Doscher v. City of Tumwater
| Docket Number | 3:22-cv-05340-RJB |
| Decision Date | 30 August 2022 |
| Parties | CHRISTIAN DOSCHER, pro se, Plaintiff, v. CITY OF TUMWATER, et al., Defendants. |
| Court | U.S. District Court — Western District of Washington |
ORDER ON TUMWATER DEFENDANTS' MOTION TO DISMISS
This matter comes before the Court on Tumwater Defendants' Motion to Dismiss (Dkt. 13). The Court has considered the pleadings filed in support of and in opposition to the motion and the remaining file, and it is fully advised.
Plaintiff Christian Doscher, proceeding pro se, brings this lawsuit against twenty-five defendants and claims twenty-seven causes of action arising out of alleged incidents at the Tumwater Regional Library (the “Library”) on September 14 and 18, 2021. Dkt. 7. At that time, the Library had a masking policy in place in response to the COVID-19 pandemic. See id. at 5. Doscher claims that he has a disability that prevents him from wearing a covering over both his nose and mouth. Id. at 11. On both September 14 and 18, Library staff allegedly asked him to comply with the policy and, after he refused, called the police. He alleges that Tumwater police unconstitutionally seized him in violation of 42 U.S.C. § 1983, and he brings claims for conspiracy and negligence. Dkt. 7. Doscher requests punitive damages and both injunctive and declaratory relief.
For the reasons set forth in this Order, Tumwater Defendants' motion to dismiss should be granted.
The facts set forth below are taken from the complaint and are assumed to be true for purposes of this motion only, and they are limited to those raised against the City of Tumwater and Carlos Quiles, R.J. Baughn, Stacy Brown, Rachael Black, James Moran, Danielle Dawson, and Jon Weiks, all members of the Tumwater Police Department, (collectively “Tumwater Defendants”).
On September 14, 2021, the Library had a masking policy in place that read: “Starting August 13, regardless of vaccination status all staff and patrons (5 and older) must wear a mask inside any Timberland Libraries.” Dkt. 7 at 5. Doscher had been previously diagnosed with a breathing disability that causes him to become easily winded if walks with a covering over both his mouth and nose. Id. at 122. There was also a state-wide policy in place at the time that included recognizing mask exemptions for people with certain disabilities and prohibited requiring proof of a disability. See id. at 22. As such, Doscher went to the Library that day wearing a mask over his mouth but not his nose. Id. at 4.
Doscher told a Library employee of his disability when he arrived, and she permitted him to be at the Library partially masked for about an hour. Id. at 13-14. A different staff member then told Doscher that he must mask. Id. at 14. After a bit more conversation, that employee called the Tumwater Police Department and claimed that the Doscher refused to leave. Id. Doscher says that he had never been asked to leave and that the employee lied to the police. Id.
Three Tumwater police officers, defendants Baughn, Brown, and Black, arrived soon after the call. Id. at 21. Officer Baughen told Doscher that the Library had reported him for refusing to wear a mask properly or leave. Id. After questioning about whether Doscher was exempt from the mask requirement because of his disability, Officer Baughn allegedly said, “you need to leave immediately.” Id. at 22. Doscher requested that the police make a written report of the incident to which Officer Baughn responded, “[w]e're not going to make a written report of this, as it's not a criminal act unless you make it that way.” Id. at 23. According to Doscher, he felt compelled to follow the officer's direction to leave and left with the officers without incident. Id. at 24. He was told that he could not return to the Library for the rest of the day. Id.
A similar incident occurred on September 18, 2021, in which Tumwater police informed Doscher that “he was not free to disregard their commands, but must leave the library or be subject to arrest for trespass.” Id. at 37. Officer Baughn, who was present both days, gave Doscher a trespass warning document with preprinted citations to the Washington State criminal trespass statute and told Doscher that he must stay out of the Library for the day. Id. at 38.
Doscher alleges that Tumwater Police Lieutenant Carlos Quiles implemented policies and practices that caused his injury and that Tumwater Chief of Police Jon Weiks ratified police officers' unconstitutional behavior. Dkt. 7.
In the pending motion, Tumwater Defendants move to dismiss all claims alleged against Tumwater police officers and claims against the City of Tumwater for alleged police activity, practices, and policies. Dkt 13. Doscher also brings claims against the City of Tumwater based on the actions of Library employees. Dkt. 7 at 46. Neither the pending motion to dismiss, nor does this Order address claims against the City of Tumwater for Library actions.
Doscher both opposes the motion to dismiss on its merits, and he argues that it should not be considered because it is an improper motion for reconsideration. Dkt. 18. He also argues that rebuttal is not needed because the motion is fatally flawed. Id. The Court will address those arguments before turning to the merits.
Doscher argues that the pending motion to dismiss is an improper motion for reconsideration because his complaint was already screened and approved when a magistrate judge approved his motion to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915A. Dkt. 18 at 2. He cites Leal v. Georgia Dep't of Corr., 254 F.3d 1276 (11th Cir. 2001), to support his argument.
While Leal states that the standard for dismissal under 28 U.S.C. § 1915A is the same as under Rule 12(b)(6), it does not establish that screening under § 1915A precludes a defendant from bringing a motion to dismiss. Furthermore, § 1915A does not apply to this case because it governs screening complaints filed by prisoners. 28 U.S.C. § 1915A(a) () Courts may screen a complaint when reviewing an IFP motion brought by a non-prisoner, see 28 U.S.C. § 1915(e)(2), but that did not occur in this case. His IFP motion was merely approved because he did “not appear to have the funds available to afford the $403.00 Court filing fee.” Dkt. 6.
Doscher also appears to argue that Federal Rule of Civil Procedure 12(h)(3) (Lack of Subject-Matter Jurisdiction) supports his argument that the motion to dismiss is an improper motion for reconsideration. Rule 12(h)(3) was not raised by Tumwater Defendants, is not relevant to this motion, and does not support his argument.
Therefore, the Tumwater Defendant's motion to dismiss is not an improper motion for reconsideration.
Doscher argues that Tumwater Defendants should not be permitted to file a reply in support in their motion to dismiss because their motion is fatally flawed. Dkt. 18 at 5. A moving party, however, has a right to file a reply brief. See Western District of Washington Local Civil Rule 7(b)(3). That right does not depend on whether a motion has merit.
Therefore, the Court will consider Tumwater Defendants' pending motion to dismiss and the reply filed in support.
Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 717 F.2d 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. Plaintiffs must allege “enough facts to state a claim to relief that is plausible on its face.” Id. at 556.
Additionally, a complaint filed by a pro se litigant, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). As such, courts must give pro se litigants notice of deficiencies in their complaint and an opportunity to amend unless it is “absolutely clear that the deficiencies of the complaint cannot be cured by amendment.” Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007).
To state a claim under 42 U.S.C. § 1983, a complaint must allege that (1) the conduct complained of was committed by a person acting under color of state law, and that (2) the conduct deprived a person of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981) overruled on other grounds, Daniels v. Williams, 474 U.S. 327 (1986). Section 1983 is the...
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