United States District Court, W.D. Washington, Seattle
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND
DENYING LEAVE TO AMEND
L. ROBART United States District Judge
the court are the following motions: (1) Defendants Kevin W.
Quigley, Pat Lashway, Andrew Aquirre, Ann Martin, and Tracy
Wilson's (collectively, Defendants”) motion to
dismiss Plaintiff Scott Francis Iceberg's third amended
complaint (MTD (Dkt. # 36)), (2) Defendants' motion for a
protective order concerning certain discovery requests from
Mr. Iceberg (MPO (Dkt. # 43)), (3) Defendants' motion for
an extension of certain case schedule deadlines (MFE (Dkt. #
54), and (4) Mr. Iceberg's motion for leave to amend his
third amended complaint (MFL (Dkt. # 42)). The court has
considered the motions, the memoranda of the parties filed in
support of and opposition to the motions, the relevant
portions of the record, and the applicable law. Being fully
advised,  the court GRANTS Defendants' motion to
dismiss, DENIES Mr. Iceberg's motion to amend his third
amended complaint, and DISMISSES Mr. Iceberg's federal
claims with prejudice and without leave to amend. The court
further declines to exercise supplemental jurisdiction over
Mr. Iceberg's state law claims and DISMISSES those claims
without prejudice. The court further DENIES Defendants'
motions for a protective order and an extension of certain
case schedule deadlines as moot.
total, Mr. Iceberg has submitted five complaints in this
action. He initiated this action with his original complaint
(see Compl.), filed three subsequent amended
complaints (see FAC (Dkt. # 7); SAC (Dkt. # 27); TAC
(Dkt. # 34)), and proposes filing a fourth amended complaint
(see Prop. 4th Am. Compl. (Dkt. # 42-1)). As the
court discusses the history of these filings, it primarily
describes how each successive complaint changed from the
prior complaint, rather than describes each complaint
separately and in total.
Iceberg, who is proceeding pro se and in forma
pauperis (see IFP Order (Dkt. # 2)), filed his
initial complaint on August 7, 2015 (see Compl.). In
his initial complaint, // // Mr. Iceberg sued the
“State of Washington DSHS/DVR, ” as well as Ann
Martin and Tracy Wilson, who are both employees of DVR.
(Id. at 1-2; see Mot. for More Def. Stmt.
at 2 (“Mr. Iceberg alleges that DVR and several of its
employees have violated his rights . . ., naming each
Defendant in their official capacities and two defendants,
Ann Martin and Tracy Wilson, in their personal capacities as
well.”).) In his initial complaint, Mr. Iceberg alleged
that (1) he is disabled, (2) he is qualified to receive
services from Defendants, (3) he “repeatedly
requested” an accommodation from Defendants that they
allow him to communicate with them primarily through email,
and (4) Defendants refused to accommodate him. (Compl. at 2.)
He alleges that Defendants took “adverse actions”
against him by denying access to services that he is
qualified to receive. (Id. at 3.) He alleged that
Defendants' actions violated the Rehabilitation Act, and
he also asserts a claim under state law for intentional
infliction of emotional distress. (Id.) He sought
$200, 000.00 in damages. (Id. at 4.)
August 25, 2015, Mr. Iceberg filed his first amended
complaint. (See FAC.) In his first amended
complaint, Mr. Iceberg dropped the “State of Washington
DSHS/DVR” as a defendant, but added Mr. Quigley,
“in his official capacity as Secretary of the
Washington State Department of Social and Health
Services” and Mr. Aguirre, “in his official
capacity as Director of the Division of Vocation [sic]
Rehabilitation.” (Id. at 1.) He also clarified
that he was suing Ms. Martin and Ms. Wilson in both their
individual and official capacities. (Id.)
first amended complaint, Mr. Iceberg alleged that he
“is a qualified disabled individual under the
[Americans with Disabilities Act (“ADA”)] and
Rehabilitation Act.” (Id. at 2.) He alleged that he
is “qualified . . . to receive services from
Defendants, ” “repeatedly requested a reasonable
accommodation, ” and was “ignored” by
Defendants. (Id. at 3.) He alleged that Defendants
took adverse actions against him by telling him that he
“is too insane and delusional to attend school, ”
telling him that “he isn't qualified for services
because he causes too much trouble, ” calling him
“adversarial, ” “[e]nding meetings
abruptly, ” telling him that “he could easily be
locked up, ” telling him that “he isn't
really disabled, ” and ultimately closing his case and
denying him services. (Id.)
