Lymer et al v. The City of Clarksburg

Filing 15

MEMORANDUM OINION AND ORDER DENYING THE DEFENDANT'S MOTION TO DISMISS PLAINTIFFS' COMPLAINT: It is ORDERED that Defendant's 3 Motion to Dismiss is hereby DENIED. A Status Conference is set for 4/15/2016 04:00 PM in Clarksburg District Judge Courtroom, 2nd Floor before District Judge Irene M. Keeley. Signed by District Judge Irene M. Keeley on 3/23/16. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
TINA LYMER and
WILLIAM LYMER,
PlaintiffS,
v.

//

CIVIL ACTION NO. 1:15CV136
(Judge Keeley)

THE CITY OF CLARKSBURG,
Defendant.
MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
Pending before the Court is a motion by the defendant, the
City of Clarksburg (“Clarksburg” or “the City”), to dismiss the
complaint filed by the defendants, Tina and William Lymer (“the
Lymers”). (Dkt. No. 3). For the following reasons, the Court DENIES
the motion.
I. BACKGROUND
The Court’s recitation of the facts is taken from the Lymers’
complaint. As it must, at this early stage of the proceedings, the
Court construes those facts in the light most favorable to the
non-moving party, the Lymers.

See De’Ionta v. Johnson, 708 F.3d

520, 524 (4th Cir. 2013).
The Lymers purchased property located at 420 Stealey Avenue in
Clarksburg, West Virginia (“the property” or “the structure”) from
Mrs. Lymer’s parents on November 6, 1992. Mrs. Lymer had resided in
the home on the property since her parents purchased it in 1967.
The Lymers allege that the City adopted the State Building

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
Code

in

2003,

and

that

West

Virginia

law

requires

that

municipalities strictly comply with and adhere to the Code. They
further

allege

that

the

City

knowingly,

intentionally,

and

unlawfully amended the Code in 2009 to remove certain mandated
safeguards, which made it reasonably foreseeable that the Lymers’
rights would be violated.
The alleged wrongful conduct began on February 15, 2013, when
two

of

Clarksburg’s

Code

Enforcement

Officers,

Keith

Kesling

(“Kesling”) and Jonathan Davis (“Davis”), served a Notice of
Violation (“NOV”) on the Lymers that related to the property. The
NOV cited various sections of the Code, noted that the structure
was unsafe and dangerous to occupants, and stated that it was
condemned with “Demolition Order status.” Furthermore, the Officers
served the Lymers with a document entitled “Condemnation and
Demolition Order,” which declared the structure unfit for human
occupancy and ordered that it be vacated by May 1, 2015.
As alleged in the complaint, when the Officers served him with
the order, Mr. Lymer questioned them about what work he would need
to complete in order to remove the condemnation and demolition
order. Officer Kesling informed Mr. Lymer that, because he was
disabled, the City would not allow him to work on the property, and
the only way he could reverse the order was through an appeal to
2

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
the Clarksburg Building Code Appeals Board (“BCAB”). The Lymers
complied with the order and vacated their home, which, as a result
of its vacancy, has deteriorated considerably.
On July 18, 2013, the City adopted a “Resolution Declaring
Certain Areas of the City of Clarksburg to be Slum or Blighted
Areas.” (Dkt. No. 1-1 at 16). Attached to that Resolution was a
list of properties that had received demolition orders, including
the Lymers’ property. (Dkt. No. 1-1 at 17).
The instant lawsuit seeks damages arising out of the City’s
determination that the Lymers’ home should be declared “slum or
blight” and thereafter be demolished and removed. The City’s
determination, set forth in the Resolution, was based on findings
of Clarksburg’s Code Enforcement Office, an entity that the Lymers
contend

was

staffed

with

unqualified

and

uncertified

code

inspectors operating under an improperly adopted and implemented
municipal building code.
Further, the Lymers allege that the improper building code
failed to give aggrieved individuals an adequate means to appeal
the Code Enforcement Office’s determinations. The Lymers claim they
were

deprived

of

their

rights

under

the

Fourth,

Fifth,

and

Fourteenth Amendments to the Constitution of the United States.
Specifically, they allege that Clarksburg deprived them of liberty
3

