Lang v. Strange

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA JOANNA LANG, individually and as CASE NO. 3:21-cv-05286 11 personal representative of the Estate of Dick Lang, and as Guardian and Parent of ORDER GRANTING CLARK 12 the Minor Children R.L. and C.L COUNTY’S MOTION TO DISMISS 13 Plaintiff, v. CHERYL STRANGE, individually and as 15 Secretary of the Washington State Department of Social and Human Services 16 (DSHS), et al., 17 Defendants.

This matter comes before the Court on Defendant Clark County’s Motion to Dismiss (Dkt. 72). The Court has considered the motion, to which Plaintiff has not responded, and the remaining file. For the reasons set forth in this order, Clark County’s Motion to Dismiss should be granted, and Clark County should be dismissed as a defendant in this matter.

1 I. FACTS AND PROCEDURAL HISTORY A. FACTS 3 Plaintiff brings this lawsuit against at least thirty defendants alleging violations of law related to the temporary removal of two of Plaintiff’s adopted children from her custody after allegations of child abuse. A full recitation of the facts can be found in the Court’s previous orders granting motions to dismiss brought by other defendants (Dkts. 40 and 41), and Plaintiff’s amended complaint (Dkt. 14). The only allegation against Defendant Clark County in Plaintiff’s amended complaint is that “Defendants were in their collective capacity and as individuals, acted with authority granted to them by DSHS, Clark County, City of Vancouver, Cowlitz County, City of Kelso, Legacy Salmon Creek Hospital, and CASA.” Dkt. 14 at 9. Plaintiff does not identify which defendants allegedly acted under authority granted to them by Clark County. See Dkt. 14.

13 B. PROCEDURAL HISTORY 14 This matter was removed from Clark County Superior Court on April 21, 2021. Plaintiff names Clark County as a defendant in the amended complaint (Dkt. 14), but according to Clark County it was never properly served. Dkt. 72. Plaintiff previously filed a motion to join Clark County as a necessary party (Dkt. 68) but withdrew that motion (see Dkt. 71).

18 The Court previously granted motions to dismiss or for summary judgment filed by other defendants in this matter (Dkts. 40 and 41). Clark County filed the pending motion to dismiss on December 8, 2021, and it was originally noted for consideration on January 7, 2021. The Court learned by phone call that Plaintiff’s counsel, Kevin L. Johnson, had his license to practice law suspended by the Washington State Bar Association. Plaintiff did not respond to the motion to dismiss by the noting date, and Mr. Johnson was still listed as the designated recipient for filings on CM/ECF. On January 19, 2021, the Court issued orders to update the contact information in CM/ECF to reflect Plaintiff’s pro se status (Dkt. 74) and renote the motion to dismiss to ensure Plaintiff had adequate notice and opportunity to respond (Dkt. 75). The pending motion is now ripe for consideration, though Plaintiff has still not filed a response.

5 II. DISCUSSION 6 Clark County moves to dismiss on the grounds that Plaintiff failed to properly execute service, failed to properly file a tort claim, failed to state a damage claim against Clark County, failed to allege cognizable causes of action under 42 U.S.C. § 1983, failed to state a valid RICO claim, and because Plaintiff’s claims are barred by the statute of limitations. Dkt. 72.

10 A. STANDARD FOR MOTION TO DISMISS 11 Fed. R. Civ. P. 12(b) motions to dismiss 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 Dept., 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 15 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 (2007) (internal citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 547.

1 B. FAILURE TO FILE A RESPONSE IN OPPOSITION 2 Pursuant to Local Civil Rule 7(b)(2), “except for motions for summary judgment, 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.”

5 C. ANALYSIS 6 Plaintiff does not plausibly establish entitlement to relief, and the Court construes her failure to respond as an admission that Clark County’s motion has merit. LCR 7(b)(2). Plaintiff does not appear to have properly filed a damage claim with Clark County before filing the instant lawsuit, which is “a condition precedent to the commencement of any action claiming damages” against a local governmental entity. RCW 4.96.010(1). Furthermore, Plaintiff is now appearing pro se. The claims she brings in her personal capacity are barred by the relevant statutes of limitations. See Dkts. 40 and 41. Therefore, dismissal of her claims should be with prejudice.

13 Dismissal of all other claims is also appropriate because a plaintiff appearing pro se may not bring claims on behalf of another person. See Johns v. Cnty of San Diego, 114 F.3d 874, 876 (9th Cir. 1997). Furthermore, Plaintiff has not met burden of establishing that Clark County was properly served the summons with the complaint. See Behagen v. Amateur Basketball Ass’n of the United States, 744 F.2d 731, 733 (10th Cir. 1984). Finally, the amended complaint does not plausibly state a claim for relief against Clark County. The single allegation that “Defendants were in their collective capacity and as individuals, acted with authority granted to them by DSHS, Clark County, City of Vancouver, Cowlitz County, City of Kelso, Legacy Salmon Creek Hospital, and CASA” (Dkt. 14 at 9) does not provide sufficient factual detail to meet the pleading standard required by Federal Rule of Civil Procedure 12(b)(6).

23 Therefore, Clark County’s motion to dismiss should be granted.

1 III. ORDER 2 Therefore, it is hereby ORDERED that: 3  Defendant Clark County’s Motion to Dismiss IS GRANTED; 4  Clark County IS DISMISSED from this matter.

5 The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party’s last known address.

7 Dated this 28th day of February, 2022.

A ROBERT J. BRYAN United States District Judge