Ahmed v. University of California, San Diego et al

Filing 60

ORDER Granting in Part and Denying in Part 56 Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint. The Court grants in part and denies in part Defendants' motion to dismiss. Specifically, the Court dismisses Plaintiff&# 039;s first, third, and fourth causes of action with prejudice. As such, the Court dismisses defendants Debby Leedy, Pamela Thompson, Ellen Mathews, Gregory A. Spire, Linda Morgan, and Dr. Gary N. Bogart from this action with prejudice. Plaintiff's second cause of action for retaliation in violation of the Rehabilitation Act proceeds solely against The Regents. The Regents must file an answer on or before 9/14/2018. Signed by Judge Michael M. Anello on 8/20/2018. (rmc)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9
10
11
12
13
14

SOUTHERN DISTRICT OF CALIFORNIA
Case No.: 17cv0709-MMA (NLS)

FAISAL AHMED,

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANTS’
MOTION TO DISMISS
PLAINTIFF’S THIRD AMENDED
COMPLAINT

Plaintiff,

v.

THE REGENTS OF THE UNIVERSITY
OF CALIFORNIA, et al.,

15

[Doc. No. 56]

Defendants.

16
17
18

Plaintiff Faisal Ahmed (“Plaintiff”), proceeding pro se, filed a Third Amended

19

Complaint against Defendants The Regents of the University of California (“The

20

Regents”), Debby Leedy, Pamela Thompson, Ellen Mathews, Gregory A. Spire, Linda

21

Morgan, and Dr. Gary N. Bogart (collectively, “Defendants”). See Doc. No. 53

22

(hereinafter “TAC”). Plaintiff alleges claims for: (1) failure to engage in a timely good-

23

faith interactive process in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; (2)

24

retaliation due to a need for an accommodation in violation of the Rehabilitation Act; (3)

25

discrimination based on race, ethnicity, and country of origin in violation of Title VII1 of

26
27
28

1

The Court does not construe Plaintiff’s TAC as asserting a claim under Title VI of the Civil
Rights Act. Plaintiff merely mentions Title VI without alleging any facts to support this claim, nor does
he explain how “the entity involved is receiving federal financial assistance” as required by the statute.
-1-

17cv0709-MMA (NLS)

1

the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and (4) conspiracy to deprive

2

Plaintiff of workers’ compensation, disability benefits, and contracted wages in violation

3

of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§

4

1961-1968. See id. Defendants filed a motion to dismiss Plaintiff’s TAC for failure to

5

state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). See Doc. No. 56.

6

Plaintiff filed an opposition, to which Defendants replied. See Doc. Nos. 57, 58. The

7

Court found the matter suitable for determination on the papers and without oral

8

argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 59. For the reasons set

9

forth below, the Court GRANTS IN PART and DENIES IN PART Defendants’ motion

10

to dismiss.

11

BACKGROUND2

12

Plaintiff “has a rare form of leprosy . . . endemic in India and the country of

13

[Plaintiff’s] origin, Bangladesh.” TAC ¶ 12. In October 2003, Plaintiff began working

14

for the University of California, San Diego’s (“UCSD”) Recreation Department “as a

15

part-time Martial Arts Instructor[.]” Id. ¶ 16. In September 2008, Plaintiff also began

16

working for UCSD’s Department of Medicine and continued working for both

17

departments at the school. See id.

18

Plaintiff injured his knee in November 2008, which required surgery. See id. ¶ 17.

19

The “knee surgery failed, and [Plaintiff] re-injured his left knee in October 2010,”

20

requiring another knee surgery. Id. Plaintiff alleges that “due to his underlying [leprosy]

21

condition,” his second knee surgery failed. Id. Moreover, Plaintiff also injured his right

22

23
24
25
26
27
28

Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994), overruled on other grounds
by Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001) (en banc). Moreover,
despite having four opportunities to amend his complaint and being reminded that any “request for leave
to amend in the future must be made in compliance with Civil Local Rule 15.1.b,” Plaintiff did not seek
leave to add a Title VI claim. Doc. No. 27 at 21.
2

Because this matter is before the Court on a motion to dismiss, the Court must accept as true
the allegations set forth in the TAC. See Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740
(1976).
-2-

17cv0709-MMA (NLS)

1

knee in February 2012. Id. Plaintiff claims that his supervisor at the Department of

2

Medicine, Dr. Hyong Kim, refused to accommodate Plaintiff, and Plaintiff pleaded with

3

Dr. Kim “in order to initiate an interactive process.” Id. ¶ 25. As a result, Plaintiff “had

4

no choice but to medically separate from the Department of Medicine on December 12,

5

2012.” Id. ¶ 18.

6

On March 1, 2013, UCSD’s Recreation Department hired Plaintiff as a yoga

7

instructor. See id. ¶ 19. On March 4, 2013, Plaintiff also began working for UCSD’s

8

Department of Neuroscience as a “Senior Data Analyst[.]” Id. Plaintiff alleges that

9

“[w]ithin his first week of work [as a data analyst], he began to experience rashes” and

10

“flu-like symptoms.” Id. Plaintiff attributed his symptoms to the air conditioning in the

11

building that he worked in. See id.

12

Plaintiff alleges that his first request for an accommodation was made in April

13

2013. Id. ¶ 27. Plaintiff’s requests for an accommodation were dismissed without

14

analysis or indication that implementing them would constitute an undue hardship. See

15

id. “The [Department of Neuroscience] refused to simply move the plaintiff across the

16

hall to a vacant office with a window. They refused to make any accommodation, no

17

matter how small, such as moving his workstation to a different desk, without excessive

18

documentation from a doctor.” Id. ¶ 30. Plaintiff provided a note from Dr. Bogart in

19

May 2013, “but was asked [by the Department of Neuroscience] to provide several

20

additional notes.” Id. Eventually, however, the Department of Neuroscience relocated

21

Plaintiff’s workstation to an office with a window. See id. ¶ 48. However, the

22

“department failed even to secure and provide [Plaintiff with] his own air purifier in his

23

office when he arrived at work as agreed.” Id. Plaintiff became dissatisfied with his new

24

office when he realized that “his workstation was located on the opposite side of the

25

office from the window” and “the air vents in the room were positioned between his desk

26

and the window.” Id. ¶ 49.

27
28

Plaintiff further alleges that Dr. Bogart, Plaintiff’s treating physician, discriminated
against him. See id. ¶¶ 4, 72. Plaintiff asserts that his wife “had a similar medical
-3-

17cv0709-MMA (NLS)

1

problem with an abscess on her face.” Id. ¶ 73. Dr. Bogart examined Plaintiff’s wife in

2

April 2012, “treated her well,” prescribed her antibiotics, and referred her to an Ear,

3

Nose, and Throat specialist. Id. Plaintiff asserts he “received very different treatment”

4

from Dr. Bogart. Id. Plaintiff alleges “[t]here is good reason to believe that the

5

differences between the treatment received by the Plaintiff and his wife were more likely

6

than not based on gender, race, country of origin, and/or religion.” Id.

