Karam v. University of Arizona ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Rose Ann Karam, No. CV-18-00455-TUC-RCC 10 Plaintiff, ORDER 11 v. 12 University of Arizona, et al., 13 Defendants. 14 15 Pending before the Court are several motions to dismiss by (1) Defendants 16 Southern Arizona Veterans Administration Health Care System (“VA”) and United States 17 Air Force, Davis Monthan Air Force Base (“DMAFB”) (collectively “Federal 18 Defendants”) (Doc. 121); (2) Defendant Banner University Medical Center (“Banner”) 19 (Doc. 105); Defendant Genoa Healthcare, LLC (“Genoa”) (Doc. 117); and Defendant 20 Arizona Board of Regents (“ABOR”) (Doc. 99). Also pending is ABOR’s Motion to 21 Strike Plaintiff’s Objection to ABOR’s Reply. (Doc. 115.) The Court will address each 22 motion in turn. 23 1. STANDARD OF REVIEW 24 A motion under 12(b)(6) must contain a “short and plain statement of the claim 25 showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8 does 26 not require detailed factual allegations, “it demands more than an unadorned, the 27 defendant unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 28 (2009). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a 1 claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly, 2 550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content 3 that allows the court to draw the reasonable inference that the defendant is liable for the 4 misconduct alleged.” Id. But the complaint must contain more than “a statement of facts 5 that merely creates a suspicion [of] a legally cognizable right of action.” Twombly, 550 6 U.S. at 555. “Determining whether a complaint states a plausible claim for relief [is] . . . a 7 context-specific task that requires the reviewing court to draw on its judicial experience 8 and common sense.” Iqbal, 556 U.S. at 679. So, although a plaintiff’s specific factual 9 allegations may be consistent with a federal cause of action, a court must assess whether 10 there are other “more likely explanations” for a defendant’s conduct. Id. at 681. 11 Complaints drafted by pro se litigants are held to less stringent standards than 12 complaints formally filed by lawyers. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 13 But, to avoid dismissal, even a pro se plaintiff must provide a legal theory that is 14 cognizable and allege sufficient facts to support a cognizable legal theory. See Navarro v. 15 Block, 250 F.3d 729, 732 (9th Cir. 2001). 16 2. FEDERAL DEFENDANTS’ MOTION TO DISMISS 17 Plaintiff appears to raise claims of intentional infliction of emotional distress 18 (“IIED”), defamation, civil conspiracy, discrimination, retaliation, and hostile 19 environment against Federal Defendants. Federal Defendants ask the Court to dismiss 20 these claims for lack of subject matter jurisdiction and failure to state a claim. 21 a. Subject Matter Jurisdiction and Factual v. Facial Attacks 22 There are two types of challenges to subject matter jurisdiction: factual and facial. 23 A facial attack challenges the sufficiency of the factual allegations in the complaint, 24 arguing that the facts as pled do not give rise to subject matter jurisdiction in federal 25 court. Courthouse News Service v. Planet, 750 F.3d 776, 780 (9th Cir. 2014). In a facial 26 attack the court may not look at evidence outside the complaint and must take the non- 27 moving parties’ allegations as true. Id. 28 A factual attack challenges “the truth of the allegations contained in a complaint 1 that, by themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone 2 v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In a factual attack, the court may look at 3 evidence outside of the complaint to decide the motion to dismiss without converting it 4 into a motion for summary judgment. Id. Moreover, in this form of attack, the reviewing 5 court need not take the Plaintiff’s allegations as true. Id. If the party challenging 6 jurisdiction presents evidence that demonstrates the court’s lack of jurisdiction, then the 7 non-movant must produce evidence that subject matter jurisdiction does, in fact, exist. Id. 8 Federal Defendants raise a facial attack because they question the sufficiency of 9 the factual allegations–they claim that the facts are too vague to raise subject matter 10 jurisdiction. In addition, they argue that Plaintiff’s allegations must be brought under 11 either the Federal Tort Claims Act (“FTCA”) or the Rehabilitation Act (“RA”), not under 12 the statutes addressing discrimination. They argue that the statutes Plaintiff believes are 13 applicable–42 U.S.C. § 2000d and 29 U.S.C. § 794–do not provide an independent cause 14 of action, but merely describe prohibited conduct. Under the FTCA, they argue, Plaintiff 15 must first exhaust her administrative remedies before the court can exercise jurisdiction 16 over her claims. Since Plaintiff has not shown exhaustion, her tort claims of IIED and 17 defamation are precluded and are now time barred. Moreover, Federal Defendants assert 18 that under the FTCA, Plaintiff’s claims are precluded because Federal Defendants enjoy 19 sovereign immunity. Finally, Federal Defendants assert that the civil conspiracy claim 20 under the RA fails because it seeks money damages and the government has not waived 21 sovereign immunity. See Lane v. Pena, 518 U.S. 187, 197 (1996). 22 The Court will treat the matter as a facial attack and views the facts in the light 23 most favorable to Plaintiff. 24 Plaintiff argues that her claims are focused on civil conspiracy and retaliation 25 under Section 504 of the RA and are not precluded because the RA does not require 26 exhaustion of remedies. Furthermore, she asserts that the civil conspiracy claim is 27 inextricably intertwined with the IIED and defamation claims, which should not be 28 evaluated as individual torts under the FTCA. Rather, the tort claims should be 1 considered part and parcel of the federal discrimination and retaliation claims. She cites 2 no case law requiring such consolidation. The Court finds Plaintiff must plead facts 3 supporting the elements of each claim, but for the reasons set forth below, Plaintiff’s 4 individual claims fail. 5 a. IIED and Defamation 6 The FTCA “is the exclusive remedy for tortious conduct by the United States.” 