Kiss v. Best Buy Stores

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TIBERIU S. KISS, Case No. 3:22-cv-00281-SB

Plaintiff, OPINION AND ORDER

v.

BEST BUY STORES; and JOHN DOE,

Defendants.

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Tiberiu S. Kiss (“Kiss”) filed this action against Best Buy Stores, L.P. (“Best

Buy”) and Best Buy employee John Doe (“Doe”) (together, “Defendants”), alleging

constitutional and state law claims arising from Defendants’ enforcement of the State of

Oregon’s COVID-19 mask mandate.

Now before the Court is Defendants’ motion to dismiss Kiss’s first amended complaint

(“FAC”) under FED. R. CIV. P. 12(b)(6) and for attorney’s fees under 42 U.S.C. § 1988(b) and 42

U.S.C. § 12205. (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF No. 10.) The Court has

jurisdiction over this matter under 28 U.S.C §§ 1331 and 1367, and all parties have consented to

the jurisdiction of a magistrate judge pursuant to 28 U.S.C. § 636. For the reasons discussed

below, the Court grants Defendants’ motion to dismiss and denies Defendants’ motion for

attorney’s fees.

BACKGROUND1

On November 13, 2021, Kiss entered a Best Buy store located in Beaverton, Oregon.

(FAC ¶ 8.) The store had posted signs stating that everyone who enters must wear a face

covering. (Id. ¶ 7.) The store’s mask requirement was in place to comply with Oregon’s indoor

mask mandate, implemented in response to the COVID-19 pandemic.2 (Id. ¶¶ 36-38, 40.)

Immediately upon entry to the store, store employees confronted Kiss—who was not wearing a

mask—and informed Kiss that to shop inside the store, he must wear a face covering. (Id. ¶ 8.)

Kiss informed the employees that a medical condition prevented him from wearing a face mask.

(Id. ¶ 9.) Kiss was referring to his deviated septum. (Id. ¶ 15.)

Kiss attempted to enter the store but Doe, the store’s assistant manager, “walked in front

of [Kiss] and bumped him to block his way from shopping.” (Id. ¶ 10.) Doe went to call the

police, instructed other store employees to watch Kiss, and told store cashiers not to allow Kiss

to purchase anything. (Id. ¶ 12.) Doe repeatedly told Kiss that he must leave the store because

1 Kiss pleads these facts in his first amended complaint and the Court assumes they are

true for the purpose of deciding this motion. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d

992, 998 (9th Cir. 2010) (noting that when reviewing a motion to dismiss for failure to state a

claim, a court must “accept as true all well-pleaded allegations of material fact, and construe

them in the light most favorable to the non-moving party”).

2 At the time, OR. ADMIN. R. 33-019-1025(5) provided that “[i]ndividuals, regardless of

vaccination status, are required to wear a mask, face covering or face shield . . . when in an

indoor space.” The rule also provided that “[a] person responsible for an indoor space must: (a)

[e]nsure that employees, contractors, and volunteers comply with this rule within the indoor

space[;] (b) [m]ake reasonable efforts to ensure customers, guests, visitors and other individuals

comply with this rule within the indoor space[; and] (c) [p]ost signs at every entrance to the

indoor space that masks, face coverings or face shields are required as described in this rule.”

OR. ADMIN. R. 33-019-1025(7).

Kiss was not wearing a face covering. (Id. ¶ 13.) Kiss again explained he could not wear a mask

“due to his medical condition” and explained that “Best Buy could not discriminate against him

because of his disability.” (Id. ¶ 14.) Kiss alleges that Best Buy “treated [him] like a criminal.”

(Id. ¶ 16.)

LEGAL STANDARDS

“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)). “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.” Id. “The plausibility

standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility

that a defendant has acted unlawfully.” Mashiri v. Epsten Grinnell & Howell, 845 F.3d 984, 988

(9th Cir. 2017) (quoting Iqbal, 556 U.S. at 678).

DISCUSSION

Kiss alleges that Defendants violated (1) his constitutional rights under the Fourteenth

Amendment; (2) the Emergency Use Authorization Act; (3) the Americans with Disabilities Act

(“ADA”); and (4) the state equivalent, OR. REV. STAT. § 659A.142(4). (FAC ¶¶ 49-80.) Kiss also

alleges state law assault and battery claims against Doe. (FAC ¶¶ 81-86.) Kiss seeks damages, an

injunction preventing Defendants from enforcing any future mask mandate, and attorney’s fees.

I. FOURTEENTH AMENDMENT CLAIM

Kiss brings his Fourteenth Amendment claim under 42 U.S.C. § 1983 and alleges that

Defendants violated his constitutional right to due process by illegally coercing him to wear an

“experimental medical device” (i.e., a face covering) to shop at Best Buy during the COVID-19

pandemic. (FAC ¶¶ 49-56.) Defendants move to dismiss Kiss’s Fourteenth Amendment claim for

several reasons, including that Defendants are not state actors and Kiss does not allege a

violation of a fundamental right. (Defs.’ Mot. at 4-16.) Accepting Kiss’s factual allegations as

true and drawing all reasonable inferences in his favor, the Court concludes that Kiss has failed

to state a Fourteenth Amendment claim.

