MEMORANDUM AND ORDER RE: STATE DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND

WILLIAM B. SHUBB, United States District Judge.

Plaintiff brings this action as the personal representative of the estate of Walter Fratus ("Fratus"), an inmate who died from infections in his leg and urinary tract while incarcerated in the California Department of Corrections. Defendants State of California, Terhune, Runnels, Beams, O'Parka, and Clark ("state defendants") now bring this motion to dismiss. Plaintiff opposes the motion, and requests leave to amend to add claims for relief under 42 U.S.C. § 1985 and the Rehabilitation Act, 42 U.S.C. § 794.

I. Background

Walter Fratus was a paraplegic serving a prison sentence in the California Department of Corrections. (First Am. Compl. ¶ 14) In 1993, Fratus was diagnosed with a cyst on his kidney, and later developed an infection in his urinary tract and open wounds on his leg. (Id. ¶¶ 17, 28.) The First Amended Complaint alleges that the state defendants were aware of Fratus's medical problems, but refused to treat him out of indifference to his condition and in retaliation for his participation in a lawsuit against the California Department of Corrections. (Id. ¶¶ 17-19; 21-24; 26; 29). In addition, plaintiff alleges that the state defendants discriminated against Fratus and other disabled inmates by requiring them to go on a daily basis to health care providers for medical supplies. (Id. 22; 24-25.) In August of 2000, Fratus died because of the infections in his leg and urinary tract. (Id. ¶ 31.) Plaintiff, who is Fratus's step-brother and the executor of Fratus's estate, brings this action against the state defendants alleging violations of 42 U.S.C. § 1983 and Title II of the Americans with Disabilities Act, ("ADA"), 42 U.S.C. § 12132. (Id. ¶¶ 3, 42-51.)

The state defendants now bring this motion to dismiss on the grounds that (1) they are immune from liability on plaintiff's ADA claim under the Eleventh Amendment; (2) plaintiff has failed to state a claim for relief under the ADA; (3) plaintiff has failed to state a claim for punitive and emotional distress damages under the ADA; (4) plaintiff's first and third claims for relief under section 1983 are vague and conclusory.

II. Discussion

On a motion to dismiss, the allegations of the complaint must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322 (1972). In general, the complaint is construed favorably to the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Thus, the court is bound to give the plaintiff the benefit of every reasonable inference to be drawn from the "well-pleaded" allegations of the complaint. Retail Clerks International Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. ¶ (1963). The court may not dismiss for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Hishon v. King Spalding, 467 U.S. 69, 73 (1984). Dismissal is appropriate if plaintiff fails to put forth either (1) a cognizable legal theory, or (2) sufficient allegations of fact under a cognizable theory. Robertson v. Dean Witter Reynolds, Inc, 749 F.2d 530, 533-34 (9th Cir. 1984).

A. Eleventh Amendment Immunity

The Eleventh Amendment has been interpreted broadly to proscribe citizen suits against states and against state actors in their official capacity. See Symposium, "Shifting the Balance of Power," 53 Standford Law Review 1115 (2001). However, "Congress may abrogate the States' Eleventh Amendment immunity when it both unequivocally intends to do so and `act[s] pursuant to a valid grant of constitutional authority.'" Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 363 (2001).

Title II of the ADA expressly abrogates state immunity under the Eleventh Amendment. See 42 U.S.C. § 2000d-7(a)(1). Title II prohibits discrimination by "public entities," and permits individuals to sue states and state entities that violate this prohibition. 42 U.S.C. § 1212. The Ninth Circuit has twice held that "in enacting Title II of the ADA, Congress validly abrogated state sovereign immunity pursuant to its Fourteenth Amendment powers." Dare v. California, 191 F.3d 1167, 1173 (9th Cir. 1999); Clark v. California, 123 F.3d 1267, 1270-71 (9th Cir. 1997). Defendants argue that Dare and Clark are no longer binding authority given the Supreme Court's recent decision in Garrett, which held that Congress acted beyond its constitutional authority in abrogating the states' Eleventh Amendment Immunity under Title I of the ADA. Garrett, 531 U.S. at 372. However, the Court in Garrett specifically stated that it was "not disposed to decide the constitutional issue whether Title II, which has slightly different remedial provisions from Title I, is appropriate legislation . . . ." Id. at 360 n. 1.

