The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge
This matter is before the court on defendants Yolo County (the "County"), Yolo County Board of Supervisors ("Board of Supervisors"), Yolo County Public Authority for In-Home Supportive Services ("IHHS"), Yolo County District Attorney's Office ("District Attorney's Office"), David Henderson as District Attorney of Yolo County, Steve Basha as County Counsel for Yolo County, Dan Cederborg, Helen Thomson, and Richard Gilbert's (collectively "defendants") motion to dismiss plaintiff Sergio Alunan's ("plaintiff" or "Alunan") complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants argue that plaintiff fails to state a plausible claim for relief under the Americans with Disabilities Act ("ADA"), and that plaintiff's various § 1983 claims are barred by the statute of limitations. Plaintiff opposes the motion with respect to his ADA claims*fn1 and makes a cross-motion for leave to amend his first amended complaint to assert state law claims under California's Fair Employment and Housing Act ("FEHA"), based on the same essential allegations supporting his ADA claims.*fn2
In response to the motion, plaintiff proffers additional facts via a declaration and alleges further facts in support of his ADA and FEHA claims in his proposed second amended complaint; however, for purposes of a Rule 12(b)(6) motion to dismiss, the court may only consider the factual information in plaintiff's first amended complaint and information that has been judicially noticed.*fn3 Thus, in resolving the motion, the court has not considered plaintiff's declaration or the allegations of the second amended complaint, except with respect to determining whether plaintiff should be given leave to amend.
For the reasons set forth below, defendants' motion to dismiss is GRANTED. However, plaintiff is permitted leave to file a second amended complaint in accordance with this order.
The instant lawsuit arises out of plaintiff's former employment as the Executive Director to IHSS. Plaintiff began working for IHSS in February 2002. (Pl.'s First Am. Compl. ["Compl."], filed June 22, 2010, ¶ 16). In 2002 the County obtained a grant to purchase a van which was modified in order to transport disabled individuals. (Id. ¶ 21). Plaintiff uses a wheelchair because he suffers from Post-Polio Syndrom and Quadraparesis, which does not allow him to have full function of his legs and prevents him from walking. (Id. ¶ 15). Plaintiff made oral requests in December 2002 for reasonable accommodation to the County Human Resources Department to use the van to drive to and from work and to attend meetings outside Yolo County. (Id. ¶¶ 22-24). Plaintiff assumed that his request had been accepted and subsequently began using the van regularly for several years. (Id. ¶ 25).
On January 7, 2003 plaintiff was appointed Executive Director of IHSS and entered into a Memorandum of Agreement with Yolo Public Authority. (Id. ¶ 26). In early 2005 the Board of Supervisors received an anonymous memorandum regarding plaintiff's use of the County van. (Id. ¶ 32). After an investigation, plaintiff was given notice of proposed disciplinary action by the IHSS Board that recommended, among other things, that plaintiff be suspended for 20 days without pay and reimburse the County for the fuel costs from his use of the van. (Id. ¶ 33). In January 2006, the District Attorney's Office charged plaintiff with felony charges for, among other things, misappropriation of public moneys and unauthorized use of a vehicle. (Id. ¶ 39). As a result of the pending criminal charges, plaintiff was placed on administrative leave by the County starting on February 8, 2006. (Id. ¶ 48; Defs.' RJN, filed Aug. 4, 2010, at Ex. E). On March 9, 2007 plaintiff was terminated from his position as Executive Director of IHSS. (Compl. ¶ 42).
Plaintiff alleges that he initially filed a complaint with California's Department of Fair Employment and Housing ("DFEH") on October 29, 2007 at the latest. (Id. ¶ 43). Ultimately, the DFEH prepared plaintiff's complaint, which was signed by plaintiff on February 29, 2008 and stamped "received" by DFEH on March 3, 2008. (Defs.' RJN at Ex. G). On February 11, 2009 plaintiff received a right-to-sue letter from the DFEH. (Compl. ¶ 44). The instant lawsuit was filed on February 10, 2010. Plaintiff alleges defendants violated the ADA, specifically claiming disability discrimination, failure to accommodate disability and retaliation. (Defs.' Mot. Dismiss ["Mot."], filed Aug. 4, 2010, at 2).
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
On a 12(b)(6) motion to dismiss, the factual allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). The court is bound to give plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks Int'l Ass'n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege "'specific facts' beyond those necessary to state his claim and the grounds showing entitlement to relief." Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Nevertheless, the court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 129 S.Ct. at 1949. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; Iqbal, 129 S.Ct. at 1950 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
Ultimately, the court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 570). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible," is the complaint properly dismissed. Id. at 1952. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 1949. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950.
In ruling upon a motion to dismiss, the court may consider only the complaint, any exhibits thereto, and matters which may be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. Of Mary Hospital, 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. V. ...