Fernandez v. Frank et al
Filing
125
ORDER Granting (1) Defendantsd Sanj Sappal And Securitas's Motion For Summary Judgment, (2) Defendants Clayton Frank and Paul McIntire's Motion For Summary Judgment, And (3) Defendant Saturino Gervacio's Motion For Summary Judgment in re 63 , 68 & 85 . Signed by JUDGE SUSAN OKI MOLLWAY on 3/23/12. Judgment is entered in favor of Defendants and case is closed. (gls, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notificat ions received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
AMBROSE S. FERNANDEZ, JR.,
Plaintiff,
V.
DIRECTOR CLAYTON FRANK;
INSPECTOR NINO;
STATE SHERIFF PAUL McINTYRE;
DEPARTMENT OF PUBLIC SAFETY;
SANJ SAPPEL; SECURITAS
SECURITY SERVICES USA, INC.;
DOES 1-10,
Defendants.
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CIVIL NO. 10-00573 SOM/BMK
ORDER GRANTING (1) DEFENDANTS
SANJ SAPPAL AND SECURITAS’S
MOTION FOR SUMMARY JUDGMENT,
(2) DEFENDANTS CLAYTON FRANK
AND PAUL McINTIRE’S MOTION
FOR SUMMARY JUDGMENT, AND (3)
DEFENDANT SATURINO GERVACIO’S
MOTION FOR SUMMARY JUDGMENT
ORDER GRANTING (1) DEFENDANTS SANJ SAPPAL AND SECURITAS’S
MOTION FOR SUMMARY JUDGMENT, (2) DEFENDANTS CLAYTON
FRANK AND PAUL McINTIRE’S MOTION FOR SUMMARY JUDGMENT, AND
(3) DEFENDANT SATURINO GERVACIO’S MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION.
On October 25, 2011, pro se Plaintiff Ambrose S.
Fernandez, Jr. (“Fernandez”), filed his Amended Complaint.
for Amended Compl., Oct. 25, 2011, ECF No. 57.
Mot.
The Amended
Complaint asserts claims under the “American with Disabilities
Act of 1990” and an unidentified “Repealed Accessibility Law.”
Amended Compl. at 20, 23.
Fernandez claims that he was
discriminated against at the Hawaii Supreme Court building by
security personnel because of his disability.
His alleged
disability relates to the cardiac defibrillator implanted in his
chest.
Fernandez also generally takes issue with the way in
which people with disabilities are accommodated at the Hawaii
Supreme Court building.
The court construes the Amended
Complaint as asserting violations of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.
Defendants Clayton Frank, Director of the Department
of Public Safety (“DPS”);1 Sheriff Paul McIntire (incorrectly
named as “Paul MacIntyre”); Securitas Security Services USA, Inc.
(“Securitas”); Sanj Sappal, the Area Vice President of Securitas
(incorrectly named as “Sanj Sappel”); and Saturino Gervacio
(named as “Inspector Nino”) now seek summary judgment.
Def.
Director Clayton Frank, Department of Public Safety, and Paul
McIntire’s Mot. for Summ. J., Nov. 15, 2011, ECF. No. 63;
Defendants Sanj Sappal and Securitas Security Services USA,
1
The caption of the Amended Complaint appears to list DPS
not as a named party but instead as part of the identification of
Frank. That is, the caption appears to say that Director Frank
of the DPS (followed in the caption by a street address) is sued,
not that DPS itself is sued. However, the text of the Amended
Complaint refers repeatedly to “the State.” The court has before
it a summary judgment motion brought by “State Defendants,” who
are defined somewhat ambiguously as “Defendants Director Clayton
Frank, Department of Public Safety, and Paul McIntire.” The
memorandum in support of that motion does not analyze any of
Fernandez’s claims as being brought against DPS. The Answer to
the Complaint, filed on November 4, 2010, ECF No. 7, and a Notice
of Appearance filed by counsel on June 29, 2011, ECF No. 34,
similarly refer to “Director Clayton Frank, Department of Public
Safety, Paul McIntire.” (When the name of a document as entered
in the case docket differs from the title on the actual document,
as with ECF No. 34, the court relies on the title of the actual
document.) The court notes that Fernandez served the original
Complaint on Frank and McIntire, but does not appear to have
served DPS as a separate Defendant. ECF No. 9. The court
therefore proceeds with the understanding that DPS is not itself
a party to this action.
2
Inc.’s Mot. for Summ. J., Nov. 15, 2011, ECF No. 68; Defendant
Saturino Gervacio aka Inspector Nino’s Mot. for Summ. J., Dec.
21, 2011, ECF No. 85.
The court grants the motions on multiple
grounds.
II.
LEGAL STANDARD.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).
Fed.
A moving party has both the initial burden of
production and the ultimate burden of persuasion on a motion for
summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos.,
210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court “the portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller
Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006).
“A fact is
material if it could affect the outcome of the suit under the
governing substantive law.”
