United States District Court, D. Nevada
ORDER (DEF.'S MOTION TO DISMISS - ECF NO.
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
case asserts violations of Title II of the Americans with
Disabilities Act (“ADA”) and Section 504 of the
Rehabilitation Act (“RA”). Before the Court is
Defendant City of Reno's Motion to Dismiss. (ECF No. 10.)
The Court has reviewed Plaintiff Stuart Finfer's response
(ECF No. 17) and Defendant's reply (ECF No. 21.) For the
reasons discussed below, the Motion is granted and the case
is dismissed. Plaintiff's motion for preliminary
injunction (ECF No. 27) is denied as moot.
following facts are taken from Finfer's Complaint. Stuart
Finfer is an alcohol and drug addiction counselor licensed by
the Nevada State Board of Examiners for Alcohol, Drug, and
Gambling (“the Nevada Board”). (ECF No. 1 ¶
10.) He runs a business called Ability Counseling, and has
treated patients in the Reno area since 2003. (Id.)
Some of Ability Counseling's clients come to receive
court mandated substance abuse counseling. (Id.
¶ 21.) Finfer has dealt with serious health issues since
a young age, and underwent a series of seven surgeries
between 2010 and 2013. (Id. ¶¶ 13, 14.)
During his surgeries and rehabilitation, Finfer's staff
handled any alcohol and drug related cases referred to
Ability Counseling. (Id. ¶ 14.) After the
surgeries, Finfer uses a motorized wheelchair and walker, but
is capable of performing the tasks necessary to counsel his
clients. (Id. ¶¶ 18-20.)
early 2014, Finfer learned, through an attorney with whom he
had worked in the past, that at least one judge at the Reno
Municipal Court (“RMC”) no longer considered
Ability Counseling to be an appropriate agency to fulfill
mandatory counseling requirements imposed as part of DUI
sentences. (Id. ¶ 22.) Finfer, through an
attorney, contacted the Nevada Board and, after some back and
forth, confirmed that he was certified and his license was in
good standing, and further that no disciplinary action had
been taken against him in the past three years. (Id.
contacted RMC to find out why he had been removed from the
list of approved providers. A court employee informed Finfer
that his intern license had expired. (Id. ¶
30.) Finfer informed that employee that, while he was unable
to sit for final licensing exam due to his surgeries, he
still held a provisional license, which enabled him to
practice. (Id. ¶¶ 30, 31.) Ability
Counseling was placed back on RMC's list of approved
providers to receive referrals from the court. (Id.
February 2015, Finfer and Ability Counseling were once again
removed from RMC's list of approved providers.
(Id. ¶¶ 35, 36.) Finfer contacted the
court to inquire why he had been removed again, but he was
not given a reason. (Id. ¶ 39.) At least two of
Finfer's clients have been told by RMC judges that they
would not receive any credit for counseling sessions with
Finfer or Ability Counseling. (Id. ¶ 40.)
Finfer has never been given a reason for RMC's decision.
alleges that RMC removed him from its list of approved
providers due to his disability, perception of disability,
and history of disability. (Id. ¶ 43.) He
alleges that doing so makes the City of Reno liable for
violations of the ADA, the Rehabilitation Act, and
international interferences with prospective economic
moves for dismissal on several grounds. First, it argues that
the decision about which providers to approve is a sentencing
decision protected by judicial immunity. Second, it argues
that the City cannot be liable for the actions of the
judicial branch, over which it cannot exercise control.
Third, it argues that the abstention principles of
Younger v. Harris, 401 U.S. 37 (1971) and
O'Shea v. Littleton, 414 U.S. 488 (1974) apply.
And finally, Defendant argues that beyond any abstention or
immunity problems, Finfer has failed to plead plausible
violations of the ADA and Rehabilitation Act. (ECF No. 10 at
may dismiss a plaintiff's complaint for “failure to
state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). A properly pled complaint must provide
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007). While Rule 8 does not require detailed
factual allegations, it demands more than “labels and
conclusions” or a “formulaic recitation of the
elements of a cause of action.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 555.) “Factual
allegations must be enough to rise above the speculative
level.” Twombly, 550 U.S. at 555. Thus, to
survive a motion to dismiss, a complaint must contain
sufficient factual matter to “state a claim to relief
that is plausible on its face.” Iqbal, 556
U.S. at 678 (internal citation omitted).
Iqbal, the Supreme Court clarified the two-step
approach district courts are to apply when considering
motions to dismiss. First, a district court must accept as
true all well-pled factual allegations in the complaint;
however, legal conclusions are not entitled to the assumption
of truth. Id. at 678-79. Mere recitals of the
elements of a cause of action, supported only by conclusory
statements, do not suffice. Id. at 678. Second, a
district court must consider whether the factual allegations
in the complaint allege a plausible claim for relief.
Id. at 679. A claim is facially plausible when the
plaintiff's complaint alleges facts that allow a court to
draw a reasonable inference that the defendant is liable for
the alleged misconduct. Id. at 678. Where the
complaint does not permit the court to infer more than the
mere possibility of misconduct, the complaint has
“alleged-but it has not show[n]-that the pleader is
entitled to relief.” Id. at 679 (internal
quotation marks omitted). When the claims in a complaint have
not crossed the line from conceivable to plausible, the
complaint must be dismissed. Twombly, 550 U.S. at
complaint must contain either direct or inferential
allegations concerning “all the material elements
necessary to sustain recovery under some viable
legal theory.” Twombly, 550 U.S. at 562
(quoting Car Carriers, Inc. v. Ford ...