Salas v. City Of Arlington

• Decision Date: 23 August 2010
• Docket Number: No. 08-10630.,08-10630.
• Citation: 616 F.3d 476
• Parties: Richard FRAME; Wendell Decker; Scott Updike; J.N., a minor, by his next friend and mother Gabriela Castro; Mark Hamman; Joey Salas, Plaintiffs-Appellants, v. CITY OF ARLINGTON, A Municipal Corporation, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

616 F.3d 476

Richard FRAME; Wendell Decker; Scott Updike; J.N., a minor, by his next friend and mother Gabriela Castro; Mark Hamman; Joey Salas, Plaintiffs-Appellants,

v.CITY OF ARLINGTON, A Municipal Corporation, Defendant-Appellee.

No. 08-10630.

United States Court of Appeals,Fifth Circuit.

Aug. 23, 2010.

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Miguel M. de la O (argued), de la O, marko, Magolnick & Leyton, Miami, FL, for Plaintiffs-Appellants.

Edwin Armstrong Price Voss, Jr. (argued), Brown & Hofmeister, L.L.P., Richardson, TX, Denise V. Wilkerson, Asst. City Atty., Arlington, TX, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOLLY, PRADO and SOUTHWICK, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The petition for rehearing is GRANTED. We withdraw our prior opinion, Frame v. City of Arlington, 575 F.3d 432 (5th Cir.2009), and substitute the following, which reflects substantial changes from the earlier opinion. ¹

OPINION ON REHEARING

The plaintiffs are persons with disabilities who depend on motorized wheelchairs for mobility. They allege that the City of Arlington, by failing to make the City's curbs, sidewalks, and certain parking lots ADA-compliant, has violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The district court dismissed their complaint on the basis that their claims were barred by the applicable two-year statute of limitations. This appeal raises more than one issue of first impression-at least for this court. Initially, we must decide whether Title II of the ADA authorizes the plaintiffs' claims. To the extent we find Title II authorizes the plaintiffs' claims, we must also consider whether those claims are subject to a statute of limitations and, if so, when the claims accrued.

We hold that Title II mandates the modification of physical infrastructures that “effectively deny” access to a public entity's services, programs, or activities. Within this framework, sidewalks, curbs, and parking lots are “facilities,” not “services, programs, or activities.” Consequently, plaintiffs only have a private right of action to enforce compliance with the implementing regulations to the extent that the failure to make a sidewalk, curb, or parking lot compliant denies plaintiffs access to actual services, programs, or activities. Where the plaintiffs establish a private cause of action, we further hold that the plaintiffs' claims are subject to a two-year statute of limitations, and that the claims accrued when the plaintiffs were excluded from the desired program, service, or activity. We further conclude, however, that it was the City's burden to prove accrual and expiration of any limitations period. Because the district court erred in requiring the plaintiffs to prove that their claims had not expired, we remand for further proceedings.

I.

This appeal comes to us from the grant of a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We therefore accept the factual allegations of the plaintiffs' complaint as true. See, e.g., Lane v. Halliburton, 529 F.3d 548, 557 (5th Cir.2008). The plaintiffs filed their complaint in the district court on July 22, 2005, and amended it three times. Accordingly, for facts we refer to the plaintiffs' final amended complaint.

The plaintiffs are individuals who reside in Arlington who have mobility impairments that require that they use motorized wheelchairs. They point to more than one hundred curbs and poorly maintained sidewalks in Arlington that they allege make their travel impossible or unsafe. They also point to at least three public facilities lacking adequate handicap parking. Count 1 of the plaintiffs' complaint alleges violations of Title II of the ADA. See Title II of the ADA, 42 U.S.C. §§ 12131 et seq. (prohibiting public entities from discriminating on the basis of disability). ² Count 2 of the plaintiffs' complaint alleges violations of Section 504 of the Rehabilitation Act, which prohibits recipients of federal funding from discriminating against persons on the basis of disability. See Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. The plaintiffs do not seek monetary damages; they only ask for an injunction requiring the City to bring its curbs, sidewalks, and parking lots into ADA compliance.

