Rose Karam v. University of Arizona ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROSE ANN KARAM, No. 22-15332
Plaintiff-Appellant,
D.C. No. 4:18-cv-00455-RCC
v.
UNIVERSITY OF ARIZONA; SOUTHERN MEMORANDUM*
ARIZONA VETERANS
ADMINISTRATION HEALTH CARE
SYSTEM; UNITED STATES AIR FORCE,
Davis Monthan Air Force Base; ARIZONA
BOARD OF REGENTS; BANNER
UNIVERSITY MEDICAL CENTER;
GENOA HEALTHCARE,
Defendants-Appellees,
and
DAVID LAMB; et al.,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, District Judge, Presiding
Submitted February 14, 2023**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: FERNANDEZ, FRIEDLAND, and H.A. THOMAS, Circuit Judges.
Rose Ann Karam appeals pro se from the district court’s judgment
dismissing her action alleging federal claims under section 504 of the
Rehabilitation Act (“RA”) and Title II of the Americans with Disabilities Act
(“ADA”) and state law claims arising from her time as a pharmacy student at the
University of Arizona. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Puri v. Khalsa, 844 F.3d 1152, 1157 (9th Cir. 2017) (dismissal for failure
to state a claim); Wong v. Regents of Univ. of Cal., 192 F.3d 807, 817 (9th Cir.
1999) (grant of summary judgment). We affirm.
The district court properly dismissed Karam’s state law claims because
Karam failed to allege facts sufficient to state a plausible claim. See Ashcroft v.
Iqbal, 556 U.S. 662, 678, 681 (2009) (a claim has facial plausibility when the
plaintiff pleads factual content allowing the reasonable inference that a defendant
is liable for the misconduct alleged; conclusory allegations are not entitled to the
presumption of truth); Huey v. Honeywell, Inc., 82 F.3d 327, 333 (9th Cir. 1997)
(setting forth the elements for a claim of intentional infliction of emotional distress
under Arizona law); Wells Fargo Bank v. Ariz. Laborers, Teamsters & Cement
Masons Loc. No. 395 Pension Tr. Fund, 38 P.3d 12, 36 (Ariz. 2002) (setting forth
the elements of civil conspiracy under Arizona law).
The district court properly dismissed Karam’s disability discrimination and
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retaliation claims against Southern Arizona Veterans Administration Health Care
System, United States Air Force, Davis Monthan Air Force Base, Banner
University Medical Center, and Genoa Healthcare because Karam failed to allege
facts sufficient to state a plausible claim. See T.B. ex rel Brenneise v. San Diego
Unified Sch. Dist., 806 F.3d 451, 473 (9th Cir. 2015) (elements of a retaliation
claim under the ADA); Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1045
(9th Cir. 1999) (elements of a prima facie case under Title II of the ADA or the
RA). The district court did not abuse its discretion in denying Karam leave to
amend these claims. See Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th
Cir. 2004) (“Where the plaintiff has previously filed an amended complaint … the
district court’s discretion to deny leave to amend is particularly broad.” (citation
and internal quotation marks omitted)).
The district court properly granted summary judgment on Karam’s disability
discrimination claim against the Arizona Board of Regents because Karam failed
to raise a genuine dispute of material fact as to whether she was excluded from
participation in, or denied the benefits of, her educational program because of her
disability. See Zukle, 166 F.3d at 1045.
The district court properly granted summary judgment on Karam’s
retaliation claim against the Arizona Board of Regents because Karam failed to
raise a genuine dispute of material fact as to whether any adverse action occurred
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because of protected activity. See Brenneise, 806 F.3d at 473 (setting forth the
elements of a retaliation claim under the ADA and explaining that the “more
stringent test” of but-for causation applies to such claims).
The district court did not abuse its discretion in denying Karam’s motion
relating to the preservation of emails because Karam failed to show she was
prejudiced by the lack of such discovery. See Michelman v. Lincoln Nat. Life Ins.
Co., 685 F.3d 887, 892 (9th Cir. 2012) (setting forth standard of review and stating
that “[a] district court abuses its discretion only if the party requesting a
continuance can show that allowing additional discovery would have precluded
summary judgment”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. Padgett v. Wright, 587 F.3d 983, 985 n. 2 (9th Cir. 2009).
Karam’s motion to file a supplemental opening brief (Docket Entry No. 27)
is granted. The Clerk will file the supplemental opening brief received on October
17, 2022. Karam’s motions for an extension of time to file reply brief and motion
to file reply brief (Docket Entry Nos. 50, 51, and 59) are granted. The Clerk will
file the reply briefs received at Docket Entry Nos. 53, 54, 55, and 60.
All other pending motions are denied.
AFFIRMED.
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