A. State Action

Kiss alleges that upon entry to Best Buy, he was “informed that, per the Governor’s

mandate, [Kiss] had to wear a mask to shop at Best Buy.” (FAC ¶ 8.) Kiss alleges that “Oregon

instituted the [mask mandate] and then made Best Buy its enforcer of the rule in Best Buy

Stores.” (Id. ¶ 39.) Kiss claims that “Best Buy do[es] not pressure customers to wear face masks

in states that do not have a mask mandate” and “the sole reason that . . . Best Buy pressured

[Kiss] to wear a facemask [was] because of” Oregon’s mask mandate, and therefore “Best Buy’s

violation of [Kiss’s] rights [was] a result of government policy” and “fairly attributable to the

government.” (Id. ¶ 41.) Kiss also claims that because Defendants “pressured[,]” “harass[ed,]”

“threatened[,]” and “attempt[ed] to get [Kiss] arrested and/or charged with trespassing for not

putting on a face mask,” they are necessarily “state actors acting under color of state law.” (Id. ¶¶

47-48.)

1. Applicable Law

The Due Process Clause of the Fourteenth Amendment provides that no “State [may]

deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend.

XIV, § 1. “[T]he Fourteenth Amendment . . . applies to acts of the states, not to acts of private

persons or entities.” Rendell-Baker v. Kohn, 457 U.S. 830, 837 (1982).

“[Section] 1983, which was enacted pursuant to the authority of Congress to enforce the

Fourteenth Amendment, prohibits interference with federal rights under color of state law.” Id.

“The ultimate issue in determining whether a person is subject to suit under § 1983 is the same

question posed in cases arising under the Fourteenth Amendment: is the alleged infringement of

federal rights ‘fairly attributable to the State?’” Id. (citing Lugar v. Edmondson Oil Co., 457 U.S.

922, 937 (1982)). “If the action of the [defendant] is not state action, our inquiry ends.” Id.

“When addressing whether a private party acted under color of law, [courts] start with the

presumption that private conduct does not constitute governmental action.” Sutton v. Providence

St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 1999) (citations omitted). “In order for private

conduct to constitute governmental action, ‘something more’ must be present.” Id. (quoting

Lugar, 457 U.S. at 939); see also Lugar, 457 U.S. at 939 (“Action by a private party pursuant to

this statute, without something more, was not sufficient to justify a characterization of that party

as a ‘state actor.’”).

The Ninth Circuit has “recognized at least four different general tests that may aid [the

Court] in identifying state action: ‘(1) public function; (2) joint action; (3) governmental

compulsion or coercion; and (4) governmental nexus.’” Rawson v. Recovery Innovations, Inc.,

975 F.3d 742, 747 (9th Cir. 2020), cert. denied, 142 S. Ct. 69 (2021) (quoting Kirtley v. Rainey,

326 F.3d 1088, 1092 (9th Cir. 2003)). “Faithful application of the state-action requirement . . .

ensures that the prerogative of regulating private business remains with the States and the

representative branches, not the courts.” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52

(1999); see also Sutton, 192 F.3d at 838-39 (“To accept Plaintiff’s argument [that a private

business qualifies as a state actor] would be to convert every [business] . . . into a governmental

actor every time it complies with a presumptively valid, generally applicable law, such as an

environmental standard or a tax-withholding scheme. Private employers would then be forced to

defend those laws and pay any consequent damages, even though they bear no real responsibility

for the violation of rights arising from the enactment of the laws.”). The Court addresses each

test in turn.

2. Analysis

a. The Public Function Test

“Under the public function test, when private individuals or groups are endowed by the

State with powers or functions governmental in nature, they become agencies or

instrumentalities of the State and subject to its constitutional limitations.” Kirtley, 326 F.3d at

1093 (citation omitted). “The public function test is satisfied only on a showing that the function

at issue is both traditionally and exclusively governmental.” Id. (simplified).

Kiss alleges that “[f]ace masks are purportedly intended to help control the spread of

COVID-19 [and the p]rotection of the public’s health from infectious disease is a public function

that is exclusively and traditionally governmental.” (FAC ¶ 43.) Kiss asserts that “Defendants

were performing a traditionally and exclusively governmental function when they pressured

[Kiss] to wear a face mask.” (Id.)

Consistent with well-settled precedent, the Court rejects Kiss’s assertion that Best Buy’s

compliance with a state health regulation converted Best Buy’s action into that of the state for

the purposes of the Fourteenth Amendment. See Jackson v. Metro. Edison Co., 419 U.S. 345,

350 (1974) (“The mere fact that a business is subject to state regulation does not by itself convert

its action into that of the State for the purposes of the Fourteenth Amendment.”); see also Adams

v. S. Cal. First Nat’l Bank, 492 F.2d 324, 330-31 (9th Cir. 1973) (“The test is not state

involvement, but rather is significant state involvement [because s]tatutes and laws regulate

many forms of purely private activity . . . and subjecting all behavior that conforms to state law

to the Fourteenth Amendment would emasculate the state action concept.”); Hale v. Vanguard,

No. 3:21-cv-01236-YY, 2021 WL 4999020, at *2 (D. Or. Oct. 4, 2021) (“[S]imply because a

private entity is subject to federal law does not make it a ‘state actor’ or establish it was engaged

in conduct under the color of state law.”), report and recommendation adopted, 2021 WL

4993477 (Oct. 27, 2021).

The Court finds that Kiss has not plausibly alleged that Best Buy is a state actor under the

public function test.

b. The Joint Action Test

“The joint action test asks ‘whether state officials and private parties have acted in

concert in effecting a particular deprivation of constitutional rights.’” Tsao v. Desert Palace,

Inc., 698 F.3d 1129, 1140 (9th Cir. 2012) (quoting Franklin v. Fox, 312 F.3d 423, 445 (9th Cir.

2002)). The test “can be satisfied either ‘by proving the existence of a conspiracy or by showing

that the private party was a willful participant in joint action with the State or its agents.’” Id.

