Case 3:17-cv RBL Document 42 Filed 03/09/18 Page 1 of 17

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1 Case :-cv-0-rbl Document Filed 0/0/ Page of UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA The Honorable Karen Strombom 0 LEONARD PELTIER, CHAUNCEY PELTIER, v. Plaintiffs, JOEL SACKS, individually and in his capacity as DIRECTOR OF the WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES; TIMOTHY CHURCH, individually and in his capacity as PUBLIC AFFAIRS MANAGER of the WASHINGTON STATE DEPARTMENT OF LABOR AND INDUSTRIES; JAY INSLEE, individually and in his capacity as GOVERNOR of the STATE of WASHINGTON; EDWARD P. WOODS; LARRY LANGBERG; DOES - 0, Defendants. NO. :-cv-0 DEFENDANTS JOEL SACKS, TIMOTHY CHURCH, AND JAY INSLEE MOTION FOR SUMMARY JUDGMENT Hearing Date: April, I. INTRODUCTION State employee defendants Joel Sacks, Timothy Church, and Jay Inslee, respectfully move this Court to dismiss this case with prejudice pursuant to Fed. C. Rule. Proc. (FRCP). As part of a cultural awareness program within the Department of Labor and Industries (L&I), L&I put on display various forms of Native American artwork in the lobby of the L&I building during Native American History Month. Several of the items on display were paintings by Leonard Peltier, who :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

2 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 was convicted of murdering two FBI agents in on the Pine Ridge Indian Reservation in South Dakota. He has served more than 0 years for this crime. Leonard Peltier s son Chauncey Peltier is a resident of Olympia, Washington and had submitted those items to be displayed. Shortly after the display was erected, L&I began receiving complaints that it ought not to be posting artwork of a double-murderer of FBI agents and that some were offended by this. In fact, some of those complaints were voiced to local media who in turn sought out L&I for response. It was decided that because the focus of the display became distracted by the Leonard Peltier art, the paintings would be removed. Chauncey and Leonard Peltier have sued various state employees claiming, in short, that their freedom of speech rights were violated giving rise to a cause of action under U.S.C., as well as a variety of state law tort claims. However, because the speech at issue here was that of L&I, and not the Peltier s, there is no constitutional violation and this lawsuit must be dismissed in its entirety with prejudice. II. STATEMENT OF FACTS Timothy Church, one of the named defendants, is the Public Affairs Manager for the Department of Labor and Industries, a position he has held for roughly four years. Declaration of Timothy Church,. As the Public Affairs Manager for L&I, he is responsible for general public relations, media relations (including proactive media outreach, all agency news releases, and media inquiries), agency video production, marketing, risk communication and some internal communications to department to employees. Id.,. As part of his role, agency staff are expected to alert him to events and issues that may result in positive or negative attention from news media, and also alert him to any plans to promote projects or events to audiences inside and outside L&I. Id.,. Church was informed by a staff member and a member of the agency special events committee, which promotes a variety of cultural, ethnic and other type events within L&I, of their plans to display Native American art, including paintings from Leonard Peltier, in the lobby of the :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

3 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 L&I headquarters building during Native American History Month. Id.,. By the time they informed Church, the decision had already been made to display the Peltier art. The committee approached Church for ideas on how to promote the celebration and display. Id.,. That was the extent of Church s involvement in the events prior to the artwork being displayed. The primary audience for the display was L&I staff members who work in the Tumwater headquarters building. In general, a fairly small number of people who come through the L&I lobby are part of the general public. Id.,. This matter next came to Church s attention after the artwork had been put on display. According to Church, for much of the first week the artwork was on display, it was uneventful. Id.,. However, late in that first week, L&I began to receive complaints from people who believed it was inappropriate for a government agency to display the artwork of Leonard Peltier. Id.,. Those that complained included two former FBI agents and some members of the community. Those who voiced their complaints felt the Peltier art was inappropriate and disrespectful to law enforcement and to the families of the victims. Id.,. Initially the complaints were sent to L&I, but later some complaints were voiced directly to the news media, including a reporter at KING TV. That reporter decided to produce a report on the display and the concern by those who were against it. Once that story aired, the number of complaints and calls from various media grew substantially. Id.,. On November 0,, a small group of agency staff was brought together to discuss the complaints, manage responses to concerned people who were contacting the agency, and discuss ideas on how to move ahead. Id.,. That group included L&I Deputy Director Randi Warick, Doric Olson (executive sponsor of the committee overseeing the display), Brian Frisina (a member of the committee who planned the display, and the primary contact with the Peltier family), Imelda Ang (one of the committee leaders), and myself and maybe others. Id.,. Overall, the group was concerned about the controversy overtaking the positive/educational purpose of the display, which was never intended to focus on one man and the controversy around :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

