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Edenstrom v. Thurston County

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

September 7, 2017

THEODORE B. EDENSTROM, Plaintiff,
v.
THURSTON COUNTY, Defendants.

          ORDER ON (1) PLAINTIFF AND DEFENDANT SETH SCHADE'S RESPONSES TO ORDER TO SHOW CAUSE AND (2) PLAINTIFF'S MOTION FOR RECONSIDERATION

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court following the Plaintiff and Defendant Seth Schade's responses to the Order to Show Cause (Dkt. 55). The Court has considered the parties' responses and the remainder of the file herein. Also pending before the Court is Plaintiff's Motion for Reconsideration (Dkt. 57).

         In the Order to Show Cause (Dkt. 55), the Court ordered Plaintiff and Defendant Schade to show cause, by September 1, 2017, why the case should not be dismissed against Defendant Schade. Defendant Schade filed a response (Dkt. 56) on August 31, 2017. On September 1, 2017, Plaintiff filed a Motion for Reconsideration (Dkt. 57), describing how “Plaintiff has met the burden of proof for a Sec. 1983 action against Thurston County Wash., Mike Kain and Seth J Schade[.]” Plaintiff made no other filings on or prior to that date addressing concerns the Court raised in its Order to Show Cause. Because Plaintiff's Motion for Reconsideration addresses the showing as to the § 1983 claim against Defendant Schade, the Court construes Plaintiff's filing both as a response to the Order to Show Cause as well as a motion for reconsideration. See Dkt. 57.

         A. Order to Show Cause: claims against Defendant Schade should be dismissed.

         The Order to Show Cause requested the parties to explain (1) why Plaintiff's constitutional claims against Defendant Schade should not be dismissed, and (2) why the Court should not decline to exercise its supplemental jurisdiction to dismiss the remaining state law claim for trespass without prejudice. Dkt. 55 at 13-15.

         1. Constitutional claims.

         Plaintiff's Motion for Reconsideration, construed as a response, states that “[Defendant] Schade's frivolous oil spill complaints and sabotage have gotten worse due to lack of law enforcement, but if this court does not wish to hear these issues, plaintiff will file complaints in [Thurston] county.” Dkt. 57 at 5. The motion includes several attachments: “Section 1983, ” which appears to include extended legal argument about the sufficiency of Plaintiff's constitutional claims (Dkt. 57-1); a string of email correspondence from December 2011 between county officials and a redacted person about a Thurston County site visit to Mr. Edenstrom's property (Dkt. 57-2); an email dated November 2013 to Thurston County from a redacted person describing alleged County Code violations and attaching photos (Dkt. 57-3); and an email dated December 2011 to Thurston County from a redacted person describing alleged County Code violations (Dkt. 57-4).

         Defendant Schade's response (Dkt. 56) offers nothing but legal conclusions and information unhelpful to resolving the issues at hand.

         If it is assumed that the redacted person in the email correspondences is Defendant Schade, Plaintiff still has not made a sufficient showing. There is no showing that Defendant Schade's conduct was state action or that Defendant Schade acted in joint participation with the government. A showing of “joint participation” is a two-part inquiry, considering (1) whether the constitutional deprivation was “caused by . . . a person for whom the State is responsible, ” and (2) that person “may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co. Inc., 457 U.S. 922, 937 (1982). A person is a state actor if “he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the State.” Id. This includes “private” citizens who jointly participate with the government, but “a relationship far closer than merely furnishing the information-accurate or not” is required. Andresen v. Diorio, 349 F.3d 8, 13 (1st Cir. 2003).

         Applying Lugar here, the email correspondence at most suggests that Defendant Schade filed several complaints with Thurston County about alleged unlawful activity on Plaintiff's property and that Thurston County investigated based on the neighbor tip. Because Thurston County did not violate Plaintiff's constitutional rights, see Dkt. 55 at 1-12, it cannot be said that Defendant Schade and Thurston County shared the common goal of or reached an agreement to violate Plaintiff's constitutional rights. See Betts v. Shearman, 751 F.3d 78, 85, 86 (2nd Cir. 2014). There is not sufficient indicia of intertwining or of joint action as a matter of law.

         An attachment to Plaintiff's motion, “Section 1983, ” makes substantive arguments about Plaintiff's constitutional claims. See Dkt. 57-1. Particular to Defendant Schade (see Dkt. 57-1 at 9-11), Plaintiff argues that Defendant Schade, “with and dependent upon the authority of Thurston County, has continuously trespassed onto Plaintiff's private property, disregarding . . . No Trespass signs, providing Thurston County with frivolous complaints needed to generate an investigation.” Dkt. 57-1 at 9. Plaintiff describes “an intertwined symbiotic relationship” and “conspiracy, ” where Defendant Schade collects information for Thurston County to issue Notice of Violation letters and Stop Work Orders. Id. at 10, 11.

         Plaintiff's legal conclusion is not supported by the record. Plaintiff points to an exhibit, “Kain's site visit/investigation, ” Dkt. 57-1 at 10, which appears to be Dkt. 57-2, an email from Defendant Kain presumably to Defendant Schade about Plaintiff's property. The email states that “County staff did make a visit to the Edenstrom property . . . At that time there was only one violation observed.” Dkt. 57-2 at 2. The email further states that Defendant Kain “will keep you [redacted recipients] informed of our progress.” Id. There is not a sufficient showing of joint action. The showing is more analogous to cases where police follow through with investigations based on information from private citizens. See, e.g., Betts, 751 F.3d at 87, 88.

         Therefore, the constitutional claims against Defendant Schade should be dismissed.

         2. Stat ...


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