Hernandez et al v. County of Monterey et al

Filing 128

ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS by Judge Paul S. Grewal denying 44 and 75 ; denying 58 . (psglc1S, COURT STAFF) (Filed on 9/29/2014)

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UNITED STATES DISTRICT COURT

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United States District Court
For the Northern District of California

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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JESSE HERNANDEZ et al.,

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Plaintiffs,
v.

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COUNTY OF MONTEREY, et al.,
Defendants.

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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’
MOTIONS TO DISMISS
(Re: Docket Nos. 44, 58, 75)

The present motions in this civil rights suit raise two related issues: exactly who may
challenge the conditions of a county jail and who exactly may be challenged? While standing and

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mootness disputes in cases such as this are hardly new, the question of whether a private provider
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of jail medical facilities are services can face scrutiny under Title III of the Americans with
Disabilities Act does appear to be novel.1

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“Defendants also specifically raise and preserve the affirmative defense that all Plaintiffs’ have
failed to exhaust administrative procedures under the Prison Litigation Reform Act. To the extent
Defendants are required to raise the defense of failure to exhaust administrative procedures at their
initial responsive pleadings, they do so now for each and every Plaintiff. . . . Defendants also
reserve their right to assert the defense of statute of limitations.” Docket No. 44 at 2. Defendants
made no further arguments on these points, however, so the court has not considered the Prison
Litigation Reform Act or the statute of limitations here.

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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

The first motion before the court is a motion to dismiss filed by Defendants County of

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Monterey and Monterey County Sheriff’s Office.2 The second motion to dismiss was filed by

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Defendant California Forensic Medical Group, Incorporated.3 Plaintiffs oppose,4 and the parties

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appeared for a hearing.5 Having considered the arguments, the court denies both motions.

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I. BACKGROUND
A.

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Plaintiffs are inmates or recently released inmates from the Monterey County jail.7 Each

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Factual Background6

plaintiff has been jailed multiple times.8 The jail frequently houses more than 1,100 inmates per

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For the Northern District of California

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day,9 and inmates stay in the jail on average for 30-40 days.10 The vast majority of the jail’s

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population constitutes pretrial detainees with unpredictable, but brief, lengths of stay. The

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complaint alleges a litany of substandard conditions at the jail, including: violence due to

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understaffing, overcrowding, inadequate training, policies, procedures, facilities, and prisoner

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classification; inadequate medical and mental health care screening, attention, distribution, and
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See Docket No. 44 (amended by Docket No. 75).

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See Docket No. 58. CFMG joins and incorporates all arguments in the County and County
Sheriff’s motion to dismiss in its own. See id. at 3.
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See Docket Nos. 77 and 83.

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See Docket No. 100.

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For the purposes of Defendants’ motions, unless otherwise noted, the court draws the following
facts from Plaintiffs’ second amended complaint, accepted as true. See Docket No. 41.

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See Docket No. 77 at 1-2.

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See id. at 1.

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See Docket No. 41 at ¶ 40.

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See Docket No. 77 at 1.

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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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resources; and lack of policies and practices for identifying, tracking, responding, communicating,
and providing accessibility for accommodations for prisoners with disabilities.11
The County provides inmates access to health care and services under a contract with

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CFMG, a private company that administers all jail health care facilities and services.12 The

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contract took effect on April 1, 2012.13 The contract provides that CFMG “shall be responsible for

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the medical care, dental care, and mental health care of an inmate commencing with [] booking.”14

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CFMG is further responsible for “administering medications to inmates,” providing required
“medical supplies, and medical record supplies,” and for “the cost of all pharmaceuticals

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For the Northern District of California

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administered.”15 Under the contract, CFMG “shall determine the method, details and means of

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performing services,” and CFMG’s Medical Director is “responsible to assure the quality of health

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care provided.”16 CFMG employs over fifty staff members.17

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B.

Procedural Background

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Five plaintiffs filed an initial complaint.18 In eight causes of action seeking declaratory and

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injunctive relief on behalf of a putative class, the complaint alleges the conditions in the jail violate

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the Eights and Fourteenth Amendments of the United States Constitution, Article I, Sections 7 and

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17 of the California Constitution, the Americans with Disabilities Act, the Rehabilitation Act, and

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See Docket No. 41 at ¶¶ 2-5, 7.

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See id. at ¶ 84.

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See Docket No. 41 at ¶ 41.

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See Docket No. 83 at 2 (App’x A at 18).

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Id. at 21-23.

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Id.

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See Docket No. 34 at ¶ 84.

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See Docket No. 1.

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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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Cal. Gov’t Code Section 11135.19 In a first amended complaint, eight named plaintiffs were

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added.20 In a second amended complaint, nine new plaintiffs were added and one plaintiff was

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dismissed, resulting in the current total of 21 named plaintiffs.21

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For the Northern District of California

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The County and Sheriff’s Office filed an initial motion to dismiss challenging the standing
of one plaintiff not in custody when his claim was filed and the mootness of the claims of nine
others who were no longer in custody.22 In the meantime, Plaintiffs filed a motion for class
certification.23 Plaintiffs seek certification of a prisoner class, consisting of all current and future
prisoners in the jail, and a prisoners with disabilities subclass, consisting of all current and future
prisoners who have a qualifying disability.24

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CFMG also filed a motion to dismiss of its own, joining the County and Sheriff’s Office’s

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motion based on standing as well as challenging Plaintiffs’ sixth cause of action against CFMG

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under Title III of the ADA.25 Defendants then amended their motion to dismiss by dropping one

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plaintiff based on his re-incarceration and adding two others because they had been released from
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See Docket Nos. 1, 16, and 41.