7 Fed. Deposit Ins. Corp. v. Craft, 157 F.3d 697, 706 (9th Cir. 1998); 28 U.S.C. § 2679. 8 Under the FTCA, liability may be imposed “under circumstances where the United 9 States, if a private person, would be liable to the claimant in accordance with the law of 10 the place where the act or omission occurred.” 28 U.S.C. § 1346(b); see also United 11 States. v. Olsen, 546 U.S. 43, 44 (2005). However, it is a claimant’s burden to show that 12 the United State has waived its immunity against the claims presented. See Prescott. v. 13 United States, 973 F.2d 696, 701 (9th Cir. 1992). Furthermore, a district court lacks 14 jurisdiction to consider an FTCA claim unless the claimant has first exhausted the 15 administrative remedies available to him or her. 28 U.S.C. § 2675(a); D.L. ex rel. Junio v. 16 Vassilev, 858 F.3d 1242, 1244 (9th Cir. 2017); Brady v. United States, 211 F.3d 499, 502 17 (9th Cir. 2000). 18 Both parties agree that Federal Defendants are governmental entities. As such, any 19 tort claims against them must be brought under the FTCA. See 28 U.S.C. § 2679(b)(1). 20 This includes Plaintiff’s IIED and defamation claims, regardless of whether the 21 underlying facts for the torts also support Plaintiff’s alleged discrimination, retaliation, or 22 hostile environment claims. 23 First, Plaintiff has not met her burden of showing that the government has waived 24 its sovereign immunity as to these claims. Second, Plaintiff does not claim she exhausted 25 her administrative remedies, but merely states that exhaustion is not required. Since the 26 tort allegations must be raised under the FTCA they require exhaustion. Because she has 27 not exhausted her administrative remedies and the time to exhaust these claims has now 28 expired, these claims shall be dismissed with prejudice. 1 b. Civil Conspiracy 2 Conspiracy in Arizona “requires that two or more individuals agree and thereupon 3 accomplish ‘an underlying tort which the alleged conspirators agree to commit.’” Wells 4 Fargo Bank v. Ariz. Laborers, Teamsters & Cement Masons Local No. 395 Pension Tr. 5 Fund, 38 P.3d 12, 37 (Ariz. 2002) (quoting Baker v. Stewart Title & Trust of Phoenix, 5 6 P.3d 249, 256 (Ariz. Ct. App. 2000)). Likewise, civil conspiracy under 42 U.S.C. § 7 1985(c) requires “the existence of a conspiracy to deprive the plaintiff of the equal 8 protection of the laws; an act in furtherance of the conspiracy; and a resulting injury.” 9 Scott v. Ross¸ 140 F.3d 1275, 1284 (9th Cir. 1998); United Bhd. of Carpenters and 10 Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983). Plaintiff has raised neither a state 11 nor a federal claim of civil conspiracy. 12 Although difficult to follow, Plaintiff’s allegations against Federal Defendants are 13 as follows. Plaintiff is a pharmacy student at the University of Arizona (“U of A”). She 14 has “a documented learning disability including a processing disorder which 15 delays/prolongs writing” as well as Attention Deficit Hyperactivity Disorder (“ADHD”). 16 (Doc. 74 at 2.) Based on these disabilities, she was permitted an accommodation that 17 allows her (1) to take tests “with minimal distraction or headphones,” and (2) to receive 18 time and a half for testing. Id. 19 Plaintiff participated in student rotations at the VA and DMAFB. At the VA, 20 Plaintiff claims she was given extra assignments, had her schedule and assignments 21 changed without warning, and had her work misrepresented. Staff made “snide remarks, 22 avoid[ed] eye contact,” and “ignor[ed] her.” She says Dr. Tara Evenko1 did not prepare 23 Plaintiff adequately for her VA rotation and criticized Plaintiff no matter what she did. In 24 addition, she was forced to be the first presenter in a class of students when she preferred 25 to present last because she had a fear of public speaking. She was provided confusing and 26 contradictory instructions. Finally, she claims the environment at the VA was “subtly 27 hostile if not abusive,” but does not explain how. (Doc. 74-1 at 3.) Ultimately, she 28 1 It is unclear whether Dr. Evenko is a VA employee or a U of A employee. She is simply listed as the preceptor during Plaintiff’s VA rotation. 1 received a C in this rotation. 2 During her rotation at DMAFB, Plaintiff was supposed to engage in “cough and 3 cold visits” but after the first two weeks Louis Feldman2 stopped asking her to 4 participate. Again, individuals ignored and avoided Plaintiff. Employees or teachers at 5 DMAFB did not adequately communicate with Plaintiff about her rotations and 6 assignments and were irritated with her. She believes her final evaluation was altered 7 when DMAFB thought she might pursue litigation but provides no details as to how it 8 was altered or why she believed an alteration was motivated by her possible litigation. 9 She does not allege that her grades suffered or posit any adverse action. 10 These allegations do not support a claim a civil conspiracy. There are no facts that 11 could lead a reasonable jury to conclude that Federal Defendants worked together with 12 others to discriminate against her or to commit a tort against her. Although pro se 13 pleadings are liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), 14 conclusory and vague allegations will not support a cause of action, Ivey v. Bd. of Regents 15 of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Conspiracy requires an 16 agreement between two or more people. It is impossible to determine with whom Federal 17 Defendants conspired, what they conspired to do, or how Plaintiff was injured. In 18 addition, there is no indication that Federal Defendants knew of her disability. Without 19 any factual support, the Court cannot infer that Federal Defendants conspired with any 20 other defendant to coordinate a concerted effort to defame, inflict emotional distress, 21 discriminate, or retaliate. The Court will dismiss the civil conspiracy claim against 22 Federal Defendants. 