Iceberg v. State of Washington DSHS/DVR

2:15-cv-01232

W.D. Wash.

Jan 30, 2017

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Docket

SCOTT FRANCIS ICEBERG, Plаintiff, v. ANN MARTIN, et al., Defendants.

CASE NO. C15-1232JLR

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

January 30, 2017

JAMES L. ROBART

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND DENYING LEAVE TO AMEND

I. INTRODUCTION

Before the court are the following motions: (1) Defendants Kevin W. Quigley, Pat Lashway, Andrew Aquirre, Ann Martin, and Tracy Wilson‘s (collectively, Defendants“) motion to dismiss Plaintiff Scott Francis Iceberg‘s third amended complaint (MTD (Dkt. # 36)), (2) Defendants’ motion for a protective order concerning certain discovery requests from Mr. Iceberg (MPO (Dkt. # 43)), (3) Defendants’ motion for an extension of certain case schedule deadlines (MFE (Dkt. # 54), and (4) Mr. Iceberg‘s motion for leave to amend his third amended complaint (MFL (Dkt. # 42)). The court has considered the motions, the memoranda of the parties filed in support of and opposition to the motions, the relevant portions of the record, and the apрlicable law. Being fully advised,¹ the court GRANTS Defendants’ motion to dismiss, DENIES Mr. Iceberg‘s motion to amend his third amended complaint, and DISMISSES Mr. Iceberg‘s federal claims with prejudice and without leave to amend. The court further declines to exercise supplemental jurisdiction over Mr. Iceberg‘s state law claims and DISMISSES those claims without prejudice. The court further DENIES Defendants’ motions for a protective order and an extension of certain case schedule deadlines as moot.

II. BACKGROUND

In total, Mr. Iceberg has submitted five complaints in this action. He initiated this action with his original complaint (see Compl.), filed three subsequent amended complaints (see FAC (Dkt. # 7); SAC (Dkt. # 27); TAC (Dkt. # 34)), and proposes filing a fourth amеnded complaint (see Prop. 4th Am. Compl. (Dkt. # 42-1)). As the court discusses the history of these filings, it primarily describes how each successive complaint changed from the prior complaint, rather than describes each complaint separately and in total.

Mr. Iceberg, who is proceeding pro se and in forma pauperis (see IFP Order (Dkt. # 2)), filed his initial complaint on August 7, 2015 (see Compl.). In his initial complaint, Mr. Iceberg sued the “State of Washington DSHS/DVR,”² as well as Ann Martin and Tracy Wilson, who are both employees of DVR. (Id. at 1-2; see Mot. for More Def. Stmt. at 2 (“Mr. Iceberg alleges that DVR and several of its employees have violated his rights . . . , naming each Defendant in their official capacities and two defendants, Ann Martin and Tracy Wilson, in their personal capacities as well.“).) In his initial complaint, Mr. Icеberg alleged that (1) he is disabled, (2) he is qualified to receive services from Defendants, (3) he “repeatedly requested” an accommodation from Defendants that they allow him to communicate with them primarily through email, and (4) Defendants refused to accommodate him. (Compl. at 2.) He alleges that Defendants took “adverse actions” against him by denying access to services that he is qualified to receive. (Id. at 3.) He alleged that Defendants’ actions violated the Rehabilitation Act, and he also asserts a claim under state law for intentional infliction of emotional distress. (Id.) He sought $200,000.00 in damages. (Id. at 4.)

On August 25, 2015, Mr. Iceberg filed his first amended complaint. (See FAC.) In his first amended complaint, Mr. Iceberg dropped the “State of Washington DSHS/DVR” as a defendant, but added Mr. Quigley, “in his official capacity as Secretary of the Washington State Department of Social and Health Services” and Mr. Aguirre, “in his official capacity as Director of the Division of Vocation [sic] Rehabilitation.” (Id. at 1.) He also clarified that he was suing Ms. Martin and Ms. Wilson in both their individual and official capacities. (Id.) In his first amended complaint, Mr. Iceberg alleged that he “is a qualified disabled individual under the [Americans with Disabilities Act (“ADA“)] and Rehabilitation Act.”³ (Id. at 2.) He alleged that he is “qualified . . . to receive services from Defendants,” “repeatedly requested a reasonable accommodation,” and was “ignored” by Defendants. (Id. at 3.) He alleged that Defendants took adverse actions against him by telling him that he “is too insane and delusional to attend school,” telling him that “he isn‘t qualified for services because he causes too much trouble,” calling him “adversarial,” “[e]nding meetings abruptly,” telling him that “he could easily be locked up,” telling him that “he isn‘t really disabled,” and ultimately closing his case and denying him services. (Id.)

