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 Tenia
McKnight has brought the case in pro se on behalf of
her minor child ("the Child").
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 Magistrate Judge issued the R&R, but before the Court
ruled on it, Plaintiff filed an amended complaint. The Court
struck that pleading because diere was no leave to file it.
Immediately after the Clerk filed the Complaint pursuant to
the screening order, 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
Plaintiffs separately filed clarification.
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 moved to dismiss based on
sovereign immunity, improper service of process, and failure
to state a claim, and NDOE separately moved to dismiss for
failure to state a claim. The Court dismissed as against
Federal Defendants based on sovereign immunity and dismissed
die claims against the remaining Defendant, with leave to
amend the claim under § 504 of the Rehabilitation Act
and the ADA discrimination claim against NDOE and/or LCSD.
Plaintiff filed the Fourth Amended Complaint
("4AC"), and the Court now screens it under §
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. Starlnt'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 plaintiffs 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.
§ 504 of the Rehabilitation Act
Individuals with Disabilities Education Act
("IDEA") creates a cause of action permitting a
disabled student to sue for appropriate relief, i.e., the
provision of a Free Appropriate Public Education
("FAPE"), but it does not provide for money
damages. Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th
Cir. 2008). Plaintiff noted in the Third Amended Complaint
that she eventually prevailed with NDOE as to the provision
of a FAPE that satisfied her requests, but she seeks money
damages for the denial of a FAPE between 2015 and 2017.
Unlike IDEA, § 504 of the RA does not focus on the
provision of FAPEs to disabled children but more broadly
addresses state services to disabled individuals.
Id. at 929 (citing 29 U.S.C. § 794). The U.S.
Department of Education has promulgated regulations
interpreting § 504 to require a FAPE, albeit under
somewhat different standards than the FAPE required by IDEA,
and the Court of Appeals has interpreted § 504 to create
an implied private cause of action for compensatory (but not
punitive) damages. Id. at 930. A FAPE that satisfies
IDEA necessarily satisfies § 504, but not vice versa.
Id. at 933.
Court therefore previously noted that there was a potential
claim for compensatory damages under § 504 if Defendants
failed to comply with § 504 between July 29, 2015 (when
Plaintiff first contacted NDOE about the issue) and February
15, 2017 (when Plaintiff received a favorable ruling). Yet a
violation of a regulation promulgated under § 504 is not
necessarily a violation of § 504 itself. Whether there
is an implied right of action to enforce regulations
promulgated under § 504 depends on "whether those
regulations come within the § 504 implied right of
action." Id. at 935. "[Regulations can
only be enforced through the private right of action
contained in a statute when they 'authoritatively
construe' the statute; regulations that go beyond a
construction of the statute's prohibitions and impose new
obligations beyond what the statute requires do not fall
within the implied private right of ...