CREEL et al v. ROWAN UNIVERSITY et al
Filing
16
OPINION. Signed by Judge Jerome B. Simandle on 6/23/2017. (tf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
ROCCO CREEL, THOMAS HAMILL, and
ADVOCATES FOR DISABLED
AMERICANS,
Plaintiffs,
HONORABLE JEROME B. SIMANDLE
Civil No. 16-2883 (JBS/AMD)
v.
ROWAN UNIVERSITY and ALI A.
HOUSHMAND,
OPINION
Defendants.
APPEARANCES:
Anthony J. Brady, Jr., Esq.
1 Rose Avenue
P.O. Box 129
Maple Shade, NJ 08052
Counsel for Plaintiffs
Kathryn Elizabeth Duran, Esq.
OFFICE OF THE ATTORNEY GENERAL, STATE OF NEW JERSEY
25 Market Street
P.O. Box 112
Trenton, NJ 08625
Counsel for Defendants
SIMANDLE, Judge:
I.
INTRODUCTION
This matter comes before the Court on Defendants Rowan
University (“Rowan”) and Ali A. Houshmand’s (“Houshmand”) Motion
to Dismiss the Complaint. [Docket Item 12.] Plaintiffs Rocco
Creel (“Creel”), Thomas Hamill (“Hamill”), and Advocates for
Disabled Americans (“AFDA”) filed this lawsuit against
Defendants on May 22, 2016, alleging violations of the New
Jersey Law Against Discrimination, N.J.S.A. §10:5-1 et seq.
(“NJLAD”); the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701796 (“RA”); and the Americans with Disabilities Act, 42 U.S.C.
§§ 12101-12213 (“ADA”). Plaintiffs allege that Rowan’s campus is
inaccessible for wheelchair users and does not provide
appropriate parking for people with disabilities.
Defendant has moved to dismiss the Complaint pursuant to
Fed. R. Civ. P. 12(b)(1) (for lack of AFDA’s standing to sue)
and 12(b)(6) (for failure of Plaintiffs Creel and Hamill to
state a claim). Plaintiffs submitted a response in opposition
[Docket Item 14] and Defendants submitted a letter brief in
reply [Docket Item 15].
For the reasons set forth below, the Court grants
Defendant’s Motion without prejudice to the rights of Plaintiffs
Creel and Hamill to file an Amended Complaint curing the many
pleading deficiencies noted herein.
II.
FACTUAL AND PROCEDURAL BACKGROUND1
Rocco Creel is a resident of New Jersey who uses a
wheelchair and is disabled. Thomas Hamill is also a New Jersey
resident who uses a wheelchair and is disabled. AFDA is a non-
1
The facts alleged are drawn from Plaintiffs’ Complaint [Docket
Item 1]. For purposes of this motion, the Court must accept
Plaintiffs’ allegations as true.
2
profit corporation doing business in New Jersey whose members
are disabled. [Docket Item 1 ¶¶ 2-3, 8.]
Rowan University, located in Glassboro, Gloucester County,
New Jersey, is a public university “organized and operating
under the State of New Jersey”; Ali A. Houshmand is the
president of Rowan University and is being sued in his official
capacity. [Id. at ¶¶ 6-7.]
Creel is a student at Rowan; he alleges that his “ability
to enjoy the services” of Rowan “has been impaired as a result
of the Defendant’s lack of proper access to him and the disabled
as a whole.” [Id. at ¶¶ 8-9.] More specifically, Creel alleges
that Rowan does not provide “proper accessible parking, . . .
routes throughout the campus, . . . bathrooms, etc. . . . both
for educational purposes [as] well as extra[-]curricular
activities” and “does not maintain its accessible elements.”
[Id. at ¶¶ 10-11.] He alleges that non-disabled students use
parking spaces provided for the disabled; that Rowan rejected
Creel’s suggested method of enforcing the parking limitations
“by requiring that students prove to Rowan that they are
disabled”; and that Creel, as an education major, “was placed in
inaccessible classrooms both on and off campus” as part of his
clinical practice. [Id. at ¶¶ 12-13.] Creel asserts that he
“sustained anger and emotional distress” as a result of this
3
lack of accessibility and that he intends to continue to return
and use Rowan’s services “both as a patron and a tester.” [Id.
at ¶¶ 17-18.]
