomish County Police Officers.
The first incident occurred on January 19, 2010, when Mr. Ross was arrested by a Snohomish County Police Officer for violating the terms of a civil protection order. ( Id. ¶ 10.) Per the terms of the protection order, Mr. Ross was prohibited from being within 500 feet of his former wife, S.L.H. ( Id. ¶ 14.) In January 2010, however, Mr. Ross' fourand six-year-old children reported to S.L.H.'s eight-year-old child from another marriage that they had been driving with Mr. Ross looking for S.L.H.'s home. ( Id. ¶ 10.) S.L.H.'s eight-year-old child then recounted this conversation to S.L.H.'s boyfriend, who recounted it to S.L.H. ( Id. ¶ 11.) Later, S.L.H. made a report to the Snohomish County Police that Mr. Ross had violated the terms of the civil protection order. ( Id. )
An unnamed Snohomish County Sheriff Deputy followed up on S.L.H's report. The Deputy interviewed Mr. Ross' four- and six-year-old children, and the four-year-old stated that they had been near S.L.H.'s home. ( Id. ¶ 12.) The Deputy then arrested Mr. Ross at his home and took him to Snohomish County Jail, where he stayed overnight. ( Id. ¶ 13.) Mr. Ross alleges that he asked the arresting Deputy to inform him of the time, date, and location of the protection order violation, but that the Deputy refused to provide this information. ( Id. ¶ 15.) Mr. Ross also alleges that he asked the arresting Deputy to contact other local police departments to review previous false police reports by S.L.H. and that the Officer refused to do so. ( Id. )
The next day, January 20, 2010, a Snohomish County Judge affirmed the Deputy's finding of probable cause for Mr. Ross' arrest and set bail. ( Id. ¶ 17.) After he paid bail, Mr. Ross was released from the Snohomish County Jail. ( Id. ¶ 18.) Later, Mr. Ross obtained his own cell phone records, which placed his whereabouts on the date and time in question outside of the area where S.L.H.'s house is located; he submitted these records to the Snohomish County Prosecutor's Office. ( Id. ¶¶ 18-19.) Afterward, the Snohomish County Prosecutor declined to prosecute Mr. Ross for the alleged protection order violation, and also declined to prosecute S.L.H. for reporting the alleged violation to the police. ( Id. ¶ 19.)
The second incident occurred on August 19, 2011, when Mr. Ross was detained by a Snohomish County Sheriff's Deputy identified only as "J. Chelin." ( Id. ¶ 22, 25.) On that day, Snohomish County Superior Court dismissed S.L.H.'s civil protection order against Mr. Ross and ordered that Mr. Ross could pick up his children from daycare. ( Id. ) Per the Court's order, Mr. Ross went to pick up his children from daycare that afternoon. ( Id. ¶ 22.) When he arrived at the daycare, Mr. Ross called 911 to inform them that he was picking up his children pursuant to the Court's order and asked that a Snohomish County Sheriff's Deputy be sent to the daycare to make sure there was no trouble with S.L.H. ( Id. ) Before the Deputy could arrive, however, S.L.H. appeared at the daycare. ( Id. ¶ 23.) Mr. Ross again called 911 to request a deputy's assistance and to ask when a Deputy would arrive. ( Id. ¶ 24.) After Mr. Ross' second 911 call, his children arrived back at the daycare from a field trip and got into Mr. Ross' car. ( Id. ) Mr. Ross then called 911 a third time to let them know that "he had both of his children and he wanted to leave." ( Id. ) The 911 operator instructed Mr. Ross to stay at the daycare until the Deputy arrived and resolved any issues; the daycare staff also requested that Mr. Ross speak to a supervisor before leaving with his children. ( Id. )
Eventually, Snohomish County Sheriff's Deputy Chelin arrived at the daycare. Deputy Chelin asked Mr. Ross to identify himself, and when Mr. Ross did so he allegedly "immediately grabbed him by the arm [and] twist[ed] it behind his back and push[ed] him over the rear of his vehicle" and escorted Mr. Ross to the back of his squad car. ( Id. ¶¶ 26-27.) Deputy Chelin then allegedly reviewed a certified copy of the Superior Court's order that Mr. Ross had brought to the daycare, but did not release Mr. Ross. ( Id. ) Mr. Ross alleges that during his confinement in Deputy Chelin's patrol car, Deputy Chelin "refused to release [him] while yelling at him and berating him as [his] children looked on, as well as [daycare] staff, other parents picking up their children, and S.L.H." ( Id. ) Mr. Ross claims that Deputy Chelin "went out of his way to find a reason to charge Mr. Ross including measuring the distance from S.L.H.'s vehicle parked on the street to where the petitioner had been parked inside the school parking lot." ( Id. ¶ 28.)
