United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION TO DISMISS [Dkt. #62]
HONORABLE RONALD B. LEIGHTON JUDGE
MATTER is before the Court on Defendant Blauvelt's Motion
to Dismiss [Dkt. #62].
(an attorney) represented Lyons' opponent (Taft) in the
2012 Pacific County litigation that led to this case. Lyons
lost. He did not appeal. Instead, he sued his own attorneys,
the County administrator, and his opponent's attorney for
a variety of claimed misdeeds.
Court dismissed Lyons' claims against his own attorneys
(Williams and Doumit) [Dkt. #35] and then his claims against
the Pacific County Administrator [Dkt. #54]. Lyons (twice)
prematurely appealed the dismissal of his claims against his
attorneys, and each time the Ninth Circuit dismissed the
appeal because the orders were not final. [See Dkt.
#s 47 and 60]. The Orders were not appealable because
Lyons' claims against Blauvelt had not been adjudicated.
months ago, Lyons sued the same parties, asserting the same
claims, in a second federal case, Lyons v. Pacific
County, et al., Cause No. 17-5335RBL. The Court
dismissed Lyons' claims in that case against Williams and
Pacific County [Dkt. #18] and Doumit [Dkt. #33] on res
Blauvelt has now moved for dismissal of Lyons' claims
against him in this case (and in the later one). Blauvelt
argues that Lyons has not pled and cannot plead a
plausible claim against him as the attorney representing
Lyons opponent in litigation. Lyons has not responded to the
under Rule 12(b)(6) may be based on either the lack of a
cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory. Balistreri v.
Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.
1990). A plaintiff's complaint must allege facts to state
a claim for relief that is plausible on its face. See
Aschcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). A claim
has “facial plausibility” when the party seeking
relief “pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. Although the
Court must accept as true the Complaint's well-pled
facts, conclusory allegations of law and unwarranted
inferences will not defeat a Rule 12(c) motion. Vazquez
v. L. A. County, 487 F.3d 1246, 1249 (9th Cir. 2007);
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001). “[A] plaintiff's obligation to
provide the ‘grounds' of his ‘entitle[ment]
to relief' requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 129 S.Ct. at 1949 (citing Twombly).
A pro se Plaintiff's complaint is to be
construed liberally, but like any other complaint it must
nevertheless contain factual assertions sufficient to support
a facially plausible claim for relief. Id.
pro se Plaintiff's complaint is to be construed
liberally, but like any other complaint it must nevertheless
contain factual assertions sufficient to support a facially
plausible claim for relief. Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim for relief
is facially plausible when “the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
the Court will permit pro se litigants an opportunity to
amend their complaint in order to state a plausible claim.
See United States v. Corinthian Colleges, 655 F.3d
984, 995 (9th Cir. 2011) (“Dismissal without leave to
amend is improper unless it is clear, upon de novo review,
that the complaint could not be saved by any
amendment.”) On a 12(b)(6) motion, “a district
court should grant leave to amend even if no request to amend
the pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other
facts.” Cook, Perkiss & Liehe v. N. Cal.
Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990).
However, where the facts are not in dispute, and the sole
issue is whether there is liability as a matter of
substantive law, the court may deny leave to amend.
Albrecht v. Lund, 845 F.2d 193, 195-96 (9th Cir.
argues that Lyons' constitutional (§1983) claims
against him are not plausible and cannot be cured, because he
is not a state actor as a matter of law; he was instead a
private attorney representing his client.
plaintiff cannot assert a 42 U.S.C. § 1983 claim for
violation of constitutional rights against a defendant who is
not a state actor. See West v. Atkins, 487 U.S. 42,
48 (1988). This determination is made using a two-part test:
(1) “the deprivation must . . . be caused by the
exercise of some right or a privilege created by the
government or a rule of conduct imposed by the
government;” and (2) “the party charged with the
deprivation must be a person who may fairly be said to be a
governmental actor.” Sutton v. Providence
St. Joseph Medical Center, 192 F.3d 826, 835
(9th Cir. 1999) (emphasis added).
Blauvelt is not a state actor, he cannot, as a matter of law,
infringe upon Lyons' constitutional rights. Lyons'
§1983 claims are fatally flawed and the flaw cannot be
cured by amendment. Blauvelt's Motion to Dismiss these
claims is GRANTED and they are DISMISSED with prejudice and
without leave to amend.
also seeks dismissal of Lyons' (unclear) state law
claims, pointing to consistent and persuasive (if
non-binding) authority from other jurisdictions holding that
one cannot sue his opponents' attorney because he lost at
trial. See cases discussed at Dkt. # 62, pp. 4-5.
the rule in Washington, too. If opposing counsel suborns
perjury, for example, he may be subject to criminal
prosecution (but not to a civil action by the losing party).
See W. G. Platts, Inc. v. Platts, 73 Wn.2d 434, 440,
438 P.2d 867, 871 (1968). And an attorney obviously has
obligations to his client and his opponent (and the Court)
under the Rules of Professional Conduct, but violations of
those do not give rise to a private civil claim by his
client's adversary. Instead, the exclusive remedy is
disciplinary action by the bar. See Hizey v.
Carpenter, 119 Wn.2d ...