Thomas Hamill, in contrast, alleges that he was “on many
occasions” “a patron at the Defendants[,] including enjoying
sporting events and campus [sic] in 2015.” [Id. at ¶ 20.] Hamill
allege that his ability to use Rowan’s services has “been
impaired because of lack of proper access to him and the
disabled.” [Id. at ¶ 21.] Specifically, Hamill alleges: that
Rowan “does not provide proper parking for the disabled in that
it is not located on the safest most direct route as mandated by
NJAC 5:23-7.10(a). . . . [and] it is more difficult for him to
travel from point A to B” as a wheelchair user; that the “route
from the parking to the front entrance is on acute slopes
perhaps more than five feet that are dangerous and hard to
overcome” resulting in Hamill having “difficulties while using
the curb ramp,” “in violation of NJAC 5:23-7.7 and ANSI 406.7”;
that “the parking for the disabled is not proper”; and that the
above “discriminatory violations” are not an exclusive list of
Defendants’ “accessibility problems/violations” and Plaintiffs
“require an inspection to identify all barriers.” [Id. at ¶¶ 2224, 26.] Hamill alleges that he has suffered emotional distress
as a result of these violations and “intends to be a frequent
4
patron of [D]efendants” and “also return as a tester.” [Id. at
¶¶ 27-29.]
Both Creel and Hamill seek injunctive relief, damages,
attorneys’ fees, and costs. [Id. at 6, 8.] AFDA seeks the same.
[Id. at ¶¶ 31-33.] Plaintiffs also seek injunctive relief in the
form of an order instructing Houshmand “to make said facility
accessible to the disabled.” [Id. at ¶ 36.]
III.
STANDARD OF REVIEW2
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted under
Fed. R. Civ. P. 12(b)(6), a court must accept all well-pleaded
allegations in the complaint as true and view them in the light
most favorable to the nonmoving party. A motion to dismiss may
be granted only if a court concludes that the plaintiff has
failed to set forth fair notice of what the claim is and the
grounds upon which it rests that make such a claim plausible on
its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007).
Although the court must accept as true all well-pleaded
factual allegations, it may disregard any legal conclusions in
the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);
2
The Court exercises jurisdiction over Plaintiffs’ claims under
28 U.S.C. § 1331.
5
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice. Iqbal,
556 U.S. at 678.
In addition, the complaint must contain enough well-pleaded
facts to show that the claim is facially plausible. This “allows
the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. “If the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged – but it
has not shown – that the pleader is entitled to relief.” Id. at
679 (internal quotation marks and citation omitted).
IV. DISCUSSION
A. AFDA
Defendants seek to dismiss Count III, AFDA’s claim,
pursuant to Fed. R. Civ. P. 12(b)(1), on the grounds that AFDA
lacks standing either to pursue claims in its own right or as a
representative of its individual members. [Docket Item 12-1 at
10-14.] See Pa. Prison Soc’y v. Cortes, 508 F.3d 156, 162-63 (3d
Cir. 2007); Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 280
(3d Cir. 2014).
Plaintiffs, in their Response, state that they “will not
contest Defendants[’] motion to dismiss [AFDA] for lack of
6
standing.” [Docket Item 14 at 7.]
Accordingly, the Court will grant Defendants’ Motion to
Dismiss as to AFDA, and thus, Count III is dismissed.
B. Hamill
Defendants argue that Hamill’s allegations that Defendants
violated the ADA, RA, and NJLAD are conclusory and do not allege
sufficient factual content to allow his claim to proceed under
Iqbal/Twombly; to the extent that his remaining allegations are
factual assertions rather than legal conclusions, Defendants
assert such allegations are insufficient to state a claim for
relief because “they present at most a sheer possibility that
Defendants took action consistent with liability.” [Docket Item
12-1 at 15-17.] Furthermore, Hamill’s lack of specificity “makes
it impossible for Defendants to determine if certain affirmative
defenses apply” such as statute of limitations or laches; and
Hamill should be required to plead with specificity “the exact
portions of Rowan’s campus which are allegedly inaccessible,”
making it difficult or impossible for Defendants to ascertain if
“any affirmative defenses apply in regard to the ownership or
age of the building.” [Id. at 17.]
