United States District Court, W.D. Washington, Seattle
LORI D. SHAVLIK, Plaintiff,
SNOHOMISH COUNTY SUPERIOR COURT, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO
L. ROBART UNITED STATES DISTRICT JUDGE
December 21, 2018, the court granted Defendants' motion
to dismiss all of Plaintiff Lori D. Shavlik's claims,
except for her claim under Washington State's Public
Records Act (“PRA”), RCW ch. 42.56. (12/21/18
Order (Dkt. # 21); see also Compl. (Dkt. # 6-1).)
The court remanded Ms. Shavlik's PRA claim to state
court. (Id. at 34-35.) The court further granted Ms.
Shavlik leave to amend certain of her claims within 15 days
of the date of that order. (Id. at 34.) On January
8, 2019, Ms. Shavlik filed an amended complaint. (FAC (Dkt. #
the court is Defendants Snohomish County, Deputy Prosecuting
Attorney (“DPA”) Andrew E. Alsdorf, Detective
David Fontenot, DPA Craig S. Matheson,  Mark Roe, Philip
G. Sayles and the Sayles Law Firm, PLLC's (“the
Sayles Law Firm”) (collectively,
“Defendants”) Federal Rule of Civil Procedure
12(b)(6) motion to dismiss Ms. Shavlik's amended
complaint. (2d MTD (Dkt. # 27).) The court has considered the
motion, the parties' submissions in support of and in
opposition to the motion,  relevant portions of the record, and
the applicable law. Being fully advised,  the court GRANTS
Defendants' motion and DISMISSES Ms. Shavlik's
amended complaint with prejudice and without leave to amend.
court's dismissal order sets forth the factual background
allegedly underpinning Ms. Shavlik's claims and provides
a detailed summary of Ms. Shavlik's attendance at the
criminal trial of John Reed (“the Reed trial”) in
May 2018, and the show-cause order Judge Bruce Weiss issued
to determine if Ms. Shavlik violated his order on filming
during the Reed trial. (12/21/18 Order at 2-7.) The court will
not repeat that background here but describes only the
differences between Ms. Shavlik's original and amended
complaints that are pertinent to Defendants' motion to
dismiss and this order.
original complaint, Ms. Shavlik sued Snohomish County
Superior Court, Snohomish County, Judge Weiss, DPA Alsdorf,
DPA Matheson, Mr. Sayles, and the Sayles Law Firm. (Compl.
¶¶ 2.2-2.4, 2.6.) In her amended complaint, she
dropped Snohomish County Superior Court and Judge Weiss as
defendants. (See generally FAC.) However, she added
Mr. Roe, who was formerly the Prosecuting Attorney for
Snohomish County, and Detective Fontenot of the Snohomish
County Sheriff's Office. (FAC ¶¶ 1.3-1.4,
court dismissed the following claims without leave to amend:
(1) claims for injunctive and declaratory relief against
Judge Weiss (12/21/18 Order at 16-21); (2) a claim for state
law writs of prohibition and certiorari (id. at 25);
(3) a state law claim under Article I, Section 7 of the
Washington State Constitution (id. at 25-26); (4) a
state law claim under Washington State Court General Rule 16
(id. at 26-27); (5) a state law claim under RCW
5.68.010 (id. at 27-28); and (6) a state law claim
for barratry (id. at 28-29).
court granted Ms. Shavlik leave to amend the following
claims: (1) federal constitutional claims against Snohomish
County and Mr. Sayles; (2) First Amendment claim against Mr.
Alsdorf and Mr. Matheson; (3) abuse of process claims against
Mr. Sayles and the Sayles Law Firm; (4) a claim for
intentional infliction of emotional distress against Mr.
Sayles; (5) a claim for violation of the common law right to
privacy against Mr. Sayles; and (6) a claim for unfair
competition under Washington State's Consumer Protection
Act (“CPA”), RCW 19.86.010, et seq.,
against Mr. Sayles. (See 12/21/18 Order at 32.)
amended complaint, Ms. Shavlik expressly delineates four
causes of action. (FAC at 15-16.) In her first cause of
action under 42 U.S.C. § 1983, which she brings against
all Defendants, she alleges that Defendants denied “her
civil rights including but not limited to her right to free
speech under the first amendment and denial of due process
under the [Fourteenth Amendment].” (FAC at 15.) Ms.
Shavlik brings her remaining three state law causes of action
against all Defendants “except the prosecutors, ”
presumably referring to DPA Alsdorf and DPA Matheson.
