Opinion
1:19-cv-01881-CL
11-29-2023
DON RICARD, an individual, Plaintiffs, v. KLAMATH COUNTY BY AND THROUGH SARAH R. HILL, et al, Defendants.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE United States Magistrate Judge
Plaintiff Don Ricard brings this cause of action against Klamath County, the Klamath County Sheriffs Department, Sarah R. Hill, and others. The case arises out of Plaintiff s interactions with Ms. Hill and other Klamath County Sheriffs Department and Road District staff. Plaintiff brings claims under Title II of the Americans with Disabilities Act (“ADA”). The case comes before the Court on two motions for summary judgment filed by Defendant Sarah Hill (#66) and Defendants Klamath County and the Klamath County Sheriffs Department (collectively, the “County defendants”) (#69). The cases against each set of defendants have been severed and the Court will address them and their motions separately. For the reasons below, both motions should be GRANTED.
LEGAL STANDARD
Summary judgment shall be granted when the record shows that there is no genuine dispute as to any material of fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). The court cannot weigh the evidence or determine the truth but may only determine whether there is a genuine issue of fact. Playboy Enters., Inc. v. Welles, 279 F.3d 796, 800 (9th Cir. 2002). An issue of fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.
When a properly supported motion for summary judgment is made, the burden shifts to the opposing party to set forth specific facts showing that there is a genuine issue for trial. Id. at 250. Conclusory allegations, unsupported by factual material, are insufficient to defeat a motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). Instead, the opposing party must, by affidavit or as otherwise provided by Rule 56, designate specific facts which show there is a genuine issue for trial. Devereaux, 263 F.3d at 1076. In assessing whether a party has met its burden, the court views the evidence in the light most favorable to the nonmoving party. Allen v. City of Los Angeles, 66 F.3d 1052, 1056 (9th Cir. 1995).
DISCUSSION
I. Defendant Hill's Motion for Summary Judgment should be GRANTED.
Plaintiff' asserts claims against Defendant Hill, alleging that her actions in issuing Plaintiff a citation for violation of OAR 340-071-0130(3), were discriminatory and in violation of the ADA. Defendant moves for summary judgment because Plaintiff has failed to show that Defendant Hill's actions were motivated by discrimination. For the reasons below, the motion should be granted.
Plaintiff actually asserts claims against “Defendant Klamath County, by and through Sarah Hill.” For ease of reference, and so as to avoid confusion regarding the parties, the Court will refer to these claims as if they are alleged against Defendant Sarah Hill.
Plaintiff purchased his property within the boundaries of Klamath Falls Forest Estates intending to place a residence on his property. Third Amend. Compl (“TAC”) (#38) p. 1. Plaintiff is a disabled individual. Plaintiffs disability is the result of injuries he received working as a sheetrock contractor. His knees are blown out and he uses knee braces in order to be able to walk. TAC p.2.
Sarah Hill is employed by Klamath County Community Development: Onsite as the septic enforcement officer doing work for the Department of Environmental Quality, who has a contract with the county. Ms. Hill's job duties include enforcement of wastewater rules under state law. Declaration of Sarah R. Hill (“Hill Deci.”), ¶ 1. Plaintiff owns an undeveloped parcel of real property in a rural area of Klamath County, which is not connected to a city sewer system. Hill Deci., ¶ 2, ¶ 3. Plaintiff applied to Klamath County for a septic feasibility inspection in early 2019. Hill went to Plaintiffs property on January 29, 2019, to observe the septic feasibility test pits and meet with the workers performing the tests. Hill believes that Plaintiff was present at the site that day. Hill Deci., ¶ 5. On January 30, 2019, Hill approved Plaintiffs Residential Septic Site Evaluation and sent the approval form to Plaintiff. Hill Deci., ¶ 6, and Ex. 101.
