The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND
On June 30, 2009, Defendant University of Phoenix ("University') moved to dismiss Plaintiff's First Amended Complaint for failure to state a claim or, in the alternative, for a more definite statement. (Doc. No. 18.) Plaintiff failed to timely oppose the motion. On August 5, 2009, the Court ordered Plaintiff to file an opposition no later than August 19, 2009, and submitted the motion on the papers pursuant to Local Civil Rule 7.1(d)(1). (Doc. No. 19.) On August 25, 2009, Plaintiff filed a motion for extension of time to file an opposition to Defendant's motion to dismiss. (Doc. No. 21.) The Court granted Plaintiff's motion and ordered Plaintiff's opposition to be filed no later than September 8, 2009. (Doc. No. 22.) On September 21, 2009, Plaintiff filed her response in opposition. (Doc. No. 23.) For the reasons below, the Court grants Defendant University's motion, and dismisses the First Amended Complaint.
On December 19, 2008, Plaintiff Carolyn Ernest filed a complaint against Defendants University of Phoenix, Dr. Sophie Hsia and Dr. David Hall alleging violations of the Rehabilitation Act and the Americans with Disabilities Act ("ADA"). (Doc. No. 1.) On December 29, 2008, the Court, proceeding pursuant to 28 U.S.C. § 1915(a), dismissed the case sua sponte for failure to state a claim. (Doc. No. 4.) On January 28, 2009, Plaintiff filed her First Amended Complaint ("FAC"). (Doc. No. 7.) On the same day, Plaintiff filed a motion to appoint counsel. (Doc. No. 6.) On February 10, 2009, the Court denied Plaintiff's motion to appoint counsel. (Doc. No. 8.) On June 30, 2009, Defendant University of Phoenix filed its motion to dismiss Plaintiff's FAC for failure to state a claim or, in the alternative, for a more definite statement. (Doc. No. 18.) Plaintiff failed to timely oppose the motion. On August 5, 2009, the Court ordered Plaintiff to file an opposition no later than August 19, 2009, and submitted the motion on the papers pursuant to Local Civil Rule 7.1(d)(1). (Doc. No. 19.) On August 25, 2009, Plaintiff filed a motion for extension of time to file an opposition to Defendant's motion to dismiss. (Doc. No. 21.) The Court granted Plaintiff's motion and ordered Plaintiff's opposition to be filed no later than September 8, 2009. (Doc. No. 22.) On September 21, 2009, Plaintiff filed her response in opposition. (Doc. No. 23.) In her opposition, Plaintiff asks the Court to reconsider Plaintiff's prior request for counsel. (Id. at 15.)
I. Motion to Dismiss - Legal Standard
A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). A complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 8(a)(2) to evade dismissal under a Rule 12(b)(6) motion. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). Rule 8(a)(2) requires that a pleading stating a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The function of this pleading requirement is to "'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. A complaint does not "suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting id. at 557). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235--36 (3d ed. 2004)). "All allegations of material fact are taken as true and construed in the light most favorable to plaintiff. However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996); see also Twombly, 550 U.S. at 555.
"Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990). The court may, however, consider the contents of documents specifically referred to and incorporated into the complaint. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.1994). An exhibit attached to the pleading is part of the leading for all purposes, and may be considered on a motion to dismiss. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987).
II. Plaintiff's General Allegations
Plaintiff's complaint is a four-page document in which Plaintiff alleges that Defendants' "gross fiduciary negligence," specifically, failure to comply with Title III of the ADA, prevented Plaintiff's timely completion of her Doctorate's degree in Healthcare Administration. (Doc. No. 7 at 2.) Plaintiff alleges that Defendant repeatedly interrupted Plaintiff's degree progression by failing to follow appropriate grievance procedures to review and correct "wrongfully recorded non-passing grades." (Id.) Plaintiff alleges that Defendant required her to "repeat courses with non-passing grades and to pay additional course fees before degree progression could be continued." (Id.) Additionally, Plaintiff alleges that Defendant failed to maintain a technically efficient online system, which made it difficult to access online classrooms, and caused delays and loss of posted information. Plaintiff alleges that she attached as Exhibit A to the FAC a complete list of "grievance events" that took place from 2005 to 2008, however, no such list is attached.*fn1
Plaintiff alleges that she is 57 years old, and is no longer able to work as a clinical registered nurse. Plaintiff alleges that she has completed one half of the program, but has lost two and a half years of potential employment income as a healthcare administrator. Plaintiff alleges that she has a health disability, and receives disability income. Plaintiff has attached a letter from the Department of Veterans Affairs which states that Plaintiff is 100 percent disabled. (Doc. No. 7 at 9.) Plaintiff alleges that Defendant failed to provide her with ADA classroom accommodation for 13 of the 15 courses Plaintiff took, as well as for two residency workshops. (Id. at 3.)
Plaintiff seeks damages for pain and suffering and psychological abuse as a result of Defendant's violation of Title III of the ADA. Plaintiff also seeks the removal of all non-passing grades she received as a result of the ADA violations, and grade adjustments in "all other courses" that were conducted with ADA violations. Plaintiff seeks 33 million dollars in punitive damages. Plaintiff also requests a court order "to protect Plaintiff from the retaliation of Defendant." Finally, Plaintiff asks the Court to order a federal investigation of the Defendant's operations to "eliminate the continued violation of academic abuses of student rights."
III. ADA and Rehabilitation Act Claims
After a careful reading of the FAC, the Court concludes that Plaintiff failed to state a claim under the ADA or under the Rehabilitation Act. Courts apply the same standards to discrimination claims under the Rehabilitation Act as they do to discrimination claims under the ADA. See Walton v. United States Marshals Serv., 492 F.3d 998, 1003 n.1 (9th Cir.2007). The Ninth Circuit stated that "[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act. See 42 U.S.C. § 12133 ('The remedies, procedures, and rights set forth in [the Rehabilitation Act] shall be the remedies, procedures, and rights [applicable to ADA claims].') ..." Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir.1999). In order to state a claim under the ADA and the Rehabilitation Act, a plaintiff must allege that: (1) he or she is an individual with a disability under the Act; (2) he or she is "otherwise qualified" to participate in or receive the benefit of the entity's services, programs, or activities, i.e., he or she meets the essential eligibility requirements of the entity, with or without reasonable accommodation; (3) he or she was either excluded from participation in or denied the benefits of the entity's ...