1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDWARD VARGAS, JR., individually Case No.: 3:23-cv-01893-RBM-SBC and as successor in interest to Edward 12 Vargas, et al., ORDER GRANTING IN PART AND 13 DENYING IN PART DEFENDANTS’ Plaintiffs,

MOTIONS TO DISMISS

14 v. PLAINTIFFS’ COMPLAINT 15 STATE OF CALIFORNIA, et al., [Docs. 10, 16] 16 Defendants. 17 18 19 This 42 U.S.C. § 1983, Americans with Disabilities Act (“ADA”), and 20 Rehabilitation Act (“RA”) case concerns the care for Edward Vargas’ (“Decedent”) 21 hypertensive cardiovascular disease (“HCD”) in the Richard J. Donovan Correctional 22 Facility (“Donovan”) and the circumstances of his death on October 17, 2021. Decedent’s 23 son, Edward Vargas, Jr., as successor in interest, and Decedent’s mother, Joan Vargas 24 (collectively, “Plaintiffs”), bring claims against Defendants State of California (“State”), 25 the California Department of Corrections and Rehabilitation (“CDCR”) (collectively, 26 “Municipal Defendants”), James Hill, S. Rodriguez, F. San Miguel, A. Velasquez, and 27 Does 1–10. (Doc. 1 (“SAC”) ¶¶ 12–18.) 28 Pending before the Court is Municipal Defendants’ Motion to Dismiss the SAC 1 (“MTD 1”). (Doc. 10.) Plaintiffs filed an opposition to MTD 1 (“Opp. to MTD 1”). (Doc. 2 14.) Municipal Defendants filed a reply. (Doc. 15.) 3 Also pending before the Court is Municipal Defendants and Defendants Hill and 4 Rodriguez’s Motion to Dismiss Supervisory Liability Claims Against Defendant Warden 5 Hill (“MTD 2”). (Doc. 16.) Defendants Miguel and Velasquez joined their MTD 2. (Doc. 6 17.) Plaintiffs filed an opposition to MTD 2 (“Opp. to MTD 2”). (Doc. 18.) Municipal 7 Defendants and Defendants Hill and Rodriguez filed a reply. (Doc. 21.) Defendants 8 Miguel and Velasquez joined their reply. (Doc. 22.) 9 In MTD 1, Municipal Defendants argue Plaintiff Edward Vargas, Jr.’s claims must 10 be dismissed because Plaintiffs have not filed a declaration or affidavit under California 11 Code of Civil Procedure § 377.32 establishing Plaintiff Edward Vargas, Jr. as Decedent’s 12 successor in interest. (Doc. 10 at 20–21.) Municipal Defendants argue Plaintiffs’ ADA 13 and RA claims (Fifth and Sixth Causes of Action) fail because Plaintiffs do not sufficiently 14 allege (1) a substantial impairment, (2) discrimination because of a disability, (3) the 15 programs for which he was denied access, and (4) to be entitled to monetary damages, facts 16 to support intentional discrimination. (Id. at 21–27.) In MTD 2, Municipal Defendants 17 and Defendants Hill, Rodriguez, Miguel, and Velasquez argue that the supervisory claim 18 against Defendant Hill is conclusory and lacks specific factual allegations. (Doc. 16 at 11– 19 13.) 20 The Court finds this matter suitable for determination without oral argument 21 pursuant to Civil Local Rule 7.1(d)(1). For the reasons discussed below, MTD 1 (Doc. 10) 22 is GRANTED IN PART and DENIED IN PART, and MTD 2 (Doc. 16) is GRANTED. 23 I. BACKGROUND 24 The facts and claims alleged in Plaintiffs’ SAC are as follows. 25 A. Pre-Incident 26 Decedent Edward Vargas, who was incarcerated at Donovan, was a 44-year-old son 27 to Joan Vargas and father to Edward Vargas, Jr. (SAC ¶¶ 8–9, 24.) “Upon information 28 and belief, [Decedent] had been experiencing a medical emergency for an appreciable 1 amount of time prior to his death.” (Id. ¶ 25.) Decedent had a long-documented history of 2 HCD. (Id.) Upon information and belief, Defendants Hill, Rodriguez, Miguel, and 3 Velasquez were “well aware” of his serious medical condition. (Id.) 4 B. Incident 5 On October 17, 2021, Defendants Rodriguez, Miguel and Velasquez ignored calls 6 from other inmates for approximately 15 minutes concerning Decedent’s medical 7 emergency. (Id. ¶ 26.) At approximately 8:00 a.m., Decedent was found unresponsive in 8 his cell at Donovan by Defendants Miguel and Velasquez with fresh abrasions to his body. 9 (Id. ¶ 24.) Despite CPR efforts and transportation to the medical ward, Decedent died that 10 same day. (Id.) 11 C. Safety Checks 12 Upon information and belief, Defendants Rodriguez, Miguel, and Velasquez did not 13 conduct proper Title 15 safety checks. (Id. ¶ 27.) As a result, Decedent’s “dire need for 14 immediate emergency medical intervention went unnoticed” by Defendants Rodriguez, 15 Miguel, and Velsaquez, “who were responsible for monitoring and ensuring the welfare of 16 all inmates, including [Decedent].” (Id. ¶ 28.) Had they conducted Title 15 safety checks 17 in a timely manner, they would have discovered Decedent “in a distressed medical state 18 and could have provided timely medical care which would have saved his life.” (Id. ¶ 27.) 19 D. Medical Care and Conditions of Confinement 20 Upon information and belief, custodial and medical staff at Donovan administered 21 inadequate care to Decedent. (Id. ¶ 29.) Defendants Rodriguez, Miguel, Velasquez, and 22 Does 1–10 “made the intentional decision of confining [Decedent] in such a condition 23 which exposed him to significant risk of death or serious harm based upon his condition.” 