1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 KIM ELIZABETH HARWELL, Case No.: 2:25-cv-00689-APG-BNW
4 Plaintiff Order Granting in Part Defendants’ Motion to Dismiss and Granting Plaintiff 5 v. Leave to Amend Complaint
6 WESTCARE NEVADA, INC., et. al, ECF No. 15
7 Defendants
9 Pro se plaintiff Kim Harwell was a resident at defendant WestCare Nevada Inc.’s 10 treatment facility and received treatment for her mental health there. After several incidents with 11 a hostile roommate, Harwell reported the roommate’s behavior to WestCare’s staff. Harwell 12 alleges that instead of addressing the incidents, the defendants retaliated against her because of 13 her reports. Harwell brings several claims against WestCare and several of its employees: 14 discrimination under § 504 of the Rehabilitation Act; retaliation under § 504 of the 15 Rehabilitation Act; negligence; a violation of Title II of the Americans with Disabilities Act 16 (ADA); retaliation under Nevada Revised Statutes (NRS) § 651.080; deprivation of rights under 17 42 U.S.C. § 1983; and supervisory negligence under § 1983. Amongst other remedies, she seeks 18 declaratory relief that the defendants violated the Rehabilitation Act, injunctive relief requiring 19 policy changes at WestCare, compensatory damages under the Rehabilitation Act, damages for 20 gross negligence, and attorney’s fees. The defendants move to dismiss or for a more definite 21 statement. 22 I dismiss Harwell’s § 504 discrimination claim against all defendants and § 504 23 retaliation claim against all defendants except Rhonda Davisson while granting Harwell leave to 1 amend. I also dismiss the claims and relief that Harwell concedes should be dismissed. I grant 2 the defendants’ motion for a more definite statement regarding Harwell’s negligence claim and 3 order her to state which specific defendants she sues for negligence. 4 I. BACKGROUND1
5 Harwell is a veteran of the U.S. military diagnosed with service-connected PTSD and 6 anxiety. ECF No. 11 at 2. From July to December 2024, she resided at a residential treatment 7 facility of WestCare, a non-profit that provides mental health treatment. Id. at 3, 7. 8 Harwell shared a room with another WestCare client, Bonnie Manuel. Id. at 4. In 9 November 2024, Manuel hit the wall of their room, yelled at Harwell for keeping a heater on, 10 and said “I am turning this motherfucking heat off.” Id. at 11. Manuel appeared intoxicated to 11 Harwell. Id. This triggered Harwell’s anxiety. Id. Harwell left their room and went to the 12 facility’s front lounge. Id. at 11-12. Manuel followed, confronted, and continued cursing at her 13 which further exacerbated Harwell’s anxiety. Id. at 12. At one point, Manuel charged at Harwell 14 but did not hit her. Id.
15 Harwell reported Manuel’s behavior to defendant Rhonda Davisson, a case manager at 16 the facility. Id. at 4, 12. Harwell told Davisson that she “d[id] not want to go back in the 17 bedroom with [Manuel]” and tried to tell her about the incident. Id. at 12-13. However, 18 Davisson continuously interrupted Harwell, and Harwell did not feel like Davisson got the full 19 story. Id. at 13. Davisson said she would speak to Manuel, and their meeting ended. Id. But 20 Davisson did not move Manuel or Harwell from their room, which kept Harwell’s “body and 21 mind . . . in panic mode.” Id. 22 23
1 All facts are taken from Harwell’s First Amended Complaint. ECF No. 11. 1 A few days later, Harwell reported to Davisson that another of Harwell’s roommates had 2 not flushed her feces in their shared toilet. Id. at 14. Davisson demanded that Harwell clean the 3 toilet, which Harwell felt was in retaliation for her reporting Manuel’s behavior. Id. 4 Later, during the evening of December 3, 2024, Manuel again entered their shared room
5 yelling profanities about her misplaced belongings and started playing music loudly, seemingly 6 intoxicated. Id. This caused Harwell to go into shock. Id. at 15. Harwell then texted Davisson 7 about how Manuel’s behavior was scaring her and about Harwell’s anxiety and PTSD. Id. When 8 Davisson did not respond, Harwell left the room and found defendant Melinda Minor, a 9 WestCare staff member, and another WestCare staff member to intervene. Id. at 4, 15. They told 10 Manuel to stop cursing, but they could not get Manuel to calm down. Id. at 15. Manuel began 11 yelling at Harwell, “fuck her,” “[s]he just want [sic] me to be kicked out,” and “[w]hat are you 12 going to do about it bitch.” Id. at 15. One staff member had to physically step in between 13 Manuel and Harwell. Id. Davisson then entered the room, got Manuel to turn off her music, at 14 which time all WestCare staff members left. Id. at 15-16.
