Andrew Abraham v. Corizon Health, Inc. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW ABRAHAM, on behalf of No. 17-36047
himself, and for all others similarly situated,
D.C. No. 3:16-cv-01877-PK
Plaintiff-Appellant,
v. MEMORANDUM*
CORIZON HEALTH, INC., FKA Prison
Health Services, Inc.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted June 5, 2019
Portland, Oregon
Before: MURGUIA and HURWITZ, Circuit Judges, and ZIPPS,** District Judge.
Andrew Abraham appeals the district court’s orders: (1) dismissing his claim
under Title II of the Americans with Disabilities Act (“ADA”); (2) granting
summary judgment on his claim under Section 504 of the Rehabilitation Act of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jennifer G. Zipps, United States District Judge for the
District of Arizona, sitting by designation.
1973; and (3) denying his motion to amend, as futile, his claim under Oregon’s
Public Accommodation Act, Or. Rev. Stat. § 659A.142. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and remand.
This Court reviews de novo a district court’s order granting a motion to
dismiss under Rule 12(b)(6). L.A. Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 800
(9th Cir. 2017). A district court’s grant of summary judgment is reviewed de novo.
Aguilera v. Pirelli Armstrong Tire Corp., 223 F.3d 1010, 1014 (9th Cir. 2000). We
review a district court’s denial of leave to amend on grounds of futility de novo.
Hildes v. Arthur Andersen LLP, 734 F.3d 854, 859 (9th Cir. 2013).
1. The district court properly dismissed Abraham’s Title II claim against
Corizon Health, Inc. (“Corizon”), a private corporation, because “[o]nly public
entities are subject to Title II.” City & County of San Francisco v. Sheehan, 135 S.
Ct. 1765, 1773 (2015).
2. The district court also properly granted Corizon’s motion for summary
judgment on Abraham’s Rehabilitation Act claim. To be liable under the
Rehabilitation Act, an entity must actually receive federal financial assistance, not
merely benefit economically from it. Sharer v. Oregon, 581 F.3d 1176, 1177–78,
1181 (9th Cir. 2009). Abraham presented no evidence that Corizon received
federal financial assistance directly or indirectly in 2015. See id. at 1180–81.
3. Abraham argues that the district court erred in denying his motion to
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amend his Oregon Revised Statute § 659A.142 claim as futile because, contrary to
the court’s conclusion, Corizon is a “place of public accommodation,” as defined
by § 659A.400. Oregon courts have yet to address whether a private contractor like
Corizon constitutes a “place of public accommodation.” It also appears that the
district court did not consider whether there existed independent or supplemental
jurisdiction over Abraham’s § 659A.142 claim when it granted a summary
judgment to Corizon on Abraham’s final federal claim. We therefore vacate the
district court’s order denying Abraham’s motion to amend as futile and remand for
the court to consider its jurisdiction over Abraham’s § 659A.142 claim in the first
instance. See Brigham v. Eugene Water & Elec. Bd., 357 F.3d 931, 942 n.19 (9th
Cir. 2004) (“[W]e also remand the employees’ state-law claims to the district court
for reconsideration—including whether the exercise of supplemental jurisdiction
over such claims is appropriate in the first instance given the paucity of state law
authority on the precise topic at issue in this litigation.” (citing 28 U.S.C. §
1367(c)).
AFFIRMED in part, VACTED in part, and REMANDED. Each party
shall bear its own costs.
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