Williams v. Resler et al
Filing
69
REPORT AND RECOMMENDATION Re Defendant's Motion to Dismiss Plaintiff's Second Amended Complaint [Doc. No. 60 ]. Signed by Magistrate Judge Karen S. Crawford on 8/24/2018.(All non-registered users served via U.S. Mail Service)(anh)
FILED
1
AUG 2 4 2018
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
SOUTHERN DISTRICT OF CALIFORNIA
9
10
11
STEVEN GREGORY WILLIAMS,
Plaintiff,
12
13
v.
14
S. RESLER,
Defendant.
15
16
Case No.: 3:16-cv-02538-CAB-KSC
REPORT AND
RECOMMENDATION RE
DEFENDANT'S MOTION TO
DISMISS PLAINTIFF'S SECOND
AMENDED COMPLAINT.
[Doc. No. 60)
17
18
Plaintiff Steven Gregory Williams, a state prisoner proceeding pro se and in forma
19 pauperis, filed this civil rights action under Title 42 U.S.C. § 1983 alleging defendants
20
21
violated his rights guaranteed under Title II of the Americans with Disabilities Act
22
reasons discussed in greater detail below, it is RECOMMENDED that defendant's Motion
23
24
to Dismiss be granted in part and denied in part.
("ADA") and the Rehabilitation Act ("RA"). [Doc. No. 59 ("SAC" hereon)]. For the
BACKGROUND
25
I.
26
Plaintiff is an incarcerated individual at the California Medical Facility in Vacaville,
27
California, however at the times relevant to the dispute before this Court, plaintiff was
28
incarcerated at the Richard J. Donovan Correctional Facility ("RJDCF") in San Diego,
Factual Background
3: 16-cv-02538-CAB-KSC
1
California. [Id., at p. 4]. Plaintiff alleges he has a permanent mobility impairment resulting,
2
in part, from a fracture to his left leg that has not healed properly. [Id., at pp. 3-4]. As a
3
result, plaintiff was allegedly prescribed by orthopedic specialist, Dr. Cham, a
4
"CamWalker boot" and walker with locking wheels and a seat. [Id.].
5
On December 2 7, 2015, plaintiff contends he entered the prison Dining Hall 1 using
6
a walker while wearing the boot on his left foot and sat at the ADA designated table using
7
the seat of his walker. [Id., at 5]. An ADA table has no attached seating, whereas regular
8
dining tables have seats with metal struts supporting them that would preclude, for
9
example, a wheelchair bound individual from effectively using the table. The
10
"CamWalker" boot, plaintiff asserts, precludes him from sitting at the able-bodied tables
11
because of "how easy it was for [his] CamWalker boot on [his] left leg to get caught
12
underneath one of the stainless steel seats in the Dining Halls." [Id. at p. 7]. Shortly
13
thereafter, defendant allegedly approached plaintiff and asked that he get up from the ADA
14
table and sit at a regular table with the able-bodied inmates. [Id. at p. 5]. Plaintiff explained
15
that he was mobility impaired, that he was entitled to sit at the ADA table, 1 and that "[he]
16
was not going to move from the ADA table." [Id.]. Plaintiff claims that during that time,
17
other ADA tables were available for incoming wheelchair-bound inmates to utilize. [Id. at
18
6]. Defendant then "escorted [p]laintiff[away from the ADA table] by force." [Id. at 7]. At
19
that time plaintiff caught the attention of Sergeant C. Hernandez, defendant's superior
20
officer, who "instructed [d]efendant in [p]laintiffs presence that [he] had a right to sit[] ..
21
. at the ADA tables." [Id.] As a result of those events, plaintiff contends he was "denied
22
the benefits of the use ofRJDCF's Dining Hall's ADA table." [Id.]. 2
23
The following day, December 28, 2015, defendant issued plaintiff a Serious Rule
24
25
26
27
28
1
Plaintiff alleges that he was allowed to sit at an ADA table because he was deemed mobility impaired
by his treating physician at RJDCF. [FAC, at pp. 4-5; Exh. F, at pp. 28-30].
2
Plaintiff alleges that he filed a form requesting Sergeant C. Hernandez to confirm their discussion on
December 27, 2015, but Sergeant C. Hernandez has yet to respond to the request. [SAC, at p. 8; Exh. D,
at 22].
