Riley v. Board of Commissioners of Tippicanoe County et al
OPINION AND ORDER GRANTING 35 MOTION for Summary Judgment filed by Tippecanoe County Sheriff's Department, Tippecanoe County The Board of Commissioners of; DENYING AS MOOT 44 RULE 56 MOTION to Strike 42 Appendix, Paragraph 9 of 42-1 Affidavit of Charles Riley filed by Tippecanoe County Sheriff's Department, Tippecanoe County The Board of Commissioners of. The clerk is DIRECTED to enter judgment. Signed by Judge Jon E DeGuilio on 09/21/17. (sct)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
CHARLES M. RILEY,
BOARD OF COMMISSIONERS OF
TIPPECANOE COUNTY, and
THE TIPPECANOE COUNTY SHERIFF’S
OPINION AND ORDER
Charles Riley (“Plaintiff”) claims that two Tippecanoe Sherriff’s Department deputies
barred him from entering the Tippecanoe County Courthouse with his alleged service dog in
violation of the Americans With Disabilities Act (the “ADA”), 42 U.S.C. § 12101, et seq., and
the Rehabilitation Act, 29 U.S.C. § 794(a). Plaintiff initially asserted these claims (among others)
in a September 3, 2014, complaint, but the Court dismissed them, finding that Plaintiff had not
adequately alleged that his dog was a service animal, which foreclosed his claims. [DE 12]
Plaintiff then filed an amended complaint on June 15, 2015. [DE 14] As with the first complaint,
Defendants moved to dismiss, this time unsuccessfully. [DE 20]
Now before the Court is Defendants’ Motion for Summary Judgment. [DE 35] The
motion has been fully briefed by the parties and is ripe for review. Also before the Court is
Defendants’ Motion to Strike a portion of Plaintiff’s affidavit submitted in support of his
opposition to the Motion for Summary Judgment. [DE 44] Plaintiff never responded to the
Motion to Strike, and the permissible time in which to do so has long passed.
For the reasons stated herein, the Court will grant Defendants’ Motion for Summary
Judgment and subsequently deny the Motion to Strike as moot.1
STANDARD OF REVIEW
On summary judgment, the moving party bears the burden of demonstrating that there “is
no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). A “material” fact is one identified by the substantive law as affecting
the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine
issue” exists with respect to any material fact when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Id. Where a factual record taken as a whole
could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue
for trial, and summary judgment should be granted. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citing Bank of Ariz. v. Cities Servs. Co., 391 U.S. 253, 289
(1968)). In determining whether a genuine issue of material fact exists, this Court must construe
all facts in the light most favorable to the non-moving party and draw all reasonable and
justifiable inferences in that party’s favor. Jackson v. Kotter, 541 F.3d 688, 697 (7th Cir. 2008);
King v. Preferred Tech. Grp., 166 F.3d 887, 890 (7th Cir. 1999).
The record before the Court is thin. On or about July 14, 2014, Plaintiff went to the
Tippecanoe County Courthouse to deliver a victim impact statement in connection with a
criminal matter in which he was the victim. [DE 42-1 ¶ 12] Plaintiff brought with him his
purported service dog, Bella, and sought to enter the courthouse with her. [DE 35-1 ¶ 4] Bella
As such, the Court will decline to address the parties’ arguments on whether Plaintiff may recover
was wearing a vest that was labeled with “NSAR Service Animal Certified.”2 Id. ¶ 4, Exh. 2.
Plaintiff received this vest when he registered Bella as an Emotional Support Animal (“ESA”)
with the NSAR. Id. ¶¶ 10-11. There is some disagreement as to who said what next, but suffice it
to say that while he was attempting to enter the courthouse with Bella, Plaintiff produced a photo
identification card for her that listed her service type as “ESA.” Id. ¶¶ 5-6, Exh. 1. In relevant
part, the back of the card states:
ESAs are animals that are necessary for the normal, day-to-day functioning of
their emotionally or psychologically disabled handler, facilitating a normalizing
effect by their presence. They do not require specific training.