Mr. Iceberg also asserted claims for “failure to accommodate,” “retaliation,” and “disparate impact” under both the Rehabilitation Act and Title II of the ADA and for “disability” and religious discrimination under 18 U.S.C. § 1983. (Id. at 3-6.) He further asserted a claim under the Religious Freedom Restoration Act, alleging that Defendants’ requirement that he submit to a “Psychology/Psychiatric evaluation” was incompatible with his sincerely held religious beliefs as a Christian Scientist. (Id. at 5.) In this regard, Mr. Iceberg alleged that Ms. Wilson laughed at him and told him “Christian Science is not a real religion.” (Id. at 6.) Finally, he increased his damages demand to $300,000.00. (Id. at 7.) On December 8, 2015, Defendants filed a motion for a more definite statement. (See Mot. for More Def. Stmt.) On December 24, 2015, Mr. Iceberg filed a motion to amend his first amended complaint “to respond to the alleged deficiencies described in Defendants’ [m]otion . . . , as well as to make other needed amendments.” (MTA FAC (Dkt. # 21) at 1.) Defendants did not respond to Mr. Iceberg‘s motion. (See generally Dkt.) On March 31, 2016, the court granted Mr. Iceberg‘s motion and denied Defendants’ motion as moot. (3/31/16 Order (Dkt. # 26) at 4.) The court, however, stated that its ruling was “without prejudice to Defendants’ re-filing a Rule 12 motion for a more definite statement or to dismiss if warranted with respect to Mr. Iceberg‘s second amended complaint.” (Id. at 4-5.)

Mr. Iceberg filed his second amended complaint on April 6, 2016. (SAC (Dkt. # 27.) Mr. Iceberg added some factual detail by including some dates in his second amended complaint. (See id. at 3.) He alleged that from approximately October 2014, to July 2015, he received services from Defendants and made numerous requests that Defendants grant him the accommodation of communicating with them “primarily via email.” (Id.) He also specified that he made his accommodation requests to Ms. Wilson and Ms. Martin, and they ignored his requests and “refused to engage in an interactive process . . . in order to find an accommodation that would allow [him] to fully enjoy the services offered by DVR.” (Id.) He specified that Ms. Wilson made the particular adverse statements that he alleged in his first amended complaint and that Ms. Wilson had closed his file. (Id. at 4, 6-7.) He made no specific allegations against Mr. Aguirre and Mr. Quigley, however, except to identify them as officials with DVR and to allege that their actions were “indifferent.” (Id. at 2, 7.) Much of the content that Mr. Iceberg added to his second amended complaint consisted of legal conclusions. (See generally id.)

On April 20, 2016, Defendants filed their second motion for a more definite statement. (2d Mot. for More Def. Stmt. (Dkt. # 28).) Mr. Iceberg did not respond. (See generally Dkt.) On June 16, 2016, the court granted Defendants’ motion. (6/16/16 Order (Dkt. # 29).) The court initially ordered Mr. Iceberg to file a third amended complaint no later than July 1, 2016 (id. at 8), but then granted him an extension until August 14, 2016 (7/19/16 Order (Dkt. # 33) at 4-5).

Mr. Iceberg filed his third amended complaint on August 8, 2016, and it is now the operative complaint in this proceeding. (See TAC.) In his third amended complaint, Mr. Iceberg added Ms. Lashway as a defendant “in her official capacity as [the] current Secretary of [DSHS].” (Id. at 2.) Although Mr. Iceberg alleged in his first and second amended complaints that he was “a qualified individual under the meaning of the ADA and Rehabilitation Act” or “within the meaning of the ADA, and [the Washington Law Against Discrimination (“WLAD“)].”⁴ (FAC at 3; SAC at 3.) Mr. Iceberg now alleges simply that he is “disabled” and “a currеnt recipient of Social Security Disability Insurance.” (TAC at 3.) He omits any specific description of his alleged disability. (Id.) Mr. Iceberg also alleges that he is “qualified to seek services from DVR” and continues to seek such services, but Defendants refuse to respond to him. (Id.)

In his third amended complaint, Mr. Iceberg also expands the relevant time period from October 2014, through July 2015, to October 2014, through August 2016. (Id.) He further alleges that he made his request for an accommodation to both Ms. Wilson and Ms. Martin but never received a response. (Id.) He also alleges that Defendants have “refused to ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍provide services from [DVR]” since July 2015. (Id.) Mr. Iceberg also asserts new claims under WLAD for failure to accommodate and for retaliation. (Id. at 6.) Much of the remainder of Mr. Iceberg‘s third amended complaint, like his previous complaint, consists of legal conclusions. (See generally id.) Finally, Mr. Iceberg increases his damages demand from $300,000.00 to $1,000,000.00. (Id. at 7; see also SAC at 8; FAC at 7.)

On August 22, 2106, Defendants filed a motion to dismiss Mr. Iceberg‘s third amended complaint, which was properly noted their motion for September 16, 2016. (See generally MTD); Local Rules W.D. Wash. LCR 7(d)(3) (indicating that a party should note a motion to dismiss on the fourth Friday after filing). Mr. Iceberg‘s response to Defendants’ motion was due on September 12, 2016. See id. (indicating that any opposition papers to a motion to dismiss “shall be filed an served not later than the Monday before the noting date). Mr. Iceberg did not timely respond to Defendants’ motion to dismiss. (See generally Dkt.) Instead, Mr. Iceberg requested an extension of time to file his response (MFE (Dkt. # 37)), and the court granted his request (11/1/16 Order (Dkt. # 48)). Mr. Iceberg filed his response to Defendants’ motion to dismiss on November 9, 2016.⁵ (MTD Resp. (Dkt. # 50).)

