Wolfe v. City of Portland

Decision Date08 October 2021
Docket NumberCase No. 3:20-cv-1882-SI
Parties Philip WOLFE, Katalina Durden, Melissa Lewis, Juniper Simonis, individually, and Disability Rights Oregon, an Oregon nonprofit and advocacy corporation, Plaintiffs, v. CITY OF PORTLAND, a municipal corporation; Ted Wheeler, in his official capacity; Chuck Lovell, in his official capacity; Multnomah County, a political subdivision of the State; Michael Reese, in his official capacity; Terri Davie, in her official capacity; Chad Wolf, in his individual capacity; Alejandro Mayorkas, in his official capacity; Donald Washington, in his individual and official capacity; and Does 1-100, individual and supervisory officers of local, state, and federal government, Defendants.
CourtU.S. District Court — District of Oregon

Bruce L. Campbell and John C. Clarke, Miller Nash Graham & Dunn LLP, 3400 U.S. Bancorp Tower, 111 S.W. Fifth Avenue, Portland, OR 97204; Christopher H. Knauf, Alexandra M. Robertson, and Corrigan L. Lewis, Disability Rights Legal Center, 1541 Wilshire Boulevard, Suite 400, Los Angeles, CA 90017; Amy Robertson, Timothy Fox, and Pilar Gonzales Morales, Civil Rights Education and Enforcement Center, 1245 E. Colfax Avenue, Suite 400, Denver, CO 80218. Of Attorneys for Plaintiffs.

Daniel Simon, Deputy City Attorney; Linda Law, Chief Deputy City Attorney; Linh T. Vu, Senior Deputy City Attorney; Elizabeth C. Woodard, Deputy City Attorney; Portland City Attorney's Office, 1221 SW 4th Ave., Rm. 430, Portland, OR 97204. Of Attorneys for Defendants City of Portland, Portland Mayor Ted Wheeler, and Portland Police Chief Chuck Lovell.

Jenny M. Madkour, County Attorney, and Christopher A. Gilmore, Senior Assistant County Attorney, The Office of Multnomah County Attorney, 501 S.E. Hawthorne Blvd., Suite 500, Portland, Oregon 97214. Of Attorneys for Defendants Multnomah County and Multnomah County Sheriff Michael Reese.

Ellen F. Rosenblum, Attorney General; Drew K. Baumchen, Senior Assistant Attorney General; and Jill Schneider, Senior Assistant Attorney General, Oregon Department of Justice, 1162 Court Street NE, Salem, OR 97301-4096. Of Attorneys for Defendant Superintendent of the Oregon State Police Terri Davie.

Brian M. Boynton, Acting Assistant Attorney General; Scott Erik Asphaug, Acting United States Attorney; C. Salvatore D'Alessio, Jr., Acting Director, Torts Branch; Andrea W. McCarthy, Senior Trial Counsel; Glenn S. Greene, Senior Trial Attorney; and David G. Cutler, Trial Attorney, U.S. Department of Justice, Civil Division, Constitutional and Specialized Tort Litigation, P.O. Box 7146, Ben Franklin Station, Washington, D.C. 20044. Of Attorneys for Defendants Chad Wolf and Donald Washington, in their individual capacity.

Brian M. Boynton, Acting Assistant Attorney General; Scott Erik Asphaug, Acting United States Attorney; Alexander K. Haas, Director, Federal Programs Branch; Brigham J. Bowen, Assistant Director, Federal Programs Branch; Michael P. Clendenen, Trial Attorney; and Jordan L. Von Bokern, Trial Attorney, U.S. Department of Justice, Civil Division, Federal Programs Branch, 1100 L Street, NW, Washington, D.C. 20530. Of Attorneys for Defendants Director of the U.S. Marshals Service Donald Washington and Secretary of Homeland Security Alejandro Mayorkas, in their official capacity.


Michael H. Simon, District Judge.

