Filed
Washington State
Court of Appeals
Division Two
February 28, 2017
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
KENNETH SWANIGAN and CHARLIE No. 48631-8-II
WALKER, III, PAST GRAND MASTERS,
Appellants,
v. UNPUBLISHED OPINION
MOST WORSHIPFUL PRINCE HALL
GRAND LODGE F.A.M. WASHINGTON &
JURISDICTION and MOST WORSHIPFUL
GRAND MASTER GREGORY D. WRAGGS,
SR.,
Respondents.
MAXA, A.C.J. – Kenneth Swanigan and Charlie Walker appeal the trial court’s dismissal
of their complaint against the Most Worshipful Prince Hall Grand Lodge (Grand Lodge) and its
Grand Master, Gregory Wraggs. Swanigan and Walker argue that the trial court erred because
their complaint stated claims for harassment under chapter 10.14 RCW and violation of their
substantive due process, procedural due process, and equal protection rights. Swanigan and
Walker also allege various procedural errors.
We hold that the trial court did not err in granting the Grand Lodge’s motion to dismiss
because the complaint’s allegations were insufficient to (1) state a claim for harassment under
chapter 10.14 RCW, and (2) support a finding that the Grand Lodge engaged in state action, a
requirement for a constitutional violation. We reject Swanigan and Walker’s procedural claims.
Accordingly, we affirm the trial court’s order of dismissal of Swanigan and Walker’s complaint.
No. 48631-8-II
FACTS
Swanigan and Walker are Freemasons and life members of the Grand Lodge, a local unit
of the Freemasons. The Freemasons have a longstanding set of internal rules that govern the
operations of each Grand Lodge. Among other things, these rules provide each Mason with the
right to receive a Masonic trial before being disciplined.
On June 5, 2015, Swanigan and Walker attended the trial of a lawsuit between another
Freemason – Lonnie Traylor – and the Grand Lodge. Traylor had filed suit after his membership
was suspended. Swanigan and Walker received a letter of reprimand from Wraggs, apparently
for attending Traylor’s trial. They subsequently received a notification of trial scheduling a
Masonic trial for June 30. The complaint does not state what happened at the trial, but the
complaint alleges that Swanigan and Walker were illegally suspended from the Grand Lodge.
On July 6, Swanigan and Walker filed a motion for a preliminary injunction to allow
Swanigan to attend and participate in Masonic affairs, including to attend the Grand Lodge’s
annual meeting on July 13-15.1 The trial court denied the motion without prejudice. Swanigan
filed a nearly identical motion on July 9.2 On the same day, Swanigan filed a motion for a
temporary restraining order (TRO). The record does not show if or when the trial court ruled on
these motions.
1
The motion does not clearly state the relief sought. But the motion attached a proposed order
granting the injunction that enjoined the Grand Lodge from preventing Swanigan from attending
and participating in Masonic affairs, including attending the Grand Lodge’s annual meeting.
2
Both Swanigan and Walker signed the first motion for a preliminary injunction, but only
Swanigan signed the second motion.
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No. 48631-8-II
On July 7, Swanigan and Walker filed a complaint against the Grand Lodge and Wraggs.3
The complaint alleged that the Grand Lodge violated RCW 10.14.020(1), Washington’s unlawful
harassment statute, and violated their substantive due process, procedural due process, and equal
protection rights under the Fourteenth Amendment of the United States Constitution. But the
complaint primarily consisted of recitations of multiple Grand Lodge rules and procedures. The
complaint alleged that the Grand Lodge violated some of these rules and procedures. The last
page of the complaint appears to be taken from a “grievance and appeal” document and
requested that “this Grand Body” review and overturn the Grand Lodge’s decision. Clerk’s
Papers (CP) at 51.
On July 28, Swanigan and Walker served a request for production of documents on the
Grand Lodge. Swanigan and Walker represent on appeal that the Grand Lodge did not respond
to these requests. There is no indication in the record that Swanigan and Walker ever filed a
motion to compel responses to the requests for production.
On December 3, the Grand Lodge moved to dismiss the complaint for failure to state a
claim because the complaint did not state a claim for relief as required under CR 8(a). On
December 10, the case was administratively reassigned from Judge Hogan to Judge Schwartz.
There is no indication in the record that Swanigan and Walker objected to this reassignment at
the time.
3
Only Swanigan signed the complaint. A nonlawyer party who represents himself cannot
lawfully represent another party or submit documents on another party’s behalf. See Lloyd
Enters., Inc. v. Longview Plumbing & Heating Co., 91 Wn. App. 697, 701, 958 P.2d 1035
(1998). Therefore, Walker’s claims were subject to dismissal. However, the Grand Lodge does
not raise this issue. Because we affirm dismissal of the complaint, we need not address this
issue.