On March 25, 2019, Hill sent Plaintiff a notice of non-compliance regarding ongoing camping on the property observed during the January 29, 2019 inspection. The notice stated, in part, “At this time we are asking you contact this office to discuss how you are dealing with the wastewater generated by your real property.” Hill Deci., ¶ 7, and Ex. 102. Receiving no response to the notice of non-compliance, Hill went to Plaintiffs property to conduct an inspection on May 17, 2019. Hill Deci., ¶ 8. During the May 17 inspection, Hill observed Plaintiff was living on the property with a water cistern near a shed, as well as a holding tank mounted on the outside wall of the shed that Hill thought likely gravity-fed clean water into the shed. Hill Deel., ¶ 9. Based on her May 17 inspection, Hill issued a citation to Plaintiff on behalf of Klamath County for violation of OAR 340-071-0130(3), which prohibits discharging “untreated or partially treated wastewater or septic tank effluent directly or indirectly onto the ground surface or into public waters.” Hill Deel., ¶ 10, and Ex. 103. Plaintiff did not challenge the May 17, 2019 citation and did not appear at the first court hearing date on the citation on June 4, 2019. Hill Deel., ¶ 11. After receiving the May 17 citation, Plaintiff left his property on May 24, 2019, and remained out of state for the remainder of 2019. Third Am. Compl., ¶ 18.
On June 24, 2019, Hill sent Plaintiff another letter request that he provide proof of how Plaintiff was dealing with wastewater on his property. Hill Deel., ¶ 12, and Ex. 104. On October 8, 2019, Klamath County Code Enforcement Officer Earl Perry visited Plaintiffs property. Officer Perry shared photographs with Hill that showed Plaintiffs property still did not have a septic system in place. Hill Deel., ¶ 13 and Ex. 105. Based on Hill's review of the photographs from Officer Perry's inspection, Hill issued a second citation to Plaintiff on October 11, 2019. Hill Deel., ¶ 14 and Ex. 106.
Plaintiff challenged the October 11, 2019, citation in court. The Justice Court and Circuit Court upheld the citation, but it was ultimately overturned in the Court of Appeals. Hill Deel., ¶ 15. On February 16, 2022, the Oregon Court of Appeals reversed the finding that Plaintiff had violated OAR 340-071-0130(2) on the basis that no one was present on Plaintiffs property during the time period relevant to an October 11, 2019, citation issued by Hill. See County of Klamath v. Ricard, 317 Or.App. 608 (2021). Hill asserts that she was unaware that Plaintiff had any disability or any issue with his knees until reading the allegations in his complaint in this' case. Hill Deci., ¶ 16.
To prove a public entity violated 42 U.S.C. § 12132, Plaintiff must show: (1) Plaintiff is a “qualified individual with a disability”; (2) Plaintiff was excluded from participation or denied the benefits of the services of the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of Plaintiff s disability. Weinreich v. L.A. Cty. Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997); see 42 U.S.C. § 12132. A plaintiff proceeding under Title II of the ADA must prove that the alleged exclusion, denial, or discrimination was “solely by reason of disability.” Does 1-5 v. Chandler, 83 F.3d 1150,1155 (9th Cir. 1996). Monetary damages are not available under Title II of the ADA “absent a showing of discriminatory intent.” Ferguson v. City of Phx., 157 F.3d 668, 674 (9th Cir. 1998). A plaintiff must establish “at least must establish deliberate indifference to recover monetary damages under Title II of the ADA.” Memmer v. Marin Cty. Courts, 169 F.3d 630, 633 (9th Cir. 1999).
Here, even assuming the other elements are met, Plaintiff has not established that his disability was the reason for the citations issued by Hill. While one of the citations was overturned due to the fact that Plaintiff was not living on the premises at the time of the citation, the other citation, which was issued first, still stands, and there is no indication that Hill issued it for any reason other than to enforce wastewater rules under state law. Additionally, no evidence exists that Hill even knew that Plaintiff was disabled. Finally, Plaintiff fails to claim or show the requisite discriminatory intent or deliberate indifference required to recover monetary damages under Title II of the ADA. Therefore, Plaintiffs claim fails as a matter of law and the court should grant the motion for summary judgment and dismiss Plaintiff's claims as alleged against Klamath County, by and through Sarah R. Hill.
