Michelle Gable v. Wccw

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2021
• Docket: 20-35548
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 27 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHELLE C. GABLE, No. 20-35548

Plaintiff-Appellant, D.C. No. 3:18-cv-05266-RBL

v. MEMORANDUM* WASHINGTON CORRECTION CENTER FOR WOMEN; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Submitted August 17, 2021**

Before: SILVERMAN, CHRISTEN, and LEE, Circuit Judges.

Washington state prisoner Michelle C. Gable appeals pro se from the district

court’s summary judgment in her action brought under 42 U.S.C. § 1983 and the

Americans with Disabilities Act (“ADA”). We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Cir. 2011). We may affirm on any basis supported by the record, Thompson v.

Paul, 547 F.3d 1055, 1058–59 (9th Cir. 2008), and we affirm.

The district court properly granted summary judgment on Gable’s deliberate

indifference claim because Gable failed to raise a genuine dispute of material fact

as to whether defendants were deliberately indifferent to Gable’s hypersensitivity

to chemical irritants and pollutants. See Toguchi v. Chung, 391 F.3d 1051,

1057–61 (9th Cir. 2004) (deliberate indifference is a high legal standard; medical

malpractice, negligence, or a difference of opinion concerning the course of

treatment does not amount to deliberate indifference).

The district court properly granted summary judgment on Gable’s ADA

Title II claim against defendants Wofford, Carei, Clark, Shulze, Perkins, and

Anderson-Logano in their official capacities because, assuming without deciding

that Gable is an individual with a disability, Gable failed to raise a genuine dispute

of material fact as to whether these defendants intentionally discriminated against

her by reason of her disability. See McGary v. City of Portland, 386 F.3d 1259,

1265 (9th Cir. 2004) (elements of an ADA Title II claim).

Summary judgment was proper on Gable’s ADA Title II claim against

defendants Wofford, Carei, Clark, Shulze, Perkins, and Anderson-Logano in their

2 20-35548 individual capacities, because as individuals, they are not liable under the ADA.

See Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002) (“The ADA applies

only to public entities[.]”).

We do not consider documents and facts not presented to the district court.

See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts

not presented to the district court are not part of the record on appeal.”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

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