7

Additionally, Plaintiff alleges that defendants Leedy, Thompson, Spire, Mathews,

8

Morgan, and Dr. Bogart “conspired” and engaged in activity “to deprive and devalue”

9

Plaintiff’s disability benefits. Id. ¶ 95. Specifically, “[t]heir racket was to turn a private

10

medical condition of the Plaintiff . . . into a worker’s [sic] compensation situation, where

11

they could exert their undue influence and control [sic] the medical care of a disabled

12

employee such as the Plaintiff and even deny his disability rights altogether.” Id. ¶ 87.

13

In April 2013, Plaintiff was informed that he could no longer teach yoga classes for

14

the Recreation Department. Id. ¶ 62. Additionally, on February 28, 2014, the

15

Department of Neuroscience terminated Plaintiff’s employment. Id. ¶ 38.

16

Plaintiff commenced the instant action on April 6, 2017. See Doc. No. 1. The

17

Regents and individual defendants Dr. Hyong Kim, Debby Leedy, Pamela Thompson,

18

Ellen Mathews, Gregory Spire, Linda Morgan, and Dr. Bogart, previously filed motions

19

to dismiss Plaintiff’s FAC. See Doc. Nos. 8, 18. The Court granted the respective

20

motions to dismiss, and granted Plaintiff leave to amend his FAC with respect to his

21

RICO claim against the individual defendants, and his Title VII claim against The

22

Regents. See Doc. No. 26 at 26. The Court further granted Plaintiff leave to amend to

23

include a claim under Section 504 of the Rehabilitation Act. See id. Plaintiff filed his

24

TAC on May 14, 2018. See TAC.

25
26

LEGAL STANDARD
A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint. Navarro

27

v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A pleading must contain “a short and plain

28

statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. Civ. P.
-4-

17cv0709-MMA (NLS)

1

8(a)(2). However, plaintiffs must also plead “enough facts to state a claim to relief that is

2

plausible on its face.” Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

3

570 (2007). The plausibility standard thus demands more than a formulaic recitation of

4

the elements of a cause of action, or naked assertions devoid of further factual

5

enhancement. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Instead, the complaint “must

6

contain allegations of underlying facts sufficient to give fair notice and to enable the

7

opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.

8

2011).

9

In reviewing a motion to dismiss under Rule 12(b)(6), courts must assume the truth

10

of all factual allegations and must construe them in the light most favorable to the

11

nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996).

12

The court need not take legal conclusions as true merely because they are cast in the form

13

of factual allegations. Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987).

14

Similarly, “conclusory allegations of law and unwarranted inferences are not sufficient to

15

defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998).

16

In determining the propriety of a Rule 12(b)(6) dismissal, courts generally may not

17

look beyond the complaint for additional facts. United States v. Ritchie, 342 F.3d 903,

18

908 (9th Cir. 2003). “A court may, however, consider certain materials—documents

19

attached to the complaint, documents incorporated by reference in the complaint, or

20

matters of judicial notice—without converting the motion to dismiss into a motion for

21

summary judgment.” Id.; see also Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir.

22

2001). “However, [courts] are not required to accept as true conclusory allegations

23

which are contradicted by documents referred to in the complaint.” Steckman v. Hart

24

Brewing, Inc., 143 F.3d 1293, 1295–96 (9th Cir. 1998). Where dismissal is appropriate, a

25

court should grant leave to amend unless the plaintiff could not possibly cure the defects

26

in the pleading. Knappenberger v. City of Phoenix, 566 F.3d 936, 942 (9th Cir. 2009).

27

Generally, courts must broadly construe pleadings filed by pro se litigants,

28

affording pro se plaintiffs any benefit of the doubt. See Erickson v. Pardus, 551 U.S. 89,
-5-

17cv0709-MMA (NLS)

1

94 (2007); Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002). A pro se complaint

2

“can only be dismissed for failure to state a claim if it appears ‘beyond doubt that the

3

plaintiff can prove no set of facts in support of his claim which would entitle him to

4

relief.’” Estelle v. Gamble, 429 U.S. 91, 106 (1976) (citing Haines v. Kerner, 404 U.S.

5

519, 521 (1972)).

6

DISCUSSION

7

Defendants argue that on “his fourth bite at the apple, Plaintiff has conclusively

8

confirmed he cannot allege viable claims against Defendants,” and requests the Court

9

dismiss Plaintiff’s TAC with prejudice. Doc. No. 56-1 at 2 (emphasis in original).

10

Specifically, Defendants contend Plaintiff’s first cause of action fails because there is no

11

independent cause of action for failure to engage in the interactive process, and any such

12

claim is barred by the statute of limitations. Defendants further argue that Plaintiff’s

13

second cause of action is barred by the statute of limitations. See id. Moreover,

14

Plaintiff’s third cause of action for Title VII discrimination is subject to dismissal

15

because Plaintiff failed to exhaust his administrative remedies, and does not allege an

16

adverse employment action. See id. Finally, Defendants assert Plaintiff alleges

17

insufficient facts in support of his fourth cause of action for RICO violations. The Court

18

addresses each cause of action in turn.

19
20

I.

Failure to Engage in Good-Faith Interactive Process Claim
In his first cause of action, Plaintiff asserts a claim against The Regents for failure

21

to engage in the interactive process under Section 504 of the Rehabilitation Act.

22

Specifically, Plaintiff contends that after injuring both of his knees, “[t]here was no

23

consultation of any type as to how to help accommodate [Plaintiff’s] limited ability to

24

work” and he pleaded with Dr. Kim, his supervisor, “to initiate an interactive process[.]”

25

TAC ¶ 25. Plaintiff separated from the Department of Medicine in 2012 “due to [Dr.]

26

Kim’s unwillingness to provide any reasonable accommodation.” Id. Several months

27

later, while working for the Department of Neuroscience, Plaintiff alleges that he

28

experienced rashes and flu-like symptoms which he attributed to “the air conditioning in
-6-

17cv0709-MMA (NLS)

1

that older building.” TAC ¶ 19. Plaintiff asserts that “[a]s part of their delay tactics,

2

UCSD claimed undue hardship in having certain equipment moved although no detailed

3

analysis had been performed.” Id. ¶ 28. Plaintiff desired to move “across the hall where

4

there were multiple suitable [offices] available.” Id. ¶ 30.

5

Defendants argue Plaintiff’s first cause of action against The Regents fails because

6

there is no stand-alone claim for failure to engage in the interactive process under the

7

Rehabilitation Act, and even if there was, any such claim is barred by the statute of

8

limitations. See Doc. No. 56-1 at 5, 7. In opposition, Plaintiff asserts that there is an

9

independent claim for the allege failure to engage in the interactive process, and equitable

10
11

tolling should apply to his claim. See Doc. No. 57 at 2, 7.
Section 504 of the Rehabilitation Act provides in relevant part, “[n]o otherwise

12

qualified individual with a disability in the United States . . . shall, solely by reason of her

13

or his disability, be excluded from the participation in, be denied the benefits of, or be

14

subjected to discrimination under any program or activity receiving Federal financial

15

assistance . . . .” 29 U.S.C. § 794(a). A “private plaintiff[] suing under section 504 need

16

not first exhaust administrative remedies.” Smith v. Barton, 914 F.2d 1330, 1338 (9th

17

Cir. 1990).

