Mayfield v. Mesa, City of

• Court: District Court, D. Arizona
• Decided: October 25, 2023
• Docket: 2:22-cv-02205
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Alison Mayfield, No. CV-22-02205-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 City of Mesa, et al.,

13 Defendants. 14 15 Pending before the Court is Defendant City of Mesa’s (“Defendant”) Motion to 16 Dismiss and Certificate of Conferral (“Motion,” Doc. 18). The Court now rules on the 17 Motion. 18 I. BACKGROUND 19 On January 1, 2022, between 9 and 10 pm, Officer Hall of the Mesa Police 20 Department pulled Alison Mayfield (“Plaintiff”) over for “weaving.” (Doc. 13 ¶ 17). 21 Officer Hall realized that Plaintiff was deaf and attempted, but was unable, to obtain an 22 officer capable of communicating in American Sign Language (an “ASL interpreter”). 23 (Doc. 13 ¶¶ 13–14). Body camera footage shows that Plaintiff suggested using written 24 communication when Officer Hall was unable to secure an ASL interpreter.1 25 Officers Hall and Van Huisen, the latter of whom arrived after Plaintiff was pulled 26 over, communicated with Plaintiff using various methods including text messages,

27 1 Plaintiff alleges in her Complaint that she requested an ASL interpreter specifically multiple times. However, the uncontested body camera footage incorporated into 28 Plaintiff’s Complaint refutes this allegation; therefore, the Court need not accept it as true. See Section III.B, infra.ffinal 1 rudimentary letter-signing, and handwritten notes, to conduct the routine elements of a 2 potential DUI stop. (Doc. 13 ¶ 20; Doc. 21 at 1). Officer Hall conducted a field sobriety 3 test on Plaintiff, which Plaintiff struggled to complete. (Doc. 13 ¶ 21–23). Plaintiff alleges 4 that Officer Hall failed to effectively communicate the instructions for the test, such that 5 Plaintiff could understand the instructions “only partially.” (Doc. 13 ¶ 20). Plaintiff further 6 claims that her performance was hampered by (1) vertigo, related to her disability, (2) it 7 being approximately 48 degrees Fahrenheit outside, and (3) her “dire need to use the 8 restroom,” all of which she alleges the officers ignored. (Doc. 13 ¶ 23). 9 The officers then handcuffed Plaintiff, with her hands in front of her,2 and 10 transported her to the DUI processing facility, where Plaintiff submitted to a blood draw. 11 (Doc. 13 ¶ 29). Officer Voeltz, who was present at the DUI processing facility, sought to 12 assist with communicating in ASL, but he was not a “qualified ASL interpreter.” (Doc. 13 13 ¶¶ 26–27). Plaintiff alleges that Officer Voeltz’s communication shortcomings, like those 14 of Officers Hall and Van Huisen, represented a failure to “ensure effective communication 15 with [Plaintiff] during critical arrest and post-arrest proceedings. (Doc. 13 ¶ 27). Plaintiff 16 was charged pursuant to A.R.S. § 28-693(a) for reckless driving and A.R.S. § 28-138(A)(3) 17 for DUI drugs or metabolite. (Doc. 21 at 6–7).3 On October 26, 2022, Plaintiff pled guilty 18 to reckless driving, and the DUI charge was dismissed. (Id. at 7). 19 Plaintiff filed this suit against Defendants, (Doc. 1), and her operative Complaint 20 alleges two counts: (1) violation of the Americans with Disabilities Act (“ADA”), 42 21 U.S.C. §§ 12131 et seq., and (2) violation of Section 504 of the Rehabilitation Act (“RA”), 22 29 U.S.C. § 794. (See generally Doc. 13). Plaintiff alleges that the officers, acting within 23 their capacity as employees, discriminated against Plaintiff based on her disability by 24 failing to provide reasonable accommodations and denying her meaningful access to the 25 2 The Court acknowledges that Plaintiff does not specifically allege this fact in her 26 Complaint; however, she describes attempts to communicate using ASL. (Doc. 13 ¶ 24). The Court draws a reasonable inference that her hands were cuffed in front of her, not 27 behind her back, for her to communicate through ASL. 3 For reasons discussed in Section III.A, infra, the Court takes judicial notice of the official 28 court filings and Plaintiff’s guilty plea, making these facts properly considered on a motion to dismiss. 1 services provided by Defendants, namely the ability to fully participate in her own criminal 2 proceedings. (Doc. 13 ¶¶ 52, 77–78). She further alleges that Defendant City of Mesa failed 3 to train its employees “on how to interact with deaf or hearing-impaired individuals, and 4 that this failure result[ed] in significant communication breakdowns.” (Doc. 13 ¶ 35). 