Curtis v. Inslee

Opinion

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6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 AILA CURTIS, et al., CASE NO. 3:23-cv-05741-RJB 11 Plaintiffs, ORDER DENYING PLAINTIFFS’ 12 v. VARIOUS MOTIONS AND DISMISSING REMAINING STATE 13 JAY ROBERT INSLEE, PEACEHEALTH, LAW CLAIMS WITHOUT LIZ DUNNE, DOUG KOEKKOEK, PREJUDICE 14 Defendants. 15 16 This matter comes before the Court on the Plaintiffs’ Rule 59(E) Motion to Alter or 17 Amend the Ruling, or in the Alternative, Motion for Leave to File Second Amended Complaint 18 (Dkt. 38), the Plaintiffs’ Motion for Reconsideration (Dkt. 47), and the Plaintiffs’ and 19 Defendants PeaceHealth, Liz Dunne, and Doug Koekkoek’s (collectively “PeaceHealth”) 20 responses to the Court’s January 23, 2024 order to show cause (Dkts. 44 and 45). The Court has 21 considered the pleadings filed regarding the motions, the responses to the order to show cause, 22 and the remaining file. It is fully advised. 23 24 1 This case arises from Defendants’ COVID-19 vaccine mandates for healthcare workers. 2 Dkt. 8. The healthcare worker Plaintiffs contend that the Defendants violated Plaintiffs’ 3 constitutional and international treaty rights, federal statutory rights, and that Defendants 4 breached a contract and committed various state torts in connection with their “unlawful, 5 malicious, unequal and contractually violative COVID-19 investigational drug mandate[s].” Id.

6 at 2. 7 For the reasons provided below, the Plaintiffs’ motions (Dkts. 38 and 47) should be 8 denied. The Court should decline to exercise supplemental jurisdiction over the state law claims 9 asserted against the PeaceHealth Defendants, dismiss those state law claims without prejudice, 10 and close the case. 11 I. PROCEDURAL HISTORY AND BACKGROUND FACTS 12 All claims against Defendant Washington State Governor Jay Robert Inslee were 13 dismissed on December 21, 2023. Dkt. 32. The federal claims asserted against the PeaceHealth 14 Defendants were dismissed on January 23, 2024. Dkt. 41. The January 23, 2024 order also

15 ordered the Plaintiffs and the PeaceHealth Defendants to show cause, if any they have, why the 16 Court should not decline to exercise supplemental jurisdiction over the Plaintiffs’ state law 17 claims and dismiss those claims without prejudice. Id. The Plaintiffs and PeaceHealth 18 Defendants have responded. Dkts. 44 and 45. 19 On January 18, 2024, the Plaintiffs filed their motion to alter or amend the December 21, 20 2023 order dismissing the claims against Gov. Inslee, or in the alternative, to amend their 21 complaint. Dkt. 38. They also filed a motion for reconsideration of the portion of the January 22 23, 2024 order dismissing the federal claims against PeaceHealth. Dkt. 47. 23 24 1 The background facts and earlier procedural history of this case are in the December 21, 2 2023 Order Granting Defendant Inslee’s Motion to Dismiss (Dkt. 32 at 1-6) and the January 23, 3 2024 Order on PeaceHealth Defendants’ Motion to Dismiss (Dkt. 41 at 1-8) and are adopted here 4 by reference. 5 This opinion will first consider the Plaintiffs’ motion to alter or amend the December 21,

