Dillery v. City of Sandusky

• Decision Date: 18 February 2005
• Docket Number: No. 03-3466.,No. 03-3465.,No. 04-3314.,03-3465.,03-3466.,04-3314.
• Parties: Kelly DILLERY, Plaintiff-Appellee/Cross-Appellant, v. CITY OF SANDUSKY, et al., Defendants-Appellants/Cross-Appellees. Kelly Dillery, Plaintiff-Appellant, v. City of Sandusky, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

398 F.3d 562

Kelly DILLERY, Plaintiff-Appellee/Cross-Appellant, v. CITY OF SANDUSKY, et al., Defendants-Appellants/Cross-Appellees.

Kelly Dillery, Plaintiff-Appellant, v. City of Sandusky, et al., Defendants-Appellees.

No. 03-3465.

No. 03-3466.

No. 04-3314.

United States Court of Appeals, Sixth Circuit.

Argued: December 9, 2004.

Decided and Filed: February 18, 2005.

COPYRIGHT MATERIAL OMITTED

ARGUED: William P. Lang, Avon Lake, Ohio, for Defendants. K. Ronald Bailey, K. Ronald Bailey & Associates, Sandusky, Ohio, for Plaintiff. ON BRIEF: William P. Lang, Avon Lake, Ohio, for Defendants. K. Ronald Bailey, K. Ronald Bailey & Associates, Sandusky, Ohio, Linda R. Van Tine, Sandusky, Ohio, for Plaintiff.

Before: MERRITT, GIBBONS, and ROGERS, Circuit Judges.

OPINION

GIBBONS, Circuit Judge.

Kelly Dillery is a disabled woman who uses a wheelchair or motorized scooter to move. Dillery sued the City of Sandusky, city commissioners, and several city employees under the Americans with Disabilities Act ("ADA"), the Rehabilitation Act, 42 U.S.C. § 1983, and various Ohio state law provisions. She alleged that Sandusky violated the ADA by failing to install proper curb cuts, such that Dillery was forced to ride her wheelchair in the street instead of on the sidewalk. Further, Dillery alleged that Sandusky police officers violated her rights by stopping her and, on several occasions, arresting her for riding her wheelchair in the street. The district court granted summary judgment to the defendants on all counts. Dillery filed a motion for reconsideration, based in part on United States District Judge James G. Carr's ruling in a separate case against Sandusky, Ability Center of Greater Toledo v. City of Sandusky. The district court, based on Judge Carr's ruling, granted Dillery's motion in part, but found that her claims for injunctive relief had been essentially mooted. The defendants filed a notice of appeal, and Dillery filed a notice of cross-appeal.

Dillery subsequently moved for attorneys' fees and costs. The district court denied Dillery's motion, finding that even if she was a prevailing party, she was not entitled to any fees. Dillery filed a timely notice of appeal.

For the following reasons, we affirm the decisions of the district court.

I.

Dillery is a 35-year-old woman who suffers from Fredericks Ataxia, a progressive neurological disorder. The disease is characterized by speech impairment, peculiar swaying, and irregular movements, and she must use a motorized wheelchair to move. Neither party disputes that she is disabled within the meaning of the ADA.

Dillery lives in Sandusky, Ohio. In 1975, Sandusky promulgated a policy to install curb ramps at intersections where work was being done in order to make the sidewalks handicapped accessible. Around this time, Sandusky also began a program to replace sidewalks, curbs, and gutters throughout the city. It is undisputed that Sandusky, despite undertaking this program, does not have a formal transition plan in place, as required by the ADA.

Dillery often traveled in her wheelchair on the Sandusky streets, rather than on the sidewalk, because the sidewalk curbs, the unevenness of the sidewalk, and the slope of the sidewalk could overturn her wheelchair or cause her difficulty in maneuvering. On numerous occasions, police officers stopped Dillery for traveling in the streets and directed her to move to the sidewalk. Dillery continued to use the streets, however, because she believed that they provided a more level surface for her wheelchair than many of the city sidewalks.

On June 1, 1998, Dillery was riding in her wheelchair to her bank. In order to reach her bank, Dillery crossed from the north side of Perkins Avenue to the south side and then traveled along the south side of this street, where there were no sidewalks. According to a police report, she was observed traveling in the eastbound lane of Perkins Avenue and "[n]umerous vehicles had to stop or swerve to miss striking" her. The person reporting the incident also observed that another person was sitting in Dillery's lap as she traveled this route.

