United States District Court, Western District of Washington
For Eric Boston, individually, Plaintiff: Anthony Clarence Otto, LAW OFFICE OF ANTHONY C OTTO, PORT ORCHARD, WA.
For Kitsap County, a Municipal Corporation organized under the laws of the State of Washington, Defendant: Craig L. McIvor, Marc Rosenberg, LEE SMART PS INC, SEATTLE, WA; Ione S George, KITSAP COUNTY PROSECUTOR'S OFFICE, PORT ORCHARD, WA.
For Conmed, Inc., a foreign corporation doing business in Kitsap County, Defendant: Craig L. McIvor, Marc Rosenberg, LEE SMART PS INC, SEATTLE, WA.
ORDER DENYING DEFENDANTS' MOTION TO STAY AND FOR CERTIFICATION OF AN ISSUE TO THE NINTH CIRCUIT
J. Richard Creatura, United States Magistrate Judge.
The District Court has referred this 42 U.S.C. § 1983 civil rights action to United States Magistrate Judge J. Richard Creatura. The authority for the referral is 28 U.S.C. § 636(b)(1)(A) and (B), and local Magistrate Judge Rules MJR3 and MJR4.
Defendants ask this Court to stay the action and certify a question to the Ninth Circuit Court of Appeals (Dkt. 35). Plaintiff opposes the motion (Dkt. 37). Defendant argues that because there is an apparent disagreement among district court opinions and some state decisions, this matter should be certified for clarification by the Ninth Circuit. If that were the sole criteria, many cases would be stayed and certification granted. Courts sometimes disagree. Sometimes, even different panels of circuit court disagree. That, in and of itself is not grounds for certification. Defendant has not demonstrated that an immediate appeal from this Court's Order would " materially advance the ultimate termination of the litigation." Therefore, this Court recommends that defendants' motion be denied.
Plaintiff's complaint includes alleged violations of 42 U.S.C. § 1983 based on defendants' deliberate indifference arising from medical treatment he received while he was an inmate at Kitsap County Jail (Dkt. 1). The Complaint also alleges state law negligence claims against Kitsap County ( id . at pp. 10-12). According to plaintiff's complaint, he suffered these injuries between January 3, 2011 and February 14, 2011 ( id . at pp. 3-6).
Normally, a 3-year limitation period applies for injuries to persons or rights of another. See RCW 4.16.080(2). Defendants argue that the 3-year statute of limitations expired on February 14, 2014 -- three years to the day that plaintiff was released from custody (Dkt. 11, 25, p. 2).
Plaintiff argues that this statute of limitations was extended by a " claim presentment statute." RCW 4.96.020 ( see Dkt. 7, p. 2). According to that statute, " . . . an action commenced within five court days after the sixty calendar day period is elapsed is deemed to have been presented on the first day after the sixty calendar day period elapsed." See RCW 4.96.020(4). Plaintiff submitted a tort claim to Kitsap County pursuant to RCW 4.96.020(4) on January 3, 2014 (Dkt. 17, attachment). The County never replied to the claim. Plaintiff states that on March 10, 2014 (four court days, following sixty calendar days after filing the claim), he filed his complaint alleging violations of his civil rights. Plaintiff included a pendent state tort negligence claim against defendant Kitsap County in his complaint (Dkt. 16 p. 2).
Therefore, the question presented to this Court was whether or not the court would allow the action to continue because of the tolling provisions provided in RCW 4.96.020(4) or dismiss the case because of the lapsed statute of limitations. Defendants filed a joint motion to certify this question to the Washington State Supreme Court and stay proceedings (Dkt. 12). This Court issued an order denying defendants' motion (Dkt. 24). This Court concluded that the tolling provisions of RCW 4.96.020(4) applied and issued a Report and Recommendation to deny defendants' motion to dismiss on the grounds of statute of limitations (Dkt. 25). The District Court issued an order adopting the Report and Recommendation on August 11, 2014 (Dkt. 34).
Now, defendants are bringing a motion to stay the case so that the identical issue can be certified to the Ninth Circuit (Dkt. 35).
Defendants argue that under a Washington Court of Appeals case, Southwick v. Seattle Police Officer John Doe, 1 - 5, 145 Wn.App. 292, 300, 186 P.3d 1089, 1093 (2008), a state court would have dismissed plaintiff's claims as beyond the statute of limitations because the " special statute of limitations" in RCW 4.96.020 does not apply to claims under Section 1983. Defendants acknowledge that other cases decided in federal court have found to the contrary. For instance, in Wyant v. City of Lynnwood, 621 F.Supp.2d 1108, 1112 (W.D. Wash. 2008), the district court denied a similar motion by defendants in that case to dismiss a similar claim (Dkt. 26). This Court also quoted, at length, a decision by Judge Bryan in Tracy v. State of Washington, No. C09-5588-RJB, 2010 WL 4511550 at *6-7 (W.D. Wash. 2010) (Dkt. 25).
Defendants cite several cases that defendants claim find to the contrary (Dkt. 35, p. 6, citing, Fleming v. Washington C07-5246 FDB, 2008 WL 4223226 (W.D. Wash. 2008); Deleon v. City of Yakima, 2006 WL 2253785 (E.D. Wash. 2006); ...