Miller, 454 F.3d at 987.
When the
moving party bears the burden of proof at trial, that party must
satisfy its burden with respect to the motion for summary
judgment by coming forward with affirmative evidence that would
3
entitle it to a directed verdict if the evidence were
uncontroverted at trial.
Id. (quoting C.A.R. Transp. Brokerage
Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir.
2000)).
When the nonmoving party bears the burden of proof on
one or more issues at trial, the party moving for summary
judgment may satisfy its burden with respect to those issues by
pointing out to the court an absence of evidence from the
nonmoving party.
Miller, 454 F.3d at 987.
When the moving party meets its initial burden on a
summary judgment motion, “[t]he burden then shifts to the
nonmoving party to establish, beyond the pleadings, that there is
a genuine issue for trial.”
The court must not weigh the
Id.
evidence or determine the truth of the matter but only determine
whether there is a genuine issue for trial.
See Balint v. Carson
City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999).
On a summary
judgment motion, “the nonmoving party’s evidence is to be
believed, and all justifiable inferences are to be drawn in that
party’s favor.”
Miller, 454 F.3d at 988 (brackets omitted)
(quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
III.
BACKGROUND FACTS.
A.
Fernandez’s Filings.
It is difficult to tell what facts give rise to
Fernandez’s claims and what conduct by Defendants Fernandez is
complaining about.
Although Fernandez does submit affidavits,
4
they go to events relating to the service of documents, not to
the underlying events.
In an attempt to understand what
Fernandez is claiming, the court is drawing on details from the
Amended Complaint and the numerous other documents Fernandez has
filed, even though, except for the affidavits, they do not
present evidence in admissible form.
See Fraser v. Goodale, 342
F.3d 1032, 1046 (9th Cir. 2003) (“At the summary judgment stage,
we do not focus on the admissibility of the evidence's form.
We
instead focus on the admissibility of its contents.” (citing
Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir.
2001) (“To survive summary judgment, a party does not necessarily
have to produce evidence in a form that would be admissible at
trial, as long as the party satisfies the requirements of Federal
Rules of Civil Procedure 56.”), and Fed. Deposit Ins. Corp. v.
N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) (“the nonmoving
party need not produce evidence in a form that would be
admissible at trial in order to avoid summary judgment.”
(citations and quotation marks omitted))).
From what the court can discern, prior to August 25,
2010, Fernandez was parking at the Hawaii Supreme Court and
actually entering the building to use the Hawaii Supreme Court
library, which is open to the public.
Amended Compl. ¶ 26.
On
August 25, 2010, Fernandez again went to the Hawaii Supreme Court
to use the library.
Although Fernandez’s papers do not clearly
5
say so, the court surmises that Fernandez declined to walk though
the magnetometer at the entrance out of concern that it might
affect the defibrillator implanted in him.
Fernandez says he
told Gervacio, allegedly on duty as a security guard, not to
touch his upper body.
Fernandez apparently wanted to be searched
with a handheld wand, but, because Gervacio allegedly had no
wand, allowed Gervacio to pat him down from the waist down.
Mot.
to Deny Def. Saturino Gervacio aka Inspector Nino’s Concise
Statement of Deny Facts in Support of Mot. for Summ. J. Filed
December 19, 2011, at 4, Jan. 13, 2012, ECF No. 95-1.
From the
period after August 25, 2010, until September 2, 2010, Fernandez
allegedly entered the Hawaii Supreme Court building through the
main entrance.
Amended Compl. ¶ 39.
He further alleges that
“Security System Inspectors (Filipinos)” and the Department of
Public Safety Officer on duty improperly touched him, and that
they did not have a metal-detecting wand to use to inspect
someone who, like him, had a defibrillator.
Id. ¶¶ 39-40.
He
alleges that he was retaliated against and threatened by
Defendant McIntire in an undescribed manner.
Id. ¶ 45.
Fernandez appears to further allege that Securitas,
the Department of Public Safety, and an inspector (presumably
Gervacio) lack training, and improperly continue to “pat down”
individuals who come to the Hawaii Supreme Court building and
engage in a pattern of oppression, malicious misrepresentation,
6
and misconduct.
Id. ¶ 42.
Fernandez also points to various alleged deficiencies
at the Hawaii Supreme Court building that, according to
Fernandez, the State of Hawaii must correct to bring the building
into compliance with Title II of the Americans with Disabilities
Act.
Amended Compl. ¶ 27.
For example, Fernandez states, “The
curb ramp at front of the Supreme Court building contains an
abrupt change in level greater than 1/4 inch.”
Id. ¶ 31.
He
suggests that the curb ramp be altered “so that it does not
contain [an] abrupt change in level greater than 1/4 inch.”
Id.
The Amended Complaint is accompanied by various exhibits that
range from the text of statutes, regulations, and ordinances, to
diagrams of proper “maneuvering clearances at doors,” and photos
and diagrams of the Hawaii Supreme Court building.