23 c. Discrimination, Retaliation, and Hostile Environment 24 As the Court originally informed Plaintiff in the initial screening order: 25 Discrimination under the Rehabilitation Act and Title II of the ADA 26 requires reasonable accommodations for people with disabilities. See 34 C.F.R. §104.44(a); 28 C.F.R. §35.130(b)(7). A prima facie case under 27 28 2 Again, the Court is unsure who Louis Feldman is; whether a DMAFB employee, a U of A instructor, or a fellow student. 1 either Title II of the ADA or the Rehabilitation Act must show that (1) the claimant is disabled; (2) she is otherwise qualified, even absent the 2 accommodation; (3) she was excluded from the services desired because of 3 her disability; and (4) that the program in question “receives federal financial assistance (for the Rehabilitation Act claim), or is a public entity 4 (for the ADA claim)[.]” Zukle v. Regents of Univ. of Calif., 166 F.3d 1041, 5 1045 (9th Cir. 1999); 29 U.S.C. § 794(a); 34 C.F.R. §§ 104.3(l)(3), 104.4(a). 6 In addition to requiring pleading of the aforementioned elements, 7 monetary relief in a Title II ADA or Rehabilitation Act claim may only be rewarded if the plaintiff can show deliberate indifference–meaning a 8 defendant was aware of specific accommodations that were requested 9 wherein a denial of that request was likely to result in a denial of a federally protected right, and the defendant failed to act. Duvall v. Cty. of Kitsap, 260 10 F.3d 1124, 1138 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 11 2001). 12 (Doc. 12 at 8) (citations omitted). Moreover, while typically retaliation is raised in 13 employment discrimination claims “rather than discrimination in public services under 14 Title II, the ADA’s retaliation provision applies to both titles.” T.B. ex rel. Brenneise v. 15 San Diego Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015). To state a claim of 16 retaliation, a claimant must plead facts demonstrating “(a) that he or she was engaged in 17 protected activity, (b) that he or she suffered an adverse action, and (c) that there was a 18 causal link between the two.” Id. 19 Insofar as Plaintiff is attempting to raise claims of discrimination and retaliation, 20 she has not explained how or why she believes that Federal Defendants inattention to her 21 needs as a student was a result of discrimination based on her disability. There are no 22 claims that Federal Defendants were ever made aware of her disability. Nor has she 23 demonstrated how any alleged discrimination resulted in injury. Being unprepared, 24 spoken to harshly, ignored, forced to present first, and losing sleep (during a medical 25 rotation) do not constitute an injury. There is also no connection made between the 26 accommodations she claims she was guaranteed (additional time and limited distractions) 27 and her treatment during rotations. 28 Furthermore, eye-rolling and avoidance may be hurtful to Plaintiff’s feelings, but 1 do not create a hostile learning environment. See, e.g., Kortan v. Calif. Youth Auth., 217 2 F.3d 1104 (9th Cir. 2000) (plaintiff who alleged supervisor mailed postcards to her home, 3 stated females are “castrating bitches,” and called the plaintiff “Medea,” did not raise a 4 hostile work environment claim); Manatt v. Bank of Am., 339 F.3d 792, 798 (9th Cir. 5 2003) (plaintiff who alleged coworkers made racist remarks, called him “China man,” 6 and “pulled their eyes back with their fingers in an attempt to imitate or mock the 7 appearance of Asians” did not create a hostile work environment); but see Fuller v. Idaho 8 Dep’t of Corr., 865 F.3d 1154, 1163 (9th Cir. 2017) (employer who sided with plaintiff’s 9 alleged rapist raised sufficient hostility to withstand summary judgment). 10 d. Conclusion 11 The Court has no jurisdiction over Plaintiff’s claims of IIED and defamation 12 because Plaintiff failed to exhaust her administrative remedies. In addition, Plaintiff has 13 failed to raise viable claims of civil conspiracy, discrimination, retaliation, or hostile 14 environment, despite the Court’s initial screening and two opportunities to amend. 15 Repeated failure to cure deficiencies is one factor to be considered when deciding 16 whether justice requires granting leave to amend. Moore v. Kayport Package Exp., Inc., 17 885 F.2d 531, 538 (9th Cir. 1989). In fact, the Court’s discretion to deny leave to amend 18 is particularly broad where a plaintiff has previously been permitted to amend her 19 complaint. Sisseton-Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 20 1996). Plaintiff has not provided the Court with a reason to believe that amendment 21 would cure the deficiencies. See Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir. 1995) 22 (“[A] district court does not abuse its discretion in denying a motion to amend where the 23 movant presents no new facts but only new theories and provides no satisfactory 24 explanation for his failure to fully develop his contentions originally.”). Therefore, the 25 Court will dismiss all claims against Federal Defendants with prejudice. 26 /// 27 /// 28 /// 1 3. BANNER’S MOTION TO DISMISS 2 Plaintiff raises similar claims of IIED, defamation, civil conspiracy, 3 discrimination, retaliation, and hostile environment against Banner for conduct that 4 occurred during an adult psychiatric rotation at the hospital. From the Second Amended 5 Complaint, Plaintiff alleges that five days into a rotation at Banner, Plaintiff failed the 6 class after staff accused her of being late repeatedly, falling asleep during a lecture, and 7 had behaving unprofessionally in response to feedback. 