United States District Court, D. Arizona
HONORABLE RANERC. COLLINS SENIOR UNITED STATES DISTRICT
before the Court are several motions to dismiss by (1)
Defendants Southern Arizona Veterans Administration Health
Care System (“VA”) and United States Air Force,
Davis Monthan Air Force Base (“DMAFB”)
(collectively “Federal Defendants”) (Doc. 121);
(2) Defendant Banner University Medical Center
(“Banner”) (Doc. 105); Defendant Genoa
Healthcare, LLC (“Genoa”) (Doc. 117); and
Defendant Arizona Board of Regents (“ABOR”) (Doc.
99). Also pending is ABOR's Motion to Strike
Plaintiff's Objection to ABOR's Reply. (Doc. 115.)
The Court will address each motion in turn.
Standard of Review
motion under 12(b)(6) must contain a “short and plain
statement of the claim showing that the pleader is entitled
to relief.” Fed.R.Civ.P. 8(a)(2). While Rule 8 does not
require detailed factual allegations, “it demands more
than an unadorned, the defendant unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). “[A] complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Id. (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible
“when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Id. But
the complaint must contain more than “a statement of
facts that merely creates a suspicion [of] a legally
cognizable right of action.” Twombly, 550 U.S.
at 555. “Determining whether a complaint states a
plausible claim for relief [is] . . . a context-specific task
that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S.
at 679. So, although a plaintiff's specific factual
allegations may be consistent with a federal cause of action,
a court must assess whether there are other “more
likely explanations” for a defendant's conduct.
Id. at 681.
drafted by pro se litigants are held to less stringent
standards than complaints formally filed by lawyers.
Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010).
But, to avoid dismissal, even a pro se plaintiff must provide
a legal theory that is cognizable and allege sufficient facts
to support a cognizable legal theory. See Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001).
Federal Defendants' Motion to Dismiss
appears to raise claims of intentional infliction of
emotional distress (“IIED”), defamation, civil
conspiracy, discrimination, retaliation, and hostile
environment against Federal Defendants. Federal Defendants
ask the Court to dismiss these claims for lack of subject
matter jurisdiction and failure to state a claim.
Subject Matter Jurisdiction and Factual v. Facial
are two types of challenges to subject matter jurisdiction:
factual and facial. A facial attack challenges the
sufficiency of the factual allegations in the complaint,
arguing that the facts as pled do not give rise to subject
matter jurisdiction in federal court. Courthouse News
Service v. Planet, 750 F.3d 776, 780 (9th Cir. 2014). In
a facial attack the court may not look at evidence outside
the complaint and must take the non-moving parties'
allegations as true. Id.
factual attack challenges “the truth of the allegations
contained in a complaint that, by themselves, would otherwise
invoke federal jurisdiction.” Safe Air for Everyone
v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a
factual attack, the court may look at evidence outside of the
complaint to decide the motion to dismiss without converting
it into a motion for summary judgment. Id. Moreover,
in this form of attack, the reviewing court need not take the
Plaintiff's allegations as true. Id. If the
party challenging jurisdiction presents evidence that
demonstrates the court's lack of jurisdiction, then the
non-movant must produce evidence that subject matter
jurisdiction does, in fact, exist. Id.
Defendants raise a facial attack because they question the
sufficiency of the factual allegations-they claim that the
facts are too vague to raise subject matter jurisdiction. In
addition, they argue that Plaintiff's allegations must be
brought under either the Federal Tort Claims Act
(“FTCA”) or the Rehabilitation Act
(“RA”), not under the statutes addressing
discrimination. They argue that the statutes Plaintiff
believes are applicable-42 U.S.C. § 2000d and 29 U.S.C.
