William Barker v. Osemwingie

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 29 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

WILLIAM BARKER, No. 20-15503 20-15840 Plaintiff-Appellant, D.C. No. 2:16-cv-03008-CKD v.

OSEMWINGIE; RAMISCAL,

Defendants-Appellees. MEMORANDUM* and

STATE OF CALIFORNIA; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Defendants.

Appeals from the United States District Court for the Eastern District of California Carolyn K. Delaney, Magistrate Judge, Presiding

Argued and Submitted November 17, 2021 San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and KORMAN, ** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Page 2 of 5

William Barker sued the State of California, the California Department of

Corrections and Rehabilitation (CDCR), and CDCR employees Osemwingie and

Ramiscal for harms arising from a failed attempt to transfer Barker from his

wheelchair to the toilet. The district court dismissed with prejudice his claims

under Titles II and V of the Americans with Disabilities Act (ADA) and Section

504 of the Rehabilitation Act (RA). The court later granted summary judgment to

defendants on Barker’s Eighth Amendment claim for inadequate medical treatment

under 42 U.S.C. § 1983. We affirm entry of summary judgment for defendants on

Barker’s Eighth Amendment claim, but we vacate dismissal of his claims under the

ADA and RA and remand to the district court with instructions to grant Barker

leave to amend his complaint.

1. The district court properly granted summary judgment to Osemwingie

and Ramiscal on Barker’s Eighth Amendment claim for inadequate medical

treatment. Barker failed to raise a triable issue of fact as to whether defendants

acted with deliberate indifference to his serious medical needs. See Jett v. Penner,

439 F.3d 1091, 1096 (9th Cir. 2006). The district court properly excluded

statements allegedly made by Nurse Coloma as inadmissible hearsay, and

defendants submitted unrebutted expert evidence supporting their assertion that use

of the lift was medically appropriate, even if Barker suffered from a chronic back

condition. Thus, even if a genuine dispute exists as to whether Barker informed Page 3 of 5

defendants of his back condition, he cannot satisfy the objective prong of the

deliberate indifference test applicable to this claim. We also affirm the district

court’s award of costs to defendants, as those costs were incurred solely in

connection with Barker’s Eighth Amendment claim, and Barker raises no

independent challenge to the propriety of the award.

2. The district court erred in dismissing Barker’s Title II and RA claims

without leave to amend. Transferring an inmate from a wheelchair to the toilet is

an accommodation to provide access to toileting services, rather than medical

treatment for a disability. See Armstrong v. Schwarzenegger, 622 F.3d 1058, 1068

(9th Cir. 2010). Thus, the district court improperly relied on Simmons v. Navajo

County, 609 F.3d 1011, 1022 (9th Cir. 2010) (holding that denial of medical

treatment cannot form the basis of an ADA claim), in concluding that Barker’s

claims were barred as a matter of law.

Barker’s second amended complaint does not adequately allege failure to

provide access to a service under Title II or the RA, but he should have been

granted leave to amend to cure the deficiencies. To allege a plausible claim for

relief, Barker will need to provide additional facts explaining how the State’s failed

attempt to provide access to toileting services by means of the Hoyer lift amounted

to a denial of such services on account of his disability. In addition, because

Barker seeks damages under Title II, he will need to plead facts plausibly Page 4 of 5

suggesting that the defendants acted with deliberate indifference under the test

established in Duvall v. County of Kitsap, 260 F.3d 1124, 1138–40 (9th Cir. 2001).

We note that the Duvall standard differs from the standard for deliberate

indifference applicable to Barker’s Eighth Amendment claim, so the record

developed in connection with the latter claim does not necessarily foreclose

Barker’s ability to assert a viable Title II damages claim. Since it is not clear that

amendment would be futile, we vacate the dismissal of the Title II and RA claims

and remand with instructions to grant Barker leave to amend those claims.

3. The district court abused its discretion in dismissing Barker’s retaliation

claim under Title V of the ADA based on improper joinder. See Fed. R. Civ. P.

18(a). The court’s ruling was predicated on its ruling dismissing Barker’s Title II

and RA claims without leave to amend. Because an opportunity to amend those

claims against the State and CDCR should have been granted before any final

judgment could be entered, those defendants should have remained in the suit and

Barker’s Title V claim against the same defendants was not improperly joined.

However, as with Barker’s Title II and RA claims, the allegations in the second

amended complaint do not adequately support a claim under Title V. In particular,

the allegations do not plausibly suggest a causal link between Barker’s protected

activities and the alleged retaliation. See T.B. ex rel. Brenneise v. San Diego

Unified Sch. Dist., 806 F.3d 451, 472–73 (9th Cir. 2015). Nevertheless, because it Page 5 of 5

is not clear that amendment would be futile, we vacate dismissal of the Title V

claim and remand with instructions to grant leave to amend.

AFFIRMED in part, VACATED in part, and REMANDED.

Barker shall recover his costs on appeal.