United States District Court, D. Nevada
M. Navarro, United States District Judge
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”) filed a Response, (ECF No. 42), and
Defendant filed a Reply, (ECF No. 45). For the reasons
discussed herein, Defendant's Motion is
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
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.
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).
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).
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.
Service of Process
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). The Court will address each
applicable method of service in turn.