6 2023 order dismissing all claims against Gov. Inslee (Dkt. 38) and the Plaintiffs’ motion for 7 reconsideration of the portion of the January 23, 2024 order that dismissed the federal claims 8 against the PeaceHealth Defendants (Dkt. 47). It will then turn to the Plaintiffs’ motion for leave 9 to file a second amended complaint (Dkt. 38). This opinion will lastly consider whether the 10 Court should exercise supplemental jurisdiction over the state law claims asserted against the 11 PeaceHealth Defendants. 12 II. DISCUSSION 13 A. MOTION TO ALTER OR AMEND THE DECEMBER 21, 2023 ORDER DISMISSING ALL CLAIMS AGAINST GOV. INSLEE AND MOTION FOR 14 RECONSIDERATION OF THE JANUARY 23, 2024 ORDER DISMISSING THE FEDERAL CLAIMS AGAINST THE PEACEHEALTH DEFENDANTS 15 1. Motions 16 Pursuant to Fed. R. Civ. P. 59(E), the Plaintiffs move to alter or amend the December 21, 17 2023 Order dismissing the claims asserted against Gov. Inslee regarding the applicability of 18 Johnson v. Brown, 567 F.Supp.3d 1230 (D. Or. 2021) and the “non-availability of 19 COMIRNATY®.” Dkt. 38. The Plaintiffs argue that Johnson does not hold that the “Pfizer- 20 BioNTech vaccine is not an [emergency use authorization (“EAU”)/Public Readiness and 21 Emergency Preparedness Act (“PREP”)] drug.” Id. at 2. They maintain that Johnson “actually 22 confirmed that COMIRNATY® and that Pfizer-BioNTech vaccine are two different products 23 24 1 governed by two different laws.” Id. The Plaintiffs further assert that Johnson did not “address 2 what the lack of availability of COMIRNATY® would have on a vaccine mandate.” Id. 3 The Plaintiffs move for reconsideration of the January 23, 2024 order dismissing the 4 federal claims against the PeaceHealth Defendants “for the reasons set forth” in their Rule 59(E) 5 Motion to Alter or Amend (Dkt. 38). Dkt. 47.

6 2. Standard 7 Fed. R. Civ. P. 59(E) provides, “[a] motion to alter or amend a judgment must be filed no 8 later than 28 days after the entry of the judgment.” 9 No judgment has been entered here. In essence, the Plaintiffs seek reconsideration of the 10 Court’s decision to dismiss all claims against Gov. Inslee. 11 Local Rule W.D. Wash 7(h)(1) provides, “[m]otions for reconsideration are disfavored. 12 The court will ordinarily deny such motions in the absence of a showing of manifest error in the 13 prior ruling or a showing of new facts or legal authority which could not have been brought to its 14 attention earlier with reasonable diligence.” Such motions should be filed within 14 days after

15 the order to which it relates is filed. 16 3. Analysis 17 The Plaintiffs’ motion to alter or amend the judgment, functionally a motion for 18 reconsideration of the order dismissing all claims against Gov. Inslee, (Dkt. 38) should be 19 denied. It is untimely as it was filed over 14 days from the order to which it relates. 20 Further, the motion to reconsider the order dismissing all claims against Gov. Inslee (Dkt. 21 38) and the motion to reconsider the order dismissing the federal claims against the PeaceHealth 22 Defendants (Dkt. 47) should be denied on the merits. The Plaintiffs have failed to point to a 23 24 1 “manifest error in the prior ruling[s]” or made “a showing of new facts or legal authority which 2 could not have been brought to its attention earlier with reasonable diligence.” 3 The Plaintiffs’ arguments regarding the applicability of Johnson are immaterial to 4 whether the claims against Gov. Inslee or PeaceHealth should be dismissed. While they again 5 argue that COMIRNATY® was not widely available at the time of Defendants’ vaccine

6 mandates, the Plaintiffs fail to explain how that is relevant to the claims they asserted against 7 Gov. Inslee or the federal claims asserted against PeaceHealth, or why it merits reversal of the 8 Court’s prior decisions dismissing those claims. 9 Furthermore, the day that the pending motions in this case were noted for consideration 10 (February 23, 2024), the Ninth Circuit Court of Appeals affirmed the Johnson district court’s 11 separate decision to dismiss the plaintiffs’ federal claims as a matter of law. Johnson, et. al. v. 12 Kotek, et. al., 2024 WL 747022, at *2 (9th Cir. Feb. 23, 2024). (This Court cited the Johnson 13 district court’s 56-page decision denying plaintiffs’ motion for temporary restraining order in the 14 Order Granting Defendant Inslee’s Motion to Dismiss. Dkt. 32 at 4).

15 The plaintiffs in Johnson challenged then Oregon Governor Kate Brown and the Director 16 of the Oregon Health Authority’s August of 2021 COVID-19 vaccine mandates for state 17 employees, healthcare workers, and school employees. Id. The Johnson plaintiffs asserted 18 several claims, including that the defendants’ vaccine mandates were preempted by 21 U.S.C. § 19 360bbb-3(E)(1)(A) under the Supremacy Clause. The Johnson court rejected that challenge 20 noting that the “the Supremacy Clause, of its own force, does not create rights enforceable under 21 § 1983.” Johnson at 2. It held that the availability of the § 1983 remedy under the Supremacy 22 Clause “turns on whether the assertedly pre-empting statute [there and here 360bbb-3(E)(1)(A)], 23 by its terms or as interpreted, (1) creates obligations sufficiently specific and definite to be within 24 1 the competence of the judiciary to enforce, (2) is intended to benefit the putative plaintiff, and (3) 2 is not foreclosed by express provision or other specific evidence from the statute itself.” Id. at 2 3 (cleaned up, citations and internal quotation marks omitted). The Johnson court noted that the 4 plaintiffs’ Supremacy Clause claim, based on § 360bbb-3, “falters at the third prong of this test,” 5 because the Food, Drug, and Cosmetic Act (“FDCA”) (of which § 360bbb-3 is a part) expressly

