McKnight v. United States Department of Education of Civil Rights Office, No. 3:2017cv00015 - Document 47 (D. Nev. 2018)

Court Description: ORDER denying as moot ECF No. 32 Motion to Dismiss; granting ECF No. 35 Motion to Dismiss; granting ECF No. 41 Motion to Dismiss, with leave to amend - Fourth Amended Complaint due within 28 days; granting ECF No. 36 Motion to Amend; denying as moot ECF No. 39 Motion to Amend. Signed by Judge Robert C. Jones on 1/16/2018. (Copies have been distributed pursuant to the NEF - KR)
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McKnight v. United States Department of Education of Civil Rights Office Doc. 47 1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 6 7 8 9 10 11 ______________________________________ ) ) TERRIA MCKNIGHT et al. ) ) Plaintiffs, ) ) vs. ) ) SEATTLE OFFICE OF CIVIL RIGHTS et al., ) ) Defendants. ) ) 3:17-cv-00015-RCJ-WGC ORDER 12 This case arises out of a school district’s alleged failure to properly accommodate a 13 14 disabled child. Plaintiff Terria McKnight has brought the case in pro se on behalf of her minor 15 child (“the Child”). Pending before the Court are three motions to dismiss and two motions to 16 amend. 17 I. 18 FACTS AND PROCEDURAL HISTORY Plaintiff attached the original Complaint to her motion to proceed in forma pauperis. The 19 Complaint alleged violations of the Fifth, Eighth, and Ninth Amendments, § 504 of the 20 Rehabilitation Act of 1973 (“RA”), and the Americans with Disabilities Act of 1990 (“ADA”). 21 Plaintiff had filed a complaint with the U.S. Department of Education, Office for Civil Rights 22 (“OCR”) on August 5, 2015, complaining that the Lyon County School District (“LCSD”) had 23 failed to provide her son with a free appropriate public education (“FAPE”) by failing to provide 24 1 of 9 1 him with an aide. She also complained of the way OCR handled her case. Upon screening under 2 28 U.S.C. § 1915, the Magistrate Judge issued a Report and Recommendation (“R&R”) to grant 3 the application to proceed in forma pauperis, strike the prayer for damages against OCR under 4 § 504, dismiss the § 504 and ADA claims with leave to amend, permit the retaliation claim to 5 proceed, and dismiss the remaining claims with prejudice. The Court adopted the R&R, and the 6 Clerk filed the Complaint. 7 After the Magistrate Judge issued the R&R, but before the Court ruled on it, Plaintiff 8 filed an amended complaint. The Court struck that pleading because there was no leave to file it. 9 Immediately after the Clerk filed the Complaint, Plaintiff filed a new Amended Complaint 10 (“AC”) as of right. The Magistrate Judge did not screen the AC and issued a summons with the 11 unscreened AC attached thereto. The Nevada Department of Education (“NDOE”), Will Jensen, 12 and Marva Cleven moved to dismiss the AC. The Court granted the motion, with leave to amend 13 in part. The Court dismissed the sixth cause of action (titled “doctrine of exhaustion”) as against 14 all Defendants and dismissed any claims under 42 U.S.C. § 1983 as against NDOE, without 15 leave to amend. The Court dismissed Lyon County as a Defendant in accordance with Plaintiff’s 16 separately filed clarification. 17 Plaintiff filed the Third Amended Complaint (“TAC”), listing three claims (§ 504 of the 18 ADA, Title II of the ADA, and retaliation) against “Seattle Office of Civil Rights,” Linda 19 Mangel, Tania Lopez, Paul Goodwin, Monique Malson, Caitlin Burks, Monique Malson 20 (collectively, “Federal Defendants”), and NDOE. Mangel, Lopez, Goodwin, Burks, and Malson 21 are attorneys for OCR, which Plaintiff refers to as “Seattle Office of Civil Rights.” Federal 22 Defendants have moved to dismiss based on sovereign immunity, improper service of process, 23 and failure to state a claim. NDOE has separately moved to dismiss for failure to state a claim. 24 2 of 9 1 II. LEGAL STANDARDS 2 Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the 3 claim showing that the pleader is entitled to relief” in order to “give the defendant fair notice of 4 what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 5 (1957). Federal Rule of Civil Procedure 12(b)(6) mandates that a court dismiss a cause of action 6 that fails to state a claim upon which relief can be granted. A motion to dismiss under Rule 7 12(b)(6) tests the complaint’s sufficiency. See N. Star Int’l v. Ariz. Corp. Comm’n, 720 8 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for 9 failure to state a claim, dismissal is appropriate only when the complaint does not give the 10 defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell 11 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is 12 sufficient to state a claim, the court will take all material allegations as true and construe them in 13 the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th 14 Cir. 1986). The court, however, is not required to accept as true allegations that are merely 15 conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden 16 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 17 A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a 18 plaintiff must plead facts pertaining to his own case making a violation “plausible,” not just 19 “possible.” Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009) (citing Twombly, 550 U.S. at 556) 20 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to 21 draw the reasonable inference that the defendant is liable for the misconduct alleged.”). That is, 22 under the modern interpretation of Rule 8(a), a plaintiff must not only specify or imply a 23 cognizable legal theory (Conley review), he must also allege the facts of his case so that the court 24 3 of 9 1 can determine whether he has any basis for relief under the legal theory he has specified or 2 implied, assuming the facts are as he alleges (Twombly-Iqbal review). Put differently, Conley 3 only required a plaintiff to identify a major premise (a legal theory) and conclude liability 4 therefrom, but Twombly-Iqbal requires a plaintiff additionally to allege minor premises (facts of 5 the plaintiff’s case) such that the syllogism showing liability is complete and that liability 6 necessarily, not only possibly, follows (assuming the allegations of fact are true). “Generally, a district court may not consider any material beyond the pleadings in ruling 7 8 on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the 9 complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner 10 & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents 11 whose contents are alleged in a complaint and whose authenticity no party questions, but which 12 are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) 13 motion to dismiss” without converting the motion to dismiss into a motion for summary 14 judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule 15 of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay 16 Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court 17 considers materials outside of the pleadings, the motion to dismiss is converted into a motion for 18 summary judgment. See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 19 2001). 20 III. ANALYSIS 21 A. 22 The Court agrees that Plaintiff has identified no waiver of sovereign immunity, and 23 Federal Defendants without one the United States and its employees are immune from suit. See FDIC v. Meyer, 510 24 4 of 9 1 U.S. 471, 475 (1994); Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir. 1985). In response, 2 Plaintiff invokes the Federal Tort Claims Act (“FTCA”). See 28 U.S.C. § 1346(b) (creating 3 jurisdiction in the district court for civil claims arising out of the negligence of a federal 4 employee causing injury, death, or loss of property). But Plaintiff has pled no such injury. She 5 has complained of dissatisfaction with administrative investigation and enforcement. The 6 allegedly wrongful failure to enforce a statute or regulation does not constitute injury or loss of 7 property under the FTCA. And claims that OCR did not properly enforce § 504 or related laws 8 are not subject to district court review under the Administrative Procedure Act (“APA”). See 9 Pudlin v. OCR, 186 F. Supp. 3d 288, 293 (S.D.N.Y. 2016). Enforcement decisions are exempt 10 from APA review. Heckler v. Chaney, 470 U.S. 821, 838 (1985) (holding that agency refusals to 11 institute investigative or enforcement proceedings is within the discretionary exception to 5 12 U.S.C. § 701(a)(2)). Federal Defendants are entitled to dismissal for lack of jurisdiction based 13 on sovereign immunity. 14 B. NDOE 15 1. § 504 16 The Individuals with Disabilities Education Act (“IDEA”) creates a cause of action 17 permitting a disabled student to sue for appropriate relief, i.e., the provision of a Free 18 Appropriate Public Education (“FAPE”), but it does not provide for money damages. Mark H. v. 19 Lemahieu, 513 F.3d 922, 929 (9th Cir. 2008). Plaintiff notes that she eventually prevailed with 20 NDOE as to the provision of a FAPE that satisfies her requests, (Third Am. Compl. 3:4), but she 21 seeks money damages for the denial of a FAPE between 2015 and 2017, (id. 7:18–22). Unlike 22 IDEA, § 504 of the RA does not focus on the provision of FAPEs to disabled children but more 23 broadly addresses state services to disabled individuals. Mark H., 513 F.3d at 929 (citing 29 24 5 of 9 1 U.S.C. § 794). The U.S. Department of Education has promulgated regulations interpreting 2 § 504 to require a FAPE, albeit under somewhat different standards than the FAPE required by 3 IDEA, and the Court of Appeals has interpreted § 504 to create an implied private cause of 4 action for compensatory (but not punitive) damages. Id. at 930. A FAPE that satisfies IDEA 5 necessarily satisfies § 504, but not vice versa. Id. at 933. 6 In summary, there is a potential claim for compensatory damages against NDOE under 7 § 504 if NDOE failed to comply with § 504 between July 29, 2015 (when Plaintiff first contacted 8 NDOE about the issue) and February 15, 2017 (when Plaintiff received a favorable ruling). (See 9 Third Am. Compl. 1:27–28, 3:4). Yet a violation of a regulation promulgated under § 504 is not 10 necessarily a violation of § 504 itself. Whether there is an implied right of action to enforce 11 regulations promulgated under § 504 depends on “whether those regulations come within the 12 § 504 implied right of action.” Mark H., 513 F.3d at 935. “[R]egulations can only be enforced 13 through the private right of action contained in a statute when they ‘authoritatively construe’ the 14 statute; regulations that go beyond a construction of the statute’s prohibitions and impose new 15 obligations beyond what the statute requires do not fall within the implied private right of action, 16 even if valid.” Id. at 935, 939 (quoting Alexander v. Sandoval, 532 U.S. 275, 284 (2001)). 