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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CAROLYN LEMELSON, et al., CASE NO. C25-2157-KKE 8
Plaintiff(s), ORDER ON MOTION TO DISMISS 9 v.
10 STEPHEN F. FROST,
11 Defendant(s).
12 This matter comes before the Court on Defendant Stephen F. Frost’s motion to dismiss for 13 failure to state a claim. Dkt. No. 15. Defendant’s motion is unopposed. For the reasons below, 14 the Court grants Defendant’s motion, and dismisses this case. 15 I. BACKGROUND 16 A. Procedural History 17 On October 31, 2025, Plaintiffs Carolyn Lemelson and Joshua David Kientz, representing 18 themselves, filed this action, bringing claims under both the Americans with Disabilities Act 19 (“ADA”) and 42 U.S.C. § 1983. Dkt. No. 1 at 1–2. On November 10, 2025, Defendant filed an 20 answer to the Complaint in which he asserted multiple counterclaims. See Dkt. No. 6. 21 On November 26, 2025, Plaintiffs filed a motion to disqualify Frost from proceeding pro 22 se and to strike the counterclaims he asserted in his answer to the Complaint. Dkt. No. 7. On 23 24 1 December 9, 2025, Defendant filed a cross-motion and response to Plaintiffs’ motion to disqualify 2 and to strike. Plaintiffs did not file a reply. 3 On December 17, 2025, Defendant filed a motion to dismiss under Federal Rule of Civil
4 Procedure 12(b)(6). Dkt. No. 14. On December 18, 2025, Defendant filed an amended Rule 5 12(b)(6) motion to dismiss. Dkt. No. 15. 6 On January 7, 2026, 58 days after Defendant filed his answer, Plaintiffs filed their first 7 amended complaint. Dkt. No. 16. Plaintiffs did not file any opposition to Defendant’s motion to 8 dismiss. 9 B. Plaintiffs’ Allegations 10 As an initial matter, the Court finds that Plaintiffs’ original complaint is operative. 11 Amendment as a matter of course is permitted 21 days after service of either a responsive pleading 12 or Rule 12(b) motion, whichever is earlier. Fed. R. Civ. P. 15(a)(1)(B). Here, Plaintiffs filed their
13 amended complaint 58 days after Defendant filed his answer. Thus, Plaintiffs were required to 14 seek leave of the Court or obtain Defendant’s written consent to amend their Complaint. Because 15 they did not, the Court treats Plaintiffs’ original complaint as operative, and strikes the amended 16 complaint.1 17 Plaintiffs describe four separate events as giving rise to their claims. 18 First, at a 2023 deposition, Plaintiffs allege that Frost, an attorney “who represented 19 adverse parties” to Lemelson in Lemelson v. Bovee, a Skagit County Superior Court case, 20 “demanded” that Lemelson remove her “visible Christian cross necklace,” and that his demand 21 “re-triggered severe trauma, causing tremors, tachycardia, and emotional collapse during the 22 1 The amended complaint sets out substantially the same factual allegations, though it somewhat re-arranges the 23 grounds for relief. Specifically, Plaintiffs assert five claims for relief against Frost: (1) “deprivation of constitutional rights” under § 1983; (2) “ADA retaliation and interference”; (3) “association-based retaliation”; (4) “coercive burden on free exercise” of religious expression; and (5) “civil conspiracy to interfere with (sic) civil right.” Dkt. 24 No. 16 at 5–6. Accordingly, the analysis herein would apply even as to Plaintiffs’ amended complaint. 1 deposition.” Dkt. No. 1 at 2. Plaintiffs assert Frost’s actions at the deposition violated the ADA, 2 the First Amendment, and “Rule 8.4(d) of the Rules of Professional Conduct.” Id. 3 Second, Plaintiffs assert that Frost’s email communications with a Washington state
4 assistant attorney general amounted to “collusion” with a state official to derail Ms. Lemelson’s 5 ADA accommodations. Id. at 2–3. 6 Third, Plaintiffs allege that on December 16, 2022, Frost entered Plaintiffs’ property 7 “without notice or permission during a court-ordered inspection,” and called Plaintiff Kientz “a 8 punk.” Dkt. No. 1 at 3. They further allege that Frost “filed a retaliatory cross-claim” against 9 Kientz, amounting to “an ethical violation” and “witness tampering.” Id. This appears to be the 10 only set of factual allegations that involves Kientz. 11 Fourth, Plaintiffs aver that “Frost has a documented disciplinary record” which “mirrors” 12 his alleged conduct in this case. Id.