On September 20, 2016, Mr. Iceberg filed a motion for leave to file a fourth amended complaint “to respond to the alleged deficiencies described in Defendants’ [m]otion, as well as to make other needed amendments.”⁶ (See generally MFL at 1.) On October 3, 2016, Defendants timely filed a response to Mr. Iceberg‘s motion for leave to amend his third amended complaint. (MFL Resp. (Dkt. # 47).)

Mr. Iceberg‘s proposed fourth amended complaint adds more legal conclusions, but few new factual allegations. (See generally Prop. 4th Am. Compl. ) In his proposed fourth amended complaint, Mr. Iceberg eliminates Mr. Aguirre as a defendant and amends his allegations to sue the remaining Defendants in their individual capacities, as well their official capacities. (See id. at 3.) Except for these modifications and the addition myriad legal conclusions, the factual allegations contained in Mr. Iceberg‘s proposed fourth amended complaint remain largely unchanged. (See generally id.)

Following Mr. Iceberg‘s motion to amend his third amended complaint, Defendants also filed a motion for a proteсtive order with respect to certain discovery requests issued by Mr. Iceberg (see generally MPO) and a motion to extend certain case schedule deadlines (see generally MFE). The court now considers the parties’ motions.

III. ANALYSIS

A. Standards for a Motion to Dismiss

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court construes the complaint in the light most favorable to the nonmoving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Wyler Summit P‘ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.‘” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010). “A claim has facial plausibility when the plaintiff pleads factuаl content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Where a complaint pleads fact that are ‘merely consistent with’ a defendant‘s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.‘‘” Id. (quoting Twombly, 550 U.S. at 557). Dismissal under Rule 12(b)(6) can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep‘t, 901 F.2d 696, 699 (9th Cir. 1990). As noted above, Mr. Iceberg‘s complaints are rife with legal conclusions. The court need not accept as true a legal conclusion presented as a factual allegation. Iqbal, 556 U.S. at 678. Although the pleading standard of Federal Rule of Civil Procedure 8 does not require “dеtailed factual allegations,” it demands more than “an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. (citing Twombly, 550 U.S. at 555). A pleading that offers only “labels and conclusions or a formulaic recitation of the elements of a cause of action” will not survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Id. A complaint does not survive dismissal where “it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.‘” Id. (quoting Twombly, 550 U.S. at 557). In addition, “[a] plaintiff suing multiple defendants ‘must allege the basis of his claim against each defendant to satisfy Federal Rule of Civil Procedure 8(a)(2), which requires a short and plain statement of the claim to put defendants on sufficient notice of the allegations against them.‘” Flores v. EMC Mortg. Co., 997 F. Supp. 2d 1088, 1103 (E.D. Cal. 2014) (quoting Gauvin v. Trombatore, 682 F. Supp. 1067, 1071 (N.D. Cal. 1988)).

Even though Mr. Iceberg‘s is a pro se litigant, his complaint is evaluated under the Iqbal/Twombly pleading standards. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). However, the Ninth Circuit has clarified that complaints of individuals whо are proceeding pro se must be held to less stringent standards than formal pleadings drafted by lawyers, as the Supreme Court has reaffirmed since Twombly. See Erickson v. Pardus, 551 U.S. 89, 94 . . . (2007)(per curiam). Iqbal incorporated the Twombly pleading standard and Twombly did not alter courts’ treatment of pro se filings; accordingly, we continue to construe pro se filings liberally when evaluating them under Iqbal. Id. at 341-42. Nevertheless, “a liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled.” Bruns v. Nat‘l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)); see also Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992).

Further, the Ninth Circuit has recognized that a plaintiff does not enjoy unlimited opportunities to amend his or her complaint. See McHenry v. Renne, 84 F.3d 1172, 1174 (9th Cir. 1996) (affirming the district court‘s dismissal of the plaintiff‘s third amended complaint without leave to amend when it “restated the prior [complaints] without curing their deficiencies“). A court may deny leave to amend a complaint when further amendment would be futile. United States ex rel. Lee v. SmithKline Beecham, Inc., 245 F.3d 1048, 1052 (9th Cir. 2001).

B. Defendants’ Motion to Dismiss

On a motion to dismiss pursuant to Rule 12(b)(6), the court must limit its review to the operative complaint and may not consider facts presented in briefs or extrinsic evidence. See Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001). Accordingly, when evaluating Defendants’ motion to dismiss, the court limits its review to Mr. Iceberg‘s third amended complaint, which is the operative complaint in this proceeding. (See TAC.) The court only analyzes Mr. Iceberg‘s proposed fourth amended complaint for the purpose of evaluating whether the court should grant further leave to amend. Mr. Iceberg asserts state law claims under WLAD, the tort of intentional infliction of emotional distress, and the Washington State Constitution. (TAC at 6.) He also asserts federal claims under 42 U.S.C. § 1983, Title II of the ADA, and the Rehabilitation Act. (Id.) The court addresses Mr. Iceberg‘s federal claims first.

