ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS

(Re: Docket Nos. 44, 58, 75)

PAUL S. GREWAL, United States Magistrate Judge.

The present motions in this civil rights suit raise two related issues: exactly who may challenge the conditions of a county jail and who exactly may be challenged? While standing and mootness disputes in cases such as this are hardly new, the question of whether a private provider of jail medical facilities are services can face scrutiny under Title III of the Americans with Disabilities Act does appear to be novel.1

The first motion before the court is a motion to dismiss filed by Defendants County of Monterey and Monterey County Sheriff's Office.2 The second motion to dismiss was filed by Defendant California Forensic Medical Group, Incorporated.3 Plaintiffs oppose,4 and the parties appeared for a hearing.5 Having considered the arguments, the court denies both motions.

I. BACKGROUND

A. Factual Background6

Plaintiffs are inmates or recently released inmates from the Monterey County jail.7 Each plaintiff has been jailed multiple times.8 The jail frequently houses more than 1,100 inmates per day,9 and inmates stay in the jail on average for 30-40 days.10 The vast majority of the jail's population constitutes pretrial detainees with unpredictable, but brief, lengths of stay. The complaint alleges a litany of substandard conditions at the jail, including: violence due to understaffing, overcrowding, inadequate training, policies, procedures, facilities, and prisoner classification; inadequate medical and mental health care screening, attention, distribution, and resources; and lack of policies and practices for identifying, tracking, responding, communicating, and providing accessibility for accommodations for prisoners with disabilities.11

The County provides inmates access to health care and services under a contract with CFMG, a private company that administers all jail health care facilities and services.12 The contract took effect on April 1, 2012.13 The contract provides that CFMG "shall be responsible for the medical care, dental care, and mental health care of an inmate commencing with [] booking."14 CFMG is further responsible for "administering medications to inmates," providing required "medical supplies, and medical record supplies," and for "the cost of all pharmaceuticals administered."15 Under the contract, CFMG "shall determine the method, details and means of performing services," and CFMG's Medical Director is "responsible to assure the quality of health care provided."16 CFMG employs over fifty staff members.17

B. Procedural Background

Five plaintiffs filed an initial complaint.18 In eight causes of action seeking declaratory and injunctive relief on behalf of a putative class, the complaint alleges the conditions in the jail violate the Eights and Fourteenth Amendments of the United States Constitution, Article I, Sections 7 and 17 of the California Constitution, the Americans with Disabilities Act, the Rehabilitation Act, and Cal. Gov't Code Section 11135.19 In a first amended complaint, eight named plaintiffs were added.20 In a second amended complaint, nine new plaintiffs were added and one plaintiff was dismissed, resulting in the current total of 21 named plaintiffs.21

The County and Sheriff's Office filed an initial motion to dismiss challenging the standing of one plaintiff not in custody when his claim was filed and the mootness of the claims of nine others who were no longer in custody.22 In the meantime, Plaintiffs filed a motion for class certification.23 Plaintiffs seek certification of a prisoner class, consisting of all current and future prisoners in the jail, and a prisoners with disabilities subclass, consisting of all current and future prisoners who have a qualifying disability.24

CFMG also filed a motion to dismiss of its own, joining the County and Sheriff's Office's motion based on standing as well as challenging Plaintiffs' sixth cause of action against CFMG under Title III of the ADA.25 Defendants then amended their motion to dismiss by dropping one plaintiff based on his re-incarceration and adding two others because they had been released from custody.26 In their reply brief, Defendants further dropped from their motion yet another plaintiff because he, too, returned to custody.27

II. LEGAL STANDARDS

A. 12(b)(6) Motion to Dismiss

A complaint must contain "a short plain statement of the claim showing that the pleader is entitled to relief."28 If a plaintiff fails to proffer "enough facts to state a claim to relief that is plausible on its face," the complaint may be dismissed for failure to state a claim upon which relief may be granted.29 A claim is facially plausible "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."30 But courts "are not bound to accept as true a legal conclusion couched as a factual allegation."31 Under Fed.R.Civ.P. 12(b)(6), "dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory."32 A court may dismiss a claim "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations."33