An ESA is not a working service dog under the Americans with disabilities [sic]
Act of 1990 and is not granted unlimited access.
Id. at Exh. 1. Based on the card provided by Plaintiff, he was not permitted to enter the
courthouse with his dog.3 Id. ¶ 7.
“NSAR” refers to the National Service Animal Registry.
In opposition to the Motion for Summary Judgment, Plaintiff attacks the manner in which one of the
deputies questioned him when he attempted to bring Bella into the courthouse. [DE 41 at 9-11] The Court
finds little merit or relevance in this argument. First, based on Plaintiff’s interpretation of the pertinent
regulations, it was unlawful for the deputy to ask Mr. Riley “is that a service animal” rather than asking
“if the animal is required because of a disability,” and for her to ask “what is the service” rather than
asking “what work or task the animal has been trained to perform.” See id. These are the same questions
worded inconsequentially differently.
Second, Plaintiff contends that, had he not been compelled to show identification for Bella, then the
deputies would never have found out that she was only registered as an ESA. But, even though the parties
dispute whether this actually happened, it makes no difference. Plaintiff argues that, had the deputy
instead asked him the “right” question – whether Bella was required because of a disability – his “answer
would likely have been, ‘Yes.’” [DE 41 at 10] However, as discussed herein, Plaintiff has failed to
provide evidence that would create an issue of fact as to whether Bella was a service animal under the
ADA when the courthouse incident occurred. If Plaintiff cannot currently provide sufficient evidence to
demonstrate that Bella was a service dog on July 14, 2014, then what other information could he have
truthfully told the deputies that day that would have allowed him to bring her into the courthouse? The
only disability under the ADA put forth by Plaintiff is his service-connected PTSD, which, as the record
indicates, is not linked to any of his mobility or balance issues. Therefore, at most, Plaintiff could have
truthfully told the officers that he needed Bella to calm him down during episodes of PTSD, but as
discussed herein, that does not make Bella a service animal under the ADA.
Plaintiff is an Army combat veteran who served in Operation Desert Storm. [DE 42-1 ¶
1] According to Plaintiff, he was diagnosed with post-traumatic stress disorder (“PTSD”) in 1991
by a Dr. Kolbecker at the VA Illiana Medical Center in Danville, Illinois. Id. Plaintiff’s PTSD
causes him to become agitated and experience anxiety in unfamiliar, tense, or stressful settings.
Id. Despite additionally citing problems with his mobility and balance, id. ¶ 2, the only disability
Plaintiff claims to suffer from is PTSD [DE 42-2 at 2], and there is no evidence in the record to
support the allegation that his mobility and balance issues are in any way related to his PTSD.
Plaintiff maintains that he was “classified as permanently and totally disabled due to his serviceconnected disabilities” in November 2014, several months after the incident at the courthouse.
[DE 42-1 ¶ 1]
Plaintiff’s medical records indicate that he was treated on occasion for major depressive
disorder, mood disorder, family circumstances, and relational problems between June 2013 and
March 2015. [DE 35-4] None of the medical records provided state that Plaintiff was either
diagnosed with or treated for PTSD during that time, although those records do not necessarily
exclude such a diagnosis. Id. However, a letter signed by Plaintiff’s psychiatrist, while postdating the courthouse incident by more than a year, states that Plaintiff “has been receiving
treatment at the VA since 1998,” has been seeing this particular psychiatrist since June 2012, and
“continues to struggle with PTSD symptoms.” [DE 42-4] (emphasis added).
Plaintiff acquired Bella in 2011 and had her enrolled in and complete “general private
training” at PetSmart in August 2013, but there are no details in the record as to what that
training entailed. [DE 42-1 ¶ 8; 35-4 at 3] Plaintiff then registered Bella as an ESA in early
September 2013 [DE 35-1, Exh. 1], and personally began to train her to complete certain tasks.
