United States District Court, W.D. Washington, Seattle
S. ZILLY, UNITED STATES DISTRICT JUDGE
MATTER comes before the Court on the Bellevue
Defendants’ Rule 12(b)(6) Motion to Dismiss, docket no.
8, brought by Defendants City of Bellevue, Ellen M. Inman,
and Rachel M. Neff and the State Defendants’ Rule
12(b)(6) and (12)(b)(1) Motion to Dismiss, docket no. 9,
brought by the State of Washington Department of Health and
Timothy J. Fenimore. Having reviewed all papers filed in
support of and in opposition to the motions, the Court enters
the following order.
Christopher Ryan Saade (“Saade”) alleges that an
agent of the State of Washington Department of Health
(“DOH”) and officers of the City of Bellevue
violated his civil rights in conjunction with ongoing
parallel agency and criminal investigations. As a result,
Saade has sued the Defendants alleging various federal and
state law claims.
2016, Saade was employed by Bellevue Medical Imaging as a
radiologic technician. Complaint, docket no. 1
(“Compl.”) ¶ 19. In March 2016, Bellevue
Medical Imaging filed a complaint with DOH after one of
Saade’s former patients called to report concerns
regarding an incident in which Saade took x-ray images of her
back. Id. ¶ 20. DOH assigned Timothy J.
Fenimore (“Fenimore”) to investigate the
complaint against Saade. Id. ¶ 21. Fenimore
emailed Saade to inform him that a complaint for
unprofessional conduct and sexual misconduct had been filed
against him. Id. Shortly afterwards, the patient
also filed a complaint with the Bellevue Police Department,
and the case was assigned to Detective Ellen M. Inman
(“Inman”). Id. ¶ 23.
and Fenimore subsequently agreed to “work together on
the investigation.” Id. ¶¶ 25-26.
Without notifying Saade of the City of Bellevue’s
parallel criminal investigation, Fenimore set up an interview
with Saade, stating that he “would be subpoenaed if he
would not agree to appear voluntarily.” Id.
¶ 28. When Saade appeared for his interview at the DOH
office in April 2016, Fenimore, as well as both Inman and
Officer Rachel M. Neff (“Neff”), were present.
Id. ¶¶ 35-36.
and Neff conducted the interview, giving the following
preliminary instructions: “I know they have bathrooms
and other vending machines if you need a drink or anything
like that. All right. So the reason that you’re-I know
you’ve been notified by the Department of Health that
there was a complaint filed.” Id. ¶¶
36-37. Inman and Neff did not inform Saade that there was an
ongoing parallel criminal investigation. Id. ¶
32. The interview lasted two hours and twenty minutes.
Id. ¶ 38. Neff later testified that Saade was
subject to a “criminal interrogation” during the
interview. Id. ¶ 36. At the conclusion of the
interview, Saade was informed of the City of Bellevue’s
ongoing parallel criminal investigation for the first time.
Id. ¶ 38. Fenimore also sent Saade a
“Letter of Cooperation, ” stating that Saade was
only obligated to provide written responses to materials as
part of the DOH investigation rather than appear for an
in-person interview. Id. ¶ 30. All Defendants
now move to dismiss Saade’s complaint.
a complaint challenged by a Rule 12(b)(6) motion to dismiss
need not provide detailed factual allegations, it must offer
“more than labels and conclusions” and contain
more than a “formulaic recitation of the elements of a
cause of action.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). The complaint must indicate more
than mere speculation of a right to relief. Id. When
a complaint fails to adequately state a claim, such
deficiency should be “exposed at the point of minimum
expenditure of time and money by the parties and the
court.” Id. at 558. A complaint may be lacking
for one of two reasons: (i) absence of a cognizable legal
theory, or (ii) insufficient facts under a cognizable legal
claim. Robertson v. Dean Witter Reynolds, Inc., 749
F.2d 530, 534 (9th Cir. 1984). In ruling on a motion to
dismiss, the Court must assume the truth of the
plaintiff’s allegations and draw all reasonable
inferences in the plaintiff’s favor. Usher v. City
of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). The
question for the Court is whether the facts in the complaint
sufficiently state a “plausible” ground for
relief. Twombly, 550 U.S. at 570. If the Court
dismisses the complaint or portions thereof, it must consider
whether to grant leave to amend. Lopez v. Smith, 203
F.3d 1122, 1130 (9th Cir. 2000).