B. Standing

To demonstrate standing to seek equitable relief, Article III of the U.S. Constitution requires that (1) a plaintiff has suffered an actual or threatened injury as a result of the defendant's alleged illegal conduct; (2) the injury is "fairly traceable" to the defendant's action; and (3) the injury is likely to be redressed by a favorable decision.34 A plaintiff must establish standing as of the filing of the complaint.35 Where multiple plaintiffs present the same class claims in multiple complaints, each plaintiff must establish standing as of the date of the filing in which the plaintiff first appears.36 Where a plaintiff seeks prospective injunctive relief, he also must demonstrate "that he is realistically threatened by a repetition of [the violation]."37 "Where a named plaintiff is a member of a plaintiff class, and `members of the class have repeatedly suffered personal injuries in the past that can fairly be traced to the [defendants'] standard... practices,' the defendant's treatment of the class as a whole must be considered to determine whether the individual plaintiff `ha[s] been and will continue to be aggrieved by the defendants' [illegal] pattern of conduct."38 Put another way, "[w]hen a named plaintiff asserts injuries that have been inflicted upon a class of plaintiffs, we may consider those injuries in the context of the harm asserted by the class as a whole, to determine whether a credible threat that the named plaintiff's injury will recur has been established."39

An exception to the general rules regarding standing pertains to past inmates under supervision.40 When a past inmate remains supervised by law enforcement and subject to unlawful conditions without engaging in illegal activity, that plaintiff maintains standing with regard to the unlawful policies or conditions he or she may confront.41 The question is whether plaintiffs have "demonstrate[d] a concrete injury and a realistic likelihood that the injury will be repeated."42 In Armstrong v. Davis, the Ninth Circuit held California parolees with disabilities could challenge policies and practices in state parole revocation proceedings that violated the ADA and the Rehabilitation Act.43 The parolees could not be subjected to the discriminatory parole revocation proceedings unless they were arrested and charged with violating the terms and conditions of their parole. Because they could be arrested without a warrant and for violating parole terms that prohibited otherwise legal conduct,44 parolees did not need to "engage in unlawful conduct to become subject to the unlawful practices they s[ought] to enjoin."45

C. Mootness

Mootness is "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of litigation (standing) must continue throughout its existence (mootness)."46 In general, a case is moot if there is no longer any personal stake in the outcome47 or "`present controversy as to which effective relief can be granted,'"48 even if the plaintiff had standing at the time the complaint was filed.49 In L.A. v. Lyons,50 the Supreme Court held that where the plaintiff could only be "expos[ed] to the challenged course of conduct" by breaking the law, his claim was moot because the threat of future harm was too attenuated.

An exception to the mootness doctrine applies in class actions "where it is `certain that other persons similarly situated' will continue to be subject to the challenged conduct and the claims raised are `so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires.'"51 In determining whether prisoners' claims are inherently transitory, the court must focus on "the average length of detention in the county jail" and "must look at the claims of the class as a whole" rather than Plaintiffs' "individual claims for relief."52

If the inherently transitory exception applies, the mootness determination merges with the standing analysis as of the filing of the complaint.53 Inherently transitory claims "relate to [class representatives'] standing at the outset of the case in order to preserve the merits of the case for judicial resolution."54 If class claims fall within the transitory exception, a plaintiff need not file a motion for class certification before the mooting of the plaintiff's claim for injunctive relief,55 unlike cases in which the transitory exception does not apply.56

D. Title III of the ADA

The ADA's purpose includes a national mandate to eliminate discrimination against individuals with disabilities and to help them to "`integrate into the economic and social mainstream of American life.'"57 The ADA's language is broad, emphasizes access to health care, and extends to upholding rights and combatting disability discrimination in institutionalized settings including prisons.58

Title III of the ADA provides in part that "no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation."59 To survive a motion to dismiss,60 Title III requires a plaintiff to plead the following elements: (1) the plaintiff was disabled within the meaning of the Act; (2) the plaintiff was discriminated against on the basis of that disability; and (3) the defendant owns, leases or leases to or operates a place of public accommodation.61 Under Title III, "professional offices of a health care provider, hospital, or other service establishment" are considered public accommodations.62

To be liable under Title III of the ADA, an entity need not "own" the location, but may merely "operate" a place of public accommodation in that space.63 The Ninth Circuit has held that "to operate" is "to put or keep in operation, to control or direct the functioning of, or to conduct the affairs of; manage."64 This is a broad definition,65 but this district has previously held an independent contractor must have some nexus establishing he was an "operator" to be subject to Title III of the ADA.66

