Doscher v. Kroger Co.

• Decision Date: 30 March 2023
• Docket Number: 3:21-CV-05255-TL
• Parties: CHRISTIAN DOSCHER, Plaintiff, v. KROGER CO. et al., Defendants.
• Court: U.S. District Court — Western District of Washington

1

CHRISTIAN DOSCHER, Plaintiff, v. KROGER CO. et al., Defendants.

No. 3:21-CV-05255-TL

United States District Court, W.D. Washington, Tacoma

March 30, 2023

ORDER OF DISMISSAL

Tana Lin, United States District Judge

Plaintiff Christian Doscher claims that he was discriminated against for having a disability and that his Constitutional rights were violated when he was trespassed from a Fred Meyer store for refusing to wear a face mask as required by state mandate in December 2020 due to the COViD-19 pandemic. This matter is before the Court on Defendants Kroger Co., Kathryn Hedges and Daron Maygra's (hereinafter, “Fred Meyer Defendants”)^[1]Motion to Dismiss, and the Motion to Dismiss and Memorandum in Support on Behalf of Defendants Oran Thompson, Jay Mason, and City of Tumwater (“Tumwater Defendants”). Dkt. Nos. 26, 28. Having considered the relevant record, the Court finds that Plaintiff fails to state a plausible federal claim, GRANTS the two motions to dismiss, and DISMISSES the Amended Complaint.

I. Background

In December 2020, Mr. Doscher attempted to pay a utility bill, in person, at a local Fred Meyer. Dkt. No. 12 ¶ 5. At the time, the Washington State Governor had declared a state of emergency due to the ongoing COVID-19 pandemic. Proclamation of Governor Jay Inslee, No. 20-05 (Feb. 29, 2020).^[2] In response, the Washington State Department of Health (“DOH”) issued a state-wide mandate requiring most individuals to wear a mask or other appropriate face covering while in an indoor public space. See Order of the Secretary of Health 20-03.1 (July 24, 2020).^[3]The DOH order included exemptions from the mask mandate, including for “persons with a medical condition for whom wearing a face covering could obstruct breathing.” Id. The same day the DOH order was issued, Governor Inslee issued a subsequent proclamation stating “[n]o business may operate, allow a customer to enter a business, or conduct business with a customer inside any building that is open to the public or outdoors in a public place unless the customer is wearing a face covering, as required by Order of the Secretary of Health 20-03.1.” Proclamation of Governor Jay Inslee, No. 20-25.7 at 5 (July 24, 2020).^[4] Mr. Doscher alleges that he has a medical condition that qualified for an exemption from the mask mandate per the DOH order. Dkt. No. 12 ¶ 5. As such, Mr. Doscher entered the Fred Meyer store without wearing a mask. Id. In response to Proclamation 20-25.7, the Fred Meyer store had implemented a policy requiring all customers to wear masks while in the store. Dkt. No. 26 at 2-3. While Mr. Doscher waited in line at the customer service station, he was informed of the store's mask policy by multiple employees. Dkt. No. 12 ¶¶ 6, 11. Mr. Doscher refused to wear a mask, citing his alleged exemption. Id. ¶¶ 7, 10. Based on Mr. Doscher's refusal to wear a mask, one of the Fred Meyer employees who interacted with Mr. Doscher, Defendant Catherine Hedges, called 911 at the direction of her manager Defendant Daron Maygra, who had also interacted with Mr. Doscher, and reported that Mr. Doscher was refusing to wear a mask and was being disorderly. Id. ¶¶ 8-16. While waiting for the police to respond, Ms. Hedges began assisting Mr. Doscher with his utility payment. Id. ¶ 23. Before Mr. Doscher's utility payment was completed, Defendant Officer Oran Thompson, of the Tumwater Police Department, arrived and informed Ms. Hedges that he could not trespass Mr. Doscher if she continued to assist him. Id. ¶ 27. Ms. Hedges then stopped assisting Mr. Doscher. Id. ¶ 28. Officer Thompson then confirmed with Mr. Maygra that he still intended for Mr. Doscher to be trespassed from the store. Id. ¶¶ 30-31. Officer Thompson then escorted Mr. Doscher from the store and issued a Trespass Warning banning Mr. Doscher from the Fred Meyer store for one year. Id. ¶¶ 32-36, 42-47.

