MacCool et al v. Arizona, State of et al

Filing 26

ORDER denying as moot without prejudice 4 Defendants' Motion to Dismiss. Plaintiffs' Motion to File a Third Amended Complaint (Doc. 11 ) is granted. Plaintiffs' lodged Third Amended Complaint (Doc. 18-1) is STRICKEN. Plaintiffs may file a Third Amended Complaint within 10 days of the filing date of this order. See PDF document for details. Signed by Senior Judge James A Teilborg on 6/26/14.(LSP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Finn MacCool, et al., Plaintiffs, 10 11 ORDER v. 12 No. CV-14-00803-PHX-JAT State of Arizona, et al., 13 Defendants. 14 Pending before the Court are: (1) Defendants’ Motion to Dismiss Plaintiffs’ 15 Second Amended Complaint (“SAC”) (Doc. 4); (2) Plaintiffs’ Motion to File a Third 16 Amended Complaint (“TAC”) pursuant to Federal Rule of Civil Procedure 15(a)(2) (Doc. 17 11); and (3) Plaintiffs’ lodged TAC pursuant to LRCiv 15.1(b) (Docs. 18, 18-1). The 18 Court notes that Plaintiffs also filed and later withdrew a Motion to File a TAC pursuant 19 to Federal Rule of Civil Procedure 15(a)(1)(B). (Docs. 21, 25). The Court will: (1) grant 20 Plaintiffs’ Motion to File a TAC; (2) strike Plaintiffs’ lodged TAC; and (3) deny 21 Defendants’ Motion to Dismiss as moot for the following reasons. 22 I. BACKGROUND 23 Finn MacCool (“Finn”) was diagnosed with Diabetes Mellitus Type 2 (“DM-2”) 24 and hypertension during the time he was an inmate housed by the New Jersey 25 Department of Corrections. (Doc. 1-3 at 41). While in New Jersey, Finn’s DM-2 and 26 hypertension were “well-controlled.” (Id.). In June 2011, Finn was transferred to the 27 custody of the Arizona Department of Corrections (“ADC”) and housed at the Eyman 28 Complex-Browning Unit (“Eyman”) from June 2, 2011 until April 15, 2012. (Id. at 38). 1 Upon Finn’s arrival to Eyman, his medication regimen was changed and both insulin 2 therapy and daily monitoring were discontinued. (Id. at 42). 3 While housed at Eyman, Finn experienced nausea, headaches, vomiting, and 4 blurry vision. (Id.). James Baird, M.D. (“Dr. Baird”), Finn’s primary treating physician at 5 Eyman (Id. at 38), attributed Finn’s symptoms to “food poisoning, flu, or migraine 6 headaches.” (Id. at 42). On August 20, 2011, an optometrist examined Finn and 7 recommended that Dr. Baird “‘get control’ of Finn’s blood pressure and blood sugar and 8 get a ‘retina consult ASAP.’” (Id.). Dr. Baird did not institute tighter monitoring of Finn’s 9 blood sugar or blood pressure and Finn’s “blood pressure and blood sugar remained 10 poorly controlled.” (Id.). In the following eight months, Finn’s health deteriorated. (See 11 Id. at 42-43). 12 On April 15, 2012, Finn was transferred to ADC’s Lewis Complex-Buckley Unit 13 (“Lewis”) where he remained until September 4, 2012. (Id. at 37-38). Upon Finn’s 14 transfer to Lewis, he was “essentially wheelchair bound and legally blind.” (Id. at 44). At 15 Lewis, a Defendant referred to in Plaintiffs’ SAC as “CO-III Lamb” “refused multiple 16 inmate letters and Health Needs Requests from Finn for accommodation under the 17 Americans with Disability Act (ADA).” (Id.). CO-III Lamb denied Finn’s request for an 18 ADA porter because “he could have his ‘cellie’ write for him” and told Finn that he did 19 not need a physician-ordered wheelchair because “he could find a spare wheelchair and 20 get other inmates to push him or help him walk.” (Id.). Finn relied on other inmates to get 21 to and from meals and, between April and July of 2012, “he was found on multiple 22 occasions in his cell near comatose state, unable to walk and unconscious.” (Id.). On 23 September 4, 2012, Finn was rushed to Tempe St. Luke’s Hospital for end-stage renal 24 disease and a heart attack. (Id.). Finn has not returned to Lewis and, instead, has remained 25 in Tucson-Rincon’s Health Unit or in hospitals in Phoenix and Tucson. (Id.). 26 During the time Finn was housed by the ADC, ADC Director Charles Ryan 27 (“Director Ryan”) was responsible for the overall operation of both Eyman and Lewis. 