United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS AND GRANTING PLAINTIFF
LEAVE TO AMEND
BENJAMIN H. SETTLE United States District Judge.
matter comes before the Court on Defendants Mark Lindquist,
Chelsea Lindquist, and Pierce County's
(“Defendants”) motion to dismiss (Dkt. 26). The
Court has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby rules as follows:
February 2, 2016, Ames filed a complaint against Defendants
in Pierce County Superior Court for the State of Washington.
Dkt. 1, Exh. 1. Ames asserted causes of action for violations
of his constitutional rights, conspiracy to violate his civil
rights, abuse of process, invasion of privacy, constructive
discharge, outrage, and indemnification. Id. On
February 22, 2016, Defendants filed a motion to dismiss. Dkt.
13. On April 21, 2016, the Court granted the motion
concluding that Ames failed to connect factual allegations to
the elements of his causes of action and granted Ames leave
to amend. Dkt. 21.
5, 2016, Ames filed a First Amended Complaint
(“FAC”) asserting six causes of action: (1)
violations of his civil rights, including his First Amendment
right to freedom of speech, right to redress or petition, and
right to access the courts and his Fourteenth Amendment
rights to procedural and substantive due process, (2) abuse
of process, (3) invasion of privacy, (4) constructive
discharge/breach of contract, (5) outrage, and (6)
indemnification. Dkt. 24. The FAC is 72 pages long, and Ames
attached 320 pages of appendices. Id.
19, 2016, Defendants filed a motion to dismiss. Dkt. 26. On
October 6, 2016, the Court granted the motion in part,
reserved ruling in part, and requested additional briefing.
Dkt. 35. On April 26, 2017, the Court granted the motion in
part, reserved ruling in part, and requested additional
briefing on Ames' state law claims. Dkt. 41. On May 12,
2017, Ames filed a supplemental brief. Dkt. 43. On May 19,
2017, Defendants replied. Dkt. 44.
Motion to Dismiss
to dismiss brought under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under such a theory. Balistreri v. Pacifica
Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Material allegations are taken as admitted and the complaint
is construed in the plaintiff's favor. Keniston v.
Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive
a motion to dismiss, the complaint does not require detailed
factual allegations but must provide the grounds for
entitlement to relief and not merely a “formulaic
recitation” of the elements of a cause of action.
Twombly, 127 S.Ct. at 1965. Plaintiffs must allege
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 1974.
Abuse of Process
“Abuse of process requires two essential elements:
‘(1) the existence of an ulterior purpose-to accomplish
an object not within the proper scope of the process-and (2)
an act in the use of legal process not proper in the regular
prosecution of the proceedings.'” Hough v.
Stockbridge, 152 Wn.App. 328, 343-44 (2009) (quoting
Fite v. Lee, 11 Wn.App. 21, 27 (1974)).
case, Ames asserts a straightforward claim of abuse of
process. Ames alleges that Defendants fabricated false
information about Ames and then disseminated the material to
defense attorneys in certain criminal cases and filed the
material in a civil case. FAC ¶¶ 6.89-6.94.
Defendants argue that they are absolutely immune from any
cause of action based on a prosecutor disclosing
Brady material. Dkt. 14 at 2-4. The Court agrees to
the extent that a prosecutor produces material that he is
aware of, but disagrees if the prosecutor produces material
that he knowingly fabricated. For example, if a prosecutor
gives a defense attorney an independent investigative report
that contains impeachment evidence, then immunity applies.
See Broam v. Bogan, 320 F.3d 1023, 1029-1032 (9th
Cir. 2003). Such an activity falls squarely within the
prosecutor's duty to turn over exculpatory material
regardless of the prosecutor's own belief in the
truthfulness of the material that was generated by another.
Id. On the other hand, Defendants have failed to
cite authority for or persuade the Court that a prosecutor is
immune from liability for fabricating and distributing
impeachment evidence with the ulterior motive of discrediting
a particular police officer.
at least in part, asserts a claim for abuse of process based
on the prosecutor's fabrication and dissemination of
Brady material. Based on the current record, Ames
asserts facts to plausibly state a claim for relief. Ames
alleges that Pierce County prosecutors prepared declarations
containing information that they knew was false. FAC ¶
6.91. Ames alleges that the prosecutors then filed the
declarations for retaliatory purposes and to accomplish the
objective of discrediting Ames in various criminal cases.
Id. The Court concludes that these ...