2
3:16-cv-02538-CAB-KSC
1 Violation Report that charged him with disobeying a direct order. [Id., at 6; Exh. E, p. 24
2
("RVR" hereon)]. Facility Captain Garza and Correctional Sergeant Hernandez signed off
3
on the RVR, and Correctional Sergeant Servantes was the Senior Hearing Officer at the
4
hearing where plaintiff was found guilty. [Id., at Exh. E, pp. 24-26].
5
On January 20, 2016, defendant allegedly "demanded that [p]laintiff get up from an
6
ADA table where [p]laintiffwas sitting in his [w]alker and ordered [p]laintiffto exit [the]
7
dining hall" so that defendant could conduct a clothed body search of plaintiff. [SAC, at p.
8
8]. Plaintiff claims he complied with defendant throughout the search, but was nonetheless
9
handcuffed and taken to a holding cell. [Id., at p. 9]. Along the way, defendant attempted
10
to knock plaintiff off balance by pushing and shoving him. [Id.]. Defendant also allegedly
11
stated he would continue to harass plaintiff, tear up his cell, and ensure that he dies in
12
prison. [Id.]. Shortly thereafter, defendant's superior officer, Sergeant H. Starr, arrived and
13
spoke with plaintiff. Plaintiff demonstrated to Sergeant Starr how easily his boot could
14
become stuck under a regular table, which might cause him to fall and further injure
15
himself. [Id.].
16
17
Plaintiff sues defendant in his official capacity and requests only money damages as
relief. [Id., at pp. 2, 3, 17].
18
II.
Procedural Background
19
Plaintiff filed the First Amended Complaint on December 2, 2016. [Doc. No. 4].
20
Defendants filed a Motion to Dismiss on May 30, 2017. [Doc. No. 23]. The Court adopted
21
the Magistrate Judge's Report and Recommendation, dismissing without prejudice
22
plaintiffs claim against defendant and granting plaintiff leave to amend his complaint
23
against defendant under Tile II of the ADA and§ 504 of the RA. [Doc. No. 58]. 3 Plaintiff
24
filed the SAC on April 26, 2018. [Doc. No. 59]. Defendant filed the instant Motion to
25
26
27
28
3
Plaintiffs First Amended Complaint [Doc. No. 4 ("FAC" hereon)] included several additional claims
against several additional defendants. Those claims were dismissed with prejudice. [Doc. No. 58 (Order
Adopting Report and Recommendation [Doc. No. 53])].
3
3: 16-cv-02538-CAB-KSC
1
Dismiss on May 10, 2018. [Doc. No. 60 ("MTD" hereon)]. Plaintiff filed his Opposition to
2
defendant's MTD on July 20, 2018. [Doc. No. 67, ("Opposition" hereon)].
3
DISCUSSION
4
A.
5
A plaintiff's complaint must provide a "short and plain statement of the claim
6
showing that [he] is entitled to relief." Johnson v. Riverside Healthcare Sys., LP, 534 F.3d
7
1116, 1122 (9th Cir. 2008) (citing Fed. R. Civ. P. 8(a)(2)). "Specific facts are not necessary;
8
the statement need only 'give the defendant[s] fair notice of what ... the claim is and the
9
grounds upon which it rests."' Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Motion to Dismiss Standards
10
A motion to dismiss under Federal Rule 12(b)(6) may be based on either a "'lack of
11
a cognizable legal theory' or 'the absence of sufficient facts alleged under a cognizable
12
legal theory."' Johnson, 534 F.3d at 1121. A motion to dismiss should be granted ifthe
13
plaintiff fails to proffer "enough facts to state a claim [for] relief that is plausible on its
14
face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility
15
when the plaintiff pleads factual content that allows the court to draw the reasonable
16
inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556
17
U.S. 662, 678 (2009). When considering a Rule 12(b)(6) motion to dismiss, the Court must
18
"accept all allegations of material fact in the complaint as true and construe them in the
19
light most favorable to the non-moving party." Cedars-Sinai Med. Ctr. v. Nat 'l League of
20
Postmasters, 497 F.3d 972, 975 (9th Cir. 2007). However, it is not necessary for the Court
21
"to accept as true allegations that are merely conclusory, unwarranted deductions of fact,
22
or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th
23
Cir. 2001 ). "Threadbare recitals of the elements of a cause of action, supported by mere
24
conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. "Factual allegations must
25
be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555.
