Fultz v. Jefferson Parish
Filing
31
ORDER AND REASONS denying in part and granting in part 9 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAWRENCE FULTZ
CIVIL ACTION
VERSUS
NO. 16-001
JEFFERSON PARISH
SECTION “B”(1)
ORDER AND REASONS
I.
NATURE OF MOTION AND RELIEF SOUGHT
Before the Court is Defendant’s, the Parish of Jefferson (“the
Parish”),
“Motion
for
Summary
Judgment”
(Rec.
Doc.
9),
Plaintiff’s, Lawrence Fultz, opposition thereto (Rec. Doc. 19),
and Defendant’s corresponding reply (Rec. Doc. 28). Defendant
seeks entry of summary judgment and dismissal with prejudice of
Plaintiff’s claims against the Parish for liability and damages on
the grounds that there is no genuine dispute as to any material
fact, and the Parish is entitled to judgment as a matter of law
and
fact.
As
stated
more
fully
herein,
IT
IS
ORDERED
that
Defendant’s Motion be DENIED in part and GRANTED in part.
II.
FACTS AND PROCEDURAL HISTORY
The undisputed facts are as follows. Jefferson Parish is a
political entity which owns and operates Johnny Jacobs Memorial
Playground (“the Playground”) located in Marrero, Louisiana. (Rec.
Doc. 9-1 at 1). Football games, track meets, and basketball games
are held at the Playground. (Rec. Doc. 9-1 at 1). In 1978, the
original master plan for the Playground was prepared by Hamilton,
1
Meyer and Associates, Inc., Meyers Engineers. (Rec. Doc. 9-1 at
1). In 1988, Barnard & Thomas, Engineering Inc. prepared the Master
Plan for the baseball field, concession stand, and nearby men’s
and women’s restrooms. (Rec. Doc. 9-1 at 2). In 2002, the Johnny
Jacobs Memorial Pool was built. (Rec. Doc. 9-1 at 2). On February
24, 2016, the Grand Opening for the toddler lot (“tot-lot”) was
held, and there is no accessible route to the tot-lot at present
(Rec. Doc. 9-1 at 2).
Plaintiff in this action is a qualified individual with a
disability under the ADA. (Rec. Doc. 9-1 at 1). Plaintiff alleges
that he visited the Playground with his grandchildren several times
prior to January 1, 2016. (Rec. Doc. 18-7 at 1). During these
visits, Plaintiff avers that he encountered such barriers as
accessible designated parking spaces with faded striping, a narrow
restroom stall that was difficult to use, lack of accessible
routes, and a restroom with a mirror too high off the floor and
pipes without insulation. (Rec. Doc. 18-7 at 1-2). Plaintiff
alleges that he lives nearby the Playground and desires to return
to the facility in the future. (Rec. Doc. 18-4 at 1).
On January 1, 2016, Plaintiff filed the instant suit in Civil
District Court for the Parish of Orleans, State of Louisiana. (Rec.
Doc. 1). In the complaint, Plaintiff alleged that Jefferson Parish
(“Defendant”) violated Title II of the Americans with Disabilities
Act (“ADA”), 42 U.S.C. § 12101 et seq., and section 504 of the
2
Rehabilitation Act (“Rehabilitation Act”), 29 U.S.C. § 794 et seq.
(Rec. Doc. 1). Plaintiff alleged that Defendant has failed to make
the
programs,
services,
and
accommodations
at
the
Playground
accessible, as is required by U.S.C. § 12132. (Rec. Doc. 1).
Plaintiff seeks damages, injunctive and declaratory relief, and
attorney’s fees and costs. (Rec. Doc. 1).
III. CONTENTIONS OF MOVANT
Defendant argues that Plaintiff’s claim is false and without
merit, as disabled patrons have meaningful access to all Playground
programs. (Rec. Doc. 9-2 at 1). Thus, Defendant denies all claims
of liability and damages. Defendant argues that Plaintiff lacks
standing because he failed to establish any injury in fact. (Rec.
Doc. 9-2 at 2). Specifically, Defendant asserts that the mere
possibility that Plaintiff will visit the Playground again is
insufficient
to
establish
standing.
(Rec.
Doc.
9-2
at
3).
Additionally, Defendant argues that Plaintiff has not shown that
he actually attempted to attend an event at the Playground. (Rec.
Doc. 9-2 at 3). However, if this Court finds that Plaintiff has
standing,
facilities
Defendant
are
asserts
subject
to
that
the
the
Title
II
Playground’s
existing
standard
program
of
accessibility, and the Playground is in compliance with the ADA
when viewed in its entirety. (Rec. Doc. 9-2 at 5-6). First,
Defendant avers that the lack of designated seating at the football
and track field does not deny disabled patrons program access to
3
the
football
games.
