Miraglia v. Board of Directors of the Louisiana State Museum, et al
Filing
21
ORDER AND REASONS Denying 10 Motion to Dismiss for Failure to State a Claim and Denying 11 Motion for Summary Judgment as set out in document. Signed by Judge Jay C. Zainey on 9/20/2018. (ajn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MITCHELL MIRAGLIA
CIVIL ACTION
VERSUS
NO. 18-5695
BD. OF SUPERVISORS OF LA. STATE MUSEUM, ET AL.,
SECTION "A"(5)
and SMITH ORGANIZATION D/B/A MONTY’S ON THE SQUARE
ORDER AND REASONS
The following motions are before the Court: Motion to Dismiss for Failure to
State a Claim (Rec. Doc. 10) and Motion for Summary Judgment (Rec. Doc. 11)
filed by The Board of Directors of the Louisiana State Museum and Steven Maklansky in
his official capacity as interim director of the Louisiana State Museum. Plaintiff Mitchell
Miraglia opposes the motions. The motions, submitted for consideration on September
5, 2018, are before the Court on the briefs without oral argument.
I.
Background
Plaintiff Mitchell Miraglia (“Plaintiff” or “Miraglia”) is a quadriplegic afflicted with
cerebral palsy and he requires a wheelchair for mobility. Defendant Board of Directors
of the Louisiana State Museum is a subdivision of the State of Louisiana and operates
the retail complex in the Lower Pontalba Building located in New Orleans. Defendant
Steven Maklansky is the interim director of the Museum and he has been sued in his
official capacity only (Maklansky and the Board are referred to collectively as “the
Museum”). Defendant Smith Organization, LLC d/b/a Monty’s on the Square leases
18-4947 Miraglia v. La. State Museum & Monty’s
The Museum’s Motion to Dismiss/for Summary Judgment (Rec. Docs. 10 & 11)
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retail space in the Lower Pontalba Building and operates a public restaurant from that
location.
Plaintiff has sued defendants under the ADA and Rehabilitation Act (the Museum
only as to the latter) for barriers to access that he encountered on February 22, 2018,
when he visited Monty’s during normal business hours.1 Plaintiff complains that he
encountered barriers to access in entering the restaurant because the ramp provided at
the entrance was non-ADA compliant and dangerous for wheelchair users. Plaintiff
contends that significant barriers to access also exist within the men’s restroom, which
was completely inaccessible to wheelchair users.
By way of background, this is not Mr. Miraglia’s first lawsuit against the Museum.
In Civil Action 15-4947, Miraglia sued the Museum under the ADA for accessibility
violations at several of the retail shops leasing space from the Museum in the Lower
Pontalba Building. The case was tried to the bench on September 11, 2017. On the
morning of trial before the presentation of evidence began, the State was allowed to
admit evidence that it had purchased five door buzzers, portable ramps, and signs to be
installed and made available to the retail tenants. Given that five ramps were
purchased, the Court assumes that those were for the retail establishments at issue in
The ADA and Rehabilitation Act generally are interpreted in para materia. Frame v. City of
Arlington, 657 F.3d 215, 223 (5th Cir. 2011). Section 504 of the Rehabilitation Act prohibits
disability discrimination by recipients of federal funding. Neither side suggests that the
standards applicable under the ADA differ in any manner from the standards applicable under
the Rehabilitation Act, at least insofar as this case is concerned. Plaintiff alleges that the
Museum receives federal funding to supports its operations.
1
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that particular lawsuit for which Mr. Miraglia had standing to sue: Ma Sherie Amour
Shop, Little Toy Shop, Louisiana Visitors and Information Center, Creole Delicacies,
and Tabasco Country Store. Access to Monty’s was not at issue as of the date of trial,
and it appears that the Museum did not take the prophylactic measure of providing the
other tenants in the Lower Pontalba (like Monty’s) with their own ramps because the
ramp that Plaintiff encountered when he attempted to enter Monty’s on February 22,
2018, was not like the ADA-compliant ramps that the Museum purchased in conjunction
with Civil Action 15-4947.2
Plaintiff has sued the Museum under Title II of the ADA and the Rehabilitation
Act for disability discrimination; he has sued Monty’s under Title III of the ADA.
