Opinion
CASE NO. C12-0791JLR
2013-10-15
DWIGHT HOLLAND, Plaintiff, v. KING COUNTY ADULT DETENTION, et al., Defendants.
ORDER REGARDING KING
COUNTY DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT AND PLAINTIFF'S
MOTION FOR JUDICIAL
NOTICE
I. INTRODUCTION
Before the court are: (1) King County Adult Detention, King County, King County District Court East Division, King County Prosecuting Attorney's Office, and King County Deputy Prosecuting Attorney Lakeysha Nicole Washington's (collectively "King County Defendants") motion for summary judgment (SJ Mot. (Dkt. # 44)), and (2) Plaintiff Dwight Holland's motion for judicial notice (Ptf. Mot. (Dkt. # 59)). The court has reviewed the motions, all submissions filed in support of and opposition thereto, the balance of record, and the governing law. Being fully advised, the court GRANTS King County Defendants' motion for summary judgment and DENIES Mr. Holland's motion for judicial notice.
No party has requested oral argument with regard to either motion, and the court deems both motions to be appropriate for disposition without it.
II. BACKGROUND
This lawsuit arises out of the September 16, 2011, arrest of Mr. Holland on suspicion of driving while under the influence of alcohol. (See Holland Decl. (Dkt. # 56-7) ¶ 6 ("On the morning of September 16, 2011[,] I was unlawfully arrested for DUE").) Although Mr. Holland was charged with driving under the influence of intoxicants, the state court dismissed the charge prior to trial on August 3,2012 (see Resp. to OSC (Dkt. # 12) at 9-10), and Mr. Holland subsequently filed suit in federal court (see generally Am. Compl. (Dkt. # 7)).
On July 3, 2012, the court granted in part and denied in part Defendants Washington State Patrol, Washington State Department of Licensing, and Washington State Patrol Trooper Anthony Brock's (collectively, "State Defendants") motion for summary judgment. (7/3/13 Order (Dkt. # 42).) King County Defendants have now moved for summary judgment as well on grounds that overlap in part with the State Defendants' motion. (See generally SJ Mot.) The court stated the factual background surrounding Mr. Holland's arrest in its July 3, 2013, order (see 7/3/13 Order at 2-13) and will not restate those facts here. The court will, however, examine additional undisputed facts that are relevant to King County Defendants' motion.
Along with his response to King County Defendants* motion, Mr. Holland submits a document entitled, "Declaration of Stacey Anne Wilson in Support of Planitiff's Opposition to King county Defendant's Motion for Summary Judgment." (Wilson Decl. (Dkt. # 56-8).) As King County Defendants point out (see SJ Am. Reply (Dkt. # 57) at 2), this declaration is not signed by Ms. Wilson. (See Wilson Decl. at at 2.) Accordingly, the declaration does not constitute sworn testimony, and the court will not consider it with respect to the present motion or this proceeding.
In addition, Mr. Holland submitted his own declaration. (Holland Decl. (Dkt. # 56-7).) Unfortunately, although Mr. Holland signed the declaration, he did not sign it under oath. (See id. at 4.) The court nevertheless cites to facts in this order based On facts recited by Mr. Holland in his declaration. The court understands that Mr. Holland's declaration is technically deficient. Nevertheless, none of the facts cited by the court from Mr. Holland's declaration are pivotal or "material" to the court's determination. See Fed. R Civ. P. 56. Typically, the court utilizes Mr. Holland's declaration simply to demonstrate that he does not dispute certain facts stated by King County Defendants.
Following his arrest, Mr. Holland was booked into the King County Jail at approximately 2:58 a.m. on September 16, 2011. (Kanner Decl. (Dkt. # 45) Ex. 1; Holland Decl. ¶ 7.) Mr. Holland's personal possessions, including his wallet and cell phone, were seized by personnel at the King County Jail and stored until his release. (See Holland Decl. ¶ 9.)
At approximately 4:10 a.m. on the same day, Jail Health Services Nurse Colleen Larsen conducted an initial "screening" examination of Mr. Holland. (Laquey Decl. (Dkt. # 46) Ex. 1.) During the screening, Mr. Holland reported to the nurse that he had sleep apnea and that he used a continuous positive airway pressure ("CPAP") machine. (See id. Ex. 1 at 2; Holland Decl. ¶ 11.) As a result of the screening, Nurse Larsen transferred Mr. Holland to the medical floor of the jail, ordered a wedge pillow for him, and contacted Group Health to verify what medications he would need. (Laquey Decl. Ex. 1 at 2; see Holland Decl. ¶ 15 ("Ms. Larsen informed me that I will be assigned to the medical unit where I will be given a wedge.").) Nurse Larsen informed Mr. Holland that there were no CPAP machines for sleep apnea at King Comity Jail. (Id. ¶ 14.)
