Amerson v. Clark County et al, No. 2:2010cv01071 - Document 54 (D. Nev. 2014)

Court Description: ORDER Granting 41 Motion for Summary Judgment. The Clerk is ordered to close this case. Signed by Judge Roger L. Hunt on 1/21/14. (Copies have been distributed pursuant to the NEF - MMM)
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Amerson v. Clark County et al Doc. 54 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 11 12 13 14 15 CONSANDRA AMERSON, ) ) Plaintiff, ) ) vs. ) ) CLARK COUNTY, et al., ) ) Defendants. ) _______________________________________) Case No.: 2:10-cv-1071-RLH-RJJ ORDER (Motion for Summary Judgment – #41) 16 Before the Court is Defendant Clark County’s (“Clark County”) Motion for 17 18 Summary Judgment (#41, November 1, 2013). The Court has also considered Plaintiff Consandra 19 Amerson’s (“Amerson”) Response (#44, December 16, 2013), and Clark County’s Reply. (#53, 20 December 31, 2013). For the reasons discussed below, the Court grants the motion. 21 22 23 BACKGROUND 1. Factual Background This case arises out of alleged disability discrimination. In 1997, Amerson was 24 hired by Clark County as Juvenile Probation Officer. In June 2007, during a training course, 25 Amerson suffered an on-the-job accidental injury to her cervical and lumbar spinal areas. In 26 January 2008, Amerson underwent spinal reconstruction surgery. Amerson’s physician imposed AO 72 (Rev. 8/82) 1 1 restrictions on her work prescribing only light duty work, no repetitive back or neck motions, and 2 no lifting of weight greater than 20 pounds. Additionally, Amerson’s physician determined that 3 she would be unable to work as a Juvenile Probation Officer in the foreseeable future due to the 4 restrictions. 5 In May 2008, Amerson received a letter from Clark County indicating that pursuant 6 to county policy, if Amerson could not return to work as a Juvenile Probation Officer in full duty 7 capacity by June 19, the county would institute medical separation proceedings. Once Clark 8 County was apprised of Amerson’s restrictions by her physician, Clark County offered Amerson a 9 lateral transfer to the Department of Family Services. However, Clark County removed Amerson 10 from the position one week later because one of the essential duties of the position in the 11 Department of Family Services position was a restricted activity Amerson could not perform. 12 In July 2008, Clark County began the medical separation procedures, which 13 required a 30-day search for an alternative position for which Amerson would be qualified. After 14 the 30-day search yielded no alternative positions, Clark County scheduled a medical separation 15 pre-termination hearing (“Step I”). During the Step I hearing, Amerson was told she might be 16 eligible for Public Employees’ Retirement System (“PERS”) disability retirement. Once she 17 determined she was approved for PERS disability retirement, Clark County told Amerson that she 18 would need to send a letter to Clark County indicating her intent to pursue medical retirement so 19 that medical separation would no longer be necessary. Additionally, Amerson was told that she 20 could pursue an Americans with Disabilities Act (“ADA”) accommodation by contacting the Clark 21 County Office of Diversity. Amerson failed to do either and accordingly, Clark County scheduled 22 another Step I hearing. 23 Before the second Step I hearing, Amerson met with the Office of Diversity and 24 expressed her desire to continue working with accommodations. The Office of Diversity 25 determined Amerson had a disability under the ADA, but could not perform the duties of Juvenile 26 Probation Officer with or without accommodation. Thus, the Office of Diversity recommended AO 72 (Rev. 8/82) 2 1 medical separation. Another 30-day search for an alternative position for which Amerson would be 2 qualified took place. However, there was no vacant position for which Amerson qualified. 3 Ultimately, Amerson was medically separated. 