2 24 it | 3 ATT 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 || CAREY L. JOHNSON, Case No.: 3:18-cv-2178-BEN-MSB 12 Plaintiff, ORDER GRANTING

DEFENDANTS’ MOTION FOR

13 V. PARTIAL SUMMARY 14 |} UNITED STATES OF AMERICA, et al. JUDGMENT [ECF No. 86] 15 Defendants. 16 17 This matter comes before the Court on Defendant the United States of America’s 18 || Motion for Partial Summary Judgment. ECF No. 86. The United States seeks summary 19 || judgment on Plaintiff Carey L. Johnson’s second and eighth claims for relief, which 20 |j allege violations of the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seg. (the 21 ||“Rehabilitation Act”), and the Bane Act, California Civil Code § 52.1, et seg. (the “Bane 22 || Act”). The motion is now fully briefed and the Court has considered all the arguments 23 || presented, even those not discussed in this Order. To the extent an argument is not 24 acknowledged in this Order, it is rejected. For the following reasons, the Motion is 25 || granted. 26 BACKGROUND 27 For purposes of this decision, the Court assumes the Parties are familiar with the 28 |) procedural history and many disputed facts in this case. The Court also notes the United

1 |! States only seeks summary judgment on two of Johnson’s claims and accordingly limits 2 II the background to the matters at issue here. 3 Plaintiff Carey Johnson is a disabled veteran of the United States Marine Corps 4 who suffers from bipolar disorder. Opp’n, ECF No. 85, Ex. 1, Att. A. He lives part-time > llin Mexico and frequently crosses the international border between Mexico and the United 6 States. /d. at Ex. 1, Att. B, pp. 33-34, 127. On some occasions, the long lines at the 7 || border crossing have triggered his anxiety and caused significant issues with United 8 || States Customs and Border Protection (“CBP”) Officers. Mot., ECF No. 80, 2-3. Those ? || occasions are the subject of Johnson’s suit. 10 At the international border, CBP Officers process travelers in automobiles through 11 |) at least three categories of lanes: general vehicle lanes, Ready Lanes, and Secure 12 |! Electronic Network for Travelers Rapid Inspection (“SENTRY”) Program Lanes. Id. The 13 general vehicle lanes are usually slowest and most prone to long waits. Jd. at 10. Ready 14 |! Lanes are often faster than the general vehicle lanes and require the traveler to obtain a 15 radio-frequency identification-enabled identity document that can speed CBP’s 16 processing and inspection. Jd. The SENTRI Program Lanes are generally fastest. Id. 17 | This is because the SENTRI Program Lanes are reserved only for persons who have 18 already (1) applied to the program, which is administered by CBP; (2) undergone a 19 background check that determined them to be low-risk of violating the law; and (3) paida 20 || fee for access to the lanes. Id. at 2. SENTRI not only provides a benefit to travelers by 21 reducing wait times at the border but also allows CBP to allocate its limited “attention 22 |! and resources on higher-risk travelers” while “pre-screening” others through the SENTRI 23 Program long before an individual reaches a port of entry. 85 Fed. Reg. 55597 (Sept. 9, 24 |!2020). 25 Johnson is not part of the SENTRI Program as he not only never applied for it but 26 |/also likely would not qualify based on his prior criminal convictions. Opp’n, ECF No. 27 ||85, 12. Nonetheless, on September 22, 2016, Johnson used the SENTRI Program Lane at 28 the Otay Mesa Point of Entry. Jd. at 4. Johnson explained to the CBP Officer that he was

