Carin Dickmeyer v. Board of Trustees of The California State University et al

NOTICE OF MOTION AND MOTION to Dismiss Case FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORTIES IN SUPPORT

C.D. Cal.June 12, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 XAVIER BECERRA Attorney General of California JOEL A. DAVIS Supervising Deputy Attorney General DONNA M. DEAN Deputy Attorney General State Bar No. 187104 300 South Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-9442 Fax: (213) 897-2810 E-mail: Donna.Dean@doj.ca.gov Attorneys for Defendants Board of Trustees of the California State University (erroneously sued as “Board of Trustees of California State University (California State University, Northridge)”), Patricia A. Lane, Samuel J. Lingrosso, Beth Halaas, and Amy C. Levin IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA CARIN DICKMEYER, an individual, Plaintiff, v. BOARD OF TRUSTEES OF THE CALIFORNIA STATE UNIVERSITY (California State University, Northridge), a California Public Entity; PATRICIA A. LANE, an individual in her official and individual capacity; SAMUEL J. LINGROSSO, an individual in his official and individual capacity; BETH HALAAS, an individual in her official and individual capacity; AMY C. LEVIN, an individual in her official and individual capacity; and DOES ONE through TWENTY- FIVE, inclusive, Defendants. Case No.: 2:17-cv-03573 MWF (GJSx) DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Fed. R. Civ. P. 12 (b)(6)] Date: July 24, 2017 Time: 10:00 a.m. Ctrm.: 5A Assigned to the Honorable Michael W. Fitzgerald Action Filed: March 16, 2017 [Removed from the Superior Court of California, County of Los Angeles, Case No. BC654264] Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 1 of 16 Page ID #:114 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on July 24, 2017, at 10:00 a.m. before the Honorable Michael W. Fitzgerald, United States District Court Judge, in Courtroom 5A of the above-entitled court, located at 350 West 1st Street, Los Angeles, California, Defendants Patricia A. Lane, Samuel J. Lingrosso, Beth Halaas, and Amy C. Levin (collectively, Moving Defendants), will and hereby do move to dismiss, with prejudice, and without leave to amend, all claims alleged against them in Plaintiff Carin Dickmeyer’s First Amended Complaint. Specifically, Defendants seek dismissal of Plaintiff’s Sixth Cause of Action for Violation of Right to Equal Protection (42 U.S.C. section 1983) pursuant to Federal Rule of Procedure 12(b)(6) for failure to state a plausible claim upon which relief may be granted. This Motion is based upon this Notice, the attached Memorandum of Points and Authorities, oral argument at any hearing on the motion, and all other papers and pleadings on file herein. This Motion is made following the conference of counsel pursuant to Local Rule 7-3 which took place on June 2, 2017. The parties were unable to reach agreement on the issues raised in the instant motion. Dated: June 12, 2017 Respectfully submitted, XAVIER BECERRA Attorney General of California JOEL A. DAVIS Supervising Deputy Attorney General /S/ DONNA M. DEAN DONNA M. DEAN Deputy Attorney General Attorneys for Defendants Board of Trustees of the California State University (erroneously sued as “Board of Trustees of California State University (California State University, Northridge)”), Patricia A. Lane, Samuel J. Lingrosso, Beth Halaas, and Amy C. Levin Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 2 of 16 Page ID #:115 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS Page i Introduction ................................................................................................................ 1 Summary of Relevant Allegations ............................................................................. 2 Argument .................................................................................................................. 4 I. Plaintiff Has Failed to Allege a Plausible Claim for Relief Against Moving Defendants ................................................................. 4 A. Standards Governing Dismissal for Failure to State a Claim ........................................................................................... 4 B. Plaintiff Fails to Allege Sufficient Facts to State a Cognizable Equal Protection Claim Against Each Individual Moving Defendant .................................................... 5 1. Plaintiff’s Equal Protection Claim Based on Gender Fails .................................................................................. 6 2. Plaintiff’s Equal Protection Claim Based on Disability Fails ................................................................. 