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Wickersham v. State

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

January 15, 2015



JOHN C. COUGHENOUR, District Judge.

This matter comes before the Court on the motion of Defendants State of Washington and Wendy Willette for summary judgment (Dkt. No. 52), Plaintiffs' response and supporting documents (Dkts. No. 59-62), Defendant's reply (Dkt. No. 67), and Plaintiffs' surreply and motion to strike (Dkt. No. 69). Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary, hereby GRANTS the motion in part and REMANDS the remaining state law claims to state court.


A. Procedural Background

Plaintiffs, Joe Wickersham ("Joe") and his son Carter, sue the State of Washington and Washington Department of Fish and Wildlife Officer Wendy Willette due to an encounter on 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, pointed her gun at Joe, and was verbally abusive. Dkt. No. 1, pp. 7-8. A King County Sheriff's Deputy, Robert Nishimura, responded to a call for backup from Willette; based on that interaction, Plaintiffs also sued Nishimura and King County. See Dkt. No. 1. Though Defendants King County and Robert Nishimura joined in the motion for summary judgment currently before the Court ( see Dkt. No. 57), Plaintiffs' claims against King County and Robert Nishimura have since been dismissed. Dkt. No. 58. As such, the Court hereby GRANTS Defendant King County's motion to withdraw (Dkt. No. 63) from its joinder of the summary judgment motion of Defendants Washington State and Willette.

Plaintiffs' complaint raises seven remaining causes of action against Officer Willette and, by extension, the State of Washington: (1) a 42 U.S.C. § 1983 claim based on alleged violations of Plaintiffs' federal constitutional rights, [1] (2) trespass, (3) negligent infliction of emotional distress, (4) outrage, (5) conversion of chattels, (6) general negligence, and (7) assault. Dkt. No. 1 at pp. 4-5. Additionally, Plaintiffs raise an eighth claim solely against the State of Washington: (8) negligent training and supervision of Officer Willette. Id. [2]

Defendants Willette and the State of Washington move for summary judgment on (1) Plaintiffs' § 1983 claim and the state law claims of (2) trespass, (3) negligent infliction of emotional distress, and (4) outrage. Dkt. No. 52. (5) Conversion of chattels and (6) general negligence were not addressed until Defendants submitted their reply. Dkt. No. 67. Plaintiffs' claims for (7) assault and (8) negligent training have not yet been addressed by the parties.

B. Relevant Facts

The parties give conflicting accounts of the events on August 14, 2010.

1. Officer Willette's Report

According to Officer Willette, while out on patrol, she spotted a woman fishing off a dock across from the Lake Desire Access Area which is owned by the Department of Fish and Wildlife. Dkt. No. 51, Ex. 1, p. 2 ("Willette Incident Report"). Willette then drove around to what she estimated to be the driveway associated with the dock in order to check for the woman's fishing license, but reported that "all of the driveways are very winding and wooded, making it difficult to see which house they are associated with." Willette Incident Report at 2. Willette was in uniform at the time. Id. Willette parked her patrol vehicle near a house and walked to the shore. Id. Upon arrival, Willette was able to see the dock, and a fishing pole on it, but no woman. Id. She then proceeded to look for the woman at the house and property nearby.

Around the house, Willette did not notice a fence or signs designating who owned what property, nor did she see a posted "no trespassing" sign. Willette Incident Report at 2. Willette heard a man yelling heatedly. Id. She walked up the stairs of the property to the house and announced her presence. Id. The man's yelling continued. Id. Willette knocked loudly on the back door of the home and again announced her presence, unacknowledged. Id. Then, Willette yelled "Hello, Police! Pay attention!" Id. After this third announcement, Plaintiff Joe Wickersham looked out the window and responded, "Police? Oh, ok." Id. [3]

A few seconds later, a large Doberman-weighing seventy or eighty pounds in Willette's estimation-appeared and ran quickly down a set of stairs towards her. Willette Incident Report at 2. The dog wore a shock collar and bore its teeth in what Willette perceived as an aggressive manner. Id. Willette yelled to Joe to secure his dog, but the dog approached her within two or three seconds. Id. Willette reports:

"Before I was able to get the last word out, the dog was right on top of me and made no attempt to slow its attack... I felt that the dog was going to attack me. I drew my issued duty pistol and fired two rounds into the dog's neck ...

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