NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 29 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM BARKER, No. 20-15503
20-15840
Plaintiff-Appellant,
D.C. No. 2:16-cv-03008-CKD
v.
OSEMWINGIE; RAMISCAL,
Defendants-Appellees.
MEMORANDUM*
and
STATE OF CALIFORNIA; CALIFORNIA
DEPARTMENT OF CORRECTIONS AND
REHABILITATION,
Defendants.
Appeals from the United States District Court
for the Eastern District of California
Carolyn K. Delaney, Magistrate Judge, Presiding
Argued and Submitted November 17, 2021
San Francisco, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and KORMAN, ** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
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William Barker sued the State of California, the California Department of
Corrections and Rehabilitation (CDCR), and CDCR employees Osemwingie and
Ramiscal for harms arising from a failed attempt to transfer Barker from his
wheelchair to the toilet. The district court dismissed with prejudice his claims
under Titles II and V of the Americans with Disabilities Act (ADA) and Section
504 of the Rehabilitation Act (RA). The court later granted summary judgment to
defendants on Barker’s Eighth Amendment claim for inadequate medical treatment
under 42 U.S.C. § 1983. We affirm entry of summary judgment for defendants on
Barker’s Eighth Amendment claim, but we vacate dismissal of his claims under the
ADA and RA and remand to the district court with instructions to grant Barker
leave to amend his complaint.
1. The district court properly granted summary judgment to Osemwingie
and Ramiscal on Barker’s Eighth Amendment claim for inadequate medical
treatment. Barker failed to raise a triable issue of fact as to whether defendants
acted with deliberate indifference to his serious medical needs. See Jett v. Penner,
439 F.3d 1091, 1096 (9th Cir. 2006). The district court properly excluded
statements allegedly made by Nurse Coloma as inadmissible hearsay, and
defendants submitted unrebutted expert evidence supporting their assertion that use
of the lift was medically appropriate, even if Barker suffered from a chronic back
condition. Thus, even if a genuine dispute exists as to whether Barker informed
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defendants of his back condition, he cannot satisfy the objective prong of the
deliberate indifference test applicable to this claim. We also affirm the district
court’s award of costs to defendants, as those costs were incurred solely in
connection with Barker’s Eighth Amendment claim, and Barker raises no
independent challenge to the propriety of the award.
2. The district court erred in dismissing Barker’s Title II and RA claims
without leave to amend. Transferring an inmate from a wheelchair to the toilet is
an accommodation to provide access to toileting services, rather than medical
treatment for a disability. See Armstrong v. Schwarzenegger, 622 F.3d 1058, 1068
(9th Cir. 2010). Thus, the district court improperly relied on Simmons v. Navajo
County, 609 F.3d 1011, 1022 (9th Cir. 2010) (holding that denial of medical
treatment cannot form the basis of an ADA claim), in concluding that Barker’s
claims were barred as a matter of law.
Barker’s second amended complaint does not adequately allege failure to
provide access to a service under Title II or the RA, but he should have been
granted leave to amend to cure the deficiencies. To allege a plausible claim for
relief, Barker will need to provide additional facts explaining how the State’s failed
attempt to provide access to toileting services by means of the Hoyer lift amounted
to a denial of such services on account of his disability. In addition, because
Barker seeks damages under Title II, he will need to plead facts plausibly
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suggesting that the defendants acted with deliberate indifference under the test
established in Duvall v. County of Kitsap, 260 F.3d 1124, 1138–40 (9th Cir. 2001).
We note that the Duvall standard differs from the standard for deliberate
indifference applicable to Barker’s Eighth Amendment claim, so the record
developed in connection with the latter claim does not necessarily foreclose
Barker’s ability to assert a viable Title II damages claim. Since it is not clear that
amendment would be futile, we vacate the dismissal of the Title II and RA claims
and remand with instructions to grant Barker leave to amend those claims.
3. The district court abused its discretion in dismissing Barker’s retaliation
claim under Title V of the ADA based on improper joinder. See Fed. R. Civ. P.
18(a). The court’s ruling was predicated on its ruling dismissing Barker’s Title II
and RA claims without leave to amend. Because an opportunity to amend those
claims against the State and CDCR should have been granted before any final
judgment could be entered, those defendants should have remained in the suit and
Barker’s Title V claim against the same defendants was not improperly joined.
However, as with Barker’s Title II and RA claims, the allegations in the second
amended complaint do not adequately support a claim under Title V. In particular,
the allegations do not plausibly suggest a causal link between Barker’s protected
activities and the alleged retaliation. See T.B. ex rel. Brenneise v. San Diego
Unified Sch. Dist., 806 F.3d 451, 472–73 (9th Cir. 2015). Nevertheless, because it
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is not clear that amendment would be futile, we vacate dismissal of the Title V
claim and remand with instructions to grant leave to amend.
AFFIRMED in part, VACATED in part, and REMANDED.
Barker shall recover his costs on appeal.