Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brees v. HMS Global Maritime Inc.

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

January 6, 2020

RICHARD BREES, Plaintiff,
v.
HMS GLOBAL MARITIME INC, et al., Defendants.

          ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE.

         THIS MATTER comes before the Court on three motions for summary judgment. First, Defendants HMS Ferries, Inc. (“HMS Ferries”) and Steve Caputo's (“Mr. Caputo”) Motion for Summary Judgment re Dismissal of Plaintiff's 42 U.S.C. § 1983 Claims. Dkt. 130. Second, HMS Defendants Tara Reynolds, Mylinda Miller, Thomas Ripa, Dominick De Lango, and Derick Leenstra's (collectively “HMS Employee Defendants”) Motion for Summary Judgment re 42 U.S.C. § 1983 Claims. Dkt. 122. Third, Defendants HMS Ferries, Inc., Steve Caputo, Mylinda Miller, Tara Reynolds, Derick Leenstra, Thomas Ripa, and Dominick De Lango's (collectively “HMS Defendants”) Motion for Summary Judgment Dismissing Plaintiff's State Law Claims. Dkt. 114.

         The Court is familiar with the motions, all materials filed in support of and in opposition to the motions, and the remainder of the record herein, and it is fully advised. For the reasons set forth below, the Court should (1) grant HMS Ferries and Mr. Caputo's Motion for Summary Judgment, (2) grant HMS Employee Defendants Motion for Summary Judgment, and (3) grant HMS Defendants' Motion for Summary Judgment Dismissing Plaintiff's State Law Claims.

         I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

         A. FACTUAL BACKGROUND

         This case arises from allegedly unlawful searches conducted by ferry personnel against Plaintiff Richard Brees when he attempted to board the ferry in his car. Dkt. 83. Pierce County contracts with Defendant HMS Ferries, Inc. (“HMS Ferries”) to operate Pierce County's ferry system. Dkt. 46, at 2.

         Plaintiff's Second Amended Complaint, the operative complaint, alleges two unlawful searches: the first occurring on May 17, 2018, and the second on May 18, 2018. Dkt. 83, at 8-10. In the first alleged search, Plaintiff claims that Mr. Caputo, General Manager (“GM”), HMS Ferries, Inc., alongside an unnamed Senior Ticketing Agent and Ferry Captain, attempted to search his vehicle. Dkt. 83, at 8-10. Plaintiff apparently resisted the search but was allowed to board the ferry. Dkt. 83, at 9.

         In the second alleged search, Plaintiff claims that an “angry GM” initiated a retaliatory search of his vehicle. Dkt. 83, at 9-10. Plaintiff alleges that he initially resisted the search, but “under duress” and “[d]esperate to get home, … [he] walked to his [vehicle] trunk, opened it, and said ‘fine, I'll play along, I have to get home, my wife is out of town, and our pets need care, so here search away.'” Dkt. 83, at 10-11. Plaintiff alleges that ferry personnel then searched his car's trunk and instructed Plaintiff to open a large bag, the contents of which were inspected. Dkt. 83, at 11. The operative complaint provides that, after the search was completed, Plaintiff told the GM, “I'll see you in court asshole.” Dkt. 83, at 11. Mr. Caputo radioed other ferry personnel and told them Plaintiff was not allowed to board the ferry. Dkt. 83, at 11. Plaintiff was apparently allowed to board the next ferry, approximately one hour later. Dkt. 130, at 7.

         Plaintiff alleges that he filed a “Claim for Damages with Pierce County Risk Management Division, alleging violations of both state and constitutional protections.” Dkt. 83, at 11. Plaintiff claims that “Pierce County jointly further conspired with the HMS defendant(s) and other Pierce County employees to the harm of the plaintiff by fraudulently claiming an investigation of the defendant's damages took place, when in fact no or little investigation had actually taken place.” Dkt. 83, at 11-12.

         B. PROCEDURAL HISTORY

         1. HMS Ferries and Mr. Caputo's Motion For Summary Judgment Re Dismissal Of Plaintiff's 42 U.S.C. § 1983 Claims

         The operative complaint provides, in part, that HMS Ferries and Mr. Caputo violated Plaintiff's rights under the First, Fourth, and Fourteenth Amendments. Dkt. 83. HMS Ferries and Mr. Caputo filed a motion for summary judgment, arguing that Plaintiff has failed to adduce facts necessary to support these claims. Dkt. 130. Plaintiff filed a response brief in opposition to the motion. Dkt. 142. HMS Ferries and Mr. Caputo filed a reply. Dkt. 153.

         2. HMS Employee Defendants' Motion for Summary Judgment re 42 U.S.C. § 1983 Claims

         HMS Employee Defendants filed a motion for summary judgment. Dkt. 122. HMS Defendants argue that Plaintiff's claims lack any factual basis and that Plaintiff does not allege that any of the individual HMS Employee Defendants participated in the alleged search events. Dkt. 122. Plaintiff filed a response brief in opposition to the motion. Dkt. 140. HMS Employee Defendants filed a reply. Dkt. 151.

