Gilmore v. Mississippi Coast Coliseum Commission
ORDER denying Motion 9 to Dismiss, or in the Alternative, Motion for Summary Judgment Based on Eleventh Amendment Sovereign Immunity, filed by Defendant Mississippi Coast Coliseum Commission; denying Motion 11 for More Definite Statement, filed by Defendant Mississippi Coast Coliseum Commission Signed by District Judge Halil S. Ozerden on 03/22/2013 (HM)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
Civil No. 1:12-cv-183-HSO-RHW
MISSISSIPPI COAST COLISEUM
COMMISSION, a Political Subdivision
ORDER DENYING DEFENDANTS’ MOTION TO DISMISS, OR IN THE
ALTERNATIVE, MOTION FOR SUMMARY JUDGMENT BASED ON
ELEVENTH AMENDMENT SOVEREIGN IMMUNITY AND DENYING
DEFENDANT’S MOTION FOR MORE DEFINITE STATEMENT
BEFORE THE COURT are two Motions: the Motion  to Dismiss, or in the
Alternative, Motion for Summary Judgment Based on Eleventh Amendment
Sovereign Immunity, filed by Defendant Mississippi Coast Coliseum Commission
(“the Commission”), and the Commission’s Motion  for a More Definite Statement.
Plaintiff Wayne Gilmore has filed Responses  to the Motions, and the
Commission has filed Replies . The United States has intervened in this
matter and filed a Memorandum  of Law as Intervenor in opposition to the
Commission’s contention that it is immune from Plaintiff’s claims pursuant to the
Eleventh Amendment to the United States Constitution. The Commission has filed a
Response  to the United States’ Memorandum. After consideration of the parties’
submissions, the record, and relevant legal authorities, and for the reasons discussed
below, the Court finds that the Commission’s Motions  should be denied.
In its Complaint, Plaintiff alleges violations of Title II of the Americans with
Disabilities Act of 1990 (ADA), 42 U.S.C. 12131 et seq., and § 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 795. These claims are advanced against the
Commission, a political subdivision of the State of Mississippi, which administers
programs and activities at the Mississippi Coast Coliseum and Convention Center
(“the Coliseum”). Pl.’s Compl.  at p. 2; Def.’s Answer at p. 8. Plaintiff submits that
he is paralyzed from the waist down and substantially impaired in several major life
activities such as walking and standing. Pl.’s Compl.  at p. 2. He maintains that
he visited the Coliseum in February 2012 to attend a hockey game and intends to
return to the Coliseum to utilize the programs and activities there. Id. He alleges
that he “experienced serious difficulty accessing the programs and activities [in the
Coliseum] due to architectural barriers,” consisting of the following:
. . . inaccessible parking designated as accessible due
to numerous spaces with excessive slope;
inaccessible parking designated as accessible due to
numerous spaces lacking proper accessibility signage;
inaccessible parking designated as accessible due to
numerous spaces lacking full access aisles and/or
obstructions in access aisles;
inaccessible exterior ramps due to excessive slope and
lack of proper handrails;
inaccessible service, ticket, and concession counters
due to excessive height; and
inaccessible restrooms due [to] inaccessible stalls.
Id. at p. 4.
