The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT
The motion of Defendant Sharp Memorial Hospital ("Sharp"), although styled as a motion to dismiss the Third Amended Complaint ("TAC") for failure to state claim, (Docket No. 54), is treated as a motion for summary judgment pursuant to the court's October 20, 2009 order converting the motions to dismiss to ones for summary judgment pursuant to Fed.R.Civ.P. 12(d). Defendants Department of Industrial Relations ("DIR") and the Department of Rehabilitation ("DOR") move to dismiss the complaint or alternatively for summary judgment. (Docket Nos. 56, 67) Plaintiff, proceeding in propria persona, opposes all motions. Pursuant to Local Rule 7.1(d)(1), the matters presented are appropriate for decision without oral argument. For the reasons set forth below, the court grants Sharp's converted motion for summary judgment and grants DIR and DOR's motion for summary judgment.
On June 16, 2009, Plaintiff Luisa Wildey, proceeding pro se, filed the operative TAC broadly alleging claims against Defendants for disability discrimination in violation of the Rehabilitation Act of 1973 and the Americans with Disabilities Act ("ADA"), violation of the Civil Rights Act, 42 U.S.C. §1983, and a claim for constructive fraud. Defendants are the Rehabilitation Appeals Board, Health and Human Services Agency, Department of Rehabilitation, Client Assistance Program, the Dayle McIntosh Center for Disabled, Access for Independence, Workers Compensation Appeals Board, Bureau of Rehabilitation, and Sharp Memorial Hospital. In addition to the defendants identified in the caption, Plaintiff also purports to identify about fifteen individual defendants in the body of the complaint but has failed to identify those individuals in the caption as required by Fed.R.Civ.P. 10(a).
The State of California, on behalf of all named government defendants, moves to dismiss Plaintiff's TAC pursuant to Federal Rule of Civil Procedure Rule 8(a)(2) for failure to set forth a short and plain statement of the claim and for summary judgment pursuant to Federal Rule of Civil Procedure 56. Defendant State of California also moves to dismiss the constructive fraud and discrimination claims against the DOR and DIR as barred by judicial immunity, discretionary immunity, and failure to comply with the Tort Claims Act.
Wildey is a qualified disabled individual. In 1992, Wildey suffered a job related spinal cord injury leading to debilitating pain and other related medical problems. (TAC Exh. 1, Social Security Disability Decision). Plaintiff receives disability benefits pursuant to 9 U.S.C. 7051(c).
On February 4, 2004, Wildey applied for vocational rehabilitation services with the DOR. (TAC Exh. 5, Rehabilitation Appeals Board Decision). Wildey indicated she suffered from several medical problems, including two brain tumors, a seizure disorder, and insulin dependant diabetes. At the time, the DOR asked Wildey to attend a medical evaluation to assess her ability to work. (TAC at p.23). The DOR referred Wildey to Sharp's Work Re-Entry Program for a three-day vocational assessment. (TAC at p.23, ¶54.) Because Wildey felt that a consecutive three day assessment would be too burdensome on account of her severe neurological pain disorders, Sharp agreed to modify the testing schedule to meet her disability needs. The three day testing schedule was changed to every other day, rather then three consecutive days. (TAC Exhibit 5 at p.3). Wildey attended the first two days of the evaluation, but was unable to attend the final day on the advice of her doctor. (TAC at p. 25, ¶55.) Sharp prepared an evaluation ("Sharp Report") noting Wildey's inability to complete the assessment because of complaints of pain and indicating her unsuitability for any vocation other then specialized home-based work.
On February 15, 2005, Wildey met with the DOR and proposed starting an alpaca farming business. (TAC Exh. 5 at p. 3). DOR informed Wildey of its requirement that she have at least one-year of paid work experience in the field before she could start such a business. Id. Rehabilitation Counselor Johnson informed Wildey that she did not qualify for assistance from DOR because she did not have formal training or education and did not have the one year experience as required by California Code of Regulations §7136.5(b). Wildey questioned the validity of this policy and pursued her claim further with the DOR. Id.
