Doe One v. CVS Health Corporation

• Court: District Court, N.D. California
• Decided: July 28, 2023
• Docket: 3:18-cv-01031
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JOHN DOE ONE, et al., Case No. 18-cv-01031-EMC

8 Plaintiffs, ORDER GRANTING PLAINTIFFS’ 9 v. MOTION TO AMEND, AND DENYING DEFENDANTS’ MOTION TO DISMISS 10 CVS PHARMACY, INC., et al., Docket Nos. 208, 212, 219 11 Defendants.

12 13 I. INTRODUCTION 14 15 Before the Court are Plaintiffs’ motion to file a third amended complaint and Defendants’ 16 motion to dismiss the second amended complaint as moot. Plaintiffs allege disability 17 discrimination based on being required by their health plan to enroll in a mail-order prescription 18 program. This case was remanded by the Ninth Circuit after it revived Plaintiffs’ disability 19 discrimination cause of action under the Affordable Care Act, and Plaintiffs’ Unfair Competition 20 Law claim to the extent it relied on a violation of the ACA. The Supreme Court granted cert, but 21 Petitioners—Defendants here—withdrew their cert petition before oral argument. 22 For the reasons set forth below, Plaintiffs’ motion to amend is GRANTED, and 23 Defendants’ motion to dismiss is DENIED without prejudice. 24 II. BACKGROUND 25 Does 1-5 filed their initial complaint alleging, inter alia, disability discrimination under the 26 Affordable Care Act. This Court dismissed their complaint, and the Ninth Circuit affirmed the 27 dismissal except as to their ACA claim, which it revived. The Ninth Circuit held that Plaintiffs 1 including medically appropriate dispensing of their medications and access to necessary 2 counseling.” Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1211 (9th Cir. 2020). The Supreme 3 Court granted cert on the limited question of whether the ACA provides a disparate impact cause 4 of action for plaintiffs alleging disability discrimination, but the parties withdrew the case after 5 briefing but before oral argument. CVS Pharmacy, Inc. v. Doe, 210 L. Ed. 2d 990, 141 S. Ct. 6 2882, 2883 (2021). 7 In the intervening time, Does 2-4 have passed away, Doe 5 was dismissed for failure to 8 prosecute, and Doe 1 is no longer enrolled in the challenged program. Does 3 and 4 were 9 voluntarily dismissed from the case after their deaths, but Doe 1 and the estate of Doe 2 remain. 10 Defendants seek to dismiss this case as moot, arguing that Plaintiffs no longer have standing to 11 seek an injunction. Plaintiffs counter with a motion to amend their complaint to add Doe 6, who 12 they contend is enrolled in the mail-order prescription program, and to clarify their claim for 13 damages in addition to injunctive relief. Defendants claim that Doe 6 is enrolled in the mail-order 14 prescription program, but that he is not required to receive his HIV/AIDS medication through the 15 program and therefore would also not have standing to challenge the program on the basis of 16 HIV/AIDS disability discrimination. 17 III. LEGAL STANDARD 18 A. Motion to Amend 19 A party may amend a pleading once as a matter of course within twenty-one days after 20 serving it. Fed. R. Civ. P. 15(a)(1). Thereafter, amendment is only allowed after obtaining leave 21 of the court, or by consent of the adverse party. Fed. R. Civ. P. 15(a)(2). Generally, Rule 15 22 advises the court that “leave shall be freely given when justice so requires.” Id. However, “the 23 grant or denial of a subsequent opportunity to amend is within the discretion of the District Court.” 24 Foman v. Davis, 371 U.S. 178, 182 (1962). In determining whether leave should be granted 25 pursuant to a District Court’s discretion, the Supreme Court has stated that:

26 [i]n the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, 27 repeated failure to cure deficiencies by amendments previously sought should, as the rules require, be “freely given.” 1 2 Id. 3 In the Ninth Circuit, the above listed factors—often referred to as the Foman factors—are 4 not weighted equally. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051–52 (9th Cir. 5 2003) (citing DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185 (9th Cir. 1987)). Rather, courts 6 have held that “the crucial factor is the resulting prejudice to the opposing party.” Howey v. 7 United States, 481 F.2d 1187, 1190 (9th Cir. 1973). However, a motion may be denied on 8 grounds of futility of the proposed amendments irrespective of prejudice. See generally Hoang v. 9 Bank of Am., N.A., 910 F.3d 1096, 1103 (9th Cir. 2018); see also Ecological Rights Found. v. Pac. 10 Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013). 