ISC, Inc. v. California

FILED
NOT FOR PUBLICATION MAY 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ISC, INC., and VICTORIA BOHLKE, No. 08-15374
decedent Russ Bohlke’s personal
representative, DC No. CV 06-1667 MMC
Plaintiffs - Appellants,
MEMORANDUM *
v.
STATE OF CALIFORNIA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted April 13, 2010
San Francisco, California
Before: KLEINFELD, TASHIMA, and THOMAS, Circuit Judges.
Appellants ISC, Inc., and Victoria Bohlke, acting as personal representative
of her husband, Russ Bohlke,1 appeal the district court’s order granting summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
1
Victoria Bohlke was substituted for plaintiff Russ Bohlke, pursuant to
Fed. R. App. P. 43(a)(1), after the latter died during the pendency of this appeal.
judgment to defendants in this matter. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We affirm in part and dismiss in part.
We agree with defendants that Bohlke’s claims for injunctive relief are moot
in light of his recent death. See, e.g., Kennerly v. United States, 721 F.2d 1252,
1260 (9th Cir. 1983). As to Bohlke’s claims for damages – to the extent they
remain at issue in this appeal2 – we affirm the district court’s order granting
summary judgment to defendants.3 Damages are only available under Title II of
the Americans with Disabilities Act (“ADA”) when a state defendant acted with
deliberate indifference. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir.
2001). Bohlke provided the district court with no evidence of defendants’
discriminatory intent in response to defendants’ summary judgment motion.
Accordingly, the district court properly granted summary judgment to defendants
on the ADA damage claims.
2
The State asserts that Bohlke abandoned his claims for damages
before the district court. When asked for clarification at oral argument, Bohlke’s
counsel was unable to inform the court precisely which of Bohlke’s claims
remained at issue in this lawsuit and what relief Bohlke sought.
3
We review the district court’s order granting summary judgment de
novo, and may affirm on any basis supported by the record. Gordon v.
Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009).
-2-
We also hold that co-plaintiff ISC lacks standing to pursue Bohlke’s claims.
ISC bore the burden of establishing that it had standing to proceed in federal court.
Am. Fed’n of Gov’t Employees Local 1 v. Stone, 502 F.3d 1027, 1032 (9th Cir.
2007). Yet, the factual basis of ISC’s organizational standing was neither pled in
the complaint nor otherwise presented to the district court. The record therefore
does not disclose whether any of ISC’s other members will be injured by
defendants’ policies, or even if ISC has any other members at all. See White Tanks
Concerned Citizens, Inc. v. Strock, 563 F.3d 1033, 1038 (9th Cir. 2009) (“Some of
the individual members of [the organization] must demonstrate that they will suffer
an injury as a result of [the challenged action.]”).
Accordingly, we affirm the district court’s order granting summary
judgment to defendants on Bohlke’s damages claims, and dismiss the remainder of
Bohlke’s appeal. We also affirm as to ISC’s appeal. Costs on appeal are awarded
to appellees.4
AFFIRMED in part; DISMISSED in part.
4
In light of this memorandum disposition, we deny defendants-
appellees’ motion to dismiss this appeal as moot.
-3-