Seklecki v. Ctr. for Disease Control & Prevention

635 F.Supp.3d 15

Michael SEKLECKI, Plaintiff, v. CENTER FOR DISEASE CONTROL & PREVENTION, et al., Defendants.

Civil Action No. 22-10155-PBS

United States District Court, D. Massachusetts

Signed October 12, 2022

Michael Seklecki, Lake Mary, FL, Pro Se.

Stephen Michael Pezzi, United States Department of Justice, Civil Division, Washington, DC, Andrew Freidah, DOJ-Civ, Civil Division, Federal Programs Branch Washington, DC, for Defendants Centers for Disease Control & Prevention, Department of Health & Human Services.

Christopher A. Duggan, Smith Duggan Buell & Rufo LLP, Lincoln, MA, M. Roy Goldberg, Pro Hac Vice, Milton Roy Goldberg, Stinson Leonard, Washington, DC, Pauline A. Jauquet, Law Office of Martin B. Schneider P.C., Salem, MA, for Defendants American Airlines, Southwest Airlines.

MEMORANDUM AND ORDER

Saris, District Judge

INTRODUCTION

Plaintiff Michael Seklecki, on behalf of himself and his minor child, M.S., brings this multi-count action against American Airlines and Southwest Airlines (the "Airline Defendants") alleging that their requirement that passengers wear masks during the COVID-19 pandemic violated numerous state, federal, and international laws. See Dkt. 1 at 3.¹ The Airline Defendants have moved to dismiss counts 12 through 33 of the Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

After hearing, the Court ALLOWS the Airline Defendants' motion.

BACKGROUND

The pro se Complaint alleges the following facts. The Court draws all reasonable inferences in favor of Plaintiff.

I. The Federal Mask Mandate

On January 21, 2021, President Biden issued an Executive Order titled "COVID-19 Safety in Domestic and International Travel." Exec. Order No. 13998, 86 Fed. Reg. 7205 (Jan. 26, 2021). Following the Executive Order, the CDC and HHS issued the Federal Transportation Mask Mandate ("FTMM"). Specifically, the CDC issued an order, "Requirement for Persons to Wear Masks While on Conveyances and at Transportation Hubs." 86 Fed. Reg. 8025 (Feb. 3, 2021). This order mandated that persons wear masks while on public transportation conveyances like airplanes, but allowed exemptions for children under the age of two and persons with disabilities who cannot safely wear a mask.

II. The Plaintiff and His Son

Seklecki resides with M.S. in Sanford, Florida. They fly to Boston, Massachusetts frequently because M.S. requires specialized medical care at Boston Children's Hospital. Since about June 2021, Seklecki has had to fly with M.S. to Boston one to two times per month for critical medical care. Seklecki alleges that masking gives him a feeling of panic and breathing difficulties because of his Generalized Anxiety Disorder, and M.S. cannot tolerate a mask because of his Autism Spectrum Disorder. When Seklecki attempts to put a mask on his son's face, M.S. refuses and yells that he is scared, cannot breath, or that he does not like the mask. M.S.'s doctor corroborated that M.S. could not medically tolerate a mask.

Because of the COVID-19 pandemic, the airlines required passengers to wear masks while on flights and implemented various procedures governing requested exemptions from the mask requirement. Seklecki has had difficulty navigating these procedures, particularly as they relate to the trips to Boston for M.S.'s medical treatment. He has had to cancel flights with Southwest and American because of their exemption policies. For example, Seklecki and M.S. had tickets booked on Southwest to fly from Orlando, Florida to Boston in October 2021. After booking the tickets, Seklecki called Southwest's customer service center to tell airline staff that he and M.S. had medical conditions that prevented them from wearing masks. The Southwest agent told him that if they did not submit a form at least seven days in advance with a doctor's note, they could be refused travel. The customer service representative told Seklecki that there were no guarantees that the corporate office would approve their exemptions, even if they had a physician's note. Because of this, Seklecki cancelled his tickets with Southwest and received credits.

