Hawkins v. Douglas County et al, No. 2:2015cv00283 - Document 21 (E.D. Wash. 2016)

Court Description: ORDER GRANTING DEFENDANTS MOTIONS TO DISMISS. Douglas Countys 12(b) Motion to Dismiss ECF No. 11 is GRANTED. Defendant Chelan Countys Motion to Dismiss ECF No. 13 is GRANTED. Plaintiffs Complaint is DISMISSED without prejudice. Plaintiff is GRANTED leave to file an amended complaint within thirty (30) days of the entry of this order. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Hawkins v. Douglas County et al Doc. 21 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 EDWIN TROY HAWKINS, NO: 2:15-CV-0283-TOR Plaintiffs, 8 9 10 11 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS v. DOUGLAS COUNTY, a municipal corporation; CHELAN COUNTY, a municipal corporation; and JOHN DOE OFFICERS 1-10, 12 Defendants. 13 14 BEFORE THE COURT is Douglas County’s 12(b) Motion to Dismiss (ECF 15 No. 11) and Defendant Chelan County’s Motion to Dismiss (ECF No. 13). This 16 matter was heard on January 28, 2016, in Spokane, Washington. Heather C. 17 Yakely appeared on behalf of the Douglas County. Kirk A. Ehlis appeared on 18 behalf of the Chelan County. Scott Andrew Volyn appeared on behalf of Plaintiff 19 Edwin Hawkins. The Court has reviewed the briefing, files, and record therein; 20 heard from counsel; and is fully informed. ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 1 Dockets.Justia.com 1 BACKGROUND 2 On September 16, 2015, Hawkins filed his Complaint in Grant County 3 Superior Court, alleging state law claims against Douglas and Chelan Counties for 4 false arrest, illegal search and seizure, conversion, defamation, and malicious 5 prosecution. Hawkins also asserts violation of unspecified constitutional rights 6 under 42 U.S.C. § 1983, which this Court construes as claims for unlawful arrest, 7 unlawful search and seizure, and malicious prosecution. ECF No. 1-1 at 4-17. 8 Defendants subsequently removed the action to this Court. ECF No. 1 9 In the instant motion, Defendants move to dismiss Hawkins’ Complaint, 10 primarily asserting that all claims therein are barred by the applicable statute of 11 limitations. ECF Nos. 11, 13. Douglas County also moves to dismiss the claims of 12 malicious prosecution on the ground of prosecutorial immunity. ECF No. 11 at 8- 13 11. 14 FACTS 1 15 This action concerns the events leading up to and concerning Hawkins’ 16 underlying criminal conviction in state court. In short, Hawkins was charged with 17 and convicted of first degree attempted possession of stolen property and first 18 19 1 20 instant motion. The following facts are drawn from the Complaint and accepted as true for the ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 2 1 degree possession of stolen property, but the charges were ultimately dismissed in 2 December 2014 after Hawkins had successfully appealed and obtained a right to a 3 new trial. 4 Hawkins is an orchardist in Eastern Washington. In early 2006, equipment 5 from another orchard, Twin W, was reported missing. In late summer or early fall 6 of 2006, the Douglas County Sheriff’s Office received a tip that the missing 7 equipment was located on Sandcastle Orchard, property leased by Plaintiff. An 8 officer from the Douglas County Sheriff’s Office visited Sandcastle Orchard, 9 purporting to have a search warrant for the missing equipment. In October 2006, an 10 officer from the Chelan County Sheriff’s Office also visited Hawkins’ property; 11 although he did not have a warrant, Hawkins gave him permission to inspect the 12 farm equipment.2 Later that year, a tractor went missing from one of Hawkins’ orchards. 13 14 Hawkins subsequently learned that the Chelan County Sheriff’s Office took the 15 tractor because it had been reported stolen. Chelan County allegedly turned the 16 17 18 2 19 Office deputy searched Hawkins’ property without a warrant in September 2007, 20 which search Hawkins was present for. Hawkins’ Complaint also alleges that a plainclothes Douglas County Sheriff’s ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 3 1 tractor over to Douglas County. To date, Hawkins has not been given an 2 opportunity to prove ownership of the tractor. 3 In the spring of 2007, Hawkins brought one of his tractors to East 4 Wenatchee for repair. The mechanics noticed that the serial number had been 5 ground off and the identification plate was missing. The mechanics determined that 6 this tractor was one of the pieces of equipment previously reported missing and 7 advised the police. 8 9 10 Over a three day period in June 2007, Hawkins was arrested twice by the Douglas County Sheriff’s Office, both times for possession of this tractor. Hawkins was first arrested for possession of stolen property when he went to 11 pick up the tractor from the mechanics. The arresting officer did not explain why 12 he was arresting Hawkins, but the bail receipt stated Hawkins was arrested for 13 possession of stolen property. 