Haywood v. State of Washington Department of Labor & Industries et al, No. 3:2023cv05919 - Document 29 (W.D. Wash. 2024)

Court Description: ORDER granting 15 Defendant's Motion to Dismiss for Failure to State a Claim. Signed by Judge Robert J. Bryan. (JL)

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Haywood v. State of Washington Department of Labor & Industries et al Doc. 29 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 CHRISTOPHER AARON HOUSE OF HAYWOOD, 12 13 14 15 16 17 18 Plaintiff, v. CASE NO. 23-cv-5919 RJB ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES, JOEL SACKS, Director, ELIZABETH SMITH, Deputy Director also known as Liz Smith, JENNIFER MYERS, Internal Auditor, STEVE REINMUTH, Field Services and Public Safety, BRIAN HORNBACK, Deputy, Defendants. 19 20 21 This matter comes before the Court on the Defendants’ Motion to Dismiss. Dkt. 15. The Court has considered the pleadings filed regarding the motion and the remaining record. 22 On October 11, 2023, the Plaintiff, pro se, filed this case against Defendants Washington 23 State Department of Labor and Industries (“Department of Labor”) and certain of its officers and 24 employees (collectively “State” or “Defendants”) alleging improper treatment of the Plaintiff’s ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 1 Dockets.Justia.com 1 heating, ventilation, and air conditioning (“HVAC”) license. Dkt. 1. The Plaintiff references 2 various federal criminal statutes, the “Clayton Act,” 42 U.S.C. § 1983, 42 U.S.C. § 1985, a 3 “trespass on rights, liberty, and pursuit of happiness,” fraud, and theft. Dkt. 13 at 6. He seeks 4 $15,000,000 in damages. Id. The Defendants now move for dismissal of the case without leave to amend. Dkt. 15. 5 6 The Plaintiff’s response, entitled “Answer to Motion to Dismiss Amended Claim and More 7 Definite Statement in Support of Amended Claim” (Dkt. 16) should be construed as a response 8 to the motion to dismiss, a motion for leave to file a second amended complaint and a proposed 9 second amended complaint. For the reasons provided below, the Defendants’ motion to dismiss 10 (Dkt. 15) should be granted and the Plaintiff’s motion for leave to file a second amended 11 complaint (Dkt. 16) should be denied. This case should be closed. 12 I. 13 FACTS The Plaintiff’s Amended Complaint (Dkt. 13) is difficult to follow as is the Plaintiff’s 14 response/motion to amend the Amended Complaint/proposed second amended complaint (Dkt. 15 16). Both pleadings provide a lengthy chronology, beginning in 1992, of the Plaintiff’s 16 education and work history as a major appliance repairman and HVAC technician. Dkts. 13 and 17 16. 18 By way of background, the Plaintiff contends that after being unable to meet various state 19 HVAC licensing requirements, he moved to Colorado in 2005. Dkts. 13 at 7 and 16. He 20 maintains that after returning to Washington, in 2007, the State forced him to pick between being 21 a major appliance repairman or an HVAC technician. Id. at 8. The Plaintiff alleges that he 22 failed the State’s HVAC licensing “fraudulent” test three times, but eventually passed it. Id. 23 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 2 1 In December 2022, fifteen years later, the Plaintiff acknowledges that he was “slightly 2 late renewing licenses.” Dkt. 13 at 8 and 16. He alleges that he completed all required updated 3 electrical courses in January of 2023 and then attempted to pay his license renewal fees with the 4 State. Id. The Plaintiff contends that he was “denied because the online electrical update course 5 center [had] not updated [the State] because [he] did not pay an expedited notification fee.” Id. 6 In April or May of 2023, the Plaintiff alleges that he attempted to obtain a permit for a 7 large HVAC job. Dkt. 13 at 9. He maintains that he was informed that his license was 8 suspended and lost the job. Id. The Plaintiff contends that when he contacted the State, he was 9 notified that his failure to pay his licensing fee resulted in his license being suspended. Id. He 10 asserts that he indicated that he was willing to pay an additional fee but was required to retake 11 the tests. Id. He asserts that “once again [he] experiences the test to be a fraud and weapon of 12 punishment” because he only passed two of the four tests. Id. The Plaintiff maintains that due to 13 having a suspended license, he has lost work. Id. He contends that because of the State’s 14 actions, he lost homes, vehicles, and experienced other financial damage. Dkts. 13 at 4-5 and 16. 