1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 EDGAR SANCHEZ, Case No. 20-cv-05919-JD

8 Plaintiff, SECOND ORDER RE MOTION TO 9 v. DISMISS

10 CITY OF SAN JOSE, et al., 11 Defendants.

12 Defendant City of San Jose asks to dismiss under Federal Rule of Civil Procedure 12(b)(6) 13 the Sixth Claim against it in the Second Amendment Complaint (SAC) for a violation of the 14 Americans with Disabilities Act (ADA), 42 U.S.C.§ 12101 et seq. Dkt. No. 44 (SAC); Dkt. No. 15 45 (motion to dismiss). The Court dismissed the ADA claim in the original complaint with leave 16 to amend. Dkt. No. 32 at 2. Dismissal is granted. 17 The SAC does not remedy the pleading shortfall discussed in the prior order. To be sure, 18 the ADA may apply to arrests in some situations. See Sheehan v. City & Cty. of San Francisco, 19

(9th Cir. 2014).1 Specifically, the police may be liable under the ADA when 20 they “fail to reasonably accommodate [a] person’s disability in the course of investigation or 21 arrest, causing the person to suffer greater injury or indignity.”

(citations omitted). That is 22 what Sanchez seeks to allege here. 23 The problem with Sanchez’s original complaint was that it did not plausibly allege that he 24 had a disability within the meaning of the ADA, or that the officers had reason to know of the 25 disability and failed to reasonably accommodate it. The complaint alleged only that he 26 1 Sheehan was reversed in part by the Supreme Court on other grounds. See City and County of 27 San Francisco v. Sheehan,

(2015). The 9th Circuit subsequently affirmed its 1 experienced seizures. See Dkt. No. 32 at 2. This was in telling contrast to Sheehan, where the 2 || police came to the scene in response to a call by the plaintiff's social worker who was intimately 3 familiar with her mental health disabilities and conditions. See Sheehan,

. On 4 || the record before the court in Sheehan, it was “undisputed that Sheehan had a disability and that 5 || the officers knew it at the time they encountered her.” /d. at 1233. 6 No similar facts are alleged here. The SAC adds a few new allegations to the effect that 7 Sanchez has epilepsy, and that the officers “acknowledged” a disability during the arrest. Dkt. No. 8 44 at YJ] 26-28; J] 75-76. But the SAC says only that Sanchez told the officers he had seizures, 9 not epilepsy. /d. And the allegation that the officers acknowledged the seizures is entirely 10 || conclusory and unsupported by any facts. The SAC does not say nearly enough to plausibly allege 11 that the officers acted with “deliberate indifference” to Sanchez’s ostensible disability. See 12 Updike v. Multnomah Cnty.,

(9th Cir. 2017). 5 13 Overall, the SAC did not materially improve the ADA allegations found wanting in the 14 || original complaint. Consequently, it is dismissed. Although Sanchez has now had two 3 15 opportunities to allege a plausible ADA claim, which would typically warrant dismissal without 16 || leave to amend, the dismissal is without prejudice. It may be that discovery reveals facts that 3 17 might plausibly state an ADA violation. If so, Sanchez may seek leave of Court to file an 18 amended ADA claim. 19 IT IS SO ORDERED. 20 Dated: June 15, 2022 21 22 JAMES/DONATO 23 United Btates District Judge 24 25 26 27 28