14 After he was released on bail, Hawkins returned to the mechanic to pick up 15 the tractor. While driving home with the tractor, Hawkins was pulled over by a 16 Chelan County Sheriff’s deputy who had been in communication with the Douglas 17 County Sheriff’s Office. There was confusion over whether this tractor was the 18 missing tractor. Ultimately, deputies from both Douglas and Chelan County took 19 pictures of the tractor and then helped Hawkins lock the tractor in his shed. 20 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 4 1 Two days later, on June 11, 2007, several Douglas and Chelan County 2 deputies arrived at Hawkins’ home and arrested him for possession of stolen 3 property. Douglas County took the tractor, the alleged stolen property. A bin 4 trailer, claimed stolen, was also “taken away;” although, it is unclear by whom. To 5 date, neither have been returned. 6 Hawkins was ultimately charged with four counts related to the stolen farm 7 equipment and convicted on two. Hawkins appealed the conviction, and while the 8 appeal was pending, successfully moved the trial court for a new trial based on 9 newly discovered evidence. The state appealed the trial court’s grant of a new trial, 10 11 12 13 and the Washington State Supreme Court ultimately ruled in Hawkins’ favor. On December 19, 2014, the Douglas County Superior Court entered a stipulated order of dismissal with prejudice as to the charges against Hawkins. On September 16, 2015, Hawkins initiated the present action. 14 DISCUSSION 15 A. Standard of Review 16 To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6) for 17 failure to state a claim, a plaintiff must allege “sufficient factual matter . . . to state 18 a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 19 (2009). This standard “does not require ‘detailed factual allegations,’ but it 20 demands more than an unadorned, the defendant-unlawfully-harmed-me ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 5 1 accusation.” Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 2 (2007)). “In conducting this review, we accept the factual allegations of the 3 complaint as true and construe them in the light most favorable to the plaintiff.” AE 4 ex rel Hernandez v. Cnty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012). 5 “A district court may dismiss a claim if the running of the statute is apparent 6 on the face of the complaint.” Cervantes v. Countrywide Home Loans, Inc., 656 7 F.3d 1034, 1045 (9th Cir. 2011) (internal quotation marks and brackets omitted). 8 “However, a district court may do so only if the assertions of the complaint read 9 with the required liberality, would not permit the plaintiff to prove that the statute 10 was tolled.” Id. 11 B. Doe Defendants 12 In accordance with Federal Rule of Civil Procedure 10(a), a plaintiff must 13 name all intended defendants in the caption of the complaint. See Ferdik v. 14 Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992). The use of “Doe” Defendants is not 15 favored in the Ninth Circuit. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 16 1980). For a plaintiff to properly name “John Doe” Defendants, he must provide 17 all of the information he would normally provide if the name of the defendant is 18 known. The plaintiff should identify “John Does” by their function, their actions, 19 and the dates these actions occurred; and most importantly, provide a short and 20 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 6 1 plain statement of the law or legal theory and facts supporting each claim against 2 each defendant which would entitle the plaintiff to relief. 3 Here, Hawkins has named “John Doe Officers 1-10” in the caption of his 4 Complaint. ECF No. 1-1 at 5. Beyond asserting that they are law enforcement 5 officers of either Chelan County or Douglas County, Hawkins has failed to identify 6 their actions, the dates these actions occurred, and which claims are alleged against 7 them. ECF No. 1-1 at 5. The Court will dismiss these defendants if Hawkins is 8 unable to properly identify these defendants in an amended pleading. 9 10 C. Statute of Limitations Defendants contend all of Hawkins’ claims, which arose from events that 11 occurred in 2006 and 2007, are barred by the two- or three-year statute of 12 limitations on each claim. In response, Hawkins generally asserts that his claims 13 could not have been brought prior to the successful conclusion of the underlying 14 criminal prosecution. 15 16 1. Section 1983 Claims Construing the Complaint liberally in favor of Hawkins, this Court discerns 17 three causes of action under section 1983: (1) unlawful arrest, (2) illegal search and 18 seizure, and (3) malicious prosecution. 19 The parties agree that the statute of limitations for a section 1983 action in 20 Washington is three years: the statute of limitations for section 1983 claims is the ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 7 1 length of time provided by state law for personal-injury torts. Wallace v. Kato, 549 2 U.S. 384, 387 (2007). Under Washington law, this period is three years. RK 3 Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002) (citing RCW 4 4.16.080(2)). 