Pier 1 Ducks ADA Liability in Court's Revised Ruling

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Friday, January 07, 2011Last Update: 3:45 PM PT Pier 1 Ducks ADA Liability in Court's Revised Ruling

By BARBARA LEONARD

http://www.ca9.uscourts.gov/datastore/opinions/2011/01/07/07-16326.pdf

(CN) - The full 9th Circuit court ruled Friday to vacate and replace a decision over disability discrimination claims Pier 1 Imports faced from a California man who uses a wheelchair, concluding still to dismiss the suit.

Byron Chapman, who needs assistance to walk, said he could not get around a Pier 1 store in Vacaville, Calif., where architectural features throughout the property act as barriers to his wheelchair.

Chapman's expert identified 30 violations of the Americans with Disabilities Act and California Building Code, but Chapman did not personally encounter each of the barriers. Chapman also testified that he was never personally deterred from returning to the store because of the violations.

A federal judge dismissed Chapman's claims over several barriers, which the court had determined were not in violation of ADA or had already been remedied by the retailer.

Pier 1 appealed, arguing that Chapman did not have standing to sue over barriers he never encountered in the store and did not deter his shopping experiences.

A three-judge panel for the court agreed with Pier 1 in 2009, but that decision was vacated after the court's judges voted to rehear the appeal en banc. In Friday's decision, the court refined its conclusion but still voted that Chapman's ADA complaint should be dismissed for lack of jurisdiction on remand.

"Chapman has failed to allege and prove the required elements of Article III standing to support his claim for injunctive relief under the ADA," Judge Kim Wardlaw wrote for the panel of 11 judges. "Specifically, he has not alleged or proven that he personally suffered discrimination as defined by the ADA as to encountered barriers on account of his disability."

Disabled persons have standing to sue under ADA if they encounter a barrier that does not completely preclude the plaintiff from entering or from using a facility in any way, the ruling states. But Chapman failed to demonstrate the necessary likelihood that he would be harmed again in a similar way.

"Chapman leaves the federal court to guess which, if any, of the alleged violations deprived him of the same full and equal access that a person who is not wheelchair bound would enjoy when shopping at Pier One," Wardlaw wrote. "Nor does he identify how any of the alleged violations threatens to deprive him of full and equal access due to his disability if he were to return to the store, or how any of them deter him from visiting the store due to his disability. Although Chapman may establish standing as to unencountered barriers related to his disability, the list of barriers incorporated into his complaint does nothing more than 'perform a wholesale audit of the defendant's premises.'"

In a concurring opinion, Judge N. Randy Smith wrote that he supported the majority's conclusion but that the analysis gives to much berth for ADA standing.

"The majority's statement that a simple encounter with a barrier is sufficient to confer standing collapses the injury in fact element of standing with the causation element," Smith wrote, in an opinion joined by Judge Johnnie Rawlinson. "If the injury in fact element is an encounter with an ADA noncompliant barrier and the causation element is 'noncompliance with [the ADA],' then, in reality, these two elements are now one and the majority has expanded standing under the ADA to render the three part test illusory."

The minority opinion states that the majority would impermissibly allow plaintiffs to sue on behalf of others, rather than themselves, since they can sue over encounters with barriers that do not actually deprive access to the plaintiff.

 

[Yikes]

To clarify the fancy legal wording, the 3-part test of qualifying under ADA is that the plaintiff must have one of the following three:

1. Having a physical or mental impairment that substanially limits one or more major life activities.

2. Having a record of such impairment [that substanially limits one or more major life activities].

3. Being regarded as having such an impairment [that substanially limits one or more major life activities].

If I understand correctly, Judge Smith is saying that if the noncompliant element did not actually cause "limitation of one or more major life activities", then there is no grounds to claim discrimination.

In other words, the minority opinion states "no harm = no foul". This makes sense.

"The minority opinion states that the majority would impermissibly allow plaintiffs to sue on behalf of others, rather than themselves, since they can sue over encounters with barriers that do not actually deprive access to the plaintiff."

The majority opinion stated another way: no harm still equals a foul, even while they dismissed this case for other reasons. This their statement " Although Chapman may establish standing as to unencountered barriers related to his disability..."

Practical application: the majority opinion would theoretically allow me as an able-bodied architect to get in on the ADA lawsuit racketeering, even though it never affected me personally.

 

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Another standings case

TUFT v. STATE of TEXAS

ROBERT A. TUFT, Plaintiff-Appellant,

v.

THE STATE OF TEXAS; BRENDA CHANEY, former Warden of Jester 3 Unit; KATHREN GONZALES, Lieutenant of Correctional Office at the Jester 3 Unit; RICHARD LEAL, Assistant Warden of the Jester 3 Unit; EDDIE WILSON; R. WALDON; TEXAS DEPARTMENT OF CRIMINAL JUSTICE; J. P. GUYTON; KELLI WARD; MARY WARD; FRANK HOKE; DENISE JACKSON; MARY BECERRA; REGINALD HALL; BRENDA CARVER; JOE HICKS; DOUGLAS DRETKE, former Director of Texas Criminal Justice-Correctional Institutions Division (CID); JOHN DOE; JANE DOE; NATHANIEL QUARTERMAN, Current Director of Correctional Institutions Division; VERNON PITTMAN, Current Warden of Jester 3 Unit, Defendants-Appellees.

