HEATHER K. BY ANITA K. v. City of Mallard, Iowa

Citation887 F. Supp. 1249
Decision Date25 May 1995
Docket NumberNo. C 95-3048.,C 95-3048.
PartiesHEATHER K., a child, by next friends ANITA K. and Thomas K., Plaintiff, v. CITY OF MALLARD, IOWA, Defendant.
CourtU.S. District Court — Northern District of Iowa


Blake Parker, Fort Dodge, IA, for plaintiff Heather K.

Michael L. Brown, Emmetsburg, IA, for defendant City of Mallard.


BENNETT, District Judge.

This request for a temporary restraining order pursuant to Title II of the Americans With Disabilities Act, 42 U.S.C. § 12131 et seq., by a 32-month old child who suffers from severe respiratory and cardiac conditions as a result of her extremely premature birth raises an unique issue of first impression in any court. That issue is whether or not a person suffering from the disabilities of this plaintiff is entitled to a temporary restraining order enjoining exceptions to a defendant municipality's ban on open burning that specifically allow for backyard burning of residential waste and other specified forms of open burning. The plaintiff asserts that backyard burning of such wastes aggravates her disabilities to a life-threatening degree, thus preventing her from enjoying the services, programs, and activities provided by the municipality by reason of her disability. The plaintiff has also moved for leave to prosecute this matter under a pseudonym.

A. Procedural Background

Plaintiff Heather K. filed an application to proceed in this matter in forma pauperis on May 22, 1995. That application was granted on May 23, 1995, and this lawsuit was filed on the same day. Also on May 23, 1995, Heather K. filed a motion for temporary restraining order and preliminary injunction and a motion to proceed under a pseudonym and for a protective order.

Plaintiff Heather K. is a child who, as the result of her premature birth, suffers from respiratory and cardiac conditions aggravated by particulates, such as smoke, in the air she must breathe. Her lawsuit is brought pursuant to Title II of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12131 et seq. Title II of the ADA prohibits discrimination on the basis of disability in the provision of public services, and Part A of that Title, the relevant part here, prohibits such discrimination by a public entity. 42 U.S.C. §§ 12131, 12132.1 In addition, Heather K. asserts a claim pursuant to the Rehabilitation Act, 29 U.S.C. § 701, specifically, section 794. The defendant is the City of Mallard, Iowa, the city in which Heather K. resides with her parents.

The complaint seeks temporary and permanent injunctive relief and damages as the result of alleged violations of Heather K.'s civil rights guaranteed by the ADA and the Rehabilitation Act. Specifically, Heather K. alleges that "Defendant has failed to pass a city ordinance imposing reasonable limitations on the backyard burning of residential waste." Complaint, ¶ 1.2 Heather K. seeks a temporary restraining order to require the City of Mallard to ban open burning or to impose reasonable limitations on open burning within the city limits. Heather K. alleges irreparable injury to her life and health as the result of the City's refusal to ban open burning, and, additionally, alleges that the City's inaction has caused her to be segregated from the rest of the Mallard community.3 The complaint and motion for temporary restraining order and preliminary injunction are verified by an affidavit by Heather K.'s mother in which, inter alia, she describes Heather's physical condition, medical history, efforts to modify rooms to protect Heather's environment, and examples of situations in which open burning has caused Heather to be "immediately afflicted" by labored breathing and accelerated breathing rate. Jurisdiction over the complaint is alleged under 28 U.S.C. §§ 1331 (federal question), 1343 (civil rights), 2201 (declaratory judgment), and 2202 (further relief based on declaratory judgment).

The motion for temporary restraining order (TRO) and preliminary injunction, filed on May 23, 1995, asserts that the threat of irreparable harm to Heather K. is dramatically increased with the onset of spring and a resulting increase in backyard burning within the city limits of the City of Mallard.4 As relief, Heather K. seeks, inter alia, the "issuance of a temporary restraining order and/or a preliminary injunction ordering Defendant to ban all backyard burning within the city limits of Defendant City of Mallard during the pendency of this action." Motion For Temporary Restraining Order And Preliminary Injunction.

