United States District Court, D. Nevada
J. Dawson United States District Judge.
before the Court is Defendants' Motion to Dismiss (#6).
Plaintiff filed a response in opposition and countermotion to
amend the complaint (#8) to which Defendants replied (#11).
Plaintiff filed an additional Motion to Amend the Complaint
(#13). Defendants filed a response in opposition (#17) to
which Plaintiff replied (#21). Plaintiff then filed an
improperly titled Errata to Motion for Leave to Amend
Complaint (#22). In the Errata, Plaintiff essentially
concedes that he has improperly named certain defendants, who
either may not be sued or against whom the statute of
limitations would have run. The Court accepts the proposed
amended complaint contained in the Errata as the operative
complaint for the purposes of the motion to dismiss and
motion to amend.
to the allegations of the complaint, Plaintiff was a student
at the Graduate School of Nursing at the University of Nevada
Las Vegas (“UNLV”). The proposed amended
complaint alleges Plaintiff is a black male working in a
“female-dominated” profession. Plaintiff's
alleged nation of origin is Kenya. Defendant Bruce Leonard, a
doctor, was Plaintiff's professor for a clinical rotation
in a course identified as Nursing 759, Primary Care of the
Family II. Plaintiff alleges that between September 1, 2012
and September 11, 2014, he was discriminated against due to
his race, national origin and gender. Amongst other claims,
Plaintiff asserts that he received a failing grade in Nursing
759 because he was graded differently from peers not members
of his protected classes. In April 2014, Plaintiff filed a
racial discrimination claim with the University's EEO/AA
officer. He then filed a complaint with the Nevada Equal
Rights Commission on April 12, 2015.
filed the present action in Nevada state court on March 28,
2016 which was subsequently removed to federal court. He
named the University of Nevada and Dr. Bruce Leonard as
defendants. Plaintiff's proposed amended complaint
clarifies that he is bringing claims for: 1) violation of
equal protection secured by the Fourteenth Amendment to the
Constitution; 2) violations of civil rights brought pursuant
to 42 U.S.C. § 1983 and conspiracy to violate civil
rights pursuant to 42 U.S.C. § 1985; 3) violation of
Title IX of the Education Amendment of 1972 based on his
gender; 4) violation of Title VI of the Civil Rights Act
based on disparate treatment based on his gender; 5)
intentional infliction of emotional distress; and 6)
negligent hiring, training and supervision. Defendants then
filed the present motion to dismiss.
Standard for Summary Judgment
judgment may be granted if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law. See Fed.R.Civ.P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the initial burden of
showing the absence of a genuine issue of material fact.
See Celotex, 477 U.S. at 323. The burden then shifts
to the nonmoving party to set forth specific facts
demonstrating a genuine factual issue for trial. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
justifiable inferences must be viewed in the light must
favorable to the nonmoving party. See Matsushita,
475 U.S. at 587. However, the nonmoving party may not rest
upon the mere allegations or denials of his or her pleadings,
but he or she must produce specific facts, by affidavit or
other evidentiary materials as provided by Rule 56(e),
showing there is a genuine issue for trial. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The
court need only resolve factual issues of controversy in
favor of the non-moving party where the facts specifically
averred by that party contradict facts specifically averred
by the movant. See Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990); see also
Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69
F.3d 337, 345 (9th Cir. 1995) (stating that conclusory or
speculative testimony is insufficient to raise a genuine
issue of fact to defeat summary judgment). Evidence must be
concrete and cannot rely on “mere speculation,
conjecture, or fantasy. O.S.C. Corp. v. Apple Computer,
Inc., 792 F.2d 1464, 1467 (9th Cir. 1986).
“[U]ncorroborated and self-serving testimony, ”
without more, will not create a “genuine issue”
of material fact precluding summary judgment. Villiarimo
v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.
judgment shall be entered “against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. Summary judgment shall not
be granted if a reasonable jury could return a verdict for
the nonmoving party. See Anderson, 477 U.S. at 248.
Statute of Limitations: Federal Claims
federal statutes or constitutional claims brought by
Plaintiff, including 42 U.S.C. § 1983, 1985, 2000d, 20
U.S.C. § 1681, and 28 U.S.C. § 1343 do not contain
their own statutes of limitations, so courts borrow the most
appropriate state statute of limitations. See Cholla
Ready Mix, Inc. v. Civish, 382 F.3d 969, 974 (9th Cir.
2004)(citing Wilson v. Garcia, 471 U.S. 261, 266-68
(1985)). For these claims, the court borrow Nevada's
statute of limitations for personal injury claims. See
Wilson, 471 U.S. at 276-80 (holding that the statute of
limitations for personal injury claims applies in § 1983
suits); Addisu v. Fred Meyer, Inc., 198 F.3d 1130,
1140 (9th Cir. 2000) (§ 1985 claims)(citing Goodman
v. Lukens Steel Co., 482 U.S. 656, 661-62 (1987));
Taylor v. Regents of Univ. of Cal., 993 F.2d 710,
711-12 (9th Cir. 1993) (§ 2000d claims); Stanley v.
Trustees of Cal. State Univ., 433 F.3d 1129, 1134 (9th
Cir. 2006)(noting decisions of other circuits and close
similarity between Title VI and Title IX). In Nevada, the
statute of limitations for a personal injury action is two
years. NRS 11.190(4)(e); Day v. Zubel, 112 Nev. 972,
case, Plaintiff's claims had arisen no later than January
15, 2014 when the last alleged discriminatory action occurred
(the repeated Standardized Patient Exam). Therefore,
Plaintiff's federal claims had to be filed no later than
January 15, 2016. Plaintiff did not file his complaint until
March 28, 2016. Therefore, whether the Court considers
Plaintiff's amended claims or not, they are time barred
and must be dismissed.
extent that Plaintiff argues that NRS § 651.120 requires
equitable tolling of the statute of limitations, he is
incorrect. First, § 651.120 sets the statute of
limitations only for actions brought under enumerated state
statutes, which do not include the federal claims. Second,
even if § 651.120 did apply to Plaintiff's federal
claims, they would still be barred. The statute of
limitations under §651.120 is one year, not two years.
Even if the Court tolls the nine months Plaintiff's
complaint was pending before NERC, the filing ...