Akmal v. City of Kent et al, No. 2:2013cv00379 - Document 57 (W.D. Wash. 2014)
Court Description: ORDER granting 49 City of Kent's Motion to Dismiss but provides Ms. Akmal leave to amend her complaint within 10 days of the date of this order, by Judge James L. Robart.(MD)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 MARIYAM AKMAL, Plaintiff, 11 v. 12 13 ORDER GRANTING DEFENDANT CITY OF KENT’S MOTION TO DISMISS CITY OF KENT, et al., Defendants. 14 15 16 CASE NO. C13-0379JLR I. INTRODUCTION Before the court is Defendant City of Kent’s (“City”) motion to dismiss for failure 17 to state a claim (Mot. (Dkt. # 49)) pursuant to Federal Rule of Civil Procedure 12(b)(6). 18 The court has examined the submissions of the parties, the balance of the record, and the 19 governing law. Being fully advised, the court GRANTS Defendant City of Kent’s 20 motion to dismiss. 21 22 ORDER- 1 1 2 II. BACKGROUND Mariyam Akmal filed the instant case on March 5, 2013, and has since amended 3 her complaint three times. (See Compl. (Dkt. # 4); Am. Compl. (Dkt. # 27); 2d Am. 4 Compl. (Dkt. # 43); 3d Am. Compl. (Dkt. # 53).) Ms. Akmal’s four complaints are 5 similar to one another. In each, she alleges a laundry list of civil rights violations against 6 the City of Kent, the Kent Police Department (“Kent Police”), and other public figures. 7 (See generally 3d Am. Compl.) Ms. Akmal sues the City directly and under the doctrine 8 of respondeat superior. (Id. ¶ 7.) The crux of her allegations is that Kent Police and 9 other public officials in the City engaged in a “civil conspiracy” against her. (See 2d Am. 10 Compl. ¶ 34.) In connection with these allegations, she alleges violations of 42 U.S.C. 11 § 1981, § 1985, § 1986, § 1988, both the United States and Washington Constitutions, 12 and privacy torts. (3d Am. Compl. ¶ 17.) Ms. Akmal seeks monetary, declaratory and 13 injunctive relief. (Id. at 23.) 14 At the heart of Ms. Akmal’s conspiracy allegations are claims that the Kent Police 15 discriminated against her on the basis of religion, race, and gender. (Id. ¶ 18.) Ms. 16 Akmal is an African-American Muslim. (Id.) She claims that Kent Police “repeatedly, 17 over a decade, refused to allow her to lodge crime reports,” complaining that she has 18 been “harassed both electronically and in real life, as well as stalked by a networked 19 group of mostly anonymous individuals.” (Id.) 20 Further, she claims that the City retaliated against her for attempting to lodge those 21 complaints. She alleges that she gave her contact information to the City for 22 investigatory purposes at the City Clerk’s request. Subsequently, she claims that her ORDER- 2 1 complaints were not investigated and that the City used her personal information to stalk 2 her and invade her private life. (Id. ¶ 33.) This included allegedly “entering her home 3 while in her absence, taking items from her home, going through her personal 4 correspondence, computers, etc. and then using this gleaned knowledge to anonymously 5 stalk, track, and taunt her. . . .” (Id.) In addition to these searches, Ms. Akmal claims that 6 she was threatened by agents of the City. (Id.) She states, “[t]o date, they continue to 7 send her veiled threats of physical harm—‘I can hurt you,’ ‘you know what they say 8 about the squeaky wheel,’ references to playing ‘Cowboys & Muslims’ but dipping the 9 bullet in pig grease first . . . .” (Id.) Further, she claims that the Kent Police had her 10 fired, stole money from her bank account, and painted her in a false light by 11 disseminating a document containing her photograph and personal information to the 12 City. (Id. ¶¶ 36, 37, 39.) She alleges that the Kent Police justified disseminating her 13 information on the basis that she lawfully owns a firearm, creating issues of officer 14 safety. (Id. ¶ 39.) 15 On March 13, 2014, the court granted Defendant Michael Alston’s motion to 16 dismiss. (See 3/13/14 Order (Dkt. # 52).) Now the City moves to dismiss for failure to 17 state a claim upon which relief may be granted. (Mot. to Dismiss (Dkt. # 49).) Relying 18 solely on case law decided before the Supreme Court’s decisions in Bell Atlantic Corp. v. 19 Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), Ms. Akmal 20 argues that she pleads sufficient facts to survive the City’s motion. (See generally Resp. 21 (Dkt. # 54)). 