8 The alleged unprofessional behavior occurred when U of A preceptor, Nina 9 Vadiei, questioned Plaintiff on the topic of antisocial personality disorder. When Plaintiff 10 did not provide the correct answer, Vadiei became irritated and told Plaintiff she was not 11 prepared. After the discussion escalated, Vadiei informed Plaintiff they should take a 12 break, cool off, and reconvene after lunch. When Plaintiff returned, a Banner employee 13 named Jane provided a DSM V manual to Plaintiff. Then Vadiei texted Plaintiff telling 14 her to go home and they would continue their discussion later. Plaintiff did not get the 15 opportunity, however, because Vadiei immediately reported the incident and Plaintiff was 16 removed from the rotation. 17 Plaintiff was subsequently given a summary of the encounter with Vadiei, which 18 stated that Plaintiff was defensive, argumentative, and rolled her eyes. The summary 19 explained that Plaintiff had been removed from the rotation because she was 20 demonstrating “unprofessional behavior (the repeated tardiness, falling asleep in small 21 meeting and the heated verbal discussion).” (Doc. 74-1 at 10.) 22 Plaintiff admits that in that first week, she believed someone was breaking into her 23 home and therefore her “sleep . . . and punctuality had been impaired.” (Doc. 74-1 at 11.) 24 She also concedes she nodded off in a lecture. In addition, of the four documented 25 instances of tardiness, Plaintiff believes a Banner employee erroneously recorded her 26 arrival time on November 1, 2018 and claims that, at worst, she was late two days. 27 So, only two actions are attributed directly to Banner: providing a DSM V manual 28 to Plaintiff and falsely recording one instance of tardiness. Providing Plaintiff with the 1 DSM V manual was not discriminatory nor does the action support any of Plaintiff’s 2 claims. Therefore, the Court will not address it. Furthermore, a reasonable juror cannot 3 conclude that one reported instance of tardiness by an unknown Banner employee could 4 be connected to a conspiracy, be intended to cause emotional distress, to defame, to 5 discriminate, or to retaliate, especially given her concession about punctuality. 6 However, Plaintiff’s response to Banner’s Motion to Dismiss attempts to attribute 7 the actions of Vadiei to Banner as well. Assuming without deciding that Vadiei’s actions 8 can be attributed to Banner, the Court finds that Plaintiff’s claims against Banner still fail. 9 a. IIED 10 “Under Arizona law, a plaintiff alleging the intentional infliction of emotional 11 distress must plead and prove that: (1) the defendant’s actions were extreme and 12 outrageous, (2) the defendant either intended to cause emotional distress or acted in 13 reckless disregard of that result, and (3) severe emotional distress in fact occurred.” 14 Gasho v. United States, 39 F.3d 1432, 1171 (9th Cir. 1994). For conduct to be deemed 15 extreme and outrageous, it must “go beyond all possible bounds of decency, and [] be 16 regarded as atrocious, and utterly intolerable in a civilized community.” Ford v. Revlon, 17 Inc., 734 P.2d 580, 585 (Ariz. 1987). 18 The Court cannot find that Banner or Vadiei’s actions were extreme and 19 outrageous, were intended to create emotional distress, or were in reckless disregard of 20 possible distress. Plaintiff merely states that she believed Vadiei “tried to bait the Plaintiff 21 into an argument.” (Doc. 74-1.) There is nothing in the alleged conversation with Vaidei 22 that strikes the Court as outrageous. If district courts found that every incidence of 23 irritation, disagreement, or heated argument constituted IIED, it would result in the 24 elimination of public discourse. This the Court will not abide. Nor can the Court find that 25 incorrectly recording Plaintiff as late is atrocious behavior. Plaintiff has not pleaded facts 26 supporting her IIED claim, nor has she shown that amendment would prove to be 27 anything other than futile. The Court dismisses this claim with prejudice. 28 /// 1 b. Defamation 2 Defamation of a private person requires that a plaintiff plead facts showing the 3 defendant made a false statement “(a) know[ing] the statement is false and that it defames 4 the other, (b) act[ing] in reckless disregard of these matters, or (c) act[ing] negligently in 5 failing to ascertain them.” Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 449 6 (Ariz. Ct. App. 2015) (citing Restatement (Second) of Torts § 580B). “To be defamatory, 7 a publication must be false and must bring the defamed person into disrepute, contempt, 8 or ridicule, or must impeach plaintiff’s honesty, integrity, virtue, or reputation.” Turner v. 9 Devlin, 848 P.2d 286, 288-89 (Ariz. 1993) (emphasis added). 10 The Court cannot discern what comments Plaintiff believes are defamatory, and 11 noting Plaintiff was late, defensive, argumentative, and rolled her eyes simply does not 12 defame Plaintiff. The written observation that Plaintiff exhibited unprofessional behavior 13 because she was dozing off, tardy, and engaged in heated discussions are not disparaging 14 characterizations meant to elicit ridicule or question Plaintiff’s virtue. At most they can 15 be construed as inaccurate factual allegations, though Plaintiff admits she may have 16 nodded off and may have been repeatedly late. Plaintiff has failed to raise any facts that 17 support her defamation claim and has not shown amendment would resolve the 18 deficiency. The Court dismisses this claim with prejudice. 19 c. Civil Conspiracy 20 Plaintiff has provided no factual allegations that would lead a reasonable juror to 21 believe that Banner employees knew about Plaintiff’s disability and worked with others 22 to conspire against Plaintiff because of the disability. Although Plaintiff’s response to the 23 Motion to Dismiss claims that Plaintiff had already filed a discrimination claim against 24 the U of A, there are no factual allegations suggesting Banner employees knew of the 25 filing. A bald assertion of conspiracy does not suffice. See Bell Atlantic v. Twombly, 550 26 U.S. 544, 555 (2007) (claims must be more than speculative). And, as explained above, 27 Banner committed no torts and nothing suggests it conspired to commit a tort, therefore a 28 civil conspiracy charge is unsupported. 