7 3. Plaintiff’s Claim Against Moving Defendants Based on the Alleged Failure to Accommodate Her Disability Fails ................................................................. 8 4. Plaintiff Fails to Allege a “Class-of-One” Equal Protection Claim ............................................................... 9 Conclusion ............................................................................................................... 10 Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 3 of 16 Page ID #:116 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Page ii CASES Armour v. City of Indianapolis 566 U.S. 673 (2012) .......................................................................................... 6, 7 Ashcroft v. Iqbal 556 U.S. 662 (2009) .............................................................................. 4, 5, 6, 7, 9 Avalos v. Baca 517 F. Supp. 2d 1156 (C.D. Cal. 2007) ................................................................ 7 Bell Atlantic Corporation v. Twombly 550 U.S. 544 (2007) .............................................................................................. 4 Board of Trustees of the University of Alabama v. Garrett 531 U.S. 356 (2001) .............................................................................................. 8 Caltex Plastics, Inc. v. Lockheed Martin Corp. 824 F.3d 1156 (9th Cir. 2016) ............................................................................... 4 Cato v. United States 70 F.3d 1103 (9th Cir. 1995) ................................................................................. 5 Engquist v. Oregon Dep’t of Agr. 553 U.S. 591 (2008) .............................................................................................. 9 Grutter v. Bollinger 539 U.S. 306 (2003) .............................................................................................. 6 Lee v. City of Los Angeles 250 F.3d 668 (9th Cir. 2001) ................................................................................. 7 Lopez v. Smith 203 F.3d 1122 (9th Cir. 2000) ............................................................................... 5 Nevada Dep’t of Human Res. v. Hibbs 538 U.S. 721 (2003) .............................................................................................. 7 Ruston v. Town Bd. for the Town of Skaneateles 610 F.3d 55 (2d Cir. 2010) .................................................................................... 9 Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 4 of 16 Page ID #:117 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES (continued) Page iii San Antonio Independent School Dist. v. Rodriguez 411 U.S. 1 (1973) .................................................................................................. 7 Seeboth v. Allenby 789 F.3d 1099 (9th Cir. 2015) ............................................................................ 5-6 Silveira v. Lockyer 312 F.3d 1052 (9th Cir. 2002) ............................................................................... 9 United States v. Virginia 518 U.S. 515 (1996) .............................................................................................. 6 United States v. Whitlock 639 F.3d 935 (9th Cir. 2011) ................................................................................. 6 Vinson v. Thomas 288 F.3d 1145 (9th Cir. 2002) ............................................................................... 8 Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 5 of 16 Page ID #:118 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION This case arises out of Plaintiff Carin Dickmeyer’s dispute with faculty at California State University Northridge (CSUN) regarding an admonishment she received for violating the student conduct code and two failing grades that resulted in her dismissal from CSUN’s Masters in Social Work (MSW) program. Plaintiff alleges several claims against Defendant Board of Trustees of the California State University (CSU), but only one claim against the individual defendants - based on an alleged violation of Plaintiff’s right to equal protection under the Fourteenth Amendment to the United States Constitution pursuant to 42 U.S.C. section 1983 (section 1983). Plaintiff’s civil rights claim against Defendants Patricia A. Lane, Samuel J. Lingrosso, Beth Halaas, and Amy C. Levin (collectively, Moving Defendants) contains only “threadbare recitals” of the elements of the cause of action, and, as such, Plaintiff has failed to allege a plausible claim for relief against Moving Defendants. In addition, Plaintiff will be unable to allege facts to state a plausible claim for relief against Moving Defendants because her claim is predicated on violations of the Americans with Disabilities Act (ADA) and Rehabilitation Act of 1973 (Rehabilitation Act), both of which cannot be