United States District Court, D. Idaho
RODRICK G. DeROCK, Plaintiff,
BOISE CITY, and ADA COUNTY HOUSING AUTHORITY, Defendant.
MEMORANDUM DECISION AND ORDER
B. LYNN WINMILL, Chief District Judge.
The Ninth Circuit remanded this case after affirming in part and reversing in part the Court's decisions regarding the ten consolidated cases. The Circuit held that the Court did not abuse its discretion in denying leave to amend in nine cases, but only affirmed in part the Court's decisions in a tenth case, DeRock v. Boise City, 1:12-cv-00024-BLW. In that case, the Circuit affirmed the Court's decision to deny leave to amend DeRock's conspiracy claims against defendant Boise City/Ada County Housing Authority.
But the Circuit also held that the Court should have granted leave to amend DeRock's disability discrimination claims against defendant Boise City/Ada County Housing Authority. The Circuit directed this Court to consider that issue and two others on remand:
As a pro se litigant, DeRock should have received notice of any defects in his disability discrimination claims and an opportunity to amend. It appears that DeRock may be attempting to allege that he suffered from a qualifying disability and that the Boise City/Ada County Housing Authority failed to reasonably accommodate that disability when it refused to waive the rent on his therapeutic bedroom. Accordingly, we reverse and remand as to DeRock's disability discrimination action against defendant Boise City/Ada County Housing Authority so that DeRock may receive notice of any defects and an opportunity to amend with the benefit of that notice. On remand, the district court should also consider the merits of DeRock's motion for appointment of counsel, which it previously denied as moot. Moreover, the pre-filing restriction that the district court entered against DeRock was not narrowly tailored to DeRock's vexatious filing of lawsuits regarding his rental dispute and his re-litigation of previously dismissed claims. On remand, the district court may enter another pre-filing order consistent with this disposition.
See DeRock v Sprint-Nextel et al, 2015 WL 1063059 (9th Cir. March 12, 2015).
The Court will now address the three issues remanded to this Court.
Leave To Amend
The Court will grant leave to DeRock to allege that he suffered from a qualifying disability and that the Boise City/Ada County Housing Authority failed to reasonably accommodate that disability when it refused to waive the rent on his therapeutic bedroom. The failure to accommodate a disability might make out a claim under Title II of the Americans with Disabilities Act. The case of O'Guinn v. Lovelock Corr. Ctr ., 502 F.3d 1056, 1060 (9th Cir. 2007) sets forth the elements necessary to plead such a claim. Under that case, DeRock must allege that:
(1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity's services, programs, or activities; (3) he was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of [his] disability.
Id. at 1060. DeRock needs to amend his complaint to allege each of these elements. For example, DeRock needs to identify with specificity his disability. He needs to explain what program he is entitled to receive and how he is being excluded from that program. Finally, he needs to explain how his exclusion is the result of his disability. The Amended Complaint presently on file does not clearly explain these elements and is subject to dismissal unless DeRock's amendment cures that defect.
DeRock may also be seeking to allege a claim under § 504 of the Rehabilitation Act. To make that claim, DeRock must allege that:
(1) he is an individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance.
Id. Once again, DeRock needs to describe his disability and explain what benefits he was denied because of his disability. The Court cannot understand from the current Amended Complaint whether DeRock ...