United States District Court, W.D. Washington, Seattle
REPORT AND RECOMMENDATION
MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE
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).) 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
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.
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.)
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.
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.
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.)
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.)
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.
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.
Defendant Secretary Strange's Rule 12(b)(1) Motion to
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).
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. The Court addresses Plaintiff's claims
against Defendant Secretary Strange in her individual
Defendant Rodgers' Rule 12(b)(2) Motion
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).
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.
service is challenged, [a] plaintiff[ ] bear[s] the burden of
establishing that service was valid under Rule 4.”