FILED
NOT FOR PUBLICATION
JUL 31 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARTHUR GRAY, No. 15-17470
Plaintiff-Appellant, D.C. No.
1:14-cv-00204-LJO-JLT
v.
COUNTY OF KERN, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Argued and Submitted July 12, 2017
San Francisco, California
Before: BEA and N.R. SMITH, Circuit Judges, and ROBRENO,** District Judge.
Arthur Gray appeals the district court’s grant of summary judgment in favor
of the County of Kern. We have jurisdiction to hear this appeal. 28 U.S.C. § 1291.
We affirm in part and reverse and remand in part.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
1. Gray asserted three claims in his complaint: (1) violations of Title II of the
Americans with Disabilities Act (“ADA”);1 (2) violations of section 504 of the
Rehabilitation Act; and (3) violations of California’s Disabled Persons Act. All
three claims are based on alleged “architectural barriers” that Gray encountered at
Kern Medical Center. To meet the Rule 8 pleading requirements when a claimant
asserts discrimination claims based on “the presence of architectural barriers at a
place of public accommodation,” the claimant is required to identify each non-
compliant architectural feature in the complaint. Oliver v. Ralphs Grocery Co.,
654 F.3d 903, 908 (9th Cir. 2011). A claimant cannot assert architectural barriers
at the summary judgment stage that were not adequately identified in the original
complaint. Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968–69 (9th Cir.
2006). The district court dismissed all but two barriers Gray asserted at summary
judgment, on the ground that Gray had not adequately identified the barriers in the
1
Title II of the ADA is the portion of the statute that covers “the services,
programs, or activities of a public entity.” See 42 U.S.C. § 12132. A “public
entity” is “any State or local government” or any subdivision of a State or local
government. See id. § 12131(1).
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original complaint. We hold the district court properly dismissed all but one set of
barriers.2
a. Gray’s complaint first alleged that Kern Medical Center housed
“inaccessible and unusable restroom facilities and showers in patient rooms.” This
general statement was insufficient to put the County on notice of the specific
architectural barriers Gray asserted at summary judgment.
b. Gray’s complaint next alleged “[i]naccessible public restrooms, including
the restroom near the cafeteria and the public restroom on the [second] floor.
Among other things, these restrooms have incorrectly mounted amenities (soap,
toilet seat covers, etc.) that are out of Plaintiff’s reach and lack required floor
clearances.” Like the district court, we find this statement gave the County
sufficient notice only of the specifically identified architectural barriers in “the
restroom near the cafeteria and the public restroom on the [second] floor.” The
only “incorrectly mounted amenities” in these two specifically identified public
restrooms that Gray both asserted at summary judgment and sufficiently alleged in
the complaint are the inaccessible soap dispensers.
2
At oral argument, Gray waived all claims not asserted in his complaint and
any right to amend the complaint to assert new architectural barriers identified in
his expert’s report.
3
Gray also alleged in his complaint that the doors to the public restrooms in
Kern Medical Center “require excessive pressure to open.” Like the district court,
we find this allegation sufficiently alleged these architectural barriers, but only in
regard to the two specifically identified public restrooms.
c. Gray’s complaint next alleged that there are “[e]xcessive slopes and cross
slopes on the ramps leading into and out of the Medical Center building.” Here,
Gray identified the specific violation in his complaint (slope/cross-slope of ramps)
and adequately alleged the location (leading into or out of the building).
Considering the limited number of ramps leading into and out of the Medical
Center building, we find this statement gave adequate notice of the more
specifically identified non-compliant ramps leading into and out of the building
Gray asserted at summary judgment. This statement did not, however, put the
County on notice of any ADA violations as to the exterior paths or as to any
handrails at Kern Medical Center.
d. Finally, Gray’s complaint alleges the “[d]rinking fountains [in Kern
Medical Center] are inaccessible and too high.” Here, Gray has specifically
alleged one violation (the drinking fountains are too high), but has not sufficiently
alleged the location of any non-compliant drinking fountains. Because the
complaint does not sufficiently identify the location of these fountains, we cannot
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conclude the complaint gave the County adequate notice of the two specific
drinking fountains Gray identified at summary judgment.3
2. “Title II [of the ADA] authorizes private suits for money damages.”
Cohen v. City of Culver City, 754 F.3d 690, 695 (9th Cir. 2014) (citing 42 U.S.C.
§ 12133). Therefore, the district court erred in concluding that Gray was entitled
only to injunctive relief on his Title II claims. We decline to address whether Gray
can prove that the County intentionally discriminated, which is required to recover
monetary damages under Title II. Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1138
(9th Cir. 2001).
3. In conclusion, we reverse the grant of summary judgment as to the claims
involving the two specifically identified public restrooms and the claims involving
the ramps leading into and out of the Medical Center building. We affirm the grant
of summary judgment as to all other claims.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART; REVERSED AND REMANDED IN PART.
3
At oral argument, Appellant raised the issue of standing. The district court
found Gray lacked Article III standing to challenge alleged architectural barriers in
the neo-natal unit. Gray did not challenge this decision in his briefs on appeal.
Therefore, this argument is waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th
Cir. 1999).
5