Seklecki also booked a ticket with American to fly from Orlando to Phoenix, Arizona on November 12, 2021. He submitted a request for mask exemptions to American. On November 10, he received a call from the American Airlines Disability Desk saying they could not process his mask exemption because it had to be submitted at least 72 hours in advance of a flight. The American employee said that she would email Seklecki information about American's mask policy, adding that a doctor's note was required for an exemption. He received the list of requirements to obtain a mask waiver on November 10. Plaintiff had to cancel this flight because his mask exemption was denied.

STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a claim, "a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Two basic principles guide the court's analysis. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 679, 129 S.Ct. 1937. A claim is facially plausible if the factual content "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937.

A pro se complaint "is to be liberally construed" and should "be held to less stringent standards than formal pleadings drafted by lawyers." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976) (internal citation and quotation marks omitted). At the same time, "[t]he right of self-representation is not 'a license not to comply with relevant rules of procedural and substantive law.' " Andrews v. Bechtel Power Corp., 780 F.2d 124, 140 (1st Cir. 1985) (quoting Faretta v. Cal., 422 U.S. 806, 835 n.46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)).

DISCUSSION

I. Civil Conspiracy

Plaintiff claims that the Airline Defendants and unnamed airline employees are liable under 42 U.S.C. § 1985(3) for "conspir[ing] to deprive disabled Americans . . . of [their] civil rights by adopting policies in Summer 2020 that banned anyone medically unable to wear a face mask from using the nation's air-transportation" and that unnamed airline employees are liable under 42 U.S.C. § 1986 because they "were aware of the conspiracy . . . but did nothing to stop it." Dkt. 1 at 93-95.

Federal law prohibits two or more persons from conspiring to deprive "any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws." 42 U.S.C. § 1985(3). A claimant under section 1985(3) must establish "some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' actions." Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). An actionable claim under section 1985(3) must allege the existence of:

(1) a conspiracy; (2) a conspiratorial purpose to deprive a person or class of persons, directly or indirectly, of the equal protection of the laws or of equal privileges and immunities under the laws; (3) an overt act in furtherance of the conspiracy; and (4) either (a) an injury to person or property, or (b) a deprivation of a constitutionally protected right or privilege.

Aulson v. Blanchard, 83 F.3d 1, 3 (1st Cir. 1996) (citing Griffin, 403 U.S. at 102, 91 S.Ct. 1790).

42 U.S.C. § 1986 provides that every person with knowledge of a conspiracy under section 1985, but who fails to prevent the conspiracy, is liable to the injured party. "A prerequisite for a claim under section 1986 is the existence of a conspiracy actionable under section 1985." Lowden v. William M. Mercer, Inc., 903 F. Supp. 212, 218 (D. Mass. 1995) (cleaned up).

A. Section 1985(3)

The Airline Defendants argue that Plaintiff cannot press his disability-based discrimination claims under section 1985(3) because the Air Carrier Access Act of 1986 ("ACAA"), 49 U.S.C. § 41705, already provides administrative regulations and procedures to respond to complaints against airlines for disability discrimination. The Court agrees.

The ACAA provides,

[A]n air carrier . . . may not discriminate against an otherwise qualified individual on the following grounds: (1) the individual has a physical or mental impairment that substantially limits one or more major life activities; (2) the individual has a record of such an impairment; (3) the individual is regarded as having such an impairment.

49 U.S.C. § 41705(a).

In an analogous context, the Supreme Court has held that "§ 1985(3) may not be invoked to redress violations of Title VII" because if a plaintiff were allowed to assert a Title VII violation through section 1985(3), then he could avoid the "detailed and specific provisions of the law" and "bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII." Great Am. Fed. Sav. & Loan Ass'n v. Novotny, 442 U.S. 366, 375-78, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979). Thus, when a statute creates a right and provides a remedial structure, a plaintiff cannot use section 1985(3) to vindicate the same right. See id.

In D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43-44 (1st Cir. 2012), the First Circuit held that plaintiffs could not assert Rehabilitation Act and Americans with Disabilities Act claims through section 1985(3), explaining that section 1985 does not create substantive rights but provides remedies for violations of rights created by other sources of law. See also Sauter v. State of Nev., No. 97-15795, 1998 WL...