Lang v. Strange ( 2022 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 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. 14 CHERYL STRANGE, individually and as 15 Secretary of the Washington State Department of Social and Human Services 16 (DSHS), et al., 17 Defendants. 18 This matter comes before the Court on Defendant Clark County’s Motion to Dismiss 19 (Dkt. 72). The Court has considered the motion, to which Plaintiff has not responded, and the 20 remaining file. For the reasons set forth in this order, Clark County’s Motion to Dismiss should 21 be granted, and Clark County should be dismissed as a defendant in this matter. 22 23 24 1 I. FACTS AND PROCEDURAL HISTORY 2 A. FACTS 3 Plaintiff brings this lawsuit against at least thirty defendants alleging violations of law 4 related to the temporary removal of two of Plaintiff’s adopted children from her custody after 5 allegations of child abuse. A full recitation of the facts can be found in the Court’s previous 6 orders granting motions to dismiss brought by other defendants (Dkts. 40 and 41), and Plaintiff’s 7 amended complaint (Dkt. 14). The only allegation against Defendant Clark County in Plaintiff’s 8 amended complaint is that “Defendants were in their collective capacity and as individuals, acted 9 with authority granted to them by DSHS, Clark County, City of Vancouver, Cowlitz County, 10 City of Kelso, Legacy Salmon Creek Hospital, and CASA.” Dkt. 14 at 9. Plaintiff does not 11 identify which defendants allegedly acted under authority granted to them by Clark County. See 12 Dkt. 14. 13 B. PROCEDURAL HISTORY 14 This matter was removed from Clark County Superior Court on April 21, 2021. Plaintiff 15 names Clark County as a defendant in the amended complaint (Dkt. 14), but according to Clark 16 County it was never properly served. Dkt. 72. Plaintiff previously filed a motion to join Clark 17 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 19 defendants in this matter (Dkts. 40 and 41). Clark County filed the pending motion to dismiss on 20 December 8, 2021, and it was originally noted for consideration on January 7, 2021. The Court 21 learned by phone call that Plaintiff’s counsel, Kevin L. Johnson, had his license to practice law 22 suspended by the Washington State Bar Association. Plaintiff did not respond to the motion to 23 dismiss by the noting date, and Mr. Johnson was still listed as the designated recipient for filings 24 1 on CM/ECF. On January 19, 2021, the Court issued orders to update the contact information in 2 CM/ECF to reflect Plaintiff’s pro se status (Dkt. 74) and renote the motion to dismiss to ensure 3 Plaintiff had adequate notice and opportunity to respond (Dkt. 75). The pending motion is now 4 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 7 service, failed to properly file a tort claim, failed to state a damage claim against Clark County, 8 failed to allege cognizable causes of action under 42 U.S.C. § 1983, failed to state a valid RICO 9 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 12 legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri 13 v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as 14 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 16 not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his 17 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the 18 elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 19 (2007) (internal citations omitted). “Factual allegations must be enough to raise a right to relief 20 above the speculative level, on the assumption that all the allegations in the complaint are true 21 (even if doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a claim 22 to relief that is plausible on its face.” Id. at 547. 23 24 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 3 party fails to file papers in opposition to a motion, such failure may be considered by the court as 4 an admission that the motion has merit.” 5 C. ANALYSIS 6 Plaintiff does not plausibly establish entitlement to relief, and the Court construes her 7 failure to respond as an admission that Clark County’s motion has merit. LCR 7(b)(2). Plaintiff 8 does not appear to have properly filed a damage claim with Clark County before filing the instant 9 lawsuit, which is “a condition precedent to the commencement of any action claiming damages” 10 against a local governmental entity. RCW 4.96.010(1). Furthermore, Plaintiff is now appearing 11 pro se. The claims she brings in her personal capacity are barred by the relevant statutes of 12 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 14 not bring claims on behalf of another person. See Johns v. Cnty of San Diego, 114 F.3d 874, 876 15 (9th Cir. 1997). Furthermore, Plaintiff has not met burden of establishing that Clark County was 16 properly served the summons with the complaint. See Behagen v. Amateur Basketball Ass’n of 17 the United States, 744 F.2d 731, 733 (10th Cir. 1984). Finally, the amended complaint does not 18 plausibly state a claim for relief against Clark County. The single allegation that “Defendants 19 were in their collective capacity and as individuals, acted with authority granted to them by 20 DSHS, Clark County, City of Vancouver, Cowlitz County, City of Kelso, Legacy Salmon Creek 21 Hospital, and CASA” (Dkt. 14 at 9) does not provide sufficient factual detail to meet the 22 pleading standard required by Federal Rule of Civil Procedure 12(b)(6). 23 Therefore, Clark County’s motion to dismiss should be granted. 24 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 6 to any party appearing pro se at said party’s last known address. 7 Dated this 28th day of February, 2022. A 8 9 ROBERT J. BRYAN United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24