(PC) Millare v. Starr ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MORIANO MILLARE, No. 2:20-cv-2072 DAD AC P 12 Plaintiff, 13 v. ORDER AND FINDINGS & RECOMMENDATIONS 14 STARR, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 18 U.S.C. § 1983. Currently before the court is defendants’ motion for summary judgment. ECF 19 No. 38. 20 I. Procedural History 21 This case proceeds on plaintiff’s first amended complaint (FAC) (ECF No. 15), which was 22 screened and found to state a claim for relief against defendant Starr (ECF No. 16). Plaintiff’s 23 claims against defendants L. Fernando, K. Kesterson, KJ Allen, J. Flores, KD Johnson, L. Bird, 24 E. Casillas, L. Fernando, and A. Ortega Shafer were dismissed by the court. Id. Following the 25 close of discovery, defendant filed a motion for summary judgment (ECF No. 38), which is now 26 fully briefed. 27 //// 28 //// 1 II. Plaintiff’s Allegations 2 The FAC names eleven defendants, all of whom are officials or employees of Duel 3 Vocational Institution (DVI). ECF No. 15. Plaintiff is mobility impaired, with restrictions to the 4 ground floor and limited stair usage, and his claims arise from the alleged failure of DVI officials 5 and staff to provide accommodations when plaintiff’s college classes were held in locations that 6 were not reasonably accessible to him due to the number of stairs. ECF No. 15 at 7-9. Plaintiff 7 alleges that his requests for accommodation and access were inadequate or wrongfully denied or 8 obstructed. Id. 9 Plaintiff brought multiple claims against each defendant, but only his first claim under the 10 Americans with Disabilities Act (ADA) against defendant Starr (the Associate Warden and ADA 11 Coordinator)1 in his official capacity survived screening.2 Id. at 14-15; see also id. at 2-4. 12 Plaintiff’s other claims and the other defendants were dismissed. ECF No. 16 at 3-6. 13 III. Motion for Summary Judgment 14 A. Defendant’s Arguments 15 Defendant argues that he did not intentionally discriminate against plaintiff in violation of 16 the ADA because defendant engaged in a “fact-specific investigation” after plaintiff alerted 17 defendant about his need for accommodations. ECF No. 38 at 8-9. Defendant also argues that 18 injunctive relief is unavailable to plaintiff because plaintiff is no longer housed at DVI—the 19 institution where plaintiff was held when the alleged violation occurred—and the request for 20 injunctive relief is therefore moot. Id. at 10-11. 21 22 1 Plaintiff refers to defendant Starr as “she/her” (see ECF No. 15 at 2) but defendant’s documents 23 refer to Starr as “he/him” (see ECF No. 38 at 3). The court will follow defendant’s designation and refer to defendant as he/him. If defendant would like to be referred to in another way, please 24 inform the court. 2 In plaintiff’s opposition to the motion for summary judgment, he states that defendant Starr is 25 being sued in his individual and official capacity. As stated in the screening order, plaintiff’s 26 claim is moving forward against defendant Starr in his official capacity only. ECF No. 16 at 4. A suit against defendant Starr in his official capacity is effectively a suit against the public entity, 27 which is an appropriate defendant in an ADA action. See Applegate v. CCI, No. 1:16-cv-1343 MJS P, 2016 WL 7491635, at *5, 2016 U.S. Dist. LEXIS 180169, at * 9 (E.D. Cal. Dec. 29, 28 2016); Becker v. Oregon, 170 F. Supp. 2d 1061, 1066 (D. Or. 2001). 1 B. Plaintiff’s Response 2 At the outset, the court notes that plaintiff has failed to comply with Federal Rule of Civil 3 Procedure 56(c)(1)(A), which requires that “[a] party asserting that a fact . . . is genuinely 4 disputed must support the assertion by . . . citing to particular parts of materials in the record.” 5 “Pro se litigants must follow the same rules of procedure that govern other litigants.” 6 King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987) (citation omitted), overruled on other grounds, 7 Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en banc). However, it is well- 8 established that district courts are to “construe liberally motion papers and pleadings filed by pro 9 se inmates and should avoid applying summary judgment rules strictly.” Thomas v. Ponder, 611 10 F.3d 1144, 1150 (9th Cir. 2010). The unrepresented prisoner’s choice to proceed without counsel 11 “is less than voluntary” and they are subject to “the handicaps . . . detention necessarily imposes 12 upon a litigant,” such as “limited access to legal materials” as well as “sources of proof.” 13 Jacobsen v. Filler, 790 F.2d 1362, 1364 n.4 (9th Cir. 1986) (alteration in original) (citations and 14 internal quotation marks omitted). Inmate litigants, therefore, should not be held to a standard of 15 “strict literalness” with respect to the requirements of the summary judgment rule. Id. (citation 16 omitted). 17 Accordingly, the court considers the record before it in its entirety despite plaintiff’s 18 failure to be in strict compliance with the applicable rules. However, only those assertions in the 19 opposition which have evidentiary support in the record will be considered. 