§ 794-do not provide an independent cause of action, but
merely describe prohibited conduct. Under the FTCA, they
argue, Plaintiff must first exhaust her administrative
remedies before the court can exercise jurisdiction over her
claims. Since Plaintiff has not shown exhaustion, her tort
claims of IIED and defamation are precluded and are now time
barred. Moreover, Federal Defendants assert that under the
FTCA, Plaintiff's claims are precluded because Federal
Defendants enjoy sovereign immunity. Finally, Federal
Defendants assert that the civil conspiracy claim under the
RA fails because it seeks money damages and the government
has not waived sovereign immunity. See Lane v. Pena,
518 U.S. 187, 197 (1996).
Court will treat the matter as a facial attack and views the
facts in the light most favorable to Plaintiff.
argues that her claims are focused on civil conspiracy and
retaliation under Section 504 of the RA and are not precluded
because the RA does not require exhaustion of remedies.
Furthermore, she asserts that the civil conspiracy claim is
inextricably intertwined with the IIED and defamation claims,
which should not be evaluated as individual torts under the
FTCA. Rather, the tort claims should be considered part and
parcel of the federal discrimination and retaliation claims.
She cites no case law requiring such consolidation. The Court
finds Plaintiff must plead facts supporting the elements of
each claim, but for the reasons set forth below,
Plaintiff's individual claims fail.
IIED and Defamation
FTCA “is the exclusive remedy for tortious conduct by
the United States.” Fed. Deposit Ins. Corp. v.
Craft, 157 F.3d 697, 706 (9th Cir. 1998); 28 U.S.C.
§ 2679. Under the FTCA, liability may be imposed
“under circumstances where the United States, if a
private person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b); see also
United States. v. Olsen, 546 U.S. 43, 44 (2005).
However, it is a claimant's burden to show that the
United State has waived its immunity against the claims
presented. See Prescott. v. United States, 973 F.2d
696, 701 (9th Cir. 1992). Furthermore, a district court lacks
jurisdiction to consider an FTCA claim unless the claimant
has first exhausted the administrative remedies available to
him or her. 28 U.S.C. § 2675(a); D.L. ex rel. Junio
v. Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017);
Brady v. United States, 211 F.3d 499, 502 (9th Cir.
parties agree that Federal Defendants are governmental
entities. As such, any tort claims against them must be
brought under the FTCA. See 28 U.S.C. §
2679(b)(1). This includes Plaintiff's IIED and defamation
claims, regardless of whether the underlying facts for the
torts also support Plaintiff's alleged discrimination,
retaliation, or hostile environment claims.
Plaintiff has not met her burden of showing that the
government has waived its sovereign immunity as to these
claims. Second, Plaintiff does not claim she exhausted her
administrative remedies, but merely states that exhaustion is
not required. Since the tort allegations must be raised under
the FTCA they require exhaustion. Because she has not
exhausted her administrative remedies and the time to exhaust
these claims has now expired, these claims shall be dismissed
in Arizona “requires that two or more individuals agree
and thereupon accomplish ‘an underlying tort which the
alleged conspirators agree to commit.'” Wells
Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons
Local No. 395 Pension Tr. Fund, 38 P.3d 12, 37 (Ariz.
2002) (quoting Baker v. Stewart Title & Trust of
Phoenix, 5 P.3d 249, 256 (Ariz.Ct.App. 2000)). Likewise,
civil conspiracy under 42 U.S.C. § 1985(c) requires
“the existence of a conspiracy to deprive the plaintiff
of the equal protection of the laws; an act in furtherance of
the conspiracy; and a resulting injury.” Scott v.
Ross¸ 140 F.3d 1275, 1284 (9th Cir. 1998);
United Bhd. of Carpenters and Joiners of Am. v.
Scott, 463 U.S. 825, 828-29 (1983). Plaintiff has raised
neither a state nor a federal claim of civil conspiracy.
difficult to follow, Plaintiff's allegations against
Federal Defendants are as follows. Plaintiff is a pharmacy
student at the University of Arizona (“U of A”).