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No. 48631-8-II
The trial court granted the Grand Lodge’s motion to dismiss, and later denied Swanigan
and Walker’s motion for reconsideration. Swanigan and Walker appeal.
ANALYSIS
A. STANDARD OF REVIEW
The Grand Lodge filed a motion to dismiss based on CR 8(a) and argued that Swanigan
and Walker’s complaint “fail[ed] to state a claim for which relief can be granted.” CP at 181.
CR 8(a) requires that a complaint contain a “short and plain statement of the claim showing that
the pleader is entitled to relief.” If a complaint does not comply with CR 8(a), the trial court may
dismiss it for failure to state a claim under CR 12(b)(6). Becker v. Cmty. Health Sys., Inc., 182
Wn. App. 935, 941, 332 P.3d 1085 (2014), aff’d, 184 Wn.2d 252, 359 P.3d 746 (2015).
Under CR 12(b)(6), a complaint may be dismissed if it fails to state a claim upon which
relief can be granted. We review de novo a CR 12(b)(6) order dismissing a claim. J.S. v. Vill.
Voice Media Holdings, LLC, 184 Wn.2d 95, 100, 359 P.3d 714 (2015). A complaint must
contain allegations sufficient to provide a defendant with notice of what the claim is about and
the grounds on which is rests. Estate of Dormaier v. Columbia Basin Anesthesia, PLLC, 177
Wn. App. 828, 854, 313 P.3d 431 (2013).
We accept as true all facts alleged in the plaintiff’s complaint and all reasonable
inferences from those facts. J.S., 184 Wn.2d at 100. We also “may consider hypothetical facts
supporting the plaintiff’s claim.” FutureSelect Portfolio Mgmt., Inc. v. Tremont Grp. Holdings,
Inc., 180 Wn.2d 954, 962, 331 P.3d 29 (2014). The question is whether there are facts that
conceivably could be raised that would support a legally sufficient claim. Worthington v.
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No. 48631-8-II
WestNET, 182 Wn.2d 500, 505, 341 P.3d 995 (2015). Dismissal under CR 12(b)(6) is
appropriate only if the plaintiff cannot allege any set of facts that would justify recovery. Id.
B. STATUTORY HARASSMENT CLAIM
Swanigan and Walker expressly alleged in their complaint that their suit was being
brought under RCW 10.14.020(1). Swanigan and Walker repeat this claim several times in their
briefs. We hold that the complaint’s allegations failed to state a claim for relief for statutory
harassment.
Chapter 10.14 RCW, the anti-harassment statute, is intended to prevent “personal
harassment through repeated invasions of a person’s privacy by acts and words.” RCW
10.14.010. The statute defines “unlawful harassment” to mean a “knowing and willful course of
conduct directed at a specific person which seriously alarms, annoys, harasses, or is detrimental
to such person, and which serves no legitimate or lawful purpose.” RCW 10.14.020. The
behavior must both be sufficient to “cause a reasonable person to suffer substantial emotional
distress” and actually cause such distress to the plaintiff. RCW 10.14.020; see State v.
Whittaker, 192 Wn. App. 395, 406, 367 P.3d 1092 (2016).
Here, Swanigan and Walker apparently alleged in their complaint that the Grand Lodge
violated its own rules and procedures in disciplining them. But their complaint did not contain
any allegations showing how these actions fell within the definition of harassment in RCW
10.14.020. The complaint indicates only that the Grand Lodge reprimanded them, required them
to attend a Masonic trial, and possibly suspended them. These actions are not sufficient to state a
statutory harassment claim.
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No. 48631-8-II
Further, the relief allowed under chapter 10.14 RCW is an order of protection against
unlawful harassment. RCW 10.14.040. There is no indication in the statute that a petitioner can
obtain any other relief. Swanigan and Walker did not expressly request a protection order in
their complaint.
We hold that the trial court properly dismissed Swanigan and Walker’s statutory
harassment claim.
C. CONSTITUTIONAL CLAIMS
Swanigan and Walker alleged in their complaint that the Grand Lodge failed to follow its
own rules and procedures in disciplining them. But the only stated basis for relief was for a
violation of their substantive due process, procedural due process, and equal protection rights
under the Fourteenth Amendment. We hold that the complaint allegations failed to state a claim
for relief for constitutional violations because there were no allegations that the Grand Lodge
was a state actor.
