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explaining that in the context of the ADA, although the Court of Appeals for the Third Circuit had not addressed the issue, all other circuits to consider the question have held, either directly or by analogy to section 504 of the Rehabilitation Act, that compensatory damages under the ADA are unavailable absent showing of intentional discrimination
Summary of this case from Gallagher v. Allegheny CountyOpinion
Civil Action No. 03-CV-5661.
July 6, 2004
MEMORANDUM ORDER
Pro se Plaintiff James George Douris brings this action against the Bucks County District Attorney's Office, and Dianne E. Gibbons, in her official capacity, for violations of Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. §§ 951, et seq. Plaintiff alleges that proper accommodation was not made for him at an auction of confiscated property in Bucks County. Plaintiff seeks equitable relief, damages, and attorney's fees and costs. Presently before the Court is Defendants Buck County Office of the District Attorney and Diane E. Gibbons' Motion for Summary Judgment. (Doc. No. 29.) For the reasons that follow, Defendants' Motion will be granted and Plaintiff's claims will be dismissed.
This action was originally filed against the Office of the Pennsylvania Attorney General, and Diane E. Gibbons and Arlene Angelo in their individual capacities. Those parties have been dismissed from this case. (Doc. Nos. 18, 24.) In Plaintiff's Response to Defendants' Motion for Summary Judgment, Plaintiff argues that we should "reverse" our previous decisions dismissing the Office of the Attorney General, and Gibbons and Angelo in their individual capacities. (Doc. No. 34 at 4-5.) Plaintiff made this same request on February 23, 2004 relating to the dismissal of the Office of the Attorney General. (Doc. No. 25.) That Motion was denied by Order dated February 27, 2004. This request to reverse the decision related to Gibbons and Angelo is Plaintiff's first. Under the Court's Local Rule 7.1(g), a motion for reconsideration shall be filed within ten (10) days after the entry of the order. The Orders dismissing these parties were filed on January 22, 2004, and February 19, 2004. Clearly, Plaintiff's requests are untimely. We note, however, that even if Plaintiff presented a compelling reason to reverse these prior decisions, such a reversal would have no effect on the instant decision to dismiss this Complaint.
Our analysis under the ADA applies equally to the PHRA claim. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
I. Background
On October 12th and 13th, 2001, Plaintiff attended a public auction of confiscated property in Bucks County held by the Pennsylvania Office of the Attorney General ("OAG") and the Office of the District Attorney of Bucks County. (Compl. ¶¶ 14, 15.) The auction was held at a warehouse ("Auction Site") located at 7321 New Falls Road that the Office of the District Attorney of Bucks County uses as a storage facility. (Doc. No. 29 Ex. A ("Mather Decl.") ¶ 2.) Confiscated merchandise is kept inside the warehouse and confiscated automobiles are displayed in a 12,000 square foot vehicle yard adjacent to the warehouse. (Doc. No. 29 Ex. C ("Salmen Expert Rep.") ¶ 3.c.) The sale room where the seized merchandise is displayed can be accessed by a twenty-foot ramp with no handrails, and a slope that varies between 6.5 degrees and 7.6 degrees, except for a three-foot portion at the bottom that has a slope of approximately 19.2 degrees. ( Id. ¶ 3.d.) About one-third of the 12,000 square foot vehicle yard where seized vehicles are displayed is paved with the remaining two-thirds made up of loose gravel and grass. ( Id. ¶ 3.c.)
On October 12th and 13th of 2001, Plaintiff attempted to enter the Auction Site. (Compl. ¶ 12.) Plaintiff alleges that he was unable to access the site because of the above described characteristics of the site, and his confinement to a wheelchair. In his answers to Defendants' interrogatories, Plaintiff states that, "[he] went up to the auction gate and found no handicapped parking provided and I saw stones for my path of travel into the Auction Site. At that point in time I left the auction because it was not safe for me at the facility." (Doc. No. 29 Ex. E ("Douris Answers") ¶ 9.) The Auction Site did not have any posted handicapped parking signs close to the entrance of the Auction Site (Compl. ¶ 12); nor did it have any designated parking spaces at all. (Salmen Expert Rep. ¶ 3.b.) Rather, the parking area for the Auction Site is made up of a paved drive (Tower Road) and an open, grassy field across Tower Road from the Auction Site. ( Id.)
