Robinson v. Bailey
| Decision Date | 14 May 2021 |
| Docket Number | CASE NO. 3:19-cv-05551-BAT |
| Parties | JOSEPH M ROBINSON, Plaintiff, v. JORDAN BAILEY, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
Defendant Joseph Gibson moves for an order dismissing Plaintiff Joseph M. Robinson's 42 U.S.C. § 1983 and state law claims (Counts Three, Four, Six, Seven and Eight), pursuant to Fed. R. Civ. P. 12(b)(6) and 12(c). Mr. Gibson further moves for dismissal of Count Six, the state law claim for malicious prosecution, under RCW 4.24.510, and requests that the Court award Mr. Gibson attorney's fees, costs, and statutory damages of $10,000. Dkt. 22.
On April 20, 2021, Lawrence Hildes filed a motion to withdraw as attorney for Plaintiff. Dkt. 23. Mr. Hildes requested a stay of all pending motions, including the instant motion filed by Defendant Joey Gibson. Id. The Court denied the motion without prejudice; ordered Plaintiff Joseph Robinson and Attorney Lawrence A. Hildes to advise the Court by May 3, 2021 if Plaintiff intends to prosecute this action; denied the motion to stay, and re-noted Defendant Gibson's motion for May 7, 2021. Dkt. 24. The Court noted that Defendant Gibson's motion to dismiss, which is based on the sufficiency of the complaint filed on Plaintiff's behalf by Attorney Hildes, does not require Plaintiff's active participation. Id., p. 2. Copies of the Court's Order were sent to counsel and to Plaintiff by email and regular mail. Id. The regular mail addressed to Plaintiff was returned to the Court as "undeliverable" on April 29, 2021. Dkt. 25.
Attorney Hildes did not respond to the Court's Order and has filed no response to the motion to dismiss. Pursuant to LCR 7(b)(2), if a party fails to file papers in opposition to a motion, such failure may be considered by the court as an admission that the motion has merit.
Based on a careful review of the motion, the Court grants the motion to dismiss all claims against Defendant Gibson. The dismissal shall be with prejudice as Plaintiff was given ample opportunity and additional time to respond but failed to do so. Defendant Gibson's motion for fees and damages pursuant to RCW 4.24.510 is denied.
Plaintiff filed a Complaint for Damages on June 17, 2019. Dkt. 1. Defendant Joseph Gibson filed an Answer and Affirmative Defenses on December 2, 2019. Dkt. 6.
In May of 2017, a controversy over racism and appropriate responses to it developed at Evergreen State College in Olympia. Dkt. 1, ¶ 2 3.1-3. Later when a professor took to the airways of Fox News, a heated National debate developed as to whether "it was appropriate for students and faculty of color to be allowed to take over the campus...." Id.
Plaintiff alleges that Defendant Gibson is the founder of "Patriot Prayer" and a leader of the "Proud Boys". Dkt. 1, ¶ 2.6. He alleges that Defendant Gibson and Patriot Prayer, a far-right group with close connections to neo-Nazi, White Supremacist, and other extremist groups, "inserted themselves" into this conflict. Id., ¶ 3.4. After Defendant Gibson and Patriot Prayer announced their intention to stage a rally in the middle of Red Square on June 15, 2017 (id., ¶3.10), a counter demonstration "was organized." Id., ¶ 3.13.
According to Plaintiff, "these efforts [of Patriot Prayer and the Proud Boys] have been aided by sympathy and cooperation from law enforcement personnel and agencies" "particularly prevalent with personnel, supervisors and commanders of the Washington State Patrol" and that unidentified "commanders and supervisors" "authorized 'Patriot Prayer' to make arrests." Dkt. 1, ¶ 3.8; 3.11. Plaintiff alleges that he was on his way to the counter demonstration when Defendant Knox ordered him to stop and Defendant Gibson told him he could not go through the area to the public plaza. Id., ¶ 3.15. When he tried to do so, Defendant Grzozwksi grabbed him by the throat and Defendants Toese, Knox, Todd, Gibson and others tackled him to the ground and pinned him there. Id., ¶ 3.16. Plaintiff further alleges that Defendant Toese searched him, found his knife and then Defendants Toese and Todd "dragged/marched" him to the Washington State Patrol, where he was taken into custody. Id., ¶ 3.18-3.20.
