Adom v. California Department of Corrections and Rehabilitation

Opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

BILAL ADOM, No. 24-4756 D.C. No.

Plaintiff - Appellant,

4:22-cv-07150-

JSW

v.

CALIFORNIA DEPARTMENT OF OPINION CORRECTIONS AND REHABILITATION; M. ATCHLEY, Warden; MONTEGRANDE, Doctor; SCOTT LADD, Doctor; LOTERSZTAIN, Doctor; S. SAWYER; R. MOJICA, ADA Coordinator; BIANCA RUBIO, Certified Nursing Assistant (CNA),

Defendants - Appellees.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted October 23, 2025 San Francisco, California

Filed September 8, 2026

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Before: Richard A. Paez, Carlos T. Bea, and Danielle J.

Forrest, Circuit Judges.

Opinion by Judge Paez; Dissent by Judge Bea

SUMMARY*

Americans with Disabilities Act

The panel reversed the district court’s summary judgment for the California Department of Corrections and Rehabilitation (“CDCR”), and remanded, in Bilal Adom’s action alleging, in part, that CDCR violated Title II of the Americans with Disabilities Act (“ADA”) by failing to reasonably accommodate his disabilities.

Adom, an incarcerated individual at Salinas Valley State Prison, suffers from spinal pain and incontinence. For nearly a year after Adom’s incontinence symptoms emerged, prison staff provided him with incontinence supplies through CDCR’s Durable Medical Equipment and Medical Supply program. After Adom was transferred to a different housing unit, prison staff terminated his access to these supplies. Adom requested restored access, but his requests were denied for nearly five months.

The panel held that a reasonable jury could find that Adom satisfied the three primary elements of his Title II

*

This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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claim and may therefore be entitled to declaratory relief where: (1) a reasonable jury could conclude that Adom is disabled within the meaning of the ADA by virtue of his spinal condition, incontinence, or both; (2) a jury could conclude that Adom was denied meaningful access to CDCR’s toileting and hygiene services because he needed the accommodation of adult diapers to relieve himself hygienically and with dignity; and (3) a jury could find that such denial was by reason of Adom’s disabilities, because it is his disabilities that make it harder for him to enjoy the benefits of CDCR’s toileting and hygiene services.

The panel also held that Adom put forth sufficient evidence to create a triable issue regarding whether CDCR acted with deliberate indifference when it denied him the benefits of its services, which he must show to obtain damages. Rejecting CDCR’s contention that a jury could not find deliberate indifference because institutional actors determined that incontinence supplies were not medically necessary, the panel held that a public entity is not excused from its obligation to provide a reasonable accommodation solely because it determined the accommodation is not medically necessary or indicated.

The panel remanded for the district court to consider in the first instance whether Adom has standing to seek an injunction ordering CDCR to grant him a permanent accommodation order.

The panel addressed Adom’s additional claims in a concurrently filed memorandum disposition.

Dissenting, Judge Bea wrote that Adom’s Title II claim fails as a matter of law because: (1) Adom was not qualified to receive the services in question where he did not demonstrate the medical necessity of the supplies; and 4 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

(2) even if Adom was a “qualified individual,” he was denied access to the Durable Medical Equipment services because he lacked proof of medical necessity for the original incontinence supplies, not “by reason of his disability,” as Title II requires. Judge Bea further wrote that the record presents no triable issue of fact as to whether CDCR or any member of the prison’s medical staff acted with deliberate indifference in suspending Adom’s incontinence supplies.

COUNSEL

Samuel Weiss (argued), Amaris Montes, and Lillian Novak, Rights Behind Bars, Washington, D.C., for Plaintiff- Appellant. Adam M. Stoddard (argued) and James J. Zenere, Zenere Cowden & Stoddard APC, Santa Clara, California; Jaime Ganson (argued), Deputy Attorney General; Neah Huynh, Supervising Deputy Attorney General; Monica N. Anderson, Senior Assistant Attorney General; Rob Bonta, California Attorney General; Office of the California Attorney General, Sacramento, California; Eric J. Miersma, Deputy Attorney General, Office of the California Attorney General, San Diego, California; for Defendants-Appellees.

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OPINION

PAEZ, Circuit Judge:

Bilal Adom is incarcerated at Salinas Valley State Prison. He uses a wheelchair and suffers from spinal pain that is exacerbated when he moves. He also experiences incontinence and so relies on adult diapers.

For nearly a year after Adom’s incontinence symptoms emerged, prison staff provided him with a weekly supply of adult diapers and other incontinence supplies. After Adom transferred to a new section of the prison, however, prison staff abruptly terminated his access to these supplies. Adom urgently requested restored access, but the prison denied his requests for nearly five months. Without these supplies Adom would soil himself and his surrounding environment, including his bed and wheelchair. Adom informed prison officials, in writing, that he was humiliated, dehumanized, and deeply distressed.

In a pro se verified complaint, Adom alleged that the California Department of Corrections and Rehabilitation (“CDCR”) violated the Americans with Disabilities Act (“ADA”) by failing to reasonably accommodate his disabilities. Adom also included claims under 42 U.S.C. § 1983 against several individual defendants, alleging violations of the Eighth Amendment. The district court granted summary judgment to all defendants on both claims. Adom, with the assistance of pro bono counsel, appeals.

We reverse in part and affirm in part. In this opinion, we reverse the district court’s grant of summary judgment as to Adom’s ADA claim. A reasonable jury could conclude that Adom is disabled within the meaning of the ADA by virtue of his spinal condition, incontinence, or both. A jury could 6 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

also conclude that Adom was denied meaningful access to CDCR’s toileting and hygiene services because he needs diapers to relieve himself hygienically and with dignity. Further, a jury could find that such denial was by reason of Adom’s disabilities, because it is his disabilities that make it harder for him to access these services. And a reasonable jury could conclude that CDCR repeatedly acted with deliberate indifference, as that concept is understood under the ADA. Finally, we hold that a public entity is not excused from its obligation to provide a reasonable accommodation solely because it determined the accommodation is not medically necessary or indicated.

In a concurrently filed memorandum disposition, we reverse in part and affirm in part the grant of summary judgment as to Adom’s Eighth Amendment claims. And we remand for further proceedings consistent with these dispositions.

I. Background

A. Facts1

Bilal Adom is a fifty-seven-year-old man who is incarcerated at Salinas Valley State Prison (“SVSP”). SVSP is a state prison operated by CDCR. For the purposes of our analysis, we attribute all actions of SVSP staff to CDCR. See Duvall v. County of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001).

1 The parties dispute many of the material facts. Because Adom appeals from a summary judgment order, and Adom was the nonmovant, we recount the facts as alleged in his verified complaint and sworn affidavit, and draw all reasonable inferences in his favor. Thomas v. Ponder, 611 F.3d 1144, 1149 (9th Cir. 2010).

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Adom has a spinal condition that causes him chronic, severe pain and significantly limits his mobility. He underwent spinal surgery in 2008 and has an active recommendation for a second surgery. He is also a stroke survivor. Adom uses a wheelchair to get around and wears a prison-issued vest that signals he is mobility impaired.

Since 2020, Adom has suffered incontinence. He is unable to control his urinary evacuations, particularly at night, and sometimes also involuntarily evacuates stool. In or around December 2020, Adom filed a medical request form complaining of incontinence. Shortly thereafter, CDCR began issuing Adom a weekly supply of fourteen adult diapers. In May 2021, CDCR entered a permanent order for Adom to receive these weekly supplies through its Durable Medical Equipment and Medical Supply program. The regulations governing the program require CDCR to “provide medically necessary accommodations to patients to ensure equal access to prison services, programs, and activities.” Cal. Code Regs. tit. 15, § 3999.394(a) (2026).

Adom lived in SVSP’s Alpha Yard until August 2021, where he received incontinence supplies without incident. On August 16, 2021, CDCR transferred Adom to Delta Yard. Adom received his last set of incontinence supplies on September 1, 2021. By mid-September, CDCR officially terminated the order for incontinence supplies.2 Adom was

2 The record is unclear as to when Adom’s supply order was officially terminated, but prison records suggest that CDCR terminated the order upon Adom’s transfer to Delta Yard in August. Another record suggests that Adom’s supplies order expired on September 15, 2021. It appears that CDCR did not notify Adom of the termination until around September 17.

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not seen by a medical professional or asked about his incontinence before CDCR terminated the order.

From September 1, 2021, to January 20, 2022, Adom lived without access to adult diapers. He explained in a grievance that he “cannot function without these supplies” and that the deprivation of supplies “caused [him] to have terrible hygiene.” “[W]ithout them,” he explained, “I have no alternative but to soil myself.”

The lack of incontinence supplies also aggravated Adom’s spinal condition. Adom most often experienced incontinence in the middle of the night, when the cleanup required him to move around and bend without assistance. These incidents caused him severe spinal pain, which in turn caused him to live in anxious anticipation of incontinence episodes. Adom also lived in fear of developing skin rashes and infections. Adom’s mental health “deteriorated to the point of mental anguish and deep depression.”

During those nearly five months, Adom repeatedly told custodial and medical personnel at SVSP, through both informal and formal channels, that he was not receiving the incontinence supplies he needed.

On September 10, 2021, on the way to a medical appointment, Adom notified Nurse Bianca Rubio that he had run out of his adult diapers and needed a new supply immediately—he wanted to put one on before he saw the doctor. Rubio told Adom that she was not assigned to distribute incontinence supplies. Adom was then seen by Dr. Faye Montegrande to follow up on an appointment with an outside ophthalmologist. Dr. Montegrande conducted an unannounced, forceful physical examination of Adom, ostensibly to test his reflexes, that caused Adom significant pain. After the pain subsided, Adom realized that he had

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involuntarily urinated in his wheelchair. He notified Dr. Montegrande, told her about his incontinence, and asked about getting his supplies reinstated. Dr. Montegrande ignored his request and continued with her examination. Following this appointment, Dr. Montegrande did not take any action to restore Adom’s incontinence supplies.

Adom subsequently made multiple written requests for incontinence supplies. On September 13, he filed a healthcare services request notifying CDCR that he had run out of diapers and that his supplies were not refilled on the normal schedule. On September 17, he filed another request, notifying CDCR that he was unable to control his evacuations, that he was using makeshift diapers made of torn towels, trash bags, tissues, and plastic, and that he was “humiliated and dehumanized.” On September 18, Adom submitted a Reasonable Accommodation Request, notifying CDCR that he suffered from both urinary and fecal incontinence, that his incontinence supplies were not issued the prior week, that he was soiling his linens, and that he was unable to get new linens or diapers. He requested diapers, or towels and trash bags for makeshift diapers. On September 19, Adom filed a healthcare grievance explaining that he was “in dire need” of incontinence supplies. Between September 14 and 16, Adom also informally asked “several building officers” to retrieve, or allow him to retrieve, his incontinence supplies.

Adom received no accommodation at all until October 14, 2021. On that date, SVSP’s Reasonable Accommodation Panel formally denied Adom’s request for diapers. Instead, the Panel notified Adom that following future incontinence episodes, prison staff would “provide [him] a shower as soon as safety and security permits,” and ensure that his soiled clothing was properly washed. By way 10 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

of explanation, the Panel noted only that “there was no indication found for incontinence supplies.”

On November 12, 2021, Adom sent a letter to Warden M. Atchley and Chief Medical Officer S. Sawyer requesting intervention. On November 19, an unnamed sergeant acting as proxy for the warden interviewed Adom regarding his letter. Adom again requested diapers or makeshift diapers. The sergeant denied Adom’s request and instead gave him three towels and three pairs of boxers. Adom received no additional towels or boxers before or after this encounter.

