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Comenout v. Pierce County Superior Court

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

May 11, 2017

ROBERT REGINALD COMENOUT, SR., et al., Plaintiffs,
v.
PIERCE COUNTY SUPERIOR COURT, et al., Defendants.

          ORDER ON MOTION TO DISMISS

          ROBERT J. BRYAN United States District Judge.

         THIS MATTER comes before the Court on the Motion to Dismiss filed by the remaining named defendants, Boyd Goodpastor, J. Mark Keller, and Lee Boling. Dkt. 65. The Court has considered the motion, Plaintiffs' Response (Dkt. 68), the remaining named defendants' Reply (Dkt. 69), and the remainder of the file herein.

         BACKGROUND

         A. Procedural history.

         Plaintiffs have made several attempts to amend the original Complaint (Dkt. 1), without success. See Dkt. 26, 33, 35, 42, 43, 44, 46, 63. The Court has denied motions for leave to amend the Complaint without prejudice. Dkts. 42, 63. The Complaint still controls.

         The Complaint names multiple defendants, the following of which have been dismissed either voluntarily by Plaintiffs or by order of the Court: Pierce County Superior Court, Washington State Liquor and Cannabis Control Board, Washington State Department of Revenue, Joshua Choate, Michael Pellicciotti, and Judges John Doe and Jane Doe. Dkts. 17, 18. The remaining named defendants, Boyd Goodpastor, J. Mark Keller, and Lee Boling, filed this motion to dismiss. See Dkt. 65.

         B. Facts alleged.

         The Complaint centers on Plaintiffs' commercial activities on Public Domain Allotment 130-1027 (“the Allotment”), which Plaintiffs allege is Indian Country and not subject to taxation by the State of Washington. Dkt. 1 at 1. Law enforcement “raided the convenience store on the [A]llotment and criminally charged” four of the plaintiffs “with violating the state of Washington cigarette tax law.” Dkt. 1 at ¶26. These plaintiffs entered Alford pleas in May of 2016 and have appealed their state court convictions. Id. The remaining plaintiff, Edward Amos Comenout III, who is allegedly a joint owner of the Allotment, “has never been accused or charged in any with any participation in the convenience store operation on the [A]llotment.” Dkt. 1 at ¶34. Much of the Complaint seeks to hold liable the prosecutors and judges involved in the state proceedings. See, e.g., Dkt. 1 at ¶¶27-29, 32.

         Specific to the remaining named defendants, the Complaint alleges only the following:

30. Boyd Goodpaster and Lee Boling are employees . . . of the Washington State Liquor and Cannabis Control Board. They each personally investigated and coordinated prosecution of Plaintiffs beyond territorial [sic] and without personal jurisdiction over Plaintiffs.
31. Officer J. Mark Keller has issued several affidavits against Plaintiff as an agent on loan to the state of Washington. His affidavits have recited legal principles but have failed to give a correct statement of the application of the state cigarette tax law to Indians, thereby misleading courts to issue invalid search warrants.

Dkt. 1 at ¶¶30, 31 (emphasis added). The remaining named defendants are each named in their professional capacity. Id.

         The Complaint alleges three claims, the second of which is alleged only against dismissed defendants. See Dkt. 1 at ¶64. The First Claim seeks “declaratory and injunctive judgment” on approximately eighteen separate grounds. Dkt. 1 at ¶¶60-63. Common to all relief sought is the premise that Plaintiffs should be able to use the Allotment for commercial purposes without interference from the State of Washington. See Dkt. 1 at ¶¶60-63. For example, the Complaint seeks declaratory judgment that federal law applies to Indian activities on the Allotment (¶60.2); that “Defendants have no personal jurisdiction of Plaintiffs' activity” on the Allotment, except for certain crimes (¶60.4); that the “exclusive jurisdiction over the [A]llotment is in the United States Congress” (¶60.6); and that the State of Washington “has no right to control or tax buildings or the revenue” on the Allotment (¶63.8). The First Claim also seeks declaratory judgment relating to pending state criminal proceedings, for example, when requesting that “state court actions in the prosecutions listed . . . be dismissed for lack of jurisdiction (¶63.1), and that “no jurisdiction existed to issue a state court warrant for their arrests” (¶63.2). Finally, the First Claim seeks declaratory and injunctive relief as to “industrial Hemp, ” specifically, that “commerce in marijuana now allowed in the State of Washington is legally allowed on the [A]llotment.” Dkt. 1 at ¶63.10.

         The Third Claim, which is one paragraph in length, requests that “the Court enjoin the Defendants . . . from any and all actions in the future [that are] preempted by federal law . . . or . . . from enforcing the laws ...


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