Yzryahl v. Southwest College of Naturopathic Medicine and Health Sciences et al

Filing 31

ORDER that Defendant's motion to dismiss (Doc. 11 ) is granted. Plaintiff shall file an amended complaint by October 30, 2015. Signed by Judge David G Campbell on 10/5/2015. (KMG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Hope A. Y. Yzryahl,
Plaintiff,

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ORDER

v.

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No. CV-15-00932-PHX-DGC

Southwest College of Naturopathic
Medicine and Health Sciences, et al.,

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Defendants.

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Defendants Southwest College of Naturopathic Medicine (“SCNM”) and its

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named employees move to dismiss Plaintiff Hope Yzryahl’s complaint under Rule

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12(b)(6) of the Federal Rules of Civil Procedure. The motion is fully briefed, and no

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party has requested oral argument. The Court will grant the motion and give Plaintiff 30

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days to amend her complaint.

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I.

Legal Standard.

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When analyzing a complaint for failure to state a claim under Rule 12(b)(6), the

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well-pled factual allegations are taken as true and construed in the light most favorable to

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the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). Legal

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conclusions couched as factual allegations are not entitled to the assumption of truth,

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Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009), and therefore are insufficient to defeat a

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motion to dismiss for failure to state a claim, In re Cutera Securities Litigation, 610 F.3d

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1103, 1108 (9th Cir. 2010). To avoid a Rule 12(b)(6) dismissal, the complaint must

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plead enough facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v.

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Twombly, 550 U.S. 544, 570 (2007). “Threadbare recitals of the elements of a cause of

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action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 663.

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“[W]here the well-pleaded facts do not permit the court to infer more than the mere

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possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

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pleader is entitled to relief.’” Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

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When a plaintiff is proceeding pro se, the allegations of the complaint must be

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construed liberally. See Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). But a

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court “may not supply essential elements of the claim that were not initially pled.” Ivey

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v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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II.

Analysis.

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A.

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Count one is titled “Negligence,” but appears to assert a violation under Title VI

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of the Civil Rights Act of 1964. Doc. 1, ¶ 12; 42 U.S.C. § 2000d. Under this statute,

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“[n]o person in the United States shall, on the ground of race, color, or national origin, be

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excluded from participation in, be denied the benefits of, or be subjected to

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discrimination under any program or activity receiving Federal financial aid.” Fobbs v.

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Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994), overruled in part on

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other grounds by Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir.

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2001). To state a claim for a violation of this statute, Plaintiff must plead that (1) the

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entity is engaging in racial discrimination, and (2) the entity receives federal financial

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assistance. Id.

Count One.

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Plaintiff alleges various facts regarding Defendants’ alleged denial of her financial

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aid, but fails to allege facts supporting her claim that the denial was based on her race,

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national origin, color, or gender.

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“Aboriginal-Autochthonous American (misnomered African American) national origin,

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color (brown), and sex (female).” Id. Her complaint, however, does not allege facts to

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show that these characteristics were the reason for Defendants’ actions. She provides no

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allegations of discriminatory statements or acts by Defendants against herself or others.

Doc. 1, ¶ 12.

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Plaintiff identifies herself as an

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Her response to the motion to dismiss asserts that employees of SCNM “engaged in a

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campaign of prejudice and racism,” but Plaintiff’s complaint does not contain this

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allegation, nor does it explain the nature of the campaign or the facts supporting her

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assertion that it occurred. Doc. 22 at 13. Nor does Plaintiff identify the particular acts

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committed by each Defendant that give rise to liability under count one.

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In short, Plaintiff’s complaint alleges little more than a “sheer possibility that a

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defendant has acted unlawfully,” which is not sufficient. Iqbal, 556 U.S. at 678. Even

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liberally construed, the complaint lacks sufficient facts to support a Title VI claim. See

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Eldridge, 832 F.2d at 1137.

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B.

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Counts two and three also are titled “Negligence,” but appear to assert violations

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of the Americans with Disabilities Act of 1990 (“ADA”) and the Rehabilitation Act of

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1973 (“RA”). Count two asserts violation of Title II of the ADA and § 504 of the RA.

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Doc. 1, ¶ 13. Count three asserts that Defendants, specifically Ms. Borjas and Ms.

