1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 RONNIE L. MOODY, GARY T. Case No.: 18cv1110-WQH-AGS

DEANS, BILLY R. WILLIAMS,

11

DONNEL E. JONES, ORDER

12 Plaintiffs, 13 v. 14

CALIFORNIA DEPARTMENT

15 OF CORRECTIONS AND

REHABILITATION, DANIEL

16

PARAMO, MCGEE,

17 RODRIGUEZ, SALAZAR,

RAMOS, ADAMS, GUERRERA,

18

EDROZO, CRUZ, DURAN,

19 AVILA, BRAVO, DOE 1-50, 20 Defendants. 21 HAYES, Judge: 22 The matters before the Court are the motion to dismiss filed by Defendants (ECF 23 No. 18), the Report and Recommendation issued by the Magistrate Judge (ECF No. 40), 24 the objections filed by Defendants (ECF No. 42), and the response to objections filed by 25 Plaintiffs (ECF No. 43). 26 I. BACKGROUND 27 On May 31, 2018, Plaintiffs Moody, Deans, Williams, and Jones, incarcerated at 28 Richard J. Donovan Correctional Facility (RJDCF), initiated this action by filing a 1 complaint against Defendants California Department of Corrections and Rehabilitation 2 (CDCR), Daniel Paramo, McGee, Rodriguez, Salazar, Ramos, Adams, Guerrera, Edrozo, 3 Cruz, Duran, Avila, and Bravo. (ECF No. 1). Plaintiffs allege that Defendants are involved 4 in a “faction of CDCR officers that call themselves the ‘Green Wall,’” “a Mafia-like prison 5 gang of correctional officers that engages in unlawful activity, including staff-on-prisoner 6 violence, coordination of prisoner-on-prisoner violence, smuggling illegal 7 contraband/items into CDCR facilities such as illegal drugs and cell phones which are sold 8 to prisoners for cash, and the planting of illegal contraband/items on prisoners (and false 9 reporting thereof).” Id. ¶ 19. Plaintiffs allege that Defendants used unreasonable force 10 during an incident on July 17, 2017, interfered with Plaintiffs’ ability to submit grievances 11 and complaints regarding the July 17, 2017 incident, and arranged for prison transfers to 12 retaliate against Plaintiffs for their grievances and complaints regarding the July 17, 2017 13 incident. Plaintiffs bring claims for discrimination based on disability pursuant to the 14 Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, and the Rehabilitation Act 15 (RA), 29 U.S.C. § 794, against Defendant CDCR. Plaintiffs bring claims for unreasonable 16 force pursuant to 42 U.S.C. § 1983, conspiracy pursuant to 42 U.S.C. § 1983 and § 1985, 17 and declaratory judgment pursuant to 28 U.S.C. § 2201(a) against Defendant Paramo. 18 Plaintiffs bring claims for retaliation pursuant to 42 U.S.C. § 1983, conspiracy pursuant to 19 42 U.S.C. § 1983 and § 1985, and state law claims against Defendant Rodriguez. Plaintiffs 20 bring claims for retaliation pursuant to 42 U.S.C. § 1983 against Defendants Salazar and 21 Bravo. Plaintiffs bring claims for unreasonable force pursuant to 42 U.S.C. § 1983 and 22 state law, claims for conspiracy pursuant to 42 U.S.C. § 1983 and § 1985, and state law 23 claims against Defendants McGee, Salazar, Ramos, Adams, Guerrera, Edrozo, Cruz, 24 Duran, Avila, and Bravo. Plaintiffs seek declaratory and injunctive relief against 25 Defendant Paramo and damages against the remaining defendants. 26 On September 18, 2018, Defendants filed a motion to dismiss on the grounds that 27 “(1) Defendant Paramo is entitled to Eleventh Amendment immunity; (2) Plaintiffs fail to 28 state a claim against Defendant Paramo in his official capacity; (3) Plaintiffs fail to state a 1 claim against Defendant Duran; (4) Plaintiffs Moody, Deans, and Jones fail to state a claim 2 for retaliation; (5) Plaintiffs fail to state a claim for conspiracy; (6) Plaintiffs claim for 3 injunctive relief is moot because only one Plaintiff is still housed at the prison where the 4 incident occurred; (7) Plaintiffs fail to state a claim for violations of the Americans with 5 Disabilities Act and the Rehabilitation Act; and (8) Plaintiffs cannot recover money 6 damages for unreasonable force under the California Constitution.”1 (ECF No. 18 at 2). 7 On October 9, 2018, Plaintiffs filed a response in opposition to the motion to dismiss. 8 (ECF No. 22). 9 On October 15, 2018, Defendants filed a reply in support of the motion to dismiss. 10 (ECF No. 23). 11 On June 28, 2019, the Magistrate Judge issued a Report and Recommendation 12 recommending that the Court dismiss the claims against Defendant Duran, the § 1985(3) 13 conspiracy claims by Plaintiffs Deans, Williams, and Jones, and the retaliation claims by 14 Plaintiffs Moody, Deans, and Jones. (ECF No. 40 at 15). The Report and 15 Recommendation recommends that the Court dismiss with prejudice the claims against 16 Defendant Paramo by Plaintiffs Moody, Deans, and Williams; all conspiracy claims by 17 Plaintiff Moody; the claims for declaratory and injunctive relief by Plaintiffs Moody, 18 Deans, and Williams; and the claim pursuant to Article I, § 17 of the California 19 Constitution. Id. The Report and Recommendation recommends that the Court otherwise 20 deny the motion to dismiss. 