Gaylor v. Georgia Department of Natural Resources et al

Filing 23

ORDER granting in part 8 Motion to Dismiss. Specifically, Plaintiff shall file an amended complaint within 21 days of this Order which specifies which regulations were violated by Defendants conduct and provides sufficient specificity for the Cour t to determine whether Plaintiffs claims are plausibly plead. On all other issues, the Court will DENY the motion with the right to refile. Following the filing of Plaintiffs amended complaint, Defendants may refile, within 14 days, their motion add ressing the remaining Eleventh Amendment challenge to Title II (congruence and proportionality), Eleventh Amendment challenges under the Ex Parte Young exceptions, and whether Plaintiffs newly plead claims state a claim. Signed by Judge Richard W. Story on 8/15/2012. (vld)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
GAINESVILLE DIVISION
GARY GAYLOR,
Plaintiff,
v.
GEORGIA DEPARTMENT OF
NATURAL RESOURCES, et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
2:11-CV-288-RWS

ORDER
This case comes before the Court on Defendants’ Motion to Dismiss [8].
After a review of the record, the Court enters the following order.
Plaintiff Gary Gaylor is a resident of White County, Georgia who was
diagnosed with multiple sclerosis (“MS”) in 2005.1 As a result of his MS,
Plaintiff’s ability to walk is impaired, and he requires the use of a cane or
wheelchair to ambulate.
Defendants Georgia Department of Natural Resources, the Georgia
Department of Natural Resources’ Parks, Recreation, and Historic Sites
Division, and Director Becky Kelley own, operate, and/or administer Unicoi

1

Unless otherwise stated, the following facts are drawn from the Complaint [1].

AO 72A
(Rev.8/82)

State Park and Lodge (“Unicoi”) and Vogel State Park (“Vogel”). Plaintiff has
visited these properties and plans on visiting them again. However, Plaintiff
alleges that during his visits he has faced difficulties accessing the goods,
services, programs, and activities within the parks due to architectural barriers,
and he fears that he will continue to face these barriers in the future.
Specifically, Plaintiff alleges the following access barriers:
Unicoi State Park and Lodge
A. Inaccessible parking due to excessive slopes, lack of proper
access aisles, inadequate dimensions and cracked pavement;
B. inaccessible paths of travel due to excessive slopes, abrupt
changes in level and lack of proper handrails;
C. inaccessible curb cuts due to presence of lips and excessive
slopes;
D. inaccessible ramps due to lack of proper handrails and excessive
slopes;
E. inaccessible restrooms due to lack of accessible routes to enter
the restrooms; and
F. inaccessible picnic table and seating areas due to lack of
accessible route and inaccessible table dimensions; and
G. inaccessible primary function areas such as beaches and trails
which cannot be safely accessed by a person with a mobility
impairment.

2

AO 72A
(Rev.8/82)

Vogel State Park
A. Inaccessible parking due to lack of proper access aisles,
improper dimensions, excessive slopes and cracked pavement;
B. inaccessible paths of travel due to excessive slopes and lack of
proper handrails;
C. inaccessible primary function areas such as lakeside activities
and seating which can only be accessed via stairs and which lack
accessible routes, ramps and handrails;
D. inaccessible restrooms throughout the park due to lack of proper
door hardware and flush valves on incorrect side; and
E. inaccessible ramps due to excessive slopes and lack of proper
handrails.
Plaintiff has filed this suit under Title II of the Americans with
Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”), asking this Court
to declare that the State’s parks are inaccessible in violation of those acts, to
find that the State has discriminated against him because of his disability, and to
enjoin the State from continuing its discriminatory practices and to make
relevant improvements to remedy its violations. The Defendants have now filed
a motion to dismiss, arguing that Plaintiff’s claims are barred by the Eleventh
Amendment, Plaintiff has failed to plausibly state violations of the ADA and

3

AO 72A
(Rev.8/82)

