Crawford v. Hinds County Board of Supervisors
MEMORANDUM AND OPINION AND ORDER that Plaintiff's claim for Injunctive Relief is DENIED. Signed by District Judge Tom S. Lee on 10/8/19 (MGB)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
CIVIL ACTION NO. 3:17CV118TSL-RHW
HINDS COUNTY, MISSISSIPPI
MEMORANDUM OPINION AND ORDER
Plaintiff Scott Crawford is a disabled individual who uses a
He brought the present action against Hinds
County under Title II of the Americans with Disabilities Act, 42
U.S.C. § 12131 et seq. (ADA), as well as the Rehabilitation Act,
29 U.S.C. § 794 et seq., charging that the Hinds County Courthouse
is not readily accessible to the disabled because of numerous
mobility-related architectural barriers throughout the courthouse.
In his complaint, plaintiff requested injunctive relief, monetary
damages, as well as attorneys' fees and costs.
Previously in this cause, the court denied a motion by Hinds
County for summary judgment and granted, in part, plaintiff’s
cross-motion for partial summary judgment.
The County asserted in
its motion, among other arguments, that plaintiff’s complaint was
due to be dismissed on the basis that he lacked standing under
Article III of the United States Constitution.
In its order, the
court found that plaintiff has standing to pursue his claims in
That was true as to his claim for damages, but that
claim was settled between the parties.
In the course of
evaluating evidence presented at the trial of the case, the court
has reexamined the issue of standing1 and become convinced that he
has no standing to obtain an injunction.
His claim for injunctive
relief must therefore be dismissed.
ADA Title II/Rehabilitation Act
The ADA, passed by Congress in 1992 to address discrimination
against disabled individuals, contains three separate titles which
prohibit discrimination, respectively, in employment (Title I),
public services and transportation (Title II), and public
accommodations (Title III).
Plaintiff’s complaint involves Title
II, which states:
no qualified individual with a disability shall, by
reason of such disability, 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.
Section 504 of the Rehabilitation Act, which applies to
recipients of federal funding, provides, like Title II, that no
qualified individual with a disability “shall, solely by reason of
her or his disability, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance.”
The ADA and the Rehabilitation Act generally are interpreted in
Frame v. City of Arlington, 657 F.3d 215, 223 (5th
See Louisiana Sportsmen All., L.L.C. v. Vilsack, 583 F.
App'x 379, 380 (5th Cir. 2014) (issue of Article III standing may
be raised by the court sua sponte, at any time).
While the ADA does not define the “services,
programs, or activities of a public entity”, the Rehabilitation
Act’s definition of a “program or activity” as “all of the
operations of ... a local government” applies under the ADA.
The parties agree that plaintiff is a “qualified individual
with a disability” and that Hinds County is a “public entity”
subject to the requirements of Title II.
It is further undisputed
that Hinds County is a recipient of federal funds and subject to
§ 504 of the Rehabilitation Act.
The ADA’s implementing regulations state that “no qualified
individual with a disability shall, because a public entity's
facilities are inaccessible to or unusable by individuals with
disabilities, 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 public entity.”
28 C.F.R. § 35.149.
A public entity is required to “operate each
service, program, or activity so that the service, program, or
activity, when viewed in its entirety, is readily accessible to
and usable by individuals with disabilities.”
28 C.F.R. §
While this means that a public entity must take
reasonable measures to remove architectural and other barriers to
accessibility, “Title II does not require [a public entity] to
employ any and all means to make [its programs, services and
activities] accessible to persons with disabilities...
requires only ‘reasonable modifications’ that would not
fundamentally alter the nature of the service provided....”
Tennessee v. Lane, 541 U.S. 509, 511, 124 S. Ct. 1978, 1981, 158
L. Ed. 2d 820 (2004).
Standards for determining compliance with
this obligation differ based on whether the facility was built
and/or altered before or after the ADA took effect in January
See Greer v. Richardson Indep. Sch. Dist., 472 F. App'x
287, 295 (5th Cir. 2012).
For facilities built or altered after
1992, ADA regulations require compliance with specific
architectural accessibility standards, known as the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities (ADAAG), 28 C.F.R. Ch. 1, Pt. 36, App. A.