24 (Id.) 25 E. Fentanyl 26 Upon information and belief, Decedent could have died due to inadvertent exposure 27 to Fentanyl. (Id. ¶ 31.) Defendants Rodriguez, Miguel, and Velasquez were “aware of the 28 proliferation of contraband, including Fentanyl, in [Donovan], yet failed to take any action 1 to rectify or address the proliferation of contraband.” (Id.) Decedent “was not a known 2 drug user or involved in other illicit activity.” (Id. ¶ 32.) 3 F. Claims at Issue 4 1. Supervisory Liability for Failure to Properly Train, Supervise, and 5 Discipline (Fourth Cause of Action) 6 Defendant Hill and Does 8–10 “had the duty and responsibility to constitutionally 7 hire, train, instruct, monitor, supervise, evaluate, investigate, staff, and discipline the other 8 Defendants employed by their respective agencies in this matter, as well as all employees 9 and agents of the STATE and CDCR.” (Id. ¶ 70.) Defendant Hill and Does 8–10 “failed 10 to properly hire, train, instruct, monitor, supervise, evaluate, investigate, and discipline the 11 respective employees of their agencies, including Defendants S. RODRIGUEZ, F. SAN 12 MIGUEL, and A. VELASQUEZ and DOES 1 through 10, and other STATE and CDCR 13 personnel, with deliberate indifference to Plaintiff’s, decedent Edward Vargas’s, and 14 others’ constitutional rights.” (Id. ¶ 71.) “Each of these supervising Defendants either 15 directed his or her subordinates in conduct that violated Decedent’s rights, or set in motion 16 a series of acts and omissions by his or her subordinates that the supervisor knew or 17 reasonably should have known would deprive decedent Edward Vargas of rights, or knew 18 his or her subordinates were engaging in acts likely to deprive decedent Edward Vargas of 19 rights and failed to act to prevent his or her subordinate from engaging in such conduct, or 20 disregarded the consequence of a known or obvious training deficiency that he or she must 21 have known would cause subordinates to violate Edward [Vargas’s] rights, and in fact did 22 cause the violation of decedent Edward Vargas’s rights.” (Id. ¶ 72.) “Furthermore, each 23 of these supervising Defendants is liable in their failures to intervene in their subordinates’ 24 apparent violations of decedent Edward Vargas’s rights.” (Id.) “The unconstitutional 25 customs, policies, practices, and/or procedures of Defendants STATE and CDCR, as stated 26 herein, were directed, encouraged, allowed, and/or ratified by policymaking officers for 27 Defendants STATE and CDCR, including Defendants JAMES HILL and DOES 8 through 28 10, respectively, with deliberate indifference to Plaintiff’s, decedent Edward Vargas’s, and 1 others’ constitutional rights.” (Id. ¶ 73.) “The unconstitutional actions and/or omissions 2 of Defendants DOES 1 through 10, and other STATE and CDCR personnel, as described 3 above, were approved, tolerated, and/or ratified by policymaking officers for the STATE 4 and CDCR, including Defendants JAMES HILL and DOES 8 through 10.” (Id. ¶ 74.) 5 Upon information and belief, “the details of this incident have been revealed to 6 Defendants JAMES HILL and DOES 8 through 10 and that such Defendant-policymakers 7 have direct knowledge of the fact that the death of decedent Edward Vargas was not 8 justified or necessary, but represented deliberate indifference to his rights to be protected 9 and safe while in the STATE’s custody and his rights to his serious medical needs.” (Id.) 10 “Notwithstanding this knowledge, on information and belief, JAMES HILL and DOES 8 11 through 10 have approved and ratified of the conduct and decisions of Defendants S. 12 RODRIGUEZ, F. SAN MIGUEL, and A. VELASQUEZ and DOES 1 through 10 in this 13 matter, and have made a deliberate choice to endorse such conduct and decisions, and the 14 basis for them, that resulted in the death of Edward Vargas. By so doing, Defendants 15 JAMES HILL and DOES 8 through 10 have shown affirmative agreement with the 16 individual Defendants’ actions and have ratified the unconstitutional acts of the individual 17 Defendants.” (Id.) Upon information and belief, “JAMES HILL and DOES 8 through 10 18 and other policymaking officers for the STATE and CDCR were and are aware of a pattern 19 of misconduct and injury, and a code of silence, caused by STATE and CDCR custody and 20 medical staff personnel similar to the conduct of Defendants described herein, but failed to 21 discipline culpable law enforcement officers and employees and failed to institute new 22 procedures and policy within the STATE and CDCR.” (Id.) Hill and Does 8–10’s actions 23 were a moving force behind the deprivation of Decedent’s constitutional rights. (Id. ¶ 75.) 