(citation omitted). The joint action test “requires that the private parties have participated in the

‘activity which deprive[d] [the plaintiffs] of constitutional rights.’” Smith v. N. Star Charter Sch.,

Inc., 593 F. App’x 743, 744 (9th Cir. 2015) (quoting Brunette v. Humane Soc’y of Venture Cnty.,

294 F.3d 1205, 1211 (9th Cir. 2002)); see also Tsao, 698 F.3d at 1140 (“Ultimately, joint action

exists when the state has ‘so far insinuated itself into a position of interdependence with [the

private entity] that it must be recognized as a joint participant in the challenged activity.’”)

(citation omitted).

Kiss alleges that Defendants “were willfully participating in a joint activity with the State

of Oregon when [Doe] insisted that [Kiss] wear a mask or leave the premises” and that

Defendants’ “attempt[] to get [Kiss] arrested and/or charged with trespassing for not putting on a

mask” “was sufficient joint action with the State to make Defendants state actors.” (FAC ¶¶ 44,

46-47.)

///

With respect to Kiss’s first argument, the Ninth Circuit has established that joint action

“require[s] a substantial degree of cooperation.” Franklin, 312 F.3d at 445. Here, Kiss’s assertion

that Defendants requested he wear a mask to comply with state law falls short of the “substantial

degree of cooperation” required for the Court to find state action under the joint action test.3 See

id.; see also O’Handley v. Padilla, 579 F. Supp. 3d 1163, 1184 (N.D. Cal. 2022) (finding that

“generalized statements about [a private entity and the government] working together” “do not

support an inference of an illegal conspiracy”); cf. Tsao, 698 F.3d at 1140 (finding joint action

where a private business had a “system of cooperation and interdependence with the [police

department]” including that, inter alia, the business’s “security personnel ha[d] the authority,

normally reserved to the state, to issue a citation to appear in court for the crime of misdemeanor

trespassing”).

Kiss’s second argument that “the summoning of the police by a private party to arrest a

customer [is] sufficient joint action to make the private party a state actor” also fails. (Pl.’s Resp.

at 15) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 152 (1970)). Kiss’s reliance on Adickes

to support his claim is misplaced. Adickes involved a plaintiff who was arrested as the result of

an alleged conspiracy between a local business and the police to enforce unconstitutional

segregation in the town. Id. The Supreme Court held that the plaintiff could establish an equal

protection claim against the business “if she can prove that a [store] employee, in the course of

employment, and a [] policeman somehow reached an understanding to deny [the plaintiff]

3 Indeed, Kiss acknowledges that Best Buy did not require face coverings in stores

outside of Oregon, “casting doubt on the proposition that Best Buy was a willing participant in

Oregon’s indoor face covering requirement.” Edtl v. Best Buy Stores, L.P., No. 3:22-cv-00003-

AR, 2022 WL 11436434, at *6 (D. Or. Oct. 13, 2022).

service in [the store], or to cause her subsequent arrest because she was a white person in the

company of [Black persons].” Id.

The Court finds no plausibly analogous situation here, because even viewed in the light

most favorable to Kiss, Kiss has not alleged any agreement between Best Buy and the police, nor

sufficient allegations to infer that Defendants conspired with the police to violate Kiss’s

constitutional rights. See Edtl, 2022 WL 11436434, at *6 (“The court disagrees with [the

plaintiff’s] assertion that calling the police when a customer becomes recalcitrant and refuses to

leave a store when asked to do so is the ‘something more’ that the Ninth Circuit requires of

private conduct.”); see also Levi v. Safeway, No. C-94-0946 MHP, 1994 WL 706341, at *3 (N.D.

Cal. Dec. 12, 1994) (“Although [the plaintiff] generally alleges multiple conspiracies to violate

his rights, he has not stated any facts to support his conclusory allegations that these conspiracies

existed [and the plaintiff] confirmed [at a hearing] that the only facts supporting his conspiracy

allegations were that [the store] called the police and ‘relied on state resources[,’ but u]nder [the

p]laintiff’s logic, any person who calls the police to halt a burglary in progress automatically

becomes a state actor subject to suit under [S]ection 1983” and concluding that a store’s

“complaint to police coupled with a request for assistance cannot expose [the store] to [S]ection

1983 liability”).

The Court finds that Kiss has not plausibly alleged that Best Buy is a state actor under the

joint action test.

c. The State Compulsion Test

“The compulsion test considers whether the coercive influence or significant

encouragement of the state effectively converts a private action into a government action.”

Kirtley, 326 F.3d at 1094 (simplified). “The state compulsion test requires more than the taking

of action against a backdrop of applicable state regulations.” Santiago v. Puerto Rico, 655 F.3d

61, 71 (1st Cir. 2011); see also Lugar, 457 U.S. at 935 (“If action under color of state law means

nothing more than that the individual act ‘with the knowledge of and pursuant to [a] statute,’

then clearly . . . that would not, in itself, satisfy the state-action requirement of the Fourteenth

Amendment.”) (citation omitted).

Kiss argues that by implementing a $500 fine for businesses that do not enforce the mask

mandate, “Oregon has coerced, or significantly encouraged, Defendants to require Best Buy

customers to wear face masks.”4 (FAC ¶ 45.) But imposing a consequence for failing to comply

with state law cannot convert a private company’s compliance with state law into state action, or

nearly every private entity complying with state law would be deemed a state actor.5 See

Santiago, 655 F.3d at 71 (“The state compulsion test requires more than the taking of action

against a backdrop of applicable state regulations.”); Gutierrez v. Dep’t of Child. & Family

Servs., No. CV 21-8238-JLS(E), 2022 WL 3574691, at *5 (C.D. Cal. Feb. 3, 2022) (“[A]lthough

[the private party defendants] may be subject to state regulation, such regulation does not render

[the d]efendants state actors for purposes of section 1983.”).