22 ORDER- 3 1 III. ANALYSIS 2 A. The City’s Motion to Dismiss 3 Ms. Akmal asserts causes of action that can be divided into three groups. The first 4 group of claims are statutory civil rights causes of action, including 42. U.S.C. § 1981, 5 § 1985, § 1986 and § 1988. (3d Am. Compl. ¶ 17.) The second group consists of state 6 law claims, including false light, defamation, and violation of Article I, Section VII of the 7 Washington Constitution. (Id. ¶ 57.) The third is a § 1983 claim alleging violations of 8 the First, Second, Fourth and Fourteenth Amendments to the United States Constitution. 9 (See id. ¶ 60.) Given that there appears to be a slightly different pleading standard in the 10 Ninth Circuit for § 1983 suits against local governments, the court will address her 11 § 1983 claim separately. 12 1. Standard for Dismissal Under Rule 12(b)(6) 13 Federal Rule of Civil Procedure 8 sets the general requirements for pleadings. See 14 Fed. R. Civ. P. 8. Rule 8 requires that the plaintiff include three things in his or her 15 complaint: (1) a statement of the grounds for the court’s jurisdiction; “(2) a short and 16 plain statement of the claim showing that the pleader is entitled to relief;” and (3) a 17 prayer for relief. Id. In Twombly, 550 U.S. 544, and Iqbal, 556 U.S. 662, the Supreme 18 Court explained the pleading requirement set forth in Rule 8. In doing so, the Court 19 abrogated the “notice pleading” standard that was based on its decision in Conley v. 20 Gibson, 355 U.S. 41 (1957). See Twombly, 550 U.S. at 563. Instead, the Court held that 21 Rule 8 requires a complaint to contain factual allegations sufficient “to raise a right to 22 relief above a speculative level.” Id. at 555. ORDER- 4 1 To survive a Rule 12(b)(6) motion to dismiss under Twombly and Iqbal, a 2 complaint must contain factual matter sufficient to support a facially plausible claim to 3 relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 4 2010) (citing Iqbal, 556 U.S. at 662). A claim for relief is plausible on its face when “the 5 plaintiff pleads factual content that allows the court to draw the reasonable inference that 6 the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 662. Though this 7 standard is not a probability requirement, it requires the plaintiff to do more than present 8 facts tending to show that the defendant might be liable. Id. A complaint crosses the 9 threshold from conceivable to plausible when it contains factual matter alleged with 10 sufficient specificity to raise entitlement to relief above the speculative level. Twombly, 11 550 U.S. at 555. Otherwise stated, “the pleading standard Rule 8 announces does not 12 require detailed factual allegations, but it demands more than an unadorned, the13 defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (internal 14 quotations and citations omitted). “Apart from factual sufficiency, a complaint is also 15 subject to dismissal [under Rule 12(b)(6)] where it lacks a cognizable legal theory, or 16 where the allegations on their face show that relief is barred for some legal reason.” 17 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). When considering 18 a party’s Rule 12(b)(6) motion to dismiss, the court construes all facts in the light most 19 favorable to non-moving party. Twombly, 550 U.S. at 555. However, the court is not 20 bound to accept as true labels, conclusions, formulaic recitations of the elements, or legal 21 conclusions couched as factual allegations. Id. 22 ORDER- 5 1 2. Ms. Akmal’s § 1981, § 1985, § 1986 and § 1988 Claims 2 42 U.S.C. § 1981 and § 1988 are not related to this case. Accordingly, the court 3 quickly dismisses these claims. Section 1981 “affords a federal remedy against 4 discrimination in private employment on the basis of race.” Johnson v. Ry. Exp. Agency, 5 Inc., 421 U.S. 454, 459 (1975). The purpose of § 1988 is for the court to award 6 attorney’s fees to the prevailing party in a civil rights action. Venegas v. Mitchell, 495 7 U.S. 82, 86 (1990). As Ms. Akmal has neither prevailed in the action nor alleges 8 employment discrimination by the City, she fails to state a claim as to these causes of 9 action. 10 Similarly, her claims under § 1985 and § 1986 are deficient. An essential element 11 of a cause of action under § 1985(3) is a showing of racial or otherwise class-based 12 animus. Trerice v. Pedersen, 769 F.2d 1398, 1402 (9th Cir. 1985). An inadequate 13 factual allegation of the requisite animus is sufficient for the court to dismiss the claim 14 under Rule 12(b)(6). Id. Further, a cause of action is not provided under § 1986 “absent 15 a valid claim for relief under section 1985.” Id. at 1403. Therefore, an inadequate 16 allegation of class-based animus is sufficient for the court to dismiss both her § 1985 and 17 § 1986 claims. 