Plaintiff did not enter the building where the bidding occurs, but he alleges that because of his inability to use his hands he was unable to fill out a "bid" and take advantage of the opportunity of participating in the auction. (Compl. ¶ 16.) To place a bid at the auction, an individual completes a bid form, and for bids over $499.99, the individual must provides a ten percent deposit. (Mather Decl. ¶ 7.) Plaintiff believes that by not providing him an accommodation to access the Auction Site and use the "bidding" system, Defendants violated the ADA and the PHRA. In addition, the Complaint alleges that there were inadequate restroom facilities. While it appears that Plaintiff did not enter the Auction Site, Plaintiff nevertheless alleges that he attempted to use the restroom facilities. Again, Plaintiff claims that because of his disabilities he could not use the facilities that were provided at the site.
One wonders how Plaintiff attempted to use the restroom facilities when he never entered the Auction Site. In any event, Plaintiff's assertion that Defendants were required to provide a bidet at the Auction Site for Plaintiff, who drove a motor vehicle to the site and entered the site after removing his wheelchair from the vehicle makes little sense. Moreover, Title II does not "[r]equire a public entity to take any action that it can demonstrate would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens." 28 C.F.R. § 35.150(a)(3). We believe that the regulations were written with requests such as this in mind. The request for a bidet is the type of accommodation that would benefit a limited number of individuals but impose great costs on public entities.
Plaintiff claims to have significant bodily impairments. He alleges that he is confined to a wheelchair, and has an inability to use either of his hands, chronic arthritic pain, and visual and hearing problems. (Compl. ¶ 3.) Plaintiff claims that since 1979, arthritis in both of his knees has left him unable to walk and confined to a wheelchair. Plaintiff claims that because of arthritis and carpal tunnel in both of his hands and wrists he cannot hold items in his hands, and he cannot "feed, dress, write, cook," or clean himself. (Doc. No. 34 at 8-9.) In addition, Plaintiff asserts that migraine headaches cause his vision to be blurred; he has trouble eating and talking because of Temporomandibular Joint (TMJ) Syndrome; tinnitus causes ringing in his ears; and his digestive system is affected by the medications he takes. ( Id. at 9.)
In connection with this litigation, Plaintiff was examined by Dr. Stanley R. Askin, M.D. In his report, Askin described Plaintiff "as uncooperative in the extreme, [but] he was not as overtly hostile as previously and actually cracked a smile from time to time." (Doc. No. 29 Ex D ("Askin Rep.") at 1.) Askin discussed Plaintiff's claimed medical history and he notes Plaintiff's claims as follows:
This was actually the third time Plaintiff was examined by Askin. (Askin Rep. at 1.) Plaintiff was examined by Askin in connection with two of his previous lawsuits against Bucks County.
He complains of headaches which cause wiggly lines in his eyes. He has "TMJ." He has loss of hearing in both ears, left more than right (although he heard my conversational voice until I reviewed the list of complaints with him and he asked me to "speak up" when I restated his hearing loss complaint. If nothing else, he has the sensibility and timing of a comedian.). He has a "pinched nerve" in his upper back (he knows this from his EMG) which feels to him as if someone is "gouging" his back. He has the same feeling from the "pinched nerve" that is bothering his lower back. He has bilateral "tennis elbow" although he does not know where his elbows hurt, and when I asked how his elbows trouble him he responded that he feels as if someone is hitting his "funny bone" when he moves his elbows certain ways (he could not describe what hitting the funny bone felt like). He complains of bilateral carpal tunnel syndrome and arthritis of both hands although he could not point out specific joints that are bothering him other than his knowledge that his thumb metacarpals are arthritic. He tells me that he has "osteochrondritis dissecans" of both knees. He reports a "blood clot" in his lower legs that necessitated hospitalization earlier that year at the VA Hospital. He has arthritis in his feet. He then told me that he has the "osseous formation of arthritis" in his hands and feet "from rheumatoid arthritis" and expresses knowledge that there are spurs at his feet and other joints on his x-rays. He finishes with a complaint that there are bone spurs loose in his thumb joints.
