City Of Sumas, V. Ken Mccoy ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KENNETH D. McCOY,
No. 81746-9-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
CITY OF SUMAS, JIM WRIGHT,
official and individual,
Respondent.
DWYER, J. — Kenneth McCoy appeals from the trial court’s order
dismissing his lawsuit against the City of Sumas (the City) and prosecutor Jim
Wright alleging statutory and common law causes of action based on various
theories of malicious prosecution. McCoy contends that the trial court erred in
ruling that his claims are barred by prosecutorial immunity. We conclude that the
prosecutor’s charging decisions are well within the scope of prosecutorial
immunity. To the extent that McCoy alleged that the prosecutor was not entitled
to absolute immunity for certain actions, McCoy failed to support those claims
with evidence. We therefore affirm.
I
On January 16, 2018, Kenneth McCoy submitted a City of Sumas
business license application for a company called “Northern Tier, Inc.” On the
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application, McCoy described Northern Tier’s business activities as “consulting
engineer, technical services, prototype development & fabrication, aerospace,
alternative energy.” The described business activities appeared to fit within the
permitted uses for the industrial district where McCoy proposed operating his
business. The City approved the application.
A few months later, city utility billing clerk Shelley Schultz noticed a sharp
increase in electricity usage for the building where Northern Tier operated. The
prior average use for that address was 281 kilowatts per month, and Northern
Tier used 2,982 kilowatts. After reviewing McCoy’s business license application,
Schultz decided that none of the activities listed under the business description
would seem to use 10 times more kilowatts than the previous tenants, so she
notified utilities superintendent Ruben Hernandez and Chief of Police Daniel
DeBruin.
On April 2, 2018, DeBruin drove past the business. DeBruin could hear
“what sounded like machinery and/or fans running inside the building.” He also
noticed that all the upper story windows were open even though it was a cool,
overcast day. These observations, in addition to the sharp increase in electricity
consumption at the address, led DeBruin to become concerned that the building
was being used for marijuana cultivation.
On April 4, 2018, DeBruin returned to the building and walked to an open
door. DeBruin observed a large silver rack system with what appeared to be
multiple computer servers. There was also “quite a lot of noise” and “a large
amount of heat” coming out of the door. DeBruin spoke with the man working
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inside the building, who identified himself as Kenneth McCoy, the business
owner. McCoy indicated that he was working on installing some ventilation and
fans to help cool the interior of the building. DeBruin asked what was causing so
much heat, and McCoy stated that he had several machines that created heat
“such as 3D printers and other aerospace equipment.” When DeBruin asked
questions about 3D printing and the aerospace industry, McCoy “seemed to
become nervous” and “evasive.” McCoy eventually admitted that “I’m doing
cryptocurrency here.” McCoy explained that this business involved multiple
computer servers collecting data on the Internet and converting that data into
cryptocurrency.
After learning of DeBruin’s findings, city prosecutor Jim Wright discussed
the matter with city planner Rollin Harper during a city council executive session.
On April 10, 2018, Harper advised Wright via e-mail that “it seems to me that
computer-based storage/processing is not listed under either permitted or
conditional uses” in the industrial district as set forth in chapter 20.44 of the
Sumas Municipal Code (SMC). Harper’s interpretation was that McCoy’s
cryptocurrency mining business “would only be allowed if approved through a
conditional use permit process where the applicant demonstrated that the use
was similar to at least one other permitted or conditional use and that the
proposed use met all of the applicable conditional use permit criteria.”
On April 18, 2018, DeBruin completed his police report and forwarded it to
Wright for review and possible charges. The report noted that the operation of
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multiple computer servers to mine cryptocurrency did not appear to fall under any
of the activities listed on Northern Tier’s business application.
On June 14, 2018, Wright issued two citations to McCoy. The first citation
charged McCoy with two violations of state law: making a false or misleading
statement to a public servant under RCW 9A.76.175 and obstructing a law
enforcement officer under RCW 9A.76.020. Both charges were based on the
premise that McCoy had submitted an application to city officials to obtain a
business license that did not match the business being conducted. The second
citation charged McCoy with two violations of Sumas Municipal Code: engaging
in a business activity without obtaining a business license under SMC 4.04.030
and engaging in a prohibited use in the industrial district under SMC 20.44.040.
