                                                             FILED    01V 1
                                                    COUAT OFOFAPPEALS
                                                               WASHINGTON
                                                     STATE
                                                     MI JUN 25 Ati 9:21


      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STEPHEN THOMAS LYNCH,                     )
                                          )      DIVISION ONE
                     Appellant,           )
                                          )      No. 76948-1-1
              v.                          )
                                          )      UNPUBLISHED OPINION
STATE OF WASHINGTON, and                  )
CHERYL MUSTAIN, in her capacity           )
as a corrections officer for the state of )
Washington, and as an individual, and )
KIM BERLI DEWING, in her capacity         )
as a corrections officer for the state of )
Washington, and as an individual,         )
                                          )
                     Respondents,         )
                                          )
DOES 1 through 30,                        )
                                          )
                     Defendants.          )      FILED: June 25, 2018
                                          )

       DWYER, J. — Stephen Lynch appeals from the trial court's order

dismissing, pursuant to CR 12(c), his actions filed against the State of

Washington and Department of Corrections community correctional officers

Cheryl Mustain and Kimberli Dewing. Lynch contends that the trial court erred

because his pleadings set forth legally sufficient and timely actions against the

State, Mustain, and Dewing pursuant to 42 U.S.C. § 1983 and various state law

tort theories. Because there is nothing in the pleadings to support that Lynch

alleged a cognizable § 1983 action or timely filed his state law tort claims, we
No. 76948-1-1/2


conclude that the trial court did not err by ordering dismissal. Accordingly, we

affirm.

                                                 I

          In 2006, Lynch pleaded guilty to one count of felony harassment) After

sentence was imposed in 2006, Lynch was placed under the supervision of the

Department of Corrections(DOC). During this supervisory period, Lynch was

monitored by Mustain. A condition of Lynch's sentence prohibited him from

having contact with his neighbor (the victim of his felony harassment conviction),

Connie Laire.

          In mid-September 2007, Lynch telephoned Mustain to report an interaction

that he had with Laire. He reported that, while in the passenger seat of a car

driven by a business partner, he had argued with asphalt workers who were

laying speed bumps on the driveway leading up to his residence. Lynch reported

that, during that time, Laire had exited her nearby residence and observed the

scene. Lynch reported that he did not address Laire during the incident.

          In late September, Laire contacted Mustain to discuss Lynch's conduct

outside of her residence earlier that month. Mustain's notes from Laire's call

read: "Per Connie she was out side with her hired help when P[21 and his friend

drive up and started barking at the. [sic]. Per Connie P did not lok [sic] at her but

was screaming at her and the workers about being on his property etc."




         1 Lynch entered a guilty plea in accordance with North Carolina v. Alford, 400 U.S. 25, 91
S. Ct. 160, 27 L. Ed. 2d 162(1970).
         2 The parties do not dispute that "P" in Mustain's notes referred to Lynch.



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No. 76948-1-1/3


       Shortly thereafter, Mustain and Dewing determined that Lynch had

violated the no-contact condition of his felony harassment sentence and they

approved his detention. In early October, Lynch was taken into custody and

transported to a jail. He was released from detention one month later, at the end

of October 2007.

       More than nine years after his release from detention, in November 2016,

Lynch filed a complaint against the State of Washington, Mustain, Dewing, and

"Does 1 through 30," alleging that, in October 2007, he was unlawfully seized in

violation of the Fourth Amendment, unlawfully arrested without probable cause in

violation of the Fourth Amendment, unlawfully harmed while in custody in

violation of the Eighth and Fourteenth Amendments, and that he was subjected

to "false arrest/false imprisonment," negligence, and "trespass to personal

property and/or conversion."

       Lynch alleged that the foregoing wrongful conduct arose from when he

was detained in October 2007 for violating the condition of his sentence

prohibiting him from having contact with Laire. Specifically, Lynch alleged that,

prior to and during his period of detention, he informed the defendants of his

health problems, he was denied medical treatment, and, as a result, he

"suffered." He further alleged that he did not receive his required medications,

lost 12 pounds of weight, and, on one occasion, had been handcuffed to a

wheelchair and lost consciousness. In addition, he alleged that he had been

denied an attorney, that DOC refused to accelerate his violation hearing, that he




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No. 76948-1-1/4


was transferred to three different jails, and that the records maintained by DOC

misstated the date of the alleged violation.