28 (Id. at 38). Also during this time, Dr. Michael Adu-Tutu (“Dr. Adu-Tutu”) was the Health -2- 1 Services Division Director of the ADC and “was responsible for overseeing all health 2 care services of [the ADC] and for coordinating medical and mental health services for 3 all inmates, including Finn.” (Id.). Both Ryan and Adu-Tutu knew of failures in care and 4 “needs of inmate[s] like [Finn] suffering from chronic diseases, specifically diabetes and 5 hypertension.” (Id. at 43). 6 On August 9, 2012, Plaintiffs filed a Complaint against Defendants in Maricopa 7 County Superior Court (“Superior Court”). (See Doc. 1-2). Between August 2012 and 8 April 2014, Plaintiffs filed a First Amended Complaint (Doc. 1-3 at 1) and, later, the 9 Superior Court granted Plaintiffs’ Motion to File a SAC (Id. at 13). Plaintiffs’ SAC was 10 filed on October 1, 2013 (Id. at 37) and served to Defendants by April 3, 2014 (Doc. 1-4 11 at 22-51). Additionally, during this time period, the Superior Court granted Plaintiffs’ 12 motions for extension of time to serve process on Defendants. (Docs. 1-2 at 22, 1-3 at 21, 13 1-4 at 4). On April 16, 2014, Defendants removed the case to this Court. (Doc. 1). 14 On May 19, 2014, Plaintiffs filed a Motion to File a TAC (Doc. 11) and, a lodged 15 TAC (Doc. 18) pursuant to LRCiv 15.1(b). Plaintiffs’ lodged TAC asserts factual 16 allegations in support of four causes of action: (1) medical malpractice against the State 17 of Arizona as Dr. Baird’s employer; (2) negligence and gross negligence against the State 18 of Arizona based on the actions and inactions of Director Ryan and Dr. Adu-Tutu; (3) 19 violations of 42 U.S.C. § 1983 against Dr. Baird, Dr. Adu-Tutu, Director Ryan, and CO- 20 III Lamb; and (4) violations of the ADA, 42 U.S.C. § 12102 and the Rehabilitation Act of 21 1973 (“RA”), 29 U.S.C. § 705(20)(B) against CO-III Lamb and Dr. Baird, both 22 individually and officially, as well as the State of Arizona. (Doc. 18-1 at 12-17). 23 II. MOTION TO FILE A THIRD AMENDED COMPLAINT 24 A. LEGAL STANDARD 25 A party may amend a pleading once as a matter of course within 21 days after 26 serving it or within 21 days of service of, among others, a Federal Rule of Civil 27 Procedure 12(b)(6) motion. Fed. R. Civ. P. 15(a)(1). In all other circumstances, a party 28 must seek leave to amend from the court. Fed. R. Civ. P. 15(a)(2). “The court should -3- 1 freely give leave when justice so requires.” Id. In determining whether to grant a motion 2 to amend, a court should consider five factors: “(1) bad faith; (2) undue delay; (3) 3 prejudice to the opposing party; (4) futility of amendment; and (5) whether the plaintiff 4 has previously amended his complaint.” Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir. 5 2004). The most important of these factors is prejudice to the opposing party. U.S. v. 6 Pend Oreille Public Utility Dist., No. 1, 926 F.2d 1502, 1511 (9th Cir. 1991). 7 “Significantly, ‘[t]he party opposing amendments bears the burden of showing prejudice,’ 8 futility, or one of the other permissible reasons for denying a motion to amend.” Farina v. 9 Compuware Corp., 256 F. Supp. 2d 1033, 1060 (D. Ariz. 2003) (quoting DCD Programs, 10 Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987)). 11 B. 12 Defendants argue that the Court should not grant Plaintiffs’ Motion to File a TAC 13 because of: (1) prior amendments; (2) undue delay; and (3) futility. (Doc. 19 at 2). 14 Defendants have not argued that Plaintiffs acted in bad faith in requesting to amend their 15 SAC. (Id.). Nor have Defendants argued they will be prejudiced if the Court allows 16 Plaintiffs to amend their Complaint (id.), which is the most important factor to the 17 Court’s analysis, Pend Oreille, 926 F.2d at 1511. Because it is Defendants’ burden to 18 show why the Court should not grant Plaintiffs’ Motion to File a TAC, the Court will 19 only examine whether granting Plaintiffs’ Motion to File a TAC is prohibited by: (1) 20 prior amendments; (2) undue delay; or (3) futility. 21 ANALYSIS 1. Prior Amendments 22 Defendants’ first argument is that the Court should deny Plaintiffs’ Motion to File 23 a TAC because of previous amendments to the Complaint and First Amended Complaint. 24 (Doc. 19 at 2). 