1 d. Discrimination, Retaliation, and Hostile Environment 2 Like the allegations against Federal Defendants, Plaintiff has proffered no 3 evidence permitting a reasonable juror to conclude that her disability motivated Banner’s 4 actions–either directly or circumstantially. Nor has she shown that Banner acted in 5 retaliation for her filing a complaint against the U of A for denying her accommodations. 6 In fact, there is no evidence that Banner knew of Plaintiff’s disability or her allegations 7 against the school. See Dodson v. Cartwright Elementary Sch. Dist., No. CV-15-00674- 8 PHX-DLR, 2016 WL 3437602, at *7 (D. Ariz. Mar. 25, 2016) (an ADA claim that does 9 not demonstrate defendant’s knowledge of plaintiff’s protected activity fails). The more 10 likely explanation, as Plaintiff explained in the Second Amended Complaint, is that in the 11 first five days of the rotation her loss of sleep affected her punctuality, attentiveness, and 12 mood. Finally, Banner’s alleged actions do not raise to the level of creating a hostile 13 environment and there is no reason to believe that there are additional facts that could be 14 asserted to support this claim. 15 e. Conclusion 16 Plaintiff has had multiple opportunities to amend, and perfunctorily added Banner 17 in the Second Amended Complaint. Instead of including facts that would suggest that her 18 disability was a motivating factor in her dismissal from her rotation at Banner, she merely 19 claims that there are more “material facts” she could add. This will not suffice. See 20 Sisseton-Wahpeton Sioux Tribe, 90 F.3d at 355. The Court will dismiss Banner with 21 prejudice. 22 4. DEFENDANT GENOA HEALTHCARE, LLC’S MOTION TO DISMISS 23 Although Genoa believes Plaintiff only raises claims of IIED and civil conspiracy, 24 Plaintiff seems to also assert defamation, discrimination, retaliation, and hostile 25 environment. The Court will therefore address them but finds that none of the allegations 26 state a claim for which relief may be granted. 27 Plaintiff’s allegations against Genoa appear to state she was discriminated against 28 because of her disability because she (1) was offered Oreos but not bagels, (2) was not 1 given the same Olive Garden lunch that was provided to staff, (2) was not allowed to eat 2 in the employee lunch room during her student rotation, (3) was prevented from working 3 her preferred rotation and instead placed in Medication Therapy Management too often, 4 (4) was criticized for documenting her complaints in writing, and (5) was told to look up 5 answers prior to asking questions of instructors. She also claims that she was temporarily 6 informed that her belongings should be left in her car, but after she told a Genoa 7 pharmacist that she had limited function in her arm, she was permitted to keep her 8 belongings in the same area as staff. She does not describe any adverse actions directly 9 resulting from Genoa’s alleged actions. 10 a. IIED 11 There are no alleged facts in the Second Amended Complaint that suggest that 12 Genoa’s actions were extreme and outrageous, intended to cause emotional distress, or 13 that emotional distress occurred. Most individuals at some point in time believe they have 14 been subject to unfounded criticism; criticism is not a reprehensible act in our society. 15 Plaintiff’s general statement that she was criticized cannot constitute IIED. Also, there is 16 no indication that the separation of employees from students was discriminatory or 17 intended to elicit emotional harm. Moreover, staff accommodated Plaintiff and permitted 18 her to store her belongings inside when informed of her arm limitations.3 Finally, not 19 being offered food that was given to employees is not IIED. 20 b. Defamation/Libel 21 Genoa allegedly criticized Plaintiff and told Plaintiff to investigate her questions 22 independently before asking instructors for the answer. Plaintiff’s alleged criticism of 23 Plaintiff’s note taking is vague and conclusory. In addition, it is not defamatory to 24 provide feedback that the answers to her questions would likely be found within available 25 research materials, and that students should not depend on others for answers. These 26 comments do not bring Plaintiff into disrepute or undermine her integrity. The Court will 27 3 The Court notes that Plaintiff did not allege that her documented disability included 28 difficulty with her arm, but ADHD and a learning disability that “delays/prolongs writing.” 1 dismiss this claim. 2 c. Civil Conspiracy 3 Plaintiff’s allegations against Genoa assert that Genoa had knowledge of pending 4 litigation against the U of A and knew that she was documenting everything because of it. 5 However, there are no allegations that Genoa was working with another party to commit 6 a tort against Plaintiff. Nor is there any suggestion that Genoa’s actions or statements 7 were motivated by an agreement with another party to discriminate against her due to her 8 disability. Mere knowledge of her disability and of complaints against the U of A do not 9 create a conspiracy with the university. This claim is unsupported, and Plaintiff has 10 provided no reason to believe amendment would solve the deficiencies. 11 d. Discrimination, Retaliation, and Hostile Environment 12 Plaintiff’s discrimination claim fails to allege what services she was excluded 13 from due to her disability. She claims that she was assigned to a rotation she did not 14 prefer but does not state that the placement was motivated by her disability, or that she 15 was entitled to the rotation of her choice but was denied it. 16 In addition, her separation from employees at lunch does not reasonably lead a 17 fact-finder to conclude the action was discriminatory. She claims she could not eat in the 18 staff lunch room and was not provided the same lunch as staff. But Plaintiff was not staff, 19 and so she has not shown denial of a benefit granted to other non-disabled students. 