Weber v. Eash et al, No. 2:2015cv00225 - Document 53 (E.D. Wash. 2015)

Court Description: ORDER Granting 32 Motion to Dismiss as to David E. Eash. Party David E Eash (Attorney at Law) 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. 53 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 DAVID E. EASH 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 David Eash’s Motion to Dismiss, ECF 15 No. 32. Plaintiff is proceeding pro se in prosecuting this action. The Court has 16 reviewed the filings, the response memorandum (ECF No. 36), the amended 17 response memorandum (ECF No. 38), the reply memorandum (ECF No. 45), and 18 the surreply memorandum (ECF No. 50), 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 DAVID E. EASH ~ 1 Dockets.Justia.com 1 WA. ECF No. 21 at 2. 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 David E. Eash was representing 4 Dr. Weber in the chapter 7 bankruptcy hearing. Id. at 4. Dr. Weber alleges that 5 Mr. Eash asked Dr. Weber’s husband about Dr. Weber’s location and was 6 informed that Dr. Weber was downstairs as she had suffered an allergic reaction. 7 Id. at 6. Dr. Weber alleges that, upon learning she was on another floor and had 8 had an allergic reaction, Mr. Eash refused to make any accommodation for her 9 disability and made her return to the fifth floor to sign paperwork. Id. at 7. 10 The instant lawsuit alleges that Mr. Eash failed to make reasonable 11 accommodations for Dr. Weber’s disability as required by a variety of federal and 12 state statutes. See id. at 11. Dr. Weber alleges that Mr. Eash violated (1) Title II of 13 the Americans with Disabilities Act (“ADA”); (2) the Rehabilitation Act; (3) Title 14 III of the ADA; (4) the Architectural Barriers Act (“ABA”) 1; (5) the Washington 15 16 17 18 19 20 21 1 Dr. Weber alleges that Mr. Eash violated a statute called the “ABA.” See ECF No. 21 at 3. Throughout her second amended complaint, Dr. Weber refers to the American Bar Association Commission on Mental and Physical Disability Law. See id. at 3. However, given that the Architectural Barriers Act is a relevant statute that utilizes the acronym “ABA,” the Court will analyze Dr. Weber’s allegations under both theories of liability. ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 2 1 Law Against Discrimination (“WLAD”); (6) the Fourteenth Amendment Due 2 Process Clause; and (7) the American Bar Association Commission on Mental and 3 Physical Disability Law. Id. at 11. 4 Dr. Weber filed her initial complaint on September 3, 2015. ECF No. 1. 5 Dr. Weber filed an amended complaint on September 8, 2015. ECF No. 4. 6 Dr. Weber then moved the Court for leave to file a second amended complaint on 7 September 23, 2015. ECF No. 8. The Court granted leave to amend on October 14, 8 2015. ECF No. 20. Dr. Weber filed a second amended complaint on October 14, 9 2015. ECF No. 21. Mr. Eash filed his motion to dismiss on October 27, 2015. ECF 10 No. 32. Dr. Weber filed her response memorandum on October 29, 2015, and an 11 amended response memorandum on October 30, 2015. ECF Nos. 36 and 38. 12 Mr. Eash filed his reply memorandum on November 12, 2015. ECF No. 45. 13 Dr. Weber filed her surreply memorandum on November 20, 2015. ECF No. 50. 14 DISCUSSION 15 I. 16 The Federal Rules of Civil Procedure allow for the dismissal of a complaint Rule 12(b)(6) Legal Standard 17 where the plaintiff fails to state a claim upon which relief can be granted. Fed. R. 18 Civ. P. 12(b)(6). A motion to dismiss brought pursuant to this rule “tests the legal 19 sufficiency of a claim.” Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In 20 reviewing the sufficiency of a complaint, a court accepts all well-pleaded 21 allegations as true and construes those allegations in the light most favorable to the ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 3 1 non-moving party. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2 2010). 3 To withstand dismissal, a complaint must contain “enough facts to state a 4 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 5 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual 6 content that allows the court to draw the reasonable inference that the defendant is 7 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 8 II. 9 Dr. Weber alleges that Mr. Eash violated Title II of the ADA when he failed Title II of the Americans with Disabilities Act 10 to make reasonable accommodations for her allergic reaction. ECF No. 21 at 3–4. 11 Dr. Weber cites a number of statutory and Code of Federal Regulations provisions 12 as well as sections of the Title II Technology Assistance Manual. Id. 13 Under Title II of the ADA, “no qualified individual with a disability shall, 14 by reason of such disability, be excluded from participation in or be denied the 15 benefits of the services, programs, or activities of a public entity, or be subjected to 16 discrimination by any such entity.” 42 U.S.C. § 12132. The term “public entity” 17 includes “(A) any State or local government; (B) any department, agency, special 18 purpose district, or other instrumentality of a State or States or local government; 19 and (C) the National Railroad Passenger Corporation, and any commuter 20 authority.” 