In response, Plaintiffs argue that Hamill has sufficiently
alleged “that he was excluded from the services, programs or
activities of a public entity on account of his disability”
7
where Hamill alleges that he is “disabled and use[s a]
wheelchair, that he was discriminated against in the use of
Defendants’ services on account of his disability by virtue of
“Defendant having physical barriers, which include lack of
accessible parking, routes [and] bathroom[s],” and that he will
return “as a patron[] and tester[].” [Docket Item 14 at 3-4.]
In order to state a claim for relief under Title II of the
ADA, 42 U.S.C. § 12132, a plaintiff must allege: (1) that he or
she is a qualified individual; (2) with a disability; (3) who
was excluded from participation in or denied the benefits of the
services, programs, or activities of a public entity, or was
subjected to discrimination by any such entity; (4) because of
his or her disability. Bowers v. Nat’l Collegiate Athletic
Ass’n, 475 F.3d 524, 553 n.32. Physical barriers may constitute
discrimination against the disabled. See Disabled in Action of
Pa. v. Southeastern Pa. Transp. Auth., 635 F.3d 87, 92 (3d Cir.
2011).
The RA, 29 U.S.C. § 794(a), “provides that a qualified
disabled person shall not, ‘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[.]’” Chisolm
v. McManimon, 275 F.3d 315, 324 n.9.
8
The NJLAD, N.J.S.A. §§ 10:5-4, 10:5-4.1, “provides that
‘[a]ll persons shall have the opportunity to obtain . . . all
the accommodations, advantages . . . and privileges of any place
of public accommodation’ without discrimination on the basis of
disability.” Chisolm, 275 F.3d at 324 n.9.
The Third Circuit has stated that, because “Congress has
directed that Title II of the ADA be interpreted to be
consistent with the Rehabilitation Act” and because “New Jersey
courts typically look to federal anti-discrimination law in
construing NJLAD,” it is appropriate to apply analysis and
principles of the ADA “equally to . . . Rehabilitation Act and
NJLAD claims.” Id.
Defendants are correct when they state that Hamill attempts
to bolster his claim of a violation by citing to “regulatory
which is no longer valid.” [Docket Item 12-1 at 16.] See 47
N.J.R. 2352(b) (Sept. 21, 2015) (repealing N.J.A.C. 5:23-7.1 to
5.23-7.14).
To the extent that Hamill alleges specific facts in support
of his allegations that he was denied “reasonable accommodation
[or] reasonable access” to Defendants’ facilities, Lasky v.
Moorestown Twp., 42 A.3d 212, 219 (N.J. Super. 2012), his
allegations are, essentially:
(1)
That the parking Rowan provided for the disabled is
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“not located on the safest[,] most direct route”;
(2)
That it is “more difficult” for Hamill “to travel”
from “point A to B”3; and
(3)
That “the route from the parking to the front entrance
is on acute slopes perhaps more than five feet,”4 that
said slopes “are dangerous and hard to overcome” and
resulted in Hamill “having difficulties using the curb
ramp.”
[Docket Item 1 at ¶¶ 22-23.] The remainder of Hamill’s
allegations are conclusory and without factual support under
Iqbal and Twombly.
These generalized allegations are conclusory and give no
3
The Court takes under advisement Defendants’ argument that this
specific statement “gives no indication that this route is on
Rowan’s campus, is accessible by the public, or that any
difficulty arises from Rowan’s failure to comply with the ADA.”
[Docket Item 12-1 at 16.] However, taking all factual assertions
as true and construing them in the light most favorable to
Plaintiffs, the Court finds that the placement of this statement
in the context of ¶ 22 of the Complaint suggests that the
difficulty Hamill experienced in “travel[ing] from point A to B”
was in the immediate physical context of the “parking for the
disabled” that Rowan provides, and should not be disregarded as
Defendants urge.
4 Defendants here urge that Plaintiffs’ inclusion of the word
“perhaps” renders this allegation “equivocal and not a plausible
basis for liability.” [Docket Item 12-1 at 17.] However, again,
construing the Complaint in the light most favorable to
Plaintiffs, the Court finds that Plaintiffs’ allegation that the
slopes were “acute” is sufficiently clear to provide the
necessary factual underpinning to this claim, regardless of
Plaintiffs’ lack of specificity as to the actual angle or height
of the slopes in question.
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indication of the factual grounds for claiming lack of access.
These are classic “threadbare recitals of the elements” of
attempted causes of action “supported by mere conclusory
statements” which cannot suffice to meet the Rule 12(b)(6)
standard under Iqbal, 556 U.S. at 678.