13 On these facts, Plaintiffs assert (1) violations of the ADA; (2) civil rights violations under 14 § 1983; and (3) intentional inflection of emotional distress. Id. at 3–4. 15 II. ANALYSIS 16 A. Legal Standard 17 In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court 18 examines the complaint to determine whether, if the facts alleged are true, plaintiff has stated “a 19 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 20 The Court “consider[s] the allegations collectively and examine[s] the complaint as a whole.” 21 Wilson v. Craver, 994 F.3d 1085, 1093 n.5 (9th Cir. 2021) (citation modified). A claim is plausible 22 if plaintiff has pleaded “factual content that allows the court to draw the reasonable inference that
23 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 24 1 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 2 do not suffice.” Id. 3 B. Plaintiffs fail to state a federal claim on which relief can be granted.
4 1. Plaintiffs do not sufficiently allege § 1983 claims. 5 Plaintiffs assert various claims under 42 U.S.C. § 1983, including allegations that Frost 6 violated Plaintiff Lemelson’s rights to due process, equal protection, as well as her First 7 Amendment rights. Dkt. No. 1. “Section 1983 does not confer rights, but instead allows 8 individuals to enforce rights contained in the United States Constitution and defined by federal 9 law.” Vinson v. Thomas, 288 F.3d 1145, 1155 (9th Cir. 2002). In particular, § 1983 allows claims 10 against a person who, acting “under color of state law,” deprived plaintiffs of such rights. Gibson 11 v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). For the conduct of a private individual to 12 be “under color of state law,” the conduct must be fairly attributed to the state. Collins v.
13 Womancare, 878 F.2d 1145, 1151 (9th Cir. 1989). Conduct is fairly attributable to the state when 14 (1) “the deprivation [is] caused by the exercise of some right or privilege created by the State … 15 or by a person for whom the State is responsible,” (the “state policy” requirement) or (2) when the 16 party charged with the deprivation “may fairly be said to be a state actor” (the “state actor” 17 requirement). Collins, 878 F.2d at 1151. Plaintiffs’ complaint does not sufficiently allege either 18 of these requirements. 19 Plaintiffs do not identify any state policy, so the Court considers only the state actor 20 requirement. Here, the named Defendant—who is a private attorney—is not a person acting under 21 color of state law. Plaintiffs provide no factual allegations to support that Frost acted under color 22 of state law, or that his conduct could be fairly attributed to the state. See Simmons v. Sacramento
23 Cnty.
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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 CAROLYN LEMELSON, et al., CASE NO. C25-2157-KKE 8
Plaintiff(s), ORDER ON MOTION TO DISMISS 9 v.
10 STEPHEN F. FROST,
11 Defendant(s).
12 This matter comes before the Court on Defendant Stephen F. Frost’s motion to dismiss for 13 failure to state a claim. Dkt. No. 15. Defendant’s motion is unopposed. For the reasons below, 14 the Court grants Defendant’s motion, and dismisses this case. 15 I. BACKGROUND 16 A. Procedural History 17 On October 31, 2025, Plaintiffs Carolyn Lemelson and Joshua David Kientz, representing 18 themselves, filed this action, bringing claims under both the Americans with Disabilities Act 19 (“ADA”) and 42 U.S.C. § 1983. Dkt. No. 1 at 1–2. On November 10, 2025, Defendant filed an 20 answer to the Complaint in which he asserted multiple counterclaims. See Dkt. No. 6. 21 On November 26, 2025, Plaintiffs filed a motion to disqualify Frost from proceeding pro 22 se and to strike the counterclaims he asserted in his answer to the Complaint. Dkt. No. 7. On 23 24 1 December 9, 2025, Defendant filed a cross-motion and response to Plaintiffs’ motion to disqualify 2 and to strike. Plaintiffs did not file a reply. 3 On December 17, 2025, Defendant filed a motion to dismiss under Federal Rule of Civil
4 Procedure 12(b)(6). Dkt. No. 14. On December 18, 2025, Defendant filed an amended Rule 5 12(b)(6) motion to dismiss. Dkt. No. 15. 6 On January 7, 2026, 58 days after Defendant filed his answer, Plaintiffs filed their first 7 amended complaint. Dkt. No. 16. Plaintiffs did not file any opposition to Defendant’s motion to 8 dismiss. 9 B. Plaintiffs’ Allegations 10 As an initial matter, the Court finds that Plaintiffs’ original complaint is operative. 11 Amendment as a matter of course is permitted 21 days after service of either a responsive pleading 12 or Rule 12(b) motion, whichever is earlier. Fed. R. Civ. P. 15(a)(1)(B). Here, Plaintiffs filed their