21 On July 12, 2019, Defendants filed objections to the Report and Recommendation 22 challenging the recommendation to deny dismissal of the ADA and RA claims, and the 23 claim for injunctive relief against Defendant Paramo. (ECF No. 42 at 8). 24 25 1 The Motion does not seek to dismiss the following claims: Plaintiff Williams’ retaliation claim pursuant 26 to §1983; the unreasonable force claims pursuant to § 1983 against Defendants McGee, Salazar, Ramos, Adams, Guerrera, Edrozo, Cruz, Avila, Bravo; the Bane Act, assault and battery, intentional infliction of 27 emotional distress, and negligence claims against Defendants McGee, Salazar, Ramos, Adams, Guerrera, Edrozo, Cruz, Avila, Bravo; and the Bane Act, intentional infliction of emotional distress, and negligence 28 1 On July 17, 2019, Plaintiffs filed a response to the objections to the Report and 2 Recommendation. (ECF No. 43). 3 II. LEGAL STANDARD ON REPORT AND RECOMMENDATION 4 The duties of the district court in connection with a report and recommendation 5 issued by a magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 6 U.S.C. § 636(b). The district judge must “make a de novo determination of those portions 7 of the report . . . to which objection is made,” and “may accept, reject, or modify, in whole 8 or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b). 9 The district court need not review de novo those portions of a report and recommendation 10 to which neither party objects. See Wang v. Masaitis, 416 F.3d 992, 1000 n.13 (9th Cir. 11 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) 12 (“Neither the Constitution nor the [Federal Magistrates Act] requires a district judge to 13 review, de novo, findings and recommendations that the parties themselves accept as 14 correct.”). 15 III. DEFENDANT DURAN 16 No party has filed an objection to the conclusion of the Report and Recommendation 17 that the claims against Defendant Duran should be dismissed with leave to amend. The 18 Court has reviewed the related portions of the Report and Recommendation and adopts the 19 Report and Recommendation with respect the claims against Defendant Duran. (ECF No. 20 40 at 4:16–6:9). For the reasons stated in the Report and Recommendation the claims 21 against Defendant Duran are dismissed with leave to amend. 22 IV. RETALIATION CLAIMS 23 No party has filed an objection to the conclusion of the Report and Recommendation 24 that retaliation claims by Plaintiffs Moody, Deans, and Jones should be dismissed with 25 leave to amend. The Court has reviewed the related portions of the Report and 26 Recommendation and adopts the Report and Recommendation with respect to the 27 retaliation claims by Plaintiffs Moody, Deans, and Jones. (ECF No. 40 at 6:10–8:22). For 28 1 the reasons stated in the Report and Recommendation the retaliation claims by Plaintiffs 2 Moody, Deans, and Jones are dismissed with leave to amend. 3 V. STATE LAW UNREASONABLE FORCE CLAIM 4 No party has filed an objection to the conclusion of the Report and Recommendation 5 that the claims pursuant to Article I, § 17 of the California Constitution should be dismissed 6 with prejudice, without leave to amend. The Court has reviewed the related portions of the 7 Report and Recommendation and adopts the Report and Recommendation with respect to 8 the claims pursuant to Article I, § 17 of the California Constitution. (ECF No. 40 at 14:1– 9 23). For the reasons stated in the Report and Recommendation the claims pursuant to 10 Article I, § 17 of the California Constitution are dismissed with prejudice, without leave to 11 amend. 12 VI. DECLARATORY AND INJUNCTIVE RELIEF CLAIMS BY 13 PLAINTIFFS MOODY, DEANS, AND WILLIAMS 14 No party has filed an objection to the conclusion of the Report and Recommendation 15 that the claims for declaratory and injunctive relief by Plaintiffs Moody, Deans, and 16 Williams are moot and should be dismissed with prejudice, without leave to amend. The 17 Court has reviewed the related portions of the Report and Recommendation and adopts the 18 Report and Recommendation with respect to the claims for declaratory and injunctive relief 19 by Plaintiffs Moody, Deans, and Williams. (ECF No. 40 at 12:25–13:25). For the reasons 20 stated in the Report and Recommendation the claims for declaratory and injunctive relief 21 by Plaintiffs Moody, Deans, and Williams are dismissed with prejudice, without leave to 22 amend. 