///

4 See OR. ADMIN. R. 33-019-1025(9) (“Any person or person responsible for an indoor

space who violates any provision of this rule is subject to civil penalties of up to $500 per day

per violation.”).

5 Kiss relies on Mathis v. Pacific Gas & Electric Co., 891 F.2d 1429, 1434 (9th Cir.

1989), in which the Ninth Circuit held that an employee’s allegation that a federal agency’s

ability to suspend a utility’s license may be sufficiently coercive to convert the utility’s

compliance with a federal policy to state action was not “frivolous.” The government’s ability to

suspend the license of a utility is a far cry from a $500 fine. In any event, the Ninth Circuit’s

more relevant holding in Mathis was that the plaintiff did not otherwise adequately plead state

action, where the employees’ “claim of state action is essentially confined to allegations that

[PG&E] is a public utility subject to extensive state regulation [and t]hat fact, without more, is

insufficient to infuse its conduct with state action” and “the complaint therefore raised no

colorable claim under 42 U.S.C. § 1983.” Id. (citing Jackson, 419 U.S. 345).

The Court finds that Kiss has not plausibly alleged that Best Buy is a state actor under the

state compulsion test. See Edtl, 2022 WL 11436434, at *6 n.6 (“The court also rejects [the

plaintiff’s] argument that Sutton is distinguishable because [OR. ADMIN. R.] 333-019-1025(9)

imposes a $500 fine for failing to enforce the mask requirement.”).

d. The Governmental Nexus Test

“Arguably the most vague of the four approaches, the nexus test asks whether ‘there is a

such a close nexus between the State and the challenged action that the seemingly private

behavior may be fairly treated as that of the State itself.’” Kirtley, 326 F.3d at 1094-95 (quoting

Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)). “Generally,

the governmental nexus test requires evidence that the private actor is entwined with

governmental policies, or the government is entwined in the private actor’s management or

control.” Gillis v. Chapman, No. 6:17-cv-00705-AA, 2022 WL 991669, at *11 (D. Or. Mar. 31,

2022) (quoting Webber v. First Student, Inc., 928 F. Supp. 2d 1244, 1260 (2013)). “A showing of

mere ‘significant links’ is insufficient to demonstrate a governmental nexus between the state

and a private entity without further evidence of ‘substantial interconnection.’” Id. (quoting

Webber, 928 F. Supp. 2d at 1260).

“The Ninth Circuit has articulated four factors to consider when determining whether

entwinement exists: (1) whether the private entity is primarily made up of state institutions; (2)

whether state officials dominate decision making of the private entity; (3) the private entities[’]

funds are largely generated by the state institutions; and (4) whether the private entity is acting in

lieu of a traditional state actor.” Id. (citing Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d

950, 955 (9th Cir. 2008)).

///

///

Kiss does not allege the necessary entwinement to satisfy the governmental nexus test—

i.e., he does not allege that Best Buy is part of a state institution, that state officers dominate Best

Buy’s decision-making process, that the State funds Best Buy, nor that Best Buy is acting in lieu

of a traditional state actor. Cf. Brentwood Acad., 531 U.S. at 298 (holding that entwinement

supported the conclusion that an athletic association was a state actor for the purposes of the

Fourteenth Amendment because, inter alia, the association was comprised of 84% public schools

and public schools largely provided for the association’s support); Lebron v. Nat’l R.R.

Passenger Corp., 513 U.S. 374, 397-98 (1995) (holding that regardless of its congressional

designation as a private entity, Amtrak was “an agency or instrumentality of the United States for

the purpose of individual rights guaranteed against the Government by the Constitution”

because, inter alia, “six of [Amtrak’s] eight externally named directors . . . are appointed directly

by the President of the United States” and Amtrak was “established and organized under federal

law for the very purpose of pursuing federal governmental objectives, under the direction and

control of federal government appointees”).

Accordingly, the Court finds that Kiss has not plausibly alleged that Best Buy is a state

actor under the governmental nexus test.

3. Conclusion

The Court finds that Kiss has failed plausibly to allege that Best Buy and its assistant

store manager are state actors, and therefore Kiss cannot state a Section 1983 claim against

Defendants. See Lugar, 457 U.S. at 939 (“Action by a private party pursuant to this statute,

without something more, was not sufficient to justify a characterization of that party as a ‘state

actor.’”); Edtl, 2022 WL 11436434, at *6 (“Likewise, with the generally applicable law

challenged here, [the plaintiff] has not alleged the kind of willful cooperation with the State of

Oregon and its mask requirement that would constitute the ‘something more’ required to find

that defendants were state actors.”); Al Dey v. Eye Express Optical, No. 22-cv-3861 (LTS), 2022

WL 2342625, at *2 (S.D.N.Y. June 28, 2022) (dismissing Section 1983 claim based on the

defendant’s enforcement of a COVID-19 mask mandate because “[d]efendant Eye Express

Optical is a private party and does not appear to work for any state or other government body”);

see also Belcher v. Wal-Mart Stores, Inc., No. 3:20-cv-00194-SLG, 2020 WL 5606894, at *2 (D.