20 Plaintiff argues that defendant did not provide plaintiff with a reasonable accommodation 21 for his disability when his college program was moved to the gym where plaintiff still had to 22 climb or descend more than six stairs.3 ECF No. 39 at 7. 23 //// 24 //// 25 26 3 Plaintiff’s opposition contains facts and statements related to the retaliation claim that was included in his complaint. The court screened the initial complaint and the FAC, and in both 27 screening orders found that plaintiff had stated only a claim under the ADA against defendant Starr in his official capacity. To the extent plaintiff is trying to argue any other claim against 28 defendants other than Starr, those claims and defendants will not be considered. 1 C. Defendant’s Reply 2 Defendant admits in his reply that (1) “Plaintiff is an individual with a disability,” (2) “he 3 was otherwise qualified to attend the Delta College course,” (3) “the course’s location within the 4 prison gymnasium created difficulties for Plaintiff due to the number of stairs and steepness of the 5 alternative ramp, constructively excluding him from participation,” and that (4) “said exclusion 6 was the result of his disability.” ECF No. 40 at 3. Defendant acknowledges that the steps he took 7 to accommodate plaintiff’s disability were inadequate, but argues that defendant did not 8 intentionally discriminate against plaintiff. Id. at 4. 9 D. Plaintiff’s Opposition to Defendant’s Reply 10 Plaintiff filed an objection to defendant’s reply, arguing that it was untimely because it 11 was filed over seven days after plaintiff filed his opposition. ECF No. 41. Defendants filed a 12 reply to this objection (ECF No. 42), correctly stating that under the current Local Rule 230(l), 13 defendant had fourteen days to file his reply. Defendant thought that plaintiff may have been 14 referring to an old version of Local Rule 230(l) and provided plaintiff with the most recent 15 version. Plaintiff confirmed that he was using the old version and agreed that defendant had 16 fourteen days to file a reply. ECF No. 43. 17 Plaintiff filed his opposition (ECF No. 39) on July 31, 2023, so fourteen days after this 18 date would be August 14, 2023. See Local Rule 230(l) (“The moving party may, not more than 19 fourteen (14) days after the opposition has been filed in CM/ECF, serve and file a reply to the 20 opposition. “). Defendant filed his reply on August 15, 2023. However, the docket shows that 21 plaintiff’s opposition was entered in CM/ECF on August 2, 2023. It appears that plaintiff did not 22 serve defendant directly, so defendant was likely notified of the opposition on August 2, 2023. 23 See ECF No. 39 at 11. Therefore, defendant’s reply is deemed timely filed on August 15, 2023, 24 and the court accepts the reply. Plaintiff acknowledged his error about the number of days and 25 attempted to file a sur-reply. See ECF No. 43. 26 Generally, parties do not have the right to file sur-replies, and motions are deemed 27 submitted when the time to reply has expired. Local Rule 230(l). The court generally views 28 motions for leave to file sur-replies with disfavor. Hill v. England, No. CVF05869 REC TAG, 1 2005 WL 3031136, at *1 (E.D. Cal. Nov. 5, 2005) (citing Fedrick v. Mercedes-Benz USA, LLC, 2 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005)). However, district courts have the discretion to 3 either permit or preclude a sur-reply. See U.S. ex rel. Meyer v. Horizon Health Corp., 565 F.3d 4 1195, 1203 (9th Cir. 2009) (district court did not abuse discretion in refusing to permit 5 “inequitable” sur-reply); JG v. Douglas County School Dist., 552 F.3d 786, 803 n.14 (9th Cir. 6 2008) (district court did not abuse discretion in denying leave to file sur-reply where it did not 7 consider new evidence in reply). In this Circuit, courts are required to afford pro se litigants 8 additional leniency. E.g., Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012); Watison v. 9 Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). 10 Here, defendant’s reply does not contain new evidence, and plaintiff’s sur-reply reiterates 11 statements and information already included in plaintiff’s opposition. See JG, 552 F.3d at 12 803 n.14. Therefore, the request to file a sur-reply is denied. 13 IV. Legal Standards for Summary Judgment 14 Summary judgment is appropriate when the moving party “shows that there is no genuine 15 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 16 Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden 17 of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 18 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The 19 moving party may accomplish this by “citing to particular parts of materials in the record, 20 including depositions, documents, electronically stored information, affidavits or declarations, 21 stipulations (including those made for purposes of the motion only), admissions, interrogatory 22 answers, or other materials” or by showing that such materials “do not establish the absence or 23 presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to 24 support the fact.” Fed. R. Civ. P. 56(c)(1). 