18

Section 504 of the Rehabilitation Act “incorporates the ‘standards’ of Title I of the

19

ADA for proving when discrimination in the workplace is actionable[.]” Fleming v.

20

Yuma Reg’l Med. Ctr., 587 F.3d 938, 939 (9th Cir. 2009).3 Thus, to establish a violation

21

of the Rehabilitation Act based on employment discrimination, “a plaintiff must

22

demonstrate that (1) [he] is a person with a disability, (2) who is otherwise qualified for

23

employment, and (3) suffered discrimination because of [his] disability.” Walton v. U.S.

24

Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007) (citing Wong v. Regents of the Univ.

25

of Cal., 410 F.3d 1052, 1058 (9th Cir. 2005)).

26

27
28

3

Because the Rehabilitation Act incorporates the standards of Title I of the ADA, the Court
looks to, and relies on, the statutes and case law interpreting both the ADA and the Rehabilitation Act.
-7-

17cv0709-MMA (NLS)

1

Notifying an employer of a need for an accommodation “triggers a duty to engage

2

in an ‘interactive process’ through which the employer and the employee can come to

3

understand the employee’s abilities and limitations, the employer’s needs for various

4

positions, and a possible middle ground for accommodating the employee.” Snapp v.

5

United Transp. Union, 889 F.3d 1088, 1095 (9th Cir. 2018) (quoting Barnett v. U.S. Air,

6

Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) (en banc), vacated on other grounds, US

7

Airways, Inc. v. Barnett, 535 U.S. 391, 406 (2002)). In Barnett, the Ninth Circuit held

8

that when an employer receives notice and fails to engage in the interactive process in

9

good faith, the employer can be liable “if a reasonable accommodation would have been

10

possible.” 228 F.3d at 1116. “In other words, there exists no stand-alone claim for

11

failing to engage in the interactive process. Rather, discrimination results from denying

12

an available and reasonable accommodation.” Snapp, 889 F.3d at 1095 (emphasis

13

added).

14

Here, the Court finds that Plaintiff’s first cause of action fails because the Ninth

15

Circuit has made clear that there is no stand-alone claim for failure to engage in the

16

interactive process. See id. Plaintiff, relying on a Ninth Circuit opinion, argues that there

17

“is a mandatory obligation to engage in an informal interactive process[.]” Doc. No. 57

18

at 7 (quoting Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2002)). While Plaintiff

19

correctly recites the law on this issue, Plaintiff’s reliance is misplaced because an

20

employer’s obligation to engage in an interactive process is relevant to a claim for failure

21

to provide a reasonable accommodation. Failure to engage in the interactive process,

22

however, is not an independent cause of action. In Yonemoto v. McDonald, the district

23

court explained that “[t]his conclusion—that if a defendant fails to engage in the

24

interactive process, at trial a plaintiff still must establish the existence of a reasonable

25

accommodation—is consistent with virtually every single other Circuit, all holding that

26

regardless of a defendant’s failure to engage in the interactive process, the plaintiff still

27

has the burden to establish a reasonable accommodation.” 114 F. Supp. 3d 1067, 1115

28

(D. Haw. 2015). The district court remarked that “[t]his result makes plain sense”
-8-

17cv0709-MMA (NLS)

1

because any rule to the contrary “would be the functional equivalent of a cause of action

2

for failure to engage in the interactive process, which Barnett and Kramer have rejected.”

3

Id. at 1115-16.

4

Accordingly, Plaintiff’s stand-alone claim for failure to engage in the interactive

5

process fails as a matter of law and the Court DISMISSES Plaintiff’s first cause of action

6

with prejudice.4 See Snapp, 889 F.3d at 1095; see also Reaves v. Nexstar Broad., Inc.,

7

---F. Supp. 3d---, No. 17-CV-494-HZ, 2018 WL 3244873, at *15 (D. Or. July 2, 2018)

8

(noting that there is no independent claim for failure to engage in the interactive process

9

separate from the failure to provide a reasonable accommodation, and granting the

10

defendants’ motion for summary judgment on the plaintiff’s claim for failure to engage in

11

the interactive process); Weeks v. Union Pac. R.R. Co., No. 13-CV-1641 AWI JLT, 2017

12

WL 1740123, at *10 (E.D. Cal. May 4, 2017) (denying the plaintiff’s request to amend

13

his complaint to include a claim for failure to engage in the interactive process because

14

“there is no independent cause of action for failure to engage in the interactive process

15

under the ADA.”).5

16

II.

Retaliation Claim

17

In his second cause of action, Plaintiff alleges a claim for retaliation under the

18

Rehabilitation Act against The Regents based on his requests for an accommodation. See

19

TAC ¶ 71. Defendants argue that Plaintiff’s claim is barred by the statute of limitations,

20

and contend that “equitable tolling cannot apply to save Plaintiff’s time-barred claim

21

since Plaintiff was not required to exhaust administrative remedies prior to filing suit.”

22

Doc. No. 56-1 at 9. Moreover, Defendants assert that Plaintiff’s EEOC charge alleges

23
24
25
26
27
28

4

Dismissal with prejudice is appropriate because any amendment would be futile. See Zucco
Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (noting a district court has the
discretion to deny leave to amend due to “futility of amendment.”) (internal citation and quotation marks
omitted).
5

Because the Court concludes dismissal is appropriate on the basis that there is no stand-alone
claim for failure to engage in the interactive process, the Court need not reach Defendants’ statute of
limitations argument.
-9-

17cv0709-MMA (NLS)

1

discrimination exclusively based on disability, and does not mention retaliation. Thus,

2

Defendants argue Plaintiff’s EEOC charge did not provide sufficient notice to The

3

Regents of a retaliation claim. See id. In opposition, Plaintiff asserts that equitable

4

tolling applies to his claim. See Doc. No. 57 at 2.

5

To state a claim for retaliation under the Rehabilitation Act, Plaintiff must show:

6

“‘(1) involvement in a protected activity, (2) an adverse employment action and (3) a

7

causal link between the two.’” Coons v. Sec’y of U.S. Dep’t of Treasury, 383 F.3d 879,

8

887 (9th Cir. 2004) (quoting Brown v. City of Tucson, 336 F.3d 1181, 1187 (9th Cir.

9

2003)). “In other words, [Plaintiff] must establish a link between his request for a

10

reasonable accommodation and his demotion.” Id. “Once the plaintiff establishes a

11

prima facie case, the employer has the burden to ‘present legitimate reasons for the

12

adverse employment action.’” Id. (quoting Brooks v. City of San Mateo, 229 F.3d 917,

13

928 (9th Cir. 2000)). “If the employer carries this burden, and plaintiff demonstrates a

14

genuine issue of material fact as to whether the reason advanced by the employer was a

15

pretext, then the retaliation case proceeds beyond the summary judgment stage.” Id.