a disabled veteran, presented his Department of Veterans’ Affairs identification, and 2 requested an accommodation due to his disability. Jd. He specifically requested that he 3 || be allowed to use the SENTRI Program Lanes to avoid long waits when he crossed the 4 border, at least at certain times when his bipolar disorder induced severe anxiety. Id. at > From here, the facts become hotly disputed: Johnson argues CBP Officers told him 6 he could continue to use the SENTRI Program Lanes, when needed, to accommodate his 7 disability. /d. at 5. The United States, on the other hand, argues CBP Officers informed 8 || him that no such accommodation could be made. Mot., ECF No. 80, 4. On at least four 9 subsequent occasions, Johnson attempted to use the SENTRI Program Lanes. Jd. at 2-3, 10 4. These interactions gave rise to Johnson’s Federal Tort Claims Act (“FTCA”) claims 11 |! for assault and battery; false arrest; negligence; conversion; and intentional infliction of 12 || emotional distress, none of which are the subject of this Motion for Summary Judgment. 13 || Second Amended Complaint (“SAC”), ECF No. 29, 17-21. 14 In the motion before the Court, the United States only challenges Johnson’s claims 15 || for relief brought under the Rehabilitation Act and Bane Act. Mot, ECF No. 80, 1. 16 |! Johnson’s Rehabilitation Act claim alleges he is a person with a disability, CBP is a 17 program receiving federal assistance within the meaning of the statute, and he is entitled 18 use the SENTRI Program Lanes (though not necessarily with all the “security perks” 19 || associated with the SENTRI Program) as a reasonable accommodation to his disability. 20 || Opp’n, ECF No. 85, 14. The Parties agree Johnson is not entitled to monetary damages 21 |! for this claim, but that he may be entitled to injunctive and declaratory relief. See Lane y. 22 || Pena, 518 U.S. 187 (1996); Mot., ECF No. 80, 12-14; Opp’n, ECF No. 85, 9-11.! 23 Johnson’s Bane Act claim alleges the United States “interfered with [his] right to 24 23 || 26 The Parties dispute whether Johnson may be entitled to attorney’s fees for both his 27 || Rehabilitation Act and Bane Act claims. See Mot., ECF No. 80, 18-19; Opp’n, ECF No. 2g 85, 11, 18. The Court declines to decide these arguments now, but the Parties may raise these points again following trial.

1 be free from excessive force,” which violates the Bane Act. SAC, ECF No. 29, 21-22.

LEGAL STANDARD

3 Summary judgment is appropriate where “the movant shows that there is no 4 || genuine dispute as to any material fact and the movant is entitled to judgment as a matter 5 law.” Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 6 ||(1986). A fact is material if it could affect the outcome of the case under governing law. 7 || Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is 8 || genuine if the evidence, viewed in light most favorable to the non-moving party, “is such 9 a reasonable jury could return a verdict for the non-moving party.” Id. 10 If, “after adequate time for discovery,” a moving party shows that the party which 11 || will bear the burden of proof at trial cannot “make a showing sufficient to establish the 12 || existence of an element essential to that party’s case,” then, “the plain language of Rule 13 ||56(c) mandates the entry of summary judgment.” Celotex, 477 U.S. at 322; see also In re 14 || Oracle Corp. Sec, Litig., 627 F.3d 376, 387 (9th Cir. 2010). Thus, the party moving for 15 ||summary judgment bears the initial burden of identifying those portions of the pleadings, 16 discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. 17 || Celotex, 477 U.S. at 323. 18 Ifa moving party carries its burden of proving an absence of evidence as to an 19 || essential element of the opposing party’s case, “the burden then shifts to the non-moving 20 || party to designate specific facts demonstrating the existence of genuine issues for 21 trial.” Oracle, 627 F.3d at 387; see also Fed. Trade Comm’n v. Stefanchik, 559 F.3d 924, 22 }|927-28 (9th Cir. 2009). In ruling on a motion for summary judgment, the substantive law 23 || governing a claim determines whether a fact is material. Suever v. Connell, 579 F.3d 24 || 1047, 1056 (9th Cir. 2009). The court also draws inferences from the facts in the light 25 ||most favorable to the nonmoving party. Earl v. Nielsen Media Research, Inc., 658 F.3d 26 |) 1108, 1112 (9th Cir. 2011); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 27 |1475 U.S. 574, 587 (1986). 28

