FILED

NOT FOR PUBLICATION

APR 18 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DYLAN J. DOWNEY, No. 18-35686

Plaintiff-Appellant, D.C. No. 2:17-cv-01024-JCC

v.

MEMORANDUM*

SNOHOMISH COUNTY SHERIFF’S

OFFICE; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding

Argued and Submitted April 6, 2022 Pasadena, California

Before: SCHROEDER and GRABER, Circuit Judges, and McNAMEE,** District Judge.

Plaintiff Dylan Downey, a pretrial detainee who is no longer in the custody

of Defendant Snohomish County Sheriff’s Office (“County”), appeals the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen M. McNamee, United States District Judge for the District of Arizona, sitting by designation. summary judgment entered in favor of Defendants. We affirm in part and reverse

and remand in part.

1. The district court did not abuse its discretion, Wilkerson v. Wheeler, 772

F.3d 834, 838 (9th Cir. 2014), by declining to appoint counsel. The court

permissibly concluded that Plaintiff was able to articulate his claims well. See

Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (describing this

factor).

2. The district court properly granted summary judgment for all Defendants

on Plaintiff’s claim under 42 U.S.C. § 1983. We review the grant of summary

judgment de novo, viewing the evidence in the light most favorable to the non-

moving party. King v. County of Los Angeles, 885 F.3d 548, 556 (9th Cir. 2018).

There is no genuine issue of material fact concerning the required factor of

demonstrating that Defendants’ actions caused an actual injury. See Gordon v.

County of Orange, 888 F.3d 1118, 1125 (9th Cir. 2018) (describing elements in a

§ 1983 claim of inadequate medical care). Unlike the plaintiff in Frost v. Agnos,

152 F.3d 1124 (9th Cir. 1998), Plaintiff here did not suffer an actual injury.

3. The district court properly granted summary judgment for all Defendants

on Plaintiff’s claim for retaliation under the Americans With Disabilities Act

(“ADA”). We apply the burden-shifting analysis described in T.B. ex rel.

2 Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451, 472–73 (9th Cir. 2015).

Plaintiff failed to make out a prima facie case of retaliation because there is no

evidence that his complaints concerning inadequate facilities caused the jail to

deny him an ADA-compliant shower. See id. at 473.

4. With respect to Plaintiff’s discrimination claims under the ADA and the

Rehabilitation Act (“RA”), we reverse and remand because there are genuine

issues of material fact. The standards under those two statutes are essentially the

same. A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195, 1203–04

(9th Cir. 2016). Plaintiff asserts, for example, that he complained to staff before

any of the documented complaints. He also states that he tried several times to

notify staff that he required an ADA-compliant shower and that one staff member

responded by telling him to “deal with it or take a birdbath.” Plaintiff’s statements

are under oath and contain facts that would be admissible in evidence. See Manley

v. Rowley, 847 F.3d 705, 711 (9th Cir. 2017). Taking all of Plaintiff’s statements

as true, he told jail staff during both his first and second stays in the old jail that he

needed an ADA-compliant shower and those complaints were ridiculed or ignored.

That alleged conduct rises above negligence.

For both ADA claims and RA claims, the public entity is vicariously liable

for the acts of its employees. Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th

3 Cir. 2001). For that reason, the County is the only remaining defendant.

AFFIRMED IN PART and REVERSED AND REMANDED IN PART.

The parties shall bear their own costs on appeal.

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