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Elmi v. SSA Marine, Inc.

United States District Court, W.D. Washington, Seattle

May 29, 2014

KAISER SAID ELMI, et al., Plaintiffs,
SSA MARINE, INC., a Washington corporation, et al., Defendants.


JOHN C. CAUGHENOUR, District Judge.

This matter comes before the Court on the motion for summary judgment of Defendants Port of Seattle, Jack Myers, Jose Santiago, Terrence Kwan, and Walter Wesson. (Dkt. No. 21.) Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.


Plaintiffs, four short haul truck drivers at the Port of Seattle of East African birth and descent, sue SSA Marine and several of its employees ("SSA Marine Defendants"), as well as the "Port of Seattle Defendants, "[1] who filed this motion. Plaintiffs deliver goods to Terminal 30, a marine terminal owned by the Port of Seattle and operated by SSA Marine. Plaintiffs' claims against the Port of Seattle Defendants are premised two arguments: first, that, after Plaintiffs reported assaults by the SSA Marine Defendants[2] in Terminal 30, the Port of Seattle Defendants, in their capacity as Port of Seattle Police Officers, erred in failing to arrest the assailants; and second, that some of the Port of Seattle Defendants forced some of the Plaintiffs to leave the area after the alleged assault.[3]

Plaintiff Elmi alleges that he was assaulted and threatened by an SSA Marine employee, and that the Port of Seattle Defendants failed to arrest the assailant. (Dkt. No. 1 at 12-13, ¶¶ 3.11-3.16.) Additionally, certain Port of Seattle Defendants "ordered ELMI to leave... which ELIMI [sic], having no choice, did." (Dkt. No. 1 at 12, ¶ 3.15.) Plaintiff Berhane alleges that he, too, was assaulted by one of the SSA Marine Defendants. (Dkt. No. 1 at 13-14, ¶¶ 3.17-3.21.) Certain of the Port of Seattle Defendants arrived in response to Mr. Berhanes report, and failed to arrest the alleged person who committed the assault. (Dkt. No. 1 at 13, ¶ 3.2.) The assailant was eventually charged with misdemeanor assault. (Dkt. No. 1 at 14, ¶ 3.21.) Plaintiff Muhiddin alleges that he was assaulted by the same individual who assaulted Berhane. (Dkt. No. 1 at 14-15, ¶¶ 3.24-3.37.) After the assault was reported, Defendant Port of Seattle Officers "coerced MUHIDDIN to leave the terminal... without letting him drop off the container on his truck." (Dkt. No. 1 at 15, ¶ 3.33.) The Defendant Port of Seattle Officers did cite the assaulting individual "for a second time, resulting in criminal prosecutions against him that are ongoing." (Dkt. No. 1 at 15, ¶ 3.36.)

Plaintiffs Elmi, Berhane, and Muhiddin assert, [4] against the individual Port of Seattle Defendants, a § 1983 claim consisting of the deprivation of Plaintiffs' liberty without due process of law, violations of Plaintiffs' privacy rights, violations of Plaintiffs' equal protection rights, violations of Plaintiffs' right to be free from unreasonable search and seizure, violations of the "right to be free from discriminatory law enforcement, " violations of their right to free expression, and violations of their right to the freedom of association. (Dkt. No. 1 at 18-19, ¶¶ 5.1-5.5.) Those same Plaintiffs also assert a § 1983 claim against Port of Seattle, for failure to supervise, train, and discipline defendants as well as ratifying and supervising the individual officers' conduct, under the First, Fourth, Thirteenth and Fourteenth Amendments. (Dkt. No. 1 at 20-21, ¶¶ 5.6-5.9.) Some of the Plaintiffs-though it is not clear which ones, as the Plaintiffs asserting the claim are not specified in the Complaint-assert against defendants a claim of racial and national origin discrimination under RCW 49.60.030, based on the Defendants' actions in creating and enforcing an "arbitrary and unreasonable [policy [sic] as to the restrooms at Terminal 30 that was facially and legally discriminatory." (Dkt. No. 1 at 25, ¶¶ 5.29-5.32.)[5] Similarly, some or all of the Plaintiffs assert against all Defendants claims of intentional infliction of emotional distress, (Dkt. No. 1 at 26, ¶¶ 5.33-5.37), and negligence, (Dkt. No. 1 at 27, ¶¶ 5.38-5.40), premised on the alleged discriminatory acts.

