BOYER v. CITY OF SIOUX FALLS, (Bankr.D.S.D. 2000)

HELEN BOYER, Plaintiff, v. CITY OF SIOUX FALLS, a Municipal Corporation, Defendant. Jerome Gebur, Plaintiff, v. City of Sioux Falls, a Municipal Corporation, Defendant.

CIV. 97-4194, 97-4220United States Bankruptcy Court, D. South Dakota, Southern Division
May 3, 2000

Rollyn Samp, Samp Law Office, Sioux Falls, SD; John E. Burke, Sioux Falls, SD; Bret Chancelor Merkle, Merkle Law Firm, Sioux Falls, SD Attorneys for Plaintiff.

Lon Kouri, May, Johnson, Doyle Becker, Sioux Falls, SD Attorney for Defendant.

MEMORANDUM OPINION AND ORDER
MARK F. MARSHALL, U.S. Magistrate Judge.

[¶ 1] This matter came before the court for hearing on April 17, 2000, on the Plaintiffs’ Motion for Partial Summary Judgment (Doc. 57) and Defendant’s Motion for Summary Judgment (Doc. 62). The Plaintiffs appeared by their counsel Rollyn Samp, while the Defendant appeared through its counsel of record, Lon J. Kouri. The court has carefully reviewed the parties’ motions, briefs, and affidavits, and listened to the arguments of counsel, as well as reviewed the entire file herein. Based upon that review the court hereby enters the following Memorandum Opinion and Order.

INTRODUCTION AND BACKGROUND
[¶ 2] Plaintiff Helen Boyer (“Boyer”) allegedly suffers from disabilities which fall within the scope of the Americans with Disabilities Act (“ADA”). In her complaint, Boyer alleges she attempted to attend her grandchild’s soccer games at Old Yankton Trails Soccer Fields, a facility owned by the City of Sioux Falls (“City”), but was unable to travel from her vehicle in the parking lot to the soccer fields because there are no walkways or other pathways to navigate the terrain with a wheelchair. When the soccer fields were constructed, wheelchair accessible pathways were not provided.

[¶ 3] In his complaint, Plaintiff Jerome Gebur (“Gebur”) states claims similar to Boyer. Gebur claims he suffers from disabilities which fall within the scope of the Americans with Disabilities Act. Gebur, as does Boyer, alleges he attempted, but was unable, to attend his children’s soccer games at Old Yankton Trails Soccer Fields while at that time being confined to a wheelchair. Boyer further alleges that as he was being pushed in his wheelchair on the grass, due to a lack of wheelchair accessible pathways, his wheelchair hit a gopher hole and as a result he fell and injured his knee, and therefore asserts a negligence claim against Defendant.

DISCUSSION Standard of Review
[¶ 4] Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be entered “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Id. In ruling on a motion for summary judgment, the Court is required to view the facts in the light most favorable to the non-moving party and must give that party the benefit of all reasonable inferences to be drawn from the underlying facts. AgriStor Leasing v. Farrow, 826 F.2d 732, 734 (8th Cir. 1987). The moving party bears the burden of showing both the absence of a genuine issue of material fact and its entitlement to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Fed.R.Civ.P. 56(c).

[¶ 5] Once the moving party has met its burden, the non-moving party may not rest on the allegations of its pleadings but must set forth specific facts, by affidavit of other evidence, showing that a genuine issue of material fact exists. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 257; City of Mt. Pleasant v. Associated Elec. Coop., Inc., 838 F.2d 268, 273-74 (8th Cir. 1988). 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).

[¶ 6] The Defendant has moved for summary judgment on a variety of grounds. Each of those grounds will be discussed separately.

Eleventh Amendment Immunity and the Plaintiffs’ ADA Claims
[¶ 7] The Defendant contends, based upon the Eleventh Amendment to the United States Constitution, that this court lacks subject matter jurisdiction over the Plaintiffs’ complaints. The Eighth Circuit Court of Appeals has recently discussed the ADA as it relates to the Eleventh Amendment:

The Eleventh Amendment grants a state immunity from suits brought in federal court by its own citizens as well as citizens of another state. See US Const. amend. XI; Edelman v. Jordan, 415 U.S. 651, 662-63, 94 SCt 1347, 39 L.Ed.2d 662 (1974). Congress can, however, abrogate this immunity or a state can waive it. See Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 SCt 3142, 87 L.Ed.2d 171 (1985). It is undisputed that Arkansas has not consented to this suit. Alsbrook contends, however, that Congress abrogated the State’s immunity when it passed the ADA.