26
That said, "[a] document filed prose is to be liberally construed, and 'a pro se
27
complaint, however inartfully pleaded, must be held to less stringent standards than formal
28
pleadings drafted by lawyers ...." Erickson, 551 U.S. at 94 (2007) (internal citations
4
3: 16-cv-02538-CAB-KSC
1 omitted). Particularly in civil rights cases, courts have an obligation to construe the
2
pleadings liberally and to afford the plaintiff the benefit of the doubt. Bretz v. Kelman, 773
3 F.2d 1026, 1027 (9th Cir. 1985).
1. Allegations in a Complaint that are Contradicted by Attached
4
Exhibits
5
6
The Court finds it necessary to state at the outset the standard by which it evaluates
7
any attached exhibits that might contradict or undermine the SAC. Defendant's reliance on
8 the Seventh Circuit standard for handing allegations in a complaint that are contradicted
9
by attached exhibits is misguided. [Doc. No. 60-1, p. 7 (citing Thompson v. Ill. Dep't of
10
Prof'! Reg., 300 F.3d 750, 754 (7th Cir. 2002) ("when a written instrument contradicts
11
allegations in a complaint to which it is attached, the exhibit trumps the allegations"))].
12
The Ninth Circuit has held that a court "need not ... accept as true allegations that
13
contradict matters properly subject to judicial notice or by exhibit." Sprewell, 266 F.3d at
14
988 (emphasis added). That standard does not necessitate that exhibits attached to a
15
complaint "trump[]" allegations made in the complaint. Thompson, 300 F. 3d at 754.
16
Instead, when a court in this circuit weighs contradictory exhibits against allegations in a
17
complaint, a court may deviate from the presumed truthfulness of an allegation by
18
exercising its reasoned judgment and "drawing on its judicial experience and common
19
sense." Iqbal, 566 U.S. at 679; see also Sprewell, 266 F .3d at 988 ("a plaintiff can ... plead
20
himself out of a claim by including unnecessary details contrary to his claims" (emphasis
21
added)). This Court will not apply the mechanical standard argued by defendant. Rather,
22
this Court will exercise its judgment consistent with Ninth Circuit standards, mindful of
23
the leniency afforded pro se plaintiffs.
24
B.
25
To state a claim for violation of Title II of the ADA, a plaintiff must allege four
26
elements:
27
28
ADA and Rehabilitation Act Claim
(1) [H]e is an individual with a disability; (2) he is otherwise qualified to
participate in or receive the benefit of some public entity's services,
5
3: l 6-cv-02538-CAB-KSC
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
programs, or activities; (3) he was either excluded from participation in or
denied the benefits of the public entity's services, programs, or activities,
or was otherwise discriminated against by the public entity; and (4) such
exclusion, denial of benefits, or discrimination was by reason of [his]
disability.
O'Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007); see also Thompson
v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); Duvall v. County of Kitsap, 260 F.3d 1124
(9th Cir. 2001 ). Title II of the ADA was modeled after § 504 of the Rehabilitation Act and
is thus analyzed under the same standard. Duvall, 260 F.3d at 1135-36. A state official
acting in his official capacity may be a proper defendant pursuant to an ADA Title II claim.
Miranda v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003); cf Vinson v. Thomas, 288
F.3d 1145, 1148 (9th Cir. 2002) (affirming that plaintiffs cannot bring a claim against
defendants in their individual capacities under Title II of the ADA).
To recover money damages under Title II of the ADA or§ 504 of the Rehabilitation
Act, "a plaintiff must prove intentional discrimination on the part of the defendant." Duvall,
260 F.3d at 1138; see also Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002) ("The
same remedies are available for violations of Title II of the ADA and § 504 of the
[Rehabilitation Act]."). "Intentional discrimination" means "deliberate indifference"
which requires two prongs: "[(1)] knowledge that a harm to a federally protected right is
substantially likely, and [(2)] a failure to act upon that likelihood." Duvall, 260 F.3d at
1139. The second prong is not satisfied if the failure to fulfill the duty to accommodate
results from mere negligence. Id. Rather, there must be "an element of deliberateness." Id.
In the prison context, a plaintiff must show not only a violation, but also that the challenged
policy is not reasonably related to the prison's legitimate penological interests. Pierce v.