4 Amerson instituted a grievance against the medical separation (“Step II”). During 5 the Step II hearing, Amerson was told that three vacant positions had been identified, but that she 6 did not qualify for the positions because they required defensive tactics, which was in violation of 7 her restrictions. As Amerson did not qualify for the vacant positions, the Step II grievance was 8 denied. However, as Amerson’s restrictions prevented her from returning to her position as a 9 Juvenile Probation Officer, and Clark County did not have a position for which she qualified, 10 Amerson was eligible for vocational rehabilitation services under the Nevada Vocational 11 Rehabilitation statutes. Clark County offered Amerson vocational rehabilitation but Amerson 12 refused to sign the vocational rehabilitation program agreement because she did not have time to 13 review it prior to signing. Her failure to sign the program agreement caused Clark County to 14 terminate her vocational rehabilitation services. Amerson appealed the termination of vocational 15 rehabilitation services. Eventually, Clark County settled Amerson’s termination appeal pursuant to 16 a Stipulated Settlement and Order (“Vocational Rehabilitation Settlement”), whereby Amerson 17 would receive $13,000.00 as a lump-sum vocational rehabilitation buy-out in exchange for 18 dismissing her appeal. 19 The Vocational Rehabilitation Settlement provided that: “the disputed issues and 20 contested matters involved in [the] appeal [would] be settled and resolved,” Amerson had been 21 employed by Clark County as a Juvenile Probation Officer, Amerson “sustained an industrial 22 injury by accident” while on the job, Amerson “was found to have permanent restrictions . . . and 23 vocational rehabilitation maintenance benefits were instituted,” “her restrictions could not be 24 accommodate (sic) by her employer, and that [Amerson] was placed in vocational rehabilitation.” 25 Additionally, the Vocational Rehabilitation Settlement stated that Amerson wished to elect a 26 lump-sum buyout “rather than proceed with vocational rehabilitation services,” Amerson AO 72 (Rev. 8/82) 3 1 acknowledged receipt of the buyout was “to obtain or develop a job within her physical 2 restrictions,” Clark County would pay Amerson $13,000.00 to buyout her claim to vocational 3 rehabilitation services, the agreement was to settle facts particular to the appeal, and the appeal 4 would be dismissed with prejudice. Clark County and Amerson, both represented by counsel, 5 signed the Vocational Rehabilitation Settlement and the agreement became final three-days later. 6 Clark County mailed Amerson a check for $13,000.00 to fulfill the terms of the agreement. Despite the Vocational Rehabilitation Settlement, Amerson continues to maintain 7 8 that Clark County could have accommodated her disabilities by placing her in alternative 9 positions. 10 2. Procedural Background Amerson filed her Complaint against Clark County and its affiliated departments in 11 12 July 2010. (#1). Amerson alleged that Clark County violated the ADA when it failed to 13 accommodate her disability by reassigning her to a sedentary position and that Clark County 14 constructively terminating her by forcing her to medically retire. (Id.) After filing its answer, Clark 15 County moved to dismiss the complaint arguing that Amerson was collaterally estopped from 16 disputing Clark County’s ability to accommodate her disability because of the stipulations in the 17 Vocational Rehabilitation Settlement. (#13). The Court granted the motion to dismiss, (#21), and 18 Amerson appealed. (#25). Citing Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 19 (1999), the Ninth Circuit reversed and remanded the case because Amerson “must have an 20 opportunity to provide a ‘sufficient explanation’ for the contradiction presented by the stipulated 21 admission and her ADA claim.” (#36 at 2). On remand, Clark County has moved for summary 22 judgment. 23 24 25 26 AO 72 (Rev. 8/82) DISCUSSION 1. Legal Standard The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t of Agric., 18 F.3d 4 1 1468, 1471 (9th Cir.1994). Summary judgment is appropriate when “the pleadings, the discovery 2 and disclosure materials on file, and any affidavits show there is no genuine issue as to any 3 material fact and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c); 4 see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is a 5 sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party 6 and a dispute is “material” if it could affect the outcome of the suit under the governing law. 7 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). Where reasonable minds could 8 differ on the material facts at issue, however, summary judgment is not appropriate. Warren v. 9 City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995). “The amount of evidence necessary to raise a 10 genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties’ differing 11 versions of the truth at trial.’” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) 12 (quoting First Nat’l Bank v. Cities Service Co., 391 U.S. 253, 288–89 (1968)). In evaluating a 13 summary judgment motion, a court views all facts and draws all inferences in the light most 14 favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 15 1100, 1103 (9th Cir. 1986). 