The Museum now moves to dismiss all claims against it contending that it cannot
be liable for any violations committed by its lessee, Monty’s. Additionally, the Museum
moves for summary judgment as to the exterior accessibility claim, contending that the
claim is now moot.
II.
Discussion
The Museum’s motion to dismiss is grounded on the contention that Monty’s
allegedly discriminatory programs and activities are distinct from those offered by the
Museum. The Museum frames the question of law presented by its motion as whether
the Museum can be liable under Title II of the ADA for Monty’s alleged failures to
According to Plaintiff, both the interior and exterior accessibility barriers at Monty’s were made
known to the Museum in 2016 via his expert report in the 15-4947 case.
2
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accommodate with respect to its programs, activities, and events—in other words, its
restaurant business. The Museum posits that this Court has already recognized that the
Museum and its tenants do not act jointly, which is one of the requirements for holding a
public entity and a private entity responsible for ADA violations.
When resolving a motion to dismiss, the Court accepts all well-pleaded facts as
true and views those facts in the light most favorable to the plaintiff. Firefighters’
Retirement Sys. v. Grant Thornton, LLP, 894 F.3d 665, 669 (5th Cir. 2018) (quoting
Hines v. Alldredge, 783 F.3d 197-200-01 (5th Cir. 2015)). To survive a motion to
dismiss, a complaint must contain sufficient factual mater, accepted as true, to “state a
claim to relief that is plausible on its face.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). 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. Id.
The Museum’s motion to dismiss is DENIED because contrary to what the
Museum suggests, Plaintiff is not attempting to hold the Museum vicariously liable for
Monty’s alleged violations. Regarding the interior access issues in the men’s restroom
at Monty’s, Plaintiff’s allegation that the Museum itself is responsible for those barriers is
factually plausible. The barriers described in the restroom are not necessarily curable
without alterations that are expressly forbidden under the lease. (Rec. Doc. 14-1,
Opposition Exh. A). Whether something short of those types of alterations would cure
the problems—and therefore whether Monty’s should have corrected the problem on its
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own—is beyond the scope of a Rule 12(b)(6) motion to dismiss. At this juncture, the
Court accepts as true the allegation that the men’s restroom is completely unusable to
wheelchair users and it is beyond the scope of the pleadings to determine who bears
the fault for the problem. All that is certain is that the Museum cannot insulate itself from
liability by leasing a non-compliant space to a tenant who may be contractually
prohibited from curing the problem. Whether this is what has actually occurred in this
case is not to be resolved on the pleadings alone.
As to the exterior access barrier that was created by the inferior ramp, there is no
evidence that the Museum provided to Monty’s the ADA-compliant ramp and buzzer
system that was approved in Civil Action 15-4947 until after this lawsuit was filed. In
fact, Mr. Robert W. Levy confirms in his affidavit that the apparatus was provided to
Monty’s on July 10, 2018, after suit was filed. (Rec. Doc. 11-4, MSJ Exh. A). Thus, this
case does not present the situation that the Court alluded to in its Findings of Fact and
Conclusions of Law entered in 15-4947 where the Court stated: “The Louisiana State
Museum does not oversee or supervise the day to day operations of the tenants and
cannot be responsible if the employees of a given tenant fail to appropriately respond
when a disabled person presses the door buzzer for assistance (by unlatching the
second door fold and placing the portable ramp into position).” (Rec. Doc. 99 at 6). In
other words, Plaintiff is not claiming that the Museum is responsible for its tenant’s
failure to properly place the ramp upon request. This statement by the Court in Civil
Action 15-4947 is not a finding that the Museum and its tenants do not act jointly.
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Plaintiff’s request for injunctive relief might inevitably be moot in light of
Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human
Resources, 532 U.S. 598, 608 (2001), but the Court declines to make that determination
on the pleadings. Moreover, the claim for damages related to the exterior access barrier
is not mooted by the Museum’s post-filing remedy.
Accordingly, and for the foregoing reasons;
IT IS ORDERED that the Motion to Dismiss for Failure to State a Claim (Rec.
Doc. 10) and the Motion for Summary Judgment (Rec. Doc. 11) filed by The Board of
Directors of the Louisiana State Museum and Steven Maklansky in his official capacity
as interim director of the Louisiana State Museum are DENIED.
September 20, 2018
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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