Decision Date19 March 2010
Docket NumberCase No. 3:08CV2789.
PartiesPatrick McNAMARA, Plaintiff, v. OHIO BUILDING AUTHORITY, et al., Defendants.
CourtU.S. District Court — Northern District of Ohio

Stephen M. Dane, Relman & Dane, Perrysburg, OH, Michael G. Allen, Relman & Dane, Washington, DC, for Plaintiff.

Lisa L. Nagel, Stephen J. Stanford, Robison, Curphey & O'Connell, Toledo, OH, for Defendants.


JAMES G. CARR, Chief Judge.

This is a case about disabled individuals' access to public buildings. Plaintiff Dr. Patrick McNamara alleges that defendant, Reuben Management (Reuben), illegally discriminated against him in violation of Titles II and III of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq. (ADA), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Plaintiff alleges that Reuben both discriminated against him intentionally based on his disability and failed to make a reasonable accommodation for him to access the DiSalle Government Building (DiSalle Building) in Toledo, Ohio.

Jurisdiction is proper under 28 U.S.C. § 1331.

Pending is Reuben's motion to dismiss Doc. 21. For the reasons discussed below, I grant the motion in part and deny it in part.


Plaintiff is a retired physician with multiple physical disabilities. He cannot walk more than a short distance, and suffers pain when required to stand or sit for long periods. Plaintiff additionally is afflicted with upper-body muscle weakness which prevents him from operating a manual wheelchair.

Reuben is a management company that contracts with the Ohio Building Authority (OBA) to manage the DiSalle Building.

Because of his difficulty using devices such as wheelchairs or a walker, plaintiff uses a Segway Personal Transporter (Segway) to move around. Segways are battery-operated devices that allow riders to travel while standing upright.

On August 16, 2007, plaintiff went to the DiSalle Building for an appointment with the Ohio Civil Rights Commission (OCRC). Before the appointment, plaintiff called the OCRC, which assured him that he could use his Segway inside the building to get to the OCRC office.

When plaintiff arrived at the security desk of the DiSalle Building, a Reuben representative informed him that he could not use his Segway in the building. Plaintiff asked the security officer to contact building management. Two Ohio state troopers and the building manager arrived shortly thereafter.

Plaintiff asserts that one of the troopers was hostile and refused to call the OCRC or listen to plaintiff explain his need to go to the OCRC offices via Segway.

The building manager presented plaintiff with OBA's Segway policy which prohibits Segways in the building, but states that: "this policy does not apply to any ADA approved modes of personal transportation." Doc. 1, at 7. The building manager refused to discuss the possibility of making an exception for plaintiff.

After some discussion, and after plaintiff threatened legal action, the building manager permitted plaintiff to park his Segway at the security desk. After plaintiff stated loudly, "I can't walk," the building manager retrieved a manual wheelchair from his office. Doc. 1, at 8. No one offered to help plaintiff reach the OCRC office until he asked for assistance.

One of the troopers and the building manager accompanied plaintiff to the OCRC office. At one point, the trooper pushing the wheelchair "banged plaintiff's feet ... into the elevator doors," causing plaintiff additional pain. Doc. 1, at 9.

The building manager stayed with plaintiff in the OCRC office, despite plaintiff's request that the manager leave. After the OCRC meeting, an OCRC employee escorted plaintiff back to the lobby.

As a result of this incident, plaintiff alleges that he suffers "stress, anxiety, inability to sleep and a fear that law enforcement officers would abridge his civil rights and subject him to harassment, intimidation, arrest or other sanctions because of his exercise of his rights." Doc. 1, at 10.

On or about November 25, 2008, OBA amended its policy to allow the use of Segways in its buildings for people with disabilities.

On February 20, 2009, plaintiff accepted an offer of judgment from OBA. Reuben subsequently filed the present motion to dismiss for lack of subject matter jurisdiction and failure to state a claim.