4 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 him. Initially the goal was to contact the people who had complained, and provide them information directly, but once KING and other media became involved around late that week, the controversy grew quickly and L&I heard from more people who were upset at the agency over this. Id,. At that point, Randi Warick decided to remove the paintings with hope that the event could focus again, as intended, on Native American history and information instead of on Peltier and the controversy. The main decision-maker was Warick. Doric Olson also played a significant role as the executive sponsor of the group that created and promoted the display. Id.,. According to Church, neither Governor Inslee nor L&I Director Joel Sacks were directly involved with this discussion or with the decision to remove the paintings. Id.,. Church provided input into the possible repercussion of the paintings being displayed or removed, but was not involved in the direct decision to remove them. Id.,. Church recalls that there were about three or four different Peltier paintings that were displayed, but that the content of the paintings was not an issue and was never discussed. Id.,. The overall display consisted of paintings, photographs, a large board with information on local tribal leaders and local tribes, tools used for fishing, tribal baskets and drums. The event included occasional tribal music and dancers as well. Peltier s art comprised approximately % or less of the total display. Id.,. In total, the Peltier paintings were displayed for about two weeks before being removed by Doric Olsen the weekend of November,. Id.,. An agreement was reached with the Olympia Food Coop to display them, and the paintings were taken to directly to the Coop from L&I and immediately put on display. Id.,. Other parts of the overall display were moved to the area where the Peltier paintings had been on the Monday after the Peltier paintings were moved. Id.,. III. ISSUES PRESENTED A. Whether The First Amendment s Guarantee of Free Speech Applies to Government Speech? :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

5 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 B. Whether Sacks and Inslee Are Liable Where They Did Not Participate In Any Decision To Remove The Paintings? C. Does Washington State Constitution Article I,,, and Create A Private Right of Action? D. Did Any Of The Named Defendants Act To Intentionally Cause Emotional Distress? E. Does The Due Process Clause Create a Private Right Of Action Sounding In Negligence? IV. A. Declaration of Timothy Church A. Summary Judgment Standard EVIDENCE RELIED UPON V. ARGUMENT A moving party in a CR motion bears the initial burden of establishing that it is entitled to judgment because there are no disputed issues of material fact. Young v. Key Pharm., Inc., Wn.d,, 0 P.d (). If the defendant makes that showing, then the burden shifts to the plaintiff to establish that there is a genuine issue for the trier of fact. Id. at -. The plaintiff may not rely on speculation or unsupported assertions. Seven Gables Corp., v. MGM/UA Entm t Co., 0 Wn.d,, P.d (). A plaintiff must offer the court evidence showing a triable issue. Id. B. The Plaintiffs Constitutional Claims Lack Merit Because The First Amendment Does Not Apply to Regulate Government Speech And Personal Participation By The Named Defendants A claim under requires a plaintiff to allege facts showing () the conduct about which he complains was committed by a person acting under the color of state law; and () the conduct deprived him of a federal constitutional or statutory right. Parratt v. Taylor, U.S., (); Wood v. Ostrander, F.d, (th Cir. ). Additionally, a valid claim requires an allegation that the plaintiff suffered a specific injury as a result of the conduct of a particular defendant, and he must allege an affirmative link between the injury and the conduct of the defendant. Rizzo v. Goode, U.S., -, (). :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