Which parking lots are deficient? In what way are they not
compliant? What routes does Plaintiff use and how are they
deficient? The Complaint fails to make allegations with
sufficient specificity to place Defendants on notice of what
they are accused of, and, in a broader sense, what are the
actual contours of this suit.
Accordingly, the Court will grant Defendants’ motion to
dismiss Hamill’s claims under the ADA, the RA, and NJLAD.
C. Creel
Defendants argue that, because Creel was a student at
Rowan, not only are his claims subject to the requirements of
Iqbal and Twombly, he must also allege that he requested (and
was denied) accommodation from Defendants before he filed his
lawsuit. [Docket Item 12-1 at 18-20.]
Under Title II of the ADA, a plaintiff “claiming
discrimination on the basis that a public entity failed to
provide a particular reasonable accommodation needs to show that
the public entity had knowledge that the individual required
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accommodation.” Lasky v. Borough of Hightstown, 43 A.3d 445, 451
(N.J. Super. 2012) (citing Robertson v. Las Animas County
Sheriff’s Dep’t, 500 F.3d 1185, 1196 (10th Cir. 2007)). See also
Kiman v. N.H. Dep’t of Corrs., 451 F.3d 274, 283 (1st Cir. 2006)
(“[T]he ADA’s reasonable accommodation requirement usually does
not apply unless triggered by a request”) (internal citations
omitted). “The requirement that a plaintiff request
accommodation prior to filing suit is especially compelling in
cases involving a claim of a failure to accommodate where there
exists a prior relationship between the parties, as in education
. . . settings.” Lasky v. Hightstown, 43 A.2d at 451 (citing In
re: Reasonable Testing Accommodations of LaFleur, 722 N.W.2d
559, 562 (S.D. 2006) and D’Amico v. N.Y. State Bd. of Law
Exam’rs, 813 F. Supp. 217, 221 (W.D.N.Y. 1993)).
However, “when a disabled individual’s need for an
accommodation is obvious . . . or where the claim is an overall
lack of program accessibility under Title II . . . there is no
requirement that the plaintiff have requested a specific
accommodation before filing the lawsuit in order to prevail.”
Lasky v. Hightstown, 43 A.2d at 452 (internal citations
omitted). The court continued: “[W]here a more generalized claim
alleging overall lack of access is made, a plaintiff seeking
redress should not be required, as a prerequisite to filing such
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a claim, to first make a request for a reasonable accommodation”
under NJLAD. Id. at 453.
Taken in the light most favorable to Plaintiffs, Creel’s
factual allegations are, essentially, that:
(1)
Rowan does not provide proper accessible parking,
routes throughout campus, or bathrooms, both in
educational and extracurricular contexts;
(2)
Rowan does not maintain what accessible elements it
does have;
(3)
Rowan does not provide adequate accessible parking in
that it does not adequately prevent non-disabled
students from occupying parking set aside for the
disabled; and
(4)
Rowan placed Creel in inaccessible classrooms as part
of his clinical practice as an education major.
[Docket Item 1 at ¶¶ 10-13.]
As with Hamill’s allegations above, these allegations are
conclusory and do not give sufficient indication of the factual
grounds for Creel’s claims of lack of access. In addition to the
questions the Court had above about the insufficiency of the
parking for the disabled, Creel’s claims present even more
factual questions that should rightly be answered within the
complaint.
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For instance, which parking lots are deficient? In what way
are they not compliant? Which routes does Plaintiff use across
campus and how are those routes deficient? Which bathrooms are
inaccessible and what specific factual violations are alleged
with regard to them? Which are the poorly maintained accessible
elements and how are they factually deficient? Which parking set
aside for the disabled is permitted by Defendants to be used by
non-disabled students, and what notice do Defendants have of
this condition? Which classrooms does Mr. Creel allege were
inaccessible to him and in what way was their inaccessibility
manifested to him? Were these classrooms under Defendants’
control?
As above with regard to Hamill’s claims, Creel’s claims
fail to make allegations with adequate specificity to place
Defendants on notice of what they are accused of and what
alleged violations this lawsuit will be about.
