Medina-Rodriguez v. Farmacia Medina, Inc. et al
Filing
52
OPINION AND ORDER re 36 Motion to Dismiss for Failure to State a Claim and Motion for Joinder. The Court DENIES defendants' 12(b)(6) motion to dismiss. Signed by Judge Francisco A. Besosa on 12/20/2017. (brc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
NORBERTO MEDINA-RODRIGUEZ,
Plaintiff,
Civil No. 17-1672 (FAB)
v.
FARMACIA MEDINA INC., et al.,
Defendants.
OPINION AND ORDER
BESOSA, District Judge.
Plaintiff Norberto Medina-Rodriguez (“Medina”) commenced this
action on May 19, 2017, alleging violations of Title III of the
Americans with Disabilities Act (“ADA”).
42 U.S.C. §§ 1201 et seq.
Farmacia
Medina
Num.
2,
Docket Nos. 1 & 27; see
Defendants Farmacia Medina, Inc. and
Inc.
(collectively,
“Farmacia
Medina
defendants”) have filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”).
No. 36.)
(Docket
For the reasons set forth below, the Court DENIES
defendants’ Rule 12(b)(6) motion.
I.
FACTUAL BACKGROUND
The Court takes the following facts as true, as pled in the
amended complaint.
Assured Guar. Corp. v. Garcia-Padilla, 214 F.
Supp. 3d 117, 122 (D.P.R. 2016) (Besosa, J.) (when analyzing
12(b)(6) motions, “the Court accepts a complaint’s well-pled facts
Civil No. 17-1672 (FAB)
2
as true and views them – and the inferences drawn from them – in
a light most favorable to the pleader”).
Medina resides in Carolina, Puerto Rico.
p. 2.)
(Docket No. 1 at
Because he suffers from a permanent walking abnormality,
Medina’s ability to sit, stand, and walk is limited.
Id.
The
Puerto Rico Department of Motor Vehicles issued Medina a permanent
handicap permit for accessible parking spaces.
Id.
The Farmacia Medina defendants “own, operate, and/or lease”
a public establishment located in Loiza, Puerto Rico (hereinafter,
“facility”).
Id. at p. 1.
January 2017.
Medina visited defendants’ facility in
Id. at p. 3.
four physical barriers:
During this visit, Medina encountered
(1) a sloped parking space, making it
difficult for Medina to transition from the passenger side of his
vehicle to the access aisle, (2) a curb ramp that projected into
the access aisle, (3) a narrow sale counter, providing Medina with
insufficient room to conduct transactions, and (4) an “extremely
high”
service
transactions.
Although
counter
that
deterred
Medina
from
conducting
encounter
additional
Id. at pp. 3—4.
Medina
did
not
personally
obstructions, he is aware that eleven additional barriers exist at
the facility: (1) not one of the three publically accessible
parking spaces in front of the facility is ADA compliant, (2) the
facility lacks van accessible parking signage,(3) parking spaces
Civil No. 17-1672 (FAB)
are
not
located
within
3
the
shortest
accessible
route
to
the
facility, (4) the facility lacks a properly configured route from
accessible parking spots to the entrance, (5) the facility lacks
a properly configured route from the parking lot and the public
right of way to the entrance, (6) a clear floor area is missing
from the fire extinguisher location, (7) a clear floor area and
maneuvering space is absent from the receiving counter, (8) items
located on the receiving counter exceed the maximum allowable
height and depth, (9) the point of sale counter exceeds the maximum
allowable height, (10) items on the point of sale counter exceed
the maximum allowable height and depth for side reach, and (11) the
designated accessible exit lacks proper identifying signage.
Id.
at pp. 5—6.
The barriers that Medina personally encountered, along with
those of which he is merely aware, deter him from accessing the
facility because of his physical disability.
Id. at pp. 3 & 6.
Once the Farmacia Medina defendants remove all barriers, Medina
will return to the facility.
Id. at p. 6.
Medina asserts that
the Farmacia Medina defendants must eliminate physical barriers
where removal is readily achievable, and must construct facilities
accessible to disabled individuals whenever alterations to the
facility are made.
