William Barker v. Osemwingie

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 10, 2024
• Docket: 23-15479
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 10 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM BARKER, No. 23-15479

Plaintiff-Appellant, D.C. No. 2:16-cv-03008-CKD

v. MEMORANDUM* OSEMWINGIE; RAMISCAL,

Defendants-Appellees,

and

STATE OF CALIFORNIA; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION,

Defendants.

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

Argued and Submitted June 5, 2024 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: S.R. THOMAS and BUMATAY, Circuit Judges, and BENNETT,** District Judge.

Plaintiff-Appellant William Barker appeals the district court’s screening

order pursuant to 28 U.S.C. § 1915A, which dismissed Barker’s claims under Title

II of the Americans with Disabilities Act (“ADA”) and Section 504 of the

Rehabilitation Act (“RA”) against the State of California (“State”) for failure to

state a claim.1 We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

district court’s dismissal of a complaint under 28 U.S.C. § 1915A for failure to

state a claim. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). In an earlier

appeal, we held that Barker failed to raise a triable issue of fact as to whether

defendants acted with deliberate indifference to his medical needs. Barker v.

Osemwingie, No. 20-15503, 2021 WL 5564625, at *1 (9th Cir. Nov. 29, 2021).

However, we held that the district court erred in dismissing his ADA and RA

claims without leave to amend. Id. The case now returns to us after the district

court dismissed Barker’s amended complaint. We affirm. Because the parties are

familiar with the history of this case, we need not recount it here.

** The Honorable Richard D. Bennett, United States District Judge for the District of Maryland, sitting by designation. 1 The district court’s screening order also dismissed all defendants other than the State, which Barker does not challenge on appeal. 2 I

The district court properly concluded that Barker’s complaint does not state

a claim for relief under the ADA and RA. The ADA and RA “are interpreted

coextensively.”2 Payan v. L.A Cmty. Coll. Dist., 11 F.4th 729, 737 (9th Cir. 2021).

To state a claim under either act, Barker must allege: “(1) he is a qualified

individual with a disability; (2) he was either excluded from participation in or

denied the benefits of a public entity’s services, programs, or activities, or was

otherwise discriminated against by the public entity; and (3) such exclusion, denial

of benefits, or discrimination was by reason of his disability.” Duvall v. County of

Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (internal quotation marks and citation

omitted), as amended on denial of reh’g en banc (Oct. 11, 2001).

Barker’s claims fail at the second prong because his complaint lacks

allegations that he was actually denied access to toileting services. To prevail

under the ADA and RA, Barker must plead that “the accommodations offered by

the [State] were not reasonable,” id. at 1137, and that as a result, he was unable “to

enjoy meaningful access to the benefits of [the prison’s] services,” Mark H. v.

2 The ADA and RA differ only in which entities they apply to. Title II of the ADA applies to public programs or services, while the RA applies to programs receiving federal financial assistance. See Duvall, 260 F.3d at 1135. Both Acts apply to state prisons. Armstrong v. Wilson, 124 F.3d 1019, 1025 (9th Cir. 1997). 3 Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010). Barker argues that the attempted

use of a Liko Golvo 7007 ES Hoyer lift (“the Hoyer lift”) to transfer him from his

wheelchair to the toilet was unreasonable because it left him injured. However, we

held in an earlier appeal in this case that the “use of the lift was medically

appropriate.” Barker, 2021 WL 5564625, at *1. We remanded to allow Barker “to

provide additional facts explaining how the State’s failed attempt to provide access

to toiling services by means of the Hoyer lift amounted to a denial of such services

on account of his disability,” and required him “to plead facts plausibly suggesting

that the defendants acted with deliberate indifference under the test established in

Duvall . . . .” Id.

Upon remand, Barker did not plead specific facts showing that he was

unable “to enjoy meaningful access” to a toilet. See Mark H., 620 F.3d at 1097.

Further, his amended complaint does not meaningfully allege that the State was

deliberately indifferent to a risk of disability discrimination, rather than a risk of

physical injury from alleged misuse of the Hoyer lift. See Simmons v. Navajo

County, Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) (“The ADA does not create a

remedy for medical malpractice.” (quoting Bryant v. Madigan, 84 F.3d 246, 249

(7th Cir. 1996)), overruled on other grounds by Castro v. County of Los Angeles,

833 F.3d 1060 (9th Cir. 2016) (en banc).

4 Therefore, the amended complaint failed to state a cognizable ADA or RA

claim, and the district court properly dismissed it.

AFFIRMED.