-GWF Holman v. Logisticare Solutions, LLC et al, No. 2:2010cv00169 - Document 57 (D. Nev. 2011)
Court Description: ORDER Granting 44 Defendant's Motion for Summary Judgment on plaintiff's federal claims. IT IS FURTHER ORDERED that the court remands plaintiff's remaining claims to the Eighth Judicial District Court. Signed by Judge Howard D. McKibben on 3/9/11. (Copies have been distributed pursuant to the NEF - cc: 8th Judicial District court - EDS)
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-GWF Holman v. Logisticare Solutions, LLC et al Doc. 57 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 17 GERALDINE HOLMAN, ) ) Plaintiff, ) ) vs. ) ) LOGISTICARE SOLUTIONS, LLC, et ) al., ) ) Defendants. ) _________________________________ ) 2:10-cv-00169-HDM-PAL ORDER Before the court is defendants’ motion for summary judgment 18 (#44). 19 (#50). 20 Plaintiff has opposed (#48), and defendants have replied On January 13, 2010, plaintiff Geraldine Holman (“plaintiff”) 21 filed a complaint in state court against defendants Logisticare 22 Solutions (“Logisticare”), Nevada Medical Transportation (“NMT”), 23 and Rudolph Ingram (“Ingram”). 24 negligence, fraud, and violation of the Americans with Disabilities 25 Act (“ADA”) and Rehabilitation Act against both NMT and 26 Logisticare, negligent hiring, training, and supervision against 27 NMT, and negligence as transportation broker against Logisticare. 28 On February 8, 2010, Logisticare removed to this court. Plaintiff’s complaint asserts On April 1 Dockets.Justia.com 1 5, 2010, plaintiff voluntarily dismissed Ingram. 2 NMT and Logisticare remain as defendants. 3 Accordingly, only Plaintiff is a wheelchair-bound person who has a history of 4 many severe medical problems, including poorly controlled diabetes 5 and forefoot amputations. 6 contracted with the State of Nevada to provide transportation 7 services for disabled Medicaid patients, such as plaintiff. 8 now defunct, was the transportation provider Logisticare hired to 9 provide plaintiff transportation in this case. 10 Logisticare is a transportation broker NMT, On February 26, 2008, plaintiff was being placed on the lift 11 facing the van by the NMT driver. 12 At the top of the lift, the driver let go of the wheelchair, 13 causing plaintiff to roll forward. 14 shin hit some part of the vehicle, either the wall of the van or a 15 gate at the top of the lift that prevents chairs from rolling into 16 the van or the metal part of a fold-down bench – the claims and 17 testimony differ. 18 leg was bruised and she was in pain. The van was parked on a slope. Plaintiff’s ankle and lower Plaintiff claims that after the incident, her 19 On March 14, 2008, two weeks and two days after the incident, 20 plaintiff went to the emergency room complaining of a migraine and 21 forefoot swelling. 22 below the knee. 23 incident on NMT’s van. On March 17, 2008, her right leg was amputated Plaintiff attributes the amputation to the 24 Summary judgment is appropriate “if the movant shows that 25 there is no genuine dispute as to any material fact and the movant 26 is entitled to judgment as a matter of law.” 27 56(a). 28 outcome of the litigation and requires a trial to resolve the Fed. R. Civ. P. A material issue of fact is one that could affect the 2 1 differing versions of the truth. 2 Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986). 3 demonstrating the absence of a genuine issue of material fact lies 4 with the moving party. 5 157 (1970). 6 favorable to the party opposing the motion. 7 Los Angeles, 141 F.3d 1373, 1378 (9th Cir. 1998). Lynn v. Sheet Metal Workers’ The burden of Adickes v. S.H. Kress & Co., 398 U.S. 144, The evidence is therefore viewed in the light most Martinez v. City of 8 Once the moving party presents evidence that would call for 9 judgment as a matter of law at trial if left uncontroverted, the 10 respondent must show by specific facts the existence of a genuine 11 issue for trial. 12 250 (1986). 13 sufficient evidence favoring the nonmoving party for a jury to 14 return a verdict for that party. 15 colorable, or is not significantly probative, summary judgment may 16 be granted.” 17 of evidence will not do, for a jury is permitted to draw only those 18 inferences of which the evidence is reasonably susceptible; it may 19 not resort to speculation." 20 F.2d 946, 952 (9th Cir. 1978). 21 makes the non-moving party’s claim of a disputed fact implausible, 22 then that party must come forward with more persuasive evidence 23 than otherwise would be necessary to show there is a genuine issue 24 for trial.” 25 (9th Cir. 1998). 26 factual data cannot defeat a motion for summary judgment. 27 v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). 