On December 7, 2021, Adom had a medical appointment with Dr. Scott Ladd. Adom informed Dr. Ladd that he was not receiving the incontinence supplies he needed. Dr. Ladd replied that “prisoners were malingering their incontinence conditions . . . thereby abusing the prison system, and that the abuse was costly.” Adom asked Dr. Ladd to look further into his medical records to locate his prior incontinence supplies order and date of termination, but Dr. Ladd refused, saying “I think we’re done here.” Nonetheless, Dr. Ladd prescribed Adom oxybutynin, a bladder control medication. Adom was instructed to stop taking the medication one week later due to painful side effects, and Dr. Ladd did not afterwards reinstate Adom’s access to diapers or take any further action to address Adom’s incontinence.

On December 29, 2021, Adom was seen by Dr. M.

Lotersztain. She performed a prostate examination and diagnosed Adom with an enlarged prostate. She told Adom that she would reinstate his incontinence supplies, but he did not receive any supplies for three additional weeks. During that period, Adom filed two formal healthcare services requests again asking CDCR to reinstate his incontinence

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supplies, one on January 12, 2022, and another on January 14.

Nearly five months after CDCR terminated Adom’s permanent order for incontinence supplies, it reinstated Adom’s weekly regiment of incontinence supplies on January 20, 2022. CDCR logged the new order as temporary.

B. Procedural History

In November 2022, Adom filed a verified, pro se, handwritten complaint in the district court against CDCR and various individuals, alleging violations of the ADA and the Eighth Amendment. The district court screened the complaint under 28 U.S.C. § 1915(A) and dismissed certain claims but allowed several claims to proceed: the ADA claim against CDCR, and the Eighth Amendment claims against Defendants Warden Atchley, Chief Medical Officer Sawyer, ADA Coordinator Mojica, Dr. Montegrande, Dr. Ladd, and Dr. Lotersztain (collectively “Defendants”).3 Defendants moved for summary judgment. Adom filed a handwritten response opposing the motion. In June 2024, the district court granted summary judgment for Defendants on all claims. The district court concluded that Adom did not address or oppose CDCR’s motion for summary judgment on the ADA claim, despite the fact that Adom submitted multiple pages of ADA-specific opposition briefing. Nonetheless, the district court apparently conducted an independent review of the record. The district court determined that Adom’s request for injunctive relief was moot because CDCR, in January 2022, reinstated his

3 The screening order dismissed Adom’s Eighth Amendment claims against CDCR and Defendant Nurse Rubio.

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incontinence supplies. The district court further held that Adom was not entitled to monetary damages under the ADA because he failed to establish that CDCR discriminated against him because of his incontinence. Instead, because CDCR provided testing and some alternative accommodations, the district court concluded that Adom’s evidence most reasonably indicated a disagreement about medical treatment, rather than disability discrimination. Adom timely appealed.

II. Jurisdiction and Standard of Review We have jurisdiction under 28 U.S.C § 1291. We review de novo the district court’s grant of summary judgment. Updike v. Multnomah County, 870 F.3d 939, 947 (9th Cir. 2017). Summary judgment is proper only if there is “no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In reviewing whether summary judgment was proper, we resolve all evidentiary conflicts, and draw all reasonable inferences, in favor of the nonmoving party. Updike, 870 F.3d at 947. A verified complaint may function as an opposing affidavit under Rule 56. Schroeder v. McDonald, 55 F.3d 454, 460 (9th Cir. 1995).

“We construe liberally the filings and motions of a pro se inmate in a civil suit.” Thomas, 611 F.3d at 1150; United States v. Qazi, 975 F.3d 989, 992–93 (9th Cir. 2020) (noting the duty of liberal construction applies with “special force” to the filings of pro se inmates). And in reviewing whether Adom carried his burden in opposition to summary judgment, we do not strictly apply the summary judgment rules, given that Adom was proceeding as a pro se inmate when he filed his complaint and opposition papers. Thomas, 611 F.3d at 1150.

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III. Discussion

A. ADA

Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. State prison operators, like CDCR, “fall squarely within the statutory definition of ‘public entity.’” Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (quoting 42 U.S.C. § 12131(1)(B)).

To prove that a public entity violated Title II, a plaintiff must show that “(1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability.” Duvall, 260 F.3d at 1135 (internal quotation marks omitted). To recover monetary damages for a violation of Title II, the plaintiff must also show that the public entity defendant acted with deliberate indifference. Id. at 1138.

The district court did not address whether Adom was a qualified individual with a disability but concluded that he could not satisfy the remaining elements of his ADA claim. We address each element in turn.4

4 In interpreting the scope of Title II, we also consider precedent interpreting Section 504 of the Rehabilitation Act, as the two laws are “interpreted coextensively.” Payan v. L.A. Cmty. Coll. Dist., 11 F.4th 729, 737 (9th Cir. 2021).

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1. Qualified Individual with a Disability A trier of fact could conclude that Adom is a “qualified individual with a disability.” 42 U.S.C. § 12132. A “qualified individual” within the meaning of Title II is one who “with or without reasonable modifications . . . meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.” Id. § 12131(2). As we will explain, the “services” that Adom seeks are available to all those, like Adom, who are incarcerated in CDCR facilities. See infra Section III.A.2. Adom is thus qualified to receive all relevant services. See Yeskey, 524 U.S. at 210–11.

A jury could also conclude that Adom is disabled within the meaning of the ADA. The ADA generally defines “disability” in two parts: first, the disability must be “a physical or mental impairment”; second, the impairment must be one that “substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A).5 This definition must be “construed in favor of broad coverage.” Id. § 12102(4)(A). “[T]he question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.” ADA Amendments Act of 2008, Pub. L. No. 110–325, § 2(b)(5), 122 Stat. 3553, 3554 (2008) [“ADAAA”]. Instead, “the primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.” Id.

5 Alternatively, a plaintiff can establish “disability” with “a record of such an impairment” or by being “regarded as having such an impairment.” 42 U.S.C. §§ 12102(1)(B)–(C).

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Adom’s spinal condition and incontinence are physical impairments. An impairment is “[a]ny physiological disorder or condition . . .affecting one or more body systems,” including the “musculoskeletal,” “digestive,” and “genitourinary” systems. 28 C.F.R. § 35.108(b)(1)(i). 6 Adom’s back pain is a “condition” that affect[s]” his “musculoskeletal” system because the pain makes it harder to move. Id. His incontinence is a “condition” that “affect[s]” his “genitourinary” and “digestive” systems because it results in a loss of control over when and how he urinates and defecates. Id.

A jury could conclude that each of these impairments substantially limits Adom’s major life activities. Major life activities include “caring for oneself, . . . sleeping, walking, standing, lifting, [and] bending,” as well as “the operation of a major bodily function, including but not limited to . . . bowel [and] bladder . . . functions.” 42 U.S.C. §§ 12102(2)(A)–(B). “‘Substantially limits’ is not meant to be a demanding standard.” 28 C.F.R. § 35.108(d)(1)(i); ADAAA § 2(b)(4). The impairment need not prevent, severely restrict, or even significantly restrict the execution of a major life activity. 28 C.F.R. § 35.108(d)(1)(v); ADAAA § 2(b)(4).

6 We have previously given “controlling weight” to Department of Justice regulations interpreting Title II under a theory of agency deference. Cohen v. City of Culver City, 754 F.3d 690, 695 (9th Cir. 2014) (quoting Armstrong v. Schwarzenegger, 622 F.3d 1058, 1065 (9th Cir. 2010)). Title II requires the Department to issue such regulations to implement the statute. 42 U.S.C. § 12134(a). Because of this delegation, and because the parties do not dispute the validity of the relevant regulations, we apply the regulations as an interpretive aid in defining the scope of Title II. See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 394 (2024).

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Whether an impairment causes a substantial limitation may, in some cases, require an individualized determination. See Rohr v. Salt River Project Agric. Imp. & Power Dist., 555 F.3d 850, 858 (9th Cir. 2009) (pre-ADAAA). But “some impairments may invariably cause a substantial limitation of a major life activity.” Albertson’s, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999) (pre-ADAAA); see also 28 C.F.R. § 35.108(d)(2).

Here, a jury could easily conclude that a spinal condition that leaves one bound to a wheelchair invariably limits one’s ability to engage in multiple enumerated major life activities, such as “walking.” 42 U.S.C. § 12102(2)(A); 28 C.F.R. § 35.108(d)(2)(iii)(D) (“[M]obility impairments requiring the use of a wheelchair substantially limit musculoskeletal function.”). Adom has also put forward more than enough evidence from which a trier of fact could conclude that his incontinence substantially limits his “bowel” and “bladder” functions. 42 U.S.C. § 12102(2)(B). He is frequently unable to control his urinary evacuations, and at times his fecal evacuations. A reasonable jury could conclude that is substantial.

Adom’s incontinence qualifies as a disability notwithstanding that his doctors did not initially understand its medical basis or believe that diapers were medically necessary. Neither the statute, regulations, nor case law require a medical diagnosis or a doctor’s determination of a medical need for a condition to qualify as a disability under the ADA. See 28 C.F.R. § 35.108(d)(1)(vii) (“The comparison of an individual’s performance of a major life activity to the performance of the same major life activity by most people in the general population usually will not require scientific, medical, or statistical evidence.”).

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CDCR disputes whether Adom’s spinal condition is relevant to his need for incontinence accommodation. But the ADA does not require a one-to-one analysis of impairments and substantial limitations. Construing the meaning of “disability” broadly, 42 U.S.C. § 12102(4)(A), multiple intersecting impairments may contribute to the same limitation. Here, a jury could find that Adom’s spinal condition and incontinence collectively contribute to substantial limitations in, among other things, Adom’s ability to care for himself and his hygiene. Id. § 12102(2)(A). It is reasonable to conclude that it is more difficult to manage involuntary urination and defecation when such evacuations necessitate twisting and moving around in a wheelchair to clean up, and when such movements exacerbate spinal pain.

2. Denial of the Benefits of Services Adom argues that a reasonable jury could conclude he was “denied the benefits of [CDCR’s] services”—namely, toileting and hygiene services provided to inmates. 42 U.S.C. § 12132. We agree.

“[T]he ADA entitles inmates to receive the ‘benefits’ of the incarcerating institution’s programs and services without facing discrimination on account of a disability.” Armstrong, 622 F.3d at 1068. CDCR provides the services of toileting and hygiene—that is, it provides the means for inmates to urinate and defecate, as well as the means to keep themselves clean. The broad language of Title II “brings within its scope anything a public entity does.” Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001) (citation modified), overruling on other grounds recognized in Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125– 26 (9th Cir. 2002). At least one way to identify what a prison 18 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

does, and the services it provides within the meaning of Title II, is to identify what it is required to do by contract or other formal arrangement. See Armstrong, 622 F.3d at 1068. Here, CDCR is vested with “the responsibility for the care, custody, [and] treatment” of those incarcerated in state prisons. Cal. Pen. Code § 5054. CDCR must “provide the means for all incarcerated persons to keep themselves and their living quarters clean and to practice good health habits.” Cal. Code Regs. tit. 15, § 3060 (2026). Given the “restrictions imposed by incarceration,” Armstrong, 622 F.3d at 1068, these statutes and regulations require CDCR to provide the basic services of toileting and hygiene maintenance.

The “benefits” of these services are self-explanatory. 42 U.S.C. § 12132. In the words of the relevant regulations, they at least include “clean[liness]” and “good health,” Cal. Code Regs. tit. 15, § 3060 (2026), and “physical and mental well-being,” id. § 3061.

