Baugher v. Washington State University, No. 4:2017cv05190 - Document 23 (E.D. Wash. 2018)

Court Description: ORDER denying 8 Plaintiff's Motion for Summary Judgment and granting 17 Defendant's Motion to Dismiss. Plaintiff may file an amended complaint within 60 days from the date of entry of this order. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)

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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 PAMELA A. BAUGHER, NO. 4:17-CV-5190-TOR 8 9 10 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. WASHINGTON STATE UNIVERSITY, 11 12 Defendant. 13 14 BEFORE THE COURT is Plaintiff Pamela Baugher’s Motion for Summary 15 Judgment (ECF No. 8) and Defendant Washington State University’s Motion to 16 Dismiss and, in the alternative, Motion for Summary Judgment (ECF No. 17). 17 Pamela Baugher filed the Motion for Summary Judgment (ECF No. 8) on 18 November 20, 2017, just three days after filing this suit. See ECF Nos. 1; 8. After 19 extending the deadline to respond, ECF No. 16, Defendant Washington State 20 University (WSU) filed its response and corresponding Motion to Dismiss and ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 1 Motion for Summary Judgment on December 20, 2017. ECF No. 12. Plaintiff has 2 not filed a response to Defendant’s Motion. The matters were submitted without 3 oral argument. For the reasons discussed below, the Court GRANTS Defendant’s 4 Motion to Dismiss and, accordingly, DENIES Plaintiff’s Motion for Summary 5 Judgment and DENIES AS MOOT Defendant’s Motion for Summary Judgment. 6 STANDARD OF REVIEW 7 Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may 8 move to dismiss the complaint for “failure to state a claim upon which relief can be 9 granted.” “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does 10 not need detailed factual allegations . . . a plaintiff’s obligation to provide the 11 “grounds” of his “entitle[ment] to relief” requires more than labels and 12 conclusions, and a formulaic recitation of the elements of a cause of action will not 13 do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 14 8(a)(2); citations omitted; brackets in original). Accordingly, to survive dismissal, 15 a plaintiff must allege “sufficient factual matter, accepted as true, to ‘state a claim 16 to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) 17 (quoting Twombly, 550 U.S. at 570). In reviewing the complaint, the plaintiff’s 18 “allegations of material fact are taken as true and construed in the light most 19 favorable to the plaintiff[,]” but “conclusory allegations of law and unwarranted 20 inferences are insufficient to defeat a motion to dismiss for failure to state a claim.” ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 In re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir. 1996) (citation and 2 brackets omitted). When deciding, the Court may consider the plaintiff’s 3 allegations and any “documents incorporated into the complaint by reference . . . .” 4 Metzler Inv. GMBH v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th Cir. 5 2008) (citation omitted). 6 Where a plaintiff is proceeding pro se, the allegations must be viewed under 7 a less stringent standard than allegations of plaintiffs represented by counsel. 8 Haines v. Kerner, 404 U.S. 519, 520-21 (1972). While the court can liberally 9 construe a pro se plaintiff’s complaint, it cannot supply an essential fact that the 10 plaintiff has failed to plead. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992). BACKGROUND1 11 12 The instant action arises out of the death of Shep, Plaintiff Pamela Baugher’s 13 beloved dog. According to Plaintiff, WSU refused to provide a potentially life- 14 saving procedure for Shep because Plaintiff did not have the cash up-front to pay 15 for the services, as is required for services at the WSU Veterinary Teaching 16 Hospital. See ECF Nos. 3; 8. Plaintiff explains that – although she had the funds 17 available in her account – she was unable to withdraw the needed cash without 18 19 1 20 Baugher. The following facts are construed in the light most favorable to Ms. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 having to travel hundreds of miles to her bank, which – as she alleges – she could 2 not do because of a disability. ECF No. 8 at 4. She thus asserts a claim against 3 Defendant WSU under the American with Disabilities Act and Rehabilitation Act 4 for failing to reasonably accommodate2 Plaintiff’s inability to pay cash up-front.3 5 6 7 2 8 ‘reasonable accommodation,’” as used in the Rehabilitation Act, although the 9 “terms create identical standards” and the Ninth Circuit has a “practice of using “Title II of the ADA uses the term ‘reasonable modification,’ rather than 10 these terms interchangeably.” McGary v. City of Portland, 386 F.3d 1259, 1266, 11 n.3 (9th Cir. 2004) (citation omitted). The Court will follow this practice. 