24 2. Violation of the Americans With Disabilities Act (Fifth Cause of Action) 25 Upon information and belief, Decedent “was a disabled individual suffering from 26 hypertensive cardiovascular disease, a physical impairment that substantially limited one 27 or more major life activities.” (Id. ¶ 84.) “It was well documented that Decedent Edward 28 Vargas was diagnosed with hypertensive cardiovascular disease and he required a 1 heightened level of medical care.” (Id. ¶ 86.) Upon information and belief, “Defendants 2 STATE and CDCR denied Decedent Edward Vargas benefits by not allowing Edward 3 Vargas to engage in activities which would accommodate his hypertensive cardiovascular 4 disease including physical exercise and other physical activities.” (Id. ¶ 87.) “Defendant 5 STATE and CDCR failed to make reasonable accommodations to Decedent Edward 6 Vargas’ medical needs based on his physical health. The failure to provide critical medical 7 information was a denial of the services program or activity based on his disability.” (Id. 8 ¶ 88.) “Defendant STATE and CDCR denied Edward Vargas benefits of the services, 9 programs or activities including a transfer to a medical facility.” (Id. ¶ 89.) “Defendant 10 STATE and CDCR denied Edward Vargas medical treatment by failing to take Decedent 11 Edward Vargas to provide him with treatment for his hypertensive cardiovascular disease, 12 thereby failing to accommodate Decedent Edward Vargas’ disability, and denying him a 13 service, benefit, or program.” (Id. ¶ 90.) There was an “outright denial of services” when 14 Decedent exhibited obvious symptoms of medical distress, demonstrating Defendants were 15 discriminating against Decedent due to his disability. (Id. ¶ 91.) Defendants State and 16 CDCR were deliberately indifferent because they had “actual knowledge of the substantial 17 risk of harm to Decedent Edward Vargas from his serious diagnosed condition and they 18 responded with deliberate indifference by failing to communicate or document his 19 condition; failing to place him in Medical where he could be watched; and failing to 20 provide him medical care when Decedent Edward Vargas was in medical distress.” (Id. ¶ 21 92.) “Defendants STATE and CDCR failed to conduct any self-evaluation of procedures 22 and training for its personnel about how to handle encounters with persons who have a 23 physical illness or another disability.” (Id. ¶ 94.) 24 3. Violation of the Rehabilitation Act (Sixth Cause of Action) 25 “Defendants STATE and CDCR violated the Rehabilitation Act by failing to make 26 reasonable accommodations to the needs of Decedent Edward Vargas, a disabled person. 27 It was a reasonable accommodation to transfer a patient hypertensive cardiovascular 28 disease to a medical health facility where he could receive necessary services.” (Id. ¶ 102.) 1 “Employees of STATE and CDCR were deliberately indifferent to Decedent Edward 2 Vargas’ serious medical condition. They failed to consider obvious symptoms of Decedent 3 Edward Vargas’ physical health condition.” (Id. ¶ 103.) “Instead of providing Decedent 4 Edward Vargas with adequate medical services and fair treatment, Defendants [sic] 5 STATE and CDCR refused to provide him with medical care as his condition deteriorated.” 6 (Id. ¶ 104.) “There were medical services readily available to Decedent Edward Vargas, 7 but Defendants STATE and CDCR failed to properly house Decedent Edward Vargas in 8 the Richard J. Donovan Correctional Facility, where Decedent Edward Vargas could be 9 monitored and humanely cared for.” (Id. ¶ 105.) “Defendants STATE and CDCR knew 10 of the substantial risk of harm to Decedent Edward Vargas from his serious, diagnosed 11 condition and they responded with deliberate indifference by failing to communicate or 12 document his condition; failing to place him in Medical where he could be watched; and 13 failing to provide him medical care when Decedent Edward Vargas was in medical 14 distress.” (Id. ¶ 106.) “Defendants STATE and CDCR violated the Rehabilitation Act by 15 failing to conduct any self-evaluation of procedures and training for its personnel about 16 how to handle communications with jails regarding patients who have a physical medical 17 condition or another disability.” (Id. ¶ 107.) “Defendants STATE and CDCR violated the 18 Rehabilitation Act by failing to conduct any self-evaluation of procedures and training for 19 its personnel about how to handle encounters with persons who have a physical medical 20 condition or another disability.” (Id. ¶ 108.) 21 II. LEGAL STANDARD 22 “A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to 23 state a claim upon which relief can be granted ‘tests the legal sufficiency of a claim.’” 24 Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quoting Navarro 25 v. Block, 250 F.3d 729, 732 (9th Cir. 2001)). An action may be dismissed for failure to 26 allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. 27 v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff 28 pleads factual content that allows the court to draw the reasonable inference that the 1 defendant is liable for the misconduct alleged. The plausibility standard is not akin to a 2 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant 3 acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). 4 For purposes of ruling on a Rule 12(b)(6) motion, the Court “accept[s] factual allegations 5 in the complaint as true and construe[s] the pleadings in the light most favorable to the 6 nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 7 (9th Cir. 2008). 