17 Section 504’s required mens rea of intentional discrimination or deliberate indifference is a 18 separate question. Id. at 938. 19 As in Mark H., Plaintiff has not yet identified which FAPE-related regulations under 20 § 504 she believes NDOE violated and how. See id. at 939. Because Plaintiff is proceeding in 21 pro se, the Court will give her one more opportunity to amend. She must identify which FAPE 22 requirements under § 504 or related regulations she believes NDOE violated and how. For 23 clarity, the amendment should be free of allegations against Federal Defendants. 24 6 of 9 1 2. ADA Discrimination 2 Plaintiff alleges she has bipolar disorder and ADHD and that the Child has been 3 diagnosed with autism, asthma, ADHD, and social communication disorder. Title II of the ADA 4 applies to state governments, see 42 U.S.C. § 12131, and provides that “no qualified individual 5 with a disability shall, by reason of such disability, be excluded from participation in or be 6 denied the benefits of the services, programs, or activities of a public entity, or be subjected to 7 discrimination by any such entity,” Fortyune v. City of Lomita, 766 F.3d 1098, 1101 (9th Cir. 8 2014) (quoting id. § 12132). Plaintiff does not allege that she or the Child were unable to attend 9 proceedings due to NDOE’s failure to accommodate her or the Child’s disabilities. She appears 10 to base the ADA claim on the fact that the Child was not appropriately accommodated under the 11 standards of the ADA itself. The standards for accommodation by a public school system under 12 the ADA are not coextensive with the FAPE requirements under IDEA or § 504. K.M. ex rel. 13 Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1100 (9th Cir. 2013). For example, the ADA 14 gives primary consideration to the disabled person’s requests but also provides additional 15 defenses to public entities. Id. at 1100–01. 16 More importantly here, the ADA has only validly abrogated the states’ Eleventh 17 Amendment immunity as to actions that actually violate the Fourteenth Amendment. United 18 States v. Georgia, 546 U.S. 151, 158–59 (2006). That limitation is implicated here, because 19 NDOE is an administrative arm of the State of Nevada, not a municipality. To state an ADA 20 claim against NDOE, Plaintiff must allege not only that NDOE’s conduct violated the ADA, but 21 also that it violated the Fourteenth Amendment. Plaintiff has not yet pled facts indicating any 22 Fourteenth Amendment violations, but the Court will give Plaintiff one more chance to amend. 23 Upon amendment, the Court reminds Plaintiff to omit allegations against Federal Defendants. 24 7 of 9 1 3. ADA Retaliation 2 Finally, Plaintiff brings a retaliation claim under the ADA. This claim fails because 3 Plaintiff alleges that she has obtained the desired outcome, and ADA retaliation claims include 4 no damages remedy. See Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1264–70 (9th Cir. 5 2009) (citing 42 U.S.C. § 12203(c) (citing id. §§ 12117, 12133, 12188) (citing id. §§ 2000e-4 to 6 2000e-9))). The Court dismisses this claim, without leave to amend. 7 4. Amendment 8 Plaintiff has asked to add Lyon County School District (“LCSD”) as a defendant. LCSD 9 has opposed the motion, noting that Plaintiff has not attached a proposed amended pleading, as 10 required by Local Rule 15.1, and that she recently clarified that she did not intend to sue Lyon 11 County or LCSD after the Clerk warned that it intended to dismiss Lyon County under Rule 12 4(m). Due to Plaintiff’s pro se status, the Court will give leave to amend. She must include her 13 amendments in the fourth amended complaint. In fairness, however, the Court will screen the 14 fourth amended complaint under 28 U.S.C. § 1915 upon any Defendant’s request in order to 15 ameliorate the additional litigation costs upon Defendants caused by the Court’s indulgence. 16 Plaintiff has also filed a “Motion to Add Clarifying Information,” which is essentially a 17 motion to amend. The Court denies the motion as moot given its resolution of the present 18 motions to dismiss and its leave to amend (in part). Plaintiff may include clarifying information 19 insofar as it is relevant to the claims she has leave to amend. 20 In summary, Plaintiff may add LCSD as a Defendant in the fourth amended complaint, 21 which may only contain claims against NDOE and/or LCSD, as applicable, under: (1) § 504 of 22 the Rehabilitation Act (29 U.S.C. § 794) and applicable regulations; and (2) discrimination under 23 the Americans with Disabilities Act, 42 U.S.C. § 12132, and applicable regulations. 24 8 of 9 CONCLUSION 1 2 3 4 IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 32) is DENIED as moot, and the Motion to Dismiss (ECF No. 35) is GRANTED. IT IS FURTHER ORDERED that the Motion to Dismiss (ECF No. 41) is GRANTED, 5 with leave to amend the claim under § 504 of the Rehabilitation Act and the ADA discrimination 6 claim against the Nevada Department of Education and/or Lyon County School District. The 7 fourth amended complaint is due within twenty-eight (28) days. 8 9 10 11 IT IS FURTHER ORDERED that the Motion to Amend (ECF No. 36) is GRANTED, and the Motion to Amend (ECF No. 39) is DENIED as moot. IT IS SO ORDERED. January 16, 2018. Dated this 5th day of December, 2017. 12 13 _____________________________________ ROBERT C. JONES United States District Judge 14 15 16 17 18 19 20 21 22 23 24 9 of 9