12 3 13 No 3 at 2, and that WSU was hunting her down to force the killing of Shep, ECF 14 No. 8 at 2, 4. However, Plaintiff has not specifically alleged a tort – or any other – 15 cause of action based on this alleged conduct. See ECF No. 1-1. Even if the Court 16 were to construe Plaintiff’s Amended Complaint as alleging a tort action, said 17 action would be jurisdictionally barred because Plaintiff has not alleged she filed a 18 claim with the State Office of Financial Management, as is a prerequisite for filing 19 a tort claim against the state. Schoonover v. State, 116 Wash. App. 171, 177, 64 20 P.3d 677, 680 (2003) (citing RCW 4.92.100). Plaintiff also asserts that WSU put out an alert on her for animal abuse, ECF ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 GOVERNING LAW 2 The issue before the Court is whether WSU violated Section 504 of the 3 Rehabilitation Act of 1973, 29 U.S.C. § 794 (Rehabilitation Act), and Section 202 4 of Title II of the American with Disabilities Act of 1990 (ADA). Both the 5 Rehabilitation Act and the ADA prohibit discrimination against the disabled by 6 entities receiving federal funds and public entities, respectively. 29 U.S.C. § 794; 7 42 U.S.C. § 12132; Bonner v. Lewis, 857 F.2d 559, 561 (9th Cir. 1988); Cohen v. 8 City of Culver City, 754 F.3d 690, 695 (9th Cir. 2014); Martin v. California Dep’t 9 of Veterans Affairs, 560 F.3d 1042, 1047 (9th Cir. 2009). Title II of the ADA “was 10 expressly modeled after § 504 of the Rehabilitation Act.” Duvall v. Cty. of Kitsap, 11 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of reh’g (Oct. 11, 12 2001), and the Ninth Circuit has held “[t]here is no significant difference in 13 analysis of the rights and obligations created by the ADA and the Rehabilitation 14 Act,” so “courts have applied the same analysis to claims brought under both 15 statutes.” Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 16 1999). However, the Ninth Circuit has clarified that “there are material differences 17 between the statutes as a whole.” K.M. ex rel. Bright v. Tustin Unified Sch. Dist., 18 725 F.3d 1088, 1099 (9th Cir. 2013). 19 20 To succeed on either claim, the plaintiff must first show that a policy or other action “discriminates on the basis of disability.” Weinreich v. Los Angeles ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 Cty. Metro. Transp. Auth., 114 F.3d 976, 979 (9th Cir. 1997) (emphasis in 2 original). Stated another way, a policy or other government action discriminates 3 on the basis of disability when it (1) denies the disabled “meaningful access” to a 4 service (2) due to his or her disability. Id.; Mark H. v. Hamamoto, 620 F.3d 1090, 5 1097 (9th Cir. 2010); Alexander v. Choate, 469 U.S. 287, 301 (1985) (“[A]n 6 otherwise qualified handicapped individual must be provided with meaningful 7 access to the benefit that the grantee offers.”); Washington v. Indiana High Sch. 8 Athletic Assoc., 181 F.3d 840, 848 (7th Cir. 1999). Once a plaintiff is denied 9 meaningful access due to his or her disability “[t]he duty to provide ‘reasonable 10 accommodations’ under the ADA and the Rehabilitation Act arises[,]” Weinreich, 11 114 F.3d at 979: 12 13 14 15 When a state’s policies, practices or procedures discriminate against the disabled in violation of the ADA, Department of Justice regulations require reasonable modifications in such 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.” 16 Crowder v. Kitagawa, 81 F.3d 1480, 1485 (9th Cir. 1996) (quoting 28 C.F.R. § 17 35.130(b)(7))). “Reasonableness ‘depends on the individual circumstances of each 18 case, and requires a fact-specific, individualized analysis of the disabled 19 individual’s circumstances and the accommodations that might allow him to [enjoy 20 meaningful access to the program.]’” Mark H. v. Hamamoto, 620 F.3d at 1098 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 (brackets in original; quoting Vinson v. Thomas, 288 F.3d 1145, 1154 (9th Cir. 2 2002)). 3 To establish a denial of meaningful access, a plaintiff is not required to show 4 they are “completely prevented from enjoying a service, program, or 5 activity.” Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001) (“If the 6 Courthouse’s wheelchair ramps are so steep that they impede a disabled person or 7 if its bathrooms are unfit for the use of a disabled person, then it cannot be said that 8 the trial is ‘readily accessible,’ regardless whether the disabled person manages in 9 some fashion to attend the trial.”). “Difficulty in accessing a benefit, however, 10 does not by itself establish a lack of meaningful access.” Todd v. Carstarphen, 236 11 F. Supp. 3d 1311, 1329 (N.D. Ga. 2017); see Bircoli v. Miami-Dade County, 480 12 F.3d 1072, 1087-88 (11th Cir. 2007) (deaf motorist not denied benefit of effective 13 communication with officer, even though communication was difficult due to a 14 hearing impairment) and Ganstine v. Sec’y, Fla. Dep’t of Corr., 502 Fed.Appx 15 905, 910 (11th Cir. 2012) (inmate had meaningful access to the prison facilities 16 even though his disability prevented him from always accessing certain areas in the 17 prison in his wheelchair). Put in different terms, a disabled person is denied 18 “meaningful access” when a policy imposes an “undue burden” on the disabled. 