23 VII. DEFENDANT PARAMO 24 No party has filed an objection to the conclusion of the Report and Recommendation 25 that Plaintiffs do not seek money damages against Defendant Paramo and that the Motion 26 to Dismiss damages claims against Defendant Paramo should be denied as moot. The 27 Court has reviewed the related portions of the Report and Recommendation and adopts the 28 Report and Recommendation with respect to the Motion to Dismiss damages claims against 1 Defendant Paramo. (ECF No. 40 at 3:10–12). For the reasons stated in the Report and 2 Recommendation the Motion to Dismiss damages claims against Defendant Paramo is 3 denied as moot. 4 Defendants object to the conclusion of the Report and Recommendation that 5 Plaintiff Jones may pursue declaratory and injunctive relief against Defendant Paramo. 6 Defendants contend that Plaintiff Jones fails to allege facts showing a causal connection 7 between Defendant Paramo’s conduct and the injurious conduct of the other defendants. 8 Defendants contend that the proposed injunction is vague because the conduct to be 9 enjoined is not specified. Defendants contend that the proposed injunction is overly broad 10 because large classes of inmates and correctional staff who are not parties to this litigation 11 would be affected. Defendants assert that the proposed injunction would require 12 continuous federal court supervision of state officers’ conduct. 13 Plaintiffs contend that the Court should exercise its discretion not to consider 14 Defendants’ objections based on vagueness and overbreadth, which were not raised before 15 the Magistrate Judge. Plaintiffs contend that alleging facts that connect Defendant 16 Paramo’s individual conduct to the alleged injuries is not necessary for purposes of seeking 17 injunctive relief against Defendant Paramo in his official capacity. Plaintiffs contend that 18 the allegations adequately show that Defendant Paramo is in a position to respond to 19 injunctive relief related to the Green Wall. Plaintiffs contend that it is premature to dismiss 20 the injunctive relief claim for vagueness or for continuous federal court supervision of state 21 officials at this stage in the litigation. 22 After conducting a de novo review of the related portions of the Report and 23 Recommendation and considering the entire file, including Defendants’ objections, the 24 Court finds that the Report and Recommendation correctly concluded that the facts alleged 25 in the Complaint demonstrate an unconstitutional policy or custom supporting Plaintiff 26 Jones’s claim for equitable relief against Defendant Paramo. See Gomez v. Vernon, 255 27 F.3d 1118, 1127 (9th Cir. 2001) (“A policy or custom may be found . . . in the failure of an 28 official ‘to take any remedial steps after the violations.’ . . . Where the retaliatory acts are 1 traceable to a custom or policy . . . it is unnecessary to demonstrate that the decision-making 2 official directly ordered each act carried out under his edict.”) (quoting Larez v. City of 3 L.A., 946 F.2d 630, 647 (9th Cir. 1991)). The Court adopts the Report and 4 Recommendation with respect to the Motion to Dismiss damages claims against Defendant 5 Paramo. (ECF No. 40 at 3:13–4:15). For the reasons stated in the Report and 6 Recommendation the Motion to Dismiss Plaintiff Jones’s claim for equitable relief against 7 Defendant Paramo is denied. 8 VIII. CONSPIRACY CLAIMS 9 No party has filed an objection to the conclusion of the Report and Recommendation 10 that the § 1983 conspiracy claims by Plaintiffs Deans, Williams, and Jones should not be 11 dismissed. The Court has reviewed the related portions of the Report and Recommendation 12 and adopts the Report and Recommendation with respect to the §1983 conspiracy claims 13 by Plaintiffs Deans, Williams, and Jones. (ECF No. 40 at 8:23–10:7, 10:14–15). For the 14 reasons stated in the Report and Recommendation the §1983 conspiracy claims by 15 Plaintiffs Deans, Williams, and Jones proceed. 16 No party has filed an objection to the conclusion of the Report and Recommendation 17 that all conspiracy claims by Plaintiff Moody should be dismissed with prejudice, without 18 leave to amend. The Court has reviewed the related portions of the Report and 19 Recommendation and adopts the Report and Recommendation with respect to all 20 conspiracy claims by Plaintiff Moody. (ECF No. 40 at 8:23–10:8, 10:13–14). For the 21 reasons stated in the Report and Recommendation all conspiracy claims by Plaintiff Moody 22 are dismissed with prejudice, without leave to amend. 