Ovitsky v. Washington County Victim Assistance et al
Filing
76
OPINION and ORDER: Granting County's Motion to Dismiss for Failure to State a Claim 50 ; Granting State's Motion to Dismiss 63 . Therefore, plaintiff's complaint is dismissed as to all claims asserted against the County and the State. Further, WCSD is dismissed as a defendant in this action with prejudice. Signed on 8/20/2013 by Chief Judge Ann L. Aiken. (lg) Modified on 8/22/2013 to add language (lg).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ABBY JO OVITSKY,
Case No. 3:12-cv-02250-AA
OPINION AND ORDER
Plaintiff,
v.
STATE OF OREGON, WASHINGTON
COUNTY, WASHINGTON COUNTY
SHERIFF'S DEPARTMENT,
BEAVERTON SCHOOL DISTRICT,
and NEAL EVAN CUTLER,
Defendants.
Abby Jo Ovitsky
6900 S.W. 195th Avenue #133
Beaverton, Oregon 97007
Pro se plaintiff
Chelsea Glynn
Assistant County Counsel
Office of Washington County Counsel
155 N. First Avenue, Suite 340-MS 24
Hillsboro, Oregon 97124
Attorney for defendants Washington
County Sheriff's Department
County
Ellen F. Rosenblum
Attorney General
Michael R. Washington
Senior Assistant Attorney General
Department of Justice
1162 Court Street N.E.
Salem, Oregon 97301
Attorneys for defendant State of Oregon
Page 1 - OPINION AND ORDER
and
Washington
AIKEN, Chief Judge:
Defendants
Oregon
Washington
("State")
County
("County")
and
the
State
of
separately move to dismiss the claims asserted
against them in prose plaintiff Abby Jo Ovitsky's complaint. 1
For
the reasons discussed below, these motions are granted.
BACKGROUND
Plaintiff is a hearing impaired individual who uses Relay, a
service that allows hearing impaired individuals to communicate
with others.
The communication service works through an operator,
who reads what the hearing impaired individual types aloud and will
type to the hearing impaired individual what another person speaks
in response.
From October 2012 through December 2012, plaintiff
attended juvenile court hearings regarding her son via Relay, which
were presided over by Washington County Judge Michele Rini.
On December 13,
2012,
Washington
County
Victim
Washington
County
Circuit
plaintiff filed a
complaint against
Assistance,
Judge
Court,
and
WCSD,
the
Rini,
Juvenile
the
Justice
Department based on federal question jurisdiction in conformity
with 28 U.S.C.
§
1331.
On January 7,
2013,
the Court granted
plaintiff's motion to proceed in forma pauperis ("IFP").
On April
20, 2013, this Court granted motions to dismiss from defendants Pat
Garrett, Judge Rini, Alan Rappleyea, Lynn Schroeder, and WCSD; the
1
The County also moves to dismiss plaintiff's claims
against defendant Washington County Sheriff's Department ("WCSD")
because it is not a separate legal entity subject to suit. The
County is correct and therefore WCSD is dismissed as a defendant
from this action.
See Ovitsky v. Wash. Cnty. Victim Assistance,
2013 WL 1767946, *4 (D.Or. Apr. 20, 2013).
Because, however,
plaintiff is proceeding pro se in this matter, the Court
construes plaintiff's allegations against WCSD as though they are
asserted against the County.
Page 2 - OPINION AND ORDER
Court also granted plaintiff leave to amend her complaint.
On May 14, 2013, plaintiff filed her first amended complaint,
alleging:
(1) violation of 42 U.S.C.
1983 against the Beaverton
§
School District and WCSD; (2) discrimination based on disability in
violation
of
Title
II
of
the
("ADA") against all defendants;
Americans
with
Disabilities
Act
(3) interference with seclusion in
violation of Oregon's privacy laws against WCSD;
(4) violation of
the Rehabilitation Act against all defendants; (5) violation of Or.
Rev. Stat. § 243.672 and Titles I and III of the ADA against the
State; and (6) discrimination based on disability in violation of
the Oregon Civil Rights Act against all defendants.
claims are premised,
in part,
Plaintiff's
on the alleged discrimination she
experienced during her son's juvenile hearings because Judge Rini
failed to accommodate a slowdown of the Relay operation to 60 words
per minute; as a result, the parties were speaking too quickly for
plaintiff to listen and understand.
filed a motion to dismiss.