CDCR has an “affirmative obligation” to provide Adom with “meaningful access” to the benefits of these services.7

7 “A disability discrimination claim may be based on ‘one of three theories of liability: disparate treatment, disparate impact, or failure to make a reasonable accommodation.’” Payan, 11 F.4th at 738 (quoting Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016)). The parties do not clearly delineate the relevant theory of discrimination in this case, but Adom’s ADA claim is best understood as a reasonable accommodation claim because it centers on “an individualized request or need.” Id. Although we have generally applied the meaningful access standard in disparate impact cases, id., Adom urges that meaningful access is the appropriate standard in this accommodation case and CDCR does not argue otherwise. We agree that meaningful access is one standard for assessing whether a reasonable accommodation is required, and we apply it here. See Alexander v. Choate, 469 U.S. 287, 301 (1985) (“[T]o assure meaningful access, reasonable accommodations in the [] program

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Updike, 870 F.3d at 949, 951. Whether Adom was granted meaningful access is measured against the access provided to inmates generally. See Crowder v. Kitagawa, 81 F.3d 1480, 1484–85 (9th Cir. 1996). That is because the purpose of the ADA is to “assure equality of opportunity” and “full participation” in society for individuals with disabilities. 42 U.S.C. § 12101(a)(7).

A reasonable jury could find that Adom was denied meaningful access to the benefits of CDCR’s toileting and hygiene services because he needed the accommodation of adult diapers to enjoy those benefits on par with the rest of the SVSP population. Although Adom was technically able to relieve himself (by soiling his bed or wheelchair) and clean after himself (though with spinal pain) during the period he was not provided incontinence supplies, a reasonable jury could conclude that was not comparable to the toileting and hygiene services provided to inmates who did not suffer from Adom’s impairments. When a person with a disability can access a public entity’s services only by experiencing pain and humiliation, that access is likely not meaningful.

CDCR does not contest that Adom lived without diapers for five months. Rather, CDCR argues that the termination of Adom’s incontinence supplies was not a denial of CDCR’s services because Adom still had physical access to toilets, showers, and laundry facilities. CDCR further argues that uncontrolled evacuations do not limit one’s physical access to such facilities. And CDCR argues that Adom in fact had greater access to toileting and hygiene services relative to the general prison population because he received

or benefit may have to be made.”). That is, if a person lacks meaningful access, they may require a reasonable accommodation.

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a commode in his cell, priority shower and laundry access, and a few extra pairs of towels and boxers. We reject CDCR’s narrow view of its obligations under the ADA.

For a person with disabilities, meaningful access to the benefits of toileting and hygiene services may require more than physical access to a toilet, sink, and shower. Beyond removing “architectural, communication, or transportation barriers,” Title II instructs that the requisite access may be achieved through “reasonable modifications to rules, policies, or practices” or “the provision of auxiliary aids and services.” 42 U.S.C. § 12131(2). Although other inmates can access CDCR’s toileting and hygiene services by making use of its bathrooms, showers, and laundry facilities, Adom’s access is not so straightforward. Because he urinates involuntarily, without notice, and often in the middle of the night, structurally accessible facilities fall short of providing Adom a dignified and hygienic way to manage his bodily functions.

For similar reasons, a reasonable jury could find that CDCR’s alternative accommodations did not suffice to ensure Adom meaningful access. A closer toilet, and more ways to clean up after incontinence episodes, did not make it possible for Adom to accomplish toileting and hygiene with ease and dignity comparable to that enjoyed by the rest of the inmate population, as he was still left to soil his clothes, bedding, and wheelchair.

CDCR also objects that Adom had “the same access to hygiene services as other prisoners.” Along these lines, the dissent suggests that CDCR must be free of liability because it treated all prisoners “alike,” and Adom was left to live in his own waste only by the application of “neutral, generally applicable rules.” Dissent 41. But that is exactly the

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problem. CDCR treated Adom the same as nondisabled inmates when the ADA required CDCR to treat him differently. See McGary v. City of Portland, 386 F.3d 1259, 1267 (9th Cir. 2004) (“The purpose of the ADA’s reasonable accommodation requirement is to guard against the façade of ‘equal treatment’ when particular accommodations are necessary to level the playing field.”); see also Crowder, 81 F.3d at 1484.

Finally, CDCR and the dissent object that Adom did not allege in his complaint, or argue in the district court, that toileting and hygiene were the “services” he was denied, so the argument is forfeited. We disagree. “We construe liberally the filings and motions of a pro se inmate in a civil suit.” Thomas, 611 F.3d at 1150. And our precedent clearly establishes a pro se inmate may “refine[] and clarif[y]” an initial legal theory through subsequent filings and counseled appellate briefing. See Walker v. Beard, 789 F.3d 1125, 1133–34 (9th Cir. 2015); see also Qazi, 975 F.3d at 993 (discussing Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001)).

Adom’s handwritten complaint identified the “general theory” of his ADA claim—denial of services by reason of disability—and the “nucleus of facts” entitling him to relief—the denial of incontinence supplies and the ways in which that denial left him unable to cleanly and humanely relieve himself. See Walker, 789 F.3d at 1133. And in opposition to summary judgment, Adom expressly argued that he was “entitled to recover under the ADA” because he was “excluded from obtaining incontinence supplies,” without which he “was unable to painlessly, effectively and humanely protect himself from involuntary urinations.”

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This is the same claim, and essentially the same argument, that Adom raises in his counseled briefs on appeal.8 In the district court, Adom’s pleadings did not identify “toileting and hygiene” as the relevant “services”; rather, they identified only the “service” or “program” of CDCR’s Durable Medical Equipment program, which provides incontinence supplies. At the same time, Adom’s pleadings identified incontinence supplies—provided through the Durable Medical Equipment program—as his requested accommodation. Our precedent requires that we afford Adom the benefit of doubt regarding the nature and substance of his pleadings. Qazi, 975 F.3d at 993. Thus, we construe Adom’s complaint as seeking an accommodation of a supply order through the Durable Medical Equipment program rather than access to that program in and of itself.

In resisting this straightforward application of binding law, the dissent relies on a string of cases that do not touch on the essential circumstances here: 9 a pro se inmate, to

8 The dissent, in contrast, argues at length that Adom’s requested accommodation of adult diapers is not “reasonable,” Dissent 59–60, when CDCR neither raised this defense in the district court nor briefed it on appeal. Pierce v. County of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008) (providing burden shifting framework for reasonableness inquiry). Similarly, CDCR has not argued that it would have had to “violate binding regulations” to provide incontinence supplies while waiting for doctors to uncover the medical cause of Adom’s incontinence. Dissent 60, 63–65. Even if that were true, it would neither necessarily offend the ADA nor require affirmance here. A public entity may be required to make “reasonable changes in existing policies in order to accommodate individuals’ disabilities.” Townsend v. Quasim, 328 F.3d 511, 518 (9th Cir. 2003) (citation modified). 9 Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (affirming dismissal of a pro se complaint where plaintiff on appeal sought to introduce entirely new claims of vagueness, overbreadth, and

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whom the rule of liberal construction applies with “special force,” whose revised theory is squarely presented in “more focused” appellate briefing. Qazi, 975 F.3d at 993; see also Beaudett, 775 F.2d at 1278 (“Subsequent proceedings, may, at times, reveal that ambiguous fragments in the complaint represent the heart of a litigant’s concern.”).

The dissent further objects that this reframing fails to review the district court’s reasoning and prejudices CDCR. Although Adom addressed his ADA claim in his opposition to CDCR’s summary judgment motion, the district court erroneously determined that Adom did not oppose summary judgment on this claim, so it did not consider, let alone liberally construe, any of Adom’s ADA arguments. Moreover, even if the dissent were correct that CDCR was not on notice as to the relevant service, we struggle to understand why CDCR would have introduced any different evidence on the reasonableness of the incontinence-supply accommodation. Dissent 55–56. CDCR did not object to the reasonableness of Adom’s requested accommodation in the district court. See supra n.8. And construing Adom’s handwritten complaint as we do is a legal issue that does not change the relevant factual allegations—that Adom sought, and was denied, incontinence supplies.

selective prosecution based on passing references to free speech, equal protection, and refusal to pay fines in “sentence fragments,” and where the only claim for relief was trial by jury on a personal injury claim for a slip-and-fall); Justice v. Elrod, 832 F.2d 1048, 1051 (7th Cir. 1987) (affirming dismissal where pro se plaintiff expressly disclaimed any reliance on the Fourteenth Amendment, because he believed it was not “validly ratified,” but the Fourteenth Amendment was the “only colorable legal ground for the relief he seeks”); Sharemaster v. SEC, 847 F.3d 1059, 1070 (9th Cir. 2017) (discussing and applying exceptions to appellate forfeiture).

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3. By Reason of Disability A reasonable jury could thus conclude that Adom is disabled within the meaning of Title II and was denied the benefits of CDCR’s toileting and hygiene services. A jury could also conclude that this denial was “by reason of [his] disability.” 42 U.S.C. § 12132.

The operative phrase, “by reason of such disability,” id.

(emphasis added), does only the modest work of requiring a nexus between the alleged disability and the alleged denial of benefits. See Crowder, 81 F.3d at 1484 (holding that Hawaii’s animal quarantine requirement discriminated “by reason of” the plaintiffs’ disability because it was their disability—visual impairment—that made it harder to access state services under the quarantine); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 276 (2d Cir. 2003) (holding that causation is satisfied when the challenged action “hurt [people with disabilities] by reason of their handicap, rather than [] hurt them solely by virtue of what they have in common with other people” (first alteration in original) (quoting Good Shephard Manor Found., Inc. v. City of Momence, 323 F.3d 557, 561 (7th Cir. 2003))).

Here, it is Adom’s incontinence and spinal condition that made it harder for him to enjoy the benefits of CDCR’s toileting and hygiene services without diapers, not any other characteristics. There is thus a clear basis in fact for a jury to conclude that there is a nexus between Adom’s disabilities and the benefits that he was denied.

CDCR argues that Adom’s order for incontinence supplies was “not revoked because he was incontinent,” but rather because the prison determined he did not have a medical need for them, so he cannot show discriminatory intent. Similarly, the district court emphasized that CDCR

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did not “deliberately discriminat[e] against him due to his incontinence.” These observations are irrelevant. Discriminatory intent may be sufficient to satisfy causation in an ADA claim, but it is not necessary. See McGary, 386 F.3d at 1266 (“A plaintiff need not allege either disparate treatment or disparate impact in order to state a reasonable accommodation claim.”). Rather, Adom need only show that it was his disabilities, not some other characteristic or factor, that prevented him from accessing the benefits of CDCR’s toileting and hygiene services absent accommodation.

4. Deliberate Indifference On this record, a reasonable jury could find that Adom has satisfied the three primary elements of his Title II claim and may therefore be entitled to declaratory relief and, pending the resolution of the standing issues we discuss below, injunctive relief. To obtain damages, Adom must further show that CDCR acted with deliberate indifference when it denied him the benefits of its services. Weldeyohannes v. Washington, 162 F.4th 972, 976 (9th Cir. 2025). There is sufficient record evidence to warrant a trial on the question of deliberate indifference.

To establish deliberate indifference under the ADA, a plaintiff must show that the public entity 1) was on notice as to the need for accommodation and 2) failed to adequately act on that notice. Duvall, 260 F.3d at 1139 (“Deliberate indifference requires both knowledge that a harm to a federally protected right is substantially likely, and a failure to act upon that the likelihood.”).

“When the plaintiff has alerted the public entity to his need for accommodation (or where the need for accommodation is obvious, or required by statute or 26 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

regulation), the public entity is on notice that an accommodation is required, and the plaintiff has satisfied the first element of the deliberate indifference test.” Id.

As to the second element, an adequate response requires that, at minimum, the public entity “undertake a fact-specific investigation to determine what constitutes a reasonable accommodation.” Id. This investigation must gather sufficient information from the individual with the disability and, where necessary, qualified experts, to understand the individual’s needs. Id. at 1139.