Iceberg also asserted claims for “failure to
accommodate, ” “retaliation, ” and
“disparate impact” under both the Rehabilitation
Act and Title II of the ADA and for “disability”
and religious discrimination under 18 U.S.C. § 1983.
(Id. at 3-6.) He further asserted a claim under the
Religious Freedom Restoration Act, alleging that
Defendants' requirement that he submit to a
“Psychology/Psychiatric evaluation” was
incompatible with his sincerely held religious beliefs as a
Christian Scientist. (Id. at 5.) In this regard, Mr.
Iceberg alleged that Ms. Wilson laughed at him and told him
“Christian Science is not a real religion.”
(Id. at 6.) Finally, he increased his damages demand
to $300, 000.00. (Id. at 7.)
December 8, 2015, Defendants filed a motion for a more
definite statement. (See Mot. for More Def. Stmt.)
On December 24, 2015, Mr. Iceberg filed a motion to amend his
first amended complaint “to respond to the alleged
deficiencies described in Defendants' [m]otion . . ., as
well as to make other needed amendments.” (MTA FAC
(Dkt. # 21) at 1.) Defendants did not respond to Mr.
Iceberg's motion. (See generally Dkt.) On March
31, 2016, the court granted Mr. Iceberg's motion and
denied Defendants' motion as moot. (3/31/16 Order (Dkt. #
26) at 4.) The court, however, stated that its ruling was
“without prejudice to Defendants' re-filing a Rule
12 motion for a more definite statement or to dismiss if
warranted with respect to Mr. Iceberg's second amended
complaint.” (Id. at 4-5.)
Iceberg filed his second amended complaint on April 6, 2016.
(SAC (Dkt. # 27.) Mr. Iceberg added some factual detail by
including some dates in his second amended complaint.
(See Id. at 3.) He alleged that from approximately
October 2014, to July 2015, he received services from
Defendants and made numerous requests that Defendants grant
him the accommodation of communicating with them
“primarily via email.” (Id.) He also
specified that he made his accommodation requests to Ms.
Wilson and Ms. Martin, and they ignored his requests and
“refused to engage in an interactive process . . . in
order to find an accommodation that would allow [him] to
fully enjoy the services offered by DVR.”
(Id.) He specified that Ms. Wilson made the
particular adverse statements that he alleged in his first
amended complaint and that Ms. Wilson had closed his file.
(Id. at 4, 6-7.) He made no specific allegations
against Mr. Aguirre and Mr. Quigley, however, except to
identify them as officials with DVR and to allege that their
actions were “indifferent.” (Id. at 2,
7.) Much of the content that Mr. Iceberg added to his second
amended complaint consisted of legal conclusions. (See
April 20, 2016, Defendants filed their second motion for a
more definite statement. (2d Mot. for More Def. Stmt. (Dkt. #
28).) Mr. Iceberg did not respond. (See generally
Dkt.) On June 16, 2016, the court granted Defendants'
motion. (6/16/16 Order (Dkt. # 29).) The court initially
ordered Mr. Iceberg to file a third amended complaint no
later than July 1, 2016 (id. at 8), but then granted
him an extension until August 14, 2016 (7/19/16 Order (Dkt. #
33) at 4-5).
Iceberg filed his third amended complaint on August 8, 2016,
and it is now the operative complaint in this proceeding.
(See TAC.) In his third amended complaint, Mr.
Iceberg added Ms. Lashway as a defendant “in her
official capacity as [the] current Secretary of
[DSHS].” (Id. at 2.) Although Mr. Iceberg
alleged in his first and second amended complaints that he
was “a qualified individual under the meaning of the
ADA and Rehabilitation Act” or “within the
meaning of the ADA, and [the Washington Law Against
Discrimination (“WLAD”)].” (FAC at3; SAC at
3.) Mr. Iceberg now alleges simply that he is
“disabled” and “a current recipient of
Social Security Disability Insurance.” (TAC at 3.) He
omits any specific description of his alleged disability.
(Id.) Mr. Iceberg also alleges that he is
“qualified to seek services from DVR” and
continues to seek such services, but Defendants refuse to
respond to him. (Id.)
third amended complaint, Mr. Iceberg also expands the
relevant time period from October 2014, through July 2015, to
October 2014, through August 2016. (Id.) He further
alleges that he made his request for an accommodation to both
Ms. Wilson and Ms. Martin but never received a response.