15 Manuel then again yelled at Harwell, who was “[s]till in a state of shock.” Id. at 16. 16 Harwell ran out of the room and told the WestCare staff members, but Davisson dismissed her 17 concern saying that Manuel “was not talking to [Harwell].” Id. Harwell asked if she could go 18 into the facility’s dayroom, and Davisson allowed her to. Id. Soon after, Davisson told Harwell 19 to sleep in the dayroom that night. Id. Harwell did not want to, but Davisson insisted, stating it 20 was “because [Harwell] was more reasonable than [Manuel].” Id. Harwell again felt like she 21 was being retaliated against for reporting Manuel to the WestCare staff. Id. 22 The next few days, Harwell had increased anxiety, PTSD, depression, and hallucinations 23 due to the incident with Manuel. Id. Harwell texted Davisson to ask to meet with defendant Irma 1 Magrdichian, WestCare’s director of residential services, but Davisson did not respond. Id. at 1, 2 17. Harwell went to the emergency room on December 8, 2024 due to her hallucinations and an 3 oncoming panic attack, and she was admitted into the psychiatric ward the next day. Id. at 17-18. 4 After being released from the hospital, she left WestCare’s residential facility. Id. at 18. Prior to
5 the incidents with Manuel, Harwell was successfully managing her mental health through classes 6 and therapy without taking medication. Id. 7 II. DISCUSSION 8 In considering a motion to dismiss, I take all well-pleaded allegations of material fact as 9 true and construe them in a light most favorable to the non-moving party. Kwan v. SanMedica 10 Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017). However, I do not “assume the truth of legal 11 conclusions merely because they are cast in the form of factual allegations.” Navajo Nation v. 12 Dep’t of the Interior, 876 F.3d 1144, 1163 (9th Cir. 2017). 13 To defeat a motion to dismiss, a plaintiff must make sufficient factual allegations to 14 establish a plausible entitlement to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).
15 Such allegations must amount to “more than labels and conclusions, [or] a formulaic recitation of 16 the elements of a cause of action.” Id. at 555. Instead, the complaint must include “a short and 17 plain statement of the claim” that shows the plaintiff “is entitled to relief” and gives the 18 defendants “fair notice of what the claim is and the grounds upon which it rests.” Id. at 555 19 (simplified). I construe pro se pleadings liberally. Draper v. Rosario, 836 F.3d 1072, 1080 (9th 20 Cir. 2016). 21 / / / / 22 / / / / 23 / / / / 1 A. I do not consider Harwell’s response to the defendants’ reply in support of their 2 motion to dismiss. 3 After the defendants filed their reply in support of their motion to dismiss, Harwell filed a 4 second response to address the points raised in the defendants’ reply. ECF No. 21. She did not
5 move for leave to file a surreply. “Surreplies are not permitted without leave of court; motions 6 for leave to file a surreply are discouraged.” LR 7-2(b). Accordingly, I will not consider 7 Harwell’s response to the defendants’ reply. 8 B. I dismiss Harwell’s claims that she consented to be dismissed. 9 Harwell consents to dismissing several of her causes of action and claims for relief. The 10 defendants moved to dismiss Harwell’s claims under Title II of the ADA, for deprivation of 11 rights under § 1983, for supervisory negligence under § 1983, and under Monell (to the extent 12 she raises such claim2) because those claims are only available against public entities and state 13 actors. WestCare is a non-profit, private organization. ECF No. 11 at 3. The defendants also 14 moved to dismiss Harwell’s claim under NRS § 651.080 because that is a criminal statute that
15 does not provide a private right of action. In her response to the motion to dismiss, Harwell 16 “withdr[ew]” all of these claims. ECF No. 17 at 2. Therefore, I dismiss them. 17 The defendants also move to dismiss Harwell’s request for attorney’s fees because she is 18 proceeding pro se, and her request for compensatory damages for gross negligence because she 19 only alleges negligence in her complaint. Harwell also withdrew these requests in her response, 20 so I dismiss them as well. 21 22
