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Shankar v. United States Department of Homeland Security

United States District Court, N.D. California, San Francisco Division

February 6, 2014

RYAN SHANKAR, a Conserved Adult by and through his father and Conservator, VISHNU SHANKAR, Plaintiff,


NATHANAEL M. COUSINS, Magistrate Judge.

Ryan Shankar, who has autism, filed this lawsuit based on an incident in October 2009 at the airport in Honolulu where he claims he was treated rudely and denied access to a flight. Plaintiff alleges violations of the ADA and the Rehabilitation Act, as well as state law tort claims against defendants United Airlines and two federal agencies responsible for the security screening at the airport. The federal defendants move to dismiss the complaint for lack of standing and failure to state a claim. For the reasons set forth below, the Court dismisses the ADA claim against the federal defendants with prejudice, and dismisses the remaining claims with leave to amend. The United States, which is not named as a defendant but contends it is the only proper federal defendant on the tort claims, filed a motion to dismiss those claims as time-barred, which the Court denies.


A. The Allegations of the Complaint

At the time he filed his original complaint, plaintiff was eighteen years old. Dkt. No. 1 ¶ 6. Plaintiff alleges that he is afflicted with autism, "which impedes his ability to understand, communicate and interpret his daily living experiences, especially those which are unusual and not within the realm of his typical daily routine." Dkt. No. 19 ¶¶ 6, 11. On October 4, 2009, he was scheduled to board a return flight on United Airlines from Honolulu to San Francisco with his family following a trip to Hawaii. Id. ¶ 12. Plaintiff alleges that when he and his family arrived at the airport in Honolulu that day, his father learned that the family's reservations to fly back to San Francisco had been erroneously cancelled. Id. ¶ 16. While plaintiff's father was speaking with the United Airlines ticket agent about the error, plaintiff uttered some odd noises, and as time went on, became increasingly frustrated and began to flail and engage in self-stimulatory behaviors associated with autism. Id. When his father informed the ticket agent that plaintiff has autism, the agent allegedly responded by saying "what's that?" Id. The complaint further alleges that the ticket agent "was rude, dismissive and poorly trained regarding service and decorum for passengers with disabilities, " and that when plaintiff was making utterances, "she often rolled her eyes and showed her obvious ignorance about serving persons with disabilities." Id. ¶ 17.

After approximately forty-five minutes, the erroneous ticket cancellations were rectified, the ticket agent provided plaintiff's family with boarding passes, and the family proceeded to the security check points. Id. ¶¶ 18-19. Plaintiff made his way through the security check prior to any other family member as he was anxious to board the aircraft, although he "was calm and not manifesting any bizarre noises or behaviors." Id. ¶ 19. Plaintiff alleges that at the conclusion of the security screening by the Transportation Security Administration ("TSA"), he gave a "high five sign" to one of the TSA agents, and that while doing so, he slapped the TSA agent's hand and uttered the words "good job." Id. ¶ 20. According to the complaint, plaintiff, like many others afflicted with autism, has been taught to administer a "high five sign" and slap the hand of the recipient when successfully completing a task, as well as to utter the words, "good job." Id. n.3. Plaintiff alleges that when he slapped the hand of the TSA agent, the agent was smiling and "reciprocated in 2kind." Id. ¶ 20, n.3.

Plaintiff further alleges that as his father was going through the security checkpoint, the same TSA agent yelled out "this kid hit me, " referring to plaintiff. Id. ¶ 21. Plaintiff's father then tried to explain that plaintiff did not hit the agent, is afflicted with autism, and meant no harm. Id. After that, plaintiff's father joined plaintiff "at the end of the security line." Id. According to the complaint, plaintiff "was calm and happy" as he walked with his father through the concourse and onto the plane, after stopping at Burger King to purchase french fries. Id. ¶ 22.

