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Fager v. Olympic Peninsula Narcotics Enforcement Team

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

January 30, 2015

STEVEN L. FAGER, et al., Plaintiffs,
v.
OLYMPIC PENINSULA NARCOTICS ENFORCEMENT TEAM, et al., Defendants.

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS

ROBERT J. BRYAN, District Judge.

The Plaintiffs bring this action against a host of defendants based on events surrounding the search, seizure, arrest and prosecution of the Plaintiffs (except Plaintiff Ted DeBray) and the termination of Plaintiff DeBray's employment. This matter comes before the Court on the Defendants' motions to dismiss Plaintiffs' federal claims pursuant to Fed.R.Civ.P. 12(b)(6). Dkts. 13, 14, 16, and 18. The Court has considered the pleadings in support of and in opposition to the motions and the record herein.

Introduction and Background

On December 1, 2014, the Plaintiffs Steven L. Fager, Timothy J. Fager, Cynthia A. Fager, Kathleen J. Wheller, Gary L. Corman, and Ted DeBray filed the instant Complaint for Violation of Civil Rights and Personal Injury. Dkt. 1. The Complaint alleges the following salient facts:

On October 15, 2008, Defendants Grall, Kovatch, Apeland and Vorhies assisted DEA

Agent Dan Mancano while, without a warrant, he attached a real time global positioning tracker on Plaintiff Gary Corman's car. On October 29, 2008, Defendants Grall, Kovatch, Apeland and Vorhies executed a thermal search warrant at Corman's home. Id. at 9. On October 31, 2008, Olympic Peninsula Narcotics Enforcement Team (OPNET) detectives searched Corman's home. Through the use of the positioning tracker, Corman was arrested by the City of Sequim Police Department. On October 31, 2008, Plaintiff Corman was charged with manufacturing marijuana, booked into Jefferson County Jail, and subsequently released on his own recognizance. On December 8, 2008, Plaintiff Jefferson County Deputy Prosecuting Attorney DeBray (DeBray) was ordered by Defendant County Prosecuting Attorney Dalzell to drop the criminal charges against Corman without prejudice. On July 13, 2009, Defendant Dalzell instructed DeBray to re-file criminal charges against Corman. DeBray did so. On August 31, 2009, the charges against Corman were again dropped. The civil forfeiture claim remained pending until August 24, 2014. Dkt. 1 at 8-11.

OPNET initiated an investigation of criminal activity involving Steven and Timothy Fager in February 2008. Dkt. 1 at 8. In September 2008, Defendants Grall and Vorhies used a thermal imager without a warrant on Plaintiff Steven Fager's home. Id . On September 24, 2009, Defendants, Kovatch, Grall, Vorhies, Waterhouse and Apeland executed a thermal search warrant on a building owned by Plaintiffs Steven and Timothy Fager located at 115 Freeman Lane Port Townsend Washington. Dkt. 1 at 11. On October 8, 2009, Defendants Grall, Vorhies, Waterhouse and Apeland executed a search warrant on the building located at 115 Freeman Lane. On October 9, 2009, Defendants OPNET, Benedict, Clallam County Sheriff's Department, and Clallam County filed notice of forfeiture in Jefferson County Superior Court for the real property and building located at 115 Freeman Lane and owned by Steven and Timothy Fager. On October 9, 2009, OPNET filed notice of administrative forfeiture for all of the personal property seized from Plaintiffs Timothy and Steven Fager from 115 Freeman Lane. Dkt. 1 at 11-12

On October 8, 2009, Defendants Vorhies and Viada executed a search warrant at the home of Steven Fager, located at 11 Glendale Drive, Sequim, Washington. Steven Fager was arrested and spent one day and night in the Jefferson County Jail. He was released on his own recognizance only to be taken into custody again by a Clallam County where he remained incarcerated for three days. Steven Fager's car, computers, business and personal files and possessions, including a rare coin collection and moneys were seized. On October 9, 2009, Defendants OPNET, Benedict, Clallam County Sheriff's Department, and Clallam County filed notice of forfeiture for all of the personal property seized from Steven Fager's home at 11 Glendale Drive. Dkt, 1 at 11-12.

On October 8, 2009, Defendant Apeland executed a search warrant at the home of Plaintiffs Timothy and Cynthia Fager, 91 Blaze Trail, Port Townsend Washington. Timothy Fager was arrested and spent one day and night in the Jefferson County Jail before being released on his own recognizance. His truck, business tools, computers, business and personal files, moneys, and many other personal items were seized. On October 9, 2009, Defendants OPNET, Benedict, Clallam County Sheriff's Department, and Clallam County filed notice of administrative forfeiture for all of the personal property seized from Plaintiffs Timothy and Cynthia Fager's home. Dkt. 1 at 12-13.

On October 9, 2009, at 5:55pm Defendants Grall, Vorhies, Apeland and Waterhouse executed a search warrant at Plaintiff Wheller's home, located at 2449 Port Williams Road, Sequim, Washington. On October 20, 2009, OPNET filed notice of administrative forfeiture for all of the personal property seized from Plaintiff Wheller's home. Dkt, 1 at 12-13.

