Hamer v. City of Trinidad, 17-1456

• Decision Date: 15 May 2019
• Docket Number: No. 17-1456,17-1456
• Parties: Stephen HAMER, Plaintiff - Appellant, v. CITY OF TRINIDAD, Defendant - Appellee. Colorado Municipal League, Amicus Curiae.
• Court: U.S. Court of Appeals — Tenth Circuit

924 F.3d 1093

Stephen HAMER, Plaintiff - Appellant,

v. CITY OF TRINIDAD, Defendant - Appellee.Colorado Municipal League, Amicus Curiae.

No. 17-1456

United States Court of Appeals, Tenth Circuit.

May 15, 2019

Garrett S. DeReus (Andrew D. Bizer with him on the briefs), Bizer & DeReus, New Orleans, Louisiana, for Plaintiff-Appellant.

Marni Nathan Kloster (Nicholas C. Poppe with her on the brief), Nathan Dumm & Mayer P.C., Denver, Colorado, for Defendant-Appellee.

Wynetta P. Massey and Lindsay M. Rose, Special Counsel for Colorado Municipal League, Office of the City Attorney, Colorado Springs, Colorado, and Dianne M. Criswell, Attorney for Colorado Municipal League, Denver, Colorado, filed a brief for Amicus Curiae in support of Defendant-Appellee.

Before BRISCOE, BACHARACH, and CARSON, Circuit Judges.

CARSON, Circuit Judge.

Title II of the Americans with Disabilities Act ("ADA") mandates 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. Similarly, section 504 of the Rehabilitation Act of 1973 ("RA") mandates in part that "[n]o otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a).

Today we consider exactly when and how a public entity violates these two statutes. ¹

The answer, in turn, affects how the applicable statutes of limitations operate. Does a public entity violate Title II and section 504 only when it initially constructs or creates a non-compliant service, program, or activity? If so, a single statute of limitations accrues from the day a qualified individual with a disability first discovers he or she has been injured by the service, program, or activity. The statute of limitations, in this scenario, would bar any lawsuit brought after the limitations period ends.

Or does a public entity violate Title II and section 504 repeatedly until it affirmatively acts to remedy the non-compliant service, program, or activity? In that situation, a qualified individual’s initial discovery that he or she has been injured does not trigger just one statute of limitations that bars any lawsuit brought after the limitations period ends. Rather, because the public entity commits a new violation (and the qualified individual experiences a new injury) each day that it fails to act, the statute of limitations effectively functions as a "look-back period," Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1028–29 (10th Cir. 2007), restricting an individual’s right to relief to those injuries suffered (1) during the limitations period immediately prior to filing suit and (2) while the suit is pending.

We hold that 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.

I.

Plaintiff Stephen Hamer resides in Trinidad, Colorado; is confined to a motorized wheelchair due to what he characterizes as "severe bilateral ankle problems"; and, for purposes of this appeal, is a qualified individual with a disability under Title II of the ADA and section 504 of the RA. He does not own a car or otherwise use public transportation. Instead, he primarily utilizes the City of Trinidad’s public sidewalks to move about in his wheelchair.

Plaintiff contends many of the City’s sidewalks and the curb cuts allowing access onto those sidewalks do not comply with Title II of the ADA and section 504 of the RA. Indeed, at a City Council meeting he attended in April 2014, Plaintiff informed City officials that he had personally counted seventy-nine non-compliant sidewalks and curb cuts throughout the city. Further, at the end of that same month, Plaintiff filed an ADA complaint with the United States Department of Justice ("DOJ") informing the government about the state of the City’s sidewalks and curb cuts.

Plaintiff continued to lodge informal ADA and RA complaints at City Council meetings over the next few months. And at some point after he lodged his ADA complaint with the DOJ, the DOJ audited the City and discovered multiple noncompliant sidewalks and curb ramps. Apparently in response to Plaintiff’s multiple complaints and the results of the DOJ’s audit, City officials actively began repairing and amassing funding to further repair non-compliant sidewalks and curb cuts.

