Ross v. City of Gatlinburg ( 2004 )

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0043n.06
Filed: October 28, 2004
Case No. 03-5916
IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES ROSS, MARCELLA BROGLIN ) ON APPEAL FROM THE UNITED
and JIM KIDWELL, on behalf of ) STATES DISTRICT COURT FOR
themselves and all others similarly
) THE EASTERN DISTRICT OF TENNESSEE
situated, )
)
Plaintiffs-Appellants. )
)
v. )
)
CITY OF GATLINBURG, TENNESSEE, )
)
Defendant-Appellee. )
Before: BATCHELDER and GIBBONS, Circuit Judges; STAFFORD, District Judge*
STAFFORD, District Judge. The plaintiffs appeal the summary judgment for the
defendant in this action brought by mobility-impaired individuals who allege that the
defendant’s failure to provide access to public facilities and services violates Title II of
the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). We affirm.
I.
Plaintiffs, James Ross, Marcella Broglin and Jim Kidwell, (collectively “Plaintiffs”),
* The Honorable William Stafford, United States District Judge for the Northern
District of Florida, sitting by designation.
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filed a class action complaint against the City of Gatlinburg, Tennessee, (the “City”), on
December 16, 2002. As “persons with disabilities who are mobility impaired, or who
regularly use wheelchairs for mobility [and] are unable to lift themselves from their
wheelchairs without assistance,” compl. at ¶ 1, Plaintiffs alleged that they were
aggrieved by the City’s lack of accessible parking, lack of accessible bathrooms, failure
to keep sidewalks clear, inadequate procedures for filing grievances, failure to provide
program access, failure to have an adequate transition plan, and lack of curb cuts at
some intersections. Plaintiffs also alleged that the City failed to self-evaluate their
facilities, policies, and services as required under the RA, failed to comply with the ADA
and the RA when it built new structures or altered existing structures, and failed to make
reasonable modifications to its policies and procedures in order to give meaning to the
ADA.
The City moved for summary judgment, arguing that Plaintiffs lacked standing to
bring an action against the City because they failed to allege or identify any specific
injury. The City also argued that Congress did not authorize a private cause of action
against a municipality for failure to develop or implement a self-evaluation or transition
plan under the ADA.
In response to the City’s motion for summary judgment, each Plaintiff provided a
one-page affidavit describing in very general terms his or her grievance against the City.
None of the Plaintiffs identified any particular street, sidewalk, intersection, parking lot,
public building, or facility that purportedly does not comply with the ADA. Neither did
they specify any City service, program, or activity from which they were excluded or cite
any particular incident on any particular date when they suffered discrimination as a
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result of the City’s provision or non-provision of services.
Agreeing with both of the City’s arguments, the district court granted the City’s
motion for summary judgment and dismissed the case. Plaintiffs soon after filed this
appeal, in which they raise two issues: (1) whether the district court erred in finding that
Plaintiffs lack standing to bring an action against the City because they failed to produce
evidence of any specific injury; and (2) whether the district court erred in finding that
Plaintiffs cannot bring a private cause of action for the City’s failure to develop or
implement a self-evaluation or transition plan under the ADA.
II.
This court reviews de novo the district court’s grant of summary judgment.
Petrey v. City of Toledo, 246 F.3d 548, 553 (6th Cir. 2001). “Rule 56(c) mandates the
entry of summary judgment, after adequate time for discovery and upon motion, against
a party who fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
III.
To establish standing to bring suit, a plaintiff must show that (1) he or she has
suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the
challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,
that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). As explained by the Supreme
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Court:
Since [the elements required to establish standing] are not
mere pleading requirements but rather an indispensable part
of the plaintiff's case, each element must be supported in the
same way as any other matter on which the plaintiff bears
the burden of proof, i.e., with the manner and degree of
evidence required at the successive stages of the
litigation....At the pleading stage, general factual allegations
of injury resulting from the defendant's conduct may suffice,
for on a motion to dismiss we ‘presum[e] that general
allegations embrace those specific facts that are necessary
to support the claim.’...In response to a summary judgment
motion, however, the plaintiff can no longer rest on such
‘mere allegations,’ but must ‘set forth’ by affidavit or other
evidence ‘specific facts,’...which for purposes of the
summary judgment motion will be taken to be true.
Lujan, 504 U.S. at 561 (citations omitted).
Here, in response to the City’s motion for summary judgment, Plaintiffs failed to
provide ANY evidence of “concrete and particularized, actual or imminent” injuries
resulting from the City’s actions or inactions. Absent such evidence, Plaintiffs failed to
establish a genuine issue of material fact with regard to an essential element of their
case against the City. Accordingly, we find that the district court was correct in granting
the City’s motion for summary judgment.
IV.
Because Plaintiffs have not established standing to pursue their claims against
the City, it is not necessary to reach the question of whether there is a private cause of
action for the City’s alleged failure to develop or implement a self-evaluation or
transition plan under the ADA. We note, however, that this issue has been decided in
the negative in a recent published decision of this court. See Ability Center of Greater
Toledo v. City of Sandusky, F.3d (6th Cir. 2004) (holding that there is no private
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right of action to enforce the self-evaluation and transition plan requirements set forth in
the regulations accompanying Title II).
V.
For the foregoing reasons, we AFFIRM the district court’s entry of summary
judgment in favor of the City.