An alternative accommodation is not an adequate response if it fails to provide meaningful access to the benefits of the service at issue. See Updike, 870 F.3d at 956; see also Duvall, 260 F.3d at 1139–40 (“[A] public entity does not ‘act’ by proffering just any accommodation.”). And if the public entity denies a request for a specific accommodation, it must demonstrate that it inquired as to the feasibility of the request and why it “would be unreasonable or could not be accommodated.” Updike, 870 F.3d at 957; see also Duvall, 260 F.3d at 1140. In other words, providing one accommodation does not necessarily defeat the argument that the public entity was deliberately indifferent to the need for a different accommodation.

The public entity’s failure to adequately respond “must be a result of conduct that is more than negligent, and involves an element of deliberateness.” Duvall, 260 F.3d at 1139. Deliberateness may be inferred when the public entity ignores or denies requested accommodations without sufficient inquiry. See id. at 1140; Updike, 870 F.3d at 955.10

10 Given the myriad ways to prove “deliberate indifference” in the context of Title II, it is a different standard than the deliberate

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Viewing the record in the light most favorable to Adom, and resolving all inferences in his favor, Adom has put forth sufficient evidence to create a triable issue regarding whether CDCR acted with deliberate indifference.

First, CDCR abruptly terminated Adom’s order for weekly incontinence supplies, which he was previously receiving without issue. Adom had notified CDCR of his need for incontinence supplies in December 2020, roughly nine months before the termination in September 2021. The abrupt termination could amount to a rejection of Adom’s prior express request for accommodation and is an affirmative action from which a trier of fact may infer deliberateness. See Duvall, 260 F.3d at 1140; see also Weldeyohannes, 162 F.4th at 977.

CDCR asserts that its staff reviewed Adom’s medical records before terminating the order and thus conducted an adequate investigation into Adom’s needs. It is undisputed, however, that CDCR only had access to the same medical records on which prior staff had relied to conclude that Adom needed a permanent supplies order, and that no medical or custodial staff examined or interviewed Adom to understand whether he no longer needed diapers. It is unlikely that an investigation is “adequate” when the public entity fails to gather new information before terminating a prior accommodation. See Duvall, 260 F.3d at 1139. Given the limited information on which CDCR relied and CDCR’s failure to obtain information directly from Adom, a reasonable fact finder could conclude that CDCR failed to

indifference standard applicable to the Eighth Amendment. Compare Duvall, 260 F.3d at 1138–39 with Farmer v. Brennan, 511 U.S. 825, 837 (1994).

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conduct an adequate investigation before terminating the supplies order. See id.11 Second, a rational fact finder could conclude that CDCR acted with deliberate indifference when it ignored and summarily rejected Adom’s repeated pleas to reinstate his supplies order. Between September 10 and September 19, 2021, Adom filed four written requests for incontinence supplies and made multiple in-person requests of both medical and custodial staff, including Nurse Rubio, Dr. Montegrande, and several building officers. Adom also involuntarily urinated in his wheelchair in front of Dr. Montegrande before asking for supplies. But Adom received no accommodation whatsoever until October 14. A reasonable jury could conclude that CDCR was deliberately indifferent to Adom’s needs when it “ignored” his requests for over one month while leaving him to sit and sleep in his own waste. Updike, 870 F.3d at 955, 958; Weldeyohannes, 162 F.4th at 976–77.

Third, a jury could conclude that CDCR acted with deliberate indifference when it repeatedly rejected Adom’s requested accommodation without investigating whether it was reasonable and feasible. When the Reasonable Accommodation Panel denied Adom’s request for diapers on October 14, it noted only that “there was no indication found for incontinence supplies.” And when Dr. Ladd

11 Because we hold that a jury could conclude that CDCR’s pretermination investigation was inadequate, the dissent accuses us of using words like “should,” the “language of negligence.” Dissent 63 (quoting Koon v. North Carolina, 50 F.4th 398, 409 (4th Cir. 2022)). This is an odd argument because the word “should” does not appear in the “language” of our deliberate indifference analysis. We also note that the report the dissent cites to bolster the adequacy of CDCR’s pretermination investigation postdates the termination. Dissent 63.

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denied Adom’s request for diapers, he cited only his generalized suspicion that prisoners, writ large, “were malingering their incontinence conditions . . .and that such abuse was costly.” Neither of these justifications answered the only relevant question: whether Adom’s requested accommodation “would be unreasonable or could not be accommodated.” Updike, 870 F.3d at 957.

Fourth, there is also a triable question of fact as to whether CDCR was deliberately indifferent to Adom’s needs for the roughly three weeks between his enlarged prostate diagnosis from Dr. Lotersztain and when he again began receiving incontinence supplies. Although the evidence at trial may show that this delay was the product of negligence or “bureaucratic slippage,” Duvall, 260 F.3d at 1139, Adom has presented evidence demonstrating that it might have been the product of something more deliberate. Two weeks after Dr. Lotersztain first told Adom that his supplies would be reinstated, Adom still had not received them, so he filed two complaints repeating his request. It took eight days after the first of those complaints for CDCR to finally issue him new supplies. During this period, Adom alleges that Dr. Lotersztain “knowingly [left] [him] to continue suffering unnecessary pain, contamination exposure, mental anguish and deep depression.”12 CDCR argues that no reasonable jury could find that it acted with deliberate indifference, at any juncture, because it provided Adom with alternative accommodations. The dissent agrees. They both point out that medical staff

12 We thus disagree that Adom has not alleged an intentional delay on the part of Dr. Lotersztain. Dissent 65. And we do not see why the state regulations entitle CDCR to establish as a matter of law that mere “bureaucratic slippage” is what occurred here. Dissent 65–66.

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administered tests and prescribed medication, the Reasonable Accommodation Panel granted Adom priority shower and laundry access, and the warden’s proxy gave Adom extra towels and boxers on one occasion. These alternative accommodations, of course, do not address the period between September 1, when Adom last received diapers, and the first alternative accommodation on October 14. We cannot say that, as a matter of law and drawing all inferences in Adom’s favor, CDCR was “responsive” notwithstanding this delay. Dissent 62, 66. That factual question is for the jury.

And even as to the remaining period, CDCR has not established that, as a matter of law, these alternative accommodations were adequate. That is because, viewing the facts in Adom’s favor, the accommodations did not provide Adom with meaningful access to the benefits of CDCR’s services. See supra Section III.A.2. Adom requested a weekly supply of adult diapers to prevent humiliation and discomfort from involuntary evacuations. A rational jury could find that CDCR acted with deliberate indifference when it provided Adom with half-solutions rather than granting him the accommodation he requested and that he had previously been provided. See Duvall, 260 F.3d at 1139–41.

CDCR and the dissent further argue that a jury could not find deliberate indifference because institutional actors, like the Reasonable Accommodation Panel, and medical staff, like Dr. Ladd and Dr. Lotersztain, determined that incontinence supplies were not medically indicated or necessary. Echoed by the dissent, CDCR also suggests it cannot be faulted for following state policy that requires, prior to the issuance of diapers through the Durable Medical Equipment program, the identification of “an underlying

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medical condition that involves loss of bladder or bowel control.”13 CDCR and the dissent both emphasize that the medical basis of Adom’s incontinence was unknown until Dr. Lotersztain diagnosed him with an enlarged prostate in late December 2021. Citing Simmons v. Navajo County, 609 F.3d 1011 (9th Cir. 2010), CDCR argues that medical treatment choices cannot form the basis of an ADA claim.

This reasoning, however, gives a medical answer to an ADA question. Disabilities, within the meaning of the ADA, are not limited to conditions with clear diagnoses or medical indications. See supra Section III.A.1. The ADA thus creates a framework of disability and accommodation that is not directly linked to the medical system or limited to medical accommodation programs. Accordingly, a public entity may be obligated to provide a reasonable accommodation even when the accommodation has not been prescribed by a medical professional and even when state policy requires the prior identification of a medical condition before issuing supplies through a medical equipment program. In other words, it cannot be the case that an individual with a disability (and the dissent assumes Adom has a disability, Dissent 48 n.3) has no recourse under the ADA when he is left to live and sleep in his own waste, simply because the precise medical cause of his incontinence is elusive or because the existing accommodations programs are inadequate. Any other result would give an institutional actor like CDCR, which controls the relevant medical staff, total control over the realization of the protections afforded by the ADA. That cannot be. Here, it is undisputed that

13 The motion for judicial notice of the state policy, the Durable Medical Equipment and Medical Supply Formulary promulgated by California Correctional Health Care Services (Sep. 2019), Dkt. 33, is granted.

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Adom suffers urinary incontinence and mobility limitations. A jury may consider whether CDCR acted with deliberate indifference when it terminated his supply of adult diapers and declined his requests for reinstatement.

Moreover, we did not hold in Simmons that medical judgments fall outside the scope of the ADA. There, a pretrial detainee committed suicide in a Navajo County jail, and the parents brought multiple claims against the jail, including a claim under Title II. Simmons, 609 F.3d at 1014, 1016. The parents argued that Navajo County violated the ADA by depriving their son of programs or activities “to lessen his depression.” Id. at 1022. We held that “such argument is not actionable under the ADA,” because the ADA “prohibits discrimination because of disability, not inadequate treatment for disability.” Id. Our holding thus turned on the nature of the accommodation sought—medical treatment for the underlying condition—not the medical judgment or methodology invoked in denying the accommodation. CDCR argues that diapers are medical treatment within the meaning of Simmons and thus outside of the scope of the ADA, but it is mistaken, as Adom did not seek incontinence supplies to “lessen” his incontinence. Cf. id. Adom continues to involuntarily evacuate urine, and occasionally stool, whether he wears an adult diaper or not.

CDCR’s arguments also run contrary to the text and scope of the ADA. The text of 42 U.S.C. § 12132 does not turn on the medical training of the staff member who makes the accommodation decision. And the record suggests that most, if not all, disability accommodations in the California prison system are reviewed by doctors and against a rubric of medical necessity. See Cal. Code Regs. tit. 15, § 3999.394. As previously indicated, to hold that the involvement of doctors, or the classification of

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accommodations as medical equipment, removes prison accommodations from the scope of the ADA would undermine the Supreme Court’s holding that Title II applies with full force to state prisons. See Yeskey, 524 U.S. at 209– 10. We decline to so hold. Rather, the denial of a disability accommodation is reviewable even when it is grounded in medical judgment. And decisions by doctors can evince deliberate indifference.14 CDCR also objects that Adom did not tell anyone that his spinal condition made it painful for him to clean up his urine in the middle of the night and that this condition contributed to his need for an accommodation. Even if that were true, Adom would still have a triable ADA claim based on his incontinence condition alone. Forcing someone with incontinence to sit and sleep in his own urine can violate the ADA even if that person does not experience spinal pain when twisting to clean up. And in any case, CDCR ignores the assertion in Adom’s verified complaint that he informed

14 The dissent cites two cases to the contrary, Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) and School Board of Nassau County v. Arline, 480 U.S. 273 (1987). Each concerns the issue of whether an individual is “qualified” within the meaning of Title II, not the issue of deliberate indifference. And in context, the quoted language from Olmstead concerns the risk that an ADA claim for community mental health treatment might result in the “termination of institutional settings for persons unable to handle or benefit from community settings.” 527 U.S. at 601–02. To avoid that evil—not excess liability for public entities—the Court instructed that the state should defer to medical professionals as to who belongs in institutional care. Id. at 602. And Arline provided the relevant standard for determining whether a schoolteacher might be qualified for her job notwithstanding an active tuberculosis diagnosis. 480 U.S. at 288. Neither case stands for the proposition that medical judgments insulate public entities from ADA liability.

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Dr. Lotersztain of the “severe spinal pain he endures getting up at night having to change urine soiled wrappings, clothing, and . . . sheets and blankets if he has the extra linen.”

