United States District Court, E.D. Washington
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS FOR
FAILURE TO STATE A CLAIM
ROSANNA MALOUF PETERSON UNITED STATES DISTRICT JUDGE.
THE COURT is a motion to dismiss for failure to state a
claim, pursuant to Fed.R.Civ.P. Rule 12(b)(6), ECF No. 20, by
all Defendants for dismissal of Plaintiff Jennifer Janequa
Sway's third amended complaint, ECF No. 9. The Court has
reviewed the parties' filings, including the affidavit
and exhibits that Ms. Sway attached to her response to
Defendants' motion, has researched the relevant law, and
is fully informed.
third amended complaint, ECF No. 9, raises claims under 42
U.S.C. § 1983, for alleged constitutional violations,
and Title II of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12141-12143. Ms.
Sway names as Defendants Spokane Paratransit, the Spokane
Transit Authority (“STA”), Denise Marchioro,
Allison Mitchell, Lance Durbin, Susan Millbank, and E. Susan
Meyers. ECF No. 9. The Court notes that STA provides
paratransit services as an on-demand transportation option
for certain riders, but “Spokane Paratransit”
does not exist as an independent entity. ECF No. 20 at 1. Ms.
Sway does not specify whether she is suing the individual
Defendants in their personal or official capacity.
Sway alleges that Defendants wrongfully: refused to provide
paratransit rides for her to a medical appointment and back
to her apartment in February 2016; prohibited her from using
STA's paratransit service for twenty days in June 2016
for exceeding the allowable number of “no-shows”;
cancelled Plaintiff's prior-scheduled paratransit ride to
a medical appointment in October 2016; and treated her
differently, as an African-American passenger, from another
passenger in February 2017. Plaintiff also alleges that, in
conducting STA's administrative review of her complaints
to the transit administration, STA staff did not adhere to
STA's Rule of Conduct 44 regarding suspension of
paratransit service following no-shows, and relied on
personal belief rather than facts to make decisions in her
case, thus violating her rights under the Fourteenth
Amendment to the U.S. Constitution.
Sway alleges that the decision by an STA paratransit driver
to call a “snow no-show, ” meaning that the
driver cancelled the trip upon determining that Ms. Sway
could not safely be picked up, on February 4, 2017, was
erroneous and motivated by racial bias. ECF No. 9-1 at 1-3.
In support of her allegation, Plaintiff describes a passenger
pickup that she heard being discussed over dispatch radio
while she was riding on an STA paratransit vehicle
approximately two days after her snow no-show. On that day,
Ms. Sway recalls hearing a paratransit driver inform dispatch
that he could not find a safe place to pick up his passenger,
and the dispatcher asked if the driver wanted her to call the
passenger to request that the passenger “come out and
meet the van.” ECF No. 9-1 at 3. The driver allegedly
declined her offer to call because the passenger already had
emerged and was waiting in a location where the van could
“go around and get him.” Id. Ms. Sway
alleges that she is familiar with the passenger at issue in
the radio conversation and knows that he is not
Court assumes Ms. Sway's factual allegations to be true
for purposes of this Motion. See Zimmerman v. Oregon
Dep't of Justice, 170 F.3d 1169, 1171 (9th Cir.
1999), cert. denied, 121 S.Ct. 1186 (U.S. 1999) (for
purposes of Fed.R.Civ.P. Rule 12(b)(6), courts “accept
as true the facts alleged in the complaint”).
to Dismiss for Failure to State a Claim under Federal Rule of
Civil Procedure 12(b)(6)
defendant may move to dismiss a complaint for failure to
state a claim upon which relief may be granted. Fed.R.Civ.P.
Rule 12(b)(6). To survive a Rule 12(b)(6) motion to dismiss,
the plaintiff must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is
plausible when the plaintiff pleads “factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
deciding a Rule 12(b)(6) motion to dismiss, a court
“accept[s] factual allegations in the complaint as true
and construe[s] the pleadings in the light most favorable to
the nonmoving party.” Manzarek v. St. Paul Fire
& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
2008). A court is not required, however, to “assume the
truth of legal conclusions merely because they are cast in
the form of factual allegations.” Fayer v.
Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam)
(internal quotation omitted). “[C]onclusory allegations
of law and unwarranted inferences are insufficient to defeat
a motion to dismiss.” Adams v. Johnson, 355
F.3d 1179, 1183 (9th Cir. 2004).
of Title II of the ADA
plaintiff bringing a case under Section 202 of Title II of
the ADA, which covers discrimination in the provision of
public services, must show that:
(1) she is an individual with a disability; (2) she is
otherwise qualified to participate in or receive the benefit
of a public entity's services, programs or activities;
(3) she was either excluded from participation in or denied
the benefits of the public entity's services, programs or
activities or was otherwise discriminated against by the
public entity; ...