6 states that all proceedings to enforce it “shall be by and in the name of the United States.” Id. 7 (citing 21 U.S.C. § 337(a)). Concluding that the plaintiffs’ Supremacy Clause claim was an 8 attempt to use § 1983 to create a federal damages remedy to enforce the requirements of the 9 FDCA, the Ninth Circuit held that the plaintiffs’ supremacy clause claim is “foreclosed by an 10 express provision of the FDCA” and was properly dismissed. Id. 11 The Plaintiffs, in their motion for reconsideration, argue that this Court “did not address” 12 the argument in their amended complaint that § 360bbb-3 and the PREP ACT preempt the 13 Defendants’ vaccine mandates under the supremacy clause. Dkt. 38. To the extent that the 14 Plaintiffs seek relief on a preemption/supremacy clause basis, these claims were not clearly

15 identified as one of the Plaintiffs’ “counts” and are not listed as “counts” in the proposed second 16 amended complaint. 17 In any event, pursuant to the Ninth Circuit’s decision in Johnson, the Plaintiffs’ 18 preemption/supremacy clause claims based on § 360bbb-3 should be dismissed with 19 prejudice. That claim is expressly foreclosed by the FCDA and should be dismissed as a 20 matter of law. Johnson at 2. Further, the Plaintiffs make no showing that § 1983 is 21 available to provide a remedy for alleged PREP Act preemption violations. The 22 Plaintiffs’ preemption/supremacy clause claims based on § 360bbb-3 or the PREP Act 23 should be dismissed. 24 1 Moreover, dismissal of the Plaintiffs’ preemption claims is consistent with the 2 Third Circuit Court of Appeal’s decision in Children’s Health Defense, Inc. v. Rutgers, 3 the State Univ. of New Jersey, 2024 WL 637353 (3rd Cir. Feb. 15, 2024). The Rutgers 4 court held that Section 360bbb-3 does not preempt the university’s COVID-19 vaccine 5 mandate because (1) 21 U.S.C. § 360bbb-3 applies to the Secretary of Health and Human

6 Services only and not the defendants and (2) the plaintiffs did not allege sufficient facts 7 to show that the university’s mandate conflicted with § 360bbb-3. Id. at 5. Although 8 they argue in supplemental briefing that the Rutgers court erred in so concluding (Dkt. 9 53), the Plaintiffs here fail to point to any Ninth Circuit authority which requires a 10 different result. 11 The Plaintiffs move for reconsideration of the Court’s ruling that Gov. Inslee was entitled 12 to qualified immunity on their federal claims. Dkt. 38. Their motion should be denied. The 13 Plaintiffs have failed to point to any grounds from which to conclude that Gov. Inslee’s 14 Proclamation violated constitutional or statutory rights that were “clearly established when

15 viewed in the specific context of the case” as is their burden. Saucier v. Katz, 121 S.Ct. 2151, 16 2156 (2001). The Plaintiffs argue that the Court’s reliance on Seaplane Adventures, LLC v. 17 Cnty. of Marin, 71 F.4th 724 (9th Cir. 2023) in the qualified immunity analysis was in error. 18 Dkt. 38 at 7. As it relates to qualified immunity, the December 21, 2023 order cited Seaplane for 19 the proposition that “even if the only vaccines available at the time were experimental, the Ninth 20 Circuit has cautioned that when governmental actions are ‘undertaken during a time of great 21 uncertainty with a novel disease, medical uncertainties afford little basis for judicial responses in 22 absolute terms and that legislative authority must be especially broad in areas fraught with 23 medical and scientific uncertainties.’” Dkt. 32 (quoting Seaplane at 730). The Plaintiffs argue 24 1 that the parties’ actions in Seaplane occurred before the COVID-19 vaccines ineffectiveness was 2 known. Dkt. 38 at 7. This argument is unrelated to whether there was existing precedent which 3 clearly established that Gov. Inslee’s August 2021 COVID-19 vaccine mandate violated the 4 Plaintiffs’ statutory or constitutional rights. Furthermore, the decision to grant Gov. Inslee 5 qualified immunity here is consistent with the Ninth Circuit Court of Appeals ruling in Johnson