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See Docket No. 16.

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See Docket No. 41 at ¶¶ 11-31.

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See Docket No. 44.

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See Docket Nos. 48-56.

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See Docket No. 56 at 20-21.

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See Docket No. 59.

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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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custody.26 In their reply brief, Defendants further dropped from their motion yet another plaintiff
because he, too, returned to custody.27
II. LEGAL STANDARDS

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A.

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12(b)(6) Motion to Dismiss
A complaint must contain “a short plain statement of the claim showing that the pleader is

entitled to relief.”28 If a plaintiff fails to proffer “enough facts to state a claim to relief that is

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plausible on its face,” the complaint may be dismissed for failure to state a claim upon which relief
may be granted.29 A claim is facially plausible “when the pleaded factual content allows the court

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For the Northern District of California

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to draw the reasonable inference that the defendant is liable for the misconduct alleged.”30 But

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courts “are not bound to accept as true a legal conclusion couched as a factual allegation.”31 Under

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Fed. R. Civ. P. 12(b)(6), “dismissal can be based on the lack of a cognizable legal theory or the

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absence of sufficient facts alleged under a cognizable legal theory.”32 A court may dismiss a claim

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See Docket No. 75.

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See Docket No. 90 at 1, n.1. Plaintiffs filed a sur-reply indicating that still another of those
challenged is currently incarcerated in the jail and that another continues to reside in Monterey
County. See Docket No. 98 at 3-4. Plaintiffs have since introduced further evidence that another
plaintiff has been re-incarcerated, see Docket Nos. 114, 116, one of the released plaintiffs has been
re-incarcerated, and that yet another was re-incarcerated and then released again. See Docket No.
125-1. Defendants object to the evidence Plaintiffs present on this issue and its exhibits on the
grounds that the documents are not authenticated, the testimony in the supporting declaration is
improper expert testimony, and the declarant lacks personal knowledge. Docket No. 90 at 7.
These objections are improper and therefore overruled because they do not specifically identify
which statements or exhibits are objectionable on which grounds. See Fed. R. Evid. 103(a)(1)(B)
(requiring that a party “state[] the specific ground” of an objection).

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Fed. R. Civ. P. 8(a)(2).

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

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Twombly, 550 U.S. at 555.

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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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“only if it is clear that no relief could be granted under any set of facts that could be proved

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consistent with the allegations.”33

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B.

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Standing
To demonstrate standing to seek equitable relief, Article III of the U.S. Constitution

requires that (1) a plaintiff has suffered an actual or threatened injury as a result of the defendant’s
alleged illegal conduct; (2) the injury is “fairly traceable” to the defendant’s action; and (3) the
injury is likely to be redressed by a favorable decision.34 A plaintiff must establish standing as of
the filing of the complaint.35 Where multiple plaintiffs present the same class claims in multiple

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For the Northern District of California

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complaints, each plaintiff must establish standing as of the date of the filing in which the plaintiff

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first appears.36 Where a plaintiff seeks prospective injunctive relief, he also must demonstrate “that

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he is realistically threatened by a repetition of [the violation].”37 “Where a named plaintiff is a

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member of a plaintiff class, and ‘members of the class have repeatedly suffered personal injuries in

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the past that can fairly be traced to the [defendants’] standard . . . practices,’ the defendant’s
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treatment of the class as a whole must be considered to determine whether the individual plaintiff

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‘ha[s] been and will continue to be aggrieved by the defendants’ [illegal] pattern of conduct.”38 Put

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another way, “[w]hen a named plaintiff asserts injuries that have been inflicted upon a class of

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Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).

U.S. Const. Art. III, § 2; Valley Forge Christian Coll. v. Americans United for Separation of
Church and State, 454 U.S. 464, 472 (1982); see also Bates v. United Parcel Serv., Inc., 511 F.3d
977, 985 (9th Cir. 2007) (holding under the first prong that the plaintiff must have suffered an
injury in fact, i.e. one that is sufficiently “concrete and particularized” and “actual or imminent, not
conjectural or hypothetical”); Lujan v. Defenders Wildlife, 504 U.S. 555, 560-61 (1992)).

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See County of Riverside v. McLaughlin, 500 U.S. 44, 51-52 (1991); Monaco v. Stone, 187 F.R.D.
50, 66 (E.D.N.Y. 1999).

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See Monaco, 187 F.R.D. at 66.

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Armstrong v. Davis, 275 F.3d 849, 860-61 (9th Cir. 2001) (citation omitted).

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Id. at 864 (quoting LaDuke v. Nelson, 762 F.2d, 1318, 1326 (9th Cir. 1985)).

