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Hamer v. State of Nevada Bureau of Vocational Rehabilitation Employment and Training

United States District Court, D. Nevada

May 24, 2017

CLARK HAMER, Plaintiff,
v.
STATE OF NEVADA BUREAU OF VOCATIONAL REHABILITATION EMPLOYMENT AND TRAINING, Defendant.

          ORDER AND REPORT AND RECOMMENDATION SCREENING OF THIRD AMENDED COMPLAINT (ECF NO. 19)

          GEORGE FOLEY, JR. United States Magistrate Judge.

         This matter is before the Court on the screening of Plaintiff's Third Amended Complaint (ECF No. 19), filed on September 26, 2016.

         BACKGROUND

         On 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.

         On 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.

         On 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.

         I. Screening the Third Amended Complaint

         On September 26, 2016, Plaintiff filed his “third” amended Complaint[1]. (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).

         When a 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 each defendant.

         A. Liability of NBVR

         Under 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 adjudication.

         B. Liability of NDALC

         In 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, ...

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