6 that the Oregon governor and state officials were entitled to qualified immunity against § 1983 7 claims (including for violations of plaintiffs’ due process rights) related to their August 2021 8 COVID-19 vaccine mandates. Johnson at 3. 9 The Plaintiffs’ motions for reconsideration (Dkts. 38 and 47) should be denied. 10 B. MOTION TO AMEND THE AMENDED COMPLAINT 11 1. Standard 12 Under Fed. R. Civ. P. 15 (a)(2), “a party may amend its pleading only with the opposing 13 party’s written consent or the court’s leave. The court should freely give leave when justice so 14 requires.” A motion to amend under Rule 15 (a)(2), “generally shall be denied only upon

15 showing of bad faith, undue delay, futility, or undue prejudice to the opposing party.” Chudacoff 16 v. University Medical Center of Southern Nevada, 649 F.3d 1143 (9th Cir. 2011). 17 “A motion for leave to amend may be denied if it appears to be futile or legally 18 insufficient.” Miller v. Rykoff-Sexton, Inc., 845 F.2d 209 (9th Cir. 1988), overruled on other 19 grounds. The test to determine the sufficiency of a proposed amendment is the same as the one 20 used when considering the sufficiency of a pleading challenged under Rule 12(b)(1) or 12(b)(6). 21 See Id. 22 Fed. R. Civ. P. 12(b)(6) motions to dismiss may be based on either the lack of a 23 cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. 24 1 Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations 2 are taken as admitted and the complaint is construed in the plaintiff's favor. Keniston v. Roberts, 3 717 F.2d 1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss 4 does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his 5 entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the

6 elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 554-55 7 (2007) (internal citations omitted). “Factual allegations must be enough to raise a right to relief 8 above the speculative level, on the assumption that all the allegations in the complaint are true 9 (even if doubtful in fact).” Id. at 555. The complaint must allege “enough facts to state a claim 10 to relief that is plausible on its face.” Id. at 547. 11 2. Proposed Second Amended Complaint – Federal Claims 12 The Plaintiffs filed a proposed second amended complaint with their motion to alter or 13 amend the judgment, or in the alternative, for leave to file a second amended complaint. Dkt. 14 38-2. It makes the following federal claims: (1) “42 U.S.C. § 1983 – violation of 21 U.S.C.

15 §360bbb-3(e)(1)(A)(ii)(III),” referring to the “CDC COVID-19 Vaccination Program Provider 16 Agreement, and the implementing statutes and regulations found at 45 CFR Part 46, the Belmont 17 Report, 21 U.S.C. § 360bbb-3, Article VI of the [International Covenant on Civil and Political 18 Rights (“ICCPR”)] Treaty, Federal Wide Assurance, 10 U.S.C. § 980, EUA Scope of 19 Authorization letters, and the Fourteenth Amendment,” (2) “42 U.S.C. § 1983 - Deprivation of 20 Equal Protection Rights,” (3) “42 U.S.C. § 1983 - Deprivation of Constitutional Procedural Due 21 Process Rights,” (4) “42 U.S.C. § 1983 - Substantive Due Process Rights under 21 U.S.C. § 22 360bbb-3,” (5) “42 U.S.C. § 1983 – Substantive Due Process Rights under PREP Act,” (6) 23 “Unconstitutional Conditions Doctrine – 42 U.S.C. § 1983,” (7) “Deprivation of Rights Under 24 1 Color of Law - 42 U.S.C. § 1983 Spending Clause Doctrine,” (claims 8-11 are state law claims) 2 and (12) an “Implied Private Right of Action 21 U.S.C. § 360bbb-3.” Dkt. 38-2. The proposed 3 second amended complaint also contains two sections referencing preemption and the 4 Supremacy Clause, one regarding 21 U.S.C. § 360bbb-3 and the second regarding the PREP Act 5 (Dkt. 38-2) that can be considered as unnumbered claims.

