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McGregor v. Kitsap County

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

December 27, 2017

CORINNA MCGREGOR, Plaintiff,
v.
KITSAP COUNTY, et al., Defendants.

          ORDER ON MOTION TO DISMISS

          Ronald B. Leighton, United States District Judge

         THIS MATTER is before the Court on Defendants' Motion to Dismiss [Dkt. 23]. In June 2014, Kitsap County Sheriff's Deputies responded to a 9-1-1 call from Plaintiff Corinna McGregor's then-husband reporting that McGregor was suicidal. Responding deputies observed McGregor, who was armed with a handgun, exit the residence and walk behind a nearby woodpile. McGregor was shot by Deputy Wilson Sapp during the ensuing standoff. McGregor survived the encounter and now brings a lawsuit alleging various torts and constitutional violations against Kitsap County, Deputy Sapp, and the current and former Kitsap County Sheriffs. Defendants move to dismiss all but two of McGregor's claims pursuant to Fed.R.Civ.P. 12(b)(6), arguing that as a matter of law, McGregor cannot demonstrate she is entitled to relief. The motion to dismiss is GRANTED IN PART and DENIED IN PART as follows.

         I. LEGAL STANDARD

         Dismissal under Fed.R.Civ.P. 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 Ashcroft v. Iqbal, 556 U.S. 662, 678 (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 an otherwise proper 12(b)(6) motion to dismiss. Vazquez v. Los Angeles Cty., 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, the-defendant-unlawfully-harmed-me-accusation.” Iqbal, 556 U.S. at 678 (citing id.).

         On a Rule 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. 1988).

         II. ANALYSIS

         McGregor alleges five claims in the Amended Complaint: (1) a § 1983 excessive force claim against Deputy Sapp; (2) a § 1983 deprivation of constitutional rights claim against Kitsap County (Monell claim); (3) a negligence claim against Deputy Sapp; (4) a negligent hiring, training, and supervision claim against Kitsap County, Sheriff Simpson, and former Sheriff Boyer; and (5) a respondeat superior claim against Kitsap County. See Dkt. 8.[1] Defendants argue that McGregor's claims, with the exception of the excessive force claim against Deputy Sapp and the Monell claim against Kitsap County, must be dismissed as a matter of law. Dkt. 26 at 1.

         A. The motion to dismiss is timely.

         McGregor argues that Defendants' motion to dismiss is untimely because it was not filed within the twenty-one day window to file a responsive pleading under Fed.R.Civ.P. 12. Dkt. 24 at 5. McGregor's characterization of the motion to dismiss as a responsive pleading is erroneous. See Fed.R.Civ.P. 7(a) (listing the types of pleadings allowed). Because Defendants' filed their motion to dismiss prior to filing a responsive pleading, it is timely. See Fed.R.Civ.P. 12(b) (“A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.”).

         B. McGregor's negligence claim against Deputy Sapp is plausible as pled.

         Defendants argue that McGregor cannot establish her negligence claim because Deputy Sapp had no duty as a law enforcement officer not to shoot McGregor. Dkt. 23 at 9. McGregor contends that law enforcement's assurances that she would not be harmed created a special relationship, and that Deputy Sapp negligently breached the duty imposed by this special relationship by shooting her when she emerged from behind the woodpile.

         “As a general rule, law enforcement activities are not reachable in negligence.” Keates v. City of Vancouver, 869 P.2d 88, 93 (Wash.Ct.App. 1994). The public duty doctrine recognizes that the duty of officers to provide protection is normally owed to the public at large and is unenforceable as to individual members of the public. Thomas v. Cannon, No. 3:15-05346 BJR, 2017 WL 2289081, at *14 n.7 (W.D. Wash. May 25, 2017). “An exception to the public duty doctrine provides that if a ‘special relationship' exists between the public officer and the plaintiff, a duty owed to the individual may arise. [ ] Specifically, an actionable duty to provide police services will arise if . . . there are explicit assurances of protection that give rise to reliance on the part of the victim.” Id.; see also Hamilton v. City of Olympia, 687 F.Supp.2d 1231, 1248 (W.D. Wash. Sep. 8, 2009). To create a special relationship between police officer and citizen, Washington law requires direct contact setting the citizen apart from the general public, and ‘express assurances' of assistance that give rise to a justifiable reliance on the part of the citizen.” Beal v. City of Seattle, 954 P.2d 237, 244-45 (Wash.Ct.App. 1998). “[A]n actionable duty to provide police services can arise if all these requirements are met.” Id. at 245.

         ORDER

         McGregor has pled sufficient facts suggesting that she was assured that she would not be harmed and could speak with her husband if she emerged from behind the wood pile unarmed. Because this claim may benefit from additional factual development and argument by the parties, the Court will not dismiss the negligence claim against Deputy Sapp at this early stage of ...


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