Tyler v. City of Manhattan, Civ. A. No. 93-4030-DES.

• Decision Date: 18 April 1994
• Docket Number: Civ. A. No. 93-4030-DES.
• Citation: 849 F. Supp. 1429
• Parties: Lewis "Toby" TYLER, Plaintiff, v. CITY OF MANHATTAN, Defendant.
• Court: U.S. District Court — District of Kansas

849 F. Supp. 1429

Lewis "Toby" TYLER, Plaintiff, v. CITY OF MANHATTAN, Defendant.

Civ. A. No. 93-4030-DES.

United States District Court, D. Kansas.

April 18, 1994.

COPYRIGHT MATERIAL OMITTED

Larry J. Leatherman, Palmer & Lowry, Topeka, KS, for plaintiff.

James S. Pigg, Kurt A. Level, Fisher, Patterson, Sayler & Smith, Topeka, KS, William L. Frost, Morrison, Frost and Olsen, Manhattan, KS, for defendant.

MEMORANDUM AND ORDER

SAFFELS, Senior District Judge.

This matter is before the court on the motion of the defendant City of Manhattan for summary judgment (Doc. 28), and the cross-motion of the plaintiff for summary judgment (Doc. 31).

Plaintiff Lewis "Toby" Tyler ("Tyler") seeks declaratory, injunctive, and monetary relief against the City of Manhattan ("City") under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Count I of his complaint claims that the City has violated the ADA by failing to complete an acceptable self-evaluation as required by 28 C.F.R. § 35.105 and by failing to adopt an acceptable transition plan as required by 28 C.F.R. § 35.150(d). Count II alleges that the City has subjected plaintiff to discrimination by failing to carry out its obligations to permit him to participate equally in its services, activities, and programs, in particular its recreational programs, city council meetings, and advisory board activities. Count III alleges that the City discriminates against plaintiff on the basis of his disabilities in violation of 28 C.F.R. § 35.130(b)(1) because it licenses liquor stores, taverns, and restaurants that do not make their facilities accessible to him.

Jurisdiction

Plaintiff asserts jurisdiction under 28 U.S.C. § 1331 and Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. This court has jurisdiction notwithstanding the fact that the plaintiff has not exhausted his administrative remedies. See 28 C.F.R. Part 35, App. A, Subpart F (Compliance Procedures include private right of action for persons with disabilities, who need not exhaust federal administrative remedies as a prerequisite); see also Gorsline v. State of Kansas, No. 93-4254-SAC, slip op. at 5, 1994 WL 129981 (D.Kan. March 4, 1994); Noland v. Wheatley, 835 F.Supp. 476, 482-83 (N.D.Ind.1993); Petersen v. University of Wisconsin Bd. of Regents, 818 F.Supp. 1276, 1279-80 (W.D.Wis.1993); cf. Pushkin v. Regents of Univ. of Colorado, 658 F.2d 1372, 1380-82 (10th Cir.1981) (no exhaustion of remedies prerequisite for filing suit to enforce § 504 of the Rehabilitation Act, 29 U.S.C. § 794).

Summary Judgment Standards

Under Fed.R.Civ.P. 56, the court is compelled to render summary judgment on behalf of a moving party if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Essentially, the inquiry as to whether an issue is genuine is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986). An issue of fact is genuine if the evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party. Id. at 248, 106 S.Ct. at 2510. This inquiry necessarily implicates the substantive evidentiary standard of proof that would apply at trial. Id. at 252, 106 S.Ct. at 2512.

The moving party has the burden of showing the absence of a genuine issue of material fact. This burden "may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). In opposing a properly supported motion for summary judgment, a party "may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514. The nonmoving party must go beyond the pleadings and designate specific facts, by affidavits, depositions, answers to interrogatories, and admissions on file, showing that there is a genuine issue for trial. Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552. The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514.