Plaintiffs Philip Wolfe, Katalina Durden, Melissa Lewis, and Juniper Simonis are individuals with disabilities. Plaintiff Disability Rights Oregon (DRO) is a nonprofit advocacy organization for persons with disabilities that is the federally mandated Protection and Advocacy System for the state of Oregon.1 Plaintiffs filed this case on November 1, 2020. Plaintiffs allege that Defendants violated the rights of people with disabilities in Defendants’ responses to social justice protests in Portland. Plaintiffs allege that the conduct of law enforcement officers in responding to protests and dispersing crowds has chilled the exercise of Plaintiffs’ constitutional right to assemble and protest, violated the Americans with Disabilities Act (ADA), violated Section 504 of the Rehabilitation Act (Rehabilitation Act), and violated the First, Fourth, Fifth, and Fourteenth Amendments to the U.S. Constitution by subjecting Plaintiffs to unnecessary harm and discrimination, abridging their freedom of speech, subjecting them to excessive force, and denying them due process and equal protection of the law.

By agreement of the parties, all Defendants’ responsive filings to the Complaint were due March 15, 2021. On February 8, 2021, Plaintiffs filed a motion for preliminary injunction. On March 15, 2021, Defendants responded to the Complaint by filing five separate motions to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The pending motions to dismiss have been filed by: (1) the City of Portland (City), Mayor Ted Wheeler, and Police Chief Chuck Lovell (City Defendants); (2) Multnomah County and Multnomah County Sheriff Michael Reese (County Defendants); (3) Superintendent of the Oregon State Police (OSP) Terri Davie; (4) Former Acting Secretary of Homeland Security Chad Wolf (Wolf) and Director of the U.S. Marshals Service (USMS) Donald Washington (Washington), as individuals;2 and (5) Washington and Secretary of Homeland Security Alejandro Mayorkas, in their official capacities (Official Federal Defendants) (Washington, Wolf, and the Official Federal Defendants are collectively referred to as the Federal Defendants).3 In these motions, Defendants argue that Plaintiffs lack standing, the case is moot, and the allegations are insufficient to state a claim upon which relief can be granted. Also pending before the Court is Plaintiffsmotion for a preliminary injunction, which is opposed by all Defendants. The Court held oral argument on the motions on July 13, 2021. The Court allowed all parties to submit simultaneous supplemental briefs on August 13, 2021 and supplemental response briefs on August 27, 2021. After considering all the materials in the record and arguments of counsel, and for the following reasons, the Court grants Defendantsmotions to dismiss and denies Plaintiff's motion for a preliminary injunction as moot.

A. Rule 12(b)(6)

A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc. , 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co. , 668 F.3d 1136, 1140 (9th Cir. 2012) ; Daniels-Hall v. Nat'l Educ. Ass'n , 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011). The court must draw all reasonable inferences from the factual allegations in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution , 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit a plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal , 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr , 652 F.3d at 1216. "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." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "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) (quotation marks omitted).

B. Rule 12(b)(1)

The U.S. Constitution confers limited authority on the federal courts to hear only active cases or controversies brought by persons who demonstrate standing. See Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1546-47, 194 L.Ed.2d 635 (2016) ; Already, LLC v. Nike, Inc. , 568 U.S. 85, 89-90, 133 S.Ct. 721, 184 L.Ed.2d 553 (2013). Standing "limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong." Spokeo , 136 S. Ct. at 1547. A plaintiff's standing under Article III of the United States Constitution is a component of subject matter jurisdiction properly challenged under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Chandler v. State Farm Mut. Auto. Ins. Co. , 598 F.3d 1115, 1121 (9th Cir. 2010) ; see also White v. Lee , 227 F.3d 1214, 1242 (9th Cir. 2000) ("Because standing and mootness both pertain to a federal court's subject-matter jurisdiction under Article III, they are properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), not Rule 12(b)(6)."). On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), it is the plaintiff's burden to establish the existence of subject matter jurisdiction. Chandler , 598 F.3d at 1122 ; see also Kingman Reef Atoll Invs., LLC v. United States , 541 F.3d 1189, 1197 (9th Cir. 2008).

A motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction may be either "facial" or...

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