Ninth Cir. Revives Law Student’s ADA Action

(CN) - A man may continue to pursue a pro se Americans with Disabilities Act claim against the University of Idaho, the Ninth Circuit ruled Thursday.

A federal judge denied James Shirley's motion to file a second amended complaint against the university, but the Circuit's three-judge panel found that the proposed amendment contained allegations that "were not so patently inconsistent" with his previous allegations as to warrant a screening dismissal.

The panel ordered the district court to file Shirley's second amended complaint and order service on the defendants.

Circuit Judge Alex Kozinski wrote a separate concurrence to the order explaining what he considered to be the correct standard of review for the case at issue.

"Inconsistency - even direct contradiction - between a current complaint and an earlier one is not a basis for dismissal," he said.

Circuit Judge William Canby Jr. also wrote a separate concurrence to say he found that Shirley "was not actually inconsistent with his prior pleadings," so "there is accordingly no reason to address the proper rule concerning inconsistent pleadings."

Shirley told Courthouse News he has repeated brain trauma from playing high school football - three "catastrophic" concussions - and when he started law school at Idaho with "evidence of his disability," he says the university found his documentation "lacking or too old" and didn't provide accommodations.

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