She has “a documented learning disability including a
processing disorder which delays/prolongs writing” as
well as Attention Deficit Hyperactivity Disorder
(“ADHD”). (Doc. 74 at 2.) Based on these
disabilities, she was permitted an accommodation that allows
her (1) to take tests “with minimal distraction or
headphones, ” and (2) to receive time and a half for
participated in student rotations at the VA and DMAFB. At the
VA, Plaintiff claims she was given extra assignments, had her
schedule and assignments changed without warning, and had her
work misrepresented. Staff made “snide remarks,
avoid[ed] eye contact, ” and “ignor[ed]
her.” She says Dr. Tara Evenko did not prepare Plaintiff
adequately for her VA rotation and criticized Plaintiff no
matter what she did. In addition, she was forced to be the
first presenter in a class of students when she preferred to
present last because she had a fear of public speaking. She
was provided confusing and contradictory instructions.
Finally, she claims the environment at the VA was
“subtly hostile if not abusive, ” but does not
explain how. (Doc. 74-1 at 3.) Ultimately, she received a C
in this rotation.
her rotation at DMAFB, Plaintiff was supposed to engage in
“cough and cold visits” but after the first two
weeks Louis Feldman stopped asking her to participate. Again,
individuals ignored and avoided Plaintiff. Employees or
teachers at DMAFB did not adequately communicate with
Plaintiff about her rotations and assignments and were
irritated with her. She believes her final evaluation was
altered when DMAFB thought she might pursue litigation but
provides no details as to how it was altered or why she
believed an alteration was motivated by her possible
litigation. She does not allege that her grades suffered or
posit any adverse action.
allegations do not support a claim a civil conspiracy. There
are no facts that could lead a reasonable jury to conclude
that Federal Defendants worked together with others to
discriminate against her or to commit a tort against her.
Although pro se pleadings are liberally construed, Haines
v. Kerner, 404 U.S. 519, 520-21 (1972), conclusory and
vague allegations will not support a cause of action,
Ivey v. Bd. of Regents of the Univ. of Alaska, 673
F.2d 266, 268 (9th Cir. 1982). Conspiracy requires an
agreement between two or more people. It is impossible to
determine with whom Federal Defendants conspired, what they
conspired to do, or how Plaintiff was injured. In addition,
there is no indication that Federal Defendants knew of her
disability. Without any factual support, the Court cannot
infer that Federal Defendants conspired with any other
defendant to coordinate a concerted effort to defame, inflict
emotional distress, discriminate, or retaliate. The Court
will dismiss the civil conspiracy claim against Federal
Discrimination, Retaliation, and Hostile
Court originally informed Plaintiff in the initial screening
Discrimination under the Rehabilitation Act and Title II of
the ADA requires reasonable accommodations for people with
disabilities. See 34 C.F.R. §104.44(a); 28
C.F.R. §35.130(b)(7). A prima facie case under either
Title II of the ADA or the Rehabilitation Act must show that
(1) the claimant is disabled; (2) she is otherwise qualified,
even absent the accommodation; (3) she was excluded from the
services desired because of her disability; and (4) that the
program in question “receives federal financial
assistance (for the Rehabilitation Act claim), or is a public
entity (for the ADA claim)[.]” Zukle v. Regents of
Univ. of Calif., 166 F.3d 1041, 1045 (9th Cir. 1999); 29
U.S.C. § 794(a); 34 C.F.R §§ 104.3(1)(3),
In addition to requiring pleading of the aforementioned
elements, monetary relief in a Title II ADA or Rehabilitation
Act claim may only be rewarded if the plaintiff can show
deliberate indifference-meaning a defendant was aware of
specific accommodations that were requested wherein a denial
of that request was likely to result in a denial of a
federally protected right, and the defendant failed to act.
Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1138 (9th
Cir. 2001), as amended on denial of reh'g (Oct.
(Doc. 12 at 8) (citations omitted). Moreover, while typically
retaliation is raised in employment discrimination claims
“rather than discrimination in public services under
Title II, the ADA's retaliation provision applies to both
titles.” T.B. ex rel. Brenneise v. San Diego
Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015).