(Askin Rep. at 2.) As a result of these ailments, Plaintiff informed Askin that he is in a wheelchair "all of the time"; that he wears bilateral wrist splints night and day; and that he takes four "Ibuprofen 600mg" per day, two baby aspirin per day, a heartburn medication, and a constipation medication. ( Id.) Plaintiff is not currently receiving any physical therapy, and has no surgery scheduled but "perceives that surgery for both thumbs has been considered." ( Id.)
After examining Plaintiff, and reviewing his Veterans Affairs medical file (updated as late as 5/2/04), Askin diagnosed Plaintiff as a "malingerer." In Askin's opinion, Plaintiff's imperfections and pains are similar to the "various aches and pains that crop up" in most middleaged persons. ( Id. at 4.) Askin notes that Plaintiff has an "abnormal left knee." Even with this condition, Askin believes that Plaintiff should not be wheelchair bound:
There is no question that [Plaintiff] has an abnormal left knee. Mr. Douris is not the first person to be so affected, but I dare say that there have been very few who have refused to get up from a wheelchair as has he for a condition which should not make him wheelchair bound. Persons with sore knees may limp, and may complain of limited ability to walk, may need braces or walking aides of one sort or another, but it is highly unexpected that he would be wheelchair bound, either due solely from his left knee abnormality or from the entire compendium of ailments complained of. I do not consider that he is wheelchair bound.
These records showed that Plaintiff had "left knee osteoarthritic change, and osteoarthritis of the thumb metacarpophalangeal and interphalangeal joints, and mild radiographic degenerative changes in the interphalangeal joints of digits two to five bilaterally as objectively determined musculoskeletal differences from perfect." (Askin Rep. at 3.) Plaintiff was suspected of having a "blood clot" in his left leg in January, 2004, but a "deep vein thrombosis" was not confirmed. ( Id. at 4.) At Plaintiff's examination at the VA hospital on January 14, 2004, he was reported to have "+5/+5 strength" and a full range of motion of the lower extremities. ( Id.) Plaintiff's rheumatologist stated "that he would benefit most form [sic] getting out of wheel chair by getting knee fixed . . ." ( Id.)
( Id.) Moreover, Askin believes that Plaintiff's activities do not support his medical complaints:
Mr. Douris reportedly has osteoarthritic changes in the digits of his hands. Such did not preclude his driving himself to the VA Hospital and manipulating his wheelchair into and out of his car, and transferring himself from car to wheelchair. I do not dispute that arthritic changes would hurt, or require medical care, but there is no explanation for being unable to perform self-care activities such as toilet functions, or to have been uncooperative with my examination of Mr. Douris on 5/10/04. He does not examine as does any other patient truly experiencing clinically significant problems from either rheumatoid arthritis or osteoarthritis that I have examined in 27 years of clinical practice.
Plaintiff has submitted the report Askin prepared in connection with one of the other suits filed against Bucks County. (Doc. No. 34 Ex I ("Askin Rep. of 2/6/01").) In this report, Askin describes Plaintiff's use of his hands: "Mr. Douris was observed by me to easily handle the wheels of his wheelchair to negotiate his way into the examining room . . . Mr. Douris also uses his hands to take numerous still photographs." ( Id.) Moreover, Plaintiff advised the Court that he drove his motor vehicle to the Courthouse for the initial pretrial conference and he has alleged that he drove his motor vehicle to the Auction Site. This of course requires continuous use of the hands.
( Id. at 5.) Askin concluded that "[Plaintiff] is materially misrepresenting his offer of physical incapacity . . . he has retained capacity currently and without surgical attention to discard his wheelchair, to perform all personal hygiene functions including cleaning himself after defecating, to use a standard commode . . . to hear conversationally, and to write with a pen or pencil . . . signing his name (with a signature, not an X) . . . Given that his use of a wheelchair is not medically compelled, there is no medical need for him to be accommodated with wheelchair accessibility." ( Id. at 5.)
Plaintiff has been very litigious having brought a number of lawsuits against these same Defendants. See Douris v. Bucks County, 04-232; Douris v. Schweiker, 02-1749; Douris v. Bucks County, 01-2006; Douris v. Dougherty, 01-5757; Douris v. County of Bucks, 99-3357. Defendants have asked the Court to grant Summary Judgment in their favor.