See 42 U.S.C. § 12182; 42 U.S.C. § 12183;
(Docket No. 1 at p. 29.)
Additionally, Medina contends that these
Civil No. 17-1672 (FAB)
ADA
violations
discrimination.
Medina
are
4
evidence
of
intentional
disability
Id. at p. 7.
asserts
a
single
cause
violation of Title III of the ADA. 1
of
action
premised
Id. at p. 29.
Medina, the Farmacia Medina defendants failed to:
on
a
According to
(1) remove
architectural barriers in an existing facility, (2) design and
construct an accessible facility, (3) make an altered facility
accessible, and (4) modify existing policies and procedures.
42 U.S.C. §§ 12182(a)–(b); (Docket No. 27 at pp. 29—31.)
See
Medina
seeks a declaratory judgment holding that the Farmacia Medina
defendants
violated
the
ADA,
and
an
additional
declaratory
judgment holding that Medina is exempt from preliminary screening
for complaints filed in forma pauperis pursuant to 28 U.S.C.
section 1915. 2
(Docket No. 27 at pp. 31 & 32.)
Medina also seeks
a permanent injunction requiring the Farmacia Medina defendants to
1
Jurisdiction exists in this case pursuant to 28 U.S.C. § 1331
because Medina seeks relief pursuant to the ADA, 42 U.S.C. §§ 1201
et seq, a federal statute.
2
This litigation is one of several cases referred to Magistrate
Judge Bruce McGiverin for a report and recommendation to determine
whether these actions are frivolous or malicious pursuant to 28
U.S.C. § 1915(e)(2)(B)(i). Docket Nos. 22 and 25; see Carton v.
Carroll Ventures, Inc., Case No. 17-0037 (D.N.M. July 10, 2017)
(recommending that the district court dismiss as malicious 65 ADA
actions commenced by the same plaintiff). Attorney José Carlos
Vélez-Colón (“Vélez-Colón”) serves as plaintiff’s counsel in the
actions before Magistrate Judge McGiverin.
Civil No. 17-1672 (FAB)
5
remove all ADA noncompliant barriers, and attorney’s fees.
Id. at
pp. 31—32.
Prior
to
the
amended
complaint,
the
Farmacia
Medina
defendants moved to dismiss the initial complaint pursuant to Rule
12(b)(6).
(Docket No. 18.)
Rather than oppose the Rule 12(b)(6)
motion, Medina filed an amended complaint, rendering moot all
dispositive motions regarding the initial complaint.
Nos. 27 & 39.)
to
dismiss
the
(Docket No. 6.)
(Docket
Subsequently, the Farmacia Medina defendants moved
amended
complaint
pursuant
to
Rule
12(b)(6).
In the second motion to dismiss, the Farmacia
Medina defendants argue that the amended complaint contains no new
factual
allegations.
(Docket
No.
36.)
The
Farmacia
Medina
defendants thus request that the Court adopt by reference the
previous motion to dismiss pursuant to Federal Rule of Civil
Civil No. 17-1672 (FAB)
Procedure 10(c) (“Rule 10(c)”). 3
6
Id. at p. 2.
The Court grants
the Farmacia Medina defendants’ request to adopt the arguments set
forth in their initial motion to dismiss.
Medina declined to file an opposition to defendants’ second
motion to dismiss, seeking “to avoid undue complications to this
run-of-the-mill claim under Title III of the ADA.”
at p. 1.)
II.
(Docket No. 38
Accordingly, the motion to dismiss is unopposed.
STANDARD OF REVIEW
Pursuant to Rule 12(b)(6), defendants may move to dismiss an
action for failure to state a claim upon which relief can be
granted.
See Fed. R. Civ. P. 12(b)(6).
To survive a Rule 12(b)(6)
motion, a complaint must contain sufficient factual matter “to
state a claim to relief that is plausible on its face.”
3
Bell Atl.