enforced via section 1983. Indeed, Plaintiff filed her First Amended Complaint after Moving Defendants filed a motion to dismiss on the same grounds set forth in this motion, but Plaintiff failed to cure the defects in her original pleading. Accordingly, Moving Defendants request that the court dismiss Plaintiff’s First Amended Complaint as against them with prejudice and without leave to amend. // // // // Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 6 of 16 Page ID #:119 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 SUMMARY OF RELEVANT ALLEGATIONS1 Plaintiff alleges that she was enrolled in the CSUN MSW program until her dismissal in July 2015. First Amended Complaint (FAC), ¶ 7. Plaintiff further alleges that she suffers from medical conditions that require accommodations in order for her to participate in CSUN’s MSW program. Id., ¶¶ 8, 9, 10. Plaintiff alleges that Defendant Lane, a member of the faculty of CSUN’s MSW program, accused Plaintiff of committing academic dishonesty and violating the student conduct code, did not provide Plaintiff a mid-term evaluation, and made the final decision to give Plaintiff two failing grades that lead to Plaintiff’s dismissal from CSUN’s MSW program. FAC, ¶¶ 12, 13, 44-47. Plaintiff further alleges that Defendant Lane did not conduct a “fair, thorough and unbiased investigation” before making the accusations. Id., ¶¶ 47, 54. Plaintiff also alleges that Defendant Lane relied upon a letter of admonishment issued to Plaintiff based on violating the student conduct code in issuing the two failing grades, but that Defendant Lane did not follow school procedures regarding those grades. Id., ¶ 16, 51, 54. In addition, Plaintiff alleges that Defendant Lane was aware of Plaintiff’s disability, questioned the validity of Plaintiff’s accommodations, spoke about Plaintiff’s medical accommodation in class without Plaintiff’s permission, and denied Plaintiff’s request for accommodations. Id., ¶¶ 13, 38, 43, 44, 45. Plaintiff alleges that Defendant Lingrosso, the Director of Student Conduct and Ethical Development at CSUN, did not conduct “a fair, thorough and unbiased investigation” into Defendant Lane’s accusation that Plaintiff violated the student conduct code and issued a letter of admonishment to Plaintiff based on the 1 CSU has answered the complaint. Therefore, Moving Defendants do not address via this motion whether Plaintiff’s account - if proved - could demonstrate a violation of her statutory rights under the ADA or the Rehabilitation Act. Rather, this motion presents a narrower question: Did Plaintiff sufficiently plead factual matter that states a claim that Moving Defendants deprived her of her right to equal protection? Thus, the allegations against the Moving Defendants, analyzed under equal protection law, are the only ones relevant in this motion. Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 7 of 16 Page ID #:120 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 accusations of academic dishonesty and violation of the student conduct code. FAC, ¶¶ 14, 15, 16, 47, 50. Plaintiff further alleges that Defendant Lingrosso was aware of Plaintiff’s disability and denied Plaintiff’s request for accommodations when she had trouble understanding him during a meeting. Id., ¶¶ 15, 48, 49. Plaintiff alleges that Defendant Halaas, a member of the faculty of CSUN’s MSW program, was aware of Plaintiff’s disability, told Plaintiff that because of Plaintiff’s disability Plaintiff “may not be placed at an internship and would not complete the MSW program,” denied Plaintiff’s request for accommodations, and declined Plaintiff’s offer to find her own internship placement. FAC, ¶¶ 17, 18, 40. Plaintiff alleges that Defendant Levin is a member of the faculty of CSUN’s MSW program, was aware of Plaintiff’s disability, and denied Plaintiff’s request for accommodations. Id., ¶¶ 19, 20, 38. Plaintiff’s First Amended Complaint also includes vague allegations that Moving Defendants discriminated against her based on her status as a female and as a student with disabilities and implemented unspecified discriminatory policies or failed to implement or enforce unspecified policies to avoid discrimination. FAC, ¶¶ 34, 35, 55-63. Plaintiff’s only cause of action in her First Amended Complaint against Moving Defendants is the Sixth Cause of Action for Violation of Fourteenth Amendment to the United States Constitution (42 U.S.C. § 1983). In her Sixth Cause of Action, Plaintiff alleges only the following: “Defendants’ above-described conduct violated Plaintiff’s clearly established rights to equal protection under the Fourteenth Amendment to the United States constitution.” FAC, ¶ 130. // // // // // Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 8 of 16 Page ID #:121 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 ARGUMENT I. PLAINTIFF HAS FAILED TO ALLEGE A PLAUSIBLE CLAIM FOR RELIEF AGAINST MOVING DEFENDANTS A. Standards Governing Dismissal for Failure to State a Claim A motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, is proper where there is either a “lack of cognizable legal theory” or a lack of sufficient facts alleged “to support a cognizable legal theory.” Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016). To survive a Rule 12(b)(6) motion, the facts alleged must state a “facially plausible” claim for relief. Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). In Iqbal, the court explained the standard announced in Twombly as follows: To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” 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. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are “merely consistent with” a defendant's liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 U.S. at 678 (citations omitted, emphasis added). The Court articulated two basic principles governing the sufficiency of a pleading: First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. . . . Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Id. at 678-679 (citations omitted, emphasis added). // Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 9 of 16 Page ID #:122 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not “show[n]”-“that the pleader is entitled to relief.” Fed. Rule Civ. Proc. 8(a)(2). Id. at 679 (citations omitted). Thus, a complaint does not suffice if it alleges “naked assertion[s] devoid of further factual enhancement.” Id. at 678. In addition, in a complaint alleging civil rights violations against government employees, a plaintiff “must plead that each Government-official defendant, through the official’s own individual actions, has violated the Constitution.” Id. at 676, emphasis added. If the court finds that a complaint should be dismissed for failure to state a claim, the court has discretion to allow leave to amend. Lopez v. Smith, 203 F.3d 1122, 1126-30 (9th Cir. 2000). If after careful consideration, it is clear that a complaint cannot be cured by amendment, the court may dismiss without leave to amend. Cato v. United States, 70 F.3d 1103, 1107-11 (9th Cir. 1995). B. Plaintiff Fails to Allege Sufficient Facts to State a Cognizable Equal Protection Claim Against Each Individual Moving Defendant In her sole cause of action against Moving Defendants, Plaintiff alleges that Moving Defendants unlawfully discriminated against her in violation of her Fourteenth Amendment equal protection rights. When governmental actions are challenged on equal protection grounds, the level of scrutiny under which the action is reviewed depends upon the class of persons affected by the decision. See Seeboth v. Allenby, 789 F.3d 1099, 1104 (9th Cir. 2015), cert. denied, 136 S. Ct. 1168, 194 L. Ed. 2d 190 (2016). In Seeboth, the Ninth Circuit explained as follows: If the classification targets a suspect class or burdens the exercise of a fundamental right, we apply strict scrutiny and ask whether the statute is narrowly tailored to serve a compelling governmental interest. If a law discriminates against a quasi-suspect class, it is subject to intermediate scrutiny; to survive a constitutional challenge, such discrimination must Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 10 of 16 Page ID #:123 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 substantially relate to an important governmental objective. Id.; see also, Grutter v. Bollinger, 539 U.S. 306, 326, 123 S. Ct. 2325, 156 L. Ed. 2d 304 (2003) (all racial classifications are subject to strict scrutiny); United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 135 L. Ed. 2d 735 (1996) (gender- based classifications are subject to intermediate scrutiny). If a challenged classification does not implicate a protected class or burden a fundamental right, it is subject to rational basis review and is valid as long as “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Armour v. City of Indianapolis, 566 U.S. 673, 681, 132 S. Ct. 2073, 182 L. Ed. 2d 998 (2012) (quoting FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993)); see also United States v. Whitlock, 639 F.3d 935, 941 (9th Cir. 2011). 