6 Case :-cv-0-rbl Document Filed 0/0/ Page of 0. The Named Defendants Are Entitled To Qualified Immunity Because There Is No Constitutional Right Implicated By L&I Speech. To prevail on a claim, a plaintiff must prove that a state actor violated a clearly established constitutional right and that in doing so the state actor acted with deliberate indifference to that clearly established right. Tamas v. Dep t of Soc. & Health Servs., 0 F.d (0). The defense of qualified immunity shields government officials performing discretionary functions from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzgerald, U.S. 00,, 0 S. Ct., L. Ed. d (). In analyzing a qualified immunity defense, the Court must determine: ) whether a constitutional right would have been violated on the facts alleged, taken in the light most favorable to the party asserting the injury, and ) whether the right was clearly established when viewed in the specific context of the case. Saucier v. Katz, U.S.,, S. Ct., 0 L. Ed. d (0); Anderson v. Creighton, U.S., 0 S. Ct. 0, L. Ed. d (). Once the defense of qualified immunity is raised, plaintiff bears the burden at all times of proving that the particular federal right alleged to have been violated was so clearly established at the time of that every reasonable public official would know that they were violating a constitutional right. Pearson v. Callahan, U.S., S. Ct. 0, L. Ed. d (0); Kennedy v. Ridgefield, F.d 0, 0 (th Cir. 0). In order to determine whether a right was clearly established, the court is to survey the legal landscape at the time of the alleged misconduct. Trevino v. Gates, F.d, (th Cir. ). While the sequence set forth in Saucier is often appropriate, it should no longer be regarded as mandatory. Pearson v. Callahan, U.S., S. Ct. 0,, L. Ed. d (0. The judges of the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand. Id. :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

7 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 Here, the plaintiffs cannot show both that there was a clearly established constitutional right and that any of the named defendants acted with deliberate indifference of that right. In short, there is no constitutional right implicated by government speech. a. There is no clearly established constitutional right implicated in this case The plaintiffs claim their right to freedom of speech guaranteed by the First Amendment was violated by L&I s decision to remove their paintings from the display erected by L&I. This is incorrect. It is well-settled law that The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. Pleasant Grove City, Utah v. Summum, U.S. 0, -, S.Ct., L. Ed. d (0) citing Johanns v. Livestock Marketing Assn., U.S. 0,, S.Ct., L.Ed.d (0) ( [T]he Government's own speech... is exempt from First Amendment scrutiny ); Columbia Broadcasting System, Inc. v. Democratic National Committee, U.S.,, n., S.Ct. 0, L.Ed.d () (Stewart, J., concurring) ( Government is not restrained by the First Amendment from controlling its own expression ); Bd. of Regents of Univ. of Wis. Sys. v. Southworth, U.S.,, S.Ct., L.Ed.d (00) (stating that a government entity has the right to speak for itself ); Rosenberger v. Rector and Visitors of Univ. of Va., U.S.,, S.Ct. 0, L.Ed.d 00 () ( [I]t is entitled to say what it wishes and to select the views that it wants to express); Nat'l Endowment for Arts v. Finley, U.S.,, S.Ct., L.Ed.d 00 () (Scalia, J., concurring in judgment) ( It is the very business of government to favor and disfavor points of view ). In fact, keeping government free from first amendment scrutiny is necessary to allow government to function. If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

8 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 radically transformed. Pleasant Grove, U.S. citing Keller v. State Bar of Cal., U.S.,, 0 S.Ct., 0 L.Ed.d (0). See also Johanns, U.S., at, S.Ct. (Souter, J., dissenting) ( To govern, government has to say something, and a First Amendment heckler's veto of any forced contribution to raising the government's voice in the marketplace of ideas' would be out of the question Pertinent to this case, and an extension of this reasoning, is that the government entity may exercise this same freedom to express its views when it receives assistance from private sources for the purpose of delivering a government-controlled message. Pleasant Grove, U.S. at citing Johanns, U.S. at, S. Ct. (opinion of the Court) (where the government controls the message, it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources ); Rosenberger, supra, at, S.Ct. 0 (a government entity may regulate the content of what is or is not expressed... when it enlists private entities to convey its own message ). The case of Pleasant Grove is illustrative if not on point. In that case, Pleasant Grove City (City) denied Summum s request to place a stone monument of the Seven Aphorisms of SUMMUM in the City s Pioneer Part alongside other such monuments, including a Ten Commandments monument. The City denied the request because the proposed monument did not satisfy the City s criteria of being directly related to the City s history or donated by groups with longstanding ties to the City. Pioneer Park had displays, of which were donated by private groups of individuals including, a historic granary, a wishing well, the City s first fire station, a September monument and, as mentioned, a Ten Commandments monument which was donated by the Fraternal Order of Eagles in. Pleasant Grove, U.S. at -. The Pleasant Grove Court went on to explain and discuss the historic role that monuments in city parks have played in this Country. A monument is a means of expression and play an important role in defining the identity that a city projects to its own residents and to the :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