The Farmacia Medina defendants also request that the Court adopt
by reference the previously dismissed motion to dismiss for lack
of standing and motion for summary judgment pursuant to Federal
Rule of Civil Procedure Rule 56 (“Rule 56”). (Docket Nos. 19 and
20.) The Court will not adopt these motions. The arguments raised
by the Farmacia Medina defendants in the motion to dismiss for
lack of standing relate to matters currently before Magistrate
McGiverin; for instance, calling attention to the “number of
scattershot suits” filed by Vélez-Colón. (Docket No. 16 at p. 19.)
The Farmacia Medina defendants may move for summary dismissal as
to the amended complaint in a separate filing. The Court notes
that the Farmacia Medina defendants failed to attach a statement
of uncontested material facts to the summary judgment motion.
(Docket No. 20.) Subsequent motions for summary judgment shall
comport with Local Rule 56, requiring that parties include “a
separate, short, and concise statement of material facts, set forth
in numbered paragraphs, as to which the moving party contends there
is no genuine issue of material fact to be tried.” Loc. R. 56(b).
Civil No. 17-1672 (FAB)
7
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
The Court must decide
whether the complaint alleges sufficient facts to “raise a right
to relief above the speculative level.”
Id. at 555.
In doing so,
the Court is “obligated to view the facts of the complaint in the
light
most
favorable
to
the
ambiguities in their favor.”
plaintiffs,
case
may
be
used
to
resolve
any
Ocasio-Hernandez v. Fortuño-Burset,
640 F.3d 1, 17 (1st Cir. 2011).
facie
and
as
Although “the elements of a prima
a
prism
to
shed
light
upon
the
plausibility of the claim,” it is “not necessary to plead facts
sufficient to establish a prima facie case” in order to survive a
motion to dismiss.
49,
54
(1st
Cir.
discrimination
standard.
case
Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d
2013).
is
an
The
prima
evidentiary
facie
model,
analysis
not
a
in
a
pleading
Id. at p. 51 (“[T]he prima facie case is not the
appropriate benchmark for determining whether a complaint has
crossed
the
plausibility
threshold.”).
A
complaint
that
adequately states a claim may still proceed even if “recovery is
very remote and unlikely.”
Ocasio-Hernandez, 640 F.3d at 13
(internal quotation marks and citations omitted).
III. DISCUSSION
The
Farmacia
Medina
complaint on two fronts.
defendants
challenge
the
amended
First, they argue that the amended
complaint alleges a litany of violations pursuant to the ADA
Civil No. 17-1672 (FAB)
8
without averring that the Farmacia Medina defendants own the
facility.
Second, the Farmacia Medina defendants contend that the
amended complaint contains no factual allegations that they “could
even investigate in order to defend themselves.”
at p. 6.)
(Docket No. 18
A.
Both arguments are unconvincing.
Factual Allegations that Defendants Own the Facility
The Farmacia Medina defendants assert that they do not
own the facility.
(Docket No. 18 at p. 1.)
This argument contests
the factual validity of the amended complaint.
Medina alleges
specifically that the Farmacia Medina defendants “own, operate,
and/or lease the [f]acility,” and that “defendants have possessed
and
enjoyed
[f]acility.”
sufficient
control
and
authority
(Docket No. 27 at pp. 2 & 6.)
to
modify
the
In the Rule 12(b)(6)
context, “[n]on-conclusory factual allegations in the complaint
must be treated as true, even if seemingly incredible.”
Rocket
Learning, Inc. v. Rivera-Sanchez, 851 F. Supp. 2d 384, 389 (D.P.R.
2012) (Besosa, J.) (citation omitted).
The Court will not make factual findings at this stage
of the litigation.
At the motion to dismiss stage, the Court must
accept as true the factual allegations set forth in the amended
complaint.
Accordingly, the Farmacia defendants assertion that
they do not own the facilitate is an insufficient basis upon which
to premise dismissal of the amended complaint.
Civil No. 17-1672 (FAB)
B.
The Amended
Allegations
9
Complaint
Sets
Forth
Sufficient
Factual
Without citing precedent, the ADA or the Federal Rules
of Civil Procedure, the Farmacia Medina defendants cursorily argue
that
the
amended
complaint
is
devoid
of
factual
allegations
necessary for them to oppose the Title III cause of action.