2
On May 28, 2013, the County
On June 27,
2013,
the State filed a
motion to dismiss.
STANDARDS OF REVIEW
Where
the
plaintiff
effectuates
insufficient
service
of
process pursuant to Fed. R. Civ. P. 4, the court must dismiss the
action.
Fed. R. Ci v. P. 12 (b) ( 5) .
Rule
should be
4
given
a
Nonetheless, "the provisions of
liberal
and
flexible
construction."
2
While difficult to decipher, plaintiff's claims are also
based on several other discrete factual scenarios.
See generally
Am. Compl.; Pl.'s Resp. to County's Mot. Dismiss; Pl.'s Resp. to
States's Mot. Dismiss.
These circumstances include, but are not
limited to, a 911 call plaintiff placed with the County and job
applications plaintiff filed with the State; it is unclear
whether and/or how these events relate to her son's juvenile
proceedings.
Id.
Page 3 - OPINION AND ORDER
Borzeka v. Heckler, 739 F.2d 444, 447 (9th Cir. 1984)
an earlier version of Fed. R. Civ. P. 4).
not required
(a)
~if
(b) the defendant would suffer no prejudice
from the defect in service,
failure
to
As such, dismissal is
the party that had to be served personally
received actual notice,
the
(discussing
(c) there is a justifiable excuse for
serve properly,
and
(d)
the plaintiff would be
severely prejudiced if his complaint were dismissed."
~fails
Similarly, where plaintiff
Id.
to state a claim upon which
relief can be granted," the court must dismiss the action. Fed. R.
Ci v. P. 12 (b) ( 6) .
must
allege
To survive a motion to dismiss, the complaint
facts
~enough
plausible on its face."
544, 570(2007).
is
liberally
to
state a
construed
1983) .
nothing more than a
in
favor
the
plaintiff
and
its
Rosen v. Walters, 719 F.2d 1422,
Bare assertions,
however,
that amount to
recitation of the elements" of a
~formulaic
conclusory
of
and
not
entitled
Ashcroft v. Iqbal, 556 U.S.
662,
681
~are
is
For purposes of a motion to dismiss, the complaint
(9th Cir.
claim
relief that
Bell Atlantic Corp. v. Twombly, 550 U.S.
allegations are taken as true.
1424
claim to
to
(2009).
plausible claim for relief, the complaint
be
assumed
true."
Rather, to state a
~must
contain sufficient
allegations of underlying facts" to support its legal conclusions.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied,
13 2 S . Ct . 2101 ( 2 0 12) .
DISCUSSION
I.
The County's Motion to Dismiss
The
County
asserts
that
it
is
entitled
to
dismissal
of
plaintiff's Title II ADA claim because it is actually plead as a 42
U.S.C.
§
1983 claim, such that the restrictions governing a
Page 4 - OPINION AND ORDER
§
1983
claim apply.
See County's Mem. in Supp. of Mot. Dismiss at 3-4, 6.
Additionally,
while
the
County
does
not
individually
plaintiff's state law claims, it argues that they
their
own
[such
that]
[i]f
Plaintiff's
address
"cannot stand on
federal
claims
are
dismissed, then this Court will cease having jurisdiction over the
remaining state claims."
A.
Id. at 7.
Preliminary Matter
Initially, the Court notes that the County failed to address
plaintiff's Rehabilitation Act and 42 U.S.C.
motion to dismiss. 3
See generally id.
§
Thus,
1983 claims in its
while the County
argues that plaintiff's state law claims should be dismissed due to
lack of supplemental jurisdiction, it neglected to establish that
this Court is first without original jurisdiction.
Nevertheless,
the court must dismiss an IFP complaint sua sponte if it "fails to
state
a
claim on
which
1915 (e) (2) (B); Lopez v.
2000)
relief may be
Smith,
granted."
203 F.3d 1122,
u.s.c.
28
1126-27
§
(9th Cir.
(en bane); see also Omar v. Sea-Land Serv., Inc.,
813 F.2d
986, 991 (9th Cir. 1987).
i.
To
Rehabilitation Act Claim
establish
plaintiff must
a
allege
violation
that:
of
( 1)
the
she
is
Rehabilitation
Act,
a
handicapped within the
meaning of the Rehabilitation Act;
(2) she is otherwise qualified
for the benefit or services sought;
(3) she was denied the benefit
3
While the County failed to separately address plaintiff's
claim against WCSD pursuant to 42 U.S.C. § 1983, the Court
acknowledges that its arguments in favor of dismissal expressly
discuss the requirements of this statute.
