Opinion
Argued and Submitted, Portland, Oregon July 8, 2014
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 32.1)
Appeal from the United States District Court for the District of Oregon. D.C. No. 3:11-cv-00876-BR. Anna J. Brown, District Judge, Presiding.
For Calbruce Jamal Green, Plaintiff - Appellant: Matthew McHenry, Law Office of Michael Levine, Portland, OR; David Shannon, Todd & Shannon, Troutdale, OR.
For TRI-COUNTY METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, a municipal corporation, Defendant - Appellee: Erik Van Hagen, Deputy General Counsel, Tri-County Metropolitan Transportation District of Oregon, Portland, OR.
Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Plaintiff Calbruce Jamal Green appeals the district court's grant of summary judgment in favor of Defendant Tri-County Metropolitan Transportation District of Oregon (" Tri-Met" ). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Green did not raise a genuine issue of material fact as to whether Tri-Met's operators acted with deliberate indifference, as necessary to substantiate his claim for monetary damages under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). To substantiate his claim, Green had to show that a rational trier of fact could find that Tri-Met's operators: (1) had " knowledge that a harm to a federally protected right [was] substantially likely" ; and, (2) " fail[ed] to act upon that . . . likelihood." Id. at 1139. Tri-Met's operators may have known that Green was mentally impaired and needed accommodation. The undisputed evidence, however, shows they made efforts to communicate effectively with Green. In doing so, they employed many of the communication techniques Green identified as reasonable accommodations. Although the operators could have used additional techniques specified in Tri-Met's training manual, the decision to request assistance from police to remove Green from the bus after their initial attempts were unsuccessful does not amount to deliberate indifference under our precedent. See, e.g., Mark H. v. Hamamoto, 620 F.3d 1090, 1099 (9th Cir. 2010); Duvall, 260 F.3d at 1138-41.
In addition to monetary damages, Green requested " [s]uch other and further relief as the court deems just and proper." At oral argument, Green's counsel suggested that injunctive relief was still a possibility. However, Green did not raise the issue of injunctive relief in the district court and he did not address it in his opening brief on appeal. In these circumstances, the issue is waived.
AFFIRMED.