
    Guido BINI, Plaintiff, v. CITY OF VANCOUVER, et al., Defendants.
    CASE NO. C16-5460 BHS
    United States District Court, W.D. Washington, at Tacoma.
    Signed October 28, 2016
    
      Derek Angus Lee, Angus Lee Law Firm, PLLC, Vancouver, WA, Patrick Ross Moberg, Jerry J. Moberg, Jerry Mo-berg & Associates PS, Ephrata, WA, for Plaintiff.
    Daniel G. Lloyd, Jonathan James Young, Sara E, Baynard-Cooke, Vancouver City Attorney’s Office, Vancouver, WA, for Defendants.
   ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS

BENJAMIN H. SETTLE, United States District Judge

This matter comes before the Court on the motion to dismiss (Dkt. 9) of City of Vancouver (“City”) and Officer Sandra Al-dridge (“Officer Aldridge”) (collectively “Defendants”). The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion in part and denies it in part for the reasons stated herein.

I. PROCEDURAL HISTORY

On June 9, 2016, Plaintiff filed his complaint against Defendants claiming violations of constitutional rights actionable under 42 U.S.C. § 1983, a violation of Washington’s Criminal History Privacy Act (RCW 10.97), malicious prosecution, false arrest, false imprisonment, and negligence. Dkt. 1. On September 1, 2016, Defendants filed their motion to dismiss. Dkt. 9. On September 19, 2016, Plaintiff responded. Dkt. 11. On September 23, 2016, Defendants replied. Dkt. 13.

II. FACTUAL BACKGROUND

In early 2014, Officer Aldridge was monitoring jail communications between Plaintiff and Garrett Smith. Dkt. 1 at 2. Plaintiff and Garrett Smith were critical of Officer Aldridge and her investigation into Garrett Smith’s criminal activity, which ultimately resulted in Garrett Smith’s conviction for second degree assault and second degree attempted murder of his wife, Sheryl Smith. Id.; Dkt. 9-1.

Around the time police arrested Garret Smith, Plaintiffs girlfriend published and maintained a webpage called “'‘Garret’s Voice.” Dkt. 1 at 3. The website was'highly critical of Officer Aldridge* the Vancouver Police Department, and their work on Garrett Smith’s case. Id. Based on the content of the website and Plaintiffs jail communications with Garrett Smith,- Officer 'Al-dridge started investigating Plaintiff- for cyberstalking in violation of RCW 9.61.260. Id.

On March 29, 2014, Officer Aldridge went to Plaintiffs home and issued a warning regarding the webpage. Id. The web-page was not removed or changed. Id. at 4. At some unspecified time, Officer Aldridge issued a “Be on Look Out” warning (the “BOLO”), a probable cause statement, and a criminal complaint for Plaintiffs arrest in the police computer system. Id. at 5. On May 7, 2014, Officer Aldridge arrested Plaintiff for felony cyberstalking in violation of RCW 9.61.260(3). Id. at 4. Felony cyberstalking under RCW 9.61.260(3) requires a previous' conviction of a crime of harassment as defined under RCW 9A.46.060 as a mandatory element, while cyberstalking as a gross misdemeanor under RCW 9.61.260(1) does not. RCW 9.61.260. Plaintiff has not been convicted of a crime of harassment as defined under RCW 9A.46.060. Dkt. 1 at 4.

Plaintiff alleges that Officer Aldridge knew that Plaintiff had not previously been convicted of a crime of harassment and that she withheld this information from the prosecutor and the court to obtain the probable cause determination. Id. Plaintiff spent an unspecified number of days and nights in jail. Id. On May 12, 2014, the County Prosecutor’s Office moved to drop the charge against him for felony cyber-stalking. Id.

