Alvey v. Gualtieri

Filing 86

ORDER: Defendant Bob Gualtieri's Motion to Dismiss (Doc. # 63 ) is GRANTED. Plaintiff Amber Alvey's claim for injunctive relief is DISMISSED for lack of subject matter jurisdiction. Signed by Judge Virginia M. Hernandez Covington on 10/18/2016. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
AMBER ALVEY,
Plaintiff,
v.

Case No. 8:15-cv-1861-T-33AEP

BOB GUALTIERI, in his
official capacity as
Sheriff of Pinellas
County,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Bob Gualtieri’s Motion to Dismiss For Lack of Subject Matter
Jurisdiction (Doc. # 63), filed on August 23, 2016. Plaintiff
Amber Alvey filed a response in opposition on September 15,
2016. (Doc. # 76). For the reasons that follow, the Motion is
granted.
I.

Background
On June 20, 2014, Amber Alvey left her apartment in St.

Petersburg, Florida, and sought shelter at Pinellas Safe
Harbor (Safe Harbor), a shelter serving homeless individuals,
which is run by Pinellas County. (Doc. # 49 at ¶¶ 7-10, 21).
Alvey, who suffers from physical disabilities, requested a
raised bed at the shelter as she had difficulty lifting

1

herself from her assigned mat on the floor. (Id. at ¶ 32).
However, Safe Harbor did not provide her with a raised bed,
even though some bunk beds were available that night. (Id. at
¶ 36).
During a head-count of the shelter’s visitors later that
night, Alvey fell and was injured as she tried to get up from
the lower sleeping mat. (Id. at ¶ 38). She was taken to the
hospital and attempted to return to Safe Harbor after midnight
June 21, 2014. (Id. at ¶¶ 40-41).
At that point, according to Alvey, the staff of Safe
Harbor would not allow her to re-enter the premises. (Id. at
¶¶ 41-42). Safe Harbor banned Alvey from the shelter because
Safe Harbor’s facility was not conducive to Alvey’s medical
needs. (Id. at ¶ 41).
On August 10, 2015, Alvey filed her Complaint against
Gualtieri in his official capacity as Sheriff of Pinellas
County, alleging that Safe Harbor intentionally discriminated
against her in violation of Title II of the Americans with
Disabilities Act (ADA) and failed to provide her with a
reasonable modification of her sleeping arrangement in light
of her disabilities. (Doc. # 1 at ¶¶ 56-64). Alvey seeks both
injunctive

relief

and

damages

2

for

the

intentional

discrimination and injury she allegedly suffered at Safe
Harbor. (Id. at 12).
After the conclusion of discovery and the filing of
cross-motions for summary judgment, Gualtieri filed a motion
to dismiss the injunctive relief claim for lack of standing,
on August 23, 2016. (Doc. # 63). Alvey responded in opposition
to the motion on September 15, 2016. (Doc. # 76).
II.

Legal Standard
Motions filed under Federal Rule of Civil Procedure

12(b)(1) question this Court’s jurisdiction over the subject
matter of the case. Motions to dismiss for lack of subject
matter jurisdiction pursuant to Rule 12(b)(1) may attack
jurisdiction facially or factually. Morrison v. Amway Corp.,
323

F.3d

920,

924

n.5

(11th

Cir.

2003).

Where

the

jurisdictional attack is based on the face of the pleadings,
the court merely looks to determine whether the plaintiff has
sufficiently alleged a basis of subject matter jurisdiction,
and the allegations in the plaintiff’s complaint are taken as
true for purposes of the motion. Lawrence v. Dunbar, 919 F.2d
1525, 1529 (11th Cir. 1990).
In factual attacks, on the other hand, the court delves
into the arguments asserted by the parties and the credibility
of the evidence presented. Garcia v. Copenhaver, Bell, &

3

Assocs., 104 F.3d 1256, 1260–61 (11th Cir. 1997). As stated
in

Morrison,

jurisdiction

“Factual
in

fact,

attacks

challenge

irrespective

of

the

subject

matter

pleadings.