1. Plaintiff’s Equal Protection Claim Based on Gender Fails Plaintiff’s allegations based on gender discrimination fail to state a cognizable equal protection claim against Moving Defendants. Plaintiff alleges “on information and belief” that two male students were treated differently from her because neither was dismissed from the MSW program after one was investigated for an unspecified violation of the student conduct code and the other requested and received unspecified accommodations. FAC, ¶¶ 55-57. Plaintiff’s vague allegations regarding her equal protection claim based on gender do not satisfy the pleading standards set forth in Iqbal. Plaintiff fails to identify any specific conduct by any individual Moving Defendant that violated her right to equal protection based on her gender. Instead, Plaintiff merely makes the conclusory allegations that “Defendants, including Defendant Lane, Defendant Levin, Defendant Halaas, and/or Defendant Lingrosso” followed university policy with respect to investigating student conduct code violations or provided accommodations to two male students while failing to do the same for her. Id., ¶¶ 55-61, emphasis added. Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 11 of 16 Page ID #:124 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 A plaintiff cannot state a claim under section 1983 absent allegations of personal involvement in the constitutional violation by each individual defendant. Iqbal, 556 U.S. at 676; see also, Avalos v. Baca, 517 F. Supp. 2d 1156, 1166-1168 (C.D. Cal. 2007), aff’d, 596 F.3d 583 (9th Cir. 2010). Thus, Plaintiff’s “naked assertion[s] devoid of further factual enhancement” fail to state a section 1983 cause of action against any of the Moving Defendants based on gender discrimination. Iqbal, 556 U.S. at 678. 2. Plaintiff’s Equal Protection Claim Based on Disability Fails Plaintiff has not alleged that she belongs to a protected class because disabled individuals are not a protected class subject to strict scrutiny within the meaning of the Equal Protection Clause of the Fourteenth Amendment. Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 735, 123 S. Ct. 1972, 155 L. Ed. 2d 953 (2003); Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001). In addition, Plaintiff has not alleged that Moving Defendants burdened a fundamental right because there is no constitutional right to a post-secondary education. See San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 35, 36 L. Ed. 2d 16, 93 S. Ct. 1278 (1973). Thus, Moving Defendants’ actions must meet the rational basis review test and do not violate equal protection if “there is any reasonably conceivable state of facts that could provide a rational basis” for those actions. Armour, 566 U.S. at 681, emphasis added. The alleged conduct of the Moving Defendants easily passes rational basis review. Moving Defendants could rationally conclude that a student who committed academic dishonesty, violated the student conduct code, received a letter of admonishment, and received two failing grades should be dismissed from CSUN’s MSW program. Accordingly, Plaintiff has failed to allege facts sufficient to state a cognizable equal protection claim based on disability. // // Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 12 of 16 Page ID #:125 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 3. Plaintiff’s Claim Against Moving Defendants Based on the Alleged Failure to Accommodate Her Disability Fails The gravamen of Plaintiff’s First Amended Complaint against Moving Defendants is that Moving Defendants were aware of her disability and failed to provide accommodations for her disability either with respect to her internship placement or during the investigation into accusations against her of academic dishonesty. FAC, ¶¶ 11-14, 16-19, 36, 39, 41-43, 45, 47. The right to special accommodations for individuals with disabilities does not arise through the Equal Protection Clause of the Fourteenth Amendment, but instead via “positive law” such as the ADA or the Rehabilitation Act. Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 367, 121 S. Ct. 955; 148 L. Ed. 2d 866 (2001). ADA and Rehabilitation Act claims cannot be brought under section 1983. Vinson v. Thomas, 288 F.3d 1145, 1155-1156 (9th Cir. 2002). An alleged violation of federal law cannot be vindicated under section 1983 where Congress has foreclosed citizen enforcement in the enactment itself, either explicitly, or implicitly by imbuing it with its own comprehensive remedial scheme. . . . [A] comprehensive remedial scheme for the enforcement of a statutory right creates a presumption that Congress intended to foreclose resort to more general remedial schemes to vindicate that right. Id. at 1155, citations omitted. Since Congress provided a comprehensive remedial scheme in the ADA and the Rehabilitation Act, a plaintiff cannot maintain a section 1983 action “in lieu of - or in addition to - a Rehabilitation Act or ADA cause of action if the only deprivation is of the [plaintiff’s] rights created by the Rehabilitation Act and the ADA.” Id. at 1156, quoting Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997). Here, Plaintiff’s equal protection claim is predicated on the ADA and Rehabilitation