After the charges were dropped, Officer Aldridge continued to pursue prosecution of Plaintiff. Id. On July 3, 2014, Officer Aldridge met with the Vancouver City Attorney to ask that the City prosecute Plaintiff. Id. The City Attorney declined, and stated he would revisit the issue after Officer Aldridge made a supplemental report. Id. at 5. He also said that if the City pursued the matter, it would only request a court summons and not an arrest warrant. Id.

Officer Aldridge did not remove the BOLO, Probable Cause Statement, or Criminal Complaint from the police system after Plaintiff was released on May 12, 2014. Id. at 5. On October 27, 2014, three other city police officers arrested Plaintiff pursuant to the information that Officer Aldridge failed to remove from their computer system. Id. On the way to the Jail, the other officers contacted Officer Al-dridge to inform her that they had arrested Plaintiff under the outstanding BOLO. Id. Officer Aldridge informed the other officers that Plaintiff had already been arrested and that the information should have been removed from their system. Id. The officers then immediately returned Plaintiff to his home. Id. On November 10, 2014, the City Attorney reached a decision not to file charges against Plaintiff for cyberstalking. Id. at 6.

On March 25, 2015, Officer Aldridge faxed to Sheryl Smith’s attorney two non-redacted police incident reports she had authored for her investigation and arrest of Plaintiff. Id. Officer Aldridge sent the reports to assist Sheryl Smith’s attempt to renew an anti-harassment order against Plaintiff. Id. The incident reports included non-redacted personal identifiers, including Plaintiffs date of birth, physical description, driver’s license number, address, and phone number. Id.

At some unspecified time, Plaintiff filed complaints with the City of Vancouver Police Department regarding Officer Al-dridge and the above described facts. Id. The City of Vancouver has taken no action regarding his complaints. Id.

III. DISCUSSION

A. 12(b)(6) Standard

Motions to dismiss brought under Rule 12(b)(6) may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiffs favor. Keniston v. Roberts, 717 F.2d 1295, 1301 (9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed factual allegations but must provide the grounds for entitlement to relief and not merely a “formulaic recitation” of the elements of a cause of action.Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955.

“As a general rule, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks omitted). The Court, however, may consider documents not attached to the complaint “if the documents’ authenticity ... is not contested and the plaintiffs complaint necessarily relies on them.” Id. (internal quotation marks omitted). Also, “under Fed. R. Evid. 201, a court may take judicial notice of matters of public record.” Id. at 689 (internal quotation marks omitted).

B. Municipal Liability

The City moves to dismiss Plaintiffs § 1983 claims against it. Dkt. 9 at 5-9. The City argues that Plaintiff has failed to allege sufficient facts to support a theory of municipal liability for the acts of Officer Aldridge. Id.

“While local governments may be sued under § 1983, they cannot be held vicariously liable for their employees’ constitutional violations,” Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1096 (9th Cir. 2013). To state a claim against a municipal ity under § 1983, a Plaintiff must allege sufficient facts to support a reasonable inference that the execution of a policy, custom, or practice was the “moving force” that resulted in the deprivation of his constitutional rights. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691-92, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

There are three established scenarios in which a municipality may be hable for constitutional violations under § 1983. “First, a local government may be held liable Svhen implementation of its official policies or established customs inflicts the constitutional injury.’ ” Clouthier v. County of Contra Costa, 591 F.3d 1232, 1249 (9th Cir. 2010) (quoting Monell, 436 U.S. at 708, 98 S.Ct. 2018). Second, Plaintiff can prevail on a § 1983 claim against the City by identifying acts of omission, such as a pervasive failure to train its employees, “when such omissions amount to the local government’s own official policy.” Id. Finally, the City “may be held liable under § 1983 when ‘the individual who committed the constitutional tort was an official with final policy-making authority’ or such an official ‘ratified a subordinate’s unconstitutional decision or action and the basis for it.’ ” Clouthier, 591 F.3d at 1250 (quoting Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992) (internal quotation marks and citations omitted)).

For the reasons set forth below, the Court finds that Plaintiff has failed to allege sufficient facts to support a theory of municipal liability under § 1983.

