657 F.3d 215 (5th Cir. 2011), 08-10630, Frame v. City of Arlington

Docket Nº:08-10630.
Citation:657 F.3d 215
Opinion Judge:BENAVIDES and PRADO, Circuit Judges:
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, David Ferleger, Jenkintown, PA, for Plaintiffs-Appellants. Edwin ArmstrongPrice Voss, Jr. (argued), Brown & Hofmeister, L.L.P., Richardson, TX, Denise V. Wilkerson, Asst. City Atty., Arlington, TX, for Defendant-Appellee. ...
Judge Panel:Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges.[*] E. GRADY JOLLY, Circuit Judge, joined by EDITH H. JONES, Chief Judge, and JERRY E. SMITH, EMILIO M. GARZA, EDITH BROWN CLEMENT, OWEN a...
Case Date:September 15, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 215

657 F.3d 215 (5th Cir. 2011)

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.

September 15, 2011

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Miguel M. de la O (argued), de la O, Marko, Magolnick & Leyton, Miami, FL, David Ferleger, Jenkintown, PA, for Plaintiffs-Appellants.

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

Sasha M. Samberg-Champion, U.S. Dept. of Justice, Appellate Section, Antitrust Div., Jessica Dunsay Silver, U.S. Dept. of Justice, Civil Rights Div.— Appellate Section, Washington, DC, for U.S., Amicus Curiae.

Mary Ellen E. Signorille, Sr. Atty., American Association of Retired Persons, Washington, DC, for American Association of Retired Persons, Amicus Curiae.

Scott N. Houston, Gen. Counsel, Texas Municipal League, Austin, TX, for Texas Municipal League, Amicus Curiae.

Scott N. Houston, Gen. Counsel, Texas Municipal League, Austin, TX, Devala Janardan, International Municipal Lawyers Association, Bethesda, MD, for International Municipal Lawyers Association, Amicus Curiae.

David Jonathan Canupp, George W. Royer, Jr., Lanier, Ford, Shaver & Payne, P.C., Huntsville, AL, for City of Huntsville, Alabama, Amicus Curiae.

Christopher John Caso, Asst. City Atty., Barbara Elaine Rosenberg, James Bickford Pinson, Asst. City Atty., City Attorney's Office, Dallas, TX, for City of Dallas, Amicus Curiae.

Scott N. Houston, Gen. Counsel, Texas Municipal League, Austin, TX, for National League of Cities, Amicus Curiae.

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

Before JONES, Chief Judge, and KING, JOLLY, DAVIS, SMITH, GARZA, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK and HAYNES, Circuit Judges.[*]

BENAVIDES and PRADO, Circuit Judges:

Title II of the Americans with Disabilities Act (ADA),1 like § 504 of the Rehabilitation Act,2 provides that individuals with disabilities shall not " be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination

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by any such entity." For nearly two decades, Title II's implementing regulations have required cities to make newly built and altered sidewalks readily accessible to individuals with disabilities. The plaintiffs-appellants in this case, five individuals with disabilities, allege that defendant-appellee the City of Arlington (the City) has recently built and altered sidewalks that are not readily accessible to them. The plaintiffs brought this action for injunctive relief under Title II and § 504.

We must resolve two issues. First, we must determine whether Title II and § 504 (and their implied private right of action) extend to newly built and altered public sidewalks.3 Second, we must determine whether that private right of action accrued at the time the City built or altered its inaccessible sidewalks, or alternatively at the time the plaintiffs first knew or should have known they were being denied the benefits of those sidewalks. We hold that the plaintiffs have a private right of action to enforce Title II and § 504 with respect to newly built and altered public sidewalks, and that the right accrued at the time the plaintiffs first knew or should have known they were being denied the benefits of those sidewalks.