In support of his Rehabilitation Act claim, Plaintiff contends that the Coliseum
engaged in discriminatory conduct against him by:
denying [him] access to, and the opportunity to
participate in or benefit from, the aids, benefits,
activities, programs, accommodations and services
offered by [t]he Commission;
by otherwise limiting [him] in the enjoyment of the
rights, privileges, advantages and opportunities
enjoyed by individuals without disabilities who receive
[t]he Commission’s aids, benefits, and services;
making facility site or location selections that have the
effect of discriminating against individuals with
disabilities and excluding them from and denying
them benefits of, and defeating or substantially
impairing the accomplishment of the objectives of, the
services, programs and activities offered by [t]he
failing to administer services, programs and activities
in the most integrated setting appropriate to [his
excluding [him] from participation in, and the benefits
of, [t]he Commission’s services[,] programs[,] and
activities as a result of [t]he Commission’s facility
being inaccessible to or unusable by [him]; and
failing to designate and/or construct new facilities, or
alterations to existing facilities, which are readily
accessible to and useable by individuals with
Pl.’s Compl.  at pp. 7-8. Plaintiff submits that the Commission’s alleged violations
of Title II of the ADA and § 504 of the Rehabilitation Act are ongoing and that he will
likely be affected by these violations upon future visits to the Coliseum. Id. at pp. 5,
The Commission’s Motion to Dismiss, or in the Alternative, Motion for
Summary Judgment Based on Eleventh Amendment Sovereign Immunity
In its Motion , the Commission contends that Plaintiff’s Complaint should be
dismissed for failure to state a claim and because the Commission is immune from
suit pursuant to the Eleventh Amendment to the United States Constitution. Def.’s
Mem.  in Supp. of Mot. to Dismiss at pp. 1-7. The Court will first determine
whether the allegations in Plaintiff’s Complaint state a claim for relief under Title II
of the ADA and § 504 of the Rehabilitation Act before proceeding to consider the
Commission’s Eleventh Amendment sovereign immunity defense. Hale v. King, 642
F.3d 492, 503 (5th Cir. 2011).1
The only exhibits attached to the Commission’s Motion are nine other
Complaints that Plaintiff has filed in which he asserts ADA claims against various
private entities. Ex. A [9-1] to Def.’s Mot.  to Dismiss. The Court finds that at this
juncture the number of lawsuits Plaintiff has filed alleging ADA violations is not
relevant to determining whether his Complaint in this particular case states a claim
or whether the Commission is entitled to Eleventh Amendment immunity under the
circumstances here. Accordingly, the Court will not assign any weight to Plaintiff’s
In Hale, the Fifth Circuit addressed whether the plaintiff had stated a claim
under Title II of the ADA before addressing sovereign immunity. Hale, 642 F.3d at
498. In doing so, it stated that “[a] fundamental and longstanding principle of
judicial restraint requires that courts avoid reaching constitutional questions in
advance of the necessity of deciding them.” Id. at 503 n.38 (citing Lyng v. Nw. Indian
Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988)).
litigation history in resolving the Motions before it.
Whether Plaintiff’s Complaint Should be Dismissed for Failure to State
Standard of Review
A motion to dismiss under Rule 12(b)(6) “is viewed with disfavor and is rarely
granted.” Kaiser Aluminum & Chem. Sales v. Avondale Shipyards, 677 F.2d 1045,
1050 (5th Cir. 1982). “The purpose of a motion under Federal Rule 12(b)(6) is to test
the formal sufficiency of the statement of the claim for relief; the motion is not a
procedure for resolving a contest between the parties about the facts or the
substantive merits of the plaintiff’s case.” 5B CHARLES ALAN WRIGHT ET AL., FEDERAL
PRACTICE AND PROCEDURE § 1356 (3d ed. 2004).
“Under Rule 12(b)(6), a claim should not be dismissed unless the court
determines that it is beyond doubt that the plaintiff cannot prove a plausible set of
facts that support the claim and would justify relief.” Lane v. Halliburton, 529 F.3d
548, 557 (5th Cir. 2008)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-58
(2007)). All well-pleaded facts must be viewed in the light most favorable to the
plaintiff. Fin. Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006).
On the other hand, the plaintiff must plead specific facts, not conclusory allegations,
to avoid dismissal. Id.
To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” 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.
plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Where a complaint
pleads facts that are “merely consistent with” a defendant's
liability, it “stops short of the line between possibility and
plausibility of ‘entitlement to relief.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (U.S. 2009) (quoting Twombly, 550 U.S. at 55657, 570).
The Court’s analysis is generally limited “to the facts stated in the complaint
and the documents either attached to or incorporated in the complaint.” Lovelace v.
Software Spectrum, Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996). “[C]ourts may also
consider matters of which they may take judicial notice.” Id. at 1018. A court “may
permissibly refer to matters of public record.” Cinel v. Connick, 15 F.3d 1338, 1343
n.6 (5th Cir. 1994).
Plaintiff’s Complaint Sufficiently States Claims For Relief Under
Title II of the ADA and § 504 of the Rehabilitation Act
Plaintiff seeks relief for disability discrimination under Title II of the ADA, as
well as under § 504 of the Rehabilitation Act. “[T]he rights and remedies afforded
plaintiffs under Title II of the ADA are almost entirely duplicative of those provided
under § 504 of the Rehabilitation Act.” Bennett-Nelson v. Lousiana Bd. of Regents,
431 F.3d 448, 454 (5th Cir. 2005), cert. denied, 547 U.S. 1098 (2006).2 Section 504
applies to “any program or activity receiving Federal financial assistance . . . . ” 29
“The sole difference between the statutes lies in their causation
requirements,” but this difference is not implicated where, as here, the claims are
directed towards architectural boundaries. Pace v. Bogalusa City Sch. Bd., 403 F.3d
272, 287-89 (5th Cir. 2005). Where a public entity fails to make reasonable
accommodations for disabled individuals, “the cause of that failure is irrelevant.”