II. Legal Standard
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The party moving for summary judgment bears the initial burden of demonstrating that there are no facts supporting the non-moving party's legal position. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-324 (1986). The burden then shifts to the nonmoving party who "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). "The nonmoving party . . . cannot rely merely upon bare assertions, conclusory allegations or suspicions to support its claim." Townes v. City of Phila., No. Civ. A. 00-CV-138, 2001 WL 503400, *2 (E.D. Pa. May 11, 2001) (quoting Fireman's Ins. Co. v. DeFresne, 676 F.2d 965, 969 (3d Cir. 1982)). Rather, the party opposing summary judgment must go beyond the pleadings and present evidence through affidavits, depositions, or admissions on file to show that there is a genuine issue for trial. See Celotex, 477 U.S. at 324. When deciding a motion for summary judgment, the court must construe the evidence and any reasonable inferences therefrom in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A genuine issue of material fact exists only when "the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id. at 248.
III. Discussion
The ADA is divided into several Titles. Title II, at issue here, prohibits discrimination by public entities. Under Title II, "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs or activities of a public entity, or be subjected to discrimination by any such entity." Tennessee v. Lane, 124 S. Ct. 1978, 1982 (2004) (quoting 42 U.S.C. § 12132). "To prevail on a claim for violation of Title II of the ADA, the plaintiff must show: (1) that she is a qualified individual with a disability; (2) that she was either excluded from participation in or denied the benefits of some public entity's services, programs or activities, or was otherwise discriminated against by the public entity; and, (3) that such exclusion, denial of benefits or discrimination was by reason of the plaintiff's disability." Douris v. Dougherty, 192 F. Supp. 2d 358, 368 (E.D. Pa. 2002) (citing Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000); Chisolm v. McManimon, 97 F. Supp. 2d 615, 622-623 (D.N.J. 2000); Darian v. Univ. of Mass., 980 F. Supp. 77, 84 (D. Mass. 1997)).
While we believe that Plaintiff's claim under Title II is problematic, we need not reach this issue because Plaintiff does not have standing to pursue this claim in any event. Plaintiff seeks injunctive relief, attorneys fees, and damages. Defendants contend that Plaintiff lacks standing to pursue injunctive relief, and that monetary damages are inappropriate. "It goes without saying that those who seek to invoke the jurisdiction of the federal courts must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy." Lyons v. City of Los Angeles, 461 U.S. 95, 101 (1983). The Supreme Court has determined that a plaintiff must necessarily plead three elements of standing: (1) the plaintiff must have suffered an "injury in fact"; (2) there must be a causal connection between the injury and the conduct complained of; and (3) it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). The party invoking federal jurisdiction bears the burden of establishing the elements of standing. Id.
Plaintiff is not eligible for attorneys' fees as he has brought the claim pro se. Pitts v. Vaughn, 679 F.2d 311, 313 (3d Cir. 1982) (holding that pro se litigants may not recover attorneys' fees under 42 U.S.C. § 1988). Punitive damages are not available against municipalities under Title II of the ADA. Doe v. County of Centre, PA 242 F.3d 437, 458 (3d Cir. 2001). While the Third Circuit has yet to address the issue, all of the other circuits considering the issue have held that compensatory damages under Title II of the ADA are unavailable absent as showing of intentional discrimination. See Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998); Wood v. President and Trs. of Spring Hill College, 978 F.2d 1214 (11th Cir. 1992); Carter v. Orleans Parish Pub. Schs., 725F.2d 261 (5th Cir. 1984). The two district courts in the Third Circuit that have considered the issue have reached the same conclusion. See Bowers v. NCAA, No. Civ. A. 97-2600, 2001 WL 1850089, at *2 (D.N.J. Feb. 6, 2001); Adelman v. Dunmire, No. Civ. A. 95-4039, 1996 WL 107853, at *4 (E.D. Pa. Mar. 12, 1996) (citing Tafoya v. Bobroff, 865 F. Supp. 742, 748 (D.N.M. 1994)). We see no reason to reach a different conclusion in this case. Plaintiff has not alleged intentional discrimination and monetary damages are not available.