Alaska Sept. 18, 2020) (dismissing Section 1983 claims alleging constitutional violations related

to shoplifting and allegations by Wal-Mart security and finding “Walmart is a private party; it

does not act with the virtue or authority of state law, and therefore, it is not a state actor”);

Alexander v. Target Inc., No. 19-cv-07492-PJH, 2019 WL 6525651, at *2 (N.D. Cal. Dec. 4,

2019) (dismissing Section 1983 claim against a Target store based on allegations that “loss

prevention staff at [the store] tackled [the plaintiff] and then detained him without reading him

his Miranda rights [and] denied him an attorney” because “[t]he [d]efendants were not state

actors, rather they were employees at a retail store and plaintiff has not shown they were acting

under color of state law”); Gibson v. Family Dollar, No. 119CV00214DADSKO, 2019 WL

1517664, at *4 (E.D. Cal. Apr. 8, 2019) (dismissing Fourth Amendment claim against a retail

store based on an employee’s actions that resulted in the plaintiff’s arrest for robbery, and

finding that the “amended complaint fail[ed] plausibly to allege that [the d]efendants acted under

color of state law—an essential element to the maintenance of a Section 1983 claim”); Wilkes v.

Walgreen’s Store, No. C 07-2010MJJPR, 2007 WL 2222212, at *1 (N.D. Cal. July 30, 2007)

(dismissing Section 1983 claim alleging “a security guard and store manager at a Walgreen’s

store . . . assaulted him[,]” and noting that “[p]rivate citizens, such as employees of a private

company such as Walgreen’s, as well as Walgreen’s itself, are not ‘state actors’ under § 1983”)

(citation omitted).

B. Fundamental Right

Even if Kiss could adequately plead that Defendants are state actors, “the ultimate inquiry

in a Fourteenth Amendment case is, of course, whether th[e alleged] action constitutes a denial

or deprivation by the State of rights that the Amendment protects.” Flagg Bros. v. Brooks, 436

U.S. 149, 155 n.4 (1978). Kiss argues that Oregon’s face covering requirement violated his

constitutionally protected liberty interest to refuse medical treatment and a “right to free[ly]

exercise his power of choice for wearing an experimental medical device[.]” (FAC ¶¶ 51-52.)

Courts across the country have rejected Kiss’s arguments.

“The due process clause of the Fourteenth Amendment substantively protects a person’s

rights to be free from unjustified intrusions to the body, to refuse unwanted medical treatment

and to receive sufficient information to exercise these rights intelligently.” Benson v. Terhune,

304 F.3d 874, 884 (9th Cir. 2002) (citations omitted). However, as Kiss’s counsel acknowledged

at oral argument, courts have already recognized that “the wearing of a cloth (or even medical

grade) face covering is not medical treatment [and] is not an intrusion on the body.” Health

Freedom Def. Fund, Inc. v. City of Hailey, No. 1:21-cv-00389-DCN, 2022 WL 716789, at *8 (D.

Idaho Mar. 10, 2022); see also Zinman v. Nova S.E.U., Inc., No. 21-CV-60723-RUIZ/

STRAUSS, 2021 WL 4025722, at *17 (S.D. Fla. Aug. 30, 2021) (“With respect to [the

plaintiff’s] bodily intrusion and medical treatment contentions, such characterizations are

implausible . . . [w]earing a mask on the outer surface of one’s face to cover one’s nose and

mouth does not ‘intrude’ within one’s body . . . nor can one plausibly allege that the government

is requiring medical treatment by requiring individuals to wear a face mask.”); cf. Gunter v. N.

Wasco Cnty. Sch. Dist. Bd. of Educ., 577 F. Supp. 3d 1141, 1155 (D. Or. 2021) (rejecting the

plaintiffs’ assertion that a “mask mandate impair[ed] their ability to make medical and other

health care decisions on behalf of their children . . . because the mask mandate ‘no more requires

a medical treatment than laws requiring shoes in public places’”) (simplified).

Another judge in this district recently dismissed an identical Fourteenth Amendment

claim against Best Buy, stating that the court was “unpersuaded that refusal of the requirement of

wearing a face covering while shopping indoors—a public health requirement meant to prevent

the spread of COVID-19—amounts to a fundamental right under the Due Process Clause.” Edtl,

2022 WL 11436434, at *4. “The refusal of medical treatments implicated in the cases on which

[the plaintiff] relies concern profound medical decisions” and “[w]earing a face covering indoors

while shopping does not match the gravity of self-determining decisions about life and death, or

medication that significantly changes a person’s mental processes.” Id. Thus, “[t]he court does

not construe the fundamental right to refuse medical treatment so broadly as to include wearing a

face covering.” Id. (citations omitted). So too here.

Courts across in the country are in accord that there is no constitutional right not to wear

a face covering during a global pandemic. See, e.g., Health Freedom Def. Fund, Inc., 2022 WL

716789, at *8 (holding that the challenged mask mandate did not “trigger[] a fundamental liberty

interest”); Miranda on behalf of M.M. v. Alexander, No. CV 21-535-JWD-EWD, 2021 WL

4352328, at *4 (M.D. La. Sept. 24, 2021) (“[T]here is no fundamental constitutional right to not

wear a mask.”); Whitfield v. Cuyahoga Cnty. Pub. Library Found., No. 1:21 CV 0031, 2021 WL

1964360, at *2 (N.D. Ohio May 17, 2021) (“[T]here is no general constitutional right to wear, or

to refuse to wear a face mask in public places.”); Forbes v. Cnty. of San Diego, No. 20-cv-

00998-BAS-JLB, 2021 WL 843175, at *5 (S.D. Cal. Mar. 4, 2021) (dismissing the plaintiff’s

challenge to a state mask mandate because the “[p]laintiff’s [] claim does not identify a

fundamental liberty interest protected by the substantive component of the Due Process Clause”);

Stewart v. Justice, 518 F. Supp. 3d 911, 918 (S.D.W.Va. 2021) (dismissing the plaintiff’s

challenge to a mask mandate because the court “simply f[ound] no invasion of fundamental

constitutional rights here”).