See ECF Nos.
57-1 to 57-14.2
B.
Defendants’ Version.
According to Defendants, on August 25, 2010, Fernandez
attempted to enter the Hawaii Supreme Court building.
See Decl.
of Saturino Gervacio ¶¶ 2-3, Dec. 21, 2011, ECF No. 85-2.
2
Many of Fernandez’s filings violate Local Rule 7.4, which
permits a party to file one opposition to each motion and
requires any opposition to be filed not less than twenty-one days
before the hearing on that motion. Fernandez has filed seven
documents in connection with the three motions in issue.
Although Rule 7.4 permits the court to strike those documents,
the court considers all of Fernandez’s filings, given his pro se
status.
7
Gervacio says he was working as a security guard at the security
check point at the building’s main entrance.
Id. ¶ 3.
At the
check point, Fernandez allegedly told Gervacio that, if Gervacio
touched him, Fernandez would sue him.
that he did not touch Fernandez.
Id.
Gervacio maintains
Id. ¶¶ 5-8.
At some point during Gervacio’s encounter with
Fernandez, McIntire, a uniformed patrol deputy on duty at the
Hawaii Supreme Court Building, received a call about a
disturbance at the entrance of the building.
McIntire ¶ 3, ECF No. 65-2.
Decl. of Paul
McIntire says that Fernandez told
him he wanted to go to the law library in the building.
Id.
Fernandez also allegedly said that he could not be screened by
security because of his defibrillator.
Id.
McIntire says that
he told Fernandez he could either go through the metal detector,
be screened with a metal-detecting wand, or be patted down.
Id.
According to McIntire, Fernandez refused all three options, so
McIntire gave Fernandez the fourth option of turning his belt
around, turning his pockets inside out, and taking off his shoes.
Id.
McIntire says that, at that point, Fernandez became
“belligerent and irate.”
Id. ¶ 4.
He allegedly threatened to
sue anyone who touched him and began “ranting and raving” about
being discriminated against and harassed.
Id.
McIntire recalls
that Fernandez eventually left the Hawaii Supreme Court without
entering the building.
Id.
McIntire also maintains that he did
8
not touch Fernandez.
Id. ¶ 6.
A sign at the front of the Hawaii Supreme Court
building states, “All individuals entering this secured area are
required to pass through security screening.
refusing to comply will be denied entry.”
Any individual
McIntire Decl. ¶ 8;
Id. Ex. A.
C.
Fernandez’s Facts as Stated at the Hearing.
Given the different accounts and the unclear nature of
Fernandez’s filings, the court questioned Fernandez at length at
the hearing on the present motions about what had happened to him
at the Hawaii Supreme Court.
Although Fernandez’s answers to the
court’s questions were sometimes contradictory, they provided
more clarity than his papers.
His statements at the hearing were
not in admissible format, but the court, bending over backwards
given Fernandez’s pro se status and keeping Fraser in mind,
considers those statements here.
At the hearing, Fernandez said that he had been a
frequent visitor to the Hawaii Supreme Court library for years.
He said that, on August 25, 2010, in what Fernandez suggested was
a departure from earlier practice, he was patted down, from the
waist down, by security personnel.
Fernandez said that he told
the security officers that he was permitting them to do the pat
down on that day only.
Fernandez denied that he was offered
other options, such as having a metal-detecting wand passed over
9
him, or turning his belt around and taking off his shoes.
According to Fernandez, after that day the security officers
patted him down every time he went to the Hawaii Supreme Court.
Fernandez said that he had more than thirty pat downs there, then
stopped going to that library.
Fernandez did not like the way the pat downs felt, but
they were apparently not painful.
He contended that the Hawaii
Supreme Court’s security personnel did not have a metal-detecting
wand; he may have been complaining that they should have had a
wand designed to be used to search people with implanted
defibrillators.
Fernandez says that his doctor told him at a
later point that his defibrillator had moved out of its proper
position.
Fernandez claimed that he could not imagine how that
could have happened other than while he was being patted down,
although Fernandez did not indicate that he had ever been patted
down above his waist.
IV.
ANALYSIS.
The allegations in Fernandez’s Amended Complaint and
his statements at the hearing on this motion suggest that he is
bringing two claims.
First, he is complaining that he was
discriminated against when he tried to enter the Hawaii Supreme
Court building on and after August 25, 2010.
Second, he is
claiming that the Hawaii Supreme Court building violates the ADA
by being inaccessible to people with disabilities.
10
The Amended
Complaint itself asserts two claims, one titled “Claims under the
American with Disabilities Act of 1990,” and the other titled
“Claims Under Repealed Accessibility Law.”
The court begins by
analyzing the claims that do not involve disputed facts.
A.
Fernandez Lacks Standing to Assert That the Hawaii
Supreme Court Building is Not in Compliance With
the ADA.
