Kidiavayi v. Leonard et al

Filing 56

ORDER granting 6 Motion to Dismiss.; denying 13 Motion to Amend/Correct Complaint. FURTHER ORDERED that Plaintiff's state law claims are REMANDED to Nevada State Court. Signed by Judge Kent J. Dawson on 3/28/2017. (Copies have been distributed pursuant to the NEF, cc: State Court with Certified Docket Sheet - JM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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STANLEY KIDIAVAYI,

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Plaintiff,

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v.

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Case No. 2:16-CV-01202-KJD-NJK

UNIVERSITY OF NEVADA, et al.,

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ORDER

Defendants.

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Presently before the Court is Defendants’ Motion to Dismiss (#6). Plaintiff filed a response in

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opposition and countermotion to amend the complaint (#8) to which Defendants replied (#11).

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Plaintiff filed an additional Motion to Amend the Complaint (#13). Defendants filed a response in

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opposition (#17) to which Plaintiff replied (#21). Plaintiff then filed an improperly titled Errata to

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Motion for Leave to Amend Complaint (#22). In the Errata, Plaintiff essentially concedes that he has

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improperly named certain defendants, who either may not be sued or against whom the statute of

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limitations would have run. The Court accepts the proposed amended complaint contained in the

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Errata as the operative complaint for the purposes of the motion to dismiss and motion to amend.

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I. Background

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According to the allegations of the complaint, Plaintiff was a student at the Graduate School
of Nursing at the University of Nevada Las Vegas (“UNLV”). The proposed amended complaint

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alleges Plaintiff is a black male working in a “female-dominated” profession. Plaintiff’s alleged

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nation of origin is Kenya. Defendant Bruce Leonard, a doctor, was Plaintiff’s professor for a clinical

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rotation in a course identified as Nursing 759, Primary Care of the Family II. Plaintiff alleges that

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between September 1, 2012 and September 11, 2014, he was discriminated against due to his race,

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national origin and gender. Amongst other claims, Plaintiff asserts that he received a failing grade in

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Nursing 759 because he was graded differently from peers not members of his protected classes. In

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April 2014, Plaintiff filed a racial discrimination claim with the University’s EEO/AA officer. He

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then filed a complaint with the Nevada Equal Rights Commission on April 12, 2015.

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Plaintiff filed the present action in Nevada state court on March 28, 2016 which was

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subsequently removed to federal court. He named the University of Nevada and Dr. Bruce Leonard

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as defendants. Plaintiff’s proposed amended complaint clarifies that he is bringing claims for: 1)

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violation of equal protection secured by the Fourteenth Amendment to the Constitution; 2) violations

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of civil rights brought pursuant to 42 U.S.C. § 1983 and conspiracy to violate civil rights pursuant to

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42 U.S.C. § 1985; 3) violation of Title IX of the Education Amendment of 1972 based on his gender;

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4) violation of Title VI of the Civil Rights Act based on disparate treatment based on his gender; 5)

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intentional infliction of emotional distress; and 6) negligent hiring, training and supervision.

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Defendants then filed the present motion to dismiss.

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II. Standard for Summary Judgment

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Summary judgment may be granted if the pleadings, depositions, answers to interrogatories,

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and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any

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material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ.

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P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the

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initial burden of showing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at

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323. The burden then shifts to the nonmoving party to set forth specific facts demonstrating a

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genuine factual issue for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587 (1986).
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All justifiable inferences must be viewed in the light must favorable to the nonmoving party.

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See Matsushita, 475 U.S. at 587. However, the nonmoving party may not rest upon the mere

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allegations or denials of his or her pleadings, but he or she must produce specific facts, by affidavit

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or other evidentiary materials as provided by Rule 56(e), showing there is a genuine issue for trial.