RA, and, alternatively, request a more definite statement of Plaintiff’s claims.
The Court will consider each claim in turn.
A. Eleventh Amendment
Defendants first argue that Plaintiff’s ADA and RA claims are barred by
the Eleventh Amendment. The Eleventh Amendment provides that “[t]he
Judicial power of the United States shall not be construed to extend to any suit
in law or equity, commenced or prosecuted against one of the United States by
Citizens of another State, or by Citizens or Subjects of any Foreign State.” U.S.
CONST. amend. XI. Eleventh Amendment immunity extends to state agencies
and departments, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89,
100 (1984), as well as any state official sued in his official capacity. Brandon v.
Holt, 469 U.S. 464, 472-73 (1985); Jackson v. Ga. Dep’t of Transp., 16 F.3d
1573, 1577 (11th Cir. 1994). Thus, neither a state nor its agencies, departments,
or officials are subject to suit unless: (1) the State unequivocally consents to suit
or (2) Congress has clearly expressed intent to abrogate a State’s Eleventh
Amendment immunity with respect to rights protected by the Fourteenth
Amendment. Pennhurst, 465 U.S. at 99. Plaintiff alleges that Congress has
validly abrogated the Defendants’ immunity under the ADA, and that

4

AO 72A
(Rev.8/82)

Defendants have waived their immunity via their receipt of federal funds under
the RA. The Court considers each statute in turn.
1. ADA
Title II of the ADA 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.” 42 U.S.C. § 12132.
Congress defined a “public entity” as “any State or local government” and “any
department, agency, special purpose district, or other instrumentality of a State
or States or local government.” 42 U.S.C. § 12131(1). Thus, Defendants are
subject to Title II of the ADA.
In enacting the ADA, Congress noted that “physical or mental disabilities
in no way diminish a person’s right to fully participate in all aspects of society,”
but “society has tended to isolate and segregate individuals with disabilities”
and has “discriminated against [these] individuals . . . in such critical areas as
employment, housing, public accommodation, education, transportation,
communication, recreation, institutionalization, health services, voting, and
access to services.” 42 U.S.C. § 12101(a)(1)-(3) (emphasis added). Therefore,

5

AO 72A
(Rev.8/82)

Congress declared its purpose was “to invoke the sweep of congressional
authority, including the power to enforce the fourteenth amendment and to
regulate commerce”2 in enacting the statute and preventing disability
discrimination. 42 U.S.C. § 12101(b)(4). To that end, Congress expressly
abrogated Georgia’s immunity under the ADA. See 42 U.S.C. § 12202 (ADA3).
Thus, the Court must determine whether Congress’ abrogation was taken
pursuant to a “valid grant of constitutional authority.” Tennessee v. Lane, 541
U.S. 509, 517 (2004).
Section 5 of the Fourteenth Amendment allows Congress to abrogate a
State’s sovereign immunity when it does so to enforce the substantive

2

The Commerce Clause does not provide sovereign-immunity abrogation as the
Supreme Court has ruled that Article I “cannot be used to circumvent the
constitutional limitations placed upon federal jurisdiction.” Seminole Tribe of Fla. v.
Florida, 517 U.S. 44, 73 (1996).
3

The ADA was amended effective January 1, 2009 by the ADA Amendments
Act (“ADAAA”). See ADAAA, PUB. L. NO. 110-325, 122 Stat. 3553 (stating that the
ADAAA is effective as of Jan. 1, 2009). Because Plaintiff does not state when he
attended the parks or any other relevant dates, the Court does not know whether he
asserts his disability claim under the original ADA or as amended. However, because
the ADA’s statute of limitations in Georgia is two years, Griffith v. Metropolitian
Atlanta Rapid Transit Authority, 435 F. App’x 830, 831 (11th Cir. 2001), the Court
will assume for Eleventh Amendment analysis purposes here that the Plaintiff first
attended the parks and learned of the State’s discriminatory practices sometime after
October 18, 2009 and the ADAAA applies. Otherwise, Plaintiff’s claim would be
barred and the analysis under the pre-ADAAA ADA would ultimately be irrelevant.
6

