Opinion
Civil Action No. 03-3076.
September 20, 2004
MEMORANDUM AND ORDER
Presently before the Court is Defendant's Motion for Summary Judgment and Memorandum of Law in Support thereof (Docket No. 44) and Plaintiff's response thereto (Docket No. 41). This Court holds that Defendant has met its burden in moving for summary judgment and that Plaintiff has failed to show that there is a genuine issue of material fact requiring a trial.
I. BACKGROUND
Plaintiff Douris filed his initial complaint after he encountered a variety of accessibility problems while shopping at Defendant's grocery store, Genuardi's Family Markets ("Genuardi's"). As a result, Plaintiff filed suit under the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., 42 U.S.C. § 1983, the Pennsylvania Human Relations Act ("PHRA"), 43 Pa. Cons. Stat. § 951 et seq., and the First Amendment. On February 4, 2004, this Court issued an Order dismissing Plaintiff's additional claims based on products liability (for finding a hair in a sandwich) and harassment (for receiving Genuardi's advertisements in the mail). As explained below, none of Plaintiff's three remaining claims can survive Defendant's motion for summary judgment.
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 a judgment as a matter of law." Fed.R.Civ.P. 56. When deciding a motion for summary judgment, all reasonable inferences are drawn in the light most favorable to the non-moving party. See Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993). The United States Supreme Court has recognized that the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party may not rest upon the mere allegations or denials of the party's pleading. See Celotex, 477 U.S. at 324.
III. DISCUSSION
Following this Court's February 4, 2004, Order dismissing four of Plaintiff's counts, only three claims remain: (1) a claim under the ADA, (2) a claim under 42 U.S.C. § 1983, and (3) a claim under the PHRA. As discussed below, Defendant is entitled to summary judgment as a matter of law as to each of the three claims.
A. Plaintiff's ADA Claim
Plaintiff's first remaining claim is titled "First Amendment and American with Disabilities Act, 42 U.S.C. § 1983.[sic]" Because this claim raises accessibility issues most closely related to a typical ADA claim, and does not raise First Amendment or section 1983 issues, this Court analyzes the claim under the ADA and does not engage in a First Amendment or section 1983 analysis.
Under 42 U.S.C. § 12182, "[n]o 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."
Defendant raises two points in its motion, neither of which are countered by Plaintiff in reply. First, Defendant notes that Title III of the ADA only allows for injunctive relief in the form of "an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12188(b)(2). In both Plaintiff's complaint and in his reply to Defendant's summary judgment motion, Plaintiff seeks monetary damages only. Second, Defendant explains that all of the accessibility problems Plaintiff encountered in its store have been remedied by adjusting the positioning of various moveable items at issue in this case pursuant to the ADA Accessibility Guidelines. Plaintiff does not respond to Defendant's motion but instead discusses Defendant's failure to install a bidet in its store. Plaintiff's initial complaint simply stated that various areas and items in the store, including the deli counter and pickle jar, were "not accessible to him in a wheelchair and with his hand impairments." Because Plaintiff has failed to "go beyond the mere pleadings" to show that there is a genuine issue of material fact concerning the accessibility of Defendant's store requiring a trial regarding the ADA claim, see Celotex, 477 U.S. at 323, summary judgment is granted for the Defendant.
B. Plaintiff's Section 1983 Claim
Plaintiff's second remaining claim cites "Civil Rights 42 U.S.C. § 1983. [sic]" Section 1983 does not create substantive rights, but instead provides a remedy for the violation of rights created by federal law. See Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). A prima facie case under section 1983 requires a plaintiff to demonstrate two elements: (1) a person deprived him of a federal right; and (2) the person who deprived him of that right acted under color of state or territorial law. See Gomez v. Toledo, 446 U.S. 635, 640 (1980). As explained above, Plaintiff has not been deprived of his rights under the ADA, the only federal law at issue in this case. Furthermore, Defendant argues that as a retail store owner and operator it is neither a state actor nor "`engaged in activity so closely intertwined with the state to be a state actor.'" Def.'s Mem. of Law in Supp. of its Summ. J. Mot. at 4 (quoting Flagg v. Control Data, 806 F.Supp. 1218, 1224 (E.D. Pa. 1992)). In reply Plaintiff argues that Genuardi's sale of state lottery tickets proves "intertwined activity" that would meet the state action requirement. Pl.'s Resp. to Def.'s Mot. for Summ. J. at 2.
Plaintiff's argument misinterprets the "color of state law" analysis under section 1983. The issue is not whether the state was involved in some way in the relevant events, but whether the action taken can be fairly attributed to the state itself.Groman v. Township of Manalapan, 47 F.3d 628, 638-39 (3d Cir. 1995) (citing Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)). As the United States Supreme Court has stated, "we ask whether the State provided a mantle of authority that enhanced the power of the harm-causing individual actor." NCAA v. Tarkanian, 488 U.S. 179, 192(1988). Because Defendant's sale of state lottery tickets has nothing to do with the accessibility of its store to customers, Defendant is not a state actor for purposes of section 1983. Plaintiff therefore has failed to demonstrate either of the two required elements for a section 1983 claim and Defendant is entitled to summary judgment as a matter of law.
C. Plaintiff's Pennsylvania Human Relations Act Claim
Plaintiff's final remaining claim rests on the PHRA, 43 Pa. Cons. Stat. § 951 et seq.. Pennsylvania law requires a plaintiff to exhaust his administrative remedies before maintaining an action under the PHRA. 42 Pa. Cons.Stat. § 942(c). Plaintiff has failed to bring to this Court's attention any indication that he has exhausted administrative remedies available under the PHRA, and therefore Defendant is entitled to summary judgment as a matter of law. See Douris v. Schweiker, 229 F.Supp.2d 391, 402 (E.D.Pa. 2002).
IV. CONCLUSION
For the reasons stated above, Defendant's motion for summary judgment is granted.
An appropriate Order follows.