         3. HMS Defendants' Motions for Summary Judgment Dismissing Plaintiff's State Law Claims

         HMS Defendants filed a Motion for Summary Judgment Dismissing Plaintiff's State Law Claims. Dkt. 114. HMS Defendants request dismissal of Plaintiff's three remaining state law claims: (1) intentional infliction of emotional distress (known as an “outrage” claim in Washington), (2) fraud, and (3) violation of a criminal statute, RCW 9A.76.175, by providing a misleading report and witness statements to a public servant. HMS Defendants contend that, first, Plaintiff's allegations do not support an outrage claim; second, Plaintiff has not adequately pled his fraud claim and has not come forward with supporting evidence; and, third, the alleged violation of RCW 9A.76.175, even if true, does not give rise a private cause of action. Plaintiff filed a response brief in opposition to the motion. Dkt. 141. HMS Defendants filed a reply. Dkt. 149.

         II. DISCUSSION

         A. PRO SE STANDARDS

         When a plaintiff proceeds pro se, a district court is required to afford plaintiff the benefit of any doubt in ascertaining what claims plaintiff raised in the complaint and argued to the district court. Alvarez v. Hill, 518 F.3d 1152, 1158 (9th Cir. 2008), (citing Morrison v. Hall, 261 F.3d 896, 899 n.2 (9th Cir. 2001)); see also Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988) (pleadings of pro se civil rights plaintiff to be construed liberally, affording plaintiff benefit of any doubt).

         Because plaintiff filed this complaint pro se, the court has construed the pleadings liberally and has afforded plaintiff the benefit of any doubt. See Karim-Panahi, 839 F.2d at 623. However, “[p]ro se litigants in the ordinary civil case should not be treated more favorably than parties with attorneys of record." Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986).

         B. SUMMARY JUDGMENT STANDARD

         Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply “some metaphysical doubt.”). See also Fed. R. Civ. P. 56(d). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987).

         The determination of the existence of a material fact is often a close question. The court must consider the substantive evidentiary burden that the nonmoving party must meet at trial - e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect. Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor of the nonmoving party only when the facts specifically attested by that party contradict facts specifically attested by the moving party. The nonmoving party may not merely state that it will discredit the moving party's evidence at trial, in the hopes that evidence can be developed at trial to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra). Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).

         C. PLAINTIFF'S 42 U.S.C. § 1983 CLAIMS AGAINST HMS FERRIES AND MR. CAPUTO

         1. 42 U.S.C. § 1983 Standards

         To state a claim under 42 U.S.C. § 1983, a complaint must allege: (1) the conduct complained of was committed by a person acting under color of state law, and (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985).

         The operative complaint provides, in part, that HMS Ferries and Mr. Caputo violated Plaintiff's rights under the First, Fourth, and Fourteenth Amendments. Dkt. 83, at 12-15.

         2. First Amendment Claim

         For a First Amendment claim, a Plaintiff must show “that (1) [h]e was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity and (3) the protected activity was a substantial or motivating factor in the defendant's conduct.” O'Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016) (citation omitted). Once a plaintiff has made such a showing, the burden shifts to the government to show that it would have taken the same action even in the absence of the protected conduct. Id.

         To survive a motion for summary judgment, a plaintiff must adduce facts sufficient to create a triable issue as to whether he engaged in protected speech. Flynn v. City of Santa Clara, 388 F.Supp.3d 1158 (N.D. Cal. 2019). Speech in a non-public form may be regulated as to time, place, manner, and content so long as the content regulation is viewpoint neutral. Int'l Soc. For Krishna Consciousness of Cal., Inc., 764 F.3d 1044, 1049-50 (9th Cir. 2014). “[W]here a non-public forum is at issue, the court must inquire whether the challenged restriction is ‘reasonable in light of the purpose served by the forum,' and is ‘viewpoint neutral.'” Id.

         Plaintiff's First Amendment claim is without merit. The Pierce County Ferry System (“PCFS”) regulates speech, through its Passenger Code of Conduct (“PCC”), by precluding “foul, abusive, or disruptive language” to “provid[e] a safe and enjoyable experience for all … passengers.” Dkts. 130; and 131. Approximately 12 times per year, HMS Ferries bars a passenger from boarding due to unruly and disruptive behavior; if a passenger persists in this behavior, they are banned. Dkt. 131, at 4.

         The ferry holding area is a non-public forum. See, e.g., Int'l Soc. For Krishna Consciousness of Cal., Inc., 765 F.3d at 1049-50 (concluding that an airport area and its sidewalks are a non-public forum). It is demarcated by physical barriers and signage, and vehicles and pedestrians not boarding ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.