Merz v. City of Kalama (2026)

Case details
Country
United States
Jurisdiction
Federal
Decided
2026
Disposition
Dismissed
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 411837Only the Westlaw citation is currently available.United States District Court, W.D. Washington,at Tacoma.Matthew MERZ, Plaintiff,v.CITY OF KALAMA, et al., Defendants.CASE NO. C24-5588 BHS|Signed February 13, 2026Attorneys and Law FirmsMatthew Merz, Kalama, WA, Pro Se.Amanda Gabrielle Butler, Brian Christopher Augenthaler,Margot G. Cotter, Keating Bucklin McCormack Inc PS,Seattle, WA, for Defendants.ORDERBENJAMIN H. SETTLE, United States District Judge*1 THIS MATTER is before the Court on defendants’second motion for judgment on the pleadings, Dkt. 45, and ondefendants’ motion to strike pro se plaintiff Matthew Merz's“second notice of subsequent events,” Dkt. 64.I. BACKGROUNDMerz is a former Kalama city council member. His AmendedComplaint, Dkt. 27, alleges that seven defendants—the Cityof Kalama; its mayor, George Reuter; council member JonStanfil; the Kalama Police Department; Police Chief RafaelHerrera; the Kalama Library; and library board memberHarlyn Jenkins—conspired to punish Merz for his protectedspeech and political advocacy. Id. at 2–4.The Court granted defendants’ first motion to dismiss becauseMerz failed to respond to it, asking for leave to amend1instead. It permitted him to amend. Dkt. 24. As defendantspoint out, his amended pleading is shorter (60 pages ratherthan 103), but its core allegations2 are the same. Merzcontinues to allege a broad conspiracy:Defendants(a) conducted an unauthorized “character backgroundinvestigation” on Plaintiff in violation of City librarypolicy, falsely branding him as racist, sexist, homophobic,transphobic, and even a child predator, and disseminatedthese defamatory labels to City officials, City staff, and thepublic;(b) weaponized sensitive police information by releasingto City officials digitally manipulated, sexually degradingimages from a confidential investigation file pertaining toPlaintiff in order to humiliate and discredit him;(c) suppressed and ignored credible threats againstPlaintiff's life from a third party, going so far as to deletea death-threat email from Plaintiff's City account and mutePlaintiff's microphone during a council meeting to preventhim from speaking about the danger he faced; and(d) abused legal processes by accessing Plaintiff's ProtectedHealth Information (“PHI”) without lawful authority inorder to pursue a baseless Extreme Risk Protection Order(“ERPO”) against Plaintiff following the onset of this verylawsuit currently before the Court with the punitive intentto further harass, intimidate, and defame him, an actionthat was swiftly leaked to local media to publicly smearPlaintiff. Each of these acts was carried out under officialauthority, without due process and reckless disregard forPlaintiff's substantive due process rights under the First andFourteenth Amendment, and often in direct contraventionof City policy and state law.Id. at 4–5 (emphasis added). Merz alleges defendants didthese things in retaliation for his reporting on governmentmisconduct, challenging the status quo, “embarrassing”Reuter on social media, and running for Mayor against Reuter.Id.*2 His amended complaint is lengthy, but it is filled withconclusions, adjectives, characterization and speculation. Itis not written in chronological order, and while some datesare specific, the order of events is often unclear. Merzfrequently alleges that something “likely” happened, andreplaces the actual language of which he complains withconclusory characterizations like “labeled” “branded” and“smeared.” Defendants reasonably attempt to divide thefactual allegations into five3 categories, but the Court viewsthem as three narratives.
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2First, in early 2021, Councilman Merz sought to donate acomic book collection to the Kalama Public Library. In July2021 the proffered donation was discussed at the library boardmeeting, which Merz attended (on Zoom). Merz alleges thathe was made to feel unwelcome at this meeting, and that“Jenkins stated that Plaintiff was not an appropriate personto be volunteering with children or selecting comic booksfor children.” Dkt. 27 at 11. He alleges Jenkins performeda “background check” on Merz, seeking to find a reason toreject the comic book donation. Id. at 10.Second, in 2021, Merz was apparently the focus of a stalkernamed Christopher Jensen. Dkt. 27 at 13. He does notarticulate why Jensen targeted him, but he does allege thatJensen threatened to murder him in an email sent to Merz'sKalama email account, though he alleges he never saw theemail. Id. Nevertheless he alleges that the email “contained amanifesto that purported to expose plaintiff.” Id. He allegesthat “someone” deleted the email instead of forwarding itto law enforcement. Id. He alleges that he sought to discussJensen and his threats at various city council meetings, andReuter muted his microphone. Id. at 16.Third, shortly after Merz filed this case, his therapistcontacted Kalama police, warning them about something—Merz does not say what—that Merz had said in therapy.Herrera then sought and obtained an Extreme Risk ProtectiveOrder (ERPO) in state court.These allegations are discussed in more detail where and ifrequired in connection with the Court's discussion of the tenclaims Merz asserts based on them:(1) First Amendment Retaliation (42 U.S.C. § 1983);(2) Fourteenth Amendment Due Process (§ 1983);(3) Fourth and Fourteenth Amendment unlawful seizure andmedical privacy (§ 1983);(4) Washington Privacy Act (RCW 70.02); (5) EqualProtection (§ 1983);(5)4 Washington Law Against Discrimination (WLAD)(RCW 49.60);(6) Defamation (Libel and Slander) (RCW 9.58.010);(7) Negligence – Failure to Warn;(8) Civil Conspiracy (42 U.S.C. § 1985(2)); and,(9) Outrage. Dkt. 27.II. HOUSEKEEPINGAs an initial matter, the Court previously rejected Defendants’objections about the length and timing of Merz's Response,and denied Merz's motion to strike. Dkt. 60. It left openthe issue of Merz citing to fabricated, inaccurate authority:“In Sorensen v. City of Bellingham, 15 Wn. App. 2d 730,733, 478 P.3d 1110 (2020), the court held that when officersaffirmatively act in a way that leaves a person worse off, aduty can arise even absent explicit assurances.” Dkt. 48 at 23.