Finally, CDCR lists the named individual Defendants who could have acted on Adom’s requests and asserts that each of them acted reasonably—in essence, that the doctors made reasonable medical determinations, and that the custodial staff reasonably deferred to medical staff. The dissent similarly emphasizes that individual members of the Reasonable Accommodation Panel deferred to the doctors. CDCR further disputes whether some of these individuals had sufficient notice of Adom’s needs.

These objections are misplaced twice over. CDCR ignores the summary judgment posture of this case and the lenience we must afford Adom as a pro se inmate opposing summary judgment, as well as the significant evidence of notice and deliberate failure to act that Adom mustered in support of his opposition to CDCR’s motion. See Thomas, 611 F.3d at 1149–50.

Moreover, even if CDCR and the dissent were correct as to the individual named Defendants, Adom’s ADA claim runs against CDCR, not any individual. Public entities are vicariously liable for the acts of their employees in violation of Title II. Duvall, 260 F.3d at 1141. In addition to the named Defendants, Adom has provided evidence that various unnamed CDCR employees were aware of his lack of access and his requests for accommodation, including the building officers he informed of his incontinence and the non-Defendant members of the Reasonable Accommodation Panel. So, even if a jury could find that Defendant Mojica reasonably deferred to doctors on staff (a jury question),

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Dissent 64, CDCR can still be vicariously liable for the actions and omissions of its non-Defendant staff.

B. Standing for Injunctive Relief We remand for the district court to consider in the first instance whether Adom has standing to seek an injunction ordering CDCR to grant him a permanent accommodation order.

CDCR does not dispute that Adom has standing to seek monetary damages and declaratory relief. But in his complaint, Adom also prayed for appropriate injunctive relief. The district court concluded that “any claim” for injunctive relief under the ADA was moot because CDCR granted Adom a temporary accommodation order in January 2022, nearly one year before Adom filed the instant complaint.

The district court did not consider specific injunctive relief claims and denied injunctive relief across the board. Adom clarified at oral argument that he seeks a permanent accommodation order under the relevant California regulation, Cal. Code Regs. tit. 15, § 3999.394. Oral Argument at 1:28–2:08, Adom v. Cal. Dep’t of Corrs. & Rehab. (No. 24-4756), https://www.ca9.uscourts.gov/cases/streamsvideos /archive?case=24-4756&hearingDate=2025-10-23. Adom’s last accommodation order was marked as “temporary,” meaning that it would last only “until the documented timeframe has expired.” Cal. Code Regs. 15 § 3999.394(h). The regulations, however, provide for “permanent” accommodation orders, which remain in force indefinitely, but may be modified as medically indicated. Id. § 3999.394(g).

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The reinstatement of Adom’s incontinence supplies implicates standing, not mootness.15 “The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness).” Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 68 n.22 (1997)). Because CDCR temporarily reinstated Adom’s incontinence supplies before the commencement of this litigation, the relevant question is whether that reinstatement deprived Adom of standing to seek a permanent order.

We are left to decide whether to address a question that the district court did not answer and that the parties have not briefed. “It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120 (1976). We generally will not exercise our equitable discretion to reach a question in the first instance when the record is not sufficiently developed to answer the question. See Planned Parenthood of Greater Wash. & N. Idaho v. U.S. Dep’t of Health & Hum. Servs., 946 F.3d 1100, 1110–11 (9th Cir. 2020).

The standing inquiry raises questions that the district court record cannot answer. To satisfy the injury element of his injunctive relief claim, for example, Adom must demonstrate that at the beginning of this litigation, he had a

15 Adom argues that mootness is the proper framework because CDCR only reinstated his supplies after he began exhausting administrative remedies. Because Adom does not provide any authority in support of this contention, we decline to consider it. Kaiser Found. Hosps. v. Sebelius, 649 F.3d 1153, 1157 n.2 (9th Cir. 2011). The district court, however, is free to consider the issue on remand.

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reasonable fear that CDCR would again abruptly terminate his access to incontinence supplies, based on the “likelihood of [] recurrence of the allegedly unlawful conduct.” Friends of the Earth, 528 U.S. at 184 (quoting Los Angeles v. Lyons, 461 U.S. 95, 108 n.8 (1983)). Adom must show that there is at least “a substantial risk that the harm will occur.” Dep’t of Com. v. New York, 588 U.S. 752, 767 (2019) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014)). The record on appeal, however, is insufficient to assess this likelihood. While the parties agree that Adom has been receiving incontinence supplies since the commencement of this litigation, it is not clear whether Adom has received those supplies pursuant to a formal order or the mere good graces of CDCR.16 Assuming that Adom had a temporary order at filing, by definition it only “remain[s] in force until the documented timeframe has expired.” Cal. Code Regs. tit. 15, § 3999.394(h). But the record before us does not show when Adom’s last temporary order was set to expire, how CDCR considers temporary orders for renewal, or whether, at the time of filing, there was a risk that the latest temporary order would lapse before a new temporary order could be approved.

Similar open questions frustrate the redressability analysis. Adom must show that a permanent order would be “likely” to lessen “at least some” of the risk of a future abrupt termination. Diamond Alt. Energy, LLC v. EPA, 606 U.S. 100, 114 (2025). And the Prison Litigation Reform Act imposes an important relevant limitation: “[A] court shall not grant or approve any prospective relief unless the court

16 The latest record evidence shows that Adom still had an active temporary order as of March 9, 2022. There is no evidence in the record as to when this order expired and whether it was renewed.

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finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S.C. § 3626(a)(1)(A).

While the regulations indicate that there are some differences between temporary and permanent orders, namely that temporary orders expire on a “documented timeframe” and permanent orders are subject to revision or removal “as indicated by the patient’s status,” the practical consequences of those differences are unclear because we do not know what the terms of Adom’s temporary order are or CDCR’s process for renewing such orders. For instance, if there is a substantial risk of a lapse between temporary order renewals, a permanent order might reduce that risk, as permanent orders “do not require further review or renewal” so long as the ordered supplies remain “indicated by the patient’s status.” Cal. Code Regs. tit. 15, § 3999.394(g).

On the other hand, if the terms of Adom’s temporary order or the renewal process for such orders does not create a substantial risk that the provision of adult diapers will lapse while Adom’s condition or circumstances still require them to satisfy the requirements of the ADA, then the temporary order is likely sufficient and additional injunctive relief would neither redress injury nor be relief that “extends no further than necessary to correct the violation of the [ADA].” 18 U.S.C. § 3626(a)(1)(A).

On remand, to the extent that Adom continues to seek injunctive relief, the district court should clarify the nature and duration of the accommodation order in place at the time this action was filed, whether there is a substantial risk that Adom will experience another abrupt termination of incontinence supplies when they are “indicated by his

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status,” and whether a permanent order or other injunctive relief would remedy that risk.

IV. Conclusion

We reverse the district court’s grant of summary judgment on Adom’s ADA claim and we remand for further proceedings consistent with this opinion and our concurrently filed memorandum disposition. Appellant shall recover costs on appeal.

REVERSED and REMANDED.

BEA, Circuit Judge, dissenting:

Bilal Adom is an inmate at Salinas Valley State Prison, which is operated by the California Department of Corrections and Rehabilitation (CDCR). He suffered from urinary incontinence. In December 2020, he requested supplies to alleviate his symptoms. Prison officials obliged and enrolled him in the state’s “Durable Medical Equipment” (DME) program, through which he received the following incontinence supplies every week: fourteen adult diapers, large absorbent pads, and sanitary wipes. As it turns out, Adom was not entitled to receive these supplies under prison regulations. The regulations require “medical supplies,” which include the incontinence supplies in question, to be given to a prisoner only if the supplies are “medically necessary,” and Adom’s medical records lacked any proof of medical necessity. Nevertheless, Adom received these supplies for several months. But in September 2021, after reviewing Adom’s medical records and concluding that the incontinence supplies were not 40 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

medically necessary, prison officials stopped providing them.

For four months, Adom asked various prison officials and administrative bodies to resume providing him with incontinence supplies. All of Adom’s requests were denied for the same reason: he failed to submit any proof that the supplies were medically necessary. But during this period, prison officials granted Adom other accommodations that did not require a showing of medical necessity, including special access to showers, extra linens, and a commode (a chair with a removable toilet pan built into it) for his cell. Finally, in December 2021, a physician determined that the original incontinence supplies were medically necessary for Adom. Three weeks after Adom obtained this proof of medical necessity, CDCR resumed providing him with his original incontinence supplies through the DME program.

Adom sued CDCR for damages and injunctive relief under Title II of the Americans with Disabilities Act (ADA) based on the suspension of his incontinence supplies from September 2021 to January 2022. He alleged that CDCR deprived him of access to a “service, program, or activity,” namely, the DME program through which he obtained his incontinence supplies. The parties did not dispute that CDCR suspended the supplies because Adom lacked proof of medical necessity. Nor had Adom challenged the validity of the CDCR regulations that required him to provide evidence of medical necessity. So the district court concluded that CDCR had terminated Adom’s original incontinence supplies for the nondiscriminatory reason that he was not eligible to receive them. Accordingly, the district court granted summary judgment in favor of CDCR.

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The question on appeal is whether Adom’s ADA claims can proceed to trial, and, in my view, the clear answer is that they cannot. Multiple medical professionals reviewed Adom’s medical records and were unable to find any evidence to sustain Adom’s claim that the original incontinence supplies were medically necessary. Prison officials charged with reviewing Adom’s supply request adopted these findings out of deference to the expertise of medical personnel. Based on those findings, prison officials correctly determined that Adom did not satisfy the requirement of “medical necessity” for the incontinence supplies earlier given him and therefore was ineligible to receive those supplies. So the prison denied Adom’s requests. Those denials did not run afoul of the ADA. After all, prison officials had done nothing more than measure Adom’s request against the state’s regulatory standard of “medical necessity” that applies to disabled and nondisabled prisoners alike. There is no claim that the regulatory standard itself is discriminatory, and the prison’s adherence to these regulations is not unlawful “discrimination.”

Put simply, the ADA does not exempt Adom from complying with CDCR’s neutral, generally applicable rules. In concluding otherwise, the majority distorts the plain meaning of the statute and exercises unwarranted power over the internal affairs of a state institution. I respectfully dissent.

I

A.

Let’s begin with the facts of this case. In December 2020, Adom informed prison medical staff that he was experiencing incontinence. From December 2020 until September 2021, prison staff gave Adom a weekly supply of 42 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

fourteen adult diapers, large absorbent pads, and wipes to help him manage his incontinence. Prison staff provided Adom with these original incontinence supplies through the state-run DME program, which entitles a prisoner to certain medical equipment only when the equipment is “medically necessary.” Cal. Code Regs. tit. 15, § 3999.390(a). Throughout this period, medical staff identified no cause for Adom’s incontinence, so a finding of “medical necessity” was never made.

In August 2021, Adom was transferred to a different housing unit in the prison. Around the time of his transfer, prison officials reviewed his medical records. Because there was no evidence in Adom’s records that the original incontinence supplies were medically necessary, the prison stopped providing them.

Adom wanted the provision of these original incontinence supplies reinstated. So, on September 18, 2021, Adom submitted a formal request to the prison’s “Reasonable Accommodations Panel” (the “Panel”) asking that he be provided with a weekly supply of adult diapers and access to laundry services for exchanging soiled linens. On October 1, 2021, while the Panel was reviewing Adom’s request, Adom met with a registered nurse, who reviewed his medical file and explained that Adom was not entitled to incontinence supplies because there was no basis to conclude that they were medically necessary. On October 14, 2021, the Panel issued its denial of Adom’s request for a supply of adult diapers. The Panel’s written order explained that it could not approve the request for adult diapers because there was no evidence that the diapers were medically necessary for Adom. However, the Panel approved a modified accommodation that gave Adom special access to showers and extra linens if he suffered an episode of incontinence.