8 III. DISCUSSION 9 As a preliminary matter, Municipal Defendants move to dismiss any direct claims 10 under the Eighth and Fourteenth Amendments against them as barred by Eleventh 11 Amendment immunity. (Doc. 10 at 27–28.) Plaintiffs clarified that they are not raising 12 Eighth and Fourteenth Amendment claims against Municipal Defendants. (Doc. 14 at 14.) 13 Accordingly, the section of MTD 1 concerning Eighth and Fourteenth Amendment claims 14 against Municipal Defendants is DENIED AS MOOT. 15 Moving onto the merits, the Court will first discuss whether Plaintiff Edward Vargas, 16 Jr., as an alleged successor in interest, has sufficiently complied with California Code of 17 Civil Procedure 377.32. Then, the Court will discuss Plaintiffs’ supervisory liability 18 (Fourth Cause of Action), ADA (Fifth Cause of Action), and RA (Sixth Cause of Action) 19 claims. 20 A. Successor In Interest (MTD 1) 21 Municipal Defendants argue Plaintiff Edward Vargas, Jr.’s claims must be dismissed 22 because Plaintiffs have not filed a declaration or affidavit under California Code of Civil 23 Procedure § 377.32 establishing Plaintiff Edward Vargas, Jr. as Decedent’s successor in 24 interest. (Doc. 10 at 20–21.) Plaintiffs respond that a declaration or affidavit is not a 25 prerequisite to filing or continuing an action under § 377.32 and that Plaintiffs will file a § 26 377.32 declaration promptly. (Doc. 14 at 9–10.) Municipal Defendants reply that Plaintiffs 27 must file such a declaration or affidavit to continue this action and establish standing to 28 bring any survivor claims on behalf of Decedent. (Doc. 15 at 2–4.) 1 Under California Code of Civil Procedure § 377.32(a), a “person who seeks to 2 commence an action or proceeding or to continue a pending action or proceeding as the 3 decedent’s successor in interest under this article, shall execute and file an affidavit or a 4 declaration under penalty of perjury under the laws of this state” with numerous specific 5 requirements. Under California Code of Civil Procedure § 377.32(c), “[a] certified copy 6 of the decedent’s death certificate shall be attached to the affidavit or declaration.” 7 The Court has not identified any Ninth Circuit case directly addressing whether a 8 plaintiff proceeding as a successor in interest must file a § 377.32 declaration or affidavit 9 to commence an action. District courts in this Circuit also appear split on the issue. See 10 Kirby v. AT&T Corp., Case No. 3:21-cv-01680-BEN-BGS, 2022 WL 1227993, at *1 (S.D. 11 Cal. Apr. 26, 2022) (dismissing case and finding the process of submitting an affidavit 12 under § 377.32 concerns a procedural rule, but the content concerns a substantive rule, and 13 thus the plaintiff must demonstrate compliance with § 377.32 for the suit to proceed); Est. 14 of Merlin Factor v. Cnty. of San Bernardino, Case No. ED CV 14-01289 DMG (AGRx), 15 2015 WL 13916251, at *4 (C.D. Cal. Apr. 8, 2015) (“Section 377.32 does not require an 16 affidavit as condition precedent to commencing or continuing action, see Parsons v. 17 Tickner, 31 Cal. App. 4th 1513, 1523–24 (1995), but filing the affidavit is mandatory to 18 establish standing.”); but see Bhandari v. Nat’l City, Case No. 3:21-cv-01652-BTM-MDD, 19 2022 WL 1308034, at *3 (S.D. Cal. May 2, 2022) (explaining there is no statutory 20 command for a § 377.32 declaration to be filed with a complaint); Abrego v. City of Los 21 Angeles, Case No. CV 15-00039-BRO (JEMx), 2016 WL 9450679, at *5 (C.D. Cal. Sept. 22 23, 2016) (explaining § 377.32 makes no reference to a cutoff date and is not indicative of 23 a condition precedent to filing the lawsuit). 24 § 377.32 does not set a timeframe for the filing of the successor in interest affidavit 25 or declaration. Thus, it is premature to dismiss Plaintiff Edward Vargas, Jr.’s successor in 26 interest claims. However, establishing whether Plaintiff Edward Vargas, Jr. is a proper 27 successor in interest is necessary to resolving any issues concerning his standing to bring 28 claims in this case. See Est. of Merlin Factor, 2015 WL 13916251, at *4. Thus, the Court 1 ORDERS Plaintiffs to comply with § 377.32 on or before the deadline for filing a third 2 amended complaint or risk dismissal of Plaintiff Edward Vargas, Jr.’s claims as a successor 3 in interest. 4 B. Supervisory Liability (Fourth Cause of Action) (MTD 2) 5 Municipal Defendants and Defendants Hill, Rodriguez, Miguel, and Velasquez 6 argue that the supervisory claim against Defendant Hill is conclusory and lacks specific 7 factual allegations. (Doc. 16 at 11–13.) Plaintiffs respond that they have pled sufficient 8 facts for a supervisory claim and now argue Defendant Hill should have known Defendants 9 Rodriguez, Miguel, and Velasquez did not conduct proper Title 15 safety checks. (Doc. 10 18 at 9–11.) Municipal Defendants and Defendants Hill, Rodriguez, Miguel and Velasquez 11 reply that Plaintiffs’ assertions against Defendant Hill are bare assertions that are nothing 12 more than a formulaic recitation of the elements of a civil rights claim and do not establish 13 a causal link between Defendant Hill’s conduct and the alleged violation of Decedent’s 14 constitutional rights. (Doc. 21 at 2–5.) 