        Additionally, Lynch alleged that, upon his release, his clothes, wallet,

money, identification, and keys were not returned to him. He alleged that the

search for his property took weeks after his release and that, "eventually," his

property was returned to him after being "misplaced" by DOC employees. His

complaint did not set forth the date on which his property was alleged to have

been returned to him.

        The defendants moved to dismiss Lynch's complaint pursuant to CR

12(c).3 The trial court granted the defendants' motion and dismissed Lynch's

complaint.

                                                   Il

        In this matter, we are called upon to review the trial court's order

dismissing Lynch's complaint pursuant to CR 12(c).

        The rule provides:

        Motion for Judgment on the Pleadings. After the pleadings are
        closed but within such time as not to delay the trial, any party may
        move for judgment on the pleadings. If, on a motion for judgment
        on the pleadings, matters outside the pleadings are presented to
        and not excluded by the court, the motion shall be treated as one
        for summary judgment and disposed of as provided in rule 56, and
        all parties shall be given reasonable opportunity to present all
        material made pertinent to such a motion by rule 56.

CR 12(c).




        3 The   Defendants' dismissal motion was initially characterized as a CR 12(b)(6) motion,
but their reply brief before the trial court indicated that they were, in actuality, seeking dismissal
pursuant to CR 12(c).


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No. 76948-1-1/5


        We review de novo a trial court's dismissal of a claim pursuant to CR

12(c). Nw. Animal Riqhts Network v. State, 158 Wn. App. 237, 241, 242 P.3d

891 (2010)(citing Parrilla v. King County, 138 Wn. App. 427,431, 157 P.3d 879

(2007)). In so doing,

       [w]e examine the pleadings to determine whether the plaintiff can
       prove any set of facts consistent with the complaint that would
       entitle the plaintiff to relief. N. Coast Enters., Inc. v. Factoria P'ship,
       94 Wn. App. 855, 859, 974 P.2d 1257(1999). The factual
       allegations contained in the complaint are accepted as true. N.
       Coast Enters., 94 Wn. App. at 859(quoting Roth v. Bell, 24 Wn.
       App. 92, 94, 600 P.2d 602(1979)).

Nw. Animal Rights Network, 158 Wn. App. at 241.4

                                               A

        Lynch contends that the trial court erred by dismissing his alleged § 1983

monetary damages actions against the State of Washington. We disagree.

        42 U.S.0 § 1983 provides a civil cause of action for monetary damages

against any "person" who deprives another of "any rights, privileges, or

immunities secured by" the United States Constitution.

        Significantly, however, a sovereign state of the United States is not a

"person" within the meaning of § 1983 and is, thus, not subject to a monetary

damages suit. Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613,

617, 122 S. Ct. 1640, 152 L. Ed. 2d 806(2002)("Lapides' only federal claim

against the State arises under 42 U.S.C.§ 1983, that claim seeks only monetary

damages, and we have held that a State is not a 'person' against whom a § 1983



        4 We may affirm the trial court's order dismissing Lynch's complaint pursuant to CR 12(c)
on any basis supported by the record. State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795
(2004).


                                               5
No. 76948-1-1/6


claim for money damages might be asserted."). Accord Will v. Mich. Dep't of

State Police, 491 U.S. 58, 64, 109 S. Ct. 2304, 105 L. Ed. 2d 45 (1989); Wash.

State Republican Party v. Pub. Disclosure Comm'n, 141 Wn.2d 245, 285-86,4

P.3d 808 (2000); Smith v. State, 135 Wn. App. 259, 270, 144 P.3d 331 (2006).

       Lynch's complaint alleged that the State of Washington deprived him of

various constitutional rights in violation of § 1983 and that, as a result, he is

entitled to monetary damages against the State. As indicated, however, the

State is not a "person" within the meaning of § 1983. Lapides, 535 U.S. at 617.

Thus, Lynch's claims for money damages are not cognizable. Lapides, 535 U.S.

at 617.

       Hence, there is no basis in the pleadings to support Lynch's alleged

§ 1983 actions against the State. The trial court did not err by dismissing these

claims.



       Lynch next contends that the trial court erred by dismissing his § 1983

damages actions against Mustain and Dewing. Again, we disagree.