18 Ms. Akmal has not plausibly alleged that the City acted with racial animus. Her 19 assertion that the City discriminated against her on the basis of race, religion and gender 20 is “nothing more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” 21 See Iqbal, 556 U.S. at 678 (internal quotations and citations omitted). At the heart of her 22 claim is a theory that the City denied her complaints because she is a single, AfricanORDER- 6 1 American, Muslim, female. (See 3d Am. Compl. ¶ 18.) She does not support her theory, 2 however, with factually sufficient allegations showing the court that her entitlement to 3 relief is “above the speculative level.” See Twombly, 550 U.S. at 555. The only support 4 she provides for this allegation is her conclusion that the City “discriminated against her 5 based on her religion (Islam), race (African American), gender (female), [and] marital 6 status (single).” (3d. Am. Compl. ¶ 18.) The court is not required to accept this 7 conclusory allegation as true. See Twombly, 550 U.S. at 555. Ms. Akmal could have 8 alleged specific statements by identifiable City officials or concrete actions 9 demonstrating discriminatory animus. Courts find such concrete factual allegations 10 sufficient to survive a motion to dismiss. See, e.g., Elliot-Park v. Manglona, 592 F.3d 11 1003, 1005-06 (9th Cir. 2010) (finding sufficient discriminatory allegations when 12 complaint stated that police failed to investigate or charge a drunk driver who hit a 13 minority victim, despite obvious signs of intoxication and an admission that the driver 14 “blacked out” while driving). Ms. Akmal fails to plead any concrete statements or factual 15 allegations. Instead, she alleges only that the City was unresponsive to her complaints 16 and that she personally believes the City was motivated by animus. Rule 8 requires 17 more. Accordingly, the court dismisses her § 1985 and § 1986 claims. 18 3. Ms. Akmal’s State-Law Tort Claims 19 Ms. Akmal asserts numerous claims under state law including invasion of privacy, 20 intentional and negligent infliction of emotional distress, intrusion upon seclusion, 21 stalking, and tortious interference. (3d Am. Compl. ¶ 60.) Further, she brings false light 22 ORDER- 7 1 and defamation claims arising out of the dissemination of her photograph to City 2 officials. (See id. ¶¶ 39, 60.) 3 As Ms. Akmal does not plead the requisite elements for false light and defamation, 4 the court addresses those claims first. To make out a claim for either false light or 5 defamation, the plaintiff must show “falsity.” Mohr v. Grant, 108 P.3d 768, 773 (Wash. 6 2005) (“The elements a plaintiff must establish in a defamation case are falsity, an 7 unprivileged communication, fault, and damages.”); Eastwood v. Cascade Broad. Co., 8 722 P.2d 1295, 1297 (Wash. 1986) (“A false light claim arises when someone publicizes 9 a matter that places another in a false light if (a) the false light would be highly offensive 10 to a reasonable person and (b) the actor knew of or recklessly disregarded the falsity of 11 the publication and the false light in which the other would be placed.”). Ms. Akmal 12 alleges only that Detective Himple “transmitted a document with [her] photo and her 13 personal information” to the City. (3d Am. Compl. ¶ 39.) She does not argue that any of 14 the transmitted information was false. (See generally id.) Therefore, she fails to state a 15 claim for false light or defamation. 16 Ms. Akmal’s remaining state law claims are also defective. Her state law claims 17 stem from a theory that the City repeatedly stalked, threatened and retaliated against her. 18 (Id. ¶¶ 18, 33.) She claims that not only were members of the Kent Police a part of the 19 group of “mostly anonymous individuals” who stalked her initially (id. ¶ 18), but that the 20 City retaliated against her for attempting to lodge subsequent complaints reporting the 21 stalking (see id. ¶¶ 33, 36, 37, 38). She asserts various causes of action arising from this 22 theory, including intentional and negligent infliction of emotional distress, intrusion upon ORDER- 8 1 seclusion, stalking, tortious interference, and a violation of Article I, Section VII of the 2 Washington