Silvia v. RIPTA Ride/Flex Program

• Decision Date: 18 June 2020
• Docket Number: C.A. No. 20-203-JJM
• Parties: DAVID A. SILVIA, Plaintiff, v. RIPTA RIDE/FLEX PROGRAM, Defendant.
• Court: U.S. District Court — District of Rhode Island

DAVID A. SILVIA, Plaintiff, v. RIPTA RIDE/FLEX PROGRAM, Defendant.

C.A. No. 20-203-JJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

June 18, 2020

REPORT AND RECOMMENDATION

PATRICIA A. SULLIVAN, United States Magistrate Judge.

On May 6, 2020, Plaintiff David A. Silvia filed a pro se complaint¹ alleging that the RIPTA Ride/Flex Program's procedure of waiting five minutes ("5-minute wait procedure") for a missing rider and not requiring further investigation to track the missing rider is violative of Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq. ("ADA"). Plaintiff claims that a driver's failure timely to appear at what he understood to be the assigned pick-up point left him stranded on a 28-degree day. ECF No. 1. His contemporaneously filed motion for leave to proceed in forma pauperis ("IFP") has been referred to me for determination pursuant to 28 U.S.C. § 636(b)(1)(A). ECF No. 3. Because Plaintiff has satisfied the requirements of 28 U.S.C. § 1915(a)(1), the IFP motion is provisionally granted. However, because of the IFP application, this case is subject to preliminary screening under 28 U.S.C. § 1915(e)(2)(B).²

I. BACKGROUND

Plaintiff's claim (in its entirety) is as follows:

THE FLEX PROGRAM AS PROCEDURES WHICH ALLOW S A 5MIN WINDOW TO BE PI\CKED UP, IF THE RIDER DOES NOT CONNECT, THE VEHICLE LEAVES, WHICH LEAVES THE RIDER (HANDY CAP PERSON ABANDONED) a

. . .

AS I have tried to explain the problems/safety concerns of leaving a handicap person abandon, the management refuses to change their procedure, to call the rider to confirm his location or whereabouts. In my case, the driver was not at the assigned location and left, leaving me abandon on a 28 degree day to go home on my ow..may

ECF No. 1 at 4. Although the complaint does not allege that Plaintiff is a disabled individual, his IFP application does.³ ECF No. 3. Except as set out above, the pleading does not seek any specific relief.

In naming the RIPTA Ride/Flex Program as a Defendant, Plaintiff is focused on the Rhode Island Public Transit Authority ("RIPTA") and its paratransit division, in that he alleges that he is suing the Ride/Flex Program through, "Brooks Almonte, Director," who is in charge of the RIPTA paratransit program.⁴ According to RIPTA's website,⁵ the paratransit program isbased on the ADA and "is for people with disabilities that prevent the use of fixed-route buses." https://www.ripta.com/ride-paratransit-program (last visited June 18, 2020). It "provides door to door service and . . . is a shared ride service." Id. The RIPTA website also describes the "5-minute wait procedure" that Plaintiff complains of in his pleading:

Driver Wait Time To avoid delaying other passengers, drivers can only wait 5 minutes for you. Please be ready to leave when your driver arrives.

Id.

Pursuant to Title II of ADA, the provision of public transportation services to disabled individuals is governed by detailed regulations and guidance developed by the Federal Transit Authority ("FTA") of the Department of Transportation.⁶ See 42 U.S.C.§ 12134(a); 49 C.F.R. Part 37 (Transportation Services for Individual with Disabilities); Melton v. Dallas Area Rapid Transit, 391 F.3d 669, 673 (5th Cir. 2004) ("[I]t is the Secretary of Transportation who is directed to promulgate regulations to implement part B under 42 U.S.C. § 12149 and specifically to promulgate regulations regarding paratransit service under 42 U.S.C. § 12143(b)."). The development of paratransit services is specifically regulated by 49 C.F.R. § 37.121-155, which regulations contain detailed requirements and suggestions related to facilitating the transportation of disabled riders. E.g., 49 C.F.R. Pt. 37, App. E ("Five-Minute Warning or Notification of Arrival Calls"). As authorized by 49 C.F.R. § 37.15, the FTA has issued guidance that recommends the use of the precise "5-minute wait procedure" about which Plaintiff complains:

Many agencies have established a policy requiring drivers to wait at least 5 minutes for riders to board the vehicle after arriving at the pickup address. In such cases, it is important that such policies also require drivers to wait until the start of the pickup window to begin a 5-minute countdown and to wait until the full 5 minutes have elapsed before departing without the rider. For example,when the pickup window begins at 11 a.m. and the vehicle arrives at 10:55 a.m., the driver would wait for the rider at least until 11:05 a.m. before departing.