1 ANALYSIS 2 A. Rehabilitation Act Claim 3 Johnson alleges the United States, through CBP, discriminated against him “by 4 |) denying him a reasonable accommodation for his disability and failing to provide him 5 services and support in a more integrated setting” as he crossed the border from Mexico 6 the United States. SAC, ECF No. 29, 18. Johnson specifically argues he is entitled 7 ||to use the SENTRI Program Lanes at ports of entry as a reasonable accommodation for 8 disability. Opp’n, ECF No. 85, 11-15. The United States argues Johnson cannot 9 ||maintain a Rehabilitation Act claim because (1) he is not otherwise qualified to use the 10 ||SENTRI Program Lane and (2) his requested modification “is neither necessary nor 11 |/reasonable” because it would fundamentally alter the SENTRI Program. Mot., ECF No. 12 ||80, 12-16. 13 To establish a program or service violates Section 504 of the Rehabilitation Act, “a 14 || plaintiff must show: (1) he is an ‘individual with a disability’; (2) he is ‘otherwise I5 || qualified’ to receive the benefit; (3) he was denied the benefits of the program solely by 16 || reason of his disability; and (4) the program receives federal financial assistance.” 17 || Weinreich v. Los Angeles Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997) 18 ||(quoting 29 U.S.C. § 794); see also Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 19 2002) (reciting the same factors). 20 The Parties do not dispute that Johnson is disabled or that CBP is a program that 21 |/receives federal assistance within the meaning of 29 U.S.C. § 794; however, they 22 || disagree about the application of the second and third factors listed above. The United 23 States asserts Johnson demands access to the SENTRI Program and its benefits, while 24 ||Johnson argues he merely should be allowed to use the SENTRI Program Lanes as a 25 ||reasonable accommodation to his disability without “any other security perks of SENTRI 26 |}membership.” Compare Mot., ECF No. 80, 15 with Opp’n, ECF No. 85, 13-14. Both 27 || Johnson’s claim and briefing make clear that the United States misinterprets his request. 28 || See SAC, ECF No. 29, 18-19; Opp’n, ECF No. 85, 12-13. Johnson argues that he is

1 || otherwise qualified to receive the benefit of “crossing the border,” and that he is 2 || substantially denied that benefit because CBP refuses to reasonably accommodate his 3 || disability. Opp’n, ECF No. 85, 12. 4 “A failure to provide a reasonable accommodation can constitute discrimination 5 under section 504 of the Rehabilitation Act.” Vinson v. Thomas, 388 F.3d 1145, 1154 6 Cir. 2002). “The question of whether a particular accommodation is reasonable 7 || ‘depends on the individual circumstances of each case’ and ‘requires a fact-specific, 8 || individualized analysis of the disabled individual's circumstances and the 9 || accommodations that might allow him to meet the program's standards.”” Id. (quoting 10 || Wong v, Regents of the Univ. of Cal., 192 F.3d 807, 818 (9th Cir. 1999)). Johnson, as 11 || Plaintiff, bears the “initial burden of producing evidence that a reasonable 12 || accommodation was possible.” Jd. (quoting Wong, 192 F.3d at 816-17). Once produced, 13 |) the burden shifts to the United States “to produce rebuttal evidence that the requested 14 || accommodation was not reasonable.” Id. An accommodation is not reasonable where it 15 || would “alter the fundamental nature” of the program or policy. Fortyune v. American 16 || Multi-Cinema, Inc., 364 F.3d 1075, 1082 (9th Cir. 2004). 17 Johnson argues CBP can reasonably accommodate him in the SENTRI Program 18 || Lanes because it has done so before, and “there is nothing physically unique about the 19 |) SENTRI lane,” such that Johnson—due to his disability—‘would simply have to show 20 documentation that he, too, [as a disabled person unable to wait in the general traffic 21 lanes] is entitled to use the lane.” Opp’n, ECF No. 85, 12-13. In response, the United 22 || States argues that allowing Johnson to use the SENTRI Program Lane as a reasonable 23

95 |? Fortyune involved an ADA claim. However, Title II of the ADA was modeled 26 after Section 504 of the Rehabilitation Act, so “[t]here is no significant difference [between the two] in analysis of the rights and obligations created.” Zukle v. Regents of 27 || Univ. of Cal., 166 F.3d 1041, 1045 n. 11 (9th Cir. 1999). Accordingly, case law 58 interpreting each statute is applicable to both. Duvail v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). -