Id. ¶ 9. Specifically, Plaintiff trained Bella to: let him know when his clothes dryer had finished
its cycle; open and close doors; pull groceries home from the store; alert him when someone was
at the door; turn lights on and off; provide balance support and mobility assistance; help him
regain his footing if he fell; get help if required; and calm him during his PTSD episodes. [DE
42-1 ¶ 9; 35-4 at 12] Plaintiff maintains that Bella was fully trained to perform these tasks by
July 14, 2014.4 Id.
It is against the backdrop of these facts that the Court conducts its analysis.
Plaintiff alleges in Counts I-IV that The Board of Commissioners of Tippecanoe County
and the Tippecanoe County Sheriff’s Department each committed violations of the ADA and the
Rehabilitation Act by prohibiting Plaintiff from entering the courthouse with Bella. [DE 14 ¶¶
25-54] Stemming from these allegations, Plaintiff requests reimbursement for the financial losses
he suffered as a proximate result of not being able to provide his victim impact testimony,
compensatory damages, and injunctive relief prohibiting Defendants and their agents from
banning service dogs from the courthouse in violation of the ADA and Rehabilitation Act.5 For
the reasons discussed below, the Court will grant Defendants’ motion for summary judgment on
The ADA and the Rehabilitation Act
The ADA is a comprehensive civil rights law enacted “to provide a clear and
comprehensive national mandate for the elimination of discrimination against individuals with
The record also indicates that, at least at later points in time, Bella knew how to push Plaintiff in a
wheelchair and could help him safely cross the street. [DE 35-4 at 16; 42-6]
Plaintiff concedes that his claim for injunctive relief is moot and the Court will treat it as such. [DE 41 at
8 n. 4]
disabilities.” 42 U.S.C. § 1201(b)(1). 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.
The standards under the ADA and the Rehabilitation Acts are the same, and so, in
discussing whether the record supports summary judgment as to Plaintiff’s ADA claims, the
Court will be addressing his Rehabilitation Act claims as well. Gratzl v. Office of Chief Judges of
12th, 18th, 19th, & 22nd Judicial Circuits, 601 F.3d 674, 678 n.2 (7th Cir. 2010) (citing
Ozlowski v. Henderson, 237 F.3d 837, 839 (7th Cir.2001)).6
To bring a claim under Title II of the ADA, a plaintiff must establish that: (1) he or she is
a qualified individual who has a disability as defined by the statute; (2) he or she was excluded
from a benefit provided by the public entity; and (3) the exclusion was “by reason of” the
disability. Brown v. Dist. 299—Chicago Pub. Schs., 762 F. Supp. 2d 1076, 1083-84 (N.D. Ill.
2010) (citing Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004) and 42 U.S.C. §
12132). While genuine issues of material fact remain as to whether Plaintiff suffered from PTSD
“We have held previously that the standards applicable to one act are applicable to the other. Title II of
the ADA was modeled after § 504 of the Rehabilitation Act; the elements of claims under the two
provisions are nearly identical, and precedent under one statute typically applies to the other. See Grzan v.
Charter Hosp. of Northwest Indiana, 104 F.3d 116, 123 (7th Cir. 1997); see also McPherson v. Michigan
High Sch. Athletic Ass’n, 119 F.3d 453, 459-60 (6th Cir. 1997) (en banc); Crowder v. Kitagawa, 81 F.3d
1480, 1483 (9th Cir. 1996) (noting that § 12133 of the ADA, 42 U.S.C. § 12133, requires that “[t]he
remedies, procedures, and rights set forth in the [Rehabilitation Act] shall be the remedies, procedures,
and rights” applicable to section 12132 discrimination claims) (internal quotations omitted). The chief
difference between the two statutes is that the Rehabilitation Act applies only to entities receiving federal
funding, while Title II of the ADA contains no such limitation. Another difference is that the
Rehabilitation Act requires that the exclusion be solely by reason of disability, while the ADA requires
only that the exclusion be by reason of the disability.” Washington v. Indiana High Sch. Athletic Ass’n,
Inc., 181 F.3d 840, 845 (7th Cir. 1999).
at the time of the courthouse incident, the record does not contain sufficient evidence to
demonstrate that Bella was a service animal at that time within the meaning of the ADA.
