Hamer v. City of Trinidad

• Decision Date: 21 February 2020
• Docket Number: Civil Action No. 16-cv-02545-NYW
• Citation: 441 F.Supp.3d 1155
• Parties: Stephen HAMER, Plaintiff, v. CITY OF TRINIDAD, Defendant.
• Court: U.S. District Court — District of Colorado

441 F.Supp.3d 1155

Stephen HAMER, Plaintiff,

v.CITY OF TRINIDAD, Defendant.

Civil Action No. 16-cv-02545-NYW

United States District Court, D. Colorado.

Signed February 21, 2020

Andrew Bizer, Garret DeReus, The Bizer Law Firm L.L.C., New Orleans, LA, Matthew J. Greife, Baumgartner Law, LLC, Englewood, CO, for Plaintiff.

Marni Nathan Kloster, Nicholas Christaan Poppe, Nathan Dumm & Mayer PC., Denver, CO, for Defendant.

MEMORANDUM OPINION AND ORDER

Magistrate Judge Nina Y. Wang This matter comes before the court on the following motions:

(1) Defendant City of Trinidad's ("Defendant" or "City") Renewed Motion for Summary Judgment, filed July 19, 2019, [#82];

(2) Defendant's Motion to Strike Plaintiff's Affidavits in Response to Summary Judgment (the "Motion to Strike"), filed August 9, 2019, [#92];

(3) Plaintiff Stephen Hamer's ("Plaintiff" or "Mr. Hamer") Motion to Supplement Opposition to Defendant's Motion for Summary Judgment ("Plaintiff's Motion to Supplement"), filed November 19, 2019, [#100]; and

(4) Defendant's Motion for Leave to Supplement Summary Judgment Briefing and Motion to Strike Briefing ("Defendant's Motion to Supplement"), filed November 21, 2019, [#102].

The undersigned considers the Motions pursuant to 28 U.S.C. § 636(c) and the Order of Reference for all purposes dated November 28, 2016, [#14], and concludes oral argument will not materially assist in the resolution of these matters. Upon careful review of the Motions and associated briefing, the applicable case law, and the entire record, the court DENIES the Renewed Motion for Summary Judgment; DENIES the Motion to Strike; and GRANTS Plaintiff's Motion to Supplement and Defendant's Motion to Supplement.¹

PROCEDURAL BACKGROUND

On October 12, 2016, Plaintiff initiated this action by filing his Complaint, alleging violations of Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq. , and § 504 of the Rehabilitation Act of 1973 ("RA"), 29 U.S.C. § 794 et seq. [#1]. Mr. Hamer alleges the City has "discriminated against and subjected [him] to unlawful or hazardous conditions due to the absence of accessible curb ramps within the City's pedestrian right of way." [Id. at ¶ 1]; [id. at ¶ 18].

The case proceeded through discovery and the Parties timely filed cross-Motions for Summary Judgment on July 3 and 5, 2017, respectively. [#41; #43]. On October 5, 2017, the undersigned held oral argument and took the Motions under advisement. [#65]. Then, on December 1, 2017, the undersigned issued a Memorandum Opinion and Order granting Defendant's Motion for Summary Judgment and denying Plaintiff's Motion for Summary Judgment. See [#67]. The court held that, assuming sidewalks and curb cuts (collectively, "sidewalks") constituted services under the ADA and RA, Mr. Hamer failed to prove that he encountered any noncompliant sidewalk within the two years preceding suit, i.e., on or after October 12, 2014. See [id. at 15-28]. The court entered final judgment in favor of the City and against Mr. Hamer on December 1, 2017. See [#68].

Mr. Hamer filed a timely Notice of Appeal to the United States Court of Appeals for the Tenth Circuit ("Tenth Circuit") on December 20, 2017. See [#69]. Following oral argument, the Tenth Circuit reversed and remanded the matter back to this court. The Tenth Circuit held,

a public entity violates Title II of the Americans with Disabilities Act and section 504 of the Rehabilitation Act each day that it fails to remedy a noncompliant service, program, or activity. As a result, the applicable statute of limitations does not operate in its usual capacity as a firm bar to an untimely lawsuit. Instead, it constrains a plaintiff's right to relief to injuries sustained during the limitations period counting backwards from the day he or she files the lawsuit and injuries sustained while the lawsuit is pending. Because the district court applied a different and incorrect standard, we reverse and remand for further proceedings.

Hamer v. City of Trinidad , 924 F.3d 1093, 1097 (10th Cir. 2019). The Tenth Circuit's Mandate issued on June 20, 2019, at which point this court resumed jurisdiction over the matter. See [#77].

