Jacobsen v. Department of Transp.
| Decision Date | 26 August 2004 |
| Docket Number | No. C03-4097-MWB.,C03-4097-MWB. |
| Citation | 332 F.Supp.2d 1217 |
| Parties | Harlan J. JACOBSEN, d/b/a Country Singles, Single Scene and Jacobsen Distribution, Plaintiff, v. DEPARTMENT OF TRANSPORTATION; State of Iowa; Steven F. McMenamin, Rest Area Administrator, in that capacity and as an individual; Will Zitterich, Office of Maintenance, DOT, in that capacity and as an individual; Thomas J. Vilsack, Governor of Iowa, in that capacity and as an individual; Mark Hunacek, as an individual, Defendants. |
| Court | U.S. District Court — Northern District of Iowa |
Harlan L. Jacobsen, Sioux Falls, SD, pro se.
Gordon E. Allen, AAG, Des Moines, IA, for Defendants.
David A. Ferree, Iowa Department of Transportation, Ames, IA, for Counter Claimant.
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND ......................................1219
A. Procedural Background .........................................1219
B. Factual Background ............................................1219
II. LEGAL ANALYSIS ...................................................1221
A. Standards For Summary Judgment ................................1221
1. Requirements of Rule 56 ....................................1221
2. The parties' burdens .......................................1221
B. Claimed Violations of 42 U.S.C. § 1985 ........................1222
1. Requirements for claim under 42 U.S.C. § 1985(3) ...........1222
2. Evidence of class-based animus .............................1223
C. Claimed Violations of 42 U.S.C. § 1983 ...................1224
1. Eleventh Amendment .........................................1224
a. The constitutional bar ..................................1224
b. Suit against the "state" ................................1225
c. Eleventh Amendment immunity and exceptions to it ........1226
i. Congressional abrogation ...........................1226
ii. State waiver .......................................1227
iii. The nature of the waiver ...........................1227
iv. Failure to meet the "stringent" standard ...........1227
v. Express waiver .....................................1228
d. Waiver in this case .....................................1229
2. Suit against defendants in their individual capacities .....1231
a. Governor Vilsack ........................................1231
b. Assistant Iowa Attorney General Hunacek .................1231
c. McMenamin and Zitterich's actions .......................1232
III. CONCLUSION .......................................................1235
On October 10, 2003, plaintiff Harlan L. Jacobsen brought this pro se lawsuit alleging that defendants, Steven F. McMenamin, the Administrator of Rest Areas of the Iowa Department of Transportation ("IDOT"), William Zitterich, the Director of IDOT's office of maintenance services, Thomas J. Vilsack, the Governor of the State of Iowa, and Mark Hunacek, an Assistant Iowa Attorney General violated his constitutional and civil rights by interfering with Jacobsen's placement of news racks for his two publications at public rest areas along the interstate highway system in Iowa notwithstanding the injunctive relief granted by this court in Jacobsen v. Rensink, No. C96-4074-MWB (March 15, 1997).
Defendants have filed a Motion for Summary Judgment on all of Jacobsen's claims. First, in their motion, defendants assert that Jacobsen's allegations do not constitute a violation of 42 U.S.C. § 1985. Second, defendants contend that Eleventh Amendment sovereign immunity precludes action under 42 U.S.C. § 1983 against the State of Iowa or its functional equivalents. Defendants further contend that respondeat superior does not form a proper basis for suit under § 1983 as to the claims against Governor Vilsack. Moreover, defendants assert that Assistant Iowa Attorney General Hunacek took no action and had no authority to take any action to deprive Jacobsen of a protected right. Defendants further argue that the IDOT's policy regarding placement of news racks in rest areas is reasonable in light of the IDOT's ability to regulate such conduct in a nonpublic forum. Defendants also contend that the actions of defendants Zitterich and McMenamin were taken in good faith and are entitled to qualified immunity.
