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McKnight v. Seattle Office of Rights

United States District Court, D. Nevada

January 18, 2018

TERRIA MCKNIGHT et al. Plaintiffs,
SEATTLE OFFICE OF RIGHTS et al., Defendants.


          ROBERT C. JONES, United States District Judge

         This 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.


         Plaintiff 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.

         After 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 clarification.

         Plaintiff 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.


         Federal 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).

         A 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).

         “Generally, 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. 2001).

         III. ANALYSIS

         A. Federal Defendants

         The 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 immunity.

         B. ...

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