25 “Where the non-moving party bears the burden of proof at trial, the moving party need 26 only prove that there is an absence of evidence to support the non-moving party’s case.” Oracle 27 Corp., 627 F.3d at 387 (citing Celotex, 477 U.S. at 325); see also Fed. R. Civ. P. 56(c)(1)(B). 28 Indeed, summary judgment should be entered, “after adequate time for discovery and upon 1 motion, against a party who fails to make a showing sufficient to establish the existence of an 2 element essential to that party’s case, and on which that party will bear the burden of proof at 3 trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element 4 of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such 5 a circumstance, summary judgment should “be granted so long as whatever is before the district 6 court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 7 56(c), is satisfied.” Id. 8 If the moving party meets its initial responsibility, the burden then shifts to the opposing 9 party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. 10 Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the 11 existence of this factual dispute, the opposing party may not rely upon the allegations or denials 12 of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or 13 admissible discovery material, in support of its contention that the dispute exists. See Fed. R. 14 Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a 15 fact “that might affect the outcome of the suit under the governing law,” and that the dispute is 16 genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving 17 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 18 In the endeavor to establish the existence of a factual dispute, the opposing party need not 19 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 20 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 21 trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) 22 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). Thus, the 23 “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see 24 whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal 25 quotation marks omitted). 26 “In evaluating the evidence to determine whether there is a genuine issue of fact, [the 27 court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls 28 v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the 1 opposing party’s obligation to produce a factual predicate from which the inference may be 2 drawn. See Richards v. Nielsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to 3 demonstrate a genuine issue, the opposing party “must do more than simply show that there is 4 some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations 5 omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the 6 non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 7 U.S. at 289). 8 Defendants simultaneously served plaintiff with notice of the requirements for opposing a 9 motion pursuant to Rule 56 of the Federal Rules of Civil Procedure along with their motion for 10 summary judgment. ECF No. 38-3; see Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir. 11 1988) (pro se prisoners must be provided with notice of the requirements for summary judgment); 12 Rand v. Rowland, 154 F.3d 952, 960 (9th Cir. 1998) (en banc) (movant may provide notice). 13 V. Defendant’s Request for Judicial Notice 14 Defendant requests that the court take judicial notice of the fact that DVI was deactivated 15 on September 30, 2021, and no longer operates as a prison. See ECF No. 38 at 3 (citing Deuel 16 Vocational Institution (DVI), California Department of Corrections and Rehabilitation, 17 https://www.cdcr.ca.gov/facility-locator/dvi/ (last visited September 26, 2024)). The court may 18 take judicial notice of a fact that “is not subject to reasonable dispute because it: [¶] (1) is 19 generally known within the trial court’s territorial jurisdiction; or [¶] (2) can be accurately and 20 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 21 Evid. 201(b). The court can take judicial notice of “‘[p]ublic records and government documents 22 available from reliable sources on the Internet,’ such as websites run by governmental agencies.” 23 Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1033 (C.D. Cal. 2015) (alteration in 24 original); see O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (“It is 25 not uncommon for courts to take judicial notice of factual information found on the world wide 26 web.”); Denius v. Dunlap, 330 F.3d 919, 926-27 (7th Cir. 2003) (taking judicial notice of 27 information on the website of a government agency). The court may take judicial notice of 28 material on the CDCR website. George v. Diaz, No. 20-cv-03244 SI, 2020 WL 5073996, at *2, 1 2020 U.S. Dist. LEXIS 153581, at * 4-6 (N.D. Cal. Aug. 24, 2020). Therefore, the court grants 2 defendant’s request for judicial notice. 