Consistent with these well-reasoned authorities, Kiss has not plausibly alleged that

Defendants violated a constitutionally protected fundamental right by requiring him to wear a

face covering while shopping indoors at a retail store during a global pandemic.6 In light of

Kiss’s failure plausibly to plead state action or that Defendants violated a fundamental right, the

Court dismisses Kiss’s Fourteenth Amendment claim.7

II. THE EMERGENCY USE AUTHORIZATION ACT

Kiss also brings a claim under a provision of the Federal Food, Drug, and Cosmetic Act

(“FDCA”) commonly known as the Emergency Use Authorization Act. See 21 U.S.C. § 360bbb-

3. Kiss alleges that under the Emergency Use Authorization Act, “individuals have the option to

accept or refuse use of a face mask.” (FAC ¶ 58.) Kiss also alleges that his “right to informed

consent under [the Emergency Use Authorization Act] supersedes Oregon’s [mask mandate.]”

(Id. ¶ 59.) Kiss alleges he therefore “had the absolute right to refuse to wear a face mask[,]”

“Defendants failed to acknowledge” that right, and that while acting under color of state law,

6 Kiss invokes the Nuremberg Code to support his claim, likening Oregon’s mask

mandate to the Nazis’ forced medical experimentation. (See Pl.’s Resp. at 28.) The Court joins

other courts that have found the comparison offensive. See, e.g., Health Freedom Defense Fund,

Inc., 2022 WL 716789, at *9 (finding that “the suggestion that being asked to simply wear a

mask to protect the health of individuals and communities is even in the same realm as torture or

human experimentation strains reason and is offensive”); see also Denis v. Ige, No. CV 21-

00011 SOM-RT, 2021 WL 5312294, at *4 (D. Haw. Nov. 15, 2021) (characterizing the

invocation of the Nuremberg Code in the plaintiff’s opposition to the defendant’s motion to

dismiss claims related to a mask mandate to be “patently frivolous”).

7 The Court acknowledges Defendants’ additional argument that they could not have

coerced Kiss to wear a face covering because he never, in fact, wore a face covering during the

alleged incident, but the Court need not reach that issue.

“Best Buy is not permitted to assert the condition that [Kiss] give up his right not to wear a face

mask in order to enter Best Buy’s store.” (Id. ¶¶ 60-63.) Kiss again “asserts his rights under

federal law against Defendants pursuant to 42 U.S.C. § 1983 [because e]ach of the Defendants,

acting under the color of law, have violated [Kiss’s] rights to refuse to wear an experimental

medical device.” (Id. ¶ 63.)

Having already determined that Kiss fails adequately to allege that Defendants are state

actors, the Court dismisses Kiss’s Emergency Use Authorization Act claim.

Even if Kiss could adequately plead state action, courts have consistently held that the

Emergency Use Authorization Act provides no private right of action. See, e.g., Roush on behalf

of E.R. v. Alexander, No. CV 21-528-JWD-RLB, 2022 WL 846807, at *12 (M.D. La. Feb. 24,

2022) (dismissing claim that a mask mandate violated the Emergency Use Authorization Act

because “[t]here exists ‘no private right of action for a claim under Title 21’” (citing 21 U.S.C. §

337(a)), report and recommendation adopted, 2022 WL 842852 (Mar. 21, 2022); Lloyd v. Sch.

Bd. of Palm Beach Cnty., 570 F. Supp. 3d 1165, 1175 (S.D. Fla. 2021) (dismissing Section 1983

claim challenging mask mandate under the Emergency Use Authorization Act because “the

FDCA clearly states that its requirements may only be enforced by the United States

government[,]” “the availability of private relief under the FDCA is foreclosed by express

provision of the statute itself[,]” and “the § 1983 remedy is unavailable to [the p]laintiffs insofar

as they seek to assert a claim that the FDCA preempts the [m]ask [m]andate under the

Supremacy Clause”) (simplified); see also 21 U.S.C. § 337(a) (with certain exceptions applicable

to the states, “all . . . proceedings for the enforcement, or to restrain violations, of this chapter

shall be by and in the name of the United States”); Buckman Co. v. Plaintiffs’ Legal Comm., 531

U.S. 341, 349 n.4 (2001) (“The FDCA leaves no doubt that it is the Federal Government rather

than private litigants who are authorized to file suit for noncompliance with the medical device

provisions”); cf. Navy Seal 1 v. Biden, 574 F. Supp. 3d 1124, 1130 (M.D. Fla. 2021) (in the

context of challenging a COVID-19 vaccine mandate, holding that the statutory “option to accept

or refuse” under the “informed consent” provisions of the Emergency Use Authorization Act

“confers no private right of action, creates no opportunity to sue the government, and permits

enforcement by the United States and by the states in specific circumstances only”) (simplified).

For these reasons, the Court dismisses Kiss’s Emergency Use Authorization Act claim.

See Edtl, 2022 WL 11436434, at *7 (dismissing the plaintiff’s identical Emergency Use

Authorization Act claim against Best Buy in light of “three critical defects[,]” including that

“defendants are not state actors[,]” the plaintiff’s “own allegations show that he had the choice of

leaving the Best Buy store so that he would not have to wear a mask[,]” and the plaintiff “has not

provided the court with a single case or a developed argument that ties a violation of the

Supremacy Clause to a cause of action under § 1983”) (citations omitted).

III. ADA CLAIM

Kiss claims that Best Buy denied Kiss entry to its store “because of his disability” and

“failed to offer or make any reasonable accommodation for [Kiss’s] disability.” (FAC ¶¶ 67-68.)

Kiss seeks an injunction prohibiting Best Buy “from abiding by any future activation of an

indoor mask mandate[.]”8 (Id. ¶ 72.) Defendants argue that the Court should dismiss Kiss’s ADA

claim because, among other reasons, “Oregon no longer has a face-covering requirement” and

Kiss’s claim is therefore moot. (Id. at 19.) The Court agrees.