Lane, 541 U.S. at 531–32, 124 S. Ct. 1978 (citing 28 CFR § 35.151
However, in recognition of the reality that in the case
of existing facilities, a public entity would have difficulty
meeting all of the technical requirements of the ADAAG, the ADA’s
implementing regulations provide “less stringent and more
flexible” accessibility requirements for existing facilities than
for new facilities.
Greer, 472 F. App'x at 291.
Under the Rehabilitation Act, buildings constructed
with federal funds are governed by a nearly identical set of
standards, the Uniform Federal Accessibility Standards (UFAS), 41
C.F.R., Pt. 101–19.6, App. A. See Greer v. Richardson Indep. Sch.
Dist., 472 F. App'x 287, 291 (5th Cir. 2012). Under Title II,
public entities may comply with either set of standards. Id.
(citing 28 C.F.R. § 35.151).
in the case of older facilities, for which structural
change is likely to be more difficult, a public entity
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.
§ 35.150(b)(1). Only if these measures are ineffective
in achieving accessibility is the public entity required
to make reasonable structural changes. Ibid. And in no
event is the entity required to undertake measures that
would impose an undue financial or administrative
burden, threaten historic preservation interests, or
effect a fundamental alteration in the nature of the
service. §§ 35.150(a)(2), (a)(3).
Lane, 541 U.S. at 532, 124 S. Ct. 1978.
In all events, though, a
public entity has a duty to “ensure that individuals with
disabilities receive the benefits or services provided by the
public entity” and thus to ensure that each service, program, or
activity at its courthouse, “when viewed in its entirety,” is
readily accessible to individuals with disabilities.
Cates, 256 F.3d 1077, 1080 (11th Cir. 2001).
Plaintiff’s Experiences at the Hinds County Courthouse
Plaintiff has multiple sclerosis.
Because of the symptoms
caused by this disease, he relies on a motorized wheelchair for
In December 2006, as his symptoms began progressing,
plaintiff, who was living in Florida at the time, decided to move
back to Mississippi so that he could have help from his family in
Promptly upon returning to Mississippi, plaintiff
went to the Hinds County Courthouse (the courthouse) to register
He found that he could not enter the main entrance at
the front of the building because of multiple steps leading to the
There was no sign directing him to an accessible
entrance, but after looking around, he found a floor-level
entrance on the east side of the building.
However, he required
assistance to enter the building because the doors were heavy and
the door handles were of a type that required tight grasping and
twisting to operate, which he was unable to do.
Once inside the
building, plaintiff went to the Circuit Clerk’s office, located on
the ground level, and completed his voter registration.
Plaintiff subsequently returned to the courthouse some six
years later, in October 2012, when he was summoned for jury duty
by the Hinds County Circuit Court.
He knew from his earlier
experience to go to the east entrance; but for the same reasons as
before, he had difficulty actually entering the building.
had to open the doors for him.
After entering, he took the
elevator to the second floor and located the courtroom where jury
selection was taking place.
Upon entering the courtroom, he found
the pews in the gallery had no wheelchair cutouts to accommodate
He did not want to sit in the aisle because it
seemed narrow and he did not want to block others or pose a trip
There was an open space in the back but he has issues
with his vocal cords and thought it might be difficult for him to
Eventually he decided to sit in front of all the pews,
to the right of the judge.
While waiting for jury selection to begin, plaintiff went to
the second floor men’s restroom.
A sign on the door indicated it
was an accessible restroom, but it was immediately obvious to him
that the restroom was not ADA-compliant as it had a door knob that
required tight grasping and twisting.
When he actually entered
the restroom, he discovered the stall was too narrow to
accommodate his wheelchair and he was not able to use the
Instead, he was wearing incontinence undergarments and
had to relieve himself in his pants.
That day, the jury venire was dismissed with instructions to
come back on Wednesday.
Because he had learned that the second
floor men’s restroom was not accessible, on Wednesday, when he
needed to use the restroom, he asked a bailiff where there was an
In response, the bailiff guided him through
“several locked doors” to a unisex restroom that, while not fully
ADA-compliant, was large enough to accommodate his wheelchair.