15 “A defendant may be held liable as a supervisor under § 1983 ‘if there exists either 16 (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient 17 causal connection between the supervisor’s wrongful conduct and the constitutional 18 violation.’” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 19 885 F.2d 642, 646 (9th Cir. 1989)). This causal connection can be established “by setting 20 in motion a series of acts by others which the actor knows or reasonably should know 21 would cause others to inflict the constitutional injury.” Hydrick v. Hunter, 500 F.3d 978, 22 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978)). It 23 can also be established by “knowingly refus[ing] to terminate a series of acts by others, 24 which [the supervisor] knew or reasonably should have known would cause others to inflict 25 a constitutional injury.” Starr, 652 F.3d at 1207–08 (quoting Dubner v. City & Cnty. of 26 San Francisco, 266 F.3d 959, 968 (9th Cir. 2001)). 27 “A supervisor can be liable in his individual capacity for his own culpable action or 28 inaction in the training, supervision, or control of his subordinates; for his acquiescence in 1 the constitutional deprivation; or for conduct that showed a reckless or callous indifference 2 to the rights of others.” Id. at 1208 (quoting Watkins v. City of Oakland, 145 F.3d 1087, 3 1093 (9th Cir. 1998)). A supervisor may be liable under § 1983 for failing to train 4 subordinates when the failure amounts to deliberate indifference. Canell v. Lightner, 143 5 F.3d 1210, 1213 (9th Cir. 1998) (citing Harris, 489 U.S. at 388). A supervisor can also be 6 liable for “implement[ing] a policy so deficient that the policy ‘itself is a repudiation of 7 constitutional rights’ and is ‘the moving force of the constitutional violation.’” Hansen, 8 885 F.2d at 646 (citation omitted). 9 Plaintiffs do not assert that Defendant Hill was personally involved in Decedent’s 10 alleged constitutional deprivation. Thus, the question is whether there is a sufficient causal 11 connection between Defendant Hill’s alleged wrongful conduct and Decedent’s alleged 12 constitutional violation. 13 Plaintiffs allege Defendant Hill was aware of Decedent’s HCD. (SAC ¶ 25.) 14 Plaintiffs allege Defendant Hill was responsible for hiring, training, supervising, 15 disciplining, etc. employees and agents of Municipal Defendants and failed to do so with 16 deliberate indifference to Decedent’s constitutional rights. (Id. ¶¶ 70–72.) Plaintiffs allege 17 Defendant Hill directed, encouraged, allowed, or ratified unconstitutional customs, 18 policies, practices or procedures and employees’ actions in this case with a deliberate 19 indifference to Decedent’s constitutional rights. (Id. ¶¶ 73–74.) Plaintiffs allege Defendant 20 Hill learned the details of this incident and approved or ratified the conduct of Defendants 21 Rodriguez, Miguel, Velasquez, and Does 1–10. (Id. ¶ 74.) Plaintiffs also allege Defendant 22 Hill was aware of a pattern of misconduct, injury, and a code of silence caused by 23 Municipal Defendants’ custody and medical staff yet failed to discipline them or institute 24 new procedures and policy. (Id.) Lastly, Plaintiffs allege Defendant Hill’s actions were a 25 moving force behind the deprivation of Decedent’s constitutional rights. (Id. ¶ 75.) 26 Plaintiffs’ supervisory allegations in this case are conclusory. Even if Defendant 27 Hill was aware of Decedent’s HCD, Plaintiffs fail to allege specific facts concerning what 28 actions or inactions Defendant Hill took that demonstrated a deliberate indifference to 1 Decedent’s HCD and were the moving force behind the violation of Decedent’s 2 constitutional rights. Plaintiffs have not specifically alleged facts showing Defendant Hill 3 engaged in “a series of acts by others which the actor knows or reasonably should know 4 would cause others to inflict the constitutional injury.” Hydrick, 500 F.3d at 988. Nor 5 have Plaintiffs specifically alleged Defendant Hill knowingly refused to terminate a series 6 of acts he knew or should have known would cause Decedent’s injury. See Starr, 652 F.3d 7 at 1207–08. Nor have Plaintiffs specifically alleged how Defendant Hill failed to train, 8 supervise, or discipline Municipal Defendants’ employees for conduct showing a 9 deliberate indifference to the constitutional rights of others. See id. at 1208; Canell, 143 10 F.3d at 1213. Nor have Plaintiffs specifically alleged Defendant Hill implemented a 11 deficient policy that is itself a repudiation of constitutional rights and the moving force 12 behind Decedent’s alleged constitutional violation. See Hansen, 885 F.2d at 646. Nor did 13 Plaintiffs plead specific factual allegations in the SAC that Defendant Hill knew employees 14 were not conducting Title 15 safety checks and deliberately failed to act to address such a 15 deficiency. Lastly, while Plaintiffs do allege Defendant Hill was made aware of this 16 incident, they fail to plead specific factual allegations concerning how Defendant Hill 17 approved or ratified the actions of Defendants Rodriguez, Miguel, Velasquez, and Does 1– 18 10. 19 Thus, Defendants’ MTD 2 is GRANTED. 