5 II. LEGAL STANDARD 6 Federal Rule of Civil Procedure 8(a) requires a complaint to contain, among other 7 things, “a short and plain statement of the claim showing that the pleader is entitled to 8 relief.” Fed. R. Civ. P. 8(a). A defendant can test if a plaintiff has met the requirements of 9 Rule 8(a) by filing a motion to dismiss for “failure to state a claim on which relief can be 10 granted” under Rule 12(b)(6). 11 To decide a 12(b)(6) motion, the Court generally focuses on what the plaintiff has 12 written in the complaint. 5B Charles Alan Wright & Arthur R. Miller, Federal Practice 13 and Procedure § 1357 (3d ed. 2004 & Supp. 2022). This is because a Court usually cannot 14 consider anything outside the complaint without transforming the motion to dismiss into a 15 motion for summary judgment under Federal Rule of Civil Procedure 56. There are two 16 recognized exceptions, however, in which a court may consider evidence otherwise outside 17 of the complaint without converting the motion: (1) evidence that the court has judicially 18 noticed, and (2) evidence incorporated, either literally or by reference, into the plaintiff’s 19 complaint. Lee v. City of L.A., 250 F. 3d 668, 688–89 (9th Cir. 2001); see also Section 20 III.B, infra. 21 In deciding whether a complaint will survive a 12(b)(6) motion, the Court does not 22 need to accept a complaint’s legal conclusions, but it does accept as true all the complaint’s 23 factual allegations, i.e., the plaintiff’s factual description of what happened. Ashcroft v. 24 Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 25 (2007)). Additionally, the Court must interpret the complaint’s allegations “in the light 26 most favorable to the plaintiff.” Schwarz v. United States, 234 F.3d 428, 435 (9th Cir. 27 2000). However, “the court need not accept as true allegations that contradict facts which 28 may be judicially noticed.” Westlands Water Dist. v. U.S., Dept. of Interior, Bureau of 1 Reclamation, 805 F. Supp. 1503, 1506 (E.D. Cal. 1992) (citing Mullis v. U.S. Bankruptcy 2 Ct., 828 F. 2d 1385, 1388 (9th Cir. 1987)). The Court similarly is not required to accept as 3 true allegations that contradict documents that are incorporated into the complaint. See 4 Spinedex Physical Therapy USA, Inc. v. United Healthcare of Ariz., Inc., 661 F. Supp. 2d 5 1076, 1083 (D. Ariz. 2009). 6 A complaint will be dismissed for failure to state a claim if it lacks either “a 7 cognizable legal theory or . . . sufficient facts alleged under a cognizable legal theory.” 8 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). To allege sufficient 9 facts under a cognizable legal theory, a complaint must contain factual allegations from 10 which the court can reasonably conclude that the plaintiff is not just possibly entitled to 11 relief, but plausibly entitled to relief. See Iqbal, 556 U.S. at 678. 12 III. DISCUSSION 13 A. The Heck Bar 14 The Court first determines whether Plaintiff’s claims are barred by application of 15 the U.S. Supreme Court’s (“SCOTUS”) decision in Heck v. Humphrey, 512 U.S. 477 16 (1994). Defendants argue that Plaintiff’s claims are barred because judgment in favor of 17 Plaintiff would “necessarily imply the invalidity of [her] conviction or sentence.” (Doc. 21 18 at 8). The Court agrees. 19 As an initial matter, Defendants seek judicial notice of court filings, including 20 Plaintiff’s criminal case filings and guilty plea. Defendants assert that such filings are 21 public records, proper subjects of judicial notice. The Court agrees. See U.S. v. Black, 482 22 F. 3d 1035, 1041 (9th Cir. 2007) (citing United States ex rel. Robinson Rancheria Citizens 23 Council v. Borneo, Inc., 971 F. 2d 244, 248 (9th Cir. 2002); Noel v. Mitsubishi UFJ Fin. 24 Grp. Inc., No. CV-18-03253-PHX-SPL, 2019 WL 5213345, at *2 n.3 (D. Ariz. Oct. 16, 25 2019). As such, the Court takes judicial notice of the public court filings Defendants attach 26 to the Motion.4 27 In this case, Plaintiff argues that she was denied reasonable accommodations and

