FINDINGS AND RECOMMENDATION
PAPAK, Magistrate Judge :
Plaintiff Andrew Abraham, on behalf of himself and other similarly situated deaf persons, brings this putative class action under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12132-34; Oregon anti-discrimination law, Or. Rev. Stat. § 659A.142; and the Rehabilitation Act, 29 U.S.C. § 794, against Defendant Corizon Health, Inc. (Corizon), fka Prison Health Services, Inc. Plaintiff claims that Corizon, which provides medical services to prisoners in the Clackamas County Jail, discriminates against prisoners who are deaf or hard of hearing by failing to provide accommodations such as American Sign Language (ASL) interpreters, resulting in a denial of equal access to medical treatment. Plaintiff seeks declaratory, injunctive, and monetary relief.
Clackamas County has been voluntarily dismissed as a defendant. ECF No. 5.
Corizon now moves to dismiss three of Plaintiff's four claims, contending: (1) as a private entity, Corizon is not subject to liability under Title II of the ADA; (2) Corizon's provision of health care services in Clackamas County Jail is not a "public accommodation" that would be subject to Title III of the ADA; (3) the Oregon anti-discrimination statute excludes local jails from its coverage; and (4) Plaintiff lacks standing to seek injunctive relief because he is no longer an inmate at Clackamas County Jail. Corizon has not moved to dismiss Plaintiff's Second Claim, which asserts a violation of the Rehabilitation Act. For the following reasons, I recommend granting the motion to dismiss with prejudice as to Plaintiff's claim under Title II of the ADA, and granting the motion without prejudice as to Plaintiff's claims under Title III of the ADA and under Or. Rev. Stat. § 659A.142.
Plaintiff has been "profoundly deaf" since birth. Compl. ¶ 11, ECF No. 1. He prefers to use American Sign Language (ASL) to communicate, and is less proficient in English than ASL. He uses video conferencing to communicate, and watches television with closed captions.
In 2004, Clackamas County (the County) settled a complaint brought by the U.S. Department of Justice alleging that the County had violated Title II of the ADA by failing to provide effective communication for an inmate who was deaf. In the settlement agreement, the County agreed to provide services for inmates with speech or hearing disabilities.
Corizon is a privately held correctional health care corporation that has a contract with the County to provide medical and mental health services to inmates at the County Jail. Corizon was in charge of medical services while Plaintiff was in custody at the County Jail.
Plaintiff was arrested on October 23, 2015, and taken to the County Jail. At intake, the Jail did not provide an ASL interpreter for Plaintiff. The corrections officer at intake determined that Plaintiff was a suicide risk, stating, "deaf but communicating that he may want to hurt himself, said 'so so' on suicide." Compl. ¶ 51. Plaintiff contends that this statement is false because he "does not talk or say anything." Compl. ¶ 51.
The screening deputy referred Plaintiff to Corizon. Plaintiff was stripped and placed on suicide watch. Plaintiff was not provided with an ASL interpreter to assist him during mental health evaluations.
While Plaintiff was held at the County Jail, he was never provided with an ASL interpreter. Plaintiff was released after three days and has not been held at the County Jail since then.
I. Motions to Dismiss for Failure to State a Claim under Rule 12(b)(6)
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To show plausibility, the plaintiff must do more than show "a sheer possibility that a defendant has acted unlawfully." Id. A complaint that pleads facts "merely consistent' with a defendant's liability, . . . 'stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. (citations omitted).
The court is not required to accept a complaint's legal conclusions. Id. "Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory." Chubb Custom Ins. Co. v. Space Sys./Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013).
II. Motions to Dismiss for Lack of Subject Matter Jurisdiction Under Rule 12(b)(2)
Motions to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) "can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). The court "accept[s] as true the factual allegations in the complaint." Terbusk v. United States, 516 F.3d 1125, 1128 (9th Cir. 2008).
I. Is Corizon Covered by Title II of the ADA?
Title II of the ADA provides, "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To state a claim under Title II, a plaintiff must allege facts showing that (1) he has a disability; (2) he is otherwise qualified to participate in or receive a public entity's services, programs, or activities; (3) he was either excluded from participation in, or denied the benefits of a public entity's services, programs, or activities, or was discriminated against by the public entity; and (4) the exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. Weinreich v. Los Angeles Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). Title II covers prison inmates who are deprived of the benefits of state-run prison programs, services, or activities because of a physical disability. See Pennsylvania Dep't of Corr. v. Yeskey, 524 U.S. 206, 211 (1998).
In its motion to dismiss, Corizon contends that it is not liable under Title II because Corizon is not a "public entity" as defined by the ADA. Plaintiff responds that Congress, by using the passive voice in drafting Title II, chose not to "specify which individuals are 'covered' by the act. Rather [Title II] broadly prohibits the denial of or exclusion from the 'services, programs, or activities'" of a public entity. Pl. Resp. 3, ECF No. 10. Plaintiff argues that a defendant, whether a public or private entity, violates Title II if it "excludes a qualified individual from participation in or denies a qualified individual the benefits of the 'services, programs, or activities' of public entities." Pl. Resp. 4.