Bennett-Nelson, 431 F.3d at 454-55.
U.S.C. § 794(a). Title II applies to public entities, including state and local
governments, as well as their departments, agencies, and instrumentalities. 42
U.S.C. § 12131(1). A plaintiff states a claim for relief under Title II of the ADA if he
alleges sufficient facts to support the following elements:
(1) that he has a qualifying disability; (2) that he is being
denied the benefits of services, programs, or activities for
which the public entity is responsible, or is otherwise
discriminated against by the public entity; and (3) that such
discrimination is by reason of his disability.
Hale, 642 F.3d at 499.
Similarly, § 504 of the Rehabilitation Act provides:
No otherwise qualified individual with a disability in the
United States, as defined in section 705(20) of this title, shall,
solely by reason of her or his disability, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving
Federal financial assistance . . . .
29 U.S.C. § 794(a). The Commission contends that Plaintiff’s Complaint does not contain
sufficient factual content to state plausible claims under either Title II of the ADA or §
504 of the Rehabilitation Act.
Whether Plaintiff Must Plead the Specific Locations of the Alleged
The Commission submits that the Coliseum is a large facility and that Plaintiff
is required to plead the specific locations where the alleged violations occurred, such
as identifying which parking spaces, exterior ramps, counters, and restrooms he
contends are in violation. Def.’s Mem.  in Supp. of Mot. to Dismiss at p. 2; Def.’s
Mem.  in Supp. of Mot. for More Definite Statement at p. 2. It maintains that
Plaintiff is required to state in his Complaint that he was “denied services or
activities” and reveal whether “he was unable to participate in any specific activity
due to discrimination based on his disability” and whether he was denied “any
specific accommodation.” Def.’s Mem.  in Supp. of Mot. to Dismiss at p. 4.3
The Commission has offered no authority in support of its contention that
Plaintiff must plead his Title II and § 504 claims with such particularity. In the
absence of such authority, the Court finds that Plaintiff’s Complaint contains
sufficient factual matter, accepted as true, to state plausible claims. “The notice
pleading requirements of Federal Rule of Civil Procedure 8 and case law do not
require an inordinate amount of detail or precision.’” Cooper Indus., LLC v. Amer.
Int’l Specialty Lines Ins. Co., No. 07-20468, 273 Fed. App’x 297, 307 (5th Cir.
2008)(quoting St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 434 (5th Cir.
2000)); see Twombly, 550 U.S. at 570 (“[W]e do not require a heightened fact pleading
of specifics, but only enough facts to state a claim to relief that is plausible on its
Whether Plaintiff’s Complaint Must State that the Commission
Received Federal Funds During the Time that Plaintiff Claims He
Was Discriminated Against
The Rehabilitation Act is Spending Clause legislation. Pursuant to the
Spending Clause, U.S. Const., Art. I, § 8, cl. 1, “Congress may attach conditions on the
Plaintiff disputes that one can only recover under the Title II of the ADA and
Section § 504 of the Rehabilitation Act if he proves that he was “unable to participate”
and has cited authority in support of this assertion. Pl.’s Mem.  in Response to
Mot. to Dismiss at pp. 5-6.
receipt of federal funds, and has repeatedly employed the power to further broad
policy objectives by conditioning receipt of federal moneys upon compliance by the
recipient with federal statutory and administrative directives.” South Dakota v. Dole,
483 U.S. 203, 206-07 (1987)(internal citations omitted). As a condition of receiving
federal funds, “[a] State shall not be immune under the Eleventh Amendment of the
Constitution of the United States from suit in Federal court for a violation of Section
504 of the Rehabilitation Act of 1973 . . . .” 42 U.S.C. § 2000d-7(a)(1); see BennettNelson, 431 F.3d at 451. Section 504, however, generally applies to a state public
entity only during the period that it is accepting federal assistance. Dansby-Giles v.