In January of 2010, Steven and Timothy Fager signed an agreement staying civil forfeiture actions until the criminal case against them concluded. Plaintiff Wheller also agreed to, and signed, an agreement staying civil forfeiture actions involving her until the criminal case against Plaintiffs Steven and Timothy Fager concluded. Dkt. 1 at 13.

The Complaint further alleges that on November 24, 2008, a Formal Complaint was filed by a Clallam County Sheriff's Detective, who detailed misconduct by his fellow OPNET Detectives; i.e. Defendants Grall, Vorhies, and Kovatch. Dkt. 1 at 9. This Formal Complaint triggered an internal investigation into wrongdoing and illegal activity within OPNET. Id. Two agencies carried out investigations: (1) the Washington State Patrol and (2) Pierce County Sheriff's Office. Id. In June of 2009, Plaintiff Deputy Prosecutor DeBray was informed that all allegations against OPNET were cleared, no wrongdoing was found. Id. at 10. DeBray's request for a copy of the report was denied. Id. On August 21, 2009, Jefferson County Superior Court granted Plaintiff Corman's motion to compel discovery that included the Investigative Reports into OPNET. Id. DeBray filed a motion for an in-camera review of the Investigative Reports to be viewed on September 1, 2009. Id. at 11. On August 31, 2009, Plaintiff DeBray was instructed by Defendant Prosecuting Attorney Dalzell that if he did not resign then he would be fired. DeBray resigned. Id. The Complaint alleges that the criminal charges against Corman were dropped rather than allowing any in-camera inspection of the Investigative Reports. Id.

In October of 2011, the WSP Investigative Report into OPNET was released to the Plaintiffs Steven and Timothy Fager as well as Plaintiff Corman. Dkt. 1 at 13.

On November 14, 2011, Plaintiffs Steven and Timothy Fager filed with the Jefferson County Superior Court a Motion to Suppress. Id. The Motion referenced the Investigative Report and contains allegations nearly identical to those asserted in the instant Complaint. Compare Dkts. 1 and 15-1

On January 9, 2013, Jefferson County Superior Court Judge Craddock Verser ruled that Defendants Grall, Kovatch, Apeland, Waterhouse, and Vorhies acted with a "reckless disregard for the truth" and suppressed all evidence obtained from the thermal and entry searches at 115 Freeman Lane. Judge Verser also ruled the case was mismanaged to the level of governmental misconduct, evidence was destroyed while in police custody, and that OPNET Detectives trespassed on the Fager's property. Dkt.1 at 14. On January 13, 2013, all charges against the Steven and Timothy Fager were dismissed in Jefferson County without prejudice. Id . On January 30, 2013 the State filed notice of appeal. Id. On March 7, 2013, all charges in Clallam County were dismissed against Plaintiff Steven Fager with prejudice. Id.

On December 1, 2014, the Plaintiffs filed the instant civil action asserting common law tort causes of action, statutory causes of action, and offenses committed under color of law resulting in a deprivation of rights secured by the Constitution and laws of the United States of America and the Washington State Constitution and laws of the State of Washington. Dkt. 1 at 2. The Defendants move for dismissal of the federal causes of action on the basis that they are barred by the applicable statute of limitations, fail to state a claim for relief, and/or are not ripe. Defendants request that the Court also decline pendent jurisdiction over the remaining state law claims. Dkts. 13, 14, 16, and 18.

Fed. R. Civ. P. 12(b)(6) Standard

A Rule 12(b)(6) dismissal may be based on either a "lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008). In other words, the plaintiff's complaint must provide a "short and plain statement of the claim showing that plaintiff is entitled to relief. Id. ( citing Fed.R.Civ.P. 8(a)(2)).

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Iqbal, 556 U.S. at 678; Papasan v. Allain, 478 U.S. 265, 286 (1986). The pleading standard of Fed.R.Civ.P. 8 "demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678.

In analyzing a pleading, the Court sets conclusory factual allegations aside, accepts all non-conclusory factual allegations as true, and determines whether those non-conclusory factual allegations accepted as true state a claim for relief that is plausible on its face. Iqbal, 556 U.S. at 677-684; Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

On a motion for judgment on the pleadings, the court may consider documents relied on in a complaint without converting the motion to one for summary judgment. Lee v. City of L.A., 250 F.3d 668, 688-89 (9th Cir. 2001). A court may consider evidence on which the complaint necessarily relies' if: (1) the complaint refers to the document; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the Fed.R.Civ.P. 12(b)(6) motion. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). A court may treat such a document as "part of the complaint, and thus may assume that its contents are true for purposes of a motion to dismiss under Rule 12(b)(6)." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.2003). See Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)(Even if the plaintiff's complaint does not explicitly refer to documents, if plaintiffs predicate their claims on those documents, defendants may rely on them). ...


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