25 The Court’s discretion to deny an amendment is “particularly broad” where a 26 plaintiff has previously amended his complaint. Allen v. City of Beverly Hills, 27 911 F.2d 367, 373 (9th Cir. 1990). The presence of prior amendments may persuade a 28 court to deny leave, even in absence of the four other factors “when the movant present[s] -4- 1 no new facts but only new theories and provide[s] no satisfactory explanation for his 2 failure to fully develop his contentions originally.” Id. at 374. 3 While Plaintiffs have made previous amendments to filed complaints, the SAC 4 was the only complaint served upon Defendants. (Doc. 22 at 3). Additionally, Plaintiffs’ 5 stated purpose in amending the SAC is to “clarify issues raised in Defendants’ [Motion to 6 Dismiss].” (Doc. 11 at 3). In achieving this purpose, Plaintiffs allege new facts in the 7 lodged TAC to support their claims. Because this is the first amendment requested since 8 Defendants were served and Plaintiffs allege new facts to support their claims, this factor 9 does not weigh against granting Plaintiffs’ Motion to File a TAC. 10 2. Undue Delay 11 Defendants’ second argument is that the Court should deny Plaintiffs’ Motion to 12 File a TAC because the “19+ months” delay between filing the original Complaint and 13 service of the SAC created an undue delay. (Doc. 19 at 2). 14 By itself, undue delay is insufficient to prevent a court from granting leave to 15 amend a complaint. Howey v. United States, 481 F.2d 1187, 1191 (9th Cir. 1973) (noting 16 that refusing an amendment solely because of delay does not promote any sound judicial 17 policy); DCD Programs, 833 F.2d at 186 (“delay, by itself, is insufficient to justify denial 18 of leave to amend”). In evaluating undue delay, a court considers “whether the moving 19 party knew or should have known the facts and theories raised by the amendment in the 20 original pleading.” Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990). A 21 court should also consider whether “permitting an amendment . . . would produce an 22 undue delay in the litigation.” Id. at 1387. 23 Plaintiffs attribute delays between filing the Complaint and serving the SAC to 24 Finn’s attempts to exhaust his grievances within the ADC which were interrupted by 25 Finn’s illnesses and transfers to various hospitals. (Doc. 22 at 3). Each extension of time 26 to serve Defendants was judicially-ordered for good cause in Superior Court. (Docs. 1-2 27 at 22, 1-3 at 21, 1-4 at 4). Additionally, this Court has not yet held a Federal Rule of Civil 28 Procedure 16 scheduling conference, and an amendment would not cause a delay in the -5- 1 proceedings. Accordingly, this factor does not weigh against granting Plaintiffs’ Motion 2 to File a TAC. 3 4 5 3. Futility Defendants’ third argument is that the Court should deny Plaintiffs’ Motion to File a TAC because the lodged TAC is futile. (Doc. 19 at 2). 6 Futility alone is enough to deny a motion for leave to amend. Nunes, 375 F.3d at 7 808. A proposed amendment is futile only if “no set of facts can be proved under the 8 amendment to the pleadings that would constitute a valid and sufficient claim.” Miller v. 9 Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Additionally, futility may be 10 found where proposed amendments are “either duplicative of existing claims or patently 11 frivolous, or both.” Bonin v. Calderon, 59 F.3d 815, 846 (9th Cir. 1995). The party 12 opposing amendment bears the burden of proving futility. Rodriguez v. City of Phoenix, 13 No. CV-11-01992-PHX-JAT, 2014 WL 1053602, at *3 (D. Ariz. Mar. 19, 2014). 14 Defendants argue that Plaintiffs’ lodged TAC is futile because: (1) “Count Three 15 reasserts the civil rights claims under 42 U.S.C. § 1983 against supervisors [Director] 16 Ryan and [Dr.] Adu-Tutu despite there being no allegations supporting supervisor 17 liability” and (2) “Count Four introduces a new theory of recovery based on the [ADA] 18 and [RA]. But the Ninth Circuit has stated that § 1983 liability cannot be imposed for 19 ADA violations.” (Doc. 19 at 2-3). In their Response to Plaintiffs’ Motion to File a TAC, 20 Defendants also invite the Court to evaluate arguments made in their Motion to Dismiss 21 within the futility context for Plaintiffs’ lodged TAC. The Court declines this invitation 22 and will only evaluate the two aforementioned futility arguments that were explicitly 23 referenced in Defendants’ Response to the Plaintiffs’ Motion to File a TAC. 24 a. Count Three Futility 25 Defendants argue that reasserted civil rights claims under 42 U.S.C. § 1983 in 26 Count Three against Director Ryan and Dr. Adu-Tutu are futile because there are “no 27 allegations supporting supervisor liability.” (Id. at 2). 