11 B. Motion to Dismiss 12 Under Rule 12(b)(1), a party may move to dismiss for lack of subject matter jurisdiction. 13 “[L]ack of Article III standing requires dismissal for lack of subject matter jurisdiction under 14 [Rule] 12(b)(1).” Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir. 2011). The “irreducible 15 constitutional minimum” of standing requires that a “plaintiff must have (1) suffered an injury in 16 fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to 17 be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins (“Spokeo II”), 136 S. Ct. 18 1540, 1547 (2016). These three elements are referred to as, respectively, injury-in-fact, causation, 19 and redressability. Planned Parenthood of Greater Was. & N. Idaho v. U.S. Dep’t of Health & 20 Human Servs., 946 F.3d 1100, 1108 (9th Cir. 2020). “The plaintiff, as the party invoking federal 21 jurisdiction, bears the burden of establishing these elements,” which at the pleadings stage means 22 “clearly . . . alleg[ing] facts demonstrating each element.” Spokeo II, 136 S. Ct. at 1547 (quoting 23 Warth v. Seldin, 422 U.S. 490, 518 (1975)). 24 A Rule 12(b)(1) jurisdictional attack may be factual or facial. See Safe Air for Everyone v. 25 Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). “In a facial attack, the challenger asserts that the 26 allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction.” 27 Id. The court “resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): 1 favor, the court determines whether the allegations are sufficient as a legal matter to invoke the 2 court’s jurisdiction.” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 3 “[I]n a factual attack, the challenger disputes the truth of the allegations that, by 4 themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 5 1038. In resolving such an attack, unlike with a motion to dismiss under Rule 12(b)(6), the Court 6 “may review evidence beyond the complaint without converting the motion to dismiss into a 7 motion for summary judgment.” Id. Moreover, the court “need not presume the truthfulness of 8 the plaintiff’s allegations.” Id. 9 Either way, “it is within the trial court’s power to allow or to require the plaintiff to supply, 10 by amendment to the complaint or by affidavits, further particularized allegations of fact deemed 11 supportive of plaintiff’s standing.” Warth, 422 U.S. at 501; see also Table Bluff Reservation 12 (Wiyot Tribe) v. Philip Morris, Inc., 256 F.3d 879, 882 (9th Cir. 2001) (in assessing standing, the 13 court may consider “the complaint and any other particularized allegations of fact in affidavits or 14 in amendments to the complaint”). 15 IV. DISCUSSION 16 A. Motion to Amend 17 “[A] plaintiff must demonstrate standing separately for each form of relief sought[.]” 18 Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 185 19 (2000). Plaintiffs seek to amend their complaint in order to add Doe 6, who they contend has 20 standing to seek injunctive relief as to the Caremark-administered health plan they challenge. 21 They also seek to amend their complaint to “clarify” their allegations seeking monetary 22 compensation, for which Doe 1 would have standing. 23 Defendants argue that these amendments are untimely and futile, and that the Court should 24 instead dismiss the Second Amended Complaint as moot. They argue that none of the current 25 Plaintiffs, including proposed new Plaintiff Doe 6, is enrolled in the challenged program, and 26 therefore cannot seek injunctive relief. They also argue that no cause of action available to 27 Plaintiffs would allow them to seek monetary damages. 1 1. Prejudice to Defendants 2 The Ninth Circuit has made clear that the most important factor for this Court to consider 3 when granting leave to amend is the resulting prejudice to Defendants, but that this Court may also 4 deny such a motion upon a finding of futility. See Howey v. United States, 481 F.2d at 1190 and 5 Hoang v. Bank of Am., N.A., 910 F.3d at 1103. 6 The only prejudice Defendants raise as a result of Plaintiffs’ alleged delay in seeking to 7 amend their complaint is the costs Defendants have incurred to litigate this case. Defendants 8 argue that they have expended substantial resources litigating this case over the last five years, 9 including a Ninth Circuit appeal, and a Supreme Court certiorari process and merits briefing. 