On February 15, 2005 Plaintiff met with Rehabilitation Supervisor Sally Garrett. Wildey continued to argue in favor of the alpaca breeding business proposal, arguing that she would apply her office work experience and hire employees to raise the alpaca. (Garret Decl. ¶8). In April, 2005 Wildey submitted her alpaca business plan. On April 22, 2005 Garret again informed Wildey that the DOR would not recommend the alpaca business plan for approval because she lacked the required work experience and education as required by the regulations. (Garrett Decl. ¶10). Wildey continued to dispute that education and experience was a prerequisite for DOR's assistance in starting an alpaca breeding business.
On May 6, 2005, the DOR, acting though Supervisor Garrett, authorized funding for a small business plan review, and referred Wildey to a business consultant, Oduro Takyi. (Id. at p. 4). A Short time later, both Wildey and Takyi contacted Garrett to say that they could not work with each other. (Garrett Decl. ¶12). The DOR informed Wildey that it would not be able to provide her with the funds to purchase the alpacas, but that it could help her fund other such related activities as marketing, advertising, and obtaining a business license. The DOR maintains that Wildey was uncooperative with the business consultant assigned to assist her, failed to complete the requisite financial forms, and otherwise failed to comply with the DOR's requirements. (Id. at p. 5). When DOR offered to send Wildey's business plan to another consultant for review, Wildey objected. She insisted that the consultant must have agricultural experience and at least three references. (Garrett Decl. ¶13, 14).
Garrett located two consultants for Wildey to talk to, one of whom supplied two references and had experience reviewing agriculture and farming plans. On September 7, 2005 Garrett sent a letter to Wildey providing her with the contact information for the consultants. On September 20, 2005 Wildey wrote Garret and informed her that the business consultant did not have the proper qualifications and that the consultants "mutilated" her business plan. (Garrett Decl. ¶15, 16). In this letter, Wildey said that she had decided to pursue the purchase of an Alpha Graphics copy business franchise and would require a grant of about $500,000 to purchase the franchise and for start up costs. (Garrett Decl. ¶16).
On October 4, 2005 Garrett informed Wildey that the DOR could not provide her with the funds to purchase an Alpha Graphics franchise because, pursuant to 9 CCR §7137 and 9 CCR §7149, the purchase of a franchise or construction of a new business was outside the scope of rehabilitation services that the DOR provides. (Garrett Decl. ¶17). Wildey responded to this letter requesting "small business forms" from the department, including forms related to established small businesses. (Garrett Decl. ¶18). As these forms did not apply to Wildey's situation because she did not already have an established small business, Garrett believed that Wildey did not understand the instructions that were given to her. Id.
On November 14, 2005 Garrett requested that Wildey come in for a face-to-face meeting with her and her supervisor, Charles Compton, to discuss her case. Garrett sent this letter because she felt that Wildey did not seem to understand the DOR's position and she believed that the issues could be better addressed in person. Garrett also wanted her supervisor present because of Wildey's complaints concerning the handling of her case. (Garrett Decl. 19). At the November 22, 2005 meeting, Wildey claimed that DOR had lied to her and was seeking a way not to fund her self-employment plan. (Compton Decl. ¶4). Supervisor Compton explained to Wildey that they no longer had a current plan to evaluate because Wildey had demanded the return of her plan and did not allow DOR to keep a copy of the plan. Id. He again explained that Wildey had to submit a completed business plan and have it reviewed by a consultant before the DOR could make a final decision. Wildey then complained about the referred business consultants, noting that the first consultant was impossible to work with and that the second was a "minority" and believed that he would hire only African Americans. (Compton Decl. ¶5: Garrett Decl. ¶22). Compton informed Wildey that her case would be closed if she refused to cooperate with the DOR and did not submit a business plan for review. Id. Wildey then pulled out the alpaca plan and the franchise plan and asked Compton to choose which plan the DOR would approve. Compton then explained that DOR would not pick and choose between plans but that she would have to decide which one to submit. Wildey then submitted the alpaca breeding plan. (Compton Decl. ¶6; Garrett Decl. ¶23).