At an arraignment on June 14, 2018, the municipal court judge dismissed
the state law charges for lack of probable cause but allowed the municipal code
charges to proceed. On November 8, 2018, the City chose to dismiss the
municipal code charges without prejudice. According to the City, McCoy has
continually operated his cryptocurrency mining operation without interruption
since before the criminal case began, and he remains in business today.
On March 13, 2020, McCoy filed a pro se lawsuit in superior court against
the City and Wright alleging the following causes of action: (1) malicious
prosecution, (2) official misconduct/abuse of office, (3) denial of due process and
equal protection based on “impermissible selective prosecution,” (4) gross
negligence, (5) barratry, (6) harassment, (7) intentional infliction of emotional
distress, and (8) action on a bond under RCW 42.08.020.
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The City moved to dismiss the lawsuit under CR 12, arguing that McCoy’s
claims were barred by prosecutorial immunity and, with respect to the eighth
cause of action, for failure to meet the statutory precursors to bring action on a
bond. The trial court granted the City’s motion to dismiss on the basis that all of
McCoy’s claims were barred by prosecutorial immunity. McCoy appeals.
II
The City moved to dismiss McCoy’s claims under CR 12 on the basis that
they were barred by prosecutorial immunity. A trial court may grant dismissal for
failure to state a claim under CR 12(b)(6) if “‘it appears beyond doubt that the
plaintiff can prove no set of facts, consistent with the complaint, which would
entitle the plaintiff to relief.’” Haberman v. Wash. Pub. Power Supply Sys., 109
Wn.2d 107, 120, 744 P.2d 1032, 750 P.2d 254 (1987) (internal quotation marks
omitted) (quoting Bowman v. John Doe Two, 104 Wn.2d 181, 183, 704 P.2d 140(1985)). However, an appellate court treats a CR 12(b)(6) motion to dismiss as a
motion for summary judgment “when matters outside the pleading are presented
to and not excluded by the court.” Sea-Pac Co. v. United Food & Commercial
Workers Local Union 44, 103 Wn.2d 800, 802, 699 P.2d 217 (1985). In its order
granting the City’s motion to dismiss, the superior court noted that it had
reviewed the declaration of Jill Smith in support of the City’s motion to dismiss.
Attached to the declaration were numerous exhibits, including McCoy’s business
license application, Schultz’s statement, the police report, Harper’s e-mail, and
copies of the citations issued to McCoy. Because the superior court considered
Smith’s declaration, we treat the City’s motion as a motion for summary
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judgment. See Brummett v. Washington’s Lottery, 171 Wn. App. 664, 674, 288
P.3d 48 (2012).
We review de novo an order granting summary judgment. Boguch v.
Landover Corp., 153 Wn. App. 595, 608, 224 P.3d 795 (2009). Summary
judgment is appropriate where the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law. CR 56(c).
We construe the facts in the light most favorable to the nonmoving party.
Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). But a
nonmoving party cannot rely on speculation or argumentative assertions that
unresolved factual issues require a jury trial. KS Tacoma Holdings, LLC v.
Shorelines Hr’gs Bd., 166 Wn. App. 117, 126, 272 P.3d 876 (2012). In the
context of CR 56(e), “[a] fact is an event, an occurrence, or something that exists
in reality.” Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753
P.2d 517 (1988), abrogated on other grounds by Mikkelsen v. Pub. Util. Dist. No.
1 of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017). In other words, a fact
“is what took place, an act, an incident, a reality as distinguished from
supposition or opinion.” Grimwood, 110 Wn.2d at 359. “The ‘facts’ required by
CR 56(e) to defeat a summary judgment motion are evidentiary in nature.
Ultimate facts or conclusions of fact are insufficient. Likewise, conclusory
statements of fact will not suffice.” Grimwood, 110 Wn.2d at 359-60 (citation
omitted); accord Overton v. Consol. Ins. Co., 145 Wn.2d 417, 430, 38 P.3d 3226
No. 81746-9-I/7
(2002). We may affirm summary judgment dismissal on any basis supported by
the record. Bavand v. OneWest Bank, 196 Wn. App. 813, 825, 385 P.3d 233(2016).