6 3. Analysis 7 The Plaintiffs’ motion for leave to file a second amended complaint (Dkt. 38) should be 8 denied as futile as to their federal claims. The Plaintiffs have twice failed to plead legally 9 sufficient federal claims. Dkts. 32 and 41. For many of the same reasons stated in the prior 10 orders (Dkts. 32 and 41), the proposed second amended complaint (Dkt. 38-2) also fails to 11 articulate a cognizable federal legal theory upon which relief could be granted. 12 For the reasons stated in the December 21, 2023 order, Gov. Inslee has demonstrated that 13 he is entitled to qualified immunity on all the Plaintiffs’ § 1983 claims; there is no showing that 14 he is not entitled to qualified immunity on the Plaintiffs’ repackaged § 1983 claims contained in

15 the proposed second amended complaint. Further, the Plaintiffs’ proposed second amended 16 complaint does not plead sufficient plausible facts from which to conclude that the PeaceHealth 17 Defendants were state actors for purposes of § 1983 liability. Moreover, there are additional 18 grounds from which to conclude that the Plaintiffs’ proposed amendment of their federal claims 19 is futile, with more in-depth discussions found in the prior orders (Dkts. 32 and 41): 20 Federal Claim 1. As it relates to the first claim, Plaintiffs fail to show that any of the 21 federal statutes, regulations, reports or international treaties they cite in their proposed second 22 amended complaint apply and/or that they create a right enforceable under § 1983 that is 23 available against Gov. Inslee or PeaceHealth. 24 1 The Plaintiffs point to Health and Hospital Corp. of Marion County v. Talevski, 599 U.S. 2 166 (2023) to argue that they are bringing § 1983 claims for “deprivation of rights created by 3 those statutes;” and seek to amend their complaint to more clearly set forth that they are bringing 4 § 1983 claims not private right of action claims. Dkt. 38 at 6. 5 In Talevski, the Supreme Court held that a nursing-home resident had unambiguously

6 conferred rights (relating to unnecessary restraint and predischarge notice) under the Federal 7 Nursing Home Reform Act and that those rights were presumptively enforceable under § 1983. 8 536 U.S. at 184. It further concluded that there was no showing that Congress intended to 9 preclude the use of § 1983 to enforce those particular rights. Id. at 188. 10 The Court in Talevski relied on Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) for the 11 proposition that “statutory provisions must unambiguously confer individual federal rights” for a 12 presumption of enforceability under § 1983 to arise. 599 U.S. at 180. Further, the Talevski court 13 noted that the presumption may be defeated where Congress evinced an intention that § 1983 14 was not available to enforce those rights. Id. at 186.

15 The Plaintiffs’ proposed second amended complaint again fails to point to federal law – 16 whether statutory, regulatory, international treaty provisions or some other source - that 17 “unambiguously confer” individual federal rights enforceable under § 1983 which would entitle 18 them to relief here. (To the extent Plaintiffs base their claims on the Fourteenth Amendment, 19 those arguments are addressed below). Further, as stated above in Section A.3., the statute 20 mentioned in the title of claim one, “21 U.S.C. § 360bbb-3(e)(1)(A)(ii)(III),” contains an express 21 provision limiting enforcement actions to “a State in its own name” or by the United States. 22 Johnson at 2 (citing 21 U.S.C. § 337(a)). Accordingly, even if 21 U.S.C. § 360bbb-3(e) 23 unambiguously conferred individual federal rights which were presumptively enforceable under 24 1 § 1983, Congress evinced an express intention that § 1983 was not available to enforce those 2 rights – only a State or the United States may sue under the statute. Talevski at 186. The 3 Plaintiffs’ proposed claim 1 fails to state a claim. Amendment to add it would be futile. 4 Federal Claims 2-5. To the extent the Plaintiffs again assert federal constitutional 5 claims under the Fourteenth Amendment’s equal protection, substantive due process or

6 procedural due process clauses (claims 2-5), they fail to show that their proposed amendment is 7 not futile. They again do not state a claim on which relief could be granted. A rational basis of 8 review applies to these constitutional claims because there is no fundamental right to refuse 9 vaccination based on Jacobson v. Massachusetts, 197 U.S. 11 (1905). 10 Federal Claim 2. The Plaintiffs’ proposed equal protection claim (claim 2) fails because, 11 their conclusory assertions aside, they have failed to adequately plead facts from which to 12 conclude that the Defendants did not have a rational basis from treating them differently than 13 others in the community. See Seaplane at 729-730. 14 Federal Claim 3. The Plaintiffs’ proposed procedural due process claim (claim 3) fails

