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Johansen v. Cox

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

February 7, 2017

OFFICER A.J. COX and the CITY OF KENT, Defendants.




         This matter comes before the Court on defendants' motion for partial judgment on the pleadings (Dkt. #13). Plaintiff Bradley Johansen filed a state-court complaint alleging negligence and civil rights claims against defendants Officer A.J. Cox and the City of Kent. Defendants removed the case and moved for judgment on the pleadings on all claims except for the excessive force claim against Officer Cox.

         For the reasons set forth below, the Court grants defendants' motion.


         On May 17, 2014, plaintiff was in custody at the City of Kent Correctional Facility (CKCF). That morning, Officer Cox inspected plaintiffs cell. As a result of the inspection, Officer Cox informed plaintiff he would be placed in a 72-hour lockdown. Plaintiff did not move from his seated position in a top bunk. Officer Cox grabbed plaintiff's arm and leg and pulled. When plaintiff landed on the floor, he broke his ankle. In February 2016, plaintiff filed a complaint in King County Superior Court alleging negligence by both defendants and that Officer Cox used excessive force in violation of plaintiff's constitutional rights. Plaintiff also claimed the City of Kent[1] negligently trained and supervised Cox and that the City's failure to train, supervise, and discipline police officers amounts to a civil rights violation. Dkt. #1 at 7, ¶¶ 4.1-4.4. Defendant removed the action (Dkt. #1) and answered (Dkt. #3). This motion followed.

         III. ANALYSIS

         After a complaint has been answered, any party may move for judgment on the pleadings so long as the motion does not delay trial. Fed.R.Civ.P. 12(c). Judgment on the pleadings is proper “when, accepting all factual allegations in the complaint as true, there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law.” Chavez v. U.S., 683 F.3d 1102, 1108 (9th Cir. 2012) (internal brackets omitted). When, as here, the moving party asserts the defense that the complaint fails to state a claim, the Rule 12(c) analysis is substantially identical to that under Rule 12(b)(6) where “a court must assess whether the complaint contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Chavez, 683 F.3d at 1108 (internal quotation marks and brackets omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 673 (2009).

         A. Documents Considered

         The Court's review under Rule 12(c) is generally limited to the pleadings. See United States v. Corinthian Colleges, 655 F.3d 984, 998-99 (9th Cir. 2011). If matters outside the pleadings are considered, the motion is converted into one for summary judgment. Fed.R.Civ.P. 12(d). However, Ninth Circuit authority indicates the Court can consider three types of extrinsic evidence without converting a 12(c) motion into a motion for summary judgment. See Corinthian Colleges, 655 F.3d at 999. First, the Court may take judicial notice of evidence when it is “not subject to reasonable dispute” because it is “generally known” or “capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” Fed.R.Evid. 201(b); Corinthian Colleges, 655 F.3d at 999. A second exception allows for consideration of documents attached to the complaint. See Corinthian Colleges, 655 F.3d at 999. The third exception includes “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 document.” Id.

         Plaintiff describes additional evidence from the discovery process in his response. Response (Dkt. #14) at 3-5. None of the exceptions apply to the personnel records he discusses. He also provides excerpts from a deposition of Officer Cox (Dkt. #15-1) which does not fall into any of the exceptions. Plaintiff also provides representations of “Use of Physical Force Policy KCF F.06.01” (Dkt. #15-2) and “Restraints Policy KCF F.06.02” (Dkt. #15-3) and discusses those policies in his response. Plaintiff provides insufficient evidence to justify judicial notice of the policies. Defendants do not address the policies in their reply, but the source, publication status, and context of the policies is not clear from the response or declaration of plaintiff's counsel. Plaintiff did not refer to the policies in his complaint and did not attach them. Therefore, the policies do not fall into any exception. The Court declines to convert this motion into one for summary judgment and limits its consideration of defendants' motion to the pleadings.

         B. Claim of Both Defendants' Negligence

         Defendants contend that plaintiff “has not adequately pleaded either the existence of a duty under state law or facts from which it could be reasonably inferred that [either] breached any such duty.” Motion (Dkt. #13) at 3. Defendants also argue, citing Brutsche v. City of Kent, 164 Wn.2d 664 (2008), that plaintiff cannot state a claim for negligence when the conduct in question is intentional.[2] Dkt. #13 at 3-4.

         Plaintiff cites Gregoire v. City of Oak Harbor, 170 Wn.2d 628 (2010), for the proposition that jails “have an active, affirmative and nondelegable duty to protect the well-being of inmates, which includes a duty to refrain from affirmatively injuring them.” Dkt. #14 at 6. In addition, plaintiff argues that a failure to exercise ordinary care includes intentional and reckless conduct. Id. at 8. Plaintiff ...

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