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Ash v. Maryland Transit Administration

United States District Court, D. Maryland

March 12, 2019

REUBEN ASH Plaintiff,
v.
MARYLAND TRANSIT ADMINISTRATION Defendant.

          MEMORANDUM OPINION

          Ellen Lipton Hollander United States District Judge

         In this disability discrimination case, plaintiff Reuben Ash has sued the Maryland Transit Administration ("MTA," "Maryland," or the "State"), alleging violations of Title II of the Americans with Disabilities Act of 1990 ("ADA"), as amended, 42 U.S.C. §§ 12131-12165, as well as violations of the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 794 et seq. ECF 1 ("Complaint"); ECF 20 ("Amended Complaint"). Plaintiff seeks declaratory relief; actual, compensatory, and punitive damages; and attorneys' fees and costs. ECF 20 at 8-9. Plaintiff also seeks to enjoin defendant and its employees from refusing to make reasonable accommodations as necessary to afford plaintiff equal opportunity to use and enjoy defendant's services. Id. at 8.

         Defendant has filed a partial motion to dismiss (ECF 21), supported by a memorandum of law (ECF 21-1) (collectively, the "Motion"). According to defendant, plaintiffs ADA claim is subject to dismissal under Fed.R.Civ.P. 12(b)(1) because, under the Eleventh Amendment to the Constitution, the MTA is immune from suit. Plaintiff opposes the Motion, arguing that Congress validly abrogated the State's immunity under Title II of the ADA. ECF 22 ("Opposition"). Defendant filed a reply. ECF 23 ("Reply").

         In addition, defendant has filed a "Motion to Strike Prayer for Punitive Damages" (ECF 24), supported by a memorandum of law (ECF 24-1) (collectively, the "Motion to Strike"). No. reply has been filed, and the time to do so has expired. See Local Rule 105.2.

         No hearing is necessary to resolve the motions, See Local Rule 105.6. For the reasons that follow, I shall deny the Motion but grant the Motion to Strike.

         I. Factual and Procedural Background[1]

         The MTA is a State agency that provides public transportation throughout Maryland. It "owns and operates a 'commuter bus service' along a 'fixed route system[.]"' ECF 20, ¶ 5 (quoting 49 C.F.R § 37.3).

         Ash "is paralyzed from the waist down" and "uses a wheelchair for mobility." Id. ¶ 4. He alleges that he is a "qualified individual with a disability" under the ADA. Id. At all relevant times, Ash resided in Baltimore and "relied upon MTA's buses to travel throughout Baltimore City, including travel to medical appointments and to obtain access to governmental and public buildings and obtain governmental and public services." Id. ¶ 12. According to Ash, MTA employees intentionally denied him access to its commuter buses on at least eleven occasions between October 6, 2016 and December 16, 2017. Id. ¶ 14. "In each instance, the MTA bus driver could see that Mr. Ash was disabled and needed to rely on the use of [a] wheelchair." Id. Yet, each one allegedly refused to allow Ash entry to the bus. Id.

         For example, on October 3 and October 6, 2016, the bus driver on duty allegedly saw Ash in his wheelchair, b, ut, refused to stop the bus. Id. ¶ 14(a), (b). And, on October 14, 2016, the bus driver told Ash that the ramp was broken. When Ash asked the driver to operate the ramp manually, "the driver did not respond and closed the door and left without allowing Mr. Ash to enter." Id. ¶ 14(c). In another instance, the driver would not lower the ramp, leaving Ash at the bus stop. Id. ¶ 14(h). Then, on yet a different occasion, the driver would not manually operate a broken ramp. Ash was able to board only after passengers volunteered to operate the ramp. Id. ¶14 (g).

         On October 31, 2016, the driver refused to allow Ash onto the bus because "he did not want to ask passengers to leave the disability seats, when those passengers were not disabled and were not senior citizens." Id. ¶ 14(d). On November 4, 2016, another driver refused to ask passengers to leave the disability seats, leaving Ash at the stop instead. Id. ¶ 14(e). Three days before Christmas, the bus driver allowed several passengers to enter the bus, closed the door, and smiled when Ash was the next person to board. Id. ¶ 14(f).

         On January 13, 2017, the bus driver refused to open the door to allow Ash to board. Id. If 14(g). On April 18, 2017, the driver did allow Ash to enter the bus. Id. ¶ 14(j). On December 16, 2017, the bus driver allowed six people to board the bus, and then "while shaking her head 'no,' shut the door in front of Mr. Ash and drove away." Id. ¶ 14(k).

         In each instance, the MTA bus driver allegedly saw that Ash was disabled but nevertheless "intentionally refused to allow [him] to enter the bus and therefore excluded [him] from participation in the benefits of public transportation." Id. ¶ 14. With one exception, Ash "was left stranded even though he was otherwise capable of using the bus service[.]" Id. He "had to suffer the humiliation of being left at the bus stop or having to beg other passengers to operate the ramp manually when the driver claimed that the ramp was not working mechanically and the driver refused to operate the ramp manually." Id. ¶ 18.