With respect to Fernandez’s allegations in the Amended
Complaint that the Hawaii Supreme Court premises violate the ADA,
Fernandez fails to establish that he has standing to bring such
claims.
A federal court does not have subject-matter
jurisdiction over a suit by a plaintiff who lacks standing.
Cetacean Cmty. v. Bush, 386 F.3d 1169, 1174 (9th Cir. 2004).
As the party invoking federal jurisdiction, Fernandez
bears the burden of establishing his standing to sue.
To do so,
he must demonstrate that (1) he suffers an actual or threatened
injury; (2) the injury is fairly traceable to the challenged
action; and (3) the injury is likely to be redressed by a
favorable decision.
555, 560 (1992).
Lujan v. Defenders of Wildlife, 504 U.S.
Fernandez does not allege that he was actually
injured by any of the alleged deficiencies that he identifies,
such as the lack of an accessible parking stall or curb ramps
with abrupt changes in height.
He was apparently able to enter
the Hawaii Supreme Court building for many years and does not
provide any facts suggesting any difficulty caused to him
11
personally.
Even assuming the premises should be changed to
comply with applicable law, Fernandez does not allege that the
corrections he says are appropriate are necessary to accommodate
his own disability.
For example, if Fernandez does not himself
visit the building in a van, he has no standing to complain about
the alleged lack of a van-accessible parking space.
Similarly,
if he does not himself use a ramp for access, he has no standing
to complain that the ramp is too steep.
Nor does Fernandez
indicate that he plans or desires to visit the Hawaii Supreme
Court in the near future, but is deterred or prevented from doing
so by the alleged deficiencies.
Fernandez’s dispute, as he explained at the hearing,
ultimately relates to security procedures, not to problems with
the building itself.
As Fernandez does not establish that he has
suffered or will suffer any actual injury traceable to the
deficiencies he identifies in the Amended Complaint, he does not
establish standing.
Summary judgment is therefore warranted as
to all Defendants with respect to any claim based on alleged
deficiencies in the manner in which the Hawaii Supreme Court
building or premises accommodate people with disabilities.
B.
Fernandez Does Not Have a Viable Claim Under Title
III of the ADA.
The first claim in the Amended Complaint cites 42
U.S.C. § 12182(a) and 42 U.S.C. § 12183.
12183 fall under Title III of the ADA.
12
Sections 12182 and
See, e.g., Lonberg v.
Sanborn Theaters, Inc., 259 F.3d 1029, 1032 (9th Cir. 2001)
(stating that Title III includes 42 U.S.C. § 12181 et seq).
Section 12182(a) states:
No 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.
Section 12183 relates to construction and alterations in public
accommodations and commercial facilities.
Although Title III relates to public accommodations
and services, those must be “operated by private entities” to
fall under Title III.
Enyart v. National Conference of Bar
Examiners, Inc., 630 F.3d 1153, 1160 (9th Cir. 2011) (emphasis
added).
“To prevail on a discrimination claim under Title III, a
plaintiff must show that: (1) he is disabled within the meaning
of the ADA; (2) the defendant is a private entity that owns,
leases, or operates a place of public accommodation; and (3) the
plaintiff was denied public accommodations by the defendant
because of his disability.”
Arizona ex. rel. Goddard v. Harkins
Amusement Enterprises, Inc., 630 F.3d 666, 670 (9th Cir. 2010)
(citations omitted).
In addition, under § 12183, only an “owner,
lessee, lessor, or operator of a noncompliant public
accommodation can be liable . . . for the ‘design and construct’
discrimination described in [that section].”
13
Lonberg, 259 F.3d
at 1036 (quoting 42 U.S.C. § 12183(a)).
Fernandez’s claim is based on alleged misconduct by a
security guard at the Hawaii Supreme Court building.
He presents
no evidence showing that the guard or any other named Defendant
is a private entity that owns, leases, or operates a place of
public accommodation.
Fernandez therefore asserts no viable
claim under Title III of the ADA.
C.
Fernandez Cannot Bring Claims Under Any “Repealed
Accessibility Law.”
Summary judgment is granted in favor of all Defendants
with respect to the second claim asserted in the Amended
Complaint because it does not assert a cognizable claim.
Fernandez asserts “claims under repealed accessibility law.”
Fernandez cannot bring claims pursuant to laws that have been
repealed.
D.
Fernandez Does Not Assert Triable Claims Under
Title II of the ADA.
The court turns now to the heart of this case, which
appears to be alleged violations of Title II of the ADA, 42
U.S.C. § 12131 et seq.
It is Title II, which is not mentioned in
the Amended Complaint, that relates to state and local
governments.
See, e.g., Enyart, 630 F.3d at 1160.
Under 42
U.S.C. § 12132, “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
14
by any such entity.”