At 11:33 a.m. on the same day, Jail Health Services Nurse Susan Densmore met with Mr. Holland and put a reminder in her computer system for Mr. Holland to receive a wedge pillow even though she was unable to verify a diagnosis of sleep apnea from his medical provider. (Id. Ex. 1 at 3.) Mr. Holland posted bail on the same day and was released from King County Jail at 1:07 p.m. Just ten hours and nine minutes after he was booked into jail. (See Kanner Decl. Exs. 1, 2.) Mr. Holland never received a wedge pillow during the course of his stay at King County Jail. (Holland Decl. ¶ 18.) Mr Holland testifies that he tried to fall asleep without a wedge pillow, but would "wake up in a panic, coughing and choking while gasping for air." (Id. ¶ 19.) As a result, he was unable to sleep during the ten hours and nine minutes that he stayed at the King County Jail. (Id. ¶¶ 18-21; SJ Resp. (Dkt. # 56) ("Holland was denied medical attention and endured 10 hours . . . of sleep deprivation due to deliberate indifference of Jail medical staff.").)
Mr. Holland states that Nurse Densmore had "a very bad temperament" and told Mr. Holland that she intended to transfer him out of the medical unit because he did not have a wedge pillow. (Holland Decl. ¶ 22.) However, Mr. Holland concedes that she ultimately allowed him to stay in the medical unit until he was released. (Id.) These facts, even if true, are not material to the court's decision with respect to King County Defendants' motion for summary judgment.
King County Deputy Prosecuting Attorney Washington signed the criminal complaint charging Mr. Holland with driving under the influence of intoxicants. (Id. Ex. 3.) The complaint was filed on December 27, 2012. (Id. Exs. 3, 4.) King County District Court entered a "Finding of Probable Cause" on January 9, 2012. (Id. Ex. 5.) Specifically, the court stated:
After a careful review of the files and records herein including the statement of probable cause executed by the citing law enforcement officer along with any report submitted by that officer and any accompanying documentation to that report, [sic](Id.) King County Superior Court dismissed the charge against Mr. Holland prior to trial on August 3, 2012. (Id Ex. 4 at 3.)
THE COURT HEREBY FINDS THAT PROBABLE CAUSE EXISTS that on 9/16/2011 the crime of DUI may have been committed,
Mr. Holland commenced this lawsuit in early May 2012. (See Dkt. ## 1, 2.) On August 2012, Mr. Holland filed an amended complaint. (See Am. Compl.) Mr. Holland has sued nine defendants, including King County Defendants, has asserted fifteen causes of action, and seeks $2.5 million in damages. (See generally id.)
On December 7, 2012, the court issued an order to show cause as to why this matter should not be dismissed under Federal Rule of Civil Procedure 4(m) based on Mr. Holland's failure to serve Defendants within the 120-dya timeframe mandated by Rule 4. (OSC (Dkt. # 9).) In response, Mr. Holland represented to the court that "all parties mentioned have been served week(s) prior to receiving this order." (Resp. to OSC (Dkt. # 12) at 2.) In addition, all defendants except for Gary's Towing had either appeared or answered the complaint, and Mr. Holland had filed an affidavit of service with respect to Gary's Towing. (See id. at 2.) Accordingly, the court discharged its order to show cause with respect to Rule 4(m). (See 1/2/13 Order (Dkt. # 14).) However, the court also stated:
[C]ertain defendants have asserted affirmative defenses concerning the propriety of service of process in this matter (see, e.g., Answer (Dkt. #11) at 26), and others have entered appearances without waiving service of process defenses (see, e.g., Notice of Appear. (Dkt. # 13) at 1). This order—discharging the court's prior order to show cause—does not address the propriety of any service of process performed in this proceeding.(Id. at 2, n. 1.) Mr. Holland has never served King County. (See generally Masuo Decl. (Dkt. # 47).) King County Defendants raised this issue as an affirmative defense in their Answer (King Cnty. Ans. (Dkt. # 11)), as well as in the parties' Joint Status Report to the court (see JSR (Dkt. # 20) at 4, ¶ 15). In addition, Mr. Holland has never filed a tort claim for damages with King County concerning the subject matter of his complaint. (Masuo Decl. ¶ 10.)