42 U.S.C. § 12131. 21 ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 4 1 In her second amended complaint, Dr. Weber admits that Mr. Eash is a 2 private attorney retained by Dr. Weber to represent her in a chapter 7 bankruptcy 3 proceeding. See ECF No. 21 at 3–4. As discussed above, Title II of the ADA only 4 applies to “public entit[ies]” which include instrumentalities of State or local 5 governments. See 42 U.S.C. § 12131. As a private attorney, Mr. Eash is not a 6 “public entity” as defined by the ADA. 7 Dr. Weber’s arguments to the contrary are unavailing. Dr. Weber alleges 8 that, as an attorney licensed by the State of Washington who serves the public, 9 Mr. Eash must comply with Title II. See ECF No. 21 at 2. The mere fact that 10 Mr. Eash is licensed by the State of Washington does not transform Mr. Eash into a 11 “public entity.” See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972) 12 (noting that, under 42 U.S.C. § 1983, “[t]he Court has never held . . . that 13 discrimination by an otherwise private entity would be violative of the Equal 14 Protection Clause if the private entity received any sort of benefit or service at all 15 from the State, or if it is subject to state regulation in any degree whatever”). 16 Dr. Weber has failed to show that Mr. Eash is anything more than a private 17 individual, offering his services to the public as an attorney. See Green v. City of 18 New York, 465 F.3d 65, 76 (2nd Cir. 2006) (affirming dismissal of ADA Title II 19 action as the principal actor in the case was “not a proper defendant because he is 20 an individual, not a public entity”). Serving the public does not automatically make 21 an actor an “instrumentalit[y]” of a State or local government, as required by Title ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 5 1 II of the ADA. Although it may be true that “[c]ourts could not be held without 2 lawyers,” ECF No. 38 at 14, the fact that an attorney steps through the courthouse 3 door does not transform that attorney into a “public entity” under Title II. 4 Along similar lines, merely entering the federal courthouse does not subject 5 Mr. Eash to Title II liability. Dr. Weber cites a law review article for the 6 proposition that “once lawyers enter into a Federal Courthouse they must follow all 7 Federal rules.” ECF No. 36 at 2 (citing Judith A. McMorrow, The (F)utility of 8 Rules: Regulating Attorney Conduct in Federal Court Practices, 58 SMU L. REV. 9 3 (2005)). This article, however, only discusses the applicability of the Federal 10 Rules of Civil Procedure, Criminal Procedure, and Evidence, as well as the 11 Modern Rules of Professional Conduct. See McMorrow, supra, at 5–6. The article 12 does not advocate for the applicability of otherwise inapplicable statutes such as 13 Title II of the ADA. 14 Dr. Weber also cites “Drew v. Merrill,” which she alleges “involves a 15 physician’s refusal to provide the cost of an interpreter for a female patient’s deaf 16 husband.” ECF No. 38 at 10. Although Dr. Weber did not provide a citation for 17 “Drew,” the Court was able to uncover what it believes to be the correct case. The 18 lawsuit, which settled via consent judgment, 2 appears to have arisen under Title III 19 20 21 2 The Court found what it believes to be the consent judgment at http://www.ada.gov/drew.htm. ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 6 1 of the ADA against a private obstetrician. See Enforcing the ADA: A Status Report 2 from the Department of Justice, at 5–6, http://www.ada.gov/octdec99.pdf. As 3 “Drew” arose under Title III, the case is irrelevant to any discussion of 4 Dr. Weber’s claims under Title II. The Court finds that Mr. Eash is not subject to 5 the restrictions imposed by Title II of the ADA. Therefore, Dr. Weber’s cause of 6 action under Title II of the ADA against Mr. Eash is dismissed with prejudice for 7 failure to state a claim upon which relief can be granted. 8 III. 9 The Rehabilitation Act states that “[n]o otherwise qualified individual with a The Rehabilitation Act 10 disability . . . shall, solely by reason of his or her disability, be excluded from 11 participation in, be denied the benefits of, or be subjected to discrimination under 12 any program or activity receiving Federal financial assistance or under any 13 program or activity conducted by any Executive agency.” 29 U.S.C. § 794(a). To 14 state a claim under the Rehabilitation Act, Dr. Weber must allege that she was 15 subjected to discrimination under a qualifying “program or activity.” Id. The term 16 “program or activity” potentially includes the operations of instrumentalities of 17 State or local governments, educational institutions, and business organizations. 