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Michigan Paralyzed Veterans of America, Inc. v. Michigan Department of Transportation

United States District Court, E.D. Michigan, Southern Division

November 6, 2017

MICHIGAN PARALYZED VETERANS OF AMERICA, INC., et al., Plaintiffs,
v.
MICHIGAN DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          Mona K. Majzoub United States Magistrate Judge

          OPINION AND ORDER DENYING DEFENDANTS WASHTENAW COUNTY ROAD COMMISSION'S AND MICHIGAN DEPARTMENT OF TRANSPORTATION'S MOTIONS TO DISMISS (ECF NOS. 82, 85)

          Paul D. Borman United States District Judge

         Plaintiffs, the Michigan Paralyzed Veterans of America, Inc. (“MPVA”), Ann Arbor Center for Independent Living, Inc. (“AACIL”), National Federation of the Blind of Michigan (“NFBMI”), Carolyn Grawi, Angie Carlson, Linda Evans, James Briggs, Zach Damon, Jason Decamillis, A.S., a minor, through his next friend, Amy Shepard, Larry Keeler, Maurice Jordan, Michael Harris, Lu Anne Bullington, Christopher Cooley, Claire Abraham, and Lloyd Shelton (collectively Plaintiffs), bring this action against the Michigan Department of Transportation (“MDOT”), Kirk Steudle (now dismissed), in his official capacity as Director of MDOT, Washtenaw County Road Commission (“WCRC”), Pittsfield Charter Township, and Ypsilanti Charter Township (collectively Defendants), challenging the accessibility to persons with mobility and sight disabilities of certain sidewalks, curbs, and intersections allegedly under Defendants' control and supervision. Plaintiffs allege that their claims arise under: (1) Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132 (Title II focuses on disability discrimination in the provision of public services, while Title I focuses on the public employment sector and Title III on public accommodations) (“Title II of the ADA”), (2) Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a), (“§ 504 of the Rehab Act”) and (3) the Michigan Persons With Disabilities Civil Rights Act, Mich. Comp. Laws § 37.1301-02 (“the PWDCRA”) (this Count not brought against MDOT, (TAC ¶ 191.G).)

         MDOT now moves for dismissal of Plaintiff's ADA claim under Fed.R.Civ.P. 12(b)(1) based upon Eleventh Amendment Immunity and moves for dismissal of Plaintiffs' Rehab Act claim under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. WCRC moves for dismissal of Plaintiffs' ADA, Rehab Act, and PWDCRA claims under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. The Court held a hearing on September 26, 2017. For the reasons that follow, the Court DENIES MDOT's Motion and DENIES WCRC's Motion.[1]

         I. BACKGROUND

         Taking as true the allegations of Plaintiffs' Complaint for purposes of these motions, each of the Defendants, either alone or jointly with other Defendants, has denied Plaintiffs access to government “services, programs, activities, and facilities, ” by failing to provide barrier-free sidewalks and other street level pedestrian walkways running parallel to and/or crossing streets. (Third Amended Complaint (“TAC”) ¶¶ 1-2.) Plaintiffs allege that Defendants' failures to properly construct or alter facilities in the public right-of-way (“PROW”) has resulted in numerous access barriers that segregate Plaintiffs, who suffer from mobility and sight disabilities, from safely using sidewalks, crossing streets, accessing public transit, and reaching area businesses, including polling places, offices of the Secretary of State, the Michigan Department of Human Services, the University of Michigan Family Health and Practice Center, the Washtenaw County Mental Health Center, the Pittsfield Township Senior Center, the Washtenaw County Resource Center and Court Complex, Ypsilanti City Hall, Eastern Michigan University, the Ypsilanti District Library, the Salvation Army Food Bank, and many other government programs, services or activities. (TAC ¶¶ 12, 19P-Z.)

         The claims against Defendant MDOT are limited to a geographic area defined by the borders of Ypsilanti Charter Township, Pittsfield Charter Township, the City of Ann Arbor, the City of Ypsilanti, or the City of Saline. (TAC ¶ 4.) Within these geographic boundaries, the “services, programs, activities, or facilities” that Plaintiffs challenge are trunkline highways, including the sidewalks or other street level pedestrian walkways, pedestrian-transit stops, pedestrian crossings, curb cuts, curb ramps, and walks either crossing these state trunkline highway portions, or running parallel to the state trunkline highways located inside MDOT's right-of-way. (TAC ¶ 4.) This also includes bridges or overpasses for which MDOT has jurisdiction within these geographic boundaries. (Id.) Also included are those portions of walks, streets, roads, highways, or facilities that have been constructed or altered, by or on behalf of, or for the use of, MDOT after January 26, 1992, specifically Packard Road in Ann Arbor, from Platt to Route 23, the contract for which MDOT awarded the bid. (Id.)

