Opinion
CIVIL ACTION 20-644-SDD-RLB
2021-07-29
Gene WRIGHT, Jr. v. BOARD OF COMMISSIONERS OF the CAPITAL AREA TRANSIT SYSTEM; and the City/Parish of East Baton Rouge
Andrew David Bizer, Emily Anne Westermeier, Garret Scott DeReus, Bizer & DeReus, LLC, New Orleans, LA, for Gene Wright, Jr. Arthur Howell Andrews, Michael Paul Schillage, Office of the East Baton Rouge Parish Attorney, Baton Rouge, LA, for The City/Parish of East Baton Rouge. Creighton Brooks Abadie, Abadie Law Firm, APLC, Dedrick Arvell Moore, Dedrick A. Moore & Assoc., Seth M. Dornier, The Dornier Law Firm, LLC, Baton Rouge, LA, for Board of Commissioners of the Capital Area Transit System.
Andrew David Bizer, Emily Anne Westermeier, Garret Scott DeReus, Bizer & DeReus, LLC, New Orleans, LA, for Gene Wright, Jr.
Arthur Howell Andrews, Michael Paul Schillage, Office of the East Baton Rouge Parish Attorney, Baton Rouge, LA, for The City/Parish of East Baton Rouge.
Creighton Brooks Abadie, Abadie Law Firm, APLC, Dedrick Arvell Moore, Dedrick A. Moore & Assoc., Seth M. Dornier, The Dornier Law Firm, LLC, Baton Rouge, LA, for Board of Commissioners of the Capital Area Transit System.
RULING
SHELLY D. DICK, CHIEF JUDGE
This matter is before the Court on the Motion to Dismiss filed by Defendant, the City of Baton Rouge/Parish of East Baton Rouge ("City/Parish") and the Motion to Dismiss Pursuant to FRCP Rule 12(b)(6) filed by Defendant, Board of Commissioners of the Capital Area Transit System ("CATS"), or collectively ("Defendants"). Plaintiff, Gene Wright, Jr. ("Plaintiff") filed Oppositions to these motions, and the City/Parish filed a Reply. For the following reasons, the City/Parish's motion will be granted, and CATS's motion will be denied. I. FACTUAL BACKGROUND
Rec. Doc. No. 20.
Rec. Doc. No. 22.
Rec. Doc. Nos. 23 & 25, respectively.
Rec. Doc. No. 24.
On September 29, 2020, Plaintiff, a qualified individual with a disability who is confined to a wheelchair, filed a Complaint against CATS and the City/Parish seeking injunctive relief, declaratory relief, damages, and attorneys’ fees and costs pursuant to Title II of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 ("RA"). On December 14, 2020, Plaintiff filed an Amended Complaint , which is the operative pleading before the Court. Plaintiff alleges that CATS and the City/Parish have violated the ADA and the RA by providing inadequate transportation services and by failing to provide accessible bus stops. Plaintiff further alleges that the City/Parish owns a pedestrian right of way program in the form of an extensive network of sidewalks, curb ramps, crosswalks, bus stops, and other pedestrian paths of travel throughout the City of Baton Rouge. Plaintiff asserts his claims against the City/Parish "to the extent it owns and/or is legally responsible for the segment of the landing pad that overlaps with the public sidewalk." As to CATS, Plaintiff alleges, generally, that since 2012, CATS has added new routes and expanded existing routes which created new stops, and the new stops on the new or expanded routes constitute "new construction," requiring compliance with the ADA; and since the passage of the ADA, CATS has modified and/or altered bus stops that are not accessible. The modifications specified in the Amended Complaint are the addition of bus benches that he claims were placed at stops by CATS.
42 U.S.C. § 12131 et seq.
29 U.S.C. § 794 et seq.
Rec. Doc. No. 14.
Id. at ¶ 3.
Id. at ¶ 19.
Id. at ¶ 23.
Id. at ¶¶ 79-81.