15 because the Plaintiffs all had notice of the mandates and contrary to their allegations, both Gov. 16 Inslee’s and the PeaceHealth Defendants’ vaccine mandates contained opportunities to be heard 17 – processes to request exemptions and accommodations. Accordingly, the Plaintiffs point to no 18 authority that supports the notion that they were entitled to more process than they were given. 19 See Pilz v. Inslee, 2022 WL 1719172 (W.D. Wash. 2022)(holding that Gov. Inslee’s vaccine 20 mandate did not violate procedural due process). 21 Federal Claim 4. The Plaintiffs’ motion to add the proposed “42 U.S.C. § 1983 - 22 Substantive Due Process Rights under 21 U.S.C. § 360bbb-3” claim, should be denied as futile 23 because as stated above in Section II.B.3. Federal Claim 1, Congress has expressly foreclosed a § 24 1 1983 claim based on “rights” arising from 21 U.S.C. § 360bbb-3. Johnson at 2. The Plaintiffs’ 2 attempt at recasting the claim as brought with reference to the substantive due process clause 3 does not change the result. 4 Further, as was true in their prior attempts to assert substantive due process claims, the 5 Plaintiffs have failed to allege sufficient facts from which to conclude that the vaccine mandates

6 implicate fundamental rights and so rational basis review applies. The Plaintiffs have not 7 pointed to properly credited assertions from which to conclude that the Defendants did not have 8 a rational basis for the mandates. 9 Federal Claim 5. The Plaintiffs’ proposed “42 U.S.C. § 1983 - Substantive Due Process 10 Rights under the PREP Act” claim, is equally unavailing. The exact nature of Plaintiffs’ claim 5 11 is unclear. 12 In 2005, Congress passed the PREP Act to encourage the development and deployment 13 of medical countermeasures (such as diagnostics, treatments, and vaccines) by limiting legal 14 liability relating to their administration during times of crisis. Maney v. Brown, 91 F.4th 1296,

15 1298 (9th Cir. 2024).1 The statute gives “’covered persons’ immunity ‘from suit and liability’ 16 for claims ‘caused by, arising out of, relating to, or resulting from the administration to or the use 17 by an individual of a covered countermeasure.’” Id. (quoting 42 U.S.C. § 247d-6d(a)(1)). 18 Immunity under the PREP Act “applies to any claim for loss that has a causal relationship with 19 the administration to or use by an individual of a covered countermeasure.” Id. 20 In Maney, the Ninth Circuit held that Oregon Governor Kate Brown was immune from 21 suit and liability under the PREP Act. 91 F.4th at 1303. In that case, the plaintiff-prisoners 22

23 1 After most of the briefing on the present motions was complete, the Ninth Circuit Court of Appeals issued its decision in Maney. The parties were given an opportunity to file supplemental briefs on what, if any, impact the 24 case has on the present motions; they did so. Dkts. 46, 49-51. Their supplemental briefing was considered. 1 asserted federal constitutional claims, pursuant to § 1983, related to the governor’s COVID-19 2 vaccine policy placing prisoners in a lower tier than prison guards to receive the vaccine. Id. 3 After finding that the statutory requirements for PREP Act immunity were met, the Maney Court 4 concluded that “Congress intended to expressly immunize covered persons from § 1983 actions 5 for claims covered by the Act, even if those claims are federal constitutional claims.” Id. at

6 1303. 7 To the extent that they are attempting to assert a § 1983 claim using the PREP Act as the 8 source of their federal rights, the Plaintiffs fail to state a claim. First, they fail to point to a 9 provision of the statute that “unambiguously confer[s] individual federal rights,” that is 10 applicable here - which is required for the presumption of enforceability under § 1983 to arise. 11 Talevski at 180. Second, excluding an exception that does not apply here, Congress evinced 12 clear intent that § 1983 was not available to enforce rights under the PREP Act, even federal 13 constitutional claims. Maney at 1303 n.3 (noting that “the PREP Act expressly forecloses § 1983 14 actions for covered claims”). Accordingly, even if the PREP Act “unambiguously” conferred