Jackson State Univ., Civil Action No. 3:08-cv-349-TSL-JCS, 638 F. Supp. 2d 698, 70001 (S.D. Miss. June 9, 2009)(citing Garcia v. S.U.N.Y. Health Sciences Ctr. of
Brooklyn, 280 F.3d 98, 113 n.2 (2d Cir. 2001)); see James Lockhart, J.D., Who is
Recipient of, and What Constitutes Program or Activity Receiving, Federal Financial
Assistance for Purposes of § 504 of the Rehabilitation Act, 160 A.L.R. Fed. 297 (2000).
The Commission argues that Plaintiff’s § 504 Rehabilitation Act claim should
be dismissed because his Complaint does not allege that the Commission received
federal funds during the time of the alleged discrimination. Def.’s Mem.  in Supp.
of Mot. to Dismiss at pp. 5-8. The Complaint states only that “[u]pon reasonable
belief, [t]he Commission is the recipient of Federal Funds.” Pl.’s Compl.  at p. 9.
Plaintiff and the United States maintain that this statement is sufficient at the
pleading stage to articulate a plausible § 504 claim because it can only be determined
through discovery whether any federal funding received by the Commission subjects
it to suit under the Rehabilitation Act. United States Mem.  at p. 13; Pl.’s Resp.
 to Def.’s Mot. to Dismiss at pp. 14-15. The United States further submits that
“[i]t is unrealistic to expect specificity regarding federal funding from a plaintiff at
the pleading stage, as these are matters regarding the defendant’s internal
organization and funding that are peculiarly within the defendant’s knowledge.”
United States Mem.  at p. 13. The United States cites authority in support of this
proposition, which the Court finds persuasive.
In Gaylor v. Georgia Dep’t of Natural Res., the court found:
Because what funds the Defendants have received are facts
within Defendants’ control, the Court finds that Plaintiff has
plead[ed] a sufficient factual basis for Eleventh Amendment
waiver as to the [Rehabilitation Act] claim. However, should
discovery prove that federal funds were not received,
Defendants may move for summary judgment on this ground
at any time.
No. 2:11-cv-288, 2012 WL 3516489, *7 (N.D. Ga. Aug. 15, 2012).
In Cohn v. KeySpan Corp., the court denied the defendant’s motion seeking
dismissal of the plaintiff’s Rehabilitation Act claim, stating: “Whether or not any of
the Utility Defendants receives federal funding is a fact particularly within the
possession and control of those defendants, which plaintiff is entitled to discern
during discovery.” No. 09 CV 2477(SJF)(AKT), 713 F. Supp. 2d 143, 159 (E.D.N.Y.
May 13, 2010).
“The Twombly plausibility standard . . . does not prevent a plaintiff from
pleading facts upon information and belief where the facts are peculiarly within the
possession and control of the defendant . . . .” Arista Records, LLC v. Doe 3, 604 F.3d
110, 120 (2d Cir. 2010). Whether the Commission receives federal funding that
subjects it to suit under § 504 of the Rehabilitation Act is a matter that Plaintiff may
explore through discovery. Plaintiff’s Complaint contains sufficient factual matter,
accepted as true, to state a plausible claim under § 504.
Whether Plaintiff’s Claims Are Barred by the Eleventh Amendment to
the United States Constitution
The Commission also maintains that it is immune from Plaintiff’s claims
pursuant to the Eleventh Amendment, which “bars an individual from suing a state
in federal court unless the state consents to suit or Congress has clearly and validly
abrogated the state’s sovereign immunity.” Perez v. Region 20 Educ. Serv. Ctr., 307
F.3d 318, 326 (5th Cir. 2002).
Whether Eleventh Amendment Immunity Bars Plaintiff’s § 504
Rehabilitation Act Claim
The Commission contends that Plaintiff’s § 504 claim should be dismissed
because Plaintiff “is simply unable to meet the elements” for establishing that
receipt of any federal funding by the Commission validly waived the Commission’s
Eleventh Amendment Immunity. Id. at pp. 5-6. As previously discussed, whether the
Commission has received federal funding that subjects it to suit under § 504 of the
Rehabilitation Act is a matter that Plaintiff may explore during discovery.
