Boudreau et al v. Nocco

Filing 22

ORDER: Defendant Sheriff Chris Nocco's Motion to Dismiss (Doc. # 16) is GRANTED in part and DENIED in part. The request for a declaration that Plaintiff Wanda Boudreau did not violate any law is dismissed pursuant to the Rooker-Feldman doctrine. All other claims remain. Signed by Judge Virginia M. Hernandez Covington on 7/16/2021. (DMD)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
LAWRENCE BOUDREAU and
WANDA BOUDREAU,
Plaintiffs,
v.

Case No. 8:21-cv-1158-VMC-AEP

SHERIFF CHRIS NOCCO,
in his official capacity as
Sheriff of Pasco County,
Defendant.
______________________________/
ORDER
This matter is before the Court on consideration of
Defendant Sheriff Chris Nocco’s Motion to Dismiss (Doc. #
16), filed on July 7, 2021. Plaintiffs Lawrence Boudreau and
Wanda Boudreau responded on July 13, 2021. (Doc. # 18). For
the reasons that follow, the Motion is granted in part and
denied in part.
I.

Background
Lawrence and Wanda Boudreau are a married couple living

in Pasco County, Florida.1 (Doc. # 1 at 1-2). Because of
“vascular disease,” Lawrence “is unable to walk more than 10
feet without taking a break.” (Id. at 1). Wanda is “unable to

Because Plaintiffs share the same last name, the Court will
use their first names when necessary for the sake of clarity.
1

1

walk without extreme pain” because of “bad knees and nerve
damage from shingles.” (Id. at 2). Thus, they allege they are
both “qualified individual[s] with a disability within the
meaning

of

the

[Americans

with

Disabilities

Act

(ADA)],

Rehabilitation Act, and all applicable regulations.” (Id. at
1-2).

Because

of

their

disabilities,

the

Boudreaus

both

“rel[y] on a golf cart for mobility.” (Id. at 2).
In March 2020, Lawrence contacted the Sheriff’s Office
to “request[] that he and his wife be permitted to use their
golf cart for mobility on the public sidewalks” of Pasco
County. (Id. at 3). In June 2020, Lawrence “contacted the
Sheriff again asking for assurances that he and his wife will
not be pulled over while driving their golf cart on the public
sidewalks

due

to

their

disabilities

and

asked

for

an

accommodation.” (Id.).
On August 19, 2020, the Boudreaus were pulled over by
Sheriff Sergeant Richard Scilex while Wanda was driving the
golf cart along a public sidewalk. (Id.). “Despite knowing
full well that [Wanda] was disabled and the ADA regulations,
Sgt. Scilex issued Wanda [] a warning for driving the golf
cart on a sidewalk in violation of Fla. Stat. § 316.212.”
(Id.). “Sgt. Scilex took the position that the ADA does not
provide [the Boudreaus] relief from the statute.” (Id.).
2

Because of this warning, Lawrence “emailed the Sheriff
maintaining that he should be provided an ADA accommodation
to use [] a golf cart on the public sidewalks.” (Id.). Captain
Stephen Hartnett responded, asserting that “Sgt. [] Scilex’s
actions by issuing a warning did not violate the ADA, and
that his use of the golf cart as a mobility scooter is not
consistent with the ADA.” (Id.).
The Boudreaus continued to use their golf cart on the
sidewalks. On October 13, 2020, “Sgt. [] Scilex . . . issued
[] Wanda a $164 ticket for violating Florida Statute
316.212,

which

forbids

any

non-human-powered

vehicle

§
on

sidewalks, with the exception of motorized wheelchairs.” (Id.
at

4).

Section

316.212,

Fla.

Stat.,

states

that

“[t]he

operation of a golf cart upon the public roads or streets of
this state is prohibited” except as provided within that
section. Fla. Stat. § 316.212. Section 316.212(8) provides
that “A local governmental entity may enact an ordinance
relating to: . . . (b) Golf cart operation on sidewalks
adjacent to specific segments of municipal streets, county
roads, or state highways within the jurisdictional territory
of the local governmental entity if” the local governmental
entity makes certain findings and follows certain procedures.
Fla. Stat. § 316.212(8)(b). There is no allegation that Pasco
3

County has enacted an ordinance permitting golf carts on
sidewalks under any circumstances.
“On February 19, 2021, [] Wanda attended a final hearing
on

the

purported

traffic

violation.