5 The issue before the Court is when the statute of limitations began to run on 6 each claim. “[T]he accrual date of a § 1983 cause of action is a question of federal 7 law that is not resolved by reference to state law.” Wallace, 549 U.S. at 388. 8 Rather, “[a]spects of § 1983 which are not governed by reference to state law are 9 governed by federal rules conforming in general to common-law tort principles.” 10 Id. “Under those principles, it is the standard rule that accrual occurs when the 11 plaintiff has a complete and present cause of action, that is, when the plaintiff can 12 file suit and obtain relief.” Id. (internal quotation marks, brackets, and citations 13 omitted). To determine the proper date of accrual for a specific claim, the court 14 should look to the “cause of action [that] provides the closest analogy to” the claim 15 asserted to determine if any distinctive accrual rules apply. Id. (quoting Heck v. 16 Humphrey, 512 U.S. 477, 484 (1994)); Bradford v. Scherschligt, 803 F.3d 382, 388 17 (9th Cir. 2015). 18 One wrinkle may arise in the accrual analysis when the tort action raises 19 claims that relate to a previous conviction. In Heck v. Humphrey, 512 U.S. 477 20 (1994), a state prisoner filed suit under § 1983 raising claims which, if true, would ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 8 1 have established the invalidity of his outstanding conviction. The Supreme Court 2 held that 3 4 5 6 7 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. 8 9 10 Id. at 486-87. By logical extension, the statute of limitations on such a claim does not 11 begin to run until the sentence or conviction has been reversed, expunged, or 12 otherwise declared invalid. That is, the Heck rule “delays what would otherwise be 13 the accrual date of a tort action until the setting aside of an extant conviction which 14 success in that tort action would impugn.” Wallace, 549 U.S. at 392 (emphasis 15 omitted). “This requires an inquiry into what a plaintiff would need to prove in 16 order to succeed on his theory of the case, not an inquiry into whether a plaintiff 17 would be able to succeed on the merits.” Rosales-Martinez v. Palmer, 753 F.3d 18 890, 896 (9th Cir. 2014). 19 20 That being said, Heck is inapplicable to a section 1983 claim that accrues before any conviction is in place. Wallace, 549 U.S. 392-93. In Wallace, the ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 9 1 Supreme Court held that the pendency of criminal charges does not toll a claim for 2 damages arising from a potential conviction (followed by a potential reversal) on 3 those charges. Id. at 393. And a subsequent conviction does not “un-accrue the 4 claim, even if the arguments advanced to show a violation . . . also imply the 5 invalidity of the conviction.” Evans v. Poskon, 603 F.3d 362, 363 (7th Cir. 2010) 6 (citing Wallace, 549 U.S. at 392-93). In such a case, where a civil action may 7 affect the validity of a criminal conviction but the Heck rule does not apply, it is 8 within the power of the district court “to stay the civil action until the criminal case 9 or the likelihood of a criminal case is ended.” Wallace, 549 U.S. at 394. 10 11 12 13 14 15 16 Keeping these general principles in mind, the Court will address each section 1983 claim in turn. a. Unlawful Arrest To the extent Hawkins is alleging a cognizable section 1983 claim for unlawful arrest, it is barred by the statute of limitations. In Wallace, the Supreme Court expressly addressed the issue of accrual and the application of the Heck rule to a section 1983 claim for unlawful arrest. 17 18 19 20 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 10 1 First, the Wallace Court held that the common law tort of false 2 imprisonment is the closet analogy to a section 1983 unlawful arrest claim. 3 3 Wallace, 439 U.S. at 388-89 (“The sort of unlawful detention remediable by the 4 tort of false imprisonment is detention without legal process.”). 5 Second, the Supreme Court, rejecting the petitioner’s argument that the date 6 of his release was the relevant date, held that the limitations period began to run 7 when the detention without legal process had concluded. Id. (noting that the 8 running of the statute of limitations on false imprisonment is subject to a 9 distinctive rule, likely to reflect the reality that a victim may not be able to sue 10 while still imprisoned). “Reflective of the fact that false imprisonment consists of 11 detention without legal process, a false imprisonment ends once the victim 12 becomes held pursuant to such process—when, for example, he is bound over by a 13 magistrate or arraigned on charges.” Id. at 389. “Thereafter, unlawful detention 14 forms part of the damages for the ‘entirely distinct’ tort of malicious prosecution, 15 which remedies detention accompanied, not by absence of legal process, but by 16 wrongful institution of legal process.” Id. at 390. The Court concluded that the 17 18 19 3 20 referred to the two torts together as false imprisonment. 