         Plaintiffs' claims against Defendant WCRC are limited solely to WCRC's “services, programs, activities, or facilities” altered or located within the geographic boundaries of Ypsilanti Charter Township, Pittsfield Charter Township, the City of Ann Arbor, the City of Ypsilanti or the City of Saline. (TAC ¶ 4.A.) Within these geographic boundaries, the “services, programs, activities, or facilities” that Plaintiffs challenge are the streets, roads and highways over which WCRC has jurisdiction, including the sidewalks or other street level pedestrian walkways, pedestrian-transit stops, pedestrian crossings, curb cuts, curb ramps, and walks either crossing these streets, roads, or highway portions or running parallel to them or located inside a WCRC right-of-way. (Id.) Also included are those portions of these walks, streets, roads, highways or facilities which have been constructed or altered by, on behalf of, or for the use of WCRC after January 26, 1992. (Id.)

         Plaintiffs MPVA and AACIL are organizations that represent veterans and other persons with disabilities throughout Washtenaw County who have been discriminated against and subjected to hazardous conditions due to the access barriers at issue in this case. (TAC ¶ 13.) Plaintiff NFBMI is a state-wide non-profit membership organization with the mission of helping blind individual members lead richer, more meaningful lives, gain fuller independence, and achieve first-class citizenship. (TAC ¶ 19.B.) Each of these organizational Plaintiffs has employees, members, volunteers, consumers, or clients who suffer from a sight or mobility disability who live, work, or travel on the Defendants' streets, roads and highways and their adjacent walks and facilities who could bring this lawsuit individually, some of whom are individual Plaintiffs in this action. (TAC ¶¶ 19, 19.A-N.) The individual Plaintiffs, each of whom is a person with a mobility or sight disability, each lives, works, or frequently travels for business or pleasure throughout Washtenaw County, Michigan. (TAC ¶ 13.A.) Each Individual Plaintiff is a “qualified person with a disability” as defined under the ADA, the Rehab Act, and the PWDCRA, and has been denied access to one or more of the Defendants' facilities, programs, services, or activities and continues to suffer harm and will benefit from the relief sought in the TAC. (TAC ¶ 21-22.)

         II. STANDARD OF REVIEW

         When reviewing a motion to dismiss under Rule 12(b)(6) a court must “‘construe the complaint in the light most favorable to the plaintiff, accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.'” Handy-Clay v. City of Memphis, 695 F.3d 531, 538 (6th Cir. 2012) (quoting Directv Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). The court “need not accept as true a legal conclusion couched as a factual allegation, or an unwarranted factual inference.” Handy-Clay, 695 F.3d at 539 (internal quotation marks and citations omitted). See also Eidson v. State of Tenn. Dep't of Children's Servs., 510 F.3d 631, 634 (6th Cir. 2007) (“Conclusory allegations or legal conclusions masquerading as factual allegations will not suffice.”).

         In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the Supreme Court explained that “a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level . . . .” Id. at 555 (internal quotation marks and citations omitted) (alteration in original). “To state a valid claim, a complaint must contain either direct or inferential allegations respecting all the material elements to sustain recovery under some viable legal theory.” LULAC v. Bredesen, 500 F.3d 523, 527 (6th Cir. 2007).

         The Supreme Court clarified the concept of “plausibilty” in Ashcroft v. Iqbal, 556 U.S. 662 (2009), explaining that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 678.” Thus, “[t]o survive a motion to dismiss, a litigant must allege enough facts to make it plausible that the defendant bears legal liability. The facts cannot make it merely possible that the defendant is liable; they must make it plausible. Bare assertions of legal liability absent some corresponding facts are insufficient to state a claim.” Agema v. City of Allegan, 826 F.3d 326, 331 (6th Cir. 2016) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