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
and property without due process of law, and took their property
without just compensation.
The Lymers’ complaint sets forth six counts. Counts I through
IV are based on civil rights violations under 42 U.S.C. § 1983.
Count I asserts liability of the City as a municipal corporation
under pursuant to Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978). Count II asserts general claims that the City knew or
should have known that its building code was improper. Count III
claims that the City knew or should have known that its code
officials were not properly trained, qualified, and certified.
Count IV claims the City deprived the Lymers of constitutionally
protected rights, including the right to be free from unreasonable
search and seizure, the right to be free from deprivation of
liberty and property without due process of law, and the right not
to have their property taken without just compensation. Count V is
a negligent hiring claim. Finally, count VI asserts a violation of
the Americans with Disabilities Act (“ADA”).
The Lymers originally filed their complaint in Harrison County
Circuit Court on July 17, 2015. The City removed the case to this
Court on August 11, 2015, asserting federal question jurisdiction
based on the Lymers’ claims of civil rights violations under 42
U.S.C. § 1983. On August 18, 2015, the City moved to dismiss the
4

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
Lymers’ complaint, pursuant to Fed. R. Civ. P. 12(b)(6).
The Court conducted a scheduling conference on October 21,
2015, during which it directed the parties to brief the due process
questions raised during oral argument on the pending motion to
dismiss. The matter is now fully briefed and ripe for review.
II. DISCUSSION
In its motion to dismiss, the City makes the following
arguments: (1) that the Lymers did not utilize the proper appellate
procedure to challenge the City’s actions; (2) that the claims are
insufficiently pled; (3) that the claims are time-barred by both
the applicable statute of limitations and the doctrine of laches;
(4) that the ADA claim must be dismissed because it does not allege
that Mr. Lymer is a qualified individual under the ADA; and (5)
that West Virginia law protects the City from any state law claims
and any punitive damages claims.1
After a thorough review of the parties’ briefs and the
applicable law, the Court concludes that the Lymers were not

1

The fifth ground for dismissal asserted by the City, that
West Virginia law protects the City from any state law claims and
any punitive damages claims, is a preemptive defense. The City
admits that the complaint contains no such claims, but should the
Lymers assert such claims in the future, the City reserves the
right to seek dismissal under the West Virginia Governmental Tort
Claims and Insurance Reform Act, W. Va. Code § 29-12A-1, et seq.
5

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
required to exhaust their administrative remedies prior to filing
suit

under

§

1983.

Further,

it

finds

that

the

Lymers

have

adequately pled their negligent hiring and ADA claims. Finally,
dismissal based on the statute of limitations or the doctrine of
laches is inappropriate at this juncture. Therefore, the Court
DENIES the City’s motion to dismiss the complaint.
A.

Failure to Exhaust Administrative Remedies
Relying

on

Article

1720.05

of

the

City

of

Clarksburg’s

municipal code, the City argues that the Lymers were required to
appeal any building code enforcement decision to the BCAB. If they
received an unfavorable ruling there, the City contends they were
required to file a petition for a writ of certiorari with the
Circuit Court of Harrison County, seeking review of the BCAB’s
decision.

See W. Va. Code § 53-3-2. Because the Lymers proceeded

directly to court without appealing to the BCAB, the City argues
that their claims are barred for failure to exhaust available
administrative remedies. In contrast, the Lymers assert that they
were not required to exhaust their administrative remedies prior to
suing under 42 U.S.C. § 1983.
1.

Exhaustion Requirement Generally

Both parties acknowledge the “long-settled rule of judicial
administration that no one is entitled to judicial relief for a
6

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
supposed or threatened injury until the prescribed administrative
remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp.,
303 U.S. 41, 50-51 (1938); see also Cavalier Telephone, LLC. v.
Virginia Elec. and Power Co., 303 F.3d 316, 322 (4th Cir. 2002)
(quoting

Myers).

This

is

true

even

when

plaintiffs

claim

constitutional challenges to the administrative procedure. Thetford
Properties IV Ltd. Partnership v. U.S. Dept. of Housing & Urban
Development, 907 F.2d 445, 448 (4th Cir. 1990). Only in the “rare
case when a statute is patently unconstitutional or an agency has
taken a clearly unconstitutional position” is exhaustion excused.
Thetford, 907 F.2d at 448-49 (“Where it is clear that resort to
administrative

remedies

would

be

incapable

of

affording

due

process, there is certainly no need to exhaust.”).
The

Fourth

Circuit

has

explained

the

benefits

of

exhaustion doctrine as follows:
The exhaustion requirement serves many purposes, not the
least of which are to allow an agency the opportunity to
use its discretion and expertise to resolve a dispute
without premature judicial intervention and to allow the
courts to have benefit of an agency’s talents through a
fully developed administrative record. We find these
prudential considerations no less weighty when an
administrative litigant raises a constitutional challenge
to a statute which an agency is charged with enforcing.

