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Edenstrom v. Thurston County

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

August 22, 2017

THEODORE B. EDENSTROM, Plaintiff,
v.
THURSTON COUNTY, MIKE KAIN, and SETH J. SCHADE, Defendants.

          (1) ORDER GRANTING DEFENDANTS THURSTON COUNTY AND MIKE KAIN'S MOTION FOR SUMMARY JUDGMENT AND (2) ORDER TO SHOW CAUSE

          ROBERT J. BRYAN, UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendants Thurston County, Washington and Mike Kain's (collectively “County Defendants”) Motion for Summary Judgment. Dkt. 37. The Court has considered the pleadings filed in support and in opposition of the file, including the Plaintiff's supplemental brief filed on August 14, 2017 (Dkt. 44), the County Defendants' supplemental brief filed on August 18, 2017 (Dkt. 50), and the remaining record.

         On November 25, 2016, Plaintiff, pro se, filed a civil rights complaint asserting claims against Defendants for violations of his Fourth, Fifth, and Fourteenth Amendment rights, pursuant to 42 U.S.C. § 1983. Dkt. 1. The County Defendants now move for summary judgment of dismissal. Dkt. 37. For the reasons provided herein, the motion should be granted. Further, Defendant Shade and Plaintiff should show cause in writing, if any they have, why constitutional claims against Defendant Schade should not also be dismissed and why the Court should not decline supplemental jurisdiction over the remaining state law claims.

         I. FACTUAL BACKGROUND AND PENDING MOTION

         A. FACTS

         Plaintiff owns waterfront property commonly known as 9733 Hunter Point Road NW, Olympia, Washington (“the Property”), which is in Thurston County. Dkt. 1. According to the Complaint, Plaintiff moors his barge on the shores of the property. Id.

         On November 26, 2013, the Thurston County Resources Stewardship Department sent Plaintiff a letter, entitled “Notice of Violation.” Dkt. 37-1, at 1-2. The letter indicates that the Thurston County Compliance Section of the department had “received a complaint regarding the use of [Plaintiff's] property.” Id. The letter cites two Thurston County zoning ordinances and informs Plaintiff that “[t]hese codes mean that a commercial business cannot be operated from your property without appropriate permits.” Id. The letter further provides:

It has been brought to our attention that unpermitted commercial activity may be taking place on the above referenced property. To be in compliance with the applicable codes, this activity requires approval of a Special Use Permit and a Shoreline Substantial Development Permit. Until these permits are obtained, no additional commercial use of the subject property is permitted.

Dkt. 37-1, at 1. The letter also warns that “[f]ailure to comply with the Thurston County Code could result in the issuance of a Class 2 Civil Infraction or other appropriate legal action.” Id. at ¶ 2. The letter has a web address to apply for the referenced permits and gives a number to call for questions. Id. The letter was signed by Guy Jaques, who is not an individual defendant in this case. Id. Plaintiff did not appeal the Notice of Violation letter in writing to a hearing examiner. But see Thurston County Code 20.60.060(1).

         In an unsworn declaration submitted by Plaintiff (Dkt. 45), which the Court technically should not consider, see 28 § U.S.C. § 1746, Plaintiff represents that, after receiving the Notice of Violation letter, he called the County employee who signed the letter, Mr. Jaques. According to Plaintiff, Mr. Jaques told him that “virtually any unauthorized, unpermitted use . . . within the 200' buffer of the water was subject to disciplinary action unless [Plaintiff] initiated and paid for a shoreline hearing[.]” Dkt. 45 at 1, 2. Not being able to afford the permits, Plaintiff the following week “turned [his] job over to another contractor due to the fact that I could not utilize my land and tidelands for ingress, regress/navigation, related to the use of my vessel or the loading of my products and equipment.” Id.

         On January 6, 2014, Plaintiff, Mr. Jaques, Defendant Kain and the County's lawyer met to discuss the Notice of Violation letter and Plaintiff's options moving forward. Dkt. 38, at 3. Plaintiff's declaration also states that Plaintiff has contacted the County on, at least, several occasions since then, without response from the County. Dkt. 45 at 2-4. According to the County, Plaintiff has not applied for any permits to date, however, the County “has taken no further enforcement action against Plaintiff on the alleged violation since issuing the November 26, 2013 letter.” Dkt. 38, at 4.

