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`Case 2:24-cv-02891-AC Document 25 Filed 01/13/25 Page 1 of 15
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`
`FRANK LEE JOHNSON,
`Plaintiff,
`
`v.
`SANJAY AGARWAL, et al.,
`Defendants.
`
`No. 2:24-cv-2891 AC P
`
`ORDER
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`Plaintiff is a state inmate who filed this civil rights action pursuant to 42 U.S.C. § 1983
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`without a lawyer. On October 21, 2024, this case was transferred from the Northern District to
`the Eastern District of California. ECF No. 14. On November 6, 2024, the court ordered plaintiff
`to submit a request to proceed in forma pauperis or pay the required fees in the amount of $405.
`ECF No. 19 at 1-2. The court also denied plaintiff’s motions for the appointment of counsel. Id.
`at 2. Plaintiff has since filed a notice of payment, informing the court that he paid the filing fee
`for this case prior to the case transfer, ECF No. 21, and requesting the magistrate judge reconsider
`her decision to deny plaintiff’s motions for appointment of counsel, ECF No. 23.1
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`1 Plaintiff has also filed multiple notices informing the court about his medical conditions and his
`continued efforts to pursue prison grievances. See ECF Nos. 22-24. The court advises plaintiff
`that he should not send grievance paperwork to the court unless it is being submitted in support of
`a motion or opposition to a motion. Additionally, plaintiff is advised that he must sign all
`pleadings, motions, and other papers submitted to the court for filing, Fed. R. Civ. P. 11(a), or
`risk sanctions, including but not limited to striking the documents from the record or dismissal of
`this action. See L.R. 110.
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`Having confirmed the filing fee was paid in the Northern District Court prior to transfer,
`see Johnson v. Agarwal, No. 3:24-cv-4437 WHO, ECF No. 15, the court will proceed to screen
`the case and rule on plaintiff’s motion for reconsideration.
`I.
`Statutory Screening of Prisoner Complaints
`A. Screening Standards
`The court is required to screen complaints brought by prisoners seeking relief against “a
`governmental entity or officer or employee of a governmental entity.” 28 U.S.C. § 1915A(a). A
`claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v.
`Williams, 490 U.S. 319, 325 (1989). The court may dismiss a claim as frivolous if it is based on
`an indisputably meritless legal theory or factual contentions that are baseless. Neitzke, 490 U.S.
`at 327. The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an
`arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989).
`In order to avoid dismissal for failure to state a claim a complaint must contain more than
`“naked assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause
`of action.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-557 (2007). In other words,
`“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
`statements do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim upon which the
`court can grant relief has facial plausibility. Twombly, 550 U.S. at 570. “A claim has facial
`plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
`inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. When
`considering whether a complaint states a claim, the court must accept the allegations as true,
`Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe the complaint in the light most
`favorable to the plaintiff, Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).
`B. Factual Allegations of the Complaint
`The first amended complaint (“FAC”) 2 alleges that defendants Sanjay Agarwal and
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`2 Plaintiff titled ECF No. 17 as the second amended complaint. See ECF No. 17. However, the
`docket reveals only one prior complaint, ECF No. 8. The initial letter filed in this case is not a
`complaint. See ECF No. 1. Before the court could screen the complaint, plaintiff’s filed ECF
`No. 17, which has been docketed and will be referred to as the first amended complaint (“FAC”).
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`unnamed nurses (referred to Doe defendants), in their individual capacities, violated plaintiff’s
`rights under the Eighth and Fourteenth Amendments, and the Americans with Disabilities Act
`(“ADA”). ECF No. 17. Specifically, plaintiff alleges that despite his transfer to the California
`Health Care Facility (“CHCF”) with prescribed breathing equipment, a treatment plan, and a
`diagnosis of “[a]dvance chronic obstructive pulmonary disease, with recurrent acute exacerbation,
`post inflammatory fibrosis of the lungs due to Covid 19 infection and bronchiectasis,” plaintiff’s
`primary care provider at CHCF, defendant Agarwal, “discontinued” plaintiff’s prescription for a
`breathing machine when plaintiff’s machine broke, and did not consult with a respiratory
`specialist or rely on any diagnostic data to support his decision. Id. at 4. Plaintiff further alleges
`that Agarwal lowered the dosage of plaintiff’s medication and altered plaintiff’s medical records
`to minimize the severity of plaintiff’s overall medical condition. Id. Because of Agarwal’s
`actions, defendant Doe, the shift lead, and other Doe defendants did not follow the correct
`treatment plan. Id. at 4-5. Plaintiff began to develop soreness in his lumbar spine and symptoms
`not common to his condition. Id. at 5. When plaintiff complained to Doe defendants on second
`and third watch, they merely documented his complaints. Id. The next day, defendant Agarwal
`failed to treat plaintiff or order his staff to do so, which resulted in a blood infection. Id.
