Unpublished Disposition, 857 F.2d 1477 (9th Cir. 1988)

No. 87-3758.

United States Court of Appeals, Ninth Circuit.

Before ALARCON and BEEZER Circuit Judges, THELTON E. HENDERSON,^**  District Judge.

MEMORANDUM^*** 

Dr. Richard H.L. German appeals pro se and in forma pauperis the district court's grant of summary judgment in favor of the Division of Vocational Rehabilitation, Department of Social and Health Services, in his action under 29 U.S.C. § 794 and 42 U.S.C. § 1983. We affirm.

* Dr. German sought vocational rehabilitation services from the Division of Vocational Rehabilitation (DVR), Department of Social and Health Services of the State of Washington. German seeks a law school education. After determining that he would not be expected to benefit from the requested vocational rehabilitation services, the DVR denied Dr. German's application. Dr. German subsequently filed a complaint seeking injunctive and declaratory relief in the form of a decree establishing his eligibility for vocational training and job placement services.

Dr. German's complaint alleged that (1) the DVR violated his rights under the anti-discrimination provision of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; (2) he had a cause of action under 42 U.S.C. § 1983 for violation of his fourteenth amendment due process and equal protection rights; and (3) the DVR was liable for intentional infliction of emotion distress under Washington law.

Upon motion by the DVR, the district court entered summary judgment against Dr. German on his claims based on 29 U.S.C. § 794 and 42 U.S.C. § 1983. The district court also dismissed the pendent state law claims for lack of jurisdiction. The district court reasoned:

[P]laintiff is not a person who is qualified in spite of his handicap ... and thus not an "otherwise qualified handicapped individual" for the purpose of 29 U.S.C. § 794. Moreover, it is clear that the plaintiff was not denied DVR services solely by reason of his handicap.

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[T]here was no express constitutional right to DVR services and the plaintiff has no legitimate claim of entitlement to benefits and thus no due process claim.

Dr. German timely appeals.

II

We review a grant of summary judgment de novo. Daring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). Our review is governed by the same standard used by the district court under Fed. R. Civ. P. 56(c). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir. 1986). The party opposing the summary judgment may not rest on conclusory allegations, but must set forth specific facts showing there is a genuine issue for trial. Fed. R. Civ. P. 56(e); Hutchinson v. United States, 838 F.2d 390, 393 (9th Cir. 1988); Mitchel v. General Electric Co., 689 F.2d 877, 879 (9th Cir. 1982).

III

Dr. German maintains that the district court's grant of summary judgment was inappropriate since "there are genuine issues of material fact that show that he is a qualified, [well] qualified and or otherwise qualified [individual]" under the Rehabilitation Act. Section 504 provides, in relevant part:

No otherwise qualified individual with handicaps in the United States, as defined in section 706(8) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance....

29 U.S.C. § 794. Section 706(8) (A) defines "individual with handicaps" as

any individual who (i) has a physical or mental disability which for such individual constitutes or results in a substantial handicap to employment and (ii) can reasonably be expected to benefit in terms of employability from vocational rehabilitation services.

The Supreme Court has reasoned that a handicapped person is "otherwise qualified" if he "is able to meet all of a program's requirements in spite of his handicap." Southeastern Community College v. Davis, 442 U.S. 397, 406 (1979). Washington law provides that to be eligible for vocational rehabilitation services, there must be a "reasonable expectation that vocational rehabilitation services may benefit the individual in terms of employability." Wash.Admin.Code Sec. 490-500-030; see also id. Sec. 490-500-005(7) (b).¹ 

To obtain relief under section 504, a plaintiff must show (1) that he is a handicapped within the meaning of the Act, (2) that he is "otherwise qualified" for the services sought, (3) that he is being excluded from the services solely by reason of his handicap, and (4) that the program in question receives federal financial assistance. Dempsey v. Ladd, 840 F.2d 638, 640 (9th Cir. 1987). The first and fourth elements are not contested. The principal controversy between the parties is the existence of a genuine issue of material fact as to whether Dr. German is an "otherwise qualified" handicapped individual and was excluded solely because of his handicap.

