Latham v. Acton

Decision Date09 October 2020
Docket NumberCase No. 3:19-cv-00258-SLG
PartiesBEN LATHAM, Plaintiff, v. JAMIE ACTON, et al., Defendants.
CourtU.S. District Court — District of Alaska

Before the Court at Docket 31 is Defendants Municipality of Anchorage ("MOA"), Jamie Acton, Will Brown, and Sandy James's (collectively, "Defendants") Motion to Dismiss. Plaintiff Ben Latham filed an opposition at Docket 41. Defendants replied at Docket 50. Mr. Latham requested oral argument, however, the Court found that it was not necessary to the Court's determination and denied Mr. Latham's request.1


Mr. Latham represents that he is a "mentally disabled Caucasian adult male with mental illness of Schizophrenia and Schizoaffective d/o."2 In the First Amended Complaint ("FAC"), Mr. Latham alleges a number of grievances against Defendants in connection with the Anchorage People Mover program arising from (1) the lack of transportation access on the weekends between Anchorage and Eagle River, (2) denial of access to a reduced bus fare program ("Half Fare Program"), and (3) harassment by Anchorage People Mover employees.

1. Access to Weekend Transportation

Mr. Latham alleges that the People Mover Bus "should go to Anchorage from Eagle River in the am Morning and return to Eagle River in the pm evening on Saturdays and Sundays," but that it does not.3 Mr. Latham asserts that the lack of weekend bus service denies him "employment consideration on the weekends,"4 as well as access to the federal and state courthouses in Anchorage, which prevents him from participating in rehabilitative services.5 Mr. Latham is a participant in the Alaska Judicial System Anchorage Coordinated Resources Project and "must provide a urinalysis for the therapeutic Court on the weekends in Anchorage."6 Mr. Latham contends that, in contrast, residents of Anchorage who are able to use the People Mover bus service on the weekend have access to employment opportunities and to the courts, as well as other public services.7 Mr. Latham adds that this disparity in services exists even though Eagle River is part of the Municipality of Anchorage.8 Mr. Latham alleges that the lack of weekend service was raised at an open meeting, but that the People Mover Committee "has failed to act and provide People Mover Bus services on the weekends to Eagle River Residents."9

2. Access to the Half Fare Bus Pass Program

Mr. Latham alleges that he was denied and continues to be denied a federally-subsidized People Mover half fare bus pass "because [he] is a heterosexual mentally disabled caucasian adult male with mental illnesses of Schizophrenia and Schizoaffective d/o . . . ."10 The People Mover Half Fare Bus Pass Program requires the applicant to obtain a certification from the applicant's treating physician.11 Mr. Latham perceives a discrepancy between the application's definition of eligibility for the program and the application's questions for a certifying physician.12 The application form states:

People with qualifying disabilities for this purpose are defined . . . as persons: 'who by reason of illness, injury, age, congenital malfunction, or other incapacity or temporary or permanent disability . . . cannot use effectively, without special facilities, planning or design, mass transportation service or a mass transportation facility.'13

In the certification portion for the applicant's physician, it asks "[d]oes [the applicant's] condition affect their ability to ride the bus" and specifies "[i]f [y]es, please explain . . . [a]ddress need for accessible features, special facilities or planning."14 Mr. Latham asserts that his psychiatrist Merrie Rollins misconstrued the question due to ambiguous wording and answered in the negative.15

On July 29, 2019, Mr. Latham alleges that he went to the Anchorage Municipality People Mover Bus Transit Center and was refused a replacement reduced pass by Defendants Sandy James and Will Brown.16 Mr. Brown informed Mr. Latham that his doctor had made an error in completing his disability application and that Mr. Latham would have to wait six months before refiling the application.17 Mr. Latham alleges that later the same day, Ms. James told him that, in fact, his form would be reprocessed as soon as Mr. Latham's doctor submitted the certification.18 Mr. Latham further alleges that Ms. James later denied him an application on September 17, 2019.19 Mr. Latham adds that Defendant Jamie Acton "refuse[d] to accept calls from the Public" and denied the public their legal protections "by having a ADA Disability form that is misleading . . . ."20 Lastly, Mr. Latham adds that he attended a People Mover open meeting in July 2019 on information that he would be given a reduced fare pass if he attended, but he was denied a pass at the meeting.21