III. ANALYSIS
King County Defendants have moved for summary judgment with respect to a number of issues, (See generally SJ Mot.) They assert that Deputy Prosecuting Attorney Washington is entitled to absolute prosecutorial immunity. (Id. at 6.) They seek summary] judgment with respect to the portion of Mr. Holland's 42 U.S.C. § 1983 claim asserting that he received inadequate medical care while in custody at the jail, arguing that Mr. Holland fails to raise a triable issue of fact that King County Defendants acted with deliberate indifference to any serious medical needs. (Id. at 7-10.) They also seek summary judgment on Mr. Holland's state law tort claims both on substantive grounds (id. at 6-7, 10-15) and because Mr. Holland failed to comply with Washington's claim filing statute, RCW 4.92.100 (SJ Mot. at 17-18). Finally, King County seeks dismissal on summary judgment based on Mr. Holland's failure to properly serve the summons and complaint. (Id. at 15-17.)
Mr. Holland has filed a motion for judicial notice. (See Mot.) Mr. Holland asks the court to take judicial notice of various exhibits attached to his motion, which include news articles published either in print or on websites, as well as provisions from the Washington Administrative Code, the Revised Code of Washington, and Washington's Rule of Professional Conduct. (See Mot. Exs. A-J.) The court now considers each motion and argument in turn.
A. Summary Judgment Standard
Summary judgment is appropriate if the evidence, when viewed in the light most favorable to the non-moving party, demonstrates "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011) ("Summary judgment is appropriate only if, taking the evidence and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law"). The moving party bears the initial burden of showing that there is no genuine issue of material fact and that he or she is entitled to prevail as a matter of law. Celotex, 477 U.S. at 323; Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013). If the moving party meets his or her burden, the non-moving party "must make a showing sufficient to establish a genuine dispute of material fact regarding the existence of the essential elements of his case that he must prove at trial" in order to withstand summary judgment. Galen v. Cnty. of L.A., 477 F.3d 652, 658 (9th Cir. 2007).
B. Prosecutorial Immunity
Mr. Holland has not alleged any facts against Deputy Prosecuting Attorney Washington that are outside the scope of her duties in initiating and pursuing his criminal prosecution. (See Am. Compl. ¶¶ 31-34.) For example, Mr. Holland alleges that Ms. Washington "signed and filed a fraudulent suit" against him (id. ¶¶ 31-32), "kn[ew] and should have known [that] the officer ha[d] violated [Mr. Holland's] rights to due process, and should have never filed the case" (id. ¶ 33), and "knowingly and wantonly with malice signed and filed said fraudulent instrument, knowing . . . its own office ha[d] violated [Mr. Holland's] rights of due process" (id. ¶ 34). Based on these allegations, King County Defendants assert that Deputy Prosecuting Attorney Washington should be dismissed from this suit on summary judgment because she is absolutely immune from suit (SJ Mot. at 6.)
The United States Supreme Court has declared that "a state prosecuting attorney who acted within the scope of his [or her] duties in initiating and pursuing a criminal prosecution" is absolutely immune from suit under 42 U.S.C. § 1983. Imbler v. Pachtman, 424 U.S. 409, 410 (1976). "[A]cts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial which occur in his [or her] role as an advocate for the State, are entitled to the protections of absolute immunity." Buckley v. Fitzsimmons, 509 U.S. 259,273 (1993). Activities intimately connected with judicial proceedings and for which immunity will apply include making statements that are alleged misrepresentations and mischaracterizations during hearings, during discovery, and in court papers, Fry v. Melaragno, 939 F.2d 832, 837-38 (9th Cir. 1991), and conferring with witnesses and allegedly inducing them to testify falsely, Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984). Allegations of, for example, malicious prosecution, conspiracy to predetermine the outcome of a proceeding, or destruction of evidence are subject to dismissal on grounds of prosecutorial immunity. See e.g., Milstein v. Cooley, 257 F.3d 1004, 1008-09 (9th Cir. 2001); Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 677-80 (9th Cir. 1984).
