Weber v. Eash et al, No. 2:2015cv00225 - Document 51 (E.D. Wash. 2015)
Court Description: ORDER Granting 11 Motion to Dismiss as to John Munding. Party John Munding (Trustee of the Court) terminated from case (cc: Barbara J. Weber, Ph.D. via first class mail). Signed by Chief Judge Rosanna Malouf Peterson. (PL, Case Administrator)
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Weber v. Eash et al Doc. 51 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 BARBARA J. WEBER, Ph.D., NO: 2:15-CV-225-RMP Plaintiff, 8 v. ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING 9 10 11 DAVID E. EASH, Attorney at Law; JOHN MUNDING, Trustee of the Court; PAUL ZAMBON; and GENERAL SERVICES ADMINSTRATION, 12 Defendants. 13 14 BEFORE THE COURT is Defendant John Munding’s Motion to Dismiss 15 Case as Frivolous Sua Sponte as to Chapter 7 Trustee John D. Munding or Under 16 FRCP 12(b)(6), ECF No. 11. Plaintiff is proceeding pro se in prosecuting this 17 action. The Court has reviewed the filings, the response memorandum (ECF No. 18 13), the reply memorandum (ECF No. 25), and is fully informed. 19 20 21 BACKGROUND On January 28, 2015, Plaintiff Dr. Barbara Weber alleges that she had an allergic reaction in the Thomas S. Foley United States Courthouse in Spokane, ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 1 Dockets.Justia.com 1 WA. ECF No. 21 at 14. Dr. Weber alleges that she was attending a bankruptcy 2 hearing on the fifth floor when she reacted to something in the environment and 3 was forced to leave the floor. Id. Defendant John Munding was serving as the 4 bankruptcy trustee. Id. at 16. Dr. Weber alleges that she returned to the fifth floor 5 where Mr. Munding made her remain to answer questions and refused to make any 6 accommodations for her allergic reaction. Id. 7 The instant lawsuit alleges that Mr. Munding failed to make reasonable 8 accommodations for Dr. Weber’s disability as required by a variety of federal and 9 state statutes. See id. at 20. Dr. Weber alleges that Mr. Munding violated (1) Title 10 II of the Americans with Disabilities Act (“ADA”); (2) the Rehabilitation Act; 11 (3) Title III of the ADA; (4) the Architectural Barriers Act (“ABA”) 1; (5) the 12 Washington Law Against Discrimination (“WLAD”); and (6) the Fourteenth 13 Amendment Due Process Clause. Id. at 14, 20. 14 Dr. Weber filed her initial complaint on September 3, 2015. ECF No. 1. Dr. 15 Weber filed an amended complaint on September 8, 2015. ECF No. 4. Dr. Weber 16 then moved the Court for leave to file a second amended complaint on September 17 18 19 20 21 1 Dr. Weber alleges that Mr. Munding violated a statute called the “ABA.” See ECF No. 13 at 6. Although Dr. Weber never uses the non-abbreviated name or cites the code provision, the Court will assume that Dr. Weber intended to bring a cause of action under the Architectural Barriers Act. ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 2 1 23, 2015. ECF No. 8. The Court granted leave to amend on October 14, 2015. 2 ECF No. 20. Although Mr. Munding filed his motion to dismiss on September 28, 3 2015, the Court determined that his arguments were equally applicable to Dr. 4 Weber’s second amended complaint. Id. at 2. Dr. Weber filed a response 5 memorandum on October 5, 2015. ECF No. 13. Mr. Munding filed a reply 6 memorandum on October 19, 2015. ECF No. 25. 7 DISCUSSION 8 I. 9 The Federal Rules of Civil Procedure allow for the dismissal of a complaint 10 where the plaintiff fails to state a claim upon which relief can be granted. Fed. R. 11 Civ. P. 12(b)(6). A motion to dismiss brought pursuant to this rule “tests the legal 12 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In 13 reviewing the sufficiency of a complaint, a court accepts all well-pleaded 14 allegations as true and construes those allegations in the light most favorable to the 15 non-moving party. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 16 2010). 