*3 Merz corrected and explained the source of the inaccuratecite at Dkt. 52. He intended to cite Norg v. City of Seattle,200 Wn.2d 749 (2023) for the same proposition. Norg did notinvolve analogous facts, and it is tenuous support for Merz'sclaim that any defendant is liable to him for failing to warnhim of a known danger, particularly where no harm resulted.Nevertheless, because the Court can resolve the motion on themerits, it declines to dismiss based on the inaccurate citation.Next, the defendants correctly point out that neither theKalama Police Department nor its Library are separate entitiessubject to suit; they are simply part of defendant City ofKalama. Dkt. 45 at 18–19 (citing Nolan v. Snohomish County,59 Wn. App. 876, 833, 802 P.2d 792, 796 (1990); Bradfordv. City of Seattle, 557 F. Supp. 2d 1189, 1207 (W.D. Wash.2008); and City of Seattle v. Dutton, 147 Wn. 224, 226, 265P. 729, 730 (1928). Merz does not disagree.Merz's claims against these two named defendants areDISMISSED with prejudice. His Monell and other claimsagainst Kalama itself are discussed below.Finally, Merz's “notice of subsequent conduct,” Dkt. 62,purports to inform the Court about the circumstances of PoliceChief Herrera's retirement, after and unrelated to the eventsdescribed in his amended complaint. See also Declaration atDkt. 63. Merz contends that the information has bearing onthe factual context and credibility issues implicated in themotion to dismiss. Dkt. 65.As the Defendants correctly contend, this is not so. Theirpending motion tests the plausibility of the allegations inMerz's amended complaint, not his evidence, and not theircredibility. Merz's “Notice” is procedurally improper and thesalacious information in it is wholly irrelevant. Defendants’
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3Rule 12(f) motion to strike, Dkt. 64, is GRANTED, and Dkts.62 and 63 are STRICKEN.The remaining issues are addressed in turn.III. DISCUSSIONA. Legal Standards.1. Rule 12(c) Standard.Defendants argue that despite two lengthy efforts, Merz hasfailed to state a plausible claim against any of them.Federal Rule of Civil Procedure 12(c) “is ‘functionallyidentical’ to Rule 12(b)(6) and...‘the same standard of review’applies to motions brought under either rule.” Cafasso, U.S.ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054n.4 (9th Cir. 2011) (quoting Dworkin v. Hustler Mag. Inc., 867F.2d 1188, 1192 (9th Cir. 1989)).Dismissal under Rule 12(b)(6) may be based on either thelack of a cognizable legal theory or the absence of sufficientfacts alleged under a cognizable legal theory. Balistreri v.Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Aplaintiff's complaint must allege facts to state a claim for reliefthat is plausible on its face.Ashcroft v. Iqbal, 556 U.S. 662,678 (2009). A claim has “facial plausibility” when the partyseeking relief “pleads factual content that allows the court todraw the reasonable inference that the defendant is liable forthe misconduct alleged.” Id. (emphasis added).Although courts must accept as true the complaint's well-pleaded facts, conclusory allegations of law and unwarrantedinferences will not defeat an otherwise proper Rule 12(b)(6) motion to dismiss.Vasquez v. Los Angeles Cnty., 487F.3d 1246, 1249 (9th Cir. 2007); Sprewell v. Golden StateWarriors, 266 F.3d 979, 988 (9th Cir. 2001). “[A] plaintiff'sobligation to provide the ‘grounds’ of his ‘entitle[ment] torelief’ requires more than labels and conclusions, and aformulaic recitation of the elements of a cause of action willnot do. Factual allegations must be enough to raise a right torelief above the speculative level.” Bell Atl. Corp. v. Twombly,550 U.S. 544, 555 (2007) (citations omitted). This requiresa plaintiff to plead “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678(citingTwombly, 550 U.S. at 555).*4 When granting a Rule 12(b)(6) motion to dismiss, “adistrict court should grant leave to amend even if no requestto amend the pleading was made, unless it determines that thepleading could not possibly be cured by the allegation of otherfacts.” Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911F.2d 242, 247 (9th Cir. 1990). Courts may also deny leave toamend when the facts are not in dispute and the sole issueis whether there is liability as a matter of substantive law.Albrecht v. Lund, 845 F.2d 193, 195–96 (9th Cir. 1988).2. Qualified ImmunityThe four individual defendants assert they are qualifiedlyimmune from Merz's § 1983 constitutional claims againstthem. Dkt. 45 at 15–18.The qualified immunity doctrine shields government officialsperforming discretionary functions “from liability for civildamages insofar as their conduct does not violate clearlyestablished statutory or constitutional rights of which areasonable person would have known.” Harlow v. Fitzgerald,457 U.S. 800, 818 (1982). A two-part test resolves claimsof qualified immunity by determining whether plaintiffs havealleged facts that “make out a violation of a constitutionalright,” and if so, whether the “right at issue was ‘clearlyestablished’ at the time of defendant's alleged misconduct.”Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucierv. Katz, 533 U.S. 194, 200-01 (2001)).Qualified immunity protects officials “who act in waysthey reasonably believe to be lawful.” Garcia v. Countyof Merced, 639 F.3d 1206, 1208 (9th Cir. 2011) (quotingAnderson v. Creighton, 483 U.S. 635, 641 (1987)). Thereasonableness inquiry is objective, evaluating whether anofficial's actions are “objectively reasonable” in light of thefacts and circumstances confronting them, without regard totheir underlying intent or motivation. See Graham v. Connor,490 U.S. 386, 397 (1989)).Even if an official's decision is constitutionallydeficient, qualified immunity shields her from suit ifher misapprehension about the law applicable to thecircumstances was reasonable. See Brosseau v. Haugen,543 U.S. 194, 198 (2004). As a privilege from suit, notmerely from liability, qualified immunity “gives ample roomfor mistaken judgments” and protects “all but the plainlyincompetent.” Hunter v. Bryant, 502 U.S. 224, 229 (1991)(citing Malley v. Briggs, 475 U.S. 335 (1986)).