No. 10-20106. Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Filed: January 7, 2011.

Before: WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.

________________________________________

PER CURIAM.*

Proceeding pro se, Robert A. Tuft, Texas prisoner # 1062966, appeals the summary-judgment dismissal of his civil rights action, filed under 42 U.S.C. § 1983, as well as other rulings by the district court. Tuft sued the State of Texas, the Texas Department of Criminal Justice (TDCJ), and numerous prison officials in their individual and official capacities, seeking nominal, compensatory, and punitive damages, declaratory and injunctive relief, and transfer to federal-protective custody. Tuft alleged prison conditions, including unsanitary conditions, waiting in line to receive medication, and female guards participating in strip searches of male prisoners, violated the Eighth and Fourteenth Amendments, and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213. Summary judgment was granted against Tuft's claims.

In regard to the court's interlocutory rulings, Tuft contends the district court erred by ordering him to file a more definite statement of his claims. Such an order is reviewed for abuse of discretion. Old Time Enters., Inc. v. Int'l Coffee Corp.,862 F.2d 1213, 1217 (5th Cir. 1989). Although Tuft maintains most of the information the district court required by its order was already included in his pleadings, the order identified specific details Tuft failed to provide in his amended complaint. See Eason v. Thaler,14 F.3d 8, 9 (5th Cir. 1994).

Tuft further asserts the court erred by requiring in its order for a more definite statement that he provide information related to exhaustion of claims. See Jones v. Bock, 549 U.S. 199, 216 (2007) (holding inmate not required to demonstrate exhaustion in complaint). Error, if any, was harmless because the court did not dismiss any of Tuft's claims as unexhausted until after defendants raised exhaustion in their answer as an affirmative defense and moved for summary judgment on that basis. See FED. R. CIV. P. 61 (noting court must disregard all errors not affecting party's substantial rights).

Other interlocutory rulings Tuft challenges include denial of his motions for leave to amend his pleadings, under Federal Rule of Civil Procedure 15(a)(2). Denial of such motion is also reviewed for abuse of discretion. Foman v. Davis,371 U.S. 178, 182 (1962). "While leave to amend must be freely given, that generous standard is tempered by the necessary power of a district court to manage a case", Shivangi v. Dean Witter Reynolds, Inc.,825 F.2d 885, 891 (5th Cir. 1987); and "a busy district court need not allow itself to be imposed upon by the presentation of theories seriatim", Rosenzweig v. Azurix Corp.,332 F.3d 854, 865 (5th Cir. 2003) (internal citation and quotation marks omitted).

Because Tuft requested leave to amend his pleadings after he already filed an amended complaint, his motions for leave to amend were subject to the court's discretion under Rule 15(a)(2). The court's ruling was consistent with a concern for avoiding "undue prejudice to the opposing party by virtue of allowance of the amendment", a "permissible base[] for denial of a motion to amend". Wright v. Allstate Ins. Co.,415 F.3d 384, 391 (5th Cir. 2005) (internal citation and quotation marks omitted).

Tuft failed to brief any challenge to the denial of his motions for reconsideration of those rulings; accordingly, that issue is waived. See Hughes v. Johnson,191 F.3d 607, 613 (5th Cir. 1999).

Tuft also appeals the denial of leave to file a supplemental complaint to include claims arising after the date of his amended complaint. Such denial is reviewed for abuse of discretion; however, Tuft fails to explain why the district court's decision constituted such abuse. Burns v. Exxon Corp.,158 F.3d 336, 343 (5th Cir. 1998).

Finally, Tuft maintains the district court abused its discretion in denying his motion to file supplemental records consisting of documents showing ADA architectural guidelines. The district court properly struck the document because Tuft failed to verify them. See DIRECTV, Inc. v. Budden,420 F.3d 521, 529-31 (5th Cir. 2005); see also FED. R. CIV. P. 56©(4). Although Tuft also challenges the denial of reconsideration of its order striking the documents, he has not briefed his claim against that ruling, and, therefore, waived any error attending it. See Hughes, 191 F.3d at 613.

Tuft asserts the district court erred by failing to apply the continuing-tort doctrine to claims it ruled as time-barred under 28 U.S.C. § 1915A. A dismissal of claims under § 1915A is reviewed de novo. Geiger v. Jowers,404 F.3d 371, 373 (5th Cir. 2005). For purposes of the continuing-tort doctrine, "a continuous tort involves not only continuing wrongful conduct, but continuing injury as well". Upjohn Co. v. Freeman,885 S.W.2d 538, 542 (Tex. App. 1994). Tuft did not allege continuing injury with respect to the claims dismissed as time barred. For example, although Tuft maintained unsanitary prison conditions caused his ongoing bacterial infection, and that those conditions persisted, he did not assert that the "wrongful conduct continues to effect additional injury". Id.

Tuft also contends the court improperly dismissed, pursuant to 42 U.S.C. § 1997e(e), his ADA and constitutional claims regarding prison conditions; however, this assertion is unavailing to the extent he sought compensatory damages. See Geiger, 404 F.3d at 375 (stating failure to allege physical

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