Kimberly Tubbs v. Henry Gohrman , 539 F. App'x 788 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 29 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KIMBERLY A. TUBBS, No. 12-35414
Plaintiff - Appellant, D.C. No. 2:11-cv-00749-JLR
v.
MEMORANDUM*
HENRY SONNY GOHRMAN; JANE
DOE GOHRMAN, and the marital
community composed thereof;
SNOHOMISH COUNTY, a municipal
corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Submitted August 27, 2013**
Seattle, Washington
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: McKEOWN and CLIFTON, Circuit Judges, and RAKOFF, Senior District
Judge.***
The Estate of Daniel Wasilchen, Virginia B. Vukasin, and Kimberly A.
Tubbs (collectively, “the Estate”) appeal from the district court’s summary
judgment in favor of Snohomish County and Henry “Sonny” Gohrman, the
County’s Noxious Weed Coordinator, on their 42 U.S.C. § 1983 and state law
claims. Because the parties are familiar with the facts, we do not repeat them here.
We have jurisdiction under 28 U.S.C. § 1291, review de novo, and may affirm the
district court on any basis supported by the record. United States v. Choudhry, 461
F.3d 1097, 1100 (9th Cir. 2006).
The Estate’s state-created danger claim under the Fourteenth Amendment
fails because Gohrman did not affirmatively place Wasilchen in danger, nor did he
act with deliberate indifference to a “known or obvious danger” to Wasilchen.
Kennedy v. City of Ridgefield, 439 F.3d 1055, 1062 (9th Cir. 2006) (internal
quotation marks and citation omitted). Construing the factual disputes to favor the
Estate, as we must, the danger to Wasilchen’s bodily security arose not from the
mere fact of Gohrman’s return with law enforcement, but from Wasilchen’s arming
himself, aiming at Gohrman, and refusing to drop his weapon as ordered by law
***
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
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enforcement. Wasilchen’s warning to Gohrman that Wasilchen would shoot
Gohrman if Gohrman returned does not render Wasilchen’s injury the result of
state-created danger. Wasilchen himself created the dangerous situation; the state
did not create or expose Wasilchen to danger which he “would not have otherwise
faced.” Id. at 1061. For the same reason, the Estate cannot establish the
“deliberate indifference” necessary to succeed on its claim that Gohrman violated
appellant Vukasin’s Fourteenth Amendment liberty interest in Wasilchen’s
companionship. See Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010).
The Fourth Amendment claims based on the provocation doctrine also fail.
The Estate has not shown a triable issue that Gohrman committed any
“independent Fourth Amendment violation.” Billington v. Smith, 292 F.3d 1177,
1189 (9th Cir. 2002) (“[W]here an officer intentionally or recklessly provokes a
violent confrontation, if the provocation is an independent Fourth Amendment
violation, he may be held liable for his otherwise defensive use of deadly force.”).
To begin, Gohrman did not violate the Fourth Amendment by returning to
Wasilchen’s residence and parking his vehicle beside the highway, on what the
Estate characterizes as Wasilchen’s “driveway.” No reasonable juror could find
objectively reasonable Wasilchen’s subjective expectation of privacy in the area,
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which was County property and as to which Wasilchen had made no effort to
prevent public access. See generally United States v. Dunn, 480 U.S. 294 (1987).
Next, Gohrman’s first encounter with Wasilchen was not an unreasonable
“investigatory stop” in violation of the Fourth Amendment. An investigatory stop
requires actual submission to a state official’s assertion of authority. United States
v. Caseres, 533 F.3d 1064, 1069 (9th Cir. 2008) (citing Florida v. Bostick, 501
U.S. 429, 436–37 (1991)). The Estate concedes that no such submission occurred
here.
Finally, Gohrman’s actions did not “set[] in motion a series of acts by
others” that Gohrman knew or reasonably should have known would cause Deputy
Rasar to shoot Wasilchen. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
The Estate does not allege excessive force or any wrongdoing by Deputy Rasar.
Even assuming arguendo that the shooting could be considered an unconstitutional
Fourth Amendment seizure if Gohrman engineered it by conveying “deliberate
falsehoods” to law enforcement, the many subsequent, intervening events,
including Wasilchen’s imminent threat to Gohrman’s life, distinguish this case
from others where state action has given rise to a foreseeable risk of constitutional
injury. Cf. Alexander v. City & Cnty. of San Francisco, 29 F.3d 1355 (9th Cir.
1994) (concluding that officers’ actions gave rise to foreseeable risk of
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constitutional injury where officers violated the Fourth Amendment by
unreasonably storming the decedent’s house without a warrant).
Because there were no constitutional violations, the County has no
municipal liability, see Tatum v. City & Cnty. of San Francisco, 441 F.3d 1090,
1100 (9th Cir. 2006), and we need not address the Estate’s arguments regarding
qualified immunity. The Estate’s negligence claim and Vukasin’s wrongful death
claim fail on the same proximate cause grounds as the state-created danger and
deliberate falsehood theories. See Cook v. Seidenverg, 217 P.2d 799, 802 (Wash.
1950) (“There can be no liability for an act of negligence unless such act was the
proximate cause of the injury.”); RCW § 4.20.010 (recognizing cause of action for
wrongful death where “the death of a person is caused by the wrongful act, neglect,
or default of another”) (emphasis added).
AFFIRMED.
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