A. A reasonable factfinder could determine that Plaintiff was a qualified individual
with a disability.
One is “disabled” under the ADA if he or she has a physical or mental impairment that
substantially limits one or more major life activities, has a record of such an impairment, or is
regarded as having such an impairment. 42 U.S.C. § 12102(1); 29 C.F.R. § 1630.2(g); see also
Carothers v. County of Cook, 808 F.3d 1140, 1147 (7th Cir. 2015). The ADA defines “major life
activities” as including, but not limited to, “caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,
reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).
As stated above, the only disability Plaintiff claims to suffer from is PTSD. [DE 42-2 at
2] Defendants argue that Plaintiff has not provided enough evidence to demonstrate that he
suffered from PTSD on July 14, 2014. To support their position, Defendants note that none of
the medical records provided pre-dating the incident list Plaintiff as being diagnosed with or
treated for PTSD. However, while each of these records fail to include PTSD among the
“DIAGNOSES AND PROBLEMS TREATED THIS VISIT,” they do not exclude the existence
of an underlying PTSD diagnosis. [DE 35-4 at 7-8, 11; 42-3 at 2] (emphasis added). At the same
time, the Court has been presented with Plaintiff’s sworn statement that he was diagnosed with
PTSD in 1991 by Dr. Kolbecker at the VA Medical Center in Danville, Illinois. [DE 42-1 ¶ 1]
And, the letter from Dr. Afolabi, while dated well after the courthouse incident, reads
retrospectively in nature about Plaintiff’s ongoing struggles with PTSD. [DE 42-4] Without
explaining when Plaintiff began suffering from PTSD, the letter leaves open a genuine issue of
material fact as to whether he was disabled on July 14, 2014.7
Defendants also contend that the record lacks any evidence indicating that Plaintiff’s
PTSD substantially limits a major life activity. However, the phrase “substantially limits” “is not
meant to be a demanding standard” and determining “whether an impairment ‘substantially
limits’ a major life activity should not demand extensive analysis.” 29 C.F.R. §§ 1630.2(j)(1)(i),
(iii). Additionally, the “term ‘substantially limits’ shall be construed broadly and in favor of
expansive coverage[.]” Id. § 1630.2(j)(1)(i). PTSD itself is an impairment that will “virtually
always be found to impose a substantial limitation on a major life activity.” Id. § 1630.2(j)(3)(ii).
Indeed, “it should easily be concluded that the following types of impairments will, at a
minimum, substantially limit the major life activities indicated: … post-traumatic stress disorder
… substantially limit[s] brain function.” Id. § 1630.2(j)(3)(iii).
With these regulations in mind, the Court turns to whether Plaintiff’s PTSD substantially
limits a major life activity. The pertinent statutory language includes cognitive functions within
the definition of “major life activities,” such as concentrating, thinking, and communicating. See
42 U.S.C. § 12102(2)(A). Among other things, Dr. Afolabi’s letter indicates that Plaintiff
struggled with concentration due to his PTSD. [DE 42-4] The record contains no explanation of
how Plaintiff’s PTSD affects his “major life activities” as defined in the statute, apart from this
letter and a single reference to an example of Plaintiff experiencing anxiety under stress. [DE 421 ¶ 2] However, when considering the breadth afforded to PTSD as a disability, a reasonable
factfinder could determine that Plaintiff’s PTSD impacts his major life activities. See 29 C.F.R. §
Defendants make an alternative argument as to whether Plaintiff’s major depressive disorder diagnosis
satisfies the first prong of his ADA claim [DE 36 at 17-18], but given the Court’s PTSD determination,
this possibility need not be explored.
1630.2(j)(1)(iii) (“The primary object of attention in cases brought under the ADA should be
whether covered entities have complied with their obligations and whether discrimination has
occurred, not whether an individual’s impairment substantially limits a major life activity.”).
Overall, a reasonable factfinder could determine that Plaintiff was a qualified individual
with a disability under the ADA when he attempted to enter the courthouse with Bella.
Bella was not a service animal under the ADA on July 14, 2014.