15 The Defendants now move to dismiss the case, pursuant to Fed. R. Civ. P. 12(b)(1)-(2) 16 for lack of jurisdiction and 12(b)(6) for failure to state a claim. Dkt. 15. The Defendants 17 contend that (1) this case is barred by the abstention doctrine announced in Younger v. Harris, 18 401 U.S. 37 (1971), (2) that they are immune from suit pursuant to the Eleventh Amendment of 19 the U.S. Constitution, (3) neither the Department of Labor or its employees, sued in their official 20 capacities, are persons for purposes of claims brought pursuant to 42 U.S.C. § 1983 and so those 21 claims should be dismissed, and (4) the Plaintiff failed to comply with Washington’s tort claims 22 reporting process under RCW 4.92, et. seq. and so the state claims should be dismissed. Dkt. 15. 23 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 3 1 The Plaintiff opposes the motion. Dkt. 16. Incorporated in his responding argument, the 2 Plaintiff adds allegations and appears to submit a proposed second amended complaint. Id. 3 Even considering allegations made in all the Plaintiff’s pleadings, the Defendants’ motion to 4 dismiss (Dkt. 15) should be granted and, to the extent he makes one, the Plaintiff’s motion to 5 amend the Amended Complaint (Dkt. 16) should be denied. 6 7 8 9 II. DISCUSSION A. STANDARDS ON MOTION TO DISMISS AND ON MOTION TO AMEND Under Fed. R. Civ. P. 12(b)(1), a complaint must be dismissed if, considering the factual allegations in the light most favorable to the plaintiff, the action: (1) does not arise under the 10 Constitution, laws, or treaties of the United States, or does not fall within one of the other 11 enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or 12 controversy within the meaning of the Constitution; or (3) is not one described by any 13 jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); D.G. Rung Indus., Inc. v. 14 Tinnerman, 626 F. Supp. 1062, 1063 (W.D. Wash. 1986); see 28 U.S.C. § 1331 (federal question 15 jurisdiction), 28 U.S.C. § 1332 (diversity of citizenship jurisdiction). A federal court is 16 presumed to lack subject matter jurisdiction until plaintiff establishes otherwise. Kokkonen v. 17 Guardian Life Ins. Co. of America, 511 U.S. 375 (1994); Stock West, Inc. v. Confederated 18 Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). 19 Fed. R. Civ. P. 12(b)(6) motions to dismiss may be based on either the lack of a 20 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. 21 Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are 22 taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 23 F.2d 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 4 1 does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his 2 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the 3 elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 4 (2007)(internal citations omitted). “Factual allegations must be enough to raise a right to relief 5 above the speculative level . . . on the assumption that all the allegations in the complaint are true 6 (even if doubtful in fact).” Id. Plaintiffs must allege “enough facts to state a claim to relief that 7 is plausible on its face.” Id. at 556. 8 Pursuant to Fed. R. Civ. P. 15(a)(2), “a party may amend its pleading only with the 9 opposing party’s written consent or the court’s leave. The court should freely give leave when 10 justice so requires.” A motion to amend under Rule 15(a)(2), “generally shall be denied only 11 upon showing of bad faith, undue delay, futility, or undue prejudice to the opposing party.” 12 Chudacoff v. University Medical Center of Southern Nevada, 649 F.3d 1143, 1152 (9th Cir. 13 2011). 14 Additionally, “a complaint filed by a pro se litigant, however inartfully pleaded, must be 15 held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 16 551 U.S. 89, 94 (2007). As such, courts must give pro se litigants notice of deficiencies in their 17 complaint and an opportunity to amend unless it is “absolutely clear that the deficiencies of the 18 complaint cannot be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 19 2007). 