Hopkins v. The Salvation Army et al

Filing 34

ORDER by Judge James Donato granting 29 Motion for Summary Judgment. (lrcS, COURT STAFF) (Filed on 4/12/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN L. HOPKINS,

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Plaintiff,

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v.

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THE SALVATION ARMY,

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Defendant.

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United States District Court
Northern District of California

Case No. 14-cv-01494-JD

ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT
Re: Dkt. No. 29

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Kevin L. Hopkins, a former state prisoner proceeding pro se, has brought an action

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pursuant to Title II of the Americans with Disabilities Act (“ADA”). Defendant has filed a second

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motion for summary judgment. Hopkins has filed a brief opposition. The motion is granted.
BACKGROUND

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Hopkins’ original complaint was filed while he was incarcerated at California State Prison

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- Solano.1 Liberally construing the complaint, the Court found that Hopkins was bringing a claim

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pursuant to Title II of the ADA against Defendant Salvation Army’s Adult Rehabilitation

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Program, a Contra Costa County superior court judge, and Hopkins’ appointed trial attorney.

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Hopkins sought money damages only. He contended that he injured his knee while in the

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Salvation Army Adult Rehabilitation Program and that the Salvation Army did not allow him to

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return to the program due to the injury. As a result, according to Hopkins, his probation was

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revoked and he was sent to prison. The Court dismissed the claims against the judge and the

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appointed attorney and dismissed the complaint against the Salvation Army with leave to amend

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to provide more information regarding his ADA claim.

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Plaintiff has since been released.

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Hopkins filed an amended complaint, again seeking only money damages, and stated that

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his cause of action was pursuant to Title II of the ADA. The Court found that, liberally construed,

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his claim was sufficient to demonstrate a violation of Title II of the ADA for purposes of

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screening. The Court also noted that for purposes of screening and based on the allegations in the

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complaint, it appeared that the Salvation Army was an appropriate public entity pursuant to Title II

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of the ADA.

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DISCUSSION

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Title II of the ADA “prohibit[s] discrimination on the basis of disability,” Lovell v.

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Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002), and provides that “no qualified individual with a
disability shall, by reason of such disability, be excluded from participation in or be denied the

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United States District Court
Northern District of California

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benefits of the services, programs, or activities of a public entity, or be subjected to discrimination

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by any such entity.” 42 U.S.C. § 12132. Title II of the ADA applies to inmates within state

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prisons. Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 213 (1998).

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In order to state a claim that a public program or service violated Title II of the ADA, a

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plaintiff must show: he is a “qualified individual with a disability”; he was either excluded from

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participation in or denied the benefits of a public entity’s services, programs, or activities, or was

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otherwise discriminated against by the public entity; and such exclusion, denial of benefits, or

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discrimination was by reason of his disability. McGary v. City of Portland, 386 F.3d 1259, 1264-

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65 (9th Cir. 2004).

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Title II provides for liability only against public entities, which it defines as: “(A) any State

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or local government; (B) any department, agency, special purpose district, or other instrumentality

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of a State or States or local government; and (C) the National Railroad Passenger Corporation, and

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any commuter authority . . . .” 42 U.S.C. § 12131.

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Plaintiff may bring a claim under Title II of the ADA against state entities for injunctive

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relief and damages. See Phiffer v. Columbia River Correctional Institute, 384 F.3d 791, 792 (9th

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Cir. 2004). The standard for recovery of damages is deliberate indifference to plaintiff’s rights

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under the ADA. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). “Deliberate

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indifference requires both knowledge that a harm to a federally protected right is substantially
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likely, and a failure to act upon that likelihood.” Id. at 1139.
Defendant states that the Salvation Army is not a public entity under Title II. Defendant

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contends that the Salvation Army is not a state or local government or a National Passenger

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Corporation or other commuter authority and it is not a department, agency, or district of a state or

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local government. Defendant also argues that the Salvation Army is not an “other instrumentality”

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pursuant to the statute.

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The Ninth Circuit has not ruled on the question of when a private company can be held

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liable under Title II when it performs contracted services for the government. Wilkins-Jones v.

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County of Alameda, 859 F. Supp. 2d 1039, 1045 (N.D. Cal. 2012). Here, Defendant has
previously stated that the Salvation Army provides free of charge drug and alcohol rehabilitation

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United States District Court
Northern District of California

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services to any individual requesting it. Docket No. 23 at 4. Defendant’s services were

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completely unrelated to the State of California or the parole board, and there was no agreement

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between the Salvation Army and the state or parole board. Id. The Salvation Army was not

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involved in any agreement between Hopkins and the state or municipality. Id. These facts

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strongly indicate that the Salvation Army operated on a totally independent basis from the

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government.

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But even if it were determined to be a government contractor, the Salvation Army is not

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liable. The circuits that have addressed this issue have found that Title II does not apply to

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government contractors. Edison v. Douberly, 604 F.3d 1307, 1309-10 (11th Cir. 2010) (a private

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prison management company was not an “instrumentality of the [state]” under Title II); Green v.

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City of New York, 465 F.3d 65, 79 (2d Cir. 2006) (a private hospital performing services through a

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contract with the city is not an instrumentality of the state, which is best read as referring to a

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creature of a state or municipality); Phillips v. Tiona, 508 F. App’x 737, 754 (10th Cir. 2013)

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(Title II does not apply to private corporations that operate prisons); Maringo v. Warden, 283 F.

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App’x 205 (5th Cir. 2008) (same).

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Several district courts in the Ninth Circuit have reached this same conclusion. Wilkins-

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Jones v. County of Alameda, 859 F. Supp. 2d 1039, 1046-48 (N.D. Cal. 2012); Martinez v. Mercy

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Hospital of Bakersfield, No. 09-1994 OWW SMS, 2011 WL 444861, at *3 (E.D. Cal. Feb. 8,
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2011); Rodrigues v. Arizona Dep’t of Corr., No. 12-8071 PCT DGC, 2012 WL 6200624, at *9-10

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(D. Ariz. Dec. 12, 2012)

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The Court also finds that Defendant Salvation Army is not a public entity in this case and

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Hopkins cannot proceed with his claim against Defendant under Title II of the ADA. To the

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extent Hopkins seeks to proceed under Title III, the Court already informed him that the only

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remedy available to him would be injunctive relief, see Antoninetti v. Chipotle Mexican Grill, 643

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F.3d 1165, 1174 (9th Cir. 2010), but he solely seeks money damages in this case. To the extent

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Hopkins seek to proceed under 42 U.S.C. § 1983, any such claim has already been denied. See

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Docket No. 32. For all these reasons, summary judgment is granted to Defendant.
CONCLUSION

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United States District Court
Northern District of California

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1. Defendants’ motion for summary judgment (Docket No. 29) is GRANTED.

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2. The Clerk shall terminate all pending motions, enter judgment, and close the file.

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IT IS SO ORDERED.

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Dated: April 12, 2016

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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEVIN L. HOPKINS,

Case No. 14-cv-01494-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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THE SALVATION ARMY,
Defendant.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on April 12, 2016, I SERVED a true and correct copy(ies) of the attached, by placing
said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Kevin L. Hopkins
29358 Sandburg Way
Hayward, CA 94544

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Dated: April 12, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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