The City of Arlington moved to dismiss the complaint, and the district court granted the City's motion on the ground that the plaintiffs' claims were barred by the applicable two-year statute of limitations. The district court held that the plaintiffs' claims accrued, and the two-year limitations period began to run, on the date the City completed the construction or alteration of any noncompliant curb, sidewalk, or parking lot. Because the plaintiffs' complaint did not point to dates of noncompliant construction or alteration within the two years preceding its filing date, July 22, 2005, the district court dismissed the plaintiffs' claims.

On appeal, the plaintiffs argue that their claims accrued on the date individual plaintiffs actually encountered a noncompliant barrier-not on the date the City completed a noncompliant construction or alteration. In the alternative, the plaintiffs argue that statutes of limitation do not apply to claims for injunctive relief; that the noncompliant curbs, sidewalks, and parking lots are continuing violations of the ADA that relieve them of the limitations bar; and that dismissal was improper because the City, and not the plaintiffs, had the burden to establish when the plaintiffs' claims accrued and the limitations period expired.

We consider each of the plaintiffs' arguments separately.

II.

We review a Rule 12(b)(6) dismissal de novo. See, e.g., Lindquist v. City of Pasadena, Tex., 525 F.3d 383, 386 (5th Cir.2008). “The complaint must be liberally construed, with all reasonable inferences drawn in the light most favorable to the plaintiff.” Woodard v. Andrus, 419 F.3d 348, 351 (5th Cir.2005) (citing Sloan v. Sharp, 157 F.3d 980, 982 (5th Cir.1998)). The interpretation of a statute is a question of law we also review de novo. See, e.g., Motient Corp. v. Dondero, 529 F.3d 532, 535 (5th Cir.2008).

A.

The immediate question is whether the plaintiffs have stated a cognizable claim under Title II of the ADA; that is, whether the plaintiffs have a private right of action, in connection with their statutory right of access, to force a city to maintain its curbs, sidewalks, and parking lots in compliance with the implementing regulations. If they have no claim, then we need not reach the statute of limitations issues. For reasons we explain, we decide that, to the extent noncompliant sidewalks, curbs, or parking lots effectively deny plaintiffs access to a city “service, program, or activity,” plaintiffs have a private right of action to enforce the regulations; to the extent the noncompliant sidewalks, curbs, or parking lots do not effectively deny plaintiffs access to a “service, program, or activity,” plaintiffs do not have a private right of action to enforce the regulations. ³ The ADA was passed “[t]o provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title II applies to public entities. It provides that “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.” 42 U.S.C. § 12132. ⁴ We have held that to make a prima facie case under Title II a plaintiff must show: (1) that he has a qualifying disability; (2) that he is being denied the benefits of services, programs, or activities for which the public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that such discrimination is by reason of his disability. Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 671-72 (5th Cir.2004). There is no dispute that the City is a public entity, or that the plaintiffs here have qualifying disabilities. ⁵

Plaintiffs have assembled a range of arguments as to how Arlington's newly constructed, newly maintained, and pre-ADA ⁶ sidewalks, curbs, and parking lots are in violation of Title II. Some of the violations pointed to by the plaintiffs are alleged to deny access to public services; other violations are not similarly tied to the deprivation of access to public services. In some instances, the alleged violation excludes plaintiffs from public benefits; in other instances, plaintiffs can access the services but only with difficulty.

Given the breadth of the plaintiffs' attack on Arlington's sidewalk, curb, and parking lot system, we must identify with some precision the degree to which they are entitled to force compliance with the implementing regulations. In so doing, we move in three steps. First, we briefly review our jurisprudence concerning private causes of action to enforce implementing regulations. Second, we analyze the statutory text. Third, because we conclude that the statutory text is in part ambiguous, we turn to the implementing regulations for guidance.

1.

“[P]rivate rights of action to enforce federal law” are creatures of congressional intent. Sandoval, 532 U.S. at 286 121 S.Ct. 1511. The Supreme Court has recognized that Title II's anti-discrimination provision, 42 U.S.C. § 12132, is enforceable through a private right of action. Barnes v. Gorman, 536 U.S. 181, 184-85, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). When deciding whether a general private right of action recognized under the statutory language carries over to the specifics of the implementing regulations, we ask whether the regulation “effectuates a mandate” of the statute. Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901, 906-07 (6th Cir.2004); see ...