549 U.S. at 388-39. The Wallace Court, noting that false arrest and false imprisonment overlap, ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 11 1 statute of limitations on the petitioner’s claim began to run when he appeared 2 before the examining magistrate and was bound over for trial. Id. at 391. 3 Finally, the Court held that the Heck rule had no application to the 4 petitioner’s section 1983 claim for unlawful arrest because, on the date the 5 petitioner appeared before the magistrate and the statute of limitations on the 6 petitioner’s claim began to run, “there was in existence no criminal conviction that 7 the cause of action would impugn.” Id. at 393. Rather, at the time the petitioner 8 appeared before the magistrate, there was only the possibility of a future 9 conviction. Id. Accordingly, the Heck rule did not apply. 10 Following Wallace, this Court finds Hawkins’ section 1983 claim for 11 unlawful arrest is barred by the three-year statute of limitations. First, the tort of 12 false imprisonment provides the closest analogy to Hawkins’ asserted claim, like 13 the petitioner in Wallace, that he was arrested without legal process, i.e., without 14 probable cause. Second, the statute of limitations began to run on each false arrest 15 count when Hawkins was bound over by a magistrate and presumably released on 16 bail; that is, when he was held pursuant to legal process. Although the precise dates 17 this occurred after each arrest is unclear on the face of the Complaint, Hawkins’ 18 release dates presumably occurred in early June: shortly after his first arrest, and 19 then again at some time after his second arrest on June 11, 2007, and before 20 September 13, 2007, when Hawkins alleged an interaction—out of jail—with a ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 12 1 plainclothes Douglas County Sheriff’s deputy on his property. See ECF No. 1-1 at 2 11-12; see id. at 10 (stating that he had been released on bail after his first arrest). 3 Finally, like in Wallace, the Heck rule has no application to Hawkins’ unlawful 4 arrest claim as there was no criminal conviction in existence on the date the statute 5 of limitations began to run. Accordingly, because it has been well over three years 6 since Hawkins’ unlawful arrest claim accrued, this claim is barred by the statute of 7 limitations. 8 9 10 11 b. Unlawful Search and Seizure To the extent Hawkins is alleging a cognizable section 1983 claim for unlawful search and seizure, it is similarly barred by the statute of limitations. The Ninth Circuit, following Wallace, has held that a claim for unlawful 12 search and seizure follows the standard rule of accrual; that is, it accrues when the 13 wrongful act occurs. Belanus v. Clark, 796 F.3d 1021, 1026 (9th Cir. 2015) 14 (holding that the plaintiff’s cause of action accrued when the police conducted the 15 searches and plaintiff knew of the searches); see also Dominguez v. Hendley, 545 16 F.3d 585, 589 (7th Cir. 2008) (“Fourth Amendment claims for false arrest or 17 unlawful searches accrue at the time of (or termination of) the violation.”); see also 18 Johnson v. Johnson Cnty. Comm’n Bd. , 925 F.2d 1299, 1301 (10th Cir. 1991) 19 (“Claims arising out of police actions toward a criminal suspect, such as . . . search 20 and seizure, are presumed to have accrued when the actions actually occur.”). ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 13 1 This Court finds Hawkins’ section 1983 claims for unlawful search and 2 seizure is barred by the three-year statute of limitations. First, Hawkins’ unlawful 3 search claim follows the standard accrual rule; that is, that it accrued at the time the 4 wrongful search or searches occurred and Hawkins knew of the searches. Second, 5 the statute of limitations began to run, at the latest, in the fall of 2007. All of the 6 allegations in the Complaint that could possibly relate to this claim occurred in 7 2006 or 2007, some before Hawkins’ arrest and some after Hawkins was released 8 on bail. And as to each possible unlawful search, Hawkins alleged that he was 9 present when the challenged action took place and thus knew of the searches at the 10 time they occurred. Finally, whether Hawkins is challenging the 2006 or 2007 11 searches, or both, they occurred well before Hawkins was ever convicted of any 12 crime and thus the Heck rule has no application. Accordingly, because it has been 13 well over three years since Hawkins’ unlawful search and seizure claim accrued, 14 this claim is barred by the statute of limitations. 15 16 c. Malicious Prosecution To the extent Hawkins’ is alleging a cognizable section 1983 claim for 17 malicious prosecution, this claim, unlike the two previous claims discussed, is not 18 barred by the statute of limitations. This cause of action appears to be alleged 19 against Douglas County only. 20 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 14 1 Looking to the obviously analogous common law claim of malicious 2 prosecution, a section 1983 claim for malicious prosecution does not accrue until 3 proceedings against the plaintiff have terminated in such a manner that they cannot 4 be revived. Bradford, 803 F.3d at 388. As the Ninth Circuit has recently clarified, a 5 claim under this standard will accrue when the charges are “fully and finally 6 resolved” such that they can no longer be brought against the plaintiff. Id. at 388- 7 89. 