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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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plaintiffs, we may consider those injuries in the context of the harm asserted by the class as a

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whole, to determine whether a credible threat that the named plaintiff’s injury will recur has been

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established.”39

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An exception to the general rules regarding standing pertains to past inmates under

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supervision.40 When a past inmate remains supervised by law enforcement and subject to unlawful

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conditions without engaging in illegal activity, that plaintiff maintains standing with regard to the
unlawful policies or conditions he or she may confront.41 The question is whether plaintiffs have
“demonstrate[d] a concrete injury and a realistic likelihood that the injury will be repeated.”42 In

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For the Northern District of California

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Armstrong v. Davis, the Ninth Circuit held California parolees with disabilities could challenge

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policies and practices in state parole revocation proceedings that violated the ADA and the

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Rehabilitation Act.43 The parolees could not be subjected to the discriminatory parole revocation

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proceedings unless they were arrested and charged with violating the terms and conditions of their

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parole. Because they could be arrested without a warrant and for violating parole terms that
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prohibited otherwise legal conduct,44 parolees did not need to “engage in unlawful conduct to
become subject to the unlawful practices they s[ought] to enjoin.”45

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Id. at 861.

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Id. at 866.

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See id. at 860-6.

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Taylor v. Westly, 488 F.3d 1197, 1199 (9th Cir. 2007) (citing Armstrong v. Davis, 275 F.3d at
860-61).

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Armstrong v. Davis, 275 F.3d at 860-67.

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See id. at 866.

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Armstrong v. Davis, 275 F.3d at 866 (“[T]here was ‘no string of contingencies necessary to
produce an injury’”) (quoting Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1041-42 (9th Cir.
1999)). Arrest for violating the terms and conditions of parole “led inexorably to the injury” of
being subjected to the unlawful parole revocation procedures. Id. at 866 n.25.

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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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C.

Mootness
Mootness is “the doctrine of standing set in a time frame: The requisite personal interest

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that must exist at the commencement of litigation (standing) must continue throughout its existence

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(mootness).”46 In general, a case is moot if there is no longer any personal stake in the outcome47

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or “‘present controversy as to which effective relief can be granted,’”48 even if the plaintiff had

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standing at the time the complaint was filed.49 In L.A. v. Lyons,50 the Supreme Court held that

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where the plaintiff could only be “expos[ed] to the challenged course of conduct” by breaking the
law, his claim was moot because the threat of future harm was too attenuated.
An exception to the mootness doctrine applies in class actions “where it is ‘certain that

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For the Northern District of California

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other persons similarly situated’ will continue to be subject to the challenged conduct and the

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claims raised are ‘so inherently transitory that the trial court will not have even enough time to rule

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on a motion for class certification before the proposed representative’s individual interest
expires.’”51 In determining whether prisoners’ claims are inherently transitory, the court must

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U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 397 (1980).

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Carty v. Nelson, 426 F.3d 1064, 1071 (9th Cir. 2005); Geraghty, 445 U.S. at 396-97.

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Johnson v. Rancho Santiago Cmty. College Dist., 623 F.3d 1011, 1018 (9th Cir. 2010).

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ACLU v. Lomax, 471 F.3d 1010, 1016 (9th Cir. 2006) (internal citations omitted) (requiring
“courts to look to changing circumstances that arise after the complaint is filed," and "[i]f a live
controversy no longer exists, the claim is moot").

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L.A. v. Lyons, 461 U.S. 95, 103 (1983) (holding that neither the existence of past injury nor
conjecture over the prospect of some future injury creates the case or controversy required for
jurisdiction. The assumption is that a plaintiff “will conduct [his or her] activities within the law
and so avoid prosecution and conviction” and subsequent incarceration (citing O’Shae v. Littleton,
414 U.S. 488, 495-97 (1974)).
51

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Genesis Healthcare Corp. v. Symczyk, 133 S. Ct. 1523, 1530 (2013) (quoting County of
Riverside, 500 U.S. at, 51-52 (internal quotation marks omitted)). In County of Riverside, class
certified comprised “all present and future prisoners in the Riverside County Jail including those
pretrial detainees arrested without warrants and held in the Riverside County Jail from August 1,
1987 to the present, and all such future detainees who have been or may be denied prompt probable
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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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focus on “the average length of detention in the county jail” and “must look at the claims of the
class as a whole” rather than Plaintiffs’ “individual claims for relief.”52

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If the inherently transitory exception applies, the mootness determination merges with the

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standing analysis as of the filing of the complaint.53 Inherently transitory claims “relate to [class

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representatives’] standing at the outset of the case in order to preserve the merits of the case for
judicial resolution.”54 If class claims fall within the transitory exception, a plaintiff need not file a
motion for class certification before the mooting of the plaintiff’s claim for injunctive relief,55
unlike cases in which the transitory exception does not apply.56
D.

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Title III of the ADA
The ADA’s purpose includes a national mandate to eliminate discrimination against

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individuals with disabilities and to help them to “‘integrate into the economic and social

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mainstream of American life.’”57 The ADA’s language is broad, emphasizes access to health care,

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cause, bail or arraignment hearings.” Id. See also Wade v. Kirkland, 118 F.3d 667, 670 (9th Cir.
1997).

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Wade, 118 F.3d at 670.

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Symczyk, 133 S. Ct. at 1531.

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Wade, 118 F.3d at 670 (internal quotation marks omitted).