With the foregoing precepts in mind, the court concludes that even Mr. Holland's allegations that Ms. Washington and/or other prosecutors "fraudulently" filed suit against him or "knowingly" violated his rights do not pierce the immunity from civil suit extended to prosecutors acting within the scope of their duties in initiating or advancing a criminal prosecution. Further, under Washington state law, "[a]nalysis of a prosecutor's absolute immunity from suit under state law tracks the common law immunity analysis under 42 U.S.C. § 1983." Musso-Escude v. Edwards, 4 P.3d 151, 155 (Wash. App. 2000). Thus, Ms. Washington is not only immune with respect to Mr. Holland's federal section 1983 claim, but also with respect to his state law tort claims. Accordingly, the court dismisses with prejudice all of Mr, Holland's claims against Deputy Prosecuting Attorney Washington on summary judgment.
C. 42 U.S.C. § 1983 and Cruel and Unusual Punishment
Mr. Holland alleges that he was subject to cruel and unusual punishment in violation of constitutional rights when King County Defendants failed to provide him with certain medical equipment, namely a wedge pillow, while he was detained at the King County Jail. (See Am. Compl. ¶¶ 42, 58, 133.) Mr. Holland seeks to recover for this violation under 42 U.S.C. § 1983. King County Defendants have moved to dismiss this claim on summary judgment. (SJ Mot. at 7-10.)
To maintain a claim based on medical treatment while incarcerated under 42 U.S.C. § 1983, a plaintiff must show "deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir. 1992), overruled on other grounds, WMXTechs., Inc. v. Miller, 104 F.3d 1133, 1136 (9th Cir. 1997) (en banc). A determination of "deliberate indifference" involves the court's examination of two elements: (1) the seriousness of the prisoner's medical need and (2) the nature of the defendant's response to that need. Id.
Because Mr. Holland had not yet been convicted of a crime at the time of his detention in the King County Jail, his rights derive from the due process clause of the Fourteenth Amendment rather than the Eighth Amendment's protection against cruel and unusual punishment. Bell v. Wolfish, 441 U.S. 520, 535, n.16 (1979); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998). With respect to medical needs, however, the requirements of the due process clause "are at least as great as the Eighth Amendment protections available to a convicted prisoner." Carnell v. Grimm, 74 F.3d 977, 979 (9th Cir. 1996) (citing Revere v. Massachusetts General Hosp., 463 U.S. 239, 244 (1983)).
With respect to the first element, a "serious" medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the "unnecessary and wanton infliction of pain." Id. (citing Estelle, 429 U.S. at 104). With respect to the second element, a prison official is deliberately indifferent if he or she knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable steps to abate it. Farmer v. Brennan, 511 U.S. 825, 837 (1994). The prison official must not only "be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists," but "must also draw the inference." Id. In other words, "[a] defendant must purposefully ignore or fail to respond to a prisoner's pain or possible medical need in order for deliberate indifference to be established." McGuckin, 974 F.2d at 1060. If a prison official should have been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no matter how severe the risk. Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 (9th Cir. 2002).
Under the foregoing standard, neither an inadvertent failure to provide adequate medical care, nor mere negligence or medical malpractice, will rise to the level of medical mistreatment under the Eighth Amendment. Estelle, 429 U.S. at 105; Broughton v. Cutter Lab., 622 F.2d 458, 460 (9th Cir. 1980); Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). In addition, if medical treatment is delayed rather than denied, the delay generally amounts to deliberate indifference only if it causes further harm. Wood, 900 F.2d at 1335; Shapley v. Nev. Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (per curiam); Frost v. Agnos, 152 F.3d 1124, 1130 (9th Cir. 1998) (negligent delays in administering pain medication do not violate the Constitution), Finally, a plaintiff's disagreement with the type and adequacy of the medical treatment that he is provided does not constitute an Eighth Amendment violation so long as the treatment provided was medically acceptable under the circumstances. See Jackson v. Mcintosh, 90 F.3d 330, 332 (9th Cir. 1996); Lua v. LAC CSP Medical Offices, No. CV 10-3548 DOC (JCG), 2011 WL 1743260, at *3 (CD. Cal Mar. 23, 2011). As the Ninth Circuit has observed, deliberate indifference is "not an easy test" for a plaintiff to satisfy. Hallett v. Morgan, 296 F.3d 732, 745 (9th Cir. 2002). With this legal framework in mind, the court examines Mr, Holland's claims of deliberate indifference against King County Defendants.