1. Implementation of Official Policy or Practice

Plaintiff has alleged no customs or policies that, when implemented, acted as the moving force behind Officer Aldridge’s conduct. “A ‘policy or custom’ must generally be one adopted and expressly set forth, but a municipal policy ‘may [also] be inferred from widespread practices or evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded.’ ” Morales v. Fry, C12-2235-JCC, 2014 WL 1230344, at *13 (W.D. Wash. Mar. 25, 2014) (quoting Nadell v. Las Vegas Metro. Police Dep’t., 268 F.3d 924, 929 (9th Cir. 2001)). At the pleading stage, Plaintiff must plead “sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself’ and “factual allegations that ... plausibly suggest an entitlement to relief .... ” See AE ex rel. Hernandez v. Cty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012).

The alleged constitutional deprivations upon which Plaintiff premises his § 1983 claims are threefold. First, Plaintiff alleges that he was arrested by Officer Aldridge without probable cause on May 7, 2014. Second, Plaintiff alleges that he was wrongfully arrested on October 27, 2014, because of Officer Aldridge’s failure to remove the BOLO incident to his previous arrest. Third, Plaintiff alleges that his arrest by Officer Aldridge violated his right to associate with Garrett Smith and his girlfriend’s right to publish the website “Garrett’s Voice.”

To support his § 1983 claim against the City, Plaintiff merely recites that the City “had in force and effect policies, regulations or practices which if followed would likely result in the violation of the constitutional rights of Plaintiff and others.” Dkt. 1 at 7. However, this cannot satisfy the pleading standard in Twombly, and the Ninth Circuit has indicated that more is required. See Cyr v. Pierce Cty., C16-0430 RSM, 2016 WL 2855272, at *7 (W.D. Wash. May 16, 2016) (citing AE ex rel. Hernandez, 666 F.3d at 637; Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). For instance, Plaintiff could adequately plead a claim by describing a policy or practice, a series of transactions, or some pattern of misconduct to suggest that an official policy, when implemented, acted as the moving force behind the alleged misconduct of Officer Aldridge. See Mateos-Sandoval v. Cty. of Sonoma, 942 F.Supp.2d 890, 899 (N.D. Cal. 2013), aff'd sub nom. Sandoval v. Cty. of Sonoma, 591 Fed.Appx. 638 (9th Cir. 2015), opinion amended and superseded on denial of reh’g and aff'd, 599 Fed.Appx. 673 (9th Cir. 2015). However, having failed to do so, Plaintiff has not pushed his formulaic recitation across the line of conceivability into the realm of plausibility. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

2. Failure to Train

To allege municipal liability under § 1983 for failure to train, Plaintiff must allege: (1) the existing training program is inadequate in relation to the tasks the particular officers must perform; (2) the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact; and (3) the inadequacy of the training actually caused the deprivation of the alleged constitutional right. Merritt v. Cty. of Los Angeles, 875 F.2d 765, 770 (9th Cir. 1989). “[T]he need for more or different training [must be] so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that policymakers ... can reasonably be said to have been deliberately indifferent to the need.” City of Canton v. Harris, 489 U.S. 378, 380, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). “A municipality’s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61, 131 S.Ct. 1350, 179 L.Ed.2d 417 (2011). “Under this standard, [Plaintiff] must allege facts to show that the [Defendants] disregarded the known or obvious consequence that a particular omission in their training program would cause [municipal] employees to violate citizens’ constitutional rights.” Flores v. Cty. of Los Angeles, 758 F.3d 1154, 1159 (9th Cir. 2014) (quotation marks omitted).