County of Orange, 526 F.3d 1190, 1216-17 (9th Cir. 2008). Put differently, inmates are
entitled to "reasonable accommodations, not to optimal ones finely tuned to [inmates']
preferences." Nunes v. Mass. Dep't of Corr., 766 F.3d 126, 146 (1st. Cir. 2014); see also
Thomas v. Pa. Dept. of Corr., 615 F. Supp. 2d 411 (W.D. Pa. 2009) (finding no deliberate
28
6
3:16-cv-02538-CAB-KSC
1
indifference to plaintiffs handicap of an above the knee amputation when prison officials
2
denied plaintiff a handicap cell, but was instead given a bottom bunk and a cell on the
3
bottom tier).
4
Plaintiff alleges in the SAC that he is entitled to ADA benefits [SAC, at p. 6-7; Exhs.
5
A, B, C, and F], and that RJDCF provided ADA-accessible tables in the dining hall at
6
which he had a right to sit [Id., at p. 5].
7
Defendant argues in his Motion that plaintiffs SAC fails to cure the deficiencies of
8
plaintiffs First Amended Complaint. [MTD, at p. l]. The factual circumstances differ
9
between the two incidents in plaintiffs SAC, and so are analyzed separately below.
10
1. December 27, 2015 Incident
11
Defendant first argues that plaintiffs SAC fails to demonstrate that he was denied
12
the benefit of utilizing the dining hall on December 27, 2015, thereby failing to fulfill the
13
third element of the O'Guinn standard. [Id., at p. 5]. The Court maintains, as stated in its
14
prior Report and Recommendation, that the central question is whether plaintiff was
15
wrongfully denied access to an ADA table in a RJDCF dining hall, not whether he was
16
denied access to the dining hall. [Doc. No. 23, at p. 9]. Plaintiffs allegations regarding the
17
December incident may be divided into two parts: (1) what happened before plaintiff
18
allegedly spoke with Sergeant Hernandez; and, (2) what happened during and after that
19
conversation.
20
The Court finds that plaintiff alleges facts sufficient to create a plausible inference
21
that defendant denied plaintiff access to the ADA tables, thus meeting the first three prongs
22
of the O'Guinn standard. [SAC, at pp. 6-7, 24]. Specifically, plaintiff alleges that the ADA
23
tables had ample space for him and other differently-abled inmates at the time. [Id., at p.
24
6]. Plaintiff further alleges that defendant ordered him to "move and sit with the able-
25
bodied [inmates]." [Id.]. When plaintiff refused, he alleges that defendant forcibly removed
26
him from the ADA tables. [Id., at p. 7]. The fourth prong of the O'Guinn standard requires
27
that defendant acted with deliberate indifference in harming plaintiff. Duvall, 260 F.3d at
28
1138-39. Plaintiff only alleges that defendant was "aware of [his] walker," and had
7
3: 16-cv-02538-CAB-KSC
1 previously observed him use it to "sit at an ADA table." [SAC, at p. 6]. At most, plaintiffs
2
allegations support the conclusion that defendant was negligent in asking plaintiff to move.
3
Negligence does not equal deliberate indifference, and so plaintiffs claim fails. Duvall,
4
260 F.3d at 1139. 4
5
Moreover, "[i]nmates ... must promptly and courteously obey written and verbal
6
orders." Cal. Code Regs. tit. 15, § 3005(b). "[§ 3005(b)] contains no exception to the
7
requirement that inmates promptly and courteously obey written and verbal orders and
8
instructions from staff." Lopez v. Galaza, 2006 WL 3147686, *11 (E.D. Cal. Nov. 1st,
9
2006). The Ninth Circuit has overlooked prisoners' behavior in retaliatory claim cases.
10
See Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985). Even then, for a prisoner's
11
behavior to be disregarded, a claim must allege facts sufficient to support a plausible
12
inference that a constitutional right has been violated. See Sheppard v. Quillen, 840 F.3d
13
686, 688 (9th Cir. 2016) (reasoning that where factual issues remained as to prison guard's
14
motives in taking action against prisoner, "it is often beneficial to analyze whether the
15
relevant facts make out a constitutional violation before determining whether the right at
16
issue is clearly established" (internal quotations omitted)). Here, plaintiff disobeyed
17
defendant's direct order to move tables. [SAC, at pp. 6-7, 24]. Defendant then "escorted
18
plaintiff [out of the dining hall]" as a response to plaintiffs refusal to comply with
19
defendant's direct order. [SAC, at p.7]. This Court has determined that defendant's
20
21
22
23
24
25
26
27
28
4
Defendant argues that the Court should consider an exhibit included in plaintiffs FAC that is not in the
SAC. That argument is misguided. The Court agrees with plaintiff that the SAC "supersedes" the FAC.