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4For a constitutional right to be clearly established, a Courtmust define the right at issue with specificity, and not at ahigh level of generality. Gordon v. County of Orange, 6 F.4th961, 968 (9th Cir. 2021) (citing City of Escondido v. Emmons,586 U.S. 38, 42 (2019)). The Court's goal is to “define thecontours of the right allegedly violated in a way that expresseswhat is really being litigated.” Id. at 969 (citation omitted).Qualified immunity is not meant to be analyzed in terms of a“general constitutional guarantee,” but rather the applicationof constitutional principles “in a particular context.” Id.(internal citations omitted). Ultimately, “the prior precedentmust be ‘controlling’—from the Ninth Circuit or SupremeCourt— or otherwise be embraced by a ‘consensus’ ofcourts outside the relevant jurisdiction.” Id. (citing District ofColumbia v. Wesby, 538 U.S. 48, 63 (2019)).The plaintiff bears the burden of proof that the right allegedlyviolated was clearly established at the time of the allegedmisconduct. Id.; see also Romero v. Kitsap County, 931 F.2d624 (9th Cir. 1991). However, because resolving whether theasserted federal right was clearly established presents a purequestion of law, the Court draws on its ‘‘full knowledge’’ ofrelevant precedent rather than restricting its review to casesidentified by the plaintiff. Gordon, 6 F.4th at 969 (citing Elderv. Holloway, 510 U.S. 510, 516 (1994)).3. Monell Liability.*5 To plausibly plead a 42 U.S.C. § 1983 claim againsta municipality, a plaintiff must show that the defendant'semployees or agents acted through an official custom, patternor policy that permits deliberate indifference to, or violates,the plaintiff's civil rights; or that the entity ratified theunlawful conduct. See Monell v. Dep't of Soc. Servs., 436 U.S.658, 690–91 (1978); Larez v. City of Los Angeles, 946 F.2d630, 646–47 (9th Cir. 1991).Under Monell, a plaintiff must allege: (1) that a municipalemployee violated a constitutional right; (2) that themunicipality has customs or policies that amount to deliberateindifference; and (3) that those customs or policies were the“moving force” behind the constitutional right violation. Bd.of Cnty. Comm'rs v. Brown, 520 U.S. 397, 403–04 (1997).A municipality is not liable simply because it employs atortfeasor. Monell, 436 U.S. at 691.B. Merz's Federal Claims.1. § 1983 First Amendment Retaliation Claim.To assert a plausible First Amendment retaliation claim, Merzmust plead facts allowing the Court to draw the reasonableinference that (1) he engaged in a constitutionally-protectedactivity; (2) as a result, he was subjected to adverse action bythe defendant that would chill a person of ordinary firmnessfrom continuing to engage in the protected activity; and(3) there was a substantial causal relationship between theconstitutionally protected activity and the adverse action.Blair v. Bethel School Dist., 608 F.3d 540, 543 (9th Cir. 2020).Merz alleges and argues that his criticism of Kalama and itsgovernance on social media and elsewhere, and his discussingat the Kalama City Council meeting non-party ChristopherJensen's threats to Merz, was protected First Amendmentactivity. He asserts defendants retaliated against him forthat activity by muting his microphone at several councilmeetings, silencing him and violating his constitutionalrights. He alleges he wanted to speak about his stalker, Jensen,and the danger he faced. Dkt. 27 at 5, 16, 17, 19.Defendants ask the Court to evaluate whether the mutingwas “a minor indignity, as ‘de minimus deprivations andprivileges on account of one speech do not give rise to a FirstAmendment claim.’ ” Dkt. 45 at 7 (quoting Blair, 608 F.3d at544). Instead, Defendants assert that to state such a claim, aplaintiff must plausibly allege that the conduct complained of“would stifle someone from speaking out.”Id. Merz insteadaffirmatively alleges that he “refused to be silenced.” Dkt. 27at 28.Even if muting a speaker at a city council meeting might insome circumstances amount to a First Amendment violation,Merz has not articulated the circumstances of his “muting,”beyond his conclusory allegations about why his mic wasmuted.In any event, he has not identified any authority suggestingthat muting a council member's microphone for speakingabout his personal challenges in the circumstances Merzdescribes violates the First Amendment. The Court is awareof none. The constitutional violation that Merz asserts inthe factual context he describes is not “clearly established,”as a matter of law. The defendants are entitled to qualifiedimmunity from Merz's First amendment retaliation claim.Defendants’ motion for judgment on the pleadings on Merz'sFirst Amendment retaliation claim is GRANTED, and thatclaim is DISMISSED. Because Merz has twice attempted tostate a plausible claim, and he cannot do so consistent with