Neither the facts that Mr. Holland recites in his amended complaint nor the facts he states in his declaration are sufficient to demonstrate King County Defendants' deliberate indifference to his medical needs during the ten hours and nine minutes that he was incarcerated in the King County Jail. (See Am. Compl. ¶¶ 26-27, 153; Holland Decl. ¶¶ 3-5, 10-22.) With respect to the first element of "deliberate indifference"—the seriousness of the prisoner's medical need—there is no evidence before the court that King County Defendants' failure to provide Mr. Holland with a wedge pillow for approximately ten hours resulted in further significant injury or the "unnecessary and wanton infliction of pain," Estelle, 429 U.S. at 104. At worst, Mr. Holland spent an uncomfortable and sleepless night in King County Jail. (See Holland Decl. ¶¶ 19-20 ("I tried to fall asleep only to wake up in panic and choking while gasping for air. . . . [A]fter several times going through the hellish act I gave up trying to sleep because I was anxious from waking up in a panic"). The court concludes that these facts do not raise a triable issue of fact with respect to the first element of "deliberate indifference to medical needs."
In evaluating the second element—the nature of the response to Mr. Holland's medical need—the court concludes that Mr. Holland fails to raise a triable issue of fact with respect to this element as well. The undisputed facts show that Mr. Holland was examined by a nurse at 4:10 a.m. on September 16, 2011—only one hour and twelve minutes after his admission to the jail. (Kanner Decl. Ex. 1; Lacquey Decl. Ex, 1.) When Mr. Holland informed the nurse that he suffered from sleep apnea, she ordered him a wedge pillow and transferred him to the medical floor of the facility. (Lacquey Decl. Ex. 1 at 2; Holland Decl. ¶ 15.) Mr. Holland was seen by a second nurse at 11:33 a.m. on the same day, and she put a reminder in the computer system that he was to receive a wedge pillow. (Lacquey Decl. Ex. 1 at 3.) Indeed, Mr. Holland has admitted that he "was scene [sic] by several nurses" during his approximately ten hours of detention. (Holland Decl. ¶ 10.) Although Mr. Holland was released from jail before he received his wedge pillow, the court cannot conclude that these facts demonstrate an inadequate response to his medical needs or raise a triable issue of fact regarding the same. Although the delay in receiving a wedge pillow may have caused Mr. Holland some discomfort and lack of sleep for a period of several hours, the court cannot conclude that these facts demonstrate King County Defendants' deliberate indifference to his medical needs. Here, there is no allegation or proof that Mr. Holland's condition worsened as a result of the lack of a wedge pillow. There is only his testimony that he experienced some discomfort for a period of time and a few hours of sleeplessness. (Holland Decl. ¶¶ 19-21.) Under these undisputed facts, the court grants summary judgment to King County Defendants with respect to Mr. Holland's section 1983 claim for deliberate indifference to his medical needs,
Mr. Holland has also alleged a 42 U.S.C. § 1983 claim against King County Defendants for unlawful imprisonment and seizure of his property. (See, e.g., Am. Compl. ¶¶ 20-28, 58; Holland Decl. ¶¶ 8-9.) King County Defendants have not moved for dismissal or summary judgment of this aspect of Mr. Holland's section 1983 claim. (See Mot at 7-10 (addressing only the "cruel and unusual punishment" aspect of Mr. Holland's section 1983 claim).) The court, therefore, does not address this aspect of Mr. Holland's section 1983 claim and makes no comment here with respect to its viability.
King County Defendants do assert that the state court's finding of probable cause with respect to Mr. Holland's arrest is a complete defense to Mr. Holland's state law tort claim of false imprisonment. (See SJ Mot. at 12.) The court did not rule on this issue because it grants summary judgment to King County Defendants on alternate grounds. (See infra § III.D.) Nevertheless, the state court finding also may have some bearing upon Mr. Holland's section 1983 claim for unlawful imprisonment. King County Defendants, however, failed to engage in an analysis regarding the preclusive effect of the state court's probable cause finding, and this court declines to do so without the benefit of the parties' briefing and analysis. See, e.g., Wige v. City of L.A., 713 F.3d 1183, 1185-86 (9th Cir. 2013) (analyzing preclusive effect of state court's finding of probable cause to arrest).