19 See Cohen, 754 F.3d at 700. 20 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 The degree of connection for establishing the causal element varies between 2 the Rehabilitation Act and the ADA—Plaintiff must show she was “denied those 3 services ‘by reason of’ (for the ADA claim) or ‘solely because of’ (for the 4 Rehabilitation Act claim) her disability.” Martin, 560 F.3d at 1048. The “causal 5 standard for the Rehabilitation Act is even stricter” than that of the ADA. Id. 6 Neither standard requires the discrimination be intentional or facial discrimination, 7 as the protections have been broadly applied to “protect disabled persons 8 from discrimination arising out of both discriminatory animus and 9 ‘thoughtlessness,’ ‘indifference,’ or ‘benign neglect.’” Crowder, 81 F.3d at 1484 10 (quoting Choate, 469 U.S. at 295); Choate, 469 U.S. at 299 (“While we reject the 11 boundless notion that all disparate-impact showings constitute prima facie cases 12 under § 504, we assume without deciding that § 504 reaches at least some conduct 13 that has an unjustifiable disparate impact upon the handicapped”); Cohen, 754 F.3d 14 at 700 (“Even facially neutral government actions that apply equally to disabled 15 and nondisabled persons may violate Title II if the public entity has failed to make 16 reasonable accommodations to avoid unduly burdening disabled persons.”). 17 Rather, a plaintiff can demonstrate a policy denied services “by reason of” his or 18 her disability when the policy “treat[s] disabled [persons] differently or create[s] 19 disproportionate burdens because of the nature of their limitations or even their 20 status as individuals with disabilities.” Brown v. City of Los Angeles, 521 F.3d ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 1238, 1242 (9th Cir. 2008) (emphasis own). Some circuit courts employ a “but 2 for” test to determine whether a service was denied “by reason of” his or her 3 disability. See, e.g., New Directions Treatment Servs. v. City of Reading, 490 F.3d 4 293, 313 (3d Cir. 2007). 5 DISCUSSION 6 The Court finds that, taking Plaintiff’s factual allegations as true, Plaintiff 7 complaint does not survive Defendant’s Motion to Dismiss (ECF No. 17). Even 8 assuming Plaintiff has a disability within the meaning of the ADA and 9 Rehabilitation Act, Plaintiff’s account of the events does not demonstrate she was 10 denied meaningful access due to her disability. 11 First, Plaintiff was denied services because her “financial circumstances” 12 prevented her from being eligible for the services, not “by reason of” or “solely 13 because of” her alleged disability. Weinreich, 114 F.3d at 979. While Plaintiff 14 attempts to link her disability, her inability to drive, and her banking situation to 15 WSU’s ultimate denial of services, the connection is too tenuous. It was her 16 particular financial situation – having a distant bank and not otherwise having 17 enough cash on hand – that prevented her from accessing WSU services. 18 Second, even if the Court were to find that, “but for” Plaintiff’s disability, 19 she would have had access to the services, the Court cannot find that Plaintiff was 20 denied meaningful access to WSU’s veterinary services. Importantly, Plaintiff was ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 able to secure such services before under the same, cash up-front policy. Even 2 when she was “denied” services, she still had access to the services if she 3 otherwise secured the cash needed. Further, while Plaintiff complains she did not 4 have access to her own private transportation because of her disability, Plaintiff 5 could have arranged other means of transportation to travel to her bank. See 6 Hassan v. Slater, 41 F. Supp. 2d 343, 350 (E.D.N.Y.), aff’d, 199 F.3d 1322 (2d 7 Cir. 1999) (decision to close railway station did not violate ADA – even though the 8 closing made it more difficult for the plaintiff to travel – since plaintiff could use 9 alternate stations or modes of transportation). This puts Plaintiff in the same 10 position as others who may have difficulty paying for veterinary services in cash 11 up-front because of financial or travel restrictions. 