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5the facts he has already pled, the dismissal is with prejudiceand without leave to amend.2. § 1983 “Stigma-Plus” Fourteenth AmendmentProcedural Due Process Claim.*6 To successfully plead a stigma-plus Procedural DueProcess claim, a plaintiff must show: “(1) the publicdisclosure of a stigmatizing statement by the government;(2) the accuracy of which is contested; (3) plus the denial ofsome more tangible interest such as employment.” Chaudhryv. Aragón, 68 F.4th 1161, 1170 (9th Cir. 2023).Merz asserts that his future in public service and as alibrary patron was “effectively cut off” by defendants’ “falsecharges” against him. Dkt. 48 at 7. It is not at all clear whatfalse charges he references, who exactly made them, or when,or where, or how, or to whom, or how whatever a defendantsaid had the effect of depriving Merz of his ability to run foroffice or to use the Kalama public library in the future. Merzdoes not and could not allege that he was an employee ofany defendant, or that he was terminated as the result of hisprotected activity.Instead, he claims—again in the passive voice—that he was“stripped of his office at the request of the Defendants.” Dkt.48 at 7. This is a conclusion, not a factual assertion, andit is not plausible. Merz does not allege which defendantasked some unidentified person or entity to “strip him of hisoffice,” or how, when, or why that person or entity did so.Merz's complaint alleges only that “Defendants conspired toeffectively oust Plaintiff from elected office5 by discreditinghim so badly that his seat was untenable.” Dkt. 27 at 34. Thistoo is conclusory, and it is not the sort of factual narrative thatallows the Court to draw the reasonable inference that anyunidentified defendant (much less all of them) is liable for themisconduct alleged. Merz's claim is not plausible.Furthermore, if and to the extent this or any other claimis based on Chief Herrera's obtaining a state court ERPOagainst him, Merz is effectively asking this Court to undothat Order. This Court cannot and will not review or reversedecisions made in state court. The Rooker-Feldman doctrineprecludes “cases brought by state-court losers complaining ofinjuries caused by state-court judgments...and inviting districtcourt review and rejection of those judgments.” Exxon MobilCorp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).“[W]hen a losing plaintiff in state court brings a suit in federaldistrict court asserting as legal wrongs the allegedly erroneouslegal rulings of the state court and seeks to vacate or set asidethe judgment of that court, the federal suit is a forbidden defacto appeal.” Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir.2003); Carmona v. Carmona, 603 F.3d 1041, 1050 (9th Cir.2010).If the information in the ERPO application was false6 orimproperly obtained, if application was in some other wayimproper, or if the ERPO was issued in error, the properremedy is to point that out to the Court with jurisdiction overthe Order, or to appeal the Order. The propriety of that Ordercannot be re-litigated in this Court.*7 Even if the defendants violated Merz's constitutional dueprocess rights by obtaining the ERPO Order or “stripping”him of his seat or his library privileges, Merz has notcited (and cannot cite) any authority clearly establishing aconstitutional violation in a factual context remotely likethe one described in his amended complaint. He asserts thatMazzeo v. Gibbons, 649 F. Supp. 2d 1182, 1197 (D. Nev.2009) stands for the proposition that an “allegation thatofficial's defamatory statements effectively barred plaintifffrom future public employment stated a stigma-plus claim.”Dkt. 48 at 6.But Mazzeo did not say that. It said the exact opposite:“Mazzeo fails to state a stigma-plus claim under theFourteenth Amendment....Mazzeo's stigma-plus claim isdismissed.” Mazzeo, 649 F.Supp.2d at 1197. Merz'scharacterization of this authority is again, at best, misleading.The individual defendants are entitled to qualified immunityfrom Merz's “stigma plus” due process claim, as a matter oflaw.Nor does Merz plausibly allege that any of the conduct hedescribes was caused by a Kalama policy7 or custom. Hehas not identified nor articulated any such policy, or pledfacts supporting the inference that it was the moving forcebehind some Kalama agent's violation of his constitutionaldue process rights. Merz's Monell claim against Kalama basedon the ERPO is not plausible, as a matter of law.For each of these reasons, defendants’ motion for judgment onthe pleadings on Merz's stigma-plus Fourteenth Amendmentdue process claim is GRANTED, and that claim isDISMISSED. Because Merz has already amended hiscomplaint once, and he cannot state a plausible claim
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6consistent with his detailed factual allegations, the dismissalis with prejudice and without leave to amend.3. § 1983 Fourth and Fourteenth Amendment Seizureand Privacy claims.Merz alleges that without a warrant, subpoena, orlegal justification, Herrera “coerced or induced a third-party healthcare provider to disclose his protected healthinformation (PHI).” Dkt. 27 at 36–37. He claims thedefendants unconstitutionally seized and disseminated hisPHI. Id.Merz's factual allegations do not support such an inference;they preclude it. Merz's amended complaint alleges that hebegan seeing non-party therapist Conner Armand for anxiety,panic attacks, hypervigilance and other symptoms in March2024. Dkt. 27 at 26. Merz alleges that, despite Armand'sinitial assessment of him as “low risk,” on June 17, 2024,“Armand voluntarily contacted KPD under an alleged ‘dutyto warn.’ ” Id. (emphasis added). “Armand provided KPDwith information about Plaintiff without obtaining consentand without Plaintiff making any threats that would justify anemergency disclosure under RCW 70.02.050.” Id.Merz assiduously avoids describing the details of whatArmand reported to the police, or how Herrera used thatinformation to obtain the ERPO. Instead, he simply states thatthe ERPO application was “false,” that defendants “presenteda skewed narrative,” and the ERPO8 was itself an “abuseof process.” Dkt. 27 at 25. These are conclusions, not facts.Merz has pled no “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” This is not enough tostate a plausible claim. Iqbal, 556 U.S. at 678 (citingTwombly,550 U.S. at 555).