       As pertinent here, Lynch's complaint alleged the following:

              On or about February 8, 2016, the King County Superior
       Court entered an order which provided as follows:
              (a) Mr. Lynch was permitted to withdraw his guilty plea in the
       matter;
              (b) A plea of not guilty was entered by the Court on behalf
       of the Mr. Lynch;
              (c) The conviction was vacated, and the case was
       dismissed with prejudice;
              (d) Mr. Lynch was released from all penalties and disabilities
       resulting from the offense; and




                                          6
No. 76948-1-1/7


            (e)The Court directed that for all purposes, including
      responding to questions on employment applications, Mr. Lynch
      may state that he has never been convicted of the crime.

      Given these allegations, Lynch contends that he accrued a cognizable

monetary damages action pursuant to § 1983 against Mustain and Dewing when

his conviction was vacated and dismissed by the superior court.

      In support of this proposition, Lynch relies on the United States Supreme

Court's opinion in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364, 129 L. Ed.

2d 383(1994). The Court's opinion reads, in pertinent part:

      We think the hoary principle that civil tort actions are not
      appropriate vehicles for challenging the validity of outstanding
      criminal judgments applies to § 1983 damages actions that
      necessarily require the plaintiff to prove the unlawfulness of his
      conviction or confinement,just as it has always applied to actions
      for malicious prosecution.
             We hold that, in order to recover damages for allegedly
      unconstitutional conviction or imprisonment, or for other harm
      caused by actions whose unlawfulness would render a conviction
      or sentence invalid, a § 1983 plaintiff must prove that the
      conviction or sentence has been reversed on direct appeal,
      expunged by executive order, declared invalid by a state
      tribunal authorized to make such determination, or called into
      question by a federal court's issuance of a writ of habeas
      corpus, 28 U.S.C.§ 2254. A claim for damages bearing that
      relationship to a conviction or sentence that has not been so
      invalidated is not cognizable under § 1983. Thus, when a state
      prisoner seeks damages in a § 1983 suit, the district court must
      consider whether a judgment in favor of the plaintiff would
      necessarily imply the invalidity of his conviction or sentence; if it
      would, the complaint must be dismissed unless the plaintiff can
      demonstrate that the conviction or sentence has already been
      invalidated.

Heck, 512 U.S. at 486-87(bolded emphasis added)(italicized emphasis in

original)(footnotes omitted).




                                        7
No. 76948-1-1/8


       As an initial matter, there is no dispute that Lynch's § 1983 monetary

damages actions against Mustain and Dewing, if proved, would "necessarily

imply" the invalidity of his conviction and sentence. Heck, 512 U.S. at 487.

Moreover, as indicated, Lynch's complaint set forth that a superior court order

vacated his conviction and dismissed his case.

       However, Lynch's reliance on Heck is unavailing. The Court in Heck did

not rule that vacation of a conviction or dismissal of a case established a

cognizable § 1983 damages action. 512 U.S. at 486-87. Rather, the Court ruled

that, when a party seeks to file a § 1983 action that necessarily implies the

invalidity of a conviction or sentence, the party's § 1983 action becomes

cognizable only when the underlying conviction or sentence is determined to

have been invalidated, i.e., deemed unconstitutional or unlawful. Heck, 512 U.S.

at 486-87.

       Nevertheless, relying on the foregoing trial court order, Lynch contends

that, by vacating his sentence, the trial court, in actuality, invalidated his

conviction and sentence. Lynch is mistaken.

       The trial court order referenced in Lynch's complaint was an order entered

pursuant to RCW 9.94A.640. This statutory provision reads, in pertinent part:

       Vacation of offender's record of conviction.(1) Every offender
       who has been discharged under RCW 9.94A.637 may apply to the
       sentencing court for a vacation of the offender's record of
       conviction. If the court finds the offender meets the tests
       prescribed in subsection (2) of this section, the court may clear the
       record of conviction by:(a) Permitting the offender to withdraw the
       offender's plea of guilty and to enter a plea of not guilty; or(b) if the
       offender has been convicted after a plea of not guilty, by the court
       setting aside the verdict of guilty; and (c) by the court dismissing
       the information or indictment against the offender.