28 A supervisor may be individually liable under § 1983 “if there exists either: (1) his -6- 1 or her personal involvement in the constitutional deprivation, or (2) a sufficient causal 2 connection between the supervisor’s wrongful conduct and the constitutional violation.” 3 Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001). “Acquiescence or culpable 4 indifference may suffice to show that a supervisor personally played a role in the alleged 5 constitutional violations.” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (internal 6 quotation marks omitted). A supervisor is culpably or deliberately indifferent if he is 7 “aware of facts from which the inference could be drawn that a substantial risk of serious 8 harm exists, and he must also draw the inference.” Clouthier v. County of Contra Costa, 9 591 F.3d 1232, 1242 (9th Cir. 2010) (quoting Farmer v. Brennan, 511 U.S. 825, 837 10 (1994)). 11 In Ashcroft v. Iqbal, the Supreme Court addressed supervisor liability under the 12 context of § 1983. 556 U.S. 662, 675-78 (2009). The Supreme Court noted that since 13 “[g]overnment officials may not be held liable for unconstitutional conduct of their 14 subordinates . . . a plaintiff must plead that each Government-official defendant, through 15 the official’s own individual actions, has violated the Constitution.” Id. at 676. The 16 Supreme Court went on to reject that “a supervisor’s mere knowledge of his 17 subordinate’s actions is sufficient to allege § 1983 liability against a supervisor in his 18 individual capacity.” Id. at 677. 19 The Ninth Circuit recently addressed the post-Iqbal pleading standard for 20 supervisory liability holding that “[t]he Supreme Court’s decision in Iqbal, did not alter 21 the substantive requirements for supervisory liability claims in an unconstitutional 22 conditions of confinement case under the Eighth and Fourteenth Amendments where 23 deliberate indifference is alleged.” Starr, 652 F.3d at 1217. In Starr, the Ninth Circuit 24 concluded that “a plaintiff may state a claim against a supervisor for deliberate 25 indifference based upon the supervisor’s knowledge of and acquiescence in 26 unconstitutional conduct by his or her subordinates.” Id. at 1207. There, the plaintiff 27 brought Eighth Amendment claims against a sheriff in his individual capacity for his role 28 as a supervisor of the detention facility where plaintiff was held. Id. at 1204-05. Because -7- 1 the plaintiff pleaded that the sheriff was given several reports which indicated systematic 2 problems in his county jails and did not take action to rectify these problems despite the 3 reports, the Ninth Circuit held that the complaint was adequate to withstand a motion to 4 dismiss. Id. at 1208. Consequently, the allegations of the reports and of the defendant’s 5 inaction were sufficient to state a claim for supervisory liability. Id. 6 Here, the Plaintiffs attempt to bring an Eighth Amendment claim in their lodged 7 TAC against Director Ryan and Dr. Adu-Tutu in their individual capacity and “as the 8 highest ranking supervisors, respectively, in [the] ADC and its Health Division.” (Doc. 9 18-1 at 15). As in Starr, Plaintiffs allege reports from ADC staff warning Director Ryan 10 and Dr. Adu-Tutu about the type of unreasonable treatment that inmates like Finn were 11 receiving. (Id. at 7). Plaintiffs further allege that the lack of a strategy to remedy such 12 “systemic failures” led to Finn’s poor health conditions. (Id.). Based on the pleading 13 standard set forth in Starr, Plaintiffs have alleged sufficient facts linking both Director 14 Ryan and Dr. Adu-Tutu to a § 1983 violation. Since Plaintiffs have met the Starr 15 pleading standard, their § 1983 supervisory liability claims against both Director Ryan 16 and Dr. Adu-Tutu in their individual capacities are not futile. 