Katherine Whitney v. City of Tacoma ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHERINE LOUISE WHITNEY, No. 20-35106
Plaintiff-Appellant, D.C. No. 3:19-cv-05582-BHS
v.
MEMORANDUM*
CITY OF TACOMA, a municipal entity; et
al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted October 14, 2021**
San Francisco, California
Before: O’SCANNLAIN, FERNANDEZ, and SILVERMAN, Circuit Judges.
Whitney appeals the district court’s order dismissing her claims brought
pursuant to 42 U.S.C. § 1983 against several state and local government officials in
Washington State, and several employees of Share & Care House, a private, non-
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
profit organization that helps to administer rental assistance programs for the
disabled in Pierce County. Whitney maintains that the named defendants violated
her Fourth, Fifth, and Fourteenth Amendment rights. Because the facts are known
to the parties, we repeat them only as necessary to explain our decision.
I
In general, to prevail on a § 1983 claim, Whitney must show “(1) that the
conduct complained of was committed by a person acting under color of state law;
and, (2) that this conduct deprived [her] of rights, privileges, or immunities secured
by the Constitution or laws of the United States.” Pistor v. Garcia, 791 F.3d 1104,
1114 (9th Cir. 2015) (quoting Evans v. McKay, 869 F.2d 1341, 1347 (9th Cir.
1989)).
Whitney brings claims against the City of Tacoma; Cheryl Strange, the
Secretary of Washington’s Department of Social and Health Services (“DSHS”);
Pierce County officials Sherriff Paul Pastor, Deputy Sherriff Darryl Shuey, and
Social Services Specialist Jeffrey Rodgers; and Share & Care House employees
Charlene Hamblen, Taffi Wheeldon, and Misty Fitzsimmons. We address her
claims against each separately represented Appellee in turn.
A
To establish a § 1983 claim against a municipal government, Whitney must
show “(1) that [she] possessed a constitutional right of which [she] was deprived;
2
(2) that the municipality had a policy; (3) that this policy ‘amounts to deliberate
indifference’ to [her] constitutional right; and (4) that the policy is the ‘moving
force behind the violation.’” Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992)
(quoting City of Canton v. Harris, 489 U.S. 378, 389 (1989)).
Whitney’s pleadings made no allegations of any kind regarding the City of
Tacoma or any of its officials or employees. Accordingly, the district court
properly dismissed Whitney’s claims against the City of Tacoma.
B
Under § 1983, Strange may only be liable for her own individual actions, not
those of her subordinates or of other parties. See Jones v. Williams, 297 F.3d 930,
934 (9th Cir. 2002). Whitney’s pleadings do not allege any actual conduct by
Strange, however, such that there is no basis for Whitney to proceed against her.
Moreover, as a Washington State official, Strange is immune from suit for
damages in her official capacity. See Will v. Michigan Dep’t of State Police, 491
U.S. 58, 71 (1989); Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007).
C
1
Whitney added Sherriff Paul Pastor as a defendant in her amended
complaint, but her pleadings make no mention of him whatsoever. Similarly,
neither of Whitney’s pleadings allege any affirmative act by Social Services
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Specialist Jeff Rodgers. She has no basis for a § 1983 claim against either of them.
See Jones, 297 F.3d at 934.
2
Whitney alleges that Shuey failed to protect her from an assault at the hands
of her roommate. There is no cognizable obligation under the Fourteenth
Amendment or any other constitutional provision, however, for a law enforcement
officer to protect an individual from harm by a private party. The Due Process
Clause does not “require[] the State to protect the life, liberty, and property of its
citizens against invasion by private actors.” DeShaney v. Winnebago Cty. Dep’t of
Soc. Servs., 489 U.S. 189, 195 (1989); Patel v. Kent Sch. Dist., 648 F.3d 965, 971
(9th Cir. 2011) (citing Morgan v. Gonzales, 495 F.3d 1084, 1093 (9th Cir.2007)).
There are only two exceptions: (1) the “special relationship” exception,
which applies when an officer “takes a person into . . . custody and holds him there
against his will,” and, (2) the “state-created danger” exception, which applies
where the officer affirmatively places a person in danger by acting with deliberate
indifference to a known or obvious danger. Patel, 648 F.3d at 971–72.
Neither exception applies here. Whitney was never taken into custody.
Moreover, she does not allege that Shuey acted with deliberate indifference to
expose her to a known or obvious danger—on the contrary, she alleges that Shuey
explicitly stated that he perceived “no danger.” Accordingly, the district court
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properly dismissed Whitney’s § 1983 claims against Shuey.
D
Whitney alleges that Hamblen, Wheeldon, and Fitzsimmons referred her to a
housing unit ostensibly run by a woman who subsequently assaulted her, and that
they failed to help her secure new housing even after she reported that the woman
had threatened her. Although Share & Care House contracts with DSHS to
administer the Housing and Essential Needs program, from which Whitney
received assistance, Share & Care House and its employees remain private actors,
and Whitney does not allege that DSHS, or any other government agency,
somehow encouraged, participated in, or coerced the conduct that she attributes to
Hamblen, Wheeldon, and Fitzsimmons. See Pasadena Republican Club v. W. Just.
Ctr., 985 F.3d 1161, 1167 (9th Cir. 2021).
In any event, Whitney’s allegations with respect to Hamblen, Wheeldon, and
Fitzsimmons ultimately amount to negligence, which does not state a violation of
the Fourteenth Amendment or any other constitutional provision. OSU Student
Alliance v. Ray, 699 F.3d 1053, 1078 (9th Cir. 2012) (citing Daniels v. Williams,
474 U.S. 327, 328 (1986); see also Pauluk v. Savage, 836 F.3d 1117, 1122 (9th
Cir. 2016) (“The general rule is that a state actor is not liable under the Due
Process Clause for its omissions.” (internal citation and quotation marks omitted)).
Accordingly, the district court properly dismissed Whitney’s claims against
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Hamblen, Wheeldon, and Fitzsimmons.
II
Despite the Magistrate Judge’s detailed explanation as to why the initial
complaint was inadequate, Whitney’s amended complaint failed to cure any of the
identified deficiencies and contained far fewer facts. Moreover, Whitney cannot
amend her pleadings to state a viable claim because her allegations with respect to
the named defendants ultimately amount to negligence, which does not state a
constitutional violation that is actionable under § 1983. See OSU Student Alliance,
699 F.3d at 1078; Patel, 648 F.3d at 971–72. Accordingly, the district court did
not abuse its discretion in denying further leave to amend because any such leave
would be futile.1
AFFIRMED.
1
Whitney’s motion for a ruling, filed with this court on May 7, 2021, is DENIED
as moot.
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