NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 4 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JENNIFER JANEQUA SWAY,                          No.    18-35877

                Plaintiff-Appellant,            D.C. No. 2:16-cv-00310-RMP

 v.
                                                MEMORANDUM*
SPOKANE PARATRANSIT; SPOKANE
TRANSIT AUTHORITY; ALLISON
MITCHEL; E. SUSAN MEYER, CEO;
LANCE DURBIN; BETH BOUSLEY;
STEVE DOOLITTLE; STEVE BLASKA;
DENISE MARCHIORO; SUSAN
MILLBANK,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Eastern District of Washington
                Rosanna Malouf Peterson, District Judge, Presiding

                           Submitted October 31, 2019**

Before: FARRIS, O'SCANNLAIN, and TROTT, Circuit Judges.

      Jennifer Sway appeals from the district court’s grant of summary judgment



      *
             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).

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on her claim that the Spokane Transit Authority (STA) discriminated against her in

violation of the Americans with Disabilities Act, § 202, 42 U.S.C. § 12132. We

have jurisdiction under 28 U.S.C. § 1291. Because the facts are known to the

parties, we do not repeat them here.

                                          I

      The district court properly granted summary judgment for STA because

Sway failed to raise a genuine issue of material fact on the question of whether an

STA employee had the state of mind required for an ADA § 202 claim. The

standard under § 202 is deliberate indifference, meaning that STA’s staff must

have (1) known that a harm to a federally protected right was “substantially likely”

and (2) failed “to act upon that likelihood.” Duvall v. County of Kitsap, 

, 1138–39 (9th Cir. 2001). STA acknowledges two staff mistakes that led to

the deprivation at issue. First, Sway’s client file was not updated to note an

excused no-show because the STA staffer charged with the responsibility was

“distracted.” Such a mistake would not usually lead to a deprivation and would

not have were it not for the second mistake: STA’s failure to inform Sway when

her suspension was stayed. STA calls that second mistake a miscommunication.

The task of informing Sway of her suspension’s stay was not expressly allocated to

any staffer, presumably because Sway’s allegations of racial discrimination

prompted the attention of the agency’s ombudsman, who took some of the usual


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responsibilities of the paratransit office. In each case, the account in the record

leads, at worst, to an inference of negligence—and deliberate indifference must be

“more than negligent.” 

Sway has offered no evidence from which to

infer deliberate indifference.

                                          II

      Though the notice of appeal may also be liberally construed to include an

appeal of the district court’s earlier dismissal of Sway’s § 1983 claims, such notice

was filed over ten months after judgment was entered on such claims and thus we

lack jurisdiction. Nor can jurisdiction be conferred by construing the notice of

appeal as a motion to reopen the time to file an appeal because, even if Sway were

not given timely notice of the judgment against her, her notice of appeal was filed

more than the 180-day limit after the entry of judgment. Fed. R. App. P. 4(a)(6).

Any appeal from the district court’s judgment on Sway’s § 1983 claims must be

dismissed for lack of jurisdiction. See Bowles v. Russell, 

, 214

(2007).

      AFFIRMED in part and DISMISSED in part.




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