3 VI. Undisputed Material Facts 4 Plaintiff is currently housed at the Correctional Training Facility. ECF No. 15 at 2. At all 5 times relevant to the allegations, plaintiff was housed at DVI. Id. DVI was deactivated on 6 September 30, 2021. ECF No. 38 at 3. At all times relevant to the allegations, plaintiff was an 7 individual with the permanent disability designation “DLT.” ECF No. 38-2 at 1, ¶ 1. An 8 individual with the DLT classification can walk up and down at least six steps or stairs, but not an 9 entire flight of stairs.4 ECF No. 38-2 at 2, ¶ 2; see ECF No. 38-1 at 46. Plaintiff was enrolled in 10 two Delta College courses at DVI, Public Speaking and Written Communication. ECF No. 38-2 11 at 1, ¶ 3. Both classes were initially held on the second floor of the education building, and 12 plaintiff would have had to climb and descend more than six stairs to attend these classes. Id. at 13 ¶¶ 4, 5. 14 On January 15, 2019, plaintiff filed a Reasonable Accommodation Request, informing 15 defendant and other members of the Reasonable Accommodations Panel (or the panel) that he 16 was enrolled in the Delta College program, that he was designated with the disability status of 17 DLT, and that he would need to climb and descend more than six stairs to attend these courses, 18 which he could not do. Id. at ¶ 6; ECF No. 15 at 24. Defendant and the Reasonable 19 Accommodations Panel met on January 24, 2019, where they evaluated plaintiff’s medical 20 records and determined that plaintiff should be granted accommodations so that he could continue 21 to attend the courses. ECF No. 38-2 at 2, ¶¶ 7, 8. In response to plaintiff’s request, defendant and 22 the panel moved the Written Communication course to the prison library and the Public Speaking 23 course to the prison gymnasium. Id. at ¶ 9. The prison library has an occupancy capacity of 24 //// 25 26 4 Defendant’s statement of undisputed facts says that “[a]n individual with the DLT classification should not be made to climb or descend more than six steps in a flight of stairs,” and cites the 27 CDCR’s Reasonable Accommodation Request Process Desk Reference Manual. ECF No. 38-2 at 2, ¶ 2. The manual cited actually says that an individual with the DLT classification can walk up 28 and down at least six steps or stairs, but not an entire flight of stairs. ECF No. 38-1 at 46. 1 thirty-three people, which was not large enough to accommodate the enrolment of the thirty-four- 2 person Public Speaking course. Id. at ¶ 11-13. 3 On February 18, 2019, plaintiff filed an appeal about the panel’s decision to move the 4 Public Speaking course to the gym, stating that the gym was too cold and that he still needed to 5 climb and descend stairs or use a steep ramp to attend class. Id. at ¶ 14. Plaintiff does not 6 complain about relocating the Written Communication course to the library. Plaintiff was 7 interviewed in February 2019 about his appeal, and prison staff reviewed the documents plaintiff 8 attached about the issues raised in the appeal. Id. at ¶ 15. Plaintiff’s appeal was denied on April 9 2, 2019, because the second level review agreed that plaintiff had been accommodated. Id. at 4, 10 ¶ 16. Plaintiff withdrew from the Delta College program on March 19, 2019. Id. at ¶ 17. 11 Plaintiff submitted a third level appeal on April 18, 2019. Id. at ¶ 18. On May 17, 2019, 12 plaintiff’s third level was denied. Id. at ¶ 19. The third level review determined that plaintiff’s 13 request was appropriately reviewed and considered by institutional medical staff, that the 14 responses were consistent with the Armstrong Remedial Plan, and found that plaintiff did not 15 require additional accommodations to access the gym. Id. at ¶ 20. 16 On July 19, 2019, the CDCR Office of Legal Affairs received an advocacy letter from the 17 law firm Rosen Bien Galvan & Grundfeld, LLP. Id. at ¶ 21. The letter alleged that the panel 18 failed to provide plaintiff with an adequate accommodation, expressed plaintiff’s willingness to 19 reenroll in the Delta College program, and requested that future Delta College classes at DVI be 20 held in a location that was suitable to plaintiff’s accommodation needs. Id. at 5, ¶ 22. In 21 response to this letter, an inquiry was conducted into plaintiff’s allegations. Id. at ¶ 23. On 22 August 21, 2019, a memorandum was submitted about plaintiff’s allegations, but it did not 23 address whether plaintiff received adequate accommodation, so another inquiry was conducted. 24 Id. at ¶¶ 24, 25. Plaintiff was interviewed again on December 16, 2019, and a memorandum was 25 issued finding that the RAP panel failed to provide adequate accommodation to plaintiff. Id. at ¶ 26 28. In response to this, the Hiring Authority instructed defendant and others involved in the 27 Reasonable Accommodations Panel and appeals process to undergo additional training regarding 28 the Reasonable Accommodations Request process. Id. at ¶ 29. Defendant completed the 1 additional training on January 13, 2020. Id. at ¶ 30. 