AO 72A
(Rev.8/82)

guarantees of that Amendment. Id. at 518. This power “includes the authority to
both remedy and to deter violation of rights guaranteed by the Fourteenth
Amendment by prohibiting a somewhat broader swath of conduct, including
that which is not itself forbidden by the Amendment’s text.” Id. (quoting Kimel
v. Bd. of Regents, 528 U.S. 62, 81 (2000)) (internal quotations and alterations
omitted). “In other words, Congress may enact so-called prophylactic
legislation that proscribes facially constitutional conduct, in order to prevent
and deter unconstitutional conduct.” Nevada Dep’t of Human Res. v. Hibbs,
538 U.S. 721, 727-28 (2003). But, Congress’ § 5 power is not absolute; rather,
the Supreme Court has ruled that such legislation is only valid if it exhibits “a
congruence and proportionality between the injury to be prevented or remedied
and the means adopted to that end.” City of Boerne v. Flores, 521 U.S. 507, 520
(1997).
In the Eleventh Circuit, the court applies a three-step analysis to
determine whether legislation satisfies the Boerne “congruence and
proportionality” test.
Under this analysis, [the district court] must determine: (1) the
constitutional right or rights that Congress sought to enforce when
it enacted the ADA, (2) whether there was a history of
unconstitutional discrimination to support Congress's
7

AO 72A
(Rev.8/82)

determination that prophylactic legislation was necessary; and (3)
whether Title II is an appropriate response to this history and
pattern of unequal treatment.
Assoc. for Disabled Ams., Inc. v. Florida Int’l Univ., 405 F.3d 954, 957 (11th
Cir. 2005) [ hereinafter “FIU”] (citing Bd. of Trustees v. Garrett, 531 U.S. 356,
365-70 (2001)). Additionally, the Court is to consider the harm to be prevented
on a “claim-by-claim basis.” United States v. Georgia, 546 U.S. 151 (2006).
Therefore, here, the Court must determine whether Title II of the ADA is
congruent and proportional to the discrimination faced by disabled persons in
the parks and recreation context. With that background in mind, the Court will
consider each prong in turn.
1. The Right to Be Enforced.
As the Supreme Court noted in Lane, Title II–like Title I–was enacted to
enforce the Equal Protection Clause’s prohibition on “irrational disability
discrimination.” Lane, 541 U.S. at 522. Plaintiff argues that because Congress
was enforcing the Equal Protection Clause when it sought to remove barriers
for disabled persons accessing parks and recreation facilities, Congress was
enforcing a substantive Fourteenth Amendment right when it abrogated the
State’s immunity.

8

AO 72A
(Rev.8/82)

Defendants argue, however, that after the Supreme Court’s decision in
Georgia, Title II is only abrogated “insofar as the conduct at issue actually
violates the Constitution.” Dkt. No. [8-1] at 10. Defendants never state why the
conduct here does not violate the Constitution, but it appears that their argument
is that there is no separate constitutional right to “access parks and recreation
facilities”; thus, because there is not a “right to access parks,” Congress cannot
prescribe a remedy that applies to the State. See Dkt. No. [8] at 10-12; Dkt. No.
[21] at 7 (distinguishing Lane and FIU as cases involving constitutional rights
coupled with disability discrimination).
However, Defendants overstate the holding in Georgia. In Georgia, the
Supreme Court was asked to decide whether a disabled state prisoner could sue
Georgia under Title II of the ADA. 546 U.S. at 153. The pro se prisoner
alleged, inter alia, that he was wheelchair bound, that he was confined in his
cell for 23-24 hours a day without the ability to turn his wheelchair around, that
he did not have accessible showers and toilets, and that he had been left on
several occasions to sit in his own feces and urine while the prison refused to
clean up the waste. Id. at 154-55. The district court found that his Title II claims