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Winquist, “knowingly and willfully retaliated and coerced Plaintiff by ceasing all

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communication with Plaintiff, barr[ing] Plaintiff from attending class, [and] sending and

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receiving emails as well as contacting faculty and staff at SCNM.” Id., ¶ 14.

Counts Two and Three.

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To state a claim under Title II of the ADA, Plaintiff must allege: (1) she is an

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individual with a disability; (2) she is otherwise qualified to participate in or receive the

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benefit of some public entity’s services, programs, or activities; (3) she was either

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excluded from participation in or denied the benefits of the public entity’s services,

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programs, or activities, or was otherwise discriminated against by the public entity; and

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(4) such exclusion, denial of benefits, or discrimination was by reason of her disability.

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Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (citing 42 U.S.C. § 12132). To

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prove a violation of § 504 of the RA, Plaintiff similarly must show that (1) she is an

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individual with a disability; (2) she is otherwise qualified to receive the benefit; (3) she

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was denied the benefits of the program solely by reason of her disability; and (4) the

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program receives federal financial assistance. Duvall v. Cnty. of Kitsap, 260 F.3d 1124,

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1135 (9th Cir. 2001).

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Plaintiff’s complaint does not plead facts showing that she is an individual with a

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disability under the ADA or the RA. Her complaint contains no allegations regarding her

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alleged disability or why it satisfies the requirement of either statute. Nor does Plaintiff

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allege facts showing that she was qualified to receive the benefits denied by Defendants

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or that the benefits were denied because of her disability.

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allegations regarding retaliation and coercion, but does not indicate whether these

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allegations (which also have scant factual support in the complaint) are intended to state

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another claim in addition to the ADA and RA claims mentioned in count two. Finally,

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Plaintiff does not identify the particular acts committed by each Defendant that subject

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that Defendant to liability.

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III.

Count three contains

Guidance to Plaintiff.

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Plaintiff must become familiar with and follow the Federal Rules of Civil

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Procedure and the Rules of the United States District Court for the District of Arizona

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(“Local Rules”). See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1986) (“Pro se litigants

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must follow the same rules of procedure that govern other litigants.”); Jacobsen v. Filler,

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790 F.2d 1362, 1364 (9th Cir. 1986) (pro se litigants “should not be treated more

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favorably than parties with attorneys of record”); Carter v. Comm’r of Internal Revenue,

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784 F.2d 1006, 1008 (9th Cir. 1986) (“Although pro se, [plaintiff] is expected to abide by

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the rules of the court in which he litigates.”). The Federal Rules of Civil Procedure are

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available at the following Internet website: http://www.law.cornell.edu/rules/frcp/. A

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copy of the District of Arizona’s Local Rules may be obtained from the Clerk’s Office or

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on the Court’s website.

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For purposes of the amended complaint, Plaintiff is directed to Rule 8 of the

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Federal Rules of Civil Procedure. Rule 8(a) provides that a complaint “shall contain (1) a

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short and plain statement of the grounds upon which the court’s jurisdiction depends, . . .

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(2) a short and plain statement of the claim showing that the pleader is entitled to relief,

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and (3) a demand for judgment for the relief the pleader seeks.” Fed. R. Civ. P. 8(a)

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(emphasis added). These pleading requirements shall be set forth in separate and discrete

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paragraphs. The paragraphs must be numbered in consecutive order. Each paragraph

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must be “simple, concise, and direct.” Fed. R. Civ. P. 8(d)(1). The discussion in part II

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of this order identifies the factual shortcomings in Plaintiff’s complaint.

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The Court will grant Plaintiff until October 30, 2015 to file an amended complaint.

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Plaintiff is warned that if she fails to file an amended complaint by that date, the case will

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be dismissed. See Fed. R. Civ. P. 12(e). Plaintiff is further warned that if she fails to

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prosecute this action, or if she fails to comply with the rules or any Court order, the Court

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may dismiss the action with prejudice pursuant to Rule 41(b) of the Federal Rule of Civil

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Procedure. See Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992); Ghazali v.

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Moran, 46 F.3d 52, 54 (9th Cir. 1995).

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IT IS ORDERED that Defendant’s motion to dismiss (Doc. 11) is granted.
Plaintiff shall file an amended complaint by October 30, 2015.
Dated this 5th day of October, 2015.

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