                                           8
No. 76948-1-1/9


              (2) An offender may not have the record of conviction
       cleared if: (a) There are any criminal charges against the offender
       pending in any court of this state or another state, or in any federal
       court;(b) the offense was a violent offense as defined in RCW
       9.94A.030;(c)the offense was a crime against persons as defined
       in RCW 43.43.830;(d)the offender has been convicted of a new
       crime in this state, another state, or federal court since the date of
       the offender's discharge under RCW 9.94A.637;(e)the offense is a
       class B felony and less than ten years have passed since the date
       the applicant was discharged under RCW 9.94A.637; (f) the offense
       was a class C felony, other than a class C felony described in RCW
       46.61.502(6) or 46.61.504(6), and less than five years have passed
       since the date the applicant was discharged under RCW
       9.94A.637; or (g)the offense was a class C felony described in
       RCW 46.61.502(6) or 46.61.504(6).
              (3) Once the court vacates a record of conviction under
       subsection (1) of this section, the fact that the offender has been
       convicted of the offense shall not be included in the offender's
       criminal history for purposes of determining a sentence in any
       subsequent conviction, and the offender shall be released from all
       penalties and disabilities resulting from the offense. For all
       purposes, including responding to questions on employment
       applications, an offender whose conviction has been vacated may
       state that the offender has never been convicted of that crime.
       Nothing in this section affects or prevents the use of an offender's
       prior conviction in a later criminal prosecution.

(Emphasis added.)

       There is no indication that RCW 9.94A.640 allows for the invalidation of an

offender's conviction or sentence. By its plain terms, it provides not for a

conviction's invalidation but, rather, for vacation of the record of conviction.

RCW 9.94A.640(1),(3). Indeed, the word "invalid"—or any variant thereof—

appears nowhere in RCW 9.94A.640. Moreover, subsection (3) of RCW

9.94A.640 presupposes the validity of the underlying conviction, setting forth that,

"Nothing in this section affects or prevents the use of an offender's prior

conviction in a later criminal prosecution." Thus, RCW 9.94A.640 lends no

support to Lynch's argument.


                                          9
No. 76948-1-1/10


       Subsection (1) of RCW 9.94A.640 sets forth that a discharge of a

sentence pursuant to RCW 9.94A.637 is a predicate to obtaining vacation of an

offender's record of conviction pursuant to RCW 9.94A.640.

      This statute provides, in pertinent part:

      (1)(a) When an offender has completed all requirements of the
      sentence, including any and all legal financial obligations, and while
      under the custody and supervision of the department, the secretary
      or the secretary's designee shall notify the sentencing court, which
      shall discharge the offender and provide the offender with a
      certificate of discharge by issuing the certificate to the offender in
      person or by mailing the certificate to the offender's last known
      address.

             (5) The discharge shall have the effect of restoring all civil
      rights not already restored by RCW 29A.08.520, and the certificate
      of discharge shall so state. Nothing in this section prohibits the use
      of an offender's prior record for purposes of determining sentences
      for later offenses as provided in this chapter. Nothing in this
      section affects or prevents use of the offender's prior conviction in a
      later criminal prosecution either as an element of an offense or for
      impeachment purposes. A certificate of discharge is not based on
      a finding of rehabilitation.
             (6) Unless otherwise ordered by the sentencing court, a
      certificate of discharge shall not terminate the offender's obligation
      to comply with an order that excludes or prohibits the offender from
      having contact with a specified person or coming within a set
      distance of any specified location that was contained in the
      judgment and sentence. An offender who violates such an order
      after a certificate of discharge has been issued shall be subject to
      prosecution according to the chapter under which the order was
      originally issued

RCW 9.94A.637(emphasis added).

       By its plain terms, RCW 9.94A.637 does not implicate the validity of an

offender's sentence or the offender's underlying conviction. Indeed, the word

"invalid" appears nowhere in this provision.




                                       -10-
No. 76948-1-1/11


       Instead, RCW 9.94A.637 sets forth the circumstances under which an

offender's sentence may be discharged when the offender completes the

requirements of the offender's sentence. Moreover, RCW 9.94A.637 permits the

State, notwithstanding that the offender has obtained a certificate of discharge, to

rely on the offender's conviction or sentence in a later criminal prosecution.

RCW 9.94A.637(5),(6). In this light, the provisions of RCW 9.94A.637

presuppose that the offender's underlying sentence is valid. Thus, RCW

9.94A.637 does not support Lynch's contention.