23 2 Harwell cites to Monell v. Department of Social Services, 436 U.S. 658 (1978) in her ADA claim in her complaint. ECF No. 11 at 5. 1 Finally, the defendants argue that Harwell has not set forth the basis to receive 2 declaratory or injunctive relief under the Rehabilitation Act. Harwell responded that she “does 3 not seek injunctive or declaratory relief under the . . . Rehabilitation Act.” ECF No. 17 at 10. 4 Therefore, I will dismiss her request for such relief in her complaint.
5 C. I dismiss Harwell’s claim for discrimination under § 504 the Rehabilitation Act but 6 give her leave to amend. 7 The defendants argue that Harwell has failed to state a claim for discrimination under 8 § 504 of the Rehabilitation Act because she has not alleged facts that any discrimination she 9 faced was solely because of her disability. They also argue that the complaint is not clear which 10 defendant is being sued for discrimination.3 Harwell responds that the defendants discriminated 11 against her by denying her access to grievance procedures after Manuel triggered her panic 12 attacks, forcing her to clean the toilet after her roommate used it, and forcing her to sleep in the 13 dayroom. 14 Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified individual with
15 a disability . . . shall, solely by reason of her or his disability, be excluded from the participation 16 in, be denied the benefits of, or be subjected to discrimination under any program or activity 17 receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). To state a discrimination claim 18 under this section, “a plaintiff must show: (1) [s]he is an individual with a disability; (2) [s]he is 19 otherwise qualified to receive the benefit; (3) [s]he was denied the benefits of the program solely 20 by reason of [her] disability; and (4) the program receives federal financial assistance.” 21 Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) (simplified). 22
23 3 Harwell’s complaint did not identify which named defendants were being sued under which claims. 1 The defendants do not contest that Harwell’s anxiety and PTSD diagnoses constitute a disability 2 nor that they receive federal financial assistance. 3 When there is another, non-disability reason why a plaintiff was denied the benefit of a 4 program, her disability is not the sole reason for denial. See id. at 979. In Weinreich, a disabled
5 plaintiff raised a § 504 discrimination claim after he was denied access to a public 6 transportation’s reduced fare program designed for disabled individuals. Id. at 978. The 7 defendants refused to renew his eligibility for the program because he did not provide updated 8 medical information recertifying his disability, which he failed to do because he could not afford 9 to pay a doctor to recertify his disability. Id. The Ninth Circuit found that the plaintiff’s 10 “financial circumstances, not [ ] his medical disability,” caused his exclusion from the reduced 11 fare program and thus his disability was not the sole reason for his exclusion. Id. at 979. 12 Similarly here, there are either non-disability reasons for the alleged discrimination 13 Harwell faced, or Harwell does not allege any reason at all why she faced the discrimination. 14 Harwell first alleges she was discriminated against when she was denied access to grievance
15 procedures after Manuel triggered her panic attacks. It is unclear what grievance procedures 16 Harwell refers to because she does not allege that WestCare had a formal complaint process for 17 residents or that she asked to submit a formal grievance. She alleges that she “felt unheard” 18 when explaining the November Manuel incident to Davisson and that Davisson did not respond 19 when Harwell texted Davisson asking to speak to WestCare’s director of residential services 20 during the December Manuel incident. ECF No. 11 at 13. Assuming Harwell refers to these 21 incidents, she does not allege any reason why Davisson kept interrupting Harwell during their 22 meeting about the November Manuel incident, why Davisson did not respond to Harwell’s text, 23 or why any WestCare employees did not offer Harwell the opportunity to submit a formal 1 grievance. Because she does not allege these actions were solely because of her disability, this 2 fails to state a claim for discrimination under § 504. 3 Harwell also alleges that she was discriminated against when Davisson forced her to 4 clean the toilet and when she had to sleep in the public dayroom. But she does not allege the
