Sinclair v. City of Seattle

NOTED FOR: October 8, 2021

REPORT AND RECOMMENDATION

J. Richard Creatura Chief United States Magistrate Judge

This 42 U.S.C. § 1983 civil rights matter has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. §§ 636 (b)(1)(A) and (B) and Local Magistrate Judge Rules MJR 1, MJR 3, and MJR 4. Before the Court is defendant's motion to dismiss. Dkt. 12.

Plaintiff Donnitta Sinclair is the mother of Horace Lorenzo Anderson, Jr., a 19-year-old with special needs. Mr. Anderson was shot and killed by a person with whom he had a "history of antagonism" when he visited a protest-occupied area that came to be known as the Capitol Hill Organized Protest ("CHOP") in the City of Seattle. Plaintiff brings a single 42 U.S.C. § 1983 claim seeking to hold defendant City of Seattle ("the City") liable for her son's death under

the Substantive Due Process Clause of the Fourteenth Amendment. Plaintiff alleges that the City's actions and failures to act regarding CHOP created a foreseeable danger for her son and that the City was deliberately indifferent to that danger.

After reviewing the briefing and the relevant record, the Court concludes that plaintiffs alleged facts, even if taken as true, do not satisfy a substantive due process claim. Specifically, plaintiff has not alleged facts that the City created an actual, particularized danger for Mr. Anderson. Furthermore, plaintiff has not alleged facts that the City was deliberately indifferent to a known or obvious danger. Therefore, the Court recommends that plaintiffs amended complaint be dismissed with prejudice.

BACKGROUND

I. Amended Complaint

One June 8, 2020, the City allegedly "abandoned" the Seattle Police Department's ("SPD") East Precinct. Dkt. 8 at 3. Protesters then used barricades left behind by the SPD to block traffic and "seized a roughly sixteen-block area of Capitol Hill, including Cal Anderson Park." Id. This area was known as CHOP. Id. Plaintiff alleges that CHOP participants were seen carrying guns at all hours and violence, vandalism, open drug use, and a collection of other crimes proliferated in the area. Id.

According to plaintiff, the City did not have an "effective plan" to provide police protection or emergency services in CHOP, but it provided portable toilets, lighting, and other support, including modifying protocols of SPD and SFD. Id. On June 11, 2020, SPD Chief Carmen Best allegedly stated that "response times for crimes in progress were over 15 minutes, about three times as long as the average . . . ." Id. at 4. That same day, in an interview with CNN,

the Mayor stated that CHOP was a "block party" and characterized the events as "a summer of love." Id.

On or about June 20, 2020, plaintiffs "19-year-old special needs son," Mr. Anderson, visited CHOP and encountered Marcel Long. Id. at 2, 4. The two "had a history of antagonism." Id. at 4. According to plaintiff, Mr. Long believed CHOP was a "no-cop" zone and was carrying a gun. Id. After speaking with each other, Mr. Long pulled out the gun. Id. Mr. Anderson then walked away while Mr. Long was briefly held back by others. Id. According to plaintiff, Mr. Long caught up to Mr. Anderson and shot him "at least four times." Id.

CHOP participants carried Mr. Anderson to a "medical tent" they had created in an outdoor area just outside of Cal Anderson Park. Id. at 3-4. According to plaintiff, Mr. Anderson "apparently had a pulse when they laid him down on a table." Id. at 4. SFD allegedly had an ambulance standing by about a block and a half from Mr. Anderson's location. Id. According to plaintiff, a man implored the medics to help Mr. Anderson, but the medics were "apparently waiting for a green light from SPD, but SPD was confused about the location of SFD and medics." Id. at 4-5. The miscommunication caused a response delay of approximately 20 minutes. Id. at 5.

By the time the police entered the area, CHOP participants had transported Mr. Anderson to Harborview in a pick-up truck where he was pronounced dead at 2:53 a.m. Id. According to plaintiff, two other people were shot in CHOP on June 29, 2020. Id. Prior to the establishment of CHOP there were no homicides in the area for six months, and three homicides in 2019. Id.

II. Motion to Dismiss

Plaintiffs amended complaint contains one cause of action based on the Fourteenth Amendment's Due Process Clause. Dkt. 8. On July 28, 2021, the City filed a motion to dismiss

that claim. See Dkts. 8, 12. Plaintiff subsequently filed her response and the City filed a reply. See Dkts. 13, 20. On August 30, 2021, the Court granted the National Police Association's motion for leave to file a memorandum of amicus curiae in opposition to the City's motion to dismiss. Dkts. 16, 22, 23. The City filed a response on September 3, 2021. Dkt. 24.

DISCUSSION

I. Legal Standards

A complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure can be granted only if the complaint, with all factual allegations accepted as true, fails to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). Mere conclusory statements in a complaint and "formulaic recitation[s] of the elements of a cause of action" are not sufficient. Id; Chavez v. United States, 683 F.3d 1102, 1108-09 (9th Cir. 2012). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Ballistreri v. Pacifica Police Dept, 901 F.2d 696, 699 (9th Cir. 1990).

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." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 556, 570). The pleading must be more than an "unadorned, the-defendant-unlawfully-harmed-me accusation." Id. While the Court must accept all the allegations contained in a complaint as true, the Court does not have to accept a "legal conclusion couched as a factual allegation." Id. Ill

II. Substantive Due Process Claim

Municipalities, like the City, are only liable under § 1983 if the constitutional violation was the result of a municipal policy. See Monell v. Dep't of Soc. Serv. of the City of New York, 436 U.S. 658, 691 (1978). Plaintiff brings one cause of action under § 1983, alleging that the City violated her Fourteenth Amendment Due Process rights by failing to protect her son from Mr. Long. See Dkt. 8 at 7-8. The general rule is that "members of the public have no constitutional right to sue [state actors] who fail to protect them against harm inflicted by third parties." L. W. v. Grubbs (Grubs I), 974 F.2d 119, 121 (9th Cir. 1992) (citing DeShaney v. Winnebago Cty., Dep`t of Soc. Servs., 489 U.S. 189, 197 (1989)). One exception to that rule is referred to as the "state-created danger doctrine." Martinez v. Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019). To succeed in such a claim, a plaintiff must...