Constitution. (See id. ¶ 60.) Her theory, however, suffers from at least one 3 fatal defect. Ms. Akmal does not plausibly allege that the City is responsible for the harm 4 she asserts. Instead she makes only speculative inferences, which are not enough to 5 survive a motion to dismiss. Twombly, 550 U.S. at 555. Even if the court accepts that 6 Ms. Akmal was stalked, wrongfully terminated, and that individuals illegally searched 7 her house, she does not allege facts that would allow the court to draw a causal relation 8 between the City and her asserted harm. (See 3d Am. Compl. ¶¶ 33, 36.) Ms. Akmal’s 9 personal belief that the City is responsible for these events, without more, is “an 10 unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 11 (internal quotations and citations omitted). 12 For example, she asserts that soon after she left her name and phone number with 13 the City Clerk, “they” began “entering her home, going through her personal 14 correspondence, [and] computers” and sending her “veiled threats of physical harm- ‘I 15 can hurt you,’ ‘you know what they say about the squeaky wheel,’ references to playing 16 ‘Cowboys and Muslims’” and left “an empty shell case” in her vehicle. (3d Am. Compl. 17 ¶ 33.) Although such harms might give rise to a cause of action, she does not allege facts 18 showing the court that “they” is the City. Ms. Akmal alleges only that certain events 19 occurred and that she personally believes the City committed those harms. Ms. Akmal’s 20 speculative belief that the City harmed her does not move her allegations from 21 conceivable to plausible. See Twombly, 550 U.S. at 555. It is merely a conclusion that is 22 not entitled to a presumption of truth. Id. ORDER- 9 1 The same is true for Ms. Akmal’s claim that the City had her fired. (3d Am. 2 Compl. ¶ 36.) She asserts that whenever she went over the police’s head to lodge a 3 complaint, she would suffer a “major loss of a necessity.” (Id.) The fact that two events 4 occurred within a relatively short time frame does not allow the court to draw a causal 5 relation implicating retaliation by the City. Without showing why her lodging a 6 complaint and losing her job are connected, Ms. Akmal does not allow the court to draw 7 a “reasonable inference that the defendant is liable for the misconduct alleged.” See 8 Iqbal, 556 U.S. at 678. Because Ms. Akmal does not allege sufficient facts implicating 9 the City for the harms associated with her general theory of liability, she does not state a 10 claim for relief arising from those events. Accordingly, the court dismisses Ms. Akmal’s 11 state law claims. 12 4. Ms. Akmal’s § 1983 Claim 13 Ms. Akmal brings a § 1983 claim, asserting violations of the First, Second, Fourth 14 and Fourteenth Amendments. (See 3d Am. Compl. ¶ 60.) Although § 1983 refers only 1 15 to “person[s],” plaintiffs may sue local governing bodies directly under § 1983 for 16 monetary, declaratory and injunctive relief for violations of constitutional rights. Monell 17 18 19 20 21 22 1 The full text of § 1983 reads: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” 42 U.S.C. § 1983. ORDER- 10 1 v. Dep’t of Soc. Servs. of City. of N.Y., 436 U.S. 658, 689 (1978). Cities, however, cannot 2 be held vicariously liable for the actions of their employees under § 1983. Monell, 436 3 U.S. at 692. Accordingly, “plaintiffs who seek to impose liability on local governments 4 under § 1983 must prove that ‘action pursuant to official municipal policy’ caused their 5 injury.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (citing Monell, 436 U.S. at 6 691). An official policy is “a deliberate choice to follow a course of action . . . .” Tsao v. 7 Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir. 2012). The Ninth Circuit Court of 8 Appeals has identified two types of policies: “those that result in the municipality itself 9 violating someone’s constitutional rights or instructing its employees to do so” and those 10 that result through “omission . . . .” Id. (internal quotations and citations omitted). 11 There are, however, heightened requirements for proving a policy of omission. Id. The 12 plaintiff must show, in addition to a constitutional violation, that the policy of omission 13 “amounts to deliberate indifference to the plaintiff’s constitutional right, and that the 14 [omission] caused the violation . . . .” Id. (internal quotations and citations omitted). 