28 4 See Section II, supra (court may consider facts judicially noticed when considering a motion to dismiss). 1 was discriminated against throughout her arrest—namely, she asserts that Defendants 2 “deliberately” failed to provide an ASL interpreter for actions such as performing a field 3 sobriety test, performing a blood draw, and providing Plaintiff written Miranda warnings. 4 (See generally Doc. 13). Plaintiff’s Complaint specifically alleges that Defendant “fail[ed] 5 to ensure effective communication,” such that Plaintiff was “denied” her expectancy of 6 fully participating in her own criminal proceedings. (Id. ¶¶ 27, 53, 63). The facts this Court 7 would need to accept as true to find for Plaintiff thus would necessarily imply that her 8 charge and/or conviction was invalid. Under the ADA, this Court would need to find that 9 Defendant failed to provide adequate communication and denied her the ability to 10 participate in her own criminal proceedings to a level that rises to discrimination,5 which 11 almost certainly would also rise to a due process violation.6 Similarly, under the RA, 12 Plaintiff would need to prove she was denied the service of effective communication by 13 the police officers involved in her arrest,7 which would imply the invalidity of Plaintiff’s 14 arrest for the same reason. That is, if this Court finds that the officers’ alleged failures 15 violate the ADA and RA, this Court necessarily implies that the officers violated Plaintiff’s 16 due process rights and invalidly arrested her and collected evidence that supported the 17 charges against her. Additionally, Plaintiff’s arguments regarding the issuance of written 18 Miranda warnings implicate Heck because in order to agree with Plaintiff, the Court would 19 necessarily find that the circumstances of Plaintiff’s arrest violated her Fifth amendment 20 rights.8 Heck therefore bars Plaintiff’s claims. 21 5 A prima facie case for violation of Title II of the ADA includes that a plaintiff was either 22 excluded from participation or denied the benefits of a public entity’s services, programs, or activities, or was otherwise discriminated against by the public entity. Payan v. L.A. 23 Cmty. Coll. Dist., 11 F. 4th 729, 737–38 (9th Cir. 2021) (citations omitted) (emphasis added). 24 6 That is, if this Court finds that Plaintiff was actionably denied effective communication, this Court necessarily finds she was denied the ability to understand police instructions— 25 a due process violation. See Bermudez-Arenas v. City of McMinnville, No. 3:16-CV-2164- PK, 2017 WL 2293361, at *3 (D. Or. Mar. 6, 2017) (finding that where an individual 26 would, “in an encounter with the police, not be able to understand commands,” a violation of the individual’s Fourteenth amendment rights existed). 27 7 A prima facie case for violation of RA includes that a plaintiff was denied the benefit or services solely by reason of her disability. Lovell v. Chandler, 303 F. 3d 1039, 1052 (9th 28 Cir. 2002) (citation omitted) (emphasis added). 8 See generally Miranda v. Arizona, 384 U.S. 436 (1966). 1 Plaintiff argues that Heck does not apply in her case for various reasons, each of 2 which the Court addresses below. First, Plaintiff argues that because she “lacks a habeas 3 option for the vindication of her federal rights,” Heck should not apply. To support this 4 proposition, Plaintiff cites Nonnette v. Small, 316 F. 3d 872 (9th Cir. 2002). However, 5 Ninth Circuit decisions subsequent to Nonnette contradict Plaintiff’s conclusion. In 6 Roberts v. City of Fairbanks, the Ninth Circuit explained the difference between a 7 “conviction” and “incarceration,” stating that a person to whom habeas relief is no longer 8 available is nonetheless barred from challenging her conviction itself because convictions 9 remain “extant” after a sentence is served. 947 F. 3d 1191, 1203 (9th Cir. 2020). Further, 10 the Ninth Circuit has since described the exception outlined in Nonnette as “narrow,” 11 stating that “Nonnette’s relief from Heck ‘affects only former prisoners challenging loss of 12 good-time credits, revocation of parole or similar matters,’ not challenges to an underlying 13 conviction.” Lyall v. City of L.A., 807 F.3d 1178, 1192 (9th Cir. 2015) (quoting Guerrero 14 v. Gates, 442 F. 3d 697, 705 (9th Cir. 2006)) (internal quotations omitted). This narrow 15 exception does not apply to Plaintiff; therefore, Plaintiff’s first argument is unavailing. 