To succeed on a Title II claim, Fernandez must show
that “(1) he is an individual with a disability; (2) he is
otherwise qualified to participate in or receive the benefit of
some public entity's services, programs, or activities; (3) he
was either excluded from participation in or denied the benefits
of the public entity's services, programs, or activities, or was
otherwise discriminated against by the public entity; and
(4) such exclusion, denial of benefits, or discrimination was by
reason of his disability.”
O’Guinn v. Lovelock Corr. Ctr., 502
F.3d 1056, 1060 (9th Cir. 2007) (citations and quotation marks
omitted).
Section 12132 is “intended to prohibit outright
discrimination, as well as those forms of discrimination which
deny disabled persons public services disproportionately due to
their disability.”
Cir. 1996).
Crowder v. Kitagawa, 81 F.3d 1480, 1483 (9th
According to the Ninth Circuit, in § 12101(a)(5), a
congressional finding, “Congress declared its intent to address
‘outright intentional exclusion’ as well as ‘the discriminatory
effects of architectural, transportation, and communication
barriers, overprotective rules and policies, [and] failure to
make modifications to existing facilities and practices.’”
(quoting 42 U.S.C. § 12101(a)(5)).
Id.
Title II therefore covers “at
least some so-called disparate impact cases of discrimination,
15
for the barriers to full participation listed above are almost
all facially neutral but may work to effectuate discrimination
against disabled persons.”
Id.
Crowder provides a good overview of the law as it
applies to this case.
Crowder examined whether a facially
neutral policy, Hawaii’s requirement that all carnivorous animals
be quarantined for 120 days upon entering the state, violated the
ADA.
The quarantine requirement, designed to prevent the
bringing of rabies-infected animals to Hawaii, was challenged by
visually impaired plaintiffs, who contended that the quarantining
of their guide dogs denied them “meaningful access” to stateprovided services.
Id. at 1484-85.
The Ninth Circuit agreed
that, while their guide dogs were quarantined, the plaintiffs
could not use a variety of public services, such as public
transportation and public parks.
Id. at 1484.
The ADA therefore
required Hawaii to make “reasonable modifications” to its
quarantine policy to accommodate the plaintiffs, unless the
modifications would “fundamentally alter the nature of the
service, program, or activity.”
Id. (quoting 28 C.F.R.
§ 35.130(b)(7)).
The Ninth Circuit held that there was a genuine issue
of material fact as to whether the plaintiffs’ proposed
modifications to Hawaii’s policy amounted to a “reasonable
modification” or a fundamental alteration.
16
Id. at 1485.
The
plaintiffs had sought an exemption from the quarantine policy and
contended that Hawaii could instead implement more effective
alternatives to prevent guide dogs from importing rabies into the
state, such as using a vaccine or testing the dogs before
admission into Hawaii.
Id. at 1482.
Reversing the district
court’s grant of summary judgment, the Ninth Circuit remanded the
case.
Fernandez is asserting that he was denied meaningful
access to the Hawaii Supreme Court building by the security
procedures there.
It is not clear whether Fernandez is asserting
his Title II claim against all Defendants, but in case he is, the
court discusses all Defendants.
1.
Securitas and Sappal.
Securitas and Sappal seek summary judgment on the
ground that they had nothing to do with the events Fernandez
complains about.
Securitas is a company that its Area Vice
President, Sappal, says does not now provide and has never
provided private guard services at the Hawaii Supreme Court.
Decl. of Sanj Sappal ¶ 2, ECF No. 69–1.
evidence to the contrary.
Fernandez provides no
Fernandez says only that he included
Securitas and Sappal as Defendants because, on October 25, 2010,
when Fernandez served Gervacio with the Complaint, Gervacio
allegedly told him that he was employed by Securitas.
Ambrose S. Fernandez, Jr. ¶¶ 2-3, ECF No. 77-1.
17
Aff. of
Gervacio’s
statement is not evidence that he actually worked for Securitas
on August 25, 2010, or on any other date on which Fernandez was
allegedly patted down.
Nor is there evidence that any other
Securitas employee was involved with patting down Fernandez at
the Hawaii Supreme Court.
In fact, there is no evidence that
Gervacio’s alleged statement that he worked for Securitas was
even true in October 2010.
Even accepting as true Fernandez’s
allegation that Gervacio said he worked for Securitas, if what
Gervacio said was not true, Securitas and Sappal do not belong in
this case.
Given the absence of evidence that Securitas or
Sappal had anything to do with what Fernandez complains about,
Securitas and Sappal are entitled to summary judgment.
2.
Frank, McIntire, and Gervacio.
With respect to Frank and McIntire, Fernandez does not
make clear whether he is suing them in their individual
capacities or in their official capacities.3
With respect to
Gervacio, it is unclear whether Fernandez is suing him as an
agent of the State, or as a private individual.
Gervacio was
assigned to serve as a security guard at the Hawaii Supreme Court
building on August, 25, 2010.
