1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 1

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

ROBERT BONNEVILLE a/k/a WILL

ELLWANGER,

Plaintiff,

v.

KITSAP COUNTY, a municipal corporation,

KITSAP COUNTY HEALTH DISTRICT,

STEPHEN MOUNT, TIMOTHY QUAYLE,

THOMAS WIGGINS, and MICHAEL

BARTH,

Defendants.

Case No. C06-5228RJB

ORDER ON MOTIONS TO

STRIKE PLAINTIFF’S SECOND

AMENDED COMPLAINT AND

PLAINTIFF’S MOTION FOR

SUMMARY JUDGMENT,

PLAINTIFF’S MOTION TO

STRIKE AND DEFENDANTS

CROSS MOTION FOR

SUMMARY JUDGMENT 

 

This matter comes before the Court on Defendants Kitsap County, Stephen Mount and

Michael Barth’s Motion to Strike Plaintiff’s Second Amended Complaint and Plaintiff’s Motion for

Summary Judgment (Dkt. 30), Plaintiff’s Motion to Strike (Dkt. 39), Defendants Kitsap County

Health District, Timothy Quayle, and Thomas Wiggins’ Cross Motion for Summary Judgment (Dkt.

44). The Court has considered the pleadings filed in support of and in opposition to these motions and

the file herein. 

I. PROCEDURAL AND FACTUAL BACKGROUND

This dispute concerns improvements on two properties located in Kitsap County. Dkt. 1-3. 

Case 3:06-cv-05228-RJB Document 46 Filed 08/08/06 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 2

On April 3, 2006, Plaintiff filed, pro se, a complaint against Defendants in Kitsap County Superior

Court. Dkt. 1-2. The complaint was amended on April 25, 2006, alleging the following claims: 1)

Defendants violated Plaintiff’s Due Process and Equal Protection rights under both the federal and

state constitutions contrary to 42 U.S.C. § 1983, and 2) Defendants conspired to violate Plaintiff’s

constitutional rights contrary to 42 U.S.C. § 1985(3). Dkt. 1-3, at 30-33. On April 25, 2006, the case

was removed to this Court. Dkt. 1-1. 

Plaintiff moved again to amend his Complaint on June 22, 2006. Dkt. 20. In his motion to

amend, Plaintiff indicates he would like to amend his complaint to “allege that the searches and

seizures conducted by defendants were unlawful and in violation of the laws and constitution of the

State of Washington and the Fourth Amendment of the United States Constitution.” Id., at 3. 

Plaintiff failed to attach a proposed amended complaint to his motion. Because it was not noted for

consideration properly under Local Rule of Civil Procedure 7(d), the Court noted the motion to

amend for consideration on July 7, 2006. Dkt. 23. Defendants filed responses indicating that they did

not oppose the motion. Dkts. 24 and 25. On July 21, 2006, Plaintiff’s Motion to Amend was granted

based upon the representations in his motion and without consideration of pleadings filed after July 6,

2006. Dkt. 34. 

On July 17, 2006, eleven days after Defendants responded, Plaintiff filed a Second Amended

Complaint and a Motion for Summary Judgment. Dkt. 26 and 27. The Second Amended Complaint

adds allegations related to his illegal search and seizure claims, but also alleges other matters, not

addressed in his Motion to Amend, including: 1) that four additional parties co-conspired to violate his

constitutional rights, 2) Philip Bacus aided and abetted the conspiracy by improperly denying

Plaintiff’s Freedom of Information Act requests and encouraged Defendants to provide false and

misleading testimony at hearings, 3) the Kitsap County Health District violated his right to notice and

an opportunity to be heard, and 4) requests additional relief in the form of a declaration of “the rights

and liabilities of the parties.” Dkt. 26. The Motion for Summary Judgment, filed with the Second

Amended Complaint was noted for consideration on August 11, 2006. Dkt. 27. 

On July 18, 2006, Defendant Kitsap County, Stephen Mount and Michael Barth moved for an

order striking Plaintiff’s Second Amended Complaint and Plaintiff’s Motion for Summary Judgment

Case 3:06-cv-05228-RJB Document 46 Filed 08/08/06 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 3

arguing: 1) Plaintiff’s Second Amended Complaint (Dkt. 26) should be stricken because the Court has

not granted him leave to file it, and 2) Plaintiff’s Motion for Summary Judgment (Dkt. 27) should be

stricken because the sole claim for which Plaintiff seeks summary judgment was the subject of

Plaintiff’s Motion to Amend (search and seizure). Dkt. 30. Kitsap County Health District, Thomas

Wiggins, and Timothy Quayle join in the Motions to Strike. Dkt. 32. On July 20, 2006, Plaintiff filed

an Opposition to Defendants’ Motions to Strike arguing: 1) Defendants’ failure to oppose the motion

to amend was “a written consent of the adverse parties” pursuant to Fed. R. Civ. P. 15(a), 2)

Defendants have ten days to respond to the Second Amended Complaint under Rule 15(a), and 3)

Rule 56 provides that a summary judgment motion may be filed at “any time after the expiration of 20

from the commencement of the action.” Dkt. 33. On August 3, 2006, Defendants Kitsap County,

Stephen Mount and Michael Barth filed a reply arguing: 1) Defendants did not consent to Plaintiff’s

filing a Second Amended Complaint, 2) the Court should either strike the Second Amended Complaint

because Plaintiff did not have leave to file it, or grant them ten days from the date of this order to file

an amended answer, 3) Plaintiff’s Second Amended Complaint should be stricken because it includes

allegations against several additional municipal employees (including Philip Bacus, counsel for Kitsap

County) which were not discussed in Plaintiff’s Motion to Amend, and Kitsap County would have

opposed the amendment as prejudicial, 4) Plaintiff’s Motion for Summary Judgment was for a claim

that was not then part of this suit, and 5) Defendants should have an opportunity to answer the Second

Amended Complaint before being forced to respond to a Summary Judgment Motion. Dkt. 37. 