15 16 a. Pleading Standard for Monell Claims There is some uncertainty surrounding the pleading standard for Monell claims. 17 The longstanding rule in the Ninth Circuit was that “a claim of municipal liability under 18 section 1983 is sufficient to withstand a motion to dismiss even if the claim is based on 19 nothing more than a bare allegation that the individual officers’ conduct conformed to 20 official policy, custom or practice.” Karim–Panahi v. L.A. Police Dep’t, 839 F.2d 621, 21 624 (9th Cir. 1988) (internal quotations omitted). While Karim-Panahi has not been 22 explicitly overruled, the Ninth Circuit has recognized the potential conflict with the ORDER- 11 1 Supreme Court’s recent pleadings jurisprudence. See Mateos-Sandoval v. Cnty. of 2 Sonoma, 942 F.Supp. 2d 890, 898-99 (N.D. Cal. 2013). Accordingly, the Ninth Circuit 3 has attempted to reconcile the Supreme Court’s ruling in Twombly and Iqbal with other 4 “recent cases in which the Court construed Rule 8(a) in a way that would permit more 5 claims to survive a motion to dismiss.” Id. at 899. In doing so, the Ninth Circuit 6 constructed a two-part rule governing the pleading standard for Monell claims: “First, to 7 be entitled to the presumption of truth, allegations in a complaint or counterclaim may 8 not simply recite the elements of a cause of action, but must contain sufficient allegations 9 of underlying facts to give fair notice and to enable the opposing party to defend itself 10 effectively. Second, the factual allegations that are taken as true must plausibly suggest 11 an entitlement to relief, such that it is not unfair to require the opposing party to be 12 subjected to the expense of discovery and continued litigation.” AE ex. rel. Hernandez v. 13 Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 14 1216 (9th Cir. 2011)). 15 The court makes no determination as to whether the Hernandez standard is 16 compatible with the Supreme Court’s decision in Twombly and Iqbal. While the 17 “plausibility” requirement in Hernandez overlaps with the “plausibility” requirement in 18 Iqbal, it is unclear whether the standards are identical. Because Ms. Akmal pleads 19 insufficient facts to survive a motion to dismiss under either standard, the court leaves 20 this question for another day. 21 To make out a § 1983 claim against the City, Ms. Akmal must show that an 22 official custom or policy deprived her of a constitutional right. See Thompson, 131 S. Ct. ORDER- 12 1 at 1359. While it is highly doubtful whether Ms. Akmal even pleads sufficient facts to 2 make out a constitutional violation, the court need not address the issue. Ms. Akmal does 3 not allege that her potential harm occurred due to an official government policy. 4 Although she names high-ranking City officials as defendants, the substance of her 5 complaint focuses on the actions of unidentified City agents. (See generally 3d Am. 6 Compl.) Ms. Akmal does not plead facts that plausibly show an official City police 7 policy of either action or deliberate indifference that caused a deprivation of her 8 constitutional rights. Desert Palace, Inc., 698 F.3d at 1143. Accordingly, it would be 9 “unfair to require the [City] to be subjected to the expense of discovery and continued 10 litigation.” AE ex. rel. Hernandez, 666 F.3d at 637 (internal citations omitted). 11 12 IV. CONCLUSION For the foregoing reasons, the court GRANTS the City of Kent’s motion to 13 dismiss (Dkt. # 49), but provides Ms. Akmal leave to amend her complaint within ten 14 days of the date of this order. If Ms. Akmal decides to file an amended complaint, it 15 must comply with W.D. Wash. Local Rule LCR 15. In other words, Ms. Akmal must 16 “indicate on the proposed amended pleading how it differs from the pleading that it 17 amends by bracketing or striking through the text to be deleted and underlining or 18 highlighting the text to be added.” See W.D. Wash. Local Rule LCR 15. The court 19 warns Ms. Akmal that should she fail to timely amend her complaint in a manner that 20 resolves the deficiencies herein, the court will dismiss the claims against the City without 21 22 ORDER- 13 1 prejudice. Ms. Akmal has already filed three amended complaints (see Dkt.), and 2 additional opportunities to amend will likely be denied. 3 Dated this 24th day of April, 2014. 4 6 A 7 JAMES L. ROBART United States District Judge 5 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER- 14
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