9 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 outside world. Pleasant Grove, U.S. at. A monument conveys a government message and therefore is government speech. Id. Similarly, the decision to remove artwork from a particular public display is also considered government speech. The decision to remove artwork is, again, part of a message or expression by the government and therefore government speech. See Newton v. LePage, 00 F. d () (removal of a large state-owned mural from the lobby in the Maine Department of Labor because it did not convey an evenhanded treatment toward both labor and employers was not subject to First Amendment scrutiny because it was government speech); Serra v. U.S. General Admin Servs., F.d 0 ()(removal of government owned artwork did not violate the artist s first amendment right because even if he had some remaining ownership interest, the decision to remove the Titled Arc sculpture display was the government s own speech). In the case of Pioneer Park in Pleasant Grove City, Utah, the monuments were donated by private citizens, and rather than opening the park for whatever monument might be offered, the City effectively controlled the message sent by selecting the monuments and exercising final approval authority over their selection. Id. at -. The City selected those monuments for the purpose of presenting the image of the City that it wished to project. Id. This case is essentially identical. For Native American History Month, L&I decided to erect a display of Native American artwork in its lobby. L&I decided on which art would be presented and how best to present their message to educate mainly L&I employees about Native American art. L&I had control over the art and made the decisions about what art would be displayed. When L&I decided that the Peltier art distracted their message regarding the Native American art they displayed to educate, L&I decided to remove the art because the art was conflicting with L&I s message. Although the art being displayed were not permanent monuments, this was nonetheless an expression of L&I in terms of its desire to educate its :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

10 Case :-cv-0-rbl Document Filed 0/0/ Page 0 of 0 employees and therefore this speech at issue here is L&I s speech, which is not subject to first amendment scrutiny. In this case, the speech was that of L&I s expressing their desire to bring awareness to mainly employees of their Tumwater building of the various forms of Native American art during Native American Heritage Month. L&I decided which art works to use, did so, and when the opposition to using Peltier s artwork began to detract from the overall point of the display, L&I decided to remove the paintings. There is no constitutional right violated by L&I s action. b. There is no evidence of reckless indifference to any potential constitutional right To establish a violation of one s civil rights under, a plaintiff must prove the state official acted with deliberate indifference to that right. Kennedy v. City of Ridgefield, F.d 0, 0 (th Cir. 0) citing Bryan County v. Brown, U.S., 0, S. Ct., L.Ed.d () ( Deliberate indifference is a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his actions ); see also Tamas v. Dep t of Soc. & Health Servs., 0 F.d, - (th Cir. 0) (the government official must act with such deliberate indifference to the liberty interest that their actions shock the conscience. ) Here, there is simply no evidence that any of the named defendants acted with deliberate indifference rather than trying to balance the desire to present artwork without the distraction of controversial artist. The decision to remove the art was made to further the goal of the display and to bring awareness to Native American art, it was not made with reckless disregard to the plaintiffs.. The named defendants did not personally participate in the decision to remove the artwork. The plaintiffs assert that L&I Director Joel Sacks and Governor Jay Inslee violated their constitutional rights giving rise to a claim under U.S.C. as decision-makers. This claim lacks merit. Merely naming individuals and asserting they violated constitutional rights is :-cv-0-rbl-kls 0 OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

11 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 insufficient because in order to obtain relief against a defendant under U.S.C., a plaintiff must prove that the particular defendant has caused or personally participated in causing the deprivation of a particular protected constitutional right. Arnold v. IBM, F.d 0, (th Cir. ); Sherman v. Yakahi, F.d, 0 (). To be liable for causing the deprivation of a constitutional right, the particular defendant must commit an affirmative act, or omit to perform an act, that he or she is legally required to do, and which causes the plaintiff s deprivation. Johnson v. Duffy, F.d 0, (th Cir. ). Sweeping conclusory allegations against an official are insufficient to state a claim for relief. The plaintiff must set forth specific facts showing a causal connection between each defendant s actions and the harm allegedly suffered by plaintiff. Aldabe v. Aldabe, F.d 0, 0 (th Cir. 0). Furthermore, the State, its agencies, and state officials sued in their official capacities are not persons subject to suit under for damages or other retrospective relief. Will v. Michigan Department of State Police, U.S., 0 S.Ct. 0, 0 L.Ed.d (). Plaintiffs are required to show that the government officials left their official roles behind and instead embarked on a course deliberately indifferent to plaintiffs constitutional rights. Otherwise, the lawsuit under is merely a lawsuit against the State. Here, the undisputed evidence is that the neither Director Joel Sacks nor Governor Inslee had any personal participation in the decision to remove the paintings from the LNI lobby or otherwise played any role in the underlying events. Plaintiffs cannot establish that either Sacks or Inslee had a constitutional obligation to prevents the paintings from being removed, and of course as shown above there is no constitutional right implicated by L&I s speech in the first place. This claim should be dismissed. :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

