Midgett v. Tri-County Metro. Tannsp. Dist. of Oregon
| Decision Date | 26 June 2001 |
| Docket Number | DEFENDANT-APPELLEE,TRI-COUNTY,No. 99-36222,PLAINTIFF-APPELLANT,99-36222 |
| Citation | 254 F.3d 846 |
| Parties | (9th Cir. 2001) JOSEPH MIDGETT,, v.METROPOLITAN TRANSPORTATION DISTRICT OF OREGON, |
| Court | U.S. Court of Appeals — Ninth Circuit |
Shelley D. Russell, Crispin & Associates, Portland, Oregon, for the plaintiff-appellant.
Jeffrey M. Batchelor, Jeffrey M. Batchelor, P.C., Portland, Oregon, for the defendant-appellee.
Appeal from the United States District Court for the District of Oregon Robert E. Jones, District Judge, Presiding D.C. No. CV-98-00140-JO
Before: Thomas G. Nelson, Susan P. Graber, and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Graber
Plaintiff Joseph Midgett brought this action against Defendant Tri-County Metropolitan Transportation District of Oregon ("Tri-Met"), seeking a permanent injunction and compensatory damages for alleged violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C.§§§§ 12101 to 12213. The district court granted summary judgment to TriMet. We affirm.
Plaintiff has multiple sclerosis, relies on a wheelchair, and is a "qualified individual with a disability" under the ADA. 42 U.S.C. §§ 12131(2); Midgett v. Tri-County Metro. Transp. Dist., 74 F. Supp. 2d 1008, 1010 (D. Or. 1999). Tri-Met, a transportation district, is a municipal corporation. Griffin v. Tri-County Metro. Transp. Dist., 870 P.2d 808, 809 (Or. 1994). It is a "public entity" subject to Title II of the ADA, 42 U.S.C. §§ 12131(1), and it operates a "fixed route system" that provides public transportation in metropolitan Portland, 42 U.S.C. §§ 12141(3). Midgett, 74 F. Supp. 2d at 1010. TriMet operates more than 600 buses, providing approximately 300 million rides per year.
January 30, 1996, was an extremely cold day in Portland, and a bad day for both Plaintiff and Tri-Met. Plaintiff waited for a bus at his regular bus stop. When the bus stopped, the wheelchair lift proved inoperable because of the cold weather. Plaintiff went to another bus stop but, when the next bus stopped, its lift, too, failed to function.
Plaintiff went to a coffee shop to escape the cold and then decided to return home. On his way, he passed his regular stop, where another bus was waiting. The lift on that bus worked, and Plaintiff boarded, but the lift would not retract. The driver told the other passengers to take the next bus, which they did. Finally, the driver successfully retracted the lift and transported Plaintiff to work.
Plaintiff complained to Tri-Met's customer service department. He was unhappy with its response and filed this action against Tri-Met and Tom Walsh, Tri-Met's general manager, on January 30, 1998. In his complaint, Plaintiff alleged violations of Title II of the ADA and brought a negligence claim under Oregon law. Plaintiff sought a permanent injunction compelling Tri-Met's compliance with the ADA, plus compensatory and punitive damages.
Tri-Met moved to dismiss. The district court granted the motion in part, dismissing Walsh as a defendant and striking Plaintiff's request for punitive damages. Tri-Met then moved for summary judgment. The parties entered a joint pretrial order in which Plaintiff limited his claim to money damages and alleged that his exposure to cold temperatures on January 30, 1996, exacerbated his multiple sclerosis. On February 24, 1999, the district court denied Tri-Met's motion for summary judgment.
On May 21, 1999, the district court permitted Plaintiff to withdraw his exacerbation claim and add a claim for injunctive relief. In his new claim, Plaintiff sought an expansive injunction compelling Tri-Met to develop a wide range of programs and procedures to ensure compliance with the ADA. Plaintiff asked for an order compelling Tri-Met to, among other things: revise its statistical procedures, require operators to maintain logs of all lift malfunctions, implement a system of cross-checking operator reports with customer reports of lift failures, implement disciplinary measures to punish an operator's failure to log a lift failure reported by a customer, post the number of failures weekly on the Tri-Met website, develop in conjunction with Plaintiff's counsel ways to measure improvement in lift service, develop new personnel training programs, provide a dedicated customer service line for lift-using Tri-Met riders, implement a back-up cold- weather transportation system for lift users, and develop a plan with Plaintiff's counsel for monitoring compliance with the injunction. Plaintiff requested that the injunction extend for a period of five years.1
Tri-Met again moved for summary judgment on the ADA claims. As evidence of the need for the requested measures, Plaintiff offered affidavits and declarations from himself and five other Tri-Met riders, each of whom uses the lift service.