In

resolving a factual attack, the district court may consider
extrinsic evidence such as testimony and affidavits.” 323
F.3d at 925. In deciding a motion to dismiss filed under Rule
12(b)(1), this Court is not required to assume that the
allegations

in

the

Complaint

are

true.

Rosenkrantz

v.

Markopoulos, 254 F. Supp. 2d 1250, 1251 (M.D. Fla. 2003); see
also Goodman v. Sipos, 259 F.3d 1327, 1331 n.6 (11th Cir.
2001)(factually-based attacks on subject matter jurisdiction
go beyond the pleadings and permit testimony and affidavits
to be considered).
A plaintiff bears the burden of demonstrating that the
Court has jurisdiction. Menchaca v. Chrysler Credit Corp.,
613

F.2d

507,

511

(5th

Cir.

1980).

Once

subject

matter

jurisdiction has been questioned, a plaintiff is required to
“clearly allege facts demonstrating that he is a proper party
to invoke judicial resolution of the dispute and the exercise
of the court’s remedial powers.” Warth v. Seldin, 422 U.S.
490, 518 (1975).
In addition, courts may dismiss cases pursuant to Rule
12(b)(1)

upon

finding

that

the

4

plaintiff’s

claims

are

“clearly immaterial, made solely for the purpose of obtaining
jurisdiction or are wholly unsubstantiated and frivolous.”
Lawrence, 919 F.2d at 1529 (quoting Eaton v. Dorchester Dev.,
Inc., 692 F.2d 727, 732 (11th Cir. 1982)); see also Bell v.
Hood, 327 U.S. 678, 682–683 (1946).
III. Analysis
Title II of the ADA prohibits discrimination in public
services

and

individual

transportation

with

a

and

disability

states,

shall,

by

“No
reason

qualified
of

such

disability, be excluded from participation in, or be denied
the benefits of services, programs, or activities of a public
entity, or be subjected to discrimination by any public
entity.” 42 U.S.C. § 12132.
As stated in Shotz v. Cates, 256 F.3d 1077, 1079 (11th
Cir. 2001):
To state a claim under Title II of the ADA, a
plaintiff must allege: (1) that he is a qualified
individual with a disability; (2) that he was
excluded from participation in or . . . denied the
benefits of the services, programs, or activities
of a public entity or otherwise discriminated
against by such entity; (3) by reason of such
disability.
(internal citations omitted).
Gualtieri moves to dismiss Alvey’s claim for injunctive
relief pursuant to Rule 12(b)(1) on the ground that Alvey

5

lacks standing to bring that claim, thus depriving the Court
of jurisdiction. (Doc. # 63 at 1).
In

order

to

meet

the

requirements

of

Article

III

standing, a plaintiff must establish that she has suffered an
injury in fact, that the injury was causally connected to the
defendant’s actions, and that the injury would be redressed
by a judgment in the plaintiff’s favor. See Lujan v. Defs. of
Wildlife,

504

U.S.

555,

560–61

(1992).

In

addition,

concerning standing to seek injunctive relief, Lujan states:
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. And the
affiants’ profession of an “intent” to return to
the places that they had visited before — where
they will presumably, this time, be deprived of the
opportunity to observe animals of the endangered
species — is simply not enough. Such “some day”
intentions - without any description of concrete
plans, or indeed even any specification of when the
some day will be — do not support a finding of the
“actual or imminent” injury that our cases require.
Id. at 564 (emphasis in original).
This proposition is also reflected in City of Los Angeles
v. Lyons, 461 U.S. 95, 102 (1983)(“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.”)(internal

