Harwell v. WestCare Nevada, Inc., No. 2:25-cv-00689-APG-BNW (Mar. 6, 2026)

Case details
Full caption
Kim Elizabeth Harwell v. WestCare Nevada, Inc.
Country
United States
Jurisdiction
Nevada (NV)
Court
Nevada Supreme Court
Decided
Mar. 6, 2026
Majority
Andrew P. Gordon (C. J.) (unanimous Court)
KIM ELIZABETH HARWELL, Plaintiff v. WESTCARE NEVADA,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 658913Only the Westlaw citation is currently available.United States District Court, D. Nevada.KIM ELIZABETH HARWELL, Plaintiffv.WESTCARE NEVADA,INC., et. al, DefendantsCase No. 2:25-cv-00689-APG-BNW|Filed 03/06/2026ECF No. 15Attorneys and Law FirmsKim Elizabeth Harwell, Las Vegas, NV, Pro Se.Mari Schaan, Brittany Woodman, Hall Prangle, LLC, LasVegas, NV, for Defendants.Order Granting in Part Defendants’ Motion to Dismissand Granting Plaintiff Leave to Amend ComplaintANDREW P. GORDON CHIEF UNITED STATESDISTRICT JUDGE*1 Pro se plaintiff Kim Harwell was a resident at defendantWestCare Nevada Inc.’s treatment facility and receivedtreatment for her mental health there. After several incidentswith a hostile roommate, Harwell reported the roommate'sbehavior to WestCare's staff. Harwell alleges that insteadof addressing the incidents, the defendants retaliated againsther because of her reports. Harwell brings several claimsagainst WestCare and several of its employees: discriminationunder § 504 of the Rehabilitation Act; retaliation under§ 504 of the Rehabilitation Act; negligence; a violationof Title II of the Americans with Disabilities Act (ADA);retaliation under Nevada Revised Statutes (NRS) § 651.080;deprivation of rights under 42 U.S.C. § 1983; and supervisorynegligence under § 1983. Amongst other remedies, sheseeks declaratory relief that the defendants violated theRehabilitation Act, injunctive relief requiring policy changesat WestCare, compensatory damages under the RehabilitationAct, damages for gross negligence, and attorney's fees. Thedefendants move to dismiss or for a more definite statement.I dismiss Harwell's § 504 discrimination claim against alldefendants and § 504 retaliation claim against all defendantsexcept Rhonda Davisson while granting Harwell leave toamend. I also dismiss the claims and relief that Harwellconcedes should be dismissed. I grant the defendants’ motionfor a more definite statement regarding Harwell's negligenceclaim and order her to state which specific defendants she suesfor negligence.I. BACKGROUND1Harwell is a veteran of the U.S. military diagnosed withservice-connected PTSD and anxiety. ECF No. 11 at 2. FromJuly to December 2024, she resided at a residential treatmentfacility of WestCare, a non-profit that provides mental healthtreatment. Id. at 3, 7.Harwell shared a room with another WestCare client, BonnieManuel. Id. at 4. In November 2024, Manuel hit the wall oftheir room, yelled at Harwell for keeping a heater on, and said“I am turning this motherfucking heat off.” Id. at 11. Manuelappeared intoxicated to Harwell. Id. This triggered Harwell'sanxiety. Id. Harwell left their room and went to the facility'sfront lounge. Id. at 11-12. Manuel followed, confronted, andcontinued cursing at her which further exacerbated Harwell'sanxiety. Id. at 12. At one point, Manuel charged at Harwellbut did not hit her. Id.Harwell reported Manuel's behavior to defendant RhondaDavisson, a case manager at the facility. Id. at 4, 12.Harwell told Davisson that she “d[id] not want to go backin the bedroom with [Manuel]” and tried to tell her aboutthe incident. Id. at 12-13. However, Davisson continuouslyinterrupted Harwell, and Harwell did not feel like Davissongot the full story. Id. at 13. Davisson said she would speakto Manuel, and their meeting ended. Id. But Davisson didnot move Manuel or Harwell from their room, which keptHarwell's “body and mind ... in panic mode.” Id.*2 A few days later, Harwell reported to Davisson thatanother of Harwell's roommates had not flushed her feces intheir shared toilet. Id. at 14. Davisson demanded that Harwellclean the toilet, which Harwell felt was in retaliation for herreporting Manuel's behavior. Id.Later, during the evening of December 3, 2024, Manuelagain entered their shared room yelling profanities abouther misplaced belongings and started playing music loudly,