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See County of Riverside, 500 U.S. at 51-52; Haro v. Sebelius, 747 F.3d 1099, 1110 (9th Cir.
2014) (holding that even though the plaintiff’s individual claims were mooted prior to the filing of
the motion for class certification, the claims of the class were inherently transitory, meaning that
the class’s “claim for injunctive relief is not moot, and that Article III’s justiciability requirements
are satisfied.”); Gomez v. Campbell-Ewald Co., 805 F. Supp. 2d 923, 928-30 (C.D. Cal. 2011).
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See Sosna, 419 U.S. at 393, 402-403 (holding that unless a case has been certified by the trial
court as a class action prior to the time that the case has been mooted with respect to the named
plaintiff, then dismissal is required by the "case or controversy" provisions of Article III of the
Federal Constitution); Arizonans for Official English v. Arizona, 520 U.S. 43, 68, n. 22 (1997)
("Mootness has been described as the doctrine of standing set in a time frame: The requisite
personal interest that must exist at the commencement of the litigation (standing) must continue
throughout its existence (mootness).") (internal quotation marks omitted).
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Docket No. 89 at 3; Martin v. PGA Tour, Inc. 532 U.S. 661, 675, 680 (2000) (stressing
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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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and extends to upholding rights and combatting disability discrimination in institutionalized
settings including prisons.58

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Title III of the ADA provides in part that “no individual shall be discriminated against on

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the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,

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advantages, or accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.”59 To survive a motion to
dismiss, 60 Title III requires a plaintiff to plead the following elements: (1) the plaintiff was
disabled within the meaning of the Act; (2) the plaintiff was discriminated against on the basis of

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For the Northern District of California

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that disability; and (3) the defendant owns, leases or leases to or operates a place of public

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accommodation.61 Under Title III, “professional offices of a health care provider, hospital, or other

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service establishment” are considered public accommodations.62

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To be liable under Title III of the ADA, an entity need not “own” the location, but may
merely “operate” a place of public accommodation in that space.63 The Ninth Circuit has held that

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Congress’ “expansive purpose” that the ADA be “a ‘clear and comprehensive national mandate’ to
eliminate discrimination against disabled individuals, and to integrate them ‘into the economic and
social mainstream of American life’”) (quoting H.R. REP. 101-485, pt. 2, 50).
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Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 212 (1998); Armstrong v.
Schwarzenegger, 622 F.3d 1058, 1068 (9th Cir. 2010); Armstrong v. Brown, 732 F.3d 955 (9th Cir.
2013); Armstrong v. Wilson, 124 F.3d 1019, 1023, 1025 (9th Cir. 1997) (citation omitted)
(“Nothing in the legislative history of the . . . ADA reflects an intent by Congress to exclude
prisons or prisoners from the reach of the statutes.”).

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See, e.g. Norkunas v. Park Rd. Shopping Ctr., Inc. 777 F. Supp. 2d 998, 999 (W.D.N.C. 2011)
aff’d, 474 F. App’x 369 (4th Cir. 2012) (granting motion to dismiss based on ADA Title III claim).

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ADA § 302(a), 42 U.S.C. § 12182(a).

See Docket No. 58 at 4; ADA § 302(a), 42 U.S.C. § 12182(a).

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Section 12181(7)(F) provides: “[t]he following private entities are considered public
accommodations for purposes of this subchapter, if the operations of such entities affect
commerce—. . . (F). . .a professional office of a health care provider, hospital, or other service
establishment.”
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42 U.S.C. § 12182(a); Lentini v. California Center for the Arts, Escondido, 370 F.3d 837, 849
(9th Cir. 2004).
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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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“to operate” is “to put or keep in operation, to control or direct the functioning of, or to conduct the

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affairs of; manage.”64 This is a broad definition,65 but this district has previously held an

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independent contractor must have some nexus establishing he was an “operator” to be subject to

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Title III of the ADA.66

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Courts have held that Title II of the ADA,67 as well as California’s Unruh Civil Rights
Act68 and the California Disabled Persons Act,69 apply to jails, but there is limited jurisprudence on
the applicability of Title III of the ADA to private health facilities in jails.70 In Wilkins-Jones,
however, Judge Chen recognized that a health care provider in the jail was a separate entity from

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Lentini, 370 F.3d at 849 (holding an employee who served as Director of Center Sales and Event
Services at the California Center for the Arts was an “operator” within the meaning of Title III, and
thus accountable for the discriminatory treatment of a theater patron with a disability, because he
“was in a position of authority, having the ability to instruct the Center staff on who could or could
not be admitted to the theater”); Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d
861, 878, n.14 (9th Cir. 2004).

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See e.g. Lentini, 370 F.3d at 849.

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Aikins v. St. Helena Hosp. 843 F. Supp 1329, 1335 (N.D. Cal. 1994).

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See, e.g., Yeskey, 524 U.S. at 212; Armstrong v. Schwarzenegger, 622 F.3d at 1068; Armstrong v.
Brown, 732 F.3d at 955; Armstrong v. Wilson, 124 F.3d at 1023, 1025; Wilkins-Jones v. County of
Alameda, 859 F. Supp. 2d 1039, 1054 (N.D. Cal. 2012) (finding “it is reasonable to consider a jail
a public place in the context of inmates’ rights to be free from discrimination on the basis of their
disabilities. While the general public is not permitted inside a jail at any given time, the
government has the power to compel members of the public to a jail under certain circumstances.
… [A] jail is more like schools and hospitals contemplated under the ADA, which also restrict
public access in certain times and circumstances but are nonetheless designed and intended to
provide services, goods, privileges, and advantages to members of the public” (internal quotation
marks and citations omitted)).