29 18 U.S.C. § 794(b). The definition does not include the actual operations of federal 19 instrumentalities. See id. 20 21 As operations of the federal government, neither the bankruptcy proceeding nor the federal courthouse qualify as a “program or activity.” Further, although ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 7 1 “program or activity” could include “an entire corporation, partnership, or other 2 private organization”, see 29 U.S.C. § 794(b)(3), such organization must receive 3 federal financial assistance to fall under the Rehabilitation Act. See 29 U.S.C. 4 § 794(a). Although Dr. Weber discusses Mr. Eash’s law firm, ECF No. 50 at 6–7, 5 there is no indication or allegation that Mr. Eash’s firm receives federal financial 6 assistance. As such, there is no plausible allegation that Mr. Eash discriminated 7 against Dr. Weber with respect to a qualifying “program or activity.” Dr. Weber’s 8 cause of action against Mr. Eash under the Rehabilitation Act is dismissed with 9 prejudice for failure to state a claim upon which relief can be granted. 10 IV. 11 Under Title III of the ADA, “[n]o individual shall be discriminated against Title III of the Americans with Disabilities Act 12 on the basis of disability in the full and equal enjoyment of the goods, services, 13 facilities, privileges, advantages, or accommodations of any place of public 14 accommodation by any person who owns, leases (or leases to), or operates a place 15 of public accommodation.” 42 U.S.C. § 12182(a). “Public accommodation” 16 includes various private entities, if the operations of such entities affect commerce, 17 including places of lodging, establishments serving food or drink, theaters, places 18 used for public transportation, and places of education. 42 U.S.C. § 12181(7). 19 Dr. Weber’s allegation, as understood by the Court, is that Mr. Eash 20 discriminated against her regarding her use of the federal courthouse. Dr. Weber 21 has failed to state a claim upon which relief can be granted. There is no support for ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 8 1 the proposition that a courthouse is a place of public accommodation as the term is 2 defined by the ADA. Unlike the various entities listed in § 12181(7), a courthouse 3 is not a private entity. Further, while Mr. Eash may occasionally work in the 4 courthouse, as a private attorney he does not own, lease, or operate the entity as 5 required by § 12182(a). 6 In her pleadings, Dr. Weber discusses Mr. Eash’s law firm in the context of 7 Title III. ECF No. 50 at 6–7. The Court assumes that Dr. Weber’s discussion of 8 “Drew v. Merrill,” discussed above, is intended to bolster her Title III allegation as 9 “Drew” involved a Title III lawsuit against a private obstetrician. However, as far 10 as the Court can tell, the “Drew” defendant discriminated against the disabled 11 plaintiff at the doctor’s private office, or, in other words, a location owned, leased, 12 or operated by the defendant. See Enforcing the ADA: A Status Report from the 13 Department of Justice, at 5–6, http://www.ada.gov/octdec99.pdf. The allegations 14 here involve discrimination at the federal courthouse, a location not owned, leased, 15 or operated by Mr. Eash. As such, a Title III claim is unavailable to Dr. Weber. 16 Therefore, Dr. Weber’s cause of action under Title III of the ADA against 17 Mr. Eash is dismissed with prejudice for failure to state a claim upon which relief 18 can be granted. 19 V. 20 The ABA was designed to “insure whenever possible that physically 21 handicapped persons will have ready access to, and use of, [qualifying] buildings.” The Architectural Barriers Act ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 9 1 42 U.S.C. § 4152. Regardless of whether the federal courthouse may be subject to 2 the ABA, see 42 U.S.C. § 4151, the ABA provides for “purely administrative 3 remedies” and does not “provide for a private cause of action.” Jackson v. Fed. 4 Bureau of Prisons, 06-1347 (MJD/RLE), 2007 WL 843839, at *20 (D. Minn. Mar. 5 16, 2007); see also Fulton v. United States, 198 F. App’x 210, 216 (3rd Cir. 2006) 6 (noting that the ABA “provid[es] no independent statutory right of 7 action . . . nor . . . an implied right of action”). As the ABA does not authorize a 8 private cause of action, Dr. Weber’s attempted cause of action under the ABA 9 against Mr. Eash is dismissed with prejudice for failure to state a claim upon 10 which relief can be granted. 11 VI. 12 The WLAD states that “the right to be free from discrimination because 13 of . . . . the presence of any sensory, mental, or physical disability . . . is recognized 14 as and declared to be a civil right.” RCW 49.60.030(1). The WLAD grants “[a]ny 15 person deeming . . . herself injured by any act in violation of this chapter . . . a civil 16 action.” RCW 49.60.010(2). The WLAD makes it “an unfair practice for any 17 person . . . to commit an act which directly or indirectly results in 18 any . . . discrimination . . . in any place of public resort, accommodation, 19 assemblage, or amusement.” RCW 49.60.215(1). In order to make out a prima 20 facie case under RCW 49.60.215, a plaintiff must show that “the defendant’s Washington Law Against Discrimination 21 ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 10 1 business or establishment is a place of public accommodation.” Fell v. Spokane 2 Transit Auth., 128 Wn.2d 618, 637 (1996) (emphasis added). 