20 21 B. YOUNGER ABSTENTION Absent exceptional circumstances, federal courts should not enjoin pending state 22 proceedings. Younger v. Harris, 401 U.S. 37 (1971). Although Younger itself involved potential 23 interference with a state criminal case by a federal court, the Supreme Court has extended the 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 5 1 doctrine to federal cases that would interfere with state civil cases and state administrative 2 proceedings, but “as virtually all cases discussing Younger abstention emphasize,” abstention is 3 the exception, not the rule. San Jose Silicon Valley Chamber of Commerce Political Action 4 Comm. v. City of San Jose, 546 F.3d 1087, 1091–92 (9th Cir. 2008). A federal court should 5 abstain from exercising jurisdiction over a case under Younger when: “(1) there is an ongoing 6 state judicial proceeding; (2) the proceeding implicates important state interests; (3) there is an 7 adequate opportunity in the state proceedings to raise constitutional challenges; and (4) the 8 requested relief seeks to enjoin or has the practical effect of enjoining the ongoing state judicial 9 proceeding.” Arevalo v. Hennessy, 882 F.3d 763, 765 (9th Cir. 2018). Where all the Younger 10 abstention elements are met, a district court must abstain from hearing the case and dismiss the 11 action. Beltran v. State of Cal., 871 F.2d 777, 782 (9th Cir. 1988). 12 To the extent the Plaintiff bases his claims on the State’s suspension of his license, 13 Younger abstention is proper here. The first element, “ongoing state judicial proceedings,” is 14 met. According to the Amended Complaint, the State suspended the Plaintiff’s license for failure 15 to comply with the necessary requirements to retain an active license. Dkt. 13. The Amended 16 Complaint does not address whether the Plaintiff has availed himself of the appeals process. 17 Ongoing state administrative proceedings, like the one here, are entitled to the federal court’s 18 abstention under Younger if the other elements are met. Kenneally v. Lungren, 967 F.2d 329, 19 331 (9th Cir. 1992). 20 As to the Younger second element, the importance of the state’s interest, courts “look to . 21 . . the importance of the general proceedings to the State.” New Orleans Pub. Serv., Inc. v. 22 Council of City of New Orleans, 491 U.S. 350, 365 (1989). The State has an interest in ensuring 23 professionals are qualified for their work to protect the public. See Middlesex Cnty. Ethics 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 6 1 Comm. v. Garden State Bar Ass'n, 457 U.S. 423, 434 (1982). The State’s licensing process for 2 HVAC technicians is directly connected to ensuring that state interest. The second element is 3 met. 4 The third Younger element, whether there is an adequate opportunity in the state 5 proceedings to raise constitutional challenges is met. Under Washington’s Administrative 6 Procedures Act (“APA”), administrative decisions may be appealed first within the agency and 7 then to the Washington courts. See generally, RCW 34.05, et. seq. The Plaintiff fails to show 8 that Washington’s APA and its judicial review process does not apply. The ability to raise 9 constitutional claims through state judicial review of the administrative proceedings suffices to 10 11 meet the requirements of the third Younger element. Kenneally at 332. The fourth Younger element, that “the requested relief seeks to enjoin or has the practical 12 effect of enjoining the ongoing state judicial proceeding,” is also met. To receive the damages 13 the Plaintiff seeks, he must first show that the decision to suspend his license was in error. That 14 would have the practical effect of enjoining the ongoing state proceedings. 15 There is no showing of bad faith or harassing prosecution on the part of the state. The 16 Court should abstain from deciding the Plaintiffs claims related to the suspension of his license 17 under Younger. 