Elshieky v. United States

• Court: District Court, E.D. Washington
• Decided: June 23, 2020
• Docket: 2:20-cv-00064
• Status: Unknown

Opinion

1 Jun 23, 2020 2 3 SEAN F. MCAVOY, CLERK 4 5

6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8

9 MOHANAD ELSHIEKY, No. 2:20-CV-00064-SAB 10 Plaintiff, 11 v. ORDER DENYING 12 UNITED STATES OF AMERICA, DEFENDANT’S MOTION TO 13 Defendant. DISMISS 14

15 16 Before the Court is Defendant’s Motion to Dismiss, ECF No. 4. A 17 telephonic hearing on the motion was held on June 16, 2020. Defendant was 18 represented by Assistant United States Attorneys John T. Drake and Derek T. 19 Taylor. Plaintiff was represented by Benjamin J. Robbins, Matthew H. Adams, 20 Jordan C. Harris, Lisa Nowlin, and Kenneth E. Payson. 21 Plaintiff Mohanad Elshieky is suing the United States Customs and Border 22 Protection (CBP), alleging CBP agents approached him and detained him at the 23 Spokane Intermodal Center without probable cause because of his North African 24 appearance. He is bringing claims under the Federal Tort Claims Act (FTCA), 28 25 U.S.C § 1346(b)(1). The underlying basis for his FTCA claims are Washington 26 state law claims of (1) False Arrest; (2) False Imprisonment; and (3) the 27 Washington Law Against Discrimination (WLAD), Wash. Rev. Code 49.60 et 28 seq. 1 2 claim under the WLAD for discrimination in the public accommodation context.1 3 First, it argues the WLAD claim must be dismissed because the United States has 4 not waived its sovereign immunity for state civil rights claims in general.2 It also 5 argues the United States has not waived sovereign immunity for the specific 6 WLAD claim at issue. 7 Second, the United States argues Plaintiff has failed to state a claim under 8 the WLAD for two reasons: (1) Plaintiff has failed to show he was denied the “full 9 enjoyment” of the place of public accommodation; and (2) the United States is not 10 the proper defendant in this case because it does not have connection to the place 11 of public accommodation. 12 // 13 // 14 //

