Kiss v. Best Buy Stores

• Decision Date: 06 December 2022
• Docket Number: 3:22-cv-00281-SB
• Parties: TIBERIU S. KISS, Plaintiff, v. BEST BUY STORES; and JOHN DOE, Defendants.
• Court: U.S. District Court — District of Oregon

TIBERIU S. KISS, Plaintiff, v. BEST BUY STORES; and JOHN DOE, Defendants.

No. 3:22-cv-00281-SB

United States District Court, D. Oregon

December 6, 2022

OPINION AND ORDER

HON STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

Plaintiff Tiberiu S. Kiss (“Kiss”) filed this action against Best Buy Stores, L.P. (“Best Buy”) and Best Buy employee John Doe (“Doe”) (together “Defendants”), alleging constitutional and state law claims arising from Defendants' enforcement of the State of Oregon's COVID-19 mask mandate.

Now before the Court is Defendants' motion to dismiss Kiss's first amended complaint (“FAC”) under FED. R. CIV. P. 12(b)(6) and for attorney's fees under 42 U.S.C. § 1988(b) and 42 U.S.C. § 12205. (Defs.' Mot. to Dismiss (“Defs.' Mot.”), ECF No. 10.) The Court has jurisdiction over this matter under 28 U.S.C §§ 1331 and 1367, and all parties have consented to the jurisdiction of a magistrate judge pursuant to 28 U.S.C § 636. For the reasons discussed below, the Court grants Defendants' motion to dismiss and denies Defendants' motion for attorney's fees.

BACKGROUND^[1]

On November 13, 2021, Kiss entered a Best Buy store located in Beaverton, Oregon. (FAC ¶ 8.) The store had posted signs stating that everyone who enters must wear a face covering. (Id. ¶ 7.) The store's mask requirement was in place to comply with Oregon's indoor mask mandate, implemented in response to the COVID-19 pandemic.^[2] (Id. ¶¶ 36-38, 40.) Immediately upon entry to the store, store employees confronted Kiss who was not wearing a mask and informed Kiss that to shop inside the store, he must wear a face covering. (Id. ¶ 8.) Kiss informed the employees that a medical condition prevented him from wearing a face mask. (Id. ¶ 9.) Kiss was referring to his deviated septum. (Id. ¶ 15.)

Kiss attempted to enter the store but Doe, the store's assistant manager, “walked in front of [Kiss] and bumped him to block his way from shopping.” (Id. ¶ 10.) Doe went to call the police, instructed other store employees to watch Kiss, and told store cashiers not to allow Kiss to purchase anything. (Id. ¶ 12.) Doe repeatedly told Kiss that he must leave the store because Kiss was not wearing a face covering. (Id. ¶ 13.) Kiss again explained he could not wear a mask “due to his medical condition” and explained that “Best Buy could not discriminate against him because of his disability.” (Id. ¶ 14.) Kiss alleges that Best Buy “treated [him] like a criminal.” (Id. ¶ 16.)

LEGAL STANDARDS

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (quoting Iqbal, 556 U.S. at 678).

DISCUSSION

Kiss alleges that Defendants violated (1) his constitutional rights under the Fourteenth Amendment; (2) the Emergency Use Authorization Act; (3) the Americans with Disabilities Act (“ADA”); and (4) the state equivalent, OR. REV STAT. § 659A.142(4). (FAC ¶¶ 49-80.) Kiss also alleges state law assault and battery claims against Doe. (FAC ¶¶ 81-86.) Kiss seeks damages, an injunction preventing Defendants from enforcing any future mask mandate, and attorney's fees.

I. FOURTEENTH AMENDMENT CLAIM

Kiss brings his Fourteenth Amendment claim under 42 U.S.C. § 1983 and alleges that Defendants violated his constitutional right to due process by illegally coercing him to wear an “experimental medical device” (i.e., a face covering) to shop at Best Buy during the COVID-19 pandemic. (FAC ¶¶ 49-56.) Defendants move to dismiss Kiss's Fourteenth Amendment claim for several reasons, including that Defendants are not state actors and Kiss does not allege a violation of a fundamental right. (Defs.' Mot. at 4-16.) Accepting Kiss's factual allegations as true and drawing all reasonable inferences in his favor, the Court concludes that Kiss has failed to state a Fourteenth Amendment claim.