18 In response to the Defendants’ argument that the Court should abstain from deciding this 19 case under Younger, the Plaintiff argues that Younger does not apply because “Younger is a U.S. 20 citizen and subject to its jurisdiction.” Dkt. 16 at 8. The Plaintiff contends that he “is not a 21 citizen” but “an American State National, Washingtonian outside the STATE OF 22 WASHINGTON, and enjoys diplomatic immunity under the foreign sovereign immunities act, 23 Title 28, USC 1602, et. seq.” Id. at 2. He maintains that he is “outside the jurisdiction of the 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 7 1 STATE OF WASHINGTON,” “secures all commercial rights to himself, or his legal fiction, . . . 2 and all natural rights to himself . . .” Id. The record indicates that the Plaintiff resides in Gig 3 Harbor, Washington and the Plaintiff’s Amended Complaint states that he has lived in 4 Washington since at least 2007. Dkt. 13. 5 The Plaintiff’s assertions, that he is not a “citizen,” is an “American State National,” not 6 subject to the jurisdiction of the state of Washington, that he has diplomatic immunity, and other 7 similar contentions are frivolous, irrational and without merit. While the Plaintiff does not 8 expressly claim to be a sovereign citizen, his theories are substantially similar. Claims based on 9 sovereign citizen arguments and ideology are frivolous and courts reject similar contentions 10 11 without extended argument. See United States v. Ward, 182 F.3d 930 (9th Cir. 1999). The Plaintiff’s arguments fail to provide a ground to reject the Defendants’ argument 12 that, under Younger, the Court should abstain from review of the Plaintiff’s claims relating to the 13 decision to suspend his license. The Plaintiff’s attempt to amend his Amended Complaint does 14 not change the result-such amendment would be futile. 15 16 C. ELEVENTH AMENDMENT IMMUNITY Further, even if Younger abstention did not apply, the Plaintiff’s damages claims 17 (whether based on state or federal law) against the Department of Labor and its employees in 18 their official capacities should be dismissed without leave to amend. 19 “The Eleventh Amendment has been authoritatively construed to deprive federal courts 20 of jurisdiction over suits by private parties against unconsenting States.” Seven Up Pete Venture 21 v. Schweitzer, 523 F.3d 948, 953 (9th Cir. 2008). There is no evidence that Washington, its 22 agencies, or officers have consented to such a suit for damages and are, accordingly, immune 23 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 8 1 from suits of this kind brought in federal courts. Pittman v. Oregon Employment Dept., 509 F.3d 2 1065, 1071 (9th Cir. 2007)(internal quotations omitted). 3 The Plaintiff asserts various claims in his Amended Complaint and seeks damages as 4 relief. To the extent the Plaintiff asserts damage claims against the Department of Labor and its 5 employees, in their official capacities, those claims should be dismissed for lack of jurisdiction. 6 Amendment of the Amended Complaint would be futile. These Defendants are entitled to a 7 judgment as a matter of law on this issue. 8 9 10 D. FEDERAL CLAIMS 1. Section 1983 Generally To state a claim under 42 U.S.C. § 1983, a complaint must allege that (1) the conduct 11 complained of was committed by a person acting under color of state law, and that (2) the 12 conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws 13 of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled on other grounds, 14 Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the appropriate avenue to remedy an 15 alleged wrong only if both of these elements are present. Haygood v. Younger, 769 F.2d 1350, 16 1354 (9th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). 17 2. Section 1983 Claims Asserted Against the Department of Labor or State Employees in their Official Capacities 18 Even if the damages claims against the Department of Labor and its employees, acting in 19 their official capacities, were not barred by the Eleventh Amendment, the Plaintiff’s § 1983 20 based claims against them should still be dismissed. 21 States, state agencies, and officials acting in their official capacities are not “persons” and 22 so are not subject to a suit for monetary relief under § 1983. Will v. Mich. Dep't of State Police, 23 491 U.S. 58, 71 (1989)(holding that “neither a State nor its officials acting in their official 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 9 1 capacities are ‘persons’ under § 1983”); Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2 2004)(noting that state agencies are not “persons” for purposes of § 1983 and are therefore not 3 amenable to suit under that statute). 