1 || accommodation would fundamentally alter the SENTRI Program by swamping the 2 || SENTRI Program Lanes with similarly situated disabled travelers and diverting 3 || additional CBP resources to inspection at SENTRI Program Lanes. Reply, ECF No. 88, 4 Thus, even if Johnson is not asking for SENTRI enrollment or any of the “other 5 || security perks of SENTRI membership,” the program is still fundamentally altered. 6 || Opp’n, ECF No. 85, 12. 7 Though outside the context of a border crossing, courts within this circuit have 8 || previously addressed similar claims that front-of-the-line access for disabled persons, 9 || when aggregated, can fundamentally alter a policy, program, or business. For example, 10 Galvan v. Walt Disney Parks and Resorts, U.S., Inc., the court granted summary ||judgment to Disney on the plaintiff's claim for disability discrimination. 425 F. Supp. 3d 12 || 1234, 1241-42 (C.D. Cal. 2019). The plaintiff, who suffered from anxiety disorder, 13 || alleged long lines for theme park rides triggered his condition. Id. He sued Disney for 14 refusing to grant him a disability access card that would allow him to circumvent ride 15 || lines at the park. /d. In ruling for Disney, the court found the requested accommodation 16 || would fundamentally alter the theme park experience because granting the 17 || accommodation to one could require Disney to grant the accommodation to all others 18 || similarly situated, vastly delaying the general ride queues. Jd. 19 Here, the United States has made a similar showing: the SENTRI Program allows 20 || CBP to focus its efforts on higher-risk travelers. Allowing disabled individuals to use the 21 || SENTRI Program Lanes who have not been subject to a background check and other 22 ||requirements of SENTRI enrollment fundamentally alters the program. Johnson’s 23 || argument that “[tJhere is nothing physically unique about the SENTRI lane” misses the 24 || point that the SENTRI lane is just one part of a broader program designed to focus CBP’s 25 limited “attention and resources on higher-risk travelers.” 85 Fed. Reg. 55597 (Sept. 9, 26 2020). He also fails “to designate specific facts demonstrating the existence of genuine 27 |\issues for trial,” Oracle, 627 F.3d at 387, instead only speculating Johnson’s use of the 28 || SENTRI Program Lanes would not impact CBP’s operations. Opp’n, ECF No. 85, 13.

1 Moreover, there is nothing about Johnson’s disability that prevents him from 2 |\enrolling in the SENTRI Program, which would enable him to use the SENTRI Program 3 |/Lane. Indeed, the Parties seem to agree that Johnson would likely be unable to pass the 4 ||SENTRI Program’s background check due to his prior criminal conviction, not because 5 his disability. See Mot., ECF No. 80, 14-15; Opp’n, ECF No. 85, 12. Thus, even 6 || Johnson’s argument that “he was denied the benefits of the program solely by reason of 7 |\his disability” is doubtful at best. Weinreich, 114 F.3d at 978. 8 For these reasons, Johnson cannot “make a showing sufficient to establish the 9 || existence of an element essential to [his] case”—namely that his requested relief would 10 fundamentally alter the existing SENTRI Program, and that he was denied a benefit 11 || because of his disability. Celotex, 477 U.S. at 322. Accordingly, the Court grants the 12 || United States summary judgment on Johnson’s Rehabilitation Act claim. 13 B. Bane Act Claim - 14 The United States next challenges Johnson’s Bane Act claim for relief “to the 15 |/extent [it] is premised on violations of the United States and California Constitutions.” 16 || Mot., ECF No. 80, 20. 17 The Bane Act “provides that if a person interferes, or attempts to interfere, by 18 ||threats, intimidation, or coercion with the exercise or enjoyment of the constitutional or 19 || statutory rights of any individual, the individual may sue for damages independent of any 20 || other action that is available.” Reynoso v. Prater, Case No. 13-cv-0718-AJB-RBB, 2013 21 || WL 5937223, at *4 (S.D, Cal. Nov. 4, 2013) (citing Xue Lu v. Powell, 621 F.3d 944, 950 22 Cir. 2010)). Johnson’s Bane Act claim is levied against the United States using the 23 || FTCA and alleges federal employees (here, CBP Officers) “interfered with [Johnson’s] 24 to be free from excessive force.” SAC, ECF No. 29, 21-22. At first glance, this 25 || appears to state a proper Bane Act claim. 26 However, “[a]bsent a waiver, sovereign immunity shields the Federal Government 27 its agencies from suit.” Reynoso, 2013 WL 5937223, at *4 (citing F.D.LC. v. Meyer, 28 U.S. 471, 475 (1994)). While the FTCA waived sovereign immunity claims for