(Docket No. 18 at p. 6.)
The Court disagrees.
Indeed, the amended
complaint sufficiently sets forth a “short and plain statement of
the claim showing that [Medina] is entitled to relief.”
Fed. R.
Civ. P. 8(a)(2).
Congress enacted the ADA to “address the major areas of
discrimination
faced
day-to-day
by
people
with
disabilities.”
Dudley v. Hannaford Bros. Co., 333 F.3d 299, 303 (1st Cir. 2003)
(quoting
42
specifically
U.S.C.
§ 12101(b)(4)).
addresses
“discrimination
places of public accommodation.”
Title
by
III
of
privately
the
ADA
operated
Id.; see also 42 U.S.C. § 12182.
Title III states that:
No individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of
the goods, services, facilities, privileges, advantages,
or accommodations of any place of public accommodation
by any person who owns, leases (or leases to), or
operates a place of public accommodation.
42 U.S.C. § 12182(a).
In order to establish a prima facie case pursuant to
Title III of the ADA, plaintiffs must demonstrate that (1) he or
Civil No. 17-1672 (FAB)
10
she has a qualified disability under the ADA, (2) the defendant
operates a place of public accommodation, and (3) the plaintiff
was discriminated against as a result of his or her disability.
See Powell v. Nat’l. Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir.
2004); Marradi v. K&W Realty Inv. LLC, 212 F. Supp. 3d 239, 245
(D. Mass. 2016); Disabled Ams. for Equal Access, Inc. v. Compra
Hosp. Pavia Inc., Case No. 02-1639, 2004 U.S. Dist. LEXIS 30919,
at *6 (D.P.R. Aug. 27, 2004) (Dominguez, J.).
The Court examines
each of these elements in determining whether Medina has pled
sufficient facts to withstand a Rule 12(b)(6) motion to dismiss.
1.
ADA Qualified Disability
When a plaintiff alleges a physical impairment, the
Supreme Court employs the three-step Bragdon test to analyze
whether that impairment is a qualified disability pursuant to the
ADA.
See Bragdon v. Abbott, 524 U.S. 624, 631 (1998); see also
Ramos-Echevarria v. Pichis, Inc., 659 F.3d 182, 187 (1st Cir.
2011).
First, a plaintiff must establish that he or she suffers
from a physical or mental impairment.
at 187.
Ramos-Echevarria, 659 F.3d
Second, a plaintiff must demonstrate that his or her
impairment affects major life activities of central importance.
Id.
Major life activities include “caring for oneself, performing
manual
tasks,
seeing,
standing, [and] sitting.”
hearing,
eating,
29 C.F.R. § 1630.2.
sleeping,
walking,
Third, a plaintiff
Civil No. 17-1672 (FAB)
11
must demonstrate that his or her impairment “substantially limits”
that major life activity.
Ramos-Echevarria, 659 F.3d at 187.
In his amended complaint, Medina claims a physical
impairment in the form of a permanent walking abnormality due to
a leg injury and bone damage.
(Docket No. 27 at p. 2.)
Medina
also asserts that because of his walking abnormality, he is unable
to sit, stand, and walk.
impairment
substantially
Id.
In sum, Medina alleges that his
limits
major
life
activities.
Id.
Defendants do not dispute that Medina is impaired within the
meaning of the ADA.
The Court is satisfied that Medina adequately
has alleged that he is an individual with a qualified disability
pursuant to the ADA.
2.
Place of Public Accommodation
The second requirement pursuant to Title III of the
ADA is that a defendant “owns, leases (or leases to), or operates
a place of public accommodation.”
42 U.S.C. § 12182(a).
Pursuant
to the ADA, public accommodation encompasses “a bakery, grocery
store, clothing store, hardware store, shopping center, or other
sales
or
rental
establishment.”
42 U.S.C.
§
12181(7)(e).
Defendants’ Rule 12(b)(6) motion does not address this element of
a Title III claim.
