Dean v. United States Department of Highways et al

Filing 14

ORDER AND REASONS granting 7 Motion to Dismiss for Failure to State a Claim. For the foregoing reasons, the Court GRANTS defendant's motion to dismiss. Plaintiff's claim against the City of New Orleans is DISMISSED WITHOUT PREJUDICE. Signed by Judge Sarah S. Vance on 12/5/2017. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DARRYL DEAN

CIVIL ACTION

VERSUS

NO. 17-7672

UNITED STATES OF AMERICA ET AL.

SECTION “R” (2)

ORDER AND REASONS
Defendant the City of New Orleans moves to dismiss Plaintiff Darryl
Dean’s Americans with Disabilities Act claim. 1 For the following reasons, the
Court grants the motion.

I.

BACKGROUND
This case arises out of an alleged violation of the Americans with

Disabilities Act (ADA). Plaintiff Darryl Dean is a disabled veteran and retired
police sergeant. On August 10, 2016, plaintiff hit “a severely large waterfilled pothole” while driving down Moss Street in New Orleans.2 Plaintiff
alleges that the collision damaged his car and injured his back.3 Plaintiff then

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R. Doc. 7.
R. Doc. 1 at 6.
Id.
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called 911, which he asserts “neglectfully mishandled the call.” 4 Emergency
assistance never arrived, so plaintiff sought medical attention on his own. 5
Plaintiff sued the City of New Orleans and the United States on August
10, 2017.6 The City of New Orleans now moves to dismiss for failure to state
a claim. 7

II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead

enough facts to “state a claim to relief that is plausible on its face.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 547 (2007)). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. at 678. A court
must accept all well-pleaded facts as true and must draw all reasonable
inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d
228, 239, 244 (5th Cir. 2009). But the Court is not bound to accept as true
legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678.

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Id.
Id.
Id. at 7.
R. Doc. 7.
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A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal conclusions, or
formulaic recitations of the elements of a cause of action. Twombly, 550 U.S.
at 555. In other words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will reveal evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. If there
are insufficient factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face
of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007),
the claim must be dismissed.

III. DISCUSSION
In his complaint, plaintiff appears to allege that defendants violated
Title II of the ADA. Title II of the ADA prohibits disability discrimination in
the provision of public services. See Frame v. City of Arlington, 657 F.3d
215, 223 (5th Cir. 2011) (en banc). Specifically, 42 U.S.C. § 12132 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
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services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.”
Plaintiff has failed to state a claim under this statute. Plaintiff does not
allege that the City of New Orleans treated him differently than others
because of his disability. While he does allege that the 911 dispatcher
negligently handled the call, he does not assert that this negligent treatment
was based on his disability. Nor does he allege that the pothole rendered
Moss Street inaccessible. Cf. Frame v. City of Arlington, 657 F.3d 215, 227
(5th Cir. 2011) (“When a city decides to build or alter a sidewalk and makes
that sidewalk inaccessible to individuals with disabilities without adequate
justification, disabled individuals are denied the benefits of that city’s
services, programs, or activities.”). Although the Court construes plaintiff’s
complaint broadly because of his pro se status, see Davison v. Huntington
Ingalls, Inc., 712 F.3d 884, 885 (5th Cir. 2013), the Court cannot discern
from plaintiff’s pleadings any possible examples of disability-based
discrimination in violation of Title II of the ADA. Accordingly, plaintiff’s
claim against the City of New Orleans must be dismissed.

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IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS defendant’s motion to

dismiss. Plaintiff’s claim against the City of New Orleans is DISMISSED
WITHOUT PREJUDICE.

5th
New Orleans, Louisiana, this _____ day of December, 2017.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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