         In ruling on a motion to dismiss, the Court may consider the complaint as well as (1) documents that are referenced in the plaintiff's complaint and that are central to plaintiff's claims, (2) matters of which a court may take judicial notice (3) documents that are a matter of public record, and (4) letters that constitute decisions of a governmental agency. Thomas v. Noder-Love, 621 F. App'x 825, 829 (6th Cir. 2015) (“Documents outside of the pleadings that may typically be incorporated without converting the motion to dismiss into a motion for summary judgment are public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies.”) (Internal quotation marks and citations omitted); Armengau v. Cline, 7 F. App'x 336, 344 (6th Cir. 2001) (“We have taken a liberal view of what matters fall within the pleadings for purposes of Rule 12(b)(6). If referred to in a complaint and central to the claim, documents attached to a motion to dismiss form part of the pleadings. . . . [C]ourts may also consider public records, matters of which a court may take judicial notice, and letter decisions of governmental agencies.”); Greenberg v. Life Ins. Co. Of Virginia, 177 F.3d 507, 514 (6th Cir. 1999) (finding that documents attached to a motion to dismiss that are referred to in the complaint and central to the claim are deemed to form a part of the pleadings). Where the claims rely on the existence of a written agreement, and plaintiff fails to attach the written instrument, “the defendant may introduce the pertinent exhibit, ” which is then considered part of the pleadings. QQC, Inc. v. Hewlett-Packard Co., 258 F.Supp.2d 718, 721 (E.D. Mich. 2003). “Otherwise, a plaintiff with a legally deficient claims could survive a motion to dismiss simply by failing to attach a dispositive document.” Weiner v. Klais and Co., Inc., 108 F.3d 86, 89 (6th Cir. 1997).

         III. ANALYSIS

         Plaintiffs' Complaint contains significant detail regarding the specific portions of the highways, roads, streets, and pedestrian walkways that are the subject of their TAC, and regarding the source of funds utilized to construct or alter them, as well as detail regarding the particular barriers to access that the Individual Plaintiffs have encountered. These allegations, taken as true at this pleading stage, sufficiently allege that each of the Defendants has been the recipient of federal funds and has actively either constructed, altered, failed to maintain, or otherwise adversely affected the accessibility of, “sidewalks, street crossings, street level transit stops, and certain other facilities, services, programs, and activities” that are under their “sole or joint jurisdiction.” (TAC ¶¶ 14-17.) Defendants argue that none of these allegations, even taken as true, allege either facility inaccessibility or service inaccessibility that rises to the level of a denial of meaningful access to a public service under the ADA, the Rehab Act, or the PWDCRA, and therefore do not state a claim upon which relief can be granted.

         The Court disagrees and finds that Plaintiffs have plausibly alleged claims under the ADA, the Rehab Act and the PWDCRA against these Defendants. Recently, in Mote v. City of Chelsea, 252 F.Supp.3d 642 (E.D. Mich. 2017), Judge David Lawson of this District addressed these same claims asserted by a different set of disabled plaintiffs, and analyzed these same arguments for dismissal made by MDOT and WCRC, and found plausible claims had been alleged under the ADA, the Rehab Act and the PWDCRA. This Court finds persuasive, and agrees with, Judge Lawson's reasoning and conclusions in Mote, as discussed at length below.

         A. The ADA, the Rehab Act, and the PWDCRA - Parallel Analytical Frameworks

         As most United States Circuit Courts of Appeal, including the Sixth Circuit have acknowledged, the ADA and the Rehab Act are materially indistinguishable except that the Rehab Act requires evidence of receipt of federal funding. “Our analysis of Rehabilitation Act claims ‘roughly parallels' ADA claims because the statutes contain similar language and are ‘quite similar in purpose and scope.'” Babcock v. Michigan, 812 F.3d 531, 540 (6th Cir. 2016) (quoting McPherson v. Mich. High Sch. Athletic Ass'n, Inc., 119 F.3d 453, 459-60 (6th Cir. 1997)). See also Ability Center of Greater Toledo v. City of Sandusky, 385 F.3d 901, 908 (6th Cir. 2004) (“[W]e have held that ‘[t]he analysis of claims under the [ADA] roughly parallels those brought under the Rehabilitation Act.”); Frame v. City of Arlington, 657 F.3d 215, 223-24 (5th Cir. 2011) (“The ADA and the Rehabilitation Act generally are interpreted in pari materia. Indeed, Congress has instructed courts that nothing in [the ADA] shall be construed to apply a lesser standard than the standards applied under title V [i.e., § 504] of the Rehabilitation Act . . . or the regulations issued by Federal agencies pursuant to such title.”) (Internal quotation marks and citation omitted) alterations in original). “In light of these similarities” the Sixth Circuit has recognized that “cases construing one statute are instructive in construing another.” Ability Center, 385 F.3d at 908. “The same can be said of the [PWDCRA]. It substantially mirrors the ADA, and resolution of a plaintiff's ADA claim will generally, though not always, resolve plaintiff's PWDCRA claim.” Mote, 252 F.Supp.3d at 649 (internal quotation marks and citation omitted).

