Opinion
3:22-cv-05397-TL
11-07-2022
DAVID Q. WEBB, Plaintiff, v. KELLY BUSEY, et al., Defendants.
ORDER DISMISSING CASE WITH PREJUDICE
Tana Lin, United States District Judge
This matter comes before the Court upon pro se Plaintiff David Q. Webb's response (Dkt. No. 16) to the Court's order to show cause how the proposed complaint in this case (Dkt. No. 1-1) differs from the claims he attempted to bring in a previous case, Webb v. Busey, No. 3:22-cv-05030 (Busey I). Dkt. No. 14. Having reviewed the response, the records in the relevant cases, and the governing law, the Court DISMISSES the proposed complaint WITH PREJUDICE.
I. Background
On January 14, 2022, Plaintiff filed a motion to proceed in forma pauperis (IFP) in a previous case, No. 322-cv-05030. Busey I, Dkt. No. 1. A United states Magistrate Judge re-noted the IFP application and explained that the complaint failed to state a claim and would be subject to dismissal if the defects were not cured. Busey I, Dkt. No. 4. The Order provided very specific details of the deficiencies and granted Plaintiff an opportunity to amend. Id. Plaintiff filed an amended complaint (Busey I, Dkt. No. 5) but failed to cure the deficiencies, which were detailed again in the Magistrate Judge's report and recommendation. Busey I, Dkt. 7. On May 16, 2022, a United States District Judge adopted the report and recommendation over Plaintiff's objections (Busey I, Dkt. No. 8), denied his IFP application, and dismissed the case without prejudice. Busey I, Dkt. No. 11. Plaintiff had separately appealed the denial of his IFP application to the Ninth Circuit (Busey I, Dkt. No. 9), which denied his mandamus petition. Busey I, Dkt. No. 13.
On June 1, 2022, Plaintiff filed a new IFP application and proposed complaint. Dkt. Nos. 1, 1-1. The complaint names five of the same Defendants as in Busey I and asserts several of the same causes of action (this time explicitly including only claims under 42 U.S.C. § 1983 and 42 U.S.C. § 2000d (Title VI of the Civil Rights Act) but also including, on continuance sheets, counts under the Fourth Amendment, the Fourteenth Amendment, and a state statute regarding vicarious liability). Compare Dkt. No. 1-1 at 2-3, 5 andDkt. No. 1-4 at 1, 11-16 with Busey I, Dkt. No. 1-1 at 3, 7-8. On August 11, 2022, this Court issued an Order to Show Cause why this case should not be dismissed for failure to state a claim, asking (1) how this case differs from Busey I, and (2) how Plaintiff cured the deficiencies with the claims that the Court previously identified. Dkt. No. 14 at 2.
II. Discussion
The Court appreciates Plaintiff's attempts to comply with Federal Rules of Civil Procedure 8 by reducing the number of pages and defendants. See Dkt. No. 16 (response to order to show cause) at 2; see also Busey I, Dkt. No. 7 at 3 (explaining that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief”).However, while easier to follow, this newest complaint still does not allege the facts necessary to state a claim for relief under either Title VI or Section 1983. Plaintiff's amended complaint is brought against five defendants in their official capacities as employees of the Gig Harbor Police Department. Dkt. No. 1-4 at 1, 7, 10-11. The complaint also confusingly contains references to other “defendants,” including one person who he alleges used a racial slur against him. See id. at 19.
Meanwhile, Plaintiff's response to the order to show cause exceeds the three-page limit the Court provided. See Dkt. No. 16 (six pages long); Dkt. No. 14.
All of Plaintiff's claims seem to center on two encounters with members of the Gig Harbor Police Department. He first alleges that the police refused to act against a white woman whom they witnessed taking two new iPhones from Plaintiff, taking automobile registration documents out of Plaintiff's car, and keying Plaintiff's car. Dkt. No. 1-4 at 8-9. He also alleges an encounter with police at a vehicle licensing agency. While difficult to piece together, it appears that Plaintiff is alleging that after he spoke to a Gig Harbor Chamber of Commerce employee while at the agency, she informed him that she had nothing to say to “You [N word],” she then called the police claiming stalking/harassment, and the police illegally detained Plaintiff. Id. at 9, 17-18. Plaintiff further contends that one of the police defendants participated in a malicious prosecution of Plaintiff Webb by the Kitsap County Prosecutor. Id. at 20.