17 b. Count Four Futility 18 Defendants make a general futility argument that amending the SAC to include 19 ADA and RA claims against CO-III Lamb and Dr. Baird would be futile because “§1983 20 liability cannot be imposed for ADA violations.” (Doc. 19 at 3). 21 i. ADA and RA Violations in Official Capacity 22 Plaintiffs allege in their lodged TAC that CO-III Lamb and Dr. Baird are “liable in 23 their . . . official capacities to Finn for damages from Defendant [CO-III] Lamb’s 24 violations of the ADA and the [RA].” (Doc. 18-1 at 17). 25 Under Title II of the ADA, “no qualified individual with a disability shall, by 26 reason of such disability, be excluded from participation in or be denied the benefits of 27 the services, programs, or activities of a public entity, or be subjected to discrimination 28 by any such entity.” 42 U.S.C. § 12132. A ‘public entity’ is “any State or local -8- 1 government; [or] (B) any department, agency, special purpose district, or other 2 instrumentality of a State or States or local government . . . .” 42 U.S.C. § 12131. To state 3 an ADA claim, a plaintiff must show that “(1) [he] is a qualified individual with a 4 disability; (2) [he] was excluded from participation in or otherwise discriminated against 5 with regard to a public entity’s services, programs, or activities; and (3) such exclusion or 6 discrimination was by reason of [his] disability.” Lovell v. Chandler, 303 F.3d 1039, 7 1052 (9th Cir. 2002). The term ‘qualified individual with a disability’ means: 8 an individual with a disability who, with or without reasonable modifications to rules, policies or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 42 U.S.C. § 12131(2). A disability within the meaning of the statute is a “physical or mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102. The Ninth Circuit has found that “[t]he ADA prohibits discrimination because of disability, not inadequate treatment for disability.” Simmons v. Navajo County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (“[T]he Act would not be violated by a prison’s simply failing to attend to the medical needs of its disabled prisoners . . . . The ADA does not create a remedy for medical malpractice.”)). The RA is “materially identical and the model for the ADA, except limited to programs that receive federal financial assistance.” Armstrong v. Davis, 275 F.3d 849, 862 n.17 (9th Cir. 2001) (internal quotation marks omitted). Title II of the ADA was expressly modeled after § 504 of the RA. Zukle v. Regents of the University of California, 166 F.3d 1041, 1045 (9th Cir. 1999). Additionally, because the ADA has a broader scope, the Ninth Circuit analyzes both Acts under an ADA standard. See id. at n.11 (“There is no significant difference in analysis of the rights and obligations created by the ADA and the [RA].”). -9- 1 Plaintiffs’ lodged TAC includes facts that Finn was “blind” and “wheelchair 2 bound” making him an “otherwise qualified individual” for the purposes of bringing the 3 ADA and RA claims. (Doc. 18-1 at 16). Plaintiffs allege that “CO-III Lamb’s conduct 4 violated the ADA . . . because she ignored Finn’s need and requests for medical 5 assistance and for assistance in obtaining services to which he was entitled and needed as 6 a blind, wheelchair bound individual.” (Id. at 17). Plaintiffs further allege that CO-III 7 Lamb “treated [Finn] with hostility, disdain, and anger because of his disability and the 8 additional work his status caused her.” (Id. at 16). Taking Plaintiffs’ factual allegations to 9 be true, Plaintiffs make a valid claim under the ADA that Finn, a qualified individual 10 with a disability, was treated with hostility and disdain because of his disability. As a 11 result, Plaintiffs’ proposed amendments in the lodged TAC to include ADA and RA 12 claims against CO-III Lamb in her official capacity are not futile. 