United States District Court, D. Nevada
TERRIA MCKNIGHT et al. Plaintiffs,
SEATTLE OFFICE OF RIGHTS et al., Defendants.
C. JONES, United States District Judge
case arises out of a school district's alleged failure to
properly accommodate a disabled child. Plaintiff Terria
McKnight has brought the case in pro se on behalf of
her minor child (“the Child”). Pending before the
Court are three motions to dismiss and two motions to amend.
FACTS AND PROCEDURAL HISTORY
attached the original Complaint to her motion to proceed
in forma pauperis. The Complaint alleged violations
of the Fifth, Eighth, and Ninth Amendments, § 504 of the
Rehabilitation Act of 1973 (“RA”), and the
Americans with Disabilities Act of 1990 (“ADA”).
Plaintiff had filed a complaint with the U.S. Department of
Education, Office for Civil Rights (“OCR”) on
August 5, 2015, complaining that the Lyon County School
District (“LCSD”) had failed to provide her son
with a free appropriate public education (“FAPE”)
by failing to provide him with an aide. She also complained
of the way OCR handled her case. Upon screening under 28
U.S.C. § 1915, the Magistrate Judge issued a Report and
Recommendation (“R&R”) to grant the
application to proceed in forma pauperis, strike the
prayer for damages against OCR under § 504, dismiss the
§ 504 and ADA claims with leave to amend, permit the
retaliation claim to proceed, and dismiss the remaining
claims with prejudice. The Court adopted the R&R, and the
Clerk filed the Complaint.
the Magistrate Judge issued the R&R, but before the Court
ruled on it, Plaintiff filed an amended complaint. The Court
struck that pleading because there was no leave to file it.
Immediately after the Clerk filed the Complaint, Plaintiff
filed a new Amended Complaint (“AC”) as of right.
The Magistrate Judge did not screen the AC and issued a
summons with the unscreened AC attached thereto. The Nevada
Department of Education (“NDOE”), Will Jensen,
and Marva Cleven moved to dismiss the AC. The Court granted
the motion, with leave to amend in part. The Court dismissed
the sixth cause of action (titled “doctrine of
exhaustion”) as against all Defendants and dismissed
any claims under 42 U.S.C. § 1983 as against NDOE,
without leave to amend. The Court dismissed Lyon County as a
Defendant in accordance with Plaintiff's separately filed
filed the Third Amended Complaint (“TAC”),
listing three claims (§ 504 of the ADA, Title II of the
ADA, and retaliation) against “Seattle Office of Civil
Rights, ” Linda Mangel, Tania Lopez, Paul Goodwin,
Monique Malson, Caitlin Burks, Monique Malson (collectively,
“Federal Defendants”), and NDOE. Mangel, Lopez,
Goodwin, Burks, and Malson are attorneys for OCR, which
Plaintiff refers to as “Seattle Office of Civil
Rights.” Federal Defendants have moved to dismiss based
on sovereign immunity, improper service of process, and
failure to state a claim. NDOE has separately moved to
dismiss for failure to state a claim.
Rule of Civil Procedure 8(a)(2) requires only “a short
and plain statement of the claim showing that the pleader is
entitled to relief” in order to “give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Conley v.
Gibson, 355 U.S. 41, 47 (1957). Federal Rule of Civil
Procedure 12(b)(6) mandates that a court dismiss a cause of
action that fails to state a claim upon which relief can be
granted. A motion to dismiss under Rule 12(b)(6) tests the
complaint's sufficiency. See N. Star Int'l v.
Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir.
1983). When considering a motion to dismiss under Rule
12(b)(6) for failure to state a claim, dismissal is
appropriate only when the complaint does not give the
defendant fair notice of a legally cognizable claim and the
grounds on which it rests. See Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). In considering
whether the complaint is sufficient to state a claim, the
court will take all material allegations as true and construe
them in the light most favorable to the plaintiff. See NL
Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.
1986). The court, however, is not required to accept as true
allegations that are merely conclusory, unwarranted
deductions of fact, or unreasonable inferences. See
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001).
formulaic recitation of a cause of action with conclusory
allegations is not sufficient; a plaintiff must plead facts
pertaining to his own case making a violation
“plausible, ” not just “possible.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-79 (2009)
(citing Twombly, 550 U.S. at 556) (“A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”). That is, under the modern interpretation of
Rule 8(a), a plaintiff must not only specify or imply a
cognizable legal theory (Conley review), he must
also allege the facts of his case so that the court can
determine whether he has any basis for relief under the legal
theory he has specified or implied, assuming the facts are as
he alleges (Twombly-Iqbal review). Put differently,
Conley only required a plaintiff to identify a major
premise (a legal theory) and conclude liability therefrom,
but Twombly-Iqbal requires a plaintiff additionally
to allege minor premises (facts of the plaintiff's case)
such that the syllogism showing liability is complete and
that liability necessarily, not only possibly, follows
(assuming the allegations of fact are true).
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion. However,
material which is properly submitted as part of the complaint
may be considered on a motion to dismiss.” Hal
Roach Studios, Inc. v. Richard Feiner & Co., 896
F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted).
Similarly, “documents whose contents are alleged in a
complaint and whose authenticity no party questions, but
which are not physically attached to the pleading, may be
considered in ruling on a Rule 12(b)(6) motion to
dismiss” without converting the motion to dismiss into
a motion for summary judgment. Branch v. Tunnell, 14
F.3d 449, 454 (9th Cir. 1994). Moreover, under Federal Rule
of Evidence 201, a court may take judicial notice of
“matters of public record.” Mack v. S. Bay
Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir.
1986). Otherwise, if the district court considers materials
outside of the pleadings, the motion to dismiss is converted
into a motion for summary judgment. See Arpin v. Santa
Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir.
Court agrees that Plaintiff has identified no waiver of
sovereign immunity, and without one the United States and its
employees are immune from suit. See FDIC v. Meyer,
510 U.S. 471, 475 (1994); Gilbert v. DaGrossa, 756
F.2d 1455, 1458 (9th Cir. 1985). In response, Plaintiff
invokes the Federal Tort Claims Act (“FTCA”).
See 28 U.S.C. § 1346(b) (creating jurisdiction
in the district court for civil claims arising out of the
negligence of a federal employee causing injury, death, or
loss of property). But Plaintiff has pled no such injury. She
has complained of dissatisfaction with administrative
investigation and enforcement. The allegedly wrongful failure
to enforce a statute or regulation does not constitute injury
or loss of property under the FTCA. And claims that OCR did
not properly enforce § 504 or related laws are not
subject to district court review under the Administrative
Procedure Act (“APA”). See Pudlin v.
OCR, 186 F.Supp.3d 288, 293 (S.D.N.Y. 2016). Enforcement
decisions are exempt from APA review. Heckler v.
Chaney, 470 U.S. 821, 838 (1985) (holding that agency
refusals to institute investigative or enforcement
proceedings is within the discretionary exception to 5 U.S.C.
§ 701(a)(2)). Federal Defendants are entitled to
dismissal for lack of jurisdiction based on sovereign