Kidiavayi v. Leonard et al
Filing
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AMENDED 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 5/4/2017. (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,
Case No. 2:16-CV-01202-KJD-NJK
AMENDED ORDER1
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v.
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UNIVERSITY OF NEVADA, et al.,
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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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This order, originally entered March 29, 2017, has been amended to substitute the standard for a motion to
dismiss rather than for a summary judgment motion in section II. It has not been amended in any other way.
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I. Background
According to the allegations of the complaint, Plaintiff was a student at the Graduate School
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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 a Motion to Dismiss
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In considering a motion to dismiss, “all well-pleaded allegations of material fact are taken as
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true and construed in a light most favorable to the non-moving party.” Wyler Summit Partnership v.
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Turner Broadcasting System, Inc., 135 F.3d 658, 661 (9th Cir. 1998) (citation omitted).
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Consequently, there is a strong presumption against dismissing an action for failure to state a claim.
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See Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997) (citation omitted).
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“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937,
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1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the
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context of a motion to dismiss, means that the plaintiff has pleaded facts which allow “the court to
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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
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The Iqbal evaluation illustrates a two prong analysis. First, the Court identifies “the
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allegations in the complaint that are not entitled to the assumption of truth,” that is, those allegations
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which are legal conclusions, bare assertions, or merely conclusory. Id. at 1949-51. Second, the
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Court considers the factual allegations “to determine if they plausibly suggest an entitlement to
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relief.” Id. at 1951. If the allegations state plausible claims for relief, such claims survive the motion
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to dismiss. Id. at 1950.
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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
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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;
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IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendants
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and against Plaintiff on Plaintiff’s federal claims.
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DATED this 4th day of May 2017.
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_____________________________
Kent J. Dawson
United States District Judge
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