7

the

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
Thetford, 907 F.2d at 448.2 Further, “exhaustion is particularly
appropriate

when

the

administrative

remedy

may

eliminate

the

necessity of deciding constitutional questions.” Thetford, 907 F.2d
at 448. Of course, Congress may prescribe specific exhaustion
requirements under any legislation act it enacts, including 42
U.S.C. § 1983. See Patsy v. Bd. of Regents of State of Florida, 457
U.S. 496, 500 (1982).
2.

State Remedies Exhaustion Requirement Under § 1983 Claims

As it pertains to § 1983 claims, the exhaustion doctrine has
not

always

been

crystal

clear.

See

Patsy,

457

U.S.

at

500.

Beginning with Monroe v. Pape, the Supreme Court of the United
States has clarified that a § 1983 claim is “supplementary to the
state

law

claim”

and

carries

no

need

to

exhaust

state

administrative remedies. 365 U.S. 167, 183 (1961); see also McNeese

2

Thetford involved a question of federal agency administrative
remedies. There, the plaintiffs challenged, among other things, the
constitutionality of a federal law, which required that they
exhaust their administrative remedies through the Department of
Housing and Urban Development. The plaintiffs there had contended
that submission to an allegedly unconstitutional administrative
process was a violation of their due process rights. In that case,
the Fourth Circuit found that exhaustion was required because: (1)
Congress had prescribed it in the federal law in question; (2) the
statute was not “patently unconstitutional” and the agency had not
taken “a clearly unconstitutional position”; (3) the potential
relief offered by the administrative process was adequate; and (4)
submission to the process would not be futile. 907 F.2d at 449.
8

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
v. Board of Education, 373 U.S. 668, 671 (1963); McCray v. Burrell,
516 F.2d 357, 365 (4th Cir. 1975). Nevertheless, some lower courts
have distinguished an absolute interpretation of that principle.
See Patsy, 457 U.S. at 500 (“The question whether exhaustion of
administrative remedies should ever be required in a § 1983 action
has

prompted

vigorous

debate

and

disagreement.”

(citations

omitted)).
In Patsy, where the Fifth Circuit Court of Appeals had
concluded that the previous decision of the Supreme Court “did not
preclude the application of a ‘flexible’ exhaustion rule,” Id. at
499, the Supreme Court rejected this view and endeavored to put to
rest any such notion:
Respondent suggests that our prior precedents do not
control our decision today, arguing that these cases can
be distinguished on their facts or that this Court did
not “fully” consider the question whether exhaustion
should be required. This contention need not detain us
long. Beginning with McNeese v. Board of Education, we
have on numerous occasions rejected the argument that a
§ 1983 action should be dismissed where the plaintiff has
not exhausted state administrative remedies. Respondent
may be correct in arguing that several of these decisions
could have been based on traditional exceptions to the
exhaustion doctrine. Nevertheless, this Court has stated
categorically that exhaustion is not a prerequisite to an
action under § 1983, and we have not deviated from that
position in the 19 years since McNeese. Therefore, we do
not address the question presented in this case as one of
first impression.

9

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
Id. at 500-01 (emphasis added) (internal citations omitted).3 In
contrast, even before Patsy, the Fourth Circuit Court of Appeals
had

recognized the absolute nature of the Supreme Court’s ruling.

“Our duty is clear: We must follow the Supreme Court, not attempt
to lead it. We must hold that exhaustion is not required.” McCray
v. Burrell, 516 F.2d 357, 365 (4th Cir. 1975).
The City relies on several cases to advance the proposition
that there is no exhaustion requirement in cases specifically
involving condemnation or the taking of private property. (Dkt. No.
12 at 4). Those cases, however, are inapposite as they are either
non-binding, decided prior to Patsy, factually distinguishable, or
a combination of all these reasons.
The City relies on Perzanowski v. Salvio, 369 F. Supp. 223 (D.
Conn. 1974), but that case is unhelpful to its cause.

First,

Perzanowski is not binding on this Court. Furthermore, its holding
establishes only that claimants need not exhaust state judicial
remedies prior to filing a § 1983 suit.