5 defendants forced her to do so because of her PTSD or anxiety. In fact, she alleges she felt like 6 both actions were retaliation for reporting Manuel. Because Harwell has not alleged that she was 7 forced to clean the toilet or sleep in the dayroom solely because of her disability, and in fact 8 alleges it was because of retaliation, she fails to state a § 504 discrimination claim. Therefore, I 9 dismiss Harwell’s discrimination claim under § 504 of the Rehabilitation Act. 10 D. I dismiss Harwell’s claim for retaliation under § 504 of the Rehabilitation Act 11 against most but not all of the defendants. 12 The defendants argue that Harwell has failed to state a claim for retaliation under the 13 Rehabilitation Act because she has not alleged she participated in any protected activity or 14 suffered an adverse action. They also argue that the complaint is not clear which defendants that
15 Harwell brings this claim against. 16 Under § 504 of the Rehabilitation Act, a retaliation claim “requires a plaintiff to 17 show: (1) involvement in a protected activity, (2) an adverse . . . action and (3) a causal link 18 between the two.” Coons v. Secretary of U.S. Dep’t of Treasury, 383 F.3d 879, 887 (9th Cir. 19 2004) (simplified); see also Davis v. Clark Cnty. Sch. Dist., No. 2:11-cv-01896-KJD-NJK, 2013 20 WL 497598, at *3 (D. Nev. Feb. 6, 2013) (analyzing a Rehabilitation Act retaliation claim in a 21 non-employment context). The Rehabilitation Act protects “any individual who has been 22 intimidated, threatened, coerced, or discriminated against for the purpose of interfering with 23 protected rights under . . . the Rehabilitation Act.” Barker v. Riverside Cnty. Off. of Educ., 584 1 F.3d 821, 825 (9th Cir. 2009) (simplified); Golden v Mayorkas, No. 24-6209, 2025 WL 2 2955227, at *1 (9th Cir. Oct. 20, 2025) (protected activity includes “assertion of [one’s] rights 3 under the Rehabilitation Act”). A plaintiff asking for “reasonable accommodations for [her] 4 alleged disability” is protected activity. Coons, 383 F.3d at 883, 887 (concluding the plaintiff
5 engaged in protected activity by requesting reasonable accommodations through his doctor that 6 the plaintiff not have to “excessive[ly] travel” for work); Weixel v. Board of Educ. of City of 7 N.Y., 287 F.3d 138, 142, 149 (2d Cir. 2002) (concluding the plaintiffs had engaged in protected 8 activity by seeking reasonable accommodations at school, including that the plaintiff’s disabled 9 daughter not have to climb stairs to attend class and that she be allowed to lie down at school if 10 she felt sick). An adverse action is “any action reasonably likely to deter [the plaintiff or others] 11 from engaging in protected activity.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 850 (9th Cir. 12 2004) (simplified) (interpreting “adverse action” for a retaliation claim under the Americans with 13 Disabilities Act (ADA)4). 14 Harwell alleges the defendants retaliated against her by forcing her to clean the toilet
15 after she engaged in protected activity by reporting Manuel’s behavior after the November 16 incident. But even construing her complaint liberally, this is not a plausible allegation of a 17 protected activity. Harwell told Davisson that she “d[id] not want to go back in the bedroom 18 with [Manuel].” ECF No. 11 at 12-13. But she does not allege that she cited her mental health 19 diagnoses as the reason for this request, so Harwell fails to plausibly allege she asked for a 20 reasonable accommodation for her disabilities. See id. Harwell does not cite to any law 21
