575 F.3d 432 (5th Cir. 2009), 08-10630, Frame v. City of Arlington

Docket Nº:08-10630.
Citation:575 F.3d 432
Opinion Judge:E. GRADY JOLLY, Circuit Judge:
Party Name:Richard FRAME; Wendell Decker; Scott Updike; J.N., a minor, by his next friend and mother Gabriela Castro; Mark Hamman; Joey Salas, Plaintiffs-Appellants, v. CITY OF ARLINGTON, A Municipal Corporation, Defendant-Appellee.
Attorney:Miguel M. de la O (argued), De La O, Marko, Magolnick & Leyton, Miami, FL, for Plaintiffs-Appellants. Edwin ArmstrongPrice Voss, Jr. (argued), Brown & Hofmeister, Richardson, TX, Denise V. Wilkerson, Arlington, TX, for Defendant-Appellee.
Judge Panel:Before JOLLY, PRADO and SOUTHWICK, Circuit Judges.
Case Date:July 07, 2009
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 432

575 F.3d 432 (5th Cir. 2009)

Richard FRAME; Wendell Decker; Scott Updike; J.N., a minor, by his next friend and mother Gabriela Castro; Mark Hamman; Joey Salas, Plaintiffs-Appellants,

v.

CITY OF ARLINGTON, A Municipal Corporation, Defendant-Appellee.

No. 08-10630.

United States Court of Appeals, Fifth Circuit.

July 7, 2009

Page 433

Miguel M. de la O (argued), De La O, Marko, Magolnick & Leyton, Miami, FL, for Plaintiffs-Appellants.

Edwin ArmstrongPrice Voss, Jr. (argued), Brown & Hofmeister, Richardson, TX, Denise V. Wilkerson, Arlington, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, PRADO and SOUTHWICK, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The plaintiffs are persons with disabilities who depend on motorized wheelchairs for mobility. They allege that the City of Arlington, by failing to make the City's curbs, sidewalks, and certain parking lots ADA-compliant, has violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court dismissed their complaint on the basis that their claims were barred by the applicable two-year statute of limitations. This appeal raises more than one issue of first impression-at least for this court. Initially, we must decide whether Title II of the ADA authorizes the plaintiffs' claims; specifically, whether the City's curbs, sidewalks, and parking lots constitute a service, program, or activity within the meaning of Title II. Because we decide Title II authorizes the plaintiffs' claims, we next ask whether those claims are subject to a statute of limitations and, if so, when the claims accrued. We hold that the plaintiffs' claims are subject to a two-year statute of limitations, and that they accrued upon the City's completion of any noncompliant construction or alteration. We further conclude, however, that it was the City's burden to prove accrual and expiration of any limitations period. Because the district court erred in requiring the plaintiffs to prove that their claims had not expired, we must remand for further proceedings.

I.

This appeal comes to us from the grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We

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therefore accept the factual allegations of the plaintiffs' complaint as true. See, e.g., Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir.2008). The plaintiffs filed their complaint in the district court on July 22, 2005, and thereafter amended it three times. Accordingly, for facts we refer to the plaintiffs' final complaint, as amended.

The plaintiffs are individuals who reside in Arlington who have mobility impairments that require that they use motorized wheelchairs. They point to more than one hundred curbs and poorly maintained sidewalks in Arlington that they allege make their travel impossible or unsafe. They also point to at least three public facilities lacking adequate handicap parking. Count 1 of the plaintiffs' complaint alleges violations of Title II of the ADA. See Title II of the ADA, 42 U.S.C. § § 12131 et seq. (prohibiting public entities from discriminating on the basis of disability).1 Count 2 of the plaintiffs' complaint alleges violations of Section 504 of the Rehabilitation Act, which prohibits recipients of federal funding from discriminating against persons on the basis of disability. See Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The plaintiffs do not seek monetary damages; they only ask for an injunction requiring the City to bring its curbs, sidewalks, and parking lots into ADA compliance.

The City of Arlington moved to dismiss the complaint, asserting three grounds for dismissal: (1) that the claims were barred by the applicable two-year statute of limitations; (2) that the plaintiffs lacked standing to invoke Title II, the ADA Accessibility Guidelines, or Section 504 of the Rehabilitation Act; and (3) that the alleged facts did not state a legal claim of discrimination.