16 The moving party bears the burden of showing that there are no genuine issues of 17 material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order to carry 18 its burden of production, the moving party must either produce evidence negating an essential 19 element of the nonmoving party’s claim or defense or show that the nonmoving party does not 20 have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” 21 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the 22 moving party satisfies Rule 56’s requirements, the burden shifts to the party resisting the motion to 23 “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. 24 The nonmoving party “may not rely on denials in the pleadings but must produce specific 25 evidence, through affidavits or admissible discovery material, to show that the dispute exists.” 26 Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). Summary judgment for a AO 72 (Rev. 8/82) 5 1 defendant is appropriate when the plaintiff “fails to make a showing sufficient to establish the 2 existence of an element essential to [her] case, and on which [she] will bear the burden of proof at 3 trial.” Celotex, 477 U.S. at 322. 4 2. 5 Analysis a. 6 Effect of the Vocational Rehabilitation Settlement on Plaintiff’s ADA Claim Clark County argues it is not liable under the ADA because Amerson stipulated in 7 the Vocational Rehabilitation Settlement that her disability could not be accommodated, thus 8 negating an essential element of her ADA claim. Amerson counters that under Cleveland v. Policy 9 Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999), she has provided an explanation for any 10 contradictions between the Vocational Rehabilitation Settlement and her ADA claims sufficient to 11 overcome summary judgment.1 Amerson maintains that there was no admission that Clark County 12 could not accommodate her restrictions and that the $13,000.00 Vocational Rehabilitation 13 Settlement was insufficient consideration to waive her ADA claim. In Cleveland, the Supreme Court considered “the legal effect upon an ADA suit of 14 15 the application for, or receipt of, disability benefits.” Id. at 800. The Court held that where 16 statements made in support of a SSDI claim involved a “context-related legal conclusion,” rather 17 than a “purely factual matter,” the Court was required to determine whether the SSDI claim 18 created a rebuttable presumption to judicially estop the ADA claim. Id. at 802. To determine the 19 legal effect of the SSDI claim on the ADA claim, the Court employed a two-part analysis. Id. First, 20 the Court determined whether, as a legal matter, a claim under the ADA “inherently conflict[ed]” 21 with an SSDI claim to warrant a “negative presumption” against the ADA claim. Id. at 802–05. 22 Then, after finding no inherent conflict, the Court analyzed whether the SSDI claim “genuinely” 23 conflicted with the ADA claim so as to “negate an essential element of [the] ADA claim.” Id. at 24 25 26 AO 72 (Rev. 8/82) 1 Amerson also identifies an additional contradiction between her declaration in support of her application for PERS disability retirement benefits. However, Clark County does not contest those statements and the Court declines to address them. 6 1 805–06. The Court reasoned that if there was a genuine conflict, a plaintiff could overcome 2 summary judgment by offering a sufficient explanation for any inconsistency. Id. at 806; see also 3 Smith v. Clark Cnty. School Dist., 727 F.3d 950, 956 (extending Cleveland’s application to state 4 and private disability benefits.) However, the Court emphasized that the plaintiff’s explanation for 5 the contradiction must “warrant a reasonable juror’s concluding that, assuming the truth of, or the 6 plaintiff’s good-faith belief in, the earlier statement, the plaintiff could nonetheless ‘perform the 7 essential functions’ of her job, with or without ‘reasonable accommodation.’” Id. at 806. 8 Where a plaintiff adequately explains an apparent contradictory statement, the 9 contradiction does not preclude the plaintiff’s ADA claim. Id. In Cleveland, the plaintiff sought 10 and obtained Social Security Disability Insurance (SSDI) benefits, claiming that she was “unable 11 to work” due to her disability. Id. at 799. Then, plaintiff filed suit under the ADA contending that 12 her former employer discriminated against her on account of her disability because she could 13 perform the essential functions of her job with reasonable accommodation. Id. Conducting the first 14 step in the analysis, the Supreme Court recognized that there are many situations in which an SSDI 15 claim and an ADA claim can comfortably exist side by side, and thus there is no inherent conflict. 