10 The Writ of Certiorari was dismissed on November 21, 2021. See U.S. Supreme Court, 11 Docket No. 20-1374: CVS Pharmacy, Inc. v. Doe. Doe Four was enrolled in the Caremark 12 program until January 2022. Jones Decl. ¶ 6. Plaintiffs sought a stipulation to file an amended 13 complaint in February 2023, after approximately one year had elapsed. While this does constitute 14 some delay, Defendants have not sufficiently alleged that they were prejudiced by the delay aside 15 from the general burdens of litigating the case. Such burden above is insufficient to establish 16 prejudice which would preclude amendment. Plaintiffs also state that they are prepared to provide 17 responses to the discovery Defendants previously served on the other named Plaintiffs as to John 18 Doe Six to limit the any further delay. 19 2. Judicial Notice 20 In support of their futility argument, Defendants seek that the Court take judicial notice of 21 letters incorporated by reference in Plaintiffs’ proposed Third Amended Complaint, as well as a 22 declaration by an employee of Caremark, LLC, who apparently investigated Doe Six’s enrollment 23 status. Declaration of J. Ramon Vickman, Docket No. 215-1. 24 Plaintiffs object.1 Docket No. 221. “Generally, the scope of review on a motion to dismiss 25 for failure to state a claim is limited to the contents of the complaint.” Id. (quoting Marder v. 26 1 Defendants urge that this “objection” is procedurally improper, as the local rules require “Any 27 evidentiary . . . objections” to a motion or opposition “must be contained within the [opposition] 1 Lopez, 450 F.3d 445, 448 (9th Cir. 2006)). This is not true where, as here, Defendants bring a 2 factual attack under Rule 12(b)(1). See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th 3 Cir. 2004). “[I]n a factual attack, the challenger disputes the truth of the allegations that, by 4 themselves, would otherwise invoke federal jurisdiction.” Safe Air for Everyone, 373 F.3d at 5 1038. In resolving such an attack, unlike with a motion to dismiss under Rule 12(b)(6), the Court 6 “may review evidence beyond the complaint without converting the motion to dismiss into a 7 motion for summary judgment.” Id. Moreover, the court “need not presume the truthfulness of 8 the plaintiff’s allegations.” Id. Accordingly, it is appropriate for this Court to consider both 9 parties’ evidence relating to this jurisdictional dispute. It does so because of the factual attack on 10 the complaint. It need not resort to judicial notice. 11 3. Futility 12 In determining whether amendment would be futile, the court examines whether the 13 complaint could be amended to cure the defect requiring dismissal “without contradicting any of 14 the allegations of [the] original complaint.” Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 15 Cir. 1990). The alleged futility of these amendments turns on (1) Doe Six’s standing to seek 16 injunctive relief in this case, and (2) whether the law of the case and the mandate rule prevent 17 Plaintiffs from adding an intentional discrimination cause of action under the ACA, in order for 18 Plaintiffs to seek monetary damages. 19 B. Doe Six’s Standing for Injunctive Relief 20 Defendants argue that Doe Six is not enrolled in the Program because his employer, Cisco, 21 has opted to allow its employees to receive their HIV/AIDS medication in person at community 22 pharmacies rather than through the mail. Doe Six submits a declaration asserting that he never 23 received notice that he was exempted from the program. Docket No. 220-1 at ¶¶ 2-5. At the 24 hearing on June 22, 2023, counsel for Plaintiffs explained that Doe Six has been unable to verify 25 whether he is indeed permitted to receive his medications in person because he can only pick up 26 his medication in 90-day batches, and his current 90-day supply has not yet been depleted. 27 In light of the counterfactual presented by the Defendants in the Vickman declaration and 1 challenged program. If Doe Six cannot do so consistent with Rule 11, he likely will not have 2 standing to such injunctive relief. 3 1. Amendment to Seek Monetary Damages 4 Plaintiffs also seek leave to amend their complaint to “clarify their allegations of financial 5 harm and intentional discrimination” with respect to their § 1557 claim. MTA at 1. This is 6 because monetary damages are available only when a plaintiff alleges intentional discrimination. 