                                                                              FILED
                           NOT FOR PUBLICATION                                   JUL 29 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


DIMAS O’CAMPO,                                       No. 12-16483

              Plaintiff - Appellant,                 D.C. No. 2:10-cv-01100-KJM-
                                                     CMK
 v.

BED BATH & BEYOND OF                                 MEMORANDUM*
CALIFORNIA, LLC,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                    Argued and Submitted November 18, 2014
                            San Francisco, California

Before: BERZON and RAWLINSON, Circuit Judges and LYNN,** District Judge.

      Appellant Dimas O’Campo (“O’Campo”) appeals the district court’s denial

of his Motion for Leave to File First Amended Complaint and the district court’s

 *
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
      The Honorable Barbara M. G. Lynn, District Judge for the U.S. District
Court for the Northern District of Texas, sitting by designation.

                                       Page 1 of 5
dismissal, with prejudice, of his Original Complaint.

      On May 5, 2010, O’Campo sued Appellee Bed Bath & Beyond of

California, LLC (“BBB”) under the Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et. seq., the Disabled Persons Act, Cal. Civil Code § 54 et. seq., the

Unruh Civil Rights Act, Cal. Civil Code § 51 et. seq., and California Health and

Safety Code § 19959, alleging that five designated barriers prevented him from

enjoying full and equal access to BBB’s Chico store. O’Campo’s Original

Complaint alleged that “O’Campo has severe brain damage, which affects his

ability to walk, talk, see, and stand” and stated that O’Campo “requires the use of a

cane when traveling in public.” The Complaint did not state that O’Campo uses a

wheelchair.

      On September 14, 2010, the district court issued a Scheduling Order. It

provided, among other things, that there would be “[n]o further joinder of parties

or amendments to pleadings . . . without leave of court, good cause having been

shown.”

      On February 24, 2012, at a hearing on motions for summary judgment, the

district court expressed doubt that it had subject matter jurisdiction, noting that the

five alleged barriers would present problems only for a person in a wheelchair.

      The district court gave O’Campo permission to seek leave to amend the

Complaint and Scheduling Order. On March 9, 2012, O’Campo moved to amend
                                      Page 2 of 5
his Complaint, but he made no effort to show good cause for the late effort to

amend. The district court denied O’Campo’s motion, explaining that O’Campo

had “wholly failed to show . . . good cause,” and stating that modifying the

schedule at that stage of the litigation would be “unduly prejudicial to the defense

and [would] create undue delay.” The district court then dismissed O’Campo’s

suit, with prejudice, for lack of subject matter jurisdiction because the pending

Complaint did not show a relationship between the alleged barriers and the nature

of his disability as pleaded by O’Campo. O’Campo timely appealed.

      The district court’s denial of O’Campo’s motion to amend is reviewed for an

abuse of discretion. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607

(9th Cir. 1992). If, as here, a party seeks to amend after a deadline provided in a

Scheduling Order, the party seeking leave must request the court to amend the

Scheduling Order, and must demonstrate good cause to justify that request. Fed.

R. Civ. P. 16(b)(4). AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946,

952 (9th Cir. 2006). Here, O’Campo made absolutely no effort to show good

cause. It was therefore not an abuse of discretion for the district court to deny

O’Campo’s motion to amend.

      The district court’s sua sponte dismissal of O’Campo’s Complaint for lack

of standing is reviewed de novo. Skaff v. Meridien N. Am. Beverly Hills, LLC, 506

F.3d 832, 837 (9th Cir. 2007). To demonstrate Article III standing, a plaintiff must
                                      Page 3 of 5
plead (1) injury-in-fact, (2) causation, and (3) redressability. See Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). In this case, the only dispute

is whether O’Campo sufficiently pleaded the injury-in-fact prong of standing,

which turns on the “nature and source” of O’Campo’s claim under the ADA.

Chapman v. Pier 1 Imports (U.S) Inc., 631 F.3d 939, 947 (9th Cir. 2011) (en banc)

(quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). An ADA plaintiff has

suffered an injury-in-fact when he encounters “a barrier that deprives him of full

and equal enjoyment of the facility due to his particular disability.” Id. at 944

(emphasis added). The plaintiff must therefore show the “necessar[y] link[] to the

nature of his disability” to properly plead standing. Id. at 947 n.4.

         The district court properly concluded that the barriers O’Campo alleged

would not interfere with the full and equal access of a mobility-impaired person

who requires the use of a cane, rather than a wheelchair. Using as an example the

fourth alleged barrier, incomplete insulation of the pipes under the lavatory1, this

condition would not impact a person who was standing up, because the legs of a

standing person would not be underneath the lavatory while that person washed his

hands. Even though the Court is to draw reasonable inferences in favor of

O’Campo, the Court cannot reasonably infer that incomplete insulation covering

the pipes beneath the lavatory would interfere with O’Campo’s full and equal

1
    In context, this is a sink.
                                      Page 4 of 5
access to BBB’s facilities when his alleged impairment required that he use a cane.

This same analysis applies to all five alleged barriers. The Court may not imagine

additional facts about O’Campo’s disability that O’Campo did not allege.

Accordingly, the district court properly concluded that O’Campo failed to

sufficiently allege standing for his ADA claim. Thus, the district court properly

dismissed the case.

      AFFIRMED.




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