The parties state that the Ninth Circuit has not ruled on whether Title II applies to private contractors like Corizon. Pl. Resp. 4; Def. Reply 2. The Ninth Circuit has, however, stated that Title II covers only public entities. Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1180 (9th Cir. 1999). In Zimmerman, the Ninth Circuit held that Title II did not cover employment discrimination. As part of its analysis, the Ninth Circuit rejected the plaintiff's argument that because Congress based the ADA on the Rehabilitation Act, and because the Rehabilitation Act does cover employment discrimination, Title II also covered employment. Id. In noting the differences between the Rehabilitation Act and Title II, the Ninth Circuit stated,
[T]he Rehabilitation Act also applied (and still does apply) to private entities that receive federal financial assistance. See 29 U.S.C. § 794(b) ("[T]he term 'program or activity' means all operations of . . . an entire corporation, partnership, or other
private organization . . ..") (emphasis added). See also Jacobson v. Delta Airlines, Inc., 742 F.2d 1202, 1209 (9th Cir. 1984) (holding that private airlines are subject to the Rehabilitation Act if they receive federal subsidies). Congress did not make private entities subject to Title II; instead, they are subject only to Titles I, III, and V.Id. (emphasis added); see also id. at 1175 (noting that Congress designated Title II "Public Services"); id. at 1176 (noting that "both clauses [of Title II] prohibit discrimination by a public entity in providing its services, programs and activities"). Based on the Zimmerman decision's reasoning, I conclude that Title II covers only public entities.
Even assuming Title II covers only public entities, Plaintiff contends that Corizon fits within the ADA's definition of a public entity because Corizon is an "instrumentality of a State or States or local government." See 42 U.S.C. § 12131(1) (ADA defines "public entity" as "any State or local government, department, agency, special purpose district, or other instrumentality of a State or States or local government") (emphasis added). Plaintiff argues that Corizon fits within Black's Law Dictionary's definitions of "instrumentality" as "a thing [used] to achieve an end or purpose," or as "a means or agency through which a function of another entity is accomplished, such as a branch of a government body." Pl. Response 6.
The circuit courts that have addressed the issue, however, have concluded that "a private prison is not a public entity" under Title II. Phillips v. Tiona, 508 F. App'x 737, 748 (10th Cir. 2013) (unpublished); id. at 754 ("the overwhelming majority of other courts . . . hold that Title II of the ADA does not generally apply to private corporations that operate prisons"); Green v. New York, 465 F.3d 65, 79 (2d Cir. 2006) (private hospital not subject to Title II); Maringo v. Warden, 283 F. App'x 205, 206 (5th Cir. 2008) (unpublished per curiam) (private prison not subject to Title II); Edison v. Douberly, 604 F.3d 1307 (11th Cir. 2010) (private prison not subject to Title II) . Similarly, almost every district court to address the issue has also concluded "that a private entity does not become a public entity by providing services pursuant to a contract with the state." Medina v. Valdez, No. 1:08-cv-00456-BLW, 2011 WL 887553, at *3 (D. Idaho Mar. 10, 2011).
The Second Circuit's decision in Green is instructive. There, the court reasoned that because a private contractor is not a "State or local government, department, agency, [or] special purpose district," a private contractor could qualify as a "public entity" only if it is an "'instrumentality of a State or States or local government.'" Green, 465 F.3d at 79 (quoting 42 U.S.C. § 12131(1)). Applying the maxim noscitur a sociis, or "a word is known by the company it keeps," the Second Circuit concluded that a private hospital was not an "instrumentality of a State" because the other terms in the ADA's definition of "public entity" refer either to government units or to entities created by government units. Id. The phrase "instrumentality of the State" therefore referred only to entities created by the state, not private contractors. Id.; Edison, 604 F.3d at 1310 (following Green's analysis); Phillips, 508 F. App'x at 754 (same).
Here, confronted with nearly unanimous contrary decisions, Plaintiff cites the dissent from the Eleventh Circuit's decision in Edison, 604 F.3d at 1311. In dissent, Judge Barkett distinguished the Second Circuit's decision in Green, stating that "[u]nlike hospitals, which can be operated on behalf of the government through a contractual agreement or can be operated independently, prisons can never be operated independently of the government." Id. Judge Barkett concluded that "when a company takes the place of the state in performing a function within the exclusive province of the state, that company cannot be permitted to avoid the requirements of the law governing that state function." Id. at 1312. It appears, however, that no circuit court has followed the reasoning of the Edison dissent. See Wilkins-Jones v. County of Alameda, 859 F. Supp. 2d 1039, 1047 (N.D. Cal. 2012) (district court "defers to the currently prevailing view in the circuit courts that government contractors are not liable under Title II" despite "find[ing] the rationale of Judge Barkett's dissent . . . somewhat persuasive"). In light of the Zimmerman opinion, I cannot conclude that the Ninth Circuit would adopt the reasoning of the dissent in Edison and hold that Title II covers private contractors.