The district court

distinguished between claimants who had only exhausted their state

3

McNeese was the first challenge to the absolute nature of the
holding in Pape. In determining whether Congress had intended
exhaustion of state administrative remedies to be a prerequisite to
filing a § 1983 claim, the Supreme Court reviewed the legislative
history of the Civil Rights Act of 1871, which was the predecessor
to § 1983. See Patsy, 457 U.S. at 502.
10

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
administrative remedies and those who had additionally exhausted
their state judicial remedies. That distinction no longer matters,
however, in the face of the Supreme Court’s holding that its
exhaustion jurisprudence applies to both state administrative and
state judicial exhaustion. See Steffel v. Thompson, 415 U.S. 452,
472-73 (1974) (“When federal claims are premised on [§ 1983] - as
they are here - we have not required exhaustion of state judicial
or administrative remedies, recognizing the paramount role Congress
has assigned to the federal courts to protect constitutional
rights.”). Finally, Perzanowski was decided nearly eight years
before Patsy.
In further support of its exhaustion argument, the City relies
on Hall v. City of Clarksburg, et al., 2015 WL 1965046 (N.D. W.Va.
May 1, 2015), where this Court relied heavily on the Fourth
Circuit’s decision in Timmons v. Andrews, 538 F.2d 584 (4th Cir.
1976). In Timmons, the plaintiff had appealed a decision of the
City

of

Columbia,

South

Carolina,

through

the

available

administrative process. After losing her appeal, Mrs. Timmons
failed to seek a petition for review with the South Carolina state
court and filed a lawsuit in federal district court against the
city, mayor, city council, and housing board of adjustments.
Similarly,

the

plaintiff

in

Hall,
11

who

had

exhausted

his

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
administrative remedies by appealing to the BCAB, failed to seek
state court review of the BCAB’s ruling prior to filing suit in
federal court.
Contrary to the City’s contentions, this Court in Hall did not
specifically address whether failure to exhaust administrative
remedies barred Hall’s § 1983 claim. The Court simply acknowledged
that Hall had already exhausted any administrative remedies without
any further discussion on the necessity of doing so. It then
proceeded to agree with Timmons’s premise that he need not exhaust
his state judicial remedies prior to bringing a § 1983 suit. Hall,
2015 WL 1965046 at *10.
Timmons did not conclusively decide that plaintiffs must
exhaust their administrative remedies prior to filing a § 1983
action.4

Although it observed that “[w]hen, as here, a state

institutes administrative proceedings, a respondent must normally
exhaust all administrative remedies before seeking an injunction in
federal court,” that statement was dicta; even if it were not
dicta,

it

would

no

longer

bind

4

this

Court

because,

as

the

Timmons does not discuss the applicability of the exhaustion
doctrine as it pertains specifically to § 1983 claims. The question
presented was whether the district court properly invoked the
abstention doctrine and refused to hear the case or issue an
injunction.
12

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
subsequent rulings by both the Supreme Court in Patsy, and the
Fourth

Circuit

in

McCray,

make

clear,

exhaustion

of

state

administrative and judicial remedies is not a prerequisite to
filing a § 1983 suit for constitutional violations.
The Lymers therefore were not required to exhaust state
administrative or state judicial remedies before filing suit;
accordingly, the Court DENIES the City’s motion to dismiss for
failure to exhaust.
B.

Sufficiency of the Allegations
The City next argues that the Lymers complaint must be

dismissed pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state
a claim upon which relief can be granted. “In order to survive a
motion to dismiss filed pursuant to Fed.R.Civ.P. 12(b)(6), a
complaint must contain factual allegations sufficient to state a
plausible claim for relief.” Silvester v. Davis, 2014 WL 1118166,
at *2 (N.D.W.Va. Mar. 20, 2014) (citing Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949 (2009); see also Bell Atl. Corp. v. Twombly, 550
U.S. 544, 557 (2007)). “The Court must consider all well-pleaded
factual allegations in a complaint as true and construe them in the
light most favorable to the plaintiff.” Silvester, 2014 WL 1118166
at *2

(citing Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc.,

519 F.3d 250, 253 (4th Cir. 2009)). The Court, however, is not
13

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
obligated to accept “conclusory allegations couched as facts and
nothing more.” Id. “[M]ore than labels and conclusions, and a
formulaic recitation of the elements of a cause of action” are
required. Twombly, 550 U.S. at 545. “Factual allegations must be
enough to raise a right to relief above the speculative level.” Id.
The City’s motion to dismiss asserts that the complaint makes
it “difficult to discern the basis of the [claims] and how the same
resulted in damages.” (Dkt. No. 4 at 12). Specifically, the City
claims to be unclear about “what the exact causes of action are in
this matter and what damages are associated with same.” Id.
The

complaint,

however,

contains

a

sufficiently

clear

statement of the claims and damages asserted. The Lymers contend
that the City enacted and then wrongfully modified the state
building code, which, under West Virginia law, requires strict
compliance. They further allege that the City hired unqualified
Building Code Officers to enforce unlawfully modified building
codes. Those Officers proceeded to violate the Lymers’ rights by
conducting improper inspections, wrongfully placarding their home,
issuing a Order or Condemnation with Demolition status, ordering
them to vacate the premises, and forbidding Mr. Lymer from working
on

the

property

to

bring

it

into

disabled.
14

compliance

because

he

was

LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
Moreover, the Lymers allege that this misconduct culminated in
a Resolution by the City that labeled their home as “slum or
blight” and authorized its demolition. As damages, they claim that
they lost their home, which had been in the family for almost half
a century. Finally, the complaint claims that the City knowingly,
intentionally,

and

wilfully

promoted

the

misconduct

to

the

detriment of the Lymers. Based on these allegations, the Court
finds that the claims have been sufficiently pled.
C.