1. Mr. Iceberg‘s Claims under Title II of the ADA and Rehabilitation Act

Mr. Icebеrg asserts claims for retaliation, disparate impact, and failure to accommodate under Title II of the ADA and the Rehabilitation Act. (See TAC at 6.)

a. Retaliation

The court first addresses Mr. Iceberg‘s retaliation claims under both federal statutes. The Ninth Circuit has held:

By statute, the remedies for violations of the ADA and the Rehabilitation Act are co-extensive with each other, 42 U.S.C. § 12133; 29 U.S.C. § 794a(a)(2), and are linked to Title VI of the Civil Rights Act of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍1964, 42 U.S.C. § 2000d, et seq. These statues require that ADA and Rehabilitation Act remedies be construed the same as remedies under Title VI.

Ferguson v. City of Phoenix, 157 F.3d 668, 673 (9th Cir. 1998). The Rehabilitation Act contains no anti-retaliation provision, but rather incorporates the ADA‘s anti-retaliation provision , 42 U.S.C. § 12203. Neither compensatory nor punitive damages are available for retaliation under the ADA. Alvarado v. Cajun Operating Co., 588 F.3d 1262, 1268 (9th Cir. 2009). “Combining the Ferguson holding thаt ADA and Rehabilitation Act remedies are co-extensive, with Alvardo‘s holding that compensatory damages are not available for retaliation under the ADA, it appears that in this circuit compensatory damages are not available for retaliation under the Rehabilitation [A]ct.” McCoy v. Dep‘t of Army, 789 F. Supp. 2d 1221, 1234 (E.D. Cal. 2011), reconsideration denied, 2011 WL 6749806 (E.D. Cal. Dec. 22, 2011). Although a plaintiff may, in appropriate circumstances, seek prospective injunctive relief against state officials under Ex Parte Young, 209 U.S. 123, 155-56 (1908),⁷ Mr. Iceberg has not asserted a claim for injunctive relief.⁸ (See TAC at 7.) Instead, he seeks only compensatory damages of $1,000,000.00. (See id.) As discussed above, such damages are not available with respect to his claims for retaliation under either the ADA or the Rehabilitation Act. Accordingly, the court grants Dеfendants’ motion to dismiss Mr. Iceberg‘s claims for retaliation under both the ADA and the Rehabilitation Act.

b. Disparate Impact and Failure to Accommodate

Next, the court addresses Mr. Iceberg‘s claims for both “[d]isparate [i]mpact” and “[f]ailure to [a]ccommodate” under the ADA and the Rehabilitation Act. (See TAC at 6.) Both of these claims are types of disability discrimination claims that a plaintiff may bring under the ADA and the Rehabilitation Act. See Badwal v. Bd. of Trustees of Univ. of Cal., 139 F. Supp. 3d 295, 308 (D.D.C. 2015). The language of the two statutes is “similarly expansive” and “Congress has directed that the ADA and Rehabilitation Act be construed consistently.” Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 1997); Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir. 1999) (“[The Ninth Circuit‘s] interpretation of Title II of the ADA applies equally to Section 504 of the Rehabilitation Act.“). Thus, “cases interpreting the ADA are equally applicable when analyzing a claim under the Rehabilitation Act.” Badwal, 139 F. Supp. 3d at 308.

To assert a discrimination claim under either Title II of the ADA or Section 504 of the Rehabilitation Act, Mr. Iceberg must allege that he is an individual with a disability within the meaning of the statute. See id. at 307-08; see also Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (discussing elements of prima facie case of disability discrimination under the Rehabilitation Act and the ADA, including the element that plaintiff is disabled within the meaning of the statute); Wong v. Regents of Univ. of Cal., 410 F.3d 1052, 1055 n. 1 (9th Cir. 2005) (noting that Title II of the ADA and Section 504 of the Rehabilitation Act “create the same rights and obligations“); Weinreich v. L.A. Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir.1997) (listing elements for disability discrimination claims under Title II of the ADA and Section 504 of the Rehabilitation Act, including the element that plaintiff is disabled within the meaning of the statute); Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045 (9th Cir. 1999) (applying a combined set of elements for plaintiff‘s disability discrimination claims under Title II of the ADA and Section 504 of the Rehabilitation Act). A plaintiff has а “disability” within the meaning of the relevant statutes if he or she (1) suffers an impairment, (2) the impairment limits an activity that constitutes a major life activity, and (3) the limitation is substantial. Klamut v. Cal. Highway Patrol, No. 15-cv-02132-MEJ, 2015 WL 9024479, at *6 (N.D. Cal. Dec. 16, 2015) (providing definition of disabled under ADA); Badwal, 139 F. Supp. 3d at 308 (providing definition of disabled under both the ADA and the Rehabilitation Act).