KIM ELIZABETH HARWELL, Plaintiff v. WESTCARE NEVADA,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.2seemingly intoxicated. Id. This caused Harwell to go intoshock. Id. at 15. Harwell then texted Davisson about howManuel's behavior was scaring her and about Harwell'sanxiety and PTSD. Id. When Davisson did not respond,Harwell left the room and found defendant Melinda Minor, aWestCare staff member, and another WestCare staff memberto intervene. Id. at 4, 15. They told Manuel to stop cursing,but they could not get Manuel to calm down. Id. at 15. Manuelbegan yelling at Harwell, “fuck her,” “[s]he just want [sic]me to be kicked out,” and “[w]hat are you going to do aboutit bitch.” Id. at 15. One staff member had to physically stepin between Manuel and Harwell. Id. Davisson then enteredthe room, got Manuel to turn off her music, at which time allWestCare staff members left. Id. at 15-16.Manuel then again yelled at Harwell, who was “[s]till in astate of shock.” Id. at 16. Harwell ran out of the room andtold the WestCare staff members, but Davisson dismissed herconcern saying that Manuel “was not talking to [Harwell].”Id. Harwell asked if she could go into the facility's dayroom,and Davisson allowed her to. Id. Soon after, Davisson toldHarwell to sleep in the dayroom that night. Id. Harwell didnot want to, but Davisson insisted, stating it was “because[Harwell] was more reasonable than [Manuel].” Id. Harwellagain felt like she was being retaliated against for reportingManuel to the WestCare staff. Id.The next few days, Harwell had increased anxiety, PTSD,depression, and hallucinations due to the incident withManuel. Id. Harwell texted Davisson to ask to meetwith defendant Irma Magrdichian, WestCare's director ofresidential services, but Davisson did not respond. Id. at 1,17. Harwell went to the emergency room on December 8,2024 due to her hallucinations and an oncoming panic attack,and she was admitted into the psychiatric ward the next day.Id. at 17-18. After being released from the hospital, she leftWestCare's residential facility. Id. at 18. Prior to the incidentswith Manuel, Harwell was successfully managing her mentalhealth through classes and therapy without taking medication.Id.II. DISCUSSIONIn considering a motion to dismiss, I take all well-pleadedallegations of material fact as true and construe them in a lightmost favorable to the non-moving party. Kwan v. SanMedicaInt'l, 854 F.3d 1088, 1096 (9th Cir. 2017). However, I do not“assume the truth of legal conclusions merely because theyare cast in the form of factual allegations.” Navajo Nation v.Dep't of the Interior, 876 F.3d 1144, 1163 (9th Cir. 2017).To defeat a motion to dismiss, a plaintiff must make sufficientfactual allegations to establish a plausible entitlement torelief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007).Such allegations must amount to “more than labels andconclusions, [or] a formulaic recitation of the elements ofa cause of action.” Id. at 555. Instead, the complaint mustinclude “a short and plain statement of the claim” that showsthe plaintiff “is entitled to relief” and gives the defendants“fair notice of what the claim is and the grounds upon whichit rests.” Id. at 555 (simplified). I construe pro se pleadingsliberally. Draper v. Rosario, 836 F.3d 1072, 1080 (9th Cir.2016).A. I do not consider Harwell's response to thedefendants’ reply in support of their motion to dismiss.*3 After the defendants filed their reply in support of theirmotion to dismiss, Harwell filed a second response to addressthe points raised in the defendants’ reply. ECF No. 21. Shedid not move for leave to file a surreply. “Surreplies are notpermitted without leave of court; motions for leave to file asurreply are discouraged.” LR 7-2(b). Accordingly, I will notconsider Harwell's response to the defendants’ reply.B. I dismiss Harwell's claims that she consented to bedismissed.Harwell consents to dismissing several of her causes ofaction and claims for relief. The defendants moved to dismissHarwell's claims under Title II of the ADA, for deprivationof rights under § 1983, for supervisory negligence under§ 1983, and under Monell (to the extent she raises suchclaim2) because those claims are only available against publicentities and state actors. WestCare is a non-profit, privateorganization. ECF No. 11 at 3. The defendants also movedto dismiss Harwell's claim under NRS § 651.080 becausethat is a criminal statute that does not provide a private rightof action. In her response to the motion to dismiss, Harwell“withdr[ew]” all of these claims. ECF No. 17 at 2. Therefore,I dismiss them.The defendants also move to dismiss Harwell's request forattorney's fees because she is proceeding pro se, and herrequest for compensatory damages for gross negligencebecause she only alleges negligence in her complaint. Harwellalso withdrew these requests in her response, so I dismissthem as well.