I

The plaintiffs in this case depend on motorized wheelchairs for mobility. They allege that certain inaccessible sidewalks make it dangerous, difficult, or impossible for them to travel to a variety of public and private establishments throughout the City. Most of these sidewalks allegedly were built or altered by the City after Title II became effective on January 26, 1992.4 The plaintiffs sued the City on July 22, 2005, claiming that the inaccessible sidewalks violate Title II of the ADA and § 504 of the Rehabilitation Act. The complaint was most recently amended on August 9, 2007. The plaintiffs seek injunctive relief but not damages.

The district court dismissed the plaintiffs' complaint on statute-of-limitations grounds. The district court determined that the plaintiffs' claims accrued, and the relevant two-year limitations period began to run, on the date the City finished building or altering any inaccessible sidewalk. After requiring the plaintiffs to " replead their case and allege specific dates of the City's alteration or construction efforts," the district court dismissed the complaint because it did not allege dates of construction or alteration within two years of July 22, 2005.

On appeal, a panel of this Court began by considering whether the plaintiffs had a private right of action to enforce Title II with respect to inaccessible sidewalks. The panel unanimously held that the plaintiffs had such a right because public sidewalks are " services, programs, or activities" of a public entity within the plain meaning of Title II.5 The panel next considered whether the plaintiffs' claims were barred by Texas's two-year personal-injury statute of limitations. The panel determined

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that the statute of limitations is an affirmative defense on which the defendant has the burden of proof, and that the district court erred in requiring the plaintiffs to plead dates of construction in their complaint. The panel would have remanded for further proceedings. One member of the panel dissented, however, with respect to the panel majority's finding that the plaintiffs' claims " accrued on the date the City completed the construction or alteration of any noncompliant" sidewalk.6 According to the dissenting judge, the plaintiffs' claims did not accrue until the plaintiffs " physically encounter[ed], or actually learn[ed] of and [were] deterred from attempting to access, a noncompliant sidewalk." 7

Both parties petitioned for rehearing en banc. The panel majority withdrew its initial opinion and issued a revised opinion.8 In the revised opinion, the panel majority determined that sidewalks were not " services, programs, or activities of a public entity" within the meaning of Title II. The panel majority thus held that the plaintiffs did not have a private right of action to enforce Title II with respect to sidewalks " in instances where these facilities do not prevent access to some [other] service, program, or activity." 9 The panel majority would have remanded the case " only to the extent [the plaintiffs] have alleged a noncompliant sidewalk, curb, or parking lot denies them access to a program, service, or activity that does fall within the meaning of Title II." 10 With respect to the statute of limitations, however, the panel unanimously found that the plaintiffs' claims did not accrue until the plaintiffs " knew or should have known" they were denied the benefits of the City's services, programs, or activities.11 A member of the panel again dissented, asserting that the construction, alteration, and maintenance of public sidewalks unambiguously are services, programs, or activities of a public entity within the plain meaning of Title II.12

We granted the plaintiffs' second petition for rehearing en banc. At oral argument, the plaintiffs unequivocally abandoned any claims with respect to sidewalks built on or before (and not altered after) January 26, 1992. Accordingly, we deem the plaintiffs' claims with respect to such sidewalks waived and abandoned.13 All that remain to be considered are the plaintiffs' claims with respect to sidewalks built or altered after January 26, 1992. We refer to such sidewalks as newly built or altered sidewalks.

II

We review de novo a district court's dismissal of a complaint under Rule 12(b)(6).14 " To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘ state a claim to relief that is plausible on its face.’ " 15 A claim for relief is plausible on

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its face " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 16

III

It is established that Title II of the ADA and § 504 of the Rehabilitation Act are enforceable through an implied private right of action. The issue is whether these statutes (and their established private right of action) extend to newly built and altered public sidewalks.17 Based on statutory text and structure, we hold that Title II and § 504 unambiguously extend to newly built and altered public sidewalks. We further hold that the plaintiffs have a private right of action to enforce Title II and § 504 to the extent they would require the City to make reasonable modifications to such sidewalks.

A

1

The ADA is a " broad mandate" of " comprehensive character" and " sweeping purpose" intended " to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life." 18 Title II of the ADA focuses on disability discrimination in the provision of public services. Specifically, Title II, 42 U.S.C. § 12132, 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."

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