The summary judgment record reveals that the following facts are undisputed. Plaintiff Harlan Jacobsen is the publisher of several publications distributed on Iowa's interstate highways though the use of vending machines. On March 15, 1997, the court issued a preliminary injunction in Jacobsen v. Rensink, No. C96-4074-MWB (March 15, 1997), regarding the placement of Jacobsen's machines and specifying what rules could be adopted by the IDOT in regulating vending machines. Specifically, the court enjoined the IDOT from interfering with or moving Jacobsen's newspaper news racks, except that they could enforce the following restrictions:
a. Newspaper vendors may be prohibited from attaching their news racks to historical markers, or placing news racks in locations that in any way obstruct or impede the public's viewing of historical markers.
b. Newspaper vendors may be prohibited from anchoring their news racks with exposed wires or cables that pose a danger to the public.
c. Newspaper vendors may be regulated as to the manner and method by which they anchor their news racks.
d. News racks may be prohibited from areas within ten feet of any door, bench, trash receptacle, or historical marker.
e. News racks may be prohibited from sidewalks. However, where there is an area of concrete at a rest area whose width exceeds the width of a standard public sidewalk, then newspaper vendors shall be permitted to place newspaper news racks on the concrete so long as the news racks are not placed in a location that could impede the ordinary and customary flow of pedestrian traffic.
Jacobsen v. Rensink, No. C96-4074-MWB, at *2 (March 15, 1997)
The preliminary injunction was modified on June 24, 1998, to prevent the placement of machines within ten feet of drinking fountains and rule or regulation signs. The IDOT then adopted a policy regulating vending machine placement that was consistent with the court's order.1 At some point after that time, Jacobsen began placing his newspaper vending machines in areas which did not comply with the IDOT's court compliant rules regarding vending machine placement. The placement of these news racks obstructed pedestrian traffic and/or created safety issues. Jacobsen also chose to anchor some of his news racks without a utility line locate being performed and in a manor that could result in the cutting of underground cables.
In 2003, defendants Zitterich and McMenamin made the decision to move Jacobsen's machines so they would in compliance with the preliminary injunction order of this court. Defendant McMenamin issued instructions to rest area technicians to move the non-compliant vending machines. Jacobsen sent letters to IDOT personnel threatening lawsuits against them personally if they did not return his machines to their previous locations at the rest areas. The IDOT refused to return the machines to their previous locations, maintaining that they could move the machines to locations at the rest areas which were in compliance with the rules in conformity to the preliminary injunction order. Jacobsen retaliated by moving his machines into positions that violated the preliminary injunction order and possibly the American with Disabilities Act ("ADA"). The Federal Highway Administration has demanded that the IDOT submit a remediation proposal to correct Jacobsen's actions or be deemed to be in violation of the ADA. The Federal Highway Administration specifically noted in its correspondence that:
Attached are photographs that were recently taken at several central Iowa Interstate rest areas. Interstate rest areas are required to comply with the Americans with Disabilities Act (ADA) Standards for Accessible Design. The placement of these newspaper boxes results in violation of 28 C.F.R. Part § 36 Section 4.1.2(1) which states "at least one accessible route complying with 4.3 shall be provided within the boundary of the site from public transportation stops, accessible parking spaces passenger loading zones if provided, and public streets or sidewalks, to an accessible building entrance." To further clarify, 23 C.F.R. § 36 Section 3.5 defines accessible route as "A continuous unobstructed path connecting all accessible elements and spaces of a building or facility."
Since both building entrances are accessible, each must have an accessible route. The placement of the newspaper boxes introduces an obstruction to the path connecting the building to the parking area. This violates the previously discussed ADA requirements.
The introduction of these obstacles into the accessible route significantly increases the effort necessary to access the building. ADA accessibility requirements address the mobility reduced and visually impaired in addition to wheelchair-bound individuals. With the aging Iowa population there are an increasing number of individuals who have visual impairments or mobility issues who necessitate aids for walking.
Governor Vilsack had no personal involvement or knowledge of the actions of defendants McMenamin or Zitterich.
This court has considered in some detail the standards applicable to motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure in a number of prior decisions. See, e.g., Swanson v. Van Otterloo,...
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