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DiMaio v. County of Snohomish

United States District Court, W.D. Washington

December 1, 2017

RICHARD DIMAIO, Plaintiff,
v.
COUNTY OF SNOHOMISH, et al., Defendants.

          ORDER ON DEFENDANTS' SECOND MOTION TO DISMISS

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before the court is Defendants County of Snohomish (“the County”) and Snohomish County Sheriff Ty Trenary's (collectively, “Defendants”) Federal Rule of Civil Procedure 12(b)(6) motion to dismiss Plaintiff Richard DiMaio's amended complaint. (2d MTD (Dkt. # 32).) Mr. DiMaio opposes the motion. (2d MTD Resp. (Dkt. # 33).) The court has considered the motion, the submissions in support of and in opposition to the motion, the relevant portions of the record, and the applicable law.Being fully advised, [1] the court GRANTS Defendants' motion for the reasons set forth below.

         II. BACKGROUND

         On January 30, 2017, Mr. DiMaio, who appears to be proceeding pro se, [2]commenced this litigation by filing a motion for leave to proceed in forma pauperis (“IFP”). (IFP Mot. (Dkt. # 1).) The court granted Mr. DiMaio's motion on February 7, 2017 (IFP Order (Dkt. # 2)), and docketed his complaint the same day (see Compl. (Dkt. # 3)).

         This lawsuit arises from Mr. DiMaio's termination from the Snohomish County Sheriff's Office. (FAC (Dkt. # 22) ¶¶ 1, 11, 13.) On April 6, 2017, Defendants moved to dismiss Mr. DiMaio's original complaint pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6). (See 1st MTD (Dkt. # 8); 8/2/17 Order (Dkt. # 20).) The court construed Mr. DiMaio's original complaint as alleging First and Fourteenth Amendment violations against Snohomish County under 42 U.S.C. § 1983. (Compl. ¶¶ 5, 13; see also Id. at 3.) The court concluded that Mr. DiMaio failed to state a claim for deprivation of Mr. DiMaio's asserted First Amendment right to access legal counsel and the legal process to redress matters of public concern involving unconstitutional action; Fourteenth Amendment right to equal protection of the laws; and Fourteenth Amendment right to procedural due process regarding termination of his employment.[3] (8/2/17 Order at 14.) The court granted Mr. DiMaio leave to amend those claims, however, because the court found it “possible that Mr. DiMaio c[ould] cure the defects in his complaint with additional factual allegations.” (Id. at 20.) The court cautioned Mr. DiMaio that the court would dismiss his complaint without leave to amend if he filed an amended complaint that failed to remedy the deficiencies in the original complaint. (Id. at 20-21.) Mr. DiMaio filed his amended complaint on August 18, 2017. (See FAC.)

         Mr. DiMaio's amended complaint deviates little from his original complaint. (Compare Compl., with FAC.) He asserts that he was hired as a sheriff's deputy by the Snohomish County Sheriff's Office in 2004.[4] (FAC ¶ 5.) Mr. DiMaio alleges that in 2013, he “was falsely accused and disciplined for deficient attendance, deficient use of time[, ] and inefficiency.” (Id. ¶ 6.) He states that after “notice and review, ” those “accusations were found to be without merit and unsustained.” (Id.) He further alleges that in 2014, his former girlfriend falsely accused him of wrongdoing, a “Snohomish Internal Affairs Investigator” credited her false accusations as true, and “a pre-disciplinary investigator” recommended that Mr. DiMaio be terminated. (Id. ¶¶ 7-8, 10-11.) Mr. DiMaio contends that on February 3, 2015, Sheriff Trenary terminated Mr. DiMaio's employment without cause. (Id. ¶ 13.)

         Based on these allegations, Mr. DiMaio asserts claims for violation of his rights under the First Amendment and to procedural due process and equal protection of the laws under the Fourteenth Amendment. (Id. ¶¶ 18-22.) He also asserts a breach of contract claim. (Id. ¶¶ 23-24.) Pursuant to Rule 12(b)(6), Defendants move to dismiss the amended complaint without leave to amend and with prejudice. (See 2d MTD.)

         III.ANALYSIS

         A. Legal Standard

         Rule 12(b)(6) provides for dismissal for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). When considering a motion to dismiss under Rule 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A claim has facial plausibility 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 677-78. It is not enough for a complaint to “plead[] facts that are ‘merely consistent with' a defendant's liability.” Id. at 678 (quoting Twombly, 550 U.S. at 557). Dismissal under Rule 12(b)(6) can be based on 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). Although the court liberally construes a pro se plaintiff's complaint, Litmon, 768 F.3d at 1241, the court cannot supply essential facts that the plaintiff fails to plead, Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).

         B. Defendants' Motion

         Defendants move to dismiss Mr. DiMaio's amended complaint with prejudice for failure to state a claim. (See 2d MTD at 3.) Specifically, they contend that Mr. DiMaio fails to cure the deficiencies that led to the court's prior dismissal of his constitutional claims, he did not have the court's leave to add a breach of contract claim, and even if Mr. DiMaio had been permitted to include the contract claim, he inadequately pleads it. (See Id. at 3-9.) Mr. DiMaio's response to the motion contains a “clarification of facts”; a statement of his belief that “the path the [C]ounty used to terminate [him] was crooked, deceptive[, ] and illegal, ” providing “the basis for the compl[ai]nt”; a contention that Defendants and their counsel “would like to jump straight to the [Federal Rule of Civil Procedure] 26(f) conference”; and a statement that he is “slightly confused by what appears to be a redundant motion to dismiss.” (2d MTD Resp. at 1-3.) The court now addresses Defendants' motion, construing the facts in the light most favorable to Mr. DiMaio and construing the complaint and briefing liberally due to his pro se status.

         1. Constitutional Claims

         Mr. DiMaio brings his constitutional claims against the County under 42 U.S.C. § 1983.[5] (FAC ¶¶ 18, 20-21); see also 42 U.S.C. § 1983. To state a claim under Section 1983, a plaintiff must plead facts giving rise to an inference that (1) he suffered a violation of rights protected by the Constitution or created by federal statute, and (2) the violation was proximately caused by a person acting under color of state or federal law. See, e.g., Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). A local government unit or municipality can be sued as a “person” under Section 1983 when a plaintiff identifies a municipal “policy” or “custom” that caused his or her injury. Bryan Cty. Comm'rs v. Brown, 520 U.S. 397, 403 (1997) (citing Monell, 436 U.S. at 694). Thus, to state a Section 1983 claim against Snohomish County, Mr. DiMaio must plead facts supporting (1) a violation of his constitutional rights, and (2) a County custom or policy that caused the constitutional violation. Thomas v. City of Seattle, 395 F.Supp.2d 992, 999 (W.D. Wash. 2005). A plaintiff may plead a municipal policy or custom by alleging facts that give rise to (1) an inference of a longstanding practice or custom which constitutes the municipality's standard operating procedure; (2) an inference that the decisionmaking official was a final policymaking authority under state law whose edicts or acts may fairly be said to represent official policy in the area of decision; or (3) an inference that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005). Although previous Ninth Circuit authority required a plaintiff in a ...


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