United States District Court, D. Nevada
ORDER AND REPORT AND RECOMMENDATION RE: AMENDED
COMPLAINT (ECF NO. 6), REQUEST FOR STATUS UPDATE (ECF NO.
J. YOUCHAH UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff Steven Cohen's Request for
Status Update. ECF No. 8. On August 1, 2019, Magistrate Judge
George Foley, Jr. granted Plaintiff's Application for
Leave to Proceed in forma pauperis and dismissed
Plaintiff's Complaint (ECF No. 1) without prejudice with
leave to amend. ECF No. 4. Thereafter, Plaintiff timely filed
his Amended Complaint (ECF No. 6), which the Court screens
Screening Plaintiff's Amended Complaint (ECF No.
screening the complaint, a court must identify cognizable
claims and dismiss claims that are frivolous, malicious, file
to state a claim on which relief may be granted or seek
monetary relief from a defendant who is immune from such
relief. 28 U.S.C. § 1915(e)(2). Dismissal for failure to
state a claim under § 1915(e)(2) incorporates the
standard for failure to state a claim under Federal Rule of
Civil Procedure 12(b)(6). Watison v. Carter, 668
F.3d 1108, 1112 (9th Cir. 2012). To survive § 1915
review, a complaint must “contain sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). The court liberally construes pro se
complaints and may only dismiss them “if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to
relief.” Nordstrom v. Ryan, 762 F.3d 903, 908
(9th Cir. 2014) (quoting Iqbal, 556 U.S. at 678).
considering whether the complaint is sufficient to state a
claim, all allegations of material fact are taken as true and
construed in the light most favorable to the plaintiff.
Wyler Summit P'ship v. Turner Broad. Sys. Inc.,
135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
Although the standard under Rule 12(b)(6) does not require
detailed factual allegations, a plaintiff must provide more
than mere labels and conclusions. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). A formulaic
recitation of the elements of a cause of action is
insufficient. Id. Unless it is clear the
complaint's deficiencies could not be cured through
amendment, a pro se plaintiff should be given leave
to amend the complaint with notice regarding the
complaint's deficiencies. Cato v. United States,
70 F.3d 1103, 1106 (9th Cir. 1995).
Amended Complaint appears to allege claims of wrongful
termination and discrimination based on disability under
Title II of the Americans with Disabilities Act
(“ADA”). ECF No. 6. Plaintiff also alleges that
“[i]n addition to the ADAAA, by terminating an employee
who had disclosed a disability, and [who had] followed
Personnel's requests to demonstrate coverage under the
ADAAA, Respondents concurrently violated Sections 501, 504,
and 508 of the Rehabilitation Act of 1973.”
Id. at 4:12-14.
Specifically, Plaintiff claims that he:
requested a tape recorder, or its technological successor, to
record monthly Facility Outreach Community Integration
Services (FOCIS) program meetings, for purposes of fulfilling
the essential job function of preparing meeting minutes. On
December 18th, 2018, Petitioner's health care provider
submitted verifiable documentation to move the interactive
process forward. . . . Respondent “The Division”
only granted more time to complete the minutes, while not
resolving the issue which formed the basis for the request.
Additional evidence had been provided supporting additional
concerns with fulfilling the essential functions of the job,
as recently as December 26th, 2018. Despite Respondent
“The Division'”s [sic] duty to participate in
the interactive process, “The Division” instead
terminated Petitioner's employment, effective January
Id. at 3:19-28.
Ninth Circuit confirms that “when viewed as a whole,
the text, context and structure of the ADA show unambiguously
that Congress did not intend for Title II to apply to
employment.” Zimmerman v. Oregon Dep't of
Justice, 170 F.3d 1169, 1178 (9th Cir. 1999). Instead,
Plaintiff's wrongful termination and discrimination
claims based on disability should have been brought under
Title I of the ADA. “Congress created a comprehensive
statutory scheme prohibiting employment discrimination. In
Title II, headed ‘Public Services, ” Congress
prohibited governments from discriminating against disabled
persons in providing services such as transportation or
parks. Allowing employment discrimination claims under Title
II would make Title I almost completely redundant as applied
to public employees.” Id. at 1171-72 (internal
on the foregoing, the Court recommends that Plaintiff's
wrongful termination and disability discrimination claims
under Title II of the ADA be dismissed with prejudice as
amendment would be futile.
even assuming Plaintiff brought this action under Title I of
the ADA, he has not demonstrated exhaustion of his
administrative remedies. Leine v. California Dept. of
Rehabilitation, 205 F.3d 1351, *1 (9th Cir. 1999)
(“Title I . . . has an exhaustion requirement, but
Title II does not”) (internal citation
omitted). Magistrate Judge Foley, Jr. stated in his
August 1, 2019 Order that Plaintiff “references an
Equal Employment Opportunity Commission (‘EEOC')
investigation but failed to provide the requisite Notice of
Right to Sue letter issued by the Commission.” ECF No.
4 at 3:9-11. In the Amended Complaint, Plaintiff not only
fails to attach the EEOC's Notice of Right to Sue Letter
again, but also references an “Information to Be
Provided inquiry with the Nevada Equal Rights Commission
(NERC) and EEOC on or about December 10th-11th, 2018”
(ECF No. 6 at 2:22-23) and “an information gathering
interview on March 1st, 2019” with the EEOC
(id. at 2:25-26) without attaching documentation.
Plaintiff must demonstrate, either through an allegation in
his complaint or through attaching a right to sue letter,
that he has exhausted his administrative remedies before the
Court will proceed with this case under Title I of the ADA.
Plaintiff appears to bring a disability discrimination claim
in violation of the Rehabilitation Act. Although “the
Rehabilitation Act's provisions . . . do not require an
employee to pursue any administrative relief, ”
Plaintiff fails to sufficiently allege a factual or legal
basis for this claim. Zimmerman, 170 F.3d at 1178.
In order for Plaintiff to establish a prima facie
case of disability discrimination under the Rehabilitation
Act, he must provide evidence that: “(1) he was
disabled within the meaning of the Rehabilitation Act, 29
U.S.C. § 791; (2) he was otherwise qualified to perform
the essential functions of his position with or without
reasonable accommodation; and (3) an adverse employment
decision was made against him solely because of his
disability.” Kendall v. Mukasey, 282 Fed.Appx.
527, 529 (9th Cir. 2008) (internal citation omitted).
Plaintiff sufficiently alleges that he suffered an adverse
employment action solely because of his disability, but fails
to specify what disability he suffers from or that he was
qualified to perform the essential functions of his position
with or without reasonable accommodation. Id. The
Court will therefore dismiss Plaintiff's disability
discrimination claim under the Rehabilitation Act without
prejudice with leave to amend to correct the noted