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See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The court need only resolve factual

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issues of controversy in favor of the non-moving party where the facts specifically averred by that

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party contradict facts specifically averred by the movant. See Lujan v. Nat’l Wildlife Fed’n, 497

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U.S. 871, 888 (1990); see also Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 345

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(9th Cir. 1995) (stating that conclusory or speculative testimony is insufficient to raise a genuine

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issue of fact to defeat summary judgment). Evidence must be concrete and cannot rely on “mere

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speculation, conjecture, or fantasy. O.S.C. Corp. v. Apple Computer, Inc., 792 F.2d 1464, 1467 (9th

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Cir. 1986). “[U]ncorroborated and self-serving testimony,” without more, will not create a “genuine

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issue” of material fact precluding summary judgment. Villiarimo v. Aloha Island Air, Inc., 281 F.3d

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1054, 1061 (9th Cir. 2002).

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Summary judgment shall be entered “against a party who fails to make a showing sufficient

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to establish the existence of an element essential to that party’s case, and on which that party will

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bear the burden of proof at trial.” Celotex, 477 U.S. at 322. Summary judgment shall not be granted

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if a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 248.

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III. Analysis

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A. Statute of Limitations: Federal Claims

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The federal statutes or constitutional claims brought by Plaintiff, including 42 U.S.C. § 1983,

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1985, 2000d, 20 U.S.C. § 1681, and 28 U.S.C. § 1343 do not contain their own statutes of

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limitations, so courts borrow the most appropriate state statute of limitations. See Cholla Ready Mix,

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Inc. v. Civish, 382 F.3d 969, 974 (9th Cir. 2004)(citing Wilson v. Garcia, 471 U.S. 261, 266-68

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(1985)). For these claims, the court borrow Nevada's statute of limitations for personal injury claims.

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See Wilson, 471 U.S. at 276–80 (holding that the statute of limitations for personal injury claims
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applies in § 1983 suits); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1140 (9th Cir. 2000) (§ 1985

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claims)(citing Goodman v. Lukens Steel Co., 482 U.S. 656, 661–62 (1987)); Taylor v. Regents of

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Univ. of Cal., 993 F.2d 710, 711–12 (9th Cir. 1993) (§ 2000d claims); Stanley v. Trustees of Cal.

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State Univ., 433 F.3d 1129, 1134 (9th Cir. 2006)(noting decisions of other circuits and close

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similarity between Title VI and Title IX). In Nevada, the statute of limitations for a personal injury

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action is two years. NRS 11.190(4)(e); Day v. Zubel, 112 Nev. 972, 977 (1985).

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In this case, Plaintiff’s claims had arisen no later than January 15, 2014 when the last alleged

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discriminatory action occurred (the repeated Standardized Patient Exam). Therefore, Plaintiff’s

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federal claims had to be filed no later than January 15, 2016. Plaintiff did not file his complaint until

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March 28, 2016. Therefore, whether the Court considers Plaintiff’s amended claims or not, they are

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time barred and must be dismissed.

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To the extent that Plaintiff argues that NRS § 651.120 requires equitable tolling of the statute

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of limitations, he is incorrect. First, § 651.120 sets the statute of limitations only for actions brought

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under enumerated state statutes, which do not include the federal claims. Second, even if § 651.120

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did apply to Plaintiff’s federal claims, they would still be barred. The statute of limitations under

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§651.120 is one year, not two years. Even if the Court tolls the nine months Plaintiff’s complaint was

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pending before NERC, the filing date of the present complaint is even later than under the two-year

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statute of limitations. Therefore, Plaintiff’s federal claims are dismissed.

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B. Supplemental Jurisdiciton over Remaining State Law Claims

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A district court has discretion to decline to exercise supplemental jurisdiction over a claim if

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all claims over which it has original jurisdiction have been dismissed or if the claim raises a novel or

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complex issue of state law. See 28 U.S.C. § 1367(c). Since the Court has dismissed all claims over

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which it has original jurisdiction, the Court declines to exercise its supplemental jurisdiction over

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Plaintiff’s state law claims.

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IV. Conclusion
Accordingly, IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#6) is
GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s Motion to Amend the Complaint (#13) is
DENIED as futile;
IT IS FURTHER ORDERED that Plaintiff’s state law claims are REMANDED to Nevada
State Court;
IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendants
and against Plaintiff on Plaintiff’s federal claims.
DATED this 28th day of March 2017.

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_____________________________
Kent J. Dawson
United States District Judge

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