8 9 Here, Hawkins’ section 1983 malicious prosecution claim is not barred by the statute of limitations. After Hawkins was convicted, he successfully moved for 10 a new trial. The government appealed the district court’s grant of a new trial and 11 ultimately Hawkins prevailed before the Washington Supreme Court. Rather than 12 proceed to a new trial, the Douglas County Superior Court, on December 19, 2014, 13 entered a stipulated order of dismissal with prejudice of the charges against 14 Hawkins and vacated judgment. ECF No. 1-1 at 13. Thus, because this dismissal 15 and vacation marked the date on which Hawkins could no longer be prosecuted for 16 the underlying conduct, see Bradford, 803 F.3d at 388-89, Hawkins’ malicious 17 prosecution claim accrued on this date. Accordingly, as Hawkins filed his 18 Complaint well within three years of this date, this claim is not barred. 19 /// 20 /// ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 15 1 2. State Law Claims 2 Hawkins asserts several state law claims against Defendants: (1) false 3 imprisonment/arrest, (2) conversion, (3) defamation, (4) negligent supervision, and 4 (5) malicious prosecution.4 5 The parties agree that all Hawkins’ state law claims have statute of 6 limitations between two and three years: False imprisonment and defamation each 7 have a two-year statute of limitations. RCW 4.16.100(1). Malicious prosecution, 8 negligent supervision, and conversion each have a three-year statute of limitation. 9 RCW 4.16.080(2). 10 11 12 4 13 To the extent he is asserting this claim under the Washington State Constitution, he 14 does not have a cognizable claim. As to the recovery of monetary damages for 15 alleged violations of the Washington Constitution, he has failed to cite to any 16 legislative authority providing for such actions. Reid v. Pierce Cnty., 136 Wash.2d 17 195 (1998). As to the recovery of injunctive relief for alleged violations of the 18 Washington Constitution, he has failed to demonstrate the right to such equitable 19 relief as he only claims past injuries. See Tyler Pipe Indus., Inc. v. State Dep’t of 20 Revenue, 96 Wash.2d 785, 792 (1982). Hawkins also appears to assert an illegal search and seizure claim under state law. ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 16 1 The relevant inquiry is when the statute of limitations on each claim began 2 to run under state law. In general, “a cause of action accrues when the party has the 3 right to apply to a court for relief.” 1000 Va. Ltd. P’ship v. Vertecs Corp., 158 4 Wash.2d 566, 575 (2006) (as amended). “That is, the statute of limitations does not 5 begin to run until every element of an action is susceptible of proof, including the 6 occurrence of actual loss or damage.” Woods View II, LLC v. Kitsap Cnty., 188 7 Wash.App. 1, 20 (2015). And, unless the discovery-of-injury rule applies—“under 8 which the cause of action accrues when the plaintiff discovers, or in the reasonable 9 exercise of diligence should discover, the elements of the cause of action, 1000 Va. 10 Ltd. P’ship, 158 Wash.2d at 575-76—the statute of limitations in a tort action 11 accrues at the time the injury-producing act or omission occurs. Matter of Estates 12 of Hibbard, 118 Wash.2d 737 (1992).5 13 14 15 5 16 claims. Gausvik v. Abbey, 126 Wash.App. 868, 881 (2005) (rejecting plaintiff’s 17 argument that his claim did not accrue until his conviction was invalidated); Childs 18 v. King Cnty., 116 Wash.App. 1067 (2003) (unpublished) (“Heck involved 19 interpretation of a federal statute; it does not apply to causes of action under state 20 law.”). Contrary to Hawkins’ arguments, his conviction did not affect accrual of his ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 17 1 2 This Court will discuss each state law claim in turn, addressing the necessary elements of each to determine when the claim accrued. 3 1. False Arrest/Imprisonment “A false arrest occurs when a person with actual or pretended legal 4 5 authority to arrest unlawfully restrains or imprisons another person.” Bender v. 6 City of Seattle, 99 Wash.2d 582, 591 (1983). “The gist of an action for false arrest 7 or false imprisonment is the unlawful violation of a person’s right of personal 8 liberty or the restraint of that person without legal authority.” Id. 6 9 Hawkins provides no argument as to when this claim accrued. 