Mr. Iceberg‘s allegations of disability in the operative third amended complaint include the following: “Plaintiff is disabled. He is a current recipient of Social Security Disability.” (TAC at 3.) “[C]ourts have generally required the plaintiff to plead the [element of] disability with some factual specificity.” Klamut, 2015 WL 9024479, at *7 (rejecting the adequacy of the plaintiff‘s allegations that he suffered “a psychotic episode secondary to sleep deprivation over a two-week period” and that he “suffered from a mental illness.“). For example, in O‘Guinn v. Lovelock Correctional Center., 502 F.3d 1056, 1058 (9th Cir. 2007), the Ninth Circuit held that the plaintiff had adequately alleged that he was disabled where he pleaded that he suffered from mental illness including “brain damage, and organic personality disorder.” Another court held that the plaintiff‘s allegation that he suffered from multiple sclerosis “[c]learly . . . qualifies as a physical impairment for purposes of the ADA” and satisfies the disability inquiry in an ADA claim. Puckett v. Park Place Entm‘t Corp., 332 F. Supp. 2d 1349, 1353 (D. Nev. 2004).

District courts, however, have dismissed claims that are based on allegations that merely label the plaintiff as disabled within the meaning of the statute. See Klamut, 2015 WL 9024479, at *6 (citing Longariello v. Gompers Rehab. Ctr., No. CV-09-1607-PHX-GMS, 2010 WL 94113, at *3 (D. Ariz. Jan. 5, 2010) (“Merely labeling himself as ‘disabled’ in the Complaint is insufficient to explain what physical or mentаl disability [the plaintiff] has.“); Kaur v. City of Lodi, No. 2:14-cv-828-GEB-AC, 2014 WL 3889976, at *4-5 (E.D. Cal. Aug. 7, 2014) (finding that “conclusory allegations are insufficient under the applicable pleading standard to allege facts from which a reasonable inference may be drawn that [the plaintiff] suffered from a disability defined in the ADA.“); Lambdin v. Marriott Resorts Hosp. Corp., No. 14-00345 SOM/KSC, 2015 WL 263569, at *2 (D. Haw. Jan. 21, 2015) (“It is not enough for [the plaintiff] to state, in conclusory fashion, that he has a disability. Having been injured or living with an impairment does not necessarily guarantee that one is protected by the ADA.“)); see also Sanders v. Arenson Prods., Inc., 91 F.3d 1351, 1354 n.2 (9th Cir. 1996) (“We note that ‘disability’ is susceptible to a broad variety of definitions and usages. . . . The ADA defines ‘disability’ with specificity as a term of art. Hence, a person may be ‘disabled’ in the ordinary usage sense, or even for purposes of reсeiving disability benefits from the government, yet still not be ‘disabled’ under the ADA.“)).

Based on the foregoing authorities, the count concludes that Mr. Iceberg‘s allegations of disability are inadequate. Mr. Iceberg offers no specific factual allegations to support his claim that he is disabled under either the ADA or the Rehabilitation Act, such as the type or nature of the mental illness or physical impairment from which he suffers. Mr. Iceberg‘s allegations of disability are nothing more than a “formulaic recitation” of this element of his claims, and his allegation that he “is disabled,” therefore, does not satisfy his pleading obligations.⁹ See Twombly, 550 U.S. at 555; (TAC at 3.)

Further, Mr. Iceberg‘s assertion that he recieves Social Security Disability is also inadequate to allege a disability under either the ADA or the Rehabilitation Act. Pimentel v. Cty. of Fresno, No. 1:10-CV-01736-OWW-DLB, 2011 WL 4591175, at *6 (E.D. Cal. Sept. 30, 2011) (citing Sanders, 91 F.3d at 1354 n.2) (“The allegation that Plaintiff was found to be disabled by the Social Security Administration in 2003 for “mental conditions” does not establish a disability as defined by the ADA.“); Darcy v. Lippman, No. 03 CV6898 KMW DCF, 2008 WL 629999, at *14 (S.D.N.Y. Mar. 10, 2008) (“Plaintiff‘s arguments that he should be considered an ‘individual with a disability’ because he has qualified for disability benefits from the Social Security Administration, or because he is considered a disabled driver by the State of New Jersey . . . , are insufficient, as he must adequately plead that he meets the definition of a disabled individual that is specifically set out in the Rehabilitation Act.“); see also Weiler v. Household Fin. Corp., 101 F.3d 519, 523-524 (7th Cir. 1996) (“Because the ADA‘s determination of disability and a determination under the Social Security disability system diverge significantly in their respective legal standards and statutory intent, determinations made by the Social Security Administration concerning disability are not dispositive findings for claims arising under the ADA.“); Robinson v. Neodata Servs., 94 F.3d 499, 502 n.2 (8th Cir. 1996) (“Social Security determinations, however, are not synonymous with a determination of whether a plaintiff is a ‘qualified person’ for purposes of the ADA.“); Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 802-05 (1999) (noting that the ADA‘s definition of “disability” differs ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍from that of the Social Security Administration‘s).

Based on the foregoing authorities, the court concludes that Mr. Iceberg‘s allegations that he “is disabled” and a “recipient of Social Security Disability” do not contain “sufficient factual matter” to permit an evaluation of the plausibility of his claims under the ADA or the Rehabilitation Act. See Iqbal, 556 U.S. at 678. Acсordingly, the court grants Defendants’ motion to dismiss Mr. Iceberg‘s claims under these statutes for disability discrimination, including his claims based on disparate impact and failure to accommodate.

