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Jensen v. Ferguson

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

September 17, 2014

KENNETH JENSEN, Plaintiff,
v.
WASHINGTON ATTORNEY GENERAL BOB FERGUSON, Defendant.

ORDER GRANTING MOTION TO DISMISS FOURTEENTH AMENDMENT CLAIM

JAMES L. ROBART, District Judge.

I. INTRODUCTION

Before the court is Defendant Washington Attorney General Bob Ferguson's ("the Attorney General") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. (Dkt. # 9).) Because the Attorney General raises issues concerning both subject matter and personal jurisdiction, the court properly characterizes his motion as under Federal Rules of Civil Procedure 12(b)(1) and (2) as well. See Fed.R.Civ.P. 12(b)(1), (2). The court has considered the motion, all 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 the Attorney General's motion and DISMISSES without prejudice Plaintiff Kenneth Jensen's claim that various state court orders requiring him to pay restitution violate the Fourteenth Amendment. The court notes that the Attorney General's motion does not address Mr. Jensen's claim that his conviction for second degree manslaughter violates the Double Jeopardy Clause of the Fifth Amendment. Accordingly, this claim remains.

II. BACKGROUND

This case arises from Kenneth Jensen's criminal conviction in state court. ( See Compl. (Dkt. # 1) 1-8.) In 2002, Mr. Jensen was convicted of second degree felony murder for the death of his neighbor. ( Id. at 36.) The trial court entered an order setting restitution in the amount of $28, 817.78 to be paid to the court registry. ( Id.) After paying that amount, Mr. Jensen settled a civil claim brought by the victim's widow. ( Id. ) Jensen sold his home and deposited the proceeds into the court registry as well. ( Id. ) The court subsequently entered orders disbursing funds from the account to both parties' attorneys, the court appointed commissioner, the victim's widow, and the Washington State Department of Labor & Industries, Crime Victim Compensation Division ("CVC"). ( Id. )

In 2005, the Washington State Court of Appeals reversed and remanded Mr. Jensen's criminal conviction based on the Washington State Supreme Court's holding in In Re PRP of Andress, 56 P.3d 981 (Wash. 2002). (Mot. at 21.) The State subsequently retried Mr. Jensen, and he was convicted of second degree manslaughter. ( Id. at 36.) The court imposed a second restitution order in the amount of $16, 022.39. ( Id. ) The state court judge stated that this amount credited Mr. Jensen for his previous restitution payment of $28, 817.78. ( Id. at 37.)

Mr. Jensen disagrees. He alleges that the state court wrongfully disbursed $28, 817.78 to the victim's widow and her attorney as an improper "ex parte civil disbursement." ( Id. at 8.) He has filed ten unsuccessful motions and petitions with the state court to recover those funds. ( Id. at 37.) Additionally, the Court of Appeals and the Washington State Supreme Court denied discretionary review of Mr. Jensen's recovery claim. ( Id. at 38, 42.) The court liberally construes Mr. Jensen's complaint[1] to include two claims: (1) Mr. Jensen claims that the state court order distributing $28, 817.78 to the victim's widow and her attorney and the court's denial of his subsequent motion to recover those funds constitutes an improper deprivation of his property in violation of the Due Process Clause of the Fourteenth Amendment ( see id. at 8), and (2) Mr. Jensen claims that his second conviction violates the Double Jeopardy Clause of the Fifth Amendment ( see id. at 4).

The Attorney General moves to dismiss Mr. Jensen's Fourteenth Amendment Due Process claim on grounds that: (1) the court lacks subject matter jurisdiction to hear the claim under the Rooker-Feldman doctrine ( id. at 3-4), and (2) Mr. Jensen has sued the wrong party. (Mot. at 3.)[2] The Attorney General does not address Mr. Jensen's Fifth Amendment Double Jeopardy claim. ( See generally Mot.) Because the Attorney General fails to address this claim, the court does not consider its dismissal.

III. ANALYSIS

A. Standard on a Motion to Dismiss

The Attorney General moves to dismiss Mr. Jensen's Fourteenth Amendment claim for lack of subject matter jurisdiction based on the Rooker-Feldman doctrine. (Mot. at 3 (citing Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C. Court of Appeals v. Feldman, 460 U.S. 462 (1983)).) The burden of establishing subject matter jurisdiction rests upon the party asserting jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Here, Mr. Jensen bears that burden.

A motion to dismiss for lack of subject matter jurisdiction can be facial or factual. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. This "confin[es] the inquiry to allegations in the complaint." Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cnty., 343 F.3d 1036, 1040 n.2 (9th Cir. 2003). By contrast, "in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone, 373 F.3d at 1039. This analysis does not require the court to presume the truthfulness of a plaintiff's allegations. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).

The Attorney General's challenge in this case is a facial one. It is his position that Mr. Jensen's allegations are insufficient to invoke federal jurisdiction as a matter of law in light of the Rooker-Feldman doctrine. Resolution of such a facial challenge to the court's subject matter jurisdiction depends on the allegations in the complaint and does not involve the resolution of a factual dispute. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). In a facial challenge, the court must assume the allegations in the complaint are true and "draw all reasonable inferences in [the plaintiff's] favor." Id .; Whisnant v. United States, 400 F.3d 1177, 1179 (9th Cir. 2005).

Even in a facial challenge, however, the court may look beyond the face of the pleadings and consider "exhibits attached to the complaint, matters subject to judicial notice, [and] documents necessarily relied on by the complaint and whose authenticity no party questions." Bautista-Perez v. Holder, 681 F.Supp.2d 1083, 1087 (N.D. Cal. 2009) (citing Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001); see also Barron v. Riech, 13 F.3d 1370, 1377 (9th Cir. 1994). Thus, review of the Attorney General's motion is informed by the state court orders at issue over which this court takes judicial ...


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