United States District Court, W.D. Washington, Tacoma
B. LEIGHTON UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Defendants' Motion to Dismiss
for failure to state a claim [Dkt. # 70]. Pro se plaintiff
Bounchanh is a former DSHS and Washington Health Care
Authority employee. Bounchanh's amended complaint is
unclear and difficult to follow, but it appears that he was
either not promoted or was fired. He sued his former
employers (and others; there are 43 total defendants) for
violating his rights, for failing to accommodate his
disability in violation of the ADA, and for bullying and
retaliating against him. He also sued the entities that
investigating these claims (the BRC and the EEOC) when they
determined that they could not substantiate them. He appears
to claim they conducted a negligent investigation.
Court previously dismissed Bounchanh's union, Defendant
AFCME [Dkt. # 68]. The HRC and its individual employee
defendants now seek dismissal of Bounchanh's claims
against them. The HRC argues that it has Eleventh Amendment
immunity, that there is no cognizable claim for negligent
investigation, and that Bounchanh has failed to articulate a
plausible claim against any of the HRC defendants—he
has not articulated that any named HRC defendant did anything
to him, and he was clearly never employed by the HRC or any
of its individual employees.
response does not address any of these arguments. He asks the
Court to permit a jury to hear his claims and to view his
undisputable and admissible evidence. He reiterates that, in
his view, the HRC did not do a fair thorough, objective and
sincere investigation into his claims about his treatment at
the HCA (or the DSHS). He has still failed to articulate any
action by any individual HRC defendant, much less to
articulate how it is actionable under the authorities cited
in the Motion to Dismiss.
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,
Iqbal, 556 U.S. at 678 (citing id.).
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).
claims against the HRC defendants are not plausible under
this standard. The HRC itself is entitled to Eleventh
Amendment immunity, and Bounchanh has failed to even hint at
any actionable conduct by the named individual HRC defendants
through two iterations of his complaint and a response to a
motion to dismiss. There is not common law or statutory claim
for negligent investigation. See Pettis v State, 98
Wash.App. 553 (1999). Bounchanh's claim that his actual
employer(s) bullied him is not legal or factual support for a
plausible claim against the HRC.
these reasons, the motion to dismiss is GRANTED and
Bounchanh's claims against the HRC and its individual
employees are DISMISSED. Because there is nothing that
Bounchanh could add in a third proposed amended complaint
that would change this analysis, the dismissal is with
prejudice and without leave to amend.
 The moving defendants are the
Washington Human Rights Commission, and its employees Sharon
Ortiz, Jeremy Page, Idolina Reta, and ...