20 C. ADA and RA (Fifth and Sixth Causes of Action) (MTD 1) 21 Municipal Defendants argue Plaintiffs’ ADA and RA claims (Fifth and Sixth Causes 22 of Action) fail because Plaintiffs do not sufficiently allege (1) a substantial impairment, (2) 23 discrimination because of a disability, (3) the programs Decedent was denied access to, 24 and (4) to be entitled to monetary damages, facts to support intentional discrimination. 25 (Doc. 10 at 21–27.) Plaintiffs respond that they have sufficiently alleged each of these 26 requirements. (Doc. 14 at 10–14.) Municipal Defendants reply that Plaintiffs rely on facts 27 not alleged in the SAC, conflate inadequate treatment with discrimination because of 28 disability, fail to identify notice of reasonable accommodations, and fail to identify 1 programs Decedent was denied access to. (Doc. 15 at 4–8.) 2 To begin, the parties do not dispute that both ADA and RA claims are subject to the 3 same standard. (See Doc. 10 at 21 n.4; Doc. 14 at 10.) See Duvall v. County of Kitsap, 4 260 F.3d 1124, 1135–36 (9th Cir. 2001) (explaining Title II of the ADA remodeled after § 5 504 of RA and elements do not differ in material respect); see also Wong v. Regents of 6 University of California, 192 F.3d 807, 822 n.34 (9th Cir. 1999) (“Courts repeatedly have 7 noted that despite this slight difference in terminology, the same analysis applies to claims 8 under both Acts.”); Zukle v. Regents of Univ. of California, 166 F.3d 1041, 1045 n.11 (9th 9 Cir. 1999) (“There is no significant difference in analysis of the rights and obligations 10 created by the ADA and the Rehabilitation Act.”). Thus, the Court analyzes these claims 11 together under the same standard. 12 Under 42 U.S.C. § 12132, “no qualified individual with a disability shall, by reason 13 of such disability, be excluded from participation in or be denied the benefits of the 14 services, programs, or activities of a public entity, or be subjected to discrimination by any 15 such entity.” “To prevail under Title II, the plaintiff must show that: (1) he is a qualified 16 individual with a disability; (2) he was either excluded from participation in or denied the 17 benefits of a public entity’s services, programs, or activities, or was otherwise 18 discriminated against by the public entity; and (3) this exclusion, denial, or discrimination 19 was by reason of his disability.” Cohen v. City of Culver City, 754 F.3d 690, 695 (9th Cir. 20 2014) (citing Weinreich v. L.A. Cnty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 21 1997)). “Title II authorizes private suits for money damages.” Id. (citing 42 U.S.C. § 22 12133 and Tennessee v. Lane, 541 U.S. 509, 517 (2004)). 23 1. Qualified Individual with Disability 24 Municipal Defendants argue Plaintiffs fail to allege Decedent’s HCD substantially 25 limited any major life activity as required for a qualified disability under the ADA. (Doc. 26 10 at 22–23.) Plaintiffs respond that Decedent’s HCD substantially limited more than one 27 major life activity because it had no cure and impacted his ability to properly breathe and 28 limited his mobility. (Doc. 14 at 11–12.) Municipal Defendants respond that those 1 allegations are not in the SAC. (Doc. 15 at 4.) 2 “A disability is ‘a physical or mental impairment that substantially limits one or 3 more major life activities of [the] individual [who claims the disability],’ or ‘a record of 4 such an impairment,’ or ‘being regarded as having such an impairment.’” Weaving v. City 5 of Hillsboro, 763 F.3d 1106, 1111 (9th Cir. 2014) (citing 42 U.S.C. § 12102(1)). “The 6 ADA provides a nonexhaustive list of ‘major life activities.’ Such activities include 7 “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, 8 standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, 9 communicating, and working.” Id. (citing 42 U.S.C. § 12102(2)(A)). “An impairment that 10 substantially limits one major life activity need not limit other major life activities in order 11 to be considered a disability.” Id. (citing 42 U.S.C. § 12102(4)(C)). According to Equal 12 Employment Opportunity Commission (“EEOC”) regulations, “[a]n impairment is a 13 disability ... if it substantially limits the ability of an individual to perform a major life 14 activity as compared to most people in the general population. An impairment need not 15 prevent, or significantly or severely restrict, the individual from performing a major life 16 activity in order to be considered substantially limiting.” Id. (citing 29 C.F.R. § 17 1630.2(j)(1)(ii)). 18 Plaintiffs allege Decedent had a long-documented history of HCD. (See SAC ¶ 25.) 19 Plaintiffs do not allege in the SAC that Decedent’s HCD was uncurable, impacted his 20 ability to properly breathe, and limited his mobility. Accordingly, Plaintiffs have failed to 21 sufficiently allege how Decedent’s HCD substantially limited his ability to perform one or 22 more major life activities. Thus, Plaintiffs have not sufficiently alleged Decedent was a 23 qualified individual with a disability. 