16 Plaintiff next argues that Heck should not apply because “[Plaintiff] does not seek 17 to challenge or overturn her underlying plea agreement,” (Doc. 24 at 3), citing primarily to 18 Byrd v. Phoenix Police Dep’t, 885 F. 3d 639 (9th Cir. 2018), and Ove v. Gwinn, 264 F. 3d 19 817 (9th Cir. 2001). Plaintiff asserts that she is instead challenging “the procedures that led 20 to her arrest and interrogation, and not her underlying guilty plea.” (Doc. 24 at 5). However, 21 Plaintiff’s challenge in this case is different from the challenges in the cases she cites. In 22 each cited case, a court separated the “procedure” a plaintiff challenged from the 23 underlying conviction the plaintiff had received because the alleged procedural defect each 24 plaintiff challenged did not actually form the basis of or even provide some evidence for 25 the charge or conviction. 26 In Byrd, for example,9 a plaintiff sought to challenge an illegal search that had

27 9 Plaintiff cites various cases other than Byrd that are similarly inapposite here. See, e.g., Weilburg v. Shapiro, 488 F. 3d 1202 (9th Cir. 2007) (procedures to extradite were separate 28 from the conviction itself); Powers v. Hamilton Cnty. Pub. Def. Comm’n, 501 F. 3d 592 (6th Cir. 2007 (challenging the failure to afford an indigency hearing did not implicate the 1 “nothing to do with the evidentiary basis for his . . . conviction.” Byrd, 885 F. 3d at 645. 2 This was the case because Byrd’s conviction was based on drugs that he threw while the 3 police were questioning him, which the police subsequently recovered some distance away. 4 The allegedly illegal search was an action entirely separate from the discovery of the 5 “evidence upon which [his] criminal charges and convictions were based,” because the 6 officers in Byrd discovered such evidence from Byrd’s voluntary throwing of the evidence, 7 not from the search that Byrd later challenged. Id. 8 Plaintiff’s efforts to separate her challenge of the “procedures that led to her arrest” 9 from a potential challenge to the underlying conviction are misguided in light of the core 10 inquiry under Heck. In Heck, SCOTUS instructed courts to determine whether a judgment 11 in Plaintiff’s favor would necessarily imply the invalidity of the conviction. In Plaintiff’s 12 case, the “procedures” she alleges were faulty are the actions taken by the police officers 13 that provided the evidentiary basis upon which her criminal charges were based. The 14 officers asked her to perform a field sobriety test, and she struggled with the field sobriety 15 test. She claims that the officers failed to “provide effective communication,” to such an 16 extent that the officers “denied [her] the opportunity to understand the instructions to the 17 tests,” (Doc. 13 ¶ 20), which is essential in conducting an effective field sobriety test. 18 Therefore, the Court finds this argument unpersuasive. 19 Plaintiff also focuses her attention on the fact that her conviction “derives from her 20 plea, not from a verdict obtained with supposedly illegal evidence,” so the validity of her 21 conviction “does not in any way depend on the legality of the blood draws or the sobriety 22 testing.” (Doc. 24 at 4).10 This argument similarly deviates from the core purpose of the 23 Heck bar, which is to ensure that plaintiffs cannot collaterally attack a valid conviction as 24 implicitly invalid by challenging the evidence—and the procedures to obtain it—upon

25 underlying conviction); Bogovich v. Sandoval, 189 F. 3d 999 (9th Cir. 1999) (ADA claim challenging denial of accommodations like ASL interpreter while in prison still 26 challengeable because it related to the conditions of the confinement, not the underlying charge or conviction). 27 10 Plaintiff cites Ove to support this particular interpretation of the Heck bar. However, Ove is a Ninth Circuit decision from 2001, while Byrd was decided in 2018 and clarified the 28 Ninth Circuit’s approach to the Heck bar, as discussed in this paragraph. The Court thus declines to adopt Plaintiff’s interpretation under Ove. 1 which the plaintiff’s charge and conviction were based. See Byrd, 885 F. 3d at 645 2 (clarifying that the Heck bar applies when a plaintiff challenges “‘the search and seizure of 3 the evidence upon which their criminal charges and convictions were based’”) (citation 4 omitted) (emphasis added). Here, there is no question that Plaintiff was charged with both 5 reckless driving and DUI. Moreover, although the concurrence