citation

omitted). The threat of future injury must be “real and

6

immediate

—

as

opposed

to

merely

conjectural

or

hypothetical.” Wooden v. Bd. of Regents of Univ. Sys. of Ga.,
247 F.3d 1262, 1284 (11th Cir. 2001).
The Court finds that there is not sufficient evidence of
a “real and immediate” threat that Alvey will seek emergency
shelter at Safe Harbor in the future to establish standing
for injunctive relief under Title II of the ADA. As Gualtieri
notes, Alvey has never been homeless, had not stayed at a
homeless shelter before coming to Safe Harbor, and has not
stayed at a homeless shelter since she left Safe Harbor. (Doc.
# 63 at 4). During her deposition, Gualtieri asked Alvey about
her history of homelessness:
Q: Have you ever been — have you ever stayed in a
homeless shelter?
A: Have I ever before that?
Q: Yeah
A: No. Never.
Q: Have you ever since that time?
A: Not that I can remember.
. . . .
Q: It is true that when you went to sleep that night
at Safe Harbor you were not homeless?
A: Right.
(Doc. # 51-1 Plf. Dep. at 113:4-10; 113:16-18).
At the time of her deposition, Alvey was living in
Missouri in a leased apartment near her daughter. (Id. at
9:22-23; 10:1-9; 12:13-18). During that deposition, Alvey

7

indicated that she had not returned to Safe Harbor after June
of 2014, and had no intention of doing so in the future:
Q: After you got your medicine back and your other
- whatever other stuff you had at Safe Harbor,
on that day were you — you weren’t trying to
stay there, were you?
A: No.
Q: Did you ever try to stay there again?
A: No.
Q: Did you ever need to stay there again?
A: No.
Q: Do you need to stay there now?
A: No.
Q: Do you have any intention of going back and
trying to stay there?
A: No. I don’t — I don’t plan on it. Now I’ve got
my own apartment with a lease and — so no.
(Id. at 143:18-144:7).
However, since the deposition, Alvey has moved back to
Florida. (Doc. # 49-2). Alvey currently resides in Englewood,
Florida, with her sister approximately seventy-five miles
away from Safe Harbor. (Doc. ## 49-2 at ¶ 17; 63 at 6-7).
Still, Alvey states that she might need to stay at Safe Harbor
at some point in the future because she “would prefer to live
in Pinellas County and want[s] to return there.” (Doc. # 492 at ¶ 17). Alvey notes that her living situation has been
uncertain for the two years since her visit to Safe Harbor as
she

has

moved

seven

times

during

that

period.

(Id.).

Therefore, Alvey concludes that “[i]t is reasonable that I
could be expected to need safe shelter again, but I would not

8

be able to get access to the services at [Safe Harbor] under
the current policies there.” (Id.).
Alvey is correct that a “plaintiff’s exposure to illegal
conduct in the past is nonetheless ‘evidence bearing on
whether there is a real and immediate threat of repeated
injury.’” Houston v. Marod Supermarkets, Inc., 733 F.3d 1323,
1336 (11th Cir. 2013)(quoting O’Shea v. Littleton, 414 U.S.
488, 496 (1974)). The ban that would prevent Alvey from
returning to Safe Harbor remains in place, meaning that Alvey
would be denied entry if she sought emergency shelter there
again. (Doc. # 49 at ¶ 46); see also Houston, 733 F.3d at
1337 (“There is no indication in the record that the alleged
architectural barriers in the Presidente Supermarket have
been remedied. As a result, there is a 100 percent likelihood
that Plaintiff Houston will suffer the alleged injury again
when he returns to the store.”). Nevertheless, Alvey still
must

show

that

the

threat

of

future

injury

is

beyond

conjectural.
For example, in Houston, the Eleventh Circuit found that
Houston did have standing to seek injunctive relief under
Title III of the ADA against the defendant supermarket even
though Houston lived in the next county thirty miles away and
had visited the market infrequently. Houston, 733 F.3d at

9

1337. However, the facts of that case indicated that there
was a serious likelihood that Houston would return to the
supermarket. Although the supermarket was thirty miles away
from his home, it was only two miles away from his lawyer’s
offices. Id. at 1336. Houston drove past the supermarket
whenever he went to visit his lawyer. Id.
As

Houston

was

an

ADA

“tester,”

Houston

could

convincingly show that he “‘definitely’ anticipat[ed] going
to

his

lawyer’s

offices

‘in

the

near

future.’”

