United States District Court, D. Nevada
C. JONES, UNITED STATES DISTRICT JUDGE
case arises out of a school district's alleged failure to
properly accommodate a child with a learning disability.
Pending before the Court is a motion for summary judgment.
FACTS AND PROCEDURAL HISTORY
Terria McKnight's original Complaint alleged violations
of the Fifth, Eighth, and Ninth Amendments, § 504 of the
Rehabilitation Act of 1973, 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.
the Magistrate Judge issued the R&R, but before the Court
ruled, 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 pursuant to
the screening order, Plaintiff filed a new Amended Complaint
(“AC”) as of right. 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.
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. NDOE separately moved to dismiss for
failure to state a claim. The Court dismissed as against
Federal Defendants based on sovereign immunity and dismissed
the claims against NDOE, with leave to amend the claim under
§ 504 and the ADA discrimination claim against NDOE
filed the Fourth Amended Complaint (“4AC”), and
the Court screened it under § 1915, permitting the ADA
discrimination claim to proceed, but dismissing the claim
under § 504. The remaining Defendant, LCSD, answered the
ADA claim. Plaintiff asked the Court to clarify. She did not
ask the Court to clarify the effect of the order or the
procedural posture of the case but to answer a list of
factual and legal questions. The Court denied the motion
because addressing Plaintiff's questions would have
constituted an advisory opinion and undermined the
Court's impartial role. Plaintiff then asked the Court to
reconsider dismissal of the § 504 claim, and the Court
denied the motion as untimely. LCSD has moved for summary
judgment against the remaining claim under the ADA.
must grant summary judgment when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). Material facts are those which may affect
the outcome of the case. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute as to a
material fact is genuine if there is sufficient evidence for
a reasonable jury to return a verdict for the nonmoving
party. Id. A principal purpose of summary judgment
is “to isolate and dispose of factually unsupported
claims.” Celotex Corp. v. Catrett, 477 U.S.
317, 323-24 (1986).
determining summary judgment, a court uses a burden-shifting
scheme. The moving party must first satisfy its initial
burden. “When the party moving for summary judgment
would bear the burden of proof at trial, it must come forward
with evidence which would entitle it to a directed verdict if
the evidence went uncontroverted at trial.” C.A.R.
Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d
474, 480 (9th Cir. 2000) (citation and internal quotation
marks omitted). In contrast, when the nonmoving party bears
the burden of proving the claim or defense, the moving party
can meet its burden in two ways: (1) by presenting evidence
to negate an essential element of the nonmoving party's
case; or (2) by demonstrating that the nonmoving party failed
to make a showing sufficient to establish an element
essential to that party's case on which that party will
bear the burden of proof at trial. Celotex Corp.,
477 U.S. at 323-24.
moving party fails to meet its initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party's evidence. Adickes v. S.H. Kress
& Co., 398 U.S. 144 (1970). If the moving party
meets its initial burden, the burden then shifts to the
opposing party to establish a genuine issue of material fact.
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). To establish the existence of a
factual dispute, the opposing party need not establish a
material issue of fact conclusively in its favor. It is
sufficient that “the claimed factual dispute be shown
to require a jury or judge to resolve the parties'
differing versions of the truth at trial.” T.W.
Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n,
809 F.2d 626, 631 (9th Cir. 1987). In other words, the
nonmoving party cannot avoid summary judgment by relying
solely on conclusory allegations unsupported by facts.
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
Instead, the opposition must go beyond the assertions and
allegations of the pleadings and set forth specific facts by
producing competent evidence that shows a genuine issue for
trial. Fed.R.Civ.P. 56(e); Celotex Corp., 477 U.S.
summary judgment stage, a court's function is not to
weigh the evidence and determine the truth, but to determine
whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. The evidence of the
nonmovant is “to be believed, and all justifiable
inferences are to be drawn in his favor.” Id.
at 255. But if the evidence of the nonmoving party is merely
colorable or is not significantly probative, summary judgment
may be granted. Id. at 249-50. Notably, facts are
only viewed in the light most favorable to the nonmoving
party where there is a genuine dispute about those facts.
Scott v. Harris, 550 U.S. 372, 380 (2007). That is,
even if the underlying claim contains a reasonableness test,
where a party's evidence is so clearly contradicted by
the record as a whole that no reasonable jury could believe
it, “a court should not adopt that version of the facts
for purposes of ruling on a motion for summary
notes that Plaintiff's ADA claim is based on the alleged
discrimination against her son by failure to provide him a
FAPE, specifically, failure to provide him with audiobooks or
a professional assistant rather than giving him help by
reading with other children. LCSD first argues that Plaintiff
failed to exhaust administrative remedies, which is a
requirement under § 1415(1) when the crux of the
complaint is failure to provide a FAPE, no matter what
statute is invoked. Fry v. Napolean Cnty. Sch.
Dist., 137 S.Ct. 743, 754 (2017). In other words, if
administrative remedies under § 1415(1) were not
exhausted, the action may not proceed on a
failure-to-provide-a-FAPE theory, even under the ADA. LCSD
admits there have been three due process ...