United States District Court, W.D. Washington, Seattle
RICHARD A. JONES, District Judge.
This matter comes before the court on Defendant Keith Vogel's motion asking the court to dismiss Plaintiff's Washington-law claim against him via Washington's anti-SLAPP statute, RCW 4.24.525. For the reasons stated herein, the court DENIES the motion. Dkt. # 9.
Plaintiff Mohammed Siddiqui was a veterinary specialist at the Washington National Primate Research Center ("NPRC"). He contends that the University of Washington operates the NPRC. On October 29, 2012, Mr. Siddiqui administered ketamine, an anesthetic, to an infant primate in preparation for a surgery. Dr. Vogel, a veterinarian, performed the surgery. Although the surgery was successful, the primate was unusually slow to awaken afterward.
The evidence is somewhat conflicted as to what Dr. Vogel did next. Dr. Vogel declares that he examined the surgical record for any notation that might explain the primate's slow recovery. He saw that the recorded dose of ketamine, 80 milligrams, was ten times the proper dose. He called Mr. Siddiqui to inquire what dose he had given, and Mr. Siddiqui responded that he had given 8 milligrams, a correct dose. According to Dr. Vogel, Mr. Siddiqui stated that he would check the "drug log sheet" to confirm, and confirmed shortly thereafter that he had given 10 milligrams, which was apparently close enough to the correct dose. Dr. Vogel contends that he examined the drug log himself, and found that a notation for 0.8 milliliters (the equivalent of 80 milligrams because of the concentration of the ketamine solution) had been crossed out, and 0.1 milliliters (the equivalent of 10 milligrams) had been written in. He also discovered that the ketamine bottle was empty, whereas it should have had between 2 and 3 milliliters remaining in it if Mr. Siddiqui's notations were correct. Dr. Vogel contends that he reported this discrepancy to Dr. Charlotte Hotchkiss, the person holding the Drug Enforcement Administration license for the NPRC. He contends that he was required to do so by law.
Dr. Hotchkiss describes the events slightly differently. According to her, when Dr. Vogel first contacted her, he was merely reporting that the surgery record showed an overdose of ketamine. It was Dr. Hotchkiss who suggested that he examine the drug log. Dr. Vogel called her later and reported that he had examined the drug log and found the modification of the original 0.8-milliliters entry. Dr. Hotchkiss examined the log herself, along with the empty ketamine bottle. Three days later, on November 1, 2012, she filed a report to the DEA declaring that the NPRC had lost 2.9 milliliters of ketamine.
Mr. Siddiqui does not mention Dr. Hotchkiss or the DEA report in his complaint. That is because, as nearly as the court can tell, Mr. Siddiqui is not complaining about Dr. Hotchkiss or her report to the DEA. Instead, he is complaining that on November 1, 2012, Director Anderson told him that he would be fired because of a "safety and integrity" issue. He offered to permit Mr. Siddiqui to resign rather than be fired, and Mr. Siddiqui resigned. Later, Mr. Siddiqui regretted that choice. He contends that Director Anderson coerced his resignation.
Mr. Siddiqui sued the University, Director Anderson, and Dr. Vogel. His complaint lists several claims arising under 42 U.S.C. § 1983. He contends that his Due Process rights were violated by his coerced resignation, that the coerced resignation was in retaliation for his exercise of First Amendment rights, and that Defendants violated the Equal Protection Clause of the Fourteenth Amendment. He also invoked the Washington Law Against Discrimination, (RCW Ch. 49.60, "WLAD"), contending that his coerced resignation was either motivated by his age or race, or that it was in retaliation for exercising protected rights.
It is not clear from reading his complaint why Mr. Siddiqui is suing Dr. Vogel. There are no allegations that Dr. Vogel supervised him or had the power to terminate his employment or take other adverse action against him. There is an allegation that the "staff veterinarian responsible for the [primate]'s safety reported to defendant Anderson a complaint against Siddiqui's conduct in the operating theater that day, " Compl. (Dkt. # 1) ¶ 8, although it is not clear whether Dr. Vogel is the "staff veterinarian" to whom that allegation refers.
In response to the motion before the court, Mr. Siddiqui has explained that he based his claim against Dr. Vogel on a letter that he obtained via a public records request. In that letter, which Dr. Vogel addressed to the NPRC's personnel manager, he described the October 29 surgery, the apparent overdose of ketamine reflected in the surgery record, his conversation with Dr. Hotchkiss, and his examination of the drug log and the empty ketamine bottle. The date of the letter is redacted. Unlike in his declaration, Dr. Vogel states in the letter that he did not examine the drug log until after Dr. Hotchkiss told him to. Mr. Siddiqui claims that he was unaware that Dr. Hotchkiss had made the DEA report until after he filed this lawsuit.
Dr. Vogel's motion invokes Washington's anti-SLAPP statute. That statute, which Dr. Vogel concedes can only apply to Mr. Siddiqui's Washington-law claims, permits a party to "bring a special motion to strike any claim that is based on an action involving public participation and petition...." RCW 4.24.525(4)(a). The moving party has the "initial burden of showing by a preponderance of the evidence that the claim is based on an action involving public participation and petition." RCW 4.24.525(4)(b). Dr. Vogel asserts that his report of the ketamine discrepancy to Dr. Hotchkiss is an action involving public participation and petition. The court accepts that assertion for purposes of this motion, without suggesting a position as to whether his report to Dr. Hotchkiss falls within the statutory definition of an "action involving public participation and petition." See RCW 4.24.525(2)(a)-(e).
Dr. Vogel falls well short of carrying his initial burden to show that Mr. Siddiqui's claim against him is based on his action involving public participation and petition. There is no evidence that Mr. Siddiqui knew until after he sued that Dr. Hotchkiss had used information she first learned from Dr. Vogel make a report to the DEA. There is no indication in either Mr. Siddiqui's complaint or in the evidence before the court that he is bringing any claim based on the DEA report. Although his complaint is relatively murky as to his basis for suing Dr. Vogel, his declaration accompanying his opposition to Dr. Vogel's motion states that Dr. Vogel discriminated against him on the basis of his age and race. Those allegations have ...