9

AO 72A
(Rev.8/82)

were barred by the Eleventh Amendment, and the Eleventh Circuit affirmed. Id.
at 155-56.
The Supreme Court first found that a large part of the prisoner’s claims
were based on conduct that not only violated Title II but also independently
violated § 1 of the Fourteenth Amendment, such as the Eighth Amendment as
incorporated by the Due Process Clause. Id. at 157. The Court went on to state:
While the Members of this Court have disagreed regarding the
scope of Congress's “prophylactic” enforcement powers under § 5
of the Fourteenth Amendment, no one doubts that § 5 grants
Congress the power to enforce the provisions of the Amendment
by creating private remedies against the States for actual violations
of those provisions. Section 5 authorizes Congress to create a
cause of action through which the citizen may vindicate his
Fourteenth Amendment rights. This enforcement power includes
the power to abrogate state sovereign immunity by authorizing
private suits for damages against the States. Thus, insofar as Title
II creates a private cause of action for damages against the States
for conduct that actually violates the Fourteenth Amendment, Title
II validly abrogates state sovereign immunity. The Eleventh
Circuit erred in dismissing those of Goodman's Title II claims that
were based on such unconstitutional conduct.
Id. at 158-59 (internal quotations, citations, and alterations omitted) (emphasis
in original). However, because the pro se prisoner’s complaint was unclear and
because he also alleged conduct which did not appear to violate the ADA or the
Constitution, the Supreme Court remanded the action to the district court and

10

AO 72A
(Rev.8/82)

allowed the prisoner to amend to specifically state the conduct that underlay his
Title II claims. The Supreme Court noted that the plaintiff had alleged clearly
frivolous violations outside of his constitutional ones, such as demanding a
“steam table” for his housing unit, and that conduct would not have violated
Title II or, separately, the Constitution. In its remand instructions, the Court
stated the following:
Once Goodman's complaint is amended, the lower courts will be
best situated to determine in the first instance, on a claim-by-claim
basis, (1) which aspects of the State's alleged conduct violated
Title II; (2) to what extent such misconduct also violated the
Fourteenth Amendment; and (3) insofar as such misconduct
violated Title II but did not violate the Fourteenth Amendment,
whether Congress's purported abrogation of sovereign immunity as
to that class of conduct is nevertheless valid.
Id. at 159.
First, the Court finds that irrationally preventing disabled persons from
accessing state-owned parks and recreation facilities would independently
violate both the Fourteenth Amendment–the Equal Protection Clause–and Title
II. See Garrett, 531 U.S. at 366-67 (finding that legislation affecting disabled
persons receives rational-basis review under the Equal Protection Clause); 42
U.S.C. § 12132 (preventing discrimination in state services, programs, and

11

AO 72A
(Rev.8/82)

activities). Thus, on its face, Georgia’s mandate is satisfied as the alleged
conduct violates both Title II and, independently, the Fourteenth Amendment.
But, even if the conduct itself does not also implicate a separate,
fundamental right, the Court does not find that Georgia requires it. In its remand
instructions, the Court noted that the district court could properly find that
Congress abrogated immunity for conduct which violated Title II but did not
independently violate the Fourteenth Amendment. Thus, the Court left open
whether conduct which does not violate the Fourteenth Amendment could still
be properly prosecuted against the States if it violated Title II.
But, at bottom, irrational disability discrimination is all that is necessary
to come within the auspices of Congress’ § 5 powers. Protection from that evil
is explicitly found in § 1 of the Fourteenth Amendment–the Equal Protection
Clause–and Congress’ purpose in enacting Title II was to prevent that
discrimination in parks and recreation facilities. See 42 U.S.C. § 12101(a)(3).
Therefore, the Court finds that Congress’ right to be vindicated–irrational
disability discrimination in state parks and recreation facilities–passes the first
prong of Boerne’s inquiry.

12

AO 72A
(Rev.8/82)