in Byrd notes some 6 inconsistencies in the Ninth Circuit’s application of Heck and acknowledges an argument 7 like Plaintiff’s, the Byrd court ultimately did not adopt this approach. Thus, this Court is 8 bound by the majority approach in Byrd. 9 Finally, Plaintiff argues that even if the present suit “cast[s] a shadow of a doubt” 10 on the validity of her conviction or “set[s] the stage for a collateral attack,” that is not 11 enough to apply the Heck bar. (Doc. 24 at 6). As discussed above, Plaintiff’s action here 12 does not merely cast a doubt upon the validity of her conviction; if the Court were to find 13 that Defendant failed to effectively communicate with Plaintiff to such an extent that 14 Plaintiff could not understand the officers’ instructions, the Court would necessarily be 15 implying that Plaintiff never should have been charged and ultimately convicted based on 16 all evidence collected as a result of the field sobriety test. 17 Therefore, the Court finds that the Heck bar applies in Plaintiff’s case. It is 18 appropriate to dismiss Plaintiff’s claims on this ground. 19 B. Incorporation-by-Reference of Police Body Camera Footage 20 Although the Court has found that Heck bars Plaintiff’s claims, the Court will briefly 21 address the merits in the alternative. In doing so, the Court first addresses Defendants’ 22 argument that the police body camera footage should be incorporated by reference into 23 Plaintiff’s Complaint. 24 Incorporation-by-reference is a judicially created doctrine in which the court treats 25 certain pieces of evidence as though they are part of the complaint itself. Khoja v. Orexigen 26 Therapeutics, Inc., 899 F. 3d 988, 1002 (9th Cir. 2018). “The doctrine prevents plaintiffs 27 from selecting only portions of documents that support their claims, while omitting 28 portions of those very documents that weaken—or doom—their claims.” Id. A defendant 1 may seek to incorporate the document into the complaint “‘if the plaintiff refers extensively 2 to the document or the document forms the basis of the plaintiff’s claim.’” Id. (quoting U.S. 3 v. Ritchie, 342 F. 3d 903, 907 (9th Cir. 2003)). 4 Mere mention of the existence of a document is not enough to incorporate the 5 contents of the document. Id. Moreover, it is improper for the court to accept the truth of 6 matters asserted in incorporated evidence only “to resolve factual disputes against the 7 plaintiff’s well-pled allegations in the complaint”—that is, incorporation-by-reference 8 should not override the “fundamental rule that courts must interpret the allegations and 9 factual disputes in favor of the plaintiff at the pleading stage.” Id. at 1014. But see Section 10 II, supra (the court need not accept as true allegations that contradict documents 11 incorporated by reference). 12 The Court will incorporate the police body camera footage into Plaintiff’s 13 Complaint. Although there is no bright line rule for what is considered “extensively” 14 referring to evidence, Plaintiff incorporates specific quotes from the body camera footage 15 at least six times in her general allegations;11 she does not merely mention that the footage 16 exists. Additionally, the Court finds that Plaintiff has attempted to introduce only the 17 portions of the footage that support her claims, while omitting portions that harm them. 18 Plaintiff clearly does not dispute the authenticity or accuracy of the footage, as she 19 references it throughout her Complaint and does not address the issue in her response to 20 Defendant’s Motion. Thus, the Court incorporates the body camera footage by reference 21 into Plaintiff’s Complaint and in its analysis below declines to accept Plaintiff’s allegations 22 as true when they are irrefutably contradicted by the body camera footage. 23 C. Plaintiff’s Prima Facie Case 24 i. Title II of the ADA & Section 504 of the RA 25 To make a prima facie claim for violation of Title II of the ADA, a plaintiff must 26 show the following: (1) she is a qualified individual with a disability; (2) she was either

