United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang, United States Magistrate Judge
Judge Nina Y. Wang This matter comes before the court on
Plaintiff Stephen Hamer's (“Plaintiff” or
“Mr. Hamer”) Motion for Partial Summary Judgment
(or “Plaintiff's Motion”) [#42,
filed July 3, 2017] and Defendant City of Trinidad's
(“Defendant” or “City”) Motion for
Summary Judgment (or “Defendant's Motion”)
[#43, filed July 5, 2017]. The undersigned considers the
Motions pursuant to 28 U.S.C. § 636(c) and the Order of
Reference dated November 28, 2016 [#14]. Upon careful review
of the Motions and associated briefing, the applicable case
law, the entire case file, and the comments offered during
the October 5, 2017 Motions Hearing, the court DENIES
Plaintiff's Motion and GRANTS Defendant's Motion for
the reasons stated herein.
October 12, 2016, Plaintiff initiated this action by filing
his Complaint, alleging violations of Title II of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12131 et seq., and section 504 of the
Rehabilitation Act of 1973 (“RA”), 29 U.S.C.
§ 794 et seq. [#1]. Mr. Hamer alleges that the
City has “discriminated against and subjected [him] to
unlawful or hazardous conditions due to the absence of
accessible curb ramps within the City's pedestrian right
of way.” [Id. at ¶ 1]; see also
[id. at ¶ 18]. Defendant filed its Answer to
Plaintiff's Complaint on November 10, 2016. [#11].
case proceeded through discovery, and the Parties timely
filed the instant cross-Motions for Summary Judgment. [#18;
#19]. In his Motion, Plaintiff seeks summary judgment as to
whether: (1) he has standing to pursue this action; (2) he is
a “qualified individual” under both the ADA and
the RA; (3) the City's sidewalks and curb cuts are a
“program, service, or activity” under Title II of
the ADA and section 504 of the RA; (4) the City must comply
with the RA; and (5) the City violated the alteration
requirements of 28 C.F.R. § 35.151, the maintenance of
accessible feature requirements of 28 C.F.R. § 35.133,
and the program access requirements of 28 C.F.R. §
35.150. [#41 at 18].
part, the City also moves for summary judgment, arguing that:
(1) sidewalks and curb cuts are not “services” or
“programs” under the ADA or RA and, accordingly,
Plaintiff's claims fail as a matter of law; (2) in the
alternative, to the extent that the court finds that Mr.
Hamer's claims are cognizable under the ADA and the RA,
it is entitled to summary judgment as to its defense of undue
burden; and (3) Plaintiff's claims are barred by the
applicable statute of limitations. [#43].
October 5, 2017, the undersigned held oral argument, and took
the Motions under advisement. [#65]. The Motions are now ripe
judgment is appropriate only if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co.,
Inc., 41 F.3d 567, 569 (10th Cir. 1994). “A
‘judge's function' at summary judgment is not
‘to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for
trial.'” Tolan v. Cotton, 134 S.Ct. 1861,
1866 (2014) (quoting Anderson v. Liberty Lobby, 477
U.S. 242, 249 (1986)). Whether there is a genuine dispute as
to a material fact depends upon whether the evidence presents
a sufficient disagreement to require submission to a jury or
conversely, is so one-sided that one party must prevail as a
matter of law. Anderson, 477 U.S. at 248-49;
Stone v. Autoliv ASP, Inc., 210 F.3d 1132, 1136
(10th Cir. 2000); Carey v. U.S. Postal Service, 812
F.2d 621, 623 (10th Cir. 1987). A fact is
“material” if it pertains to an element of a
claim or defense; a factual dispute is “genuine”
if the evidence is so contradictory that if the matter went
to trial, a reasonable party could return a verdict for
either party. Anderson, 477 U.S. at 248.
“Where the record taken as a whole could not lead a
rational trier of fact to find for the non-moving party,
there is no ‘genuine issue for trial.'”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986) (citing First Nat.
Bank of Ariz. V. Cities Service Com, 391 U.S.
253, 289 (1968)).
movant bears the initial burden of making a prima facie
demonstration of the absence of a genuine issue of material
fact and entitlement to judgment as a matter of law.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71
(10th Cir. 1998) (citing Celotex, 477 U.S. at 323).
The movant can achieve this by pointing the court to a lack
of evidence for the nonmovant on an essential element of the
nonmovant's claim. Id. at 671. Once the movant
meets this initial burden, the nonmovant assumes the burden
to put forth sufficient evidence to demonstrate the essential
elements of the claim such that a reasonable jury could find
in its favor. See Anderson, 477 U.S. at 248;
Simms v. Okla. Ex rel. Dep't of Mental Health &
Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir.