As to Defendants’ argument that Creel was required to
request an accommodation before he may file suit, the Court
finds that only the fourth of the above allegations presents a
“failure to provide a reasonable accommodation” claim rather
than a more generalized “claim alleging overall lack of access,”
such that the special relationship that arises in an educational
setting would require Creel to make a fact-specific request of
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the condition denying him reasonable access and have that
request denied before he may prevail in a lawsuit. The other
allegations, in contrast, are more akin to claims alleging
overall lack of access, and the Court does not understand Title
II of the ADA, the RA, or the NJLAD to require plaintiffs
specifically to request access as a prerequisite to suit. See
Lasky v. Hightstown, 43 A.3d at 452-53. Creel should cure this
pleading defect in any revised pleading.
Furthermore, to the extent that Creel’s use of a wheelchair
and his concordant inability to use inaccessible classrooms as
part of his clinical practice could be construed as “obvious,”
the Court will decline to dismiss Creel’s claim based on that
factual allegation as well. See Robertson, 500 F.3d at 1197
(public entity’s knowledge of the need for accommodation “may
derive from an individual’s request” or it may “know of the
individual’s need for an accommodation because it is ‘obvious’”)
(citing Kiman, 451 F.3d at 283 (“sometimes the person’s
[disability and concomitant] need for an accommodation will be
obvious; and in such cases, different rules may apply”) and Reed
v. LePage Bakeries, Inc., 244 F.3d 254, 261 n.7 (1st Cir. 2007)
(in a Title I case, a request for accommodation may not be
required when the disabled individual’s needs are “obvious”)).
“When a disabled individual’s need for an accommodation is
15
obvious, the individual’s failure to expressly ‘request’ one is
not fatal to the ADA claim. See, e.g., Chisolm v. McManimon, 275
F.3d 315, 330 (3d Cir. 2001)[.]” Robertson, 500 F.3d at 1197.
This aspect of the Complaint is deficient not because Mr. Creel
didn’t mention his wheelchair, but rather because one cannot
tell from the Complaint where these classrooms are and how they
failed to comply with the statutes that give rise to his causes
of action.
Accordingly, Counts One and Two will be dismissed without
prejudice for failure to state a claim. Any Amended Complaint by
Creel and Hamill must cure these deficiencies and be filed
within twenty-one (21) days.
D. Claims for Unknown Violations
Defendants argue that Plaintiffs’ claims in the Complaint
that they “require an inspection to identify all barriers”
[Docket Item 1 at ¶ 26] and “reserve the right to amend their
allegations as discovery progresses” [id. at ¶ 13] should be
dismissed as hypothetical, alleging only vague and inchoate
injury, and failing to state a claim for relief. [Docket Item
12-1 at 20-22.] The Court agrees.
Standing under Article III of the U.S. Constitution
requires that a plaintiff demonstrate an “injury in fact” by
alleging “that as a result of the defendant’s actions he has
16
suffered a distinct and palpable injury.” Havens Realty Corp. v.
Coleman, 455 U.S. 363, 364 (internal citations omitted). “[A]n
injury-in-fact” is a harm that is “concrete and particularized”
“and . . . actual or imminent, not conjectural or hypothetical.”
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (internal
citations omitted).
Under the ADA, “plaintiffs need not engage in the futile
gesture of visiting a building containing known barriers that
the owner has no intention of remedying, . . . they must at
least [allege] knowledge of the barriers and that they would
visit the building in the imminent future but for those
barriers.” Steger v. Franco, 228 F.3d 889, 892 (8th Cir. 2000)
(internal citations omitted); Access 4 All, Inc. v. Boardwalk
Regency Corp., No. 08-3817, 2010 WL 4860565, at *4 (D.N.J. Nov.
23, 2010).
Accordingly, Plaintiffs cannot sustain a claim for barriers
of which they have no knowledge and only seek to discover during
the discovery process. The Court will grant Defendants’ motion
to dismiss as to these claims. Should Plaintiffs wish to amend
their Complaint to cure these deficiencies, they may do so
within twenty-one (21) days.
IV. CONCLUSION
For the foregoing reasons, the Court will grant Defendants’
17
motion as to AFDA (Count III) for lack of subject matter
jurisdiction. The Court will grant Defendants’ motion as to
Counts I, II and IV, for failure to state a claim. The
accompanying Order will be entered, and Plaintiffs Creel and
Hamill are granted leave to file an Amended Complaint addressing
these deficiencies within twenty-one (21) days of the entry of
the accompanying Order.
June 23, 2017
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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