Mr. Ross allegedly sat in the back of Deputy Chelin's patrol car for 35 minutes in handcuffs before Deputy Chelin released him. ( Id. ¶ 29.) The handcuffs allegedly "dug into [Mr. Ross'] wrist causing him great pain. ( Id. ¶ 28.) Upon Mr. Ross' release, Deputy Chelin allegedly said, "[y]ou are lucky you are not going to jail!" ( Id. ¶ 29.) Deputy Chelin also allegedly asked Mr. Ross if S.L.H. could come within 3 feet of him to speak with the children, and allegedly screamed at Mr. Ross about the meaning of protective orders when Mr. Ross refused. ( Id. ¶ 30.) Mr. Ross contends that Deputy Chelin, "acting with deliberate malice and motivated by race, sought to humiliate and torment [him] under the color of law." ( Id. ¶ 31.) He also contends that Deputy Chelin perjured himself in his police report on the incident by claiming that S.L.H. had been granted a protection order against Mr. Ross. ( Id. ¶ 32.)
Mr. Ross filed the instant lawsuit against Snohomish County on August 16, 2013, alleging state and federal claims of racial discrimination, and state claims for false arrest, malicious prosecution, outrage, and assault and battery arising from his two interactions with Snohomish County Sheriff's Deputies. ( See Compl. (Dkt. # 1).) Mr. Ross amended his complaint the same day it was filed, and his amended complaint alleges these same causes of action. ( Compare Compl.; Am. Compl.)
Snohomish County has now attempted to dismiss Mr. Ross' complaint three times. After receiving the complaint on August 19, 2013, Snohomish County initially moved to dismiss the action on the basis of improper service and failure to state a claim. (10/03/13 Mot. (Dkt. # 7).) Because Mr. Ross served Snohomish County himself, service was indeed improper under Fed.R.Civ.P. 4(c)(2), which prohibits service by a party to the case, and the court ordered service quashed on November 26, 2013, but denied Snohomish County's motion to dismiss. (11/26/13 Ord. (Dkt. # 19).) Next, Snohomish County moved to dismiss the action because Mr. Ross had failed to timely correct the service defects. (12/23/13 Mot. (Dkt. # 20).) The court again denied Snohomish County's motion to dismiss and extended Mr. Ross' time to effect service. (2/3/14 Ord. (Dkt. # 28).) Now, Snohomish County moves to dismiss Mr. Ross' complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (2/4/14 Mot. (Dkt. # 29).) Snohomish County argues that Mr. Ross' claims are barred by the applicable statutes of limitation and that he fails to allege sufficient facts to state claims under a cognizable legal theory. ( Id. at 1.) In response, Mr. Ross argues that Snohomish County's motion is barred by the doctrines of collateral estoppel and res judicata, that his claims are not barred by statutes of limitation because they are timely under the continuing violation doctrine, and that he has alleged sufficient facts to state claims for relief. (Resp. (Dkt. # 30).)
A. Ross' Collateral Estoppel and Res Judicata Arguments
As a threshold matter, Mr. Ross' argument that Snohomish County's motion is barred by either collateral estoppel or res judicata is unavailing. ( See Resp. at 1.) Generally, collateral estoppel bars relitigation of an issue in a subsequent proceeding involving the same parties. In re Jacobson, 676 F.3d 1193, 1201 (9th Cir. 2012). Res judicata is similar in that it bars a subsequent suit between the same parties where there has already been a final judgment on the merits. See, e.g., Americana Fabrics, Inc. v. L & L Textiles, Inc., 754 F.2d 1524, 1528-30 (9th Cir. 1985) (discussing the doctrine generally).
Neither doctrine applies here. To begin, both doctrines are predicted on the existence of a prior action, and here there is no prior action. Instead, Mr. Ross claims that collateral estoppel and res judicata bar this motion because Snohomish County brought previous motions concerning the same topics. Mr. Ross points the court to no authority for the proposition that collateral estoppel or res judicata apply in this context. More to the point, an essential element of both doctrines is that the prior issue or claim have been decided by a final judgment on the merits. See, e.g., Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1141 (9th Cir. 2013) ( res judicata ); Skilstaf, Inc. v. CVS Caremark Corp., 669 F.3d 1005, 1021 (9th Cir. 2012) (collateral estoppel). This element is not met here. Although it is true that Snohomish County has brought two prior motions to dismiss, both motions were decided on Rule 12(b)(5) jurisdictional grounds and neither was decided on the merits. ( See 11/26/13 Ord. (granting motion to dismiss in part on jurisdictional grounds); 2/3/14 Ord. (denying motion to dismiss on jurisdictional grounds).)
Moreover, the court's prior orders contemplated this very motion. In its November 26, 2013, order the court denied Snohomish County's motion without prejudice and explicitly gave the County leave to "refil[e] or re-rais[e] the same issues." (11/26/13 Ord. at 3.) Thus, because the court has not considered the arguments underlying Snohomish County's Rule 12(b)(6) motion and has not made a final decision on the merits of that motion, Snohomish County's motion is not barred by ...