`Approximately two weeks later, plaintiff “coded out” and was taken to the emergency room
`where he was diagnosed with advanced methicillin resistant staphylococcus aureus infection. Id.
`When plaintiff returned to CHCF, defendant Agarwal once again altered plaintiff’s treatment plan
`and medication regiment, disregarded the discharge orders from the hospital, and removed
`plaintiff’s catheter and demanded he pee in a urinal jug, despite knowing that plaintiff could not
`do so. Id. at 6-7. As a result, the pressure sore returned, and plaintiff fears he will once again end
`up in the emergency room if not properly treated. Id. at 7.
`Plaintiff also alleges that, while at CHCF, he has been denied breathing treatments and
`appointments with a pulmonologist, id. at 6; when he has pushed his emergency light for
`assistance, no one at CHCF has helped transfer him to and from the toilet, his wheelchair, or bed,
`id.; and he has been denied a new wheelchair, clean respiratory equipment, medication, and
`palliative care, id. at 9. Plaintiff seeks a declaratory judgment that defendants violated plaintiff’s
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`rights under the U.S. Constitution and ADA, compensatory and punitive damages, costs of
`litigation and reasonable attorney’s fees, and other relief as the court deems just and proper. Id. at
`11-12.
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`C. Claims for Which a Response Will Be Required
`After conducting the screening required by 28 U.S.C. § 1915A(a), the court finds that
`plaintiff has adequately stated a valid claim for relief pursuant to the Eighth Amendment against
`defendant Agarwal for medical deliberate indifference.
`D. Failure to State a Claim
`The allegations in the complaint, however, are not sufficient to state any other claims for
`relief against Agarwal or any Doe defendants.
`Plaintiff does not allege that Doe defendants were aware that the treatment plan they were
`following was incorrect and nonetheless continued to follow it. Additionally, plaintiff does not
`allege any facts showing he complained of anything more than “soreness” to the second and third
`watch Doe defendants such that they would have known that he was suffering from a serious
`medical need or that failure to take further action would put him at risk of serious harm.
`To the extent plaintiff is alleging that he was denied appropriate care because he is
`disabled, he fails to state a Fourteenth Amendment equal protection claim because being disabled
`is not a protected class and he has not shown that he was treated differently than other similarly
`situated prisoners.
`To the extent plaintiff is attempting to claim that failure to provide treatment for his
`disabilities violates the ADA, he fails to state a claim because the ADA does not provide relief for
`failure to treat a disability. Additionally, Plaintiff’s ADA claims against defendants fail because
`defendants cannot be sued for monetary damages in their individual capacities under the ADA.
`Moreover, to the extent, plaintiff’s argument is that he was denied accommodations in the form of
`assistance to transfer him to and from his toilet, wheelchair, and bed, he states a cognizable claim
`but has not named a proper defendant.
`It appears to the court that plaintiff may be able to allege facts to fix these problems.
`Therefore, plaintiff has the option of filing an amended complaint.
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`E. Options from Which Plaintiff Must Choose
`Based on the court’s screening, plaintiff has a choice to make. After selecting an option
`from the two options listed below, plaintiff must return the attached Notice of Election form to
`the court within 21 days from the date of this order.
`The first option available to plaintiff is to proceed immediately against defendant
`Agarwal on the Eighth Amendment medical deliberate indifference claims. By choosing
`this option, plaintiff will be agreeing to voluntarily dismiss all other claims against Agarwal
`and Doe defendants, including Fourteenth Amendment and ADA claims. The court will
`proceed to immediately serve the complaint and order a response from defendant Agarwal.
`The second option available to plaintiff is to file an amended complaint to fix the
`problems described in Section I.D. against defendant Agarwal and Doe defendants. If
`plaintiff chooses this option, the court will set a deadline in a subsequent order to give
`plaintiff time to file an amended complaint.
`II.