(Rec.
Doc.
9-2
at
6).
In
its
reply
to
Plaintiff’s opposition, Defendant asserts that program access to
events may be achieved without providing access to bleachers. (Rec.
Doc. 28 at 6). Additionally, Defendant notes that there is ample
accessible seating area and staff available to assist disabled
patrons. (Rec. Doc. 28 at 7). Second, Defendant asserts that
Plaintiff’s claim that there is no accessible route to the baseball
field is false. (Rec. Doc. 9-2 at 6-7). Defendant likewise alleges
the falsity of Plaintiff’s claim that there is an insufficient
number of accessible designated spaces. (Rec. Doc. 9-2 at 7). In
its reply to Plaintiff’s opposition, Defendant asserts that the
Playground is in compliance with the applicable ADA standards.
(Rec. Doc. 28 at 8-9). Specifically, the Playground has a total of
293 parking spaces, which includes nine (9) accessible designated
parking
spaces.
(Rec.
Doc.
28
at
8).
Defendant
asserts
that
compliance standards only require seven (7) accessible parking
spaces under these facts. (Rec. Doc. 28 at 8). Fourth, Defendant
contends
that
Plaintiff’s
claim
that
there
is
a
trash
can
obstructing the accessible route to the Coach Melvin Burns Memorial
Field is false. (Rec. Doc. 9-2 at 7). Next, Defendant asserts that
Plaintiff’s claim that the men’s restroom stall is impermissibly
narrow and does not have handrails along the back wall fails to
specify which restroom is being referenced. (Rec. Doc. 9-2 at 7).
In its reply, Defendant notes that its expert attests that the
4
restroom in the gymnasium provides unobstructed use and is located
closest to the toddler play area and baseball field. (Rec. Doc. 28
at 8). However, Defendant agrees to make modifications to the
fixtures in the men’s restroom to address Plaintiff’s claims that
the bottom edge of the mirror is excessively high off the finished
floor and the pipes under the lavatory are not insulated to prevent
burns and abrasions. (Rec. Doc. 9-2 at 8). Defendant also agrees
to make the necessary modifications to address Plaintiff’s claims
that there are accessible designated parking spaces which are not
marked with vertical signage. (Rec. Doc. 9-2 at 8). In its reply
to
Plaintiff’s
stripes
at
opposition,
accessible
Defendant
designated
emphasizes
parking
that
spaces
parking
have
been
repainted and vertical signage has been installed. (Rec. Doc. 28
at
8-9).
Additionally,
Defendant
agrees
to
make
reasonable
modifications to address Plaintiff’s claims that the sale and
service counters at the Playground are excessively high off the
finished floor. (Rec. Doc. 9-2 at 7). In its reply, Defendant notes
that a call button has been installed with designated signage.
(Rec. Doc. 28 at 8). Defendant asserts that it provided this
information to Plaintiff on June 24, 2016, and that Plaintiff has
had ample opportunity to view the updates. (Rec. Doc. 28 at 8).
Finally, Defendant asserts that Plaintiff’s claim that there are
access aisles which do not lead to a curb cut onto a sidewalk is
inaccurate and vague. (Rec. Doc. 9-2 at 8). In its reply to
5
Plaintiff’s opposition, Defendant notes its expert’s observation
that "the playground site has accessible curb cuts along the
accessible means of egress throughout the site.” (Rec. Doc. 28 at
9). Further, Defendant attests that its expert observed that “both
the
Tennis
Courts
and
Pool
Facility
are
accessible
from
the
sidewalk along the playground[’s] private road.” (Rec. Doc. 28 at
9).
Defendant next asserts that Plaintiff cannot prevail on a
claim of discrimination under Title II of the ADA because Plaintiff
cannot show that he was denied access to the Playground’s football
games or other sporting events. (Rec. Doc. 9-2 at 9). Defendant
argues that Plaintiff’s bare assertion that he “fears” visiting
the Playground in the future does not equate to the denial of
access to programs as is required to establish a prima facie case
of discrimination. (Rec. Doc. 9-2 at 9-10). Finally, Defendant
avers that Plaintiff is not entitled to recover attorney fees in
this matter. (Rec. Doc. 9-2 at 10). Defendant notes that where a
defendant voluntarily remedies violations set forth in a lawsuit
initiated by a plaintiff, the plaintiff is not a prevailing party
for purposes of attorney’s fees and costs. (Rec. Doc. 9-2 at 10).