III
McCoy argues that the trial court erred by granting the City’s motion to
dismiss his lawsuit on the basis of prosecutorial immunity. He contends that the
allegations in his complaint warrant a jury trial on his claims. We disagree.
A
Whether a prosecutor enjoys absolute immunity for challenged conduct
depends upon the nature of the function performed. Kalina v. Fletcher, 522 U.S.
118, 127, 118 S. Ct. 502, 139 L. Ed. 2d 471 (1997). Absolute immunity applies
only to those actions within the scope of traditional prosecutorial functions.
Rodriguez v. Perez, 99 Wn. App. 439, 450, 994 P.2d 874 (2000). This immunity
extends to both the State and the entity employing the prosecutor. Janaszak v.
State, 173 Wn. App. 703, 718-19, 297 P.3d 723 (2013).
“It is well established that a prosecutor who acts within the scope of his or
her duties in initiating and pursuing a criminal prosecution is absolutely immune
from liability.” Tanner v. City of Federal Way, 100 Wn. App. 1, 4, 997 P.2d 932(2000) (citing Imbler v. Pachtman, 424 U.S. 409, 427, 96 S. Ct. 984, 47 L. Ed. 2d
128 (1976)). “This immunity is warranted to protect the prosecutor’s role as an
advocate because any lesser immunity could impair the judicial process.”
McCarthy v. County of Clark, 193 Wn. App. 314, 337, 376 P.3d 1127 (2016)
(citing Musso-Escude v. Edwards, 101 Wn. App. 560, 573, 4 P.3d 151 (2000)).
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The charging function is intimately related to the judicial process and
prosecutorial immunity must apply to ensure the independence of the decision-
making process. McCarthy, 193 Wn. App. at 339 (citing Hannum v. Friedt, 88
Wn. App. 881, 886-87, 947 P.2d 760 (1997)).
The gravamen of McCoy’s complaint is that he was a victim of malicious
prosecution. The complaint asserted that McCoy’s “entire damages and injuries”
were brought about because Wright “pursued false criminal charges” against
him, and that the fact the charges were dropped proves his theory of malicious
prosecution. But because the decision to initiate, pursue, or drop charges falls
squarely within the scope of a prosecutor’s duties, absolute immunity protects
Wright and the City from liability for such actions.
B
McCoy argues that prosecutorial immunity does not apply in this situation
because Wright selectively prosecuted him for operating a cryptocurrency mining
business. We disagree.
“Prosecutors are vested with wide discretion in determining whether to
charge suspects with criminal offenses.” State v. Entz, 58 Wn. App. 112, 119,
791 P.2d 269 (1990). “To succeed in an unconstitutional selective prosecution
claim the defendant must show (1) disparate treatment, i.e., failure to prosecute
those similarly situated, and (2) improper motivation for the prosecution.” State
v. Terrovonia, 64 Wn. App. 417, 422, 824 P.2d 537 (1992) (citing Wayte v.
United States, 470 U.S. 598, 602-03, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985)).
The decision to charge some but not others guilty of the same crime does not
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violate equal protection standards unless the selection was “‘deliberately based
upon an unjustifiable standard such as race, religion, or other arbitrary
classification.’” State v. Judge, 100 Wn.2d 706, 713, 675 P.2d 219 (1984)
(quoting Oyler v. Boles, 368 U.S. 448, 456, 82 S. Ct. 501, 7 L. Ed. 2d 446(1962)).
Here, McCoy claims that he was improperly and selectively prosecuted on
the unjustifiable and arbitrary basis that he owns and operates a legal
cryptocurrency business. But the record shows that the charges were based on
the premise that McCoy’s business license did not cover the mining of
cryptocurrency – an activity that drew 10 times the electrical power used by the
previous tenant. This is a legitimate, nonarbitrary basis for prosecution. McCoy
has not alleged that he was prosecuted on the basis of an unjustifiable standard
such as race or religion. He has failed to show discriminatory effect or purpose.