[Opposition, p. 8]. In the Ninth Circuit, "factual assertions in [complaints], unless amended, are
conclusively binding on the party who made them." American Title Ins. Co. v. Lace/aw Corp., 861 F.2d
224, 226 (9th Cir. 1988) (emphasis added). Defendant's Motion to Dismiss is in response to plaintiffs
SAC. Plaintiff is not bound by allegations he made in his FAC, and neither is this Court. See PAE
Government Services, Inc. v. MP RI, Inc., 514 F.3d 856, 858 (9th Cir. 2007) ("[The District Court]
determined that the allegations in the amended complaint were unfounded because they contradicted ...
earlier allegations [the plaintiff] made in its original complaint. But the Federal Rules of Civil Procedure
do not authorize a district court to adjudicate claims on the merits [in deciding a motion to dismiss]; the
court may only review claims for legal sufficiency."). Given the leniency extended to prose plaintiffs,
the Court declines to consider the exhibit from the FAC.
8
3:16-cv-02538-CAB-KSC
1 negligence did not support plaintiff's claim under the ADA and RA. While plaintiff might
2
be entitled to sit at the ADA tables, he is not entitled to disobey a direct order from a prison
3
guard who was not violating his rights.
4
5
This Court finds no violation at this point in the incident because defendant's actions
do not rise to the level of deliberateness necessary to state a claim under the ADA or RA.
6
Turning to the events alleged after plaintiff was able to draw the attention of Sergeant
7
Hernandez, and construing the SAC in the light most favorable to plaintiff, the Court again
8
finds that plaintiff has not alleged facts as to whether he was denied access to the ADA
9
tables. The third prong of the 0 'Guinn standard requires that plaintiff actually suffered
10
some harm-that he was "denied the benefits of' RJDCF's ADA accommodations.
11
O'Guinn, 502 F.3d at 1060. The SAC alleges only that Sgt. Hernandez "instructed
12
[d]efendant in [p]laintiff's presence that [he] had a right to sit[] ... at the ADA tables."
13
[SAC, at p. 7]. For plaintiff to satisfy the O'Guinn standard, he would need to allege facts
14
as to what occurred after his conversation with Sgt. Hernandez. However, plaintiff does
15
not do so. It is unclear whether plaintiff was allowed to return to the dining hall and eat his
16
meal at the ADA table, and this Court declines to make an inference based on the
17
allegations in the SAC. Therefore, there is no violation under the ADA or RA.
18
It is therefore RECOI\fMENDED that defendant's Motion to Dismiss be GRANTED
19
as to plaintiff's claims against defendant for the December 27, 2015 incident. Since
20
plaintiff can remedy the defects in the SAC, the court RECOMMENDS that the dismissal
21
be WITHOUT PREJUDICE and plaintiff be given leave to amend the SAC.
22
2. January 20, 2016 Incident
23
Defendant also argues that plaintiff's SAC fails to demonstrate that he was denied
24
access to the dining hall's ADA tables on January 20, 2016 because plaintiff's allegations
25
are contradicted by an exhibit attached to his amended complaint. [MTD, at p. 7 (citing
26
SAC, at p. 8; Exh. G ("Weatherford Declaration" hereon))]. Plaintiff contests that the
27
Weatherford Declaration does not contradict his allegations and that defendant
28
mischaracterizes the declaration in his MTD. [Opposition, p. 8]. The Weatherford
9
3: l 6-cv-02538-CAB-KSC
1 Declaration, consisting of two versions of inmate Walter Weatherford's eyewitness
2 account of the events on January 20, state that defendant had pulled plaintiff over as
3 plaintiff exited the dining hall. In the handwritten version, Weatherford states that he
4 "witnessed [defendant] pull [plaintiff] over as he [exited] the chow hall." [Weatherford
5 Declaration, SAC at p. 32 (emphasis added)]. The typed version states that defendant
6 pulled plaintiff over "outside [the dining hall] as [defendant] exited [the dining hall]." [Id.
7
at p. 33 (emphasis added)]. Weatherford acknowledges that he was standing "[at] a
8 distance" from plaintiff when he witnessed the incident.· [Id.]. He also corroborates
9 plaintiff's allegation that defendant pushed, shoved, and handcuffed him before escorting
10 him to a holding cell. [Id. at pp. 33-34].