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This modified accommodation complied with California regulations, which permitted prison officials to provide Adom with diapers only upon a showing of medical necessity, but did not restrict the prison’s ability to provide Adom with extra linens and special shower access. See Cal. Code Regs. tit. 15, § 3999.390(a). Adom also had a commode in his cell during this time.

Adom persisted, but his efforts all failed for the same reason: he had no proof that the original incontinence supplies were medically necessary. On December 7, 2021, Adom met with a medical professional, Dr. Ladd, who evaluated Adom’s incontinence at Adom’s request. Dr. Ladd reviewed Adom’s medical records and did not find any indication that the original incontinence supplies were medically necessary, so Dr. Ladd did not order the resumption of those supplies. In response to Adom’s stated concerns about incontinence, Dr. Ladd prescribed a trial course of oxybutynin to treat Adom’s “overactive bladder.”

On December 29, 2021, Adom met with another medical professional, Dr. Lotersztain, who found that Adom had an enlarged prostate, ordered a resumption of incontinence supplies, and prescribed medication. Dr. Lotersztain later stated in a declaration that she ordered Adom to be provided with original incontinence supplies “even though Adom’s history of incontinence was vague, and he reported that he was able to urinate while awake and the incontinence happened in his dreams[.]” With this medical opinion in hand, Adom was entitled to receive the original incontinence supplies under CDCR regulations. See Cal. Code Regs. tit. 15, § 3999.390(a). Adom began receiving regular distributions of the supplies on January 20, 2022. He continued to receive the supplies during this litigation.

44 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

B.

On November 15, 2022, Adom filed his pro se complaint, which commenced this action. The district court screened the complaint pursuant to 28 U.S.C. § 1915A(a) and allowed several of Adom’s claims to proceed to summary judgment. Adom v. Cal. Dep’t of Corr. & Rehab., No. 22-cv-07150-JSW, 2023 WL 2311958 (N.D. Cal. Mar. 1, 2023). We are concerned only with Adom’s ADA claims. Adom brought two ADA claims that sought damages and a permanent injunction that would order CDCR to provide him with his requested supplies. He alleged that CDCR violated the ADA by depriving him of access to the incontinence supplies through the DME program. As Adom explained in his complaint, he “qualified for prison Durable Medical Equipment Services; prison DME services is a service, program, or activity of a public entity; [and] he was excluded from the prison DME service because of his disability.”

The district court granted summary judgment in CDCR’s favor on the ADA claims. See Adom v. Cal. Dep’t of Corr. & Rehab., No. 22-cv-07150-JSW, 2024 WL 3173294, at *5 (N.D. Cal. June 25, 2024). The district court found that during the four- to five-month period during which Adom’s incontinence supplies were suspended, “[Adom] was examined multiple times by medical professionals,” and “[a]ll of these medical professionals found no indication his incontinence had a medical cause or he had a medical need for incontinence supplies.” Id. at *2. The district court further found that “the reason the CDCR did not provide him those supplies was that medical professionals determined he did not have a medical need for them.” Id. at *5. The court concluded that Adom’s ADA claim for damages failed as a matter of law because the evidence, “at most,” demonstrated a “disagreement about treatment for [Adom’s] conditions,

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not a deliberate exclusion from programs, services, or activities because of a disability.” Id. Adom appealed.

II

I begin by explaining how we ought to have decided this case before turning to the majority’s errors.

A.

First, I provide some background on the statute and Adom’s particular ADA claim. Title II of the ADA provides, in relevant part:

“[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.

To prove that CDCR violated the ADA, Adom must show the following: “(1) he is an individual with a disability; (2) he is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs, or activities; (3) he was . . . denied the benefits of the public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such . . . denial of benefits . . . was by reason of [his] disability.” McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004) (citation modified).1

1 In interpreting Title II of the ADA, I also consider decisions interpreting Section 504 of the Rehabilitation Act because “the statutes provide ‘identical remedies, procedures, and rights.’” Vos v. City of 46 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

Let us be clear about the ADA claims that Adom brought. In the proceedings below, Adom made clear that the “service” to which he claims CDCR denied him “access” was the state’s DME program through which he obtained his incontinence supplies. In his pro se complaint, two section headings stated, respectively, that the “Durable Medical Equipment Service is a Service or Program under the ADA” and that “CDCR Denied Adom Meaningful Access to Its Durable Medical Equipment Program.” In his pro se motion in opposition to CDCR’s motion for summary judgment, Adom reiterated that this case “is a matter of CDCR’s exclusion of Plaintiff from the prison’s Durable Medical Equipment Services, due to his medically diagnosed disability[.]”

Although Adom proceeded pro se in the district court, we need not deviate from the legal theories that he repeatedly advanced below. Our rule that “[w]e construe liberally the filings and motions of a pro se inmate in a civil suit,” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010), does not mean that we serve as substitute counsel to revise a pro se litigant’s legal theories. See Boquist v. Courtney, 32 F.4th 764, 774 (9th Cir. 2022) (“A liberal construction of a pro se complaint, however, does not mean that the court will supply essential elements of a claim that are absent from the complaint.”). That limit is especially apt in this case, as Adom’s pro se filings demonstrated that he understood the

Newport Beach, 892 F.3d 1024, 1036 (9th Cir. 2018) (quoting Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000)).

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legal elements of an ADA claim and chose to advance one theory of his case instead of another.2 Further, the district court already addressed this concern and expressly “construed” Adom’s claims “liberally.” Adom, 2023 WL 2311958, at *1. Although courts have a duty to “construe pro se complaints liberally,” that duty “does not require those courts to conjure up questions never squarely presented to them.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985) (Wilkinson, J.); see Sharemaster v. SEC, 847 F.3d 1059, 1070 (9th Cir. 2017)

2 Adom’s pro se complaint recited the elements of an ADA claim and identified the DME program as the “service” from which he claimed to have been excluded:

“Adom meets all the requirements for [a] successful ADA claim because he has alleged that: (1) he had a disability; (2) regardless of his disability, he qualified for prison Durable Medical Equipment Services; (3) prison DME services is a service, program, or activity of a public entity; (4) he was excluded from the prison DME service because of his disability . . . .”

Adom reiterated this theory in his pro se motion in opposition to CDCR’s motion for summary judgment:

“[Plaintiff] qualified for the Durable Medical Equipment services; prison DME services is a service, program, or activity of a public entity; he was excluded from the prison DME service because of his disability . . . . Plaintiff was excluded from obtaining incontinence supplies because of his urinary incontinence disability . . . . [B]ecause this is a matter of CDCR’s exclusion of Plaintiff from the prison’s Durable Medical Equipment Services, due to his medically diagnosed disability, Plaintiff is entitled to recover under the ADA.”

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(“[Our] general waiver rule applies even to nonlawyers . . . who proceed pro se in the face of a complicated statutory scheme”). The ADA claim that Adom presented to the district court alleged that CDCR deprived him of access to the DME program by reason of his disability. Even after giving Adom’s pleadings a “liberal construction,” the district court had no reason to consider any other ADA theories and did not do so. See Adom, 2024 WL 3173294, at *5. So we should construe Adom’s ADA claim as alleging that CDCR deprived him of access to the DME program by reason of his disability.

B.

With that understanding of Adom’s ADA claims in mind, there can be little doubt that they fail as a matter of law.3 First, Adom was not “qualified” to receive the “services”

in question. To be a “qualified individual with a disability,” a Title II plaintiff must meet the “essential eligibility requirements” for participation in the public entity’s services:

“The term ‘qualified individual with a disability’ means an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the

3 I assume for purposes of argument that Adom’s incontinence qualifies as a “disability” under the ADA. See 42 U.S.C. § 12102(4)(A).

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receipt of services or the participation in programs or activities provided by a public entity.” 42 U.S.C. § 12131(2) (emphasis added).

Here, the relevant “service” was, as Adom claimed, the DME program. An “essential eligibility requirement” for Adom to participate in the DME program (and receive the incontinence supplies) was that Adom demonstrate the medical necessity of the supplies. And Adom did not meet that essential eligibility requirement.

CDCR’s regulations, which are binding on California prisons, provide that CDCR and state prisons “shall provide Durable Medical Equipment (DME) and medical supplies to patients as medically necessary.” Cal. Code Regs. tit. 15, § 3999.390(a). The incontinence supplies that Adom requested were classified as “medical supplies” and were subject to this regulation. CDCR’s official list of “medical supplies” designated “[d]isposable diapers,” “[d]isposable washcloths,” and “[c]leaning wipes” as the “incontinence supplies” that required a showing of medical necessity. Cal. Dep’t of Corr. and Rehabilitation, Durable Medical Equipment and Medical Supply Formulary (“CDCR Formulary”) at 107 (Sept. 2019), [https://perma.cc/5JN2- 7C79]. The CDCR Formulary explained that, to receive any of the listed “incontinence supplies,” a prisoner had to establish “medical necessity,” which in this context required a prisoner to show an “underlying medical condition that involves loss of bladder or bowel control.” Id.

During the four- to five-month period in which Adom did not receive incontinence supplies, he never provided the requisite evidence of medical necessity. When the prison initially suspended his supplies around August 2021, it did 50 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

so because its review of Adom’s file revealed that there was no evidence to show that he had a medical condition of incontinence. A registered nurse who reviewed Adom’s file on October 1, 2021, corroborated that conclusion. And when Dr. Ladd examined Adom on December 7, 2021, he observed that there was no indication in Adom’s medical records that incontinence supplies were medically necessary.

Adom has not claimed that the determinations concerning the medical necessity of the original supplies were incorrect. Thus, it is undisputed that, before December 29, 2021, Adom lacked the requisite proof of medical necessity to be eligible for the DME program. Because Adom lacked that proof, he was ineligible for the DME program for a reason unrelated to his disability and was therefore not a “qualified individual” under the ADA. 42 U.S.C. § 12132; see McGary, 386 F.3d at 1265.

Moreover, it was proper for the prison officials to defer to the judgment of medical professionals regarding Adom’s incontinence. As a general matter, a prison is entitled to rely on the judgment of doctors in administering medical supplies. See Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 602 (1999) (“[T]he State generally may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’ for [a program]”). Absent proof that a public institution discriminated invidiously against disabled persons—and Adom has neither offered such proof nor alleged such discrimination—“we will extend judicial deference to the evaluation made by the institution itself” as to whether a person is eligible for a program administered by that institution. Zukle v. Regents of the Univ. of Cal., 166 F.3d 1041, 1048 (9th Cir. 1999) (citation modified). Even if Adom had claimed that these medical determinations were

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incorrect, he could not obtain relief on that basis. Such a claim would conflict with the well-established principle that a disabled person’s disagreement with a doctor’s medical judgment is not redressable by the ADA.4 Second, even if one assumes that Adom was a “qualified individual,” his ADA claim still fails because he was denied access to the DME services not “by reason of his disability” (incontinence), as Title II requires, but because he lacked proof of medical necessity for the original incontinence supplies. See 42 U.S.C. § 12132.

