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Whitney v. City of Tacoma

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

September 18, 2019

KATHERINE LOUISE WHITNEY, Plaintiff,
v.
CITY OF TACOMA, et al., Defendants.

          REPORT AND RECOMMENDATION

          MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE

         Plaintiff Katherine Whitney, proceeding pro se, filed the instant civil rights complaint in Pierce County Superior Court following an alleged assault at a residence that she was referred to by a nonprofit organization, Share and Care House of Tacoma (“Share and Care House”). (See Dkt. # 1-2 (Compl.).) Plaintiff's complaint seeks injunctive relief and damages based on allegations of Fourth, Fifth, and Fourteenth Amendment violations. (See generally Compl.) Defendants Jeff Rodgers and Daryl Shuey removed Plaintiff's action to this Court. (Dkt. # 1 (Notice of Removal).)[1] This matter is now before the Court on several motions to dismiss filed by Defendants Rodgers, Deputy Shuey, City of Tacoma, Secretary Cheryl Strange, Charlene Hamblen, Misty Fitzsimmons, and Taffi Wheeldon. (Dkt. # 4 (“Rodgers and Shuey Mot.”); Dkt. # 9 (“City Mot.”); Dkt. # 11 (“Strange Mot.”); Dkt. # 16 (“Hamblen, Fitzsimmons, and Wheeldon Mot.”).)[2]

         The Court, having reviewed the parties' submissions, the governing law, and the balance of the record, finds Plaintiff's complaint fails to state a claim upon which relief can be granted as to all of the Defendants. Therefore, the Court recommends Defendants' motions to dismiss be GRANTED and Plaintiff be granted leave to file an amended complaint for all but one of her claims.

         I. BACKGROUND

         For the purpose of deciding the pending motions to dismiss, the allegations contained within Plaintiff's complaint are considered true. Plaintiff asserts that around December 2016, she was approved by the Department of Social and Health Services (“DSHS”) to receive Housing and Essential Needs (“HEN”) benefits. (Compl. at 4.) DSHS contracted with Share and Care House to help manage Plaintiff's HEN benefits. (Id.)

         Plaintiff alleges that in October 2018, a Share and Care House employee, Taffi Wheeldon, gave her a list of potential landlords that work with Share and Care House and accept HEN benefits. (Id.) Plaintiff used the list provided by Ms. Wheeldon to contact a landlord, Natalie Howell. (Id.) Ms. Wheeldon provided Plaintiff and Ms. Howell with information regarding the type of lease agreement that they needed and advised them that an inspection of the residence that Ms. Howell managed was required. (Id.) Ms. Howell stated an inspection had already been conducted several months prior. (Id.) Ms. Wheeldon did not confirm that the inspection was completed. (Id.)

         In November 2018, Plaintiff moved into the residence managed by Ms. Howell. (Id.) Later that month, Plaintiff alleges that Ms. Howell displayed hostile behavior toward Plaintiff. (Id. at 5.) Ms. Howell's family subsequently moved into the residence and also displayed aggressive behavior towards Plaintiff. (Id.) Plaintiff reported this behavior to Ms. Wheeldon, who indicated Ms. Howell should have been removed from Share and Care House's landlord list. (Id.) Ms. Wheeldon provided Plaintiff with a new list of recommended properties. (Id.) Plaintiff used the list to apply for housing at a new property: the Morning Tree Park Apartments. (Id.)

         In January 2019, while Plaintiff's application at the Morning Tree Apartments was presumably still pending, Plaintiff alleges that Ms. Howell locked her out of the residence. (Id.) Although Plaintiff was eventually able to enter the residence, she feared bodily harm and fled the residence without her belongings. (Id. at 5-6.) Because Share and Care House was not open, Plaintiff met with a social worker at a DSHS office. (Id. at 6.) The social worker contacted Share and Care House for Plaintiff and gave Plaintiff the contact information for the Puyallup Mission and the Pierce County Chamber of Commerce. (Id.) Plaintiff left several voice messages with the Pierce County Chamber of Commerce. (Id.) Defendant Jeff Rodgers, a Pierce County Social Service Program Specialist, returned Plaintiff's calls and listened to Plaintiff's report regarding her lack of housing and interactions with Share and Care House. (Id.)

