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Wickersham v. State

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

December 11, 2014

JOE WICKERSHAM and WICKERSHAM, Plaintiffs,
v.
STATE OF WASHINGTON, WENDY WILLETTE, KING COUNTY, and ROBERT NISHIMURA, Defendants.

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on Defendant King County's motion for summary judgment (Dkt. No. 43), supporting declarations (Dkts. No. 44 & 45), Plaintiffs' response (Dkt. No. 48), Defendant's reply (Dkt. No. 50), and a supplemental declaration containing relevant deposition transcripts (Dkt. No. 51).

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.

I. BACKGROUND

Plaintiffs, Joe Wickersham ("Joe") and his son Carter, sue the State of Washington, King County, and two individual officials, Wendy Willette and Robert Nishimura, for events that occurred August 14, 2010. Dkt. No. 13, p. 2. Plaintiffs allege that Willette entered their property without authorization, shot Plaintiffs' dog, prevented Plaintiffs from aiding the wounded dog, and was verbally abusive. Dkt. No. 1, pp. 7-8. The same claims, save shooting the dog, are alleged against Nishimura. Id. After a previous order granting Defendants' motion to dismiss in part, Plaintiffs' remaining claims against King County are trespass, outrage, and negligent infliction of emotional distress. Dkt. No. 39; Dkt. No. 43, pp. 1-2. Plaintiffs sue King County based on the actions of Nishimura, a King County Sheriff's deputy. Dkt. No. 43, pp. 1-2.

Plaintiffs concede that "[t]he most substantive and egregious injuries [they] suffered... resulted from the shooting of their dog by Willette." Dkt. No. 48, p. 1. Yet Plaintiffs maintain that Nishimura committed three torts: (1) trespass, (2) outrage, and (3) negligent infliction of emotional distress. Both Plaintiffs assert all three claims, though the allegations deal particularly with alleged harm to Joe Wickersham. Dkt. No. 1, p. 8.

A. Relevant Facts

On August 14, 2010, Willette went to investigate a possible fishing violation at Plaintiffs' home, and called Nishimura for backup. Dkt. No. 44, p. 3 (Nishimura's Police Report). Willette had shot Plaintiffs' dog as a response to what she perceived as an attack, and the Plaintiffs were incredibly upset. Id. Nishimura described the situation upon his arrival as "very tense" and "very aggressive." Dkt. No. 31, Ex. 3 (deposition transcript). Nishimura was confronted by Joe Wickersham, who Nishimura describes as confrontational and emotional. Id. Nishimura remembers Joe as smelling of alcohol, behaving erratically, and at one point yelling, "I'm an attorney!"[1] Id. In his efforts to address the situation, Nishimura indicates that he instructed Joe to remain seated so as not to go into his house and retrieve a weapon; at one point when Joe tried to stand, it is possible that Nishimura told him to "sit the fuck down." Id., Dkt. No. 50, p. 1.

Joe Wickersham denies drinking prior to the incident. Dkt. No. 47, p. 10 (Joe Wickersham deposition). Joe also recalls Nishimura using numerous profanities[2] immediately upon entering Plaintiffs' property. Id. at 16. Joe indicates that Nishimura "got right in my face" during the encounter. Id. at 30. According to Joe, Nishimura seemed under the impression that Joe had shot his own dog; once that misconception was clarified, Nishimura attempted to help get the dog to a veterinarian. Id. at 16. Joe characterizes the exchange between himself and Nishimura as follows:

So he - he - my son pulled up the driveway and was leaving. [Nishimura] started to walk to his car. I think about - about the only communication I had with him was I said, I don't appreciate the way you talked to me in front of my son. And that's as he was walking to his car. That was pretty much the long and short of it between he and I because he had me intimidated, like I said, acting like I did something wrong.

Id. Joe acknowledges that Nishimura never grabbed or touched him. Id. at 30.

II. DISCUSSION

A. Standard on Summary Judgment

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Material facts are those that may affect the case's outcome. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine if there is enough evidence for a reasonable jury to return a verdict for the nonmoving party. See id. at 49. At the summary-judgment stage, evidence must be viewed in the light most favorable to the nonmoving party, and ...


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