28 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, “[T]here is no issue for trial unless there is If the evidence is merely Id. at 249-50 (citations omitted). “A mere scintilla British Airways Bd. v. Boeing Co., 585 Moreover, “[i]f the factual context Blue Ridge Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 Finally, conclusory allegations unsupported by Taylor Plaintiff asserts that defendants violated the ADA and the 3 1 Rehabilitation Act by failing to take reasonable steps to ensure 2 plaintiff equal and safe access. 3 under both Title II and Title III. 4 injunctive relief. 5 Plaintiff brings her ADA claim She does not seek any Defendants argue that plaintiff is entitled to only injunctive 6 relief under the statutes cited and that because she has not 7 requested such relief, her claim must fail. 8 that she is entitled to monetary damages under four theories: (1) 9 common law negligence; (2) the Rehabilitation Act; (3) the ADA; and Plaintiff responds 10 (4) ADA negligence per se under Title III. 11 defendants’ arguments plaintiff does not contend that she seeks 12 injunctive relief. 13 In response to Common law negligence and negligence per se are state law 14 claims separate from plaintiff’s ADA and Rehabilitation Act 15 claims.1 16 to monetary damages under those theories in connection with her 17 federal claims is without merit. Accordingly, plaintiff’s assertion that she is entitled 18 Insofar as the Rehabilitation Act and Title II of the ADA are 19 concerned, the case law is clear that compensatory damages are not 20 available under either statute absent a showing of intentional 21 discrimination. 22 254 F.3d 846, 851 (9th Cir. 2001). 23 discrimination in this context, the plaintiff must show the 24 defendant was deliberately indifferent. 25 Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). Midgett v. Tri-County Metro. Transp. Dist. of Or., To show intentional Duvall v. County of “Deliberate 26 1 27 28 Smith v. Wal-Mart Stores, Inc., 167 F.3d 286 (6th Cir. 1999) is clear that while a violation of ADA provisions might support a negligence per se claim, such a claim would arise under state law, and would depend on whether the state recognizes such a claim. See id. at 292-95. 4 1 indifference requires both the knowledge that a harm to a federally 2 protected right is substantially likely, and a failure to act upon 3 that likelihood.” 4 element of the test, a failure to act must be a result of conduct 5 that is more than negligent and involves an element of 6 deliberateness. 7 negligent conduct. 8 shows there is an issue of material fact supporting a claim of 9 deliberate indifference. Id. at 1139. Id. In order to meet the second At the most, the incident here involves Plaintiff has not advanced any evidence that The ADA regulations “do not contemplate 10 perfect service for wheelchair-using bus commuters.” 11 F.3d at 849. 12 relief, no remedies are available to her under Title II of the ADA 13 or the Rehabilitation Act. Midgett, 254 As plaintiff has not asserted a claim for injunctive 14 Nor are compensatory damages available under Title III. 15 Wander v. Kaus, 304 F.3d 856, 858 (9th Cir. 2002) (Title III 16 remedies are the same as those contained in 42 U.S.C. § 2000a-3(a), 17 which provide for only injunctive relief).2 18 the discretion to award attorney’s fees to the prevailing party in 19 a Title III action, 42 U.S.C. § 12205, Molski v. M.J. Cable, Inc., 20 481 F.3d 724, 730 (9th Cir. 2007), the plaintiff cannot be a 21 prevailing party under Title III where she does not seek relief 22 available under Title III. While the court has 23 Plaintiff has not asserted a claim for punitive damages in her 24 complaint in connection with her ADA and Rehabilitation Act claims, 25 and such damages are not available under those statutes. 26 27 28 2 Plaintiff’s assertion that this case is inapposite is without merit. The general rule stated therein applies outside the context of subject matter jurisdiction. 5 1 The defendant’s motion for summary judgment (#44) is GRANTED 2 on plaintiff’s federal claims. 3 federal claims, the court declines to exercise supplemental 4 jurisdiction over her state law claims. 5 actuate supplemental jurisdiction if it has dismissed all claims 6 over which it has original jurisdiction. 7 see Moore v. Kayport Package Express, Inc., 885 F.2d 531, 537 (9th 8 Cir. 1989). 9 jurisdiction, it may remand the state law claims for further Having dismissed plaintiff’s A district court need not 28 U.S.C. § 1367(c)(3); Where the court declines to exercise supplemental 10 proceedings. 11 (9th Cir. 2010). 12 remaining claims, all of which are state law claims, to the Eighth 13 Judicial District Court, in and for the county of Clark Nevada. Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1023 Accordingly, the court hereby remands plaintiff’s 14 IT IS SO ORDERED. 15 DATED: This 9th day of March, 2011. 16 17 ____________________________ UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28 6
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