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Hamer v. State, Deapartment of Employment, Rehabilitation and Training, Vocational Rehabilitation Bureau

United States District Court, D. Nevada

March 30, 2018

CLARK HAMER, Plaintiff,


          Gloria M. Navarro, United States District Judge

         Pending before the Court is the Motion to Dismiss, (ECF No. 39), filed by the State of Nevada, Department of Employment, Training and Rehabilitation, Vocational Rehabilitation Bureau (“Defendant”). Pro se Plaintiff Clark Hamer (“Plaintiff”)[1] filed a Response, (ECF No. 42), and Defendant filed a Reply, (ECF No. 45).[2] For the reasons discussed herein, Defendant's Motion is GRANTED.

         I. BACKGROUND

         This case arises out of alleged violations of Title II of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12131, et seq., as well as violations of other statutory, regulatory, and constitutional rights. Specifically, Plaintiff was eligible to receive vocational rehabilitation services from Defendant due to his disability and low-income status. (Am. Compl. at 1, ECF No. 19). In August and September of 2014, Defendant approved Plaintiff for two Individualized Plans for Employment (“IPE Agreements”), under which Plaintiff was provided funding to cover his living expenses for an out-of-state training program. (See Decision and Order, Hearing No. 150-5723-PL at 7:18-10:9 (Sept. 4, 2015) (“Decision and Order”), Ex. 5 to Resp., ECF No. 42). However, Plaintiff had to exit the program because Defendant denied Plaintiff cash advances he was allegedly due pursuant to the IPE Agreements. (Am. Compl. at 2). Moreover, Plaintiff claims that Defendant denied him funding after falsely accusing him of criminal conduct. (Id.). Based on this denial, Plaintiff alleges he had to spend seventy-five percent of his Social Security Disability Income (“SSDI”) on his living expenses for a two-month period. (Id.).

         On November 20, 2014, Plaintiff filed a “Complaint of Services” with Defendant's Bureau Chief and the Nevada Equal Rights Commission. (See Decision and Order 1:13-17). Subsequently, an administrative hearing was held, and on September 4, 2015, a Hearing Officer issued an order concluding that Defendant improperly withheld Plaintiff's funding under the IPE Agreements. (Id. 24:1-25:12).

         Pursuant to this, Plaintiff originally filed this action on June 3, 2015, and then filed the instant Amended Complaint on September 26, 2016. (See Am. Compl.). Plaintiff asserts violations pursuant to: (1) the ADA; (2) Section 504 of the Rehabilitation Act of 1973; (3) the Fourteenth Amendment due process clause; (4) Continuing Disability Review Protection under SSA Ticket to Work Procedures and of the Social Security Act; (5) 42 U.S.C. § 804; (6) 18 U.S.C. § 242; (7) Title VI of the Civil Rights Act; (8) Rehabilitation Services Administration Advocacy, Enforcement, and Compliance; (9) 7 C.F.R. § 273.9; (10) 20 C.F.R. § 411.115; (11) 34 C.F.R. § 361.53; (12) Bureau of Vocational Rehabilitation's Policy and Procedure Manual; and (13) 34 C.F.R. § 361.772(c)(7). (Id. at 1). On July 12, 2017, Defendant filed the instant Motion to Dismiss. (ECF No. 39).


         A. Rule 12(b)(5)

         A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Federal Rule of Civil Procedure 4. See Direct Mail Specialists, Inc. v. Eclat Computerized Tech., Inc., 840 F.2d 685, 688 (9th Cir. 1988). Rule 12(b)(5) authorizes a defendant to move for dismissal due to insufficient service of process. See Fed. R. Civ. P. 12(b)(5). The plaintiff has the burden of demonstrating that service of process was valid. See R. Griggs Grp. Ltd. v. Filanto Spa, 920 F.Supp. 1100, 1102 (D. Nev. 1996). If service of process is insufficient, the court has discretion to dismiss an action or to simply quash service. See Fed. R. Civ. P. 4(m); SHJ v. Issaquah School Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006); Filanto Spa, 920 F.Supp. at 1102. Actual notice of a lawsuit will not subject a defendant to personal jurisdiction “if service was not made in substantial compliance with Rule 4.” Crowley v. Bannister, 734 F.3d 967, 975 (9th Cir. 2013) (quotation omitted).


         In its Motion, Defendant seeks dismissal on the following grounds: (1) Plaintiff failed to comply with Federal Rule of Civil Procedure (“FRCP”) 4(j)(2); (2) Plaintiff failed to properly serve Defendant under the FRCP and Nevada Revised Statute (“NRS”) § 41.031; (3) Plaintiff has no private right of action for some of his claims; and (4) Plaintiff has failed to state claims for which relief may be granted. (Mot. to Dismiss (“MTD”) 3:9-5:21). The Court will first address the allegations of ineffective service of process.

         A. Service of Process

         Defendant first argues for dismissal based on insufficient service of process under the FRCP. See FRCP 12(b)(5); (MTD 3:9-12). Specifically, Defendant asserts that Plaintiff's service was deficient pursuant to both FRCP 4(j)(2) and NRS § 41.031. (Id. 3:9-25).[3] The Court will address each applicable method of service in turn.

         1. ...

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