United States District Court, E.D. California
MEMORANDUM AND ORDER RE: MOTION TO DISMISS FIRST AMENDED COMPLAINT
WILLIAM B. SHUBB, District Judge.
This matter is again before the court after plaintiff Jeanne Kitchen filed her First Amended Complaint ("FAC"). (Docket No. 19.) Defendants Lodi Unified School District ("LUSD"), Catherine Nichols-Washer, and Neil Young have moved to dismiss plaintiff's FAC pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 41, as well as to strike portions of it pursuant to Rule 12(f). (Docket No. 28). The factual and procedural history is set forth in this court's November 5, 2014 Memorandum and Order, (Docket No. 17), dismissing plaintiff's original Complaint with leave to amend.
Plaintiff's FAC adds Nichols-Washer and Young as defendants acting in their official capacity. (FAC ¶¶ 9-10.) The FAC asserts five claims against all defendants: (1) disability-based discrimination in violation of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112, et seq.; (2) disability-based discrimination in violation of the Rehabilitation Act, 29 U.S.C. §§ 794, et seq.; (3) retaliation in violation of Title V of the ADA, 42 U.S.C. § 12203; (4) interference in violation of Title V of the ADA, 42 U.S.C. § 12203; and (5) retaliation in violation of the Rehabilitation Act, 29 U.S.C. §§ 704, et seq. (FAC ¶¶ 29-48.)
Defendants move to dismiss plaintiff's first, third, and fourth claims pursuant to Federal Rule of Civil Procedure 12(b)(1) on the basis of Eleventh Amendment immunity and all of plaintiff's claims pursuant to Rule 12(b)(6) for failure to state a claim on which relief can be granted. Defendants also move to strike Nichchols-Washer and Young from plaintiff's second and fifth claims pursuant to Rule 12(f).
A. Eleventh Amendment Immunity
On a motion to dismiss under Rule 12(b)(1), the plaintiff normally bears the burden of establishing a jurisdictional basis for her action. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). However, the Ninth Circuit has held that "Eleventh Amendment immunity does not implicate a federal court's subject matter jurisdiction in an ordinary sense, " and thus, should be treated as an affirmative defense for which "the public entity... bear[s] the burden of proving the facts that establish its immunity under the Eleventh Amendment." ITSI T.V. Prods., Inc. v. Agric. Ass'ns, 3 F.3d 1289, 1291-92 (9th Cir. 1993) ("Eleventh Amendment immunity, whatever its jurisdictional attributes, should be treated as an affirmative defense."); see also Hill v. Blind Indus. and Serv. of Md., 179 F.3d 754, 760 (9th Cir. 1999) (concluding that Eleventh Amendment immunity is not a true jurisdictional bar because it can be waived or forfeited by the state).
1. Plaintiff's ADA Claims against LUSD
As a preliminary matter, plaintiff's FAC reasserts claims against LUSD under Title I and Title V of the ADA. (FAC ¶¶ 29-32, 37-44.) Defendants move to dismiss these claims pursuant to Rule 41(b) for failure to comply with the court's previous Order, which concluded that the Eleventh Amendment bars these claims as against LUSD. (Nov. 5, 2014 Order at 4-5); Fed.R.Civ.P. 41(b) ("If the plaintiff fails to... comply with these rules or a court order, a defendant may move to dismiss the action or any claim against it."). Plaintiff does not dispute this decision and states that she agrees to dismiss LUSD from her first, third, and fourth claims for relief. (Pl.'s Opp'n at 4 n.1 (Docket No. 31).) Accordingly, the court will grant defendants' motion to dismiss plaintiff's first, third, and fourth claims as against LUSD.
2. Plaintiff's ADA Claims against Nichols-Washer and Young
"State governments can invoke the Eleventh Amendment's guarantee of sovereign immunity against Title I suits seeking money damages, " but this immunity "does not bar Title I suits against state officials for prospective injunctive and declaratory relief." Walsh v. Nev. Dep't of Human Res., 471 F.3d 1033, 1036 (9th Cir. 2006) (citing Bd. Of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 360, 374 n.9 (2001), and Ex parte Young, 209 U.S. 123 (1908)). "In what has become known as part of the Ex parte Young doctrine, ... a suit for prospective injunctive relief provides a narrow, but well-established, exception to Eleventh Amendment immunity." Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir. 1997).
Although the Eleventh Amendment precludes an award of monetary damages based on prior misconduct, the court may "enjoin state officials to conform their conduct to requirements of federal law, notwithstanding a direct and substantial impact on the state treasury." Milliken v. Bradley, 433 U.S. 267, 289 (1977). Thus, "[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward inquiry into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'" Verizon Maryland, Inc. v. Pub. Serv. Comm'n of Maryland, 535 U.S. 635, 645 (2002).
Plaintiff does not dispute that an award of retroactive benefits or reimbursement of past premium payments is outside the exception of Ex parte Young. Plaintiff argues that her ADA claims allege a current and ongoing violation of federal law based on defendants "excluding Plaintiff from participation in the Early Retirement Health Benefits program." (See FAC ¶¶ 3, 31, 47.) Her prayer for relief seeks "all injunctive relief necessary to bring Defendants into compliance with the ADA... including an order requiring the Defendants to pay future premiums." (Id. at 8.)
Defendants characterize plaintiff's claim for relief as solely retrospective because the bureaucratic decision to exclude her from the Early Retirement Health Benefits program was made in the past. (Defs.' Reply at 4-5 (Docket No. 32).) An order requiring defendants to pay ...