Accordingly, the Court cannot decide at this juncture whether the Commission validly
waived its Eleventh Amendment immunity by accepting federal funds. The
Commission’s Motion  to Dismiss, or in the Alternative, Motion for Summary
Judgment will be denied without prejudice to the extent that it requests the Court to
find that it is immune from Plaintiff’s § 504 Rehabilitation Act claim.
Whether Eleventh Amendment Immunity Bars Plaintiff’s
Title II ADA Claim
Sovereign immunity bars Title II claims against public entities “unless
Congress has validly abrogated that immunity under its power to enforce the
Constitution’s substantive guarantees through the Fourteenth Amendment.” Duncan
v. Univ. of Texas Health Science Ctr. at Houston, No. 11-20025, 469 Fed. App’x 364, *3
(5th Cir. Apr. 10, 2012). Determining whether sovereign immunity has been
abrogated as to a particular Title II claim hinges on three inquiries:
First, the court must consider “which aspects of the State’s
alleged conduct violated Title II.” United States v. Georgia,
546 U.S. 151, 159 (2006). Next, the court must determine “to
what extent such misconduct also violated the Fourteenth
Amendment.” Id. If the alleged conduct violates both a
constitutional guarantee and Title II, then there is no
immunity, but if the conduct offends neither Title II nor the
Constitution, then the suit must fail. If “the State’s conduct
violated Title II but did not violate the Fourteenth
Amendment,” however, the court must make a third inquiry
to determine “whether Congress’s purported abrogation of
sovereign immunity as to that class of conduct is nevertheless
Hale v. King, 642 F.3d 492, 498 (5th Cir.
2011)(interpreting Georgia). The third test arises from the
principle that Congress’s power under the Fourteenth
Amendment includes authority to prohibit conduct that is not
itself unconstitutional but that Congress determines should
be barred by one of its enactments “both to remedy and to
deter violations of rights guaranteed” by the Amendment.
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 81 (2000). Because
Title II might still abrogate sovereign immunity for violations
that fall short of a constitutional violation, the courts must
always assess the underlying merits of the cause of action.
Hale, 642 F.3d at 498.
“[P]rior to reaching any constitutional questions, federal courts must consider
nonconstitutional grounds for decision.” Gulf Oil Co. v. Bernard, 452 U.S. 89, 99
(1981). Should Plaintiff’s Title II claim fail on the merits, the issue of the
Commission’s potential Eleventh Amendment immunity from this claim would
become moot. Buchanan v. Maine, 469 F.3d 158, 172 (1st Cir. 2006); see Wells v.
Thaler, No. 10-20648, 460 Fed. App’x 303, *5 (5th Cir. Feb. 7, 2012)(collecting cases
where courts considered the record when determining abrogation in Title II claim).
The Court “should first address whether the conduct challenged by the plaintiff
violates Title II” before “address[ing] whether Title II validly abrogrates sovereign
immunity in these circumstances.” Brockman v. Texas Dept. of Criminal Justice, No.
09-40940, 397 Fed. App’x 18, *23 (5th Cir. Sept. 30, 2010). Proceeding in this manner
will prevent the Court “from unnecessarily addressing the constitutional issue of
whether the ADA may validly abrogate sovereign immunity . . . .” Id. at *23
(“Previously, when lower courts have unnecessarily reached issues concerning the
constitutionality of the ADA’s abrogation of sovereign immunity, the offending
portions of their decisions have been vacated on appeal.”).
The substantive merits of Plaintiff’s Title II claim cannot be determined
without further factual development. Accordingly, the Court will not address the
Commission’s Eleventh Amendment immunity defense to this claim until it can be
determined whether Plaintiff’s claim fails on the merits. The Commission’s Motion
 to Dismiss, or in the Alternative, Motion for Summary Judgment will be denied
without prejudice to the extent that it requests the Court to find that the Eleventh
Amendment bars Plaintiff’s Title II ADA claim.
The Commission’s Motion for More Definite Statement
Because Plaintiff’s Complaint contains sufficient factual content, accepted as
true, to state plausible claims under Title II and § 504, the Commission’s Motion 
for More Definite Statement should be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion  to
Dismiss, or in the Alternative, Motion for Summary Judgment Based on Eleventh
Amendment Sovereign Immunity, filed by Defendant Mississippi Coast Coliseum
Commission is DENIED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion  for
More Definite Statement, filed by Defendant Mississippi Coast Coliseum Commission
SO ORDERED AND ADJUDGED, this the 22nd day of March, 2013.
s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE
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