Defendant argues that Plaintiff is also not entitled to recover
damages because he cannot show intentional discrimination on the
part of Defendant. (Rec. Doc. 9-2 at 11).
IV.
CONTENTIONS OF OPPONENT
6
Plaintiff argues that he has made a prima facie showing that
Defendant
is
in
violation
of
the
“alteration”
standard,
the
“maintenance of accessible features” standard, and the “program
access” standard. (Rec. Doc. 19 at 2). Thus, summary judgment
should be entered for Plaintiff and against Defendant. Plaintiff
asserts that under the “program access” standard set forth by the
government, an entity is required to “affirmatively take action”
to ensure access. (Rec. Doc. 19 at 2-3). Plaintiff first argues
that summary judgment for Defendant is inappropriate as to the
accessible seating issue because Defendant has failed to provide
evidence to suggest that it provides unobstructed views of the
football field for disabled patrons despite its non-compliance
with the ADA. (Rec. Doc. 19 at 4). Additionally, Plaintiff argues
that Defendant’s proposed solution that disabled patrons locate
themselves “in the accessible route” is impermissible under Greer
v. Richardson Indep. Sch. Dist., 472 F. App’x 287, 293 (5th Cir.
2012). (Rec. Doc. 19 at 4-5). Second, Plaintiff argues that summary
judgment for Defendant is not appropriate as to the accessible
route from the basketball facility to the baseball field. (Rec.
Doc. 19 at 7). In support, Plaintiff points to the report of
engineering expert, Nicholas Heybeck, which identifies numerous
issues with the route, including the excessive slope of the curb
ramp, the landing, and the sidewalk. (Rec. Doc. 19 at 7). Next,
Plaintiff
contends
that
summary
7
judgment
for
Defendant
is
inappropriate as to the faded parking, insufficient parking, or
the
provision
of
employee-assistants.
(Rec.
Doc.
19
at
7).
Regarding the faded parking, Plaintiff argues that the fact that
the Defendant has repainted the stripes does not moot Plaintiff’s
claim. (Rec. Doc. 18-4 at 35). Namely, Plaintiff states that
Defendant has a continuing obligation to maintain the stripes and
notes that Defendant “lacks credibility” in this respect. (Rec.
Doc. 18-4 at 35). Regarding the claim of insufficient accessible
parking, Plaintiff maintains that Defendant has not mooted this
claim by its bare assertion that “The Playground exceeds the number
of accessible parking spaces required by the ADA.” (Rec. Doc. 184 at 36). Regarding the provision of employee-assistants to aid
disabled patrons, Plaintiff argues that the mere presence of
untrained employees does not undo the harmful effects of the
physical barriers. (Rec. Doc. 18-4 at 37). Next, Plaintiff asserts
that summary judgment for Defendant is inappropriate as to the
restrooms. (Rec. Doc. 19 at 6). Plaintiff argues that Defendant’s
provision
of
additional
accessible
toilet
rooms
during
large
events does not moot Plaintiff’s need for accessible toilet rooms
during small events or non-events. (Rec. Doc. 19 at 6). Plaintiff
also
contends
that
summary
judgment
for
Defendant
is
not
appropriate for the routes from the access aisles. (Rec. Doc. 19
at 6). Namely, Plaintiff points to Mr. Heybeck’s report indicating
that there is no route connecting the two accessible designated
8
parking spaces to the adjacent sidewalk and tennis court facility.
(Rec.
Doc.
19
at
6).
Finally,
Plaintiff
argues
that
summary
judgment for Defendant is inappropriate as to the basketball
concession stand. (Rec. Doc. 19 at 5). Plaintiff has issue with
Defendant’s claims in its supplemental discovery response that it
has installed a “call button for assistance” at the concession
stand with accompanying signage. (Rec. Doc. 19 at 5). Plaintiff
asserts that it has not yet had an opportunity to inspect the call
button to decide whether it constitutes a sufficient alternative
accommodation under the ADA. (Rec. Doc. 19 at 5).
Plaintiff next argues that he has made a sufficient showing
of intentional discrimination to state a claim for damages. (Rec.
Doc. 19 at 8). Plaintiff notes that failure to make the reasonable
modifications necessary to adjust for the unique needs of disabled
patrons can constitute intentional discrimination. (Rec. Doc. 19
at
8).
Plaintiff
Defendant
has
contends
allowed
that
unlike
seventy-six
a
(76)
“single
near
miss,”
mobility-related
ADA
barriers to exist at the Playground. (Rec. Doc. 19 at 9). Thus,
Plaintiff argues that a material question of fact exists as to
this issue and summary judgment for Defendant is not appropriate
on Plaintiff’s claim for money damages. (Rec. Doc. 19 at 9).
