Berardi v. City of Pekin

• Decision Date: 19 April 2021
• Docket Number: Case No. 1:18-cv-01438
• Parties: PATRICIA BERARDI; ROBERT CHRISWELL; ALICE ROSE MARY ORTIZ; AUSTIN CALLOWAY; ELLEN SUNDERLAND; & LISA LYNCH, as the parent and next friend of M.L., a minor child, individually and on behalf of themselves and all other persons similarly situated, Plaintiffs, v. CITY OF PEKIN, ILLINOIS; MARK ROTHERT, in his official capacity as Pekin City Manager, & JOHN MCCABE, JOHN P. ABEL, MICHAEL GARRISON, MARK LUFT, LLOYD ORRICK, MICHAEL RITCHASON, & JIM SCHRAMM, in their official capacities as Council Members for the City of Pekin, Defendants.
• Court: U.S. District Court — Central District of Illinois

PATRICIA BERARDI; ROBERT CHRISWELL;ALICE ROSE MARY ORTIZ; AUSTIN CALLOWAY; ELLEN SUNDERLAND;& LISA LYNCH, as the parent and next friend of M.L., a minor child, individually and on behalf ofthemselves and all other persons similarly situated, Plaintiffs, v. CITY OF PEKIN, ILLINOIS; MARK ROTHERT, in his official capacity as Pekin City Manager,& JOHN MCCABE, JOHN P. ABEL, MICHAEL GARRISON, MARK LUFT,LLOYD ORRICK, MICHAEL RITCHASON, & JIM SCHRAMM,in their official capacities as Council Members for the City of Pekin, Defendants.

Case No. 1:18-cv-01438

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF ILLINOIS PEORIA DIVISION

April 19, 2021

ORDER & OPINION

This case is before the Court on Plaintiffs' Motion to Certify Class (doc. 27) and Defendants' Motion to Dismiss for Lack of Jurisdiction (doc. 41). These matters have been fully briefed and are therefore ripe for review. For the following reasons, the Motion to Certify Class is granted and the Motion to Dismiss is denied.

BACKGROUND

Plaintiffs Patricia Berardi; Robert Chriswell; Alice Rose Mary Ortiz; Austin Calloway; Ellen Sunderland; and Lisa Lynch, as the parent and next friend of M.L., a minor child, are residents of the City of Pekin, Illinois, living with mobility disabilities. (Doc. 40 at 3-4).¹ Defendants are the City of Pekin, Illinois; its City Manager, Mark Rothert; and its city council members: John McCabe, John P. Abel, Michael Garrison, Mark Luft, Lloyd Orrick, Michael Ritchason, and Jim Schramm. (Doc. 40 at 4-5).² This lawsuit is a putative class action involving alleged violations of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101, et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794, et seq. (Doc. 40).

In a nutshell, Plaintiffs allege Defendant City of Pekin's pedestrian rights-of-way³ are "largely inaccessible to persons with mobility disabilities" in violation of Title II of the ADA and Section 504 of the Rehabilitation Act. (Doc. 40 at 5-8). As a remedy, Plaintiffs seek, inter alia, injunctive relief⁴ "prohibiting Defendants from violating the ADA [and Rehabilitation Act] and compelling each Defendant to undertake remedial measures to mitigate the effects of Defendants' past and ongoing violations of [the ADA, Rehabilitation Act], and regulations promulgated thereunder" and specifically ordering Defendants to:

i. Develop ADA-compliant design guidelines for the City's sidewalks, curb ramps, and other pedestrian rights-of[-]way;

ii. Utilize the ADA-compliant design guidelines to conduct or cause to be conducted a comprehensive survey of all pedestrian rights-of-wayowned or maintained by the City to identify all areas of non-compliance;

iii. Prepare a specific plan to remediate all non-compliant pedestrian rights-of-way owned or maintained by the City; and

iv. Create and implement policies for inspection, repair, maintenance, and construction/alteration of pedestrian rights-of-way to ensure compliance with ADA-compliant design guidelines.

(Doc. 40 at 28, 30).

DISCUSSION

Prior to addressing the justiciability issue, it is necessary to clarify Plaintiffs' claims. Title II of the ADA states "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. § 12132.⁵ This means public entities "shall operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." 28 C.F.R. § 35.150(a); see also 28 C.F.R. § 35.149.

A public entity may comply with the requirements of this section through such means as redesign or acquisition of equipment, reassignment of services to accessible buildings, assignment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new facilities, use of accessible rolling stock or other conveyances, or any other methods that result in making its services, programs, or activities readily accessible to and usable by individuals with disabilities. A publicentity is not required to make structural changes in existing facilities where other methods are effective in achieving compliance with this section.

