Lewis v. Burger King , 361 F. App'x 937 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
January 21, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
NANCY LEWIS,
Plaintiff-Appellant,
v. No. 09-2191
(D.C. No. 6:09-CV-00703-DJS-RHS)
BURGER KING, Llano Street, Santa (D. N.M.)
Fe,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.
Nancy Lewis, proceeding pro se, appeals from an order dismissing her
claims against Burger King under Title III of the Americans with Disabilities Act
(“ADA”), which proscribes discrimination against the disabled in public
accommodations, 42 U.S.C. § 12182(a). Exercising jurisdiction pursuant to
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further
proceedings.
Ms. Lewis claims to be “disabled by chronic sciatica which makes walking
difficult.” R. at 3. She therefore prefers to be accompanied by her dog, which,
she claims, “walks ahead of [her] on a taut leash” and “alert[s] [Ms. Lewis] to
obstacles in her path.” Id. In January 2009, Ms. Lewis brought her dog into the
defendant Burger King restaurant on Llano Street in Santa Fe, New Mexico.
After a short time however, and allegedly due to complaints from another
customer, employees asked her to remove her dog. In July 2009, Ms. Lewis filed
this lawsuit against Burger King based on this incident, claiming that her eviction
from the restaurant violated the public accommodation provision of the ADA.
This was not the first such encounter between Ms. Lewis and a Burger King
restaurant. In March 2009, she filed a nearly-identical pro se lawsuit stemming
from an incident at a Burger King restaurant in Espanola, New Mexico (the
“Espanola case”). In the Espanola case, as here, Ms. Lewis sought monetary
damages as well as injunctive relief under Title III of the ADA. In that case, in
addition to her own claims, Ms. Lewis attempted to bring claims on behalf of her
dog. The district court dismissed the Espanola case with prejudice under
28 U.S.C. § 1915(e)(2), concluding that Ms. Lewis had failed to state a claim on
her own behalf, and that her dog, an animal, lacked standing to sue.
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Ms. Lewis appealed that decision to this court, and in an Order and
Judgment dated September 4, 2009, we vacated the district court’s judgment and
remanded for further proceedings. More specifically, this court affirmed the
dismissal of the claims on behalf of Ms. Lewis’s dog, but concluded that the
district court should have afforded Ms. Lewis an opportunity to amend her
complaint as to her own claims. Although she had failed to describe her
disability or the precise assistance provided by her dog, we concluded that
dismissal under § 1915(e)(2) was unwarranted because these deficiencies in
Ms. Lewis’s complaint were fixable. We therefore concluded it would not have
been futile to grant Ms. Lewis an amendment and that the district court erred in
dismissing her claims with prejudice. Accordingly, we vacated its dismissal and
instructed the district court to enter an order of dismissal without prejudice.
Unfortunately, our decision in the Espanola case was too late to guide the
district court in this action. On August 6, 2009, it dismissed Ms. Lewis’s claims
for injunctive relief based on res judicata, noting that the identical claims in the
Espanola case had been dismissed with prejudice. 1 This of course was premature.
1
With respect to Ms. Lewis’s claim for money damages, however, the
district court correctly reasoned that monetary relief is not available to private
litigants under Title III of the ADA. See, e.g., Powell v. Nat’l Bd. of Med.
Exam’rs, 364 F.3d 79, 86 (2nd Cir. 2004) (explaining that “[a] private individual
may only obtain injunctive relief for violations of a right granted under Title
III”). Because that portion of its decision was supported by proper grounds and
was not dependent on res judicata, we hereby affirm the district court’s dismissal
with prejudice of Ms. Lewis’s claim for money damages.
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Less than a month later, we vacated that very dismissal in an order that all but
invited Ms. Lewis to file an amended complaint. As such, the Espanola case did
not end “with a judgment on the merits,” thereby precluding application of
res judicata. See In re Mersmann, 505 F.3d 1033, 1049 (10th Cir. 2007).
We therefore AFFIRM the dismissal of Ms. Lewis’s claim for monetary
relief; REVERSE the dismissal of her claim for injunctive and declaratory relief;
and REMAND for further proceedings consistent with this decision.
Entered for the Court
John C. Porfilio
Circuit Judge
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