United States District Court, W.D. Washington, Tacoma
THEODORE B. EDENSTROM, Plaintiff,
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
J. BRYAN UNITED STATES DISTRICT JUDGE
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).
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.
Order to Show Cause: claims against Defendant Schade should
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.
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).
Schade's response (Dkt. 56) offers nothing but legal
conclusions and information unhelpful to resolving the issues
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).
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.
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.
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.
the constitutional claims against Defendant Schade should be