The complaint further alleges that, after plaintiff and his family boarded the plane and had taken their seats, two members of United Airlines' ground crew "came onto the aircraft while rudely and well above a whisper, insisted that [plaintiff] and his family deplane on an immediate basis, " "loudly stat[ing] to [plaintiff]'s father that the pilot specifically wanted he and [plaintiff] to get off the aircraft.'" Id. ¶ 24. The United Airlines agents "refused to answer any questions about the reasons and/or rationale that required [plaintiff] and his father to deplane." Id. Plaintiff alleges that as he and his father were escorted into the airport after deplaning, his father noticed United Airlines agents give a "thumbs up" sign to the TSA agent who reciprocated Plaintiff's "high five" sign earlier at the security checkpoint. Id. ¶ 25.

Plaintiff further alleges that "[w]ithout intervention, police contact or explanation of any kind from [United Airlines] personnel or the TSA, " plaintiff and his family waited for several hours in the airport before a customer service agent responded to plaintiff's father's "multiple requests for an alternate flight." Id. ¶ 26. The customer service agent allegedly said she was not authorized to discuss the incident but was authorized to rebook plaintiff and his family on a non-direct flight to San Francisco. Id.

B. Procedural History

Plaintiff filed his original complaint on April 3, 2013. Dkt. No. 1. At that time, plaintiff brought the original complaint in his own name, without reference to conservatorship. Id. The complaint named as defendants the United States Department of Homeland Security ("DHS") and the TSA (collectively, "the federal defendants"), United Airlines, and Doe defendants 1-10. Id.

On June 17, 2013, United Airlines filed a motion to dismiss plaintiff's complaint. Dkt. No. 14. Prior to any federal defendant appearing in the action and by stipulation with United Airlines, plaintiff chose not to oppose the motion to dismiss and instead filed a first amended complaint on July 30, 2013. Dkt. Nos. 17, 18, 19.

In the first amended complaint, plaintiff brings this action in his own name as "a conserved adult by and through his father and Conservator Vishnu Shankar." Dkt. No. 19. Plaintiff further alleges that he "is temporarily conserved by his father for purposes of this litigation." Id. ¶ 6. The first amended complaint alleges two causes of action under federal law, for violation of Title II and Title III (42 U.S.C. § 12131 et seq. ) of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and for violation of § 504 (29 U.S.C. § 794) of the Health and Rehabilitation Act of 1973 ("the Rehabilitation Act"), as well as three tort claims under state law for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress. Id. Each claim is asserted against all defendants, with the exception that United Airlines is not a defendant to the Rehabilitation Act claim.

The Court has subject matter jurisdiction over plaintiff's federal law claims under 28 U.S.C. § 1331, and has supplemental jurisdiction over the state law claims under 28 U.S.C. § 1367(a). All parties and the United States have consented to the jurisdiction of a United States magistrate judge under 28 U.S.C. § 636(c). Dkt. Nos. 10, 20, 30, 55.

C. The Motions to Dismiss

On August 30, 2013, the federal defendants moved to dismiss the first amended complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of standing, and for failure to state a claim under Rule 12(b)(6). Dkt. No. 28. Among other relief, the federal defendants request that the Court dismiss the tort claims against them on the basis that the United States is the only proper defendant for those claims. Id. The motion also seeks to strike portions of the complaint as immaterial and impertinent under Rule 12(f). Id.

On September 11, 2013, the United States filed a separate motion, seeking to dismiss plaintiff's tort claims for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), failure to state a claim under 12(b)(6), and lack of capacity to sue under Rule 17(b) and (c). Dkt. No. 35. The United States contends that the tort claims against it must be dismissed on the ground that plaintiff did not file suit with legal capacity to sue in his own name or through a representative against the United States within the required six-month time period after receiving notice of denial of his administrative tort claim. Id.

The Court held a hearing on the two motions to dismiss. After the hearing, the parties submitted supplemental briefing, as ordered by the Court, on the issue of whether equitable tolling applies to plaintiff's tort claims. Dkt. Nos. 49, 50.


To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556-57) (internal quotation marks omitted). A court is not required to accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Additionally, a pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Where a court dismisses for failure to state a claim under Rule 12(b)(6), it should normally grant leave to amend unless it determines that the pleading could not possibly be cured by the allegation of other facts. Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990).