11
Applying the Ninth Circuit standard articulated supra, the Court finds that the
12
Weatherford Declaration does not warrant a conclusion contrary to plaintiff's allegations
13
in the SAC. A substantial majority of prior decisions on this issue grapple with attachments
14 with greater presumed accuracy than an eye witness account like the declaration plaintiff
15
provides. See Sprewell, 266 F.3d at 988-99 (concluding that an uncontested arbitration
16
award attached to plaintiff's complaint effectively "plead him[] out of a claim"); see also
17 Parkinson v. Robanda Int'!, Inc., 641 F. App'x 745, 748 (9th Cir. 2016) (deeming
18
plaintiff's allegations untrue because of contradictory exhibits, including a licensing
19
agreement signed by plaintiff and an asset purchase agreement); Chyba v. Green Tree
20
Servicing, L.L.C., 586 F. App'x 397, 398 (9th Cir. 2014) (attached letter written and signed
21
by plaintiff herself contradicted allegations made in her complaint); Santana v. Zhang,
22
2016 WL 4917118, at *12 (S.D. Cal. Sept. 15, 2016) (a pro se prisoner's complaint
23
included attached medical records that contradicted his allegations). Unlike the cases,
24
supra, Weatherford's description is not a formal document negotiated and contemplated
25
by professionals, nor is it well-drafted correspondence or an expert opinion. The Ninth
26
Circuit has reversed and remanded decisions dismissing a plaintiff's claim because exhibits
27
attached to a complaint are inconsistent with a plaintiff's allegations. Simon v. City of
28
Phoenix, 436 F. App'x 756, 757 (9th Cir. 2011) (remanding to the district court for abuse
10
3: l 6-cv-02538-CAB-KSC
1 of discretion in dismissing plaintiffs claim where "disputed and inconsistent" police
2
officer statements attached to the plaintiffs complaint contradicted allegations made in the
3
complaint, instead holding that the contradictions "[did] not warrant a contrary
4
conclusion"). The conflicting testimony of law enforcement officers, who are more
5
experienced than Weatherford in drafting written statements, do not overcome plaintiffs
6
allegations. [Id.]. Read liberally, Weatherford's statement corroborates plaintiffs
7
allegations. Pro se plaintiffs must be afforded some leniency when evaluating their
8
complaints, and this Court declines to jettison plaintiffs plausible account of the events on
9
January 20, 2016 because of an imprecise eyewitness declaration from a fellow imnate.
10
To violate the deliberate indifference standard in the context of the ADA or RA does
11
not require a violation of a clear constitutional right, as implied by defendant. Duval v.
12
County of Kitsap. 260 F.3d 1124, 1140-41 (9th Cir. 2011). The Ninth Circuit's adoption
13
of the "deliberate indifference" standard for ADA and RA claims in Duval relied upon the
14
construction articulated by the Supreme Court of the United States in City of Canton v.
15
Harris. 489 U.S. 378 (1989). The standard is well-worn: "[ d]eliberate indifference requires
16
both knowledge that a harm to a federally protected right is substantially likely, and a
17
failure to act upon that likelihood." Duval at 1139. It is of no moment that the language for
18
the deliberate indifference standard adopted by the Ninth Circuit in the ADA context
19
originated in a Supreme Court case evaluating the metes and bounds of a Monell claim.
20
While the language might be similar, the law under interpretation is not.
21
Defendant further contends Duval does not "address the severity of the conduct
22
necessary to rise to the level of deliberate indifference" under the ADA. [Doc. No. 68, at
23
p. 4]. This Court disagrees. The panel's ruling explained in detail the conduct of various
24
individual defendants and why the evidence adduced at that time was sufficient to create a
25
dispute of material fact for a plaintiff to survive summary judgment. That the Court chose
26
not to articulate the threshold in purely objective terms does not prevent this Court from
27
analogizing defendant's conduct in this case to the defendants' conduct in Duval. Isolated
28
action by an individual defendant can constitute deliberate indifference when that
11
3: 16-cv-0253 8-CAB-KSC
1
defendant's "decisions not to accommodate [a plaintiff are] considered and deliberate." Id.