D. State Law Tort Claims
King County Defendants assert that Mr. Holland's state law tort claims against King County and its employees must be dismissed because Mr. Holland failed to file a claim with King County's designated agent, pursuant to RCW 4.96.020, prior to filing suit in this court. (SJ Mot, at 17-18.) Filing a notice of claim with King County's designated agent is a prerequisite to pursuing a state tort claim against King County Defendants. RCW 4.96.020(4) ("No action subject to the claim filing requirements of this section shall be commenced against any local governmental entity, or against any local governmental entity's officers, employees, or volunteers, acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim has first been presented to the agent of the governing body thereof."); see Medina v. Pub. Utility Dist. No. 1 of Benton Cnty., 53 P.3d 993, 1000-1001 (Wash. 2002) (holding that plaintiff was required to comply with the 60-day waiting period between presentation of tort claim and filing suit in court); Hassan v. Weidenfeld, No. C11-2026-JCC, 2013 WL 4094838, at *11 (W.D. Wash. Aug. 13, 2013). King County's designated agent to receive any claim for damages is the clerk of the county council's office. (Masuo Decl. ¶ 3.) Mr. Holland has never filed a claim with King County's agent. (See id. ¶ 10.)
Mr. Holland does not dispute that he failed to file a notice of claim with King County's agent. (See SJ Resp. at 16.) He only asserts that his federal claim under 42 U.S.C. § 1983 is not barred by his failure to file a notice of claim under RCW 4.96.020. (Id.) In this regard, Mr. Holland is correct. The court has jurisdiction to hear Mr. Holland's 42 U.S.C. § 1983 claim irrespective of whether he previously filed a notice of claim with King County's risk management division. Broussard v. Pierce Cnty. Jail, No. C04-5620RJB, 2006 WL 659476, at *3 (W.D. Wash. Mar. 13, 2006) ("The courts [sic] jurisdiction to entertain [the section 1983] claim is not based on state law and is not affected by RCW 4.96.020."). The court notes, however, that it has dismissed a substantial portion of Mr. Holland's section 1983 claim during the course of this decision. (See supra § III.C.) In any event, as to any asserted state law tort claims against King County Defendants, Mr. Holland's failure to file a notice of claim with King County's designated agent pursuant to RCW 4.92.020 requires the court to dismiss those claims. Accordingly, the court grants King County Defendants' motion for summary judgment with respect to Mr. Holland's state law tort claims.
Because the court dismisses Mr. Holland's state tort claims on this ground, it need not reach King County Defendants' other grounds for summary judgment with respect to those claims. (See SJ Mot. at 6-7, 10-15.)
E. Service of Process
King County Defendants argue that King County and the other King County entities that Mr. Holland has purported to sue are entitled to summary judgment because Mr. Holland never accomplished service of process upon King County, and the court therefore lacks jurisdiction over these defendants. (SJ Mot. at 15-17.) Where the validity of service of process is properly contested, the burden is on the plaintiff to establish the validity of service or to create an issue of fact requiring an evidentiary hearing. See Aetna Business Credit, Inc. v. Universal Decor & Interior Design, Inc., 635 F.2d 434, 435 (5th Cir. 1981); Naufahu v. City of San Mateo, No. C07-4517MMC, 2008 WL 2323869, at * 1 (N.D. Cal. May 14,2008) (relying on Aetna Business Credit).
Although Mr. Holland has purported to sue several political subdivisions of King County or county entities, the departments of a county are not stand-alone entities which can be sued. Nolan v. Snohomish Cnty., 802 P.2d 792, 796 (Wash. Ct App. 1990) ("RCW 36.32.120(6), read together with RCW 36.01.010 and .020, makes clear the legislative intent that in a legal action involving a county, the county itself is the only legal entity capable of suing and being sued."); Lee v. City of SeaTac Police Dep't, No. C12-1948RSL, 2013 WL 4039384, at *2 (W.D. Wash. Aug. 7, 2013) ("Under well-settled Washington law, city and county departments are not legal entities subject to suit."). Thus, because King County is the only properly named county entity, King County is the party that must be served.
A federal court does not have jurisdiction over a defendant unless the defendant has been properly served under Federal Rule of Civil Procedure 4. Direct Mail Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). However, Rule 4 is flexible and should be liberally construed as long as the party receives sufficient notice of the complaint. Id. Nevertheless, without substantial compliance with Rule 4 neither actual notice nor simply naming the defendant in the complaint will suffice to provide the court with jurisdiction. Id.
To determine whether service of process is proper, the court looks to the requirements of Federal Rule of Civil Procedure 4. Under Rule 4(j)(2), a plaintiff must serve a local government body by delivering a copy of the summons and complaint to the local government's chief executive officer or by serving a copy of the summons and complaint in the manner prescribed by state law. Fed. R. Civ. P. 4(j)(2)(A), (B). Under Washington law, proper service in a suit against a charter county is made by service upon the agent designated by the county's legislative authority. RCW 4.28.080(1). King County is a charter county. See King County Charter, Preamble and Art. I. The King County Council, the county's legislative authority, has designated the clerk of the county council to accept service of a summons on behalf of King County. See King County Code § 2.04.010 ("For the purpose of service of summons on King County under provisions of RCW 4.28.080, the person to be served is the clerk of the county council. (Ord. 13, 1969)."). Mr. Holland was required to serve King County within 120 days of filing his complaint or any court extensions granted upon a showing of good cause. Fed. R, Civ. P. 4(m). King County has submitted sworn testimony that the council's clerk has never received service of process with respect to this lawsuit. (Masuo Decl. ¶¶ 4-9.)