15 relevant rights on the Plaintiffs, Congress’s intention to preclude the types of § 1983 claims 16 asserted here bars the Plaintiffs’ claim 5. See Id. at 186. Amendment to add this claim is futile. 17 Federal Claim 6. In their proposed sixth claim for relief, the Plaintiffs again make an 18 Unconstitutional Conditions Doctrine claim pursuant to § 1983. Dkt. 38-2. The conclusion that 19 Jacobson controls (that there is no fundamental constitutional right to refuse a vaccination) and 20 that the Plaintiffs failed to state a constitutional claim, is fatal to their proposed unconstitutional 21 conditions doctrine claim. Rutgers at 9. Leave to add this claim is futile. 22 Federal Claim 7. In their proposed seventh claim for relief, the Plaintiffs again make a 23 spending clause doctrine claim pursuant to § 1983. Dkt. 38-2. The Plaintiffs’ motion to add a 24 1 spending clause doctrine claim should be denied. As was the case with their prior spending 2 clause doctrine claims, they fail to point to any authority that the spending clause applies to 3 governors or private employers. Further, to the extent they point to the spending clause doctrine 4 as a source of federal rights, they fail to point to a provision that “unambiguously confer[s] 5 individual federal rights,” that are relevant to the facts alleged here - which is required for the

6 presumption of enforceability under § 1983 to arise, Talevski at 180. Amendment should be 7 denied. 8 Federal Claim 12. In their proposed claim 12 (claims 8-11 are state law claims) the 9 Plaintiffs again make an “implied private right of action 21 U.S.C. § 360bbb-3” claim. 10 Amendment to add this claim is futile. Congress provided that 21 U.S.C. § 360bbb-3 11 enforcement cases are to be brought by United States only (and under limited circumstances 12 States). 21 U.S.C. § 337. The plain language of § 337 expressly forbids private parties from 13 bringing enforcement suits. PhotoMedex, Inc. v. Irwin, 601 F.3d 919, 924 (9th Cir. 2010). 14 Accordingly, there is no reason to conclude that Congress intended to create a private cause of

15 action to prosecute a § 360bbb-3 claim. Johnson at 2. The Plaintiffs’ motion to amend their 16 amended complaint to add this claim should be denied. 17 Federal Claim - Preemption/Supremacy Clause - Unnumbered. To the extent the 18 Plaintiffs move to amend their amended complaint to seek relief on a preemption/supremacy 19 clause theory based on § 360bbb-3 or the PREP Act, their motion should be denied as futile. The 20 claim based on § 360bbb-3 fails as a matter of law. Johnson at 2. Further, the Plaintiffs make no 21 showing that § 1983 is available to provide a remedy for alleged PREP Act preemption 22 violations. Maney at 1303 n.3 (noting that “the PREP Act expressly forecloses § 1983 actions 23 for covered claims”). Amendment to include these claims is futile. 24 1 4. Motion to Amend Amended Complaint to Add State Claims Asserted Against Gov. Inslee 2 The Plaintiffs’ proposed second amended complaint seeks to reallege state law claims 3 against Gov. Inslee for: outrage (claim 8), breach of contract (claim 9), “Washington State 4 Common Law Employment Torts” (claim 10), and invasion of privacy and defamation of 5 character (claim 11). 6 State Law Claim 8. The Plaintiffs’ proposed amendment to re-add a claim for outrage 7 against Gov. Inslee should be denied as futile. The properly credited allegations in the proposed 8 second amended complaint are insufficient from which to conclude that the governor’s 9 Proclamation was “beyond all possible bounds of decency” considering the circumstances at the 10 time. Kloepfel v. Bokor, 149 Wn.2d 192, 195-96 (2003). 11 State Law Claim 9. The Plaintiffs’ motion to re-add their proposed claim for breach of 12 contract asserted against Gov. Inslee should be denied. As stated in the December 21, 2023 13 Order dismissing this claim, it is undisputed that Gov. Inslee did not sign the Provider 14 Agreement; accordingly he did not agree to be bound by a duty imposed by it. Dkt. 32 at 15-16. 15 While the Plaintiffs state that they want to show that he should be bound, they fail to offer any 16 rational argument or legal authority to support this assertion. Reassertion of a breach of contract 17 claim against Gov. Inslee is futile. 18 State Law Claim 10. The Plaintiffs’ motion to re-add their “Washington State Common 19 Law Employment Torts” claim against Gov. Inslee should be denied. There is no creditable 20 allegation that Gov. Inslee was their employer. Addition of this claim is futile. 21 State Law Claim 11. The Plaintiffs propose reasserting a claim for invasion of privacy 22 and defamation of character against Gov. Inslee. They fail to allege sufficient facts to support 23 such claims against him. Their motion to add this claim should be denied. 24 1 5. Motion to Amend Amended Complaint to Add State Claims to be Asserted Against the PeaceHealth Defendants 2 To the extent the Plaintiffs move to amend their amended complaint to clarify their state 3 law claims against the PeaceHealth Defendants, the motion should be denied without prejudice. 4 As stated below in Section II.C., this Court should decline to exercise supplemental jurisdiction 5 over the state law claims asserted against PeaceHealth. 6 6. Conclusion on Motion for Leave to File a Second Amended Complaint 7 The Plaintiffs’ motion for leave to file a second amended complaint (Dkt. 38) should be 8 denied as to all federal claims and the state law claims asserted against Gov. Inslee. Amendment 9 is futile. The Plaintiffs have had several opportunities to plead these claims and have failed to do 10 so. The motion (Dkt. 38) should be denied without prejudice regarding the state law claims the 11 Plaintiffs are attempting to assert against the PeaceHealth Defendants. 12 C. EXERCISE OF SUPPLEMENTAL JURISDICTION 13 Pursuant to 28 U.S.C. § 1367 (c), district courts may decline to exercise supplemental 14 jurisdiction over state law claims if: (1) the claims raise novel or complex issues of state law, (2) 15 the state claims substantially predominate over the claim which the district court has original 16 jurisdiction, (3) the district court has dismissed all claims over which it has original jurisdiction, 17 (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction. 18 “While discretion to decline to exercise supplemental jurisdiction over state law claims is 19 triggered by the presence of one of the conditions in § 1367 (c), it is informed by the values of 20 economy, convenience, fairness, and comity.” Acri v. Varian Associates, Inc., 114 F.3d 999, 21 1001 (9th Cir. 1997)(internal citations omitted). 22 Here, two of the four conditions in § 1367(c) are present. All Plaintiffs’ claims against 23 Gov. Inslee have been dismissed (Dkt. 32) and all Plaintiffs’ federal claims against the 24 1 PeaceHealth Defendants have been dismissed (Dkt. 41). Accordingly, this Court has “dismissed 2 all claims over which it has original jurisdiction,” and so has discretion to decline to exercise 3 supplemental jurisdiction over the state law claims under § 1367(c)(3). Moreover, the remaining 4 state claims “raise novel or complex issues of state law” under § 1367(c)(1). These are issues for 5 which the state court is uniquely suited. Because state courts have a strong interest in enforcing