Plaintiff has alleged that the City “failed to properly train its officers on matters of probable cause for arrest, procedures for arrest and enforcement and cyber stalking laws.” Dkt. 1 at 7. Plaintiffs factual allegations are limited only to his own arrests and the isolated misconduct of Officer Aldridge. Ninth Circuit precedent suggests this cannot support a § 1983 claim that the City has failed to train its officers on probable cause or arrest procedures. Id.; McFarland v. City of Clovis, 163 F.Supp.3d 798, 806 (E.D. Cal. 2016) (“Alleging that training [for arrest procedures] is ‘deficient’ or ‘inadequate’ without identifying a specific inadequacy is conclusory and does not support a plausible claim.”) (citing Young v. City of Visalia, 687 F.Supp.2d 1141, 1149 (E.D. Cal. 2009)). See also Case v. Kitsap Cty. Sheriff’s Dep't 249 F.3d 921, 932 (9th Cir. 2001) (“[N]or can [municipal] liability be predicated on the. isolated sporadic events .... ”); Booke v. Cty. of Fresno, 98 F.Supp.3d 1103, 1128 (E.D. Cal. 2015) (“[A] plaintiff generally must show other instances of peace officers violating constitutional rights in order to show deliberately indifferent training.”). Absent allegations of specific shortcomings in the training of City police officers or facts that might place the City on notice that constitutional deprivations were likely occur, Plaintiff has not adequately pled a § 1983 claim against the City for failure to train.

3. Ratification

The mere allegation that an officer was not reprimanded or provided with additional training cannot support a theory of ratification. Morales v. Fry, C12-2235-JCC, 2014 WL 1230344, at *14 (W.D. Wash. Mar. 25, 2014); Clouthier v. Cnty. of Contra Costa, 591 F.3d 1232, 1253-54 (9th Cir. 2010) (holding that a failure to discipline employees, without more, was insufficient to establish ratification). “Ratification ... generally requires more than acquiescence.” Sheehan v. City & Cty. of San Francisco, 743 F.3d 1211, 1231 (9th Cir. 2014), rev’d in part on other grounds sub nom. City & Cty. of San Francisco, Calif. v. Sheehan, — U.S. —, 135 S.Ct. 1765, 191 L.Ed.2d 856 (2015). “Rather, to state a section 1983 claim under a ratification theory, a plaintiff must sufficiently allege that a policymaker ‘made a deliberate choice to endorse’ the ... unlawful actions.” Diamond v. United States, ED CV 14-01922-VBF, 2015 WL 11215851, at *9 (C.D. Cal. May 15, 2015) (quoting Sheehan, 743 F.3d at 1231).

Plaintiff does not allege that a specific City official with policy-making authority condoned Officer Aldridge’s alleged conduct or her bases for it. Instead, Plaintiff merely alleges that the City “took no action regarding ALDRIDGE’S misconduct,” Dkt. 1 at 6, and argues that such a failure to reprimand supports a theory of ratification. Dkt. 11 at 11-12 (citing Gomez v. Vernon, 255 F.3d 1118 (9th Cir. 2001); Christie v. Iopa, 176 F.3d 1231 (9th Cir. 1999); Henry v. Cty. of Shasta, 132 F.3d 512, 518 (9th Cir. 1997), opinion amended on denial of reh’g, 137 F.3d 1372 (9th Cir. 1998)). However, in each case Plaintiff cites for his position, potential municipal liability was premised on a failure to discipline plus either the approving conduct of a policy-maker or a pattern of similar constitutional violations following notice to the municipality. See Gomez, 255 F.3d 1118; Christie, 176 F.3d 1231; Henry, 132 F.3d 512.

As stated in Henry, “[w]hen a county continues to turn a blind eye to severe violations of inmates’ constitutional rights—despite having received notice of such violations—a rational fact finder may properly infer the existence of a previous policy or custom of deliberate indifference.” 137 F.3d at 1372 (emphasis added). Plaintiff has failed to allege actions by the City suggesting that anyone ratified Officer Aldridge’s conduct. He was released on the City’s own motion after his first arrest. Dkt. 1 at 4. He was immediately returned to his home, prior to even arriving at jail, when officers discovered that his second arrest was a mistake. Dkt. 1 at 4-5. Also, Plaintiff has alleged no pattern of similar constitutional violations or any constitutional deprivation that occurred after he filed a complaint with the City. The alleged conduct of Officer A1-dridge and the City’s failure to reprimand, without more, cannot support a theory of municipal liability under § 1983.