`Motion for Reconsideration of Motion to Appoint Counsel
`On November 6, 2024, the undersigned denied plaintiff’s motions for appointment of
`counsel. ECF No. 19 at 2. Plaintiff recently filed a notice informing the court of his continued
`efforts to resolve his disputes against defendants, and within this notice included a request for the
`magistrate judge to reconsider her order denying plaintiff’s motions to appoint counsel. See ECF
`No. 23 at 1.
`Motions to reconsider are committed to the discretion of the trial court. Combs v. Nick
`Garin Trucking, 825 F.2d 437, 441 (D.C. Cir. 1987); Rodgers v. Watt, 722 F.2d 456, 460 (9th
`Cir. 1983). To succeed, a party must set forth facts or law of a strongly convincing nature to
`induce the court to reverse its prior decision. See Kern-Tulare Water Dist. v. City of Bakersfield,
`634 F. Supp. 656, 665 (E.D. Cal. 1986), affirmed in part and reversed in part on other grounds
`828 F.2d 514 (9th Cir. 1987). Local Rule 230(j) requires that a motion for reconsideration state
`“what new or different facts or circumstances are claimed to exist which did not exist or were not
`shown upon such prior motion, or what other grounds exist for the motion; and . . . why the facts
`or circumstances were not shown at the time of the prior motion.” L.R. 230(j)(3)-(4).
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`Plaintiff seeks reconsideration of the magistrate judge’s order because he claims the
`magistrate judge was under the impression he was “indigent.” ECF No. 23 at 1. However, that
`was not the basis for this court’s order. Instead, the magistrate judge denied the motion to appoint
`counsel because plaintiff had failed to establish exceptional circumstances warranting
`appointment of counsel. Id. Had plaintiff shown, as he now argues, that he is not indigent, the
`court would have had an additional basis to deny plaintiff’s motion. See Lewis v. Casey, 518
`U.S. 343, 354 (1996) (there is no constitutional right to appointed counsel in civil actions brought
`by prisoners); 28 U.S.C. § 1915(e)(1) (the court has discretion to appoint an attorney to represent
`“any person unable to afford counsel”); Webb v. State of California, 185 F.3d 872 (9th Cir. 1999)
`(“Motions for appointment of counsel under 28 U.S.C. § 1915 require supporting affidavits to
`state the facts as to affiant’s poverty with ‘some particularity, definiteness and certainty.’”);
`Fratus v. Uchi, No. 1:21-cv-1523 JLT EPG P, 2022 WL 5235469, at *1-2, 2022 U.S. Dist. LEXIS
`160400, at *2-3 (E.D. Cal. Sept. 6, 2022) (when a plaintiff seeks appointment of counsel in a civil
`action, he should include information relevant to establish his inability to afford counsel).
`Because plaintiff does not offer new facts or circumstances, or changes in law, meriting
`reconsideration, the court denies plaintiff’s motion for reconsideration.
`III.
`Plain Language Summary of this Order for Party Proceeding Without a Lawyer
`Some of the allegations in the complaint state claims against the defendants and some do
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`not. You have stated claims against defendant Agarwal for violating your rights under the Eighth
`Amendment. You have not stated Eighth Amendment claims against any Doe defendants because
`you have not alleged that any of them were aware of a serious medical need of yours or risk to
`your health or safety and ignored it. You have not stated any Fourteenth Amendment equal
`protection claim against any defendant because disabled individuals are not entitled to an
`increased protection under the Fourteenth Amendment, and you have not alleged that you were
`treated differently than others with similar circumstances. You have also failed to state any ADA
`claims because you cannot seek monetary damages against defendants in their individual
`capacities under the ADA, and a failure to treat claim is not an ADA claim; it is an Eighth
`Amendment deliberate indifference claim. You also fail to state any claims against any other Doe
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`defendants because you have not explained what each Doe defendant did or did not do that
`violated your rights.
`The court has also denied your request to reconsider its decision to deny your prior
`motions for appointment of an attorney in this case because you present no new facts or law to
`change the court’s order.
`You have a choice to make. You may either (1) proceed immediately on your medical
`deliberate indifference claims against Agarwal and voluntarily dismiss the other claims; or (2) try
`to amend the complaint. To decide whether to amend your complaint, the court has attached the
`relevant legal standards that may govern your claims for relief. See Attachment A. Pay
`particular attention to these standards if you choose to file an amended complaint.