4 The Defendants’ motion to dismiss all § 1983 claims for damages asserted against the 5 Department of Labor and all individual Defendants in their official capacities, to the extent such 6 claims are made, (Dkt. 15) should be granted because these parties are not “people” for purposes 7 of § 1983. These Defendants are entitled to a judgment as a matter of law. The § 1983 claims 8 for damages asserted against the Department of Labor, and the individually named Defendants, 9 in their official capacities, should be dismissed with prejudice. Amendment of the Amended 10 Complaint would not change the result. Leave to amend should be denied as futile. 11 3. Section 1983 Claims Asserted Against State Employees in their Individual Capacities 12 To state a civil rights claim, a plaintiff must set forth the specific factual bases upon 13 which he claims each defendant is liable. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 14 1980). Vague and conclusory allegations of official participation in civil rights violations are not 15 sufficient to support a claim under § 1983. Ivey v. Bd. of Regents, 673 F.2d 266 (9th Cir. 1982). 16 The Court is unable to glean from the Amended Complaint (Dkt. 13) or from the 17 additional allegations asserted in the Plaintiff’s response/motion for leave to amend the Amended 18 Complaint/proposed second amended complaint (Dkt. 16) how the individual employee 19 Defendants relate to the Plaintiff’s claims. Aside from the captions, neither the Amended 20 Complaint (Dkt. 13) nor the response/motion to amend/proposed second amended complaint 21 (Dkt. 16) name any of the individual Defendants or describe how they participated in a 22 deprivation of the Plaintiff’s federal constitutional or statutory rights. 23 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 10 1 Federal Constitution. The Amended Complaint (Dkt. 13) and response/motion to 2 amend/proposed second amended complaint (Dkt. 16) do not identify any cognizable 3 constitutional right that was violated by the individual defendants acting in their individual 4 capacities. 5 Federal Statutes. Other than the general reference to the “Clayton Act,” in the Amended 6 Complaint, the Plaintiff does not refer to any other federal civil statute which could be a source 7 of substantive federal rights in either the Amended Complaint (Dkt. 13) or in the 8 response/motion to amend/proposed second amended complaint (Dkt. 16). The Plaintiff’s 9 Clayton Act claim is addressed below in Section II.D.5. 10 The Plaintiff invokes a series of federal criminal statutes, including, 18 U.S.C. §§ 241, 11 242, 247, 1341, 1661, 1951 and 19931. Dkts. 13 and 16. To the extent that the Plaintiff attempts 12 to assert claims against the individual Defendants based on criminal statutes, those claims should 13 be dismissed. Private civil causes of action are rarely implied under criminal statutes. Abcarian 14 v. Levine, 972 F.3d 1019, 1026 (9th 2020). The Plaintiff makes no showing that any of the 15 federal criminal statutes he cites impliedly contain private rights of action. Further, courts have 16 concluded that there is no basis for civil liability under these criminal statutes. Aldabe v. Aldabe, 17 616 F.2d 1089, 1092 (9th Cir. 1980)(no private right of action or basis of civil liability under 18 18 U.S.C. §§ 241, 242); Sordean v. United States, 1995 WL 86548, at *2 (N.D. Cal. Feb. 24, 19 1995)(no private right of action or civil liability under 18 U.S.C. § 247); Ross v. Orange Cty. Bar 20 Ass'n, 369 Fed. Appx. 868, 869 (9th Cir. 2010)(no private right of action or civil liability under 21 18 U.S.C. § 1341); Partin v. Gevatoski, 2020 WL 4587386, at *3 (D. Or. Aug. 10, 2020)(no 22 23 24 1 This statute, 42 U.S.C. § 1993, enumerating a series of prohibited acts involving mass transportation, was repealed in 2006. Pub. L. 109-177, Title I, § 110(a), March 9, 2006, 120 Stat. 205. It does not conceivably apply. ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 11 1 private right of action under 18 U.S.C. § 1661); Abcarian at 1026 (no private right of action 2 under 18 U.S.C. § 1951). 