22 4 In the Ninth Circuit, “courts have applied the same analysis to claims brought under both” the Rehabilitation Act and the ADA, “[b]ecause the ADA was modeled on section 504 of the 23 Rehabilitation Act.” Boose v. Tri-County Metro. Transp. Dist. of Or., 587 F.3d 997, 1001 n.5 (9th Cir. 2009) (quotation omitted). 1 otherwise holding that complaining about a roommate’s behavior in a treatment facility is 2 asserting one’s rights under the Rehabilitation Act. 3 Harwell also alleges she engaged in a protected activity when she reported Manuel’s 4 behavior after the December incident. Here, she plausibly alleges she asked for a reasonable
5 accommodation for her disability. She cited to her mental health diagnoses when texting 6 Davisson about how Manuel’s behavior was scaring her. She then asked Davisson if she could 7 go into the dayroom and away from Manuel. This is a plausible allegation of a reasonable 8 accommodation for her disability, to have space away from the person triggering her PTSD and 9 anxiety. Later, Davisson told Harwell to sleep in the dayroom that night over Harwell’s 10 objections, a plausible allegation of an action that is reasonably likely to deter Harwell from 11 asking for reasonable accommodations in the future. 12 Harwell has not explicitly stated which named defendants she is suing for retaliation. But 13 construing her complaint liberally, she has stated a claim for retaliation against Davisson for 14 forcing her to sleep in the dayroom after the December incident with Manuel. Therefore, I
15 dismiss her § 504 retaliation claim against WestCare, Irma Magrdichian, Leo Magrdichian, and 16 Minor, but I do not dismiss the claim against Davisson. 17 The defendants also argue that compensatory damages are not available for Harwell’s 18 § 504 retaliation claim because she has not shown they acted with discriminatory intent. 19 Because Harwell concedes she no longer seeks declaratory or injunctive relief under the 20 Rehabilitation Act, compensatory damages is the only remaining remedy she pursues for this 21 claim. The Ninth Circuit has stated that “compensatory damages are not available under . . . 22 § 504 absent a showing of discriminatory intent.” Ferguson v. City of Phoenix, 157 F.3d 668, 23 674 (9th Cir. 1998). But Ferguson and the other Ninth Circuit cases cited by the defendants 1 apply this standard only to § 504 claims of discrimination, not retaliation. See, e.g., id. at 670; 2 Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001); Lovell v. Chandler, 303 F.3d 3 1039, 1052, 1056 (9th Cir. 2002); Bax v. Doctors Med. Ctr. of Modesto, Inc., 52 F.4th 858, 864, 4 866 (9th Cir. 2022). Additionally, there is a split among district courts in the Ninth Circuit on
5 whether compensatory damages are available for § 504 retaliation claims, which the defendants 6 do not raise. Caldwell v. Del Toro, No. C19-6095 BHS, 2022 WL 1719132, at *1 (W.D. Wash. 7 May 27, 2022) (citing cases); Walker v. City of Pocatello, No. 4:15-cv-00498-BLW, 2020 WL 8 4043487, at *1, 3 (D. Idaho July 16, 2020). Because the defendants have not adequately 9 addressed the availability of compensatory damages for Harwell’s § 504 retaliation claim, I 10 decline to dismiss her request for damages at this time. The defendants may re-raise this 11 argument in a subsequent motion to dismiss after Harwell files an amended complaint or after 12 the deadline for her to do so passes. If the defendants choose to re-raise this argument, they must 13 analyze whether the Rehabilitation Act makes compensatory damages available for retaliation 14 claims and whether Ferguson set forth the correct standard to determine their availability.5
15 E. I do not dismiss Harwell’s negligence claim but order her to state which defendants 16 she sues for negligence. 17 Under Nevada law, a negligence claim “requires that the plaintiff satisfy four elements: 18 (1) an existing duty of care, (2) breach, (3) legal causation, and (4) damages.” Turner v. 19