16

1. Statute of Limitations

17

The Rehabilitation Act does not contain its own statute of limitations. “The statute

18

of limitations for the Rehabilitation Act Section 504 claim is provided by the analogous

19

state law.” Douglas v. California Dep’t of Youth Auth., 271 F.3d 812, 823 n.11 (9th Cir.

20

2001). However, “federal law determines when a cause of action accrues.” Alexopulos

21

ex rel. Alexopulos v. S.F. Unified Sch. Dist. 817 F.2d 551, 555 (9th Cir. 1987). “Under

22

federal law a cause of action accrues, and the statute of limitations begins to run, when a

23

plaintiff knows or has reason to know of the injury that is the basis of the action.” Id.

24

Although federal courts in California have routinely applied California’s two-year

25

personal injury statute of limitations set forth in California Civil Procedure Code § 335.1

26

to ADA Title II claims and Section 504 claims, the Ninth Circuit has more recently held

27

that Title II claims are subject to a three-year limitations period provided by California

28

Civil Procedure Code § 338(a). See Sharkey v. O’Neal, 778 F.3d 767, 773 (9th Cir.
-10-

17cv0709-MMA (NLS)

1

2015). While the Ninth Circuit has not expressly held that the three-year limitations

2

period applicable to Title II claims similarly applies to a Section 504 claim, the Ninth

3

Circuit has considered application of a three-year statute of limitations to a Section 504

4

claim. See Krushwitz v. Univ. of California, 599 F. App’x 714, 715 (9th Cir. 2015)

5

(“Even if we assume that a three year limitations period applies to the Section 504 claim,

6

Krushwitz’s claims are still time-barred.”). Moreover, numerous district courts have

7

applied the three-year limitations period to Section 504 claims. See Abraham P. v. L.A.

8

Unified Sch. Dist., No. 17-CV-3105-GW (FFMx), 2017 WL 4839071, at *6 (C.D. Cal.

9

Oct. 5, 2017) (“Both parties here agree that the statute of limitations for ADA and

10

Section 504 claims is three years.”); Luong v. East Side Union High Sch. Dist., 265 F.

11

Supp. 3d 1045, 1050 (N.D. Cal. 2017) (applying three-year statute of limitations); Ticer

12

v. Young, No. 16-CV-2198-KAW, 2016 WL 4719272, at *5-6 (N.D. Cal. Sept. 9, 2016)

13

(same); but see Hartline v. Nat’l Univ., No. 14-CV-635 KJM AC (PS), 2015 WL

14

4716491, at *5 (E.D. Cal. Aug. 7, 2015) (noting that a Rehabilitation Act claim “is most

15

closely analogous to a personal injury claim or to an Unruh Act claim;” thus, the

16

plaintiff’s Rehabilitation Act claims “are subject to a two-year statute of limitations[.]”),

17

report and recommendation adopted by 2016 WL 426643 (E.D. Cal. Feb. 4, 2016).

18

Even assuming the more liberal three-year statute of limitations period applies,

19

Plaintiff’s claim for retaliation under the Rehabilitation Act falls outside of the three-year

20

limitations period. Plaintiff alleges that he was “wrongfully terminated on February 28,

21

2014.” Doc. No. 57 at 4; see also TAC ¶ 38. Plaintiff did not commence this lawsuit

22

until April 6, 2017—more than three years later. See Doc. No. 1. Thus, the Court must

23

determine whether Plaintiff’s claim is subject to equitable tolling.

24

The Supreme Court has held that where there is “no specifically stated or otherwise

25

relevant federal statute of limitations for a cause of action[,] . . . the controlling period

26

would ordinarily be the most appropriate one provided by state law.” Johnson v. Ry.

27

Express Agency, Inc., 421 U.S. 454, 462 (1975). “Along with the limitations period, the

28

court borrows the state’s equitable tolling rules, absent a reason not to do so.” Daviton,
-11-

17cv0709-MMA (NLS)

1

241 F.3d at 1135. The “long settled rule [in California is] that whenever exhaustion of

2

administrative remedies is a prerequisite to a civil action the running of the limitations

3

period is suspended during the administrative proceedings.” Addison v. State of Cal., 578

4

P.2d 941, 943 (Cal. 1978) (citation omitted). Moreover, “regardless of whether the

5

exhaustion of one remedy is a prerequisite to the pursuit of another, if the defendant is

6

not prejudiced thereby, the running of the limitations period is tolled when an injured

7

person has several legal remedies and, reasonably and in good faith, pursued one.” Id.

8

(quoting Elkins v. Derby, 525 P.2d 81, 84 (Cal. 1974)); see also Einheber v. Regents of

9

the Univ. of Cal., 119 F. App’x 861, 862 (9th Cir. 2004) (holding the district court erred

10

in dismissing the plaintiff’s Rehabilitation Act claim on statute of limitations grounds

11

without considering the applicability of equitable tolling by virtue of timely filing the

12

administrative action).

13

Defendants argue that because Plaintiff was not required to pursue an

14

administrative charge with the EEOC, he “cannot rely upon equitable tolling to save his

15

time-barred claim under the Rehabilitation Act.” Doc. No. 56-1 at 7; see also Smith, 914

16

F.2d at 1338 (noting a “private plaintiff[] suing under section 504 need not first exhaust

17

administrative remedies.”). In support of this argument, Defendants rely on a Ninth

18

Circuit case wherein the court declined to apply the doctrine of equitable tolling and

19

reasoned that because the filing of the administrative action was optional, permitting

20

tolling would “frustrate the national policy of prompt resolution of labor disputes.”

21

Conley v. Int’l Bhd. of Elec. Workers, Local 639, 810 F.2d 913, 916 (9th Cir. 1987).

22

Defendants’ reliance on Conley, however, is misplaced as the Ninth Circuit held in that

23

case that the federal statute of limitations for section 10(b) of the National Labor

24

Relations Act governed the plaintiff’s Labor Management Relations Act claim. See id. at

25

915. The Ninth Circuit distinguished cases applying state statute of limitations and

26

tolling principles noting that “[t]hese cases . . . borrow California statutes of limitations

27

and tolling doctrines, and consequently apply only analogy, if at all.” Id.

28

Here, unlike Conley, the Ninth Circuit has made clear that “[t]he statute of
-12-

17cv0709-MMA (NLS)

1

limitations for the Rehabilitation Act Section 504 claim is provided by the analogous

2

state law.” Douglas, 271 F.3d at 823 n.11; see also Daviton, 241 F.3d at 1135-36

3

(applying California’s equitable tolling rules where the plaintiff asserted a section 504

4

claim). “Along with the limitations period, the court borrows the state’s equitable tolling

5

rules, absent a reason not to do so.” Daviton, 241 F.3d at 1135. Thus, the Court applies

6

California’s equitable tolling rules to determine whether Plaintiff’s Rehabilitation Act

7

claim for retaliation is timely.