3 4. Section 1985 Claims 4 The Plaintiff references 42 U.S.C. 1985 in his Amended Complaint. Dkt. 13. The 5 elements of a § 1985 claim are: “(1) the existence of a conspiracy to deprive plaintiff of the equal 6 protection of the laws; (2) an act in furtherance of the conspiracy; and (3) a resulting injury.” 7 Scott v. Ross, 140 F.3d 1275, 1284 (9th Cir. 1998). As to the first element, there must be some 8 racial or otherwise class-based “invidious discriminatory animus” for the conspiracy. Sprewell v. 9 Golden State Warriors, 266 F.3d 979, 989 (9th Cir. 2001). Further, “the absence of a section 10 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same 11 allegations.” Caldeira v. Cnty. of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989). 12 The Plaintiff has failed to state a claim pursuant to § 1985. There are no plausible 13 allegations to support a racial or class-based “invidious discriminatory animus” which is fatal to 14 his claim. Sprewell at 989. Additionally, the Plaintiff has failed to state a claim pursuant to § 15 1983. This also merits dismissal of Plaintiff’s § 1985 claim. 16 5. Clayton Act Claim 17 The Amended Complaint generally references the “Clayton Act,” and summarily 18 contends that the State “is in breach of Anti Trust law.” Dkt. 13 at 3. In neither the Amended 19 Complaint (Dkt. 13) nor in the response/motion to amend/proposed second amended complaint 20 (Dkt. 16), does the Plaintiff point to any Clayton Act provision that conceivably applies. 21 Further, he fails to allege any facts on which a Clayton Act claim could be based. A key element 22 of all antitrust suits brought by private parties under the Clayton Act is a “causal antitrust 23 injury.” Rebel Oil Co., Inc. v. Atl. Richfield Co., 51 F.3d 1421, 1433 (9th Cir. 1995). The 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 12 1 Plaintiff does not adequately allege facts which would support a finding that he has suffered a 2 “causal antitrust injury.” Rebel Oil at 1433. After attempting three times to state a Clayton Act 3 claim and failing to do so, further amendment would be futile. Accordingly, his motion to 4 amend to attempt to replead this claim, to the extent he makes one, (Dkt. 16) should be denied. 5 E. STATE CLAIMS AND WASHINGTON’S STATE TORT CLAIM NOTICE STATUTE – RCW 4.92 et. seq. 6 Under RCW 4.92.100(1), “all claims against the state, or against the state’s officers, [or] 7 employees . . . acting in such capacity, for damages arising out of tortious conduct, must be 8 presented to the office of risk management.” Pursuant to RCW 4.92.110, 9 No action subject to the claim filing requirements of RCW 4.92.100 shall be commenced against the state, or against any state officer, [or] employee . . . acting in such capacity, for damages arising out of tortious conduct until sixty calendar days have elapsed after the claim is presented to the office of risk management in the department of enterprise services. 10 11 12 “The filing requirements of RCW 4.92.100 and RCW 4.92.110 are mandatory and operate as a 13 condition precedent to recovery.” Pickard-Aguilar v. Washington State Employment Sec. Dep't, 14 2020 WL 8093446, at *2 (W.D. Wash. Dec. 18, 2020), report and recommendation adopted, 15 2021 WL 124334 (W.D. Wash. Jan. 13, 2021); Levy v. State, 91 Wn. App. 934, 942 (1998); see 16 also Hust v. Wyoming, 372 F. App'x 708, 710 (9th Cir. 2010)(district court properly dismissed 17 plaintiff's Washington state tort claims in § 1983 action for failure to comply with RCW 18 4.92.110). 19 There is no dispute that the Plaintiff has failed to file a claim for damages with 20 Washington’s office of risk management. His state law claims should be dismissed without 21 prejudice. The Plaintiff’s assertions, that he is not a “citizen” and so RCW 4.92 does not apply 22 to him (Dkt. 16), are without merit. No amendment to his Amended Complaint would cure this 23 defect. 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 13 1 2 F. CONCLUSION The Defendants’ Motion to Dismiss (Dkt. 15) should be granted. To the extent the 3 Plaintiff bases his claims on the suspension of his license, Younger abstention applies. Claims 4 related to the suspension of his license should be dismissed without prejudice. Amendment to 5 the Amended Complaint would not change this result and so the motion to amend (Dkt. 16) 6 should be denied as futile. 