20 5 In its reply in support of its motion to dismiss, the defendants argue for the first time that Harwell’s damages are “essentially for emotional distress,” which are unavailable for civil 21 claims under the Rehabilitation Act. ECF No. 19 at 11 (citing Cummings v. Premier Rehab Keller, PLLC, 596 U.S. 212 (2022)). Raising new arguments in a reply brief is improper because 22 it deprives the opposing party of “an opportunity to respond.” Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1273 n.3 (9th Cir. 1993); Carstarphen v. Milsner, 594 F. Supp. 2d 1201, 1204 n.1 (D. Nev. 23 2009). Accordingly, I “need not consider arguments raised for the first time in a reply brief,” and I do not do so here. Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007). 1 Mandalay Sports Ent., LLC, 180 P.3d 1172, 1175 (Nev. 2008) (en banc). “A duty is defined as 2 an obligation, to which the law will give recognition and effect, to comport to a particular 3 standard of conduct toward another.” Merluzzi v. Larson, 610 P.2d 739, 742 (Nev. 1980), 4 overruled in part on other grounds by Smith v. Clough, 796 P.2d 592 (Nev. 1990). “The
5 question of whether the defendant owes the plaintiff a duty of care is a question of law.” Sparks 6 v. Alpha Tau Omega Fraternity, Inc., 255 P.3d 238, 244 (Nev. 2011) (simplified). 7 Read liberally, Harwell’s complaint plausibly states a claim for negligence. Generally, 8 she alleges that “[d]efendants owed [Harwell] a duty of reasonable care” and that WestCare 9 owed her a duty “to protect her, as a disabled resident, from foreseeable harm.” ECF Nos. 11 at 10 6; 17 at 8. She also alleges that Davisson and the WestCare staff “failed to provide [her] a safe 11 and hostile-free environment from another client.” ECF No. 11 at 11. The defendants have not 12 addressed whether a residential behavioral health facility owes a duty to protect a resident from 13 another resident. Construing Harwell’s complaint liberally, she plausibly alleges that some 14 defendants owed her a duty to protect her from other residents who foreseeably could cause her
15 harm. She further alleges that the defendants breached this duty by failing to properly intervene 16 during and after the November and December incidents with Manuel. Finally, she alleges this 17 caused her to be hospitalized due to exacerbating her anxiety and PTSD, a cognizable harm.6 18 Thus, she has sufficiently stated a claim for negligence, and I deny the defendants’ motion to 19 dismiss the claim. 20
21 6 The defendants argue Manuel’s conduct, though rude, does not impose liability on them for negligence because “persons must necessarily be expected and required to be hardened . . . to 22 occasional acts that are definitely inconsiderate and unkind.” ECF No. 15 at 7-8 (quoting Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998). But Maduike cites that standard 23 for an intentional infliction of emotional distress claim and is thus inapplicable to Harwell’s negligence claim. 1 However, the complaint is unclear about which defendants Harwell is suing for 2 negligence. In different parts of her complaint, she alleges that the “[d]efendants,” WestCare, 3 Davisson, or unnamed WestCare staff had or breached a duty to her. ECF No. 11 at 6, 11. The 4 defendants move for a more definitive statement under Federal Rule of Civil Procedure (FRCP)
5 12(e) to identify the “who, what and where” of each cause of action. ECF No. 15 at 15. “A party 6 may move for a more definite statement of a pleading to which a responsive pleading is allowed 7 but which is so vague or ambiguous that the party cannot reasonably prepare a response.” FRCP 8 12(e). “The rule is aimed at unintelligibility rather than lack of detail and is only appropriate 9 when the defendant cannot understand the substance of the claim asserted.” Underwood v. 10 O’Reilly Auto Parts, Inc., 671 F. Supp. 3d 1180, 1188 (D. Nev. 2023) (simplified). Because the 11 defendants do not substantively know which defendants Harwell brings her negligence claim 12 against, I grant their motion for a more definite statement. Harwell must file an amended 13 complaint stating which specific defendants she is suing for negligence. If she does not do so, I 14 will dismiss the negligence claim. See FRCP 12(e).