8

2. California’s Equitable Tolling Test

9

California courts have developed a three-pronged test to determine whether

10

equitable tolling is appropriate: “‘(1) timely notice to the defendant in filing the first

11

claim; (2) lack of prejudice to defendant in gathering evidence to defend against the

12

second claim; and, (3) good faith and reasonable conduct by the plaintiff in filing the

13

second claim.’” Daviton, 241 F.3d at 1137-38 (quoting Collier v. City of Pasadena, 191

14

Cal. Rptr. 681, 685 (Ct. App. 1983)). “At a minimum, determining the applicability of

15

equitable tolling necessitates resort to the specific circumstances of the prior claim:

16

parties involved, issues raised, evidence considered, and discovery conducted.”

17

Cervantes v. City of San Diego, 5 F.3d 1273, 1276 (9th Cir. 1993) (emphasis in original).

18

“Application of the three-part test is mandatory.” Id. at 1275-76.

19
20

a. Timely Notice
Timely notice “requires that plaintiff have filed the first claim within the statutory

21

period. That claim must ‘alert the defendant in the second claim of the need to begin

22

investigating the facts which form the basis for the second claim.’” Daviton, 241 F.3d at

23

1138 (quoting Collier, 191 Cal. Rptr. at 685). “Generally this means that the defendant

24

in the first claim is the same one being sued in the second.” Collier, 191 Cal. Rptr. at

25

685. Here, Defendants do not contend, nor does it appear to the Court, that Plaintiff’s

26
27
28
-13-

17cv0709-MMA (NLS)

1

EEOC charge was not timely filed. Plaintiff’s filed his EEOC charge6 on December 15,

2

2014, less than ten months after Plaintiff was terminated from the Department of

3

Neuroscience. See Doc. No. 30-6 at 7.7 Moreover, both claims name the same

4

defendant. See id. As such, the Court finds that the first requirement is satisfied.

5

b. Prejudice to The Regents

6

In order to satisfy the second requirement, “the facts of the two claims [should] be

7

identical or at least so similar that the defendant’s investigation of the first claim will put

8

him in a position to fairly defend the second.” Collier, 191 Cal. Rptr. at 685-86; see also

9

Daviton, 241 F.3d at 1141 (noting “the equitable tolling doctrine requires that the same

10

wrong serve as the predicate for the earlier and later proceedings to make sure defendant

11

received proper notice. In this way, defendant is protected from stale claims.”) (emphasis

12

added). The two causes of action, however, “need not be absolutely identical.” Collier,

13

191 Cal. Rptr. at 686.

14

Here, construing the facts in the light most favorable to Plaintiff, the facts alleged

15

in the EEOC charge are substantially similar to those alleged in the Complaint regarding

16

Plaintiff’s retaliation claim, such that the Regent’s investigation of the disability

17

discrimination claim would put it in a position to defend against Plaintiff’s retaliation

18

claim. For example, in his EEOC charge, Plaintiff claims he “made many written

19

requests for an accommodation to change rooms to a workspace with a window due to

20
21
22
23
24
25
26
27
28

6

The Court incorporates by reference the “Charge of Discrimination” filed with the EEOC on
December 15, 2014. Plaintiff included a hard copy of the EEOC charge as an exhibit to his TAC,
provided directly to the Court as a courtesy copy. The electronic version of the TAC, filed as Doc. No.
53, omits this exhibit. However, because Plaintiff “refers extensively to the document” in his TAC,
Plaintiff previously attached the charge as an exhibit to his SAC (Doc. No. 30-6 at 7), and the
authenticity of the EEOC charge is not questioned, the Court finds that the EEOC charge is incorporated
by reference into Plaintiff’s TAC. Ritchie, 342 F.3d at 908; see also Khoja v. Orexigen Therapeutics,
Inc., ---F.3d---, 2018 WL 3826298, at *9-10 (9th Cir. Aug. 13, 2018) (noting that generally, a court can
assume an incorporated document’s contents are true for purposes of a motion to dismiss, unless “such
assumptions only serve to dispute facts stated in a well-pleaded complaint.”).
7

Citations to this document refer to the pagination assigned by the CM/ECF system.
-14-

17cv0709-MMA (NLS)

1

my respiratory impairment but was repeatedly denied by Walters.” Doc. No. 30-6 at 9.

2

After he requested an accommodation, “Walters ordered me to retroactively change

3

already approved time sheets from sick leave to unpaid leave[.]” Id. Ms. Walters “forced

4

me to take leave without pay for all absences while she continued to deny my repeated

5

requests for an accommodation to move my office . . . .” Id. After returning to work

6

from medical leave, “I was forced to attend an ‘impromptu meeting’ during which I was

7

given a negative performance review based on very erroneously flawed calculations and

8

highly subjective criticisms by Walters and Deborah Tobias.” Id. at 12. Two weeks

9

later, Plaintiff “was terminated by Tobias while Walters was on vacation.” Id.

10

Defendants argue that Plaintiff’s EEOC charge does not mention retaliation, nor

11

did Plaintiff check the box for “retaliation” on the form. See Doc. No. 30-6 at 7. Rather,

12

the EEOC charge focuses solely on disability discrimination for failure to accommodate

13

and failure to engage in the interactive process. See id. The two causes of action,

14

however, need not be “identical.” Collier, 191 Cal. Rptr. at 686. In his EEOC charge,

15

Plaintiff states that he “believe[s] that the facts detailed in the complaint above

16

demonstrate a pattern of discrimination culminating in my termination based on my

17

disability and extended absence due to related illness[.]” Doc. No. 30-6 at 15. It is

18

reasonable to conclude that a Plaintiff’s claim for disability discrimination on the basis of

19

failure to accommodate and failure to engage in the interactive process would have

20

alerted The Regents to the possibility of a retaliation claim. As such, the Court finds that

21

at this stage of the litigation, the second requirement is satisfied. See Collier, 191 Cal.

22

Rptr. at 686 (“The critical question is whether notice of the first claim affords the

23

defendant an opportunity to identify the sources of evidence which might be needed to

24

defend against the second claim.”).

25
26

c. Good Faith
With respect to the third prong, “good faith and reasonable conduct on the part of

27

the plaintiff is less clearly defined in the cases.” Collier, 191 Cal. Rptr. at 686. “Perhaps,

28

if a plaintiff delayed filing the second claim until the statute on that claim had nearly run,
-15-

17cv0709-MMA (NLS)

1

even after crediting the tolled period, his conduct might be unreasonable.” Id. “Or if the

2

plaintiff deliberately misled the defendant into believing the second claim would not be

3

filed, that action might be deemed to constitute bad faith.” Id. Here, Defendants do not

4

argue, nor does it appear to the Court, that Plaintiff acted in bad faith or engaged in

5

unreasonable conduct. As such, the Court finds the third requirement is satisfied.

6

3. Summary

7

Plaintiff’s TAC reveals that at least at the pleading stage, he is able to satisfy the

8

requirements for equitable tolling under California law. As noted above, Plaintiff alleges

9

that he was “wrongfully terminated on February 28, 2014.” Doc. No. 57 at 4; see also

10

TAC ¶ 38. The statute of limitations on Plaintiff’s Rehabilitation Act claim began to run

11

the next day, March 1, 2014. See Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir.