20 Furthermore, when informed about her difficulty with her right arm, Genoa 21 permitted Plaintiff to store her belongings in the same area as staff. This cannot show that 22 she was excluded from accommodations because of a disability. 23 Moreover, there are no alleged adverse actions supporting a retaliation claim. She 24 has not alleged that she was excluded, failed, or unable to successfully complete the 25 rotation because of any of Genoa’s discriminatory actions. 26 Finally, Genoa’s alleged actions simply do not create a hostile work environment. 27 /// 28 /// 1 e. Conclusion 2 Plaintiff had two opportunities to amend and added Genoa only in the Second 3 Amended Complaint. Despite amendment, Plaintiff has failed to plead facts to withstand 4 a 12(b)(6) motion. Plaintiff responds to the motion by generally stating that “[m]ore 5 material facts are available” that would support her claims, but she fails to provide a 6 single detail in support. The Court has no indication that Plaintiff is able to add facts that 7 would fix the deficiencies in the Second Amended Complaint. See Sisseton-Wahpeton 8 Sioux Tribe, 90 F.3d at 355. The Court finds amendment would be futile, grants Genoa’s 9 motion to dismiss, and dismisses Genoa with prejudice. 10 5. ARIZONA BOARD OF REGENTS’ MOTION TO DISMISS 11 Before discussing Plaintiff’s claims, the Court will attempt to reiterate the alleged 12 actions in Plaintiff’s Second Amended Complaint that are attributed to ABOR. In 13 summarizing the Complaint, the Court has broadly construed which named individuals 14 are U of A employees and subject to liability through ABOR. The Court makes no final 15 determination as to individuals’ actual status as university employees. 16 a. Factual Summary 17 i. PHPR 875b Class 18 On August 29, 2016, Plaintiff requested extra time during tests in PHPR 875b. She 19 believed that the time extension applied to a timed SOAP notes assessment–a form that 20 was to be filled out during a class workshop. The graded SOAP notes constituted 38% of 21 Plaintiff’s grade. However, her instructors would not give Plaintiff the extra time. 22 Plaintiff informed U of A Disability Resource Center Representative Diedre Lamb 23 that she was not being provided the time accommodation and that she intended to file a 24 complaint with the U.S. Department of Education. Nonetheless, Plaintiff agreed to take 25 the first SOAP note assessment without accommodation. After the first assessment, 26 however, Plaintiff attempted to contact Lamb to let her know Plaintiff would need the 27 accommodation for subsequent assessments. Plaintiff did not hear back from Lamb until 28 after the second assessment was given on September 13, 2016 and was not provided 1 accommodations for a third SOAP note assessment on September 27, 2016. 2 In addition, Lamb suggested Plaintiff wear headphones during exams to help 3 minimize distractions, but her instructors would not allow headphones or earplugs. 4 During one exam, there was a loud banging in the exam room which distracted Plaintiff. 5 As a result, her grades suffered. 6 ii. Student Response 7 Plaintiff claims that during the second assessment students gave her dirty looks. 8 The subsequent day, students told her how to do her SOAP assessments more quickly and 9 generally “harassed” her until Plaintiff threatened to record the students. Later another 10 student stated that there was “no chance for [Plaintiff to get] an A in the class now,” 11 however, this student should not have known Plaintiff’s grade because she had not 12 disclosed it. (Doc. 74 at 6.) Later, she claims after she reported an incident of academic 13 dishonesty, she again received dirty looks and students avoided her. Because of the 14 harassment, Plaintiff stopped going to classes unless they were required. Her sparse 15 attendance further affected her grade. 16 iii. PHPR 811 Class 17 In March 2017, Plaintiff again for extra time to fill out Clinical Skills/SOAP note 18 assessments in PHPR 811. When Lamb denied her request, Plaintiff again told Lamb she 19 was going to file a complaint with the U.S. Department of Education. Plaintiff was 20 subsequently required to turn in two assessments before other students. Plaintiff was 21 allowed extra time only for the third and final SOAP note assessment. But, during this 22 final assessment her instructor, Dr. Maryam Fazel, continually interrupted Plaintiff and 23 inaccurately notified Plaintiff of the time that remained. The interruption flustered 24 Plaintiff. As a result, Plaintiff received her lowest grade for the assessment, and 25 ultimately earned a B in the class. 26 iv. Other Issues 27 Plaintiff also alleges that an exam taken at the Disability Resource Center was 28 treated differently than exams taken by other students. In a class with Dr. Patanwala, the 1 instructor told the students that he would review calculations if the answers were 2 debated. But, unlike tests handed in by students without accommodations, paper 3 calculations by students with disabilities were not saved for later review. As a result, 4 Plaintiff was unable to successfully challenge her answers, and received a B in the class. 5 In PHPR 807, Plaintiff decided that she did not want to take advantage of the 6 additional time available to her because the testing started two hours before the regular 7 testing time. Yet, she complains that during the test she was required to submit her exam 8 before two students who did not require accommodations. 9 Hours before another exam, she informed staff that she was concerned that her 10 computer would freeze during the exam and she wanted to use a school computer. Staff 11 told Plaintiff that she would have to either take the exam with her computer and be 12 permitted the extended time, or she could be provided a school computer for the exam but 13 would have to take the exam within the allotted time. Plaintiff decided to use her 14 computer but, as she predicted, it malfunctioned multiple times. 