Mr. Holland appears to admit that he did not accomplish proper service of process upon King County. (See SJ Resp. at 17 ("Defendant is correct in its assertion that service was made to King County King County [sic] Risk management department [sic] with the amended complaint.").) In any event, Mr. Holland bears the burden to establish the validity of service upon King County, and he fails to meet that burden here. The Ninth Circuit Court of Appeals has recognized that defective service of process by a pro se plaintiff does not necessarily warrant dismissal under Rule 12(b)(5). "This court recognizes that it has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements." Balistreri v. Paciflca Police Dep't, 901 F.2d 696, 699 (citing Borzeka v. Heckler, 739 F.2d 444, 447 n.2 (9th Cir. 1984) (defective service of complaint by pro se litigant did not warrant dismissal)). King County Defendants have not demonstrated, or even argued, that they have been prejudiced as result of Mr. Holland's failure to accomplish service of process. They received a copy of the complaint and were able to move to move for summary judgment after reviewing it.
Mr. Holland insists that he properly served Ms. Washington. (SJ Resp. at 17.) Even assuming this is correct, it is of no import here because the court has dismissed all of Mr. Holland's claims against Ms. Washington with prejudice. (See supra § III.B.)
Although Mr. Holland has not addressed whether he has "good cause" for his failure to properly serve King County (see SJ Resp. at 16-17), in his earlier response to State Defendants' motion for summary judgment he indicated some confusion about the court's discharge of its earlier order to show cause for failure to serve Defendants within the 120-day timeframe provided in Rule 4(m) (see 7/3/13 Order (Dkt. # 42) at 16-17). Accordingly, due to Mr. Holland's pro se status and his apparent confusion concerning the court's discharge of its prior order, the court concludes that Mr. Holland has demonstrated good cause for an extension of time to accomplish proper service under Rule 4(m). See Issaquah Sck Dist. No. 411, 470 F.3d at 1293 (stating that if service of process is found to be insufficient, the district court has discretion to allow an extension of time to effect service under Rule 4(m)). However, as discussed herein, although a portion of Mr. Holland's section 1983 claim apparently remains with respect to King County, the court has dismissed all of Mr. Holland's claims against Deputy Prosecuting Attorney Washington. (See infra §§ III.C., III.D1.) The court, therefore, will grant Mr. Holland an additional 15 days from the date of this order to accomplish proper service of process upon Defendant King County only and to file proof of service with the court. If Mr, Holland fails to file proof of proper service upon King County within this period of time, the remaining portion of Mr. Holland's section 1983 claim will be subject to dismissal without prejudice pursuant to Rule 4(m).
F. Federal Rule of Civil Procedure 56(d)
Mr. Holland asserts that he has not had an opportunity to take discovery on issues pertinent to King County Defendants' motion. (SJ Resp. at 17-18.) Federal Rule of Civil Procedure 56(d) permits a party opposing a motion for summary judgment to request an order deferring the court's consideration of the motion and permitting that party to conduct additional discovery upon an adequate factual showing. Fed. R. Civ. P. 56(d) (requiring party making such request to show "by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition").
Mr. Holland asserts in his declaration that King County Defendants have either not responded or responded inadequately to his discovery requests. (Holland Decl. ¶ 1.) The cut-off, however, for bringing motions related to discovery disputes was August 26, 2013. (Sched. Ord. (Dkt. # 23) at 1.) Mr. Holland has never moved to compel discovery responses from King County Defendants, and the deadline for such motions has now expired. Further, he has not provided the court with any explanation as to why he did not move to compel discovery responses in a timely fashion.
In his September 4, 2013, declaration, Mr. Holland states that "a motion to compel will shortly follow." (Holland Decl. ¶ 1.) More than a month has lapsed since Mr. Holland signed his declaration, but he has not filed the promised motion. In any event, as noted above, the deadline for filing such motions has expired, (Sched Ord. at 1.)