12

2001) (stating that “in computing any period of time prescribed or allowed by . . . any

13

applicable statute, the day of the act, event, or default from the designated period of time

14

begins to run shall not be included.”) (quoting Fed. R. Civ. P. 6(a)). Plaintiff commenced

15

the instant action on April 6, 2017—1,133 days later. See Doc. No. 1. Assuming a three-

16

year statute of limitations applies (1,095 days), Plaintiff would need to demonstrate

17

equitable tolling for 38 days (1,133 – 1,095 = 38). Plaintiff filed his charge with the

18

EEOC on December 15, 2014. See Doc. No. 30-6 at 7. Plaintiff received his right to sue

19

letter from the EEOC “dated January 3, 2017 on January 6, 2017.” TAC ¶ 22. Thus, the

20

statute of limitations is tolled from December 15, 2014 through at least January 3, 2017,

21

for a total of 750 days.

22

Accordingly, because Plaintiff has demonstrated he is entitled to equitable tolling

23

for 750 days—far surpassing the 38 days required—Plaintiff’s retaliation claim is timely,

24

and dismissal on this basis is inappropriate.8

25

26
27
28

8

The Regents fails to address the merits of Plaintiff’s retaliation claim. The Court has sua
sponte considered the issue, and finds that in construing Plaintiff’s allegations in the light most favorable
to him, Plaintiff plausibly states a claim for retaliation at this stage of the litigation.

-16-

17cv0709-MMA (NLS)

1 III.

Discrimination Claim

2

In his third cause of action, Plaintiff alleges a Title VII discrimination claim

3

against The Regents.9 Upon a liberal construction of Plaintiff’s allegations, it appears

4

that Plaintiff takes issue with the treatment rendered by Plaintiff’s treating physician, Dr.

5

Bogart. Specifically, Plaintiff asserts “discrimination is the most likely explanation for

6

why [he and his wife] were treated so differently by the same physician for very similar

7

medical problems.” TAC ¶ 74. “Naturalized citizens, such as the Plaintiff face more

8

discrimination than native born citizens.” Id.

9

Defendants argue that Plaintiff’s claim against The Regents for discrimination fails

10

for two reasons: (1) Plaintiff failed to exhaust his administrative remedies; and (2)

11

Plaintiff fails to identify an adverse employment action. See Doc. No. 56-1 at 10-11. In

12

opposition, Plaintiff asserts that “the Defendants were informed of the allegations of

13

discrimination,” and claims that his “wrongful termination was the final result of the

14

discrimination he experienced.” Doc. No. 57 at 7.

15

1. Plaintiff Failed to Exhaust His Administrative Remedies

16

“To establish federal subject matter jurisdiction, a plaintiff is required to exhaust

17

his or her administrative remedies before seeking adjudication of a Title VII claim.”

18

Lyons v. England, 307 F.3d 1092, 1103 (9th Cir. 2002). “Exhaustion of administrative

19

remedies under Title VII requires that the complainant file a timely charge with the

20

EEOC, thereby allowing the agency time to investigate the charge.” Id. at 1104; see also

21

42 U.S.C. § 2000e-5(b). “Incidents of discrimination not included in an EEOC charge

22

may not be considered by a federal court unless the new claims are like or reasonably

23

related to the allegations contained in the EEOC charge.” Green v. L.A. Cnty.

24
25
26
27
28

9

Plaintiff also appears to bring this cause of action against Dr. Bogart. The Court, however,
previously dismissed Plaintiff’s Title VII claim against Dr. Bogart with prejudice because Title VII
imposes liability only on employers—not individual supervisors or other employees. See Doc. No. 27 at
19-20; see also Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1058 (9th Cir. 2007) (“We have long
held that Title VII does not provide a separate cause of action against supervisors or co-workers.”).
-17-

17cv0709-MMA (NLS)

1

Superintendent of Sch., 883 F.2d 1472, 1475-76 (9th Cir. 1989) (internal quotation marks

2

omitted). The Ninth Circuit has indicated that courts should “construe the language of

3

EEOC charges with utmost liberality since they are made by those unschooled in the

4

technicalities of formal pleading.” B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100

5

(9th Cir. 2002) (internal quotation marks omitted).

6

Here, the record reveals that Plaintiff checked only the “disability” box on his

7

EEOC charge. See Doc. No. 30-6 at 7. After detailing his numerous requests for

8

accommodations, Plaintiff asserts that “the facts detailed in the complaint above

9

demonstrate a pattern of discrimination culminating in my termination based on my

10

disability and extended absence due to related illness, in violation of the Americans with

11

Disabilities Act of 1990, as amended.” Id. at 15 (emphasis added). While Plaintiff

12

generally references instances of discriminatory practices by UCSD against immigrant

13

employees, even construing Plaintiff’s allegations with the “utmost liberality,” Plaintiff

14

does not allege in any specific factual detail that he was discriminated against based on

15

race, color, religion, sex, or national origin. B.K.B., 276 F.3d at 1100. In fact, Plaintiff

16

makes no mention of the alleged discriminatory treatment rendered by Dr. Bogart in his

17

EEOC charge.

18

Thus, because Plaintiff’s Title VII claim is not “like or reasonably related to the

19

allegations contained in the EEOC charge,” the Court finds that Plaintiff failed to exhaust

20

his Title VII claim. Green, 883 F.2d at 1475-76; see Wyatt v. City of Burlingame, No.

21

16-CV-2681-DMR, 2017 WL 565303, at *10 (N.D. Cal. Feb. 13, 2017) (dismissing the

22

plaintiff’s wrongful termination claim on the basis of national origin with prejudice for

23

failure to exhaust because “[n]othing in Plaintiff’s statements would have suggested to

24

the EEOC that she was complaining about termination on the basis of her national

25

origin.”); cf. Leiland v. City and Cnty. of S.F., 576 F. Supp. 2d 1079, 1091 (N.D. Cal.

26

2008) (concluding that the plaintiff had exhausted her retaliation claim because the

27

administrative complaint “charged that when [the plaintiff] complained about differential

28

treatment on account of her race and other protected characteristics, she was reassigned
-18-

17cv0709-MMA (NLS)

1

to a different location”) (emphasis added). As such, Plaintiff’s Title VII claim is subject

2

to dismissal for failure to exhaust.

3

2. Plaintiff Fails to State a Claim for Title VII Discrimination

4

Even if Plaintiff had exhausted his administrative remedies, Plaintiff again fails to

5

allege facts to support employment discrimination based on race, color, religion, sex, or

6

national origin.