While Garrett's reasoning calls into doubt the continued validity of Dare and Clark, this court must follow the decisions of the Ninth Circuit until they are overruled. Willis v. United States, 614 F.2d 1200, 1204 (9th Cir. 1979); Patricia N. v. Lemahieu, 141 F. Supp.2d 1243, 1250 (D.Haw. 2001); R.J. Williams Company v. Fort Belknap Housing Authority, 509 F. Supp. 933, 941 n. 7 (D.Mont. 1981). Ninth Circuit authority compels the conclusion that the Eleventh Amendment does not bar plaintiff's Title II claim against the state defendants.

B. Sufficiency of Plaintiff's Allegations Under the ADA

"[I]n order to state [an] ADA claim, inmates must allege that they have been denied benefits of the services, programs, or activities of the prison, or have been subjected to discrimination, by reason of their alleged disability." Galvin v. Cook, 2000 WL 1520231, *6 (D.Or., Oct. 3, 2000). Failure to provide health care because of a prisoner's disability states a claim under Title II of the ADA. Randolph v. Rodgers, 170 F.3d 850, 858 (8th Cir. 1999).

Defendants contend that plaintiff alleges no more than a claim for medical malpractice, and therefore has failed to allege that Fratus was discriminated against because of his disability. Although "the ADA does not create a remedy for medical malpractice," Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996), plaintiff in this case has alleged more than that Fratus was the victim of negligent medical care. Specifically, plaintiff alleges that the prison changed its policy on providing medical care and supplies so that paralyzed inmates were required to go on a daily basis to another location to get their supplies. (First Am. Compl. ¶ 22). Plaintiff alleges that this change in policy treated non-disabled inmates differently from disabled persons such as Fratus, who often had difficulty making the "med call" because of his paraplegia and his need to perform "manual bowel care" in his cell. (Id. ¶¶ 23-25.) These allegations suggest that Fratus was denied access to medical supplies and received substandard care because of his disability. Therefore, plaintiff has stated a claim for relief under the ADA.

C. Emotional Distress and Punitive Damages Under Title II

Defendants argue that even if plaintiff has stated a claim under the ADA, he cannot recover damages for emotional distress or punitive damages.

1. Damages for Emotional Distress

The Ninth Circuit has not expressly ruled on the issue of whether emotional distress damages can be recovered under Title II of the ADA. However, in Ferguson v. City of Phoenix, 157 F.3d 668, 675 n. 4 (9th Cir. 1998), the Ninth Circuit stated in a footnote that emotional distress alleged in connection with a Title II violation "would, of course, be compensable if intentionally inflicted." Here, plaintiff alleges that defendants intentionally mistreated Fratus because of his disability and retaliated against him for participating in a lawsuit, causing severe emotional distress. (First Am. Compl. ¶ 36.) These allegations raise an inference that defendants intentionally inflicted emotional distress upon Fratus, and therefore plaintiff's claim for emotional distress damages may go forward.

2. Punitive Damages

Although plaintiff may seek damages for emotional distress under Title II, it is not at all clear that plaintiff can recover punitive damages. Title II of the ADA is silent as to whether punitive damages are available for a violation of its provisions, and the Ninth Circuit has not ruled on the issue.

Until 1992, it was generally acknowledged that punitive damages were not available under Title II. See Moreno v. Consolidated Rail Corp., 99 F.3d 782, 790(6th Cir. 1996) (collecting cases). This changed after the Supreme Court decided Franklin v. Gwinnet County Public Schools, 503 U.S. 60 (1992), which stated the "general rule" that "absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute." Id., 530 U.S. at 70-71. Citing Franklin, some lower courts have held that punitive damages are now available under the remedial provisions of Title II. See Burns-Vidlak v. Chandler, 980 F. Supp. 1144 (D.Haw. 1997); Kilroy v. Husson College, 959 F. Supp. 22 (D. Maine, 1997); Hernandez v. Hartford, 959 F. Supp. 125 (D.Conn. 1997); DeLeo v. Stamford, 919 F. Supp. 70 (D.Conn. 1995); Zaffino v. Surles, 1995 WL 411319 (S.D.N.Y. 1995); Garrett v. Chicago School Reform Board, 1996 WL 411319 (N.D.Ill. 1996).