Medina, however, avers that the facility falls
within the statutory definition of public accommodation because it
is “open to the public.”
(Docket No. 27 at p. 3.)
Accordingly,
Civil No. 17-1672 (FAB)
12
Medina has fulfilled the second requirement by asserting that the
property is a place of “public accommodation.”
3.
Discriminated Against
Lastly, an ADA plaintiff must establish that he or
she was discriminated against because of his or her disability.
42 U.S.C. § 12182(a).
that
constitute
Title III outlines prohibited activities
discrimination.
Disability
discrimination
includes, inter alia, “a failure to remove architectural barriers,
and communication barriers that are structural in nature, in
existing
facilities
achievable.”
[.
.
.]
where
such
removal
42 U.S.C. § 12182(b)(2)(A)(iv).
demonstrate
that
the
defendants’
property
removal
is
of
“readily
readily
Plaintiffs must
architectural
achievable,
is
barriers
i.e.,
is
on
easily
accomplishable and able to be carried out without much difficulty
or expense.”
42 U.S.C. § 12182(b)(2)(A)(iv); Disabled Ams. for
Equal Access, Inc. v. Ferries del Caribe, Inc., 405 F.3d 60, 63
n.5 (1st Cir. 2005).
Courts may consider the nature of the ADA
violations in determining whether it is plausible that their
removal is readily achievable.
See Marradi, 212 F. Supp. 3d at
246.
Medina
asserts
discrimination
as
a
defendants’ failure to remove architectural barriers.
No. 27 at p. 7.
result
of
See Docket
He alleges in the amended complaint that four
Civil No. 17-1672 (FAB)
13
physical barriers obstruct access to the facility.
4.
Id. at pp. 3-
Moreover, Medina contends that he is aware that an additional
eleven barriers exist at the facility.
Id. at pp. 4 & 5.
These
barriers, Medina claims, render the building unsafe, deter him
from returning, and deprive him of the “ability to use and enjoy
the goods, services, privileges and accommodations offered at the
[f]acility.”
Id. at p. 2.
For each barrier, Medina suggests
“possible solutions,” such as “relocating [a] ramp” to remedy a
noncompliant curb ramp.
Id. at p. 3; Cf. Melo v. S. Broadway Law
Realty Tr., Case No. 15-13475, 2016 U.S. Dist. LEXIS 11583 at *2
(D. Mass. Feb. 1, 2016) (denying motion to dismiss even where
plaintiff only stated that the removal of twenty-three barriers
was
readily
achievable
because
that
claim
was
plausible
considering the violations).
The
burden
of
providing
evidence
pertaining
architectural barriers at the facility rests with Medina.
to
The
Court acknowledges that “whether the plaintiff can ultimately
carry that burden is not material to the question of whether the
complaint has adequately alleged a prima facie claim.”
U.S. Dist. LEXIS 11583 at *2.
Melo, 2016
After reviewing the allegations
concerning the alleged architectural barriers, the Court draws on
“its
judicial
experience
and
plausibility of their removal.
common
sense”
to
determine
the
Torres v. Junta de Gobierno de
Civil No. 17-1672 (FAB)
14
Servicio de Emergencia, 91 F. Supp. 3d 243, 249 (D.P.R. 2015)
(Gelpi, J.) (quoting Iqbal, 556 U.S. at 678-79).
For the limited
purposes of ruling on the Rule 12(b)(6) motion to dismiss before
the Court, the Court finds it plausible that removing the alleged
barriers is readily achievable.
Because the complaint describes
four architectural barriers in violation of the ADA, each of which
may be removed plausibly, Medina has pled sufficient facts to bring
a Title III ADA claim. Accordingly, the motion to dismiss pursuant
to Rule 12(b)(6) is DENIED.
IV.
CONCLUSION
For the reasons discussed above, the Court DENIES defendants’
12(b)(6) motion to dismiss.
(Docket No. 36.)
IT IS SO ORDERED.
San Juan, Puerto Rico, December 20, 2017.
s/ Francisco A. Besosa
FRANCISCO A. BESOSA
UNITED STATES DISTRICT JUDGE
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