The court must consider factual inferences tending to show triable issues in the light most favorable to the existence of those issues. United States v. O'Block, 788 F.2d 1433, 1435 (10th Cir.1986). The court must also consider the record in the light most favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 (10th Cir.1984), cert. denied, 469 U.S. 1214, 105 S.Ct. 1187, 84 L.Ed.2d 334 (1985). However, a mere scintilla of evidence in favor of the nonmoving party is insufficient to create a genuine issue of material fact. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512.

Facts

For purposes of deciding the pending motions, the court makes the following findings of fact.

Plaintiff is partially paralyzed as a result of a gunshot wound to the head, and he is confined to a wheelchair. The City does not dispute that he is a "qualified individual with a disability" as defined by Title II of the ADA, 42 U.S.C. § 12131(2).¹

The City is a political subdivision of the state of Kansas. There is no dispute that the defendant is a "public entity" for purposes of Title II of the ADA.² The City employs more than 50 persons.

The City appointed a committee ("ADA Committee") to facilitate compliance with the ADA and to identify priorities. The ADA Committee's membership included City employees and persons with disabilities. The ADA Committee met monthly. Plaintiff attended and participated in virtually all its meetings, except during a three to four-week period when he was recovering from a broken hip and arm. Plaintiff contends that the City did not maintain a list of interested parties consulted by the ADA Committee. Although the City concedes that no such formal list was compiled, it contends that the Committee's records include references to all interested parties, so that such a list could be produced.

Plaintiff regularly attends meetings of the City Commission, held at City Hall. On one occasion in November 1992, plaintiff was unable to attend a City Commission meeting held on the second floor of City Hall, because the elevator was not working. City Commission members were aware that the elevator was not functioning and nevertheless went ahead with the meeting. However, some of the agenda items were deferred to the Commission's next meeting, which the plaintiff attended. City Commission meetings include a time for public comments, when any individual is allowed three minutes to address the Commission. City Commission meetings are televised on the City's cable access channel.

The City timely prepared a self-evaluation for the purpose of complying with ADA's implementing regulations.³ In preparing the ADA self-evaluation, the City and its ADA Committee reviewed and relied upon the 1984 self-evaluation prepared by the City for the purpose of complying with Section 504 of the Rehabilitation Act of 1973. Plaintiff was not prevented from talking with City personnel regarding the self-evaluation, and in fact submitted comments both verbally and in writing.

Plaintiff asserts that the self-evaluation was inadequate in scope because it did not address all programs, activities, policies, and procedures; and because it did not include streets, sidewalks, parking spaces, and buildings leased by the City. In response, the City contends that all city programs, activities, policies, and practices were evaluated; that the self-evaluation included sidewalks and parking areas adjoining each of the facilities evaluated; and that the ADA does not require evaluation of buildings leased by the City. The City's ADA self-evaluation is available for public review.

The ADA Committee prioritized each of the evaluated facilities with regard to the need for modifications. Within the time permitted by the ADA and its implementing regulations,⁴ the City made a list of some planned structural modifications to existing City buildings and facilities that were deemed necessary in order to comply with the ADA. This list was prepared for the purpose of complying with the regulatory requirement that the City prepare a "transition plan." See 28 C.F.R. § 35.150(d).

Plaintiff contends that the City has not adequately complied with the transition plan requirement. Plaintiff contends that the transition plan completed by the City is not broad enough in scope nor complete enough in detail. Further, plaintiff contends that a list of completed facility modifications does not exist, and that no place has been designated for public inspection of such a list. The ADA transition plan itself, however, is available for public review.

The City has designated Ron Fehr as the contact person regarding the ADA self-evaluation and the ADA transition plan. The City has adopted a grievance form to be used to initiate grievances related to the City's compliance with the ADA. While plaintiff has never filed such a grievance, he contends that he has tried but was unable to do so.

Plaintiff contends that his visual impairments prevent him from reading notices in the normal written format, and that the City did not offer public notices in any alternative media as required by the ADA. The City does not produce all its documents in alternative media, but will do so upon request. Some city documents, such as City Commission agendas, are available on audiotape at the city library.⁵ The...