7 See Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 74–75 (1992). 8 In reviving Plaintiffs’ § 1557 claim, the Ninth Circuit clarified that § 1557 “does not create 9 a new healthcare-specific anti-discrimination standard.” Doe v. CVS Pharmacy, Inc., 982 F.3d 10 1204, 1210 (9th Cir. 2020). Instead, “[b]ecause Does claim discrimination on the basis of their 11 disability, to state a claim for a Section 1557 violation, they must allege facts adequate to state a 12 claim under Section 504 of the Rehabilitation Act.” Id.; see also Schmitt v. Kaiser Found. Health 13 Plan of Washington, 965 F.3d 945, 954 n.6 (9th Cir. 2020) (applying § 504 damages remedy 14 standard to disability discrimination claims under § 1557). 15 Plaintiffs argue that under § 504, monetary damages are available when a plaintiff alleges 16 intentional discrimination through a theory of deliberate indifference. See Mark H. v. Lemahieu, 17 513 F.3d 922, 938 (9th Cir. 2008) (A defendant “can be liable for damages under § 504 if it 18 intentionally or with deliberate indifference fails to provide meaningful access or reasonable 19 accommodation to disabled persons.”). Consequently, plaintiffs seek to amend their complaint in 20 order to clarify their theory of deliberate indifference. 21 a. Mandate Rule 22 Defendants contend that this amendment is barred by the law of the case doctrine and the 23 mandate rule because, they argue, this Court already disposed of the intentional discrimination 24 causes of action, and the Ninth Circuit affirmed that decision. Under the mandate rule, “a mandate 25 is controlling as to all matters within its compass, while leaving any issue not expressly or 26 impliedly disposed of on appeal available for consideration by the trial court on remand.” 27 Burnham v. United States, 544 F. App’x 660, 661 (9th Cir. 2013) (quoting Firth v. United States, 1 In dismissing Plaintiffs’ First Amended Complaint, this Court found that Plaintiffs had 2 failed to plausibly allege intentional discrimination in support of their Unruh Act claim, because a 3 claim for intentional discrimination would require “willful, affirmative misconduct . . . more than 4 the disparate impact of a facially neutral policy.” Doe One v. CVS Pharmacy, Inc., 348 F. Supp. 5 3d 967, 982 (N.D. Cal. 2018), aff’d in part, vacated in part, remanded sub nom. Doe v. CVS 6 Pharmacy, Inc., 982 F.3d 1204 (9th Cir. 2020) (quoting Greater Los Angeles Agency on Deafness, 7 Inc. v. Cable News Network, Inc., 742 F.3d 414, 425 (9th Cir. 2014). This Court wrote that any 8 allegations of intentional discrimination “[were] undermined by references in the complaint to 9 instances where CVS made accommodations or assisted Plaintiffs in accessing their prescription 10 drug benefits.” Id. 11 This Court addressed only intentional discrimination in contrasting it to a disparate impact 12 theory. It did not address deliberate indifference as a basis for asserted discrimination. Notably, 13 the Ninth Circuit held that Plaintiffs adequately alleged lack of meaningful access to their 14 prescription drug benefits. In doing so, the Ninth Circuit wrote of the Supreme Court’s decision in 15 Choate: “[r]ather than try to classify particular instances of discrimination as intentional or 16 disparate-impact, the Court focused on whether disabled persons had been denied ‘meaningful 17 access’ to state-provided services. Doe v. CVS Pharmacy, Inc., 982 F.3d 1204, 1210 (9th Cir. 18 2020) (quoting Alexander v. Choate, 469 U.S. 287, 302 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)). 19 This Court may take action consistent with or not covered by the Ninth Circuit’s mandate. 20 Neither this Court nor the Ninth Circuit previously considered a deliberate indifference theory of 21 discrimination in this action. Moreover, such a theory does not contradict the Ninth Circuit’s 22 mandate in reviving Plaintiffs’ disability discrimination cause of action. Accordingly, the 23 mandate rule does not bar this Court from granting Plaintiffs leave to amend to clarify their 24 allegations in support of their deliberate indifference theory. See United States v. Kellington, 217 25 F.3d 1084, 1093 (9th Cir. 2000) (“lower court free to grant plaintiff leave to amend on remand 26 where case was left open by the opinion and mandate of this court, and by the general rules of 27 practice in equity”) (internal quotation and citation omitted). 