Officer Tracy Brewer issued a citation to Dillery for being a pedestrian in the roadway.¹ A judge found Dillery guilty of this offense and fined her $50 when she admitted in court that she was using the street.

After this incident, Dillery continued to use her wheelchair in the street. On July 30, 1998, Dillery and her daughter went to buy school clothes at a store on Perkins Avenue. A motorist stopped at an intersection observed Dillery approach his vehicle on the passenger's side of the car. Her daughter was in her lap. As Dillery passed the car, the motorist thought he saw Dillery's daughter hit her head and arm on his car's mirror. He reported the incident to the police, who subsequently called protective services. Protective services came to Dillery's home the following day and checked her daughter, who displayed no signs of injury. However, the police still charged Dillery with child endangerment. Dillery was acquitted of this charge after a jury trial.

On several other occasions, citizens complained to police officers about Dillery's riding her wheelchair in the street and the fact that cars were swerving to avoid her or nearly hitting her. Police officers investigated these complaints and cited Dillery for being a pedestrian in the roadway.

Dillery subsequently filed suit against the City of Sandusky, members of its City Commission in their official capacities, the City Engineer, Chief of Police, and Acting Police Chief in their official capacities, and Officer Tracy Brewer, individually and in her capacity as a police officer, in the Northern District of Ohio. She sought a preliminary injunction against the defendants to prevent them from "arresting or otherwise harassing her" in the City of Sandusky and also to prohibit them from installing or changing any buildings, streets, or walkways, unless the changes comported with the requirements of the ADA. She also alleged violations of the Rehabilitation Act, the ADA, and various state and federal provisions. She sought injunctive and declaratory relief, compensatory damages, and attorneys' fees and costs.

The defendants moved for summary judgment. The district court granted this motion in its entirety. Dillery filed a motion for reconsideration or to alter or amend the judgment. The court granted the motion in part as follows: (1) it vacated the portion of the opinion granting summary judgment to the city "on the matter of Defendant's compliance with the Americans With Disabilities Act sidewalk accessibility regulations;" and (2) it adopted portions of Judge Carr's final order in Ability Center of Greater Toledo v. City of Sandusky, an opinion that held that Sandusky violated the ADA by failing to install proper curb cuts and ramps at numerous intersections. The remainder of the motion was denied.

The defendants filed a timely notice of appeal from this judgment. Dillery filed a timely notice of cross-appeal.

In March 2003, Dillery filed a motion for attorneys' fees and costs pursuant to the ADA. The defendants opposed the motion, arguing that Dillery was not a prevailing party and thus was not entitled to fees and costs. The district court denied Dillery's motion, concluding that "Plaintiff's success and its impact on Defendants, if any, [was] so limited as to represent a mere moral or pyrrhic victory." Dillery filed a timely notice of appeal of this decision.

II.

The defendants challenge the district court's decision, on plaintiff's motion for reconsideration, to adopt portions of Judge Carr's decision in Ability Center of Greater Toledo v. City of Sandusky. Based on Ability Center, the district court found that Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001), did not bar Dillery's claims. The district court also adopted certain paragraphs from Judge Carr's order in Ability Center. In adopting these paragraphs, the district court determined that Sandusky violated the ADA when it "illegally failed to properly install or maintain curb cuts and ramps when resurfacing streets and altering or installing city sidewalks." On appeal, the defendants argue that Dillery does not have a private right of action to pursue her claims based on the failure of Sandusky to comply with regulations concerning the accessibility of facilities.

Defendants' argument was previously raised and rejected by this court in Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901 (6th Cir.2004), the appeal from Judge Carr's decision that was adopted in part by the district court in this case. Ability Center establishes that plaintiffs do have a private cause of action to pursue claims challenging public entities' failure to comply with regulations that create certain accessibility standards. In that case, we concluded that "if the regulation simply effectuates the express mandates of the controlling statute, then the regulation may be enforced via the private cause of action available under that statute." Id. at 906. The regulations at issue in Ability Center were designed to implement section 202 of the ADA, which prohibits public entities from discriminating against those with disabilities. See 42 U.S.C. § 12132. Because the accessibility regulations facilitate meaningful access to these public entities, they "effectuate[ ] this aim" of section 202 and thus are "enforceable through Title II's private cause of action." 385 F.3d at 913.

Defendants' argument that Dillery does not have a private cause of action to pursue relief based on the ADA's accessibility regulations fails based on Ability Center.

III.

Dillery raises three issues on appeal with regard to the district court's resolution of her lawsuit. She contests the following: (1) the district court's determination that defendants did not intentionally discriminate against Dillery; (2) the district court's grant of...