NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES WILLIAMS, 

Plaintiff-Appellant, 

 v. 

CRAIG KOENIG, Acting Warden, CTF; et 

al., 

Defendants-Appellees.

No. 21-16092 

D.C. No. 4:20-cv-04348-YGR 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted March 28, 2024**

San Francisco, California

Before: PAEZ, NGUYEN, and BUMATAY, Circuit Judges.

Dissent by Judge BUMATAY.

Plaintiff James Williams is incarcerated in California state prison. In this 

action, Williams alleges that prison employees (“Defendants”) violated the 

Americans with Disabilities Act (ADA) by failing to grant him a “Lower Bunk 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

APR 5 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Order” that would permit him to reside and sleep in a lower bunk of a bunk bed. 

Williams alleges that he suffers from chronic back pain, and that climbing up to 

and sitting on the top bunk exacerbated that pain.

In a pre-service screening order issued pursuant to 28 U.S.C. § 1915A, the 

district court dismissed Williams’s complaint with leave to amend. Williams filed 

a notice of appeal along with a motion indicating that he did not intend to amend. 

The district court dismissed Williams’s complaint pursuant to Federal Rule of Civil 

Procedure 41(b). Williams appealed, arguing that the district court erred in 

dismissing his ADA claim for failure to state a claim.1

We review de novo a district court’s screening dismissal under 28 U.S.C. 

§ 1915A. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). We review a 

district court’s Rule 41(b) dismissal for an abuse of discretion. Yourish v. Cal. 

Amplifier, 191 F.3d 983, 988 (9th Cir. 1999). We liberally construe the pleadings 

of pro se plaintiffs. See Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). 

We have jurisdiction under 28 U.S.C. § 1291. We reverse and remand for further 

proceedings.

1. The district court abused its discretion by dismissing Williams’s 

1 Williams’s complaint also alleged a claim of deliberate indifference under the 

Eighth Amendment, but he does not challenge the district court’s ruling as to that 

claim on appeal. 
3 

complaint under Federal Rule of Civil Procedure 41(b).

2

 The district court’s 

screening order dismissing Williams’s complaint with leave to amend informed 

Williams that he “may, but is not required to, file an amended complaint . . . if he 

truthfully can do so.” Rather than amend his complaint, Williams attempted to 

appeal the district court’s decision to this court, which dismissed the appeal for 

lack of jurisdiction. See No. 21-16092, ECF No. 2. On remand, Williams filed 

another notice of appeal, this time accompanied by a contemporaneous motion 

asking the “court to finalize the Judgment . . . so that plaintiff may appeal.” This 

was all Williams was required to do to obtain a final judgment. See WMX Techs., 

Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc)). The district court’s 

June 7 order stating that Williams had “not filed any further communications with 

the Court since his February 12, 2021 Notice of Appeal” appears to have 

erroneously overlooked Williams’s notice and motion, which was docketed by the 

court on June 3, three days earlier. Williams’s decision to forgo amending his 

complaint and instead test its adequacy on appeal “was perfectly proper, and was 

not sanctionable” under Rule 41(b). Edwards v. Marin Park, Inc., 356 F.3d 1058, 

2 Although Williams did not challenge the district court’s Rule 41(b) ruling in his 

opening brief, we may nevertheless consider the issue because it was raised in 

Defendants’ answering brief and Defendants consequently suffered no prejudice as 

a result of Williams’s failure to raise the issue. See Koerner v. Grigas, 328 F.3d 

1039, 1048–49 (9th Cir. 2003) (describing circumstances in which court may 

consider argument otherwise waived). 
4 

1063 (9th Cir. 2004). We therefore hold that the district court abused its discretion 

in dismissing Williams’s complaint under Rule 41(b).

2. The district court erred in dismissing Williams’s ADA claim at the 

screening stage. To establish an ADA violation, Williams must show: “(1) he is a 

qualified individual with a disability; (2) he was either excluded from participation 

in or denied the benefits of a public entity’s services, programs, or activities, or 

was otherwise discriminated against by the public entity; and (3) such exclusion, 

denial of benefits, or discrimination was by reason of his disability.” Duvall v. 

Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (internal quotation marks 

omitted). The district court concluded that “Williams does not allege facts 

suggesting that he is an individual with a disability such that he would be a proper 

plaintiff to assert an ADA claim.” In other words, the district court found that 

Williams’s claim failed at the first prong.

But a liberal reading of Williams’s complaint compels us to reach the 

opposite conclusion. The ADA defines “disability” as: “(A) a physical or mental 

impairment that substantially limits one or more major life activities . . . (B) a 

record of such an impairment; or (C) being regarded as having such an 

impairment.” 42 U.S.C. § 12102. “The question of whether an individual meets 

the definition of disability . . . should not demand extensive analysis.” 29 C.F.R. 

§ 1630.1(c)(4). Major life activities include, but are not limited to, “caring for 
5 

oneself, seeing, hearing, eating, sleeping, walking, standing, lifting, 

bending . . . and working.” Nunies v. HIE Holdings, Inc., 908 F.3d 428, 436 (9th 

Cir. 2018) (citing 42 U.S.C. § 12102(1)(A)). Williams argues that he has an actual 

disability because the conditions affecting his back “significantly affected [his] 

daily activities.” His complaint specifically alleged that he is sometimes “unable 

to stand straight” or “walk normal without severe pain,” that he “awakes in pain,” 

and that he has “mobility issues with twisting, turning, jumping . . . and the 

inability to sneeze and walk normal[ly].” The documentary evidence attached to 

his complaint includes medical records that reflect various issues Williams 

experienced in relation to his back pain as well as diagnoses by treating physicians. 

