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Comenout v. Belin

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

May 11, 2018

ROBERT REGINALD COMENOUT SR. and EDWARD AMOS COMENOUT III, Plaintiffs,
v.
ERIC BELIN, AL ANDERSON, KANDRA TINNERSET, and PAUL JOHNSON, Defendants.

          ORDER ON DEFENDANT ERIC BELIN'S MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         THIS MATTER comes before the Court on Defendant Eric Belin's Motion for Summary Judgment. Dkt. 115. The Court has considered the pleadings filed in support of and in opposition to the motion and the file herein.

         I. RELEVANT FACTS AND PROCEDURAL HISTORY A. FACTS.

         The following facts are substantiated by the record and written in the light most favorable to Plaintiffs. Where Plaintiffs have not contested facts provided by Defendant Belin, those facts are construed as true for the purposes of this motion.

         1. Billboard on the Allotment.

         The Fourth Amended Complaint names Defendant Belin in his official capacity as a City of Puyallup employee who “trespassed on Plaintiffs' property and posted stop [work] orders causing Plaintiffs to stop construction” of a commercial sign (“the billboard”). Dkt. 79 at ¶19. According to Plaintiff Robert Comenout Jr., on an unidentified date in 2006, he “was present” when two City of Puyallup employees visited the real property central to the claims in this case (“the Allotment”). Dkt. 120. Plaintiff Robert Comenout Jr. represents that the two employees “tried to stop the Indian Country billboard sign from being built.” Id. at ¶2. He recalls hearing Edward Comenout Jr. tell the two employees “words to the effect that the City of Puyallup had no authority to stop [Edward] from building the sign.” Id. at ¶5. The two employees “served the employee of the sign building contractor with some kind of stop order . . . [that is] still attached to the sign.” Id. at ¶6.

         Defendant Belin recalls visiting the Allotment once on October 24, 2006 with Cynthia Kiersey, Code Enforcement Officer, for the purpose identifying the billboard contractor. Dkt. 118 at ¶¶10, 13(a). Defendant Belin maintains that he “never at any time took any enforcement action against Plaintiffs over or involving the billboard[, ]” and had no involvement in drafting, reviewing, approving, or issuing a stop work order. Id. at ¶¶11, 13(b).

         The City of Puyallup issued a stop work order on or about the 26th or 27th of October, 2006. See Dkt. 116-1 at 55-66.

         2. Notice of Violation and Stop Work Order, and 2007 litigation.

         The City of Puyallup's stop work order was the subject of prior litigation assigned to this Court and commenced on April 17, 2007 (“the 2007 litigation”). See Dkt. 116-1 at 55-66 (Edward Comenout Jr. v. City of Puyallup, Cause No. 3:07-cv-05182-RJB, Dkt. 1). The initial plaintiff in the 2007 litigation, Edward Comenout Jr., attached to the Complaint a copy of an October 27, 2006 Notice of Civil Violations and Stop Work Order. Id. at 60-66. Sent in letter format by the City Attorney to Edward Comenout Jr., the notice and order was issued “[p]ursuant to IBC [International Building Code] section 114:1, ” which gives the “City's Building Official [] the authority to issue” the civil infraction. Id. at 64. The document allowed for written appeal of the infraction to the “Code Compliance Hearing Examiner.” Id. at 65. The document describes violations based on observations by the City of Puyallup on two dates: October 19, 2006, by Cynthia Keirsey, Code Enforcement Officer, and Reilly Pittman, Assistant Planner; and October 24, 2006, by Ms. Keirsey, Code Enforcement Officer, and Defendant Belin, Senior Building Inspector. Id. at 60, 61.

         This Court dismissed the 2007 litigation without prejudice after the plaintiffs failed to explain why all parties with interests in the Allotment had not been joined. Dkt. 116-2 at 87, 88.

         3. Defendant Belin as an employee of City of Puyallup.

         Defendant Belin is currently a Senior Plans Examiner for the City of Puyallup, a position held since January 1, 2008. Dkt. 123 at ¶2. Prior to 2008, including during 2006, Defendant Belin held the position of Senior Building Inspector. Id. at ¶7. He has never had the authority to issue, revoke, or take action on building permits. Dkt. 118 at ¶5. He has never held the position of Code Enforcement Officer or City Building Official, and he does not act as a speaking agent for the City of Puyallup or possess authority to make its policy. Id. at ¶¶5, 6.

         Defendant Belin is not, and has never been, employed by the City of Puyallup Police Department. Dkt. 117 at ¶6; Dkt. 118 at ¶7. He ...


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