12 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 C. The Washington State Constitution Does Not Create Tort Liability. Plaintiffs also cite to the Washington State Constitution, Art. I,,, and, and claim their rights to freedom of speech and due process were violated. These sections provide that no person shall be deprived of life, liberty or property without due process of law ( ), and that persons have the right to peaceably assemble and freedom of speech (,). This claim can be fairly summarized as asserting claim for violation of due process rights based on the Washington State Constitution. This claim is fundamentally flawed and should be summarily dismissed as the Washington State Constitution does not create a private right of action based on alleged violations of due process. It was well-settled law in Washington that there is no due process tort cause of action. Systems Amusement, Inc. v. State, Wn. App, 00 P.d (); see also Spurrell v. Block, 0 Wn. App., 0 P.d (). In Systems, a corporation sued for the denial of an application for a liquor license. The court ruled there is no State Constitutional guarantee of due process upon which to base a tort claim or lawsuit. The Systems court said the clause is protection against arbitrary action by the state; but if a person has his day in court, he has not been deprived of due process. Systems Amusement, Wn. App. at citing State v. Cater s Motor Freight System, Wash.d, P.d (). The Systems Court elaborated that Acts violative of the clause may be declared void by the courts, but the clause does not, of itself, provide a remedy of reparation. Id. The due process clause does not create a new cause of action, but held that if a person has their day in Court there is no violation of due process, and cited to the availability of a tort remedy as a form of having a day in court. Systems, Wn. Ap. at. In Spurrell, 0 Wn. App., plaintiffs attempted to recover in tort under a theory of abuse of governmental position and violations of the due process clause of the State Constitution based on social workers and law enforcement officials who had removed their child :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

13 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 from their home as part of a child abuse investigation. The Spurrell court, quoting Systems, dismissed this due process claim against the State. This case is no different. Plaintiffs are attempting to use the State Constitution as a source of a tort duty and that simply is contrary to well-established law. There is no deprivation of a state constitutional right to due process here nor does that clause create a private right of remedy. This claim should be dismissed. The plaintiffs have a tort remedy and are exercising it in this lawsuit. D. There Is No Evidence That Defendants Acted to Intentionally Inflict Emotional Distress on the Peltiers. The Washington Supreme Court first recognized the tort of outrage in Grimsby v. Samson, Wn.d, -, 0 P.d (). The tort of outrage is also referred to as intentional infliction of emotional distress. Lyons v. U.S. Bank Nat l Ass n, Wn.d,, P.d (). Although the Court has recognized outrage as a separate and distinct tort, the court has held that recovery for outrage should be allowed only in the absence of other tort remedies. Rice, 0 Wn.d at - (holding that trial court erred in instructing jury on both assault and tort of outrage regarding the same conduct, since it allowed the possibility of double recovery). In, the Court summarized the basic elements of the tort of outrage: () extreme and outrageous conduct; () intentional or reckless infliction of emotional distress, and () actual result to the plaintiff [of] severe emotional distress. Birklid v. Boeing Co., Wn.d, -, 0 P.d (), quoting Rice, 0 Wn.d at. To establish outrage, defendant s conduct must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community. Grimsby, Wn.d at ; Birklid, Wn.d at ; Repin v. State, Wn. App.,, P.d (). Whether particular conduct is sufficiently outrageous to support damages is ordinarily a question for the jury, but the court must initially determine whether reasonable minds could differ on whether the conduct was sufficiently extreme to justify liability. Corey v. Pierce Cty., Wn. :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