`IV.
`CONCLUSION
`In accordance with the above, IT IS HEREBY ORDERED that:
`1. Plaintiff’s Notice (ECF No. 23) be construed as a Motion for Reconsideration and be
`denied;
`2. Plaintiff fails to state cognizable Fourteenth Amendment or ADA claims against any
`defendant and fails to state Eighth Amendment claims against Doe defendants for which relief
`can be granted.
`3. Plaintiff has the option to proceed immediately on his Eighth Amendment medical
`deliberate indifference claims against Agarwal.
`4. Within twenty-one days from the date of this order, plaintiff shall complete and
`return the attached Notice of Election form notifying the court whether he wants to proceed on
`the screened complaint or whether he wants to file an amended complaint.
`5. If plaintiff does not return the form, the court will assume that he is choosing to
`proceed on the complaint as screened and will recommend dismissal without prejudice of
`////
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`Case 2:24-cv-02891-AC Document 25 Filed 01/13/25 Page 8 of 15
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`plaintiff’s Fourteenth Amendment and ADA claims against all defendants, as well as plaintiff’s
`Eighth Amendment claims against Doe defendants.
`DATED: January 10, 2025
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`Case 2:24-cv-02891-AC Document 25 Filed 01/13/25 Page 9 of 15
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`
`FRANK LEE JOHNSON,
`Plaintiff,
`
`v.
`SANJAY AGARWAL, et al.,
`Defendants.
`
`No. 2:24-cv-2891 AC P
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`NOTICE OF ELECTION
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`Check one:
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`_____ Plaintiff wants to proceed immediately on his Eighth Amendment medical deliberate
`indifference claims against defendant Agarwal without amending the complaint. Plaintiff
`understands that by choosing this option, all other defendants and the remaining Eighth
`Amendment, Fourteenth Amendment, and ADA claims will be voluntarily dismissed
`without prejudice pursuant to Federal Rule of Civil Procedure 41(a).
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`_____ Plaintiff wants time to file an amended complaint.
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`DATED:____________
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`Frank Lee Johnson
`Plaintiff pro se
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`Attachment A
`This Attachment provides, for informational purposes only, the legal standards that may
`apply to your claims for relief. Pay particular attention to these standards if you choose to file an
`amended complaint.
`I.
`Legal Standards Governing Amended Complaints
`If plaintiff chooses to file an amended complaint, he must demonstrate how the conditions
`about which he complains resulted in a deprivation of his constitutional rights. Rizzo v. Goode,
`423 U.S. 362, 370-71 (1976). Also, the complaint must specifically identify how each named
`defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981).
`There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or
`connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy,
`588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official
`participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266,
`268 (9th Cir. 1982) (citations omitted).
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`Plaintiff is also informed that the court cannot refer to a prior pleading in order to make
`his amended complaint complete. See Local Rule 220. This is because, as a general rule, an
`amended complaint replaces the prior complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 1967)
`(citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir.
`2012). Therefore, in an amended complaint, every claim and every defendant must be included.
`II.
`Legal Standards Governing Substantive Claims for Relief
`A. Doe Defendants
`Although the use of Doe defendants is acceptable to withstand dismissal at the initial
`screening stage, service of process for these defendants will not be ordered until such time as
`plaintiff has: 1) identified them by their real names through discovery; and, 2) filed a motion to
`amend the complaint to substitute their real names. See Mosier v. Cal. Dep’t of Corr. & Rehab.,
`2012 WL 2577524, at *3, 2012 U.S. Dist. LEXIS 92286, at * 8-9 (E.D. Cal. July 2, 2012),
`Robinett v. Correctional Training Facility, 2010 WL 2867696, at *4, 2010 U.S. Dist. LEXIS
`76327, at * 12-13 (N.D. Cal. July 20, 2010). Additionally, to state a claim against Doe
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`defendants, plaintiff must allege conduct by each specific Doe defendant to establish liability
`under 42 U.S.C. § 1983. This means that plaintiff should identify each Doe defendant separately
`(e.g., Doe 1, Doe 2, etc.) and explain what each individual did to violate his rights.