Specifically, Plaintiff contends he has used the fixed route public transportation system offered by Defendants, including the buses and bus stops. Plaintiff alleges he is "currently deterred from using the fixed route public transportation system offered by Defendants because the bus stops are inaccessible." Because of this, Plaintiff contends he must rely on paratransit to travel, which is not ideal because reservations must be made for such travel at least twenty-four (24) hours in advance. Plaintiff alleges that he "intends on using the bus stops for travel and transportation purposes once said system is made meaningfully accessible and usable." However, Plaintiff claims that the bus stops nearest his home "lack landing pads and accessible routes to access the bus stops" and "merely consist of poles stuck in the dirt." Plaintiff alleges that "[t]he complete inaccessibility of these bus stops serves as a ‘threshold barrier’ which actively and continuously deters [him] from attempting to utilize the overall bus stop system." Plaintiff further alleges that, each time he attempted "to embark or disembark from his home using the inaccessible bus stops, he would be placing himself in physical danger because he would have to navigate his wheelchair into the street or try to traverse over uneven grass in order to enter and exit the bus."
Id. at ¶ 89.
Id. at ¶ 90.
Id.
Id. at ¶ 91.
Id. at ¶ 92.
Id. at ¶ 93.
Id.
Id. at ¶ 94.
Both the City/Parish and CATS now move to dismiss Plaintiff's Amended Complaint , arguing that Plaintiff has failed to state a claim under Rule 12(b)(6) of Federal Rules of Civil Procedure. The City/Parish maintains that it is not responsible for the public transit system or its bus stops; CATS is responsible for the maintenance of the landing pads whether or not they overlay City/Parish property; the benches it has placed in bus stops are not alterations within the meaning of the ADA; and Plaintiff has not been denied meaningful access to services because he is free to utilize paratransit. CATS maintains it has no control or ownership over sidewalks and, thus, has no liability for the accessibility of any sidewalks; CATS is not responsible for the placement of benches at bus stops; the addition of benches at bus stops does not constitute alterations under the ADA; new bus stop poles are not "new constructions" within the meaning of the ADA; and CATS has provided reasonable accommodations for Plaintiff's disability through the availability of paratransit.
Plaintiff opposes the Defendants’ motions, arguing that there is overlap between the ownership and responsibilities for the bus stops/sidewalks at issue that cannot be resolved without discovery; the City/Parish remains liable for CATS's conduct when installing and maintaining bus stops under the ADA; whether newly constructed bus stops and the addition of benches are alterations, modifications, or new constructions under the ADA requires evidence and should not be resolved at the Rule 12 stage; and the availability of paratransit does not obviate the Defendants’ obligations under the ADA to maintain accessible bus stops/sidewalks.
II. LAW & ANALYSIS
A. Motion to Dismiss Under Rule 12(b)(6)
When deciding a Rule 12(b)(6) motion to dismiss, "[t]he ‘court accepts all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.’ " The Court may consider "the complaint, its proper attachments, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." "To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead ‘enough facts to state a claim to relief that is plausible on its face.’ " In Twombly , the United States Supreme Court set forth the basic criteria necessary for a complaint to survive a Rule 12(b)(6) motion to dismiss. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." A complaint is also insufficient if it merely "tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " However, "[a] claim has facial plausibility when the plaintiff pleads the factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." In order to satisfy the plausibility standard, the plaintiff must show "more than a sheer possibility that the defendant has acted unlawfully." "Furthermore, while the court must accept well-pleaded facts as true, it will not ‘strain to find inferences favorable to the plaintiff.’ " On a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation."
In re Katrina Canal Breaches Litigation , 495 F.3d 191, 205 (5th Cir. 2007) (quoting Martin v. Eby Constr. Co. v. Dallas Area Rapid Transit , 369 F.3d 464, 467 (5th Cir. 2004) ).
Randall D. Wolcott, M.D., P.A. v. Sebelius , 635 F.3d 757, 763 (5th Cir. 2011).
In re Katrina Canal Breaches Litigation , 495 F.3d at 205 (quoting Martin v. Eby Constr. Co. v. Dallas Area Rapid Transit , 369 F.3d at 467 ).
Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and brackets omitted)(hereinafter "Twombly ").
Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted)(hereinafter "Iqbal ").
Twombly , 550 U.S. at 570, 127 S.Ct. 1955.
Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
Taha v. William Marsh Rice University , 2012 WL 1576099, at *2 (S.D.Tex. May 03, 2012) (quoting Southland Sec. Corp. v. Inspire Ins. Solutions, Inc. , 365 F.3d 353, 361 (5th Cir. 2004) ).
Twombly , 550 U.S. at 556, 127 S.Ct. 1955 (quoting Papasan v. Allain , 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) ).
Both Defendants attached Affidavits to support their motions. However, as Plaintiff correctly notes, the Court cannot consider such evidence at the Rule 12(b)(6) stage. However, both Parties acknowledge that the Court may consider the Operating Agreement. While the Court has discretion to convert the motions to motions for summary judgment, the Court declines to do so because it would be premature at this procedural posture. If Defendants wish the Court to consider such evidence, they are free to later file the appropriate motion.
Martin v. Department of Children and Family Services , 500 F.Supp.3d 527, 538-39 (E.D. La. 2020) ("In deciding a Rule 12(b)(6) motion, a court is generally prohibited from considering information outside the pleadings[.]").
B. Public Facilities/ Services and the ADA
The ADA "is a broad mandate of comprehensive character and sweeping purpose intended to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life." "To effectuate its sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, among them employment (Title I of the Act), public services (Title II), and public accommodations (Title III)." "Title II of the ADA focuses on disability discrimination in the provision of public services." Specifically, Title II provides that "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." A "public entity" includes "any department, agency, special purpose district, or other instrumentality of a State or States or local government."
Frame v. City of Arlington , 657 F.3d 215, 223 (5th Cir. 2011) (en banc)(citing PGA Tour, Inc. v. Martin , 532 U.S. 661, 675, 121 S.Ct. 1879, 149 L.Ed.2d 904 (2001) ; Olmstead v. L.C. ex rel. Zimring , 527 U.S. 581, 599, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) (internal quotation marks omitted)).
PGA Tour , 532 U.S. at 675, 121 S.Ct. 1879.
Frame , 657 F.3d at 223.
42 U.S.C. § 12132.
Hainze v. Richards , 207 F.3d 795, 799 (5th Cir. 2000) (quoting 42 U.S.C. § 12131(1)(B) ).
Similarly, "Section 504 of the Rehabilitation Act prohibits disability discrimination by recipients of federal funding." Section 504 provides that no qualified individual with a disability "shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." The ADA and the Rehabilitation Act are generally interpreted in pari materia. "Indeed, Congress has instructed courts that ‘nothing in [the ADA] shall be construed to apply a lesser standard than the standards applied under title V [i.e., § 504] of the Rehabilitation Act ... or the regulations issued by Federal agencies pursuant to such title.’ "
Frame , 657 F.3d at 223.
Frame , 657 F.3d at 223 (citing Kemp v. Holder , 610 F.3d 231, 234–35 (5th Cir. 2010) ; Pace v. Bogalusa City Sch. Bd. , 403 F.3d 272, 287–88, 289 n. 76 (5th Cir. 2005) (en banc)).
Id. at 223–24 (quoting 42 U.S.C. § 12201(a) ; Bragdon v. Abbott , 524 U.S. 624, 632, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) ).
"To show a violation of either statute, a plaintiff must prove "(1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability."
Miraglia v. Bd. of Supervisors of La. St. Museum , 901 F.3d 565, 574 (5th Cir. 2018) (quoting Hale v. King , 642 F.3d 492, 499 (5th Cir. 2011) (per curiam)).
Pursuant to his authority, the United States Attorney General has promulgated regulations implementing Title II. These regulations provide that "no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity." A public entity is required to operate "each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." Thus, Title II requires "program accessibility."
28 C.F.R. § 35.149.
Id. at § 35.150(a).
Tennessee v. Lane , 541 U.S. 509, 531, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004).
