Fernandez v. Frank et al
Filing
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ORDER GRANTING IN PART AND DENYING IN PART STATE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (ECF NO. 35 ) ; ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (ECF NO. 37 ) - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 10/4/11. ("Fernandez is given leave to file an Amended Complaint reasserting the § 1281(a) and section 347-13(a) claims and the ADA retaliation claims, as well as new or revised claims based on other laws or theories, no later than Novemb er 3, 2011.") (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Ambrose S. Fernandez, Jr. and Saturnino Gervacio served by first class mail at the addresses of record on October 4, 2011.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
AMBROSE S. FERNANDEZ, JR.,
Plaintiff,
V.
DIRECTOR CLAYTON FRANK,
DEPARTMENT OF PUBLIC SAFETY,
INSPECTOR NINO,
STATE SHERIFF PAUL McINTIRE,
DOES 1-10,
Defendants.
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CIVIL NO. 10-00573 SOM/BMK
ORDER GRANTING IN PART AND
DENYING IN PART STATE
DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS
(ECF No. 35); ORDER DENYING
PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT (ECF No. 37)
ORDER GRANTING IN PART AND DENYING IN PART STATE DEFENDANTS’
MOTION FOR JUDGMENT ON THE PLEADINGS (ECF No. 35); ORDER DENYING
PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 37)
I.
INTRODUCTION.
On October 4, 2010, Plaintiff Ambrose S. Fernandez,
Jr., filed a Complaint pro se.
mentions negligence in passing.
See ECF No. 1.
Id. at 3.
The Complaint
It then asserts
violations of the Americans With Disabilities Act (“ADA”) and its
state law counterpart, claiming public accommodation
discrimination based on unidentified “architecture barriers,” id.
¶ 5, retaliation, id. ¶ 12, and discrimination based on
Fernandez’s disability.
Id. ¶¶ 7-11.
On July 28, 2011, Defendants Clayton Frank and Paul
McIntire, filed a motion for judgment on the pleadings, arguing
that the Complaint fails to sufficiently allege claims.
court agrees in part and grants the motion in part.
This
To the
extent the Complaint mentions negligence and architectural
barrier discrimination, it fails to support any such claims with
factual assertions.
leave to amend.
Accordingly, those claims are dismissed with
However, to the extent the Complaint alleges
public accommodation discrimination based on Defendants’ alleged
refusal to accommodate Fernandez’s medical condition when
Fernandez attempted to pass through security at the Hawaii
Supreme Court building, and to the extent Defendants allegedly
retaliated against Fernandez by kicking him out of the building,
the Complaint sufficiently alleges facts supporting his claims,
and the motion is denied.
On August 26, 2011, Fernandez filed a motion for
summary judgment.
Because Fernandez fails to establish that he
is entitled to judgment as a matter of law, that motion is
denied.
II.
BACKGROUND FACTS.
The Complaint is not a picture of clarity.
The court
gleans from it that, starting on or about August 25, 2010,
Fernandez visited the Hawaii State Supreme Court building.
Compl. ¶¶ 7-9.
See
To enter the building, Fernandez had to pass
through a security checkpoint.
See Compl. ¶ 10.
Fernandez
appears to have a heart condition that he claims is a qualified
disability for purposes of the ADA.
See ECF No. 1, Ex. A.
Fernandez alleges that the security officers on duty touched his
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body instead of using a metal wand detector.
See Compl. ¶ 9.
He
claims that he told the security officers not to touch him, but
that they continued to do so.
See Compl. ¶ 8.
Fernandez
allegedly experienced “great distress and strain because of
public entity retaliation.”
See ECF No. 1, Ex. A.
Fernandez
says he has a cardiac defibrillator designed to prevent sudden
cardiac arrest.
See Compl. ¶ 12.
Fernandez alleges that his
defibrillator has moved an inch because of the officers’ body
contact.
See Compl. ¶ 8.
III.
ANALYSIS.
A.
Judgment on the Pleadings.
Rule 12(c) states, “After the pleadings are closed--but
early enough not to delay trial--a party may move for judgment on
the pleadings.”
The standard governing a Rule 12© motion for
judgment on the pleadings is “functionally identical” to that
governing a Rule 12(b)(6) motion.
United States ex rel. Caffaso
v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir.
2011).
For a Rule 12(c) motion, the allegations of the nonmoving
party are accepted as true, while the allegations of the moving
party that have been denied are assumed to be false.
See Hal
Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550
(9th Cir. 1989).
A court evaluating a Rule 12© motion must
construe factual allegations in a complaint in the light most
favorable to the nonmoving party.
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Fleming v. Pickard, 581 F.3d
922, 925 (9th Cir. 2009).
“Judgment on the pleadings under Rule
12© is proper when the moving party establishes on the face of
the pleadings that there is no material issue of fact and that
the moving party is entitled to judgment as a matter of law.”
Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution
Control Dist., 644 F.3d 934, 937 n.1 (9th Cir. May 27, 2011).
Generally, when matters outside the pleadings are
considered, a motion for judgment on the pleadings must be
considered as one for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 12(d).
Courts have held, however, that, when adjudicating a Rule 12©
motion, courts may consider matters subject to judicial notice
without converting the motion to one for summary judgment.
See
Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18
(9th Cir. 1999) (“When considering a motion for judgment on the
pleadings, this court may consider facts that are contained in
materials of which the court may take judicial notice.”
(quotations omitted)); accord Lacondeguy v. Adapa, 2011 WL 9572,
*2 (E.D. Cal. Jan. 3, 2011); Williams v. City of Antioch, 2010 WL
3632199, *2 (N.D. Cal. Sept. 2, 2010).