Therefore, the Court dismisses Plaintiffs § 1983 claims against the City. Nonetheless, the Court must dismiss the claims without prejudice and grant Plaintiff leave to amend his complaint to allege a practice, policy, or custom that was the moving force behind a deprivation of his constitutional rights. See AE ex rel. Hernandez, 666 F.3d at 637.

C. Criminal Records Privacy Act Claim

The Criminal Records Privacy Act (the “CRPA”) generally prohibits the retention or mechanical reproduction of “nonconviction data” by any person other than the subject of the record. RCW 10.97.080. It also prohibits criminal justice agencies from disseminating “criminal history record information” unless the record also states the disposition of the charge when the request for information was made. RCW 10.97.040.

“Nonconviction data,” is defined as:

[A]ll criminal history record information relating to an incident which has not led to a conviction or other disposition adverse to the subject, and for which proceedings are no longer actively pending.

RCW 10.97.030(8) (emphasis added). “Criminal history record information” is defined as:

[A]ny information contained in records maintained by or obtained from criminal justice agencies, other than courts, which records provide individual identification of a person together with any portion of the individual’s record of involvement in the criminal justice system as an alleged or convicted offender, except ... [^Intelligence, analytical, or investigative reports and files.

RCW 10.97.030(4), (4)(h). The CRPA creates a civil cause of action for damages and injunctive relief for violations thereof. RCW 10.97.110.

Defendants do not argue that the alleged dissemination of records describing the investigation and arrest of Plaintiff was properly made under RCW 10.97.070(1) or some provision of RCW 10.97.050. Instead, Defendants argue that under RCW 10.97.030(4)(b), the police reports are not “criminal history record information” and are therefore not subject to the rules set forth in the CRPA for proper dissemination. Dkt. 9 at 11-13.

Without examining the reports themselves, the Court cannot be certain that they do not contain nonconviction data. The Washington Supreme Court has “held that when a party requests a mix of data with both nonconviction and other information, the nonconvietion data should be redacted and the remainder produced.” Sargent v. Seattle Police Dep’t, 179 Wash.2d 376, 400, 314 P.3d 1093 (2013) (citing Bainbridge Island Police Guild v. City of Puyallup, 172 Wash.2d 398, 421-24, 259 P.3d 190 (2011)). Plaintiff has sufficiently alleged that the police records disseminated by Defendants included nonconviction data and unredacted personal identifiers. Dkt. 1 at 6. He also alleges that (1) the City failed to make necessary inquiries to the Washington State Patrol prior to dissemination and (2) the disseminated records did not include the disposition of the charges against him. Dkt. 1 at 9-10.

Defendants indicate that Bainbridge Island Police Guild was decided prior to the 2012 amendment of RCW 10.97.030, which now expressly excludes “intelligence, analytical, or investigative reports and files” from the definition of “criminal history record information.” Dkt. 9 at 13 (citing Laws of 2012, ch, 125, § 1, codified as amended at RCW 10,97.030(4)(h); House Bill Report, ESB 6296). They argue that RCW 10.97.030(4)(h) now renders police incident reports and any information therein exempt from the CRPA’s limitations on the dissemination of nonconviction data. Id. However, when deciding Bain-bridge Island Police Guild, the Washington Supreme Court interpreted the CRPA consistently with the definition of “criminal history record information” set forth in RCW 43.43.705. Under Bainbridge Island Police Guild, the exact same language now found in RCW 10.97.030(4)(h) was already imputed to the CRPA’s definition of “criminal history record information.” Bainbridge Island Police Guild, 172 Wash.2d at 423, 259 P.3d 190. Therefore, the rule in Bainbridge Island Police Guild remains unaffected by the 2012 amendment to RCW 10.97.030; investigative records can be reproduced and maintained, but any nonconviction data therein must be redacted pursuant to the CRPA. 172 Wn.2d 421-24.