*8 Merz has not plausibly asserted facts allowing a Courtto draw the reasonable inference that Herrera or any otherdefendant9 unconstitutionally seized his PHI; he has insteadaffirmatively pled that non-party Armand voluntarily gavethat information to the police, because Armand believed hehad a state law duty to warn. Dkt. 27 at 26. Merz's FourthAmendment seizure claim against Herrera based on Armand'svoluntary report that Merz may be dangerous is not plausible,as a matter of law.And, even if Herrera violated Merz's constitutional rightsby acting on the information Armand provided, Merz hasnot argued or shown that any such violation was clearlyestablished. Nor has he alleged, or even argued, that someunarticulated unconstitutional Kalama policy was the causeof—the moving force behind—any constitutional injury.Defendants’ motion for judgment on the pleadings on Merz'sunconstitutional seizure claim is GRANTED, and that claimis DISMISSED. Because Merz cannot plausibly state a claimconsistent with the facts he has already pled, the dismissal iswith prejudice and without leave to amend.4. § 1983 Equal Protection claim.Merz's amended complaint asserts as one claim an EqualProtection claim and a WLAD claim. The pleading allegesin conclusory fashion that Jenkins, Reuter and others“selectively treated [Merz] differently out of personal andirrational bias,” and that he “was the only library donor/volunteer” who “got this kind of treatment,” and the “onlydistinguishing factor was the library insiders’ antipathytowards him (based on who he was and what he believedor was perceived to believe).” Dkt. 27 at 42. Merz allegesthat defendants discriminated against him by rejecting hisproffered donation of comic books to the library, by draftinga “formal complaint” about him, telling people there was“another side to him that people didn't know about,” thathe was “scary,” and that Reuter told someone named SaraHutchinson that he she “should be careful” around Merz. Id.;see also Dkt. 27 at 7.To establish a claim under the Equal Protection Clause, aplaintiff must demonstrate that (1) he was treated differentlyfrom others similarly situated, and (2) the defendant actedwith discriminatory intent. City of Cleburne v. CleburneLiving Ctr., 473 U.S. 432, 439 (1985). Equal protection“is essentially a direction that all persons similarly situatedshould be treated alike.” Id.Defendants point out that Merz has not pled any factssupporting the notion that any defendant treated himdifferently than they treated any similarly situated individual,much less that any treatment was because Merz was a memberof a protected class. Dkt. 45 at 12.Merz responds that the defendants discriminated againsthim based on sex, race, and/or sexual orientation/genderexpression, because (while also discriminating against himbecause he was a “homophobe”) they perceived him as a“closeted gay man.” Dkt 48 at 19. Merz contends, againin conclusory fashion, that defendants discriminated againsthim by “denying him a public opportunity”—presumably, the
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.7right to donate his comic books. See Dkt. 27 at 41–42; Dkt.48 at 19. He alleges the “intent was to discriminate againstand defame Plaintiff so that he would not feel welcomed atthe Kalama Public Library and be treated as a pariah by hiscommunity.” Dkt. 27 at 41.*9 This claim is not plausible. Merz has not identifiedany similarly situated person that was treated any differentlythan was Merz. Instead, he alleges that “a female donorwho championed feminist comics likely would not have beentreated with suspicion.” Dkt. 27 at 40. This is speculative.In any event, Merz has not identified any authority evensuggesting that declining a donation to a library as unsuitablefor minors, because of the donor's political views, hishomophobia, his gender expression, or his perceived sexualorientation, is an Equal Protection violation. The Court isaware of none. The constitutional violation that Merz assertsin the factual context he describes is not “clearly established.”The defendants are entitled to qualified immunity from Merz'sEqual Protection claim.Accordingly, the defendants’ motion to dismiss Merz'sEqual Protection claim is GRANTED, and that claim isDISMISSED. Because he could not cure these flaws bypleading additional facts consistent with his twice-alleged,detailed factual narrative, the dismissal is with prejudice andwithout leave to amend again.5. § 1985 Civil Conspiracy claim.Merz alleges that the defendants and others conspired to abusetheir positions to “harm” him and to “cover it up.” Id. at 49.These are conclusions, not facts. He asks the Court to inferfrom his allegations that the defendants and several non-partyco-conspirators “tacitly or explicitly understood each other'saims and cooperated together.” Id. This is a conclusion, nota plausible factual narrative permitting the Court to infer thatthe conclusion is reasonable.Merz's complaint essentially combines his complaintsabout various incidents and defendants into one sweepingconspiracy:Numerous overt acts were takento further the conspiracy, asalready enumerated: Jenkins publiclydefaming Plaintiff; Herrera