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Milutinovic v. Moritz

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

November 3, 2017




         THIS 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.


         Plaintiff 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.

         In May 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.

         Plaintiff's 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.

         Plaintiff's 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 & E.


         A. Standard for Summary Judgment

         The 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.

         B. Search-and-Seizure and Due-Process Claims

         The 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.[1] 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 a.m.).

         The 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 with prejudice.[2]

         C. Public ...

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