The Fourteenth Amendment applies only to actions of the state. In re Estate of Hayes,
185 Wn. App. 567, 603, 342 P.3d 1161 (2015). To bring a constitutional claim, a plaintiff must
identify some state action that deprived him or her of a constitutionally protected property or
liberty interest. Id. When a complaint fails to demonstrate that state action has occurred, that
complaint must be dismissed for failure to state a claim. In re Estate of Wright, 147 Wn. App.
674, 686-87, 196 P.3d 1075, 1082 (2008).
Here, the Grand Lodge appears to be a private organization. And Swanigan and Walker’s
complaint did not allege that the Grand Lodge was an agent of the state or that any state action
had occurred. Therefore, the complaint did not state a claim for a constitutional violation.
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No. 48631-8-II
Swanigan and Walker’s allegations that the Grand Lodge failed to follow its own rules
and procedures in disciplining them technically could state a cause of action on non-
constitutional grounds. But they do not allege in their complaint or identify in their briefing any
basis for a civil claim against the Grand Lodge.
We hold that the trial court properly dismissed Swanigan and Walker’s claims for
violation of their due process and equal protection rights.
D. PROCEDURAL CLAIMS
Swanigan and Walker assert various procedural claims that are only tangentially related
to the Grand Lodge’s CR 12(b)(6) motion. We reject all of these claims.
1. Grand Lodge’s Failure to Respond to Complaint
Swanigan and Walker argue that the Grand Lodge failed to respond to their complaint.
The Grand Lodge apparently did not file an answer to the complaint. But a defendant is entitled
to file a CR 12(b)(6) motion before filing an answer. CR 12(b). We reject this argument.
2. Motions for Injunction/TRO
Swanigan and Walker argue that the trial court erred by not considering Swanigan and
Walker’s July 9 motions for a preliminary injunction and a TRO. But the record does not show
that Swanigan ever noted these motions on the trial court’s calendar or requested that the trial
court consider them. In the absence of such evidence, we cannot determine whether the trial
court was required to address these motions. Further, Swanigan and Walker do not show that if
the trial court had considered these motions, it would have ruled any differently than in its order
denying Swanigan and Walker’s first motion for an injunction. We reject this argument.
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No. 48631-8-II
3. Request for Discovery
Swanigan and Walker argue that the trial court erred by not requiring the Grand Lodge to
respond to their discovery requests. But discovery is immaterial under CR 12(b)(6), which
focuses only on the allegations in the plaintiff’s complaint. CR 12(b); see Rodriguez v. Loudeye
Corp., 144 Wn. App. 709, 725, 189 P.3d 168 (2008). Further, Swanigan and Walker apparently
did not file a motion to compel discovery. We reject this argument.
4. Grand Lodge’s Failure to Produce Evidence
Swanigan and Walker argue that the trial court erred by not requiring the Grand Lodge to
produce evidence supporting its discipline of them. But a defendant has no obligation to present
evidence to support a CR 12(b)(6) motion, which is based on the allegations in the plaintiff’s
complaint. CR 12(b); see Rodriguez, 144 Wn. App. at 725. We reject this argument.
5. Assigning Case to a Different Judge
Swanigan and Walker argue that the trial court violated due process by not timely
informing them that their case had been assigned to a different judge until the day of the CR
12(b)(6) hearing. But they have not cited any authority for the proposition that the trial court
must provide notice before a case is assigned to a different judge. And they do not explain why
assigning a case to a different judge without notice violates due process. We reject this
argument.
6. Grand Lodge Appeal Process
Swanigan and Walker argue that the trial court erred by not considering the Grand
Lodge’s failure to allow them to appeal their discipline before the Grand Assembly. But as
noted above, due process and equal protection were the only stated grounds for relief for the
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No. 48631-8-II
Grand Lodge’s alleged failure to follow its procedures in disciplining Swanigan and Walker.
And the complaint did not allege state action. We reject this argument.
7. Trial Court’s Failure to Consider Declarations
Swanigan and Walker argue that the trial court erred by not considering declarations that
they submitted. But declaration evidence is immaterial for a CR 12(b)(6) motion, which is based
on the allegations in the plaintiff’s complaint. CR 12(b); see Rodriguez, 144 Wn. App. at 725.
And Swanigan and Walker do not identify the declarations to which they are referring. We
reject this argument.
CONCLUSION
We affirm the trial court’s dismissal of Swanigan and Walker’s complaint.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, A.C.J.
We concur:
WORSWICK, J.
SUTTON, J.
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