V.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper if the pleadings, depositions,
interrogatory
answers,
and
admissions,
9
together
with
any
affidavits, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter
of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477
U.S. 317, 327 (1986). A genuine issue exists if the evidence would
allow a reasonable jury to return a verdict for the nonmovant.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Although
the Court must consider the evidence with all reasonable inferences
in the light most favorable to the nonmoving party, the nonmovant
must produce specific facts to demonstrate that a genuine issue
exists for trial. Webb v. Cardiothoracic Surgery Assocs. of N.
Texas, 139 F.3d 532, 536 (5th Cir. 1998).
The
moving
party
bears
the
initial
responsibility
of
informing the district court of the basis for its motion. Celotex,
477 U.S. at 323. The movant must point to “portions of ‘the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits’ which it believes demonstrate
the absence of a genuine issue of material fact.” Id. (citing Fed.
R. Civ. P. 56). If and when the movant carries this burden, the
nonmovant must then go beyond the pleadings and use affidavits,
depositions,
interrogatory
responses,
admissions,
or
other
evidence to establish a genuine issue. Matsushita Elec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
“[W]here the non-movant bears the burden of proof at trial,
the movant may merely point to an absence of evidence, thus
10
shifting to the non-movant the burden of demonstrating by competent
summary judgment proof that there is an issue of material fact
warranting trial. . . . Only when ‘there is sufficient evidence
favoring the nonmoving party for a jury to return a verdict for
that party’ is a full trial on the merits warranted.” Lindsey v.
Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994) (citing
Anderson
v.
Accordingly,
Liberty
Lobby,
conclusory
Inc.,
477
rebuttals
U.S.
of
242,
the
249
(1986)).
pleadings
are
insufficient to avoid summary judgment. Travelers Ins. Co. v.
Liljeberg Enter., Inc., 7 F.3d 1203, 1207 (5th Cir. 1993).
VI.
DISCUSSION
A. Standing
A
plaintiff
seeking
injunctive
relief
under
a
federal
disability law has standing where he (1) alleges past injury under
the federal statute, (2) shows that it is reasonable to infer from
his complaint that the discriminatory treatment will continue, and
(3) shows that it is reasonable to infer that he “intend[s] to
return to the [public accommodation].” Kreisler v. Second Ave.
Diner Corp., 731 F.3d 184, 187-88 (2d Cir. 2013). The Supreme Court
has held that it is not necessary for an individual to provide a
specific date of expected future injury to establish standing.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 183 (2000). Plaintiff has stated that he lives in
close proximity to the Playground and desires to return to the
11
facility in the future. (Rec. Doc. 18-4 at 1). Thus, this Court
finds that Plaintiff has established standing.
B. ADA
Enacted
qualified
on
January
individual
26,
with
1992,
a
the
ADA
disability,
provides
by
reason
that
of
“no
such
disability, [shall] be excluded from participation in, or be denied
the benefits of services, programs or activities of a public
entity, or be subjected to discrimination by any public entity.”
42 U.S.C. § 12132. The Act defines discrimination as including “a
failure
to
remove
architectural
barriers…in
existing
facilities…where such removal is readily achievable.” 42 U.S.C. §
12182(b)(2)(A)(iv).
The
Americans
with
Disabilities
Act
Accessibility Guidelines for Buildings and Facilities (ADAAG) 1 sets
forth the minimum technical requirements for ADA compliance for
new constructions, as well as alterations to existing facilities.
28 C.F.R. § 36.402(a)(1). The term “existing facilities” includes
structures built prior to the ADA’s enactment that have not been
modified. Greer v. Richardson Indep. Sch. Dist., 752 F. Supp. 2d
746, 752 (N.D. Tex. 2010). However, when an existing facility
undergoes
alterations
stringent
architectural
after
the
standards
1992
effective
apply.
Tatum
date,
v.
more
Doctor’s
1 Section 504 of the Rehabilitation Act contains similar standards known as the
Uniform Federal Accessibility Standards. These guidelines are applicable to
structures built with federal funds. Public entities subject to Tile II may
comply with either.