17 Rule 12(b)(6) Legal Standard To withstand dismissal, a complaint must contain “enough facts to state a 18 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 19 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual 20 content that allows the court to draw the reasonable inference that the defendant is 21 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 3 1 II. 2 Dr. Weber alleges that Mr. Munding violated Title II of the ADA when he 3 failed to make reasonable accommodations for her allergic reaction. ECF No. 21 4 at 20. Dr. Weber cites a number of statutory and Code of Federal Regulations 5 provisions as well as sections of the Title II Technology Assistance Manual. Id. 6 Under Title II of the ADA, “no qualified individual with a disability shall, Title II of the Americans with Disabilities Act 7 by reason of such disability, be excluded from participation in or be denied the 8 benefits of the services, programs, or activities of a public entity, or be subjected to 9 discrimination by any such entity.” 42 U.S.C. § 12132. The term “public entity” 10 includes “(A) any State or local government; (B) any department, agency, special 11 purpose district, or other instrumentality of a State or States or local government; 12 and (C) the National Railroad Passenger Corporation, and any commuter 13 authority.” 42 U.S.C. § 12131. “By definition, the ADA does not apply to the 14 federal government.” United States v. Wishart, 146 F. App’x 171, 173 (9th Cir. 15 2005). 16 As a Chapter 7 trustee, Mr. Munding is a private party, not a government 17 employee. But even assuming that a Chapter 7 trustee acts on behalf of the 18 government, 2 Dr. Weber has failed to state a claim upon which relief can be 19 20 21 2 Courts have found that Chapter 7 trustees act under color of law in certain instances. See In re Barman, 252 B.R. 403, 412–413 (Bankr. E.D. Mich. 2000) ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 4 1 granted. If Mr. Munding was acting under color of law in his role as a Chapter 7 2 trustee, he would have been acting under color of federal law. As Title II of the 3 ADA applies to neither private entities nor the federal government, Title II is 4 inapplicable to Mr. Munding. Dr. Weber’s cause of action under Title II of the 5 ADA against Mr. Munding is therefore dismissed with prejudice for failure to 6 state a claim upon which relief can be granted. 7 / / / 8 / / / 9 10 11 12 13 14 15 16 17 18 19 20 21 (noting that the “circumstances surrounding the status and function of a trustee in a chapter 7 case all suggest a sufficient nexus to the government and its power that it is necessary and appropriate to apply to the trustee the fourth amendment limits on government power”); In re Bursztyn, 366 B.R. 353, 368 (Bankr. D.N.J. 2007) (noting that “the Court is not prepared to conclude that a bankruptcy trustee is free from the strictures of the Fourth Amendment and forfeit a debtor’s expectations of privacy”). But see Listecki v. Official Comm. of Unsecured Creditors, 780 F.3d 731, 741 (7th Cir. 2015) (concluding that a Creditors’ Committee, appointed by the United States Trustee, was not acting under color of law for the purpose of the Religious Freedom Restoration Act). It is, however, unnecessary to determine whether Mr. Munding was acting under color of law in this instance, as there is no indication that Mr. Munding was acting on behalf of a State or local government. ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 5 1 III. 2 The Rehabilitation Act states that “[n]o otherwise qualified individual with a The Rehabilitation Act 3 disability . . . shall, solely by reason of his or her disability, be excluded from 4 participation in, be denied the benefits of, or be subjected to discrimination under 5 any program or activity receiving Federal financial assistance or under any 6 program or activity conducted by any Executive agency.” 29 U.S.C. § 794(a). To 7 state a claim under the Rehabilitation Act, Dr. Weber must allege that she was 8 subjected to discrimination under a qualifying “program or activity.” Id. The term 9 “program or activity” potentially includes the operations of instrumentalities of 10 State or local governments, educational institutions, and business organizations. 