Following remand, the court held a Status Conference with the Parties to discuss a supplemental Scheduling Conference, at which the court set a deadline for Defendant to file its Renewed Motion for Summary Judgment given the court's earlier ruling did not substantively address the issue of whether sidewalks constitute services, programs, or activities under the ADA and RA or whether Defendant had adequately established its affirmative defense of undue burden. See [#80]. The court later converted the supplemental Scheduling Conference to a Status Conference given Defendant's filing of a Motion to Stay these proceedings pending its forthcoming petition for writ of certiorari with the Supreme Court of the United States. See [#84; #88]. The court denied the City's Motion to Stay and set a supplemental discovery schedule that was set to close on November 29, 2019, but later extended to December 30, 2019 at the request of the Parties. See [#94; #99]. The Supreme Court has since denied the City's Petition for Writ of Certiorari. [#107].

Presently before the court are two motions.² First, the City has moved for summary judgment in its favor, because sidewalks are not a service, program, or activity under the ADA or RA, ordering the City to make all its sidewalks ADA and RA compliant constitutes an undue burden, and/or the statute of limitations, even under the repeated violations doctrine articulated by the Tenth Circuit, bars Plaintiff's claims. See [#82].³ Second, the City has moved to strike the affidavits Plaintiff proffers in support of his Response to the Renewed Motion for Summary Judgment, because they constitute "sham" affidavits. See [#92]. Because the Motions are ripe for disposition, I consider them below.

LEGAL STANDARD

Pursuant to Rule 56, summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "A dispute is genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue either way. A fact is material if under the substantive law it is essential to the proper disposition of the claim." Crowe v. ADT Sec. Servs., Inc. , 649 F.3d 1189, 1194 (10th Cir. 2011) (internal citations and quotation marks omitted). It is the movant's burden to demonstrate that no genuine dispute of material fact exists for trial, whereas the nonmovant must set forth specific facts establishing a genuine issue for trial. See Nahno-Lopez v. Houser , 625 F.3d 1279, 1283 (10th Cir. 2010). And this is so when, as here, a defendant moves for summary judgment to test an affirmative defense—the defendant must demonstrate the absence of any disputed fact as to the affirmative defense asserted. See Helm v. Kansas , 656 F.3d 1277, 1284 (10th Cir. 2011) ; accord Hutchinson v. Pfeil , 105 F.3d 562, 564 (10th Cir. 1997) (explaining that the nonmovant must then "demonstrate with specificity the existence of a disputed fact" as to the defendant's affirmative defense). At all times, the court will "view the factual record and draw all reasonable inferences therefrom most favorably to the nonmovant." Zia Shadows, L.L.C. v. City of Las Cruces , 829 F.3d 1232, 1236 (10th Cir. 2016).

Should the City be able to satisfy its burden and establish all elements of its affirmative defense, Mr. Hamer must then point to competent summary judgment evidence creating a genuine dispute of material fact; conclusory statements based on speculation, conjecture, or subjective belief are insufficient. See Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004) ; see also 10B Charles Alan Wright, et al., Federal Practice and Procedure § 2738 at 356 (3d ed. 1998) (explaining that the nonmovant cannot rely on "mere reargument of his case or a denial of an opponent's allegation" to defeat summary judgment). In considering the nonmovant's evidence, the court cannot and does not weigh the evidence or determine the credibility of witnesses. See Fogarty v. Gallegos , 523 F.3d 1147, 1165 (10th Cir. 2008). Further, the court may consider only admissible evidence, see Gross v. Burggraf Const. Co. , 53 F.3d 1531, 1541 (10th Cir. 1995), though the evidence need not be in a form that is admissible at trial, only the substance must be admissible at trial, see Brown v. Perez , 835 F.3d 1223, 1232 (10th Cir. 2016). Indeed, "[t]o determine whether genuine issues of material fact make a jury trial necessary, a court necessarily may consider only the evidence that would be available to the jury." Argo v. Blue Cross & Blue Shield of Kansas, Inc. , 452 F.3d 1193, 1199 (10th Cir. 2006).

MATERIAL FACTS

The court draws the following material facts from the record before it. These facts are undisputed unless otherwise noted.

1. Mr. Hamer, a resident of the City of Trinidad, Colorado, is confined to a motorized wheelchair and is a qualified individual with a disability under the ADA, see [#41-1 at 161:1-4, 162:8-12, 163:23-25, 167:1-9]; he does not drive or utilize public transportation and his "primary means of public transportation" are the City's public sidewalks, see [#41-6 at ¶ 2].

2. The City has approximately "154 miles of sidewalk and approximately 1300 curb cuts," [#82-6 at ¶ 5]; the City's Municipal Code sets forth the required widths, grade, and slope of any constructed sidewalk, and requires a permit from the City Engineer before construction may begin, see [#41-15 at 14-15].

3. Mr. Hamer alleges the City's noncompliant sidewalks violate Title II of the ADA, 42 U.S.C. §§ 12131 et seq. , and its implementing regulations 28 C.F.R. §§ 35.150, 35.151, 35.133, as well as § 504 of the RA, 29 U.S.C. § 794(a), see generally [#1; #51 at 206:4-7; #82-1 at 2-3; #82-2 at 2].

4. Beginning in April 2014, Mr. Hamer attended City...