10 Here, Hawkins’ false arrest/imprisonment claim accrued in June or 11 September of 2007. This claim appears to rest on Hawkins’ two arrests that 12 occurred in a three-day span in June 2007. Not unlike his section 1983 claim for 13 unlawful arrest, the statute of limitations accrued when Hawkins was released on 14 bail after each arrest because, at that point, Hawkins was no longer being 15 unlawfully held and every element of his claim was known and susceptible to 16 proof. Although the precise dates are unclear on the face of the Complaint, 17 Hawkins was first released in early June 2007 and then again at some point 18 19 6 20 a criminal charge prior to sentencing. RCW 4.16.190 (1). Accrual aside, the three-year limitations period is tolled pending imprisonment on ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 18 1 between June 2007 and September 2007. Thus, any unlawful restraint or 2 imprisonment ended around this time. Because Hawkins filed his Complaint about 3 eight years after the statute of limitations began to run on this claim, this claim is 4 barred. 5 6 2. Defamation “The elements a plaintiff must establish in a defamation case are falsity, an 7 unprivileged communication, fault, and damages.” Mohr v. Grant, 153 Wash.2d 8 812, 822 (2005). The discovery rule aside, such a claim generally accrues at the 9 time the tortious act or omission occurs. Milligan v. Thompson, 90 Wash.App. 586, 10 11 592 (1998). Hawkins asserts that his defamation claim did not accrue until dismissal of 12 the underlying criminal matter because, had he been convicted of possessing stolen 13 property, “the conviction would provide a solid defense against defamation.” ECF 14 No. 15 at 18. 15 Here, Hawkins’ defamation claim accrued in September 2007 because, at 16 that point, every element of his claim was susceptible to proof. Hawkins’ 17 defamation claim appears to rest on the allegation that, in September 2007, 18 Douglas County deputies falsely told some of Hawkins’ employees that Hawkins 19 had stolen orchard equipment. See ECF No. 1-1 at 11. Neither Hawkins’ briefing 20 nor his Complaint allege when Hawkins learned of the alleged false ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 19 1 communications; thus, this Court presumes Hawkins learned of the acts giving rise 2 to this claim in September 2007. While Hawkins’ subsequent conviction might 3 have provided a strong defense against the falsity element of the defamation claim, 4 Hawkins cites to no authority to show that this fact impacts the accrual of his 5 claim. Rather, if Hawkins had filed his defamation claim while his criminal 6 conviction was still pending, it would have been within the power of the trial court 7 to stay the civil action until the criminal case had ended. Accordingly, because 8 Hawkins filed his Complaint about eight years after the alleged acts giving rise to 9 the defamation claim occurred, this claim is barred. 10 3. Negligent Supervision 11 “The theory of negligent supervision creates a limited duty to control an 12 employee for the protection of third parties, even where the employee is acting 13 outside the scope of employment.” Garrison v. Sagepoint Fin., Inc., 185 14 Wash.App. 461, 484-85 (2015). To establish a claim for negligent supervision, a 15 plaintiff must show (1) the employee acted outside the scope of his employment, 16 (2) presented a risk of harm; (3) the employer knew, or should have known, in the 17 exercise of reasonable care, that the employee posed a risk to others; and (4) the 18 employer’s failure to supervise was a proximate cause of the loss. Id. 19 20 Hawkins asserts that his negligent supervision claim did not ripen until successful conclusion of the underlying criminal matter. ECF No. 15 at 19. ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 20 1 Accrual aside, this Court finds Hawkins has failed to state a claim for 2 negligent supervision. It is unclear what series of events within the Complaint the 3 negligent supervision claim relates to. The Complaint merely asserts that 4 “Defendants failed to exercise ordinary care in supervision of employees.” ECF 5 No. 1-1 at 15. However, the Complaint fails to state any facts to demonstrate that 6 the deputies presented a risk of harm and their employers knew or should have 7 known of this risk. Accordingly, this Court dismisses this claim without prejudice 8 for failure to state a claim. 9 10 4. Conversion “[C]onversion is the unjustified, willful interference with a chattel which 11 deprives a person entitled to the property of possession.” Potter v. Wash. State 12 Patrol, 165 Wash.2d 67, 78 (2008). Unless the discovery rule applies, the 13 limitations period beings to run when the plaintiff suffers some form of injury or 14 damage. Crisman v. Crisman, 85 Wash.App. 15, 20 (1997) (as amended). 15 Hawkins asserts that “[i]t was not until the successful completion of the 16 criminal matter by dismissal that the ability to bring a claim for conversion arose— 17 for prior to that time the equipment was evidence in an ongoing prosecution, 18 however malicious it may have been.” ECF No. 15 at 19. 