Philip Wolfe v. City of Portland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2023
• Docket: 22-35530
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PHILIP WOLFE, KATALINA DURDEN, No. 22-35530 and JACKSON TUDELA, D.C. No. 3:20-cv-01882-SI Plaintiffs-Appellants,

v. MEMORANDUM*

CITY OF PORTLAND, an Oregon municipal corporation; and COUNTY OF MULTNOMAH, a political subdivision of the State of Oregon, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted August 23, 2023 Portland, Oregon

Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.

Appellants are individuals with disabilities and an associate: Philip Wolfe is

deaf, Katalina Durden is blind, and Jackson Tudela is Durden’s sighted guide. They

allege they were injured when police broke up unlawful assemblies or riots in

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Portland in 2020 by deploying crowd-control measures before Appellants could

leave the vicinity. Appellants filed suit against the City of Portland and the County

of Multnomah, asking the district court (1) to declare that Portland’s crowd-control

policies violate Section 504 of the Rehabilitation Act and Title II of the Americans

with Disabilities Act (ADA); (2) to issue preliminary and permanent injunctions

mandating modifications to those policies; and (3) to award them compensatory

damages.

The district court dismissed their claims for declaratory and injunctive relief

as moot, dismissed their claims for damages as insufficiently alleged under Rule

12(b)(6) of the Federal Rules of Civil Procedure, and dismissed their suit with

prejudice. Appellants appeal dismissal. We review both dismissals for mootness

and dismissals under Rule 12(b)(6) de novo. Dep’t of Fish & Game v. Fed.

Subsistence Bd., 62 F.4th 1177, 1179 (9th Cir. 2023); Disability Rts. Mont., Inc. v.

Batista, 930 F.3d 1090, 1096 (9th Cir. 2019).

“Dismissal on mootness grounds is ‘justified only if it [is] absolutely clear

that the litigant no longer ha[s] any need of the judicial protection that it sought.’”

Pizzuto v. Tewalt, 997 F.3d 893, 903 (9th Cir. 2021) (alterations in original) (quoting

Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 933 (9th Cir.

2008)). Appellees have identified significant intervening changes in state law and

Portland police crowd-control procedures that collectively provide accommodations

2 that match and exceed the ones Appellants sought with respect to communication of

orders to disperse and allowance of enough time for disabled protesters to evacuate

the vicinity of the riots or unlawful assemblies. See Or. Rev. Stat. §§ 131.675,

162.247(3), 181A.708; Portland Police Bureau Internal Directive 635.10 §§ 5.7–.8,

8.4.2.2. And they chronicled the precipitous decrease in violent protests in Portland,

as well as the cessation of police interventions akin to those alleged in Appellants’

complaint in any protest, since Appellants filed their complaint. Appellants no

longer have any need of judicial protection, as they already have obtained the relief

they sought.

To defeat Appellees’ motions to dismiss their damages claims, Appellants

needed to plead facts that would allow a court to reasonably infer that each Appellee

engaged in the injurious conduct they challenge. Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009); accord Weston Fam. P’ship LLLP v. Twitter, Inc., 29 F.4th 611, 617

(9th Cir. 2022). For damages under Section 504 of the Rehabilitation Act or Title II

of the ADA, Appellants had to allege nonspeculative facts that each Appellee was

on notice of Appellants’ need for reasonable accommodations to equally participate

in protests, but was deliberately indifferent to that need. Bax v. Drs. Med. Ctr. of

Modesto, Inc., 52 F.4th 858, 865–68 (9th Cir. 2022) (Section 504); Csutoras v.

Paradise High Sch., 12 F.4th 960, 969 (9th Cir. 2021) (Title II).

3 Appellants reference pages in their complaint where they claim they did so

with respect to each Appellee. But those pages do not plead any facts specific to the

county: they merely make undifferentiated allegations that lump together the city

and county Appellees, which does not satisfy the requirement that a complaint

contain “clear and concise averments stating which defendants are liable to plaintiffs

for which wrongs.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Nor

did Appellants offer sufficient facts with respect to the City of Portland. The pages

of their complaint that they purport contain specific and detailed allegations that the

city should have known that its crowd-control policies and procedures were not

effective at communicating with Appellants, contain only generic allegations and

bald legal conclusions. And the pages Appellants point to as evidence that they

made specific and detailed factual allegations about their unsuccessful attempts to

obtain specific types of relief from the city do not mention making such attempts.

Accordingly, the district court correctly concluded that Appellants’ claims for

declaratory and injunctive relief were mooted by intervening events and that their

claims for Rehabilitation Act and ADA compensatory damages insufficiently

pleaded deliberate indifference. The district court properly granted Appellees’

motions to dismiss.

AFFIRMED.