See, e.g., County's
Mem. in Supp. of Mot. Dismiss at 6.
The Court notes further
that, for the first time in its reply brief, the County argues
that plaintiff's Rehabilitation Act claim should be dismissed.
See County's Reply to Mot. Dismiss at 2-3.
Page 5 - OPINION AND ORDER
or services solely by reason of her handicap; and (4) the program
providing
the
assistance.
benefit
or
Lovell v.
services
Chandler,
receives
federal
303 F.3d 1039,
1052
financial
(9th Cir.
2002) .
Here, plaintiff only states that she is handicapped within the
meaning of the statute and that she has been denied the benefits of
the
County's
programs.
Am.
Compl.
67-69.
91:91:
She
does
not,
however, allege that she is qualified for the benefits sought or
that
the programs providing benefits
assistance.
Dismiss.
See
generally
id.;
receive
Pl.'s
Resp.
federal
to
financial
County's
Mot.
Moreover, it is unclear upon which factual circumstances
this claim is based.
Therefore,
plaintiff's Rehabilitation Act
claim against the County is dismissed.
ii.
42 U.S.C.
In order to state a
the plaintiff must
governmental
violation.
658,
694
conscious
§
1983 Claim
1983 claim against a government entity,
§
demonstrate
policy
or
custom
a
direct
and
the
causal
link between a
alleged
constitutional
Monell v. Dep't of Soc. Serv. of City of N.Y., 436 U.S.
( 1978) .
choice
The policy or custom must be a deliberate or
by
a
government
entity's
final
policy-making
official and cannot be imposed via respondeat superior.
Id.; see
also City of Canton v. Harris, 489 U.S. 378, 385 (1989); Penbaur v.
City of Cincinnati,
475 U.S.
469,
483
(1986).
Here,
plaintiff
neither alleges a specific constitutional violation nor does she
identify a particular County policy or custom.
See generally Am.
Compl.; see also Pl.'s Resp. to County's Mot. Dismiss at 14, 36-37.
Accordingly, plaintiff's 42 U.S.C.
is dismissed.
Page 6 - OPINION AND ORDER
§
1983 claim against the County
B.
ADA Claim
In order to state a claim of disability discrimination under
Title II of the ADA, a plaintiff must allege that:
individual with a disability";
participate
in
or
receive
(1) she "is an
(2) she "is otherwise qualified to
the benefit
services, programs, or activities";
(3)
of
some public entity's
she "was either excluded
from participation in or denied the benefits of the public entity's
services, programs, or activities, or was otherwise discriminated
against by the public entity"; and (4) "such exclusion, denial of
benefits,
or discrimination was by reason of
[her]
disability."
Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002), cert. denied,
538
u.s.
921 (2003).
The Court finds the County's motion unpersuasive to the extent
it argues that plaintiff's Title II ADA claim should be dismissed
because it is actually alleged as a
42 U.S.C.
§
1983 claim and
plaintiff did not identify a County policy or custom that caused
her injury.
Plaintiff's filings makes clear that her Title II
claim is premised on disability discrimination in violation of the
ADA.
See Am. Compl.
Dismiss at 9.
~~
49-56, 58-61; Pl's. Resp. to County's Mot.
Further, the County has not cited to, and the Court
is not aware of,
any authority that requires allegations beyond
those articulated in Thompson, 295 F.3d at 895, to state a viable
Title II ADA claim against a government entity.
County's Mem.
in Supp.
of Mot.
Dismiss;
See generally
County's Reply to Mot.
Dismiss; see also 42 U.S.C. § 12132 (Title II of the ADA inheres
specifically to public entities).
Nonetheless, plaintiff's claim fails at the pleadings level.
See 28 U.S.C. § 1915(e)(2)(B); Lopez, 203 F.3d at 1126-27.
Page 7 - OPINION AND ORDER
While
plaintiff
recites
a
series
of
events
that
allegedly
occurred
between her and County employees, she does not explain how any of
these events resulted in discrimination based on her disability.
Specifically, although she states that the County refused to use
Relay, and instead sent a deputy to her house to investigate a 911
call,
she does not specify how this action led to the denial of
some service, program, or activity she was qualified to participate
in.
See generally Am. Compl.; see also Pl.'s Resp.
