United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION SCREENING OF
THIRD AMENDED COMPLAINT (ECF NO. 19)
FOLEY, JR. United States Magistrate Judge.
matter is before the Court on the screening of
Plaintiff's Third Amended Complaint (ECF No. 19), filed
on September 26, 2016.
January 21, 2016, the undersigned entered an order granting
Plaintiff's Application for Leave to Proceed in forma
pauperis and a report and recommendation that
Plaintiff's racial discrimination claim against the
Nevada Bureau of Vocation Rehabilitation (“NVBR”)
pursuant to 42 U.S.C. § 1983 be dismissed with
prejudice. See ECF No. 4. The Court, however, found
that Plaintiff had sufficiently pled a claim for Title II
discrimination against NVBR. Id. In addition, the
Court dismissed Plaintiff's racial discrimination claim
against Nevada Disability and Advocacy Law Center
“NDALC”) pursuant to 42 U.S.C. § 1983
without prejudice and granted Plaintiff leave to file a
second amended complaint within 30 days of the date of the
order to amend the deficient claim. Id. The deadline
to file objections to the report and recommendation was on
February 7, 2016.
February 22, 2016, the Court entered an order adopting the
undersigned's order and report and recommendation.
See ECF No. 7. On March 8, 2016, Plaintiff filed a
Notice of Appeal (ECF No. 9). On March 9, 2016, Plaintiff
filed an objection to the report and recommendation. (ECF No.
10). On March 17, 2016, the Ninth Circuit entered an order
stating that Plaintiff's objection could be construed as
a timely-filed motion listed in Federal Rule of Appellate
Procedure 4(a)(4) and instructed the district court to rule
on the motion. See ECF No. 12.
August 23, 2016, the Court vacated its order adopting the
report and recommendation. See ECF No. 15. The Court
vacated the Clerk's Judgment (ECF No. 8) and instructed
the Clerk of the Court to enter an amended judgment
dismissing Plaintiff's racial discrimination claim
against NBVR pursuant to 42 U.S.C. § 1983 with prejudice
and to reinstate Defendant NDALC as a party. Id. The
Court granted Plaintiff leave to amend his racial
discrimination claim against NDALC pursuant to 42 U.S.C.
§ 1983 to correct the deficiencies noted in the
undersigned's report and recommendation (ECF No. 4)
within 45 days of the date of the order. Id. The
Court noted that Plaintiff's claim for Title II
discrimination against NBVR remains ripe for adjudication.
Id. at pg. 4.
Screening the Third Amended Complaint
September 26, 2016, Plaintiff filed his “third”
amended Complaint. (ECF No. 19). Upon granting a request to
proceed in forma pauperis and granting leave to amend, a
court must additionally screen a complaint pursuant to 28
U.S.C. §1915(e). Specifically, federal courts are given
the authority to dismiss a case if the action is legally
“frivolous or malicious, ” fails to state a claim
upon which relief may be granted, or seeks monetary relief
from a defendant/third party plaintiff who is immune from
such relief. 28 U.S.C. § 1915(e)(2). A complaint, or
portion thereof, should be dismissed for failure to state a
claim upon which relief may be granted “if it appears
beyond a doubt that the plaintiff can prove no set of facts
in support of his claims that would entitle him to
relief.” Buckey v. Los Angeles, 968 F.2d 791,
794 (9th Cir. 1992). A complaint may be dismissed as
frivolous if it is premised on a nonexistent legal interest
or delusional factual scenario. Neitzke v. Williams,
490 U.S. 319, 327-28 (1989). Moreover, “a finding of
factual frivolousness is appropriate when the facts alleged
rise to the level of the irrational or the wholly incredible,
whether or not there are judicially noticeable facts
available to contradict them.” Denton v.
Hernandez, 504 U.S. 25, 33 (1992).
court dismisses a complaint under § 1915(e), the
plaintiff should be given leave to amend the complaint with
directions as to curing its deficiencies, unless it is clear
from the face of the complaint that the deficiencies could
not be cured by amendment. See Cato v. United
States, 70 F.3d 1103, 1106 (9th Cir. 1995). In its order
and report and recommendation (ECF No. 4), the Court gave
Plaintiff leave to amend the noted deficiencies of his
complaint and informed Plaintiff that pursuant to Local Rule
15-1, the Court could not refer to a prior pleading in order
to make his amended complaint complete. In its August 23,
2016 order (ECF No. 15), the Court reiterated to Plaintiff
that he could not refer to prior pleadings and that Plaintiff
must sufficiently allege each claim and the involvement of
Liability of NBVR
the 11th Amendment, States are generally immune from
“any suit in law or equity, commenced or
prosecuted…by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” However,
the Supreme Court ruled that Congress has the ability to
abrogate the State's 11th Amendment immunity if it so
chooses. Kimel v. Florida Bd. Of Regents, 528 U.S.
62, 73 (2000). The Ninth Circuit declared that Congress
abrogated State's sovereign immunity under Title II of
the ADA. Dare v. California, 191 F.3d 1167, 1175
(9th Cir. 1999); see also Hason v. Med. Bd. Of Cal.,
279 F.3d 1167, 1171 (9th Cir. 2002); Phiffer v. Columbia
River Corr. Inst., 384 F.3d 791, 792 (9th Cir. 2004).
Because NBVR is an arm of the state, which has no sovereign
immunity against Title II claims, Plaintiff's viable
claims against it may proceed. Plaintiff's claim for
Title II discrimination against NBVR remains ripe for
Liability of NDALC
regard to Plaintiff's § 1983 claim against NDALC,
the Court stated as follows:
Plaintiff brings suit against the Nevada Disability and
Advocacy Law Center. The NDALC website states the business is
“a private, statewide non-profit organization that
serves as Nevada's federally-mandated protection and
advocacy system for human, legal, and service rights for
individuals with disabilities. Private conduct is generally
immune from § 1983 claims regardless of how
discriminatory the conduct may be. Am. Mfrs. Mut. Ins.
Co. v. Sullivan,526 U.S. 40, 50 (1999). Even when there
is extensive state funding and regulation of a private
activity, the Court has held “the mere fact that a
business is subject to state regulation does not by itself
convert its action into that of the State for purposes of the
Fourteenth Amendment.” Jackson v. Metropolitan
Edison Co.,419 U.S. 345, 350 (1974), see also
Rendell-Baker,457 U.S. 830 at 842-43; Morse v.
North Coast Opportunities,118 F.3d 1338, ...