Plaintiff files a sur-reply arguing: 1) Defendants are improperly arguing new grounds to strike the

Complaint and Plaintiff has not had time to respond, and 2) the Bacus declaration contains false

statements and should be stricken. Dkt. 39-1. 

On August 7, 2006, Defendants Kitsap County Health District, Timothy Quayle, and Thomas

Wiggins filed an Opposition to Plaintiff’s Motion for Summary Judgment and Cross Motion for

Summary Judgment. Dkt. 44. They state that they “submit these papers pending a ruling on the

Motion to Strike, and request an opportunity to submit revised papers after the ruling on the Motion

to Strike is issued.” Id. This Cross Motion for Summary Judgment only addresses Plaintiff’s search

and seizure claims. Id. 

Case 3:06-cv-05228-RJB Document 46 Filed 08/08/06 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 4

II. DISCUSSION

This opinion will first address the Motions to Strike Plaintiff’s Second Amended Complaint

and Plaintiff’s Motion for Summary Judgment (Dkt. 30), then turn to Plaintiff’s Motion to Strike (Dkt.

39), and finally address Defendants Kitsap County Health District, Timothy Quayle, and Thomas

Wiggins’ Cross Motion for Summary Judgment (Dkt. 44). 

A. MOTIONS TO STRIKE PLAINTIFF’S SECOND AMENDED COMPLAINT

AND PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

Fed. R. Civ. Pro. 15(a) provides:

A party may amend the party's pleading once as a matter of course at any time before a

responsive pleading is served or, if the pleading is one to which no responsive pleading

is permitted and the action has not been placed upon the trial calendar, the party may so

amend it at any time within 20 days after it is served. Otherwise a party may amend the

party's pleading only by leave of court or by written consent of the adverse party; and

leave shall be freely given when justice so requires. A party shall plead in response to

an amended pleading within the time remaining for response to the original pleading or

within 10 days after service of the amended pleading, whichever period may be the

longer, unless the court otherwise orders. 

The pleading filed as Plaintiff’s Second Amended Complaint (Dkt. 26) should be stricken. At

the time Plaintiff filed this pleading he did not have leave of the Court or written consent from the

adverse parties, and Plaintiff included items in the Second Amended Complaint for which he had

received neither leave of the Court nor written consent of the adverse parties. In the interests of

justice, Plaintiff, if he so chooses, should be permitted to file an Amended Second Amended Complaint

which conforms with the representations he made in his June 22, 2006 Motion to Amend, provided

that it is filed within fourteen days from the date of this order. 

Plaintiff’s Summary Judgment Motion (Dkt. 27) should be stricken. Plaintiff does not dispute

that he seeks summary judgment solely upon the search and seizure claim, which was the subject of his

motion to amend. In light of the above discussion, Plaintiff seeks relief for claims which are not in any

valid complaint. 

C. PLAINTIFF’S MOTION TO STRIKE BACUS DECLARATION 

Plaintiff’s motion to strike the Bacus declaration should be denied. Dkt. 39. Plaintiff fails to

provide a valid basis upon which to strike the Bacus declaration. All parties are again reminded that

the Fed. R. Civ. Pro. 11 applies.

Case 3:06-cv-05228-RJB Document 46 Filed 08/08/06 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

ORDER

Page - 5

D. DEFENDANTS KITSAP COUNTY HEALTH DISTRICT, TIMOTHY

QUAYLE, AND THOMAS WIGGINS’ CROSS MOTION FOR SUMMARY

JUDGMENT

Defendants Kitsap County Health District, Timothy Quayle, and Thomas Wiggins’ Cross

Motion for Summary Judgment (Dkt. 44) should be stricken as moot. The subject of the motion is

Plaintiff’s search and seizure claim, one which, as discussed above, is not yet a part of his complaint. 

III. ORDER

Therefore, it is hereby ORDERED that:

• Defendants Kitsap County, Stephen Mount and Michael Barth’s Motion to Strike Plaintiff’s

Second Amended Complaint and Plaintiff’s Motion for Summary Judgment (Dkt. 30) is

GRANTED. 

• In accordance with this Court’s Order Granting Plaintiff Leave to Amend his Complaint (Dkt.

34), Plaintiff may, if he chooses, file an Amended Second Amended Complaint which is

consistent with the representations in his Motion for Leave to Amend, provided that such is

made within fourteen days of the date of this order. 

• Plaintiff’s Motion to Strike (Dkt. 39) is DENIED. 

• Defendants Kitsap County Health District, Timothy Quayle, and Thomas Wiggins’ Cross

Motion for Summary Judgment (Dkt. 44) is STRICKEN AS MOOT.

The Clerk is directed to send uncertified copies of this Order to all counsel of record and to

any party appearing pro se at said party’s last known address. 

DATED this 8th day of August, 2006.

ARobert J. Bryan

United States District Judge

Case 3:06-cv-05228-RJB Document 46 Filed 08/08/06 Page 5 of 5