In any event, a Rule 56(d) affidavit must identify "the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment." Tatum v. City and Cnty. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006). A Rule 56(d) affidavit must also identify "some basis for believing that the information sought actually exists." Blough v. Holland Realty, Inc., 574 F.3d 1084, 1091 n. 5 (9th Cir. 2009). Mr. Holland has failed to articulate any facts that he could obtain through discovery that would preclude the court's prior summary judgment rulings. Therefore, the court denies his request for the court to defer consideration of King County Defendants' motion pending further discovery or a motion to compel such discovery.
Mr. Holland has also lodged several "objections" to King County Defendants' motion for summary judgment. (SJ Resp. at 18-19.) The first objection is based on Mr. Holland's
assertion that King County Defendants have failed to provide adequate responses to his discovery requests. (Id. at 18.) The court liberally construes this objection as part of his request to defer the court's ruling based on Federal Rule of Civil Procedure 56(d). The court addressed this issue in the body of this order and has already denied Mr. Holland's request. (See supra § III.F.) Despite the court's best efforts to liberally construe Mr. Holland's second objection (SJ Resp. at 18-19), the court is unable to make any coherent sense of it, and accordingly denies it. Finally, Mr. Holland objects to the declarations of Ms. Janet Masuo and Ms. Gerrei LaQuey as hearsay. (SJ Resp. at 19.) The court has reviewed these declarations, and denies Mr. Holland's objection based on hearsay.
G. Motion for Judicial Notice
For the second time, Mr. Holland requests that the court take judicial notice of variety of documents that consist generally of two types of materials: (1) various statutes or administrative rules and (2) news articles published either in print or on websites. (See generally Mot.) Federal Rule of Evidence 201 provides that a court "may judicially notice a fact that is not subject to reasonable dispute because it (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot be reasonably be questioned." Fed. R. Evid. 401(b). A substantial portion of the materials submitted by Mr. Holland constitutes legal authority, not facts. If Mr. Holland, either in motion practice or at trial, can persuade the court that some or all of these statutes or rules have bearing upon his suit, then the court will consider them as relevant legal authority. Without some context or statement concerning how Mr. Holland intends to use these rules and statutes with respect to his claims, however, the court cannot conclude that he has demonstrated that they are proper subjects for judicial notice.
As the court noted when it denied Mr. Holland's first motion regarding judicial notice, context also plays an important role with respect to judicial notice of news articles (see 3/22/13 Order (Dkt. # 24) at 4), and this is true irrespective of whether the articles appear in print or are posted on a website. Although the court may take judicial notice of news article as evidence of "what was in the public realm at the time," it may not do so as evidence that "the contents of th[e] articles [a]re in fact true." Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 960 (9th Cir. 2010). Because Mr. Holland provides no indication of how he intends to use these articles or how he wants the court to consider them either with respect to the present motion or at trial, the court denies his motion for judicial notice with respect to these articles too.
Mr. Holland cites a variety of cases in which courts have taken judicial notice of information posted on websites. (See Mot. at 5.) The court agrees that it is possible to take judicial notice of material that is posted on a website, but that certainly does not mean that all material posted on a website is appropriate for judicial notice. Context regarding the website at issue and the purpose for which the litigant intends to use the posted material are critical pieces of information that the court must assess with respect to considering a request for judicial notice. Mr. Holland has not provided this context, and accordingly, the court denies his motion.
IV. CONCLUSION
Based on the foregoing, the court GRANTS King County Defendants' motion to dismiss on summary judgment all of Mr. Holland's claims against King County Deputy Prosecuting Attorney Washington based on prosecutorial immunity, to dismiss on summary judgment all of Mr. Holland's state law tort claims due to his failure to comply with the claim filing requirements of RCW 4.96.020, and to dismiss on summary judgment Mr. Holland's 42 U.S.C. § 1983 claim for cruel and unusual punishment based on deliberate indifference to serious medical needs (Dkt. # 44). The court also DENIES Mr. Holland's motion for the court to take judicial notice of the various items he attaches to his motion (Dkt. # 59).
Pursuant to Federal Rule of Civil Procedure 4(m), the court further grants Mr. Holland an additional 15 days from the date of this order to accomplish proper service of process upon King County and to file proof of that service with the court. If Mr. Holland fails to file proof of proper service of process upon King County within this period of time, Mr. Holland's remaining claim against King County under 42 U.S.C. § 1983 will be subject to dismissal without prejudice.
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JAMES L. ROBART
United States District Judge