Despite the existence of genuine issues of material fact as to Plaintiff’s PTSD diagnosis,
Plaintiff cannot demonstrate that Bella was a service animal within the meaning of the ADA
based on the evidence contained in the record. For this reason, his claims will fail.
An individual can show he or she was excluded from a benefit provided by a public entity
if that entity refused to provide a reasonable accommodation. Brown, 762 F. Supp. 2d at 108384; see also Wisc. Cmty. Servs., Inc. v. City of Milwaukee, 465 F.3d 737, 753 (7th Cir. 2006)
(accord). Here, Plaintiff alleges that Defendants discriminated against him within the meaning of
the ADA by refusing to allow the presence of Bella in the courthouse as an accommodation of
his disability – PTSD. See 28 C.F.R. § 36.302(c)(7). As this Court has previously stated, Plaintiff
must therefore prove, as a prerequisite to his claim, that Bella is actually a service animal under
the ADA “since the regulations which implement the ADA and the [Rehabilitation Act] only
protect the right to take service animals – as opposed to, e.g., untrained or emotional support
animals – into public facilities.” [DE 20 at 2] (citing 28 C.F.R. § 35.136(g)); see also, e.g.,
Cordoves v. Miami-Dade Cty., 92 F. Supp. 3d 1221, 1230 (S.D. Fla. 2015); Davis v. Ma, 848 F.
Supp. 2d 1105, 1114 (C.D. Cal. 2012), aff’d, 568 F. App’x 488 (9th Cir. 2014); Miller v. Ladd,
No. CV-08-05595-NJV, 2010 WL 2867808, at *4 (N.D. Cal. July 20, 2010); Vaughn v. Rent-A-
Center, Inc., No. 2:06-cv-1027, 2009 WL 723166, at *10 (S.D. Ohio Mar. 16, 2009). The ADA
defines “service animal” as:
[A]ny dog that is individually trained to do work or perform tasks for the benefit
of an individual with a disability, including a physical, sensory, psychiatric,
intellectual, or other mental disability . . . The work or tasks performed by a
service animal must be directly related to the individual’s disability. Examples of
work or tasks include, but are not limited to . . . assisting an individual during a
seizure . . . providing physical support and assistance with balance and stability to
individuals with mobility disabilities, and helping persons with psychiatric and
neurological disabilities by preventing or interrupting impulsive or destructive
behaviors. The crime deterrent effects of an animal’s presence and the provision
of emotional support, wellbeing, comfort, or companionship do not constitute
work or tasks for the purposes of this definition.
28 C.F.R. § 35.104.
The bar for demonstrating a genuine issue of fact regarding a dog’s status as a service
animal is not a high one. Cordoves, 92 F. Supp. 3d at 1230. To survive a motion for summary
judgment on the training issue, Plaintiff need only produce testimony as opposed to documented
evidence of training. See Baugher v. City of Ellensburg, WA, No. CV-06-3026-RHW, 2007 WL
858627, at *5 (E.D. Wash. Mar. 19, 2007). Nor is it necessary to show the dog was trained by a
“certified trainer.” Green v. Hous. Auth. of Clackamas Cnty., 994 F. Supp. 1253, 1256 (D. Or.
1998). In fact, a service dog may simply be individually trained at home. See Vaughn, 2009 WL
723166, at *10; Green, 994 F. Supp. at 1256. Further, “[t]here are no requirements as to the
amount or type of training that a service animal must undergo, nor the type of work or assistance
that a service animal must provide, but the animal must be trained to perform tasks or do work
for the benefit of a disabled individual.” Rose v. Springfield-Greene Cnty. Health Dep’t, 668 F.
Supp. 2d 1206, 1214-15 (W.D. Mo. 2009); accord Green, 994 F. Supp. at 1256; Vaughn, 2009
WL 723166, at *10. “This is not a taxing requirement, … and there are no federally-mandated
animal training standards.” Prindable v. Ass’n of Apartment Owners of 2987 Kalakaua, 304 F.
Supp. 2d 1245, 1256 (D. Haw. 2003) (alteration added; citation omitted), aff’d sub nom. Dubois
v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006).
