United States District Court, E.D. Michigan, Southern Division
ORDER GRANTING DEFENDANT'S MOTION TO SET ASIDE
ENTRY OF DEFAULT (DOC. 22), DENYING PLAINTIFF'S MOTION
FOR DEFAULT JUDGMENT AS MOOT (DOC. 19), AND ORDER OF
CARAM STEEH UNITED STATES DISTRICT JUDGE
se plaintiff Hadel Toma filed this lawsuit alleging that
he was denied his request to bring his emotional support dog
into traffic court in alleged violation of the Americans with
Disabilities Act (“ADA”). On October 25, 2018,
the clerk filed an entry of default. (Doc. 17). Now before
the court is defendant 38th District Court's motion to
set aside the entry of default, and to dismiss this action.
Also pending is plaintiff's motion for default judgment
(Doc. 19). For the reasons set forth below, defendant's
motion to set aside the Clerk's entry of default shall be
granted, and defendant's request to dismiss this lawsuit
shall be granted, and plaintiff's motion for default
judgment shall be denied as moot.
United States Marshal served defendant 38th District Court by
mailing by certified mail a copy of the summons, USM 285
form, and copy of the Complaint, to the street address
provided by plaintiff. The certified mail was signed by the
court officer assigned to pick up mail, not by anyone
authorized to accept service of process. Plaintiff's
statement of claim is set forth in its entirety below:
I was denied hearing [a]id services by the Magistrate who
laughed at me screaming there's “nothing wrong with
you” and who would not allow my emotional support dog
in the court. This happened at my traffic court case in 2016
of May 2 and April as well. Magistrate Karen Hayette did this
as she was supposedly filling in for the Disability
Coordinator. She humiliated me and my rights and it was only
when [I] made a big stink in the courtroom were they forced
to provide a microphone, a person disabled should never have
to go through this. I told Magistrate Hayette I have vision
problems as well and should my witness come and sign in,
please inform the Judge and she did not.
at PgID 5).
service of process is improper, the entry of default is void,
and the court must set it aside. O.J. Distrib., Inc. v.
Hornell Brewing Co., 340 F.3d 345, 353 (6th Cir. 2003).
Here, the Marshal did not effectuate service in compliance
with Federal Rule of Civil Procedure 4(j)(2) or M.C.R.
2.105(G) when he mailed the summons and complaint to
defendant's local street address, rather than to an
office of the court, namely a court administrator, court
clerk, or chief judge, and was not separately mailed by
registered mail to that officer at his or her office.
Accordingly, the entry of default was improvidently granted,
and defendant's motion to set aside the default must be
Subject Matter Jurisdiction
the court considered defendant's argument that the
complaint should be dismissed because it is entitled to
Eleventh Amendment sovereign immunity. Defendant admits that
if plaintiff states a claim under the ADA, the doctrine of
sovereign immunity does not apply. For the reasons set forth
below, plaintiff has not alleged a viable disability
discrimination claim under the ADA; thus, defendant is
entitled to Eleventh Amendment immunity, and this action must
alleges a claim for denial of access to the court on the
basis of his disability in alleged violation of Title I of
the ADA. Title II of the ADA, 42 U.S.C. § 12132, states
in broad language 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.” Under
Title II of the ADA, Congress has abrogated a State's
Eleventh Amendment immunity in certain instances, including
where “an individual assert[s] a claim against a state
or its employees for violation of the right of access to the
courts.” Bedford v. Michigan, 722 Fed.Appx.
515, 519 (2018) (citing Tennessee v. Lane, 541 U.S.
509, 533-54 (2004)).
argues that plaintiff cannot proceed under the ADA because
that statute does not permit an individual to bring an
emotional support dog into court, and the court accommodated
plaintiff's request pertaining to his hearing disability
by providing him with a microphone. Defendant is correct that
the regulations governing ADA claims specifically exempt
emotional support dogs as service animals under the ADA.
“An animal that simply provides comfort or reassurance
is equivalent to a household pet, and does not qualify as a
service animal under the ADA.” Rose v.
Springfield-Green Cnty. Health Dep't., 668 F.Supp.2d
1206, 1215 (W.D. Mo. 2009). The Seventh Circuit had observed
that emotional support animals are not considered service
animals which fall under Title II's mandate. Sykes v.
Cook Cnty. Ct. Prob. Div., 837 F.3d 736, 740 (7th Cir.
2016). The ADA's regulations define a “service
animal” as “any dog that is individually trained
to do work or perform tasks for the benefit of an individual
with a disability.” 28 C.F.R. § 36.104. The
regulation further provides the work or tasks performed by
the dog “must be directly related to the
individual's disability, ” and “the provision
of emotional support, well-being, comfort, or companionship
do[es] not constitute work or tasks for the purposes of this
definition.” Id. Thus, plaintiff's claim
that defendant failed to reasonably accommodate his
disability by prohibiting him from bringing his emotional
support dog into court shall be dismissed.
neither plaintiff's Complaint nor his response to
defendant's motion to set aside default alleges that he
requested any other accommodation besides the emotional
support dog, or that his access to the court to present his
case was hindered by his alleged hearing or alleged visual
disability. In order to state a claim under Title II of the
ADA, a plaintiff must show that (1) he is a qualified
individual with a disability; (2) he was excluded from
participation in a public entity's services, programs or
activities or was otherwise discriminated against; and (3)
that such exclusion or discrimination was by reason of his
disability. Anderson v. City of Blue Ash, 798 F.3d
338, 357 (6th Cir. 2015). In ruling on defendant's
motion, the court is mindful that pro se litigants
are held to a less stringent standard than an attorney, and
their papers shall be liberally construed. Haines v.
Kerner, 404 U.S. 519, 520 (1972); Hahn v. Star
Bank, 190 F.3d 708, 715 (6th Cir. 1999). Even under this
liberal standard, plaintiff's ...