Candace M. Ermels, as guardian for other W.P.B. v. Shoreline School District

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CANDACE M. ERMELS, as guardian for
other W.P.B.,
Plaintiff-Appellant,
v.
SHORELINE SCHOOL DISTRICT,
Defendant-Appellee.
No. 22-35802
D.C. No. 2:20-cv-00893-RAJ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted January 17, 2024**
Before: S.R. THOMAS, McKEOWN, and HURWITZ, Circuit Judges.
Candace M. Ermels, guardian of W.P.B., appeals pro se from the district
court’s judgment dismissing her action under the Americans with Disabilities Act
(“ADA”), and Section 504 of the Rehabilitation Act (“Section 504”). We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district
* 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
JAN 19 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court’s judgment on the pleadings. Fleming v. Pickard, 581 F.3d 922, 925 (9th
Cir. 2009). We affirm.
The district court properly granted judgment on the pleadings on Ermels’s
Section 504 accommodation claim because Ermels failed to allege facts sufficient
to show that defendant deprived W.P.B. of special education services where
Ermels refused to consent to an evaluation of W.P.B. without which defendant
could not provide the requested services. See 20 U.S.C. § 1414(a)(1)(A)
(Individuals with Disabilities Education Act evaluation requirement); 34 C.F.R. §
104.35(a) (Section 504 evaluation requirement); see also Taylor v. Sturgell, 553
U.S. 880, 892 (2008) (“[I]ssue preclusion bars successive litigation of an issue of
fact or law actually litigated and resolved in a valid court determination essential to
the prior judgment even if the issue recurs in the context of a different claim.”
(citation and internal quotation marks omitted)); C.M.E. on behalf of W.P.B. v.
Shoreline Sch. Dist., No. 21-35538 (9th Cir. Mar. 14, 2023).
The district court properly granted judgment on the pleadings on Ermels’s
ADA accommodation claim because Ermels failed to allege facts sufficient to
identify any programs or services W.P.B. was unable to access because of his
disability. See A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195,
1204 (9th Cir. 2016) (“A plaintiff bringing suit under . . . Title II of the ADA must
show . . . [he] was denied a reasonable accommodation that [he] needs in order to

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enjoy meaningful access to the benefits of public services . . . .” (internal quotation
marks omitted)).
The district court properly granted judgment on the pleadings on Ermels’s
retaliation claims because Ermels failed to allege facts sufficient to demonstrate
that defendant took any adverse action against her or W.P.B. for advocating on his
behalf. See T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 F.3d 451,
473 (9th Cir. 2015) (elements of an ADA retaliation claim); Wong v. Regents of
Univ. of Cal., 410 F.3d 1052, 1055 n.1 (9th Cir. 2005) (ADA and Section 504
create “the same rights and obligations”).
The district court did not abuse its discretion in denying Ermels’s motions
for default judgment because Ermels had not properly served defendant when she
filed these motions. See Fed. R. Civ. P. 4(j)(2) (method for serving state or local
governments); Wash. Rev. Code § 4.28.080(3) (method for serving school districts
in Washington); Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (standard
of review and relevant factors).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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