United States District Court, W.D. Washington, Tacoma
THEODORE B. EDENSTROM, Plaintiff,
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
J. BRYAN, UNITED STATES DISTRICT JUDGE
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.
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.
FACTUAL BACKGROUND AND PENDING MOTION
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
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
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).
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.
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.
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.
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.
CLAIMS AND PROCEDURAL HISTORY
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.
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
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.
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
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