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United States of America v. Richard Retta

January 10, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RICHARD RETTA,
DEFENDANT.



The opinion of the court was delivered by: James E. Boasberg United States District Judge

MEMORANDUM OPINION AND ORDER

In bringing this suit, the Government claims Defendant Richard Retta violated the Freedom of Access to Clinic Entrances (FACE) Act, 18 U.S.C. § 248, when he interfered with a patient who was attempting to enter a Planned Parenthood clinic and the escorts who were assisting her. Retta has now filed a Motion to Dismiss, contending that the Complaint suffers from three defects. First, he maintains that the Government failed to plead that the patient was in fact obtaining, and the escorts were in fact providing, reproductive health services. Second, he argues that the Complaint lacks allegations sufficient to establish that Retta acted with the requisite motivation. Third, he insists that the Government is not statutorily authorized to seek a liquidated damages award of $5,000 on behalf of the alleged victims.

Although the Government's Complaint could certainly benefit from the addition of some fuller factual allegations, the Court believes it suffices to survive the Motion. The Court will also reject Retta's challenge to the liquidated damages remedy, which it interprets as a Motion to Strike.

I.Background

In 1994, "[r]eacting to a nationwide pattern of blockades, vandalism, and violence aimed at abortion clinics and their patients and employees, Congress enacted the [FACE] Act." Terry v. Reno, 101 F.3d 1412, 1414 (D.C. Cir. 1996) (citing 18 U.S.C. § 248). The statute provides penalties for and remedies against an individual who "by force or threat of force or by physical obstruction, intentionally injures, intimidates or interferes with or attempts to injure, intimidate or interfere with any person because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services." 18 U.S.C. § 248(a)(1).

In this case, the Government contends that Retta, a "regular anti-abortion protestor at the Planned Parenthood of Metropolitan Washington," Compl., ¶ 5, violated the FACE Act on January 8, 2011, when he "physically obstructed a patient from entering the Clinic, and physically obstructed Clinic escorts, such that the patient was only able to ultimately access the Clinic with the extraordinary assistance and intervention of another Clinic escort and staff." Id., ¶ 16. According to the Complaint, which, for purposes of the instant Motion, must be taken as true, Retta began speaking to the patient in front of the Clinic gate at approximately 11:20 am. Id., ¶ 17. After she "became visibly upset," two volunteer escorts offered to accompany her to the Clinic so that she "would not have to talk to [Retta]." Id., ¶¶ 18-19.

Retta walked alongside the patient and the two escorts for nearly the entire length of the approximately 35-foot walkway from the sidewalk to the Clinic door, shouting at the escorts as he went. Id., ¶¶ 19-20. About six feet from the entrance, Retta positioned himself immediately in front of the patient and the escorts and yelled, "Don't go in there. Don't let them kill your baby." Id., ¶¶ 20-22. The escorts repeatedly asked him to move out of the patient's way and attempted to guide her past him. Id., ¶ 21. Each time they tried to walk around him, however, Retta "shifted his position, weaving to step in front of the patient" and preventing both the patients and the escorts from accessing the Clinic. See id., ¶ 23-24. It was only after a third escort "physical planted himself next to [Retta], preventing [him] from continuing to block the patient," and a security officer from the Clinic's front desk exited the Clinic to assist in guiding the patient inside the Clinic that she was able to enter. See id., ¶ 25.

On July 14, 2011, the United States filed a Complaint asserting a civil cause of action under the FACE Act. The Government seeks an Order, inter alia, prohibiting Retta from entering or coming near the Clinic gate and from committing further violations of the FACE Act, an award of statutory compensatory damages of $5,000 for "the three victims" of Retta's allegedly unlawful activity, and a civil penalty assessment in the amount of $10,000. See Compl., ¶ 35. Retta has now filed a Motion to Dismiss under Rule 12(b)(6), claiming that the United States has failed to plead a claim upon which relief can be granted.

II.Legal Standard

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails "to state a claim upon which relief can be granted." When the sufficiency of a complaint is challenged under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be liberally construed in plaintiff's favor. Leatherman v. Tarrant Cty. Narcotics & Coordination Unit, 507 U.S. 163, 164 (1993). The notice pleading rules are "not meant to impose a great burden on a plaintiff," Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005), and he or she must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584 (2007). Although "detailed factual allegations" are not necessary to withstand a Rule 12(b)(6) motion, Twombly, 550 U.S. at 555, "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, 129 S. Ct. 1937, 1949 (2009) (internal quotation omitted). Plaintiff must put forth "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Though a plaintiff may survive a 12(b)(6) motion even if "recovery is very remote and unlikely," Twombly, 550 U.S. at 555 (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)), the facts alleged in the complaint "must be enough to raise a right to relief above the speculative level." Id. at 555.

A motion to dismiss under Rule 12(b)(6) must rely solely on matters within the complaint, see Fed. R. Civ. P. 12(d), which includes statements adopted by reference as well as copies of written instruments joined as exhibits. Fed. R. Civ. P. 10(c).

III.Analysis

Our Circuit has held that "[t]o make out a violation [of the FACE Act] the Government ha[s] to prove that the defendant[ ] 1) by physical obstruction, 2) intentionally 3) injured, intimidated or interfered with or attempted to injure, intimidate or interfere with any person, 4) because that person is or has been obtaining or providing reproductive health services." United States v. Mahoney, 247 F.3d 279, 282 (D.C. Cir. 2001) (internal quotations omitted) (citing 18 U.S.C. ยง 248(a)(1)). Retta challenges the sufficiency of the Government's pleadings in three respects. First, he contends that the Government was required to - and did not - plead that the patient and the escorts were in fact obtaining or providing reproductive health services. Second, he asserts that the ...


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