1 b. Deliberate Indifference 2 The Ninth Circuit has held “that plaintiffs must prove a mens rea of “intentional 3 discrimination,” to prevail on a § 504 claim, but that this standard may be met by showing 4 “deliberate indifference,” and not only by showing “discriminatory animus.” Mark H. v. 5 Lemahieu, 513 F.3d 922, 938 (9th Cir. 2008) (citing Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 6 1138 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 2001)). “Deliberate indifference 7 requires both [1] knowledge that a harm to a federally protected right is substantially likely, and 8 [2] a failure to act upon that [] likelihood.” 2 Duvall, 260 F.3d 1124, 1139 (9th Cir. 2001) (internal 9 citation omitted). “When the plaintiff has alerted the public entity to his need for accommodation 10 (or where the need for accommodation is obvious, or required by statute or regulation), the public 11 entity is on notice that an accommodation is required, and the plaintiff has satisfied the first 12 element of the deliberate indifference test.” Id. 13 The viability of Plaintiffs’ deliberate indifference claim at this juncture turns on whether 14 Defendants were on notice of the need for accommodation in order to afford meaningful access. 15 There are four sources of information on which Plaintiffs base their claim that Defendants were on 16 notice that a harm to a federally protected right was likely. First, Doe Six attempted to opt out of 17 the Program through letters to his employer and the care plan and calls to claims representatives. 18 Second, Doe Two made complaints to several regulators. Third, Plaintiffs allege that Defendants 19 were aware that other health insurers had settled similar litigation seeking opt-out of mandatory 20 mail order requirements for patients living with HIV/AIDS because those other cases were widely 21 publicized in the media. Fourth, Plaintiffs allege that the parties in this case were involved in 18 22 months of negotiations prior to the institution of this litigation. These are discussed in turn. 23 i. Plaintiffs’ Attempts to Contact Defendants 24 Defendants asserted at the hearing that in order for Plaintiffs to state a claim for deliberate 25 indifference, Plaintiffs must demonstrate that high-level decisionmakers at CVS and Caremark 26

27 2 The second prong of this test can be satisfied by a finding of failure to provide reasonable 1 were made aware of the access issues before the plan was created, because once the program was 2 in place it could no longer be changed by CVS. At the same time, they argue that informing 3 claims representatives of the problem would not be sufficient to provide notice to decisionmakers 4 because those complaints would never be filtered up to high-level executives at the companies. 5 But this raises a question of fact that cannot be resolved on a motion to dismiss. Moreover, “the 6 doctrine of respondeat superior is applicable to claims based on § 504 which are brought 7 independently of § 1983.” Bonner v. Lewis, 857 F.2d 559, 567 (9th Cir. 1988). Thus, notice to 8 claims representatives would be imputed to decisionmakers. 9 In addition to the imputation issue, Defendants contend that Doe Six’s letters were vague 10 and failed to alert Defendants to a serious problem with respect to patients’ access to HIV 11 medication. In his four-paragraph letter, Doe Six wrote that he sought to opt-out of the mandatory 12 mail-order program for his “specialty medications” but did not specify that these prescriptions 13 were for HIV/AIDS medications, nor the compelling need to opt out. Docket No. 215-4, Exs. 3 14 (Ltr. of Nov. 4, 2022) & Docket No. 214-5 (Ltr. of Dec. 2, 2022)). His stated reason for his opt- 15 out request was that “[he] travel[s] extensively for work, including extended trips outside the 16 country, and being forced to get [his] medications either by mail or pick-up at CVS Pharmacy 17 causes significant challenges to [his] ability to meet [his] travel and work obligations.” Id. He 18 goes on to explain that this process causes him stress because he is concerned about his 19 medications being misdelivered, “which would result in a serious breach of [his] medical privacy” 20 and that he takes the medication on a “strict schedule.” Id. 21 As to Plaintiffs’ phone communications with claims representatives, Defendants claim that 22 such communications do not filter up to the health plan decisionmakers, and that failed to provide 23 “notice” to Defendants. Plaintiffs counter that they took the only steps available to them to 24 communicate their situation, and that any failure of the Defendant to receive such communications 25 was by design. 