As explained above, the DME program requires a finding of medical necessity, Cal. Code Regs. tit. 15, §§ 3999.390(a), 3999.394(a), (d), and no such finding had been made here. Once Dr. Lotersztain made that finding as to Adom, CDCR provided him with a weekly issue of the original incontinence supplies, which Adom was still receiving as of June 2023. Plainly, the reason Adom did not receive the supplies was the nondiscriminatory reason that he did not meet the eligibility requirements; it was not “by

4 See, e.g., Simmons v. Navajo Cnty., 609 F.3d 1011, 1022 (9th Cir. 2010) (O’Scannlain, J.) (“The ADA prohibits discrimination because of disability, not inadequate treatment for disability.”); Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (Posner, J.) (“the Act would not be violated by a prison’s simply failing to attend to the medical needs of its disabled prisoners.”); Montanez v. Price, 154 F.4th 127, 147 (3d Cir. 2025) (“failure to provide adequate medical care to a disabled inmate does not, on its own, give rise to liability under the ADA”); Carter ex rel. Carter v. City of Shreveport, 144 F.4th 809, 815 (5th Cir. 2025); McDaniel v. Syed, 115 F.4th 805, 825 (7th Cir. 2024); Tardif v. City of New York, 991 F.3d 394, 405 (2d Cir. 2021); A.H. v. St. Louis County, 891 F.3d 721, 729 (8th Cir. 2018); Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 285 (1st Cir. 2006); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005).

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reason of his disability.” 42 U.S.C. § 12132; see also McGary, 386 F.3d at 1265.

The fact that the denial was based on a general rule means that there was no discrimination here. See Buchanan v. Maine, 469 F.3d 158, 174 (1st Cir. 2006) (“Although the ADA does not itself mandate the provision of services, it does prohibit discrimination against the disabled within the services that are provided.”). Adom did not allege that all inmates were given access to diapers except him. Nor did he allege that prisoners without incontinence received diapers, but prisoners with incontinence did not. Therefore, his claim fails. See Hale v. Harrison Cnty. Bd. of Supervisors, 8 F.4th 399, 404 n.† (5th Cir. 2021) (“Hale admits that the denial of his requested accommodations meant he was treated the same as everybody. That admission is fatal to his [ADA] claim . . . .” (citation modified)).

CDCR’s decision to exclude Adom from receiving scarce medical supplies because he did not satisfy the criteria for receiving those supplies did not constitute “discrimination” because of his disability. See, e.g., Snell v. Neville, 998 F.3d 474, 500 (1st Cir. 2021) (“[D]efendants did not exclude [Snell] from participation, in the law library by reason of his disability . . . Snell did not have a medical restriction justifying his use of the first-floor [library entrance].” (citation modified)). Adom did not challenge the lawfulness of the CDCR regulations governing the DME program. He has not alleged that CDCR promulgated the DME regulations to discriminate against disabled people or that CDCR in fact did so discriminate. Nor has Adom claimed that his incontinence made it more difficult for him to submit a request through the DME program. He alleged only that he should have received the original incontinence supplies. But CDCR responded to this allegation with

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substantial evidence that it denied Adom’s requests for the same reason: Adom had not made the requisite showing of medical necessity. If this record is enough to raise a triable issue of fact as to CDCR’s discrimination, then any prisoner who is denied a desired medical treatment pursuant to valid state regulations can challenge that denial under the ADA. That result would be “entirely at odds with the statutory language of Title II and its purpose.” Tardif, 991 F.3d at 405.

In sum, Adom’s ADA claims were legally defective.

The district court correctly found that “the reason the CDCR did not provide him [with incontinence] supplies was that medical professionals determined he did not have a medical need for them.” Adom, 2024 WL 3173294, at *5. The undisputed record demonstrates that CDCR’s decision to suspend incontinence supplies was based on nothing more than its correct assessment that Adom did not meet the generally applicable eligibility standards for the DME program. As a matter of common sense, that sort of decision is not a form of “disability discrimination,” but simply the result of the prison following its neutral regulations regarding the provision of medical supplies.

III

The majority resists this conclusion. Unfortunately, its reasoning does not withstand scrutiny.

To reach its decision, the majority transforms Adom’s ADA claim from one alleging that he was denied DME services, see supra Part II(A), to one alleging that CDCR deprived him of “meaningful access” to “the basic services of toileting and hygiene maintenance.” Majority Op. 18. The majority further unmoors this argument from anything Adom claimed below by construing CDCR’s obligation to 54 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

provide prisoners with “access” to the “services of toileting and hygiene” as an obligation not only to provide physically accessible bathrooms and showers to all prisoners but also to ensure that all prisoners meet an amorphous standard of hygiene. See Majority Op. 20 (stating that “meaningful access to the benefits of toileting and hygiene services may require more than physical access to a toilet, sink, and shower” and guarantees a prisoner a “dignified and hygienic way to manage his bodily functions”). But Adom never raised that argument below, and, in any event, the majority’s proffered interpretation of the ADA is a serious error.

A.

Several issues doom the majority’s argument from the outset.

1.

First, as discussed above, Adom never brought this claim. See supra Part II(A). “Absent exceptional circumstances, we generally will not consider arguments raised for the first time on appeal, although we have discretion to do so.” Baccei v. United States, 632 F.3d 1140, 1149 (9th Cir. 2011). The majority never identifies “exceptional circumstances” that justify its consideration of Adom’s novel “reasonable accommodation” claim. Instead, the majority insists that Adom’s pleadings and filings below did raise this claim, at least when a “liberal construction” is applied to those pleadings. See Majority Op. 22–23.

But it goes well beyond our general rule about liberally construing pro se pleadings to consider this “reasonable accommodation” claim that was never before the district court in any regard. As with “any other litigant, one not represented by counsel can forfeit meritorious grounds by

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failing to raise them.” Justice v. Elrod, 832 F.2d 1048, 1051 (7th Cir. 1987) (Posner, J.). Although Adom raised this issue in his opening brief on appeal, that fact alone does not allow us to analyze a claim that he did not raise below. See Beaudett, 775 F.2d at 1278 (Wilkinson, J.) (explaining that even in the context of pro se plaintiffs, “[w]e will not . . . require the district courts to anticipate all arguments that clever counsel may present in some appellate future. To do so would . . . transform the district court . . . to the improper role of an advocate seeking out the strongest arguments and most successful strategies for a party.”). As the majority itself acknowledges, “[i]n the district court, Adom’s pleadings did not identify ‘toileting and hygiene’ as the relevant ‘services’; rather, they identified only the ‘service’ or ‘program’ of CDCR’s Durable Medical Equipment program, which provides incontinence supplies.” Majority Op. 22. Why the majority does not follow through on the obvious consequences of its observation is anyone’s guess.

The majority, in essence, decides a different case from the one that was before the district court, despite having jurisdiction to review only the final judgment of the district court. 28 U.S.C. § 1291. Remarkably, the majority reaches its decision on the basis that the record before the district court contains triable questions of fact regarding CDCR’s failure to provide a reasonable accommodation. See Majority Op. 13–25. Of course there are disputes of fact about Adom’s novel “reasonable accommodation” claim. CDCR had no idea that Adom was claiming that he was denied the reasonable accommodation of DME supplies to have “meaningful access” to the services of hygiene and cleanliness. Had CDCR known about this claim, it might have proffered evidence about the importance of restricting 56 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

the distribution of DME supplies to cases of medical necessity to demonstrate that Adom’s requested accommodation would be unduly burdensome. It is wrong to penalize CDCR and force it to go to trial because it failed to proffer evidence to rebut a claim that Adom had not raised, and such a result is certainly not required by our precedents that instruct us to provide a “liberal construction” to a pro se plaintiff’s filings.

2.

Second, the majority’s fabricated “reasonable accommodation” claim relies on an unduly broad construction of the duties that are encompassed by a prison’s obligation to provide “meaningful access” to “toileting and hygiene services.” See Majority Op. 17–21.

Under the ordinary and correct understanding of what it means to provide “access” to “toileting and hygiene services,” CDCR did not deprive Adom of such access. Indeed, Adom’s ability to “access” the prison’s toilets is inapposite to his claim that the ADA entitles him to a supply of adult diapers. Adom sought diapers because he could not control his bladder and bowel functions. His need for diapers did not depend on his degree of access to the toilets. And in any event, CDCR did not deny Adom “access” to toilets, showers, or hygiene services. Rather, it is undisputed that CDCR provided Adom with a commode, special shower access, extra linens in case of an incontinence episode, and a procedure for the safe disposal of soiled clothing. These measures enhanced Adom’s “access” to “toileting and hygiene services,” to the extent that such access is germane to Adom’s ADA claim.

To avoid this conclusion, the majority adopts an interpretation of “toileting and hygiene services” that has no

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basis in any precedent or ordinary meaning. Rather than construing a prison’s obligation to provide “access” to “toileting and hygiene services” as requiring the prison to provide physically accessible bathrooms and showers, an understanding that is taken for granted in many cases,5 the majority concludes that a prison must provide every prisoner with the means to achieve some unstated standard of cleanliness. In the majority’s view, a prison does not discharge its obligation to provide “access” to toilets and hygiene services unless every inmate has a “dignified and hygienic way to manage his bodily functions.” Majority Op. 20; see also id. (explaining that CDCR’s accommodation did not provide Adom “meaningful access” to these services because Adom could not “accomplish toileting and hygiene with ease and dignity comparable to that enjoyed by the rest of the inmate population”). One could be forgiven for wondering from where this standard of a “dignified way to manage [one’s] bodily functions” originates, and the majority does not provide a clear answer. The majority opinion is similarly bereft of any guidance on how lower courts are to evaluate this new class of ADA claim in which

5 See, e.g., Armstrong v. Schwarzenegger, 622 F.3d 1058, 1068 (9th Cir. 2010) (explaining that prisons “provide such individuals with various [services],” including “the use of toilet and bathing facilities”); McDaniel, 115 F.4th at 831 (“If a prisoner could not access a toilet because the bathroom could not accommodate a wheelchair, for instance, that could present potential issues under the ADA”); United States v. Georgia, 546 U.S. 151, 155–57 (2006) (an ADA violation was “quite plausible” where a paraplegic inmate alleged “that the lack of accessible facilities rendered him unable to use the toilet and shower without assistance”); Furgess v. Pa. Dep’t of Corr., 933 F.3d 285, 291 (3d Cir. 2019) (using the term “accessible showers” to describe showers that a paraplegic inmate could access).

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a plaintiff alleges that a public entity failed to provide him with sufficiently “dignified” access to a public service.

The majority also ignores that its classification of Adom’s requested incontinence supplies as a form of “toileting and hygiene services” conflicts with CDCR’s own regulations and administrative guidance. A CDCR regulation provides that “[h]ygiene supplies shall not be considered medical supplies or Durable Medical Equipment.” Cal. Code Regs. tit. 15, § 3999.393(a). CDCR’s “Durable Medical Equipment and Medical Supply Formulary,” promulgated in 2019, identifies “[d]isposable diapers,” “[d]isposable washcloths,” and “[c]leaning wipes” as “incontinence supplies” and classifies them as “medical supplies” that require a showing of medical necessity. CDCR Formulary, supra, at 107. Because these incontinence supplies are “medical supplies,” they cannot be “hygiene supplies.” See Cal. Code Regs. tit. 15, § 3999.393(a). For his part, Adom understood that he was seeking “medical” supplies. Hence, when Adom sought to reinstate the provision of the incontinence supplies, he did so by filing “Health Care Services Request Forms” and “Health Care Grievance Forms” with the prison and requesting the supplies from several prison doctors and nurses; he did not couch his requests as seeking greater access to toilets or hygiene services. In sum, it is odd to adopt an interpretation of “toileting and hygiene services” that is contrary to the ordinary meaning of the term, conflicts with state regulations, and indeed conflicts with Adom’s actual claims. The majority fails to justify this approach.

B.

Even if we analyze the merits of the claim that CDCR violated the ADA because it failed to provide Adom with

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“meaningful access” to “toileting and hygiene services,” that claim fails.

The regulations implementing Title II of the ADA provide that a public entity “shall make reasonable modifications . . . unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i). A “reasonable” accommodation is one that “does not require an organization to make fundamental or substantial alterations to its programs.” Mark H. v. Hamamoto, 620 F.3d 1090, 1098 (9th Cir. 2010) (citation modified).