The better view, however, is that a Title II plaintiff should not be permitted to recover punitive damages. See Moreno, 99 F.3d 782; Doe v. County of Centre, 242 F.3d 437 (3rd Cir. 2001); Adelman v. Dunnire, 1996 WL 107853, *4 (E.D.Pa. March 12, 1996); Harrelson v. Elmore County, 859 F. Supp. 1465 (M.D. Al. 1994). First, Franklin is not conclusive on whether punitive damage are available under Title II. Second, Congress clearly did not intend to authorize punitive damage awards when it enacted Title II. Finally, the Supreme Court has established that punitive damage awards against public entities are inappropriate.

a. Relevance of Franklin

Franklin resolved a split among the circuits as to whether monetary damages could be recovered for violations of federal statutes that did not articulate a remedial scheme. Franklin, 503 U.S. at 62, 65. Franklin did not address the issue of whether punitive damages were available in these circumstances. As the Sixth Circuit noted:

[T]hroughout the Franklin opinion the Court consistently speaks in a compensatory vein — making "good the wrong done", "redress[ing] injuries," "remedial relief," and the like. Thus, it is by no means clear that Franklin has more than peripheral relevance to the case at bar.

Moreno, 99 F.3d at 789 n. 3.

Similarly, the Ninth Circuit's broad pronouncements that the "full panoply of remedies" are available in Title II actions are not conclusive on the issue of punitive damages. See Kling v. Los Angeles, 769 F.2d 532, 534 (9th Cir. 1985) (the "full panoply of remedies" are available under section 504 of the Rehabilitation Act); Greater Los Angeles Council on Deafness, Inc. v. Zolin, 812 F.2d 1103 (9th Cir. 1987) (same). Franklin, if it is even relevant to the issue, requires a more searching inquiry into whether there is clear direction from Congress that punitive damages are not available, and whether punitive damages are appropriate in Title II actions.

b. Direction From Congress

In enacting and amending the ADA, Congress provided clear direction that punitive damages cannot be recovered under Title II. When the ADA was passed in 1990, it incorporated the remedial provisions of section 504 of the Rehabilitation Act. The consensus at this time was that punitive damages were not available under section 504 against any defendant, public or private. See Moreno, 99 F.3d at 790. The only inference of congressional intent that can be drawn from the incorporation of section 504 remedies into Title II is that Congress intended the prohibition against punitive damages under section 504 to apply to Title II. See id. (noting that despite making numerous amendments to section 504, Congress did nothing to change the "established understanding that punitive damages are not available under § 504".)

The 1991 amendments to the ADA confirm that Congress did not intend for punitive damages to be available under Title II. The Civil Rights Act of 1991 amended Title I of the ADA, which prohibits discrimination in employment, to allow recovery of punitive damages. 42 U.S.C. § 1981a(b)(c). Title II, however, remained unchanged. Had Congress intended to provide for punitive damages under Title II, it would have done so expressly, as it did in Title I. See Harrelson v. Elmore County, 859 F. Supp. 1463 (M.D. Al. 1994). Moreover, the language of the amendment to Title I reflects Congress's understanding that punitive damages are not appropriate against public entities such as those regulated under Title II. "A complaining party may recover punitive damages under [Title I] against a respondent (other than a government, government agency, or political subdivision) if the complaining party demonstrates that the respondent engaged in a discriminatory practice . . . with malice or with reckless indifference to the federally protected rights of an aggrieved individual." 42 U.S.C. § 1981a(b)(1) (emphasis added). In incorporating the remedies of section 504 of the Rehabilitation Act, and in amending Title I of the ADA, Congress has clearly indicated the punitive damages cannot be recovered under Title II.