`
`
`B. Personal Involvement
`The civil rights statute requires that there be an actual connection or link between the
`actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See
`Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362
`(1976). The Ninth Circuit has held that “[a] person ‘subjects' another to the deprivation of a
`constitutional right, within the meaning of section 1983, if he does an affirmative act, participates
`in another's affirmative acts or omits to perform an act which he is legally required to do that
`causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th
`Cir. 1978) (citation omitted). In order to state a claim for relief under section 1983, plaintiff must
`link each named defendant with some affirmative act or omission that demonstrates a violation of
`plaintiff's federal rights.
`C. Eighth Amendment - Deliberate Indifference to Medical Needs
`Denial or delay of medical care for a prisoner’s serious medical needs may constitute a
`violation of the prisoner’s Eighth and Fourteenth Amendment rights. Estelle v. Gamble, 429 U.S.
`97, 104-05 (1976). An individual is liable for such a violation only when the individual is
`deliberately indifferent to a prisoner’s serious medical needs. Id.; see Jett v. Penner, 439 F.3d
`1091, 1096 (9th Cir. 2006); Hallett v. Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Lopez v.
`Smith, 203 F.3d 1122, 1131-32 (9th Cir. 2000).
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`In the Ninth Circuit, the test for deliberate indifference consists of two parts. Jett, 439
`F.3d at 1096, citing McGuckin v. Smith, 974 F.2d 1050 (9th Cir. 1991), overruled on other
`grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc). First, the
`plaintiff must show a “serious medical need” by demonstrating that “failure to treat a prisoner’s
`condition could result in further significant injury or the ‘unnecessary and wanton infliction of
`pain.’” Id., citing Estelle, 429 U.S. at 104. “Examples of serious medical needs include ‘[t]he
`existence of an injury that a reasonable doctor or patient would find important and worthy of
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`comment or treatment; the presence of a medical condition that significantly affects an
`individual’s daily activities; or the existence of chronic and substantial pain.’” Lopez, 203 F. 3d
`at 1131-1132, citing McGuckin, 974 F.2d at 1059-60.
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`Second, the plaintiff must show the defendant’s response to the need was deliberately
`indifferent. Jett, 439 F.3d at 1096. This second prong is satisfied by showing (a) a purposeful act
`or failure to respond to a prisoner’s pain or possible medical need and (b) harm caused by the
`indifference. Id. Under this standard, the prison official must not only “be aware of facts from
`which the inference could be drawn that a substantial risk of serious harm exists,” but that person
`“must also draw the inference.” Farmer, 511 U.S. at 837. This “subjective approach” focuses
`only “on what a defendant’s mental attitude actually was.” Id. at 839. A showing of merely
`negligent medical care is not enough to establish a constitutional violation. Frost v. Agnos, 152
`F.3d 1124, 1130 (9th Cir. 1998), citing Estelle, 429 U.S. at 105-106. A difference of opinion
`about the proper course of treatment is not deliberate indifference, nor does a dispute between a
`prisoner and prison officials over the necessity for or extent of medical treatment amount to a
`constitutional violation. See, e.g., Toguchi v. Chung, 391 F.3d 1051, 1058 (9th Cir. 2004);
`Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Furthermore, mere delay of medical
`treatment, “without more, is insufficient to state a claim of deliberate medical indifference.”
`Shapley v. Nev. Bd. of State Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). Where a
`prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must
`show that the delay caused “significant harm and that Defendants should have known this to be
`the case.” Hallett, 296 F.3d at 745-46; see McGuckin, 974 F.2d at 1060.
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`D. Fourteenth Amendment – Equal Protection Clause
`The Fourteenth Amendment’s Equal Protection Clause requires the State to treat all
`similarly situated people equally. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439
`(1985) (citation omitted). “To state a claim for violation of the Equal Protection Clause, a
`plaintiff must show that the defendant acted with an intent or purpose to discriminate against him
`based upon his membership in a protected class.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th
`Cir. 2003) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)). “‘[T]he disabled
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`do not constitute a suspect class’ for equal protection purposes,” Lee v. City of Los Angeles, 250
`F.3d 668, 687 (9th Cir. 2001) (quoting Does 1-5 v. Chandler, 83 F.3d 1150, 1155 (9th Cir.
`1996)). Alternatively, a plaintiff may state an equal protection claim if he shows similarly
`situated individuals were intentionally treated differently without a rational relationship to a
`legitimate government purpose. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
`(citations omitted).
