United States District Court, W.D. Washington, Seattle
S. ZILLY UNITED STATES DISTRICT JUDGE.
MATTER comes before the Court on a motion for summary
judgment, docket no. 53, brought by defendants City of
Seattle and Eugene Schubeck, an officer with the Seattle
Police Department ("SPD"). The motion was filed on
July 20, 2017, and was originally noted for August 11, 2017.
Because of plaintiff s counsel's family health issues,
the motion was renoted to August 25, 2017. Minute Order
(docket no. 65). At plaintiffs request, the motion was again
renoted to September 29, 2017. Minute Order (docket no. 73).
Plaintiff was advised that no further extension would be
granted and that, if no response was timely filed, the Court
would consider the pending motion for summary judgment on the
basis of the papers filed in support thereof and the other
materials in the record. Id. On the deadline for any
response, plaintiff filed yet another request to continue the
motion, indicating that plaintiff's counsel had been ill
over the past two days, which were on a weekend, and that
plaintiff's counsel anticipated completing a response to
the motion for summary judgment by October 2, 2017.
See Pla.'s Resp. (docket no. 74). Such extension
request was not properly made by way of motion noted for the
second Friday after filing, see Local Civil Rule
7(d)(2), or via a stipulation and proposed order after
consultation with opposing counsel, see Local Civil
Rule 7(j). Moreover, October 2, 2017, has long since passed,
and plaintiff's counsel has still not filed a substantive
response to the pending dispositive motion. The Court
concludes that plaintiff's request for a continuance is
not premised on any actual emergency, but rather is aimed at
improperly delaying these proceedings. No extension will be
granted, and the Court considers the pending motion for
summary judgment ripe for review.
Aleksandra Milutinovic commenced this action in King County
Superior Court against her ex-husband Christopher Moritz, the
City of Seattle, and Officer Schubeck. In March 2016, the
City of Seattle and Officer Schubeck removed the case to this
district. Notice of Removal (docket no. 1). In August 2016,
the domestic violence and similar claims alleged by plaintiff
against Moritz were severed and remanded to state court.
Minute Order (docket no. 25). Plaintiff's claims against
Moritz for trespass to real and personal property,
conversion, malicious mischief, and intentional or negligent
damage to real and personal property, however, remain before
this Court. Id.
2017, on plaintiff's motion, the Court dismissed with
prejudice plaintiff's claim against the City of Seattle
for violation of the Americans with Disabilities Act and her
claim against Officer Schubeck for discrimination on the
basis of mental illness or other disability. Minute Order
(docket no. 51). The claims still pending against the City of
Seattle and/or Officer Schubeck are for (i) unreasonable
search and seizure in violation of the Fourth Amendment; (ii)
deprivation of liberty and property without due process of
law in violation of the Fourteenth Amendment; and (iii)
violation of Washington's Public Records Act
(“PRA”), specifically RCW 42.56.550(1)&(4).
See Am. Compl. at ¶¶ 44-47 (docket no.
1-2). The City of Seattle and Officer Schubeck move for
summary judgment and dismissal of these claims.
search-and-seizure and due-process claims relate to a
“civil standby” conducted by Officer Schubeck on
November 25, 2013. While on routine patrol, Officer Schubeck
was dispatched to meet Moritz at a gas station on Aurora
Avenue, and after a brief discussion, Officer Schubeck agreed
to meet Moritz at his and plaintiff's home, located at
753 North 102nd Street. See Schubeck Decl. at
¶¶ 5-12 & Ex. A (docket no. 55). Because
plaintiff had earlier changed the locks, Moritz was unable to
access the house through the doors or garage. See
id. at ¶ 14; see also Resp. to
Interrogatory No. 7, Ex. 2 to Sharifi Decl. (docket no.
54-2). Moritz used a large, U-shaped, metal shackle from the
front yard to bang against and break through the front door.