11 29 U.S.C. § 794(b). The definition does not include the actual operations of 12 federal instrumentalities. See id. As neither the bankruptcy proceeding nor the 13 federal courthouse qualifies as a “program or activity,” Dr. Weber’s cause of 14 action against Mr. Munding under the Rehabilitation Act is dismissed with 15 prejudice for failure to state a claim upon which relief can be granted. 16 IV. 17 Under Title III of the ADA, “[n]o individual shall be discriminated against Title III of the Americans with Disabilities Act 18 on the basis of disability in the full and equal enjoyment of the goods, services, 19 facilities, privileges, advantages, or accommodations of any place of public 20 accommodation by any person who owns, leases (or leases to), or operates a place 21 of public accommodation.” 42 U.S.C. § 12182(a). “Public accommodation” ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 6 1 includes various private entities, if the operations of such entities affect commerce, 2 including places of lodging, establishments serving food or drink, theaters, places 3 used for public transportation, and places of education. 42 U.S.C. § 12181(7). 4 Dr. Weber’s allegation, as understood by the Court, is that Mr. Munding 5 discriminated against her regarding her use of the federal courthouse. Dr. Weber 6 has failed to state a claim upon which relief can be granted. There is no support 7 for the proposition that a courthouse is a place of public accommodation as the 8 term is defined by the ADA. Unlike the various entities listed in § 12181(7), a 9 courthouse is not a private entity. Further, while Mr. Munding occasionally works 10 in the courthouse, as a private attorney he does not own, lease, or operate the entity 11 as required by § 12182(a). Dr. Weber’s cause of action under Title III of the ADA 12 against Mr. Munding is therefore dismissed with prejudice for failure to state a 13 claim upon which relief can be granted. 14 V. 15 The ABA was designed to “insure whenever possible that physically 16 handicapped persons will have ready access to, and use of, [qualifying] buildings.” 17 42 U.S.C. § 4152. While the federal courthouse may be subject to the ABA, see 42 18 U.S.C. § 4151, the ABA provides for “purely administrative remedies” and does 19 not “provide for a private cause of action.” Jackson v. Fed. Bureau of Prisons, 06- 20 1347 (MJD/RLE), 2007 WL 843839, at *20 (D. Minn. Mar. 16, 2007); see also 21 Fulton v. United States, 198 F. App’x 210, 216 (3rd Cir. 2006) (noting that the The Architectural Barriers Act ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 7 1 ABA “provid[es] no independent statutory right of action . . . nor . . . an implied 2 right of action”). As the ABA does not authorize a private cause of action, Dr. 3 Weber’s attempted cause of action under the ABA against Mr. Munding is 4 dismissed with prejudice for failure to state a claim upon which relief can be 5 granted. 6 VI. 7 The WLAD states that “the right to be free from discrimination because 8 of . . . . the presence of any sensory, mental, or physical disability . . . is recognized 9 as and declared to be a civil right.” RCW 49.60.030(1). The WLAD grants “[a]ny Washington Law Against Discrimination 10 person deeming . . . herself injured by any act in violation of this chapter . . . a civil 11 action.” RCW 49.60.010(2). The WLAD makes it “an unfair practice for any 12 person . . . to commit an act which directly or indirectly results in 13 any . . . discrimination . . . in any place of public resort, accommodation, 14 assemblage, or amusement.” RCW 49.60.215(1). In order to make out a prima 15 facie case under RCW 49.60.215, a plaintiff must show that “the defendant’s 16 business or establishment is a place of public accommodation.” Fell v. Spokane 17 Transit Auth., 128 Wn.2d 618, 637 (1996) (emphasis added). 