2. History of Unconstitutional Discrimination.
Defendants next argue that Congress’ abrogation was improper because
Congress did not find a history of unconstitutional discrimination in the parks
and recreation areas. Plaintiff first argues that “the Court need not analyze the
second Beorne/FIU factor but like other district courts may adopt the Supreme
Court’s reasoning in Lane.” Dkt. No. [19] at 16. In support of that argument,
Plaintiff points to the Eleventh Circuit’s opinion in FIU. In FIU, the Eleventh
Circuit sought to determine whether Congress abrogated the State’s immunity
under Title II as applied in the public education context. Regarding the second
prong, the Circuit found the following:
The Lane Court, in analyzing the second prong of the Boerne
congruence and proportionality test, specifically noted that
Congress “document[ed] a pattern of unequal treatment in the
administration of a wide range of public services, programs and
activities, including the penal system, public education, and
voting.” Lane, 124 S. Ct. at 1989 (emphasis added). Under its
analysis of this prong, the Supreme Court considered the record
supporting Title II as a whole, and conclusively held that Congress
had documented a sufficient historical predicate of unconstitutional
disability discrimination in the provision of public services to
justify enactment of a prophylactic remedy pursuant to Congress's
authority under Section 5 of the Fourteenth Amendment. Id. at
1992. Therefore, the Supreme Court ruled that the second Boerne
inquiry was satisfied. Id.; see also, Miller v. King, 384 F.3d 1248,
1271 n.25 (11th Cir.2004) (“the Supreme Court in Lane in effect
has decided the step-two inquiry as to Title II, and we must follow
13

AO 72A
(Rev.8/82)

the Supreme Court's lead.”). Thus, the second Boerne inquiry is
satisfied in this case.
FIU, 405 F.3d at 958 (emphasis in the original). Plaintiff argues that based on
this language, the Supreme Court has per se determined that the second prong is
satisfied in any Title II context.
However, the Defendant argues that FIU4 should not be read so broadly
and that Plaintiff is required to look at the evidence in the as-applied context.
However, Defendants cite no authority for the proposition that courts after Lane
are required to conduct their own historical discrimination analysis for Title II
claims. As well, because the Eleventh Circuit has twice construed Lane as
foreclosing this prong’s analysis due to the overwhelming nature of disability
discrimination in the public fora and the fact that the Supreme Court reviewed

4

The Court also notes that in FIU the Circuit partially relied upon a footnote in
Miller v. King, 384 F.3d 1248, 1271 n.25 (11th Cir. 2004) [hereinafter “Miller I”]
which stated that “the Supreme Court in Lane in effect has decided the step-two
inquiry as to Title II, and we must follow the Supreme Court's lead.” However, after
FIU was published, Miller I was vacated in light of the Supreme Court’s decision in
Georgia that the Eleventh Amendment analysis must be done on a “claim-by-claim”
basis. Miller v. King, 449 F.3d 1149 (11th Cir. 2006) [hereinafter “Miller II”]. Thus,
Miller I is no longer good law. However, Miller II vacated Miller I because it was
unable to determine whether the first prong was established under Georgia, not the
second prong as in here, and the Circuit could not complete a proper Eleventh
Amendment analysis without the plaintiff first amending his confused complaint.
Thus, the Court is undeterred by the FIU court’s reliance on this statement as the
vacating court did not reach these grounds.
14

AO 72A
(Rev.8/82)

the record “as a whole,” the Court finds that at this stage and on this evidence,
Plaintiff has alleged a sufficient factual basis to support this prong. See Lane,
541 U.S. at 529 (“The conclusion that Congress drew from this body of
evidence is set forth in the text of the ADA itself: ‘[D]iscrimination against
individuals with disabilities persists in such critical areas as ... education,
transportation, communication, recreation, institutionalization, health services,
voting, and access to public services.’ 42 U.S.C. § 12101(a)(3). This finding,
together with the extensive record of disability discrimination that underlies it,
makes clear beyond peradventure that inadequate provision of public services
and access to public facilities was an appropriate subject for prophylactic
legislation.”) (emphasis omitted).
3. Whether Title II is an appropriate response.
Defendants argue that Title II is not an appropriate response as the
implementing regulations exceed Title II’s statutory authority and that Plaintiff
cannot use the implementing regulations as a private right of action. However,
Plaintiff maintains he is not suing under the regulations as a distinct claim,
rather he is suing under the statute. And, as seen in FIU, the court looks to the
regulations to determine whether the statute is appropriate as those regulations