Statute of Limitations/Laches
The

City

also

argues

that

the

majority

of

the

Lymers’

complaint is time-barred under the two-year statute of limitations
provided by W. Va. Code § 55-2-12(a) and the doctrine of laches,5
both of which are affirmative defenses identified in Fed. R. Civ.
P. 8(c). It is clear, however, that “a motion to dismiss filed
under Federal Rule of Procedure 12(b)(6) . . . generally cannot
reach the merits of an affirmative defense, such as the defense
that the plaintiff’s claim is time-barred.” Goodman, 494 F.3d 458,

5

Notably, laches is a state law doctrine that applies to
claims in equity. See Dunn v. Rockwell, 689 S.E.2d 255, 267 n.11
(W. Va. 2009). Notwithstanding, the defendants contend that “[a]ny
claims associated with the demolition of the Plaintiff’s properties
are barred by the doctrine of laches.” (Dkt. No. 38 at 13).
Because the Lymers seeks damages under § 1983, it is not clear that
West Virginia’s laches defense could bar the claims in the manner
argued by the defendants.
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LYMER v. CITY OF CLARKSBURG

1:15CV136

MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
464 (4th Cir. 2007). The only exception applies “in the relatively
rare circumstances where facts sufficient to rule on an affirmative
defense are alleged in the complaint.”

Id.

This case does not present one of the “relatively rare
circumstances” described in Goodman. Indeed, in response to the
defendants’ reliance on the statute of limitations, the Lymers
contend that the continuing violation doctrine6 rescues their
complaint. Regarding laches, they argue that the City is unable to
establish either undue delay or prejudice. Such issues require
further evidentiary development, and the Court cannot address them
now.
D.

Sufficiency of the Pleading on the Violation of the ADA Claim
The City claims that Count VI of the Lymers’ complaint must be

dismissed because it does not allege that Mr. Lymer is a qualified
individual with a disability, as required under Title II of the
ADA. However, as noted above, the Court must take the factual
allegations in the pleading as true and view them in the light most
favorable to the non-moving party. Here, Mr. Lymer claims that he
was denied the opportunity to work on his home and bring it into

6

See A Society Without a Name v. Virginia, 655 F.3d 342, 34849 (4th Cir. 2011) (recognizing that, in some circumstances, the
continuing violation doctrine can apply to § 1983 claims).
16

LYMER v. CITY OF CLARKSBURG

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MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
compliance because the Officer stated that he was disabled.
Although Mr. Lymer does not plead the basis of his alleged
disability, his claim is premised on the fact that the officer
would not allow him to work on the home because of his disability.
At no point does he contend that his disability was an erroneous
assertion by the officer. In fact, the complaint states that the
“[City] violated Plaintiff William Lymer’s rights by prohibiting
him from performing any work on his home because he is disabled.”
(Dkt. No. 1-1 at 14) (emphasis added). Conceivably, this assertion
could

be

performing

taken

to

the

work

mean

that

because

Mr.
the

Lymer
officer

was

prohibited

believed

him

disabled, when he, in fact, was not disabled under the ADA.

from
to

be

It is

just as arguable, however, that what the complaint clearly states
is that Mr. Lymer “is disabled.”
The Court concludes that the complaint sufficiently pleads a
violation of the ADA, and declines to dismiss the claim because of
its failure to cite a particular disability.
IV. CONCLUSION
For the reasons discussed, the Court DENIES the defendant’s
motion to dismiss (dkt. no. 3). Further, it SCHEDULES a status
conference for Friday, April 15, 2016 at 4:00 p.m. to schedule the

17

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MEMORANDUM OPINION AND ORDER DENYING THE DEFENDANT’S
MOTION TO DISMISS PLAINTIFFS’ COMPLAINT [DKT. NO. 3]
remainder of this case.
It is so ORDERED.
The Court directs the Clerk to transmit copies of this
Memorandum Opinion and Order to counsel of record.
DATED: March 23, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

18