McLaran v. Rakevich

CRYSTAL MCLARAN, Plaintiff, v. RANDY RAKEVICH, et al., Defendants.

CASE NO. 3:20-cv-05395-JRC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

March 4, 2021

ORDER GRANTING MOTION TO DISMISS

This 42 U.S.C. § 1983 civil rights matter is before the Court on the parties' consent to proceed before the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1).

According to the allegations of the operative complaint (Dkt. 5), plaintiff is a co-owner of a tree service company. She brings claims against Randy Rakevich, a logging safety and health inspector for the Washington State Department of Labor and Industries Division of Occupational Safety and Health, as well as Rakevich's direct supervisor (Matt Ludwig) and another supervisor (James Smith).

Plaintiff alleges that beginning April 27, 2017, defendant Rakevich investigated alleged safety complaints at plaintiff's company. See Dkt. 5, at 6. Plaintiff claims that defendant Rakevich used his position to sexually harass her, culminating in an incident in July 2017, when Rakevich met with plaintiff at a restaurant, where he allegedly implicitly propositioned plaintiff to engage in a sexual relationship with him or else he would impose fines on her business. See Dkt. 5, at 9. Plaintiff alleges that because she refused, Rakevich imposed an unusually high safety violation fine on her business. And plaintiff further claims that defendants Ludwig and Smith—Rakevich's supervisors—were informed of this harassment and retaliation, yet refused to take any action.

Defendants have moved for dismissal of plaintiff's claims. The motion to dismiss is granted for the following reasons. First, defendant Ludwig is dismissed because plaintiff fails to allege facts showing that he personally participated in the alleged constitutional deprivations. Second, although plaintiff asserts that defendant Rakevich's alleged sexual harassment violated equal protection, and as alleged these actions would currently violate clearly established law, the law in the Ninth Circuit had not yet progressed to this point at the time these acts were allegedly committed. Therefore, qualified immunity shields defendant Rakevich from liability for damages on plaintiff's equal protection claims. Third, although plaintiff claims that Rakevich's actions also violated due process, plaintiff fails to allege plausible claims of denial of substantive and procedural due process because, among other things, she does not identify constitutionally protected interests. Finally, the Court accepts plaintiff's concession and accordingly dismisses her claims for negligence and intentional infliction of emotional distress, her claims against officials in their official capacities for damages, and her claims against defendant Smith.

The only surviving claim is plaintiff's claim for injunctive relief against defendant Rakevich for violation of equal protection. However, the Court also grants plaintiff leave to amend to include a state-law discrimination claim and to re-allege her claims against defendant Ludwig and her claims for violation of procedural due process and intentional infliction of emotional distress, as set forth below.

BACKGROUND

Plaintiff brought this matter in April 2020. Dkt. 1. In the operative complaint (Dkt. 5), she alleges that beginning in April 2017, defendant Rakevich, a logging safety and health inspector for the State, conducted inspections and filed reports regarding alleged safety violations at plaintiff's tree service company. See Dkt. 5, at 5-7.

Plaintiff asserts that on separate occasions beginning in April 2017, defendant Rakevich conducted inspections of plaintiff's logging company. Dkt. 5, at 5. Plaintiff asserts that there was no basis for the complaints that Rakevich was investigating and that Rakevich should have contacted her husband, who was listed as the owner of the company, not her. See Dkt. 5, at 5-6, 9. Then, on July 6, 2017, plaintiff alleges that defendant Rakevich, who had been forced to leave a prior position due to sexual misconduct, asked plaintiff to meet him at a fast food restaurant to sign paperwork to close an inspection. Dkt. 5, at 7, 10. Plaintiff claims that when he called her to ask her to meet with him, defendant Rakevich "sounded very nervous and was unable to explain the exact process." Dkt. 5, at 7. Plaintiff claims that she called defendant Ludwig—plaintiff's direct supervisor—to ask "if they were closing an inspection, would the[y] need to meet to sign anything?" Dkt. 5, at 6. Defendant Ludwig allegedly "told [plaintiff] that he couldn't think of anything they would need to sign, but expressed no further interest, andinitiated no action or investigation of any kind." Dkt. 5, at 6.