§ 35.150(b)(1). "In choosing among available methods for meeting the requirements of this section, a public entity shall give priority to those methods that offer services, programs, and activities to qualified individuals with disabilities in the most integrated setting appropriate." Id. Where structural changes are the chosen or only available method, all alterations must be ADA-compliant. Id. And the regulations explicitly require curb ramps be installed at intersections having curbs on all newly constructed or altered pedestrian walkways, streets, roads, or highways. § 35.151(i).

Some courts have concluded municipality pedestrian rights-of-way as well as their construction, maintenance, and alteration fall within the definition of "services, programs, or activities of a public entity." E.g., Barden v. City of Sacramento, 292 F.3d 1073, 1076-77 (9th Cir. 2002); Culvahouse v. City of LaPorte, 679 F. Supp. 2d 931, 941 (N.D. Ind. 2009) ("[Municipalities have] exclusive jurisdiction and responsibility for [their] sidewalks and an obligation to maintain [their] sidewalks so that the sidewalk system, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities." (internal quotation marks omitted)); Hamer v. City of Trinidad, 441 F. Supp. 3d 1155, 1172 (D. Colo. 2020) ("The statutory text, as well as its structure, legislative history, and broader statutory context, make clear that sidewalks[, as well as their construction, maintenance, and alteration] are aservice, program, or activity, as those terms are plainly and ordinarily understood.").⁶ Defining maintenance of pedestrian rights-of-way as a service arguably has immediate consequences under the ADA, as it essentially eliminates the safe harbor for "existing facilities"⁷ (i.e., that structural changes are not required unless the facility undergoes an alteration, see §§ 35.150(a)(1), 35.151(b)) as to municipality sidewalks. The service (maintenance) cannot be ADA-compliant without the facility (pedestrian rights-of-way) also being ADA-compliant. It is therefore arguable that the City of Pekin's pedestrian rights-of-way were required to have been made ADA-complaint no later than "three years [after] January 26, 1992," § 35.150(c), regardless of whether any portion thereof has been altered since enactment of the ADA. This, however, is subject to the defense permitting municipalities to avoid modification where the modification would create undue financial or administrative burdens. See § 35.150(a)(3).

The Court understands this lawsuit to assert decades of municipality policy or inaction have resulted in a public sidewalk system that cannot be meaningfully or safely accessed by individuals with mobility disabilities. Specifically, Plaintiffs' Amended Complaint alleges the single proposition that, viewed in its entirety, the Pekin sidewalk system is inaccessible to individuals with mobility disabilities, thus denying such individuals the benefits of a city service (maintenance of pedestrianrights-of-way) in violation of Title II of the ADA (Count I) and Section 504 of the Rehabilitation Act (Count II). (Doc. 40 at 23-31). Plaintiffs seek widespread remediation of all noncompliant pedestrian rights-of-way in the City of Pekin so as to facilitate citywide ADA compliance. In other words, the relief they seek is not limited to remedying those particular instances of noncompliance alleged in the Amended Complaint. It is clear Plaintiffs' goal is for the Pekin sidewalk system, "when viewed in [its] entirety, [be considered] readily accessible to and usable by individuals with [mobility] disabilities," see 28 C.F.R. § 35.150(a). (Docs. 40 at 28, 30-31; 29 at 14, 21; 35).

Defendants, however, frame the Complaint differently, seemingly describing each individual Plaintiff's and putative class member's experiences as separate claims for relief as opposed to evidence of the overarching claim that the Pekin sidewalk system, in general, is inaccessible to those with mobility disabilities. (See, e.g., doc. 32 at 19 (stating that "in order to determine whether Defendants are liable to a given plaintiff under Title II and the Rehabilitation Act, the Court would need to look at the particular barrier(s) encountered by each putative class member [and] perform [an] individual-specific analysis" to determine both liability and damages)).

Defendants' framing of Plaintiffs' claims conflates the claims with the facts and evidence necessary to prevail on those claims. To prevail, Plaintiffs must of course identify noncompliant portions of the sidewalk system and point to enough defects to prove the sidewalk system as a whole is impermissibly inaccessible. Contrary to Defendants' position, however, this necessity does not automatically divide Plaintiffs'two claims into subclaims that only the identified defects are subject to this lawsuit nor does Plaintiffs' assertion the sidewalk system is noncompliant for a number of different reasons, such as uneven sidewalks; noncompliant and nonexistent curb cuts; inaccessible bus stops; and placement of sewer covers, light poles, fire hydrants, and snow piles. To be sure, this lawsuit would require the factfinder to assess several individual defects in the Pekin sidewalk system, but not to determine liability as to a specific individual; rather, such consideration goes to the determination whether the sidewalk system as a whole is impermissibly inaccessible to individuals with mobility disabilities. A finding that a specific defect identified by one Plaintiff or putative class member is not itself a violation of the...