The court held a preliminary conference with counsel for the parties on May 23, 1995, and a hearing on the motion for temporary restraining order on May 24, 1995. Plaintiff Heather K. was represented by counsel Blake Parker of Fort Dodge, Iowa. Defendant City of Mallard was represented by counsel Michael L. Brown of Emmetsburg, Iowa. This matter was ably presented by counsel for both parties and the court appreciates the cooperation and collegiality of counsel in conducting the preliminary conference and TRO hearing.

At the TRO hearing, counsel for the parties agreed that the matter is proceeding at this point solely on the issue of the propriety of issuing a TRO in this matter. A further determination on the merits of plaintiff's motion for a preliminary injunction will therefore be made at a later date.

B. Factual Background

The factual background for this case is drawn from the complaint, affidavit verifying the complaint, and brief of the plaintiff in support of the motion for temporary restraining order and preliminary injunction, and representations of counsel for both parties at the TRO hearing. Consequently, the facts found here are for the purposes of disposing of the motion for a TRO only.

Plaintiff Heather K. was born prematurely on September 18, 1992, after only 23 weeks gestation. Consequently, Heather suffers from bronchial pulmonary dysplasia.5 Additionally, when Heather was ten months old, she was diagnosed with diffuse hemangiomatosis6 with secondary congestive heart failure. As a result of these conditions, Heather cannot tolerate particulates, such as smoke, in the air she breathes without suffering symptoms such as increased respiratory rate, wheezing, and severe vomiting. Her symptoms vary with the amount of smoke or particulates in the air and the length of time she is exposed to such smoke or particulates. The nearest hospital with adequate facilities to deal with Heather's condition in the event of a crisis is in Ames, Iowa, some two and one-half hours from Mallard.

In order to alleviate their daughter's condition, Heather's parents have remodeled their home, installed air filters, and made other attempts to limit Heather's exposure to hazardous conditions. However, the City of Mallard allows open burning of residential waste at any time pursuant to City ordinance 105.05. That ordinance states, in pertinent part, that

No person shall allow, cause or permit open burning of combustible materials, except that the following shall be permitted:
1. Recreational Fires. Open fires for cooking, heating, recreation and ceremonies, provided they comply with the limits for emissions of visible air contaminants established by the State Department of Natural Resources.
2. Backyard Burning. Backyard burning of residential waste at dwellings of four-family units or less.
3. Training Fires. Fires set for the purpose of bona fide training of public or industrial employees in fire fighting methods, provided that the Executive Director receives notice in writing at least one week before such action commences.
4. Variance. Any person wishing to conduct open burning of materials not permitted herein may make application for a variance to the Executive Director. Further definitions of terms used in this ordinance are set out in the margin.7 The allowance of open burning pursuant to the ordinance means that Heather is at times subjected to smoke that is hazardous to her life and health.

Heather's parents have upon a number of occasions endeavored to convince the city council of the City of Mallard to pass a more restrictive open burning ordinance. Those efforts have thus far proved fruitless. Heather's parents also filed a complaint with the Equal Opportunity Officer of the Department of the Interior, which has resulted in the City of Mallard conducting a survey of its residents concerning the effects of open burning. No results of that survey have yet been produced8 and no change in city ordinances has been advanced by any member of the city council.9

As spring approaches there is an increase in open burning in the City of Mallard. Heather and her parents therefore fear a dramatic increase in the risk to Heather's health. They assert further that because of the lack of an open burning ban, Heather is precluded by her disability from enjoying any and all public accommodations of the City of Mallard enjoyed by all other citizens of the City when burning is taking place. Heather asserts that she is unable to use Mallard's public parks, occupy or travel on public streets or occupy public buildings with open windows or inadequate climate control, that she cannot attend public activities or functions held outside, or even play in her own backyard, take walks, or simply be outside if there is any likelihood of open burning taking place. At times, despite the efforts of her parents, smoke infiltrates Heather's house making it difficult for her to remain in town even in her own residence. Thus, Heather has been segregated because of her disability from the rest of the Mallard community.

A. Prosecution Under A Pseudonym

Plaintiff seeks to prosecute this action under a pseudonym for fear of harassment that will result if she is required to disclose her identity. Generally, a person is required to disclose his or her identity to commence a...

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