KIM ELIZABETH HARWELL, Plaintiff v. WESTCARE NEVADA,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.3Finally, the defendants argue that Harwell has not set forththe basis to receive declaratory or injunctive relief under theRehabilitation Act. Harwell responded that she “does not seekinjunctive or declaratory relief under the ... RehabilitationAct.” ECF No. 17 at 10. Therefore, I will dismiss her requestfor such relief in her complaint.C. I dismiss Harwell's claim for discrimination under §504 the Rehabilitation Act but give her leave to amend.The defendants argue that Harwell has failed to state a claimfor discrimination under § 504 of the Rehabilitation Actbecause she has not alleged facts that any discrimination shefaced was solely because of her disability. They also arguethat the complaint is not clear which defendant is being suedfor discrimination.3 Harwell responds that the defendantsdiscriminated against her by denying her access to grievanceprocedures after Manuel triggered her panic attacks, forcingher to clean the toilet after her roommate used it, and forcingher to sleep in the dayroom.Section 504 of the Rehabilitation Act states that “[n]ootherwise qualified individual with a disability ... shall, solelyby reason of her or his disability, be excluded from theparticipation in, be denied the benefits of, or be subjectedto discrimination under any program or activity receivingFederal financial assistance ....” 29 U.S.C. § 794(a). To statea discrimination claim under this section, “a plaintiff mustshow: (1) [s]he is an individual with a disability; (2) [s]heis otherwise qualified to receive the benefit; (3) [s]he wasdenied the benefits of the program solely by reason of [her]disability; and (4) the program receives federal financialassistance.” Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114F.3d 976, 978 (9th Cir. 1997) (simplified). The defendantsdo not contest that Harwell's anxiety and PTSD diagnosesconstitute a disability nor that they receive federal financialassistance.*4 When there is another, non-disability reason why aplaintiff was denied the benefit of a program, her disabilityis not the sole reason for denial. See id. at 979. In Weinreich,a disabled plaintiff raised a § 504 discrimination claim afterhe was denied access to a public transportation's reduced fareprogram designed for disabled individuals. Id. at 978. Thedefendants refused to renew his eligibility for the programbecause he did not provide updated medical informationrecertifying his disability, which he failed to do because hecould not afford to pay a doctor to recertify his disability.Id. The Ninth Circuit found that the plaintiff's “financialcircumstances, not [ ] his medical disability,” caused hisexclusion from the reduced fare program and thus hisdisability was not the sole reason for his exclusion. Id. at 979.Similarly here, there are either non-disability reasons for thealleged discrimination Harwell faced, or Harwell does notallege any reason at all why she faced the discrimination.Harwell first alleges she was discriminated against whenshe was denied access to grievance procedures after Manueltriggered her panic attacks. It is unclear what grievanceprocedures Harwell refers to because she does not allege thatWestCare had a formal complaint process for residents orthat she asked to submit a formal grievance. She alleges thatshe “felt unheard” when explaining the November Manuelincident to Davisson and that Davisson did not respondwhen Harwell texted Davisson asking to speak to WestCare'sdirector of residential services during the December Manuelincident. ECF No. 11 at 13. Assuming Harwell refers tothese incidents, she does not allege any reason why Davissonkept interrupting Harwell during their meeting about theNovember Manuel incident, why Davisson did not respondto Harwell's text, or why any WestCare employees did notoffer Harwell the opportunity to submit a formal grievance.Because she does not allege these actions were