Defendants’ motion for judgment on the pleadings
contends that Fernandez’s Complaint fails to sufficiently allege
facts supporting the causes of action.
Under Rule 8(a)(2) of the
Federal Rules of Civil Procedure, Fernandez was required to set
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forth in his Complaint “a short and plain statement of the
claim[s] showing that [he] is entitled to relief.”
Factual
allegations in a complaint “must be enough to raise a right to
relief above the speculative level, on the assumption that all
the allegations in the complaint are true even if doubtful in
fact.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal quotation marks omitted); accord Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949 (2009) (“the pleading standard Rule 8 announces
does not require ‘detailed factual allegations,’ but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation”).
While a complaint does not need detailed factual
allegations, it must have “more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action will
not do.”
Twombly, 550 U.S. at 555.
The complaint must “state a
claim to relief that is plausible on its face.”
Id. at 570.
“A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Iqbal,
129 S. Ct. at 1949.
To the extent the Complaint mentions negligence and
architectural barriers in violation of the ADA or section 103-50
of the Hawaii Revised Statutes, it fails to allege facts
supporting those claims.
Those claims are therefore not properly
pled, and Defendants’ motion is granted with respect to those
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claims.
The court, however, grants Fernandez leave to file an
Amended Complaint that reasserts those claims and includes
factual allegations supporting those claims.
Defendants’ motion is denied with respect to
Fernandez’s public accommodation and retaliation claims.
The ADA
was enacted in 1990 to remedy widespread discrimination against
disabled individuals.
674 (2001).
PGA Tour, Inc. v. Martin, 532 U.S. 661,
To effectuate this sweeping purpose, the ADA forbids
discrimination against disabled individuals in major areas of
public life, including employment (Title I, 42 U.S.C. §§ 1211112117), public entities (Title II, 42 U.S.C. §§ 12131-12165), and
public accommodations (Title III, 42 U.S.C. §§ 12181-12189).
Id.
Fernandez is claiming a public accommodation violation of 42
U.S.C. § 12182, which provides:
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.
42 U.S.C. § 12182(a).
He is also claiming a violation of section
347-13 of the Hawaii Revised Statutes, which states:
(a) Persons who are blind, visually
handicapped, or otherwise disabled are
entitled to full and equal accommodations,
advantages, facilities, and privileges of all
common carriers, airplanes, motor vehicles,
railroad trains, motor buses, street cars,
boats, or any other public conveyances or
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modes of transportation, hotels, lodging
places, places of public accommodation,
amusement, or resort, and other places to
which the general public is invited, subject
only to the conditions and limitations
established by law and applicable to all
persons.
Fernandez’s Complaint can be construed as alleging that
he has a heart condition and that he was discriminated against on
the basis of his disability when security guards refused to
“wand” him and instead patted him down.
Based on these facts,
Fernandez’ Complaint can be construed as asserting that he was
denied “the full and equal enjoyment of” the Hawaii Supreme Court
building, including its library.
These factual allegations
sufficiently support claims under § 12182(a) and section 34713(a) of the Hawaii Revised Statutes.
Accordingly, Defendants’
motion is denied with respect to those claims.
This, of course,
does not mean that Fernandez has a valid or successful claim,
only that Defendants have not established that the Complaint
lacks factual allegations sufficient to support his claims.
Fernandez also appears to assert a claim under 42
U.S.C. § 12203(a), which states: “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 manner in an investigation, proceeding, or hearing under this
chapter.”
After alleging that he asked to be “wanded” because of
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his heart condition--a purported exercise of ADA rights,
Fernandez alleges that Mark Skrimstad and Defendant Paul McIntire
retaliated against him by kicking him out of the building.
Because this court concludes in the preceding paragraph of the
present order that Fernandez sufficiently alleges an ADA
violation, his allegations of retaliation resulting from what he
says were his complaints about that violation state an ADA
retaliation claim.
Defendants’ motion is therefore denied with
respect to the retaliation claim.
Again, the court is not here
ruling that such a claim is viable, only that there are
sufficient factual allegations in the Complaint to support a
retaliation claim.
B.
Summary Judgment.
Fernandez fails to meet his burden on a Rule 56 summary
judgment motion.
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 “those 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., 477 U.S. at 323); accord Miller, 454 F.3d
at 987.
“A fact is material if it could affect the outcome of
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the suit under the governing substantive law.”
Miller, 454 F.3d
at 987.
Most of Fernandez’s motion pertains to claims that are
not sufficiently asserted in the Complaint, for example,
accessible parking stalls and “path of travel.”
With respect to
the remaining claims, Fernandez does not sufficiently identify
materials on file that demonstrate the absence of a genuine issue
of material fact and therefore fails to demonstrate entitlement
to judgment as a matter of law.
Accordingly, Fernandez’s motion
for summary judgment is denied.
IV.
CONCLUSION.
Except with respect to the claims based on Defendants’
alleged failure to “wand” Fernandez at the Hawaii Supreme Court
security checkpoint, allegedly in violation of § 12182(a) and
section 347-13(a) of the Hawaii Revised Statutes, and the ADA
retaliation claims, Defendants’ motion for judgment on the
pleadings is granted.
Fernandez is given leave to file an
Amended Complaint reasserting the § 1281(a) and section 347-13(a)
claims and the ADA retaliation claims, as well as new or revised
claims based on other laws or theories, no later than November 3,
2011.
Fernandez’s motion for summary judgment is denied for
the reasons set forth above.
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IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 4, 2011.
/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 IN PART AND
DENYING IN PART STATE DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS (ECF No. 35);
ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 37)
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