Plaintiff's affidavit and declaration state that he experienced problems with Tri-Met's bus lifts on December 21, 1998; January 27, 1999; June 2, 1999; and September 29, 1999. Dianna Spielman's declaration states that, on July 18, 1999, the driver of her bus did not properly secure her wheel- chair on the bus because the securement latch was not functioning. Ric Burger declares that an operator would not secure his chair on August 5, 1999. He further states that, on August 25, 1999, a low-floor bus did not stop properly, making the access ramp too steep for a wheelchair and that, on August 27, 1999, the operator failed to deploy the ramp properly. Patrick Rigert states that he estimates that he experiences lift failures about 10 times a year. Robert Pung, Sr., reports in his affidavit that he experienced lift failures approximately a dozen times in 1998 and that he has observed drivers exhibit poor attitudes toward lift-using passengers. Pung also identified one instance in 1995 in which a driver failed to secure his wheelchair properly. Richard McGhirk's declaration states that he has seen "significant improvement" in lift service, but that an estimated 1 in 20 drivers fails to secure his wheelchair properly.
As evidence that Plaintiff's requested reforms are not needed, Tri-Met presented a Triennial Review prepared by the Federal Transit Administration ("FTA"), which found that Tri-Met was in compliance with the ADA in 1999. Tri-Met introduced an internal report studying lift failures for 1998, which showed that Tri-Met's lift performance exceeded that of transportation providers in the similar communities of Tacoma, Washington, and Eugene, Oregon. Tri-Met also presented extensive evidence showing that it has specific programs in place to address ADA issues, including a procedure for classifying ADA-related calls as "urgent, " training programs to instruct officers how to address ADA-related issues, periodic quality control inspections by outside investigators, and specific practices related to lift failures. See Midgett, 74 F. Supp. 2d at 1014-17 (summarizing Tri-Met's evidence). Plaintiff conceded that he could not controvert Tri-Met's evidence. Id. at 1017.
The district court held that Plaintiff had standing to request injunctive relief, but was not entitled to an injunction because his evidence did not establish a sufficient threat of ongoing ADA violations. Id. at 1013, 1018. The district court also reasoned that an injunction was not warranted because Tri-Met is a "state public entity," a fact that cautioned against the court's use of its equitable powers in the absence of a strong factual record demonstrating the threat of future ADA violations. Id. at 1013. The court concluded that Plaintiff was not entitled to compensatory damages because compensatory damages are not available under the ADA without a showing of an intentional violation, and Plaintiff's evidence did not support an inference of discriminatory intent. Id. at 1018. The court granted Tri-Met's motion for summary judgment and declined to exercise supplemental jurisdiction over Plaintiff's state law claim. Id. Accordingly, the district court entered a judgment of dismissal. This timely appeal followed.
We review a "summary judgment granting or denying a permanent injunction for abuse of discretion and application of the correct legal principles." EEOC v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987). Otherwise, we review de novo a grant of summary judgment. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995).
Title 42 U.S.C. §§ 12132 provides:
Subject to the provisions of this subchapter, 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.
Title 42 U.S.C. §§ 12142 identifies certain practices by public- transportation providers that are considered discriminatory. In particular, it is discriminatory if a public entity that operates a fixed route system purchases a bus that is "not readily accessible to and usable by . . . individuals who use wheel- chairs." 42 U.S.C. §§ 12142(a). Moreover, the ADA deems it discriminatory for a public entity operating a fixed-route system to provide disabled individuals with services that are inferior to those provided to the nondisabled. 42 U.S.C. §§ 12143(a).
The regulations implementing the ADA do not contemplate perfect service for wheelchair-using bus commuters. Under certain circumstances, 49 C.F.R. §§ 37.163 permits buses with inoperative lifts in this type of service area to remain in service for up to three days after the problem is discovered, and §§ 37.161(c) establishes that isolated or temporary problems caused by lift malfunctions are not violations of the ADA.
Although, as discussed below, the district court misstated Plaintiff's burden in establishing...
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