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Kidiavayi v. University of Nevada

United States District Court, D. Nevada

May 4, 2017

UNIVERSITY OF NEVADA, et al ., Defendants.

          AMENDED ORDER [1]

          Kent J. Dawson United States District Judge

         Presently 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.

         I. Background

         According 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.

         Plaintiff 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.

         II. Standard for a Motion to Dismiss

          In considering a motion to dismiss, “all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party.” Wyler Summit Partnership v. Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted). Consequently, there is a strong presumption against dismissing an action for failure to state a claim. See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

         The Iqbal evaluation illustrates a two prong analysis. First, the Court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. If the allegations state plausible claims for relief, such claims survive the motion to dismiss. Id. at 1950.

         III. Analysis

          A. Statute of Limitations: Federal Claims

          The 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, 977 (1985).

         In this 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.

         To the 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 ...

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