16 Id. Then turning to the second prong of the analysis, the Supreme Court found there was a genuine 17 conflict between the statements under the SSDI claim that Cleveland was “unable to work” and the 18 ADA claim where she stated she could work with accommodations. Id. However, the Supreme 19 Court accepted Cleveland’s explanation that because the SSDI statements were made in a forum 20 that does not consider reasonable accommodation, it was both true that she was “unable to work” 21 without reasonable accommodation in the SSDI context, and that she would be able to work with 22 reasonable accommodation in the ADA context. Id. at 797, 807. Based on her sufficient 23 explanation for the inconsistency, the Court held a reasonable juror could reconcile the apparent 24 contradiction. Id. 25 26 AO 72 (Rev. 8/82) Here, however, Amerson’s explanation is insufficient to warrant a reasonable juror’s concluding that, despite the contradiction, she could nonetheless perform the essential 7 1 functions of her job, with or without reasonable accommodation. Id. at 807. Under Cleveland’s 2 framework, the Court must first determine whether a claim under the Nevada Vocational 3 Rehabilitation statutes inherently conflicts with an ADA claim. The Court finds that it does not 4 because the Nevada Vocational Rehabilitation statutes only consider one of reasonable 5 accommodations available under the ADA, namely reassignment. 6 7 8 9 10 11 12 13 14 15 16 Under the Nevada Vocational Rehabilitation statutes, [A]n injured employee is not eligible for vocational rehabilitation services, unless: (a) The treating physician or chiropractor approves the return of the injured employee to work but imposes permanent restrictions that prevent the injured employee from returning to the position that the employee held at the time of his or her injury; (b) The injured employee’s employer does not offer employment that: (1) The employee is eligible for considering the restrictions imposed pursuant to paragraph (a); (2) Provides a gross wage that is equal to or greater than 80 percent of the gross wage that the employee was earning at the time of injury; and (3) Has the same employment benefits as the position of the employee at the time of his or her injury; and (c) The injured employee is unable to return to gainful employment with any other employer at a gross wage that is equal to or greater than 80 percent of the gross wage that the employee was earning at the time of his or her injury. Nev. Rev. Stat. § 616C.590(1)(emphasis added). Whereas the Nevada Vocational Rehabilitation statutes address only reassignment 17 to another position, the ADA includes reassignment to a vacant position and several other 18 accommodations, such as making existing facilities readily accessible, job restructuring, part-time 19 or modified work schedules, acquisition or modification of equipment or devices, training 20 materials or policies, the provision of qualified readers or interpreters, and other similar 21 accommodations. Cf. Nev. Rev. Stat. § 616C.590(1)(b)(1) with 42 U.S.C. § 12111(9). Thus, there 22 are many situations in which a Nevada Vocational Rehabilitation claim and an ADA claim can 23 comfortably exist side by side, i.e., where the plaintiff seeks any ADA accommodation other than 24 reassignment. As there are hypothetical situations where both claims could co-exist, there is no 25 inherent conflict. 26 AO 72 (Rev. 8/82) 8 1 Turning to the second prong of the analysis, the Court determines Amerson’s 2 stipulations in the Vocational Rehabilitation Settlement genuinely conflict with her ADA claim, 3 and that her explanation is inadequate. The stipulation in the Vocational Rehabilitation Settlement 4 states that Clark County could not accommodate Amerson’s restrictions. Amerson’s ADA claim 5 requires a finding that Clark County could accommodate Amerson’s restrictions. These statements 6 are in genuine conflict. Therefore, Amerson is required to explain the contradiction such that a 7 reasonable juror could reconcile the apparent contradiction. 