The bailiff waited outside the door until plaintiff was finished
and then escorted him back to the courtroom.
As jury selection progressed, the judge asked venire members
to approach the bench if they had concerns about serving on the
Plaintiff, however, was not able to approach the judge
because a six-inch step separated the gallery from the bar/bench
As he had no means of navigating the step, he raised his
hand and a bailiff came to him.
He told the bailiff, who in turn
told the judge, that he would like to serve on the jury but could
only serve if it were going to be a short trial because he was
limited in how long he could sit in his wheelchair.
relayed this information to the judge, and plaintiff was excused.
Upon leaving the courthouse, plaintiff went directly across
the street to the Chancery Court building, which houses the
County’s administrative offices.
He intended to speak with the
County’s ADA coordinator but discovered that the County did not
have an ADA coordinator.3
He was directed to Mamie Pickett Brown,
Veterans’ Service Officer, who scheduled a meeting for plaintiff
for the following week with her supervisor, Clarence Williams,
Director of Human Capital Development.
After the meeting,
plaintiff and several of his colleagues from an advocacy group,
Living Independence For Everyone, accompanied by Williams, Brown
and a couple of other County officials, conducted a brief site
survey at the courthouse.
A November 16, 2012 report provided to
the County detailed findings of accessibility barriers at the
courthouse, including, among other things, a lack of accessible
routes in most courtrooms to primary function areas (such as jury
boxes, witness stands, litigant tables, bathrooms).
Under ADA regulations, a public entity with 50 or more
employees is required to designate at least one responsible
employee to coordinate ADA compliance. 28 C.F.R. pt. 35,
§ 35.107(a). The ADA Coordinator is responsible for coordinating
the efforts of the government entity to comply with Title II and
investigating any complaints that the entity has violated Title
After presenting this report, plaintiff was invited to speak
at a January 2013 meeting of the Board of Supervisors.
at the meeting about the County’s obligation under the ADA to make
its programs, services and activities accessible to individuals
with disabilities, and he urged the Board to move quickly to
The County did move quickly to hire an ADA
coordinator, Tameka Moore.
Once hired, Moore surveyed the
courthouse and in January 2014, she provided a comprehensive
report to the Board and to plaintiff identifying numerous
accessibility issues at the courthouse.
During 2013 and 2014, plaintiff met and/or spoke several
times with Moore and Williams, and a couple of times with Carmen
Davis, County Administrator, and spoke at another meeting of the
Board of Supervisors in June 2014.
During these discussions,
county officials promised him the County would make two of the
courthouse’s eight courtrooms (one large and one small) ADAcompliant as soon as possible and would thereafter work on making
the remaining courtrooms compliant.
This did not happen, however.
In June 2015, plaintiff returned to the courthouse in
response to another summons for jury duty, to discover that
nothing had been done; “[t]here were no differences at all.”
east entrance doors were unchanged; the public restrooms remained
inaccessible; and the courtrooms were the same as in 2012.
Disappointed, frustrated and angry about the complete lack of
action by the County to address the accessibility issues, he wrote
to Moore expressing this frustration and requesting a “hard
timeline” for remedying specific accessibility issues.
no evidence of any response to his letter.
In October 2015, the County hired a new ADA coordinator,
Plaintiff sent Nelson an email in July 2016 with a
link to an article regarding a settlement between the United
States Department of Justice and the City of Milwaukee which
required Milwaukee to modify it facilities to make them accessible
by the disabled.
Plaintiff wrote, “I haven’t forgotten about the
Hinds County Courthouse.
We need to make TIMELY progress in
bringing it into compliance with ADA.”
Nelson responded, stating,
“I am in agreement with you and we are working diligently to
address ADA compliance issues within Hinds County.”
But in a later phone call, Nelson told plaintiff the County had no
immediate plans to, in plaintiff’s words, “fix the courthouse.”
Upon hearing this, plaintiff decided to file the present action.
In his complaint, filed February 21, 2017, plaintiff alleges that
various architectural barriers prevent him from accessing the
services, programs and activities offered at the courthouse.
asks the court to enjoin the County to bring the courthouse into
full compliance with the ADA.