2. Mr. Iceberg‘s Claims under 42 U.S.C. § 1983

Mr. Iceberg asserts two claims under 42 U.S.C. § 1983: disability discrimination and religious discrimination. (See TAC at 6.)

a. Disability Discrimination

The court will address Mr. Iceberg‘s claim for disability discrimination under 42 U.S.C. § 1983 first. A Section 1983 claim cannot be used to enforce rights under the ADA or the Rehabilitation Act, both of which contain statutory schemes that already include comprehensive remedial measures. See Vinson v. Thomas, 288 F.3d 1145, 1155-1156 (9th Cir. 2002). Although Vinson involved a Section 1983 claim based on the ADA brought against a state official in her individual capacity, the court concludes that the Ninth Circuit‘s reasoning extends to (1) Section 1983 suits brought against officials in their official capacities and (2) Section 1983 claims based on the Rehabilitation Act. In particular, the court notes that the Vinson court specifically relied on Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997) in reaching its decision. See Vinson, 288 F.3d at 1156. In Holbrook, the Eleventh Circuit held that a plaintiff suing a city could not “maintain a [Section] 1983 action in lieu of—or in addition to—a Rehabilitation Act or ADA cause of action if the only alleged deprivation is of the [plaintiff‘s] rights created by the Rehabilitation Act and the ADA.” Id. at 1531; see also Cherry v. City Coll. of S.F., No. C 04-04981 WHA, 2006 WL 6602454, at *12 (N.D. Cal. Jan. 12, 2006) (extending the holding in Vinson and holding “that the official/individual capacity distinction does not alter the preclusive effect of Title II [of the ADA]“); Hill v. Baca, No. CV 08-03834 CAS (AJW), 2010 WL 1727655, at *6 (C.D. Cal. Apr. 26, 2010) (“Section 1983 is not a vehicle to vindicate statutory rights secured by the ADA; rather, plaintiff may sue under the ADA directly.“); see also Save Our Summers v. Wash. State Dep‘t of Ecology, 132 F. Supp. 2d 896, 910 (E.D. Wash. 1999) (“[Section] 1983 cannot be used to enforce rights created by a statutory scheme that already include comprehensive remedial measures.“). Accordingly, the court grants Defendants’ motion to dismiss Mr. Iceberg‘s Section 1983 disability discrimination claim with prejudice against all Defendants in both their individual and official capacities.

b. Religious Discrimination

Next, the court addresses Mr. Iceberg‘s claim for religious discrimination under 42 U.S.C. § 1983. (See TAC at 6.) First, the court agrees with Defendants that all Section 1983 claims against Defendants in their “official capacities” are barred by the Eleventh Amendment‘s grant of sovereign immunity. See Kentucky v. Graham, 473 U.S. 159, 169 (1985); Will v. Mich. Dep‘t of State Police, 491 U.S. 58, 71 (1989) (“We hold that neither a State nor its officials acting in their official capacities are ‘persons’ under § 1983.“); Pittman v. Or. Empl. Dep‘t, 509 F.3d 1065, 1072 (9th Cir. 2007) (explaining that “the cause of action in § 1983 does not reach arms of the state.“). Washington has not waived its sovereign immunity with respect to Section 1983 claims. Rains v. State, 674 P.2d 165, 170 (Wash. 1983) (reaffirming that “the State is not suable under section 1983 for acts of its agents subjeсting the plaintiff to deprivation of his civil rights.“); Safouane v. Fleck, 226 F. App‘x 753, 760 (9th Cir. 2007) (citing Rains for this same proposition). Accordingly, the court grants Defendants’ motion to dismiss Mr. Iceberg‘s Section 1983 claims against Defendants in their official capacities.

In addition, to the extent that Mr. Iceberg‘s complaint could be construed to sue Mr. Quigley,¹⁰ Ms. Lashway, and Mr. Aguirre in their personal capacities, the court also grants Defendants’ motion to dismiss these claims. Mr. Iceberg has sued these individuals in their supervisory capacities only, as the current and former Secretaries of DSHS and the current Director of DVR. (See generally TAC.) Mr. Iceberg makes no factual allegations of direct involvement by Mr. Quigley, Ms. Lashway, or Mr. Aguirre beyond their duties as heads of the departments at issue. (See generally TAC.) As such, any liability on the part of these defendants would necessarily derive from the doctrine of respondeat superior. Such claims are not cognizable under Section 1983. Iqbal, 556 U.S. at 676 (“Government officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior liability.“); OSU Student All. v. Ray, 699 F.3d 1053, 1069 (9th Cir. 2012) (“The Attorney General‘s senior position does not by itself make him liable for . . . religious discrimination perpetrated by subordinates; rather, he must have engaged in culpable action or inaction himself.“). Accordingly, the court grants Defendants’ motion to dismiss Mr. Iceberg‘s Section 1983 claims against Mr. Quigley, Ms. Lashway, and Mr. Aguirre in either their personal or official capacities.