19 Here, the statute of limitations began to run on Hawkins’ conversion claim, 20 at the latest, in June 2007. It is unclear what event or events give rise to Hawkins’ ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 21 1 conversion claim—the Complaint alleges that one of Hawkins’ tractors was taken 2 by the Chelan County Sheriff’s Office and turned over to the Douglas County 3 Sheriff’s Office in October 2006 and that another tractor and bin trailer were taken 4 in June 2007. ECF No. 1-1 at 8, 10. To the extent Hawkins is asserting that both 5 events constituted conversion, the statute of limitations began to run at the time 6 each piece of property was allegedly unjustly taken, depriving Hawkins of 7 possession. Although Hawkins asserts that his claim did not accrue until after 8 dismissal of the criminal conviction, this subsequent event did not impact the fact 9 that Hawkins knew of the facts supporting his claim and could have filed for relief 10 in court before dismissal of his conviction. As with his defamation claim, it would 11 have been within the power of the trial court to stay the civil action until the 12 criminal case had ended. Accordingly, this claim is time-barred. 13 5. Malicious Prosecution 14 To maintain an action for malicious prosecution, a plaintiff must prove 15 (1) that the prosecution claimed to have been malicious was instituted or continued by the defendant; (2) that there was want of probable cause for the institution or continuation of the prosecution; (3) that the proceedings were instituted or continued through malice; (4) that the proceedings terminated on the merits in favor of the plaintiff, or were abandoned; and (5) that the plaintiff suffered injury or damage as a result of the prosecution. 16 17 18 19 20 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 22 1 Clark v. Baines, 150 Wash.2d 905, 911 (2004). “Malice and want of probable 2 cause constitute the gist of a malicious prosecution action.” Rodriguez v. City of 3 Moses Lake, 158 Wash.App. 724, 729 (2010). 4 Here, Hawkins’ malicious prosecution claim is not barred by the statute of 5 limitations. This claim did not accrue until the underlying criminal conviction 6 against Hawkins was terminated on the merits or abandoned, a necessary element 7 of a claim for malicious prosecution. As alleged, the trial court dismissed the 8 charges with prejudice on December 19, 2014. Accordingly, because Hawkins 9 filed his Complaint within two years of this date, this claim is not barred. 10 D. Equitable Tolling 11 In Washington, courts may apply the doctrine of equitable tolling to allow a 12 claim to proceed “when justice requires.” Trotzer v. Vig, 149 Wash.App. 594, 606- 13 07 (2009). However, courts should apply this doctrine “only sparingly.” Id. “The 14 one who asserts the doctrine of equitable tolling has the burden of proving each of 15 the predicates for application of the doctrine.” Id. at 607. “The predicates for 16 equitable tolling are bad faith, deception, or false assurances by the defendant and 17 the exercise of diligence by the plaintiff.” Id. (quoting Millay v. Cam, 135 Wash.2d 18 193, 206 (1998)). 19 Hawkins asserts that equitable tolling should apply to his claims otherwise 20 barred by the statute of limitations. To demonstrate bad faith, Hawkins generally ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 23 1 cites to the allegations in his Complaint. To demonstrate diligence, Hawkins 2 asserts that he exercised diligence “in seeking to gain a dismissal or acquittal 3 rapidly, appealing successfully adverse trial court rulings and ultimately seeking 4 review before the State Supreme Court.” ECF No. 15 at 20. 5 Construing Hawkins’ Complaint with the required liberality, this Court finds 6 Hawkins has failed to demonstrate that equitable tolling should apply. Although 7 Hawkins appears to have diligently sought dismissal of his criminal conviction, he 8 has failed to demonstrate that he diligently pursued the civil claims at issue here. 9 Although Hawkins now asserts that he could not have pursued his civil claims 10 before his conviction was dismissed, he has failed to provide any support for why 11 he could not have filed suit within the relevant time period. Moreover, Hawkins’ 12 Complaint fails to demonstrate, beyond conclusory allegations, bad faith on the 13 part of Defendants. Accordingly, Hawkins has failed to meet his burden to show 14 that equitable tolling applies. 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 24 1 E. Prosecutorial Immunity 2 Douglas County Defendants move to dismiss Hawkins’ malicious 3 prosecution claims on the basis of prosecutorial immunity. 7 ECF No. 11 at 8-11. 4 Hawkins does not address this argument in his response briefing. See ECF No. 15. 5 Under federal and state law, prosecutors “performing their official 6 prosecutorial functions” are entitled to absolute immunity against state and 7 constitutional torts. Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir. 2012); 8 Musso-Escude v. Edwards, 101 Wash.App. 560, 567 (2000) (noting that 9 “[a]nalysis of a prosecutor’s absolutely immunity from suit under state law claims 10 tracks common law immunity analysis under 42 U.S.C. § 1983”). “Immunity 11 attaches to ‘the nature of the function performed, not the identity of the actor who 12 13 7 14 their reply briefing, asserting that Hawkins has failed to allege sufficient facts to 15 support a claim against Douglas County, rather than its individual officers. ECF 16 No. 18 at 5-7. The Court declines to rule on this issue, as Hawkins did not have 17 opportunity to respond. Hawkins is advised, however, to consider this issue in any 18 amended complaint. See Monell v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658, 691 19 (1978) (“Congress did not intend municipalities to be held liable unless action 20 pursuant to official municipal policy of some nature caused a constitutional tort.”). Douglas County Defendants raise the issue of Monell liability under § 1983 in ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 25 1 performed it.” Lacey, 693 F.3d at 912. The party asserting immunity “bears the 2 burden of showing that . . . immunity is justified for the function in question.” Id. 3 “A prosecutor is entitled to absolute immunity from a civil action for 4 damages when he or she performs a function that is ‘intimately associated with the 5 judicial phase of the criminal process.’” KRL v. Moore, 384 F.3d 1105, 1110-11 6 (9th Cir. 2004) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). This 7 includes initiating a prosecution and presenting the State’s case, appearing at a 8 probable cause hearing to support an application for a search warrant, and 9 preparing and filing an arrest warrant. Id.; see also Lacey, 693 F.3d at 912 10 (“Absolute immunity also protects those functions in which the prosecutor acts as 11 an ‘advocate for the State,’ even if they ‘involve actions preliminary to the 12 initiation of a prosecution and actions apart from the courtroom.’” (quoting Burns 13 v. Reed, 500 U.S. 478, 486 (1991)). On the other hand, absolute immunity “may 14 not apply when a prosecutor is not acting as ‘an officer of the court,’ but is instead 15 engaged in other tasks, say investigative or administrative tasks.” Van de Kamp v. 16 Goldstein, 555 U.S. 335, 342 (2009) (quoting Imbler, 424 U.S. at 431 n.33). 17 This Court finds Douglas County has absolute immunity from Hawkins’ 18 claims as currently alleged. The Complaint alleges that the prosecution lacked 19 probable cause and was “instituted or continued through malice.” ECF No. 1-1 at 20 16. Without more, it appears Hawkins is challenging Douglas County’s initiation ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 26 1 of the prosecution against Hawkins, presentation of its case, and pursuit of its 2 prosecution throughout the appeals process. Because Douglas County has 3 demonstrated that immunity is justified for the functions in question—all functions 4 that are “intimately associated with the judicial phase of the criminal process,” 5 Lacey, 693 F.3d at 912—Douglas County is absolutely immune from Hawkins’ 6 § 1983 and state law malicious prosecution claims. 7 F. Leave to Amend 8 Even when a complaint fails to state a claim for relief, “[d]ismissal without 9 leave to amend is improper unless it is clear that the complaint could not be saved 10 by an amendment.” Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009). The 11 standard for granting leave to amend is generous. See Fed. R. Civ. P. 15(a)(2) 12 (“The court should freely give leave when justice so requires.”). The court 13 considers five factors in assessing the propriety of leave to amend—bad faith, 14 undue delay, prejudice to the opposing party, futility of amendment, and whether 15 the plaintiff has previously amended the complaint. United States v. Corinthian 16 Colleges, 655 F.3d 984, 995 (9th Cir. 2011). 17 This Court finds amendment is proper. First, the Court finds no indication of 18 bad faith or undue delay. Second, this Court finds no prejudice to the opposing 19 party at this early stage in the proceedings. Third, Hawkins has not previously 20 amended his Complaint. Finally, this Court finds amendment may not be futile. At ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 27 1 this early stage of the proceedings, the Court can conceive of additional facts that 2 could provide support for Hawkins’ claims otherwise dismissed by this Order. See 3 id. Consequently, because the factors weigh in favor of amendment, Hawkins 4 request for leave to amend his Complaint, asserted at oral argument, is granted. 5 IT IS ORDERED: 6 1. Douglas County’s 12(b) Motion to Dismiss (ECF No. 11) is GRANTED. 7 2. Defendant Chelan County’s Motion to Dismiss (ECF No. 13) is 8 9 GRANTED. 3. Plaintiff’s Complaint is DISMISSED without prejudice. Plaintiff is 10 GRANTED leave to file an amended complaint within thirty (30) days of the entry 11 of this order. 12 13 14 The District Court Executive is directed to enter this Order and provide copies to counsel. DATED January 28, 2016. 15 16 THOMAS O. RICE Chief United States District Judge 17 18 19 20 ORDER GRANTING DEFENDANTS’ MOTIONS TO DISMISS ~ 28

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