or Reuterdeleting the death threat email; Herreralying to deputies; Reuter mutingPlaintiff and encouraging Jenkins &Herrera; Stanfill & Herrera usurpingcity council authority in creatingan unlawful committee to sidelinePlaintiff's input as a councilmemberand citizen; Reuter, Stanfill &Conradi pushing background checksthrough the library mere monthsbefore Jenkins conducts and releases abackground investigation into Plaintiffvia the library; Attorney Satterfieldpublishing the sexually degradingimages; Reuter, Herrera, and Stanfillcoordinating to draft the “formalcomplaint” meant to chill Plaintiff'sright to free speech; Smee stayingsilent on knowledge of Jensen; Herreraand Kalama PD obtaining Plaintiff'sPHI without authorization and outsidethe bounds of legal process; Herreramisrepresenting Plaintiff's PHI in theERPO petition to falsely depict him asdangerous; Reuter, Jenkins, and othercity officials leveraging Herrera'sERPO filing to justify their own anti-harassment petitions, despite Plaintiffnever having made threats or engagedin harassing conduct; Herrera and/or Kalama PD leaking informationfrom the ERPO to the press,further amplifying the defamatorycampaign; Reuter and Jenkins's earlierdefamation campaigns creating thepretext for Herrera and KalamaPD to justify the ERPO; Reutercoordinating responses with Jenkins,Herrera, and other co-conspirators inCity of Kalama to ensure Plaintiffwas politically and socially exiled,including his constructive removalfrom the library and local civic affairs;Herrera filing ERPO; Herrera (oranother KPD staff member) leakingto press; etc. Each of these actsfurthered the shared goal of ruiningPlaintiff's credibility or shielding
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.8Defendants from liability, thus integralto the conspiracy.*10 Dkt. 27 at 49–50 (¶5.65) (emphasis added to identifynon-parties).Based on these allegations, Merz asserts a civil conspiracyclaim under 42 U.S.C. § 1985(2), which addressesconspiracies to obstruct justice by intimidating a litigant orwitness, to preclude him from attending or testifying in court,or punishing him for doing so. Merz alleges that this case waspending10 when Herrera sought an ERPO, and thatThe filing of the ERPO on June27, 2024, based on unlawfullyaccessed PHI, and the subsequentleak of the ERPO and filing ofadditional anti-harassment protectionorders by Defendants, constitutesretaliation for Plaintiff's exercise ofhis First Amendment right to petitionthe court for redress. The timingstrongly implies that Herrera, KalamaPD, Reuter, Jenkins, Stanfill, Cityof Kalama, and their co-conspiratorsconspired to injure Plaintiff viathe ERPO and smear campaign inretaliation for this lawsuit, makingthem liable under 42 U.S.C. § 1985(2).Dkt. 27 at 51.Defendants argue that Merz has not plausibly pled that thealleged conspirators “entered into an agreement to accomplishthe object of the conspiracy.” Dkt. 45 at 14 (citing Young v.Rayan, 27 Wn. App. 2d 500, 518 (2023)).Merz responds that he did allege the defendants and othersagreed to punish him and repeats his allegations that they“formed a conspiracy” and that they “acted in concert tofurther the common unlawful plan.” Dkt. 48 at 25.These are legal conclusions. They are not factual allegationsallowing the Court to draw the reasonable inference that thedefendants are liable for the misconduct alleged. Merz haspled no “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” This is not enough to state a plausibleclaim. Iqbal, 556 U.S. at 678 (citingTwombly, 550 U.S. at555).None of Merz's individual claims are plausible, and hisattempt assert a claim combining them into a sweepingconspiracy aimed at punishing him for this lawsuit is notplausible as a matter of law. Defendants’ motion for judgmenton the pleadings on Merz's § 1985(2) civil conspiracy claim isGRANTED, and that claim is DISMISSED with prejudice.C. Merz's state law claims.1. Washington Privacy Act claim (RCW 70.02)Merz alleges that defendants violated his state law privacyright in his medical records in connection with the PHIused to support the ERPO, discussed above. He alleges that“Herrera and Kalama PD further violated RCW 70.02.020(1)and Plaintiff's common law right to privacy by disseminatingPlaintiff's PHI to multiple third parties, including at leastthirteen (13) individuals and Longview's The Daily Newsnewspaper.” Dkt. 27 at 38.Merz (accurately) asserts that “RCW 70.02.020(1) prohibitshealth care providers from disclosing PHI without validpatient authorization, a valid court order, or a statutoryexception.” Id. (emphasis added). None of the defendants arehealth care providers, and the health care provider who (Merzalleges) “voluntarily” disclosed his health care information(Merz pleads “under an alleged duty to warn”),11 Armand,is not a party.*11 This claim is not plausible because the statutoryprohibition facially does not apply to any defendant. Forthis reason, and for the reasons discussed in connection withMerz's unconstitutional seizure claim, above, defendants’motion to dismiss this claim is GRANTED, and Merz'sRCW 70.02 medical privacy claim is DISMISSED. BecauseMerz cannot remedy the flaws in this claim through furtheramendment, the dismissal is with prejudice and without leaveto amend.2. WLAD claim.Merz asserts a Washington Law against Discrimination(WLAD) claim, alleging the defendants unlawfullydiscriminated against him “on the basis of advocating viewsthat were not politically aligned with their own beliefs.” Dkt.