Congress has a limited power to abrogate Eleventh Amendment immunity. See Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 SCt 2666, 49 L.Ed.2d 614 (1976). But because the Eleventh Amendment “implicates the fundamental constitutional balance between the Federal Government and the States,” the Supreme Court has cautioned that courts should exercise care before finding abrogation. Atascadero, 473 U.S. at 238, 105 SCt 3142; see also Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 99, 104 SCt 900, 79 L.Ed.2d 67 (1984) (“Our reluctance to infer that a State’s immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system.”). Cf. Alden v. Maine, ___ U.S. ___, 119 SCt 2240, 2247-48, ___ L.Ed.2d ___ (1999) (“[states’] immunity from private suits central to sovereign dignity”).

Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 (8th Cir. 1999) (en banc).

[¶ 8] The Court of Appeals then concluded that:

In sum, it cannot be said that in applying Title II of the ADA to the states, Congress has acted to enforce equal protection guarantees for the disabled as they have been defined by the Supreme Court. We find therefore, that the extension of Title II of the ADA to the states was not a proper exercise of Congress’s power under Section 5 of the Fourteenth Amendment. Consequently, there is no valid abrogation of Arkansas’ Eleventh Amendment immunity from private suit in federal court and the district court lacked subject matter jurisdiction over the ADA claim.

Id.,184 F.3d at 1010. See also DeBose v. State of Nebraska, 186 F.3d 1087, 1088 (8th Cir. 1999.)

[¶ 9] This conclusion, although binding upon the court, does not resolve the issue of Eleventh Amendment immunity. While Congress did not abrogate that immunity, it remains to be seen whether the Defendant enjoys Eleventh Amendment immunity at all. The court concludes that the Defendant does not have the benefit of Eleventh Amendment immunity.

By its terms, the protection afforded by [the Eleventh] Amendment is only available to `one of the United States.’ It is true, of course, that some agencies exercising state power have been permitted to invoke the Amendment in order to protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself. But the Court has consistently refused to construe the Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a `slice of state power.’

Hess v. Port Authority Trans-Hudson Corp., 513 U.S. 30, 43, 115 SCt 394, 402 (1994) quoting Lake County Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 400-401; 99 SCt 1171, 1177, 59 L.Ed.2d 401 (1979) (footnotes omitted).

[¶ 10] In this case it appears that the City of Sioux Falls may participate in the public entity pool for liability created by SDCL 3-22-1, also known as the PEPL fund. The public entity pool is funded in part by the State of South Dakota, SDCL 3-22-13; attached to the Bureau of Administration for reporting purposes, SDCL 3-22-1; and was initially governed by a board of control consisting of five members, two of whom represent the State of South Dakota, SDCL 3-22-3. The board was subsequently abolished and its functions transferred to the Bureau of Administration, a state agency, in 1995. SL 1995 ch. 323. While the PEPL fund has many characteristics that give it a “state-like” appearance, nothing contained in the chapter creating the fund was intended to expand any immunity existing under the federal constitution. SDCL 3-22-17.

[¶ 11] Moreover, “[e]xtension of Eleventh Amendment immunity to local political subdivisions that participate in a state’s voluntary indemnification program would eliminate the need for insurance protection altogether and create a condition whereby government officials, as well as local political subdivisions, would be “immune from suit by virtue of the state initiating the insurance protection.” Brickey v. County of Smyth, Virginia, 944 F. Supp. 1310, 1314 (W.D. Vir. 1996) (Citations omitted.). Thus, the court finds that it has jurisdiction to entertain the Plaintiffs’ claims under the ADA.

Whether Plaintiff Gebur is Disabled within the Meaning of the ADA
[¶ 12] Gebur’s complaint alleges that “[i[n April, 1996, Plaintiff was recovering from a severe work related injury and was mobility impaired.” It is undisputed that Plaintiff Gebur has recovered from the affliction that prevented him from being ambulatory at the time he sought access to the Defendant’s soccer fields. The legal question is whether Gebur’s temporary disability “substantially limited” his major life activity of walking.

[¶ 13] As the Eighth Circuit Court of Appeals has noted “[s]tatutory disability requires permanent or long-term limitations. 29 CFR app. § 1630.2(j) (`temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities).” Heintzelman v. Runyon, 120 F.3d 143, 145 (8th Cir. 1997) quoting McDonald v. Pennsylvania, Dep’t of Public Welfare, 62 F.3d 92, 96-97 (3d Cir. 1995) (recuperation after abdominal surgery not disability) Evans v. City of Dallas, 861 F.2d 846, 852-53 (5th Cir. 1988) (knee injury that required surgery not disability). Simply stated, an “asserted inability to work while recovering from surgery is simply not evidence of a permanent impairment.” Heintzelman v. Runyon, 120 F.3d at 145.