18 19 Dr. Weber has failed to state a claim upon which relief can be granted under the WLAD. Even assuming that a courthouse is a place of public 20 21 ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 8 1 accommodation, 3 the federal courthouse is not Mr. Munding’s “business or 2 establishment.” Mr. Munding neither owns nor has any responsibility for the 3 operations of the courthouse. Dr. Weber’s WLAD cause of action against Mr. 4 Munding is therefore dismissed with prejudice for failure to state a claim upon 5 which relief can be granted. 6 VII. Fourteenth Amendment 7 Dr. Weber alleges that Mr. Munding violated the Fourteenth Amendment by 8 failing to make reasonable accommodations for her allergic reaction. The 9 Fourteenth Amendment provides that no State shall “deprive any person of life, 10 liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. 11 The right of access to the courts is “protected by the Due Process Clause of the 12 Fourteenth Amendment.” Tennessee v. Lane, 541 U.S. 509, 523 (2004). However, 13 “the prohibitions of the Fourteenth Amendment are addressed to the States.” Ex 14 15 16 17 18 19 20 21 3 The only authority this Court has uncovered has held otherwise. See Kral v. Benton Cty., CV-09-5014-RHW, 2009 WL 3856918, at *4 (E.D. Wash. Nov. 10, 2009) (noting that the phrase public accommodation is “defined at length in RCW 49.60.040(2), which does not include any specific mention of a courthouse or jail” and that “extending RCW 49.60.215 to courthouses and jails would be a significant and wholly unsupported leap from the types of facilities identified in the case law to date”). ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 9 1 parte Virginia, 100 U.S. 339, 346 (1879). Generally, “state action [is] subject to 2 Fourteenth Amendment scrutiny and private conduct . . . is not.” Brentwood Acad. 3 v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001). Seemingly 4 private action may be considered state action, however, if “there is such a ‘close 5 nexus between the State and the challenged action’ that seemingly private behavior 6 ‘may be fairly treated as that of the State itself.’” Id. (quoting Jackson v. Metro. 7 Edison Co., 419 U.S. 345, 349 (1974)). 8 Dr. Weber has failed to state a claim upon which relief can be granted. Mr. 9 Munding is a private attorney who occasionally works as a Chapter 7 trustee in the 10 federal courthouse. As discussed above, assuming Mr. Munding was acting under 11 color of law at all, he was acting under color of federal, not state, law. There is no 12 indication or allegation that Mr. Munding was associated with the “State” in any 13 manner. As the Fourteenth Amendment only restrains state, not federal or private, 14 action, the prohibitions of the Fourteenth Amendment do not apply to Mr. 15 Munding. What the Court interprets as Dr. Weber’s cause of action under the 16 Fourteenth Amendment against Mr. Munding is dismissed with prejudice for 17 failure to state a claim upon which relief can be granted. 18 / / / 19 / / / 20 VIII. Leave to Amend Complaint 21 ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 10 1 In the Ninth Circuit, “a district court should grant leave to amend even if no 2 request to amend the pleading was made, unless it determines that the pleading 3 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 4 F.3d 1122, 1130 (9th Cir. 2000). As discussed above, Dr. Weber has alleged no 5 theory under which Mr. Munding can be held liable for damages resulting from the 6 January 28, 2015, incident in the Thomas S. Foley United States Courthouse. As 7 such, the Court finds that granting leave to amend would be futile. 8 CONCLUSION 9 Accordingly, IT IS HEREBY ORDERED that Defendant John Munding’s 10 Motion to Dismiss Case as Frivolous Sua Sponte as to Chapter 7 Trustee John D. 11 Munding or Under FRCP 12(b)(6), ECF No. 11, is GRANTED. All causes of 12 action against Mr. Munding are dismissed with prejudice. 13 The District Court Clerk is directed to enter this Order, provide copies to 14 counsel and pro se Weber, and terminate John Munding as a defendant in this 15 matter. 16 DATED this 20th day of November, 2015. 17 18 19 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON Chief United States District Judge 20 21 ORDER GRANTING MOTION TO DISMISS AS TO JOHN MUNDING ~ 11
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