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`E. Americans with Disabilities Act
`Title II of the ADA applies to inmates within state prisons. Pennsylvania Dept. of
`Corrections v. Yeskey, 524 U.S. 206 (1998). To state a claim for violation of Title II of the ADA,
`a plaintiff must allege four elements:
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`(1) [H]e is an individual with a disability; (2) he is otherwise
`qualified to participate in or receive the benefit of some public
`entity’s services, programs, or activities; (3) he was either excluded
`from participation in or denied the benefits of the public entity’s
`services, programs, or activities, or was otherwise discriminated
`against by the public entity; and (4) such exclusion, denial of
`benefits, or discrimination was by reason of [his] disability.
`O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1060 (9th Cir. 2007); see also Thompson v.
`Davis, 295 F.3d 890, 895 (9th Cir. 2002); Duvall v. County of Kitsap, 260 F.3d 1124 (9th Cir.
`2001).
`“A plaintiff can allege disability discrimination in the provision of inmate services,
`programs, or activities under the ADA by pleading either (1) discrimination based on disparate
`treatment or impact, or (2) denial of reasonable modifications or accommodations.” Cravotta v.
`County of Sacramento, No. 2:22-cv-0167 DJC AC, 2024 WL 645705, at *7, 2024 U.S. Dist.
`LEXIS 26740, at *21 (E.D. Cal. Feb. 15, 2024); see Dunlap v. Ass’n of Bay Area Gov’ts, 996 F.
`Supp. 962, 965 (N.D. Cal. 1998) (“[T]he ADA not only protects against disparate treatment, it
`also creates an affirmative duty in some circumstances to provide special, preferred treatment, or
`‘reasonable accommodation.’”). To support such a disparate impact claim, a plaintiff must
`demonstrate that the policy has the “effect of denying meaningful access to public services.”
`K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 725 F.3d 1088, 1102 (9th Cir. 2013). Although
`§ 12132 does not expressly provide for reasonable accommodations, the implementing
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`regulations provide that “[a] public entity shall make reasonable modifications in policies,
`practices, or procedures when the modifications are necessary to avoid discrimination on the basis
`of disability, unless the public entity can demonstrate that making the modifications would
`fundamentally alter the nature of the service, program, or activity.” 28 C.F.R. § 35.130(b)(7)(i);
`see also Pierce v. County of Orange, 526 F.3d 1190, 1215 (9th Cir. 2008).
`“[I]nsofar as Title II [of the ADA] creates a private cause of action for damages against
`the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates
`state sovereign immunity.” United States v. Georgia, 546 U.S. 151, 159 (2006) (emphasis in
`original). The proper defendant in an ADA action is the public entity responsible for the alleged
`discrimination. United States v. Georgia, 546 U.S. 151, 153 (2006). State correctional facilities
`are “public entities” within the meaning of the ADA. See 42 U.S.C. § 12131(1)(A) & (B); Penn.
`Dept. of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998); Armstrong v. Wilson, 124 F.3d 1019, 1025
`(9th Cir. 1997). ADA claims may not be brought against state officials in their individual
`capacities. Stewart v. Unknown Parties, 483 F. App’x 374, 374 (9th Cir. 2012) (citing Lovell v.
`Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002)); Garcia v. S.U.N.Y. Health Scis. Ctr. of
`Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (“[N]either Title II of the ADA nor § 504 of the
`Rehabilitation Act provides for individual capacity suits against state officials.” (citations
`omitted)).
`Compensatory damages are available under the ADA when plaintiff demonstrates that the
`discrimination he experienced was the result of deliberate indifference, which “requires both
`knowledge that a harm to a federally protected right is substantially likely, and a failure to act
`upon that likelihood.” Duvall, 260 F.3d at 1138-39 (citations omitted). “When the plaintiff has
`alerted the public entity to his need for accommodation . . ., the public entity is on notice that an
`accommodation is required, and the plaintiff has satisfied the first element of the deliberate
`indifference test.” Id. at 1139. “[I]n order to meet the second element of the deliberate
`indifference test, a failure to act must be a result of conduct that is more than negligent, and
`involves an element of deliberateness.” Id. (citations omitted).
`Treatment, or lack of treatment, concerning plaintiff’s medical condition does not provide
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`a basis upon which to impose liability under the ADA. “The ADA prohibits discrimination
`because of disability, not inadequate treatment for disability.” Simmons v. Navajo County, 609
`F.3d 1011, 1022 (9th Cir. 2010) (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996)).
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