2 VII. Discussion 3 A. Americans with Disabilities Act 4 i. Legal Standard 5 Title II of the ADA prohibits “discrimination on the basis of disability” by a public entity. 6 Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Title II provides that “no qualified 7 individual with a disability shall, by reason of such disability, be excluded from participation in or 8 be denied the benefits of the services, programs, or activities of a public entity, or be subjected to 9 discrimination by such entity.” 42 U.S.C. § 12132. Title II applies to the services, programs, and 10 activities provided for inmates within state prisons. Pennsylvania Dept. of Corrections v. Yeskey, 11 524 U.S. 206, 208, 213 (1998); see also Armstrong v. Wilson, 124 F.3d 1019, 1022-23 (9th Cir. 12 1997); Duffy v. Riveland, 98 F.3d 447, 453-56 (9th Cir.1996). “[A]n educational program is a 13 program, and when it is provided by and in a state prison it is a program of a public entity.” 14 Armstrong, 124 F.3d at 1023 (citation omitted). 15 To state a claim under Title II, the plaintiff must allege four elements: (1) the plaintiff is 16 an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive 17 the benefit of some public entity’s services, programs, or activities; (3) the plaintiff was either 18 excluded from participation in or denied the benefits by the public entity; and (4) such exclusion, 19 denial of benefits or discrimination was by reason of the plaintiff's disability. Simmons v. Navajo 20 County, Ariz., 609 F.3d 1011, 1021 (9th Cir. 2010), overruled on other grounds by Castro v. 21 County of Los Angeles, 833 F.3d 1060, 1070 (9th Cir. 2016); McGary v. City of Portland, 386 22 F.3d 1259, 1265 (9th Cir. 2004); see Lovell, 303 F.3d at 1052. 23 “A plaintiff can allege disability discrimination in the provision of inmate services, 24 programs, or activities under the ADA by pleading either (1) discrimination based on disparate 25 treatment or impact, or (2) denial of reasonable modifications or accommodations.” Cravotta v. 26 County of Sacramento, No. 2:22-cv-0167 DJC AC, 2024 WL 645705, at *7, 2024 U.S. Dist. 27 LEXIS 26740, at *21 (E.D. Cal. Feb. 15, 2024); see Dunlap v. Ass’n of Bay Area Gov’ts, 996 F. 28 Supp. 962, 965 (N.D. Cal. 1998) (“[T]he ADA not only protects against disparate treatment, it 1 also creates an affirmative duty in some circumstances to provide special, preferred treatment, or 2 ‘reasonable accommodation.’”). Although § 12132 does not expressly provide for reasonable 3 accommodations, the implementing regulations provide that “[a] public entity shall make 4 reasonable modifications in policies, practices, or procedures when the modifications are 5 necessary to avoid discrimination on the basis of disability, unless the public entity can 6 demonstrate that making the modifications would fundamentally alter the nature of the service, 7 program, or activity.” 28 C.F.R. § 35.130(b)(7)(i); see also Pierce v. County of Orange, 526 F.3d 8 1190, 1215 (9th Cir. 2008). Plaintiff bears the burden of proof to establish “the existence of 9 specific reasonable accommodations” that the prison failed to provide. Memmer v. Marin County 10 Courts, 169 F.3d 630, 633 (9th Cir. 1999). 11 The proper defendant in an ADA action is the public entity responsible for the alleged 12 discrimination. United States v. Georgia, 546 U.S. 151, 153 (2006). State correctional facilities 13 are “public entities” within the meaning of the ADA. See 42 U.S.C. § 12131(1)(A) & (B); Penn. 14 Dept. of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998); Armstrong, 124 F.3d at 1025. However, a 15 state official sued in his official capacity is, in effect, a suit against the government entity and is 16 an appropriate defendant in an ADA action. See Applegate, 2016 WL 7491635, at *5 (citing 17 Miranda B. v. Kitzhaber, 328 F.3d 1181, 1187-88 (9th Cir. 2003); Kentucky v. Graham, 473 U.S. 18 159, 165 (1985)). A plaintiff also cannot assert a claim under § 1983 against a defendant in his 19 individual capacity to vindicate rights created by the ADA. See Vinson v. Thomas, 288 F.3d 20 1145, 1156 (9th Cir. 2002). 21 Under Title II, of the ADA, a plaintiff must show that he was excluded from participating 22 in or denied the benefits of a program’s services or otherwise discriminated against. Updike v. 23 Multnomah County, 870 F.3d 939, 951 (9th Cir. 2017). “To recover monetary damages under 24 Title II of the ADA . . . , a plaintiff must prove intentional discrimination on the part of the 25 defendant,” and the standard for intentional discrimination is deliberate indifference. Duvall v. 26 County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (citing Ferguson v. City of Phoenix, 157 27 F.3d 668, 674 (9th Cir. 1998) (footnote omitted)). “Deliberate indifference requires both 28 [1] knowledge that a harm to a federally protected right is substantially likely, and [2] a failure to 1 act upon that likelihood.” Id. at 1139 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1988)). 