15

AO 72A
(Rev.8/82)

were taken subject to the statute’s authority. See FIU, 405 F.3d at 959 & n.5
(looking to Title II’s regulations to determine whether the statute is an
appropriate response); see also Lane, 541 U.S. at 532 (looking to the regulations
to determine if Title II is an appropriate response). Though the Court finds that
Plaintiff is not attempting to assert a private right of action in the regulations, he
has alleged the violations of a number of regulations in support of his cause of
action. The regulations have been amended since the parties briefed this matter.
See DOJ, Amendment of Title II and Title III Regulations, available at
http://www.ada.gov/regs2010/ADAregs2010.htm (stating that the regulations
went in force March 12, 2012). Because it is not clear what regulations, or
editions thereof, are at issue here, the Court will GRANT Defendants’ Motion
for More Definite Statement and allow Plaintiff the opportunity to plead which
regulations apply to these claims and to set out with sufficient specificity what
architectural barriers exist5. In its current state, Plaintiff’s complaint is too
general for the Court to determine whether Title II is an appropriate response.6

5

Defendant asserts that Plaintiff has failed to allege facts that are critical to the
analysis of his claim. The Court agrees and orders Plaintiff to allege specific facts that
he contends support his claim.
6

However, the Court is mindful that discovery has not yet occurred in this case
and will hold the Plaintiff to the appropriate pleading standard. Nonetheless, the
16

AO 72A
(Rev.8/82)

B. RA
Defendants next argue that the Court does not have subject matter
jurisdiction over Plaintiff’s RA claim because Plaintiff has not set out with
sufficient factual detail which federal funds the Defendants have accepted, and
the receipt of federal funds is critical to waiver of their Eleventh Amendment
immunity. See 42 U.S.C. § 2000d-7 (“A State shall not be immune under the
Eleventh Amendment of the Constitution of the United States from suit in
Federal court for a violation of section 504 of the Rehabilitation Act of 1973 . . .
or the provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.”); Garrett v. University of Ala. at
Birmingham, 344 F.3d 1288, 1293 (11th Cir. 2003) (“Section 2000d-7
unambiguously conditions the receipt of federal funds on a waiver of Eleventh
Amendment immunity to claims under section 504 of the Rehabilitation Act. By
continuing to accept federal funds, the state agencies have waived their
immunity.”). However, Plaintiff has plead that “[u]pon reasonable belief, the
Defendants[] are the recipient of [f]ederal [f]unds.” Cmpl., Dkt. No. [1] at ¶ 32.
Because what funds the Defendants have received are facts within Defendants’
current complaint does not have the requisite specificity for the Court or Defendants
to determine if it states a claim under the appropriate regulations.
17

AO 72A
(Rev.8/82)

control, the Court finds that Plaintiff has plead a sufficient factual basis for
Eleventh Amendment waiver as to the RA claim. However, should discovery
prove that federal funds were not received, Defendants may move for summary
judgment on this ground at any time.7
C. Conclusion
Defendants’ Motion [8] is GRANTED, in part. Specifically, Plaintiff
shall file an amended complaint within 21 days of this Order which specifies
which regulations were violated by Defendants’ conduct and provides sufficient
specificity for the Court to determine whether Plaintiff’s claims are plausibly
plead. On all other issues, the Court will DENY the motion with the right to
refile. Following the filing of Plaintiff’s amended complaint, Defendants may
refile, within 14 days, their motion addressing the remaining Eleventh
Amendment challenge to Title II (congruence and proportionality), Eleventh

7

Notably, Defendants have not made a factual challenge to this Court’s
jurisdiction by arguing or demonstrating that they do not receive federal funds. Rather,
their argument is that Plaintiff has not properly plead which federal funds they
receive. Because discovery has not occurred, the Court finds that Defendants
arguments are premature since Plaintiff has not had the opportunity to conduct
discovery on this matter. As Plaintiff has alleged that Defendants receive federal
funds, this allegation is sufficient in a facial jurisdictional challenge.
18

AO 72A
(Rev.8/82)

Amendment challenges under the Ex Parte Young exceptions, and whether
Plaintiff’s newly plead claims state a claim.
SO ORDERED, this 15th

day of August, 2012.

________________________________
RICHARD W. STORY
United States District Judge

19

AO 72A
(Rev.8/82)