Plaintiff alleges that the actions taken by all of the members of Patriot Prayer were under "the specific direction and control of Gibson." Dkt. 1, ¶ 3.14. Plaintiff also alleges that the Washington State Patrol did their "best to give Patriot Prayer an unobstructed opportunity to say and do anything they wanted in front of a circus media without any dissent." Id., ¶ 3.10.
Plaintiff was charged with disorderly conduct and was released hours later. Dkt. 1, ¶ 3.22-3.23. The charge was dismissed approximately eleven months later. Id., ¶ 3.28. Plaintiff claims he missed classes for court hearings. Id., ¶ 3.28-3.29.
Plaintiff sues multiple law enforcement officers, civilians, and "DOES 1-11 1000" and seeks general damages for pain and suffering, special damages for his legal and medical expenses; punitive damages, attorney's fees and litigation costs, and for a declaratory judgment requiring court supervised training for involved agencies and officers. Dkt. 1, ¶ VII.
Plaintiff asserts the following claims against Defendant Gibson: (1) 42 U.S.C. § 1983 claim against "All Individual Defendants 14 and DOES 1-100" (Count One); (2) state law claim for a general violation of civil rights under the Washington State Constitution (Count Three); (3) wrongful arrest (Count Four); (4) malicious prosecution (Count Six); (5) negligence (Count Seven); and (6) intentional infliction of emotional distress (Count Eight). Dkt. 1, ¶ 5, 5.12, 5.29-32, 5.33-35, 5.36-39.
Under Fed. R. Civ. P. 12(b)(6), a court may dismiss a complaint for failure to state a claim. The court must assume the truth of the complaint's factual allegations and credit all reasonable inferences arising from those allegations. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007). The court "need not accept as true conclusory allegations that are contradicted by documents referred to in the complaint." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Instead, the plaintiff must point to factual allegations that "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568 (2007). If the plaintiff succeeds, the complaint avoids dismissal if there is "any set of facts consistent with the allegations in the complaint" that would entitle the plaintiff to relief. Id. at 563; Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
On a motion to dismiss, a court typically considers only the contents of the complaint. However, a court is permitted to take judicial notice of facts that are incorporated by reference in the complaint. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (); Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) () (quoting MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986)).
Judgment on the pleadings under Federal Rule of Civil Procedure 12(c) "is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). A motion for judgment on the pleadings will be denied unless it appears "beyond doubt" that the non-moving party cannot prove any facts in support of the claim that would entitle the non-moving party to relief. RLI Ins. Co. v. City of Visalia, 297 F. Supp. 3d 1038, 1047 (E.D. Cal. 2018), aff'd, 770 F. App'x 377 (9th Cir. 2019) (internal quotation and citation omitted).
To prevail in a claim under 42 U.S.C. § 1983, a plaintiff must establish two essential elements: (1) that the defendant acted under color of state law; and (2) that the defendant caused Plaintiff to be deprived of a right secured by the Constitution and laws of the United States." Johnson v. Knowles, 113 F.3d 1114, 1117 (9th Cir., 1997). Vague and conclusory allegations of official participation in civil rights violations are insufficient. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).
A plaintiff trying to show that a private party acted under color of state law must show that the defendants "conspired or acted jointly with state actors." Radcliffe v. Rainbow Const. Co., 254 F.3d 772, 783 (9th Cir.2001) (citing United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir.1989)). The plaintiffs must therefore provide evidence of "anagreement or meeting of the minds to violate constitutional rights." Id. (quoting Phelps Dodge, 865 F.2d at 1540-41). But the mere furnishing of information to police officers does not constitute joint action under color of state law which renders a private citizen liable under § 1983. See Benavidez v. Gunnell, 722 F.2d 615, 618 (10th Cir.1983); Butler v. Goldblatt Bros., Inc., 589 F.2d 323, 327 (7th Cir.1978). "A relationship of cause and effect between the complaint and the prosecution is not sufficient, or every citizen who complained to a prosecutor would find himself in a conspiracy." Radcliffe, 254 F.3d at 783.
Plaintiff alleges that Defendants Toese and Todd presented Plaintiff to the Washington State Patrol and that the Washington State Patrol arrested him and took him into custody. Dkt. 1, ¶ 5.19. Plaintiff does not allege that Defendant Gibson is, was, or claimed to be a law...
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