[¶ 14] The affliction from which Gebur was suffering at the time of his fall is not of record. However it is clear that Gebur has recovered from that affliction, whatever it may have been. Gebur has not shown that he has a disability that substantially limited his life activity of walking and the court will grant Defendant’s motion for summary judgment on Gebur’s ADA claim.

Plaintiff Gebur’s State Law Claims
[¶ 15] This Court is granted supplemental jurisdiction over state law claims which form part of the same case or controversy as claims over which this Court has original jurisdiction. 28 U.S.C. § 1367. However, this Court also has discretion to dismiss state law claims over which it has only supplemental jurisdiction if the Court has dismissed all claims over which the Court had original jurisdiction. 28 U.S.C. § 1367(c)(3). A dismissal will not affect any period of limitation for any state law claims in view of the preemptive effect of 28 U.S.C. § 1367(d). Accordingly, the Court dismisses Plaintiff Gebur’s state law claims without prejudice.

Whether the Soccer Fields Satisfy the ADA Presents a Genuine Question of Material Fact
[¶ 16] Whether the soccer fields at Tomar and Yankton Trails parks in fact satisfy the program accessibility requirement of the ADA is the principal topic of the cross motions for summary judgment and is also the subject of significant dispute. Defendant, relying in part, upon Tyler v. City of Manhattan, 857 F. Supp. 800, 813
(D.Kan.), aff’d 118 F.3d 1400 (8th Cir. 1994), contends that the soccer program “when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.” The primary fact upon which Defendant bases that assertion is that soccer referees have the discretion to move games from fields that are not accessible to those with disabilities to fields that are accessible upon request, and that the Defendant is making on-going revisions to the fields to attain full compliance.

[¶ 17] Plaintiff Boyer counters that even if such a contention is accurate, such an option has not been generally made known to those persons who attend the soccer games. Additionally, Plaintiff Boyer relies heavily upon a letter dated January 14, 2000, from the National Park Service of the United States Department of the Interior which notes a number of specific instances in which the Defendant’s parks were not in compliance with the ADA, including the access provided to the Defendant’s soccer fields. The January 14th letter is persuasive evidence not only that the soccer fields may fall short of the access required by the ADA, but also that the Defendant may have misrepresented the accessibility of its soccer fields, as well.

[¶ 18] Based upon the evidence before it the court concludes that neither party has sustained its burden on summary judgment of showing an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Whether the soccer fields and the entire program, when viewed in their entirety, are readily accessible to and usable by individuals with disabilities is ultimately a mixed question of law and fact where issues of fact predominate. Accordingly, the parties’ respective motions for summary judgment on this issue are denied.

Retroactivity and the ADA
[¶ 19] The Defendant cites a number of cases for the proposition that the ADA is not retroactive. See e.g., Holbrook v. City of Alpharetta, Ga., 112 F.3d 1522, 1529 (11th Cir. 1997); Martin v. Southwestern Virginia Gas Co., 135 F.3d 307, 309 (4th Cir. 1998) Graehling v. Village of Lombard, Ill., 58 F.3d 295, 296 (7th Cir. 1995); Heise v. Genuine Parts Co., 900 F. Supp. 1137, 1152_ (D.Minn. 1995). These cases are not directly on point.

[¶ 20] In their Revised Statement of Undisputed Material Facts the Defendant alleges a number of facts that have occurred after the effective date of the ADA. For example, the Defendant noted that “[i]n its ADA compliance activities, the City has worked with andcontinues to work closely with advocacy groups and representatives of the disabled community to achieve satisfactory outcomes.” Moreover, “[s]ince 1992, the Mayor’s Committee has participated in site walkthroughs and evaluations, policy review, and facilitated public meetings regarding City ADA compliance activities and program accessibility concerns” and that “[s]ince 1992, the Mayor’s Committee has regularly provided recommendations to the City regarding programs, existing facilities, and new construction
to improve accessibility.” Finally, the program whereby soccer games may be assigned to one of the fields that is allegedly accessible was adopted after the effective date of the ADA.

[¶ 21] Even if the ADA is not retroactive as the Defendant asserts, the court finds that since the effective date of the ADA the Defendant has engaged in various programming activities, including new construction, that currently subjects the Defendant to the requirements of the ADA. Accordingly, Defendant’s motion for summary judgment is hereby denied.