3 Dr. Weber has failed to state a claim upon which relief can be granted under 4 the WLAD. Even assuming that a courthouse is a place of public accommodation, 3 5 the federal courthouse is not Mr. Eash’s “business or establishment.” Mr. Eash, as 6 a private attorney, neither owns nor has any responsibility for the operations of the 7 courthouse. Dr. Weber’s WLAD cause of action against Mr. Eash is therefore 8 dismissed with prejudice for failure to state a claim upon which relief can be 9 granted. 10 VII. Fourteenth Amendment 11 Dr. Weber alleges that Mr. Eash violated the Fourteenth Amendment by 12 failing to make reasonable accommodations for her allergic reaction. The 13 Fourteenth Amendment provides that no State shall “deprive any person of life, 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 DAVID E. EASH ~ 11 1 liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. 2 The right of access to the courts is “protected by the Due Process Clause of the 3 Fourteenth Amendment.” Tennessee v. Lane, 541 U.S. 509, 523 (2004). However, 4 “the prohibitions of the Fourteenth Amendment are addressed to the States.” Ex 5 parte Virginia, 100 U.S. 339, 346 (1879). 6 Generally, “state action [is] subject to Fourteenth Amendment scrutiny and 7 private conduct . . . is not.” Brentwood Acad. v. Tenn. Secondary Sch. Athletic 8 Ass’n, 531 U.S. 288, 295 (2001). Seemingly private action may be considered State 9 action, however, if “there is such a ‘close nexus between the State and the 10 challenged action’ that seemingly private behavior ‘may be fairly treated as that of 11 the State itself.’” Id. (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 349 12 (1974)). However, as discussed above, merely being licensed by the State does not 13 automatically transform an otherwise private actor into a State actor. See Moose 14 Lodge, 407 U.S. at 173. 15 Dr. Weber has failed to state a claim upon which relief can be granted. 16 Mr. Eash is a private attorney who was working in the federal courthouse as 17 Dr. Weber’s representative in a chapter 7 bankruptcy proceeding. The only 18 allegation that Mr. Eash was associated with the “State” in any manner is that 19 Mr. Eash, as an attorney, is licensed by the State of Washington. As merely 20 holding a state-issued license is, without more, insufficient to transform an 21 otherwise private actor into a State actor, Mr. Eash was not bound by the ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 12 1 Fourteenth Amendment when representing Dr. Weber. What the Court interprets as 2 Dr. Weber’s cause of action under the Fourteenth Amendment against Mr. Eash is 3 dismissed with prejudice for failure to state a claim upon which relief can be 4 granted. 5 VIII. American Bar Association Commission on Mental and Physical Disability Law 6 Dr. Weber purports to bring a cause of action against Mr. Eash under the 7 American Bar Association Commission on Mental and Physical Disability Law. 8 ECF No. 21 at 11. Dr. Weber lists a number of obligations that Mr. Eash was 9 allegedly required to comply with according to the American Bar Association. Id. 10 at 6. Although Dr. Weber provides various citations, see id. at 6 (§ d), 9 (§ e), the 11 Court has been unable to find the exact sources to which Dr. Weber refers. 12 Regardless, American Bar Association rules do not have the force of law and do 13 not provide Dr. Weber with a cause of action against Mr. Eash. Any remedy as to 14 an alleged rule violation would be through a different mechanism, such as a bar 15 complaint or a professional malpractice tort lawsuit. As such, Dr. Weber’s 16 purported cause of action under the American Bar Association Commission on 17 Mental and Physical Disability Law against Mr. Eash is dismissed with prejudice 18 for failure to state a claim upon which relief can be granted. 19 IX. Leave to Amend Complaint 20 In the Ninth Circuit, “a district court should grant leave to amend even if no 21 request to amend the pleading was made, unless it determines that the pleading ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 13 1 could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 2 F.3d 1122, 1130 (9th Cir. 2000). As discussed above, Dr. Weber has alleged no 3 theory under which Mr. Eash can be held liable for damages resulting from the 4 alleged January 28, 2015, incident in the Thomas S. Foley United States 5 Courthouse. As such, the Court finds that granting leave to amend would be futile. 6 7 CONCLUSION Accordingly, IT IS HEREBY ORDERED that Defendant David Eash’s 8 Motion to Dismiss, ECF No. 32, is GRANTED. All causes of action against 9 Mr. Eash are dismissed with prejudice. 10 The District Court Clerk is directed to enter this Order, provide copies to 11 counsel and pro se Weber, and terminate David E. Eash as a defendant in this 12 matter. 13 DATED this 8th day of December 2015. 14 15 16 s/ Rosanna Malouf Peterson ROSANNA MALOUF PETERSON Chief United States District Judge 17 18 19 20 21 ORDER GRANTING MOTION TO DISMISS AS TO DAVID E. EASH ~ 14

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