Here, the requested accommodation would fundamentally alter the nature of prison services, so it is not reasonable. The proposed accommodation would require the prison to disregard its generally applicable regulations for allocating medical supplies. The validity of these regulations is not at issue. But under the majority’s proposed “accommodation,” the prison would be required to ignore the requirement of medical necessity and give Adom incontinence supplies through the DME program. Contra Cal. Code Regs. tit. 15, §§ 3999.390(a), 3999.394(a), (d). An accommodation that forces the public institution to disregard its generally applicable eligibility criteria for a limited benefit is not “reasonable.”

Moreover, we have recognized that courts evaluating ADA claims must defer to a prison’s assessment of institutional-management needs. Pierce v. Cnty. of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008) (“[A] court [may] consider, with deference to the expert views of facility administrators, a detention or correctional facility’s legitimate interests (namely, in ‘maintaining security and 60 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

order’ and ‘operating [an] institution in a manageable fashion,’) when determining whether a given accommodation is reasonable.” (quoting Bell v. Wolfish, 441 U.S. 520, 540 n.23 (1979))). That deference applies with great force to the present case. Medical supplies are among the many scarce resources that a prison must allocate among beneficiaries. Recognizing that it would be unfortunate to run out of medical supplies, CDCR promulgated a set of regulations mandating that medical supplies be given only upon a finding of medical necessity. Cal. Code Regs. tit. 15, §§ 3999.390(a), 3999.394(a), (d). Adom’s requested accommodation would force CDCR to disregard these regulations. Therefore, Adom cannot show that his requested accommodation would be “reasonable.”

At the end of the day, Adom argued that he was denied supplies through the DME program because of his incontinence. The record leaves no doubt that Adom was denied DME supplies because he had no proof at that time that the supplies were medically necessary. That determination was correct, and disregarding it would have caused CDCR to violate binding regulations. The ADA does not override a public entity’s validly promulgated regulations. So, Adom has no viable ADA claim.

IV

That should have been enough to affirm the district court’s order granting summary judgment as to all counts. But even if one accepts the majority’s erroneous treatment of Adom’s eligibility for injunctive relief under the ADA, the majority should not have compounded that error by holding that there was a triable issue of fact as to whether CDCR had acted with deliberate indifference toward Adom.

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A.

“[C]ompensatory damages are not available under Title II . . . absent a showing of discriminatory intent.” Updike v. Multnomah Cnty., 870 F.3d 939, 949 (9th Cir. 2017) (quoting Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998)). To show intentional discrimination, a plaintiff must show that a defendant acted with deliberate indifference. Id. at 950–51. That standard requires a plaintiff to show (1) that he “alerted the public entity to his need for accommodation” or that the need was “obvious” and (2) that the entity failed to act and that the failure was the “result of conduct that is more than negligent, and involves an element of deliberateness.” Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1139 (9th Cir. 2001). Deliberate indifference is a “high bar.” Csutoras v. Paradise High Sch., 12 F.4th 960, 966 (9th Cir. 2021).6 Adom did not raise a triable issue of fact as to whether CDCR or any member of the prison’s medical staff acted with deliberate indifference in suspending his incontinence

6 The majority asserts in a footnote that “‘deliberate indifference’ in the context of Title II . . . is a different standard from the deliberate indifference standard applicable to the Eighth Amendment.” Majority Op. 26 n.10. There is no reason to decide this issue, which was not briefed and is not necessary to the majority’s decision. And in any event, the majority’s assertion is incorrect. We have never held that “deliberate indifference” means something different under Title II from what it means under the Eighth Amendment. To the extent that Title II permits proof of deliberate indifference in more varied ways than the Eighth Amendment does, that difference merely reflects the fact that Title II applies to a multitude of settings (schools, public parks, sidewalks, etc.), whereas the Eighth Amendment applies only to the setting of custodial detention.

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supplies. Although this point is explained at length above, see supra Part III(A), a few matters bear repeating.

First, CDCR suspended Adom’s incontinence supplies because there was no indication in Adom’s medical records that they were medically necessary. That is a nondiscriminatory reason to suspend the supplies. Second, CDCR reinstated the supplies once Adom obtained a medical opinion that they were medically necessary, further showing that the initial denial was for a legitimate medical reason, not a discriminatory one. Third, CDCR was responsive to Adom’s repeated requests for incontinence supplies. CDCR arranged for Adom to meet with doctors who prescribed medication for his incontinence. Prison staff also arranged for Adom to receive extra linens and to have priority access to showers. In sum, CDCR did not ignore Adom’s obvious needs and thus did not act with deliberate indifference. Summary judgment was appropriate because, even with all reasonable inferences drawn in Adom’s favor, he could not show anything close to deliberate indifference.

B.

To conclude otherwise, the majority makes several questionable logical jumps. But “mere allegation and speculation” do not create a genuine dispute of material fact. Nelson v. Pima Cmty. Coll., 83 F.3d 1075, 1081–82 (9th Cir. 1996).

First, the majority asserts that a trier of fact could “infer deliberateness” from CDCR’s “abrupt termination” of Adom’s incontinence supplies in September 2021. Majority Op. 27. Although the September 2021 termination may have been “abrupt,” it was not arbitrary or unreasoned. Adom began receiving incontinence supplies through the DME program in December 2020. When Adom was transferred in

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August 2021, prison officials had occasion to review his accommodation. Upon finding that there was, to quote the prison’s official report, “no corroborating data, information, or diagnosis found in [Adom’s] health record to indicate such supplies were medically necessary,” the prison terminated his incontinence supplies. What the majority characterizes as an “abrupt termination” was just the ordinary cessation of incontinence supplies after prison officials determined that Adom’s receipt of them violated state regulations. See Cal. Code Regs. tit. 15, § 3999.390(a). Hardly the stuff of deliberate indifference.

The majority suggests that CDCR should have conducted a more thorough investigation of Adom’s medical condition before discontinuing the supplies. See Majority Op. 28 (“It is unlikely that an investigation is ‘adequate’ when the public entity fails to gather new information before terminating a prior accommodation.”). Even if CDCR should have investigated Adom’s medical condition further, “should . . . is the language of negligence, arguments about what a reasonably prudent person would have done . . . and we know that cannot be the basis of deliberate indifference.” Koon v. North Carolina, 50 F.4th 398, 409 (4th Cir. 2022).

Second, the majority faults the prison’s Reasonable Accommodations Panel (the “Panel”) for providing only a brief written explanation of its decision to deny Adom’s request for incontinence supplies. See Majority Op. 28 (“When the [Panel] denied Adom’s request for diapers on October 14, it noted only that ‘there was no indication found for incontinence supplies.’”). The majority infers from this laconic response that the Panel rejected “Adom’s preferred accommodation without investigating whether the preferred accommodation was reasonable and feasible,” which, in the 64 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

majority’s view, creates a triable issue of fact as to whether CDCR acted with deliberate indifference. Majority Op. 28.

The majority’s conclusion is baffling. When the Panel inspected Adom’s medical record and found “no indication” that incontinence supplies were medically necessary, the Panel was entitled to conclude that Adom’s requested accommodation was not authorized and therefore had to be denied. Indeed, to “investigate” further would have risked substituting the lay judgment of the Panel members for the professional judgment of the various nurses and doctors who had examined Adom. The members of the Panel were reluctant to do so. As the prison’s ADA coordinator explained, “I am not a medical doctor. Incontinence is a medical issue and I defer to the medical staff.” There is nothing improper, let alone deliberately indifferent, about non-doctors deferring to professional judgment on medical issues. Hence, the Supreme Court has held that a public institution “may rely on the reasonable assessments of its own professionals in determining whether an individual ‘meets the essential eligibility requirements’” for a public program, Olmstead, 527 U.S. at 602, and that “courts normally should defer to the reasonable medical judgments of public health officials,” Sch. Bd. of Nassau County v. Arline, 480 U.S. 273, 288 (1987). CDCR codified this principle in its various regulations that require DME supplies to be distributed only when “medically necessary.” Cal. Code Regs. tit. 15, §§ 3999.390(a), 3999.394(a), (d).

Moreover, the Panel’s decision was correct. Adom’s medical records contained no indication of medical necessity. The Panel would have violated CDCR regulations if it had provided Adom with incontinence supplies. By beginning (and ending) its review of Adom’s request with an inquiry into Adom’s medical records, the Panel did nothing

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more than adhere to its established practices of deferring to medical expertise and complying with state regulations. That conduct does not support a reasonable inference that the Panel acted with deliberate indifference.

Third, the majority concludes that the three-week interval between Dr. Lotersztain’s order and Adom’s receipt of the incontinence supplies creates a triable issue of deliberate indifference. Majority Op. 29–30.

Dr. Lotersztain entered Adom’s order for incontinence supplies as “high-priority,” which meant that the supplies should have been delivered within two weeks. Cal. Code Regs. tit. 15, § 3999.390(c)(3). The supplies were delivered “maybe three weeks” later, according to Adom’s deposition testimony. But that short delay does not create a triable dispute of fact as to whether CDCR acted with deliberate indifference. Adom has not alleged that CDCR or any official acted intentionally to deny him the timely provision of his medical supplies, which is what he must do to create a triable issue of fact on this ADA claim for damages. See Updike, 870 F.3d at 949 (“[C]ompensatory damages are not available under Title II . . . absent a showing of discriminatory intent.”). The record demonstrates only that, after several weeks of defective requests for incontinence supplies, Dr. Lotersztain ordered that Adom receive the supplies within two weeks, and those supplies arrived “maybe” three weeks later (perhaps before then).

We have long recognized that “bureaucratic slippage . . . constitutes negligence rather than deliberate action or inaction,” and thus does not satisfy the deliberate indifference standard. Duvall, 260 F.3d at 1139; see Ferguson v. City of Phoenix, 157 F.3d 668, 675 (9th Cir. 1998) (events caused by “bureaucratic inertia” meant that 66 ADOM V. CA DEPT. OF CORRECTIONS AND REHABILITATION

“[t]here is nothing to show, [or] even suggest, any deliberate indifference or discriminatory animus[.]”). If a “maybe” one-week delay is not “bureaucratic slippage,” then that term has no meaning. Id. Given that Adom made no allegation that an official acted nefariously to delay the provision of his supplies, any inference of deliberate indifference amounts to “mere allegation and speculation,” which does not create a genuine dispute of fact for purposes of summary judgment. Nelson, 83 F.3d at 1081–82; see Tardif, 991 F.3d at 407 (“[The] unexplained failure to provide medication, by itself, does not allow for a reasonable inference that it was ‘by reason of’ the individual’s disability. . . . [I]t is not the City’s burden to proffer a justification for the delay or denial where the record is otherwise silent.”).

CDCR suspended Adom’s original incontinence supplies for the nondiscriminatory reason that there was no indication in Adom’s medical records that incontinence supplies were medically necessary, so he was ineligible to receive these supplies under state regulations. That fact alone forecloses Adom’s ADA claim for damages. Indeed, the record demonstrates that prison officials granted Adom various incontinence accommodations that, unlike the DME supplies, were within their power to grant. Far from being deliberately indifferent to Adom, CDCR was responsive to his incontinence needs. And once Adom obtained a medical opinion establishing medical necessity, CDCR resumed providing his supplies. The record therefore presents no triable issue of fact concerning CDCR’s deliberate indifference.

* * *

The majority constructs an argument for Adom that he did not raise below and adopts an interpretation of the ADA

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that will have far-reaching consequences for how institutions can manage the distribution of scarce medical resources. For good measure, the majority gleans a triable issue of fact regarding the prison’s deliberate indifference based on its own sheer speculation. Under our well-established ADA precedents and the statute’s plain meaning, and as a matter of common sense, we should have affirmed the district court’s judgment. Therefore, I respectfully dissent.