United States District Court, W.D. Washington, Tacoma
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Defendants Mark Lindquist
(“Lindquist”), Mark and Chelsea Lindquist, and
Pierce County's (“County”) (collectively,
“Defendants”) motion to dismiss (Dkt. 49). The
Court has considered the pleadings filed in support of and in
opposition to the motion and the remainder of the file and
hereby grants in part and denies in part the motion for the
reasons stated herein.
February 1, 2016, Plaintiff Michael Ames (“Ames”)
filed a complaint in Pierce County Superior Court for the
State of Washington against Defendants asserting numerous
causes of action. Dkt. 1-1. On February 6, 2016, Defendants
removed the matter to this Court. Dkt. 1.
5, 2016, Ames filed a seventy-two page amended complaint with
320 pages of appendices. Dkt. 24. On May 19, 2016, Defendants
moved to dismiss. Dkt. 24. The Court divided the motion into
three parts and requested additional briefing. Dkt. 32. On
October 6, 2016, The Court granted the motion in part and
denied the motion in part. Dkt. 35. The Court denied the
motion on Ames's first amendment claims against the
County. Id. On April 26, 2017, the Court granted the
motion on Ames's due process claims and granted Ames
leave to amend. Dkt. 41. On June 21, 2017, the Court granted
the motion in part and denied it in part, dismissed
Ames's state law indemnification claim with prejudice,
and granted Ames leave to amend other state law claims. Dkt.
30, 2017, Ames filed a seventy-three-page Second Amended
Complaint and 360 pages of appendices. Dkt. 46.
14, 2017, Defendants filed a motion to dismiss. Dkt. 49. On
August 7, 2017, Ames responded. Dkt. 50. On August 11, 2017,
Defendants replied and move to strike the overlength portions
of Ames's brief. Dkt. 51.
threshold matter, the Court agrees with Defendants that Ames
has created potential statute of limitations issues by
asserting allegations that occurred years before the
applicable period of limitations for some claims. Ames,
however, has also asserted allegations that occurred within
the applicable periods. At this time, the Court declines to
parse the complaint on an allegation-by-allegation basis
because, for each claim that survives, Ames has alleged at
least one fact to establish the claim. Theories and/or facts
under each claim that are barred will be disposed of as the
matter proceeds. With that understanding, the Court will
consider Defendants' motion.
to dismiss brought under Rule 12(b)(6) of the Federal Rules
of Civil Procedure may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under such a theory. Balistreri v. Pacifica
Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Material allegations are taken as admitted and the complaint
is construed in the plaintiff's favor. Keniston v.
Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive
a motion to dismiss, the complaint does not require detailed
factual allegations but must provide the grounds for
entitlement to relief and not merely a “formulaic
recitation” of the elements of a cause of action.
Twombly, 127 S.Ct. at 1965. Plaintiffs must allege
“enough facts to state a claim to relief that is
plausible on its face.” Id. at 1974.
asserts claims for violations of his First Amendment and
Fourteenth Amendment rights. The Court has concluded that
Ames has stated a First Amendment retaliation claim against
Pierce County. Dkt. 35. While the claim is limited to
municipal liability because Ames has failed to name any
individual besides Lindquist, the Court concludes that Ames
has asserted sufficient allegations to overcome a motion to
Ames's First Amendment claim against Lindquist, the
complaint is extremely confusing. If one reads the complaint,
ignoring the labels and conclusions, it would seem that Ames
is alleging that Lindquist organized a broad conspiracy to
ruin Ames's career as a police officer. Ames also alleges
that Lindquist ordered his subordinates to perjure themselves
in an effort to fabricate impeachment evidence to use against
Ames in pending and future criminal matters. Oddly, Ames
further alleges that the current defense attorney is one of
Lindquist's specialized deputies that he ordered to
pursue frivolous sanctions against Ames in a previous
lawsuit. Dkt. 46, ¶¶ 5.36 (“Mike Patterson .
. . whom Lindquist specially deputized in Ames' name
clearing case”), 6.26 (“Lindquist further
directed his special deputies to pursue frivolous lawsuit
sanctions against Ames for daring to request a name clearing
hearing judicially.”). Ames, however, fails to assert a