7 To the extent that the Plaintiff bases his claims on actions unrelated to the license 8 suspension by the Department of Labor, or its officers or employees, acting in their official 9 capacities, the claims for damages should be dismissed without prejudice based on Eleventh 10 Amendment immunity. Amending the Amended Complaint would not change this result and so 11 the motion to amend (Dkt. 16) should be denied as futile as to the damages claims based on 12 actions unrelated to the license suspension. 13 To the extent the Plaintiff asserts claims against the Department of Labor or its officers or 14 employees, acting in their official capacities, pursuant to § 1983, those claims should be 15 dismissed with prejudice because these Defendants are not “persons” pursuant to § 1983. 16 Amending the Amended Complaint would not change this result and so the motion to amend 17 (Dkt. 16) should be denied as futile as to Plaintiff’s § 1983 damages claims against the 18 Department of Labor and its officers and employees acting in their official capacity. 19 To the extent that the Plaintiff bases his § 1983 and § 1985 claims on actions unrelated to the 20 license suspension by the individual Defendants, acting in their individual capacities, the 21 Plaintiff’s claims should be dismissed. Despite having made three separate attempts to state a 22 federal claim against the Defendants (Dkts. 9, 13 and 16), the Plaintiff has failed to state legally 23 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 14 1 cognizable claims as required under Fed. R. Civ. P. 12(b)(6). Further opportunities to amend to 2 the Amended Complaint would be futile and so his motion to amend (Dkt. 16) should be denied. 3 To the extent that the Plaintiff bases his Clayton Act claim on actions unrelated to the 4 license suspension, his claim should be dismissed. Moreover, to the extent he moves to amend 5 his Amended Complaint regarding this claim, the motion (Dkt. 16) should be denied. As stated 6 above the Plaintiff has attempted several times to plead cognizable claims and has failed. It is 7 clear that further attempts would be futile. 8 To the extent the Plaintiff asserts state claims against the Defendants, his claims should 9 be dismissed without prejudice for failing to comply with RCW 4.92, the state tort claim notice 10 statute. 11 12 13 14 III. ORDER It is ORDERED that: The Defendants’ Motion to Dismiss (Dkt. 15) IS GRANTED as follows: o Based on Younger abstention, to the extent the Plaintiff bases his claims on 15 the suspension of his HVAC license, his claims ARE DISMISSED 16 WITHOUT PREJUDICE; 17 18 19 o To the extent that the Plaintiff bases his claims on actions unrelated to the license suspension: Damages claims based on actions by the Department of Labor, or its 20 officers or employees, acting in their official capacities, ARE 21 DISMISSED WITHOUT PREJUDICE based on Eleventh 22 Amendment immunity; 23 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 15 1 Plaintiff’s § 1983 damages claims against the Department of Labor 2 and its officers and employees, acting in their official capacity, ARE 3 DISMISSED WITH PREJUDICE; 4 Plaintiff’s § 1983 and § 1985 damages claims against the Department 5 of Labor officers and employees, acting in their individual capacity 6 ARE DISMISSED WITH PREJUDICE; 7 8 Plaintiff’s Clayton Act claims ARE DISMISSED WITH PREJUDICE; o To the extent the Plaintiff asserts state claims against the Defendants, his 9 10 claims ARE DISMISSED WITHOUT PREJUDICE for failing to comply 11 with RCW 4.92, the state tort claim notice statute; 12 13 To the extent the Plaintiff moves to amend his Amended Complaint, his motion (Dkt. 16) IS DENIED; and 14 15 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 16 17 18 19 20 This case IS CLOSED. to any party appearing pro se at said party’s last known address. Dated this 21st day of March, 2024. A ROBERT J. BRYAN United States District Judge 21 22 23 24 ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS - 16

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