Saturino Gervacio Decl. ¶ 2, ECF
3
The Amended Complaint lists Frank and McIntire in the
caption, but the body of the pleading does not describe actions
by Frank at all. The body of the pleading refers to Bruce Coppa,
who is not listed in the case caption, but does not indicate what
Coppa is being sued for having done. Bruce Coppa has not
appeared in this action (presumably because he was not served),
and the court does not treat him as a party.
18
No. 85-2.
It appears that he was employed by a private security
company that had a contract with the State, even though that fact
was not explicitly stated by Gervacio in his papers.
The parties
do not raise as an issue whether Title II permits suits against
privately employed individuals who appear to be acting as State
agents.
The court assumes without determining that, for purposes
of the pending motions, Fernandez may sue Gervacio under Title II
in his alleged capacity as a State agent.
To the extent
Fernandez brings his Title II claims against Gervaio as a State
agent, it is also unclear whether those claims are brought
against him in his individual or official capacity.
Fernandez
appears to seek both money damages and injunctive relief from all
Defendants.
a.
State Defendants Sued in Their
Individual Capacities.
Relevant case law suggests that Fernandez cannot bring
Title II claims against Frank, McIntire, and Gervacio in their
individual capacities.
Although the Ninth Circuit has declined
to reach this issue, see Eason v. Clark Cnty. Sch. Dist., 303
F.3d 1137, 1145 (9th Cir. 2002),4 the Seventh Circuit, Eighth
Circuit, and some district courts in the Ninth Circuit have
determined that public actors cannot be sued in their individual
4
There are some unpublished Ninth Circuit decisions that
address the issue but, as those were issued before Ninth Circuit
rules permitted citation to unpublished Ninth Circuit rulings,
the court does not rely on them here.
19
capacities directly under Title II of the ADA.
See, e.g., Walker
v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000), overruled on other
grounds by Bd. of Trs. of Univ. of Ala. v. Garrett, 531 U.S. 356
(2001); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th
Cir. 1999) (en banc); Hunter v. Clark, 2010 WL 2196684, at *2
(E.D. Cal. May 28, 2010); Gonzales v. Dexter, 2008 WL 4275783, *6
(C.D. Cal. Sept. 4, 2008).
In Thomas v. Nakatani, 128 F. Supp.
2d 684, 692 (D. Haw. 2000), another judge in this district
reached the same conclusion, based in part on the Eighth and
Seventh Circuit’s decisions in Walker and Alsbrook.
This court, however, need not make a determination as
to that issue here.
Even assuming that Fernandez may sue Frank,
McIntire, and Gervacio in their individual capacities, they are
entitled to summary judgment because they have qualified immunity
with respect to claims for money damages, and Fernandez does not
appear to seek injunctive relief from them in their individual
capacities.
“[G]overnment officials performing discretionary
functions [are entitled to] a qualified immunity, shielding them
from civil damages liability as long as their actions could
reasonably have been thought consistent with the rights they are
alleged to have violated.”
Anderson v. Creighton, 483 U.S. 635,
638 (1987) (citations omitted).
“The qualified immunity defense
shields government agents from liability for civil damages
20
insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known.”
Kwai Fun Wong v. United States, 373 F.3d 982,
951 (9th Cir. 2004) (internal quotation marks, modifications, and
citations omitted).
The Supreme Court has set forth a two-pronged analysis
for resolving government officials’ assertions of qualified
immunity.
See Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part on other grounds by Pearson v. Callahan, 555
U.S. 223 (2009).
On the first prong, the court inquires “whether, taken
in the light most favorable to the party asserting the injury,
that party has established a violation of a federal right.”
Preschooler II v. Clark Cnty. Sch. Bd. of Trustees, 479 F.3d
1175, 1179 (9th Cir. 2007) (citing Saucier, 533 U.S. at 201).
The second prong requires the court to determine
whether such right was clearly established at the time of the
alleged violation.
Saucier, 533 U.S. at 201; Scott v. Harris,
550 U.S. 372, 377 (2007).
A plaintiff bears the burden of
proving that the right allegedly violated was clearly established
at the time of the violation.
If the plaintiff meets this
burden, then the defendant bears the burden of establishing that
the defendant reasonably believed the alleged conduct was lawful.
See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir. 2002); Trevino
21
v. Gates, 99 F.3d 911, 916-17 (9th Cir. 1996).
Whether an act is a violation of a federal right and
whether the right was clearly established at the time of the
violation are pure legal questions for the court.
See Martinez,
323 F.3d at 1183.
With respect to the first prong, even assuming
Fernandez’s factual allegations are true, he does not state a
violation by Frank, McIntire, or Gervacio of any federal right.
For one thing, Fernandez does not cite, and the court has not
found, any federal law prohibiting a pat down security search at
a public facility.
Nor has Fernandez cited any federal law
requiring the use of a wand by personnel at a public facility.
With respect to Frank and McIntire, Fernandez does not even
allege that they actually searched Fernandez or ordered anyone
else to search Fernandez.