2 “When the plaintiff has alerted the public entity to his need for accommodation (or where the 3 need for accommodation is obvious, or required by statute or regulation), the public entity is on 4 notice that an accommodation is required,” and the first element of the deliberate indifference test 5 is satisfied. Id. For the second element, when a public entity receives a request for 6 accommodation, “[i]t is required to undertake a fact-specific investigation to determine what 7 constitutes a reasonable accommodation.” Id. The ADA creates a duty to gather sufficient 8 information from the disabled individual and qualified experts to determine what 9 accommodations are necessary. Id. The public entity is required to “‘give primary consideration 10 to the requests of the individual with disabilities’ when determining what type of auxiliary aid and 11 service is necessary.” Id. (citing 28 C.F.R. § 35.160(b)(2)). “[A] public entity does not ‘act’ by 12 proffering just any accommodation: it must consider the particular individual’s need when 13 conducting its investigation into what accommodations are reasonable.” Id. (footnote omitted). 14 Deliberate indifference does not occur when a duty of act is overlooked, or as a result of 15 “bureaucratic slippage that constitutes negligence rather than deliberate action or inaction.” Id. 16 “[I]n order to meet the second element of the deliberate indifference test, a failure to act must be 17 the result of conduct that is more than negligent, and involves an element of deliberateness.” Id. 18 ii. Analysis 19 a. Claim for Damages 20 The parties do not dispute that plaintiff is a qualified individual with a disability and that 21 he was qualified to receive the services and benefits of the public entity. See ECF No. 40 at 3 22 (“Defendant admits that (1) Plaintiff is an individual with a disability, (2) he was otherwise 23 qualified to attend the Delta College course, (3) the course’s location within the prison 24 gymnasium created difficulties for Plaintiff due to the number of stairs and steepness of the 25 alternative ramp, constructively excluding him from participation, and that (4) said exclusion was 26 the result of his disability.”). 27 Further, defendant seems to effectively concede that the accommodation provided to 28 plaintiff was unreasonable, as he admits that the accommodation was “inadequate in moving the 1 Public Speaking course to the gymnasium.” ECF No. 38 at 9; ECF No. 38-1 at 63 (“[I]t is 2 confirmed the RAP panel failed to provide adequate accommodation to [plaintiff].”). Defendant 3 does not argue in his motion that the accommodation was reasonable. Even without consideration 4 of this implicit concession, the court finds plaintiff’s request for accommodation to be reasonable, 5 and defendant’s accommodation unreasonable. It is undisputed that plaintiff’s disability required 6 him to have limited use of stairs, which prevented him from accessing his courses when they were 7 located on the second floor of the prison. Thus, plaintiff’s request to move the courses to rooms 8 that he could access without stairs was a reasonable request. See Flentoil v. Santa Clara County 9 Dept of Corrections, No. 18-cv-3486 EMC, 2020 WL 571025, at *10, 2020 U.S. Dist. LEXIS 10 19189, at *31 (N.D. Cal. Feb. 5, 2020) (“A plaintiff accordingly bears the burden of establishing 11 the existence of specific reasonable accommodations that the defendant public entity failed to 12 provide.”). The court also finds that it was unreasonable to move the Public Speaking course to a 13 room that still required plaintiff to climb stairs when that was the reason to move the course in the 14 first place, and that this inadequate accommodation prevented plaintiff from continuing to 15 participate in the Public Speaking course. See Duvall, 260 F.3d at 1137 (“[Plaintiff] must show 16 that the accommodations offered by [defendant] were not reasonable, and that he was unable to 17 participate equally in the proceedings at issue.”). 18 The dispositive question is whether plaintiff was intentionally discriminated against when 19 his requested accommodation was not provided. Defendant admits that plaintiff satisfied the first 20 prong of the deliberate indifference test under the ADA by alerting the public entity to his need 21 for accommodations.5 ECF No. 38 at 9; see Duvall, 260 F.3d at 1139-40. Defendant argues, 22 however, that he was not deliberately indifferent because the second prong of the test was not 23 satisfied. Defendant states that he undertook a fact specific investigation, which gathered 24 evidence from medical experts, ADA experts, and education experts. ECF No. 38 at 9. 25 Defendant acknowledges that moving the Public Speaking course to the gymnasium was 26 27 5 The prison was aware of plaintiff’s mobility restrictions that required limited use of stairs (ECF No. 38-1 at 5-12), and plaintiff filed a reasonable accommodation request form, citing his limited 28 use of stairs as the reason for the request (ECF No. 15 at 24). 1 inadequate, but argues that this “could be described as negligent” and “negligence is not enough 2 to establish deliberate indifference or intentional discrimination.” Id. at 9-10. 