NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARRYL LEE DUNSMORE, No. 20-56135
Plaintiff-Appellant, D.C. No. 3:20-cv-00406-AJB-
WVG
v.
STATE OF CALIFORNIA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted July 19, 2021**
Before: SCHROEDER, SILVERMAN, and MURGUIA, Circuit Judges.
California state prisoner Darryl Lee Dunsmore appeals from the district
court’s order dismissing Dunmore’s action alleging Americans with Disabilities
Act (“ADA”) and other claims. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the dismissal of a complaint for failure to state a claim under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. §§ 1915A and 1915(e)(2). Belanus v. Clark, 796 F.3d 1021, 1024 (9th Cir.
2015); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). We reverse and
remand.
The district court dismissed Dunsmore’s ADA claim because Dunsmore
failed to allege facts sufficient to show that defendants intentionally discriminated
against him because of his disability, and because defendants, in their individual
capacities, were not liable under Title II of the ADA. However, Dunsmore alleged
that the public entity defendants, the County of San Diego and San Diego Sheriff
Bill Gore, in his official capacity, were deliberately indifferent to his
accommodations requests because they knew of Dunsmore’s need for
accommodations, refused to provide reasonable accommodations, encouraged
Dunsmore to use facilities and equipment inconsistent with his accommodations
and threatened Dunsmore with reprisals for requesting the accommodations. See
42 U.S.C. § 12131(1)(A)-(B) (defining a public entity under the ADA as any local
government or agency of a local government); Duvall v. County of Kitsap, 260
F.3d 1124, 1135, 1138-39 (9th Cir. 2001) (setting forth elements of an ADA
failure-to-accommodate claim; in order to recover monetary damages under the
ADA, a plaintiff must show intentional discrimination; the test for intentional
discrimination is deliberate indifference). Dunsmore’s allegations “are sufficient
to warrant ordering [defendants] to file an answer.” Wilhelm v. Rotman, 680 F.3d
2 20-56135
1113, 1116 (9th Cir. 2012).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider Dunsmore’s pro se motion for a preliminary injunction
(Docket Entry No. 24) because Dunsmore is represented by counsel.
REVERSED and REMANDED.
3 20-56135