3. Harassment by People Mover Employees

Lastly, Mr. Latham alleges that employees of People Mover have harassed him.22 Specifically, he alleges that on September 18, 2019, he received two harassing phone calls from Mr. Brown, who Mr. Latham contends had refused to hear his complaint that he had been denied a reduced fare pass by Ms. James.23

On September 24, 2019, Mr. Latham commenced this action against the Municipality of Anchorage, the Director of People Mover Jamie Acton, People Mover Supervisor Will Brown, and People Mover Disability Supervisor and Customer Service Representative Sandy James.24

Mr. Latham asserts the following counts against Defendants: (1) violation of the Civil Rights Act of 1964, 1990 (42 U.S.C. §§ 12101-12213); (2) violation of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d-e-4); (3) violation of the Americans with Disabilities Act of 2008 ("ADA") (110-325) (S-3406); (4) violation of the ADA (110-325) (42 U.S.C. 12101-12213); (5) violation of Title I of the Workforce Investment Act of 1998 (29 U.S.C. 2801); (6) violation of the Employment by Federal Government (42 U.S.C. 2000 e-16); (7) violation of the ADA (42 U.S.C. 2000 e-5); (8) violation of the ADA of 1990; (9) violation of the Law of Employment Discrimination (28 C.F.R. 35.140) and (29 C.F.R. 1630); (10) violation of the Rehabilitation Act of 1973 (29 U.S.C. § 701(a)(D)); (11) violation of Title V ADA Civil Rights Act of 1974; (12) violation of 28 C.F.R. (35.102); (13) violation of 29 U.S.C. § 795J; (14) violation of 42 U.S.C. § 1981(a); and (15) violation of 42 U.S.C. § 1983.25 Mr. Latham also asserts violations of his due process and equal protection rights under the 14th Amendment of the U.S. Constitution, as well as under Article 1, Sections 1 and 7 of the Alaska Constitution.26

Mr. Latham seeks a declaration that his rights are being violated by Defendants for so long as there is no weekend bus service to Eagle River, and because the People Mover application form denies disabled persons a Half Fare bus pass.27 Mr. Latham also seeks an order that the MOA "provide at least one . . . Bus Travel from Eagle River to Anchorage on Saturdays and Sundays after 6:00am and . . . at least one . . . from Anchorage to Eagle River after 5:00pm on Saturdays and Sundays of each week in the calendar month, 12 months a year."28 Mr. Latham seeks an award of punitive damages in the amount of $100,000 and compensatory damages in the same amount.29 Mr. Latham seeks a permanent injunction against the Anchorage Municipality People Mover and its employees from further harassment.30 Finally, Mr. Latham seeks an award of attorney fees and paralegal fees, and any other relief the Court deems just.31

On February 18, 2020, Defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted or for "nam[ing] issues which would violate the separation of powers."32

I. Jurisdiction

This Court has jurisdiction over Mr. Latham's federal civil rights claims pursuant to 28 U.S.C. § 1331, which provides for federal question jurisdiction, and has supplemental jurisdiction over Mr. Latham's state law claims pursuant to 28 U.S.C. § 1367.

II. Motion to Dismiss

When reviewing a Rule 12(b)(6) motion, a court considers only the pleadings and documents incorporated into the pleadings by reference, as well as matters on which a court may take judicial notice.33 "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'"34 A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."35 Thus, there must be "more than a sheer possibility that a defendant has acted unlawfully."36 A court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party."37

Moreover, when granting a motion to dismiss, a court is generally required to grant the plaintiff leave to amend, unless amendment would be futile.38 In determining whether amendment would be futile, a court examines whether the complaint could be amended to cure the defect requiring dismissal "without contradicting any of the allegations of [the] original complaint."39


Because Mr. Latham does not always specify the facts underlying each of his claims, the Court will consider each claim in the context of all the facts alleged in the FAC.40

1. Americans with Disabilities Act and Rehabilitation Act

Mr. Latham alleges multiple counts under the Americans with Disabilities Act ("ADA") and the Rehabilitation Act ("RA"). In addition to Count 1 alleging violation of 42 U.S.C. §§ 12101-12213,41 Counts 4 and 8 allege violations of the Americans with Disabilities Act of 1990 (which includes 42 U.S.C. §§ 12101-12213) and Count 3 alleges violations of the American with Disabilities Act of 2008, which amended the ADA of 1990 ("ADAA").42 Mr. Latham also alleges violations of several regulations implementing the ADA including 28 C.F.R. § 35.14043 (Department of...

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