A. The Federal Defendants' Motion to Dismiss Is Granted.

1. Plaintiff's ADA Claim Against the Federal Defendants Is Dismissed With Prejudice.

Plaintiff's first claim for relief alleges violations of Title II (public services) and Title III (public accommodations and services operated by private entities) of the ADA against all defendants. The federal defendants move to dismiss this claim on the basis that the federal government is not subject to the provisions of either Title II or Title III of the ADA. See Agee v. United States, 72 Fed.Cl. 284, 289 (Fed. Cl. 2006) (under Title II, 42 U.S.C. § 12131(1), the federal government is not included within the definition of a public entity, while Title III of the ADA, 42 U.S.C. § 12181, does not apply to public entities); accord Stringer v. White, No. 07-cv-5516 SI, 2008 WL 344215, at *6 (N.D. Cal. Feb. 6, 2008). Plaintiff concedes that he cannot maintain an ADA claim against the federal government. Dkt. No. 37 at 19:16-17. The first claim for relief is therefore dismissed with prejudice as to the federal defendants.

2. Plaintiff Fails to State a Claim Against the Federal Defendants Under the Rehabilitation Act.

Plaintiff's second claim for relief is for violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Section 504 provides that "[n]o otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." 29 U.S.C. § 794. An otherwise qualified disabled individual must be provided with reasonable accommodations to ensure meaningful access to the benefits of public services. Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th Cir. 2010) (citations omitted). In order to plead a claim under either the ADA or the Rehabilitation Act, plaintiff must show (1) he is disabled under the Act; (2) he is "otherwise qualified" for the benefit or services sought; (3) he was excluded solely because of his additional disabilities; and, (4) the program providing the benefit or services receives federal financial assistance or is conducted by any executive agency. J.C. v. California Sch. for Deaf, No. 06-cv-02337 JSW, 2006 WL 2850376, at *5 (N.D. Cal. Oct. 5, 2006); see also Zukle v. Regents of the University of California, 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) ("There is no significant difference in the analysis of rights and obligations created by the ADA and the Rehabilitation Act.... Thus, courts have applied the same analysis to claims brought under both statutes.") (internal citations omitted). A plaintiff claiming disability discrimination under Title II of the ADA or § 504 of the Rehabilitation Act bears the burden of establishing the elements of the prima facie case, including, if needed, the existence of a reasonable accommodation that would enable him to participate in the program, service, or activity at issue Pierce v. Cnty. of Orange, 526 F.3d 1190, 1217 (9th Cir. 2008) (citation omitted); Wong v. Regents of Univ. of California, 192 F.3d 807, 816 (9th Cir. 1999).

The complaint here alleges that "[t]he myriad of mental and emotional disorders and disabilities from which [plaintiff] suffers substantially limits a major life activity, i.e. commercial airline travel due to the fact that manifestations of his autism affect his behavior and understanding of certain social skills and protocols associated with commercial airline travel." Dkt. No. 19 ¶ 45. Plaintiff claims that he "was entitled to the implementation of accommodations and modifications to assist him when embarking on commercial airline travel." Id. Plaintiff alleges that the federal defendants "knew or should have known that [plaintiff], due to his disability and lack of understanding could not fully access and/or endure TSA's security procedures in the same manner as would a traveler without disabilities like [plaintiff]'s." Id. ¶ 46. Plaintiff further alleges "on the basis of information and belief" that DHS "failed to create appropriate screening procedures for patrons afflicted with autism while concurrently failing to insure that TSA trains and prepares their agents regarding autism and the myriad of manifestations thereof." Id. Plaintiff claims that "[d]ue to the denial of Section 504 accommodations and modifications, [he] was unable to access a commercial flight pre-planned to transport he and his family home to San Francisco, " id. ¶ 48, and that he "has suffered emotional injury, upset, extreme anxiety, humiliation, embarrassment and attorneys fees, " id. ¶ 46.

The federal defendants move to dismiss this claim both for lack of standing and for failure to state a claim for relief under § 504 of the ...

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