12
Assocs., 2016 WL 852458. In such cases, the alterations “shall be
made so as to ensure that, to the maximum extent feasible, the
altered portions of the facility are readily accessible and usable
by individuals with disabilities…” 28 C.F.R. § 36.402(a)(1). An
alteration
is
defined
as
“a
change
to
the
place
of
public
accommodation or a commercial facility that affects or could affect
the usability of the building or facility or any part thereof.” 28
C.F.R. § 36.402(b). Normal maintenance and painting do not qualify
as alterations unless the usability of the facility or any part
thereof is affected. Id. Public entities “are not required to
modify
each
[existing]
facility
to
provide
for
access
by
individuals with disabilities.” Greer, 752 F. Supp. 2d at 752.
Rather, they must “operate all programs, services, and activities
in a manner such that, when viewed in its entirety, each service
or program is readily accessible to and usable by individuals with
disabilities…” Id. (emphasis added). The Supreme Court has held
that a public entity operating an older facility may comply with
Title II “by adopting a variety of less costly measures, including
relocating services to alternative, accessible sites and assigning
aides to assist persons with disabilities in accessing services.”
Tennessee v. Lane, 541 U.S. 509, 531-32 (2004).
Defendant argues that the Playground’s existing facilities
are subject to the program accessibility standard because the only
updates made since original construction include repainting of
13
faded buildings and installing of metal rods in the gymnasium roof.
(Rec. Doc. 9-2 at 5). Accordingly, this Court finds that the
program accessibility standard is the appropriate standard to
apply given that Plaintiff’s claims deal with structures built
prior to the ADA’s enactment in 1992.
C. Accessible Seating
Regarding
Plaintiff’s
claim
that
the
lack
of
designated
seating at the football and track field denies disabled patrons
program access to the football games, this Court finds that summary
judgment is inappropriate. A genuine issue of material fact exists
as to whether program access to events may be achieved by seating
disabled patrons in the accessible walking pathway.
D. Accessible Route to Baseball Field
This Court likewise denies Defendant’s Motion for Summary
Judgment regarding Plaintiff’s claim that there is no accessible
route to the baseball field. Defendant’s conclusory statement of
the falsity of this claim does not establish that there is no
genuine issue of material fact.
E. Routes from Access Aisles
This
Court
also
denies
Defendant’s
Motion
for
Summary
Judgment with respect to Plaintiff’s claim that there is a trash
can obstructing the accessible route to the Coach Melvin Burns
Memorial Field. Defendant’s assertion that this claim is false
does not establish that there is no genuine issue of material fact.
14
Similarly,
this
Court
denies
Defendant’s
Motion
for
Summary
Judgment as to Plaintiff’s claim that there are access aisles which
do not lead to a curb cut onto a sidewalk because a genuine issue
of material fact exists.
F. Restrooms
Regarding Plaintiff’s claims concerning restroom facilities,
this Court finds that summary judgment is inappropriate as to
Plaintiff’s claim that the men’s restroom stall is impermissibly
narrow and does not have handrails. Defendant’s assertion that its
expert
found
that
the
restroom
in
the
gymnasium
“provides
unobstructed use” does not establish that the restroom is in
compliance
with
ADA
standards.
Summary
judgment
is
also
not
appropriate concerning Plaintiff’s claim regarding the mirror and
uninsulated pipes in the men’s restroom. Defendant’s assertion
that it will make the necessary modifications is insufficient to
show there is no genuine issue of material fact at present.
G. Basketball Concession Stand
Regarding
Plaintiff’s
claim
that
the
sale
and
service
counters at the Playground are excessively high off the finished
floor, this Court finds that the granting of summary judgment is
not
appropriate.
Despite
Defendant’s
assertion
that
it
has
installed a call button and signage to aid disabled patrons, there
is still a genuine issue of material fact concerning whether this
has addressed accessibility issues.
15
H. Parking Lot
However,
Defendant’s
this
favor
Court
is
finds
appropriate
that
as
summary
to
judgment
Plaintiff’s
in
claim
concerning faded parking stripes marking accessible designated
spots and the lack of vertical signage. Defendant has repainted
the spots in question and has installed vertical signage. (Rec.
Doc. 28 at 8-9). Thus, there is no genuine issue of material fact
as to this claim. Additionally, this Court grants Defendant’s
Motion for Summary Judgment with respect to Plaintiff’s claim that
there is an insufficient number of accessible designated spaces.
Defendant has set forth facts to establish that there is no genuine
issue of material fact that Defendant is in compliance with ADA
requirements governing accessible designated parking spaces.
VII. CONCLUSION
In light of the foregoing, IT IS ORDERED that Defendant’s
Motion for Summary Judgment be DENIED in part and GRANTED in part.
New Orleans, Louisiana, this 25th day of August, 2016.
__________________________________
SENIOR UNITED STATES DISTRICT JUDGE
16
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