To state a claim of retaliation, a claimant must plead facts
demonstrating “(a) that he or she was engaged in
protected activity, (b) that he or she suffered an adverse
action, and (c) that there was a causal link between the
as Plaintiff is attempting to raise claims of discrimination
and retaliation, she has not explained how or why she
believes that Federal Defendants inattention to her needs as
a student was a result of discrimination based on her
disability. There are no claims that Federal Defendants were
ever made aware of her disability. Nor has she demonstrated
how any alleged discrimination resulted in injury. Being
unprepared, spoken to harshly, ignored, forced to present
first, and losing sleep (during a medical rotation) do not
constitute an injury. There is also no connection made
between the accommodations she claims she was guaranteed
(additional time and limited distractions) and her treatment
eye-rolling and avoidance may be hurtful to Plaintiff's
feelings, but do not create a hostile learning environment.
See, e.g., Kortan v. Calif. Youth Auth, 217 F.3d
1104 (9th Cir. 2000) (plaintiff who alleged supervisor mailed
postcards to her home, stated females are “castrating
bitches, ” and called the plaintiff “Medea,
” did not raise a hostile work environment claim);
Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir.
2003) (plaintiff who alleged coworkers made racist remarks,
called him “China man, ” and “pulled their
eyes back with their fingers in an attempt to imitate or mock
the appearance of Asians” did not create a hostile work
environment); but see Fuller v. Idaho Dep't of
Corr., 865 F.3d 1154, 1163 (9th Cir. 2017) (employer who
sided with plaintiff's alleged rapist raised sufficient
hostility to withstand summary judgment).
Court has no jurisdiction over Plaintiff's claims of IIED
and defamation because Plaintiff failed to exhaust her
administrative remedies. In addition, Plaintiff has failed to
raise viable claims of civil conspiracy, discrimination,
retaliation, or hostile environment, despite the Court's
initial screening and two opportunities to amend. Repeated
failure to cure deficiencies is one factor to be considered
when deciding whether justice requires granting leave to
amend. Moore v. Kayport Package Exp., Inc., 885 F.2d
531, 538 (9th Cir. 1989). In fact, the Court's discretion
to deny leave to amend is particularly broad where a
plaintiff has previously been permitted to amend her
complaint. Sisseton-Wahpeton Sioux Tribe v. United
States, 90 F.3d 351, 355 (9th Cir. 1996). Plaintiff has
not provided the Court with a reason to believe that
amendment would cure the deficiencies. See Bonin v.
Calderon, 59 F.3d 815, 845 (9th Cir. 1995) (“[A]
district court does not abuse its discretion in denying a
motion to amend where the movant presents no new facts but
only new theories and provides no satisfactory explanation
for his failure to fully develop his contentions
originally.”). Therefore, the Court will dismiss all
claims against Federal Defendants with prejudice.
Banner's Motion to Dismiss
raises similar claims of IIED, defamation, civil conspiracy,
discrimination, retaliation, and hostile environment against
Banner for conduct that occurred during an adult psychiatric
rotation at the hospital. From the Second Amended Complaint,
Plaintiff alleges that five days into a rotation at Banner,
Plaintiff failed the class after staff accused her of being
late repeatedly, falling asleep during a lecture, and had
behaving unprofessionally in response to feedback.
alleged unprofessional behavior occurred when U of A
preceptor, Nina Vadiei, questioned Plaintiff on the topic of
antisocial personality disorder. When Plaintiff did not
provide the correct answer, Vadiei became irritated and told
Plaintiff she was not prepared. After the discussion
escalated, Vadiei informed Plaintiff they should take a
break, cool off, and reconvene after lunch. When Plaintiff
returned, a Banner employee named Jane provided a DSM V
manual to Plaintiff. Then Vadiei texted Plaintiff telling her
to go home and they would continue their ...