15 1 The FTCA explicitly waives sovereign immunity for any claim based on the “acts 16 or omissions of investigative or law enforcement officers arising out of false 17 imprisonment and false arrest.” 28 U.S.C. § 2680(h). 18 2 The United States again asks the Court to extend the reasoning of Delta Sav. 19 Bank v. United States, 265 F.3d 1017 (9th Cir. 2001), to create a blanket rule that 20 state civil rights claims are barred under the FTCA. The United States made this 21 argument in a related case, Segura v. United States, 418 F.Supp.3d 605 (E.D. 22 Wash. 2019). There, the Court declined to impose a blanket rule that the United 23 States has not waived its sovereign immunity for state civil rights torts. Id. at 610. 24 Instead, it concluded it was necessary to conduct the analogous private-party 25 analysis. Id. The United States reasserts its blanket-rule argument to preserve it for 26 appeal. The Court adopts the same reasoning as in Segura to conclude that courts 27 are required to find analogous private-party conduct in assessing whether the 28 FTCA waives the United States’ sovereign immunity. 1 2 1. Fed. R. Civ. P. 12(b)(1): Lack of Subject Matter Jurisdiction 3 Pursuant to Fed. R. Civ. P. 12(b)(1), a district court must dismiss a 4 Complaint if it does not have jurisdiction over it. In a “facial” jurisdictional 5 challenge, the moving party is asserting that the allegations in the Complaint are 6 insufficient on their face to invoke federal jurisdiction. Safe Air for Everyone v. 7 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). This type of jurisdictional challenge 8 is limited to the allegations made in the Complaint. Wolfe v. Strankman, 392 F.3d 9 358, 362 (9th Cir. 2004). When evaluating a “facial” jurisdictional challenge, the 10 Court accepts the allegations asserted in the Complaint as true and must draw all 11 reasonable inferences in favor of the non-moving party. Id. 12 2. Fed. R. Civ. P. 12(b)(6): Failure to State a Claim 13 Pursuant to Fed. R. Civ. P. 12(b)(6), a district court must dismiss a 14 Complaint if the plaintiff fails to state a claim upon which relief can be granted. 15 While detailed factual allegations are not required, the Complaint must state 16 “sufficient factual matter… to state a claim to relief that is plausible on its face.” 17 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). When evaluating a 18 12(b)(6) motion, the Court must draw all reasonable inferences in favor of the 19 non-moving party. Wolfe, 392 F.3d at 362. The allegations in the Compliant, 20 which are accepted as true, must allow the Court to draw the reasonable inference 21 that the defendant is liable for the alleged misconduct. Bell Atl. Corp, 550 U.S. at 22 556. 23 To survive a 12(b)(6) motion, the allegations must allege “more than a 24 sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 25 U.S. 662, 678 (2009). Whether the Complaint states a claim for plausible relief is 26 context specific and requires the Court to draw from its experience and common 27 sense. Id. However, the Court is not required to accept as true any conclusory 28 allegations, or any unreasonable inferences made in the Complaint. In re Gilead 1 Scis. Sec. Litig., 536 F.3d 1049, 1054 (9th Cir. 2008). 2 Background Facts 3 The following facts are taken from the Complaint, ECF No. 1, and are 4 accepted as true: 5 On January 27, 2019, Plaintiff was traveling by Greyhound bus back to 6 Portland, Oregon from Pullman, Washington after performing a comedy show at 7 Washington State University. Shortly after Plaintiff boarded his transfer bus at the 8 Spokane Intermodal Center, two armed United States Customs and Border 9 Protection (CBP) agents boarded the bus. One of the CBP agents walked down the 10 bus and questioned three passengers of apparent Hispanic descent, two of whom 11 were asked to leave the bus. 12 The CBP agent then approached Plaintiff. The agent asked Plaintiff for 13 identification and Plaintiff provided his valid, unexpired Oregon driver’s license.3 14 After examining the license, the CBP officer asked Plaintiff if he was a United 15 States Citizen. Plaintiff replied he was a Libyan citizen, and not a United States 16 citizen. The CBP agent then blocked Plaintiff’s exit from the seat and requested 17 that Plaintiff produce a passport. Plaintiff replied that he did not have one with 18 him, and the CBP officers asked if Plaintiff had any other form of identification. 19 Plaintiff then provided his original employment authorization document (EAD), 20 which is issued by United States Customs and Immigration Services (USCIS). The 21 CBP agent then order Plaintiff off the bus. 22 Once outside, another CBP agent, along with the original CBP agent, 23 approached and started questioning Plaintiff. Plaintiff explained that he had been 24 granted asylum and was legally present in the United States. The CBP agents 25 asked if he had his asylum approval documents. Plaintiff responded that he did 26