13 amended complaint 58 days after Defendant filed his answer. Thus, Plaintiffs were required to 14 seek leave of the Court or obtain Defendant’s written consent to amend their Complaint. Because 15 they did not, the Court treats Plaintiffs’ original complaint as operative, and strikes the amended 16 complaint.1 17 Plaintiffs describe four separate events as giving rise to their claims. 18 First, at a 2023 deposition, Plaintiffs allege that Frost, an attorney “who represented 19 adverse parties” to Lemelson in Lemelson v. Bovee, a Skagit County Superior Court case, 20 “demanded” that Lemelson remove her “visible Christian cross necklace,” and that his demand 21 “re-triggered severe trauma, causing tremors, tachycardia, and emotional collapse during the 22 1 The amended complaint sets out substantially the same factual allegations, though it somewhat re-arranges the 23 grounds for relief. Specifically, Plaintiffs assert five claims for relief against Frost: (1) “deprivation of constitutional rights” under § 1983; (2) “ADA retaliation and interference”; (3) “association-based retaliation”; (4) “coercive burden on free exercise” of religious expression; and (5) “civil conspiracy to interfere with (sic) civil right.” Dkt. 24 No. 16 at 5–6. Accordingly, the analysis herein would apply even as to Plaintiffs’ amended complaint. 1 deposition.” Dkt. No. 1 at 2. Plaintiffs assert Frost’s actions at the deposition violated the ADA, 2 the First Amendment, and “Rule 8.4(d) of the Rules of Professional Conduct.” Id. 3 Second, Plaintiffs assert that Frost’s email communications with a Washington state
4 assistant attorney general amounted to “collusion” with a state official to derail Ms. Lemelson’s 5 ADA accommodations. Id. at 2–3. 6 Third, Plaintiffs allege that on December 16, 2022, Frost entered Plaintiffs’ property 7 “without notice or permission during a court-ordered inspection,” and called Plaintiff Kientz “a 8 punk.” Dkt. No. 1 at 3. They further allege that Frost “filed a retaliatory cross-claim” against 9 Kientz, amounting to “an ethical violation” and “witness tampering.” Id. This appears to be the 10 only set of factual allegations that involves Kientz. 11 Fourth, Plaintiffs aver that “Frost has a documented disciplinary record” which “mirrors” 12 his alleged conduct in this case. Id.
13 On these facts, Plaintiffs assert (1) violations of the ADA; (2) civil rights violations under 14 § 1983; and (3) intentional inflection of emotional distress. Id. at 3–4. 15 II. ANALYSIS 16 A. Legal Standard 17 In evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court 18 examines the complaint to determine whether, if the facts alleged are true, plaintiff has stated “a 19 claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 20 The Court “consider[s] the allegations collectively and examine[s] the complaint as a whole.” 21 Wilson v. Craver, 994 F.3d 1085, 1093 n.5 (9th Cir. 2021) (citation modified). A claim is plausible 22 if plaintiff has pleaded “factual content that allows the court to draw the reasonable inference that
23 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 24 1 “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, 2 do not suffice.” Id. 3 B. Plaintiffs fail to state a federal claim on which relief can be granted.
4 1. Plaintiffs do not sufficiently allege § 1983 claims. 5 Plaintiffs assert various claims under 42 U.S.C. § 1983, including allegations that Frost 6 violated Plaintiff Lemelson’s rights to due process, equal protection, as well as her First 7 Amendment rights. Dkt. No. 1. “Section 1983 does not confer rights, but instead allows 8 individuals to enforce rights contained in the United States Constitution and defined by federal 9 law.” Vinson v. Thomas, 288 F.3d 1145, 1155 (9th Cir. 2002). In particular, § 1983 allows claims 10 against a person who, acting “under color of state law,” deprived plaintiffs of such rights. Gibson 11 v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). For the conduct of a private individual to 12 be “under color of state law,” the conduct must be fairly attributed to the state. Collins v.