Courts have held that Title II of the ADA,67 as well as California's Unruh Civil Rights Act68 and the California Disabled Persons Act,69 apply to jails, but there is limited jurisprudence on the applicability of Title III of the ADA to private health facilities in jails.70 In Wilkins-Jones, however, Judge Chen recognized that a health care provider in the jail was a separate entity from the jail and a "business establishment" operating "for profit" within the facility.71 While Title II and Title III are "parallel provisions" with Title II covering only public entitles and Title III covering only private entities,72 "[t]here are many situations ... in which public entities stand in very close relation to private entities that are covered by title III."73 The result is that "certain activities may be affected, at least indirectly, by both titles .... Where public and private entities act jointly, the public entity must ensure that the relevant requirements of title II are met; and the private entity must ensure compliance with title III."74

III. DISCUSSION

A. Plaintiffs Have Standing to Pursue Their Claims

Defendants argue that those Plaintiffs who are no longer incarcerated do not have standing for mootness and for lack of redressability because they are no longer subject to the conditions they challenge. Citing Lyons, Defendants contend it must be assumed a released inmate "will conduct [his] activities within the law and so avoid prosecution and conviction" and incarceration, denying these Plaintiffs' standing75 because their injury is too abstract and speculative.76 Defendants assert those Plaintiffs still in the jail and not a part of their motion to dismiss rebut Plaintiffs' argument that their class is transitory,77 and because the class is not transitory, Plaintiffs cannot rely on Armstrong v. Davis and similar cases because class certification has not been granted.78 "The general rule remains for 42 U.S.C. § 1983 claims for deprivation of rights in a detention setting is that the plaintiff must be incarcerated at the time of filing and throughout the pendency of the matter. The reasoning for this flows from the principle established in Lyons."79

Plaintiffs emphasize that because this is a class action for injunctive relief, the claims of the putative class and subclass members must be considered when evaluating standing and mootness, not just those of the named plaintiffs who seek to represent the class.80 Plaintiffs argue they qualify for the transitory exception, under which a named plaintiff need only have standing at the time they enter the dispute,81 considering that the population of the jail is "transitory, fluid, and constantly changing and evolving. Individual prisoners frequently come and go for stays of days, weeks, and months. The vast majority of the jail's population are pretrial detainees with completely unpredictable, but generally brief, lengths of stay. The average term in the jail ranges from 30-40 days, far too short for a prisoner to raise claims about the conditions in the jail and for the court to issue a decision on class certification.82 Plaintiffs further highlight those Plaintiffs who have returned to jail since Defendants filed their motions.83

Plaintiffs also argue that even if the transitory exception does not apply, the claims of Plaintiffs who have now been released but are under supervision are not moot.84 Plaintiffs' argument regarding supervision is especially pertinent to Plaintiff Yancey, who had been transferred to a different institution by the time Plaintiffs' first complaint was filed,85 and Plaintiff Miller, who was supervised on probation and not in the jail on the date he became a named plaintiff in this suit.86

On balance, the court is persuaded that the short average length of stay of prisoners in the putative class and the plodding speed of legal action qualify Plaintiffs for the inherently transitory exception.87

First, Defendants may be right that county jails in the State of California have forever changed as a result of realignment under Assembly Bill 109, more formally known as "The 2011 Realignment Legislation Addressing Public Safety." The bill shifted responsibility for incarceration and parole supervision of prisoners convicted of certain types of crimes from the state prison system to the counties.88 But the vast majority of inmates in the jail continue to be pretrial detainees.89 For such inmates, "the length of detention cannot be ascertained at the outset and may be ended before class certification by various circumstances."90 Nor do those Plaintiffs not subject to Defendants' motion suggest otherwise. Even those who can expect to remain in the jail for two years or more will likely move on before the resolution of this litigation, which in its second year has yet to reach even the class certification stage.

Second, the average length of incarceration for this largely pretrial detainee population is uncertain and short — only approximately 34 days.91 This is too short a period for the court to resolve a motion for class certification.