15 Two days after notifying Lamb that she might file an ADA claim against the 16 university, Plaintiff had difficulty submitting an online quiz. Plaintiff alleges that the D2L 17 system documented that she had attempted the test. She received no credit for it because 18 her instructor claimed there was no record of it. 19 Plaintiff believes that U of A employee, Dr. Marion Slack, sabotaged her senior 20 project by failing to follow through with finding Plaintiff a project partner, not 21 responding in a timely manner, and giving Plaintiff an extra assignment not required of 22 other students and not listed in the syllabus. But, when Slack finally found a partner for 23 Plaintiff, Plaintiff ignored Slack’s email. Similarly, Plaintiff makes various allegations 24 about other instructors’ failure to respond to her in a timely manner. 25 /// 26 /// 27 /// 28 /// 1 b. Civil Conspiracy 2 Plaintiff’s factual assertions assume that simply because Defendants were aware 3 that she needed accommodations, and because their actions were close in time to 4 Plaintiff’s assertion that she would file a claim with the U.S. Department of Education, 5 that ABOR conspired against her to cause emotional distress, to attempt to defame, or to 6 discriminate against her due to her disability. But, to raise a viable claim of conspiracy, a 7 plaintiff must show that a defendant was working together with one or more persons to 8 further some unlawful act. ABOR employees’ alleged actions do not suggest there was a 9 coordinated attempt to conspire against Plaintiff. The Court cannot draw this connection 10 from the circumstances presented here. 11 c. IIED 12 Second, the Court cannot find that the problems Plaintiff experienced in her 13 classes constituted IIED. While she was denied accommodations, she successfully passed 14 her classes and has not demonstrated that emotional injury occurred. Given that in two 15 instances Plaintiff was willing to attempt to take her exams/assessments in the allotted 16 time (for one, preferring to take the exam in the set time rather than being inconvenienced 17 by showing up early), the Court cannot find ABOR’s denial of extended time for testing 18 was atrocious. In addition, ABOR cannot be held accountable for the dirty looks, 19 comments, and avoidance of other students. But even if it could, the Court would not find 20 that these actions are outrageous. 21 Plaintiff admits that she failed to raise an IIED claim but asks the Court to allow 22 her to amend to add the elements of IIED. Plaintiff has had two opportunities to amend 23 and provides no grounds to believe amendment would cure the deficiency. 24 d. Defamation 25 Plaintiff claims she was misrepresented in print but does not elaborate. The Court 26 cannot discern any instances of possible defamation. Dirty looks and avoidance are not 27 defamation. Furthermore, written grades are not defamation, even if the scores are 28 contested. Moreover, a general “hostility” claim cannot support Plaintiff’s defamation 1 charge. 2 Plaintiff states that she is willing to provide the Court with more details if the 3 court desires. The Court previously ordered Plaintiff to specifically state the actions of a 4 defendant and connect those actions to the elements of her claims. Plaintiff’s 5 amendments have provided no more clarification about her defamation claim. The Court 6 will not permit this claim to proceed. 7 e. Discrimination, Retaliation, and Hostile Environment 8 Unlike Plaintiff’s other claims, the Court finds Plaintiff has stated a viable 9 discrimination claim under the ADA and RA against the ABOR resulting from three 10 encounters with employees of the U of A: (1) for the denial of accommodations in PHPR 11 875b and (2) PHPR 811, and (3) for the disparate grading procedures in her class with Dr. 12 Patanwala. In these classes, Plaintiff has sufficiently pleaded that (1) she has a 13 documented disability; (2) she is otherwise qualified even without an accommodation; (3) 14 that was excluded from the services sought because of her disability; and (4) that the 15 ABOR is a public entity that receives federal financial assistance. Moreover, Plaintiff has 16 pleaded that ABOR employees were aware of the necessary accommodations and knew 17 that denying such accommodation could be construed as violating a federally protected 18 right but they did so anyway. 19 The remaining allegations, however, do not demonstrate a causal connection 20 between ABOR employees’ actions and resulting discrimination. For instance, Plaintiff 21 may not choose to bypass her time accommodation and then require employees to abide 22 by it. Likewise, it is insincere for Plaintiff to allege she was sabotaged by an instructor for 23 whom she refused to communicate with. Moreover, Plaintiff’s accommodation afforded 24 extra time on exams, but not the computer of her choice; and her computer’s failure 25 cannot be imputed to ABOR. And insofar as Plaintiff is alleging that she was not 26 provided a school computer, this is more likely a consequence of the availability of 27 computers rather than a covert act of discrimination since Plaintiff informed staff merely 28 hours before the exam. The Court therefore limits the discrimination claim to these three 1 instances alone. 2 In these instances, Plaintiff has also successfully pleaded a claim of retaliation. 3 She has sufficiently pleaded that she was disabled as defined under the ADA, she was 4 advocating to receive the accommodations for which she was entitled, she was denied 5 accommodations, and her grades suffered as a result. The Court will deny the motion to 6 dismiss the retaliation claim. 7 However, a reasonable juror could not find that Plaintiff’s allegations rise to the 8 level of creating a hostile environment. The Court will dismiss the hostile environment 9 claim. 