23 No party has filed an objection to the conclusion of the Report and Recommendation 24 that the § 1985(3) conspiracy claims by Plaintiffs Deans, Williams, and Jones should be 25 dismissed with leave to amend. The Court has reviewed the related portions of the Report 26 and Recommendation and adopts the Report and Recommendation with respect to the § 27 1985(3) conspiracy claims by Plaintiffs Deans, Williams, and Jones. (ECF No. 40 at 8:23– 28 1 10:13). For the reasons stated in the Report and Recommendation the § 1985(3) conspiracy 2 claims by Plaintiffs Deans, Williams, and Jones are dismissed with leave to amend. 3 In addition, Defendants move to dismiss the conspiracy claim in its entirety. The 4 Complaint and Motion to Dismiss do not reference a specific subsection of § 1985. 5 Plaintiffs oppose the Motion to Dismiss on the grounds that the Complaint states a 6 conspiracy claim, specifically referencing § 1985(3). Conspiracy to interfere with the 7 duties of federal officers is prohibited by § 1985(1). The Court finds the Complaint does 8 not allege facts sufficient to state a claim pursuant to § 1985(1). “Obstructing justice; 9 intimidating party, witness, or juror” is prohibited by § 1985(2). Sanchez v. City of Santa 10 Ana provides, “A claim brought under the first and second clauses of section 1985(2) 11 requires a direct or indirect purpose to deprive any persons of the equal protection of the 12 laws, or the equal privileges or immunities under the laws and a class race-based animus.” 13 936 F.2d 1027, 1039 (9th Cir. 1990). A plaintiff must allege facts showing “a conspiracy 14 to obstruct justice aimed at the class.” Id. The Court finds the Complaint does not allege 15 facts sufficient to state a claim pursuant to § 1985(2). See id. at 1039–40 (“A mere 16 allegation of conspiracy without factual specificity is insufficient to support a claim . . . . 17 [O]ne incident does not amount to substantial evidence of a conspiracy to obstruct . . . 18 justice directed at the class.”). The Court dismisses all § 1985 conspiracy claims by 19 Plaintiffs Deans, Williams, and Jones with leave to amend. 20 IX. ADA AND RA CLAIMS 21 Defendants object to the conclusion of the Report and Recommendation that 22 Plaintiffs state ADA and RA claims on the grounds that Plaintiffs allege facts showing that 23 Defendants’ actions were for the purpose of silencing Plaintiffs or getting revenge against 24 Plaintiffs and that no actions were taken because of Plaintiffs’ disability. Defendants 25 contend that the cases the Magistrate Judge relied on involve Fourth Amendment claims 26 based on arrests of private citizens, which do not apply in the prison context where the 27 Eighth Amendment governs excessive force inquiries. 28 1 Plaintiffs contend that the allegations that Defendants took actions for the purposes 2 of silencing or getting revenge are not mutually exclusive of allegations that Defendants 3 took actions because of disability. Plaintiffs contend that employing unreasonable force is 4 tantamount to a failure to reasonably accommodate, which qualifies as intentional 5 discrimination and satisfies the deliberate indifference standard necessary to claim 6 monetary damages. 7 The provisions of the ADA and the RA apply to state prisons. Pa. Dep’t of Corr. v. 8 Yeskey, 524 U.S. 206, 209 (1998); Armstrong v. Wilson, 124 F.3d 1019, 1023 (9th Cir. 9 1997). The Court of Appeals has stated, 10 In order to state a claim under Title II of the ADA, a plaintiff must allege: (1) he is an individual with a disability; (2) he is otherwise qualified to 11 participate in or receive the benefit of some public entity’s services, programs, 12 or activities; (3) he was either excluded from participation in or denied the benefits of the public entity’s services, programs, or activities, or was 13 otherwise discriminated against by the public entity; and (4) such exclusion, 14 denial of benefits, or discrimination was by reason of [his] disability. . . . Similarly, to state a claim under the Rehabilitation Act, a plaintiff must allege 15 (1) he is an individual with a disability; (2) he is otherwise qualified to receive 16 the benefit; (3) he was denied the benefits of the program solely by reason of his disability; and (4) the program receives federal financial assistance. 17

