Hamer v. State of Nevada Bureau of Vocational Rehabilitation Employment and Training
Filing
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ORDER that 30 Report and Recommendation is ACCEPTED and ADOPTED in full. FURTHER ORDERED that Plaintiff's discrimination claim against NDALC pursuant to 42 U.S.C. § 1983 is dismissed due to Plaintiffs failure to allege that there is a sufficient nexus between the State of Nevada and NDALC. Signed by Chief Judge Gloria M. Navarro on 3/7/2018. (Copies have been distributed pursuant to the NEF - MMM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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CLARK HAMER,
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Plaintiff,
vs.
STATE OF NEVADA BUREAU OF
VOCATIONAL REHABILITATION
EMPLOYMENT AND TRAINING,
Defendant.
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Case No.: 2:15-cv-01036-GMN-GWF
ORDER
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Pending before the Court is the Report and Recommendation of the Honorable United
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States Magistrate Judge George Foley, Jr., (ECF No. 30), which recommends that Clark
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Hamer’s (“Plaintiff”) discrimination claim against the Nevada Disability and Advocacy Law
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Center (“NDALC”) pursuant to 42 U.S.C. § 1983 be dismissed due to Plaintiff’s failure to
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allege a sufficient nexus between the State of Nevada and NDALC.
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A party may file specific written objections to the findings and recommendations of a
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United States Magistrate Judge made pursuant to Local Rule IB 1-4. 28 U.S.C. § 636(b)(1)(B);
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D. Nev. R. IB 3-2. Upon the filing of such objections, the Court must make a de novo
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determination of those portions to which objections are made. Id. The Court may accept, reject,
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or modify, in whole or in part, the findings or recommendations made by the Magistrate Judge.
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28 U.S.C. § 636(b)(1); D. Nev. IB 3-2(b). Here, Plaintiff filed an Objection to the Report and
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Recommendation on June 8, 2017. (See ECF No. 32).
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Judge Foley recommends dismissal of Plaintiff’s § 1983 claim against NDALC on the
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basis that Plaintiff fails to establish a nexus between the State of Nevada and NDALC sufficient
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to render NDALC a governmental actor for the purposes of his constitutional claims. (Report
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and Recommendation 5:2–3, ECF No. 30). In accordance with 28 U.S.C. § 636(b)(1) and
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Local Rule IB 3-2(b), the Court has reviewed the record in this case, including Plaintiff’s
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Objection, (ECF No. 32), and agrees with Judge Foley’s recommendation.
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The ultimate issue in determining whether a person or entity is subject to suit under §
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1983 is whether the alleged violation of federal rights is fairly attributable to the government.
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See Sutton v. Providence St. Joseph Medical Center, 192 F.3d 826, 835 (9th Cir. 1999). The
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United States Supreme Court utilizes a two-part test to answer this inquiry. “First, the
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deprivation must result from governmental policy[,]” such that the deprivation was “caused by
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the exercise of some right or privilege created by the [government] or a rule of conduct
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imposed by the [government].” Id. (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922,
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937 (1982)). “Second, ‘the party charged with the deprivation must be a person who may fairly
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be said to be a governmental actor.’” Id. (quoting Lugar, 457 U.S. at 937). The Ninth Circuit
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“start[s] with the presumption that private conduct does not constitute governmental action.”
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Id.; see also Price v. State of Hawaii, 939 F.2d 702, 707–708 (9th Cir. 1991) (“[P]rivate parties
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are not generally acting under color of state law.”).
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Further, the “Supreme Court has instructed that ‘state action may be found if, though
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only if, there is such a close nexus between the State and the challenged action that seemingly
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private behavior may be fairly treated as that of the State itself.’” Florer v. Congregation
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Pidyon Shevuyim, N.A., 639 F.3d 916, 924 (9th Cir. 2011) (quoting Brentwood Acad. V. Tenn.
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Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001)). The inquiry “begins by identifying
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the specific conduct of which the plaintiff complains.” Caviness v. Horizon Cmty. Learning
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Ctr., 590 F.3d 806, 812 (9th Cir. 2010). “It is important to identify the function at issue
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because an entity may be a State actor for some purposes but not for others.” Id. 812–13.
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The Court finds that Plaintiff’s amended Complaint, (see Second Am. Compl. (“SAC”),
ECF No. 19), fails to plead facts from which the Court can conclude that NDALC’s conduct
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can fairly constitute state action. Plaintiff alleges that NDALC and the Nevada Bureau of
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Vocational Rehabilitation and Training (“BVR”) collaborated in approving Plaintiff’s
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Individualized Plan for Employment (“IPE”), which allegedly violated federal compliance
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regulations. (See id. at 1). Plaintiff further alleges that NDALC receives federal funding and
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BVR contracted with NDALC to ensure federal compliance. (Id. at 1–2). Beyond these two
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assertions, however, there are no specific allegations that NDALC’s actions resulted from
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governmental policy, or that NDALC effectively served as a state agent with regard to the
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alleged deprivation.
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Moreover, it is well established that a private entities’ dependence on governmental
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subsidies is insufficient to establish state action. See e.g., Rendell-Baker v. Kohn, 457 U.S. 830,
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840–41 (1982)); see also Caviness, 590 F.3d at 815. Further, being subject to extensive
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governmental regulation is also not enough to render private entities governmental actors for
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the purposes of constitutional claims. See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).
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Accordingly, Plaintiff’s allegations are insufficient to overcome the presumption that NDALC
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is a private actor.
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Accordingly,
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IT IS HEREBY ORDERED that the Report and Recommendation, (ECF No. 30), is
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ACCEPTED and ADOPTED in full.
IT IS FURTHER ORDERED that Plaintiff’s discrimination claim against NDALC
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pursuant to 42 U.S.C. § 1983 is dismissed due to Plaintiff’s failure to allege that there is a
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sufficient nexus between the State of Nevada and NDALC.
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DATED this ___day of March, 2018.
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_____________________________
Gloria M. Navarro, Chief Judge
United States District Court
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