Article III, § 2, of the Constitution limits the federal
courts to the adjudication of “Cases” and “Controversies.”
Const. art. III, § 2, cl. 1; Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 102, 118 S. Ct. 1003, 140 L. Ed. 2d 210
To establish a “case or controversy,” a plaintiff must
establish that he has standing.
Legacy Cmty. Health Servs., Inc.
v. Smith, 881 F.3d 358, 366 (5th Cir.), as revised (Feb. 1, 2018),
cert. denied, 139 S. Ct. 211, 202 L. Ed. 2d 126 (2018) (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130,
119 L. Ed. 2d 351 (1992)).
The doctrine of standing “serves to
identify those disputes” which qualify as “cases” or
“controversies” that may be “appropriately resolved through the
Lujan, 504 U.S. at 560, 112 S. Ct. 2130
In other words, the standing requirement
exists to ensure that “the plaintiff has ‘alleged such a personal
stake in the outcome of the controversy’ as to warrant his
invocation of federal-court jurisdiction and to justify exercise
of the court's remedial powers on his behalf.”
Warth v. Seldin,
422 U.S. 490, 498-99, 95 S. Ct. 2197, 45 L. Ed. 2d 343 (1975)
(quoting Baker v. Carr, 369 U.S. 186, 204, 82 S. Ct. 691, 703, 7
L. Ed. 2d 663 (1962)).
The question of standing is separate from
the merits of a case; “when considering whether a plaintiff has
Article III standing, a federal court must assume arguendo the
merits of his or her legal claim.”
North Cypress Medical Center
Operating Co., Ltd. v. Cigna Healthcare, 781 F.3d 182, 191 (5th
Cir. 2015) (quotation marks and citation omitted).4
The court previously found that plaintiff had
demonstrated a lack of program accessibility. The court has
reconsidered its earlier ruling on standing but remains of the
opinion that plaintiff has proven that jury service is not
accessible to disabled individuals at the Hinds County Courthouse.
Plaintiff has demonstrated that there are no readily accessible
restrooms for wheelchair users and that various architectural
barriers in most, if not all, of the eight courtrooms impede ready
access by wheelchair users to program areas. The County’s
position that there was no lack of program access as plaintiff was
able to fully participate in jury service is not well-founded.
See Shotz v. Cates, 256 F.3d 1077, 1080 (11th Cir. 2001) (“A
violation of Title II ... does not occur only when a disabled
person is completely prevented from enjoying a service, program,
or activity. ... If the Courthouse's wheelchair ramps are so steep
that they impede a disabled person or if its bathrooms are unfit
for the use of a disabled person, then it cannot be said that the
trial is ‘readily accessible,’ regardless whether the disabled
person manages in some fashion to attend the trial.”). And the
County plainly has not supported its putative defenses. It claims
that modifications requested by plaintiff would impose an undue
financial burden and further, that in view of the courthouse’s
designation as a historic landmark, any modification would impose
an undue financial burden and threaten historic preservation
interests. It has not presented sufficient competent evidence to
substantiate either position.
Standing encompasses, at an “irreducible minimum”, the
following three essential elements:
First and foremost, there must be alleged (and
ultimately proved) an injury in fact — a harm suffered
by the plaintiff that is “concrete” and “actual or
imminent, not “conjectural” or “hypothetical.” Second,
there must be causation—a fairly traceable connection
between the plaintiff's injury and the complained-of
conduct of the defendant. And third, there must be
redressability—a likelihood that the requested relief
will redress the alleged injury.
Steel Co., 523 U.S. at 103, 118 S. Ct. 1003 (internal citations
and quotation marks omitted).
“The plaintiff, as the party
invoking federal jurisdiction, bears the burden of establishing
these elements,” Spokeo, Inc. v. Robins, – U.S. –, 136 S. Ct.
1540, 1547–48, 194 L. Ed. 2d 635 (2016), as revised (May 24,
2016); and he must do so separately for each form of relief
sought, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 185, 120 S. Ct. 693, 706, 145 L. Ed. 2d 610
(2000); see also City of Los Angeles v. Lyons, 461 U.S. 95, 109,
103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983) (notwithstanding the fact
that plaintiff had standing to pursue damages, he lacked standing
to pursue injunctive relief).