         In February 2019, the Morning Tree Apartments informed Plaintiff that her application was approved and that Share and Care House needed to conduct an inspection. (Id.) It appears from the complaint that Plaintiff could not reach Share and Care House and therefore contacted Senator Conway's office for assistance in reaching them. (Id.) Senator Conway's office allegedly informed Plaintiff that Defendant Charlene Hamblen, director of Share and Care House, stated Plaintiff's application had “timed out” and that she was not able to receive benefits. (Id.) Plaintiff contacted Ms. Wheeldon for clarification regarding her application. (Id. at 7.) Ms. Wheeldon stated that Ms. Hamblen had been mistaken and that Ms. Wheeldon would send an email to the Morning Tree Park Apartments explaining how the HEN benefits program works, however, Plaintiff asserts Ms. Wheeldon's email represented that Plaintiff's benefits were month-to-month, even though they were annual, which allegedly caused Plaintiff's application approval to be rescinded. (Id.) Later that month, Defendant Misty Fitzsimmons, a Share and Care House employee, apologized for Plaintiff's lack of housing and stated she could not communicate with Plaintiff through email due to company policy. (Id.) Ms. Hamblen also informed Plaintiff that Share and Care House employees could not communicate with clients through email. (Id.)

         In March 2019, it appears Plaintiff requested that Defendant Daryl Shuey, Pierce County Sheriff's Deputy, remove Ms. Howell and her family from the residence and conduct a civil standby while Plaintiff gathered her belongings. (Id. at 7-8.) Deputy Shuey refused to remove Plaintiff's roommates and declined to conduct a civil standby because he saw “no need” and there was “no danger.” (Id. at 8.) Plaintiff claims that when she returned to the residence by herself she was severely beaten with a baseball bat by Ms. Howell and other individuals. (Id.) After the alleged beating, Plaintiff ran to a neighbor's house and called the police. (Id.) Plaintiff alleges that when Deputy Shuey arrived at the scene, he asked Plaintiff why she went to the residence alone. (Id.) Plaintiff stated that she did so because he said there was no danger. (Id.) In June 2019, Plaintiff initiated this action seeking $20 million in compensatory damages from the Defendants for the trauma she alleges they put her through.

         II. DISCUSSION

         Plaintiff alleges that Defendants violated her rights “under the jurisdiction under the Fourth, Fight[Fifth], and Fourteenth Amendments to the United States Constitution.” (Compl. at 3.) All Defendants move to dismiss all claims against them pursuant to Rule 12(b)(6). In the alternative, Defendant City of Tacoma asks for a more definite statement pursuant to Rule 12(e). (City Mot. at 2.) Additionally, Defendant Rodgers moves to dismiss pursuant to Rule 12(b)(2) (Rodgers and Shuey Mot. at 2-3) and Defendant Secretary Strange moves to dismiss pursuant to Rule 12(b)(1) (Strange Mot. at 11). The Court will address each motion in turn.

         A. Defendant Secretary Strange's Rule 12(b)(1) Motion to Dismiss

         Defendant Secretary Strange asserts Plaintiff's claim against her in her official capacity should be dismissed because the claim is, in effect, a claim against DSHS and the State is entitled to sovereign immunity. (Strange Mot. at 11-12.) Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) when the court lacks subject matter jurisdiction over the claim. SeeFed. R. Civ. P. 12(b)(1). “Although sovereign immunity is only quasi-jurisdictional in nature, Rule 12(b)(1) is [the] proper vehicle for invoking sovereign immunity from suit.” Pistor v. Garcia, 791 F.3d 1104, 1111 (9th Cir. 2015). Neither state agencies nor state officials acting in their official capacities are “persons” under 42 U.S.C. § 1983, and they may not be sued unless the State waives sovereign immunity. See Howlett v. Rose, 496 U.S. 356, 365 (1990); Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989).

         Here, Plaintiff has not established that sovereign immunity was waived. To the contrary, Defendant Secretary Strange is explicitly invoking sovereign immunity in her motion. (Strange Mot. at 11.) Accordingly, the Court recommends that Plaintiff's claim against Defendant Secretary Strange in her official capacity be dismissed with prejudice.[3] The Court addresses Plaintiff's claims against Defendant Secretary Strange in her individual capacity below.

         B. Defendant Rodgers' Rule 12(b)(2) Motion to Dismiss

         Defendant Rodgers asserts that the Court lacks personal jurisdiction in this action because he has not been served. (Rodgers and Shuey Mot. at 3.) Defendant Rodgers' suggestion, through his 12(b)(2) motion, that insufficient service deprives the court of personal jurisdiction misconceives the relationship between service of process and personal jurisdiction. Personal jurisdiction provides a basis for an exercise of jurisdiction, but service of process is the means by which a court asserts its jurisdiction over the person. SEC v. Ross, 504 F.3d 1130, 1138 (9th Cir. 2007). That is, there is no “lack of personal jurisdiction” for the purposes of Fed.R.Civ.P. 12(b)(2); instead, there is an insufficient service of process under Fed.R.Civ.P. 12(b)(5).

         Fed. R. Civ. P. 4 provides, in part:

If a defendant is not served within 90 days after the complaint is filed, the court- on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.

         “Once service is challenged, [a] plaintiff[ ] bear[s] the burden of establishing that service was valid under Rule 4.” Brockmeyer ...


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