8 Amerson’s explanation attempts to split hairs over who made the determination that 9 Clark County could not accommodate her restrictions. However, it does not matter who made the 10 determination. The ADA reassignment accommodation Amerson seeks is also offered by the 11 Nevada Vocational Rehabilitation statute. A necessary prerequisite to obtaining vocational 12 rehabilitation is that the “employer does not offer employment that the employee is eligible for 13 considering the restrictions.” Nev. Rev. Stat. § 616C.590(1)(b)(1) (emphasis added). Amerson’s 14 statement that her employer could not accommodate her, which qualified her for vocational 15 rehabilitation, also disqualifies her for the reassignment accommodation she seeks under the ADA. 16 Clark County cannot offer Amerson reassignment to a position it does not have. In short, Amerson 17 would not even qualify for vocational rehabilitation or the lump sum buyout she obtained if Clark 18 County could have accommodated her restrictions by offering reassignment. Thus, even if Clark 19 County unilaterally determined that it could not accommodate Amerson by offering her an 20 alternative position, Amerson necessarily agreed with that determination when she accepted the 21 lump-sum buyout. 22 This case is unlike Cleveland where the apparent contradiction was easily explained 23 based on the legal differences between SSDI and ADA claims. Here, as applied to the 24 reassignment accommodation Amerson seeks, the Nevada Vocational Rehabilitation statutes and 25 the ADA are identical. Amerson could have obtained reassignment to a sedentary position through 26 the Nevada Vocational Rehabilitation statutes. Instead, Amerson chose to settle her vocational AO 72 (Rev. 8/82) 9 1 rehabilitation appeal benefitting to the tune of $13,000.00. Now, Amerson seeks to disavow the 2 statement that Clark County could not accommodate her because it did not offer a reassignment 3 position, a statement she was required to make under Nevada law to obtain the $13,000.00 benefit, 4 to pursue the same reassignment accommodation under the ADA. Even taking the facts in the light 5 most favorable to Amerson and accepting her explanation as true, the structure of the Nevada 6 Vocational Rehabilitation statutes requires a determination that Clark County could not 7 accommodate Amerson’s restrictions by offering reassignment. Thus, the determinations required 8 to support the lump-sum buyout Amerson received are directly contradictory and inconsistent with 9 her assertion that she could be accommodated through reassignment to other positions. 10 Amerson has not sufficiently explained the contradiction such that a reasonable 11 juror could reconcile the discrepancy and find in her favor. Therefore, Amerson’s pursuit and 12 receipt of the Vocational Rehabilitation Settlement and her stipulations in that agreement negate 13 an essential element of her ADA claim, and summary judgment is warranted in favor of Clark 14 County. 15 b. “Qualified Individual” Under the ADA 16 Assuming arguendo that Amerson’s stipulations in the Vocational Rehabilitation 17 Agreement do not negate her ADA claim, Clark County argues Amerson is still not a “qualified 18 individual” under the ADA because she could not perform the essential functions of the three other 19 identified open positions, even with reasonable accommodations. Amerson responds that she is a 20 qualified individual because Clark County could have easily accommodated her by placing her in a 21 position requiring only sedentary work. Amerson identifies several positions that would require 22 only sedentary work and asserts there is a genuine issue of material fact as to whether Clark 23 County could have reassigned her to a sedentary job which was contemporaneously available or 24 would have become available within a reasonable period. Clark County responds that Amerson has 25 not shown by admissible evidence that the positions she identifies were available or would have 26 AO 72 (Rev. 8/82) 10 1 become available within a reasonable period, and therefore she has failed to set forth specific facts 2 showing that there is a genuine issue for trial.2 To prevail on an ADA claim, a plaintiff must show (1) that she is disabled within 3 4 the meaning of the ADA; (2) that she is a qualified individual with a disability; and (3) that she 5 was discriminated against because of her disability. See Nunes v. Wal–Mart Stores, Inc., 164 F.3d 6 1243, 1246 (9th Cir. 1999). A person can be a qualified individual under the ADA if “[s]he can 7 ‘perform the essential functions of a reassignment position, with or without reasonable 8 accommodation, even if [she] cannot perform the essential functions of the current position.’” 