7

Title VII of the Civil Rights Act of 1964 prohibits a covered “employer” from

8

discharging or discriminating “against any individual with respect to his compensation,

9

terms, conditions, or privileges of employment, because of such individual’s race, color,

10

religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). A plaintiff alleging that

11

he suffered disparate treatment in violation of Title VII may either use the McDonnell

12

Douglas burden-shifting framework, or alternatively, may “produce direct or

13

circumstantial evidence demonstrating that a discriminatory reason more likely than not

14

motivated the defendant.” Reynaga v. Roseburg Forest Prods., 847 F.3d 678, 691 (9th

15

Cir. 2017) (internal quotation marks and citation omitted). Under the McDonnell

16

Douglas framework, a plaintiff must show: “(1) [he] belongs to a protected class, (2) [he]

17

was performing according to [his] employer’s legitimate expectations, (3) [he] suffered

18

an adverse employment action, and (4) other employees with qualifications similar to

19

[his] own were treated more favorably.” Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,

20

1220 (9th Cir. 1998) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

21

(1973)). Under the alternative framework, a plaintiff may produce evidence

22

demonstrating that the employer was more likely than not motivated by a discriminatory

23

reason. See Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 (9th Cir. 2010) (noting

24

that a plaintiff may show an inference of discrimination “through comparison to similarly

25

situated individuals, or any other circumstances surrounding the adverse employment

26

action [that] give rise to an inference of discrimination”) (internal quotation marks and

27

citation omitted).

28

Here, Plaintiff exclusively takes issue with the alleged deficient medical treatment
-19-

17cv0709-MMA (NLS)

1

rendered by Dr. Bogart. See TAC ¶¶ 73-78. For example, Plaintiff alleges that his wife

2

“had a similar medical problem” and Dr. Bogart “prescribed her two types of antibiotics

3

and pain medication[.]” Id. ¶ 73. With respect to Plaintiff, however, Dr. Bogart “refused

4

to prescribe any antibiotics, or pain medication” and did not refer him to a specialist. Id.

5

¶ 74. Plaintiff concludes that “[t]here is good reason to believe that the differences

6

between the treatment received by Plaintiff and his wife were more likely than not based

7

on gender, race, country of origin, and/or religion.” Id. ¶ 73. Plaintiff further claims that

8

“Bogart and UCSD provided deficient medical services by under treating to [sic] the

9

Plaintiff as a result of his ethnicity, country of origin, race and color.” Id. ¶ 4. While

10

Plaintiff generally alleges that The Regents eventually terminated his employment in

11

February 2014, Plaintiff fails to allege any facts linking the adverse employment action to

12

the medical treatment provided by Dr. Bogart. Rather, it appears that Plaintiff claims The

13

Regents terminated his employment based on his disability and requests for

14

accommodations. See TAC ¶ 38 (explaining that his termination reflects of a “clear

15

pattern of discrimination based on the Plaintiff’s disability and facial disfigurement.”).

16

Title VII, however, does not apply to discrimination based on a disability. Thus,

17

Plaintiff fails to state a claim for employment discrimination on the basis of “race, color,

18

religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1).

19

3. Summary

20

In sum, the Court finds that Plaintiff failed to exhaust his administrative remedies

21

with respect to his Title VII claim, and even if Plaintiff had exhausted his administrative

22

remedies, Plaintiff fails to link any adverse employment action to Dr. Bogart’s medical

23

treatment. Accordingly, the Court DISMISSES Plaintiff’s Title VII claim with

24

prejudice.10

25

26
27
28

10

The Court noted these deficiencies in its previous order dismissing Plaintiff’s Title VII claim.
The Court granted Plaintiff leave to amend his Title VII claim, but Plaintiff has failed to cure the
deficiencies in his TAC. As such, dismissal with prejudice is appropriate. See Zucco Partners, LLC,
552 F.3d at 1007 (noting that “where the plaintiff has previously been granted leave to amend and has
-20-

17cv0709-MMA (NLS)

1 IV.

RICO Claim

2

In his fourth cause of action, Plaintiff asserts a RICO claim against individual

3

defendants Leedy, Thompson, Spire, Morgan, Mathews, and Dr. Bogart. Plaintiff alleges

4

the individual defendants violated the statute by conspiring “to deny the Plaintiff’s

5

Worker’s [sic] Compensation and Disability benefits, as well as, depriving him of funds

6

from his Flexible Spending Account (FSA)[.]” TAC ¶ 87. Specifically, “[t]heir racket

7

was to turn a private medical condition of the Plaintiff . . . into a worker’s [sic]

8

compensation situation, where they could exert their undue influence and control [sic] the

9

medical care of a disabled employee such as the Plaintiff and even deny his disability

10

rights altogether.” Id.

11

Defendants argue that Plaintiff’s RICO claim fails because: (1) the claim is time-

12

barred as to Ms. Leedy; and (2) Plaintiff fails to allege any violation of Section 1962(c).

13

See Doc. No. 56-1 at 12. Plaintiff does not address the statute of limitations issue, but

14

maintains that “Spire’s denial of the existence of a completed . . . Designation of

15

Physician Form and Ms. Morgan’s forgery of the Plaintiff’s signature constitute the

16

predicate acts of document fraud through email, thus constituting wire fraud.” Doc. No.

17

57 at 8.

18

“RICO provides a private cause of action for ‘[a]ny person injured in his business

19

or property by reason of a violation of [18 U.S.C. § 1962].’” United Bhd. of Carpenters

20

and Joiners of America v. Bldg. and Constr. Trades Dep’t, AFL-CIO, 770 F.3d 834, 837

21

(9th Cir. 2014) (quoting 18 U.S.C. § 1964(c)). Section 1962(c) makes it “unlawful for

22

any person employed or associated with” an enterprise engaged in or affecting interstate

23

commerce “to conduct or participate, directly or indirectly, in the conduct of such

24

enterprise’s affairs through a pattern of racketeering activity.” 18 U.S.C. § 1962(c). A

25

plaintiff asserting a civil RICO claim must allege that the defendants engaged in, or

26

27
28

subsequently failed to add the requisite particularity to [his] claims, the district court’s discretion to deny
leave to amend is particularly broad.”) (internal alteration and quotation marks omitted).
-21-

17cv0709-MMA (NLS)

1

conspired to engage in: “(1) the conduct (2) of an enterprise that affects interstate

2

commerce (3) through a pattern (4) of racketeering activity [known as predicate acts] or

3

collection of unlawful debt.” Eclectic Props. East, LLC v. Marcus & Millichap Co., 751

4

F.3d 990, 997 (9th Cir. 2014). Additionally, “the conduct must be (5) the proximate

5

cause of harm to the victim.” Id. (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479,

6

496-97 (1985)). “Two predicate acts within a period of ten years are required to show a

7

pattern of racketeering activity.” Forte v. Merced Cnty., No. 15-CV-147 DAD-BAM,

8

2016 WL 4247950, at *10 (E.D. Cal. Aug. 11, 2016) (citing 18 U.S.C. § 1961(5)). The

9

heightened pleading requirement of Rule 9(b) of the Federal Rules of Civil Procedure

10

applies to RICO claims. See Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d

11

1393, 1400-01 (9th Cir. 2004); Moore v. Kayport Package Express, Inc., 885 F.2d 531,

12

541 (9th Cir. 1989).

13

1. Statute of Limitations

14

Defendants first argue that Plaintiff’s RICO claim is time-barred as to Ms. Leedy.