Even so, Plaintiff nonetheless filed the present lawsuit against the City on October 12, 2016, for violations of Title II of the ADA and section 504 of the RA. Like the complaint he filed with the DOJ, Plaintiff complains of the City’s allegedly deficient sidewalks and curb cuts. He thus seeks a declaratory judgment that the City’s sidewalks and curb cuts violate the ADA and RA, injunctive relief requiring City officials to remedy the City’s non-compliant sidewalks and curb cuts, monetary damages, attorneys’ fees, and costs.

The district court granted summary judgment to the City on statute-of-limitations grounds. The district court first observed that because neither Title II nor section 504 explicitly provided for a statute of limitations, Colorado’s general two-year statute of limitations governed Plaintiff’s claims. See E.E.O.C. v. W.H. Braum, Inc., 347 F.3d 1192, 1197 (10th Cir. 2003) ("Where Congress creates a cause of action without specifying the time period within which it may be brought, courts may infer that Congress intended the most analogous state statute of limitations to apply."); see also Colo. Rev. Stat. § 13-80-102 (establishing Colorado’s general two-year statute of limitations). The district court then noted the general rule in federal court that "[t]he statute of limitations begins to run when the plaintiff knows or has reason to know of the existence and cause of the injury which is the basis of his action." Alexander v. Oklahoma, 382 F.3d 1206, 1215 (10th Cir. 2004) (alteration in original) (quoting Indus. Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 969 (10th Cir. 1994) ). With that rule in mind, the district court concluded that Plaintiff must have "discovered" or "encountered" the City’s non-compliant sidewalks and curb cuts no earlier than October 12, 2014—i.e., two years before the day he filed his lawsuit—to survive summary judgment.

The district court determined, however, that Plaintiff’s claims most likely accrued in April 2014 when Plaintiff first raised his concerns about the City’s sidewalks and curb cuts at the City Council meeting and with the DOJ. In any event, the district court also determined that Plaintiff’s claims must have begun to accrue "at the very latest[ ] in August 2014" when he raised his concerns at a City Council meeting for the final time. At one of these two points—either April or August 2014—Plaintiff was undoubtedly "aware of the nature and extent of the City’s discrimination." Thus, because both of these dates occurred before October 12, 2014, the district court held that the two-year statute of limitations barred Plaintiff’s Title II and section 504 claims.

The district court explicitly rejected Plaintiff’s argument that the continuing violation doctrine could salvage his claims from being untimely. This doctrine applies " ‘when the plaintiff’s claim seeks redress for injuries resulting from a series of separate acts that collectively constitute one unlawful act,’ as opposed to ‘conduct that is a discrete unlawful act.’ " Sierra Club v. Okla. Gas & Elec. Co., 816 F.3d 666, 672 (10th Cir. 2016) (quoting Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) ). Stated differently, "one violation continues when ‘the conduct as a whole can be considered as a single course of conduct.’ " Id. (quoting Birkelbach v. SEC, 751 F.3d 472, 479 n.7 (7th Cir. 2014) ). The utility of the continuing violation doctrine lies in the fact that as long as one of the separate wrongful acts contributing to the collective conduct "occurs within the filing period," a court may consider"the entire time period"—including those separate acts falling outside the filing period—"for the purposes of determining liability." Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (emphasis added).

An important caveat to the continuing violation doctrine, however, is that it "is triggered ‘by continual unlawful acts, not by continual ill effects from the original violation.’ " Mata v. Anderson, 635 F.3d 1250, 1253 (10th Cir. 2011) (quoting Parkhurst v. Lampert, 264 F. App'x 748, 749 (10th Cir. 2008) (unpublished)). And according to the district court, the allegedly unlawful acts at issue in Plaintiff’s lawsuit—"the construction and alleged lack of maintenance of noncompliant sidewalks and curb cuts"—were discrete, as opposed to continual, acts. As a result, the district court concluded that "any subsequent injury caused by the City’s failure to remediate these issues" after Plaintiff discovered or encountered them simply amounted to "continual ill effects" of those original violations. Thus, the district court reasoned that the continuing violation doctrine could not apply to Plaintiff’s claims.

The district court also denied Pl...