15 F. I warn the parties against citing non-existent caselaw in their filings. 16 It appears that Harwell used generative AI software to prepare her complaint as she cites 17 a non-existent case in support of her negligence claim. Specifically, she states the following: 18 “See Estate of Saila v. Circle K Corp., 135 Nev. 545, 552, 353 P.3d 541, 546 (Nev. Ct. App. 19 2019) (imposing liability for systemic failures to protect vulnerable individuals).” ECF No. 11 at 20 6. The citation 135 Nev. 545 goes to State of Nevada v. Inzunza, 135 Nev. 513, 454 P.3d 727 21 (Nev. 2019). The citation 353 P.3d 541 goes to Dutton v. City of Midwest City, 353 P.3d 532 22 (Okla. 2015). I could not find a case titled Estate of Saila v. Circle K Corp. 23 1 When a party presents a filing to a court, such as a motion, the party certifies “that to the 2 best of the [party’s] knowledge, information and belief, formed after an inquiry reasonable under 3 the circumstances . . . the claims, defenses, and other legal contentions are warranted by existing 4 law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for
5 establishing new law.” FRCP 11(b)(2). This imposes an “affirmative duty of investigation . . . as 6 to law . . . before motions are filed.” Golden Eagle Distrib. Corp., v. Burroughs Corp., 801 F.2d 7 1531, 1536 (9th Cir. 1986). This extends to attorneys and pro se litigants alike. FRCP 11(b). 8 There has been a rise in fake authority cited in briefs, usually as the result of using 9 generative AI software, like ChatGPT, to draft pleadings or other court filings. Johnson v. MINI 10 of Las Vegas, No. 2:25-cv-00725-APG-EJY, 2025 WL 2718525, at *3 (D. Nev. Sept. 24, 2025). 11 Generative AI often invents fake cases and legal precedent in its drafting, and using it is no 12 excuse to not verify the veracity of citations. Having to research fake authority and spend time 13 chasing down that it is in fact not a real case wastes the time and resources of opposing parties 14 and the court. Going forward, the parties are reminded of their duty under FRCP 11(b)(2) and
15 that citing fake cases drafted by generative AI may violate this rule. Failure to comply in the 16 future may result in sanctions, such as an order to pay a penalty into court or to the other side, or 17 nonmonetary directives. FRCP 11(c)(4). 18 III. LEAVE TO AMEND COMPLAINT 19 I should freely give leave to amend a complaint “if it appears at all possible that the 20 plaintiff can correct the defect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quotation 21 omitted). This rule favoring liberality in amendments to pleadings is particularly important for 22 pro se litigants like Harwell. Id. at 1131. Because it is not clear that amendment would be futile, 23 I grant leave to Harwell to amend her complaint. She may amend her discrimination claim under the Rehabilitation Act, her retaliation claim under the Rehabilitation Act, and her negligence claim to address the defects I noted above, including the need to identify which defendants she is suing for each claim. She is not given leave to add any additional claims. CONCLUSION 5 I THEREFORE ORDER that the defendants’ motion to dismiss and for a more definite 6|| statement (ECF No. 15) is GRANTED in part. I dismiss Harwell’s § 504 discrimination claim 7|| against all defendants and dismiss her § 504 retaliation claim against WestCare, Irma 8]| Magrdichian, Leo Magrdichian, and Melinda Minor. 9 I FURTHER ORDER that plaintiff Harwell may file an amended complaint asserting her 10}| § 504 discrimination, § 504 retaliation, and negligence claims and specifically stating which defendants she is suing for negligence by April 3, 2026. Failure to file an amended complaint by 12}| that date will result in only her § 504 retaliation claim against defendant Rhonda Davisson 13]| proceeding. 14 DATED this 6th day of March, 2026. 15 G7 ANDREWP.GORDON. 7 CHIEF UNITED STATES DISTRICT JUDGE
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