solely becauseof her disability, this fails to state a claim for discriminationunder § 504.Harwell also alleges that she was discriminated against whenDavisson forced her to clean the toilet and when she hadto sleep in the public dayroom. But she does not allegethe defendants forced her to do so because of her PTSD oranxiety. In fact, she alleges she felt like both actions wereretaliation for reporting Manuel. Because Harwell has notalleged that she was forced to clean the toilet or sleep inthe dayroom solely because of her disability, and in factalleges it was because of retaliation, she fails to state a§ 504 discrimination claim. Therefore, I dismiss Harwell'sdiscrimination claim under § 504 of the Rehabilitation Act.D. I dismiss Harwell's claim for retaliation under § 504of the Rehabilitation Act against most but not all of thedefendants.The defendants argue that Harwell has failed to state aclaim for retaliation under the Rehabilitation Act because shehas not alleged she participated in any protected activity orsuffered an adverse action. They also argue that the complaintis not clear which defendants that Harwell brings this claimagainst.
KIM ELIZABETH HARWELL, Plaintiff v. WESTCARE NEVADA,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.4Under § 504 of the Rehabilitation Act, a retaliation claim“requires a plaintiff to show: (1) involvement in a protectedactivity, (2) an adverse ... action and (3) a causal link betweenthe two.” Coons v. Secretary of U.S. Dep't of Treasury, 383F.3d 879, 887 (9th Cir. 2004) (simplified); see also Davis v.Clark Cnty. Sch. Dist., No. 2:11-cv-01896-KJD-NJK, 2013WL 497598, at *3 (D. Nev. Feb. 6, 2013) (analyzing aRehabilitation Act retaliation claim in a non-employmentcontext). The Rehabilitation Act protects “any individual whohas been intimidated, threatened, coerced, or discriminatedagainst for the purpose of interfering with protected rightsunder ... the Rehabilitation Act.” Barker v. Riverside Cnty.Off. of Educ., 584 F.3d 821, 825 (9th Cir. 2009) (simplified);Golden v Mayorkas, No. 24-6209, 2025 WL 2955227, at *1(9th Cir. Oct. 20, 2025) (protected activity includes “assertionof [one's] rights under the Rehabilitation Act”). A plaintiffasking for “reasonable accommodations for [her] allegeddisability” is protected activity. Coons, 383 F.3d at 883, 887(concluding the plaintiff engaged in protected activity byrequesting reasonable accommodations through his doctorthat the plaintiff not have to “excessive[ly] travel” for work);Weixel v. Board of Educ. of City of N.Y., 287 F.3d 138, 142,149 (2d Cir. 2002) (concluding the plaintiffs had engagedin protected activity by seeking reasonable accommodationsat school, including that the plaintiff's disabled daughter nothave to climb stairs to attend class and that she be allowedto lie down at school if she felt sick). An adverse actionis “any action reasonably likely to deter [the plaintiff orothers] from engaging in protected activity.” Pardi v. KaiserFound. Hosps., 389 F.3d 840, 850 (9th Cir. 2004) (simplified)(interpreting “adverse action” for a retaliation claim under theAmericans with Disabilities Act (ADA)4).*5 Harwell alleges the defendants retaliated against her byforcing her to clean the toilet after she engaged in protectedactivity by reporting Manuel's behavior after the Novemberincident. But even construing her complaint liberally, thisis not a plausible allegation of a protected activity. Harwelltold Davisson that she “d[id] not want to go back in thebedroom with [Manuel].” ECF No. 11 at 12-13. But she doesnot allege that she cited her mental health diagnoses as thereason for this request, so Harwell fails to plausibly allegeshe asked for a reasonable accommodation for her disabilities.See id. Harwell does not cite to any law otherwise holdingthat complaining about a roommate's behavior in a treatmentfacility is asserting one's rights under the Rehabilitation Act.Harwell also alleges she engaged in a protected activity whenshe reported