18 O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007). “A plaintiff can 19 allege disability discrimination in the provision of inmate services, programs, or activities 20 under the ADA or the RA by pleading either (i) discrimination based on disparate treatment 21 or impact, or (ii) denial of reasonable modifications or accommodations.” Atayde v. Napa 22 State Hosp., 255 F. Supp. 3d 978, 1000 (E.D. Cal. 2017) (first citing Fortyune v. Am. Multi– 23 Cinema, Inc., 364 F.3d 1075, 1086 (9th Cir. 2004), then citing Dunlap v. Ass’n of Bay Area 24 Gov’ts, 996 F. Supp. 962, 965 (N.D. Cal. 1998), and then citing McGary v. City of Portland, 25 386 F.3d 1259, 1266 (9th Cir. 2004)). 26 “[C]ourts have concluded . . . that ‘by reason of’ should be read to require only ‘but 27 for’ rather than proximate causation.” UMG Recordings, Inc. v. Shelter Capital Partners 28 LLC, 718 F.3d 1006, 1017 (9th Cir. 2013) (citing New Directions Treatment Servs. v. City 1 of Reading, 490 F.3d 293, 301 n. 4 (3d Cir. 2007) (“[T]he ADA prohibits discrimination 2 against an individual ‘by reason of such disability.’ . . . [T]his language . . . clearly 3 establishes that the . . . ADA . . . requires only but for causation.”)). But see Lee v. City of 4 L.A., 250 F.3d 668, 691 (9th Cir. 2001) (“If a public entity denies an otherwise qualified 5 individual meaningful access to its services, programs, or activities solely by reason of his 6 or her disability, that individual may have an ADA claim against the public entity.”) 7 (quotations omitted); Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir. 1996) (“[A] 8 plaintiff proceeding under Title II of the ADA must, similar to a Section 504 plaintiff, 9 prove that the exclusion from participation in the program was solely by reason of 10 disability.”) (quotation omitted). 11 In this case, Plaintiffs allege that Defendants engage in or permit “Mafia-like” 12 violent and unlawful conduct. (ECF No. 1 ¶ 20). Plaintiffs allege that the conduct is 13 “sometimes” “motivated, at least in part, by racial animus.” Id. ¶ 22. Plaintiffs allege that 14 on July 17, 2017, Counselor Fuerte “kicked Plaintiff MOODY’s feet and cursed at him for 15 partially blocking the entryway” “[i]n response” to where Plaintiff Moody was seated 16 when Counselor Fuerte “attempted to exit his office.” Id. ¶¶ 32–33. Plaintiffs allege that 17 correction officers used a block gun, pepper spray, batons, handcuffs, and physical force 18 against Plaintiff Moody after “a guard on the tower noticed Fuerte and Plaintiff MOODY 19 fighting,” after “rush[ing] into the Unit 14 area” “in response to” “the alarm inside of Unit 20 14.” Id. ¶¶ 37–45. Plaintiffs allege that Defendant Salazar “walked over to Plaintiff 21 WILLIAMS’s cell” and “wrote down Plaintiff WILLIAMS’s identifying information,” and 22 other officers entered Plaintiff Williams’s cell and threatened to take his personal property, 23 after Plaintiff Williams yelled “I’m going to report you all! . . . I saw everything! I’m a 24 witness!” Id. ¶¶ 51–58. Plaintiffs allege that “the officers planned and coordinated how 25 they would threaten and attack the prisoners, including Plaintiffs DEANS, WILLIAMS, 26 and JONES, in attempt to suppress and discourage the prisoners from reporting the beating 27 of Plaintiff MOODY.” Id. ¶ 62. Plaintiffs allege that officers jumped on top of, punched, 28 and kicked Plaintiff Deans “in retaliation for his being vocal during the incident and calling 1 out for the officers to ‘Stop!’ while they were beating the defenseless and handcuffed 2 Plaintiff MOODY.” Id. ¶ 67. Plaintiffs allege that officers engaged in physical violence 3 against Plaintiff Williams after Plaintiff Williams “responded that he wanted to report the 4 officers he observed beating prisoners and the threats to take his property.” Id. ¶¶ 73–85. 5 Plaintiffs allege that Plaintiffs Moody, Deans, and Williams “were transferred to different 6 and separate CDCR facilities” “with the intent to ‘break up’ the inmates and to thwart and 7 obstruct their efforts to submit and exhaust grievances related to the July 17, 2017, 8 incident.” Id. ¶ 93. 9 The Complaint alleges that Defendants “failed to reasonably accommodate 10 Plaintiffs[’] . . . disabilities and personally utilized, failed to intercede and prevent, and/or 11 were integral participants to excessive and unreasonable force against them, in violation of 12 their rights secured by the [ADA] . . . .” and that Defendants “were motivated by evil 13 motive or intent, involved reckless or callous indifference to Plaintiffs[’] . . . constitutional 14 and statutory rights, or were wantonly or oppressively done.” Id. ¶¶ 118–19. The 15 Complaint alleges that Defendants “failed to reasonably accommodate Plaintiffs[’] . . . 16 disabilities and personally utilized, failed to intercede and prevent, and/or were integral 17 participants to excessive and unreasonable force against them, in violation of their rights 18 secured by the [RA] . . . .” and that Defendants were “were motivated by evil motive or 19 intent, involved reckless or callous indifference to Plaintiffs[’] constitutional and statutory 20 rights, or were wantonly or oppressively done.” Id. ¶¶ 124–25. 21 The Court concludes that the facts alleged do not support a plausible inference that 22 the actions allegedly taken by Defendants were by reason of Plaintiffs’ disability.2 23