27 11 In coming to this number, the Court considered both explicit mentions of the body camera footage, (see, e.g., Doc. 13 ¶ 12), as well as references to what officers could be 28 “heard” saying, (see, e.g., Doc. 13 ¶ 20), which would necessarily be found in the body camera footage. 1 excluded from participation or denied the benefits of a public entity’s services, programs, 2 or activities, or was otherwise discriminated against by the public entity; and (3) such 3 exclusion, denial of benefits, or discrimination was by reason of her disability. Payan v. 4 L.A. Cmty. Coll. Dist., 11 F. 4th 729, 737–38 (9th Cir. 2021) (citations omitted). 5 As applied in arrests, the Ninth Circuit has recognized two types of claims: (1) 6 wrongful arrest, where a plaintiff is wrongfully arrested because their disability is 7 misperceived as criminal conduct, and (2) reasonable accommodation, where officers fail 8 to reasonably accommodate a plaintiff’s disability in a way that causes the person to suffer 9 greater injury than other arrestees. See Sheehan v. City & Cty. of San Francisco, 743 F. 3d 10 1211, 1232 (9th Cir. 2014). “[E]xigent circumstances inform the reasonableness analysis 11 under the ADA.” Id. The requirement that entities provide effective communication does 12 not mean that a deaf individual is entitled to an interpreter every time they ask for it; 13 instead, “the test is whether an individual has received an auxiliary aid sufficient to prevent 14 any ‘real hindrance’ in her ability to exchange information.” Bax v. Drs. Med. Ctr. of 15 Modesto, Inc., 52 F. 4th 858, 867 (9th Cir. 2022) (citation omitted). 16 Plaintiff argues that the “primary consideration requirement” under the ADA 17 required the officers to provide Plaintiff with an ASL interpreter. This requirement 18 mandates that a covered entity must honor the choice of the individual with a disability 19 when determining the type of auxiliary aids to use, unless it can be demonstrated that 20 another equally effective means of communication is available, or that the use of the means 21 chosen by the individual would result in a fundamental alteration to the entity’s program 22 or in an undue burden. Bax, 52 F. 4th at 867–68. 23 Plaintiff has failed to show both that she was not provided “reasonable 24 accommodations” and that she suffered a greater injury than other arrestees. Addressing 25 the “primary considerations requirement” first, even taking as true Plaintiff’s allegations 26 that she “repeatedly requested” an ASL interpreter, the body camera footage also 27 indisputably establishes that Plaintiff suggested to the officers that they could use written 28 1 communication.12 Moreover, the body camera footage establishes that Defendant did not 2 deny Plaintiff an ASL interpreter—one simply was not immediately available as the arrest 3 occurred at nighttime on a holiday. The Court finds that, in light of the exigent 4 circumstances and fleeting evidence involved in a DUI arrest, to require an ASL interpreter 5 to be immediately available in situations like Plaintiff’s would be to impose an undue 6 burden, especially when Plaintiff repeatedly indicated that she understood the 7 communications officers made to her. The body camera footage indicates that Plaintiff 8 suffered no “real hindrance” in her ability to exchange information. Therefore, Plaintiff’s 9 ADA claim fails on the merits. 10 To make a prima facie claim for violation of the RA, a plaintiff must show the 11 following: (1) she is disabled within the meaning of the RA; (2) she is otherwise qualified 12 for the benefit or services sought; (3) she was denied the benefit or services solely by reason 13 of her disability; and (4) the program providing the benefit or services receives federal 14 financial assistance. Lovell v. Chandler, 303 F. 3d 1039, 1052 (9th Cir. 2002) (citation 15 omitted). Notably, the “primary consideration requirement” mentioned in the context of 16 the ADA is inapplicable to claims under the RA. Bax, 52 F. 4th at 868. For the same reasons 17 as stated in dismissing Plaintiff’s ADA claim, the Court finds Plaintiff’s RA claim fails.13 18 ii. Plaintiff’s “Failure-to-Train” Theory 19 Plaintiff also asserts a failure-to-train theory in her Complaint, alleging that 20 Defendant City of Mesa failed to train officers in the “importance of utilizing ASL 21 interpreters” and “how to interact with deaf or hearing-impaired individuals.” (Doc. 13 ¶¶ 22 32, 34). The Court first notes that the circuits have not reached a consensus regarding the 23 applicability of a “failure-to-train” theory to ADA and RA claims. However, the Ninth 24 Circuit has acknowledged a failure-to-train theory in this context. 