The Court set a status conference for April 8, 2014. However, counsel for Plaintiff did not appear, and the Court reset the status conference. (Dkt. Nos. 19, 20.)

Later that same day, the Port of Seattle Defendants filed the motion for summary judgment at issue here. (Dkt. No. 21.) In support of their motion, they submitted signed and sworn declarations by officers Myers, Santiago, and Wesson, with attached police reports and investigatory documents. (Dkt. Nos. 22, 23, 24.) Plaintiffs responded, asserting that Defendants' motion is "improper, premature, inapplicable, and should simply be denied or struck." (Dkt. No. 29 at 8.) He submitted no evidence in support of his response. Port of Seattle Defendants replied. (Dkt. No. 30.)


Under Federal Rule of Civil Procedure 56, [6] the Court must enter summary judgment if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). In determining whether an issue of material fact exists, the Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Accordingly, the Court must "draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). "[A] non-movants failure to respond" to arguments made in a motion for summary judgment does not constitute "a complete abandonment of its opposition to summary judgment." Heinemann v. Satterberg, 731 F.3d 914, 917 (9th Cir. 2013).

However, "the opposing partys failure to respond to a fact asserted in the motion permits a court to 2017consider the fact undisputed for the purposes of the motion." Id. (quoting Fed.R.Civ.P. 56(e)(2)). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by" citing to particular materials in the record, including depositions, documents, admissions, and other such evidence, or showing that the materials cited do not establish the absence or presence of a genuine dispute. Fed.R.Civ.P. 56(c)(1). Similarly, the local rules specify that a party opposing a motion must file any evidence it intends to rely upon to support a motion with the Court. W.D. Wash. Local Civ. R. 7(b)(2). However, if a party fails to properly support an assertion of fact, or fails to properly address another partys assertion of fact, the Court may consider the fact undisputed, or grant summary judgment to the moving party if the motion and the supporting materials show that the movant is entitled to that remedy. Fed.R.Civ.P. 56(e).

A. Plaintiffs' Request for Additional Time to Conduct Discovery

Plaintiffs ask for the motion to be denied because discovery has not yet occurred, and so they have not had a chance to find evidence to contest that which was submitted by Defendants. "If a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, " Fed.R.Civ.P. 56(d), the Court may defer considering the motion or deny it. Here, Plaintiffs do not submit a declaration or affidavit stating that additional discovery is necessary in accordance with Rule 56(d), and instead rely solely on unsworn assertions in their unverified memorandum opposing Defendants' motion. "An unsworn memorandum opposing a partys motion for summary judgment is not an affidavit." Radich v. Goode, 886 F.2d 1391, 1394 (3d Cir. 1989). Accordingly, Plaintiffs have not made a proper request for a continuance under Rule 56(d), and the Court will not accept as true the conclusory statements made in an unsworn piece of written advocacy with no supporting evidence.

The Court also notes that the party seeking a Rule 56(d) continuance of a motion for summary judgment bears the burden of proffering facts sufficient to satisfy the requirements of the rule. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 921 (9th Cir. 1996). The Court should only grant a Rule 56(d) motion "if the movant diligently pursued its previous discovery opportunities, and if the movant can show how allowing additional discovery would have ORDER PAGE - 5 precluded summary judgment." Qualls By and Through Qualls v. Blue Cross of Cal., Inc., 22 F.3d 839, 844 (9th Cir. 1994). A party may not seek discovery "from any source before the parties have conferred as required by Rule 26(f)." Fed.R.Civ.P. 26(d)(1). However, ...

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