1999). Conclusory statements based merely on speculation,
conjecture, or subjective belief are not competent summary
judgment evidence. See Bones v. Honeywell Int'l,
Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving
party's evidence must be more than “mere reargument
of [her] case or a denial of an opponent's allegation,
” or it will be disregarded. See 10B
Charles Alan Wright, et al., Federal Practice and
Procedure § 2738 at 356 (3d ed.1998).
following facts are drawn from the instant Motions, and are
undisputed for the purposes of this analysis. Mr. Hamer, a
resident of the City of Trinidad, Colorado, is confined to a
motorized wheelchair and is a qualified individual with a
disability under the ADA. See [#41-1 at 161:1-4,
162:8-12, 163:23-25, 167:1-9]. Due to his confinement in a
motorized wheelchair, Mr. Hamer does not drive or utilize
public transportation; his “primary means of public
transportation” are the City's public sidewalks.
[#41-6 at ¶ 2]. The City has approximately “154
miles of sidewalk and approximately 1300 curb cuts.”
[#43-2 at 17, ¶ 5]. Mr. Hamer's claims focus solely
on the City's noncompliant sidewalks and curb cuts.
See, e.g., [#1; #43-1 at 4, 63:12-15; #51 at
April 2014, Mr. Hamer attended a City Council meeting where
he complained about ADA accessibility throughout the City,
and noted seventy-nine (79) specific noncompliant curb cuts
and sidewalks. [#43-1 at 9]. Over the next six months, Mr.
Hamer levied multiple informal grievances at City Council
meetings. See [id. at 10-14]. For instance,
he noted that several public picnic tables and some
commercial tables, located near the sidewalks, obstructed the
thirty-six (36) inch path of travel requirement under the
ADA, that the restrooms at City Hall were inaccessible to the
disabled, that City residents do not stop at crosswalks for
people in wheelchairs, and that several buildings were
inaccessible to people in wheelchairs or scooters.
See [id.]. To date, Defendant has completed
several projects aimed at renovating the noncompliant
sidewalks and curb cuts identified by Mr. Hamer, as well as
other compliance projects. See [#49-1 at 150:9-23,
#43-1 at 16, 82:10-19].
also filed an ADA complaint with the United States Department
of Justice (“DOJ”) on or about April 29, 2014.
[#43-1 at 17-19]. The ADA complaint alleged that the City
lacked the proper personnel to ensure ADA compliance within
the City, that the sidewalks and curb cuts were noncompliant
with ADA regulations, and that several City buildings were
inaccessible to those in wheelchairs like Mr. Hamer.
[Id.]. At some point following his ADA complaint
with the DOJ, the DOJ began an ADA audit of the City.
See [#41-2 at 21:4-7, 23:2- 25, #41-3 at 59:5-60:14;
#41-16]. Relevant here, the DOJ audit identified at least
five (5) newly constructed or altered curb ramps that were
noncompliant. See [#41-16 at 4-5]. Upon inspection
of approximately 178 curb ramps and 55 sidewalks in
“high use” areas, Plaintiff's engineering
expert Nicholas Heybeck (“Mr. Heybeck”) opined
that approximately 67 percent of the surveyed curb ramps were
noncompliant with the 1991 and 2010 DOJ ADA Standards for
Accessible Design (“ADAAG”) and the 1997 Uniform
Federal Accessibility Standards (“UFAS”), and
that “large areas of sidewalks . . . were found to be
non-compliant.” [#41-8 at 13].
anticipation of a consent decree (or other similar agreement)
with the DOJ, Defendant sought to “amass funding”
for the 2017 City budget of between $500, 000 to $1 million
to “address the most critical curb cuts
immediately.” [#43-2 at 8, 34:15-23]. The City must
also set aside $600, 000 to ameliorate other ADA compliance
issues noted by the DOJ-this is in addition to the $550, 000
spent by the City in 2016 to repair major downtown sidewalks
and curb cuts as well as $800, 000 planned for repairs in
2017. See [id. at 18, ¶¶ 7, 9].
According to the City's engineering expert Mike Kibbee
(“Mr. Kibbee”), it would cost the City $913,
618.74 to repair and/or renovate twenty-one (21)
“intersections in the downtown area.” [#43-2 at
17, ¶ 4; id. at 12-16; #41-14].
then initiated this action on October 12, 2016. [#1].
Plaintiff seeks declaratory judgment that Defendant's
sidewalks and curb cuts violate the ADA and RA, injunctive
relief requiring the City to alter and/or modify its
sidewalks and curb cuts to comply with the ADA and RA, as
well as compensatory damages and attorney's fees under
the ADA. [Id. at 16-18].
II of the ADA commands, “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[.]” 42 U.S.C. § 12132. A viable claim under
the ADA requires Mr. Hamer to prove (1) he is a qualified
individual with a disability; (2) he was excluded from
participation in or the benefits of the City's services,
programs, or activities; and (3) such exclusion was due to
his disability. J.V. v. Albuquerque Pub. Sch., 813
F.3d 1289, 1295 (10th Cir. 2016). “The ADA requires
more than physical access to public entities: it requires
public entities to provide ‘meaningful
access' to their programs and services.”