See Schubeck Decl. at ¶ 16. Officer Schubeck
did not assist Moritz in gaining entry to the house.
Id. After Moritz forced open the door, Officer
Schubeck conducted a safety sweep and then left the premises.
Id. at ¶ 17; see also Exs. A & B
to Schubeck Decl.
PRA claim involves a public disclosure request made by
plaintiff's counsel on October 15, 2015, seeking copies
of all police or incident reports associated with plaintiff,
Moritz, or their residence for the period from January 1,
2005, to the present. See Ex. A to Trudeau Decl.
(docket no. 59). SPD acknowledged the request on October 22,
2015, and on three separate occasions, SPD informed
plaintiff's counsel that additional time was needed to
respond. Trudeau Decl. at ¶¶ 4 & 5 and Exs. B
& C. The requested materials were provided in two batches
on separate dates, namely February 26, 2016, and March 16,
2016. Id. at ¶¶ 6 & 7 and Exs. D &
Standard for Summary Judgment
Court shall grant summary judgment if no genuine issue of
material fact exists and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). The moving
party bears the initial burden of demonstrating the absence
of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). A fact is material if
it might affect the outcome of the suit under the governing
law. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). To survive a motion for summary judgment,
the adverse party must present affirmative evidence, which
“is to be believed” and from which all
“justifiable inferences” are to be favorably
drawn. Id. at 255, 257. When the record, taken as a
whole, could not, however, lead a rational trier of fact to
find for the non-moving party on matters as to which such
party will bear the burden of proof at trial, summary
judgment is warranted. See Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); see
also Celotex, 477 U.S. at 322.
Search-and-Seizure and Due-Process Claims
crux of plaintiff's claim is that she was the sole owner
of the house on North 102nd Street, with the right to exclude
Moritz, and that Officer Schubeck assisted Moritz in gaining
access to the home. See Resp. to Interrogatory No.
7, Ex. 2 to Sharifi Decl. (docket no. 54-2). The undisputed
evidence, however, indicates that Officer Schubeck did not
participate in Moritz's efforts to force open the front
door, that he entered the dwelling only to conduct a safety
sweep at the invitation and with the consent of an apparent
resident, and that he did not seize or take anything from the
home. Indeed, Officer Schubeck explained to
plaintiff, when he coincidentally responded to her request
for a “civil standby” on December 7, 2013, that
he did not “let” Moritz into the residence on
November 25, 2013, and that Moritz himself opened the safe in
which his firearms were stored and stated that all of his
cash and gold was missing. See Schubeck Decl. at
¶ 25 & Ex. B (docket no. 55). When speaking with
Officer Schubeck on December 7, 2013, plaintiff agreed that
Moritz had a right to be in the house on North 102nd Street
on November 25, 2013. Id. at Ex. B (at 08:08:17
Court concludes, as a matter of law, that plaintiff's
claims under 42 U.S.C. § 1983 for violation of her
Fourth and/or Fourteenth Amendment rights are entirely
lacking in merit, frivolous, and vexatious. See Illinois
v. Rodriguez, 497 U.S. 177, 181-88 (1990) (holding that
the Fourth Amendment's prohibition on warrantless entry
into a person's home does not apply when an occupant
reasonably believed to have common authority over the
premises provides voluntary consent); Wedges/Ledges of
Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir.
1994) (observing that the threshold for any substantive or
procedural due process claim is deprivation of a liberty or
property interest protected by the Constitution); see
also Albright v. Oliver, 510 U.S. 266, 273 (1994)
(“Where a particular Amendment ‘provides an
explicit textual source of constitutional protection'
against a particular sort of government behavior, ‘that
Amendment, not the more generalized notion of
‘substantive due process, ' must be the guide for
analyzing these claims.'” (quoting Graham v.
Connor, 490 U.S. 386, 395 (1989))). With regard to
plaintiff's § 1983 claims, the pending motion for
summary judgment is GRANTED, and such claims are DISMISSED