Manuel's behavior after the December incident.Here, she plausibly alleges she asked for a reasonableaccommodation for her disability. She cited to her mentalhealth diagnoses when texting Davisson about how Manuel'sbehavior was scaring her. She then asked Davisson if shecould go into the dayroom and away from Manuel. This is aplausible allegation of a reasonable accommodation for herdisability, to have space away from the person triggering herPTSD and anxiety. Later, Davisson told Harwell to sleep inthe dayroom that night over Harwell's objections, a plausibleallegation of an action that is reasonably likely to deterHarwell from asking for reasonable accommodations in thefuture.Harwell has not explicitly stated which named defendantsshe is suing for retaliation. But construing her complaintliberally, she has stated a claim for retaliation againstDavisson for forcing her to sleep in the dayroom after theDecember incident with Manuel. Therefore, I dismiss her §504 retaliation claim against WestCare, Irma Magrdichian,Leo Magrdichian, and Minor, but I do not dismiss the claimagainst Davisson.The defendants also argue that compensatory damages arenot available for Harwell's § 504 retaliation claim becauseshe has not shown they acted with discriminatory intent.Because Harwell concedes she no longer seeks declaratory orinjunctive relief under the Rehabilitation Act, compensatorydamages is the only remaining remedy she pursues forthis claim. The Ninth Circuit has stated that “compensatorydamages are not available under ... § 504 absent a showingof discriminatory intent.” Ferguson v. City of Phoenix, 157F.3d 668, 674 (9th Cir. 1998). But Ferguson and the otherNinth Circuit cases cited by the defendants apply this standardonly to § 504 claims of discrimination, not retaliation. See,e.g., id. at 670; Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138(9th Cir. 2001); Lovell v. Chandler, 303 F.3d 1039, 1052,1056 (9th Cir. 2002); Bax v. Doctors Med. Ctr. of Modesto,Inc., 52 F.4th 858, 864, 866 (9th Cir. 2022). Additionally,there is a split among district courts in the Ninth Circuiton whether compensatory damages are available for § 504retaliation claims, which the defendants do not raise. Caldwellv. Del Toro, No. C19-6095 BHS, 2022 WL 1719132, at *1(W.D. Wash. May 27, 2022) (citing cases); Walker v. City ofPocatello, No. 4:15-cv-00498-BLW, 2020 WL 4043487, at*1, 3 (D. Idaho July 16, 2020). Because the defendants havenot adequately addressed the availability of compensatorydamages for Harwell's § 504 retaliation claim, I decline todismiss her request for damages at this time. The defendantsmay re-raise this argument in a subsequent motion to dismiss
KIM ELIZABETH HARWELL, Plaintiff v. WESTCARE NEVADA,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.5after Harwell files an amended complaint or after the deadlinefor her to do so passes. If the defendants choose to re-raisethis argument, they must analyze whether the RehabilitationAct makes compensatory damages available for retaliationclaims and whether Ferguson set forth the correct standard todetermine their availability.5E. I do not dismiss Harwell's negligence claim but orderher to state which defendants she sues for negligence.*6 Under Nevada law, a negligence claim “requires that theplaintiff satisfy four elements: (1) an existing duty of care,(2) breach, (3) legal causation, and (4) damages.” Turner v.Mandalay Sports Ent., LLC, 180 P.3d 1172, 1175 (Nev. 2008)(en banc). “A duty is defined as an obligation, to which thelaw will give recognition and effect, to comport to a particularstandard of conduct toward another.” Merluzzi v. Larson, 610P.2d 739, 742 (Nev. 1980), overruled in part on other groundsby Smith v. Clough, 796 P.2d 592 (Nev. 1990). “The questionof whether the defendant owes the plaintiff a duty of care is aquestion of law.” Sparks v. Alpha Tau Omega Fraternity, Inc.,255 P.3d 238, 244 (Nev. 2011) (simplified).Read liberally, Harwell's complaint plausibly states a claimfor