Because investigative reports can include nonconviction data that must be redacted, the Court denies Defendants’ motion to dismiss the CRPA claims.

D. Punitive Damages

Defendants also move to dismiss several of Plaintiffs requests for punitive damages. Dkt. 9 at 9. The City argues that punitive damages are not available against the City on Plaintiffs § 1983 claims. Id. at 9-10. Defendants also argue that punitive damages are not available for Plaintiffs state law claims. Id. at 10-11. In a § 1983 action, punitive damages against a municipality are unavailable as a matter of law. Hofschneider v. City of Vancouver, 3:15-CV-05903-RBL, 182 F.Supp.3d 1145, 1154-55, 2016 WL 1597117, at *7 (W.D. Wash. Apr. 21, 2016); Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 524 (9th Cir. 1999) (citing City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981)). Also, punitive damages are not permitted under Washington law unless expressly authorized by statute. Dailey v. N. Coast Life Ins. Co., 129 Wash.2d 572, 575, 919 P.2d 589 (1996).

Plaintiff agrees that punitive damages are unavailable on his § 1983 claim against the City. Dkt. 11 at 12. Plaintiff fails to address Defendants’ argument to dismiss his requests for punitive damages on the state law claims. Plaintiffs response simply states: “Plaintiff is not seeking punitive damages against the City. Instead, it [sic] is seeking punitive damages against Officer Aldridge on its [sic] federal claims.” Id.

The Court accepts Plaintiffs admission that punitive damages are unavailable against the City under § 1983. The Court also considers Plaintiffs failure to file opposition to Defendants’ motion to dismiss requests for punitive damages on state law claims as an admission that the motion has merit. See Local Rules W.D. Wash. LCR 7(b)(2). Accordingly, the Court dismisses Plaintiffs requests for punitive damages under his state law claims. See Dkt. 1 at 8-9. The Court also dismisses Plaintiffs requests for punitive damages against the City under his § 1983 claims. See Dkt. 1 at 7-8.

IV. ORDER

Therefore, it is hereby ORDERED that Defendants’ motion to dismiss (Dkt. 9) is GRANTED in part and DENIED in part as follows:

1. Defendants’ motion to dismiss is GRANTED as to Plaintiffs § 1983 claims against the City. Those claims are DISMISSED without prejudice.
2. Defendants’ motion to dismiss certain requests for punitive damages is GRANTED. Plaintiffs requests for punitive damages on (1) his § 1983 claims against the City and (2) his state law claims are DISMISSED with prejudice.
3. Plaintiff is GRANTED leave to amend his complaint to properly allege § 1983 claims against the City.
4. Defendants’ motion to dismiss is DENIED on the CRPA claims. 
      
      . Defendants have not asserted that any of Plaintiff's § 1983 claims fail to adequately allege an underlying constitutional deprivation. Instead, the City only asserts that Plaintiff fails to plead sufficient facts to support a theory of municipal liability under § 1983. Accordingly, the Court will not assess whether Plaintiff has stated any underlying deprivations, whether Officer Aldridge is entitled to qualified immunity based on the facts stated in the complaint, or whether Plaintiff has standing to assert a First Amendment right associated with the publication and maintenance of “Garrett’s Voice.”
     
      
      . Plaintiff does allege that Officer Aldridge subsequently violated Washington’s Criminal Records Privacy Act; but the subsequent violation of a state law is insufficient to suggest that the City’s failure to reprimand was deliberately indifferent to potential future violations of Plaintiff's constitutional rights.
     
      
      . The Court notes that, if amendment cannot be done at this time, this order will not prevent Plaintiff from amending his complaint at a later time under Fed. R. Civ. P. 15.
     