///

8 “Damages are not recoverable under Title III of the ADA—only injunctive relief is

available for violations of Title III.” Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (citing

42 U.S.C. § 12188(a)(1)).

Kiss filed this case in early 2022, based on a November 2021 event when Oregon’s mask

mandate was still in effect. The parties do not dispute that the mask mandate ended in March

2022. As a result, there is no longer a statewide mask mandate for the Court to enjoin. Cf. Brach

v. Newsom, 38 F.4th 6, 11 (9th Cir. 2022) (finding moot the plaintiff’s request for an injunction

and declaratory judgment on California’s school reopening plan related to the COVID-19

pandemic because the state had rescinded the challenged executive orders). Kiss nevertheless

requests that the Court enjoin “any future activation” of an indoor mask mandate. (FAC ¶ 72.)

The Court declines to do so.

While it is possible that at some point in the future an executive order could issue

reinstating the indoor mask mandate in Oregon, “the mere power to reenact a challenged policy

is not a sufficient basis on which a court can conclude that a reasonable expectation of recurrence

exists.” Brach, 38 F.4th at 14 (simplified); see also Horizon Christian Sch. v. Brown, 854 F.

App’x 807, 808-09 (9th Cir. 2021) (rejecting the plaintiff’s argument that a claim was not moot

because there remained a “constant threat” that a COVID-19 restriction could be reinstated

because, inter alia, the underlying restriction was no longer in effect and there was no evidence

that the governor would take action without notice); Resurrection Sch. v. Hertel, 35 F.4th 524,

527 (6th Cir. 2022) (en banc) (finding that challenge to Michigan’s statewide mask mandate was

moot because the state had repealed the mandate); cf. Roman Catholic Diocese of Brooklyn v.

Cuomo, 141 S. Ct. 63, 68-69 (2020) (holding that New York’s “severe restrictions on the

applicants’ religious services must be enjoined” and finding that requested injunctive relief was

not moot in November 2020 because “the applicants remain under a constant threat” that the

state would reimpose restrictions on religious services based on constantly changing risk

classifications).

No such “reasonable expectation” of recurrence exists here, especially because “[t]he

trajectory of the pandemic has been altered by the introduction of vaccines, including for

children, medical evidence of the effect of vaccines, and expanded treatment options.” Brach, 38

F.4th at 15 (finding no “reasonable expectation” that California would once again close schools

in response to the pandemic); see also Eden, LLC v. Justice, 36 F.4th 166, 172 (4th Cir. 2022)

(finding as moot a challenge to an early pandemic restriction in light of changed circumstances).

Kiss’s anticipation of a possible future recurrence is “too ‘remote and speculative’ to serve as a

firm foundation for [the court’s] jurisdiction.” Brach, 38 F.4th at 14 (citing Lee v. Schmidt-

Wenzel, 766 F.2d 1387, 1390 (9th Cir. 1985)).

Kiss requests only injunctive relief that this Court cannot provide, and therefore the Court

dismisses Kiss’s ADA claim as moot.9

IV. STATE CLAIMS

Kiss also alleges that Defendants violated OR. REV. STAT. § 659A.142(4) (Oregon’s

disability discrimination statute), and that Doe committed the torts of assault and battery when he

“bump[ed]” Kiss while attempting to prevent him from entering the store without a face

covering. (FAC ¶¶ 10, 81-86.) In light of Kiss’s pleading of federal question jurisdiction, the

Court’s dismissal of Kiss’s federal claims, and because this case has not moved past the pleading

stage, the Court declines to exercise supplemental jurisdiction over Kiss’s state law claims. See

28 U.S.C. § 1367(c)(3) (providing that a court may decline to exercise supplemental jurisdiction

over a claim if it “has dismissed all the claims over which it has original jurisdiction”); Meredith

Lodging LLC v. Vacasa LLC, No. 6:21-cv-326-MC, 2021 WL 5316986, at *6 (D. Or. Nov. 15,

2021) (dismissing federal claims and declining to exercise supplemental jurisdiction over the

9 In light of the Court’s dismissal, it does not reach Defendants’ other arguments for

dismissing Kiss’s ADA claim.

plaintiff’s related state law claims); see also Tatoma, Inc. v. Newsom, No. 3:21-cv-098-BEN-

JLB, 2022 WL 686965, at *6 (S.D. Cal. Mar. 8, 2022) (declining to exercise supplemental

jurisdiction on the plaintiff’s state law claims related to COVID-19 restrictions after dismissing

federal claims); Celauro v. Whole Foods Mkt., No. 21-CV-00310-KLM, 2021 WL 4844538, at

*6 (D. Colo. Oct. 18, 2021) (dismissing Section 1983 claims that the defendants’ “attempt[] to

compel [the p]laintiff to wear a mask while shopping” violated his constitutional “right to make

his own medical/health decisions” and declining to exercise supplemental jurisdiction over

related state law claims); Oakes v. Collier Cnty., 515 F. Supp. 3d 1202, 1217 (M.D. Fla. Jan. 17,

2021) (declining to exercise supplemental jurisdiction over COVID-19 related state law claims

upon dismissal of federal claims).