Finally, the court also grants Defendants’ motiоn to dismiss Mr. Iceberg‘s claim under Section 1983 for religious discrimination against Ms. Martin and Ms. Wilson in their personal capacities. Mr. Iceberg‘s allegations concerning his claim for religious discrimination include that (1) he is a Christian Scientist, (2) his sincerely held religious beliefs in Christian Science are incompatible with psychology and psychiatry, (3) between October 2014, and July 2015, he repeatedly asked Ms. Wilson if he could receive services from DVR without being required to meet with a psychologist, (4) Defendants failed to respond to his request, and (5) Ms. Wilson stated that Christian Science was not really Mr. Iceberg‘s religion. (See TAC at 5.) Although Mr. Iceberg makes specific reference to Ms. Wilson, he makes no specific factuаl allegations against Ms. Martin concerning any violation of his religious rights. (See generally TAC.) for this reason, the court concludes that Mr. Iceberg has failed to allege “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face‘” with respect to his claim for religious discrimination against Ms. Martin. See Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). On this basis, the court grants Defendants’ motion to dismiss this claim against Ms. Martin.

Further, none of Mr. Iceberg‘s allegations concerning religious discrimination address whether the alleged discrimination was intentional. See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (“To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or рurpose to discriminate against the plaintiff based upon membership in a protected class.“) (citation and internal quotation marks omitted); see also Barren v. Harrington, 152 F.3d 1193, 1195 (9th Cir. 1998) (to state claim under Section 1983, intent or purpose to discriminate based upon membership in protected class must be shown); see also Lewis v. Mitchell, 416 F. Supp. 2d 935, 944 (S.D. Cal. 2005) (“Plaintiff must assert more than negligence to state a valid § 1983 claim for the violation of his Free Exercise rights. Instead, Plaintiff must allege ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍conscious or intentional acts that burden his free exercise of religion.“); Shaheed v. Winston, 885 F. Supp. 861, 868 (E.D. Va. 1995), aff‘d, 161 F.3d 3 (4th Cir. 1998) (holding that negligence did not give rise to a Free Exercise § 1983 claim). Because Mr. Iceberg has failed to allege whether Ms. Wilson, Ms. Martin, or any other Defendant intended to discriminate against him based on his religious bеliefs, his allegations are insufficient to state such a claim under Section 1983. The court, therefore, grants Defendants’ motion to dismiss this claim on this basis as well.

C. Leave to Amend

Prior to filing his response to Defendants’ motion to dismiss, Mr. Iceberg filed a motion for leave to amend his third amended complaint (see generally MFL), to which he attached his proposed fourth amended complaint (see Prop. 4th Am. Compl.). Even if Mr. Iceberg had not filed his motion, the court would consider whether granting leave to amend his third amended complaint is appropriate in these circumstances. The court “should freely give leave [to amend] when justice so requires, Fed. R. Civ. P. 15(a)(2), and should ordinarily grant a pro se planitiff leave to amend unless “it is absolutely clear” that the deficiencies in the complaint cannot be cured. Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). However, as noted above, a plaintiff does not enjoy unlimited opportunities to properly state a claim. See McHenry, 84 F.3d at 1174 (affirming the district court‘s dismissal of the plaintiff‘s third amended complaint without leave to amend when it “restated the prior [complaints] without curing their deficiencies“). When a party repeatedly fails to cure deficiencies, the court may order dismissal without leave to amend. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (affirming dismissal with prejudice where district court had instructed pro se plaintiff regarding deficiencies in prior order dismissing claim with leave to amend). Further, “[t]he district court‘s discretion to deny leave to amend is particularly broad where plaintiff has previously amended the complaint.” Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989).

The court has given Mr. Iceberg several opportunities to amend his complaint. (See Compl.; FAC; SAC; TAC.) Indeed, his proposed fourth amended complaint would represent the fifth iteration of his claims in this litigation. (See Prop. 4th Am. Compl.) In addition, the court has been indulgent in granting Mr. Iceberg‘s requests for extended time to formulate his claims (see 7/19/16 Order) and to respond to Defendants’ motions (see 11/1/16 Order). The court is sympathetic to Mr. Iceberg‘s personal circumstances (see id. at 3-4), but he has not been able to properly allege his federal claims in this litigation, and his proposed fourth amended complaint does not resolvе the issues raised by Defendants’ motion to dismiss or this order. Accordingly, the court denies Mr. Iceberg‘s motion for leave to amend to file a fourth amended complaint, and dismisses Mr. Iceberg‘s federal claims without leave to amend them. See Leadsinger, Inc. v. BMG Music, 512 F.3d 522, 532 (9th Cir. 2008) (denying leave to amend because of “repeated failure to cure deficiencies“).

D. State Law Claims and Supplemental Jurisdiction

Defendants also ask the court to decline supplemental jurisdiction over Mr. Iceberg‘s state law claims. (MTD at 12-13.) The supplemental jurisdiction statute provides that where the district court has original jurisdiction over a civil action, the district court “shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A district court may, however, decline to exercise supplemental jurisdiction over a claim if the district court has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). Here, the court has dismissed all of Mr. Iceberg‘s federal claims, see supra § III.B., which provided the basis for the court‘s exercise of subject matter jurisdiction in this matter, see 28 U.S.C. § 1331.

