NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PHILIP WOLFE, KATALINA DURDEN, 

and JACKSON TUDELA, 

Plaintiffs-Appellants, 

 v. 

CITY OF PORTLAND, an Oregon 

municipal corporation; and COUNTY OF 

MULTNOMAH, a political subdivision of 

the State of Oregon, et al.,

Defendants-Appellees.

No. 22-35530

D.C. No. 3:20-cv-01882-SI

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Argued and Submitted August 23, 2023 

Portland, Oregon

Before: BENNETT, VANDYKE, and H.A. THOMAS, Circuit Judges.

Appellants are individuals with disabilities and an associate: Philip Wolfe is 

deaf, Katalina Durden is blind, and Jackson Tudela is Durden’s sighted guide. They 

allege they were injured when police broke up unlawful assemblies or riots in 

* This disposition is not appropriate for publication and is not precedent except as 

provided by Ninth Circuit Rule 36-3.

FILED

AUG 30 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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Portland in 2020 by deploying crowd-control measures before Appellants could 

leave the vicinity. Appellants filed suit against the City of Portland and the County 

of Multnomah, asking the district court (1) to declare that Portland’s crowd-control 

policies violate Section 504 of the Rehabilitation Act and Title II of the Americans 

with Disabilities Act (ADA); (2) to issue preliminary and permanent injunctions 

mandating modifications to those policies; and (3) to award them compensatory 

damages. 

The district court dismissed their claims for declaratory and injunctive relief 

as moot, dismissed their claims for damages as insufficiently alleged under Rule 

12(b)(6) of the Federal Rules of Civil Procedure, and dismissed their suit with 

prejudice. Appellants appeal dismissal. We review both dismissals for mootness 

and dismissals under Rule 12(b)(6) de novo. Dep’t of Fish & Game v. Fed. 

Subsistence Bd., 62 F.4th 1177, 1179 (9th Cir. 2023); Disability Rts. Mont., Inc. v. 

Batista, 930 F.3d 1090, 1096 (9th Cir. 2019).

“Dismissal on mootness grounds is ‘justified only if it [is] absolutely clear 

that the litigant no longer ha[s] any need of the judicial protection that it sought.’” 

Pizzuto v. Tewalt, 997 F.3d 893, 903 (9th Cir. 2021) (alterations in original) (quoting 

Council of Ins. Agents & Brokers v. Molasky-Arman, 522 F.3d 925, 933 (9th Cir. 

2008)). Appellees have identified significant intervening changes in state law and 

Portland police crowd-control procedures that collectively provide accommodations 
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that match and exceed the ones Appellants sought with respect to communication of 

orders to disperse and allowance of enough time for disabled protesters to evacuate 

the vicinity of the riots or unlawful assemblies. See Or. Rev. Stat. §§ 131.675, 

162.247(3), 181A.708; Portland Police Bureau Internal Directive 635.10 §§ 5.7–.8, 

8.4.2.2. And they chronicled the precipitous decrease in violent protests in Portland, 

as well as the cessation of police interventions akin to those alleged in Appellants’ 

complaint in any protest, since Appellants filed their complaint. Appellants no 

longer have any need of judicial protection, as they already have obtained the relief 

they sought.

To defeat Appellees’ motions to dismiss their damages claims, Appellants 

needed to plead facts that would allow a court to reasonably infer that each Appellee 

engaged in the injurious conduct they challenge. Ashcroft v. Iqbal, 556 U.S. 662, 

678 (2009); accord Weston Fam. P’ship LLLP v. Twitter, Inc., 29 F.4th 611, 617 

(9th Cir. 2022). For damages under Section 504 of the Rehabilitation Act or Title II 

of the ADA, Appellants had to allege nonspeculative facts that each Appellee was 

on notice of Appellants’ need for reasonable accommodations to equally participate 

in protests, but was deliberately indifferent to that need. Bax v. Drs. Med. Ctr. of 

Modesto, Inc., 52 F.4th 858, 865–68 (9th Cir. 2022) (Section 504); Csutoras v. 

Paradise High Sch., 12 F.4th 960, 969 (9th Cir. 2021) (Title II).
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Appellants reference pages in their complaint where they claim they did so 

with respect to each Appellee. But those pages do not plead any facts specific to the 

county: they merely make undifferentiated allegations that lump together the city 

and county Appellees, which does not satisfy the requirement that a complaint 

contain “clear and concise averments stating which defendants are liable to plaintiffs 

for which wrongs.” McHenry v. Renne, 84 F.3d 1172, 1178 (9th Cir. 1996). Nor 

did Appellants offer sufficient facts with respect to the City of Portland. The pages

of their complaint that they purport contain specific and detailed allegations that the 

city should have known that its crowd-control policies and procedures were not 

effective at communicating with Appellants, contain only generic allegations and 

bald legal conclusions. And the pages Appellants point to as evidence that they 

made specific and detailed factual allegations about their unsuccessful attempts to 

obtain specific types of relief from the city do not mention making such attempts. 

Accordingly, the district court correctly concluded that Appellants’ claims for 

declaratory and injunctive relief were mooted by intervening events and that their 

claims for Rehabilitation Act and ADA compensatory damages insufficiently 

pleaded deliberate indifference. The district court properly granted Appellees’ 

motions to dismiss. 

AFFIRMED.