1 certain torts committed by federal employees, constitutional tort claims are not 2 ||cognizable under the FTCA. Meyer, 510 U.S. at 475. The United States argues 3 || Johnson’s Bane Act claim is based on a constitutional violation—the use of excessive 4 force. Mot., ECF No. 80, 20. Accordingly, the United States reasons, the claim is barred 5 the Supreme Court’s decision in Meyer that the FTCA did not waive sovereign 6 |/immunity for constitutional claims. Jd. 7 In response, Johnson argues his claims are based on Article I, Section 7 of the 8 || California Constitution (the right to due process and equal protection of the law), and 9 || California Civil Code Section 54(a). But that is not what he pleaded in his SAC. Instead, 10 || Johnson’s only Bane Act claim is for excessive force, premised upon violation of the [1 || federal constitution. The Supreme Court’s decision in Meyer forecloses this theory, and 12 || accordingly the United States is granted summary judgment on this claim. 510 U.S. at 13 ||475; see also Reynoso, 2013 WL 5937223, at *3-4 (dismissing Bane Act claims premised 14 || on federal and state constitutional violations, but not a separate Bane Act claim based on 15 ||a state statutory violation). 16 C. Motion for Leave to File DVD and Motions to Seal (ECF Nos. 81, 82, 86) 17 Concurrent with the Parties’ briefing on the United States’ Motion for Partial 18 ||Summary Judgment, the United States submitted a Motion to Lodge/File a Physical DVD 19 || of Videos in Support of its Motion for Summary Judgment. ECF No. 81. The DVD 20 || contains videos of some of Johnson’s interactions with CBP Officers at ports of entry that 21 could not be converted to electronic form. Johnson did not file an opposition to the 22 || United States’ Motion. Good cause appearing, the Motion is granted. 23 Both Parties also submitted Motions to File Documents Under Seal. ECF Nos. 82, 24 ||86. Except for certain documents “traditionally kept secret,” federal courts begin a 25 sealing analysis with “a strong presumption in favor of access to court records.” Foltz v. 26 || State Farm Mut. Auto. Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003). A party seeking to 27 a judicial record then must “articulate [] compelling reasons supported by specific 28 || factual findings,” id., that outweigh the general history of access and the public policies

1 || favoring disclosure, such as the “public interest in understanding the judicial process,” 2 || Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). The Court “conscientiously 3 ||balance[s]. .. the competing interests” of the public and the party who seeks to keep 4 ||certain judicial records secret. Foltz, 331 F.3d at 1135. After considering these interests, 5 ||if the Court decides to seal certain judicial records, it “base[s] its decision on a 6 compelling reason and articulate[s] the factual basis for its ruling, without relying on 7 hypothesis or conjecture.” Hagestad, 49 F.3d at 1434 (citing Valley Broadcasting Co. v. 8 || U.S. Dist. Ct., 798 F.2d 1289, 1295 (9th Cir.1986)). Both Parties express a need to disclose Johnson’s medical records to the Court as 10 || evidence supporting their briefing on the United States’ Motion for Partial Summary 11 |) Judgment. They bring this Motion to file those records under seal out of concern for 12 || Johnson’s privacy. The Court is mindful that protection of medical privacy has often 13 found to be a “compelling reason” for sealing records, See Domingo v. Brennan, 14 Fed. App’x 928, 930-31 (9th Cir. 2017) and Heldt v. Guardian Life Ins. Co. of Am., 15 ||Case No. 16-cv-885-BAS-NLS, 2018 WL 5920029, at *2 (Nov. 13, 2018) (citing others), 16 |}On balance, the potential harm to Johnson’s privacy outweighs the public interest here. 17 || Accordingly, the Court exercises its discretion to grant the motions. See Nixon v. 18 || Warner Communications, Inc., 435 U.S. 589, 599 (1978). The Clerk is directed to file 19 ||the unredacted version of the documents lodged at ECF Numbers 83 and 87 under seal. 20 CONCLUSION 21 For the foregoing reasons, Defendant’s Motion for Partial Summary Judgment is 22 ||GRANTED. ECF No. 80. Defendant’s Motion for Leave to File a DVD is GRANTED. 23 No. 81. The Parties’ Motions to File Documents Under Seal are GRANTED, ECF 24 82, 86. 25 ITISSO OSPERED. 26 || Dated: January Ls 2021

HON. R T. BENITEZ

United States District Judge 28 10