10 f. Statute of Limitations 11 ABOR argues that Plaintiff’s claims are untimely because Plaintiff’s Second 12 Amended Complaint does not relate back to the original Complaint, therefore the statute 13 of limitations was not tolled during this time. First, ABOR argues it was not a named 14 defendant in the initial complaint. Second, even upon amendment, ABOR asserts that 15 Plaintiff has not specified which actions should be attributed to ABOR. Third, ABOR 16 believes that since the Court screened and dismissed the original Complaint it was not on 17 notice that of the claims against it. 18 The Ninth Circuit explained when an amendment may relate back for the purposes 19 of tolling the statute of limitations. Quoting Federal Rule of Civil Procedure 15(c), the 20 circuit court stated: 21 Whenever the claim or defense asserted in the amended pleading 22 arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment 23 relates back to the date of the original pleading. An amendment 24 changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided 25 by law for commencing the action against the party to be brought in 26 by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in 27 maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper 28 party, the action would have been brought against the party. 1 Martell v. Trilogy Ltd., 872 F.2d 322, 323–24 (9th Cir. 1989); Fed. R. Civ. P. 15(c). So, 2 under this rule, claimants who seek amendment to correct the name of the defendant 3 “must satisfy more stringent requirements. In addition to the requirement that the 4 amendment arise out of the same transaction, Rule 15(c) imposes greater notice demands 5 and a showing of lack of prejudice.” Id. 6 Plaintiff’s Second Amended Complaint arises out of the same set of facts within 7 the original Complaint. In the original, Plaintiff attempted to allege that instructors at the 8 U of A unlawfully failed to provide her accommodations guaranteed under the ADA and 9 her grades suffered from their actions. And, although Plaintiff incorrectly listed the U of 10 A as a defendant, but ABOR should have known that but for the mistake it was the proper 11 defendant. See Ansel Adams Publ’g Rights Trust v. PRS Media Partners, LLC, 502 F. 12 App’x 659, 660 (9th Cir. 2012); Ariz. Const. art. 11 §5; Ariz. Rev. Stat. § 15-1625. In 13 fact, the Court’s Screening Order noted that only two elements were missing from the 14 original Complaint to raise a successful claim under the RA: naming ABOR as a 15 Defendant and alleging that ABOR receives federal funding or is a public entity. 16 Furthermore, ABOR has made no argument that it would suffer any prejudice should the 17 Court allow the Second Amended Complaint to relate back to the original. 18 But for Plaintiff’s mistake naming the University of Arizona instead of ABOR, 19 ABOR should have been on notice based on the facts alleged that Plaintiff raised claims 20 of violations under the RA and ADA for actions of the U of A’s employees. ABOR’s 21 defense is not prejudiced by permitting the Second Amended Complaint to relate back. 22 Therefore, Plaintiff’s Complaint, filed September 13, 2018, was within two years of the 23 denial of accommodations for the second SOAP notes assessment in PHPR 875b–given 24 on September 13, 2016. See AR Douglas v. Calif. Dept. of Youth Auth., 271 F.3d 812, 25 823 n.11 (9th Cir. 2001) (RA statute of limitations is equivalent to limitation in state 26 law); see also Madden-Tyler v. Maricopa Cty., 189 Ariz. 462 (Ariz. App. 1997) (RA 27 claim has two-year statute of limitations in Arizona). The Court finds that the Second 28 Amended Complaint relates back to the original and the actions that will proceed are 1 within the statute of limitations. 2 6. ABOR’s Motion to Strike 3 ABOR’s motion asks the Court to strike Plaintiff’s Objection to Defendant’s 4 Reply as an improper surreply. The rules of procedure allow a motion, response, and 5 reply. LRCiv 7.2. A surreply is permissible only when a party is otherwise unable to 6 answer matters newly raised in the opposing party’s reply. See Provenz v. Miller, 102 7 F.3d 1478, 1483 (9th Cir. 1996). Plaintiff’s surreply argues again that ABOR did not 8 confer with her prior to filing a motion to dismiss. Plaintiff raised this matter in her 9 response to the motion to dismiss. Contrary to her contention, her objection indicates that 10 there was some form of conferral prior to amendment addressing the problems with 11 Plaintiff’s claims. (Doc. 111 at 2) (“No communication ever occurred when the movant 12 (ABOR) notified the opposing party (Plaintiff) of the issues asserted in the motion to 13 dismiss.” (emphasis added)). The Court will grant the Motion to Strike. 14 Accordingly, IT IS ORDERED: 15 1. Southern Arizona Veterans Administration and United States Air Force, Davis 16 Monthan Air Force Base’s Motion to Dismiss is GRANTED. (Doc. 121.) Federal 17 Defendants and all claims against Federal Defendants are DISMISSED with 18 prejudice. 19 2. Defendant Banner University Medical Center’s Motion to Dismiss is GRANTED. 20 (Doc. 105.) Banner and all claims against Banner are DISMISSED with prejudice. 21 3. Defendant Genoa Healthcare, LLC’s Motion to Dismiss is GRANTED. (Doc. 22 117.) Genoa and all claims against Genoa are DISMISSED with prejudice. 23 4. Defendant Arizona Board of Regents’ Motion to Dismiss is GRANTED IN PART. 24 (Doc. 99.) Plaintiff’s claims against Arizona Board of Regents for IIED, 25 defamation, civil conspiracy, and hostile environment are DISMISSED with 26 prejudice. Arizona Board of Regents must answer Plaintiff’s claims of 27 discrimination and retaliation in accordance with in this Order. 28 5. Defendant Arizona Board of Regents’ Motion to Strike Plaintiff’s Objection to 1 Defendant Arizona Board of Regents’ Reply is GRANTED. The Clerk of Court 2 shall STRIKE Plaintiff’s Objection to ABOR’s Motion to Dismiss. (Doc. 111.) 3 Dated this 17th day of December, 2019. 4 5 6 _ pL — ST (rl - 7 Honorable Raner C. Collins 8 senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -23-