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Mowrey v. Adobe Deli, LLC

United States District Court, D. New Mexico

December 17, 2019



         THIS MATTER comes before the Court upon Defendants' Motion to Dismiss, filed October 29, 2019 (Doc. 16). Having reviewed the parties' pleadings and the applicable law, the Court finds that Defendants' motion is well-taken. Accordingly, the motion is GRANTED.


         Plaintiff Thomas Mowrey, is proceeding pro se. He is confined to a wheelchair and brings this case under Title III of the Americans with Disabilities Act of 1990 (“ADA”) and the Equal Protection clause of the Fourteenth Amendment of the United States Constitution. He is suing the Adobe Deli in Deming, New Mexico and its owners, Defendants Mr. and Mrs. Jacobsen, for noncompliance with the ADA because there was no handicap parking or signage when he visited the deli on Easter Sunday in 2018. Plaintiff seeks a “civil penalty” award of $55, 000 and punitive damages in the amount of $1, 500, 000.

         On November 18, 2018, Plaintiff sent a “Cease and Desist” letter to Adobe Deli, claiming that it was in violation of ADA regulations and that Defendant was in violation of Plaintiff's legal rights. Doc. 16-2. Defendants' attorney responded to the letter, stating that Defendants were prepared to make any reasonable accommodations to make the restaurant more accessible for disabled patrons but that Mr. Mowrey's letter did not specify what they had failed to do or what they had done wrong. Doc. 16-3. Plaintiff responded to Defendants' letter, claiming that he had tried to enjoy Defendants' “client services on [sic] several times with no success and turned away not being able to enjoy as others would be allowed to do.” Doc. 16-4. In that letter, Plaintiff gave Defendants the “heads up” that he has served many (“up to 2k”) cease and desist letters that are being processed for federal lawsuits and that he looked forward to settlement. Defense counsel wrote back to Plaintiff, asking yet again to be advised about the specific violations that they allegedly committed and the “services” that Plaintiff claimed he was unable to enjoy. Doc. 16-5.


         In considering (reviewing) a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court accepts as true all well-pleaded factual allegations in a complaint and views these allegations in the light most favorable to the plaintiff. Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th Cir. 2013) (citation and internal quotation omitted). To survive dismissal, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007) (internal quotation omitted)). “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Defendants attach an affidavit, correspondence and pictures as exhibits to the motion. In general, a motion to dismiss should be converted to a summary judgment motion if a party submits and the district court considers, materials outside the pleadings. Rule 12(d); Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210 (10th Cir. 2007). Here, Plaintiff also relies on evidentiary materials in the response and so the Court need not provide formal notice of conversion but will address the motion under Rule 12(b)(6) along with the evidence presented. Alexander v. Oklahoma, 382 F.3d 1206, 1214 (10th Cir. 2004).

         I.ADA Claim

         Plaintiff's complaint alleges that Defendants were in violation of the ADA because there was no handicap parking or signage located at the Adobe Deli restaurant (“restaurant”). In their sworn affidavits, Mr. and Mrs. Jacobsen claim that in fact there have been handicap parking spaces and signage at the restaurant for over thirty years. Docs. 16-6, 16-7.

         Plaintiff's response recites several signage regulations but even there, he does not specify exactly how Defendants are in violation of the ADA. Even construing these allegations liberally (as the Court must for pro se litigants)[1] and accepting them as true (which the Court must under Rule 12(b)(6)), Plaintiff has not alleged a claim under the ADA for several reasons, which the Court will address in turn.

         A. Standing[2]

         First, Plaintiff has not shown that he has standing to assert a claim of discrimination because he has not alleged an injury-in-fact, which is required under the ADA as well other civil rights statutes. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A disabled individual claiming discrimination must satisfy the case or controversy requirement of Article III by demonstrating his standing to sue at each stage of the litigation. See Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205, 1211 (10th Cir. 2014) (even “tester” plaintiffs asserting Title III claim must meet general requirements of standing);[3]Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 (9th Cir. 2011) (dismissing complaint where plaintiff had identified accessibility guidelines that were purportedly violated but had failed to show how those barriers denied him “full and equal” access to store).

         The complaint states that there was no handicap parking and no signage, but otherwise contains no facts alleging any kind of an injury-in-fact, or which describe some barrier in or outside of the restaurant that deprived Plaintiff of equal access to services available to others who were not in a wheelchair. See Steger v. Franco, Inc., 228 F.3d 889, 894 (8th Cir. 2000)(plaintiff asserting ADA violation must allege those affecting his specific disability to establish standing). Plaintiff does not claim that he could not access the restaurant to eat or enjoy other services there because of the claimed lack of handicap parking or signage and even states in his response that Defendants “have gone out of their way to come to the parking lot to assist those whom are disabled to access or to gain entry” to the restaurant. Doc. 18 at 4l. Because Plaintiff has not sufficiently alleged injury-in-fact of the kind required for Plaintiff to have standing, the Court does not have jurisdiction over the case.

         B. Failure ...

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