Compensatory Damages are Available under Title II of the ADA upon a Proper Showing of Intent
[¶ 22] Defendant suggests that compensatory damages are not available for a violation of Title II of the ADA. The court finds that such a contention is misstated. Instead, while there appears to be a split of authority, the majority rule is that where one makes a claim under Title II of the ADA for monetary damages, the plaintiff must show intentional discrimination. Memmer v. Marin County Courts, 169 F.3d 630, 633 (9th Cir. 1999); Ferguson v. City of Phoenix, 157 F.3d 668, 674-75 (9th Cir. 1998); Bartlett v. New York State Board of Law Examiners, 156 F.3d 321, 331 (2d Cir. 1998), petition for cert. filed, (US Feb. 8, 1999) (No. 98-1285); Tyler v. City of Manhattan, 118 F.3d 1400 (10th Cir. 1997); Wood v. President and Trustees of Spring Hill College, 978 F.2d 1214 (11th Cir. 1992); Carter v. Orleans Parish Pub. Schs., 725 F.2d 261 (5th Cir. 1984).

[¶ 23] Although Ferguson left unresolved the question of whether intentional discrimination can be established only by proving discriminatory animus, or whether deliberate indifference is sufficient, see, e.g., Bartlett, 156 F.3d at 331 (holding that deliberate indifference is sufficient), Ferguson made clear that a plaintiff at least must establish deliberate indifference to recover monetary damages under Title II of the ADA. See Ferguson, 157 F.3d at 675;. Memmer, 169 F.3d at 633. Thus, it is clear that compensatory damages are available under Title II of the ADA upon the requisite showing of discriminatory intent. The Defendant’s motion does not allege that Plaintiffs cannot make the requisite showing of discriminatory intent as a matter of law. Accordingly, Defendant’s motion for summary judgment on Plaintiff’s claim for compensatory damages is denied.

The Defendant’s Sovereign Immunity Bars any Claim for Punitive Damages
[¶ 24] The Eighth Circuit Court of Appeals has not addressed whether punitive damages are available under Title II of the ADA and § 504, but the Sixth Circuit has ruled they are not. Gorman v. Bartch, 152 F.3d 907, 911 (8th Cir. 1998) citing Moreno v. Consolidated Rail Corp., 99 F.3d 782, 792 (6th Cir. 1996) (en banc) See also Johnson v. City of Saline, 151 F.3d 564, 573 (6th Cir. 1998). Based upon the decision of the Sixth Circuit Court of Appeals it appears that punitive damages are not available for the alleged violation of Title II of the ADA.

[¶ 25] However, even if punitive damages were available under Title II, the court concludes that such damages could not be recovered from the Defendant in this action. The South Dakota legislature has waived the sovereign immunity formerly enjoyed by public entities through the purchase of liability insurance. SDCL 21-32A-1 provides:

To the extent that any public entity, other than the state, participates in a risk sharing pool or purchases liability insurance and to the extent that coverage is afforded thereunder, the public entity shall be deemed to have waived the common law doctrine of sovereign immunity and shall be deemed to have consented to suit in the same manner that any other party may be sued. The waiver contained in this section and §§ 21-32A-2 and 21-32A-3 is subject to the provisions of § 3-22-17.

The term “public entities” includes municipalities like the Defendant in this action. SDCL 3-22-2(12) defines public entities as “the State of South Dakota, all of its branches and agencies, boards and commissions. The term also includes all public entities established by law exercising any part of the sovereign power of the state, including, but not limited to municipalities, counties, school districts, townships, water districts established pursuant to Title 46A, sewer, sanitary, and conservation districts, and all other legal entities that public entities are authorized by law to establish.”

[¶ 26] The statutory waiver of sovereign immunity is not unlimited. For example, SDCL 3-22-7 excludes punitive damages from those for which the PEPL fund may be liable. Moreover, the general rule throughout the United States is that municipal corporations are not liable for punitive damages. See e.g., Anno., Recovery of Exemplary or Punitive Damages from Municipal Corporation, 1 ALR4th 448 (1980). Accordingly, the Defendant’s motion for summary judgment on Plaintiff’s claim for punitive damages is granted.

CONCLUSION
[¶ 27] For all of the reasons stated in this Memorandum Opinion and Order it is hereby ordered that the Defendant’s Motion for Summary Judgment (Doc. 62) is GRANTED in part and DENIED in part; and it is further ordered that Plaintiffs’ Motion for Partial Summary Judgment (Doc. 57) is DENIED.