24 2. Services, Programs, or Activities 25 Municipal Defendants argue Plaintiffs fail to identify which services, programs, or 26 activities Decedent was denied due to his disability. (Doc. 10 at 24–26.) Plaintiffs respond 27 that Decedent was denied programs and services including physical exercise programs to 28 accommodate his HCD and a transfer to a medical facility. (Doc. 14 at 13–14.) Municipal 1 Defendants respond that these allegations are conclusory and fail to describe a needed 2 reasonable accommodation and whether it was requested and denied. (Doc. 15 at 7–8.) 3 In Armstrong v. Schwarzenegger, the Ninth Circuit stated that “[a]lthough we have 4 noted that ‘incarceration itself is hardly a ‘program’ or ‘activity’ to which a disabled person 5 might wish access,’ we have made clear that the ADA entitles inmates to receive the 6 ‘benefits’ of the incarcerating institution’s programs and services without facing 7 discrimination on account of a disability.” 622 F.3d 1058, 1068 (9th Cir. 2010) (citations 8 omitted). The Ninth Circuit explained the Supreme Court has rejected a contrary argument 9 because “[m]odern prisons provide inmates with many recreational ‘activities,’ medical 10 ‘services,’ and educational and vocational ‘programs,’ all of which at least theoretically 11 ‘benefit’ the prisoners.” Id. (quoting Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206, 12 210 (1998)); see also Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) 13 (“[A]lthough ‘[i]ncarceration itself is hardly a ‘program’ or ‘activity’ to which a disabled 14 person might wish access,’ mental health services and other activities or services 15 undertaken by law enforcement and provided by correctional facilities to those incarcerated 16 are ‘services, programs, or activities of a public entity’ within the meaning of the ADA.”) 17 (quoting Armstrong v. Wilson, 124 F.3d 1019, 1023–24 (9th Cir. 1997)). 18 Here, Plaintiffs have identified programs, services, or activities within the meaning 19 of the ADA, including failing to allow Decedent to engage in physical exercise or physical 20 activities, failing to transfer him to a medical facility, and failing to transfer him to Medical 21 where he could be observed. (See ¶¶ 87, 89, 92.) See Armstrong, 622 F.3d at 1068; see 22 also Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir. 2002) (“Rather than 23 determining whether each function of a city can be characterized as a service, program, or 24 activity for purposes of Title II, however, we have construed ‘the ADA’s broad language 25 [as] bring[ing] within its scope ‘anything a public entity does.’”) (quoting Lee, 250 F.3d at 26 691). Thus, Plaintiffs have sufficiently identified programs, services, or activities under 27 the ADA that Decedent was excluded from or denied. 28 However, Plaintiffs may not state an ADA or RA claim due to custodial or medical 1 staff’s providing inadequate care to Decedent or failing to provide treatment for his HCD. 2 (See SAC ¶¶ 29, 88, 90.) See Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1022 (9th 3 Cir. 2010) (“The ADA prohibits discrimination because of disability, not inadequate 4 treatment for disability.”) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) 5 (“[T]he Act would not be violated by a prison’s simply failing to attend to the medical 6 needs of its disabled prisoners .... The ADA does not create a remedy for medical 7 malpractice.”)). 8 3. Because Of Disability 9 Municipal Defendants argue Plaintiffs fail to plead sufficient facts to show Decedent 10 was discriminated against because of his disability. (Doc. 10 at 23–24.) Plaintiffs respond 11 that Decedent was discriminated against because Municipal Defendants knew of his HCD 12 and that it required obvious accommodations. (Doc. 14 at 12–13.) Municipal Defendants 13 respond that Plaintiffs conflate deliberate indifference with the requirement that 14 discrimination be ‘because of’ disability under the ADA and RA. (Doc. 15 at 4–5.) 15 Plaintiffs must allege sufficient facts that Decedent was denied access to programs, 16 services, or activities because of his disability. See Simmons, 609 F.3d at 1021–22 (finding 17 plaintiff failed to raise a triable issue of fact as to whether decedent’s depression was the 18 motivating factor in excluding him from programs, services, and activities); Marlor v. 19 Madison Cnty., 50 F. App’x 872, 873 (9th Cir. 2002) (“Relief is not available to Marlor 20 under the ADA because he failed to raise a genuine issue of material fact that he was denied 21 crutch tips or access to the jail’s programs or activities because of his disability.”); see also 22 Arreola v. California Dep't of Corr. & Rehab., Case No. 16-cv-03133-JD, 2017 WL 23 1196802, at *2 (N.D. Cal. Mar. 31, 2017) (“Simply alleging a need for services is not 24 enough. Arreola must plausibly allege that he was denied benefits or programs, or 25 discriminated against, because of a disability.”). 