While Fernandez denies that he was
offered the options McIntire says he offered, the court is
unaware of any federal law providing that a reasonable pat down
constitutes a failure to accommodate a disability.
With respect to the second qualified immunity prong,
nothing in the record suggests that it was clearly established
that the ADA or any other law required the Hawaii Supreme Court
building to have the metal-detecting wand that Fernandez
complains it lacked, or that a pat down, performed as part of a
routine security screening, constituted a denial of meaningful
22
access to a public facility.
Fernandez, who bears the burden of
showing that federal law is clearly established as to the matter
in issue, see Sorrels, 290 F.3d at 969, makes no argument on this
point.
Indeed, at the hearing before this court, Fernandez
conceded that he was unaware of any law requiring the use of the
wand he says should have been used.
To the extent Fernandez seeks prospective injunctive
relief against Frank, McIntire, and Gervacio in their individual
capacities, those claims would not be precluded by their
qualified immunity.
See Hydrick v. Hunter, 2012 WL 89157, at *1
(9th Cir. Jan. 12, 2012) (citing Center for Bio–Ethical Reform,
Inc. v. Los Angeles Cnty. Sheriff Dept., 533 F.3d 780, 794–95
(9th Cir. 2008), and Los Angeles Police Protective League v.
Gates, 995 F.2d 1469, 1472 (9th Cir. 1993)).
However, as
Fernandez appears to be asking Defendants to change current
security procedures at the Hawaii Supreme Court, his injunctive
relief claims are more properly directed at those Defendants in
their official capacities.
b.
State Defendants Sued in Their Official
Capacities.
Title II does allow a plaintiff to sue state
defendants in their official capacities.
barred by qualified immunity.
Such claims are not
See, e.g., Community House, Inc.
v. Boise, Idaho, 623 F.3d 945, 965 (9th Cir. 2010) (“Qualified
immunity . . . is a defense available only to government
23
officials sued in their individual capacities.
It is not
available to those sued only in their official capacities.”
(citing Eng v. Cooley, 552 F.3d 1062, 1064 n. 1 (9th Cir. 2009),
and Kentucky v. Graham, 473 U.S. 159, 165-68 (1985)).
Nor are
they barred by the Eleventh Amendment, as states do not have
Eleventh Amendment immunity with respect to claims brought under
Title II of the ADA.
See Phiffer v. Columbia River Corr. Inst.,
343 F.3d 791, 793 (9th Cir. 2004) (citations omitted); see also
Tennessee v. Lane, 541 U.S. 509, 533-534 (2004) (“Title II, as it
applies to the class of cases implicating the fundamental right
of access to the courts, constitutes a valid exercise of
Congress' § 5 authority to enforce the guarantees of the
Fourteenth Amendment.”).
The remaining claims are therefore Fernandez’s Title
II claims against Frank, McIntire, and Gervacio in their official
capacities for both injunctive and monetary relief and against
Gervacio to the extent Fernandez is suing him as a private actor.
Fernandez is not entitled to injunctive relief from
Frank, McIntire, and Gervacio because there is no evidence that
they are presently taking any action relevant to Fernandez.
Not
only does Fernandez fail to identify any such activity, he
indicated at the hearing before this court that he no longer goes
to the Hawaii Supreme Court.
He stated no intent or desire to
resume visiting that building.
More importantly, it is only
24
wrongful activity that would be enjoined, and, as discussed later
in this order, Fernandez does not establish that a pat down is
illegal.
The court turns now to any claim Fernandez may be
bringing under Title II for money damages against Frank,
McIntire, and Gervacio.
The court first questions whether, to
the extent Fernandez is suing Gervacio as a private actor, such a
claim is cognizable under Title II.
discrimination by a “public entity.”
Title II expressly prohibits
42 U.S.C. § 12132.
However, regardless of whether Fernandez is suing Gervacio as a
State actor or a private actor, there is no triable issue as to
whether Gervacio, or any other Defendant, discriminated against
Fernandez in violation of Title II.
Gervacio’s moving papers do not indicate whether
Fernandez entered the Hawaii Supreme Court on August 25, 2010.
Frank and McIntire’s moving papers say that Fernandez left
without entering the building.
Fernandez’s papers make no
statement as to whether he did or did not enter that day, but at
the hearing he said that he allowed himself to be patted down and
entered the building that day.
If the court accepts as true
Fernandez’s oral statement, then he was not “excluded from
participation in or denied the benefits of” any service provided
by the Hawaii Supreme Court on August 25, 2010.
F.3d at 1060.
See O’Guinn, 502
Even if the court does not consider Fernandez’s
oral statement and assumes that he left the building without
25
entering on August 25, 2010, and that he thereafter would have
returned but for security personnel’s insistence on patting him
down given the alleged lack of an appropriate wand, Fernandez’s
Title II claim fails.
With respect to being patted down, Fernandez appears
to allege that he was constructively denied access to the Hawaii
Supreme Court building by being compelled to allow a pat down
when he declined to walk through the magnetometer.