12 If Plaintiff’s position were adopted, Title II and the Rehabilitation Act would 13 be without bounds, as every cash up-front policy – or any other policy that imposes 14 some burden on the disabled – would potentially violate the prohibitions against 15 discrimination. This is inconsistent with the somewhat heightened standard 16 requiring an undue burden or denial of meaningful access, see Cohen, 754 F.3d at 17 700, as opposed to a mere “[d]ifficulty in accessing a benefit[,]” Todd, 236 F. 18 Supp. 3d at 1329. See Bircoli v. Miami-Dade County, 480 F.3d at 1087-88; 19 Ganstine, 502 Fed.Appx at 910. Indeed, if Plaintiff’s position were adopted, the 20 ADA’s reach would extend to any public service offered that requires one to drive ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 to the location to secure the service. This would also lead to “the boundless 2 notion” rejected by the Supreme Court “that all disparate-impact showings 3 constitute prima facie cases” of discrimination. Choate, 469 U.S. at 299. 4 Ultimately, the WSU cash up-front policy did not deny Plaintiff meaningful 5 access to their services, and Plaintiff’s alleged exclusion “was not due to [her] 6 medical disability, but rather to [her] inability to satisfy a condition of eligibility 7 because of [her] financial circumstances.” Weinreich, 114 F.3d at 979. This is not 8 a case where the “requirement effectively prevents [a person with a disability] 9 from enjoying the benefits of state services”; rather, Plaintiff was able to access the 10 services until she had a personal banking issue. See Crowder, 81 F.3d at 1481 11 (quarantine requirement effectively precluded visually-impaired individuals who 12 relies on guide dogs to enjoy benefits of state services and activities in violation of 13 the ADA). Nor is this a case where some physical or other impediment effectively 14 limits the disabled from readily accessing services in a way particular to the 15 disability. See Shotz, 256 F.3d at 1080; see also Karczewski v. DCH Mission 16 Valley LLC, 862 F.3d 1006, 1013–14 (9th Cir. 2017). Quite the contrary—the 17 policy only imposes a minor burden that has no real connection to a disability; 18 there is no undue burden placed on Plaintiff and the policy does not otherwise have 19 an “unjustifiable disparate impact upon the handicapped[.]” Choate, 469 U.S. at 20 299. As a result, Plaintiff’s has failed to state a claim. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 OPPORTUNITY TO AMEND / VOLUNTARILY DISMISS COMPLAINT 2 Unless it is absolutely clear that amendment would be futile, a pro se litigant 3 must be given the opportunity to amend the complaint to correct any deficiencies. 4 Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute on 5 other grounds, 28 U.S.C. § 1915(e)(2), as stated in Aktar v. Mesa, 698 F.3d 1202, 6 1212 (9th Cir. 2012). Under Rule 15(a) of the Federal Rules of Civil Procedure, 7 leave to amend a party’s pleading “should [be] freely give[n] . . . when justice so 8 requires,” because the purpose of the rule is “to facilitate decision on the merits, 9 rather than on the pleadings or technicalities.” Novak v. United States, 795 F.3d 10 1012, 1020 (9th Cir. 2015) (citation omitted). “[A] district court should grant 11 leave to amend even if no request to amend the pleading was made, unless it 12 determines that the pleading could not possibly be cured by the allegation of other 13 facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc); Lacey v. 14 Maricopa Cty., 693 F.3d 896, 926 (9th Cir. 2012) (en banc). 15 Plaintiff’s claims for discrimination under the Rehabilitation Act and ADA 16 do not appear to be viable, even with additional allegations of fact. Out of an 17 abundance of caution, the Court will allow Plaintiff to file a Second Amended 18 Complaint, if buttressed by further factual allegations that could potentially state a 19 viable cause of action. 20 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 Plaintiff may submit a Second Amended Complaint within sixty (60) days of 2 the date of this Order which must include sufficient facts to establish a plausible 3 claim against Defendant WSU. See Broughton v. Cutter Laboratories, 622 F.2d 4 458, 460 (9th Cir. 1980) (citations omitted). To do so, Plaintiff must provide 5 specific information addressing all the deficiencies noted above. 6 PLAINTIFF IS CAUTIONED IF SHE FAILS TO AMEND WITHIN 60 7 DAYS AS DIRECTED, THE COURT WILL DISMISS THE CAUSES OF 8 ACTION 9 ACCORDINGLY, IT IS HEREBY ORDERED: 10 1. Defendant’s Motion to Dismiss (ECF No. 17) is GRANTED. Plaintiff is 11 free to file an amended complaint within sixty (60) days from the entry 12 of this Order. 13 14 2. Defendant’s Motion for Summary Judgment (ECF No. 17) is DENIED AS MOOT. 15 3. Plaintiff’s Motion for Summary Judgment (ECF No. 8) is DENIED. 16 The District Court Executive is directed to enter this Order, and furnish 17 18 copies to counsel. DATED March 30, 2018. 19 20 THOMAS O. RICE Chief United States District Judge ORDER GRANTING DEFENDANT’S MOTION TO DISMISS; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13

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