Title II of the ADA authorizes plaintiffs to seek injunctive
relief against public entities.
See Smith v. Bd. of Commissioners
of Louisiana Stadium & Exposition Dist., 385 F. Supp. 3d 491, 508
(E.D. La. 2019) (citing 42 U.S.C. § 12133 (incorporating by
reference 29 U.S.C. § 794a)).
“To obtain standing for injunctive
relief, a plaintiff must show that there is reason to believe that
he would directly benefit from the equitable relief sought.”
Plumley v. Landmark Chevrolet, Inc., 122 F.3d 308, 312 (5th Cir.
1997) (citing Hoepfl v. Barlow, 906 F. Supp. 317, 321 (E.D. Va.
Even if he has previously encountered illegal conduct, he
does not have standing to secure an injunction “if there are no
‘continuing, present adverse effects.’”
Deutsch v. Travis Cty.
Shoe Hosp., Inc., 721 F. App'x 336, 340 (5th Cir. 2018) (quoting
Lujan, 504 U.S. at 564, 112 S. Ct. 2130).
See Lyons, 461 U.S. at
110, 1-03 S. Ct. 1660 (“[p]ast wrongs do not in themselves amount
to that real and immediate threat of injury necessary to make out
a case or controversy.”).
To have standing, he must prove that he
“face[s] a threat of present or future harm.”
Plumley, 122 F.3d
The threatened injury must be “‘concrete and
particularized’ and ‘actual or imminent, not conjectural or
Crane v. Johnson, 783 F.3d 244, 251–52 (5th Cir.
2015) (quoting Susan B. Anthony List v. Driehaus, 573 U.S. 149,
158, 134 S. Ct. 2334, 2341, 189 L. Ed. 2d 246 (2014)).
Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S. Ct. 1138,
1147, 185 L. Ed. 2d 264 (2013) (quoting Whitmore v. Arkansas, 495
U.S. 149, 158, 110 S. Ct. 1717, 109 L. Ed. 2d 135 (1990))
(stating that “‘threatened injury must be certainly impending to
constitute injury in fact’”; “‘[a]llegations of possible future
injury’ are not sufficient.”); Hainze v. Richards, 207 F.3d 795,
802 (5th Cir. 2000) (holding that plaintiff must demonstrate “a
real or immediate threat that he will be wronged again”).
An ADA plaintiff can satisfy his burden to demonstrate the
requisite likelihood of future injury either by showing that he
intends to return to the facility at issue and is consequently
likely to reencounter a discriminatory architectural barrier, see
Gilkerson v. Chasewood Bank, 1 F. Supp. 3d 570, 582 (S.D. Tex.
2014), or, alternatively, by showing that he is deterred from
visiting the subject facility by the presence of discriminatory
architectural barriers, see Betancourt v. Federated Dep't Stores,
732 F. Supp. 2d 693, 708 (W.D. Tex. 2010) (“The fact that the
disabled person is being deterred from visiting an establishment
they would otherwise visit, even if infrequently, is an ongoing,
present injury.”); see also Frame v. City of Arlington, 657 F.3d
215, 236 (5th Cir. 2011)(citing 42 U.S.C. § 12188(a)(1) (“[A]
person with a disability [need not] engage in a futile gesture if
such person has actual notice that a person or organization
covered by [the ADA] does not intend to comply with its
Thus, courts have “Article III jurisdiction to
entertain requests for injunctive relief both to halt the
deterrent effect of a noncompliant accommodation and to prevent
imminent ‘discrimination,’ as defined by the ADA, against a
disabled individual who plans to visit a noncompliant
accommodation in the future.”
Chapman v. Pier 1 Imports (U.S.)
Inc., 631 F.3d 939, 950 (9th Cir. 2011) (citations omitted).
A plaintiff seeking to establish standing based on an intent
to return to a place does not sustain his burden by a mere
“profession of an ‘intent’ to return....”
Lujan, 504 U.S. at 564.
Rather, he must prove facts which show that he intends, and is
likely, to return.