Plaintiff claims that during the meeting at the restaurant, defendant Rakevich implied that he would attack her business unless she began a romantic/sexual relationship with him. Dkt. 5, at 9. As evidence of why she understood defendant Rakevich to be propositioning her to enter a sexual relationship with him, plaintiff cites defendant Rakevich's insistence on moving to a secluded booth at the restaurant, his threatening to fine her, and his attempt to ingratiate himself with her by saying, "I'm so soft-hearted, I'd never give out citations." Dkt. 5, at 8. Rakevich also allegedly told plaintiff, "[I]t's too bad someone like you has to learn these things the hard way. But that's up to you." Dkt. 5, at 9.

Four days later, according to plaintiff, defendant Rakevich called plaintiff and threatened her with more violations. Dkt. 5, at 10. Plaintiff alleges that defendant Rakevich subsequently fined her an unusually high amount for a first-time safety violation. Dkt. 5, at 10. Plaintiff negotiated the fine down on appeal but does not allege that she pursued further options to invalidate the fine. Then, she brought this action. See Dkt. 5, at 10.

Defendants have filed a motion to dismiss. Dkt. 14. Plaintiff has filed her response (Dkt. 20), defendants have filed a reply (Dkt. 21), and the matter is ripe for decision.

DISCUSSION

I. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss if the complaint fails to state a claim upon which relief can be granted. A motion to dismiss focuses on the allegations in the complaint. The Court examines whether plaintiff alleges sufficient facts that if taken as true, entitle her to relief. See, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," "in order to 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]'" Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

When reviewing the motion to dismiss under Rule 12(b)(6), a court must accept as true all factual allegations—but not legal conclusions. See Iqbal, 556 U.S. at 678. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id.

The Court has also considered whether to allow plaintiff leave to amend her complaint. The decision whether to grant leave to amend rests within the discretion of the district court. Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1058 (9th Cir. 2011). "The court should freely give leave when justice so requires" (Fed. R. Civ. P. 15(a)), and the Ninth Circuit interprets this standard liberally. Cafasso, 637 F.3d at 1058.

II. Conceded Claims

As a preliminary matter, the Court notes that plaintiff concedes to the dismissal of certain of her claims. First, plaintiff "agree[s] to dismiss this action as to [d]efendant Smith." Dkt. 20, at 17. Second, plaintiff "voluntarily dismisses her negligence cause of action as [d]efendants Rakevich and Lud[wig]'s actions and statements were intentional and calculated to cause harm." Dkt. 20, at 17. And third, plaintiff acknowledges that she cannot bring suit against officials in their official capacities for damages under § 1983. Dkt. 20, at 13. Therefore, the Courtdismisses plaintiff's claims against defendants Smith, her negligence claims, and her claims to the extent that she seeks damages from individuals in their official—rather than personal—capacities. The remainder of this Order addresses plaintiff's remaining claims against defendants Ludwig and Rakevich.

III. Section 1983 Claims

A. Legal Standard

"Section 1983 'is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred.'" Sampson v. Cty. of L.A., 974 F.3d 1012, 1018 (9th Cir. 2020) (quoting Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003)). "In order to state a claim under § 1983, a plaintiff must plausibly allege that 'she suffered the deprivation of a federally protected right and that the alleged deprivation was committed by a person acting under color of state law.'" Id. (quoting Hyun Ju Park v. City & Cnty. of Honolulu, 952 F.3d 1136, 1140 (9th Cir. 2020)).

In addition, qualified immunity may shield an official from liability for damages. Two issues arise when addressing qualified immunity: "(1) whether there has been a violation of a constitutional right; and (2) whether that right was clearly established at the time of the officer's alleged misconduct." C.V. ex rel. Villegas v. City of Anaheim, 823 F.3d 1252, 1255 (9th Cir. 2016) (citation omitted). Because qualified immunity is "an immunity from suit rather than a mere defense to liability" (Pearson v. Callahan, 555 U.S. 223, 237 (2009) (citation omitted)), the Supreme Court has directed courts to resolve such questions "at the earliest...