Renee Ivchenko v. City of Scottsdale

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENEE IVCHENKO, No. 20-17463
Plaintiff-Appellant, D.C. No.
2:19-cv-05834-ROS-DMF
v.
CITY OF SCOTTSDALE, a municipal MEMORANDUM*
corporation; et al.,
Defendants-Appellees,
THOMAS MICHAEL DEARING, Officer,
in his individual capacity,
Defendant-Appellee,
and
TIMOTHY MICHAEL DEARING,
Defendant,
MARICOPA COUNTY; PAUL PENZONE,
Defendants.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted October 7, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and FRIEDLAND, Circuit
Judges.
Renee Ivchenko appeals from the dismissal of her civil rights action against
the City of Scottsdale and three Scottsdale police officers. The lawsuit stems from
Ivchenko’s arrest following a police encounter in her home, during which
Ivchenko, an admitted alcoholic, was highly intoxicated. On appeal, Ivchenko
challenges only the dismissal of her claims against the City brought under the
Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. (“ADA”), and the
Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. (“RA”).1 We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Title II of the ADA provides that “no qualified individual with a disability
shall, by reason of such disability, be excluded from participation in or be denied
the benefits of the services, programs, or activities of a public entity, or be
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
To the extent Ivchenko intended to challenge the dismissal of her other
claims, she forfeited those arguments by failing to raise them in her opening brief.
See Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues
which are argued specifically and distinctly in a party’s opening brief.”).
2
subjected to discrimination by any such entity.”2 42 U.S.C. § 12132. This
provision applies to arrests, and, in this context, a city may be liable for two types
of Title II claims:
(1) wrongful arrest, where police wrongly arrest someone with a
disability because they misperceive the effects of that disability as
criminal activity; and (2) reasonable accommodation, where, although
police properly investigate and arrest a person with a disability for a
crime unrelated to that disability, they fail to reasonably accommodate
the person’s disability in the course of investigation or arrest, causing
the person to suffer greater injury or indignity in that process than
other arrestees.
Sheehan v. City & County of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014),
rev’d in part, cert. dismissed in part, 575 U.S. 600 (2015). Ivchenko asserts ADA
violations under both theories.
Reviewing de novo, we hold that the district court did not err in dismissing
Ivchenko’s disability-related claims.3 Her wrongful arrest theory fails because,
according to Ivchenko’s own pleadings, she committed at least one arrestable
offence.4 Her Second Amended Complaint explains that, after her husband poured
2
We have recognized that, in the arrest context, Section 504 of the RA
imposes “identical ‘remedies, procedures and rights,’” Vos v. City of Newport
Beach, 892 F.3d 1024, 1036 (9th Cir. 2018) (quoting Hainze v. Richards, 207 F.3d
795, 799 (5th Cir. 2000)), so we discuss only the ADA here for simplicity.
3
For purposes of this decision, we assume that Ivchenko would qualify as
disabled under the ADA. See Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1187
(9th Cir. 2001) (“[A]lcoholism is a protected disability under the ADA.”).
4
Because her admission of having committed one crime is a sufficient
reason to dismiss her unlawful arrest claim, we need not consider whether
3
her vodka down the kitchen sink, she placed a “baseless 911 call,” falsely reporting
domestic violence. This is a crime under Arizona law, see Ariz. Rev. Stat. § 13-
2907.01, and the fact that Ivchenko committed this act while inebriated does not
make it any less so. Upon arriving at Ivchenko’s home and determining that her
report of domestic abuse was “baseless,” officers therefore had probable cause to
arrest Ivchenko, which defeats a claim for wrongful arrest. See Sheehan, 743 F.3d
at 1232 (explaining that an ADA claim for wrongful arrest requires that officers
“misperceive the effects of [a] disability as criminal activity” (emphasis added)).
The fact that Ivchenko was arrested on other charges does not negate the fact that
her arrest was supported by probable cause and thus was not wrongful. Cf.
Blankenhorn v. City of Orange, 485 F.3d 463, 473 (9th Cir. 2007) (explaining in
the context of a Fourth Amendment wrongful arrest claim that “[p]robable cause
need only exist as to any offense that could be charged under the circumstances”
(quoting Bingham v. City of Manhattan Beach, 341 F.3d 939, 952 (9th Cir.
2003))).
We also affirm dismissal of Ivchenko’s reasonable accommodations claim
because Ivchenko failed to plead the “existence of a reasonable accommodation.”
Ivchenko’s Complaint also contains admissions that she committed additional
crimes, such as resisting arrest, Ariz. Rev. Stat. § 13-2508. We likewise do not
rely on what appears to be a signed acknowledgement by Ivchenko that she is
“guilty of the offenses charged,” which Defendants submitted with their motion to
dismiss in the district court.
4
Sheehan, 743 F.3d at 1232-33. Ivchenko contends that, given her intoxicated state,
officers should have allowed her to “stay in her home with her husband . . . or
invok[ed] an involuntary commitment as requested by her husband.” But it cannot
be that the ADA requires officers to refrain from arresting a disabled individual
when they have established probable cause for an arrest. See 28 C.F.R.
§ 35.130(b)(7) (a public entity need not make reasonable accommodations when it
“can demonstrate that making the modifications would fundamentally alter the
nature of the service, program, or activity”).
To the extent Ivchenko contends the officers had an obligation to de-escalate
the situation, Ivchenko has not plausibly alleged that any failure to de-escalate
caused the confrontation to become a criminal. Rather, by Ivchenko’s own
admission, this was a criminal matter from the outset, as Ivchenko precipitated the
encounter by falsely reporting domestic abuse—a crime that was completed before
the officers even arrived.
Lastly, the district court did not err in denying Ivchenko leave to file a third
amended complaint. “[T]he complaint could not be saved by any amendment,”
United States v. Corinthian Colls., 655 F.3d 984, 995 (9th Cir. 2011) (quoting
Krainski v. Nevada ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d
963, 972 (9th Cir. 2010)), and Ivchenko had not shown good cause to amend her
5
complaint after the deadline set by the scheduling order for amended pleadings, see
Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).
AFFIRMED.
6