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Hamer v. City of Trinidad

United States District Court, D. Colorado

December 1, 2017



          Nina Y. Wang, United States Magistrate Judge

         Magistrate 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, [1] 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.


         On 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].

         The 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].[2]

         For its 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].

         On October 5, 2017, the undersigned held oral argument, and took the Motions under advisement. [#65]. The Motions are now ripe for resolution.


         Summary 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)).

         “The 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).


         The following facts are drawn from the instant Motions, and are undisputed for the purposes of this analysis.[3] 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, [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 206:4-7].

         In 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].

         Plaintiff 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].

         In 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].

         Plaintiff 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].


         I. Statutory Framework

         Title 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).

         Both 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.

         II. Standing

         Federal 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.

         To 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 omitted)).

         Yet in 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 ...

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