"Recognizing that failure to accommodate persons with disabilities will often have the same practical effect as outright exclusion, Congress required the States to take reasonable measures to remove architectural and other barriers to accessibility." However, a public entity is not "necessarily require[d] ... to make each of its existing facilities accessible to and usable by individuals with disabilities." Rather, as to facilities built before 1992, Title II only requires " ‘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."
Id. (citing 42 U.S.C. § 12131(2) ).
Lane , 541 U.S. at 531, 124 S.Ct. 1978.
"In the case of facilities built or altered after 1992, the regulations require compliance with specific architectural accessibility standards," including the ADA Accessibility Guidelines for Buildings and Facilities ("ADAAG") set forth at 36 C.F.R. part 1191, appendices B and D. Pursuant to the regulations, "[e]ach facility or part of a facility altered by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility ... shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible to and usable by individuals with disabilities...."
Id. (citing 28 CFR § 35.151 ).
C. City/Parish
The City/Parish moves for dismissal, arguing that it is not responsible, as a matter of law, for the public transit system or its bus stops; rather, CATS is the political subdivision of the State of Louisiana charged with this responsibility. The City/Parish contends Plaintiff acknowledges this by pleading that it is a Defendant only to the extent that the segment of a landing pad overlaps with the public sidewalk at bus stops. The City/Parish further contends that, because CATS is responsible for the maintenance and control over the landing pads, it matters not that a landing pad may overlap with a sidewalk because the landing pad is part of the bus stop, not the sidewalk system.
Rec. Doc. No. 14, ¶ 23.
The City/Parish cites La. R.S. 48:1454, which provides:
There is hereby created the Capital Area Transit System, subject to the conditions set forth in this Chapter, which shall be a body politic and corporate and a political subdivision of the state of Louisiana and, except as provided in this Chapter, shall have all of the powers of same. Its authority shall extend to all of East Baton Rouge Parish and to all of the territory of such additional participating parishes as may elect to participate, as provided by this Chapter. The domicile of the system shall be East Baton Rouge Parish but may be changed to another participating parish by the affirmative vote of a majority of the total members of the board.
Further, pursuant to La. R.S. 48:1460, CATS possesses full ownership and authority over the public transit system, including bus stops:
(1) The powers, privileges, and immunities authorized by law for political subdivisions. The system may sue or may be sued.
(2) The power to receive and acquire the transit system operated by the quasi-public, nonprofit corporation created by the city of Baton Rouge and the parish of East Baton Rouge pursuant to R.S. 12:202.1 and all of its rights and obligations, to maintain and expand that system and its facilities in East Baton Rouge Parish and within the area of participating parishes, including the construction and operation of bus rapid transit and light rail systems, and generally to construct, improve, maintain, repair, operate, and administer a mass transportation system or any component part thereof, and any incident part thereto, and to contract for the maintenance, operation, or administration thereof, and to lease as lessor the same for maintenance, operation, or administration by private parties.
(3) The power to acquire by purchase, lease, donation, expropriation, or otherwise; to own; to use; and to sell, lease as lessor, transfer, exchange, or otherwise dispose of any franchise, servitude, real or personal property, tangible or intangible property, or any interest therein.
...
(13) The power to appoint, select, or employ officers, agents, and employees, including engineering, architectural, and construction experts, fiscal agents, and attorneys; to contract for the services of individuals or organizations not employed full time by the system, including but not limited to the services of attorneys, accountants, engineers, architects, consultants, and advisors.
The City/Parish also quotes from the Operating Agreement executed between it and CATS on October 24, 2000, which sets forth the rights and duties of each entity regarding public transportation services in Baton Rouge. The City/Parish acknowledges that the land on which bus stops and shelters are located is the property of the City/Parish:
Rec. Doc. No. 20-3. The Parties agree that the Court may consider this document in addressing the pending motions.
The parties recognize that all movable property used by CTC, including but not limited to buses, other vehicles, equipment, furniture, supplies, and other consumable are the property of CTC. In addition, the City-Parish transfers any interest it may have in bus stop signs and shelters to CTC. The land on which bus stop signs and shelters are located which is titled to the City-Parish shall remain the property of the City-Parish.
Id. at 4.
However, the City/Parish contends that, where a landing pad overlaps a sidewalk, ownership of the sidewalk is irrelevant for purposes of ADA compliance because it is CATS's responsibility to maintain the landing pad whether it overlays a sidewalk or not. Further, pursuant to the Operating Agreement, the landing pads are not installed by the City/Parish but by CATS. The procurement power for the bus stops is vested entirely in CATS, pursuant to the Operating Agreement:
Procurement authority and responsibility shall be consistent with occupancy rights for immovables and asset ownership for movables. CTC shall have the authority to conduct all procurements, including the purchase of all future services, immovables and movables on its own behalf. CTC shall do so in accordance with all applicable federal and state laws. As an independent contractor, CTC shall not be subject to City-Parish Purchasing procedures.
Id. at 5.
Because landing pads are placed only where bus stops exist, and the City/Parish has no authority in the procurement, building, or maintenance of said bus stops, the City/Parish maintains that whether the landing pads overlay onto a sidewalk is irrelevant to the issue of ADA compliance. According to the City/Parish, under either scenario, only CATS is charged with creating and maintaining bus stops that are ADA compliant.
The City/Parish points out that "the singular issue raised by the Amended Complaint is the lack of landing pads, which is also the singular substance of the plaintiff's August 25, 2020 request for reasonable accommodation communicated to the City/Parish. There have been no issues raised about the rights-of-way themselves, which are separate and distinct from the bus stop shelters and landing pads." Thus, because Plaintiff's Amended Complaint does not allege claims relating to public rights-of-way, the City/Parish cannot be liable and should be dismissed.
Rec. Doc. No. 20-2, pp. 6-9.
While Plaintiff acknowledges that CATS is responsible for managing bus stops in East Baton Rouge Parish, he alleges the legal conclusion that "the City/Parish and CATS are jointly liable for complying with the obligations of the ADA." Plaintiff contends the City/Parish's argument disregards its role as property owner where bus stops are placed, and "the City/Parish is still liable for CATS’ conduct when installing bus stops and operating a transit system," another legal conclusion. Plaintiff cites Smith v. Bd. of Commissioners of Louisiana Stadium & Exposition Dist. in support of this position. In Smith , the court determined that the owner of the Superdome, a public entity subject to Title II of the ADA, was responsible for the actions of the private entity contracted to manage the Superdome. Plaintiff contends the situation is the same here as in Smith , and the Court should find that the City/Parish could be "liable for the actions of CATS by virtue of its status as owner of the land where bus stops are placed."
Rec. Doc. No. 14, ¶¶ 24, 28.
Rec. Doc. No. 23, p. 6.
385 F. Supp. 3d 491, 498–99 (E.D. La. 2019).
Id.
Rec. Doc. No. 23, p. 7.
However, the City/Parish points out that the facts here are distinguishable from Smith because the City/Parish has not contracted out any responsibilities to CATS; rather, by operation of state law, CATS is a distinct and separate juridical person with designated authority and obligations. The Court agrees.
The Court finds, pursuant to state law and the terms of the Operating Agreement, the City/Parish does not own or operate the public transit bus stops, and the City/Parish is not charged with ensuring ADA compliance at the bus stops. Indeed, the City/Parish owns the sidewalks/land that the bus stops sit upon; however, Plaintiff has not alleged that the underlying rights-of-way/sidewalks, outside of the issues with the landing pads, are non-compliant. Plaintiff contends he is not required to plead or request "magic words" to receive accommodation under the ADA. While the Court agrees that the Plaintiff need not plead "magic words" when seeking relief under the ADA, it does not follow that Plaintiff is relieved of the obligation to allege facts to support his claim that the City/Parish has an obligation to Plaintiff in this case. Plaintiff's accommodation requests and allegations in the Amended Complaint do not state that any property in the control of the City/Parish is not compliant with the ADA. Indeed, Plaintiff's accommodation requests and allegations only take issue with the landing pads (or lack thereof) at bus stops, and the City/Parish has demonstrated that it is not responsible as a matter of law for the maintenance and ADA compliance of public transport bus stops – that is the responsibility of CATS, a responsibility that CATS acknowledges.
