Lonnie Larson v. Pearl Imada Iboshi

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 05 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
LONNIE E. LARSON, No. 09-17396
Plaintiff - Appellant, D.C. No. 1:08-cv-00537-SOM-
KSC
v.
PEARL IMADA IBOSHI, Director, MEMORANDUM *
Department of Labor and Industrial
Relations, State of Hawaii,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Hawaii
Susan Oki Mollway, Chief District Judge, Presiding
Submitted June 15, 2011 **
Honolulu, Hawaii
Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Lonnie E. Larson appeals the dismissal of his action against Darwin Ching,
Director of the Hawaii Department of Labor and Industrial Relations,1 under Title
II of the Americans with Disabilities Act (“ADA”). Larson alleges that he was
struck by lightning while working as a tunnel attendant, and he seeks relief in
connection with a workers’ compensation claim. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
The district court did not abuse its discretion in denying Larson’s motions
for a default judgment. See Speiser, Krause & Madole P.C. v. Ortiz, 271 F.3d 884,
886 (9th Cir. 2001). Even if the clerk of court should have entered a default, the
$9,982,050.70 at stake, contested liability, the preference to decide cases on the
merits, and the fact that Larson was unlikely to succeed on the merits would all
have weighed in favor of setting aside the default and against entering default
judgment. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986); Aldabe v.
Aldabe, 616 F.2d 1089, 1092-93 (9th Cir. 1980) (per curiam).
There was no abuse of discretion in denying Larson’s multiple motions for
appointment of counsel. See Campbell v. Burt, 141 F.3d 927, 931 (9th Cir. 1998).
The court properly found that Larson adequately presented his arguments pro se.
1
On November 29, 2010, Pearl Imada Iboshi was substituted for Darwin
Ching as the Director of the Department of Labor and Industrial Relations pursuant
to Fed. R. App. P. 43(c)(2).
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See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004). It also
properly found that in light of the Director’s exclusive jurisdiction over workers’
compensation claims, and the fact that Larson’s complaint failed to provide support
for why he believed the alleged discrimination was by reason of his disability,
Larson failed to demonstrate a likelihood of success on the merits. See Johnson v.
U.S. Treasury Dep’t, 27 F.3d 415, 417 (9th Cir. 1994) (per curiam).
Neither did the court abuse its discretion in failing to compel discovery. “A
district court is vested with broad discretion to permit or deny discovery . . . .”
Laub v. U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003). In this case,
the Director did not receive Larson’s first discovery requests, and Larson’s second
motion to compel discovery was rendered moot by the court’s dismissal with
prejudice of Larson’s complaint. In any event, Larson failed to show that “the
outcome would have been different had discovery been allowed.” See id.
Finally, the district court did not err in granting the Director’s motion to
dismiss Larson’s claims under the ADA and the Rehabilitation Act. Larson first
argues that he was discriminated against because he was required to undergo a
second medical examination. However, he fails to show that the Director was
responsible for this requirement, or how any such requirement discriminated
against him “by reason of” his disability. See McGary v. City of Portland, 386
-3-
F.3d 1259, 1265 (9th Cir. 2004); Duvall v. County of Kitsap, 260 F.3d 1124, 1135
(9th Cir. 2001). He next argues the Director should have applied a presumption of
disability and granted him the benefits requested, but provides no support that the
Director refused to apply the presumption.
Larson argues the Director failed to offer him reasonable accommodations
when requiring Larson to attend a hearing in Hawaii in person. The Director,
however, long ago indicated that he was willing to consider alternatives to physical
attendance, including a hearing by teleconference. Larson failed to show why
these accommodations were not reasonable. See Duvall, 260 F.3d at 1137. Larson
also failed to show why the Director should have waived the requirement for a
hearing, especially in light of the contested facts surrounding his injury. Finally,
Larson’s claim for retaliation fails because he cannot show any causal link between
the filing of his administrative ADA complaint and any adverse action by the
Director. See Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004).
AFFIRMED.
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