3 The court finds that there is a triable issue of material fact as to whether defendant acted 4 appropriately and conducted an adequate fact-specific inquiry into what would constitute a 5 reasonable accommodation for plaintiff in this situation. See Mark H. v. Hamamoto, 620 F.3d 6 1090, 1099 (9th Cir. 2010). Here, when the public entity received plaintiff’s request for 7 accommodation, it was “required to undertake a fact-specific investigation to determine what 8 constitutes a reasonable accommodation” and gather sufficient information from plaintiff and 9 qualified experts to determine what accommodations were necessary. Duvall, 260 F.3d at 1139. 10 After plaintiff filed his request for accommodation, defendant states that he did engage in a fact- 11 specific investigation with qualified experts. However, the only evidence defendant provides 12 supporting this contention is the Reasonable Accommodation Panel response to plaintiff’s request 13 and an associated worksheet, listing the staff that were present for the meeting to review 14 plaintiff’s request (which included medical staff) and the response that the courses had been 15 moved locations. ECF No. 15 at 25; ECF No. 38-1 at 48. There is no evidence about how the 16 decision was made to move the Public Speaking course to the gymnasium, or how this move 17 would accommodate plaintiff specifically, especially since the gym still had stairs. Duvall, 260 18 F.3d at 1139 (“[A] public entity does not ‘act’ by proffering just any accommodation: it must 19 consider the particular individual’s need when conducting its investigation into what 20 accommodations are reasonable.”). A memorandum submitted by defendant even states that “the 21 RAP panel met and during the response the RAP panel failed to document how adequate 22 accommodation would be made.” ECF No. 38-1 at 62. Further, defendant’s evidence shows that 23 the teacher who moved the class did not know the gym had stairs. Id. It is reasonable to expect 24 that during a fact-specific investigation, defendant would confirm that the new class location was 25 appropriately accessible to plaintiff. 26 Even after plaintiff appealed the Reasonable Accommodation Panel’s decision and 27 notified defendant that moving the course to the gym was inadequate due to the stairs, defendant 28 still found that the accommodation was proper. He fails, however, to show how this 1 determination was made. See ECF No. 15 at 32-33. In his appeal, plaintiff informed defendant 2 that he was dissatisfied with the response because he still had to painfully climb stairs or use a 3 steep ramp to attend the class in the gym. ECF No. 15 at 26. He also complained that the room 4 was painfully cold. In this first appeal, plaintiff requested that the class be moved back to the 5 education building.6 ECF No. 15 at 26. While plaintiff was no longer participating in the class at 6 this time because he withdrew due to the stairs, defendant still reviewed the initial Reasonable 7 Accommodation Panel response as part of the appeal and initially found that moving the course to 8 the gym adequately accommodated plaintiff. ECF No. 15 at 30-33. The third level review of 9 plaintiff’s appeal states that the request was reviewed by medical staff and that it was determined 10 that plaintiff was accommodated and able to access all programs with the current 11 accommodations. ECF No. 15 at 33. However, neither the second level nor third level appeal 12 explains how this determination was made or why it was determined that a room with stair access 13 was appropriate for plaintiff. Plaintiff states that while the gym was on the ground floor, there 14 were still stairs going up to the gym, and once inside the gym, there were stairs to access the 15 bleachers where the students sit to attend class. ECF No. 38-1 at 81 (Pl.’s Depo 35:3-23). While 16 defendant agrees that there were stairs to the gym, a ramp that was not ADA compliant, and rows 17 of stadium style bleachers (ECF No. 38-1 at 54, 62), the exact number of stairs is unclear. See 18 ECF No. 38-1 at 81 (Pl.’s Depo 35:3-23) (according to plaintiff there were more than five but less 19 than ten stairs, plus additional stairs to access the bleachers); ECF No. 38-1 at 54, 62 (according 20 to defendant, there were eight or nine stairs to access the gym, and stadium style seating). Even 21 given the opportunity to conduct another investigation based on plaintiff’s appeal, defendant 22 failed to show how a room that required stairs to access was appropriate when his disability 23 required him to have limited use of stairs. 24 The court acknowledges that defendant has provided evidence that further investigation 25 was conducted into plaintiff’s complaint about the course location, however this was done in 26 6 In plaintiff’s deposition, he states that when he filed this appeal, he was no longer participating 27 in the class because of the stairs, but he filed the appeal to move the class back to the education building so his classmates did not have to take the class in the gym which was cold and unsuitable 28 for learning. ECF No. 38-1 at 82-83 (Pl.’s Depo 41:18-25, 42:1-6). 