26 It is not clear from the record what was communicated to the claims representatives. For 27 example, “[Doe One] called CVS Caremark and spoke to a representative. [Doe One] demanded to 1 had to get his prescriptions through the Program if he wanted his medication, or else pay out-of- 2 pocket.” TAC ¶ 23. Doe Two requested a “patient advocate,” who was often too busy to assist 3 him. Id. ¶ 36. Plaintiffs have plausibly alleged the existence of notice to Defendants but have not 4 sufficiently described the contents of that notice. Accordingly, this Court cannot assess the 5 adequacy of that notice based upon the pleadings currently before the Court. Plaintiffs should 6 have leave to amend. 7 ii. Complaints to Regulators 8 Doe Two also “filed complaints with the California State Board of Pharmacy and the U.S. 9 Department of Justice, Civil Rights Division, around [February 2016], seeking assistance with 10 accessing his prescription drug benefit administered by CVS Caremark. In these complaints, [Doe 11 Two] detailed his health and privacy concerns with the Program because of his disability. An 12 inspector with the California State Board of Pharmacy subsequently contacted a director-level 13 employee of CVS Health concerning [Doe Two’s] problems with accessing his prescription drug 14 benefit under the Program. Defendants ultimately took no corrective action concerning [Doe 15 Two’s] problems accessing his prescription drug benefit following these complaints. Id. ¶ 44. 16 These complaints could provide a sufficient basis for Defendants’ knowledge of the access 17 problem. 18 iii. Litigation Against Other Insurers 19 Plaintiffs cite “widely publicized litigation alleging that mandatory, mail-order-only 20 programs (like the Program here) violated the federal rights of people living with HIV.” Proposed 21 Third Amended Complaint (“TAC”) Docket No. 213-2 ¶ 124. Plaintiffs cite three articles in their 22 Third Amended Complaint, which are suitable for judicial notice as their authenticity is not 23 disputed.3 These articles are probative of Defendants’ knowledge. 24 iv. The Parties’ Negotiations 25 At the hearing on June 22, counsel for Plaintiffs asserted that the parties in this suit were 26 3 United Healthcare Allows Opt-Out of Mail-Order HIV Meds, Poz.com (Sept. 11, 2014), 27 https://tinyurl.com/29nes6sw; Anthem, Inc. Health Plans Expand Access to HIV/AIDS Specialty 1 involved in negotiations for 18 months, at which time high-level members of Defendants’ entities 2 were informed of the dispute in detail. This could state a plausible claim of Defendants’ 3 knowledge. However, these negotiations are not referenced in the proposed third amended 4 complaint. 5 2. Conclusion 6 Plaintiffs have demonstrated that amendment would not be futile, and in light of Ninth 7 Circuit precedent favoring leave to amend, the Court GRANTS Plaintiffs’ motion to amend the 8 complaint in order to clarify their allegations of deliberate indifference discrimination in support 9 of monetary damages. See Griggs v. Pave Am. Grp., 170 F.3d 877, 880 (9th Cir. 1999) (a motion 10 to amend should be resolved “with all inferences in favor of granting the motion.”). 11 C. Motion to Dismiss 12 Plaintiffs have been granted leave to amend so they may revise their complaint to allege 13 that Doe Six is still subject to the challenged program, and to allege that Defendants were 14 deliberately indifferent in their failure to provide meaningful access or reasonable 15 accommodations to Plaintiffs. Defendants’ motion to dismiss is DENIED without prejudice 16 pending those amendments. 17 V. CONCLUSION 18 Accordingly, Plaintiffs’ motion for leave to amend in order to add Doe 6 is GRANTED 19 and Plaintiffs’ motion for leave to amend in order to add intentional discrimination causes of 20 action is GRANTED. Defendants’ motion to dismiss is also DENIED without prejudice. 21 Plaintiffs’ Third Amended Complaint shall be filed within forty-five (45) days from the 22 date of this order. 23 This order disposes of Docket Nos. 208, 212, and 219. 24 IT IS SO ORDERED. 25 26 Dated: July 28, 2023 27 ______________________________________