(Id.) He also alleges that Defendants have
“refused to provide services from [DVR]” since
July 2015. (Id.) Mr. Iceberg also asserts new claims
under WLAD for failure to accommodate and for retaliation.
(Id. at 6.) Much of the remainder of Mr.
Iceberg's third amended complaint, like his previous
complaint, consists of legal conclusions. (See generally
id.) Finally, Mr. Iceberg increases his damages demand
from $300, 000.00 to $1, 000, 000.00. (Id. at 7;
see also SAC at 8; FAC at 7.)
August 22, 2106, Defendants filed a motion to dismiss Mr.
Iceberg's third amended complaint, which was properly
noted their motion for September 16, 2016. (See
generally MTD); Local Rules W.D. Wash. LCR 7(d)(3)
(indicating that a party should note a motion to dismiss on
the fourth Friday after filing). Mr. Iceberg's response
to Defendants' motion was due on September 12, 2016.
See Id. (indicating that any opposition papers to a
motion to dismiss “shall be filed an served not later
than the Monday before the noting date). Mr. Iceberg did not
timely respond to Defendants' motion to dismiss. (See
generally Dkt.) Instead, Mr. Iceberg requested an
extension of time to file his response (MFE (Dkt. # 37)), and
the court granted his request (11/1/16 Order (Dkt. # 48)).
Mr. Iceberg filed his response to Defendants' motion to
dismiss on November 9, 2016. (MTD Resp. (Dkt. # 50).)
September 20, 2016, Mr. Iceberg filed a motion for leave to
file a fourth amended complaint “to respond to the
alleged deficiencies described in Defendants' [m]otion,
as well as to make other needed
amendments.” (See generally MFL at 1.) On
October 3, 2016, Defendants timely filed a response to Mr.
Iceberg's motion for leave to amend his third amended
complaint. (MFL Resp. (Dkt. # 47).)
Iceberg's proposed fourth amended complaint adds more
legal conclusions, but few new factual allegations. (See
generally Prop. 4th Am. Compl.) In his proposed fourth
amended complaint, Mr. Iceberg eliminates Mr. Aguirre as a
defendant and amends his allegations to sue the remaining
Defendants in their individual capacities, as well their
official capacities. (See Id. at 3.) Except for
these modifications and the addition myriad legal
conclusions, the factual allegations contained in Mr.
Iceberg's proposed fourth amended complaint remain
largely unchanged. (See generally id.)
Mr. Iceberg's motion to amend his third amended
complaint, Defendants also filed a motion for a protective
order with respect to certain discovery requests issued by
Mr. Iceberg (see generally MPO) and a motion to
extend certain case schedule deadlines (see
generally MFE). The court now considers the parties'
Standards for a Motion to Dismiss
considering a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), the court construes the complaint in the
light most favorable to the nonmoving party. Livid
Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d
940, 946 (9th Cir. 2005). The court must accept all
well-pleaded facts as true and draw all reasonable inferences
in favor of the plaintiff. Wyler Summit P'ship v.
Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.
1998). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)); see Telesaurus VPC, LLC v.
Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. “Where
a complaint pleads fact that are ‘merely consistent
with' a defendant's liability, it ‘stops short
of the line between possibility and plausibility of
‘entitlement to relief.'” Id.
(quoting Twombly, 550 U.S. at 557). Dismissal under
Rule 12(b)(6) can be based on the lack of a cognizable legal
theory or the absence of sufficient facts alleged under a
cognizable legal theory. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
noted above, Mr. Iceberg's complaints are rife with legal
conclusions. The court need not accept as true a legal
conclusion presented as a factual allegation. Iqbal,
556 U.S. at 678. Although the pleading standard of Federal
Rule of Civil Procedure 8 does not require “detailed
factual allegations, ” it demands more than “an
accusation.” Id. (citing Twombly, 550
U.S. at 555). A pleading that offers only “labels and
conclusions or a formulaic recitation of the elements of a
cause of action” will not survive a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6). Id.
A complaint does not survive dismissal where “it
tenders ‘naked assertion[s]' devoid of
‘further factual enhancement.'” Id.
(quoting Twombly, 550 U.S. at 557). In addition,
“[a] plaintiff suing multiple defendants ‘must
allege the basis of his claim against each defendant to
satisfy Federal Rule of Civil Procedure 8(a)(2), which