25 The parties do not cite, and the Court has not located, a case in which the Ninth 26 12 Officer Hall’s body camera footage, (Def. Ex. 1 at 1:44), displays Plaintiff miming 27 writing with a pen on paper, almost immediately when Officer Hall approaches Plaintiff’s vehicle. 28 13 See Bax, 52 F. 4th at 866–68 (analyzing both ADA and RA claims under the same framework, minus the “primary consideration requirement”). 1 Circuit has dictated a framework under which to analyze a failure-to-train theory under the 2 ADA and/or RA. Cf. O’Doan v. Sanford, 991 F. 3d 1027, 1038 n.1 (9th Cir. 2021) (finding 3 only that the plaintiff’s ADA failure-to-train claim failed because the plaintiff had not 4 shown how personnel with different training would have acted differently given the 5 exigencies of the situation, without delineating a general framework). However, courts 6 within the Ninth Circuit have applied the Monell framework for § 1983 claims to analyze 7 failure-to-train claims under the ADA and RA.14 8 Under the Monell framework, Plaintiff must show that Defendant “maintains a 9 custom, practice, or policy that amounts to deliberate indifference to [Plaintiff’s] [ADA 10 and RA] rights, and the policy results in a violation of [Plaintiff’s ADA and RA] rights.” 11 Bauer, 2021 WL 2224016 at *16 (citing Monell v. Dep’t of Soc. Servs. of New York, 436 12 U.S. 658, 690–91 (1978)). 13 The Court finds that Plaintiff’s failure-to-train theory fails as a matter of law. Like 14 the plaintiff in O’Doan, Plaintiff here has failed to allege any differences in the outcome 15 had the officers been trained any differently. Given the exigencies of the situation— 16 namely, a potential DUI with fleeting evidence at night on a holiday—as well as the 17 officers’ repeated efforts to obtain an ASL interpreter and provision of various other 18 alternative communication methods, the Court finds that Plaintiff has not shown that 19 improved training would have made a difference in her case. Moreover, Plaintiff does not 20 point to any overarching custom, practice, or policy that amounts to deliberate indifference 21 to her rights. Instead, she points to an allegedly discriminatory interaction with just three 22 officers. This is insufficient to support an inference that the police department as a whole 23 did not adequately train its officers. 24 As such, the Court finds that Plaintiff’s failure-to-train theory fails as a matter of 25 law.

26 14 See, e.g., Bauer v. City of Pleasanton, No. 19-CV-04593-LB, 2021 WL 2224016, at *19 (N.D. Cal. June 2, 2021) (“Assuming that a failure-to-train claim is cognizable, the training 27 claim fails for the reasons that it fails under Monell.”); Green v. Tri-City Metro. Transp. Dist., 909 F. Supp. 2d 1211, 1220 (D. Or. 2012) (“The Ninth Circuit has not set out a 28 standard for failure-to-train claims under the ADA. The Court, therefore, analogizes Plaintiff’s ADA claim to a failure-to-train claim brought under § 1983.”). 1 iii. Damages 2 As the Court has held that Plaintiff's claims are barred by Heck, and in the alternative, fail as a matter of law, the Court need not reach issues the parties raise regarding damages. 5 D. Leave to Amend 6 The Ninth Circuit has instructed district courts to grant leave to amend, sua sponte, when dismissing a case for failure to state a claim, “‘unless [the court] determines that the 8 || pleading could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 1127 (th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 || (9th Cir. 1995)). Futility alone justifies denying leave to amend. Bonin v. Calderon, 59 11 |} F.3d 815, 845 (1995). Here, the Court finds that amendment would be futile for two alternative reasons: (1) Plaintiff will be unable to amend her complaint to overcome the 13 || Heck bar, and (2) Plaintiff will be unable to amend her complaint to overcome the indisputable evidence in the incorporated body camera footage. Therefore, the Court denies 15 || leave to amend. 16 IV. CONCLUSION 17 For the foregoing reasons, 18 IT IS ORDERED that Defendant’s Motion to Dismiss, (Doc. 21), is GRANTED. This case is dismissed with prejudice and the Clerk of the Court shall enter judgment || accordingly. 21 Dated this 25th day of October, 2023. 22 23 i C 24 James A. Teilborg 25 Senior United States District Judge 26 27 28

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