6 their own laws, See Carnegie-Mellon University v. Cohill,484 U.S. 343, 352 (1988), the value of 7 comity is served by this Court declining jurisdiction. Further, the values of economy, 8 convenience, and fairness may well be served by this Court’s declining to exercise supplemental 9 jurisdiction. See Acri at 1001. 10 Accordingly, the Court should decline to exercise supplemental jurisdiction over the 11 Plaintiffs’ state law claims asserted against the PeaceHealth Defendants. Those claims should be 12 dismissed without prejudice. The PeaceHealth Defendants’ Motion to Dismiss Plaintiffs’ 13 Amended Complaint (Dkt. 30) should be denied without prejudice as it relates to the Plaintiffs’ 14 state law claims. This case should be closed.

15 III. ORDER 16 It is ORDERED that: 17  The Plaintiffs’ Rule 59(E) Motion to Alter or Amend the Ruling (Dkt. 38) and Motion for 18 Reconsideration (Dkt. 47) ARE DENIED; 19  The Plaintiffs’ Motion for Leave to File a Second Amended Complaint (Dkt. 38) IS: 20 o DENIED as to all federal claims and the state law claims against Gov. Inslee, and 21 o DENIED WITHOUT PREJUDICE as to the Plaintiffs’ state law claims against 22 the PeaceHealth Defendants, 23 24 1  The Court DECLINES TO EXERCISE supplemental jurisdiction over the Plaintiffs’ 2 state law claims that are asserted against the PeaceHealth Defendants; 3 o The Plaintiffs’ state law claims that are asserted against the PeaceHealth 4 Defendants ARE DISMISSED WITHOUT PREJUDICE; 5 o The PeaceHealth Defendants’ Motion to Dismiss Plaintiffs’ Amended Complaint

6 (Dkt. 30) IS DENID WITHOUT PREJUDICE as it relates to the Plaintiffs’ 7 state law claims; and 8  This case IS CLOSED. 9 The Clerk is directed to send uncertified copies of this Order to all counsel of record and 10 to any party appearing pro se at said party’s last known address. 11 Dated this 27th day of February, 2024. 12 A

13 ROBERT J. BRYAN 14 United States District Judge

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