negligence. Generally, she alleges that “[d]efendants owed[Harwell] a duty of reasonable care” and that WestCareowed her a duty “to protect her, as a disabled resident, fromforeseeable harm.” ECF Nos. 11 at 6; 17 at 8. She also allegesthat Davisson and the WestCare staff “failed to provide [her]a safe and hostile-free environment from another client.”ECF No. 11 at 11. The defendants have not addressedwhether a residential behavioral health facility owes a dutyto protect a resident from another resident. ConstruingHarwell's complaint liberally, she plausibly alleges that somedefendants owed her a duty to protect her from other residentswho foreseeably could cause her harm. She further allegesthat the defendants breached this duty by failing to properlyintervene during and after the November and Decemberincidents with Manuel. Finally, she alleges this caused her tobe hospitalized due to exacerbating her anxiety and PTSD, acognizable harm.6 Thus, she has sufficiently stated a claimfor negligence, and I deny the defendants’ motion to dismissthe claim.*7 However, the complaint is unclear about whichdefendants Harwell is suing for negligence. In differentparts of her complaint, she alleges that the “[d]efendants,”WestCare, Davisson, or unnamed WestCare staff had orbreached a duty to her. ECF No. 11 at 6, 11. The defendantsmove for a more definitive statement under Federal Rule ofCivil Procedure (FRCP) 12(e) to identify the “who, what andwhere” of each cause of action. ECF No. 15 at 15. “A partymay move for a more definite statement of a pleading towhich a responsive pleading is allowed but which is so vagueor ambiguous that the party cannot reasonably prepare aresponse.” FRCP 12(e). “The rule is aimed at unintelligibilityrather than lack of detail and is only appropriate whenthe defendant cannot understand the substance of the claimasserted.” Underwood v. O'Reilly Auto Parts, Inc., 671 F.Supp. 3d 1180, 1188 (D. Nev. 2023) (simplified). Becausethe defendants do not substantively know which defendantsHarwell brings her negligence claim against, I grant theirmotion for a more definite statement. Harwell must file anamended complaint stating which specific defendants she issuing for negligence. If she does not do so, I will dismiss thenegligence claim. See FRCP 12(e).F. I warn the parties against citing non-existent caselawin their filings.It appears that Harwell used generative AI software to prepareher complaint as she cites a non-existent case in support ofher negligence claim. Specifically, she states the following:“See Estate of Saila v. Circle K Corp., 135 Nev. 545, 552,353 P.3d 541, 546 (Nev. Ct. App. 2019) (imposing liability forsystemic failures to protect vulnerable individuals).” ECF No.11 at 6. The citation 135 Nev. 545 goes to State of Nevada v.Inzunza, 135 Nev. 513, 454 P.3d 727 (Nev. 2019). The citation353 P.3d 541 goes to Dutton v. City of Midwest City, 353 P.3d532 (Okla. 2015). I could not find a case titled Estate of Sailav. Circle K Corp.When a party presents a filing to a court, such as a motion,the party certifies “that to the best of the [party's] knowledge,information and belief, formed after an inquiry reasonableunder the circumstances ... the claims, defenses, and otherlegal contentions are warranted by existing law or by anonfrivolous argument for extending, modifying, or reversingexisting law or for establishing new law.” FRCP 11(b)(2).This imposes an “affirmative duty of investigation ... as tolaw ... before motions are filed.” Golden Eagle Distrib. Corp.,v. Burroughs Corp., 801 F.2d 1531, 1536 (9th Cir. 1986). Thisextends to attorneys and pro se litigants alike. FRCP 11(b).There has been a rise in fake authority cited in briefs, usuallyas the result of using generative AI software, like ChatGPT,to draft pleadings or other court filings. Johnson v. MINI ofLas Vegas, No. 2:25-cv-00725-APG-EJY, 2025 WL 2718525,at *3 (D. Nev. Sept. 24, 2025). Generative AI often invents