See, generally , Rec. Doc. No. 22-1.
Also, while the City/Parish acknowledges that it is responsible for the placement or addition of benches at bus stops, the Court sees no allegation that the benches have rendered an otherwise ADA compliant bus stop non-compliant. Whether a bench is present at a bus stop is irrelevant for purposes of the ADA unless Plaintiff contends the benches render the bus stops inaccessible. From the Court's view of the Amended Complaint , no such allegation is made.
Plaintiff claims that, "[a]t the current juncture, the extent of City/Parish's legal obligation with regard to bus stops is far from clear." And for this reason, Plaintiff contends it is premature for the Court to dismiss the City/Parish. However, the applicable state law set forth above as well as the terms of the Operating Agreement are dispositive. Further, that Plaintiff contends the City/Parish's obligation is "far from clear" demonstrates that Plaintiff has put the proverbial cart before the horse.
Plaintiff's argument that this "unclear" allegation should remain whilst discovery ensues is contrary to well-settled Supreme Court and Fifth Circuit jurisprudence. Indeed, the Supreme Court has held that, although Rule 8 no longer requires hyper-technical pleading, "it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Thus, "a plaintiff cannot engage in discovery in an attempt to obtain facts that support a currently baseless claim." "Discovery is not intended as a fishing expedition permitting the speculative pleading of a case first and then pursuing discovery to support it; the Plaintiff must have some basis in fact for the action." "The discovery rules are designed to assist a party to prove a claim it reasonably believes to be viable without discovery, not to find out if it has any basis for a claim ."
Iqbal , 556 U.S. at 678-79, 129 S.Ct. 1937.
Lee v. Ard , 2017 WL 5349493, at *6 (M.D. La. Nov. 13, 2017) (internal quotation marks omitted).
Russell v. Choicepoint Services, Inc. , 302 F.Supp.2d 654, 671 (E.D. La. 2004) (quoting Zuk v. Eastern Pa. Psychiatric Inst. of the Med. College , 103 F.3d 294, 299 (3d Cir. 1996) (internal quotation marks omitted)).
Id. (quoting Micro Motion, Inc. v. Kane Steel Co. , 894 F.2d 1318, 1327 (Fed. Cir. 1990) (citing Netto v. Amtrak , 863 F.2d 1210, 1216 (5th Cir. 1989) )(internal quotation marks omitted)(emphasis added)).
By Plaintiff's own admission, he is not clear whether the City/Parish has an ADA obligation regarding maintenance of bus stops. While the Court takes Plaintiff's well-pleaded factual allegations as true, " ‘conclusory allegations and unwarranted deductions of fact are not admitted as true, especially when such conclusions are contradicted by facts disclosed by document appended to the complaint.’ " The City/Parish has cited governing state law and submitted an Operating Agreement which the Parties stipulate governs the respective rights and responsibilities between the City/Parish and CATS, which agreement demonstrates that the City/Parish does not own or control bus stops. Again, Plaintiff has not alleged that any City/Parish rights-of-way or sidewalks are not compliant with the ADA. Accordingly, the City/Parish's motion to dismiss shall be granted, and Plaintiff's claims against the City/Parish will be dismissed without prejudice. Plaintiff shall have a final opportunity to amend his complaint, if possible.
Mills v. City of Bogalusa , 112 F.Supp.3d 512, 515 (E.D. La. 2015) (quoting Associated Builders, Inc. v. Alabama Power Company , 505 F.2d 97, 100 (5th Cir. 1974) ). In the present case, the Operating Agreement was not attached to the initial or Amended Complaint , but Plaintiff acknowledges that the Court may properly consider it in deciding these motions. See Rec. Doc. No. 23, p. 4 fn 17.