At

trial,

[]

Wanda

maintained that she did not violate Florida Statute § 316.212,
since she was protected by the ADA.” (Doc. # 1 at 4). “Despite
demonstrating to the Court that she was disabled within the
meaning of the ADA, the Sixth Judicial Circuit in and for
Pasco County, Florida found [] Wanda in violation of the
statute and ordered her to pay a civil penalty in the amount
of $164.00.” (Id.).
The Boudreaus initiated this action against Nocco, in
his official capacity as Sheriff of Pasco County, on May 13,
2021. (Doc. # 1). The complaint asserts two counts: for
violation of Title II of the ADA (Count I) and violation of
Section 504 of the Rehabilitation Act (Count II). (Id.). The
Boudreaus seek compensatory damages and a declaration that
“the Pasco County Sheriff’s Office violated the ADA and
Rehabilitation Act [(1)] by prohibiting [them] from using
their golf cart to mobilize on public sidewalks and that they
did not violate any City, County, or State traffic law(s),
and

[(2)]

by

failing

to

provide

[them]

a

reasonable

accommodation under the law.” (Id. at 7-8). Finally, the
4

Boudreaus request entry of a “permanent injunction against
the Pasco County Sheriff’s Office [enjoining it] from issuing
[the Boudreaus] any additional violations for using their
golf carts to mobilize on public sidewalks.” (Id. at 8).
Now, Nocco moves to dismiss the complaint. (Doc. # 16).
The Boudreaus have responded (Doc. # 18), and the Motion is
ripe for review.
II.

Legal Standard
On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the allegations in the complaint
and

construes

them

in

the

light

most

favorable

to

the

plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,
1262 (11th Cir. 2004). Further, the Court favors the plaintiff
with all reasonable inferences from the allegations in the
complaint. Stephens v. Dep’t of Health & Human Servs., 901
F.2d 1571, 1573 (11th Cir. 1990). But,
[w]hile 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. Factual allegations must be enough to
raise a right to relief above the speculative
level.
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)(internal
citations omitted). Courts are not “bound to accept as true
5

a legal conclusion couched as a factual allegation.” Papasan
v. Allain, 478 U.S. 265, 286 (1986). “The scope of review
must be limited to the four corners of the complaint” and
attached exhibits. St. George v. Pinellas Cnty., 285 F.3d
1334, 1337 (11th Cir. 2002).
III. Analysis
A.

ADA and Rehabilitation Act

Title II of the ADA prohibits discrimination in public
services and transportation: “No qualified individual with a
disability shall, by reason 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.
“With the exception of its federal funding requirement, the
[Rehabilitation Act] uses the same standards as the ADA, and
therefore,

cases

interpreting

either

are

applicable

and

interchangeable.” Badillo v. Thorpe, 158 F. App’x 208, 214
(11th Cir. 2005). To state a claim under Title II, 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.”
6

Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir. 2001)(internal
citations omitted).
“In

cases

where

the

alleged

violation

involves

the

denial of a reasonable modification/accommodation, the ADA’s
reasonable accommodation requirement usually does not apply
unless triggered by a request.” Kiman v. N.H. Dep’t of Corr.,
451 F.3d 274, 283 (1st Cir. 2006)(citation and internal
quotation

marks

omitted).

“[W]hether

a

requested

accommodation is required by law is highly fact-specific,
requiring
Hialeah

case-by-case

Hous.

Auth.,

determination.”
418

F.

App’x

United

872,

875

States
(11th

v.

Cir.

2011)(citation omitted)(discussing reasonable accommodations
in the context of the Fair Housing Act); see Holbrook v. City
of Alpharetta, 112 F.3d 1522, 1527 (11th Cir. 1997)(stating,
in context of an ADA employment discrimination claim, “what
is reasonable for each individual employer is a highly factspecific

inquiry

that

will

vary

depending

on

the

circumstances and necessities of each employment situation”).
First, Nocco argues that the Boudreaus may only bring a
claim against him if they maintain that the law regarding
golf carts on sidewalks is unconstitutional. (Doc. # 16 at
10-11). But, Nocco has failed to cite any on-point authority
for this proposition. Thus, the Court rejects this argument.
7

See Herbert v. Architect of Capitol, 839 F. Supp. 2d 284, 298
(D.D.C. 2012)(“[T]he [defendant] has simply failed to support
its argument with any meaningful measure of factual or legal
argument. Courts need not consider cursory arguments of this
kind, and the Court declines to do so here.”). Nocco may raise
this argument, if supported by legal authority, at summary
judgment.
Next, Nocco argues that he is not the correct defendant
in this case; rather, according to him, the Boudreaus should
have sued Pasco County. (Doc. # 16 at 11-12). Nocco emphasizes
that “he has not been given the ability or authority to enact
legislation” and he “does not have the unilateral authority
to bypass Florida Statutes concerning enforcement of Florida
law as it pertains to golf carts and sidewalks.” (Id. at 12).
The Court rejects this argument at the motion to dismiss
stage. The complaint does not request that the statutes and
ordinances

regarding

use

of

golf

carts

on

sidewalks

be

rewritten by Nocco. Rather, the complaint alleges that Nocco
failed to provide the reasonable accommodation of selective
enforcement of the law in light of the Boudreaus’ use of their
golf cart for mobility purposes. (Doc. # 1 at 3). And Nocco
has

presented

no

authority

for

the

proposition

that

an

officer’s not enforcing a law against a disabled individual
8

may not qualify as a reasonable accommodation under the ADA
or Rehabilitation Act. Nocco may raise this argument again at
summary judgment.
The Court is also unpersuaded by Nocco’s argument that
the Boudreaus “have also failed to show that the actions by
the Sheriff were discriminatory.” (Doc. # 16 at 13). Nocco
essentially argues that the Boudreaus have failed to state a
claim because they have not alleged in the complaint that
they are unable to use other mobility devices, which are
already permitted under state law. (Id.). But whether the
Boudreaus are able to use other mobility devices goes to
whether their requested accommodation of using their golf
cart on the sidewalks is reasonable. Again, this is a factspecific inquiry that should be left to the summary judgment
stage.