68

See Cal. Civ. Code § 51; Wilkins-Jones, 859 F. Supp. 2d at 1043; Isbister v. Boys’ Club of Santa
Cruz, 40 Cal. 3d 72, 83 (1985) (explaining The Unruh Act’s coverage in terms of “business
establishments” includes “places of public accommodation”).

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Civ. Code § 54.1 (protecting the rights of persons with disabilities to full and equal access to a
broad list of facilities and accommodations, including “medical facilities, including hospitals,
clinics, and physicians’ offices” and “places of public accommodation … to which the general
public is invited.” Cal. Civ. Code § 54.1(a)(1)); Wilkins-Jones, 859 F. Supp. 2d at 1043.
70

See Docket No. 89 at 5.

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Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

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the jail and a “business establishment” operating “for profit” within the facility.71 While Title II

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and Title III are “parallel provisions” with Title II covering only public entitles and Title III

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covering only private entities,72 “[t]here are many situations . . . in which public entities stand in

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very close relation to private entities that are covered by title III.”73 The result is that “certain

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activities may be affected, at least indirectly, by both titles. . . .Where public and private entities act
jointly, the public entity must ensure that the relevant requirements of title II are met; and the
private entity must ensure compliance with title III.”74
III. DISCUSSION

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For the Northern District of California

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A.

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Plaintiffs Have Standing to Pursue Their Claims
Defendants argue that those Plaintiffs who are no longer incarcerated do not have standing

for mootness and for lack of redressability because they are no longer subject to the conditions they
challenge. Citing Lyons, Defendants contend it must be assumed a released inmate “will conduct

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[his] activities within the law and so avoid prosecution and conviction” and incarceration, denying
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these Plaintiffs’ standing75 because their injury is too abstract and speculative.76 Defendants assert

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those Plaintiffs still in the jail and not a part of their motion to dismiss rebut Plaintiffs’ argument

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that their class is transitory,77 and because the class is not transitory, Plaintiffs cannot rely on

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20

71

21

72

22

Wilkins-Jones, 859 F. Supp. 2d at 1049.

Americans with Disabilities Act Title III Technical Assistance Manual Covering Public
Accommodations and Commercial Facilities, § III–1.7000, available at
http://www.ada.gov/taman3.html; Wilkins-Jones, 859 F. Supp. 2d at 1047.

23

73

Id.

24

74

Id.

25

75

See id.; Lyons, 461 U.S. at 103 (citing O’Shae, 414 U.S. at 495-97).

26

76

See Docket No. 90 at 2; O'Shae, 414 U.S. at 493-495.

77

See Docket No. 90 at 2.

27
28

12
Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

1

Armstrong v. Davis and similar cases because class certification has not been granted.78 “The

2

general rule remains for 42 U.S.C. § 1983 claims for deprivation of rights in a detention setting is

3

that the plaintiff must be incarcerated at the time of filing and throughout the pendency of the

4

matter. The reasoning for this flows from the principle established in Lyons.”79

5
6
7
8
9

Plaintiffs emphasize that because this is a class action for injunctive relief, the claims of the
putative class and subclass members must be considered when evaluating standing and mootness,
not just those of the named plaintiffs who seek to represent the class.80 Plaintiffs argue they qualify
for the transitory exception, under which a named plaintiff need only have standing at the time they

United States District Court
For the Northern District of California

10

enter the dispute,81 considering that the population of the jail is “transitory, fluid, and constantly

11

changing and evolving. Individual prisoners frequently come and go for stays of days, weeks, and

12

months. The vast majority of the jail’s population are pretrial detainees with completely

13

unpredictable, but generally brief, lengths of stay. The average term in the jail ranges from 30-40

14
days, far too short for a prisoner to raise claims about the conditions in the jail and for the court to
15
16
17
18
19
20
21
22
23

78

See id. at 4 (citing Von Colln v. County of Ventura, 189 F.R.D. 583, 590 (C.D. Cal. 1999)
(analyzing standing in conjunction with a motion for class certification); Parsons v. Ryan, Case
No. 13-cv-16396, 2014 U.S. App. LEXIS 10466 (9th Cir. Ariz. June 5, 2014) (appealing an order
certifying a class and a subclass of inmates in Arizona's prison system)); cf. Wade v. Kirkland, 118
F.3d 667, 669 (9th Cir. 1997) (deciding not whether the plaintiff’s claim was moot but rather
remanded the action to the trial court to determine whether the plaintiff could continue as a class
representative or whether other putative class members should be allowed to intervene); R.G. v.
Koller, 415 F. Supp. 2d 1129, 1137 (D. Haw. 2006) (holding “the plaintiffs in this case need not
engage in illegal conduct to be returned to [the juvenile facility]”).

24
79

25
26
27

See Docket No. 90 at 8; Lyons, 461 U.S. at 95 (neither the existence of past injury nor conjecture
over the prospect of some future injury creates the case or controversy required for jurisdiction).

80

See Docket No. 77 at 14.

81

County of Riverside, 500 U.S. at 51-52.