The district court granted the City's motion on the ground that the plaintiffs' claims were barred by the applicable two-year statute of limitations. The district court held that the plaintiffs' claims accrued, and the two-year limitations period began to run, on the date the City completed the construction or alteration of any noncompliant curb, sidewalk, or parking lot. Because the plaintiffs' complaint did not point to dates of noncompliant construction or alteration within the two years preceding its filing date, July 22, 2005, the district court dismissed the plaintiffs' claims.

On appeal, the plaintiffs argue that their claims accrued on the date individual plaintiffs encountered a noncompliant barrier-not on the date the City completed a noncompliant construction or alteration. In the alternative, the plaintiffs argue that statutes of limitation do not apply to claims for injunctive relief; that the noncompliant curbs, sidewalks, and parking lots are continuing violations of the ADA that relieve them of the limitations bar; and that dismissal

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was improper because the City, and not the plaintiffs, had the burden to establish when the plaintiffs' claims accrued and the limitations period expired.

We consider each of the plaintiffs' arguments separately. But before we reach the limitations and accrual issues, we resolve whether Title II otherwise authorizes the plaintiffs' claims.

II.

We review a Rule 12(b)(6) dismissal de novo. See, e.g., Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386 (5th Cir.2008). " The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff." Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir.2005) (citing Sloan v. Sharp, 157 F.3d 980, 982 (5th Cir.1998)). The interpretation of a statute is a question of law we also review de novo. See, e.g., Motient Corp. v. Dondero, 529 F.3d 532, 535 (5th Cir.2008).

The immediate question is whether Title II of the ADA authorizes the plaintiffs' claims, that is, whether the City's curbs, sidewalks, and parking lots are a service, program, or activity within the meaning of Title II. For reasons we explain, we decide that they are.

The ADA was passed " [t]o provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1).2 The focus of the instant appeal is on Title II of the ADA, which prohibits public entities from discriminating against individuals on the basis of disability. Title II provides that " no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132.

Title II is enforceable through a private cause of action, see, e.g., Barnes v. Gorman, 536 U.S. 181, 184-85, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002), and we have held that to make a prima facie case under Title II a plaintiff must show: (1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability. Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir.2004). There is no dispute that the City is a public entity, or that the plaintiffs here have qualifying disabilities.3 There is, however, a dispute over whether curbs, sidewalks, and parking lots are encompassed within services, programs, or activities

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for which a public entity has liability under Title II.

Title II does not define " services, programs, or activities." Although we have not decided whether curbs, sidewalks, or parking lots fall within Title II's coverage, other circuits have interpreted " services, programs, or activities" broadly.

For example, the Ninth Circuit has specifically held that public sidewalks are a service, program, or activity within the meaning of Title II, by reasoning that " services, programs, or activities" can be construed as " ‘ anything a public entity does.’ " Barden v. City of Sacramento, 292 F.3d 1073, 1076 (9th Cir.2002) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 691 (9th Cir.2001) (quoting Yeskey v. Pa. Dep't of Corr., 118 F.3d 168, 171 (3d Cir.1997), aff'd, 524 U.S. 206, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998))). The focus of its inquiry, the court wrote, was not on whether a sidewalk can be characterized as a service, program, or activity, but on whether it is " ‘ a normal function of a government entity.’ " Id. (quoting Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 730 (9th Cir.1999) (quoting Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44 (2d Cir.1997))). The court concluded that maintaining public sidewalks is " without a doubt something that the [City] ‘ does,’ " and public sidewalks, therefore, fall within the scope of Title II. Id. (quotation marks and citation omitted).

The Sixth Circuit has also broadly held that " the phrase ‘ services, programs, or activities' encompasses virtually everything that a public entity does." Johnson v. City of Saline, 151 F.3d 564, 569 (6th Cir.1998). Although that court has not specifically decided that sidewalks constitute " services, programs, or activities" within the meaning of Title II, it has held that a plaintiff has a private cause of action under Title II to enforce 28 C.F.R. § 35.151, a regulation that establishes accessibility standards for curbs and sidewalks. Ability Ctr. of Greater...

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