Gilkerson, 1 F. Supp. 3d at 582.
proof of that intent must be reasonably specific; “mere ‘some day
intentions — without any description of concrete plans, or indeed
even any specification of when the some day will be—do not support
a finding of the actual or imminent injury.’”
Appx. at 340 (quoting Lujan, 504 U.S. at 564).
Deutsch, 721 Fed.
Ultimately, if the
proof shows that plaintiff “‘is indifferent to returning to the
[facility],’ ‘if his alleged intent to return is not genuine,’ or
if ‘he is not reasonably likely to encounter’ the barriers at
issue”, then he will not have standing based on any putative
intent to return.
Twede v. Univ. of Washington, 309 F. Supp. 3d
886, 894 (W.D. Wash. 2018) (quoting Chapman, 631 F.3d at 953).
Plaintiff herein does not contend that any accessibility
barriers have deterred him from returning to the courthouse.
Instead, he contends he has standing based on his intent to return
to the courthouse.
However, he does not claim that he intends or
expects to return for the purpose of accessing any programs,
services or activities at the courthouse.5
Rather, he asserts
that he intends to return to the courthouse as an ADA “tester”,
that is, to test the County’s compliance with the ADA and
Courts considering the issue have found that testers can have
standing to secure injunctive relief under the ADA and the
See Griffin v. Dep't of Labor Fed. Credit
Union, 912 F.3d 649, 656 (4th Cir. 2019) (“It is true that tester
status does not destroy standing.”) (citation omitted); Gaylor v.
Hamilton Crossings CMBS, 582 F. App’x 576, 579–81 (6th Cir. 2014)
(finding the plaintiff had tester standing under ADA Title III);
Tandy v. City of Wichita, 380 F.3d 1277, 1287 (10th Cir. 2004)
There is one exception. Plaintiff attended a meeting of
the Board of Election Commissioners in May 2018 and indicated that
he intends to attend additional meetings of this board. However,
even if his expression of this intent were sufficiently concrete,
it would not support a finding of standing because standing is
analyzed from the facts as they existed at the time the complaint
was filed. See Harris v. Stonecrest Care Auto Ctr., LLC, 472 F.
Supp. 2d 1208, 1217 (S.D. Cal. 2007) (citing Friends of the Earth,
Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 191, 120
S. Ct. 693, 709, 145 L. Ed. 2d 610 (2000)) (in determining
whether, at the time of filing, plaintiff was likely to return,
court did not consider evidence that plaintiff visited the subject
establishment after filing suit).
By mere happenstance, plaintiff was summoned for jury duty in
May 2018, after this suit was filed. The court acknowledges that
plaintiff could possibly be summoned again for jury duty.
However, that mere possibility is not sufficient to confer
standing. See Hummel v. St. Joseph Cty. Bd. of Comm'rs, 817 F.3d
1010, 1021 (7th Cir. 2016) (finding that while there was a chance
that the plaintiffs would be called to serve as jurors at some
point, “[t]he prospect of jury service [is] too speculative to
support standing to challenge juror facilities” as violative of
Title II of the ADA).
(holding that tester standing exists under Title II of the ADA and
the Rehabilitation Act); Houston v. Marod Supermarkets, Inc., 733
F.3d 1323, 1332 (11th Cir. 2013) (Title III); see also Deutsch v.
Travis Cty. Shoe Hosp., Inc., No. A-15-CV-1198 LY, 2016 WL
5317199, **1-2 (W.D. Tex. Sept. 21, 2016), aff’d in part and
remanded, 721 F. App'x 336, 340 (5th Cir. 2018) (stating that
“there is no doubt that a ‘tester’ plaintiff can have standing
under the ADA”).
There is some question as to whether a plaintiff
whose sole purpose in visiting a place is to test for ADA
compliance has standing to sue for injunctive relief.