28
13
Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

1
2

issue a decision on class certification.82 Plaintiffs further highlight those Plaintiffs who have
returned to jail since Defendants filed their motions.83
Plaintiffs also argue that even if the transitory exception does not apply, the claims of

3
4
5
6

Plaintiffs who have now been released but are under supervision are not moot.84 Plaintiffs’
argument regarding supervision is especially pertinent to Plaintiff Yancey, who had been
transferred to a different institution by the time Plaintiffs’ first complaint was filed,85 and Plaintiff

7
8
9

Miller, who was supervised on probation and not in the jail on the date he became a named plaintiff
in this suit.86
On balance, the court is persuaded that the short average length of stay of prisoners in the

United States District Court
For the Northern District of California

10
11

putative class and the plodding speed of legal action qualify Plaintiffs for the inherently transitory

12

exception.87

13

First, Defendants may be right that county jails in the State of California have forever

14
changed as a result of realignment under Assembly Bill 109, more formally known as “The 2011
15
16

Realignment Legislation Addressing Public Safety.” The bill shifted responsibility for

17

incarceration and parole supervision of prisoners convicted of certain types of crimes from the state

18

prison system to the counties.88 But the vast majority of inmates in the jail continue to be pretrial

19
20
21

82

See Docket No. 77 at 1.

22

83

See Docket Nos. 75; Docket No. 77 at 21; Docket Nos. 98 and 114.

23

84

See Docket No. 77 at 8, 21; Armstrong v. Davis, 275 F.3d at 866.

24

85

See Docket No. 77 at 19; Docket No. 114.

25

86

See Docket No. 77 at 8.

26

87

See Wade, 118 F.3d at 670; Symczyk, 133 S. Ct. at 1530; County of Riverside, 500 U.S. at 51-52.

88

See Coleman v. Brown, 922 F. Supp. 2d 1004, 1014-15 (E.D. Cal. 2013).

27
28

14
Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

1

detainees.89 For such inmates, “the length of detention cannot be ascertained at the outset and may

2

be ended before class certification by various circumstances.”90 Nor do those Plaintiffs not subject

3

to Defendants’ motion suggest otherwise. Even those who can expect to remain in the jail for two

4

years or more will likely move on before the resolution of this litigation, which in its second year

5

has yet to reach even the class certification stage.

6
7
8
9

Second, the average length of incarceration for this largely pretrial detainee population is
uncertain and short—only approximately 34 days.91 This is too short a period for the court to
resolve a motion for class certification.
Third, because all inmates in the jail are alleged to be at risk simply by virtue of being

United States District Court
For the Northern District of California

10
11

detained, it is “certain that other persons similarly situated will continue to be subject to the

12

challenged conduct.”92 Under these circumstances, the mooting of Plaintiffs’ individual claims,

13
14

even if before the filing of a motion for class certification, does not impact their standing as long as
each plaintiff had standing when they entered the case.93

15
16
17
18
19

89

See Docket No. 49-13, Ex. BB (daily jail population statistics showing that for the period
between January 1, 2014 and March 10, 2014, unsentenced prisoners made up a minimum of 67
percent and a maximum of 79 percent of the jail population).
90

20
21
22
23

Lyon v. U.S. Immigration & Customs Enforcement, Case No. 3:13-cv-5878-EMC, 2014 WL
1493846, at *9 (N.D. Cal. Apr. 16, 2014); see Olson v. Brown, 594 F.3d 577, 582 (7th Cir. 2010)
(“[T]he length of incarceration in a county jail generally cannot be determined at the outset and is
subject to a number of unpredictable factors”).
91

See Docket No. 49-13, Ex. AA, Ex. J at 16.

92

Symczyk, 133 S. Ct. at 1531 (internal quotation marks omitted).

24
93

25
26
27

See County of Riverside, 500 U.S. at 51-52; cf. Amador v. Andrews, 655 F.3d 89, 100-01 (2d Cir.
2011); Olson v. Brown, 594 F.3d 577, 580-84 (7th Cir. 2010); Butler v. Suffolk County, 289 F.R.D.
80, 91-92 (E.D.N.Y. 2013); Chief Goes Out v. Missoula County, Case No. CV-12-155-M-DWM,
2013 WL 139938, at *6-7 (D. Mont. Jan. 10, 2013); see also Or. Advocacy Ctr. v. Mink, 322 F.3d
1101, 1116-18 (9th Cir. 2003); Preap v. Johnson, Case No. 4:13-cv-5754-YGR, 2014 WL
1995064, at *2, n.2 (N.D. Cal. May 15, 2014); Lyon, 2014 WL 1493846, at *8.

28
15
Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

Those Plaintiffs not incarcerated at the jail at the time the complaint was filed stand apart

1
2

from the other Plaintiffs.94 For example, Plaintiff Yancey is presently housed in the state detention

3

facility in Corcoran. Under Armstrong v. Davis, however, he too had standing when he became a

4

named plaintiff in this suit because he was still subject to the disputed conditions of the jail.95

5
6
7
8
9

Even if his release is not scheduled for a number of years, upon the completion of his prison
sentence, Plaintiff Yancey will necessarily be supervised on parole in Monterey County by the
California Department of Corrections and Rehabilitation’s Division of Adult Parole Operations.96
Plaintiffs also have sufficiently alleged that in the meantime, Plaintiff Yancey would be held in the

United States District Court
For the Northern District of California

10

jail for further proceedings before the Monterey Superior Court during the period of his sentence.