Third, because all inmates in the jail are alleged to be at risk simply by virtue of being detained, it is "certain that other persons similarly situated will continue to be subject to the challenged conduct."92 Under these circumstances, the mooting of Plaintiffs' individual claims, even if before the filing of a motion for class certification, does not impact their standing as long as each plaintiff had standing when they entered the case.93

Those Plaintiffs not incarcerated at the jail at the time the complaint was filed stand apart from the other Plaintiffs.94 For example, Plaintiff Yancey is presently housed in the state detention facility in Corcoran. Under Armstrong v. Davis, however, he too had standing when he became a named plaintiff in this suit because he was still subject to the disputed conditions of the jail.95 Even if his release is not scheduled for a number of years, upon the completion of his prison sentence, Plaintiff Yancey will necessarily be supervised on parole in Monterey County by the California Department of Corrections and Rehabilitation's Division of Adult Parole Operations.96 Plaintiffs also have sufficiently alleged that in the meantime, Plaintiff Yancey would be held in the jail for further proceedings before the Monterey Superior Court during the period of his sentence. As another example, Plaintiff Miller too was already under supervision and subject to the conditions of the jail when he entered the suit.97 Both therefore have "a personal stake in the outcome of the controversy" and the parties to the controversy are plainly adverse to each other.98

In sum, all Plaintiffs may proceed.

B. CFMG's Motion to Dismiss Claim Six Regarding Title III of the ADA

CFMG asserts Plaintiffs' sixth cause of action fails to state a claim because CFMG does not own, lease, or operate a place of "public accommodation" pursuant to 42 U.S.C. § 12181(7)(F).99 Rather, CFMG argues it is an independent contractor with the County of Monterey.100 It does not operate the physical space of the jail, neither the jail nor its medical services are open to the public,101 and many of Plaintiffs' allegations against CFMG did not occur in CFMG's jail clinical rooms.102 CFMG argues Plaintiffs' claim against them is superfluous, because Plaintiffs already have a remedy against the jail under Title II.103

Plaintiffs respond that CFMG is an operator of a place of public accommodation in that it "operates a professional office of a health care provider, hospital, or other service establishment" within the jail — Plaintiffs do not allege CFMG operates other functions of the jail.104 The "services establishment" category of public accommodations explicitly includes a "professional office of a health care provider" and a "hospital" as places of public accommodation under Title III.105 Plaintiffs further argue CFMG is not insulated from Title III liability just because its health care facilities in the jail are not open to the general public.106 Instead, the health care facilities that CFMG operates in the jail are covered service establishments and public accommodations within the meaning of Title III.107 Under its contract with the jail, CFMG is the "sole provider" of health services in the jail and so must be responsible for the substantive Title III violations CFMG does not contest.108 CFMG therefore has a nexus establishing itself as an operator of the medical facilities in the jail.109

On balance, the court is persuaded that Plaintiffs have sufficiently alleged that CFMG operates of a place of public accommodation for purposes of Title III.

First, in Martin, the Supreme Court stressed Congress' "expansive purpose"110 that the ADA be "a `clear and comprehensive national mandate' to eliminate discrimination against disabled individuals, and to integrate them `into the economic and social mainstream of American life.'"111 The legislative intent was that the statute reach all "critical areas" of society where persons with disabilities face discrimination, two of which are involved in the instant case: "`discrimination against individuals with disabilities persists in such critical areas as employment... transportation, communication, recreation, institutionalization, health services, voting, and access to public services.'"112

Second, only recently, this district held that a private provider of county jail health care could face claims for disability discrimination.113 While neither of the two California statutes at issue in Wilkins-Jones were Title III of the ADA, all three statutes require sufficient allegations to tie the alleged discrimination to the operation of a physical place.114

Third, the complaint cites "the jail" as the specific place where the discriminatory acts are alleged to have taken place.115 To be sure, the "place" of jails is typically considered to be the territory of Title II of the ADA, not Title III.116 But courts have consistently found Title III applies to "places of public accommodation" within places that normally do not fit into Title III either because they are owned by a public entity or are operated for other purposes by a public entity.117 In finding a county jail to be a "public place" or "place of public accommodation" under the Unruh Act and the California Disabled Person Act pertaining to the operations of a private healthcare provider in the jail, Judge Chen in Wilkins-Jones articulated:

This same reasoning makes just as much sense when considering whether to understand whether "place of public accommodation" under Title III also covers private operations within jails. Although inartful in identifying CFMG as the accommodation itself, Plaintiffs have sufficiently alleged that CFMG "operates" a professional office in the actual physical "place" of the jail to provide the "public accommodation" of all required medical care.119 CFMG's motion to dismiss must be denied.

IV. CONCLUSION

All of Defendants' motions to dismiss are DENIED. All named plaintiffs remain in the case, and Plaintiffs' sixth cause of action stands.

IT IS SO ORDERED.