Id.

Furthermore, Houston declared that he would return to the
supermarket if the barriers to entry were removed. Id. Under
the totality of the circumstances of that case, the Eleventh
Circuit

found

that

Houston

did

have

standing

to

seek

injunctive relief. Id. at 1337.
In contrast, the threat of future injury to Alvey is
hypothetical and contingent upon her moving back to Pinellas
County and, once there, having an emergency need for shelter.
Alvey’s current residence, in a different county seventy-five
miles away from Safe Harbor, reduces the likelihood of a “real
and immediate” threat of future injury. See Lamb v. Charlotte
Cty., 429 F. Supp. 2d 1302, 1309 (M.D. Fla. 2006)(finding
that plaintiff alleging violations of Title II of the ADA
could not establish standing for injunctive relief where he

10

lived seventy-five miles away from the library and community
center at issue and there were other similar facilities closer
to his home); Access for the Disabled, Inc. v. Rosof, No.
8:05-cv-1413-T-30-TBM, 2005 WL 3556046, at *2 (“The threat of
future real and immediate injury is even more speculative in
light of the fact that Plaintiff Cohen does not reside in
Sarasota and his only connection to the area is as a ‘frequent
visitor.’”). While Alvey alleges that she wishes to return to
Pinellas County, her stated intention to move there at an
unspecified date in the future is conjectural.
Additionally,

Alvey’s

history

of

unstable

housing

arrangements, without more, does not demonstrate that there
is a “real and immediate” threat that Alvey will require
shelter at Safe Harbor. Cf. Sunderland v. Bethesda Health,
Inc., No. 13-80685-CIV-HURLEY, 2016 WL 2736087, at *10 (S.D.
Fla. May 11, 2016)(rejecting plaintiffs’ contention that “an
elderly person suffering from a chronic, progressive medical
condition necessarily demonstrates a ‘real and immediate’
threat of future hospitalization”).
Alvey states that she may have an emergency need for
shelter at some point in the future; however, the possibility
of such a future emergency is speculative as she has never
been homeless in the past and has not required emergency

11

shelter in the two years since she visited Safe Harbor. Cf.
Connors v. W. Orange Healthcare Dist., No. 605-cv-647-Orl31-KRS,

2005

WL

1500899,

at

*4

(M.D.

Fla.

June

23,

2005)(finding no standing where plaintiffs alleged only that
they “live in the vicinity of the [defendant hospital], and
must

return

to

the

defendant

in

the

near

future

if

an

emergency exists” because the likelihood of future injury
depended “on the entirely speculative potential of a future
medical emergency, and [plaintiffs had] not alleged that such
future medical conditions are likely to, or may possibly,
arise”).
Therefore, Alvey has not established the existence of a
“real and immediate” threat of future injury. Accordingly,
Alvey’s claim for injunctive relief is dismissed for lack of
standing. Although Alvey does not have standing to seek
injunctive relief, Alvey’s claims under Title II of the ADA
premised on Safe Harbor’s past acts of alleged discrimination
survive.
Accordingly, it is hereby
ORDERED, ADJUDGED, and DECREED:
(1)

Defendant Bob Gualtieri’s Motion to Dismiss (Doc. # 63)
is GRANTED.

12

(2)

Plaintiff Amber Alvey’s claim for injunctive relief is
DISMISSED for lack of subject matter jurisdiction.
DONE and ORDERED in Chambers in Tampa, Florida, this

18th day of October, 2016.

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