11

As another example, Plaintiff Miller too was already under supervision and subject to the

12

conditions of the jail when he entered the suit.97 Both therefore have “a personal stake in the

13

outcome of the controversy” and the parties to the controversy are plainly adverse to each other.98

14
In sum, all Plaintiffs may proceed.
15
16

B.

CFMG asserts Plaintiffs’ sixth cause of action fails to state a claim because CFMG does not

17
18

CFMG’s Motion to Dismiss Claim Six Regarding Title III of the ADA

own, lease, or operate a place of “public accommodation” pursuant to 42 U.S.C. § 12181(7)(F).99

19
20
21
22
23
24

94

See Docket No. 77 at 8.

95

See id. at 19; Docket No. 114.

96

See Cal. Penal Code §§ 3000.08(a) & (b), Cal. Penal Code § 3003(a) (requiring individuals
released from prison to be supervised in the country of their “last legal residence . . . prior to his or
her incarceration,” which for Plaintiff Yancey is Monterey County).

25

97

See Docket No. 77 at 8; Docket No. 114.

26

98

See Armstrong v. Davis, 275 F.3d at 866.

27

99

See Docket No. 83.

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16
Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

1

Rather, CFMG argues it is an independent contractor with the County of Monterey.100 It does not

2

operate the physical space of the jail, neither the jail nor its medical services are open to the

3

public,101 and many of Plaintiffs’ allegations against CFMG did not occur in CFMG’s jail clinical

4

rooms.102 CFMG argues Plaintiffs’ claim against them is superfluous, because Plaintiffs already

5

have a remedy against the jail under Title II.103

6

Plaintiffs respond that CFMG is an operator of a place of public accommodation in that it

7
8
9

“operates a professional office of a health care provider, hospital, or other service establishment”
within the jail—Plaintiffs do not allege CFMG operates other functions of the jail.104 The “services

United States District Court
For the Northern District of California

10

establishment” category of public accommodations explicitly includes a “professional office of a

11

health care provider” and a “hospital” as places of public accommodation under Title III.105

12

Plaintiffs further argue CFMG is not insulated from Title III liability just because its health care

13

facilities in the jail are not open to the general public.106 Instead, the health care facilities that

14
CFMG operates in the jail are covered service establishments and public accommodations within
15
16

the meaning of Title III.107 Under its contract with the jail, CFMG is the “sole provider” of health

17
100

18

See Docket No. 58 at 6.

101

19
20
21

See id. at 5-6 (“It is neither enumerated within the statutory definition of 42 U.S.C. § 12181, and
is not a place ‘open to the public’”); See, e.g., Disabled Rights Action Comm. v. Las Vegas Events,
Inc., 375 F.3d 861, 873 (9th Cir. 2004); cf. Debord v Board of Educ., 126 F.3d 1102 1106 (8th Cir.
1997) (regarding a school); cf. Baaske v. City of Rolling Meadows, 191 F. Supp. 2d 1009, 1013
(N.D. Ill. 2002) (regarding a city).
102

See Docket No. 89 at 6-7.

103

See id. at 4; Docket No. 59 at 5.

24

104

See Docket No. 41 at ¶ 398.

25

105

See 42 U.S.C. § 12181(7)(F).

26

106

See Docket No. 83 at 1.

27

107

See id. at 2.

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23

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17
Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

1

services in the jail and so must be responsible for the substantive Title III violations CFMG does

2

not contest.108 CFMG therefore has a nexus establishing itself as an operator of the medical

3

facilities in the jail.109

4
5

On balance, the court is persuaded that Plaintiffs have sufficiently alleged that CFMG
operates of a place of public accommodation for purposes of Title III.

6

First, in Martin, the Supreme Court stressed Congress’ “expansive purpose”110 that the

7
8
9

ADA be “a ‘clear and comprehensive national mandate’ to eliminate discrimination against
disabled individuals, and to integrate them ‘into the economic and social mainstream of American

United States District Court
For the Northern District of California

10

life.’”111 The legislative intent was that the statute reach all “critical areas” of society where

11

persons with disabilities face discrimination, two of which are involved in the instant case:

12

“‘discrimination against individuals with disabilities persists in such critical areas as employment .

13
14

. . transportation, communication, recreation, institutionalization, health services, voting, and
access to public services.’”112

15
Second, only recently, this district held that a private provider of county jail health care

16
17

could face claims for disability discrimination.113 While neither of the two California statutes at

18
19
20
21

108

See id. at 1.

109

See id. at 6.

110

See Martin, 532 U.S. 661 at 680.

111

Id. at 675 (quoting H.R. REP. 101-485, pt. 2, 50).

112

Id. (quoting 42 U.S.C. § 12101(a)(3)).

22
23
24
25
26
27

113

Wilkins-Jones, 859 F. Supp. 2d at 1054 (regarding the Unruh Act and the California Disabled
Person Act).