c. Appropriateness of Punitive Damages

In any case, an award of punitive damages for Title II violations is not appropriate. The Supreme Court has already found that punitive damages are inappropriate against governmental entities. In City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981), the Court held that municipalities were immune from punitive damages under section 1983. The Court reasoned that at the time Congress enacted section 1983, it did not intend to abolish the common law doctrine that punitive damages were not available against municipalities. Id. at 259-66. In addition, the court found that the retributive and deterrent purposes of punitive damages would not be served by an award against a municipality because the taxpayer, not the official responsible for the harm, would bear the cost. Id. at 267-68. The court was also concerned that the costs of expanded liability might threaten the financial integrity of local governments:

The impact of such windfall recovery is likely to be both unpredictable and, at times, substantial, and we are sensitive to the possible strain on local treasuries and therefore on services available to the public at large. Absent a compelling reason for approving such an award, not present here, we deem it unwise to inflict the risk. Id. at 270-71.

This reasoning is no less persuasive the Title II context. Title II prohibits discrimination by public entities; Facts Concerts counsels against holding a public entity, and through it the taxpayer, liable for punitive damages, especially when it is evident that Congress did not intend to provide for such relief. "Franklin permits the courts to award `any appropriate relief,' but the Court has already concluded in Fact Concerts that punitive damages are not `appropriate' when the defendant is a government entity. Nothing in Franklin indicates that the Court was contemplating a change in this rule." Cheryl L. Anderson, Damages for Intentional Discrimination By Public Entities Under Title II of the Americans with Disabilities Act 9 BYU J. Pub.L. 235, 268-69 (1995); see Doe v. County of Centre, 242 F.3d 437 (3rd Cir. 2001) (holding that punitive damages are not recoverable against municipalities under Title II); Moreno, 99 F.3d at 792 (noting the "game-show mentality" on the part of some juries that often leads to extremely large punitive damage awards). Because punitive damages are neither consistent with Congress's clear intent, nor appropriate against public entities, the court follows the established rule that they are not available under Title II.

D. Sufficiency of Allegations Under Third Claim for Relief

Plaintiff's Third Claim for Relief alleges that defendant Runnels, the Warden of High Desert State prison where Fratus was incarcerated, and defendant Beams, the Chief Medical Officer at High Desert State Prison, are liable as supervisors under section 1983. A supervisor can be liable under section 1983 for implementing a policy so deficient that "the policy itself `is a repudiation of constitutional rights' and is `the moving force of the constitutional violation.'" Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (quoting Thompson v. Belt, 885 F.2d 642, 646 (5th Cir. 1987).

Here, plaintiff alleges that defendants Runnels and Beams changed the policy on providing medical supplies in a way that was deliberately indifferent to the needs of paraplegic inmates such as Fratus. (First Am. Compl. ¶ 22-24.) Plaintiff alleges that this policy resulted in a lack of medical supplies, which contributed to Fratus's health problems. (Id. ¶ 24.) In addition, plaintiff alleges that Runnels and Beams directed health care providers to provide inadequate care to Fratus, resulting in the spread of infection that led to Fratus's death. (Id. ¶¶ 28-31.) Together, these allegations describe a policy that resulted in the repudiation of Fratus's constitutional rights. Therefore, plaintiff has stated a claim for relief for supervisory liability under section 1983.

E. Sufficiency of Allegations Under First Claim for Relief

The First Claim for Relief alleges that defendants Runnels, Beams, Clark and O'Parka are liable under section 1983 for violating Fratus's constitutional rights.

The state defendants contend that plaintiff's 1983 claims are subject to the heightened standard mandated by Branch v. Tunnel, 937 F.2d 1382 (9th. Cir., 1991) (hereinafter "Branch I") and Branch v. Tunnel, 14 F.3d 449, 456 (9th Cir. 1994) (hereinafter Branch II"). In Branch I and Branch II, the Ninth Circuit adopted a heightened pleading standard in cases in which subjective intent is an element of a constitutional tort action. Branch I, at 1386. The court held that "in order to survive a motion to dismiss, plaintiffs must state in their complaint nonconclusory allegations setting forth evidence of unlawful intent." Id. A complaint "must be specific and concrete enough to enable the defendants to prepare a response, and where appropriate, a motion for summary judgment based on qualified immunity." Id. (citing Whitacre v. Davey, 890 F.2d 1168, 1171 (D.C. Cir., 1989)).