Mot. Dismiss at 14.
to County's
She also concludes that the County failed to
accommodate her disability in various ways; however, plaintiff does
not
specify
which
particular
County-provided
denied as a result of her hearing impairment.
Even
construing plaintiff's
pro
se
services
she
was
Id.
pleadings
in
the
most
favorable and liberal light, vague and conclusory allegations such
as these are insufficient to survive a motion to dismiss.
See
Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 923 n.4
(9th Cir. 2011), cert. denied, 132 S.Ct. 1000 (2012)
(because pro
se plaintiffs do not have the benefit of legal counsel,
their
pleadings are "held to less stringent standards" than those drafted
by lawyers) .
Therefore,
the County's motion is
granted as to
plaintiff's Title II ADA claim.
C.
State Law Claims
Contrary to
the County's assertions,
dismissal
of
federal
claims does not automatically deprive a district court of subject
matter jurisdiction over any supplemental claims.
Carlsbad Tech.,
Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009).
Rather, where a
district court dismisses "all claims over which it has original
jurisdiction," it may,
in its discretion,
Page 8 - OPINION AND ORDER
"decline to exercise
supplemental
U.S.C.
§
jurisdiction"
1367(c) (3);
over pendent
state
law
claims.
see also Lacey v. Maricopa Cnty.,
28
649 F.3d
1118, 1137 (9th Cir. 2011).
Ordinarily, this Court would decline to exercise supplemental
jurisdiction over a plaintiff's state law claims.
Here, however,
because plaintiff is proceeding pro se, and her complaint is being
dismissed without prejudice, the Court will retain jurisdiction of
these claims, at least at this stage in the proceedings, in order
to briefly address their merits.
See Carnegie-Mellon Uni v.
Cohill,
484
(retaining
pendent
state
U.S.
law
343,
351
claims
(1988)
is
appropriate
v.
jurisdiction over
where
it
serves
the
interests of efficiency and judicial economy).
i.
Civil Rights Act Claim
Oregon's Civil Rights Act prohibits discrimination in any
place of public accommodation "on account of race, color, religion,
sex, sexual orientation, national origin, marital status or age."
Or.
Rev.
defined
Stat.
as
"a
§
659A. 403 (1).
business
or
A place of public accommodation
commercial
privileges or advantages to the public."
Fraternal Order of Eagles,
( 2002) ; see also Or. Rev.
180 Or.App.
Stat.
§
enterprise
that
offers
Lahmann v. Grand Aerie of
420,
659A. 400.
429,
43
P.3d 1130
Plaintiff does not
identify a place of public accommodation owned or operated by the
County in which she allegedly experienced discrimination, and the
County itself is neither a business nor commercial enterprise.
generally Am.
Compl.;
Pl.'s Resp.
to County's Mot.
Dismiss.
See
In
addition, while she alleges discrimination based on her disability,
plaintiff does not include any allegations pertaining to race,
color, religion, sex, sexual orientation, national origin, marital
Page 9 - OPINION AND ORDER
status, or age.
Therefore, the County's motion is granted as to
plaintiff's claim under Or. Rev. Stat.
ii.
659A.403.
§
Privacy Law Claim
As this Court explained previously, Or. Rev. Stat.
and Or.
Rev.
Stat.
§
163.700
166.065 are criminal statutes that do not
provide a civil cause of action.
*4.
§
See Ovitsky, 2013 WL 1767946 at
Furthermore, neither statute applies here; the former governs
the recording of another person in a
state of nudity,
without
consent, for the purposes of sexual gratification and the latter
deals
with
"offensive physical
abusive
words
provoke
a
166.065.
or
violent
gestures
contact"
or public
manner
intended and
in a
response."
See
Or.
Rev.
Stat.
insults
§§
"by
likely to
163.700,
Plaintiff does not allege any facts indicating that such
activities occurred in the case at bar.
Pl.'s Resp.
to County's Mot.
Dismiss.
See generally Am. Compl.;
Therefore,
the County's
motion is granted.
II.
The State's Motion to Dismiss
The State argues that plaintiff's claims against it should be
dismissed because the Eleventh Amendment applies to violations of
Titles I and II of the ADA. The State also asserts that it is not
a "private entity" within the meaning of Title III of the ADA.
Additionally, the State contends that plaintiff inadequately plead
a claim under the Rehabilitation Act.