KIM ELIZABETH HARWELL, Plaintiff v. WESTCARE NEVADA,..., Slip Copy (2026) © 2026 Thomson Reuters. No claim to original U.S. Government Works.6fake cases and legal precedent in its drafting, and using it isno excuse to not verify the veracity of citations. Having toresearch fake authority and spend time chasing down that itis in fact not a real case wastes the time and resources ofopposing parties and the court. Going forward, the parties arereminded of their duty under FRCP 11(b)(2) and that citingfake cases drafted by generative AI may violate this rule.Failure to comply in the future may result in sanctions, suchas an order to pay a penalty into court or to the other side, ornonmonetary directives. FRCP 11(c)(4).III. LEAVE TO AMEND COMPLAINTI should freely give leave to amend a complaint “if itappears at all possible that the plaintiff can correct thedefect.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (quotation omitted). This rule favoring liberality inamendments to pleadings is particularly important for prose litigants like Harwell. Id. at 1131. Because it is not clearthat amendment would be futile, I grant leave to Harwellto amend her complaint. She may amend her discriminationclaim under the Rehabilitation Act, her retaliation claim underthe Rehabilitation Act, and her negligence claim to addressthe defects I noted above, including the need to identify whichdefendants she is suing for each claim. She is not given leaveto add any additional claims.IV. CONCLUSION*8 I THEREFORE ORDER that the defendants’ motionto dismiss and for a more definite statement (ECF No.15) is GRANTED in part. I dismiss Harwell's § 504discrimination claim against all defendants and dismiss her§ 504 retaliation claim against WestCare, Irma Magrdichian,Leo Magrdichian, and Melinda Minor.I FURTHER ORDER that plaintiff Harwell may file anamended complaint asserting her § 504 discrimination, §504 retaliation, and negligence claims and specifically statingwhich defendants she is suing for negligence by April 3, 2026.Failure to file an amended complaint by that date will resultin only her § 504 retaliation claim against defendant RhondaDavisson proceeding.DATED this 6th day of March, 2026.All CitationsSlip Copy, 2026 WL 658913Footnotes1All facts are taken from Harwell's First Amended Complaint. ECF No. 11.2Harwell cites to Monell v. Department of Social Services, 436 U.S. 658 (1978) in her ADA claim in her complaint. ECFNo. 11 at 5.3Harwell's complaint did not identify which named defendants were being sued under which claims.4In the Ninth Circuit, “courts have applied the same analysis to claims brought under both” the Rehabilitation Act and theADA, “[b]ecause the ADA was modeled on section 504 of the Rehabilitation Act.” Boose v. Tri-County Metro. Transp.Dist. of Or., 587 F.3d 997, 1001 n.5 (9th Cir. 2009) (quotation omitted).5In its reply in support of its motion to dismiss, the defendants argue for the first time that Harwell's damages are “essentiallyfor emotional distress,” which are unavailable for civil claims under the Rehabilitation Act. ECF No. 19 at 11 (citingCummings v. Premier Rehab Keller, PLLC, 596 U.S. 212 (2022)). Raising new arguments in a reply brief is improperbecause it deprives the opposing party of “an opportunity to respond.” Tovar v. U.S. Postal Serv., 3 F.3d 1271, 1273n.3 (9th Cir. 1993); Carstarphen v. Milsner, 594 F. Supp. 2d 1201, 1204 n.1 (D. Nev. 2009). Accordingly, I “need notconsider 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).6The defendants argue Manuel's conduct, though rude, does not impose liability on them for negligence because “personsmust necessarily be expected and required to be hardened ... to occasional acts that are definitely inconsiderate andunkind.” ECF No. 15 at 7-8 (quoting Maduike v. Agency Rent-A-Car, 953 P.2d 24, 26 (Nev. 1998). But Maduike cites thatstandard for an intentional infliction of emotional distress claim and is thus inapplicable to Harwell's negligence claim.
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