         The Notice of Violation letter appears to have been issued at least in part based on emails to the County from a neighbor reporting unpermitted commercial waterfront activities on Plaintiff's property. See Dkt. 44-13. According to Plaintiff, Defendant Mike Kain acknowledged that the source of the emails was Defendant Schade. Dkt. 45 at 3.

         More recently, on February 15, 2017, according to declarations by Richard Smith and Plaintiff's son, Logan Edenstrom, which the Court technically should not consider, see 28 § U.S.C. § 1746, Defendant Schade was observed in a dinghy boat next to Plaintiff's boat, placing oil next to Plaintiff's boat the day before its inspection by the Coast Guard. Dkts. 46-48.

         B. CLAIMS AND PROCEDURAL HISTORY

         On November 25, 2016, almost three years after the County issued the Notice of Violation letter, Plaintiff filed this case. The Complaint alleges that Defendants violated Plaintiff's Fourth Amendment rights when they “searched [his] residence without [his] knowledge, presence or respect for posted no trespass signs.” Dkt. 1, at 3. The Complaint also alleges violations of the Fifth and Fourteenth Amendment when Defendants “issued a stop work order without any substantial due process, seizing Plaintiffs [sic] effects, taking liberty and property without compensation.” Id. Plaintiff's complaint asserts that he is “again in danger of losing [his] residence for taxes.” Id. at 4. Plaintiff asserts that Defendants' actions have impeded his “rights to navigation, trade of all kinds, build a house, borrow against the property for maintenance, repairs, taxes and so forth . . .” Id. Plaintiff seeks damages and injunctive relief requiring the Defendants (1) present what authority they are claiming that allows the requirement of permits, (2) explain how that authority can be exercised without due process, (3) repay damages, and (4) notify the Washington Attorney General of any wrongful acts. Id. at 6.

         On March 20, 2017, Plaintiff's motion for judgment on the pleadings was denied. Dkt. 26. The Court found that Plaintiff failed to show that there was no genuine issue of material fact for both necessary elements of a § 1983 claim: deprivation of a constitutional right and action done under color of law, particular to all three defendants. Dkt. 26, at 4. The Order notes that:

For example, although the County Defendants concede that Defendant Kain acted under ‘color of law' when acting in his official supervisor capacity, Plaintiff has not established a constitutional deprivation personal to him, and general theory of supervisory liability is not enough. Monell, 436 U.S. at 694. Or for example, as to Defendant Schade, Plaintiff has not established color of law. Plaintiff argues that Defendant Shade “colluded” with Thurston County, but there is at least a genuine issue of material fact as to the circumstances surrounding his conduct and thus the legal determination of whether it is “fairly attributable” to the government. See Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (“at least four criteria to identify state action: (1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus”).
Second, even if Plaintiff's broad theories of liability were sufficient-and they are not-issues of material fact abound as to whether a constitutional deprivation occurred, especially at this early stage of the litigation, before the close of discovery. Based on the pleadings, it is not clear to the undersigned what Due Process violation occurred.

Id. at 4-5.

         C. PENDING MOTION

         The County Defendants now move for summary dismissal of Plaintiff's claims against them. Dkt. 37. They argue that Plaintiff cannot establish that he was deprived of a constitutional right. Id.The County Defendants assert that to the extent that Plaintiff is asserting a claim for a “regulatory taking, ” his claim should be summarily dismissed. Id. To the extent that Plaintiff is asserting some other due process claim, the County Defendants also maintain the claim should be summarily dismissed. Id.

         In his initial response, Plaintiff asserts that the County has issued “several stop work orders and/or notice of violation” letters without due process since 2007. Dkt. 40. He states that he has “yielded and adjusted his activities to comply with these orders to the point of having to cease all activities related to using his vessel upon his tidelands.” Id. at 2. Plaintiff acknowledges that he has discussed these orders with the County and was advised he either had to obtain the permits required or pay for a public hearing. Id. at 3. Plaintiff's Response also includes a section entitled “E. Related issues needed for summary judgment in Plaintiff's favor, ” in which Plaintiff states that he “will provide records of his contract terms that were interfered with at the time of the last [Notice of Violation] and is willing to discuss settlements for damages with Thurston County under this court's discretion and oversight.” Dkt. 40, at ...


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