D. CATS
CATS has also moved for dismissal, arguing generally that: (1) it does not own or control city sidewalks or bus benches; (2) bus stops with a pole in the ground and the addition of benches to bus stops are not new constructions or alterations requiring ADA compliance; and (3) Plaintiff's disability is accommodated by the availability of paratransit service. Plaintiff opposes CATS's motion, arguing that: (1) the determination of whether benches constitute new construction under the ADA is not an appropriate inquiry at the pleadings stage, (2) installing bus stops constitutes new construction under the ADA; and (3) the availability of paratransit does not excuse CATS's obligation under the ADA to maintain accessible bus stops. The Court notes that Plaintiff's claims for failure to accommodate are misplaced since he brings this action under Title II of the ADA: "the ADA's reasonable accommodation requirement does not apply under Title II"; rather, the "reasonable modification" requirement is applicable to public entities.
See Cleveland v. Gautreaux , 198 F.Supp.3d 717, 736 (M.D. La. 2016).
Nevertheless, the Court agrees with Plaintiff that CATS is not entitled to dismissal at this stage. Pursuant to state law and the controlling Operating Agreement, it is undisputed that CATS is responsible for the construction and/or maintenance of bus stops in the City of Baton Rouge, Parish of East Baton Rouge. As to the issue of whether any bus stops constitute new constructions or benches constitute alterations such that ADA modifications were required, the Court finds that these arguments are not properly raised on a Rule 12(b)(6) motion because assessing their merit would require the Court to look beyond the pleadings and make factual determinations. Indeed, "[r]egardless of the eventual sufficiency of the evidence to support this claim, this Court is now tasked ‘only with determining whether there are sufficient factual allegations to put ... [Defendants] on notice of a viable claim.’ " Further, the issue is not whether Plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claim. Thus, the Court should not dismiss the claim unless Plaintiff would not be entitled to relief under any set of facts or any possible theory that he could prove consistent with the allegations in the complaint. The Court finds that Plaintiff had adequately pled a plausible ADA claim against CATS based on the alleged inaccessibility of bus stops CATS maintains.
It is likewise undisputed that the City/Parish is responsible for the placement of benches at bus stops; however, this is irrelevant at this time based on Plaintiff not pleading any cause of action related to benches.
The Court recognizes some of the questions involve a mixture of fact and law – still not appropriately resolved at the pleading stage.
Cleveland , 198 F.Supp.3d at 739 (internal citations omitted).
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co. , 313 F.3d 305, 312–13 (5th Cir. 2002) (Rule 12(c) decision) (citations, original brackets, and internal quotation marks omitted).
Many of the arguments made by CATS in its motion are statements of fact and legal conclusions which require evidentiary proof. CATS implicitly acknowledges this as it attached an affidavit to its motion, which the Court cannot consider at the Rule 12(b)(6) stage. Further, the Court is not persuaded by CATS's conclusory argument that the availability of paratransit obviates its obligation to maintain accessible bus stops. Plaintiff has alleged that paratransit does not provide the same access to services as the fixed route service because it must be scheduled 24 hours in advance and does not allow for "spur of the moment" travel. In short, Plaintiff has pled allegations sufficient to put CATS on notice of his ADA and RA claims, and the claims against CATS are not conclusory or unsupported by factual enhancement as set forth in Twombly / Iqbal . CATS's Motion to Dismiss is DENIED.
See 49 C.F.R. § 37.131.
III. CONCLUSION
For the reasons set forth above, the Motion to Dismiss filed by the City/Parish is GRANTED; the Motion to Dismiss Pursuant to FRCP Rule 12(b)(6) filed by CATS is DENIED. Plaintiff shall have 21 days from the date of this Ruling to file an Amended Complaint that comports with the Federal Rules of Civil Procedure and the Local Rules of the Middle District of Louisiana. If Plaintiff fails to file an amended complaint within 21 days, dismissal of the City/Parish shall be converted to dismissal with prejudice.
Rec. Doc. No. 20.
Rec. Doc. No. 22.