Since the decisions in Branch I and Branch II, the United States Supreme Court has looked with disfavor upon judicially heightened pleading standards. In Leatherman v. Terrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164-69,(1993), the Court held that in civil rights cases alleging municipal liability under section 1983 a federal court may not apply a heightened pleading standard more stringent than the usual pleading requirements. Then, in Crawford-El v. Britton, 523 U.S. 574 (1998), the Court found that the District of Columbia Court of Appeals erred in fashioning a heightened burden of proof for unconstitutional-motive cases against public officials. Id. at 595.

The Ninth Circuit has yet to address the impact of Crawford-El on its decisions in Branch I and Branch II. Crawford-El, however, does address, and reject, judicially-imposed heightened proof standards in individual capacity suits. Given the Supreme Court's disapproval of heightened standards not derived from federal statutory authority or the federal rules, this court does not believe that the Ninth Circuit would continue to apply such a standard in the context of the pleadings in this case. The liberal pleading standards of Rule 8 are more appropriate. However, the court need not speculate on what the Ninth Circuit is likely to do; even under the heightened pleading standard adopted in Branch I and II, plaintiff has adequately stated a claim for relief.

To state a claim of inadequate medical care under the Eighth Amendment, plaintiff must allege deliberate indifference to serious medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992). A defendant is deliberately indifferent if he or she knows that a prisoner faces a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it. Farmer v. Brennan, 511 U.S. 825, 847 (1984).

Plaintiff makes specific allegations of deliberate indifference and causation in her complaint. The First Amended Complaint alleges inter alia that (1) Runnels and Beams were aware that Fratus had a renal cyst, but refused to treat him (First Am. Compl. ¶ 21); (2) Runnels and Beams changed the policy regarding the provision of medical supplies, and took away his medical supplies, which they knew Fratus needed to maintain his health, (Id. ¶ 22, 24); (3) Clark and Beams were aware that Fratus needed a shower/commode wheelchair and assistance in manual bowel care, but failed to provide this assistance, resulting in the infections that ultimately killed Fratus (Id. ¶ 23); (4) Clark, O'Parka and Beams saw Fratus sitting in his own feces but did nothing to assist him, exacerbating the infections (Id. ¶ 24); (5) Runnels put Fratus in administrative segregation in retaliation for his participation in the class action lawsuit (Id. ¶ 27); (6) Beams, Clark and O'Parka also retaliated against Fratus by refusing to give him the medical care he needed (Id. ¶ 26), see Perry v. Sinderman, 408 U.S. 593, 597 (1972) (retaliation by a state actor for the exercise of a constitutional right is actionable under section 1983); and (6) Runnels and Beams directed physicians to provide inadequate medical care to Fratus (Id. ¶ 29.)

These allegations identify the persons responsible for the alleged constitutional violations, the circumstances giving rise to the alleged unconstitutional actions, and the causal connection between the action and Fratus's injuries and eventual death. The complaint is sufficiently specific to state a claim for relief under section 1983 even under the heightened pleading standard set forth in the Branch decisions.

F. Leave to Amend

Plaintiff seeks leave to amend to add claims under the Rehabilitation Act, 29 U.S.C. § 794, and under 42 U.S.C. § 1985. Leave to amend a complaint "shall be freely given when justice so requires." Fed.R.Civ.Proc. 15(a). Because no scheduling order has been issued, plaintiff is free to amend the complaint.

IT IS THEREFORE ORDERED that:

(1) defendants' motion to dismiss be, and the same hereby is, GRANTED with respect to plaintiff's claim for punitive damages under Title II of the ADA, but DENIED in all other respects;

(2) plaintiff is granted twenty (20) days from the date of this Order to file an Amended Complaint consistent with this Order.