(Id. at 15-16.) As she describes them, her state law
claims include: (1) abuse of process, (2) intentional
infliction of emotional distress, (3) deceptive trade
violations, and (4) common law right to privacy.
court now considers Defendants' motion to dismiss Ms.
Shavlik's amended complaint.
the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). The purpose of this rule is to
“‘give the defendant fair notice of what . . .
the claim is and the grounds upon which it rests.'”
Twombly, 550 U.S. at 555 (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). “A motion under
[Rule] 12(b)(6) tests the formal sufficiency of the statement
of claim for relief.” Palms v. Austin,
C18-0838JLR, 2018 WL 4258171, at *4 (W.D. Wash. Sept. 6,
2018) (quoting Fednav Ltd. v. Sterling Int'l,
572 F.Supp. 1268, 1270 (N.D. Cal. 1983)).
survive a motion to dismiss under Rule 12(b)(6), “a
complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Iqbal, 556 U.S. at 678
(quoting Twombly, 550 U.S. at 570). “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.” Id. This standard is “not akin
to a ‘probability requirement,' but it asks for
more than a sheer possibility that a defendant has acted
unlawfully.” Id. (quoting Twombly,
550 U.S. at 556). When considering a Rule 12(b)(6) motion,
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),
and must accept all well-pleaded allegations of material fact
as true, see Wyler Summit P'ship v. Turner Broad.
Sys., 135 F.3d 658, 661 (9th Cir. 1998). However, the
court need not accept as true a legal conclusion presented as
a factual allegation. Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 550).
Ms. Shavlik is pro se, the court must construe her
complaint liberally when evaluating it under the
Iqbal standard. See Johnson v. Lucent Techs.,
Inc., 653 F.3d 1000, 1011 (9th Cir. 2011). Although the
court holds the pleadings of pro se plaintiffs to
“less stringent standards than those of licensed
attorneys, ” Haines v. Kerner, 404 U.S. 519,
520 (1972), “those pleadings nonetheless must meet some
minimum threshold in providing a defendant with notice of
what it is that it allegedly did wrong, ” Brazil v.
U.S. Dep't of the Navy, 66 F.3d 193, 199 (9th Cir.
1995). Accordingly, the court should “not supply
essential elements of the claim that were not initially
pled.” Bruns v. Nat'l Credit Union Admin.,
122 F.3d 1251, 1257 (9th Cir. 1997).
Claims the Court Earlier Dismissed Without Leave to
correctly point out that even if Ms. Shavlik does not
expressly allege any of the claims that the court previously
dismissed without leave to amend, she alludes to some of
these dismissed claims in scattered portions of her amended
complaint. (MTD at 6-7; see, e.g., FAC at 13:16-14:1
(alleging barratry); id. at 13:16-18 (alleging a
violation of RCW 5.68.010); id. at 15:6-9 (alleging
that she is entitled to injunctive relief from “an
unconstitutionally vague and overbroad Order in Snohomish
Court Superior Court”); see also 12/21/18
Order at 29 (dismissing the barratry claim without leave to
amend); id. at 28 (dismissing the claim under RCW
5.68.010 without leave to amend); id. at 21
(dismissing the claim against Judge Weiss of the Snohomish
County Superior Court without leave to amend); id.
at 25 (dismissing the claims for writs of prohibition and
certiorari to issue against the Snohomish County Superior
Court without leave to amend).) Defendants ask the court to
“reaffirm its dismissal of these claims” to the
extent her amended complaint represents an attempt to
reassert them. (MTD at 6-7.) In her response, Ms. Shavlik
acknowledges that she does not intend to reassert these
claims in her amended complaint. (Resp. at 3.) To the extent
that her amended complaint could be liberally construed to do
so, the court reaffirms its dismissal of these claims without
leave to amend.
Claims Against New Defendants
Shavlik raises claims against two new Defendants in her
amended complaint: (1) Mr. Roe, who was formerly the
Prosecuting Attorney for Snohomish County, and (2) Detective
Fontenot, who Ms. Shavlik alleges is a police detective
working for Snohomish County. (See FAC ¶¶
2.4-2.5.) For the reasons stated below, the court dismisses
Ms. Shavlik's claims against these new Defendants.
The Addition of New Defendants is Untimely
amended complaint, Ms. Shavlik brings claims against two new
defendants: Mr. Roe and Detective Fontenot. (See FAC
¶¶ 1.3-1.4, 2.4-2.5.) Ms. Shavlik filed her amended
complaint on January 8, 2019. (See generally id.)
However, the deadline for ...