Nonetheless, “courts have granted summary judgment if a plaintiff cannot show with any
specificity a genuine issue of fact regarding a dog’s training or status as a service animal.”
Cordoves, 92 F. Supp. 3d at 1230-31. To survive summary judgment on the training issue, a
plaintiff needs to demonstrate that the animal was trained to perform tasks that directly relate to
his or her disability. 28 C.F.R. § 35.104; see also Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.
1995) (holding in a Fair Housing Amendments Act case that deaf tenants were not entitled to dog
as a reasonable accommodation where the dog was not necessary as a hearing dog); Davis, 848
F. Supp. 2d at 1114-15 (citing Bronk and holding that plaintiff must show dog was trained to
work to ameliorate the disability at hand). Here, Plaintiff suffers from PTSD. According to the
record, Plaintiff’s PTSD causes him to “become agitated, and experience feelings of anxiety in
unfamiliar, tense, or stressful situations.” [DE 42-1 ¶ 2] It follows, then, that Plaintiff must
demonstrate he trained Bella to perform specific tasks to ameliorate the anxiety and agitation he
experiences in certain settings due to his PTSD. No such showing is present. Rather, there are
essentially three categories of tasks that Bella knew how to perform as of July 14, 2014: (1)
assistance with daily living; (2) assistance with mobility and balance; and (3) “calming” Plaintiff
during episodes of PTSD.
As to the first category, the record indicates that Bella knows how to alert Plaintiff when
someone is at his door, pull his groceries home from the store, turn lights on and off, alert
Plaintiff when his clothes dryer has completed its cycle, and open and close doors. [DE 42-1 ¶ 9;
35-4 at 12] But, none of these tasks pertain to Plaintiff’s PTSD and thus do not add to his
argument that Bella was a service dog when he attempted to enter the courthouse. See Rose, 668
F. Supp. 2d at 1215-16 (monkey who assisted with day-to-day activities – retrieving plaintiff’s
toothbrush or television remote – was not a service animal where plaintiff provided no
explanation of why her alleged anxiety order required the animal to perform these tasks); Pruett
v. Arizona, 606 F. Supp. 2d 1065 (D. Ariz. 2009) (chimpanzee did not qualify as a service animal
because the household tasks it performed – retrieving candy, beverages, remote controls, and the
telephone, and turning lights on and off – did not relate to plaintiff’s diabetic disability).
Bella also assists Plaintiff with his mobility and balance issues. For example, Bella can
provide him with general “balance support and mobility assistance,” help him regain his feet
after a fall, and get help when required. [DE 42-1 ¶ 9] Bella can also push Plaintiff in a
wheelchair and help him safely cross the street. [DE 35-4 at 16; 42-6] But again, according to
Plaintiff’s own statements and written discovery responses, the only disability at issue in this
case for ADA purposes is Plaintiff’s service-connected PTSD. [DE 42-1; 42-2 at 2] Although he
alleges in his amended complaint that his PTSD makes him subject to seizures, loss of balance,
and mobility issues [DE 14 ¶¶ 8-9], the record does not support any such link between Plaintiff’s
PTSD and these other health concerns.8 As such, Bella’s ability to help Plaintiff with his balance
and mobility does no more to qualify her as a service animal under the ADA than does her ability
to assist with daily activities, because without a connection between Plaintiff’s disability – PTSD
– and his ambulatory problems, the tasks that Bella has been trained to perform do not relate to
the disability at hand. See 28 C.F.R. § 35.104; see also Davis, 848 F. Supp. 2d at 1115-16 (dog
did not qualify as a service animal in absence of evidence linking plaintiff’s degenerative back
disability to reliance on dog for mobility support); cf. Anderson v. City of Blue Ash, 798 F.3d 338
(6th Cir. 2015) (miniature horse that provided support to young girl qualified as a service animal
Plaintiff attests to being prone to falling and to having mobility and balance issues [DE 42-1 ¶ 2], but he
does not maintain in his affidavit that those problems are bi-products or symptoms of his PTSD.