A. Title VI Claim
To prove Title VI discrimination, a private party must demonstrate that they were subjected to intentional discrimination due to “race, color, or national origin” by a “program or activity receiving Federal financial assistance.” Yu v. Idaho State Univ., 15 F.4th 1236, 1242 (9th Cir. 2021) (quoting 42 U.S.C. § 2000d). Plaintiff asserts that the police department has a history of using excessive force against people of color and that the city government has been engaged in intentional discrimination based on Plaintiff's race, color, and national origin as an African American male. Dkt. No. 1-4 at 7-8. However, as before (see Busey I, Dkt. No. 7 at 4), Plaintiff does not show that the defendants were motivated to discriminate against him due to his race, color, or national origin. The alleged racial slur was not uttered by police officers but by the employee of the Chamber of Commerce which is a private entity, and there is simply no evidence that the police officers treated Plaintiff differently or worse because he is African American.
B. Fourth Amendment Claim
To determine whether an excessive force claim has been stated under the Fourth Amendment, a court considers “whether the officer's actions were objectively reasonable in light of the facts and circumstances confronting them.” Chang v. Vanderwielen, 2022 WL 7048122, at *5 (W.D. Wash. Oct. 12, 2022) (quoting Williamson v. City of Nat'l City, 23 F.4th 1146, 1151 (9th Cir. 2022)). This analysis involves an assessment of a number of factors such as the severity of the intrusion, the type and amount of force used, and whether the suspect posed a safety threat. See id. (citing Williamson, 23 F.4th at 1152-53). Plaintiff has not provided enough information for the Court to be able to engage in this kind of analysis. He does not even describe what degree of force was used by the officers in arresting him, let alone explain how that amount of force was excessive in light of the circumstances. See Dkt. No. 1-4 at 12.
C. Fourteenth Amendment Claim
As with the previous complaints (Busey I, Dkt. Nos. 1-1 at 27-28, 5 at 32-33), Plaintiff has not explained how he has made out a Fourteenth Amendment claim against the officers. Dkt. No. 1-4 at 15-16. This Count simply incorporates his previous allegations without further explanation. Id. His response to the order to show cause explains that the defendants violated his Fourteenth Amendment rights via the same “illegal Detainment” already challenged “incorporating the exact same verbiage” from his Fourth Amendment claim. Dkt. No. 16 at 5. The Court is not able to make sense of this claim.
D. Section 1983 Claim
To state a claim under 42 U.S.C. § 1983, a plaintiff must show “(1) a violation of rights protected by the Constitution or created by federal statute, (2) proximately caused (3) by conduct of a ‘person' (4) acting under color of state law. Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991) (citations omitted). Plaintiff insists that his new complaint sets forth how the five named defendants were acting under color of state law to intentionally discriminate against him in violation of the Fourth and Fourteenth Amendments due to his status as an African American male. Dkt. No. 16 at 2. Yet Plaintiff has failed to show those constitutional violations and, as already discussed, largely repeats the same claims from his previously dismissed case.
E. State Law Vicarious Liability Claim
Per 28 U.S.C. § 1367, a district court may exercise supplemental jurisdiction over state law claims when it has original jurisdiction over a civil action. Colvin v. Young, No. C14-1962, 2015 WL 1808900, at *5 (W.D. Wash. Apr. 21, 2015). Once a lawsuit's federal claims are dismissed, a federal court cannot retain jurisdiction over any remaining state law claims. Scott v. Pasadena Unified School Dist., 306 F.3d 646, 664 (9th Cir. 2002). Here, the Court has not identified any adequately pled federal claims that would survive dismissal and cannot retain jurisdiction over the state law claims alleged in the complaint. The Court has reservations about whether Plaintiff has adequately stated a claim under RCW 18.86.090 but does not reach this claim because it does not have jurisdiction to rule on it.
F. Denial of Leave to Amend
Plaintiff Webb has already had multiple opportunities to cure these deficiencies and file an amended complaint that more specifically alleged facts supporting his legal claims. See Busey I, Dkt. Nos. 1-1, 5. His response to the order to show cause does not provide any further factual detail. See Dkt. No. 16. Plaintiff has had multiple opportunities to amend his complaint to state a federal claim but has failed to do so and it would be futile to provide further opportunities for amendment. See Saddiq v. Amazon.com, 857 Fed.Appx. 281, 282 (9th Cir. 2021); see also McKinney v. Baca, 250 Fed.Appx. 781 (9th Cir. 2007) (no abuse of discretion found where district court dismissed a complaint without leave to amend “after notifying [the plaintiff] of the deficiencies in his pleadings, advising him how to correct them, and affording him multiple opportunities to amend his complaint”), cert. denied, 552 U.S. 1117 (2008), (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992), cert. denied, 506 U.S. 915).
III. Conclusion
For the above reasons, the Court DISMISSES all claims in this case WITH PREJUDICE (i.e., without leave to amend). The Clerk of Court is directed to CLOSE this case.