In Lujan, the Supreme Court held that an injury in fact must "be actual or imminent, not conjectural or hypothetical." Id. at 560 (citing Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) (internal quotations omitted)). Thus, when a plaintiff seeks an injunction based upon a past wrong, that "past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects." O'Brien v. Werner Bus Lines, Inc., No. Civ. A. 94-6862, 1996 WL 82484, at *3 (E.D. Pa. Feb. 27, 1996) (quoting Lyons, 461 U.S. at 102) (internal quotations omitted)). This means that a suit brought for injunctive relief will not satisfy the requirements for standing where there is no evidence of a "real and immediate threat of repeated injury." Lyons, 461 U.S. at 102.
In Lyons, the plaintiff brought suit alleging that while stopped for a traffic violation, officers of the Los Angeles Police Department ("LAPD") placed him in a choke hold, damaging his throat. Id. at 97-98. Plaintiff sought an injunction against the LAPD, barring it from the use of "control holds except in situations where the proposed victim . . . reasonably appears to be threatening the immediate use of deadly force." Id. at 98. Despite allegations that the LAPD routinely applied choke holds in situations that did not involve deadly force, the Court concluded that the plaintiff did not have standing to sue for injunctive relief because it could not be shown that there was a real and immediate threat that he would again be stopped for a traffic violation, and if he was, that his injury would be repeated. Id. at 105-06.
The requirement of standing as articulated in Lyons has also been applied in the ADA context. In a number of cases, standing was found to be lacking where plaintiffs brought claims under the ADA alleging that medical care providers had discriminated against them. Hoepfl v. Barlow, 906 F. Supp. 317 (E.D. Va. 1995); Shroedel v. New York Univ. Med. Ctr., 885 F. Supp. 594 (S.D.N.Y. 1995); Atakpa v. Perimeter Ob-Gyn Assocs., No. 92-2459, 1994 WL 874202 (N.D. Ga. Sept. 30, 1994); Aikins v. St. Helena Hosp., 843 F. Supp. 1329 (N.D. Cal. 1994). Despite the fact that these plaintiffs pled instances of denial of service based upon discrimination, in each of the cases standing was found to be lacking because plaintiff "could not show a substantial likelihood that they would use the services of the medical care provider again or that, if they did, there was a real and immediate threat that the medical care providers would discriminate against them." O'Brien, 1996 WL 82484, at *4.
In the instant case, Defendants make a slightly different argument for why standing is lacking. Rather than arguing that it is unlikely that Plaintiff would again use the Auction Site, Defendants argue that there is no injury that can be redressed because "Defendants have already made the necessary modifications to the auction so that it would be accessible to an individual with a disability." (Doc. No. 29 at 11.) Thus, Defendants contend that Plaintiff's injury is not "redressable." Defendants' argument is not novel.
In O'Brien, the plaintiffs, a blind couple were waiting at a bus stop for a tour bus with their guide dogs. 1996 WL 82484, at *1. Upon attempting to board the bus, the driver informed the plaintiffs that he would not allow them to board with their guide dogs. When the president of the bus company learned of the incident, he took the following actions: he called to apologize to plaintiffs; sent a letter to plaintiffs recognizing his company's mistake and sending them three sets of free bus tickets; publicly apologized to plaintiffs on a television news broadcast; issued a memorandum that advised all of the companies bus drivers that blind persons with guide dogs, as well as other disabled persons, were welcome on the buses and that the bus drivers were to provide any necessary assistance; directed company personnel to speak individually with all bus drivers about their obligations to take blind passengers with guide dogs; invited plaintiffs and an advocacy group for the blind to speak to the bus drivers and answer questions the drivers had concerning accommodations; added a provision in the bus driver's manual, explicitly stating the company policy that blind people, as well as other disabled individuals are welcome and that drivers should provide all necessary assistance; and initiated discussions about the obligations of the drivers to assist disabled persons onto buses. Id.