Griffin, 912 F.3d at 656 (finding that tester plaintiff had no
standing where he had “‘no particular reason’—other than his role
as a tester, which alone is insufficient—to ever return.”);
Norkunas v. Park Rd. Shopping Ctr., Inc., 777 F. Supp. 2d 998,
1005 (W.D.N.C. 2011), aff'd, 474 F. App'x 369 (4th Cir. 2012)
(concluding that “the naked assertion of a desire to return to a
defendant establishment for the sole purpose of confirming
ADA-compliance, without more, is insufficient to establish
standing.”); but see Houston, 733 F.3d at 1334 (holding that
“‘bona fide patron’ status is a not a prerequisite ... to obtain
standing for a lawsuit under” pertinent Title III provisions).
In all events, though, a tester plaintiff seeking injunctive
relief, just as any plaintiff, must show that he faces a real and
immediate threat of future injury.
Tandy, 380 F.3d at 1287; see
also Houston, 733 F.3d 1323, 1336 (11th Cir. 2013) (holding that
tester status, without more, was insufficient to show threat of
This means that plaintiff herein must demonstrate
that at the time he filed suit, he intended to return to the
courthouse (even if for no other purpose than to test for ADA
See Griffin, 912 F.3d at 656 (stating that a
plaintiff’s tester status “cannot create standing in the absence
of an otherwise plausible assertion” that he intends to return to
the place at issue); see also Tandy, 380 F.3d at 1287 (finding
that tester plaintiff had sufficiently alleged standing to obtain
prospective relief where he averred an intent to use the defendant
city’s fixed-route bus services several times per year and thus
faced real and immediate threat of future injury); Houston, 733
F.3d 1323, 1336 (11th Cir. 2013) (finding that tester plaintiff
had standing as his assertion that he would return to the
ADA-noncompliant supermarket was plausible based on evidence that
he passed the defendant store “regularly” on his trips to
Miami-Dade County, but noting that facts might “demand a different
conclusion if the plaintiff “live[d] hundreds of miles away from
the store with no particular reason to return”).
In the case at bar, plaintiff declared in an affidavit
submitted to the court in response to Hinds County’s summary
judgment motion that he planned to visit the Hinds County
Courthouse “in the future as an ADA tester to determine whether
the barriers have been removed or ADA compliance has been achieved
by adequate accommodations.”
The court previously accepted this
statement as true on its face.
A more probing consideration of
the facts of record leads the court to conclude that the evidence,
fairly viewed, belies plaintiff’s professed intent to return.
Plaintiff first complained to Hinds County in October 2012
about accessibility issues he encountered during his two days of
He advocated for action; he and his colleagues
prepared a survey/plan; he twice appeared before the Board of
Supervisors; he had conversations with County officials for two
years and secured promises that action would be taken.
through all of this, he never actually went to the courthouse to
check on the County’s progress.
He did go the courthouse once, in
June 2015, but only because he was summoned for jury duty.
he discovered on that visit that despite its promises, the County
had taken no action, he complained again and requested action.
year later, he told ADA Coordinator Nelson via email that he
“[hadn’t] forgotten” about the courthouse and that “timely” action
Nelson responded that the County was “working
diligently to address ADA compliance issues....”
But months went
by and plaintiff still did not return to the courthouse.
Ultimately, he filed this lawsuit, not because he went to the
courthouse as a “tester” to see what the County had done to
address accessibility issues but because Nelson admitted in a
phone call that the County had no plans to “fix the courthouse”.
In sum, in the more than four years between the time plaintiff
first complained about the courthouse and the time he filed suit,
plaintiff returned to the courthouse only once – and that was not
to test for compliance but for jury service.
The court does not doubt the sincerity of plaintiff’s
interest in the County’s compliance with its obligation under the
ADA to ensure that programs, services and activities it operates
at the courthouse are readily accessible to and usable by
individuals with disabilities.
However, as nothing in his actions
suggests to the court that plaintiff had a genuine intent to
return to the courthouse for any purpose, the court concludes that
plaintiff lacks standing to obtain injunctive relief because he
has not proven that he faces an immediate and real threat of
Accordingly, it is ordered that plaintiff’s claim for
injunctive relief is denied.6
SO ORDERED this 8th day of October, 2019.
/s/ Tom S. Lee
UNITED STATES DISTRICT JUDGE
for attorney’s fees
prevailing party in
his damages claim.
acknowledges that plaintiff has
based on his contention that he
this litigation in light of the
That motion remains pending for
filed a motion
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