State
argues
that
plaintiff's
claims
In the alternative,
should
be
dismissed
the
for
insufficient service of process. 4
4
Because, as discussed below, the State's motion is
granted, the Court declines to address its insufficient service
of process argument. Nonetheless, while not dispositive, the
Court notes briefly that dismissal would not be required under
Page 10- OPINION AND ORDER
A.
Preliminary Matter
Like the County, the State failed to address all of the claims
alleged against it,
Stat
including plaintiff's claims under Or.
243.672 and the Oregon Civil Rights Act.
§
State's Mem.
in Supp.
of Mot.
Dismiss.
Rev.
See generally
As discussed above,
the
court must dismiss an IFP complaint sua sponte if it "fails to
state
a
claim on which
relief may
be
granted."
28
u.s.c.
§
1915(e)(2)(B); Lopez, 203 F.3d at 1126-27.
i.
Or.
Or. Rev. Stat.
Rev.
Stat
§
§
243.672 Claim
243.672 governs unfair labor practices by
public employers and prohibits discrimination in regard to hiring
"for the purpose of encouraging or discouraging membership in an
employee organization."
Or. Rev. Stat.
§
243.672(1) (c).
In other
words, this statute protects an individual's right to participate
in a labor union.
See generally id.
Plaintiff has not alleged any
facts indicating that the State participated in any of the behavior
covered by this statute.
State's Mot.
Dismiss.
See generally Am. Compl.; Pl.'s Resp. to
Accordingly, plaintiff's Or. Rev.
Stat.
§
243.672 claim against the State is dismissed.
these circumstances.
See Borzeka, 739 F.2d at 447.
Plaintiff is
proceeding pro se in this lawsuit and was granted IFP status. As
a result, the Court, to the best of its ability, effectuated
service of process on her behalf.
See Am. Compl. ~ 12; see also
Pl.'s Proposed Summons to State; Washington Decl. ~ 3 & Ex. 1.
Further, the State acknowledges that it received actual notice of
plaintiff's claims and, moreover, timely moved to dismiss
plaintiff's complaint. As such, the State does not argue, and
the Court does not find, that the State suffered any prejudice as
a result of plaintiff's allegedly insufficient service.
See
generally State's Mem. in Supp. of Mot. Dismiss.
Page 11- OPINION AND ORDER
ii.
As
Oregon Civil Rights Act Claim
discussed
above,
Or.
Rev.
Stat.
659A.403
§
prohibits
discrimination in any place of public accommodation.
County,
Like the
the State itself is neither a business nor a commercial
enterprise.
Moreover,
while
plaintiff
asserts
that
she
was
discriminated against in state court due to her hearing impairment,
she
does
not
include
any
allegations
concerning
race,
color,
religion, sex, sexual orientation, national origin, marital status,
or age.
B.
Therefore, this claim is dismissed.
Title II ADA Claim
The Eleventh Amendment prohibits a citizen from suing a state
in
federal
Regents,
court
528 U.S.
without
62,
its
72-73
States'
Eleventh Amendment
intends
to
do
constitutional
Amendment.
so
and
consent.
(2000).
Kimel
v.
Fla.
Bd.
of
"Congress may abrogate the
immunity when it both unequivocally
'act[s]
authority,'"
pursuant
such
as
to
5
§
a
valid
of
the
grant
of
Fourteenth
Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356,
363 (2001); Tennessee v. Lane, 541 U.S. 509, 517-18 (2004).
Under
abrogate
Title
of
the
Eleventh Amendment
(citing 42 U.S.C.
whether
II
Congress
§
ADA,
immunity.
12202).
was
Congress
acting
constitutional authority under
Lane,
Accordingly,
pursuant
clearly
to
541
intended
U.S.
at
to
518
the question here is
a
valid
grant
of
5 of the Fourteenth Amendment.
§
"Section 5 legislation is valid if it exhibits a congruence and
proportionality between the injury to be prevented or remedied and
the means adopted to that end."
quotations omitted).
Id. at 520 (citation and internal
This is an "as applied" test, meaning that a
fact-specific inquiry is required.
Page 12- OPINION AND ORDER
Id. at 532-34.
In
Lane,
the
Supreme
Court
conducted
this
inquiry
and
determined that Title II did not exceed congressional authority
under
§
5 of the Fourteenth Amendment in cases that implicate the
fundamental right of access to courts under the Due Process clause.
Id. at 533-34 ("we find that Title II unquestionably is valid
§
5
legislation as it applies to the class of cases implicating the
accessibility
of
judicial
services") .