See

Hialeah

Hous.

Auth.,

418

F.

App’x

at

875

(“[W]hether a requested accommodation is required by law is
highly

fact-specific,

determination.”).

For

now,

requiring
the

Boudreaus

case-by-case
have

plausibly

alleged all elements of their claims under the ADA and
Rehabilitation Act by asserting that they are disabled and
are being denied the benefit of using the sidewalks of Pasco
County because Nocco has failed to provide them a reasonable
accommodation.
9

Likewise, the Court declines to dismiss the Boudreaus’
request for compensatory damages. “In the ordinary course,
proof of a Title II or [Section] 504 violation entitles a
plaintiff

only

Hartselle,

to

423

injunctive

F.

Supp.

relief.”

3d

1277,

Welch

v.

City

1281

(N.D.

of

Ala.

2019)(citation omitted). “To recover compensatory damages for
a violation of Title II of the ADA, a plaintiff must prove
that

the

public

discrimination.”

Id.

entity
The

engaged

Court

in

declines

to

intentional
dismiss

the

Boudreaus’ request for compensatory damages at this time. The
allegations of the complaint plausibly support a finding of
intentional discrimination and thus the Boudreaus may pursue
this theory during discovery. Whether or not Nocco engaged in
intentional discrimination is a fact-specific issue better
determined at the summary judgment stage.
B.
Next,

Injunctive Relief
Nocco

argues

that

the

request

for

injunctive

relief should be dismissed because the Boudreaus have “not
alleged an irreparable injury,” “have failed to allege that
a remedy in equity is needed after considering the balance of
hardship of the [Boudreaus] and that of the need for the
Sheriff to enforce the law,” and they “have not alleged that
the public interest would be served by the Court granting
10

their request for a permanent injunction.” (Doc. # 16 at 16).
However, Nocco does not argue that the Boudreaus lack standing
to pursue injunctive relief.
For the pleading stage, the Court finds the Boudreaus
have sufficiently alleged a basis for injunctive relief. See
eBay

Inc.

v.

MercExchange,

L.L.C.,

547

U.S.

388,

391

(2006)(explaining that, to obtain a permanent injunction, a
“plaintiff must demonstrate: (1) that it has suffered an
irreparable injury; (2) that remedies available at law, such
as monetary damages, are inadequate to compensate for that
injury;

(3)

that,

considering

the

balance

of

hardships

between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be
disserved by a permanent injunction”). They have plausibly
alleged that being prevented from using their golf cart as a
mobility device is an irreparable injury and that injunctive
relief is necessary to ensure their ability to use their golf
cart as a mobility device in the future. Likewise, allowing
disabled citizens the ability to use mobility devices serves
the public interest. And there is good reason to believe that
the Boudreaus, who have continued using their golf cart
despite warnings and a ticket, will continue to use their
golf cart and face future enforcement actions by the Sheriff.
11

While Nocco may certainly challenge whether the evidence
supports entry of an injunction after discovery, dismissal of
the request for injunctive relief now is premature.
C.

Rooker-Feldman Issue

Finally, Nocco argues that the complaint’s request for
a declaration that Wanda “did not violate City, County, or
State traffic law(s)” should be dismissed pursuant to the
Rooker-Feldman doctrine. (Doc. # 16 at 16-17). “Under the
Rooker–Feldman doctrine, a district court lacks jurisdiction
over claims ‘brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district
court review and rejection of those judgments.’” Valentine v.
BAC Home Loans Servicing, L.P., 635 F. App’x 753, 756 (11th
Cir. 2015)(quoting Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 284 (2005)). The Court agrees that the
state

court’s

final

judgment

regarding

the

October

2020

ticket issued to Wanda cannot be reviewed by this Court.
And, indeed, the Boudreaus in their response acknowledge
that the Rooker-Feldman doctrine “prevents [f]ederal [c]ourts
from reviewing state court final judgments” and, thus, they
assure the Court they will not “be seeking to redress or
appeal [Wanda’s] citation in this action.” (Doc. # 17 at 18).
12

Instead, the Boudreaus will merely be seeking “a declaration
that the Sheriff violated the ADA and Rehabilitation Act by
failing to provide [them] a reasonable accommodation under
the law.” (Id.).
As

the

Boudreaus

do

not

oppose

dismissal

of

the

complaint’s request for a declaration that Wanda did not
violate the law, the Court grants Nocco’s Motion as to this
portion of the requested declaration.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant Sheriff Chris Nocco’s Motion to Dismiss (Doc.
# 16) is GRANTED in part and DENIED in part. The request for
a declaration that Plaintiff Wanda Boudreau did not violate
any law is dismissed pursuant to the Rooker-Feldman doctrine.
All other claims remain.
DONE and ORDERED in Chambers in Tampa, Florida, this
16th day of July, 2021.

13