Rule 12(b)(1) motion, defendants present a facial, rather
than a factual, jurisdictional challenge. A facial attack
asserts that the allegations of the complaint are
insufficient on their face to invoke federal jurisdiction,
while a factual challenge disputes the truth of the
allegations in the complaint that would otherwise support
subject-matter jurisdiction. See Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1038 (9th Cir. 2004). With respect
to a facial challenge under Rule 12(b)(1), a plaintiff is
entitled to the same safeguards that apply to a Rule 12(b)(6)
motion to dismiss for failure to state a claim. See
Friends of Roeding Park v. City of Fresno, 848 F.Supp.2d
1152, 1159 (E.D. Cal. 2012). The allegations of the complaint
are presumed to be true, and the Court may not consider
matters outside the pleading without converting the motion
into one for summary judgment. See White v. Lee, 227
F.3d 1214, 1242 (9th Cir. 2000).
Count I: Defendants’ motions to dismiss
Plaintiff’s Fourth Amendment claim are DENIED in part,
GRANTED in part, and DEFERRED in part.
State Defendants 
Fourth Amendment claim pursuant to Section 1983 against DOH
and Fenimore in his official capacity is DISMISSED with
prejudice. Neither state agencies nor state officials acting
in their official capacities are persons within the meaning of
Section 1983. Will v. Mich. Dep't of State
Police, 491 U.S. 58, 71 (1989).
Court DEFERS ruling on Saade’s Fourth Amendment claim
against Defendant Fenimore in his individual capacity.
the Bellevue Defendants violated Saade’s Fourth
Amendment right involves genuine issues of material fact.
Fourth Amendment protects “the right of the people to
be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” U.S.
Const. Amend. IV. A person is “seized” within the
meaning of the Fourth Amendment when a police officer,
“by means of physical force or show of authority,
terminates or restrains his freedom of movement, through
means intentionally applied.” Brendlin v.
California, 551 U.S. 249, 254 (2007). A
“seizure” occurs when a reasonable person would
not feel free to leave. United States v. Al Nasser,
555 F.3d 722, 728 (9th Cir. 2009). “Examples of
circumstances that might indicate a seizure, even where the
person did not attempt to leave, would be the threatening
presence of several officers . . . or the use of language or
tone of voice indicating compliance with the officer's
request might be compelled.” United States v.
Mendenhall, 446 U.S. 544, 554 (1980).
are entitled to invite witnesses, including suspects, to
interviews for questioning. The question is thus whether,
“taking into account all of the circumstances
surrounding the encounter, the police conduct would have
communicated to a reasonable person that he was not at
liberty to ignore the police presence and go about his
business.” U.S. v. Washington, 387 F.3d 1060,
1068 (9th Cir. 2004) (quoting Florida v. Bostick,
501 U.S. 429, 437 (1991)).
two law enforcement officers and a DOH agent interviewed
Saade in a conference room for two hours and twenty minutes.
Compl. ¶¶ 35-38. Prior to his arrival at the DOH
office, Saade did not know that the law enforcement officers
would also be at the interview. Id. ¶ 38.
Defendant Neff later described this interview as a
“criminal interrogation.” Id. ¶ 36.
Defendant Inman informed Saade that if he needed to use the
restroom or if he needed a snack, he could use the restrooms
and vending machines in the building’s hallway.
Id. ¶ 37.
the truth of Saade’s allegations and drawing all
reasonable inferences in his favor, the Court cannot decide
as a matter of law that a reasonable person in Saade’s
circumstances would have felt free to leave the interview
with Defendants and “go about his business.”
Whether a reasonable person would have felt free to leave is
thus a question subject to factual dispute precluding
dismissal on the pleadings.
Count II: Defendants’ motions to dismiss
Plaintiff’s Fifth Amendment claim are GRANTED.
(a) Saade’s Fifth Amendment claim against DOH and
Fenimore in his official capacity is DISMISSED with
prejudice. Neither state agencies nor state officials acting
in their official capacities are persons within the meaning
of Section 1983. Will, 491 U.S. at 71.
(b) Saade’s Fifth Amendment claim against Defendant
Fenimore in his individual capacity is DISMISSED without
prejudice. The Fifth Amendment provides that: “No
person . . . shall be compelled in any criminal case to be a
witness against himself.” U.S. Const. Amend. V. As
Saade concedes (docket no. 15 at 14-15), there are no