where evidence showed that her multiple disabilities affected her ability to walk and balance
Lastly, Plaintiff maintains that Bella calms him during episodes of PTSD. [DE 42-1¶ 9]
Unfortunately, having a calming effect on an individual, without more, does not render any
animal a service animal under the ADA. 28 C.F.R. § 35.104 (“[T]he provision of emotional
support, wellbeing, comfort, or companionship do not constitute work or tasks for the purposes
of this definition.”); Lerma v. California Exposition and State Fair Police, 2:12-cv-1363, 2014
WL 28810, at *5 ( E.D. Cal. Jan. 2, 2014) (finding that dog’s provision of emotional support and
comfort did not qualify as work or tasks under the ADA’s definition of service animal); Rose,
668 F. Supp. 2d at 1215 (finding that monkey’s provision of comfort to plaintiff did not qualify it
as a service animal).
Moreover, even if Bella’s calming effect could qualify her as a service animal, there is
nothing in the record to suggest that she underwent any training, whether individually
administered by Plaintiff or otherwise, that taught her specific tasks and functions to help
Plaintiff cope with the anxiety associated with his PTSD. The only reference to Bella’s calming
effect in the record, that she calmed Plaintiff down when he nearly got into a fight at a concert, is
merely anecdotal in nature and predates any of Bella’s training.9 See Prindable, 304 F. Supp. 2d
at 1257 (“[S]light anecdotal evidence” is insufficient to detail a purported service animal’s
training.). Thus, without evidence specifying what techniques Bella was trained to perform and
how she would use such techniques to calm Plaintiff during his PTSD episodes, the record does
not demonstrate that she even learned any additional calming skills from her training. See
Plaintiff recounted the concert anecdote to a social worker at the VA on July 15, 2013 [DE 35-4 at 12],
but he did not enroll Bella in general training at PetSmart until August of that year, and only began to
train Bella individually after she completed that general course. [DE 42-1 ¶¶ 8-9]
Baugher 2007 WL 858627, at *5 (granting summary judgment where nothing in the record
explained what specifically plaintiff’s dog did to cue plaintiff or how the dog was trained to
provide these cues); Rose 668 F. Supp. 2d at 1215 (granting summary judgment even where
plaintiff described a task her monkey performed that was related to her disability but provided no
explanation as to the monkey’s training or its specific cues); cf. Cordoves, 92 F. Supp. 3d at 1231
(sufficient evidence existed to qualify dog as a service animal where it: detected PTSD-related
panic attacks; alerted plaintiff using various techniques; minimized and alleviated panic attacks
by lowering her heart rate via those techniques; and impacted the frequency with which the
The burden on Plaintiff to demonstrate that his dog is a service animal under the ADA is
not a heavy one. But the Court has searched the record and finds nothing that would lead a
reasonable jury to conclude that Bella was a trained service animal, as opposed to an emotional
support animal, at the time of the courthouse incident. Plaintiff therefore cannot meet this
prerequisite showing, and his claims must fail.
The Court is mindful of and grateful for Plaintiff’s military service, and acknowledges
the sacrifices he and his fellow servicemen and servicewomen have given in defense of this
country. All too often, American veterans return home burdened with a host of disabilities – both
visible and invisible – that will accompany them for the rest of their lives. In Plaintiff’s case, and
in the cases of many others, he exposed himself to combat so that others might not have to, and
as a result bears the unseen wounds of post-traumatic stress disorder.
However, in bringing the instant case, Plaintiff must demonstrate that his dog, Bella, was
a service animal within the meaning of the ADA when he attempted to enter the courthouse in
July 2014. Based on the record before the Court, he cannot do so, and it is therefore ORDERED
that Defendants’ Motion for Summary Judgment [DE 35] be GRANTED. It is further
ORDERED that Defendants’ Motion to Strike [DE 44] be DENIED as moot. As this order
disposes of all of Plaintiff’s claims, the Clerk is DIRECTED to enter judgment.
ENTERED: September 21, 2017
/s/ JON E. DEGUILIO
United States District Court
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