26 Plaintiffs’ only allegation concerning this prong is that there was an “outright denial 27 of services” when Decedent exhibited obvious symptoms of medical distress, 28 demonstrating Defendants were discriminating against Decedent due to his disability. (See 1 id. ¶ 91.) Plaintiffs fail to plead sufficient facts that any Defendant, even if aware of 2 Decedent’s HCD, denied him access to physical activities, a transfer to a medical facility, 3 or a transfer to Medical because of his HCD. Plaintiffs in their Opp. to MTD 1 also appear 4 to confuse this prong with that concerning deliberate indifference (see Doc. 14 at 12–13), 5 as discussed below. Thus, Plaintiffs fail to sufficiently plead Decedent was excluded from 6 or denied programs, services, or activities because of his HCD. 7 4. Monetary Damages 8 Municipal Defendants argue Plaintiffs cannot request monetary relief because 9 Plaintiffs fail to allege they intentionally discriminated against Decedent by displaying 10 deliberate indifference. (Doc. 10 at 26–27.) Plaintiffs argue Municipal Defendants were 11 deliberately indifferent because they were on notice of his HCD and that it required obvious 12 accommodations, but they failed to communicate or document his condition or place him 13 in Medical. (Doc. 14 at 12–13.) Plaintiffs also argue Municipal Defendants’ 14 discrimination includes failure to make reasonable accommodations, including training on 15 how to deal with the physically ill, specialized training of CDCR staff, heightened level of 16 medical care, and diligent surveillance. (Id. at 13.) 17 “Recovery of damages under Title II requires a showing of intentional 18 discrimination.” Cohen, 754 F.3d at 695 n.6 (citing Duvall, 260 F.3d at 1138). “The 19 plaintiff must prove that the defendant public entity acted with ‘deliberate indifference,’ 20 meaning that it knew that harm to a federally protected right was substantially likely and 21 failed to act upon that knowledge.” Id. (citing Duvall, 260 F.3d at 1139). The first 22 requirement is met “[w]hen the plaintiff has alerted the public entity to his need for 23 accommodation (or where the need for accommodation is obvious, or required by statute 24 or regulation).” Duvall, 260 F.3d at 1139. The second requirement is met where there is 25 a failure to act that is the “result of conduct that is more than negligent, and involves an 26 element of deliberateness.” Id. 27 Plaintiffs allege Municipal Defendants were deliberately indifferent because they 28 had actual knowledge of a substantial risk of harm to Decedent due to his HCD. (Id. ¶ 92.) 1 And that Municipal Defendants failed to communicate or document Decedent’s condition, 2 failed to place him in Medical where he could be watched, and failed to provide him 3 medical care when he was in medical distress. (Id.) 4 On the first deliberate indifference prong, Plaintiffs must show Decedent “alerted 5 the public entity to his need for accommodation” or “the need for accommodation is 6 obvious” or “required by statute or regulation.” Duvall, 260 F.3d at 1139. Even if Plaintiffs 7 allege certain Defendants were aware of Decedent’s HCD (see SAC ¶ 25), Plaintiffs have 8 not alleged sufficient facts to show that Decedent notified Municipal Defendants of his 9 need for physical activity, the need for his HCD to be documented or monitored in Medical, 10 or his need for a transfer to a medical facility. Nor have Plaintiffs pled sufficient facts to 11 show that such accommodations were obvious or required by regulation or statute, or that 12 such accommodations are reasonable. See Pierce v. Cnty. of Orange, 526 F.3d 1190, 1215 13 (9th Cir. 2008) (“Generally, public entities must ‘make reasonable modifications in 14 policies, practices, or procedures when the modifications are necessary to avoid 15 discrimination on the basis of disability, unless the public entity can demonstrate that 16 making the modifications would fundamentally alter the nature of the service, program, or 17 activity.”) (citations omitted). Because Plaintiffs fails on the first deliberate indifference 18 prong, he necessarily fails on the second prong as well and cannot establish deliberate 19 indifference. 20 Thus, Municipal Defendants’ MTD 1 is GRANTED with respect to Plaintiffs’ ADA 21 and RA claims. 22 D. Leave to Amend 23 Leave to amend is generally granted unless the Court harbors concerns “such as 24 undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure 25 deficiencies by amendments previously allowed, undue prejudice to the opposing party by 26 virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 27 371 U.S. 178, 182 (1962). While the Court is not certain at this stage that Plaintiffs’ Fourth, 28 Fifth, and Sixth Causes of Action are futile, the Court notes that this is Plaintiffs’ Second 1 Amended Complaint. At the same time, it is Plaintiffs’ first complaint subject to motions 2 to dismiss. The Court will grant leave to amend these claims, but Plaintiffs are warned that 3 further leave to amend will not be granted liberally. 4 IV. CONCLUSION 5 For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART 6 MTD 1 and GRANTS MTD 2 (Docs. 10, 16), both with leave to amend. Plaintiffs may 7 file a third amended complaint on or before July 19, 2024. 8 IT IS SO ORDERED. 9 DATE: July 3, 2024 10 _____________________________________

HON. RUTH BERMUDEZ MONTENEGRO

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UNITED STATES DISTRICT JUDGE

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