C
McCoy further argues that Wright is not absolutely immune from tort
claims arising from his actions in discussing McCoy’s business at an executive
session prior to the date that the police report was formally filed and lobbying the
city council to make his business illegal. This is so, he contends, because Wright
was acting as an investigator, not as a prosecutor. We disagree.
Prosecutors enjoy absolute immunity when acting as an advocate for the
State, but not when acting as an investigator or administrator. Kalina, 522 U.S.
at 125-27 (holding that prosecutor had absolute immunity when acting as an
advocate in connection with the preparation and filing of an information and a
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No. 81746-9-I/10
motion for an arrest warrant but not in attesting to the truth or falsity of facts);
Buckley v. Fitzsimmons, 509 U.S. 259, 273-74, 113 S. Ct. 2606, 125 L. Ed. 2d
209 (1993) (noting that prosecutor who performs investigative functions, such as
planning and executing raid on suspected weapons cache, normally performed
by police, is not entitled to absolute immunity).
The only evidence McCoy cites in support of his claim is the April 10, 2018
e-mail from Harper to Wright, submitted by the City in support of its motion to
dismiss, in which Harper opines that McCoy’s cryptocurrency business requires a
conditional use permit. No other evidence describes Wright’s precharging
conduct. Viewed in the light most favorable to McCoy, this e-mail suggests that
Wright sought the city planner’s opinion regarding whether cryptocurrency mining
requires a conditional use permit. In so doing, Wright was acting as an advocate
in deciding whether or not to file charges, not as an investigator gathering
evidence or as a witness attesting to the truth or falsity of facts. And, in any
case, the e-mail does not establish that Wright’s conduct was improper in any
way.
D
McCoy further asserts that Wright is not shielded by absolute immunity for
tortious conduct that allegedly occurred outside of any advocacy role, including
threatening him with physical restraint or confinement in jail, threatening to file a
warrant for his arrest, and threatening to shut down his business. But the
allegations in McCoy’s complaint were merely opinions or suppositions without a
factual basis. The facts required by CR 56(e) to overcome summary judgment
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are evidentiary in nature. McCoy’s conclusory claims fail to establish the
existence of genuine issues of material fact for trial.1
V
Finally, McCoy argues that the trial court erred by denying him leave to
amend his original pleadings. “After an answer is served, CR 15(a) permits a
plaintiff to amend a complaint only by leave of court, which shall be freely given
when justice so requires.” Rodriguez v. Loudeye Corp., 144 Wn. App. 709, 729,
189 P.3d 168 (2008). The court may consider whether the new claim is futile or
untimely. Ino Ino, Inc. v. City of Bellevue, 132 Wn.2d 103, 142, 937 P.2d 154,
943 P.2d 1358 (1997). We will reverse a trial court’s ruling on a request to
amend only if the trial court abused its discretion. Nepstad v. Beasley, 77 Wn.
App. 459, 468, 892 P.2d 110 (1995).
McCoy asserts that his motion was not untimely or futile. We disagree.
McCoy filed his motion on the morning of the hearing on the City’s motion to
dismiss. Neither the court nor the City had received a copy of the motion prior to
the hearing. Moreover, the motion was not noted for the hearing. The City
asked the court to strike the untimely filings prior to ruling on the motion to
dismiss. Although the court did not expressly state that it had struck the untimely
motion, the order of dismissal does not include it among the materials reviewed
in its ruling.
1McCoy also raises several new issues for the first time in his reply brief. Issues raised
and argued for the first time in a reply brief are too late to warrant consideration. Cowiche
Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
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McCoy contends that his lateness should be excused because he was
blindsided by the City’s prosecutorial immunity defense and it all happened too
fast for him to respond. But the record shows that the City’s motion to dismiss
was initially noted for June 5, 2020. The City struck and renoted the motion for
two weeks later at McCoy’s request to give him more time to respond. A trial
court must hold pro se parties to the same standards to which it holds attorneys.
Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411, 936 P.2d 1175(1997). Under these circumstances, the trial court acted well within its discretion
in declining to grant leave to amend.
Affirmed.
WE CONCUR:
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