legal memo 法律备忘录(20)

legal memo

A plaintiff bringing a Title II ADA claim can meet the fourth element by showing intentional discrimination to exclude him from the public benefit or service to which he was entitled. Intentional discrimination is shown in one of two ways; either by proving disparate treatment to the disabled person from a facially discriminatory policy, or, as an alternative, showing a disparate effect from a facially neutral policy or action. Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th Cir. 1996) ("Section 12132 of the ADA precludes (1) exclusion from/denial of benefits of public services, as well as (2) discrimination by a public entity … we conclude Congress intended to prohibit two different phenomena … outright discrimination, as well as those forms of discrimination which deny disabled persons public services disproportionately due to their disability.").

Despite this language in Crowder, federal courts have increasingly demanded that plaintiff's show disparate treatment from facially discriminatory policies to establish intentional discrimination. Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2d Cir. 2003)iv. Within the Ninth Circuit, this is especially true where monetary damages are concerned. Scott, 370 F.Supp.2d at 1075, citing Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001) (holding that a plaintiff must prove intentional discrimination to recover compensatory, monetary damages under Title II of the ADA). Disparate impact has, as a practical matter, been relegated to challenges to the reasonableness of the modification in the program or lack of meaningful access to a program or benefit. See McGary, 386 F.3d at 1265-66 (stating that "the district court appears to have misconstrued McGary's claim as either a 'disparate treatment' or a 'disparate impact' claim, rather than a 'reasonable accommodation' claim"); but see Crowder, 81 F.3d at 1483 (concluding that Congress intended the ADA to apply to "at least some so-called disparate impact cases of discrimination," caused by facially neutral policies that "may work to effectuate discrimination against disabled persons").

1. Satisfying exclusion by arguing intention discrimination. 37

Intentional discrimination is shown by meeting a deliberate indifference standard. Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). To meet the deliberate indifference standard, a plaintiff must show that (1) there was knowledge on the part of the defendant that harm to a federally protected right was substantially likely, and that (2) the defendant failed to act on that likelihood. Scott, 370 F.Supp.2d at 1075 citing Duvall, 260 F.3d at 1139. The first element of knowledge can be satisfied by showing that the defendant had notice that an accommodation was required. Scott, 370 F.Supp.2d at 1075 citing Duvall, 260 F.3d at 1139. The second element of failure to act is satisfied if the plaintiff can establish that the defendant's failure was the result of "conduct that is more than negligent, and involves an element of deliberateness." Scott, 370 F.Supp.2d at 1075 quoting Duvall, 260 F.3d at 1139 (noting that "a public entity does not 'act' by proffering just any accommodation: it must consider the particular individual's need when conducting its investigation into what accommodation are reasonable").

Mr. Daniels has alleged sufficient factual allegations establishing intentional discrimination that if accepted as true and not challenged by differing factual evidence would suffice to survive a dismissal or summary judgment motion.38Mr. Daniels has alleged that the defendant have used the jail ward of the hospital in the past for long-term quarantines of civilly committed persons with disabilities. Comp. ¶ ¶ 23, 25. He also alleged that the defendants knew that he was not criminally incarcerated, and that he was likely an otherwise, qualified disabled person within the meaning of the ADA. Comp. ¶ ¶ 20, 24, 54-57. This would satisfy the knowledge requirement, since through their past conduct they were afforded notice that harm to a federally protected right was substantially likely.

Mr. Daniels also alleged the defendants knew that persons housed in the jail ward were treated in the same manner as inmates, Comp.¶ 26, and that Defendant Arpaio publicly stated that he would treat any person housed in the jail ward in the same manner as all jail inmates even when civilly confined. Comp. ¶ 27. Finally, Mr. Daniels included specific allegations that indicate that conditions of confinement were punitive in nature, Comp. ¶ 27, that did not comport with either ensuring his medical treatment or ensuring the containment of a public health risk. Specifically, Mr. Daniels alleged that the defendants were aware of a need to develop a quarantine area that did not subject civilly committed disabled persons to harsh and punitive conditions. Comp. ¶ 35. Taken together, these facts should be sufficient to establish the deliberateness of the defendants' conduct and meet the second element. Having met both elements of the deliberate indifference standard, Mr. Daniels should be able to successfully meet the last element that his exclusion from the public benefits and services was the result of intentional discrimination.

2. Satisfying discrimination by arguing that defendants failed to provide meaningful access to benefits and services or make a reasonable accommodation.39

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