2
Consideration and deliberateness can be inferred from a defendant's prior knowledge of
3
the plaintiff's disability and his unwillingness to incorporate the disability into his decision-
4
making process. Id. When reviewing the ADA claims brought against individual county
5
defendants and the district court's grant of summary judgment in their favor, the Ninth
6
Circuit has taken care to evaluate the defendants' prior knowledge in the context of the
7
"deliberate decision[s]" they made. Id. Upon reversing the district court's ruling, the Duval
8
Court explained:
9
10
11
12
13
14
15
16
17
18
19
Razey made a deliberate decision to deny Duvall's requests for a particular
auxiliary aid without making any effort to determine whether it would have
been possible to provide the requested accommodation. Similarly, in response
to Duvall's request for real-time transcription at his post-trial hearing,
Richardson merely informed Duvall that his hearing would be held in the
courtroom designated for hearing-impaired individuals, although Duvall had
advised her over six weeks before that he was familiar with the audio system
used in Courtroom 269 and that it was inadequate. Nonetheless, Richardson
denied his request without investigating whether the facilities in the
courtroom would accommodate Duvall's needs. If Duvall's account of the
timing and content of his requests for accommodation and defendants'
reactions thereto are accurate, a trier offact could conclude that defendants'
decisions not to accommodate him were considered and deliberate.
Accordingly, viewing the record as we must on summary judgment, Duvall
has presented sufficient evidence to show deliberate indifference, and thus
intentional discrimination, on the part of Botta, Razey and Richardson.
20
21
Id. (emphasis added). Nowhere in its analysis does the Ninth Circuit predicate its ruling
22
regarding plaintiff's ADA claims on a denial of a constitutional right. If the rights and
23
remedies under the ADA are coextensive with the rights and remedies under the
24
Constitution, as defendant argues, then the ADA is mere surplusage. This Court sees no
25
basis to accept defendant's contention. Conversely, as stated above, the Court carefully
26
evaluated both the action and inaction by individual defendants once apparent they were
27
on notice of plaintiff's disability.
28
Here, plaintiff's account of the events of January 20, 2016, combined with
12
3: l 6-cv-02538-CAB-KSC
1
defendant's prior knowledge of plaintiff's right to sit at the ADA table, support a plausible
2
inference that defendant acted with deliberate indifference and thus violated the ADA. On
3
December 27, 2015, defendant was instructed by his superior officer "that [plaintiff] had a
4
right to sit[] ... at the ADA tables." [SAC, at p. 7]. Regardless of defendant's potential
5
ignorance prior to the December incident, the SAC plainly alleges that defendant knew of
6 plaintiff's right on January 20, 2016, akin to the prior notice of defendants in Duval. With
7
full knowledge of that right, defendant did not allow plaintiff to sit at the ADA table, but
8
rather allegedly removed him from the dining hall, and proceeded to push, shove, and
9
threaten him before taking him to a holding cell. [Id., at pp. 8-9]. There was no "legitimate
10
penological justification[]" in defendant's conduct, as alleged. It is plausible that
11
defendant's actions as alleged-pushing and shoving an individual who has a walking boot
12
and requires a walker for additional stability- were intended to target, and exacerbate, the
13
challenges facing someone with plaintiff's disability. Pierce, 526 F.3d at 1211.
14
15
It is therefore RECOMMENDED that defendant's Motion to Dismiss be DEN1ED
as to plaintiff's claims against defendant for the January 20, 2016 incident.
16
CONCLUSION
17
The undersigned Magistrate Judge submits this Report and Recommendation to the
18
United States District Judge Bencivenga pursuant to Title 28, United States Code, Section
19
636(b)(l). For all of reasons outlined above, IT IS HEREBY RECOMMENDED that the
20
District Court issue an Order:
(1) GRANTING defendant's Motion as to the events of December 27, 2015, but
21
22
23
with THIRTY (30) DAYS leave to amend;
(2) DENYING defendant's Motion as to the events of January 20, 2016.
24
IT IS HEREBY ORDERED that no later than twenty-one (21) court days from
25
the date this Order is filed, any party to this action may file written objections with the
26
Court and serve a copy on all parties. The document should be captioned "Objections to
27
Report and Recommendation."
28
The parties are advised that failure to file objections within the specified time may
13
3:16-cv-02538-CAB-KSC
1 waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst,
2
3
4
951F.2d1153 (9th Cir. 1991).
IT IS SO ORDERED.
Dated: Augustl!/, 2018
5
6
Hon. ar
United S ates Magistrate Judge
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
14
3: l 6-cv-0253 8-CAB-KSC
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?