1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 HOWARD HERSHIPS, Case No. 3:20-cv-07208-JD

8 Plaintiff,

ORDER RE DISMISSAL

v. 9

10 STATE OF CALIFORNIA SUPERIOR COURT, et al., 11 Defendants.

12 13 In January 2020, pro se plaintiff Howard Herships was booked into the Santa Clara County 14 Jail for a probation violation, and his hearing aids were taken from him. Without hearing aids, 15 Herships says that he could not participate in court appearances or communicate with his counsel. 16 Herships sued the Santa Clara County Superior Court (Superior Court) and Santa Clara County 17 (County), specifically the County District Attorney’s Office and the Public Defender’s Office, on 18 disability-related claims. Dkt. No. 72. 19 Herships was sentenced to six months in county jail for the probation violation. Judge 20 Takaichi of the Santa Clara County Superior Court awarded Herships 32 days of custody credit, 21 Dkt. No. 20-2 at ECF p. 28, but denied Herships’ request for an additional 30 days of credit for 22 time served in custody during his original sentence, Dkt. No. 20-3 at ECF pp. 29-30. 23 Herships filed a petition for a writ of mandate, requesting immediate release from custody. 24 Dkt. No. 72 ¶ 26. Judge Lie and Judge Saban of the Superior Court Appellate Division appointed 25 attorney William Safford as counsel. Dkt. No. 74-1 at ECF pp. 11-12. The Appellate Division 26 concluded that the trial court had erred in denying Herships custody credits. Id. at ECF pp. 14-20. 27 Herships’ requests for further review in the California Court of Appeal and the California Supreme 1 Court were denied. Id. at ECF p. 22. Herships was released on March 26, 2020, due to the 2 COVID-19 pandemic.1 Dkt. No. 75-3. 3 These events were the source of a panoply of claims here. Herships raises the state court’s 4 denial of 30 days of custody credits, Dkt. No. 72 ¶ 41, and the denial of accommodations for his 5 hearing disability, id. ¶ 54. He says that he was not given diabetes medication in a timely manner 6 while in jail, id. ¶ 151, and that he suffered a hand injury while being transported to jail, id. ¶ 154. 7 He alleges that his attorney, William Safford, was not properly licensed, and that the Superior 8 Court and the County denied Herships’ right to counsel by permitting Safford’s representation. Id. 9 ¶¶ 44-47.2 Herships seeks to allege claims under Title II of the Americans with Disabilities Act, 10 42 U.S.C. § 12101 et seq. (ADA); Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq.; 11 42 U.S.C. § 12203; 42 U.S.C. § 1983; and the Fourteenth Amendment. Dkt. No. 72. He also 12 alleges a claim against the County for its failure to adhere to a consent decree in Chavez v. County 13 of Santa Clara, No. 15-cv-05277-RMI (N.D. Cal.). Id. 14 Herships’ initial complaint was dismissed pursuant to 28 U.S.C. § 1915, and his request for 15 a temporary restraining order was denied. Dkt. Nos. 17, 23. Herships has amended his complaint 16 several times. See Dkt. No. 14 (First Amended Complaint); Dkt. No. 20 (Second); Dkt. No. 24 17 (Third); Dkt. No. 72 (Fourth). Defendant Superior Court asks to dismiss the operative complaint, 18 Dkt. No. 72 (Fourth Amended Complaint, or 4AC), in its entirety under Federal Rules of Civil 19 Procedure 12(b)(1) and 12(b)(6). Dkt. No. 74. Santa Clara County asks to dismiss this case under 20 Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 73. 21 The parties’ familiarity with the record is assumed. The ADA and Rehabilitation Act 22 claims will go forward against both the Superior Court and the County. The retaliation claims 23

24 1 The Court takes judicial notice of several orders from the state court proceedings. See Bias v. Moynihan, 508 F.3d 1212, 1225 (9th Cir. 2007) (citation omitted) (internal quotation marks 25 omitted) (holding that courts may take judicial notice “of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at 26 issue”).

