                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 28 2014

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



                            FOR THE NINTH CIRCUIT


CALBRUCE JAMAL GREEN,                            No. 12-35985

              Plaintiff - Appellant,             D.C. No. 3:11-cv-00876-BR

  v.
                                                 MEMORANDUM*
TRI-COUNTY METROPOLITAN
TRANSPORTATION DISTRICT OF
OREGON, a municipal corporation,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                        Argued and Submitted July 8, 2014
                                Portland, Oregon

Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.

       Plaintiff Calbruce Jamal Green appeals the district court’s grant of summary

judgment in favor of Defendant Tri-County Metropolitan Transportation District of

Oregon (“Tri-Met”). We have jurisdiction under 28 U.S.C. § 1291. We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Green did not raise a genuine issue of material fact as to whether Tri-Met’s

operators acted with deliberate indifference, as necessary to substantiate his claim

for monetary damages1 under Title II of the Americans with Disabilities Act, 42

U.S.C. § 12132. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1138 (9th Cir.

2001). To substantiate his claim, Green had to show that a rational trier of fact

could find that Tri-Met’s operators: (1) had “knowledge that a harm to a federally

protected right [was] substantially likely”; and, (2) “fail[ed] to act upon that . . .

likelihood.” Id. at 1139. Tri-Met’s operators may have known that Green was

mentally impaired and needed accommodation. The undisputed evidence,

however, shows they made efforts to communicate effectively with Green. In

doing so, they employed many of the communication techniques Green identified

as reasonable accommodations. Although the operators could have used additional

techniques specified in Tri-Met’s training manual, the decision to request

assistance from police to remove Green from the bus after their initial attempts

were unsuccessful does not amount to deliberate indifference under our precedent.




      1
        In addition to monetary damages, Green requested “[s]uch other and
further relief as the court deems just and proper.” At oral argument, Green’s
counsel suggested that injunctive relief was still a possibility. However, Green did
not raise the issue of injunctive relief in the district court and he did not address it
in his opening brief on appeal. In these circumstances, the issue is waived.

                                           -2-
See, e.g., Mark H. v. Hamamoto, 620 F.3d 1090, 1099 (9th Cir. 2010); Duvall, 260

F.3d at 1138-41.

      AFFIRMED.




                                      -3-