Dr. German applied for DVR vocational rehabilitation services in order to attend law school. Dr. German already possesses a Ph.D. in American History, an M.A., and a B.A. with honors, and has taught at the college level. He is diagnosed as having a schizaffective disorder with obsessive and paranoid traits. He has been involuntarily hospitalized for his mental condition and is presently receiving Social Security benefits based upon his mental disability.

The evidence forwarded by the DVR in its summary judgment motion demonstrates that it denied Dr. German's vocational rehabilitation benefits after taking into consideration his mental disability and other relevant factors such as his personality, demeanor in interviews, and past education. Dr. German was also examined and evaluated by professionals who expressed psychiatric opinions that vocational rehabilitation services were not feasible. Accordingly, the DVR determined that Dr. German would not reasonably be expected to benefit by further university education in terms of employability. See Wash.Rev.Code Sec. 490-500-005(7) (b); 29 U.S.C. 706(8) (A) (ii).

In the face of this evidence that Dr. German was not an otherwise qualified handicapped individual, Dr. German merely retorts in his brief that "Appellant avers otherwise.... Appellant avers that he is either qualified, well qualified and or otherwise qualified." As evidence of his potential for rehabilitation as a qualified individual, Dr. German offers his doctoral research, publications and papers, post-doctoral research activities as an untrained pro se in forma pauperis civil litigant, and other research activities. Although interesting, such self-serving evidence does not controvert the professional medical evidence offered by the DVR. Moreover, Dr. German does not adequately respond to DVR's evidence that its decision was not based solely on his handicap. Dr. German's unsubstantiated and conclusory allegations are insufficient to create a dispute as to a material fact. See Mitchel, 689 F.2d at 879.

Because Dr. German fails to set forth specific facts showing a genuine issue of material fact that (1) he was an "otherwise qualified" handicapped person or (2) that he was denied services solely because of his handicap, we affirm the district court's grant of summary judgment.

IV

Dr. German's complaint also alleged a cause of action under 42 U.S.C. § 1983 for violation of his fourteenth amendment rights. To make out a cause of action under section 1983, a plaintiff must plead that (1) the defendant acted under color of state law and (2) such conduct deprived plaintiff of rights secured by the Constitution or federal statutes. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 107 S. Ct. 928 (1982). Dr. German has failed to show a genuine issue of material fact that he was deprived of rights under federal statutes or the Constitution. As to his rights under section 504 of the Rehabilitation Act, 29 U.S.C. § 794, we reasoned in part III that there was no genuine issue of a violation thereunder.

Moreover, the district court properly concluded that Dr. German had no express constitutional right to DVR benefits. Only if a property interest attached would any deprivation thereof be recognizable under section 1983. See Board of Regents v. Roth, 408 U.S. 564, 576-78 (1972).

To have a property interest in the DVR benefits, Dr. German must have more than an abstract need or desire for it. Id. at 577. "He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. The mere expectation of receiving a benefit is not enough to create a protected interest. Roberts v. Spalding, 783 F.2d 867, 870 (9th Cir.), cert. denied, 107 S. Ct. 399 (1986). Because Dr. German did not meet the criteria for DVR vocational rehabilitation services, he had no legitimate claim of entitlement or a property interest in such benefits. As the Supreme Court has reasoned, the fourteenth amendment's procedural protection of property "is a safeguard of the security of interests that a person has already acquired in specific benefits." Roth, 408 U.S. at 576 (emphasis added). Accordingly, Dr. German's claim under section 1983 fails.

V

Because we conclude that there is no genuine issue of material facts and that the DVR is entitled to judgment as a matter of law, we affirm.²  The mandate shall issue forthwith. Costs are awarded in favor of the DVR.

AFFIRMED.