United States District Court, W.D. Washington, Seattle
ORDER GRANTING THE PROPERTY OWNER DEFENDANTS'
MOTIONS FOR SUMMARY JUDGMENT AND REMANDING CLAIMS
S. Lasnik United States District Judge
matter comes before the Court on “Defendants
Haighs' and Hart's Motion for Summary Judgment”
(Dkt. # 81) and “Defendant Barton's Motion
for Summary Judgment” (Dkt. # 83). Summary judgment is
appropriate when, viewing the facts in the light most
favorable to the nonmoving party, there is no genuine issue
of material fact that would preclude the entry of judgment as
a matter of law. The party seeking summary dismissal of the
case “bears the initial responsibility of informing the
district court of the basis for its motion”
(Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986))
and “citing to particular parts of materials in the
record” that show the absence of a genuine issue of
material fact (Fed. R. Civ. P. 56(c)). Once the moving party
has satisfied its burden, it is entitled to summary judgment
if the non-moving party fails to designate “specific
facts showing that there is a genuine issue for trial.”
Celotex Corp., 477 U.S. at 324. The Court will
“view the evidence in the light most favorable to the
nonmoving party . . . and draw all reasonable inferences in
that party's favor.” Krechman v. County of
Riverside, 723 F.3d 1104, 1109 (9th Cir. 2013). Although
the Court must reserve for the jury genuine issues regarding
credibility, the weight of the evidence, and legitimate
inferences, the “mere existence of a scintilla of
evidence in support of the non-moving party's position
will be insufficient” to avoid judgment. City of
Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 (9th
Cir. 2014); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 252 (1986). Summary judgment should be granted
where the nonmoving party fails to offer evidence from which
a reasonable jury could return a verdict in its favor.
FreecycleSunnyvale v. Freecycle Network, 626 F.3d
509, 514 (9th Cir. 2010).
reviewed the memoranda, declarations, and exhibits submitted
by the parties, having heard the arguments of counsel, and
taking the evidence in the light most favorable to plaintiff,
the Court finds as follows:
times relevant to this litigation, defendants Ursula and
Terence Haigh, Cynthia Hart, and Christine Barton lived next
to each other on waterfront property in Burien, Washington.
Plaintiff Guy Soderlind lived on the hillside behind them. In
December 2011, after a full evidentiary hearing, defendants
obtained three anti-harassment orders barring plaintiff from
entering or being upon their properties, except for the paved
road that crosses their lots and parallels the waterfront.
The Honorable J. Wesley Saint Clair made an effort to
accommodate plaintiff's need to traverse the bisecting
road, SW 172nd Street, while keeping plaintiff away from
defendants, their residences, and their beachfront. When
plaintiff's counsel attempted to argue that the public
had an 80 foot right-of-way (which was considerably wider
than the paved road) and sought a determination regarding who
owned the land under the extended right-of-way, Judge Saint
Clair was nonplussed. It simply did not matter to him. He had
concluded that plaintiff was harassing his neighbors, and his
intent was to craft an order of protection that was not
focused on property ownership or easement rights, but rather
provided a zone in which defendants could feel safe and
secure. At the end of the hearing, all parties seemed to be
in agreement regarding what plaintiff could and could not do.
As summarized by plaintiff's own lawyer, if a dispute
were to arise in the future, the issue would be fairly
simple: “Is he on the road or off the road? So if
he's in front of their house, he should be on the road.
If he goes off the road, then he's in violation.”
Dkt. # 86-9 at 20.
14, 2013, plaintiff crossed the beach in front of
defendants' houses. Defendants separately contacted the
police to report a violation of the anti-harassment orders
they had obtained, the investigating officers made probable
cause determinations, and plaintiff was arrested on July 16,
2013. The prosecuting attorney of the City of Burien filed
charges against plaintiff, which were resolved by
stipulation. Plaintiff filed this lawsuit in 2015, asserting
claims under 42 U.S.C. § 1983 and state law against the
neighbors, the police officers, and King County. The claims
against the officers and King County have been dismissed.
42 U.S.C. § 1983
order to establish a claim under 42 U.S.C. § 1983,
plaintiff must show that the action occurred “under
color of law” and deprived plaintiff of a
constitutional or federal statutory right. Parratt v.
Taylor, 451 U.S. 527, 535 (1981). A private person can
act “under color of law” if the conduct allegedly
causing the deprivation was fairly attributable to the state.
Lugar v. Edmondson Oil Co., 457 U.S. 922, 937
(1982). Attribution can arise where “state officials
and private parties have acted in concert in effecting a
particular deprivation of constitutional rights, ”
otherwise known as the “joint action test.”
Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002).
Joint action can be shown through evidence of a conspiracy to
violate constitutional rights or through evidence that the
state has insinuated itself into a position of
interdependence with the private party and knowingly accepts
the benefits of that party's unconstitutional conduct.
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140
(9th Cir. 2012).
