United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS
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.
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.
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.
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).
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).
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.
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) 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.
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);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).
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.