The court concluded that there is no "real and immediate threat that the [plaintiffs] will be subject to repeated injury by the defendant, because plaintiffs "have not shown that they are likely to use [defendant's] buses in the near future or, if they do use them, that [defendant] is likely to violate their rights under the ADA again," because of the actions taken by the defendant to remedy the ADA violations. Id. at 4-5. This principal has been applied to invalidate standing in other suits based on violations of the ADA. See, e.g. Deck v. Am. Hawaii Cruises, Inc., 121 F. Supp. 2d 1292, 1300 (D. Haw. 2000) (finding standing lacking where plaintiff did not show that it was likely she would take a cruise, and thus suffer harm); Delil v. El Torito Rest., Inc., No. Civ. A. 94-3400, 1997 WL 714866, at *4 (N.D. Cal. June 24, 1997) (finding standing lacking because plaintiff did not show that she was likely to return to place of injury); cf. Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (finding that plaintiff had standing who had encountered barriers at a grocery store and who stated that he would shop there again if it were accessible); Dudley v. Hannaford Bros. Co., 146 F. Supp. 2d 82, 86 (D. Me. 2001) (finding that plaintiff had standing who alleged that defendant refused to sell him alcohol based on his disability and had not altered its policies, and who alleged that he often visited defendant's stores and would like to purchase alcohol but had not attempted to do so based on his past experience).
O'Brien was brought under Title III of the ADA. Title III prescribes 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." 42 U.S.C. § 12182(a).
In this case, while we think it likely that Plaintiff will return to the Auction Site, we think that there is no "actual or imminent harm," that can be redressed through further litigation. Defendant has recognized the Auction Site's lack of conformance with the ADA and has remedied these problems. In response to Plaintiff's Complaint and in response to this litigation, Defendant hired an expert, John Salmen, to inspect and provide his opinion on whether the Auction Site conforms with the strictures of the ADA. On April 30, 2004, Salmen went to the Auction Site to assess whether it was accessible by disabled individuals. Salmen concluded that while the Auction Site did not currently meet the requirements of the ADA, these problems could be remedied either through "physical or programmatic means." (Doc. No. 29 Ex. C ("Salmen Rep.") at 3.) This means that while the facility currently was not accessible to disabled individuals, the problems could be alleviated by: 1) placing two temporary accessible parking signs on the fence adjacent to the gated entrance with an official at the gate who could then assist disabled individuals by establishing access aisles on the pave portion of Tower Road; 2) paving the entire vehicle display area or by offering personal assistance to any person with a disability who is having a problem traversing the area; and 3) modifying the ramp to the sale room through redesign or by offering personal assistance to any person with a disability who has difficulty using the ramp. ( Id.)
Salmen is a licensed architect, and a member of the American Institute of Architects, and the American National Standards Institute's A117 Committee. (Doc. No. 29 Ex. C ("Salmen Rep.") at 1.) He is president of Universal Designers Consultants, Inc., an architectural design and consulting firm, specializing in universal design, accessibility, regulatory compliance, and facility evaluations. ( Id.) Salmen was also the American Institute of Architect's representative on the ADA Accessibility Guidelines Review Federal Advisory Committee.
Defendants have acted upon the recommendations provided by Salmen and enacted a new policy at the Auction Site. Donald Mather, the Deputy Chief of County Detectives for the County of Bucks described the policy as follows:
The District Attorney's Office has an auction scheduled for June, 2004. At this auction it will implement new procedures in order to assure that any disabled individuals have access to the auction. This arrangement will be noted in advertisements along with a telephone number. The District Attorney's Office will designate two accessible parking spaces with temporary signs adjacent to the gated entrance to the vehicle yard on the days of auctions. It will also designate an employee who will be responsible for assisting individuals with disabilities. This employee will provide assistance with the parking by placing traffic cones and establishing an access aisle on the paved portion of the road as necessary. He or she will also offer personal assistance to those who need it to go up the ramp or traverse the unpaved areas of the yard.
(Mather Decl. ¶ 9.) We believe that this policy removes any impediment to Plaintiff's attendance at future auctions. Regardless of whether Plaintiff's medical condition actually confines him to a wheelchair, with these policy changes he should have adequate access to the Auction Site such that there is no possibility of a further violation of Title II of the ADA.
Defendants submitted to the Court a copy of a advertisement notifying the public of the auction on June 18-19, 2004. The advertisement includes the statement that "HANDICAPPED PARKING AND ASSISTANCE WILL BE PROVIDED." (Doc. No. 36 Ex. D.)