1 apparent response to a letter from an attorney that contacted defendant on plaintiff’s behalf. ECF 2 No. 38-1 at 65. It was also done after plaintiff appealed twice and was denied, and after plaintiff 3 had withdrawn from the course. See ECF No. 38-1 at 52, 54-55, 57-58, 60, 62-63. And the result 4 of the inquiry was to find that moving the Public Speaking course to the gymnasium was 5 inadequate because plaintiff still had to climb stairs to access the course. 6 On this record a reasonable jury could find that defendant did not act appropriately or 7 engage in a fact-specific investigation into plaintiff’s specific accommodation request. Plaintiff’s 8 disability required limited use of stairs and his requested accommodation was to move the class to 9 a location that he could access. In response, defendant moved the course to another location with 10 stairs. While defendant said the library could not accommodate the number of people in the 11 Public Speaking class, plaintiff states that there was another room in the prison that had more 12 space. ECF No. 39-3 at 2-3; see id. at 10. Moving a class to a room with stairs when the original 13 problem was stairs is more than “bureaucratic slippage” and more than negligence. While the 14 court appreciates that defendant and other prison staff engaged in training about appropriate 15 Reasonable Accommodation Panel responses (ECF No. 38-1 at 65-70), this does not demonstrate 16 a fact specific inquiry regarding plaintiff’s accommodation. 17 For all these reasons, there a genuine dispute of material fact about whether defendant 18 deliberately failed to fulfill his duty to act in response to the request for accommodation. 19 Defendant’s motion for summary judgment should therefore be denied as to plaintiff’s claim for 20 damages under the ADA. 21 b. Declaratory and Injunctive Relief 22 Defendant also argues that plaintiff is not entitled to injunctive relief because plaintiff is 23 no longer housed at DVI. ECF No. 38 at 10. Defendant is correct that any request for injunctive 24 relief request would be moot because plaintiff is no longer at DVI and DVI is now closed. See 25 Shilling v. Crawford, 377 F. App’x 702, 704 (9th Cir. 2010) (unpublished); Johnson v. Moore, 26 948 F.2d 517, 519 (9th Cir. 1991). The FAC does not expressly request injunctive relief. See 27 ECF No. 15 at 21. It does, however, seek declaratory relief. Id. Such a claim for relief is also 28 moot. See West v. Cortez, No. 22-cv-1897 EFB P, 2023 WL 8850045, at *2-3, 2023 U.S. Dist. 1 LEXIS 227661, at *6-7 (E.D. Cal. Dec. 21, 2023); Alvarez v. Hill, 667 F.3d 1061, 1064 (9th Cir. 2 2012) (holding claim for declaratory relief where plaintiff was released from prison). The motion 3 for summary judgment should be granted as to any request for declaratory or injunctive relief, and 4 otherwise denied for the reasons previously explained. 5 VIII. Conclusion 6 For the reasons set forth above, defendant’s motion for summary judgment (ECF No. 38) 7 should be granted in part and denied in part. 8 IX. Plain Language Summary of this Order for a Pro Se Litigant 9 This court is recommending that defendant’s motion for summary judgment be granted on 10 the issue of declaratory and injunctive relief only. The magistrate judge is recommending that 11 your damages claim for disability discrimination move forward. The magistrate judge finds that 12 defendant has not provided evidence showing that he appropriately investigated your initial 13 accommodation request to move the Public Speaking course to a room that you could access 14 without climbing stairs. That issue should go to trial. 15 CONCLUSION 16 Accordingly, IT IS HEREBY ORDERED that: 17 1. Defendant’s request for judicial notice be GRANTED; and 18 2. Plaintiff’s request to file a sur-reply (ECF No. 43) be DENIED. 19 IT IS HEREBY RECOMMENDED that: 20 1. Defendant’s motion for summary judgment (ECF No. 38) be GRANTED IN PART 21 AND DENIED IN PART AS FOLLOWS: 22 a. GRANTED as to declaratory and injunctive relief only, and 23 b. Otherwise DENIED. 24 2. This case proceeds on the claim for disability discrimination under the ADA against 25 defendant Starr. 26 These findings and recommendations are submitted to the United States District Judge 27 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 28 after being served with these findings and recommendations, any party may file written 1 | objections with the court and serve a copy on all parties. Such a document should be captioned 2 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 3 || objections shall be served and filed within fourteen days after service of the objections. The 4 || parties are advised that failure to file objections within the specified time may waive the right to 5 || appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 6 | DATED: September 27, 2024 7 Lhar—e_ ALLISON CLAIRE 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 18