27 2 Herships’ claims about attorney Safford evidence a misunderstanding of the rules governing 1 against the Superior Court and the County, the Section 1983 claims against the Superior Court and 2 the County, the Fourteenth Amendment claims against the Superior Court and the County, and the 3 claim to enforce the consent decree in Chavez, are dismissed with prejudice. 4 DISCUSSION 5 I. ROOKER-FELDMAN AND JUDICIAL IMMUNITY 6 The Superior Court contends that both the Rooker-Feldman doctrine and judicial immunity 7 should limit Herships’ claims here. The Rooker-Feldman doctrine “prevents the lower federal 8 courts from exercising jurisdiction over cases brought by ‘state-court losers’ challenging ‘state- 9 court judgments rendered before the district court proceedings commenced.’” Lance v. Dennis, 10 546 U.S. 459, 460 (2006) (quoting Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 11 284 (2005)). This extends to “de facto appeal[s]” from state court rulings which, “asserting as 12 legal wrongs the allegedly erroneous legal rulings of the state court . . . seek[] to vacate or set 13 aside the judgment of [the state] court.” Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir. 2003). 14 Rooker-Feldman forecloses Herships’ claims challenging the state court’s decisions, 15 namely the denial of an additional 30 days in custody credits. Dkt. No. 72 ¶¶ 67-69. Herships’ 16 request for damages associated with Judge Takaichi’s denial of custody credits has already been 17 litigated and decided by California state courts, see Dkt. No. 75-5, and Rooker-Feldman bars 18 further consideration here. 19 Judicial immunity also insulates the Superior Court from Herships’ claims for damages 20 based on any judicial acts. See Lund v. Cowan, 5 F.4th 964, 970-72 (9th Cir. 2021). Judge 21 Takaichi’s denial of the 30-day custody credit, and the Appellate Division’s appointment of 22 attorney Safford, are acts taken “within a judge’s lawful jurisdiction” and entitled to immunity. 23 Lund, 5 F.4th at 971. 24 II. OTHER CLAIMS 25 The Title II claim, brought under the ADA, may proceed against the Superior Court and 26 the County. See Tennessee v. Lane, 541 U.S. 509, 517-34 (2004) (Eleventh Amendment does not 27 bar Title II claims regarding access to state courts). To plead a Title II claim, Herships must allege 1 participation in or denied the benefits of a public entity’s services, programs or activities, or was 2 otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or 3 discrimination was by reason of his disability.” Weinreich v. Los Angeles Cnty. Metro. Transp. 4 Auth., 114 F.3d 976, 978 (9th Cir. 1997) (emphasis removed) (quoting Does 1-5 v. Chandler, 83 5 F.3d 1150, 1154-55 (9th Cir. 1996)). The 4AC alleges that Herships, because of his hearing 6 disability and the courtroom’s nonfunctioning sound system, was unable to communicate with 7 court-appointed legal counsel. Dkt. No. 72 ¶¶ 58-60. This is enough to go forward. The 8 Rehabilitation Act claim may also go forward with respect to both defendants, as “[t]here is no 9 significant difference in analysis of the rights and obligations created by the ADA and the 10 Rehabilitation Act.” Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999); 11 see also Douglas v. California Dep’t of Youth Auth., 271 F.3d 812, 820 (9th Cir. 2001), amended, 12 271 F.3d 910 (9th Cir. 2001). 13 The retaliation claim is dismissed. To establish a prima facie case of retaliation under the 14 ADA, Herships must allege that (1) he engaged in a protected activity; (2) he suffered an adverse 15 action; and (3) there was a causal link between the two. See Pardi v. Kaiser Found. Hosps., 389 16 F.3d 840, 849 (9th Cir. 2004); 42 U.S.C. § 12203. Herships has not made out a prima facie case 17 of retaliation by either defendant. He focuses on the denial of the 30-day custody credit and the 18 County Public Defender’s unilateral withdrawal of representation. Dkt. No. 72 ¶¶ 102, 103. The 19 denial of the custody credit is entitled to judicial immunity and may not be the subject of a 20 retaliation claim. See Lund, 5 F.4th at 970-72. For the withdrawal of counsel, Herships has not 21 alleged any causal relationship between his ADA-protected activity and his counsel’s withdrawal. 22 In fact, an exhibit attached to Herships’ initial compliant indicates that he requested his counsel’s 23 withdrawal. Dkt. No. 1 at ECF p. 41. Herships’ remaining theories, including that the County 24 failed to serve Herships with copies of various filings, Dkt. No. 72 ¶ 106, also do not give rise to a 25 retaliation claim, as Herships has not alleged injury from those actions, or any causal connection 26 to protected acts. 27 The Section 1983 claims are dismissed for the Superior Court and the County. As an arm 1 Munoz v. Superior Ct. of Los Angeles Cnty., 91 F.4th 977, 980 (9th Cir. 2024). For the Section 2 1983 claim against the County, Herships says he was denied his constitutional “rights to legal 3 representation in a criminal case,” Dkt. No. 72 ¶ 112, but he has not identified any policy, custom, 4 or practice on the part of the County that led to the constitutional violations asserted in the 5 complaint. This falls short of the requirements of Monell. See Monell v. Department of Social 6 Services of the City of New York, 436 U.S. 658, 694 (1978); San Francisco Intern. Art Festival v. 7 Breed, No. 20-CV-07314-JD, 2022 WL 658971, at *2 (N.D. Cal. Mar. 4, 2022). “[A] policy or 8 practice requires more than a few occurrences of challenged conduct. A single or even a few 9 isolated and sporadic incidents of unconstitutional conduct are not enough to impose municipal 10 liability under Section 1983.” Escobar-Lopez v. City of Daly City, 527 F. Supp. 3d 1123, 1128 11 (N.D. Cal. 2021) (citing Gant v. Cnty. of Los Angeles, 772 F.3d 608, 618 (9th Cir. 2014)). The 12 4AC did not allege anything other than one event involving Herships. 13 The stand-alone claim under the Fourteenth Amendment essentially just repeats the other 14 claims in the complaint. It is dismissed. 15 For the Chavez consent decree, Herships does not have standing to enforce it. He sought 16 to intervene in Chavez and was denied because his “interests are adequately represented by” class 17 counsel. See Chavez v. Cnty. of Santa Clara, No. 3:15-cv-05277-RMI (N.D. Cal. Sept. 1, 2021) 18 (Dkt. No. 119). Herships may talk with counsel for the class about his concerns. It bears mention 19 that the consent decree states: “Neither the fact of this Consent Decree nor any statement of 20 claims contained herein shall be used in any other case, claim, or administrative proceedings.” 21 Chavez, No. 3:15-cv-05277-RMI (N.D. Cal. Mar. 22, 2019) (Dkt. No. 109). 22 23 24 25 26 27 1 CONCLUSION 2 As the current 4AC indicates, Herships has had many opportunities to present his claims. 3 Further amendment is not warranted. See Cobai v. United States, No. 23-CV-01631-JD, 2024 WL 4 || 2788424, at *1 (N.D. Cal. May 29, 2024). 5 IT IS SO ORDERED. 6 || Dated: September 13, 2024 7 8

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