         In Ability Center, the Sixth Circuit summarized the requirements of Title II of the ADA, and explained certain of its implementing regulations, as follows:

Title II of the ADA states 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.” § 202, 42 U.S.C. § 12132. “Public entity” includes “any state or local government” and “any department, agency, special purpose district, or other instrumentality of a State or States or local government.” § 201, 42 U.S.C. § 12131(1)(A) & (B). The Act grants the Attorney General authority to promulgate regulations to implement its provisions. § 204, 42 U.S.C. § 12134. Pursuant to § 204, the Attorney General adopted 28 C.F.R. § 35.151, which provides that alterations of facilities commenced after January 26, 1992, “by, on behalf of, or for the use of a public entity in a manner that affects or could affect the usability of the facility or part of the facility shall, to the maximum extent feasible, be altered in such manner that the altered portion of the facility is readily accessible and usable by individuals with disabilities.” Id. § 35.151(b). The regulation further specifies that alterations should meet certain accessibility standards, Id. § 35.151(c), and that altered streets and pedestrian walkways must contain curb ramps. Id. § 35.151(e). Section 35.151 is part of a broader regulatory scheme that aims to effectuate § 202 of the ADA. See 28 C.F.R. § 35.101. [Avaliable at https://www.ada.gov/regs2010/2010ADAStandards/2010ADAstandar ds.htm]. The scheme makes explicit that “no qualified individual with a disability shall, because a public entity's facilities are inaccessible to or unusable by individuals with disabilities, 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 public entity.” Id. § 35.149 (emphasis added).

385 F.3d at 903-04 (alteration added). “For new constructions or alterations commenced before September 15, 2010, public entities could choose to comply either with the original 1991 ADAAG [Americans with Disabilities Act Accessability Guidelines] standards or with another set of federal standards called the Uniform Federal Accessibility Standards (“UFAS”). 28 C.F.R. § 35.151(c)(1).” Kirola v. City and County of San Francisco, 860 F.3d 1164, 1177 (9th Cir. 2017) (alteration added). “New constructions or alterations commenced between September 15, 2010, and March 15, 2012, could comply with the 1991 ADAAG standards, with UFAS, or with the newly adopted 2004 ADAAG standards. Id. § 35.151(c)(2). And new constructions or alterations commenced after March 15, 2012, had to comply with the 2004 ADAAG standards. Id. § 35.151(c)(3).” Ibid. Section 35.151 requires, in relevant part, that “[n]ewly constructed or altered streets, roads, and highways must contain curb ramps or other sloped areas at any intersection having curbs or other barriers to entry from a street level pedestrian walkway, ” and that “[n]ewly constructed or altered street level pedestrian walkways must contain curb ramps or other sloped areas at intersections to streets, roads, or highways.” 28 C.F.R. 35.151(i).[2]

         28 C.F.R. § 35.150(a) provides that public entities must “operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” Kirola, 860 F.3d at 1182. “Meeting this standard does not ‘[n]ecessarily require a public entity to make each of its existing facilities accessible to and usable by individuals with disabilities.'” Ibid. (quoting § 35.150(a)(1)). “It also does not require structural changes to existing facilities, if ‘other methods, such as relocating services to different buildings, would be effective.'” Ibid. (quoting Cohen v. City of Culver City, 754 F.3d 690, 696 (9th Cir. 2014); 28 C.F.R. § 35.150(b)(1)). “The regulation requires only that, ‘when viewed in its entirety, ' the program at issue be accessible.” Ibid. at 1182-83.

         “Section 504 of the Rehabilitation Act prohibits disability discrimination by recipients of federal funding. Like Title II, § 504 provides that no qualified individual with a disability “shall, solely by reason of her or his disability, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Frame, 657 F.3d at 223. “Congress intended to make clear that the receipt of federal funds, even for the purpose of distribution to others, was sufficient to voluntarily waive Eleventh Amendment immunity from Rehabilitation Act claims against the departments or agencies that accepted the funds.” (MDOT's Mot. 33, PgID #2061.) MDOT does not contest that it has waived immunity for purposes of claims asserted under the Rehab Act. The Rehab Act defines a “program or activity” as “all of the operations of . . . a department, agency, special purpose district, or other instrumentality of a State or of a local government.” 29 U.S.C. § 794(b)(1)(A).

         Plaintiffs' TAC alleges that both MDOT and the WCRC have individually and or jointly undertaken to construct and/or alter numerous sidewalks and pedestrian walkways running parallel to and/or crossing various streets and highways without complying with the mandates of these regulations, resulting in an actionable denial of meaningful access under the ADA, the Rehab Act and the PWDCRA.

         B. MDOT'S ...


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