Act. The Ninth Circuit has foreclosed such a cause of action. Therefore, the claim should be dismissed. // // Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 13 of 16 Page ID #:126 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 4. Plaintiff Fails to Allege a “Class-of-One” Equal Protection Claim A plaintiff can plead a “class-of-one” equal protection claim by demonstrating that the defendant subjected the plaintiff to disparate treatment compared to other persons who are “similarly situated.” Engquist v. Oregon Dep’t of Agr., 553 U.S. 591, 602, 128 S. Ct. 2146, 170 L. Ed. 2d 975 (2008). “Similarly situated” persons are those “who are in all relevant respects alike.” Silveira v. Lockyer, 312 F.3d 1052, 1088 (9th Cir. 2002), as amended (Jan. 27, 2003), cert. denied, 540 U.S. 1046, 124 S. Ct. 803, 157 L. Ed. 2d 693, quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992)), or, put another way, who are “arguably indistinguishable.” Engquist, 553 U.S. at 601, quoting Ross v. Moffitt, 417 U.S. 600, 609, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974)). Under the pleading standards in Iqbal, a “class-of-one” plaintiff must plead sufficient facts to “show an extremely high degree of similarity between themselves and the persons to whom they compare themselves.” Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010), emphasis added. Plaintiff’s First Amended Complaint fails to meet the pleading standards for a “class-of-one” equal protection claim because Plaintiff fails to “show an extremely high degree of similarity” between herself and the others to whom she compares herself and fails to plead facts supporting her disparate treatment claim. As discussed above, Plaintiff makes vague allegations on information and belief that two male students were treated differently from her. FAC, ¶¶ 55-57. These allegations fail to demonstrate that Plaintiff and the two unidentified male students are “in all relevant respects alike” or “arguably indistinguishable.” Silveira, 312 F.3d at 1088; Engquist, 553 U.S. at 601. In addition, Plaintiff fails to plead facts sufficient to state a plausible claim of disparate treatment because she fails to identify any specific procedures or types of accommodations afforded to the two other students but denied to her. Finally, Plaintiff fails to specify which, if any, of Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 14 of 16 Page ID #:127 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 the individual Moving Defendants treated her differently compared to “similarly situated” students and how they did so. Instead, Plaintiff merely alleges that “Defendants, including Defendant Lane, Defendant Levin, Defendant Halaas, and/or Defendant Lingrosso” followed university policy or provided accommodations to others while failing to do the same for her. Id., ¶¶ 55-61, emphasis added. Plaintiff’s Sixth Cause of Action against Moving Defendants fails to state a plausible claim for relief and should therefore be dismissed. Moving Defendants submit that Plaintiff will be unable to amend her complaint as against them to state a plausible claim for relief - especially given that she failed to cure the pleading defects in her original complaint when faced with a motion to dismiss on the same grounds presented here. Therefore, Plaintiff should not be given leave to amend. CONCLUSION Plaintiff’s allegations against the Moving Defendants are vague and conclusory, and Plaintiff improperly attempts to hold each Moving Defendant liable based on the conduct of others. In addition, Plaintiff improperly attempts to hold individual defendants liable for violations of the ADA and the Rehabilitation Act by asserting an equal protection claim that is actually based on the alleged failure to accommodate her disability. Plaintiff has not stated a cognizable claim for violation of her equal protection rights against any of the Moving Defendants. Accordingly, Moving Defendants request that Plaintiff’s First Amended Complaint be dismissed as against them with prejudice and without leave to amend. // // // // // Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 15 of 16 Page ID #:128 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 Dated: June 12, 2017 Respectfully submitted, XAVIER BECERRA Attorney General of California JOEL A. DAVIS Supervising Deputy Attorney General /s/ Donna M. Dean DONNA M. DEAN Deputy Attorney General Attorneys for Defendants Board of Trustees of the California State University (erroneously sued as “Board of Trustees of California State University (California State University, Northridge)”), Patricia A. Lane, Samuel J. Lingrosso, Beth Halaas, and Amy C. Levin LA2017505375 62414345.doc Case 2:17-cv-03573-MWF-GJS Document 14 Filed 06/12/17 Page 16 of 16 Page ID #:129