Standard of Review

A claim survives a motion to dismiss under Fed.R.Civ.P. 12(b)(6) if it "contains sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, ___ U.S. ____, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. A complaint's "factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all of the complaint's allegations are true." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted).

A complaint is insufficient "if it tenders naked assertions devoid of further factual enhancement." Iqbal, supra, 129 S.Ct. at 1949 (citing Twombly, supra, 550 U.S. at 557, 127 S.Ct. 1955) (internal quotation omitted).

I must also "construe the complaint in the light most favorable to the plaintiff." Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir.2002). Plaintiff, however, must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, supra, 550 U.S. at 555, 127 S.Ct. 1955; see also Iqbal, 129 S.Ct. at 1949 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.").

I. Standing

Reuben contends plaintiff lacks standing and the complaint must be dismissed because plaintiff did not plead facts showing: 1) the relief requested is necessary to afford access to the building; 2) an immediate threat of future injury; and 3) a causal connection between plaintiff's injury and Reuben's actions.

To establish standing for past injury, a plaintiff must allege facts sufficient to show: 1) an "injury-in-fact," which is "concrete and particularized" and "actual, or imminent, not conjectural or hypothetical"; 2) "the injury is fairly traceable to the challenged action of the defendant"; and 3) "it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 180-81, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).1

Standing also involves prudential requirements. One of these is that a party must raise a claim within the "zone of interests" protected by the statute in question. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

Plaintiff has satisfied the three elements of standing for his past discrimination claim. First, he pleads a concrete, particularized and actual injury in fact—namely, intentional discrimination and the physical and emotional suffering he alleges resulted from that discrimination.

Second, plaintiff claims that Reuben's actions caused his injuries. Specifically, he alleges the building manager refused outright to consider an exception to the building Segway policy.

Reuben argues that plaintiff has not adequately pled a causal connection because "any alleged injury was caused, or will be caused, by his own action in deciding not to use a wheelchair or other assistive device in the Building." Doc. 21, at 20. I disagree and find that plaintiff has adequately pled Reuben's actions caused injury.

Third, plaintiff has adequately pled that damages will redress his injuries.

Reuben also argues that plaintiff has failed to show he falls within the zone of interests protected by the ADA because his requested accommodation is not "necessary" to afford access. As discussed below, I find that plaintiff has adequately pled that his requested accommodation is necessary and he is protected by the ADA. Allen, supra, 468 U.S. at 751, 104 S.Ct. 3315.

I therefore find that plaintiff has standing to pursue his monetary damages claim.

II. ADA Title III Claim

Plaintiff originally brought a claim under ADA Title III. Reuben argued that this claim should be dismissed because plaintiff: 1) lacks standing to raise a claim for injunctive and declaratory relief; and 2) is collaterally estopped from asserting this claim.

Title III of the ADA prohibits discrimination regarding the use of public accommodations. 42 U.S.C. § 12181 et seq.

Private parties may sue to enforce Title III claims for discrimination and accessibility in public accommodations. 42 U.S.C § 12188. Title III permits declaratory and injunctive relief in civil actions brought by either private individuals or the Attorney General. 28 C.F.R. § 36.501-503. Damages are not available in Title III suits. Smith v. Wal-Mart Stores, Inc., 167 F.3d 286, 293 (6th Cir.1999).

In his sur-reply, plaintiff concedes that because OBA has adopted a new policy permitting the use of Segways in the Di-Salle Building, and Reuben has agreed to comply with that policy, his claim for preliminary and permanent injunctive relief is moot.

Because plaintiff now concedes that he only seeks damages, and Title III does not permit a private party to obtain such relief, Count Three of plaintiff's complaint shall be dismissed.

III. ADA Title II & Rehabilitation Act Claims

Plaintiff alleges violations of Title II and the Rehabilitation Act based on Reuben's alleged intentional discrimination and failure make a reasonable accommodation.

Reuben asserts that these claims must be dismissed because: 1) plaintiff entered the building and reached the OCRC; 2) the requested accommodation was not "necessary"...

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