“The decision whether to continue to exercise supplemental jurisdiction over state law claims after all federal claims have been dismissed lies within the district court‘s discretion.” Foster v. Wilson, 504 F.3d 1046, 1051 (9th Cir. 2007). “[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state-law claims.” Acri v. Varian Assoc., Inc., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)).

Although this litigation has been pending since early August 2015, it is still in its earliest stages. Indeed, due in large part to the number of amended complaints Mr. Iceberg has filed, the litigation has not proceeded past the pleading stage. Thus, the court has not invested substantial judicial resources in the resolution of this dispute. Further, the parties have engaged in limited, if any, discovery concerning Plaintiffs’ state law claims. (See generally MPO.) With the court‘s dismissal of Mr. Iceberg‘s federal claims, this matter consists solely of state law issues and claims. Thus, economy of resources and comity favor declining the exercise of suрplemental jurisdiction. Finally, Mr. Iceberg identified no undue inconvenience or prejudice that he will suffer if the court declines supplemental jurisdiction and he must pursue his state law claims in the local state court. (See MTD Resp. at 9.) Accordingly, pursuant to 28 U.S.C. § 1367(c)(3), the court declines to exercise supplemental jurisdiction over Mr. Iceberg‘s state law claims. The court, therefore, dismisses those claims without prejudice.

E. Remaining Motions

Because the court has dismissed Mr. Iceberg‘s federal claims without leave to amend and has declined to exercise supplemental jurisdiction over his remaining state law claims, Defendants’ motions for a protective order and to extend certain case schedule deadlines are both moot. (See MPO; MFE.) Accordingly, the court denies them.

IV. CONCLUSION

Based on the foregoing analysis, the court GRANTS Defendants’ motion to dismiss (Dkt. # 36) and DISMISSES all of Mr. Iceberg‘s federal claims, including his claims under Title II of the ADA, the Rehabilitation Act, and 42 U.S.C. § 1983. The court also DENIES Mr. Iceberg‘s motion for leave to file a fourth amended complaint (Dkt. # 42), DENIES him leave to amend his federal claims, and DISMISSES those claims WITH PREJUDICE. The court further declines to exercise supplemental jurisdiction over Mr. Iceberg‘s remaining state law claims and DISMISSES those claims WITHOUT PREJUDICE. Finally, the court DENIES Defendants’ remaining motions for a protective order and to extend certain case schedule deadlines (Dkt. ## 43, 54) as moot.

Dated this 27th day of January, 2017.

JAMES L. ROBART

United States District Judge

Notes

No party has requested oral argumеnt on any motion, and the court deems oral argument to be unnecessary. See Local Rule W.D. Wash. LCR 7(b)(4).

The acronym “DSHS/DVR” apparently refers to the Division of Vocational Rehabilitation (“DVR“), which is an agency within the Department of Social and Health Services (“DSHS“). (See Mot. for More Def. Stmt. (Dkt. # 17) at 1.)

Title II of the Americans with Disabilities Act (“ADA“), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act, 42 U.S.C. § 12132, both prohibit discrimination on the basis of disability. The ADA applies only to public entities, whereas the Rehabilitation Act proscribes discrimination in all federally-funded programs. See .

See WLAD, RCW ch. 49.60.

Along with his responsive memorandum, Mr. Iceberg submitted a declaration. (Iceberg Decl. (Dkt. # 51).) With few exceptions, the court may not consider “any material beyond the pleadings” when ruling on a Rule 12(b)(6) motion. (citation and quotation marks omitted). Mr. Iceberg‘s declaration does not fall within any exception to the general rule. See id. Accordingly, the court will not consider Mr. Iceberg‘s declaration when evaluating Defendants’ motion to dismiss.

The court‘s deadline for filing amended pleadings expired on September 21, 2016. (Sched. Ord. (Dkt. # 25) at 1.)

See also (citing ) (“[P]unitive and compensatory damages are not available for ADA retaliation claims. . . . Rather, only prospective equitable relief may be awarded.“)

Mr. Iceberg‘s request for “any and all relief the court may deem proper” (TAC at 7) is insufficient to allege a demand for injunctive relief. See, e.g., (“[Plaintiff‘s] claim for injunctive relief is inadеquately pleaded because it fails to specify the relief she seeks . . . .“). His demand in his proposed fourth amended complaint for “[a]ny and all other remedies provided pursuant to 42 U.S.C. 1983, the ADA, the Rehabilitation Act, and the WLAD” (Prop. 4th Am. Compl. at 16) does not cure this deficiency.

In his proposed fourth amended complaint, Mr. Iceberg alleges that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍he “is a ‘qualified individual with a disability’ as defined in 42 U.S.C. § 12131(2).” (Prop. 4th Am. Compl. at 6.) This proposed amendment to his “disability” allegation is also “formulaic” and constitutes nothing more than a legal conclusion. See . As such, it does not cure the deficiency in Mr. Iceberg‘s third amended complaint.

Mr. Quigley is the former Secretary of DSHS. Under Federal Rule of Civil Procedure 25(d), when a public officer who has been sued in his or her official capacity leaves office, “[t]he officer‘s successor is automatically substituted as a party.” Fed. R. Civ. P. 25(d). Ms. Lashway should therefore be substituted for Mr. Quigley in any event.

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