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Whalen v. McMullen

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

February 27, 2017

JOHN G. MCMULLEN, individually and not in his official capacity with the Washington State Patrol, PATRICIA LASHWAY, ACTING SECRETARY, WASHINGTON DEPARTMENT OF SOCIAL & HEALTH SERVICES, in her official capacity, Defendants.


          Barbara Jacobs Rothstein U.S. District Court Judge


         Plaintiff Kathleen Whalen brings this action under 42 U.S.C. § 1983, alleging that Defendant John McMullen, an officer of the Washington State Patrol, violated the Fourth Amendment when he entered Plaintiff's home as part of a disability-fraud investigation. Plaintiff also brings suit against Patricia Lashway, [1] in her official capacity as acting secretary of the Washington Department of Social & Health Services (DSHS). Plaintiff asserts that DSHS, the agency that initiated the fraud investigation conducted by McMullen, is liable for McMullen's allegedly unlawful conduct. Plaintiff also brings pendent state-law claims against McMullen, alleging that he violated Article I, section 7 of the Washington state constitution and that he is liable for trespass onto her property. Plaintiff moves for summary judgment on all claims. Defendants have also moved for summary judgment.

         Having reviewed the parties' briefing, the record of the case, as well as the relevant legal authority, the Court will deny Plaintiff's Motion for Partial Summary Judgment [Dkt. #52]. The Court will grant Defendants' motions for summary judgment [Dkt. #44, 50].


         John McMullen is a detective in the Criminal Investigative Division of the Washington State Patrol. More specifically, McMullen is assigned to the Cooperative Disability Investigations Unit (“CDIU”), which investigates potential fraud by recipients of Social Security Disability (“SSD”) benefits. DSHS's Disability Determination Services (“DDS”) division refers cases to the CDIU “to investigate allegations of fraud in SSA's disability programs for purposes of criminal prosecution and/or civil/administrative action.” Dkt. 53-1, Ex. 1 at 2. The CDIU is overseen by the Office of the Inspector General (“OIG”) of the United States Social Security Administration (“SSA”). Id. at 2-3.

         A fraud case involving Plaintiff Kathleen Whalen was referred to the CDIU and assigned to Detective McMullen on October 11, 2012. That same day, McMullen went to Plaintiff's home to observe her physical function and mobility as part of his investigation into whether Plaintiff was committing disability fraud. When McMullen arrived, he knocked on Plaintiff's door. McMullen identified himself as an officer of the Washington State Patrol, but did not disclose to Plaintiff that he was there as part of a disability-fraud investigation. Rather, McMullen told Plaintiff that he was investigating a fictitious identity theft. McMullen was wearing a badge around his neck. He also had a hidden camera.

         McMullen and Plaintiff walked outside the home to McMullen's vehicle, where they spoke at length. Plaintiff informed McMullen that she had been the victim of an identity theft, about which she had pertinent information on her cell phone inside her home. The parties dispute what happened next. McMullen asserts that Plaintiff “invited” him into her home, while Plaintiff alleges that she walked into her home and McMullen “followed” her. Dkt. 47, McMullen Decl. ¶ 16; Dkt. 52 at 5; Dkt. 53, Ex. 3, McMullen Dep. at 46: 11-25. The pair continued their conversation inside the home. McMullen then left the premises.

         Plaintiff filed the instant suit against McMullen and DSHS under 42 U.S.C. § 1983, alleging that McMullen's entry into her home and surreptitious videotaping inside violated the Fourth Amendment's prohibition on unreasonable searches. Plaintiff also alleges that McMullen's actions violated the Washington state constitution's prohibition on “home invasions.” Finally, Plaintiff brings a trespass claim against McMullen.


         A. Summary judgment standard

         Summary judgment is proper “if the movant shows 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). The moving party bears the initial burden of demonstrating the absence of any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is “genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         B. Plaintiff's § 1983 claims

         Section 1983 is not a source of substantive rights; rather it provides “a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979). Here, Plaintiff alleges that Defendants violated her Fourth Amendment right to be free from unreasonable searches by subjecting her to a warrantless search under false pretenses. Plaintiff moves for summary judgment on this Fourth Amendment claim, arguing that McMullen's conduct-namely, entering her home without a search warrant after misrepresenting the nature of his investigation-was per se unreasonable. Plaintiff also moves for summary judgment on her claims for equitable relief against DSHS, arguing that the agency is liable for McMullen's conduct because it initiated the fraud ...

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