9 Dark v. Curry Cnty., 451 F.3d 1078, 1089 (9th Cir. 2006) (quoting Hutton v. Elf Atochem N. Am., 10 Inc., 273 F.3d 884, 892 (9th Cir. 2001)); see also 42 U.S.C. § 12111(8-9)(noting that reasonable 11 accommodation may include reassignment to a vacant position). The ADA does not, however, 12 “impose a duty to create a new position to accommodate a disabled employee.” Wellington v. Lyon 13 Cnty. School Dist., 187 F.3d 1150, 1155 (9th Cir. 1999). “[F]or reassignment to a vacant position 14 to be reasonable, an existing position must be vacant.” Id. (citing Willis v. Pac. Maritime Ass’n, 15 162 F.3d 561, 567 (9th Cir. 1998)). In determining whether a position is vacant, “an employer 16 must consider not only those contemporaneously available positions but also those that will 17 become available within a reasonable period.” Dark v. Curry Cnty., 451 F.3d 1078, 1989-90 (9th 18 Cir. 2006). Where a position would become available in a reasonable period, reassignment to 19 20 that vacant position is a reasonable accommodation. Id. In Dark, the Ninth Circuit found a genuine 21 issue of material fact precluded summary judgment because Dark proffered evidence that certain 22 positions had become available since his termination. The Dark Court noted that Dark had not 23 24 2 25 26 AO 72 (Rev. 8/82) The parties agree that Amerson is disabled and that she could not perform the essential functions of her prior position, Juvenile Probation Officer, even with accommodation. Therefore, the question is whether Amerson could perform the essential functions of a reassignment position with accommodation. 11 1 specified when the jobs became available but his mere allegation that a position became available 2 did not require any greater specificity. Id. 3 There is no dispute that Amerson could not have returned to her prior employment 4 as a Juvenile Probation Officer. Nor is there any dispute that Amerson’s restrictions prevented her 5 from working in the three positions Clark County identified as within Amerson’s skill set. 6 Here, Amerson has failed to show a genuine issue of material fact by admissible 7 evidence sufficient to preclude summary judgment in favor of Clark County. Clark County has 8 carried its burden to show that Amerson does not have enough evidence to show she is a qualified 9 individual under the ADA. Clark County has produced evidence that searches were conducted and 10 no positions for which Amerson would qualify were available. (#41, Ex. BB, at 2). Moreover, 11 Clark County has produced evidence that although some people had been placed in alternative 12 positions in the past, those people had been moved “over ten years ago and those positions were 13 phased out as the individuals placed into them retired or resigned from County employment.” Id. 14 Thus, the burden shifts to Amerson to set forth specific facts to show a genuine issue for trial.3 15 Amerson has failed to meet her burden. Regardless of whether Clark County had 16 accommodated other disabled employees in the past, Amerson must still prove at trial that there 17 was a vacant position for which she was eligible. Unlike Dark, where Dark alleged that a position 18 became available, here Amerson has not alleged that any position was available or became 19 available. Although Amerson lists several positions she “believes” she “could have” done, 20 nowhere in her affidavit or any attached exhibits does Amerson allege or show that any alternative 21 position was vacant at the time of her termination or within a reasonable period after her 22 23 24 25 26 AO 72 (Rev. 8/82) 3 Amerson complains in a footnote that Clark County has “refused to produce any documents about available jobs” and “refused to produce any information about employees . . . who were accommodated with alternative jobs.” (#44 at 16, n.3). However, the Court granted Amerson additional time for discovery and not a single motion to compel was filed in this case. (#40). As discovery has long-since closed and Amerson did not seek to compel the documents needed to prevail on this element, she has essentially conceded that she will be unable to prove this point at trial. 12 1 termination. Amerson has failed to show a genuine issue of material fact for trial and has failed to 2 make a showing sufficient to establish the existence of an element essential to her case. Therefore, 3 on this alternate ground, summary judgment in favor of Clark County is warranted. 4 CONCLUSION 5 Accordingly, and for good cause appearing, 6 IT IS HEREBY ORDERED that Defendant Clark County’s Motion for Summary 7 Judgment (#41, November 1, 2013) is GRANTED. The Clerk of the Court is ordered to close this 8 case. 9 Dated: January 21, 2014. 10 ____________________________________ ROGER L. HUNT United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev. 8/82) 13