A. State Action

Kiss alleges that upon entry to Best Buy, he was “informed that, per the Governor's mandate, [Kiss] had to wear a mask to shop at Best Buy.” (FAC ¶ 8.) Kiss alleges that “Oregon instituted the [mask mandate] and then made Best Buy its enforcer of the rule in Best Buy Stores.” (Id. ¶ 39.) Kiss claims that “Best Buy do[es] not pressure customers to wear face masks in states that do not have a mask mandate” and “the sole reason that . . . Best Buy pressured [Kiss] to wear a facemask [was] because of” Oregon's mask mandate, and therefore “Best Buy's violation of [Kiss's] rights [was] a result of government policy” and “fairly attributable to the government.” (Id. ¶ 41.) Kiss also claims that because Defendants “pressured[,]” “harass[ed,]” “threatened[,]” and “attempt[ed] to get [Kiss] arrested and/or charged with trespassing for not putting on a face mask,” they are necessarily “state actors acting under color of state law.” (Id. ¶¶ 47-48.)

1. Applicable Law

The Due Process Clause of the Fourteenth Amendment provides that no “State [may] deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1 . “[T]he Fourteenth Amendment . . . applies to acts of the states, not to acts of private persons or entities.” Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982).

“[Section] 1983, which was enacted pursuant to the authority of Congress to enforce the Fourteenth Amendment, prohibits interference with federal rights under color of state law.” Id. “The ultimate issue in determining whether a person is subject to suit under § 1983 is the same question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of federal rights ‘fairly attributable to the State?'” Id. (citing Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). “If the action of the [defendant] is not state action, our inquiry ends.” Id.

“When addressing whether a private party acted under color of law, [courts] start with the presumption that private conduct does not constitute governmental action.” Sutton v. ProvidenceSt. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (citations omitted). “In order for private conduct to constitute governmental action, ‘something more' must be present.” Id. (quoting Lugar, 457 U.S. at 939); see also Lugar, 457 U.S. at 939 (“Action by a private party pursuant to this statute, without something more, was not sufficient to justify a characterization of that party as a ‘state actor.'”).

The Ninth Circuit has “recognized at least four different general tests that may aid [the Court] in identifying state action: ‘(1) public function; (2) joint action; (3) governmental compulsion or coercion; and (4) governmental nexus.'” Rawson v. Recovery Innovations, Inc., 975 F.3d 742, 747 (9th Cir. 2020), cert. denied, 142 S.Ct. 69 (2021) (quoting Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003)). “Faithful application of the state-action requirement . . . ensures that the prerogative of regulating private business remains with the States and the representative branches, not the courts.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999); see also Sutton, 192 F.3d at 838-39 (“To accept Plaintiff's argument [that a private business qualifies as a state actor] would be to convert every [business] . . . into a governmental actor every time it complies with a presumptively valid, generally applicable law, such as an environmental standard or a tax-withholding scheme. Private employers would then be forced to defend those laws and pay any consequent damages, even though they bear no real responsibility for the violation of rights arising from the enactment of the laws.”). The Court addresses each test in turn.

2. Analysis

a. The Public Function Test

“Under the public function test, when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations.” Kirtley, 326 F.3d at 1093 (citation omitted). “The public function test is satisfied only on a showing that the function at issue is both traditionally and exclusively governmental.” Id. (simplified).

Kiss alleges that “[f]ace masks are purportedly intended to help control the spread of COVID-19 [and the p]rotection of the public's health from infectious disease is a public function that is exclusively and traditionally governmental.” (FAC ¶ 43.) Kiss asserts that “Defendants were performing a traditionally and exclusively governmental function when they pressured [Kiss] to wear a face mask.” (Id.)

Consistent with well-settled precedent, the Court rejects Kiss's assertion that Best Buy's compliance with a state health regulation converted Best Buy's action into that of the state for the purposes of the Fourteenth Amendment. See Jackson v. Metro. Edison Co., 419 U.S. 345, 350 (1974) (“The mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for the purposes of the Fourteenth Amendment.”); see also Adamsv. S. Cal. First Nat'l Bank, 492 F.2d 324, 330-31 (9th Cir. 1973) (“The test is not state involvement, but rather is significant state involvement [because s]tatutes and laws regulate many forms of purely private activity . . . and subjecting all...