14 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 App., -, P.d (0). The court must consider the following factors when making its initial determination: (a) the position occupied by the defendant; (b) whether plaintiff was peculiarly susceptible to emotional distress, and if defendant knew this fact; (c) whether defendant's conduct may have been privileged under the circumstances; (d) the degree of emotional distress caused by a party must be severe as opposed to constituting mere annoyance, inconvenience or the embarrassment which normally occur in a confrontation of the parties; and, (e) the actor must be aware that there is a high probability that his conduct will cause severe emotional distress and he must proceed in a conscious disregard of it. Birklid, Wn.d at, quoting Phillips v. Hardwick, Wn. App.,, P.d 0 (). Here, there is simply no evidence that anybody affiliated with L&I acted so outrageously as to be utterly in civilized life in deciding to remove paintings because the controversy was distracting a message L&I was trying to convey regarding Native American art during Native American History Month. Certainly no evidence that anybody acted with the intent to cause emotional distress to either of the plaintiffs. In fact, L&I found a place to have the paintings displayed and moved them there rather than simply taking them down. These were not malicious actors. E. There Is No Tort Duty Sounding In Negligence Arising From Constitutional Obligations. The Plaintiff must, at a minimum, prove duty and breach. Couch v. Dep t of Corr., Wn. App.,, P.d (0). The threshold question in a negligence action is whether the Defendants owe a duty of care to the Plaintiff; the Plaintiff bears the burden of establishing the existence of a duty. Burg v. Shannon & Wilson, Inc., 0 Wn. App., 0, P.d (0) (citations omitted). The action will fail if no duty is established. Folsom v. Burger King, Wn.d,, P.d 0 (). At common law, the State was immune from lawsuit, and there was no common law duty to govern or not to govern. Linville v. State, Wn. App.,, P.d 0 (0) (quoting Evangelical United Brethren Church of Adna v. State, Wn.d,, 0 :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

15 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 P.d 0 ()). Put another way, State agencies are creatures of statute, and their legal duties are determined by the Legislature. Murphy v. State, Wn. App.,, P.d, review denied, Murphy v. State Wn.d 0, P.d (0). The plaintiffs do not cite to any statutory violation but rather cite to the due process clause as a source of a state law tort duty. This is fundamentally flawed. It is well-settled law that a negligent act by a state official does not give rise to a constitutional claim. See Daniels v. Williams, U.S., 0 S. Ct., L.Ed.d (). Simply put, the various Constitutional rights, and the Due Process Clause, was created to prevent an abuse of government power, but does not embrace state tort law concepts such as negligence. Daniels, U.S. at. In Daniels, an inmate sued for damages resulting from a fall after he slipped on a pillow negligently left on stairs by a correctional officer. The inmate asserted that the negligence violated the Due Process Clause by depriving the inmate of his liberty interests to be free from bodily injury. Daniels, U.S. at. The Daniels Court reasoned that the Due Process Clause was meant to prevent government power from being used for purposes of oppression but that does not make the Fourteenth Amendment a font of tort law to be superimposed upon whatever system may already be administered by the States. Daniels, at quoting Paul v. Davis, U.S., 0, S. Ct., 0, L.Ed.d 0 () and Parratt v. Taylor, U.S.,, 0 S. Ct., 0, (). Accordingly, Daniels concluded that the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss or injury to life, liberty, or property. Daniels, at. To establish a violation of one s civil rights under, a plaintiff must prove the state official acted with deliberate indifference to that right. Kennedy, F.d 0, 0; see also Tamas, 0 F.d at - (the government official must act with such deliberate indifference to the liberty interest that their actions shock the conscience. ). And, as mentioned :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

16 Case :-cv-0-rbl Document Filed 0/0/ Page of above, Washington law does not provide support for the notion that there can be a due process tort cause of action. See Systems Amusement, Wn App at. Plaintiffs claim of negligence arises solely from the due process clauses in the U.S. and Washington Constitutions. There is neither statutory authority nor case law that supports the Plaintiffs negligence claim and this claims should be dismissed. VI. CONCLUSION 0 Based on the foregoing, this case should be dismissed in its entirety. DATED this th day of March,. ROBERT W. FERGUSON Attorney General /s/ Peter J. Helmberger PETER J. HELMBERGER, WSBA No. 0 Assistant Attorney General Telephone: () - FAX: () - PeterH@atg.wa.gov :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -

17 Case :-cv-0-rbl Document Filed 0/0/ Page of 0 CERTIFICATE OF SERVICE I hereby certify that on this th day of March,, I caused to be electronically filed the foregoing document with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Lawrence A. Hildes LAW OFFICES OF LAWRENCE A. HILDES P.O. Box 0 Bellingham, WA lhildes@earthlink.net (0) - Attorney for Plaintiffs /s/ Sharon Jaramillo Sharon Jaramillo, Legal Assistant :-cv-0-rbl-kls OFFICE OF THE ATTORNEY GENERAL P.O. Box () -