Fernandez
asserts that the pat down is a form of discrimination against him
based on his disability.
Fernandez is not disputing that he may
be screened for security purposes.
manner of the screening.
He nowhere contends that the pat down
was painful or humiliating.
being patted down.
His complaint is with the
At most, he says he does not like
When questioned specifically about the
incident on August 25, 2010, Fernandez could not identify what he
did not like about the pat down.
He said that, after being
patted down on numerous occasions, he felt that “enough is
enough.”
Fernandez said that the security guards already knew
him from his frequent visits to the Hawaii Supreme Court and did
not need to continue to search him every time he attempted to
enter the building.
Defendants, however, have established that every
individual who enters the Hawaii Supreme Court building must be
screened by security.
There is no indication that any pat down
26
requested or conducted by Gervacio or anyone else was anything
other than a routine security procedure.
Fernandez provides no
authority for the proposition that a pat down is an impermissible
way to screen someone who does not walk through the magnetometer.
Although Fernandez says his defibrillator must have
moved out of position because of the pat downs, he provides no
evidence supporting this allegation.
At the hearing, Fernandez
stated that, sometime after August 25, 2010, his doctor told him
that his defibrillator had moved.
It is Fernandez’s belief that
the many pat downs caused it to move, as he says he is very
careful, does not bump into anything, and knows of no other
reason the defibrillator would have moved.
Fernandez does not say his doctor has concluded that
the pat downs moved the defibrillator.
Nor does Fernandez claim
that he felt the defibrillator move when he was being patted
down, as Fernandez was apparently not aware that it had moved
until his doctor later told him.
No one purporting to know how a
defibrillator could move out of position has said that the
movement of Fernandez’s defibrillator could have resulted from
one or more pat downs, and the court has before it no example of
anyone whose defibrillator was found to have moved because of a
pat down.
At the hearing, Fernandez said that Gervacio was not
rough with him, and that the pat down was from the waist down
only.
Fernandez does not explain how a pat down of that nature
27
could have moved a medical device implanted in his chest.
In
short, Fernandez does not show that any Defendant violated any
law in connection with any pat down.
The court turns next to Fernandez’s complaint that he
should have been screened with a wand.
Fernandez conceded at the
hearing that he could not cite any law requiring the use of a
wand.
Fernandez does not explain why a wand would have been
safer for him than the magnetometer.
If a wand passed over
Fernandez’s chest could have damaged the defibrillator, then
Fernandez can hardly complain about the lack of a wand.
Fernandez may be contending that there is a special wand that can
be safely used with a defibrillator.
Even assuming such a wand
exists, Fernandez provides no evidence as to availability or cost
that allows this court to evaluate whether it is reasonable to
require that it have been used.
In sum, Frank, McIntire, and Gervacio are entitled to
summary judgment with respect to Fernandez’s Title II claims.
E.
Retaliation.
Fernandez may also be attempting to assert a
retaliation claim.
Although he does not clearly articulate such
a claim, Fernandez refers to “retaliation” in the Amended
Complaint, see Amended Compl. ¶¶ 55, 63, and states that McIntire
retaliated against him.
Id. ¶ 45.
Fernandez may be alleging
that he was subjected to pat downs because he complained about
28
various ADA violations.
Under 42 U.S.C. § 12203(a), “No person shall
discriminate against any individual because such individual has
opposed any act or practice made unlawful by this chapter or
because such individual made a charge, testified, assisted, or
participated in any a manner in an investigation, proceeding, or
hearing under this chapter.”
There is an absence of evidence showing that Fernandez
was retaliated against in violation of § 12203(a).
Even if
Fernandez’s earlier complaints correctly identified ADA
violations, no law is provided to court indicating that it was
discriminatory retaliation to conduct a pat down that was
required for security purposes, was not conducted in an
unreasonable manner, and was not required of others only because
others were screened by the magnetometer that Fernandez says he
could not safely walk though.
Even if Defendants were annoyed by
legitimate ADA complaints Fernandez says he made, and even if
Defendants subjectively delighted in patting Fernandez down (a
matter not established by the record) or in otherwise making
Fernandez uncomfortable, the reasonably performed security
screening described in the record was not an actionable
retaliatory act or ADA violation.
V.
CONCLUSION.
The summary judgment motions brought by Defendants are
29
granted.
The Clerk of Court is directed to enter judgment for
Defendants and to close this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 23, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Fernandez v. Frank, et al., Civ. No. 10-00573 SOM/BMK; ORDER GRANTING (1)
DEFENDANTS SANJ SAPPAL AND SECURITAS’S MOTION FOR SUMMARY JUDGMENT, (2) DEFENDANTS
CLAYTON FRANK AND PAUL McINTIRE’S MOTION FOR SUMMARY JUDGMENT, AND (3) DEFENDANT
SATURINO GERVACIO’S MOTION FOR SUMMARY JUDGMENT
30
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