13 Womancare, 878 F.2d 1145, 1151 (9th Cir. 1989). Conduct is fairly attributable to the state when 14 (1) “the deprivation [is] caused by the exercise of some right or privilege created by the State … 15 or by a person for whom the State is responsible,” (the “state policy” requirement) or (2) when the 16 party charged with the deprivation “may fairly be said to be a state actor” (the “state actor” 17 requirement). Collins, 878 F.2d at 1151. Plaintiffs’ complaint does not sufficiently allege either 18 of these requirements. 19 Plaintiffs do not identify any state policy, so the Court considers only the state actor 20 requirement. Here, the named Defendant—who is a private attorney—is not a person acting under 21 color of state law. Plaintiffs provide no factual allegations to support that Frost acted under color 22 of state law, or that his conduct could be fairly attributed to the state. See Simmons v. Sacramento
23 Cnty. Superior Ct., 318 F.3d 1156, 1161 (9th Cir. 2003) (private practice lawyer cannot be sued 24 under § 1983). Though Plaintiffs state that Frost worked “jointly” with public officials and 1 “manipulated” and “weaponized the coercive authority of the State,” such conclusory allegations 2 are insufficient. See Simmons, 318 F.3d at 1161 (“conclusory allegations that the lawyer was 3 conspiring with state officers to deprive him of due process are insufficient”); see also Price v.
4 Hawaii, 939 F.2d 702, 708 (9th Cir. 1991) (requiring more than “conclusory allegations” to 5 consider a private party a § 1983 state actor). Because Frost is a private attorney, and not a state 6 actor, Plaintiffs fail to state any claim under 42 U.S.C. § 1983. 7 Thus, the Court will dismiss all of Plaintiffs’ § 1983 claims. Because amendment of § 8 1983 claims against Defendant would be futile, Plaintiffs are not granted leave to amend. 9 2. Plaintiffs do not sufficiently allege ADA claims. 10 Plaintiffs also assert a claim under Title II of the ADA, citing 42 U.S.C. § 12132. Dkt. No. 11 1 at 3. Title II of the ADA states that “No qualified individual with a disability shall, by reason of 12 such disability, be excluded from participation in or be denied benefits of the services, programs,
13 or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 14 12132. As a threshold matter, Plaintiffs’ Title II claims fail because Frost is a private attorney, not 15 a public entity. See Wilkins-Jones v. County of Alameda, 859 F. Supp. 2d 1039, 1045 (N.D. Cal. 16 2012) (“Title II applies to public entities” and “provides for liability only against public entities”). 17 Although Plaintiffs separate their ADA claims from their § 1983 claims, to the extent Plaintiffs 18 wish to enforce their Title II rights under § 1983, such claims are nevertheless unavailing for the 19 reasons discussed above, and for the additional reason that an individual cannot be sued under § 20 1983 for violations of Title II of the ADA. Vinson, 288 F.3d at 1156. 21 Plaintiffs also claim retaliation under the ADA, citing 42 U.S.C. § 12203. Dkt. No. 1 at 3. 22 “To maintain an ADA retaliation claim, a plaintiff must show that the defendant owns, leases, or
23 operates a place of public accommodation under the ADA.” Baker v. Avenue5 Residential, 2:24- 24 CV-01862-JHC, 2025 WL 1207666, at *2 (W.D. Wash. April 25, 2025) (citing Iceberg v. 1 Brookstone Landscape & Design LLC, 23-01871-KKE, 2024 WL 1012895, at *2 (W.D. Wash. 2 Mar. 8, 2024)). Plaintiffs do not attempt to show that Frost owns or operates a place of public 3 accommodation.
4 As such, the Court will dismiss Plaintiffs’ ADA claims. Because amendment of Plaintiffs’ 5 ADA claims against Defendant would be futile, Plaintiffs are not granted leave to amend. 6 C. The Court declines to exercise supplemental jurisdiction over Plaintiffs’ state law 7 claims, and Defendant’s state law counterclaims. 8 District courts may decline to exercise supplemental jurisdiction over state law claims if 9 “the district court has dismissed all claims over which it has original jurisdiction[.]” 28 U.S.C. § 10 1367(c)(3). Retention of supplemental jurisdiction over state law claims under § 1367(c) is 11 discretionary, and “is informed by the … values of economy, convenience, fairness, and comity.” 12 Acri v. Varian Associates, Inc., 114 F.3d 999, 1001 (9th Cir. 1997). “[I]n the usual case in which
13 all federal-law claims are eliminated before trial, the balance of factors … will point toward 14 declining to exercise jurisdiction over the remaining state-law claims.” Id. As such, the Court, in 15 its discretion, declines to exercise supplemental jurisdiction over Plaintiffs’ remaining state law 16 claims and Defendant’s state law counterclaims, and dismisses those claims. 17 III. CONCLUSION 18 For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss without 19 leave to amend. Dkt. No. 15. The remaining pending motions are DENIED as moot. Dkt. Nos. 20 7, 13, 14. The Clerk is directed to administratively close this case. 21 Dated this 23rd day of January, 2026. 22 A 23 Kymberly K. Evanson 24 United States District Judge