Plaintiff notes that the Ninth Circuit has held that a public entity cannot "avoid its ADA obligations by operating 'through contractual, licensing, or other arrangements' with third parties." Armstrong v. Schwarzenegger, 622 F.3d 1058, 1062 (9th Cir. 2010). Although Armstrong holds "that a public entity may not contract away its responsibility under the ADA," it "does not answer the converse question whether the private entity holding the contract may be liable under Title II of the ADA." Wilkins-Jones, 859 F. Supp. 2d at 1046.
Plaintiff also cites McNally v. Prison Health Servs., 46 F. Supp. 2d 49, 58 (D. Me. 1999), which held that Prison Health Services (PHS) (now Corizon), could be liable under Title II because PHS's "prescription service and the disposition of HIV-positive prisoners' requests for their medication is a program or service of Cumberland County Jail." However, as noted in Medina v. Valdez, No. 1:08-cv-00456-BLW, 2011 WL 887553, at *4 (D. Idaho Mar. 10, 2011), the McNally court did not address "the comprehensive statutory analysis" of contrary decisions, and relied instead on a decision, Gorman v. Bartch, 152 F.3d 907, 912 (8th Cir. 1998), which did not involve a private contractor.
Plaintiff cites two other district court decisions, but they do not address Title II's application to private contractors: Gutierrez v. Valdez, No. CV09-464-S-REB, 2010 WL 529493, at *3 (D. Idaho Feb. 9, 2010) ("The parties may brief at a later date whether in the Ninth Circuit, Title II applies to private entities providing health services in prisons."); Hamlin v. Prison Health Servs., Inc., No. Civ. 03-169-B-W, 2004 WL 2980749, at *10 (D. Me. Dec. 22, 2004) (court declined to rule on "public entity" issue because the plaintiff did not "make out an ADA violation under either Title II or Title HI"). --------
II. Plaintiff Lacks Standing to Seek Injunctive Relief
Corizon argues that because Plaintiff is no longer in custody at the Clackamas County Jail, and has not shown that a substantial likelihood of future injuny, he lacks standing to seek injunctive relief. I agree.
To establish standing, the plaintiff must show an injury in fact because of the defendant's conduct, and that the injury would be redressed by a decision in the plaintiff's favor. See On the Green Apartments L.L.C. v. City of Tacoma, 241 F.3d 1235, 1239 (9th Cir. 2001). An injury in fact is "'an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical.'" Lee v. State of Oregon, 107 F.3d 1382, 1387 (9th Cir. 1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The Supreme Court has held that plaintiffs lacked standing when their injuries were "contingent upon . . . violating the law, getting caught, and being convicted." Spencer v. Kemna, 523 U.S. 1, 15 (1998).
This court recently addressed a nearly identical standing issue in an action brought by Plaintiff's counsel on behalf of a deaf person who was held in the Clackamas County Jail. Judge Simon concluded that because the deaf person had been released from Clackamas County Jail, he lacked standing to seek injunctive relief. Updike v. Clackamas Cty., No. 3:15-cv-723-SI, 2015 WL 7722410, at *8 (D. Or, Nov. 30, 2015). Judge Simon's decision thoroughly discusses standing, and explains why the plaintiff there could not show a substantial likelihood of future injury. Judge Simon also noted that although the plaintiff there, like Plaintiff here, sought class certification, the plaintiff had not shown that other persons were also facing a substantial likelihood of future injury.
Judge Simon held that "[a]llowing standing based on speculation that [the plaintiff] and unnamed putative class members may become inmates of Clackamas County Jail in the future would open the federal courts to claims by any and all hearing-impaired citizens. This is precisely the sort of claim disallowed by the Supreme Court on numerous occasions." Id. at *9.
Judge Simon also rejected an argument raised here, that a deaf person is
more likely to be arrested without probable cause. Without allegations concerning how Updike's disability inevitably brings him into contact with law enforcement, what coping mechanisms he engages in that give the false impression of uncooperativeness, or how he struggles to explain innocent but non-conforming behavior when he is not incarcerated, Updike's complaint, despite his alleged disability, falls short of pleading a sufficient likelihood of repeated harm.Id. at at *10 n.10. I adopt Judge Simon's reasoning here and conclude that Plaintiff lacks standing to seek equitable relief under Title III of the ADA or under Oregon law.
Because I conclude that Plaintiff lacks standing to bring claims for injunctive or declaratory relief, I need not address whether Corizon is liable under Title III of the ADA, or under Or. Rev. Stat. § 659A.142, which prohibits disability discrimination by private or public entities. It would be premature to address Plaintiff's requested class certification because this court should not address class certification on a Rule 12(b)(6) motion to dismiss because of the different legal standards that apply. Updike, at *10-*11.
Corizon's Motion to Dismiss, ECF No. 7, should be granted with prejudice as to Plaintiff's claim under Title II of the ADA, and granted without prejudice as to Plaintiff's claims under Title III of the ADA and Oregon law.
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
Dated this 10th day of April, 2017.
Honorable Paul Papak
United States Magistrate Judge