15

RICO claims are subject to a four-year statute of limitations that begins to run when a

16

plaintiff “knows or should know of the injury that underlies his cause of action.” Pincay

17

v. Andrews, 238 F.3d 1106, 1109 (9th Cir. 2001). Plaintiff’s RICO allegations, however,

18

are vague with respect to time. Thus, the Court finds that based on Plaintiff’s allegations,

19

the Court has insufficient information to determine whether Plaintiff’s RICO claim is

20

time-barred as to Ms. Leedy.

21

2. Plaintiff Fails to State a RICO Claim

22

Next, Defendants contend that Plaintiff’s allegations are insufficient to state a

23

RICO claim. The Court agrees. As an initial matter, Plaintiff again fails to sufficiently

24

allege that he has standing to pursue his RICO claim. See 18 U.S.C. § 1964(c)

25

(indicating that in order to bring a civil action, a plaintiff must be “injured in his business

26

or property.”). Plaintiff relies primarily on Brown v. Cassens Transport Co., where the

27

Sixth Circuit held that a recipient of worker’s compensation benefits has a property

28

interest under state law in the continued receipt of those benefits. 675 F.3d 946, 958-59
-22-

17cv0709-MMA (NLS)

1

(6th Cir. 2012). The Sixth Circuit stated, “injury to such statutory entitlements is an

2

injury to property within the meaning of RICO.” Id. Brown, however, was overruled one

3

year later by Jackson v. Sedgwick Claims Management Services, Inc., 731 F.3d 556 (6th

4

Cir. 2013) (en banc). In Jackson, the Sixth Circuit held that alleged racketeering activity

5

leading to loss or diminution of benefits an employee expects to receive under the

6

workers’ compensation scheme does not constitute injury to “business or property” under

7

RICO. 731 F.3d at 562-63. The Ninth Circuit has not yet addressed whether the

8

expectation of workers’ compensation benefits constitutes an injury to property for

9

purposes of alleging a RICO claim. See Black v. CorVel Enter. Inc., No. 14-CV-2588

10

JGB (KKx), 2015 WL 9591447, at *4-5 (C.D. Cal. Sept. 21, 2015). However, at least

11

one district court in California has concluded that based upon recent Supreme Court and

12

Ninth Circuit precedent, “prior to final adjudication, workers’ compensation claimants [in

13

California] do not have a sufficient property interest in their benefits to establish the

14

injury to property required for a RICO cause of action.” Id. at *5.

15

Here, in considering Plaintiff’s allegations, it is entirely unclear whether Plaintiff

16

ever received workers’ compensation and disability benefits from his employer, and those

17

benefits were later terminated, or whether Plaintiff never received such benefits, but

18

believes he should have. Thus, the Court finds that Plaintiff has not sufficiently

19

demonstrated that he has standing to pursue his RICO claim.

20

Moreover, even if Plaintiff could sufficiently allege standing to pursue his RICO

21

claim, Plaintiff fails to plead facts that support the elements of a RICO claim. First,

22

Plaintiff does not allege facts that establish the existence of an enterprise affecting

23

interstate commerce, or that the individual defendants were employed by or associated

24

with any such enterprise. See Eclectic Props. E., LLC, 751 F.3d at 997 (9th Cir. 2014)

25

(“To show the existence of an enterprise . . ., plaintiffs must plead that the enterprise has

26

(A) a common purpose, (B) structure or organization, and (C) longevity necessary to

27

accomplish the purpose.”).

28

Second, Plaintiff fails to allege any facts sufficient to show that the individual
-23-

17cv0709-MMA (NLS)

1

defendants have committed two predicate offenses. Plaintiff alleges Leedy and Spire

2

“conspired to deny the existence of a completed and signed Designation of Physician

3

Form from the Plaintiff.” TAC ¶ 89. Morgan also “effectively forged [Plaintiff’s]

4

signature on an IP summary document that the Plaintiff had not signed by digitally

5

copying and pasting it from some other document.” Id. ¶ 99. Plaintiff claims these two

6

events constitute the two predicate acts within ten years to show a pattern of racketeering

7

activity. See id. Contrary to Plaintiff’s assertions, it is unclear how either the denial of

8

the Designation of Physician Form or the alleged forgery11 support the basis for RICO

9

liability. Nor does Plaintiff explain how the two predicate acts are related, or how these

10

acts amount to, or pose a threat of, continued criminal activity. See H.J. Inc. v. Nw. Bell

11

Tel. Co., 492 U.S. 229, 239 (1989) (emphasis in original) (finding that in order to prove a

12

pattern of racketeering activity, a plaintiff “must show that the racketeering predicates are

13

related, and that they amount to or pose a threat of continued criminal activity.”)

14

(emphasis in original).

15

Third, Plaintiff’s allegations are difficult to discern, vague, and conclusory. Such

16

allegations are insufficient to satisfy the heightened pleading standard of Rule 9(b). See

17

Moore, 885 F.2d at 541 (noting that under Rule 9(b), a plaintiff must specifically allege

18

the time, place and manner of the alleged wrongful conduct, as well as identify the parties

19

to each wrongful act).

20

In liberally construing Plaintiff’s allegations, the Court finds that Plaintiff fails to

21

state a RICO claim. Accordingly, the Court DISMISSES Plaintiff’s RICO claim with

22

prejudice.12

23
24
25
26
27
28

11

“The only ‘forgery’ crime enumerated as a RICO predicate act is forgery of a passport in
violation of 18 U.S.C. § 1543.” Block v. Snohomish Cnty., No. C14-235RAJ, 2015 WL 4164821, at *9
(W.D. Wash. July 8, 2015), aff’d, ---F. App’x---, 2018 WL 1978954 (9th Cir. April 27, 2018).
12

The Court noted these deficiencies in its previous order dismissing Plaintiff’s RICO claim.
The Court granted Plaintiff leave to amend his RICO claim, but Plaintiff has failed to cure the
deficiencies in his TAC. As such, dismissal with prejudice is appropriate. See Zucco Partners, LLC,
552 F.3d at 1007 (noting that “where the plaintiff has previously been granted leave to amend and has
-24-

17cv0709-MMA (NLS)

1

CONCLUSION

2

For the reasons set forth above, the Court GRANTS IN PART and DENIES IN

3

PART Defendants’ motion to dismiss. Specifically, the Court DISMISSES Plaintiff’s

4

first, third, and fourth causes of action with prejudice. As such, the Court DISMISSES

5

defendants Debby Leedy, Pamela Thompson, Ellen Mathews, Gregory A. Spire, Linda

6

Morgan, and Dr. Gary N. Bogart from this action with prejudice. Plaintiff’s second

7

cause of action for retaliation in violation of the Rehabilitation Act proceeds solely

8

against The Regents. The Regents must file an answer on or before September 14, 2018.

9
10

IT IS SO ORDERED.

11
12

Dated: August 20, 2018

13

_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26

27
28

subsequently failed to add the requisite particularity to [his] claims, the district court’s discretion to deny
leave to amend is particularly broad.”) (internal alteration and quotation marks omitted).
-25-

17cv0709-MMA (NLS)