Plaintiff objects to this new policy, arguing that an individual is not required "to accept an accommodation aid, service, opportunity, or benefit provided under the ADA" which such individual chooses not to accept. 28 C.F.R. § 35.130(e)(1). Based on this regulation, Plaintiff evidently believes that Defendants' new policy is insufficient because Plaintiff could presumably choose not to accept the aid provided. However, Plaintiff's interpretation of the regulation is erroneous. The regulation does not compel Defendants to provide Plaintiff the accommodations which he chooses. Rather, it prohibits Defendants from compelling Plaintiff to take advantage of the accommodation that have been offered. See Olmstead v. Zimring, 527 U.S. 581, 602 (1999) (citing 28 C.F.R. § 35.130(e)(1) for the proposition that there is not "any federal requirement that community-based treatment be imposed on patients who do not desire it"); Messier v. Southbury Training Sch., 94-1706, 1999 WL 20910, at *10 (D. Conn. Jan. 5, 1999) (citing 28 C.F.R. § 35.130(e)(1) for the proposition that "if plaintiffs satisfy the elements of 42 U.S.C. § 12132 . . . the defendants may rebut by producing evidence that they offered appropriate community placements or vocational services to STS residents but those residents exercised their statutory right [under 28 C.F.R. § 35.130(e)(1)] to decline.").
Plaintiff also argues that the Supreme Court's recent decision in Tennessee v. Lane supports the contention that he would not have to accept Defendants' assistance since the plaintiff in Lane was not required to allow officers to carry him up the steps of the court house. Plaintiff's interpretation of Lane is erroneous. In Lane, the quadriplegic plaintiff brought suit against the state of Tennessee after he was arrested for refusing to crawl or be carried up a flight of his stairs to appear for a court appearance. 124 S. Ct. at 1983. The Supreme Court did not entertain the case to assess whether an entity violated the ADA when the only assistance it provide a disabled individual was the option to be carried up the stairs. Rather, the sole issue before the Court was whether the enactment of Title II, as it applies to cases implicating the fundamental right of access to the courts, constitutes a valid exercise of Congress' authority under the enforcement provision of the Fourteenth Amendment. Id. at 1994. Plaintiff's argument that federal regulations and/or the Supreme Court's decision in Lane invalidate Defendants' new ADA-compliant policy is without merit.
In dicta, the Court explains:
Title II does not require States to employ any and all means to make judicial services accessible to persons with disabilities, and it does not require States to compromise their essential eligibility criteria for public programs. It requires only "reasonable modifications" that would not fundamentally alter the nature of the service provided, and only when the individual seeking modification is otherwise eligible for the service. 42 U.S.C. § 12131(2). As Title II's implementing regulations make clear, the reasonable modification requirement can be satisfied in a number of ways. In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards. 28 CFR § 35.151 (2003). But in the case of older facilities, for which structural change is likely to be more difficult, a public entity may comply with Title II by adopting a variety of less costly measures, including relocating services to alternative, accessible sites and assigning aides to assist persons with disabilities in accessing services. § 35.150(b)(1). Only if these measures are ineffective in achieving accessibility is the public entity required to make reasonable structural changes.Lane, 124 S. Ct. at 1993-94. This discussion supports Defendants' contention that its changes at the Auction Site would conform to the strictures of the ADA.
"Since [the standing elements] are not mere pleading requirements . . . each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof. . . ." Lujan, 504 U.S. at 561. Plaintiff has not provided any evidence by affidavit or otherwise which would support a finding that there exists an injury that can be redressed through this litigation. For that reason we find that Plaintiff lacks standing to further pursue this ADA claim.
An appropriate Order follows.
ORDER
AND NOW, this 6th day of July, 2004, upon consideration of Defendants Bucks County Office of the District Attorney and Diane E. Gibbons' (in her Official Capacity) Motion for Summary Judgment (Doc. No. 29), and all papers filed in support thereof, and opposition thereto, it is ORDERED that Defendants' Motion is GRANTED and Plaintiff James George Douris' Complaint is DISMISSED.IT IS SO ORDERED.