24 25 2 Defendants raise no objection to, and the Court does not reach, the Magistrate Judge’s conclusion that Plaintiffs have adequately alleged the element of discrimination or exclusion. See Atayde, 255 F. Supp. 26 3d at 1000 (“[T]o plead a failure to accommodate under the ADA or RA, a plaintiff must allege that a public entity knew of plaintiff’s disability but failed to provide reasonable accommodations. . . . A 27 correctional facility’s ‘deliberate refusal’ to accommodate plaintiff’s disability-related needs violates the ADA and the RA.”) (first citing Robertson v. Las Animas Cty. Sherriff’s Dep’t, 500 F.3d 1185, 1196 (9th 28 1 Compare Redon v. Jordan, No. 13CV1765 WQH (KSC), 2015 WL 9244288, at *8 (S.D. 2 Cal. Dec. 17, 2015) (concluding allegations failed to show conduct by reason of disability 3 where the alleged facts showed that “Plaintiff was transported to a mental health and 4 welfare facility . . . because officers determined that as a result of a mental health disorder, 5 Plaintiff is a danger to others, or to himself” and that “officers arrested Plaintiff after 6 responding to a 911 call reporting a domestic disturbance”), with Latson v. Clarke, 249 F. 7 Supp. 3d 838, 857 (W.D. Va. 2017) (“He has alleged that the defendants severely punished 8 him for what were essentially symptoms and manifestations of his disabilities.”). 9 The Court does not adopt the related portions of the Report and Recommendation. 10 (ECF No. 40 at 10:16–12:24). The ADA and RA claims against CDCR are dismissed with 11 leave to amend. 12 X. CONCLUSION 13 IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 40) is 14 adopted in part and not adopted in part as stated herein. 15 IT IS FURTHER ORDERED that Defendants’ objections (ECF No. 42) to the 16 Report and Recommendation are overruled in part and sustained in part as stated herein. 17 IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (ECF No. 18) is 18 GRANTED in part and denied in part as set forth herein. The claims against Defendant 19