II. Legal Standard

When a plaintiff “fails to state a claim upon which relief can be granted,” the defendant may move for dismissal. Fed.R.Civ.P. 12(b)(6). In reviewing a 12(b)(6) motion to dismiss, the Court takes all well-pleaded factual allegations as true and considers whether the complaint “state[s] a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted); accord Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). While “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements” are insufficient, a claim has “facial plausibility” when the party seeking relief “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 672. “When reviewing a dismissal pursuant to Rule . . . 12(b)(6), ‘we accept as true all facts alleged in the complaint and construe them in the light most favorable to plaintiff, the non-moving party.'” DaVinci Aircraft, Inc. v. United States, 926 F.3d 1117, 1122 (9th Cir. 2019) (cleaned up) (quoting Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1156-57 (9th Cir. 2017)).

When a plaintiff is proceeding pro se, the complaint must be “liberally construed” and held “to less stringent standards than formal pleadings drafted by lawyers.” E.g., Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 & n.4 (9th Cir. 2011) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam)). Even so, a court should “not supply essential elements of the claim that were not initially pled.” E.g., Henderson v. Anderson, No. C19-789, 2019 WL 3996859, at *1 (W.D. Wash. Aug. 23, 2019) (quotation marks omitted) (quoting Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997)); see also Khalid v. Microsoft Corp., 409 F.Supp.3d 1023, 1031 (W.D. Wash. 2019) (“[C]ourts should not have to serve as advocates for pro se litigants.” (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987))).

III. Discussion

In his Amended Complaint, Mr. Doscher asserts 16 different causes of action:

• Count 1 - Fred Meyer's violation of Title III of the Americans with Disabilities Act (“ADA”);

• Count 2 - Officer Thompson's violation of Title III of the ADA; • Count 3 - Fred Meyer's violation of the Washington Law Against Discrimination (“WLAD”);

• Count 4 - Officer Thompson's violation of the WLAD;

• Count 5 - Officer Thompson's individual liability under 42 U.S.C. § 1983;

• Count 6 - City of Tumwater's liability under 42 U.S.C. § 1983 and Monell;

• Count 7 - Hedges' individual liability under 42 U.S.C. § 1983;

• Count 8 - Hedges' violation of the WLAD;

• Count 9 - Maygra's individual liability under 42 U.S.C. § 1983;

• Count 10 - Maygra's violation of the WLAD;

• Count 11 - Fred Meyer's corporate liability under 42 U.S.C. § 1983;

• Count 12 - Fred Meyer's corporate liability under the WLAD;

• Count 13 - Conspiracy to violate 42 U.S.C. § 1983 by all Defendants;

• Count 14 - Fred Meyer's liability under 42 U.S.C. § 1985;

• Count 15 - Officer Thompson's individual liability under 42 U.S.C. 1986;

• Count 16 - City of Tumwater's negligence via respondeat superior.

Dkt. No. 12 ¶¶ 66-178. This Order will only address Mr. Doscher's claims under federal law. See infra Section III.D.

The Fred Meyer Defendants and the Tumwater Defendants seek to dismiss this case in its entirety, arguing that Mr. Doscher fails to plausibly state a claim for relief under any of the asserted causes of action. Dkt. Nos. 26, 28, 32, 33. Mr. Doscher opposes. Dkt. Nos. 30, 31.

As an initial matter, the Court notes that the Amended Complaint is replete with recitations of the elements of the claims, legal conclusions, and unsupported conclusory statements. The Court need not afford these statements any veracity and can disregard them in determining whether the Amended Complaint states a claim for relief. Iqbal, 556 U.S. at 678 (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions[, and] [t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).

A. Discrimination Claims under Title III of the ADA

Title III of the ADA generally provides that:

[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a). To state a claim for discrimination under Title III, a plaintiff must plausibly assert facts that show: (1) he is disabled within the meaning of the ADA; (2) the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of his disability. Lopez v. Catalina Channel Express, Inc., 974 F.3d 1030, 1033 (9th Cir. 2020) (citing Molski v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007)). The Parties do not appear to dispute that the Fred Meyer store where the relevant incident occurred is a place of public accommodation, nor that Plaintiff has plausibly asserted facts establishing that he has a qualifying disability under the ADA. Therefore, this issue turns on whether Plaintiff has asserted sufficient facts to show that he was denied accommodations because of his alleged disability.

1. Title III Claims against Fred Meyer Defendants

The crux of Plaintiff's discrimination claim is that Fred Meyer was required by the ADA to accommodate his disability by allowing him to utilize the in-person utility payment services offered to all customers without requiring him to wear a mask. See, e.g.,...