Robert Drake Ewbank v. Jeff W. Emrick, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT DRAKE EWBANK,
Plaintiff-Appellant,
v.
JEFF W. EMRICK, individually, and in his
official capacity as (former) Deputy Director
of AMHD of the Oregon Health Authority
(OHA), AKA Jeff Emerick; et al.,
Defendants-Appellees.
No. 18-35873
D.C. No.
6:17-cv-00187-MK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge,
and Jolie A. Russo, Magistrate Judge, Presiding
Argued and Submitted June 7, 2021
Portland, Oregon
Before: WARDLAW, HURWITZ, Circuit Judges, and BOLTON,** District Judge.
Robert Ewbank appeals the district court’s dismissal of his claim under
Title II of the Americans with Disabilities Act (“ADA”) against Jeff Emrick and
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
FILED
JUN 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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other officials of the Oregon Health Authority (“Defendants”) without leave to
amend.1 We have jurisdiction under 28 U.S.C. § 1291, and we reverse and
remand.
Because Ewbank proceeded pro se below, we “construe the pleadings
liberally,” particularly in civil rights cases like Ewbank’s, and “afford him the
benefit of any doubt.” Martinez v. Barr, 941 F.3d 907, 916 (9th Cir. 2019)
(cleaned up). Ewbank claims Defendants unlawfully discriminated against him by
allegedly terminating his membership on, and precluding him from further
involvement with, state mental health advisory board committees on account of his
Post-Traumatic Stress Disorder (“PTSD”). After permitting Ewbank several
amendments to his complaint, the district court, adopting the magistrate judge’s
findings and recommendations, dismissed Ewbank’s Sixth Amended Complaint
(“SAC”) for failing to plead a prima facie case of disability discrimination under
Title II of the ADA. See Cohen v. City of Culver City, 754 F.3d 690, 695 (9th Cir.
2014) (elements of claim). Specifically, the magistrate judge found that Ewbank
had failed to sufficiently allege that he was “a qualified individual with a
disability” and that he suffered the alleged discrimination “because of his
disability.” The magistrate judge also found that any further leave to amend would
be “futile,” and the district court therefore dismissed the SAC with prejudice.
1 Ewbank does not appeal the district court’s dismissal of his other claims.

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Although dismissal of the SAC was appropriate, the district court erred by denying
further leave to amend on the basis that further amendment would be futile.
1. As an initial matter, we note that the magistrate judge erred in finding
that Ewbank failed to plead that his PTSD “satisfies the statutory definition of a
disabled person.” Under the ADA, “disability” means “a physical or mental
impairment that substantially limits one or more major life activities of such
individual,” 42 U.S.C. § 12102(1)(A), and the enabling regulations explicitly
provide PTSD as an example of a disabling impairment, see 29 C.F.R.
§ 1630.2(j)(3)(iii) (“[I]t should easily be concluded that . . . [PTSD]
. . . substantially limit[s] brain function.”). Here, Ewbank alleged that his PTSD
left him “substantially limited in certain major life activities such as work, writing,
and deliberation, especially with respect to disruptive thoughts . . . which at times
[are] so disabling as to be unable to go out in public or function due to symptoms
and flashbacks.” Moreover, Ewbank also alleged that his PTSD entitled him to
full, permanent disability benefits under Social Security regulations, which provide
a more stringent definition of disability than the ADA. Compare 29 C.F.R. §
1630.2(j)(1)(ii) with 20 C.F.R. § 404.1505(a). Ewbank therefore sufficiently

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pleaded that “he is a qualified individual with a disability.”2
However, the magistrate judge correctly found that Ewbank had failed to
adequately allege that his removal from the committees was “by reason of [his]
disability.” Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002). Ewbank did
allege facts that may be considered circumstantial “proof of discriminatory
animus,” such as Emrick’s alleged expressions of hostility regarding the role of
individuals suffering from mental disabilities, Defendants’ alleged frequent failure
to meet the state-mandated level of inclusion for disabled persons on the advisory
committees, and Emrick’s alleged inexplicably extreme description of the blunt,
but otherwise moderate language in Ewbank’s emails as “abusive,” a term Ewbank
alleges is frequently used to malign individuals with a mental disability. See
Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998). But the SAC
never alleges a causal link between Ewbank’s removal from the advisory
committees and Defendants’ alleged discriminatory animus towards his PTSD, i.e.,
that Defendants terminated his committee membership or precluded him from
2 To the extent the magistrate judge also found that Ewbank failed to allege
that he was “excluded from participation in or denied the benefits of a public
entity’s services, programs, or activities,” this was also erroneous because state
advisory boards that are open to public participation are “programs” or “activities”
under the ADA. Cohen, 754 F.3d at 695; see also id. (“We have explained that the
broad language of Title II brings within its scope anything a public entity does.”
(cleaned up)). Ewbank’s simple allegation that Defendants removed or precluded
him from the state advisory committees therefore suffices.

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further participation because of his disability. As a result, the district court did not
err by dismissing the SAC for failure “to state a plausible claim for relief” under
Title II of the ADA. See Cohen, 754 F.3d at 695.
2. But the district court nonetheless erred by refusing Ewbank leave to
amend his SAC on futility grounds because it is not clear “on de novo review that
[Ewbank’s] complaint could not be saved by amendment.” Eminence Cap., LLC v.
Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); see also Hildes v. Arthur
Andersen LLP, 734 F.3d 854, 859 (9th Cir. 2013). It is conceivable that Ewbank
could more adequately allege the nexus between his committee removal and
preclusion and Defendants’ alleged animus towards his disability, as well as
potentially add more facts in support of his claim. For example, Ewbank alleged
that another committee member, Chris Bouneff, had shouted back at a state
employee that he “[w]ould say what he damn well pleased.” Yet, Defendants
allegedly took no disciplinary action against Bouneff, a stark contrast to their
treatment of Ewbank, who was swiftly terminated. If Bouneff was not disabled
himself, a fact that counsel represented Ewbank would have knowledge of, it could
give rise to the inference that Defendants’ stated reason for Ewbank’s termination
was pretextual. See, e.g., Collings v. Longview Fibre Co., 63 F.3d 828, 833 (9th
Cir. 1995).
REVERSED AND REMANDED.

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