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.927 at 40. WLAD prohibits discrimination based on “protectedstatus” including race, “creed” (religion), color, or sex. RCW49.60.030.Merz has alleged only that some defendants disagreed withhim about the suitability of reading material for minors. Hehas not plausibly pled that he is a member of a protectedclass or that defendants discriminated against him basedon that status. His WLAD claim fails as a matter of law.Defendants’ motion to dismiss this claim is GRANTED andit is DISMISSED with prejudice. Because Merz cannot pleadadditional facts consistent with those he has twice pled insupport of this claim, the dismissal is with prejudice andwithout leave to further amend.3. Defamation claim.Merz asserts a state common law defamation claim againstJenkins, Reuter, Herrera, and Kalama, based on Jenkins’“claiming or strongly implying” that Merz is “racist, sexist,homophobic, transphobic, and a child predator.” Dkt. 27 at43. He also alleges Herrera defamed him when he used thePHI (provided by non-party therapist Armand) in applying forthe ERPO. Id. He does not allege what Herrera said in thatapplication, or why it was false. He does not quote the wordshe alleges “strongly implied” anything.A defamation claim has four essential elements: (1) a falsecommunication (2) that was unprivileged, (3) for which thedefendant is at fault, and (4) that caused the plaintiff damages.Young v. Rayan, 27 Wn. App. 2d 500, 515 (2023).Defendants argue, persuasively, that a defamation claim basedon allegedly false statements in an ERPO order requires thepleader to allege what was said, and why it was false. It is not,and cannot be, plausible to simply state in purely conclusoryfashion that some undescribed statement was “defamatory.” Aplaintiff must plead “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678(citingTwombly, 550 U.S. at 555). And, as the Court explainedabove, the appropriate venue for disputing the veracity of anERPO application is in the Court in which that applicationwas pending. Merz cannot re-litigate that Order here.Merz's other claims are conclusory and implausible.He alleges that Jenkins (with Reuter's encouragement)“prepared a report” “accusing” Merz of being “racist,sexist, homophobic transphobic, a child predator, and not anappropriate person to volunteer with children.” Dkt. 48 at 20(citing Dkt. 27). He does not identify or purport to actuallyquote any part of the report, and his characterization of itscontents is conclusory.Merz's amended complaint, despite its length, alleges onlythat defendants “labeled” or “branded” him as such. Dkt.27 at 40. It does not allege the “who what when wherewhy or how” of the defendants’ “labelling,” or even allegethat they communicated the unquoted assertions or their“report” to anyone. Merz does not even identify or quote thereport or allege that it was disseminated. Merz argues12 that“accusations of criminal behavior (like being a “predator”)are defamation per se, which means damages are presumedwithout specific proof.” Dkt. 48 at 21 (citing Caruso v. LocalUnion 690, 107 Wn.2d 524, 529-30 (1987)). But he does notplausibly articulate any such accusation.*12 Defendants’ motion to dismiss Merz's defamation claimis GRANTED, because it is not plausible as a matter oflaw. Merz's defamation claim is DISMSISSED. Because hecannot remedy these flaws, the dismissal is with prejudice andwithout leave to amend.4. Negligence claim.Merz alleges that the Kalama police owed him a duty to keephim informed about the whereabouts and stated intentions ofhis stalker, Jensen. He alleges that even though Herrera knewof threats Jensen made about Merz, and of Jensen's presencein Kalama, the police did not warn him. Dkt . 48 at 22. Hecontends that Jensen sent him an “email death threat” thatMerz “did not see before it was deleted.” Id.Merz references this email in support of several claims. TheCourt can surmise that Jensen sent it, but Merz's allegationthat he never saw it is belied by his claim that it “containeda manifesto purporting to expose” him. See Dkt. 27 at 14.And he does not allege who deleted it, or why. Instead, hevaguely suggests that “Herrera and Reuter likely conferred—as Herrera did with [ ] Smee—then deleted the death threat.”Dkt . 48 at 22. He does not suggest how when or why someoneaccessed his email account.The public duty doctrine generally precludes negligenceclaims against police or other governmental entities based onan alleged breach of a broad duty owed to the public as awhole, rather than a particular duty owed to the plaintiff underthe circumstances. See Norg, 200 Wn.2d at 757–759.
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.10Merz asserts a “breach of special duty” negligence claimagainst Herrera and Kalama. Dkt. 27 at 46–48. He alleges thatHerrera and Kalama established a special relationship withhim and thus “owed him a duty to warn or protect him, byvirtue of:”(a) Plaintiff being an identifiable, targeted victim of aknown threat (Jensen's death threats) of which Defendantswere aware; and(b) Defendants affirmatively undertaking investigative/control actions in regard to that threat.Dkt. 27 at 46–47.Defendants correctly contend that to plausibly plead that the“special relationship” exception to the public duty doctrineapplies, a plaintiff must show:(1) some form of privity or direct contact between thegovernment agency and plaintiff that sets the plaintiff apartfrom the general public;(2) the agency gave the plaintiff specific assurances thatresulted in the agency undertaking a duty; and(3) the plaintiff justifiably relied upon those assurances.Stansfield v. Douglas Cnty., 107 Wn. App. 1, 13 (2001).Merz has not met, and cannot meet, this standard. Thesuggestion that two people “likely” deleted an undescribeddeath threat email is speculative and is not the sort of factualallegation required to state a plausible claim. Nor does Merzarticulate what the death threat email said, or how he wouldhave been in a better position if he saw it.Merz does not allege that anyone gave him specificassurances about anything. He essentially claims he“justifiably relied” by not hiring security or taking otherprecautions. But Merz does not allege that he was harmed by,or even ever saw, Jensen.In addition to duty and breach, any negligence claim requiresthe plaintiff to plausibly plead both damages and causation.Merz has done neither.Defendants’ motion for judgment on the pleadings isGRANTED, and this claim is DISMISSED with prejudiceand without leave to amend.5. Outrage claim.