Robertson v. Las Animas Cty. Sheriff's
Dep't, 500 F.3d 1185, 1195 (10th Cir. 2007)
(emphasis in original). Likewise, section 504 of the RA
prohibits exclusion from the participation in, the denial of
benefits to, or the discrimination of a “qualified
individual with a disability . . . under any program or
activity receiving Federal financial assistance.” 29
U.S.C. § 794(a). In addition to the three elements
identified under the ADA, a viable RA claim requires Mr.
Hamer to also prove that the “program or
activity” receives federal funding. See Hollonbeck
v. United States Olympic Comm., 513 F.3d 1191, 1194
(10th Cir. 2008).
the ADA and the RA allow private citizens to sue for damages
for alleged statutory violations. See Guttman v.
Khalsa, 669 F.3d 1101, 1109 (10th Cir. 2012) (citing 42
U.S.C. § 12133 (incorporating by reference 29 U.S.C.
§ 794(a))). “Because these provisions involve the
same substantive standards, [courts] analyze them
together.” Miller ex rel. S.M. v. Bd. of Educ. Of
Albuquerque Pub. Sch., 565 F.3d 1232, 1245 (10th Cir.
2009) (citation omitted); see Kimber v. Thiokol
Corp., 196 F.3d 1092, 1102 (10th Cir. 1999)
(“Because the language of disability used in the ADA
mirrors that in the Rehabilitation Act, we look to cases
construing the Rehabilitation Act for guidance when faced
with an ADA challenge.”). With this framework in mind,
the court now turns to the Parties' arguments-first
considering standing before turning to the merits of other
issues raised by the Parties.
courts are courts of limited jurisdiction and, as such,
“are duty bound to examine facts and law in every
lawsuit before them to ensure that they possess subject
matter jurisdiction.” The Wilderness Soc. v. Kane
Cty., Utah, 632 F.3d 1162, 1179 n.3 (10th Cir. 2011)
(Gorsuch, J., concurring). Under Article III of the United
States Constitution, federal courts only have jurisdiction to
hear certain “cases” and
“controversies.” Susan B. Anthony List v.
Driehaus, 134 S.Ct. 2334, 2341 (2014). In addition to
any argument by the Parties, this court has an independent
obligation to satisfy itself that it has subject matter
jurisdiction. See Arbaugh v. Y & H Corp., 546
U.S. 500, 514 (2006); 1mage Software, Inc. v. Reynolds
& Reynolds Co., 459 F.3d 1044, 1048 (10th Cir.2006).
Indeed, standing cannot be assumed. See Colorado
Outfitters Ass'n, 823 F.3d at 543-44. Therefore,
while standing is not formally a “claim” that is
subject to summary disposition, this court addresses it first
to determine whether it may exercise subject matter
jurisdiction over this action.
satisfy Article III's case or controversy requirement,
Mr. Hamer must establish: (1) an injury in fact; (2) a
sufficient causal connection between the injury and the
conduct complained of; and (3) a likelihood of redressability
by a favorable decision. New Mexico v. Dep't of
Interior, 854 F.3d 1207, 1214-15 (10th Cir. 2017)
(citations and quotation marks omitted); accord Colo.
Outfitters Ass'n v. Hickenlooper, 823 F.3d 537,
551-52 (10th Cir. 2016) (emphasizing that “a disabled
individual claiming discrimination under the ADA” must
establish Article III standing to invoke federal court
jurisdiction (citations and internal quotation marks
certain circumstances, a plaintiff must also satisfy the
requirements of prudential standing-“judicially
self-imposed limits on the exercise of federal
jurisdiction.” The Wilderness Soc'y, 632
F.3d at 1168 (internal citations and quotations omitted);
cf. Niemi v. Lasshofer, 770 F.3d 1331, 1345 (10th
Cir. 2014) (explaining that prudential standing is not
jurisdictional and may be waived). To establish prudential
standing, a plaintiff must (1) assert her own rights, rather
than those belonging to third parties; (2) demonstrate that
her claim is not simply a “generalized
grievance;” and (3) show that her grievance falls
within the zone of interests protected or regulated by
statutes or constitutional guarantee invoked in the suit.
See Bd. of Cty. Comm'rs of Sweetwater Cty. v.
Geringer,297 F.3d 1108, 1112 (10th Cir. 2002)
(citations omitted). “Thus, prudential standing often
depends on whether the statutory provision upon which a claim
is based ‘properly can be understood as granting
persons in the plaintiff's position a right to judicial
relief.'” In re Thomas, 469 B.R. 915, 921
(B.A.P. 10th Cir. 2012) (quoting Warth v. Seldin,
422 U.S. 490, 500 (1975)). While most cases consider standing