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Karam v. University of Arizona

United States District Court, D. Arizona

December 17, 2019

Rose Ann Karam, Plaintiff,
University of Arizona, et al., Defendants.



         Pending 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.

         1. Standard of Review

         A 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.

         Complaints 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).

         2. Federal Defendants' Motion to Dismiss

         Plaintiff 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.

         a. Subject Matter Jurisdiction and Factual v. Facial Attacks

         There 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.

         A 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.

         Federal 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).

         The Court will treat the matter as a facial attack and views the facts in the light most favorable to Plaintiff.

         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.

         a. IIED and Defamation

         The 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. 2000).

         Both 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.

         First, 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 with prejudice.

         b. Civil Conspiracy

         Conspiracy 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.

         Although 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 testing. Id.

         Plaintiff 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[1] 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.

         During her rotation at DMAFB, Plaintiff was supposed to engage in “cough and cold visits” but after the first two weeks Louis Feldman[2] 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.

         These 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 Defendants.

         c. Discrimination, Retaliation, and Hostile Environment

         As the Court originally informed Plaintiff in the initial screening order:

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), 104.4(a).
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. 11, 2001).

(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 two.” Id.

         Insofar 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 during rotations.

         Furthermore, 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).

         d. Conclusion

         The 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.

         3. Banner's Motion to Dismiss

         Plaintiff 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.

         The 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 ...

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