After the November 22, 2005 meeting, Compton became concerned about Wildey's ability to process verbal information because she had difficulty comprehending the information provided to her in letters and meetings. Wildey repeatedly brought up the same issues and questions despite the fact that DOR had responded to her concerns. (Compton Decl. ¶7-9). Compton believed that her communication and comprehension difficulties would significantly hinder her in running a business and believed that Wildey should undergo further testing regarding her neurological impairments in order to evaluate her qualifications for self-employment. (Compton Decl. 9). Garrett agreed with this decision. (Garrett Decl. ¶24).
Compton also reviewed the alpaca business plan and noted that the plan was incomplete. For instance, Wildey had not completed the marketing plan section, indicating that it was "not applicable." He also identified several items where Wildey failed to identify the cost of the items and she did not complete the forecast of annual income and expense for the proposed business. (Compton Decl. 10). Wildey was then informed that additional information was required to assess the business plan.
On February 1, 2006 Compton, Garrett, Wildey, and Wildey's daughter met to discuss the alpaca business plan. Compton explained that the business plan contained obvious mistakes and did not accurately indicate forecasted income and expenses. When Compton explained the significance of these problems, Wildey had difficulty understanding these concepts. Wildey requested two months to correct the business plan. (Compton Decl. ¶12; Garrett Decl. ¶25).
In April 2006, Garrett contacted Wildey to remind her that two months had passed and that she had not submitted the additional information requested to assess her business plan. Garrett also informed Wildey that based on the lack of progress, her apparent difficulty completing the business plan, and the failure to complete the vocational evaluation, she and Compton believed that further testing would be appropriate to determine Wildey's current aptitudes and interests. (Garrett Decl. ¶27). On May 2, 2006 Garrett sent Wildey a letter indicating that if she did not attend further testing that her case would be closed as they had no further options for proceeding with the case. (Garrett Decl. ¶27).
On May 5, 2006 Wildey sent a ten page letter to Compton requesting an administrative review of her case. When supervisor Compton was unable to determine the nature of Wildey's request for administrative review, he invited Wildey to set up a meeting to discuss her case. (Compton Decl. ¶14). On June 1, 2006 Wildey and her husband met with Garrett and Compton. Compton expressed his concern that Wildey was not willing to focus on pursuing a realistic vocational goal and asked her to attend testing with a Vocational Psychologist in order to assess her current abilities, interests and aptitudes. (Compton Decl. ¶15). The request was made pursuant to 9 CCR §7029.9 which states that applicants have the responsibility to participate and cooperate to provide information needed to determine eligibility for services, level of significance of disability, and whether the individual's chosen employment outcome is consistent with the individuals strengths, priorities, concerns, abilities, capabilities and interests. (Compton Decl. ¶15). Wildey became angry because she believed that Compton and Garrett were suggesting that she suffered from mental impairments. (Compton Decl. ¶16; Garrett Decl. ¶28). Wildey was also informed that if she did not agree to complete vocational testing, her file would be closed because Wildey had been unable or unwilling to submit a completed business plan for review after two years. Id.
On June 5, 2006 Compton and Garrett jointly decided to close Wildey's file because she refused to participate with the requested psychological testing, did not submit a completed buisness plan, and refused to participate with the agency in developing a viable self employment plan. (Compton Decl. ¶17: Barrett Decl. ¶29).
On or about June 28, 2006, Wildey requested a "Fair Hearing" before the Rehabilitation Appeals Board ("Appeals Board"). (TAC Exh. 5 at p.6). Wildey claimed, among other things, that the DOR failed to assist her which resulted in an "undue delay" in services, that her case was closed under duress, that she had fully cooperated with the DOR, and that the DOR ...