20 21 Eurofresh, Inc., 731 F.3d 901, 911 (9th Cir. 2013) (“[I]n the prison context, we have held that a district court may consider “with deference to the expert views of facility administrators, a detention or 22 correctional facility’s legitimate interests (namely, in maintaining security and order and operating an institution in a manageable fashion) when determining whether a given accommodation is reasonable.”); 23 Pierce v. Cty. of Orange, 526 F.3d 1190, 1216–17 (9th Cir. 2008) (“[I]nmates’ rights must be analyzed in light of effective prison administration. . . . [T]o prevail on a claim that their statutory rights have been 24 violated, inmates must show that the challenged prison policy or regulation is unreasonable.”) (quotation 25 omitted). The Court does not reach issues regarding the propriety of applying, in the context of this case, law that governs excessive force and reasonable accommodation in the context of an arrest. See Vos v. 26 City of Newport Beach, 892 F.3d 1024, 1037 (9th Cir. 2018), cert. denied sub nom. City of Newport Beach v. Vos, 139 S. Ct. 2613 (2019); see also Moore v. City of Berkeley, No. 14-CV-00669-CRB, 2018 WL 27 1456628, at *15 (N.D. Cal. Mar. 23, 2018) (“[B]ringing an ADA claim allows plaintiffs to skirt the doctrine of qualified immunity, because ADA claims are asserted against the agency that employs the 28 1 Duran are dismissed with leave to amend. All conspiracy claims by Plaintiff Moody are 2 ||dismissed with prejudice, without leave to amend. All § 1985 conspiracy claims by 3 || Plaintiffs Deans, Williams, and Jones are dismissed with leave to amend. The retaliation 4 ||claims by Plaintiffs Moody, Deans, and Jones are dismissed with leave to amend. The 5 |{claims pursuant to Article I, § 17 of the California Constitution are dismissed with 6 || prejudice, without leave to amend. The claims for declaratory and injunctive relief by 7 || Plaintiffs Moody, Deans, and Williams are dismissed with prejudice, without leave to 8 ||amend. The ADA and RA claims against CDCR are dismissed with leave to amend. The 9 |/remaining claims proceed: Plaintiff Williams’ retaliation claim pursuant to §1983; the 10 || unreasonable force claims pursuant to § 1983 against Defendants McGee, Salazar, Ramos, 11 |}Adams, Guerrera, Edrozo, Cruz, Avila, Bravo; the Bane Act, assault and battery, 12 ||intentional infliction of emotional distress, and negligence claims against Defendants 13 ||McGee, Salazar, Ramos, Adams, Guerrera, Edrozo, Cruz, Avila, Bravo; the Bane Act, 14 ||intentional infliction of emotional distress, and negligence claims against Defendant 15 Rodriguez; the §1983 conspiracy claims by Plaintiffs Deans, Williams, and Jones; and 16 || Plaintiff Jones’s claim for declaratory and injunctive relief against Defendant Paramo. 17 || Dated: September 3, 2019 Nitta Z. A a 18 Hon, William Q. Hayes 19 United States District Court 20 21 22 23 24 25 26 27 28