13 Plaintiffs also allege that Dr. Baird violated Finn’s rights under the ADA and the 14 RA because his “failure to treat deprived Finn of medical services.” (Id. at 17). Here, 15 Plaintiffs do not set forth any facts supporting a claim that Finn was subjected to any 16 intentional discrimination because of his disability nor was he excluded from 17 participation in any prison program or activity. Improper medical treatment is not the 18 same as discrimination under the ADA. As a result, Plaintiffs’ proposed amendments in 19 their lodged TAC to include ADA and RA claims against Dr. Baird in his official 20 capacity are futile. See Hewitt v. Luis, 2013 WL 4702266, at *10 (Dist. Nev. July 2, 21 2013) (granting summary judgment against plaintiff’s ADA claim because “plaintiff 22 merely allege[d] a difference of opinion regarding proper medical treatment for plaintiff’s 23 back and leg pain–not discrimination under the ADA”); and Calloway v. Contra Costa 24 County Jail Correctional Officers, 2007 WL 134581, at *34 (N.D. Cal. Jan. 16, 2007) 25 (denying presence of an actionable ADA/RA where the defendant’s inadequate medical 26 treatment denied the sick plaintiff an opportunity to engage in regular prison life). 27 28 Plaintiffs’ ADA and RA claims against CO-III Lamb in her official capacity are not futile while ADA and RA claims against Dr. Baird are futile. - 10 - ii. 1 ADA and RA Violations in Individual Capacity 2 Plaintiffs allege in their lodged TAC that CO-III Lamb and Dr. Baird are “liable in 3 their individual . . . capacities to Finn for damages from Defendant [CO-III] Lamb’s 4 violations of the ADA and the [RA].” (Doc. 18-1 at 17). 5 Individuals may only be sued under the ADA in their official, rather than their 6 individual capacities. Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (denying 7 plaintiff’s ability to sue state officials in their individual capacities based on Title II of the 8 ADA). “Likewise, the [RA] does not allow for suits against officers in their individual 9 capacities.” Castle v. Eurofresh, Inc., No. CV 09-8114-PCT-MHM, 2011 WL 53063, at 10 *5 (D. Ariz. Jan. 7, 2011). 11 Because Plaintiffs may not sue individuals for violations of the ADA or RA in 12 their individual capacities, Plaintiffs’ proposed amendments in their lodged TAC to 13 include these claims against CO-III Lamb and Dr. Baird are futile. 14 III. MOTION TO DISMISS 15 Because Plaintiffs may file a TAC, Defendants’ motion to dismiss is now moot. 16 The complaint that was the focus of the motion will be superseded. See Valadez-Lopez v. 17 Chertoff, 656 F.3d 851, 857 (9th Cir. 2011) (“[I]t is well-established that an amended- 18 complaint superseded the original, the latter being treated thereafter as non-existent.”) 19 (internal quotation marks omitted). As a result, the motion to dismiss is denied without 20 prejudice. 21 IV. CONCLUSION 22 Based upon the foregoing, the factors set forth by the Ninth Circuit weigh in favor 23 of allowing Plaintiffs to amend the complaint. However, because it would be futile for 24 Plaintiffs to amend their SAC to include ADA/RA violations by CO-III Lamb in her 25 individual capacity as well as Dr. Baird in both his official and individual capacities, 26 Plaintiffs’ lodged TAC is stricken and Plaintiffs are allowed to file a TAC consistent with 27 this Order within ten days. 28 Accordingly, - 11 - 1 2 IT IS ORDER S RED that Defendants’ Motion to Dismiss the SAC (Doc. 4) is D o DENIED as moot without prejudice.1 D s 3 IT IS FURTHE ORDER S ER RED that P Plaintiffs’ M Motion to F a Thir Amended File rd d 4 Complaint (Doc. 11) is GRAN C NTED; how wever, Pla aintiffs’ lod dged Third Amended d d 5 Complaint (Doc. 18-1) is STRICK C KEN. Plain ntiffs shall file a Third Amended Complain d d nt 6 in accordanc with this Order with ten (10) days of th filing of t Order; if Plaintiff n ce s hin ) he this fs 7 fa to file a Third Ame ail ended Comp plaint withi this dead in dline, then D Defendants may re-file e 8 th Motion to Dismiss that the Court has d he s C denied with hout prejudi within fifteen (15) ice 9 days of the date of this Order. d d 10 Dated this 26th day of June 2014. d d e, 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 Bec cause the Co has not reached th merits of the motion to dismis the Cour ourt t he f ss, rt denies Plaint d tiffs’ request for oral argument on the motio to dismis as also m a n on ss moot. - 12 2

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