II. The County defendants' Motion for Summary Judgment should be GRANTED.
Plaintiff brings a single claim for relief against Klamath County and the Klamath County Sheriff's Department for violation of 42 U.S.C. § 12132 (the "program access" requirement under Title II of the ADA). For the reasons below, Defendants' motion for summary judgment on this claim should be granted.
To succeed on a Title II “program access” discrimination claim, a plaintiff must prove: (1) he is a ‘qualified individual with a disability;' (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001).
Many of the allegations in Plaintiffs Third Amended Complaint are leveled not against the named defendants in this case, but rather against the KFFEHOA and its board members who are non-parties to this case. Mr. Ricard sued them in a separate state court lawsuit in 2018.
The only specific factual allegations alleged against the Sheriffs department are the following statements:
The Department as a whole has elected not to investigate or enforce complaints of people shooting at or across properties owned by the Plaintiff as well as other disabled individuals residing within the KFFEHOA borders.TAC ¶ 9.
Mr. Ricard was also discriminated against in that neighbors would target him and his property using green lasers. He complained to the Klamath Sheriffs department of the targeting and his neighbors
shooting over and across his property. In spite of his complaints, the Sheriffs department has taken no enforcement actions against Mr. Ricard's neighbors. This stands in stark contrast to the Sheriffs department quickly responding to the area to investigate a complaint by the KFFEHOA board for a $100 theft, a much less severe violation. When the Sheriffs department responded to investigate the theft, the only targeted disabled individuals in their investigation.TAC¶21.
This Court has previously held, “Plaintiffs allegation that some other crime reported to the sheriffs office was investigated, but the crime he reported was not, is not sufficient for the Court or defendants to infer that Plaintiff was denied a service due to his disability.” Ricard v. Hill, No. 1:19-CV-01881-CL, 2020 WL 4552876, at *2 (D. Or. July 7, 2020), report and recommendation adopted, No. 1:19-CV-01881-CL, 2020 WL 4549275 (D. Or. Aug. 6, 2020).
Plaintiff has alleged no facts to suggest discriminatory intent on the part of Klamath County or the Klamath County Sheriff's Department. In an attempt to show discriminatory animus on the part of Klamath County, Plaintiff alleges that Dennis Gibbs, apparently a former director of the Klamath Falls Forest Estates Unit 1 Special Road District, refused to remove snow from in front of his property. Plaintiff also alleges that Mr. Gibbs has been heard to refer to Plaintiff using an ableist slur. Even if these allegations were true, they have no bearing on any alleged discriminatory intent by Klamath County. Plaintiff does not allege any facts that suggest that the actions of Mr. Gibbs bear any connection or causal relationship to the actions of Klamath County Sheriffs deputies. Further, Mr. Gibbs is not a Klamath County official as the Klamath Falls Forest Estates Unit 1 Special Road District is not a department of Klamath County. See ORS 174.116(2)(L); ORS 371.305 to 371.360. It is a separate legal entity, levies its own taxes, and has the capacity to sue and be sued. ORS 371.336(1-4); Exhibit 202.
For all of the foregoing reasons, Plaintiff's claim fails as a matter of law. Summary judgment should be granted for the County defendants.
RECOMMENDATION
Defendants' motions for summary judgment (#66, #69) should be GRANTED. Plaintiff's case should be dismissed, and judgment should be entered on behalf of the Defendants.
SCHEDULING
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is entered. Id. objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See FED. R. CIV. P. 72, 6.
Parties are advised that the failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. 951 F.2d 1153 (9th Cir. 1991).