U.S. Department of Transportation Federal Transit Administration (Circular FTA C 4710.1) Americans with Disabilities Act (ADA): Guidance § 8.4.5, at 203 (November 4, 2015).⁷ This guidance also encourages paratransit agencies to establish effective telephone communication, for example to permit trip-status calls for late pickups. Id. at § 8.5.6.

An individual with a complaint about compliance with the FTA's regulations or the applicable guidance is encouraged to file it first with RIPTA's designated official, Mr. Almonte. 49 C.F.R. § 37.17; see also 28 C.F.R. § 35.107. The procedure is explained on RIPTA's website.⁸ If Mr. Almonte is unresponsive (as Plaintiff's pleading suggests), a complaint may be filed directly with the FTA's Office of Civil Rights. 49 C.F.R. § 27.123(b). The FTA has administrative enforcement powers to enforce compliance with its regulations. 28 C.F.R. § 35.190. Instructions for filing such a complaint are on the FTA's website.⁹

II. STANDARD OF REVIEW

Section 1915 of Title 28 requires a federal court to dismiss an action if the court determines that the action fails to state a claim. 28 U.S.C. § 1915(e)(2)(B). The standard for dismissal of an action filed in forma pauperis is identical to the standard for dismissal on a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6). Hodge v. Murphy, 808 F. Supp. 2d 405, 408 (D.R.I. 2011). To survive a motion to dismiss, a complaint must contain sufficientfactual allegations to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.

III. ANALYSIS

Title II of the ADA broadly 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 (emphasis added); see Iverson v. City of Bos., 452 F.3d 94, 99 (1st Cir. 2006). One of the purposes of Title II of the ADA is to guarantee that qualified disabled persons enjoy meaningful access to public transportation services. See Tennessee v. Lane, 541 U.S. 509, 531-32 (2004). The ADA is violated by a public entity that operates a fixed-route transportation system but fails to provide paratransit transportation services to individuals with disabilities who cannot use the fixed-route system; the ADA mandates that the paratransit system must be "comparable to the level of designated public transportation services provided to individuals without disabilities using such system." 42 U.S.C. § 12143(a); see Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362, 1373 (N.D. Ga. 2002). As part of the implementation plan for the ADA, Congress created a private right of action to enforce it. Ability Ctr. of Greater Toledo v. City of Sandusky, 385 F.3d 901, 906 (6th Cir. 2004).

To state a prima facie ADA claim in federal court, in addition to being a "qualified individual with a disability,"¹⁰ a plaintiff must plausibly allege that he was either excluded from participation in or denied the benefit of some public service, program, or activity, and that suchexclusion, denial of benefits, or other discrimination was "by reason of [his] disability." Iverson, 452 F.3d at 102-03; Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000). Importantly, the ADA does not require public transit agencies to provide better service to disabled passengers than is provided to other passengers, only comparable service. Martin, 225 F. Supp. 2d at 1373-74. At bottom, to qualify as an ADA claim, the exclusion from or denial of service must be "by reason of the individual's disability." Iverson, 452 F.3d at 102; see Melton, 391 F.3d at 671-72 (affirming district court's grant of summary judgment on ADA claim because disabled plaintiff asked for reasonable modification of paratransit service to facilitate his access, but failed to demonstrate that denial of modification amounted to discrimination based on disability).

Plaintiff's pleading should not survive screening because it lacks even a hint from which one might draw the inference that he has been excluded from participation in or denied the benefit of some public service program or activity "by reason of [his] disability." Iverson, 452 F.3d at 102. For example, there is no suggestion that RIPTA has a mechanism for assisting stranded passengers riding the fixed-route buses that it has refused to apply to paratransit service riders. Rather, Plaintiff's complaint is laser-focused on adjusting RIPTA's procedures for implementing the paratransit service - he contends RIPTA does not strike the right balance among the disabled persons using the service in that the "5-minute wait procedure" can leave one disabled person stranded as the bus moves on to pick up another. Reading his pro se pleading leniently, the Court assumes that Plaintiff is seeking a modification of RIPTA's procedures through the development of a mechanism to avoid stranding disabled individuals in cold weather, as happened to him in one instance.¹¹ Pursuant to the applicable regulations, see 49 C.F.R. Pt.37, App. E, Plaintiff can bring such a request to Mr. Almonte at RIPTA or he can file it with the FTA. But without facts...