See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987) (“If a 

complaint is accompanied by attached documents . . . [t]hese documents are part of 

the complaint and may be considered in determining whether the plaintiff can 

prove any set of facts in support of the claim.” (citation omitted)). Taken together, 

this is more than enough to plausibly allege that Williams suffers from a condition 

that substantially impairs major life activities. See Nunies, 908 F.3d at 436 

(holding “a stabbing pain when raising one’s arm above chest height substantially 

limits the major life activity of lifting and possibly working”). 

The district court did not address the other two elements of Williams’s ADA 

claim: that “(2) he was either excluded from participation in or denied the benefits 
6 

of a public entity’s services, programs, or activities, or was otherwise 

discriminated against by the public entity; and (3) such exclusion, denial of 

benefits, or discrimination was by reason of his disability.” Duvall, 260 F.3d at 

1135. Upon de novo review, we find that Williams has adequately pleaded those 

elements.

“[T]he ADA’s broad language brings within its scope anything a public 

entity does.” Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir. 2001). We 

have previously recognized that “[p]roviding inmates with appropriate and 

adequate bedding and bathroom facilities are ‘services’” of a jail within the 

meaning of the ADA. Pierce v. Cnty. of Orange, 526 F.3d 1190, 1224 n.44 (9th 

Cir. 2008); see also Armstrong v. Brown, 732 F.3d 955, 957 (9th Cir. 2013) 

(recognizing that accommodations under ADA include “accessible beds”). The 

ADA requires a prison to “make reasonable modifications” to accommodations 

like beds “to avoid discrimination on the basis of disability, unless [it] can 

demonstrate that making the modification would fundamentally alter the nature of 

the service, program, or activity.” 28 C.F.R. § 25.130(b)(7)(i); see also 28 C.F.R. 

Pt. 35, App. A (“It is essential that corrections systems fulfill their 

nondiscrimination and program access obligations by adequately addressing the 

needs of prisoners with disabilities, which include, but are not limited 

to . . . devices such as a bed transfer . . . .”). Williams alleges that Defendants 
7 

failed to provide such reasonable accommodations and forced him to hop up and 

down from a top bunk, which “caused [his] medical condition to worsen.” He 

further alleges that he was denied a lower bunk accommodation, despite one being 

a “necessary” component of his treatment plan, and that the prison refused to 

provide a “ladder-handrail-grab bar” that would make the top bunk accessible to 

him. That is all that is necessary to plead Williams’s prima facie case. See Pierce, 

526 F.3d at 1216–17. Whether those modifications or accommodations are 

reasonable is a context-specific inquiry that must be resolved after discovery and 

fact-finding, not in a pre-service screening order. See Lujan v. Pacific Maritime 

Ass’n, 165 F.3d 738, 743 (9th Cir. 1999).3

3. The district court erred in holding that Williams did not sue a proper 

defendant. While the district court correctly observed that the ADA does not permit 

suits against state officials in their individual capacities, the ADA does permit suits

for injunctive relief against state officials in their official capacities. Miranda B. v. 

Kitzhaber, 328 F.3d 1181, 1187–88 (9th Cir. 2003). Williams’s complaint is silent 

as to whether the prison officials named are being sued in their individual or official 

3 We reject Defendants’ argument that their denial of an accommodation is 

insulated from liability merely because it is based on a doctor’s medical 

assessment of Williams’s condition. To accept Defendants’ position that the 

involvement of a doctor removes all prison accommodation decisions from the 

ADA’s reach would undermine the Supreme Court’s recognition that Title II of the 

ADA applies to prisons. Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209–10 

(1998).
8 

capacities. Under such circumstances, the court must consider the “essential 

nature” of the proceeding. See Eaglesmith v. Ward, 73 F.3d 857, 859 (9th Cir. 

1996). Here, Williams sued various California Department of Corrections and 

Rehabilitation employees, listing their names and official positions. He alleged that 

he was suing the defendants “for the respective roles played with [sic] the denial of 

plaintiff’s ADA request.” Considering the essential nature of the proceeding, in 

which Williams was seeking an ADA accommodation from prison officials, and 

affording his complaint the liberal construction it is due, we find that Williams’s

complaint is an official capacity suit permitted under the ADA. Moreover, 

Williams is not required to name the entity that runs the prison as the defendant 

because suits against the warden and other state prison officials in their official 

capacities are treated as suits against their office. See Will v. Mich. Dept’ of State 

Police, 491 U.S. 58, 71 (1989).

REVERSED and REMANDED.
1

Williams v. Koenig, No. 21-16092

BUMATAY, Circuit Judge, dissenting:

It’s well-established that “issues which are not specifically and distinctly

argued and raised in a party’s opening brief are waived.” Arpin v. Santa Clara Valley 

Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001) (simplified). In this case, the 

district court dismissed James Williams’s complaint without prejudice under Federal 

Rule of Civil Procedure 41(b) for failure to prosecute his claim. Williams failed to 

address this dispositive ruling in his opening brief and conceded he waived the issue 

in his reply brief. 

Our court overlooks this failure to raise this crucial issue because Defendant’s

answering brief pointed out Williams’s waiver. That’s not how it should work. That 

Koenig brought the waiver to our attention is no basis to excuse it. Otherwise, 

appellees can never raise waiver in an answering brief without waiving waiver. 

That’s an odd Catch-22 we’ve invented. 

I would deem the Rule 41(b) issue waived and affirm the district court on that 

basis. 

I respectfully dissent.

FILED

APR 5 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS