Robert Ewbank v. Jeff Emrick

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 21, 2021
• Docket: 18-35873
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 21 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT DRAKE EWBANK, No. 18-35873

Plaintiff-Appellant, D.C. No. 6:17-cv-00187-MK v.

JEFF W. EMRICK, individually, and in his MEMORANDUM* official capacity as (former) Deputy Director of AMHD of the Oregon Health Authority (OHA), AKA Jeff Emerick; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, and Jolie A. Russo, Magistrate Judge, Presiding

Argued and Submitted June 7, 2021 Portland, Oregon

Before: WARDLAW, HURWITZ, Circuit Judges, and BOLTON,** District Judge.

Robert Ewbank appeals the district court’s dismissal of his claim under

Title II of the Americans with Disabilities Act (“ADA”) against Jeff Emrick and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Susan R. Bolton, United States District Judge for the District of Arizona, sitting by designation. other officials of the Oregon Health Authority (“Defendants”) without leave to

amend.1 We have jurisdiction under 28 U.S.C. § 1291, and we reverse and

remand.

Because Ewbank proceeded pro se below, we “construe the pleadings

liberally,” particularly in civil rights cases like Ewbank’s, and “afford him the

benefit of any doubt.” Martinez v. Barr, 941 F.3d 907, 916 (9th Cir. 2019)

(cleaned up). Ewbank claims Defendants unlawfully discriminated against him by

allegedly terminating his membership on, and precluding him from further

involvement with, state mental health advisory board committees on account of his

Post-Traumatic Stress Disorder (“PTSD”). After permitting Ewbank several

amendments to his complaint, the district court, adopting the magistrate judge’s

findings and recommendations, dismissed Ewbank’s Sixth Amended Complaint

(“SAC”) for failing to plead a prima facie case of disability discrimination under

Title II of the ADA. See Cohen v. City of Culver City, 754 F.3d 690, 695 (9th Cir.

2014) (elements of claim). Specifically, the magistrate judge found that Ewbank

had failed to sufficiently allege that he was “a qualified individual with a

disability” and that he suffered the alleged discrimination “because of his

disability.” The magistrate judge also found that any further leave to amend would

be “futile,” and the district court therefore dismissed the SAC with prejudice.

1 Ewbank does not appeal the district court’s dismissal of his other claims.

2 Although dismissal of the SAC was appropriate, the district court erred by denying

further leave to amend on the basis that further amendment would be futile.

1. As an initial matter, we note that the magistrate judge erred in finding

that Ewbank failed to plead that his PTSD “satisfies the statutory definition of a

disabled person.” Under the ADA, “disability” means “a physical or mental

impairment that substantially limits one or more major life activities of such

individual,” 42 U.S.C. § 12102(1)(A), and the enabling regulations explicitly

provide PTSD as an example of a disabling impairment, see 29 C.F.R.

§ 1630.2(j)(3)(iii) (“[I]t should easily be concluded that . . . [PTSD]

. . . substantially limit[s] brain function.”). Here, Ewbank alleged that his PTSD

left him “substantially limited in certain major life activities such as work, writing,

and deliberation, especially with respect to disruptive thoughts . . . which at times

[are] so disabling as to be unable to go out in public or function due to symptoms

and flashbacks.” Moreover, Ewbank also alleged that his PTSD entitled him to

full, permanent disability benefits under Social Security regulations, which provide

a more stringent definition of disability than the ADA. Compare 29 C.F.R. §

1630.2(j)(1)(ii) with 20 C.F.R. § 404.1505(a). Ewbank therefore sufficiently

3 pleaded that “he is a qualified individual with a disability.”2

However, the magistrate judge correctly found that Ewbank had failed to

adequately allege that his removal from the committees was “by reason of [his]

disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Ewbank did

allege facts that may be considered circumstantial “proof of discriminatory

animus,” such as Emrick’s alleged expressions of hostility regarding the role of

individuals suffering from mental disabilities, Defendants’ alleged frequent failure

to meet the state-mandated level of inclusion for disabled persons on the advisory

committees, and Emrick’s alleged inexplicably extreme description of the blunt,

but otherwise moderate language in Ewbank’s emails as “abusive,” a term Ewbank

alleges is frequently used to malign individuals with a mental disability. See

Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). But the SAC

never alleges a causal link between Ewbank’s removal from the advisory

committees and Defendants’ alleged discriminatory animus towards his PTSD, i.e.,

that Defendants terminated his committee membership or precluded him from

2 To the extent the magistrate judge also found that Ewbank failed to allege that he was “excluded from participation in or denied the benefits of a public entity’s services, programs, or activities,” this was also erroneous because state advisory boards that are open to public participation are “programs” or “activities” under the ADA. Cohen, 754 F.3d at 695; see also id. (“We have explained that the broad language of Title II brings within its scope anything a public entity does.” (cleaned up)). Ewbank’s simple allegation that Defendants removed or precluded him from the state advisory committees therefore suffices.

4 further participation because of his disability. As a result, the district court did not

err by dismissing the SAC for failure “to state a plausible claim for relief” under

Title II of the ADA. See Cohen, 754 F.3d at 695.

2. But the district court nonetheless erred by refusing Ewbank leave to

amend his SAC on futility grounds because it is not clear “on de novo review that

[Ewbank’s] complaint could not be saved by amendment.” Eminence Cap., LLC v.

Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); see also Hildes v. Arthur

Andersen LLP, 734 F.3d 854, 859 (9th Cir. 2013). It is conceivable that Ewbank

could more adequately allege the nexus between his committee removal and

preclusion and Defendants’ alleged animus towards his disability, as well as

potentially add more facts in support of his claim. For example, Ewbank alleged

that another committee member, Chris Bouneff, had shouted back at a state

employee that he “[w]ould say what he damn well pleased.” Yet, Defendants

allegedly took no disciplinary action against Bouneff, a stark contrast to their

treatment of Ewbank, who was swiftly terminated. If Bouneff was not disabled

himself, a fact that counsel represented Ewbank would have knowledge of, it could

give rise to the inference that Defendants’ stated reason for Ewbank’s termination

was pretextual. See, e.g., Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th

Cir. 1995).

REVERSED AND REMANDED.