       Furthermore, there is nothing in either RCW 9.94A.637 or RCW 9.94A.640

that authorizes the trial court to issue findings of fact or reach a determination

regarding the validity of an offender's conviction or sentence. Indeed, Lynch did

not need to prove the invalidity of his conviction in order to obtain the relief he

requested pursuant to subsections .637 and .640.

       Thus, there is no indication that Lynch ever established the invalidity of the

judgment entered on his conviction or the sentence imposed thereon. Because

Lynch has not established that his conviction or sentence was invalid, his § 1983

damages actions against Mustain and Dewing are not cognizable. Heck, 512

U.S. at 486-87.

       Accordingly, there is no basis in the pleadings to support Lynch's § 1983

actions against Mustain and Dewing. There was no error in dismissing the

claims.
No. 76948-1-1/12




      Lynch next contends that the trial court erred by dismissing his state law

tort actions against the State, Mustain, and Dewing. Once again, we disagree.

             As a general rule, a tort "cause of action accrues at the time
      the act or omission occurs." In re Estates of Hibbard, 118 Wn.2d
      737, 744, 826 P.2d 690 (1992). The discovery rule is an exception
      to the general rule. Hibbard, 118 Wn.2d at 744-45. Application of
      the discovery rule extends to "claims in which plaintiffs could not
      immediately know of the cause of their injuries." Hibbard, 118
      Wn.2d at 750.
              In certain torts, . . injured parties do not, or cannot,
              know they have been injured; in these cases, a cause
              of action accrues at the time the plaintiff knew or
             should have known all of the essential elements of the
             cause of action.
      White v. Johns-Manville Corp., 103 Wn.2d 344, 348,693 P.2d 687
      (1985); see also Deoos v. Asbestos Corp., 186 Wn.2d 716, 727,
      381 P.3d 32(2016).
              Under the discovery rule, a cause of action accrues when
      the plaintiff "knew or should have known the essential elements of
      the cause of action." Allenf v. Statel, 118 Wn.2d [753,] 757-58[,
      826 P.2d 200 (1992)]. ... We may decide the applicability of the
      discovery rule as a matter of law where the facts are subject to only
      one reasonable interpretation. Allen, 118 Wn.2d at 760.

Brown v. Dep't of Corr., 198 Wn. App. 1, 12, 392 P.3d 1081 (2016).

      The statutory limitation period applicable to both an action for negligence

and an action for trespass upon personal property is three years. RCW

4.16.080(2); Woods View II, LLC v. Kitsap County, 188 Wn. App. 1,20, 352 P.3d

807(2015)(negligence); Hudson v. Condon, 101 Wn. App. 866, 872-73,6 P.3d

615(2000)(conversion). The torts of false arrest and false imprisonment "are

subject to a two-year statute of limitations under RCW 4.16.100." Southwick v.




                                      - 12 -
No. 76948-1-1/13


Seattle Police Officer John Doe #s 1-5, 145 Wn. App. 292, 297, 186 P.3d 1089

(2008).5

        Accepting Lynch's allegations as true, the misconduct by the State,

Mustain, and Dewing occurred in 2007. Lynch filed the complaint here at issue in

2016, nine years after the alleged misconduct occurred.

        There is nothing in the pleadings that supports a later accrual date for any

of Lynch's alleged state law tort actions.6 Thus, these actions were filed well

beyond their applicable statutory limitation period. Accordingly, the trial court did

not err by ordering dismissal of the claims. There was no error.7

        Affirmed.




We concur:



                                                S-rkiA\i-eUe.,
                                                                              'o


         5 To the extent that any of these tort claims arose from acts independent of the
underlying conviction and are contended by Lynch to be the basis for a § 1983 claim, that federal
claim has the same statutory limitation period as its analogous state claim. Southwick, 145 Wn.
App. at 297 (citing Robinson v. City of Seattle, 119 Wn.2d 34, 86, 830 P.2d 318 (1992)).
         6 Lynch relies on our opinion in Brown, 198 Wn. App. 1, for the proposition that his state
law tort actions did not accrue until his conviction was vacated in 2016. His reliance is unavailing.
         There is nothing in the pleadings submitted that put into doubt that, in 2007, Lynch "'knew
or should have known all of the essential elements of the cause of action'for each of his alleged
tort claims. Brown, 198 Wn. App. at 12(quoting White, 103 Wn.2d at 348).
         7 Given our disposition of this matter, the parties' motions on appeal are denied.




                                               - 13-