Subsequent
cases
interpreting Lane have refined this rule and hold that Title II of
the ADA validly abrogates state sovereign immunity insofar as it
creates
a
private
cause
of
action
violates the Fourteenth Amendment.
5 4 6 U . S . 151 ,
15 8 - 5 9
(2 0 0 6 )
for
conduct
that
See United States v. Georgia,
( " [ w] hi 1 e the Members of this Court
have disagreed regarding the scope of Congress's
enforcement powers under
one doubts that
§
§
actually
'prophylactic'
5 of the Fourteenth Amendment .
5 grants Congress the power to
. no
'enforce the
provisions' of the Amendment by creating private remedies against
the States for actual violations of those provisions")
and
emphasis
omitted) .
Thus,
in
order
to
(citation
determine
whether
plaintiff's Title II claim is precluded by the Eleventh Amendment,
this Court must examine: "(1) which aspects of the State's alleged
conduct violated Title II;
(2) to what extent such misconduct also
violated
Amendment;
the
Fourteenth
and
(3)
insofar
as
such
misconduct violated Title II but did not violate the Fourteenth
Amendment."
Here,
Id. at 159.
the
State
concedes
individual with a disability.
that
plaintiff
is
a
qualified
See State's Mem. in Supp. of Mot.
Dismiss at 6-7.
It is unclear, however, from plaintiff's complaint
and
filings
subsequent
as
Page 13- OPINION AND ORDER
to
what
extent
the
State's
conduct
allegedly violated the ADA and/or the Due Process clause of the
Fourteenth Amendment.
This is because plaintiff does not identify
the capacity in which she was participating in her son's juvenile
proceedings - i.e. as his guardian ad litem, as a witness for or
against him, or as an observer.
See Am. Compl.
~~
26, 57; see also
Pl.'s Resp. to State's Mot. to Dismiss at 12, 15, 19-22, 32-33, 39.
The
nature
of
her
son's
juvenile
hearings
is
also
unclear,
including whether such proceedings were civil or criminal, or were
substantive or merely status-related.
Additionally, plaintiff has
not alleged that she suffered an actual loss or injury due to her
partially reduced ability to listen to these proceedings.
As a result, this Court cannot determine whether plaintiff's
participation
fundamental
in
right
the
proceedings
protected by
the
at
issue
Due
pertained
Process
clause
to
a
of
the
Fourteenth Amendment or even involved a violation of the ADA.
See
Lane, 541 U.S. at 523 (recognizing limited circumstances
wh~re
the
due process clause protects an individual's right of access to the
courts);
see
also
Georgia,
546
U.S.
at
plaintiff's prose complaint where it was
the conduct underlying [his]
Title
II").
Therefore,
158-59
~unclear
(dismissing
a
to what extent
constitutional claims also violated
the
State's
motion
is
granted
as
to
plaintiff's Title II claim.
C.
Title I ADA Claim
Plaintiff's Title I claim is barred by the Eleventh Amendment.
See Garrett,
531 U.S.
at 37 4.
As such,
the State's motion is
granted as to plaintiff's Title I ADA claim.
Page 14- OPINION AND ORDER
D.
Title III ADA Claim
To demonstrate a Title III discrimination claim, a plaintiff
must allege:
(1) she is disabled within the meaning of the ADA;
(2)
the defendant is a private entity that owns, leases, or operates a
place
of
public
accommodation;
and
( 3)
she
was
denied
accommodations by the defendant because of her disability.
v. M.J. Cable, Inc., 481 F.3d 724, 730 (9th Cir. 2007)
omitted).
Molski
(citations
The ADA defines "private entity" as "any entity other
than a public entity."
42 U.S.C.
12181(6).
§
includes "any State or local government."
The
public
State
acknowledges
is
this
not
fact
a
private
in her
A "public entity"
42 U.S.C.
entity.
In
complaint.
§
fact,
See Am.
(describing the State as a "public entit[y]").
12131(1) (A).
plaintiff
Compl.
<[
23
Thus, the State's
motion is granted as to plaintiff's Title III ADA claim.
E.
Rehabilitation Act Claim
As discussed in section I (A) (I)
above,
plaintiff failed to
allege facts in support of her Rehabilitation Act claim.
Compare
Lovell, 303 F.3d at 1052 (outlining the elements of a claim under
the Rehabilitation Act), with Am. Compl.
State's motion is granted.
Page 15- OPINION AND ORDER
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