V. DISMISSAL WITH PREJUDICE

Kiss requests the opportunity to amend his first amended complaint if the Court finds

“anything that is insufficiently pleaded.” (Pl.’s Resp. at 39.) The Court declines Kiss’s request

because Kiss cannot cure the lack of state action nor the failure to plead a fundamental right with

respect to his Fourteenth Amendment claim, cannot cure the lack of state action nor the absence

of a private right of action for his Emergency Use Authorization Act claim, and cannot cure the

mootness of his ADA claim. Any amendments would be futile, and therefore the Court dismisses

Kiss’s federal claims with prejudice. See Edtl, 2022 WL 11436434, at *7 (dismissing identical

constitutional claims “with prejudice as amendment would be futile” (citing Steckman v. Hart

Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998))). The Court dismisses Kiss’s state claims

without prejudice, and he may file those claims in state court.10

10 In light of the Court’s dismissal of all claims in the first amended complaint, the Court

does not address Defendants’ motions to strike and for a more definite statement. (Defs.’ Mot. at

21-23) (citing FED. R. CIV. P. 12 (e), (f)).

VI. FEE MOTION

Defendants move for an order requiring Kiss to pay their attorney’s fees pursuant to 42

U.S.C. § 1988(b) and under the ADA, for “defending against these meritless claims and placing

Defendants in the position of defending government action outside of their control.” (Defs.’ Mot.

at 23-24) (citing Sutton, 192 F.3d at 839). Defendants argue that a private business defending

against a Section 1983 claim is “rare” and because Kiss “has no basis” for his “meritless” claims,

they “should not bear the burden of their attorneys’ fees for defending” against Kiss’s lawsuit.

(Id. at 24.)

Under 42 U.S.C. § 1988(b), “[i]n any action or proceeding to enforce a provision of

[Section 1983] . . . the court, in its discretion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee[.]” 42 U.S.C. § 1988(b). Courts are permitted to award

attorney’s fees “to prevailing defendants under 42 U.S.C. § 1988 . . . only in ‘exceptional

circumstances’ . . . for claims that are ‘frivolous, unreasonable, or groundless.’” Harris v.

Maricopa Cnty. Superior Ct., 631 F.3d 963, 971 (9th Cir. 2011) (quoting Barry v. Fowler, 902

F.2d 770, 773 (9th Cir. 1990) and Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 422

(1978)). “The strict nature of the Christiansburg standard is premised on the need to avoid

undercutting Congress’ policy of promoting vigorous prosecution of civil rights violations under

. . . [Section] 1983.” Miller v. Los Angeles Cnty. Bd. of Educ., 827 F.2d 617, 619 (9th Cir. 1987).

Similarly, under 42 U.S.C. § 12205, “[i]n any action . . . commenced pursuant to [the

ADA], the court [], in its discretion, may allow a prevailing party, other than the United States, a

reasonable attorney’s fee, including litigation expenses, and costs[.]” 42 U.S.C. § 12205.

“Attorney’s fees under § 12205 should be awarded to a prevailing defendant only if the

plaintiff’s action was frivolous, unreasonable, or without foundation.” Brown v. Lucky Stores,

Inc., 246 F.3d 1182, 1190 (9th Cir. 2001) (simplified).

Although the Court acknowledges that Defendants’ fee request presents a close

question,11 in particular with respect to Kiss’s constitutional claims, the Court “finds that this

action is not an exceptional circumstance for which awarding attorney fees is appropriate.” Edtl,

2022 WL 11436434, at *7. As the court found in the companion case against Best Buy, “[i]n

December 2021, more than a year and a half since the beginning of the COVID-19 pandemic,

[the plaintiff] was far from alone in believing that the mask mandate was a significant

infringement on personal freedoms.” Id. “Although the court finds that there is considerable

daylight between [the plaintiff’s] belief that the mask mandate (and Best Buy’s compliance with

it) overreached and a cognizable legal claim, the court is reluctant to find that [the plaintiff]

could not have reasonably believed that he had an adequate basis in law and fact to pursue the

claims against defendants.” Id. The Court agrees that “[t]o award attorney fees in this case would

run contrary to ‘the efforts of Congress to promote the vigorous enforcement of the civil rights

laws.’” Id. (quoting Harris, 631 F.3d at 968, 971). Accordingly, the Court denies Defendants’

fee motion.

///

11 See, e.g., Health Freedom Def. Fund, Inc. v. City of Hailey, No. 1:21-cv-00389-DCN,

2022 WL 3597947, at *3 (D. Idaho Aug. 23, 2022) (awarding fees to the defendants for

defending against the plaintiff’s Fourteenth Amendment claim related to a COVID-19 mask

mandate because, inter alia, “numerous district courts around the country had already dismissed

similar claims before [the p]laintiffs brought suit,” and at the time of filing the plaintiffs “were

aware—or should have been aware—of the long line of cases in which numerous courts had

struck down” plaintiffs’ “substantive due process argument that they have a fundamental liberty

interest to medical autonomy—that is, to not wear a mask” and concluding that “[s]imply put,

this is an ‘exceptional case’ where the [d]efendants are entitled to an award of attorney fees”);

Branch-Noto v. Sisolak, No. 221CV01507JADDJA, 2022 WL 2955108, at *1 (D. Nev. July 26,

2022) (awarding fees to defendants under 42 U.S.C. § 1988 following dismissal with prejudice

of plaintiffs’ “legally frivolous” claims seeking to enjoin indoor mask mandates related to the

COVID-19 pandemic, and noting that “[a]t oral argument, plaintiffs’ counsel conceded that most

of the claims were unsupported by case law”).

CONCLUSION

For the reasons stated, the Court GRANTS Defendants’ motion to dismiss, but DENIES

Defendants’ motion for attorney’s fees. (ECF No. 10.) The Court DISMISSES Kiss’s federal

claims with prejudice and his state claims without prejudice.

IT IS SO ORDERED.

DATED this 6th day of December, 2022 J 7

Tg Swi 7 cern

HON. STACIE F. BECKERMAN

United States Magistrate Judge

PAGE 24 — OPINION AND ORDER