Court has already found that there is no evidence from which
a reasonable jury could conclude that there was a meeting of
the minds or other illicit agreement between the complaining
property owners and the officers to violate plaintiff's
constitutional rights. “[M]erely complaining to the
police does not convert a private party into a state
actor.” Collins v. Womancare, 878 F.2d 1145,
1155 (9th Cir. 1989). It is undisputed that the impetus for
the property owners' actions was purely private and that
their role as complainants was separate and distinct from
that of the investigating and arresting officers. Although
plaintiff takes issue with the adequacy of the officers'
investigation, an investigation was, in fact, made and the
Court has found that probable cause existed for his arrest.
There is no evidence of a prearranged plan or policy that
devolved the police power of the state to the private
property owners. Absent some evidence that defendants Haigh,
Hart, and Barton were acting at the behest of the police or
that the state actors deferred to the private parties'
judgment when exercising the power of the state, their
conduct cannot be fairly attributed to the state.
Plaintiff's Section 1983 claims against these defendants
fail as a matter of law.
State Law Claims Related to or Arising From the
asserts state law claims of defamation, intentional
infliction of emotional distress, negligent infliction of
emotional distress, conspiracy, false arrest, false
imprisonment, and malicious prosecution. All of these claims
(except a portion of the defamation claim) arise out of
defendants' complaints to law enforcement regarding an
alleged violation of the anti-harassment orders. Pursuant to
RCW 4.24.510, “[a] person who communicates a complaint
or information to any branch or agency of federal, state, or
local government . . . is immune from civil liability for
claims based upon the communication to the agency . . .
regarding any matter reasonably of concern to that agency . .
immunity from suit allows defendant to avoid liability,
regardless of the merits of plaintiff's claim, and is
therefore considered a defense that must be affirmatively
pled in the answer. See Fed.R.Civ.P. 8(c);
Phoenix Trading, Inc. v. Loops LLC, 732 F.3d 936,
942 (9th Cir. 2013). Defendants did not do so. Nevertheless,
the Court has the discretion to allow defendants to assert an
immunity defense at this point in the litigation. Under
Washington law, an affirmative defense is generally waived if
it is not affirmatively pled, asserted in a motion under Rule
12(b), or tried by the express or implied consent of the
parties. Farmers Ins. Co. v. Miller, 87 Wn.2d 70, 76
(1976). Plaintiff obviously does not consent to the RCW
4.24.510 defense being interposed at this point in the
proceeding and has objected to its trial. None of the normal
means of preserving a defense therefore apply.
“However, if the substantial rights of a party have not
been affected [by the failure to affirmatively plead a
defense], noncompliance is considered harmless and the
defense is not waived.” Bernsen v. Big Bend Elec.
Co-op., Inc., 68 Wn.App. 427, 434 (1993). Similarly,
under federal law, “[a]lthough Rule 8 requires
affirmative defenses to be included in responsive pleadings,
absent prejudice to the plaintiff, the district court has
discretion to allow a defendant to plead an affirmative
defense in a subsequent motion.” Simmons v. Navajo
Cty., 609 F.3d 1011, 1023 (9th Cir. 2010).
argues that he would be severely prejudiced if defendants
were permitted to assert immunity under RCW 4.24.510 at this
point in the litigation. His argument about the need to
conduct discovery regarding the facts on which this defense
depends is unavailing. The facts on which defendants rely in
asserting this defense have been known since the very
beginning of the case: plaintiff alleged in his first
complaint that “defendants Haigh, Barton and Hart
falsely reported to the King County Sheriff that plaintiff
had violated the existing restraining orders on July 14,
2013, when he walked on the beach in front of their
residences and paddled out to his boat moored nearby.”
Dkt. # 1-1 at ¶ 2.21. These allegations effectively
establish the immunity defense, and plaintiff identifies no
other relevant facts that had to be discovered.
also argues that defendants' delay in raising the RCW
4.24.510 defense prevented him from accurately evaluating the
potential costs and benefits of pursuing this litigation. The
statute not only provides immunity to persons in
defendants' position, it also provides for an award of
“expenses and reasonable attorney's fees incurred
in establishing the defense” and an award of
“statutory damages of ten thousand dollars.” It
appears that plaintiff may not have known of all of the risks
associated with the claims he chose to assert, but whether
there is any prejudice arising from defendants' delay is
doubtful. Defendants are entitled only to those expenses and
fees which were “incurred in establishing the
defense.” They have not requested an award of fees at
this point, but any such award would not include fees
expended on activities that would have been unnecessary had
the defense been raised in a more timely manner. Nor has
plaintiff explained how an earlier claim of statutory
immunity would have saved him from an award of statutory
damages: once the complaint was filed, those damages came
Court will exercise its discretion to allow defendants to
raise the RCW 4.24.510 defense at this point in the
litigation. The immunity clearly applies: defendants were
reporting potential wrongdoing to governmental entities and
were therefore engaged in exactly the type of public petition
that the statute was intended to protect from retaliatory
lawsuits. Absent any appreciable prejudice to plaintiff, no
point would ...