27 3Oregon law requires proof of lawful presence in the United States to obtain a 28 driver’s license. See Or. Rev. Stat. § 807.021(1). 1 2 “illegals fake these [documents] all the time,” one of the agents took Plaintiff’s 3 documents and made a phone call. Plaintiff heard the CBP agent read off his 4 information and the person on the other end verify that there was some record of 5 Plaintiff. 6 This agent then re-approached Plaintiff and stated that there was no record 7 of Plaintiff’s asylum grant, but there was a record of Plaintiff entering the United 8 States with a now-expired J-1 visa. Plaintiff responded that he was granted asylum 9 in October of 2018. The CBP officers insisted there was no record of Plaintiff’s 10 asylum case. Plaintiff then stated that he wished to speak to his lawyer and wanted 11 his paperwork back. The original CBP agent yelled at Plaintiff, and the two agents 12 conferred with one another. The agents then told Plaintiff that they would “let him 13 go this time.” After twenty minutes, Plaintiff was able to re-board the then late 14 bus, which left right away. 15 1. Fed. R. Civ. P. 12(b)(1) 16 The United States argues the Court does not have subject matter jurisdiction 17 over Plaintiff’s WLAD claim because it has not waived its sovereign immunity for 18 WLAD claims. It is true the United States cannot be sued unless Congress waives 19 its sovereign immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Jurisdiction 20 over any suit against the United States requires a clear statement from Congress 21 waiving its sovereign immunity. United States v. White Mountain Apache Tribe, 22 537 U.S. 465, 472 (2003) (quoting United States v. Mitchell, 445 U.S. 535, 538-39 23 (1980)). In passing the Federal Tort Claims Act (FTCA), Congress waived its 24 sovereign immunity “in the same manner and to the same extent as a private 25 individual under like circumstances.” 28 U.S.C. § 2674. This waiver is in 26 accordance with the law of the place where the act or omission occurred. 28 U.S.C 27 § 1346(b). If the law of the state where the act or omission occurred would hold a 28 private party liable, the United States will be liable for the same. Schwarder v. 1 2 In passing the FTCA, Congress did not create a new cause of action, but 3 rather accepted liability under circumstances that would create private liability. 4 Feres v. United States, 340 U.S. 135, 141 (1950). The United States waives its 5 sovereign immunity where local law would make a “private person liable in 6 torts.” United States v. Olson, 546 U.S. 43, 45 (2005) (emphasis in original). 7 While the United States can never be exactly like a private actor, the Court must 8 find the most reasonable analogy to the government’s actions to private liability. 9 Dugard v. United States, 835 F.3d 915, 919 (9th Cir. 2016). In doing so, the 10 words “like circumstances” within 28 U.S.C. § 2674 do not limit the Court to 11 looking into the same circumstances, “but require it to look further afield,” Olson, 12 546 U.S. at 44 (citing to Indian Towing Co. v. United States, 350 U.S. 61, 64 13 (1955)). In Indian Towing, the U.S. Supreme Court held that the FTCA waived 14 the United States sovereign immunity for a claim that alleged the U.S. Coast 15 Guard negligently operated a lighthouse. 350 U.S. at 62. It found that these 16 allegations were analogous to allegations of negligence by a private person “who 17 undertakes to warn the public of danger and thereby induces reliance.” Id. at 64- 18 65. Although the federal government “could never be exactly like a private actor, 19 a court’s job in applying the standard is to find the most reasonable analogy.” 20 Dugard, 835 F.3d at 919. 21 Thus, the first step in determining whether the WLAD imposes tort liability 22 upon a private person for the wrongful conduct alleged in Plaintiff’s complaint is 23 to identify a reasonable private party analogy to the CBP’s actions. Id.; Segura v. 24 United States, 418 F.Supp.3d 605, 610 (E.D. Wash. 2019); see supra fn. 2. In 25 Segura, the Court concluded the reasonable analogous private party conduct for 26 the CBP officers in like circumstances was that of a private security officer, and 27 because Washington courts would hold a security guard’s company liable for the 28 discriminatory conduct of its security guards, the United States waived its 1 2 The United States asks the Court to reconsider its reasoning and 3 conclusions, arguing that the proper analysis is a private citizen acting in a private 4 capacity, relying on the Second Circuit’s decision in Liranzo v. United States, 690 5 F.3d 78, 82 (2nd Cir. 2012). The United States relies on Liranzo to argue that this 6 Court must analogize the CBP’s conduct to a “person who, entirely is his or her 7 private capacity, places someone under arrest for an alleged violation of the law.” 8 ECF No. 4. It asserts that using the private security guard analogy misses the mark 9 because it assumes a connection between the CBP agents and the Intermodal 10 Center, or stated another way, that there is an employment or agency relationship 11 between the CBP agents and the Intermodal Center.4 12 Here, the Court reaffirms that the private security guard is the proper 13 private party analogy for the CBP’s conduct as alleged in Plaintiff’s Complaint. 14 The Court notes that the facts as alleged do not support a finding that the CBP 15 agents’ conduct is analogous to a person effectuating a citizen’s arrest. Under 16 Washington law, a private citizen may detain a person for a misdemeanor if it (1) 17 constitutes a breach of peace and (2) is committed in the citizen’s presence. State 18 19 4 The United States made this argument in Segura as well. In that case, the United 20 States asked the Court to dismiss the WLAD claim because the CBP agents who 21 engaged in the alleged discrimination were not employees or agents of the Spokane 22 Intermodal Center and the United States did not own, operate, or exercise control 23 over the Spokane Intermodal Center. Segura, 418 F. at 613. The Court declined to 24 read the WLAD so narrowly. Id. Given that the facts alleged suggested that the 25 CBP officer did not just happen to show up at the Spokane Intermodal Center, it 26 concluded the WLAD covered situations where federal officers enter places of 27 accommodation and wield their power over individuals at places of 28 accommodations. Id. 1 2 by Plaintiff suggesting he was breaching the peace to permit the CBP officers to 3 conduct a citizen’s arrest, nor did the CBP have sufficient suspicion or probable 4 cause that Plaintiff was committing a misdemeanor. The private citizen’s arrest is 5 not the most reasonable private party analogy. 6 Moreover, just as the Court found in Segura, Washington law would hold a 7 security guard company liable for the discriminatory conduct of its security guards 8 and the United States, as employer of the CBP agents, would be liable to Plaintiff 9 under the WLAD as if it were the security guard company. Id. at 613. 10 Consequently, because the WLAD imposes tort liability upon a private person for 11 the wrongful conduct alleged in Plaintiff’s Complaint, it follows that the FTCA 12 waives the United States’ sovereign immunity for Count 3 of the Complaint. 13 2. Fed. R. Civ. P. 12(b)(6) – Failure to State a Claim 14 Wash. Rev. Code 49.60.215 prohibits discrimination in the realm of public 15 accommodations. The statute provides:

16 (1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in 17 any distinction, restriction, or discrimination, or the requiring of any 18 person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the 19 admission, patronage, custom, presence, frequenting, dwelling, 20 staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations 21 established by law and applicable to all persons, regardless of race, 22 creed, color, national origin . . . . . 23 Wash. Rev. Code 49.60.215.5 24 Protected individuals are guaranteed “[t]he right to the full enjoyment of 25 any of the accommodations, advantages, facilities, or privileges of any place of 26

27 5 Wash. Rev. Code 49.60.215 was amended on March 18, 2020, effective June 11, 28 2020, to prohibit discrimination based on citizenship or immigration status. 1 2 49.60.030(1)(b); State v. Arlene’s Flowers, Inc., 193 Wash.2d 469, 501 (2019). 3 To state a claim for relief under the WLAD for discrimination in the public 4 accommodation context, the plaintiff must show (1) the plaintiff is a member of a 5 protected class, (2) the defendant is a place of public accommodation, (3) the 6 defendant discriminated against the plaintiff, directly or indirectly, and (4) the 7 discrimination occurred “because of” the plaintiff’s status, or in other words, the 8 plaintiff’s protected status was a substantial factor causing the discrimination. 9 Arlene's Flowers, Inc., 193 Wash. 2d at 501-02. 10 a. Denial of Full Enjoyment of Public Accommodation 11 The United States argues Plaintiff has failed to state a claim upon which 12 relief can be granted because he was able to re-board the bus and therefore, he 13 cannot show that he was denied access to the public accommodation and was not 14 deprived of its full enjoyment. 15 The Court disagrees. The WLAD’s “full enjoyment” language extends 16 “beyond the denial of services to include liability for mistreatment that makes a 17 person feel ‘not welcome, accepted, desired or solicited.’” Floeting v. Grp. Health 18 Coop., 192 Wash. 2d 848, 855 (2019), quoting Heart of Atlanta Motel, Inc. v. 19 United States, 379 U.S. 241, 450 (1964) (“The ‘fundamental object’ of laws 20 banning discrimination in public accommodation is ‘to vindicate the deprivation 21 of personal dignity that surely accompanies denials of equal access to public 22 establishments.’”). The statute’s primary purpose “is to the withholding or 23 refusing of admission to places of public accommodation, and the use of their 24 facilities on equal footing with all others.” Fell v. Spokane Transit Auth., 128 25 Wash. 2d 618, 636 (1996). 26 Plaintiff has sufficiently alleged he was deprived the full enjoyment of a 27 place of public accommodation. 28 // 1 2 The United States also asserts that Plaintiff cannot establish the second 3 element of the public accommodation claim because the United States is not a 4 place of public accommodation. As it does not own, operate, or assert control over 5 the Intermodal Center, it cannot be sued for violations of the public 6 accommodation provision of the WLAD. 7 Once again, this Court declines to read the WLAD as narrowly as the 8 United States suggests. The CBP agents did not just happen to show up at the 9 Intermodal Center. In Segura, the Court found that the WLAD covered instances 10 where federal officials “wield their power over individuals at places of 11 accommodation” Segura, 418 F.Supp.3d at 613. As alleged in the Complaint, the 12 CBP agents entered the bus without a valid ticket, questioned passengers about 13 their legal status in the United States, removed persons from the bus, and delayed 14 the departure of the bus. It is reasonable to infer from these allegations that the 15 CBP agents asserted sufficient control over a place of public accommodation to 16 state a claim against the United States for violating the public accommodation 17 provision the WLAD. 18 At this stage of the proceedings, Plaintiff has stated a valid claim that can 19 proceed beyond the pleading stage and into discovery. 20 // 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // l Accordingly, IT IS HEREBY ORDERED: 2 1. Defendant’s Motion to Dismiss, ECF No. 4, is DENIED. 3 IT IS SO ORDERED. The Clerk of Court is directed to enter this Order 4 forward copies to counsel. 5 DATED this day of 23rd June 2020. 6 7 8 Suleyld Econ Stanley A. Bastian United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ORDER DENYING DEFENDANT’S MOTION TO DISMISS ~ 1]