28
18
Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

1
2

issue in Wilkins-Jones were Title III of the ADA, all three statutes require sufficient allegations to
tie the alleged discrimination to the operation of a physical place.114
Third, the complaint cites “the jail” as the specific place where the discriminatory acts are

3
4

alleged to have taken place.115 To be sure, the “place” of jails is typically considered to be the

5

territory of Title II of the ADA, not Title III.116 But courts have consistently found Title III applies

6
7
8

to “places of public accommodation” within places that normally do not fit into Title III either
because they are owned by a public entity or are operated for other purposes by a public entity.117

9
114

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19

Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000) (holding that
for Title III to apply to a private entity operating a “place of public accommodation,” a court must
evaluate whether “some connection” exists between “an actual physical place” and the private
entity employing allegedly discriminatory practices); Wilkins-Jones, 859 F. Supp. 2d at 1049
(“PHS/Corizon is thus qualitatively different from a correctional facility itself; while the County's
operation of a jail may not be a business, PHS/Corizon is a business establishment operating for
profit within a correctional facility”) (citing Burks v. Poppy Const. Co., 57 Cal.2d 463, 468–69
(1962) (“The word ‘establishment,’ as broadly defined, includes not only a fixed location, such as
the place where one is permanently fixed for residence or business, but also a permanent
commercial force or organization or a permanent settled position (as in life or business)” (internal
citations and quotation marks omitted)); id. at 1054-55 (holding that while the CDPA applies to
jails and the accommodations and services provided therein, it is concerned solely with physical
access to public spaces, so plaintiffs could not maintain a claim based on the denial of service);
Lopez v. County of Tulare, Case No. CV-F-11-1547–LJO–BAM, 2012 WL 33244, at *10 (E.D.
Cal. Jan. 6, 2012) (“The CDPA only guarantees physical access to a facility”); Anderson v. County
of Siskiyou, Case No. 4:10-cv-01428-SBA, 2010 WL 3619821, at *6 (N.D. Cal. Sept. 13, 2010)
(dismissing claim where it is “predicated upon the alleged denial of services, not the denial of
access to a public facility”).

20
115

See, e.g., Docket No. 41 at 2-3, 8, 129.

116

See Yeskey, 524 U.S. at 212.

21
22
117

23
24
25
26
27
28

See, e.g., Disabled Rights Action Comm., 375 F.3d at 878 (regarding private association
operating a rodeo within a state-owned arena, holding a Title III-covered facility was still covered
even if its activities were carried out at or within a publicly-owned facility which is not covered by
Title III); Fiedler v. Am. Multi–Cinema, Inc., 871 F.Supp. 35, 37-38 (D.D.C. 1994) (concluding
that Title III was applicable to AMC although the federal government owned the property, relying
primarily upon the language of Title III, the DOJ regulations, and the DOJ Title III Technical
Assistance Manual); Bowers v. Nat'l Collegiate Athletic Ass'n, 9 F. Supp. 2d 460, 485–89 (D.N.J.
1998) (holding that private college athletic association could be held liable under Title III for its
operation of places of public accommodation owned by its member colleges and universities);
Tatum v. Nat'l Collegiate Athletic Ass'n, 992 F.Supp. 1114, 1119–21 (E.D. Mo. 1998) (finding that
19
Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS

1

In finding a county jail to be a “public place” or “place of public accommodation” under the Unruh

2

Act and the California Disabled Person Act pertaining to the operations of a private healthcare

3

provider in the jail, Judge Chen in Wilkins-Jones articulated:

4

[I]t is reasonable to consider a jail a public place in the context of inmates’ rights to be free
from discrimination on the basis of their disabilities. While the general public is not
permitted inside a jail at any given time, the government has the power to compel members
of the public to a jail under certain circumstances. … [A] jail is more like schools and
hospitals contemplated under the ADA, which also restrict public access in certain times
and circumstances but are nonetheless designed and intended to provide services, goods,
privileges, and advantages to members of the public.118

5
6
7
8
9

This same reasoning makes just as much sense when considering whether to understand whether

United States District Court
For the Northern District of California

10

“place of public accommodation” under Title III also covers private operations within jails.

11

Although inartful in identifying CFMG as the accommodation itself, Plaintiffs have sufficiently

12

alleged that CFMG “operates” a professional office in the actual physical “place” of the jail to

13

provide the “public accommodation” of all required medical care.119 CFMG’s motion to dismiss

14
must be denied.
15
IV. CONCLUSION

16

All of Defendants’ motions to dismiss are DENIED. All named plaintiffs remain in the

17
18

case, and Plaintiffs’ sixth cause of action stands.

19
20
21
22
23
24
25
26
27

plaintiff had a “reasonable likelihood” of demonstrating that private college athletic association
“operates” the athletic facilities owned by its member colleges and universities); Ganden v. Nat'l
Collegiate Athletic Ass'n, Case No. 96-C-6953, 1996 WL 680000, at *11 (N.D. Ill. Nov. 21, 1996)
(holding that regardless of whether a public university owns or operates the athletic facility, private
college athletic association may also “operate” the facility for Title III purposes); Butler v. Nat'l
Collegiate Athletic Ass'n, Case No. C96–1656D, 1996 WL 1058233, at *4–5 (W.D. Wash. Nov. 8,
1996) (noting that Title III does not provide that public facilities operated by private entities cannot
constitute public accommodations, and holding that the NCAA may be covered by Title III if it
operates the athletic facilities owned by the state university).
118

Wilkins-Jones, 859 F. Supp. 2d at 1049, 1054-55; see also Yeskey, 524 U.S. at 212.

119

See, e.g., Docket No. 41 at 2-3, 8, 129; see Docket No. 83 at 15.

28
20
Case No. 5:13-cv-02354-PSG
ORDER DENYING DEFENDANTS’ MOTIONS TO DISMISS