*13 Merz asserts an outrage claim against all defendants,asserting that their “collective and individual conduct, asdescribed in painful detail above, was extreme and outrageousto an extent that it goes beyond all bounds of decency and isutterly intolerable in a civilized society.” Dkt. 27 at 52. Likehis federal § 1985 civil conspiracy claim, this state law claimseeks to combine all Merz's various grievances into a single,catch-all claim.To state a claim for the tort of outrage, a plaintiff mustshow: (1) extreme and outrageous conduct; (2) intentionalor reckless infliction of emotional distress; and (3) actualresult to the plaintiff of severe emotional distress. Cole v.Amazon.com Services, LLC, 765 F.Supp.3d 1154, 1161 (W.D.Wash. 2025) (citing Snyder v. Med. Serv. Corp. of E. Wash.,145 Wn.2d 233, 242, 35 P.3d 1158 (2001)).Outrageous conduct is conduct which the recitation of thefacts to an average member of the community would arousehis resentment against the actor and lead him to exclaim“Outrageous!” Cole at 1162 (citing Reid v. Pierce County, 136Wn.2d 195, 201– 02, 961 P.2d 333 (1998)). “This is a highbar, and the Washington courts are not easily outraged.” Id.(citing Jermy v. Jones, No. 99-35044, 2000 WL 1685031, at*2 (9th Cir. Nov. 9, 2000)).Even “highly offensive and intolerable” conduct is not“outrageous” under Washington law. Instead, since itsintroduction in 1975, the tort of outrage has been reserved forconduct that is “extreme,” “atrocious,” “beyond all possiblebounds of decency,” and “utterly intolerable in a civilizedcommunity.” Id. (citing Grimsby v. Samson, 85 Wn.2d 52, 59,530 P.2d 291 (1975)).Merz has not alleged any facts supporting the conclusionthat any defendant's conduct meets this high standard, and hecannot, as a matter of law.Defendants’ motion for judgment on the pleadings on Merz'soutrage claim is GRANTED and that claim is DISMISSEDwithout prejudice and without leave to amend.***Defendants’ Rule 12(c) motion for judgment on the pleadings,Dkt. 45, is GRANTED. All of plaintiff Merz's claims againstall defendants are DISMISSED with prejudice and without
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.11leave to further amend. The clerk shall enter a JUDGMENTand close the case.IT IS SO ORDERED.All CitationsSlip Copy, 2026 WL 411837Footnotes1A properly filed amended complaint generally moots a pending motion to dismiss. See Frazier v. City ofFresno, 2023 WL 1786228, at *1 (E.D. Cal Feb 6, 2023) (“Once an amended complaint is filed, the previouscomplaint becomes null and void, and generally any pending motion to dismiss that was directed at theprevious pleading will be thus rendered moot.”).An “emergency motion for leave to amend,” unaccompanied by a proposed amended complaint, does nothave the same effect. See Dkt. 22.2Merz's claims based on the ERPO are new. The rest of Merz's claims are revised, but they are not materiallydifferent than the claims the Court already dismissed.3Defendants’ list is:(1) “Indecent Images;”(2) “Background Checks/The Comic Book Controversy;”(3) “Christopher Jensen's Threats;”(4) “Being Silenced at the City Council;” and(5) “Protected Health Information (PHI) and the ERPO.”Dkt. 45 at 2. Merz's “indecent images” narrative implicates only a non-party, Attorney Satterfield. Dkt. 27 at49–50.4The Amended Complaint's “Count 5” combines Merz's federal Equal Protection and state law WLAD claims.Dkt. 27 at 39. Because these are separate claims with separate elements and defenses, they are addressedseparately.5Merz may be alluding to the fact he lost the Mayoral election, but that is hardly akin to being “stripped of office.”6Merz's amended complaint alleges that the ERPO petition was “materially false,” but does not identify whatassertion was false, or who wrote it, or what the truth was. Dkt. 27 at 25. Merz's allegation is (again) entirelyconclusory.7Merz's amended complaint asserts in its “Overview” that the individual conduct of which he generallycomplains was “often in direct contravention of City policy[.]” Dkt. 27 at 5 (emphasis added). This allegationcannot be squared with his later, inconsistent claims that the individual defendants acted pursuant tounwritten, unconstitutional City policies.
Merz v. City of Kalama, Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.128Merz acknowledges he is (properly) appealing the state court's ERPO to the state court of appeals. Dkt. 27at 25. This Court cannot interfere in that process.9Merz's repeated objections about Armand's conduct are not relevant; Armand is not a party. See Dkt. 48 at11–14. Notably, Merz does not assert that Armand was part of the broad conspiracy he alleges.10Merz filed this case in state court in May 2024. Dkt. 1-2.11Defendants correctly point out that RCW 70.02.050(c) permits a health care provider todisclose information without a patient's consent “to any person if the health care person …believes, in good faith, that [ ] disclosure is necessary to prevent or lessen a serious and imminentthreat to the health or safety of a person or the public.” Dkt. 45 at 9.12Merz's articulation of the law is reasonably accurate. See Life Designs Ranch v. Sommer, 191 Wash.App.320, 329 (2015). But his citation to Caruso v. Local Union 690, 107 Wn.2d 524, 529-30 (1987) is againmisleading. Dkt. 48 at 21. The cited Caruso pages dealt with the burden of proof on falsity. The words “perse,” “presumed,” and “specific proof” do not appear on those pages, or anywhere else in the opinion.End of Document© 2026 Thomson Reuters. No claim to original U.S. Government Works.
ProvenanceKnow exactly where this document came from.Members see the sourcing behind every authority on DocPost — so you can check the record yourself and cite with confidence.Request access