         Ash claims that as a consequence of the discrimination, he "was left with no reliable means of transportation." Id. ¶ 19. Therefore, according to Ash, he missed medical appointments and other obligations, and could not "perform his daily, basic activities." Id. ¶ 14.

         According to Ash, in November 2011, the MTA issued a specific bulletin to its bus operators, instructing them to lower the bus ramp for people who use wheelchairs. Id. ¶ 15. But, bus drivers refused to lower the ramp after Ash asked them to do so. Id. Moreover, Ash alleges that the "MTA does not properly inspect and maintain the ramps on the buses despite their knowledge of frequent problems with the ramps." Id.

         Ash also asserts that he has filed several complaints with the MTA. But, he claims that the violations continue. Id. ¶ 16.

         Additional facts are included in the Discussion.

         II. Standard of Review

         As noted, the MTA has moved to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction, asserting that plaintiffs claims are barred by sovereign immunity. Under Rule 12(b)(1), plaintiff bears the burden of proving, by a preponderance of evidence, the existence of subject matter jurisdiction. See Demetres v. East West Const., Inc., 776 F.3d 271, 272 (4th Cir. 2015); see also The Piney Run Preservation Ass 'n v. Cty. Comm 'rs of Carroll Cty., Md, 523 F.3d 453, 459 (4th Cir. 2008); Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999).

         A challenge to subject matter jurisdiction under Rule 12(b)(1) may proceed "in one of two ways": either a facial challenge, asserting that the allegations pleaded in the complaint are insufficient to establish subject matter jurisdiction, or a factual challenge, asserting '"that the jurisdictional allegations of the complaint [are] not true.5" Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (citation omitted); accord Burden v. United States, 736 F.3d 296, 300 (4th Cir. 2013).. In a facial challenge, "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns, 585 F.3d at 192. On the other hand, in a factual challenge, "the district court is entitled to decide disputed issues of fact with respect to subject matter jurisdiction." Id. In that circumstance, the court "may regard the pleadings as mere evidence on the issue and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment," Velasco v. Gov't of Indonesia, 370 F.3d 392, 398 (4th Cir. 2004); see also United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347-48 (4th Cir. 2009); Evans, 166 F.3d at 647. The MTA raises a facial challenge to the Court's subject matter jurisdiction, based on the four corners of the Amended Complaint.

         The Fourth Circuit has reiterated that the defense of sovereign immunity is a jurisdictional bar, stating that '"sovereign immunity deprives federal courts of jurisdiction to hear claims, and a court finding that a party is entitled to sovereign immunity must dismiss the action for lack of subject-matter jurisdiction.'" Cunningham v. Gen. Dynamics Info. Tech., Inc., 888 F.3d 640, 649 (4th Cir. 2018) (quoting Ackerson v. Bean Dredging LLC, 589 F.3d 196, 207 (5th Cir. 2009)). But, the defendant "bears the burden of demonstrating" sovereign immunity, because it is "akin to an affirmative defense." Hutto v. S.C. Ret. Sys., 773 F.3d 536, 543 (4th Cir. 2014).

         III. The ADA and Its Regulations

         The ADA was enacted in 1990 "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities," 42 U.S.C. § 12101(b)(1), and "to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities." Id. § 12101(b)(2). The ADA contains five titles: Title I, Employment; Title II, Public Services; Title III, Public Accommodations; Title IV, Telecommunications; and Title V, Miscellaneous Provisions.

         Of relevance here, Title II of the ADA prohibits public entities, including "any State or local government" and "any department, agency, special purpose district, or other instrumentality of a State or States or local government," id. § 12131(1), from discriminating "by reason of disability against a "qualified individual with a disability." Id. § 12132. For purposes of Title II, a "qualified individual with a disability" is defined as an individual with a disability "who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). Title II of the ADA applies to '"anything a public entity does."' Seremeth v. Bd. of County Comm'rs of Frederick County, 673 F.3d 333, 338 (4th Cir. 2012) (citing cases) (citations omitted); see also Paulone v. City of Frederick, 787 F.Supp.2d 360, 380-81 (D. Md. 2011) (collecting authority).

         Title II also includes provisions targeted at discrimination in public transportation. See 42 U.S.C. §§ 12141-50, 12161-65. With some exceptions, Title II prohibits public entities from purchasing or leasing new buses or light rail vehicles that are not wheelchair accessible. 42 U.S.C. §§ 12142, 12145. It also requires certain public entities operating a fixed route transportation system to develop paratransit services for individuals with disabilities, including those who use wheelchairs.Id. § 12143.

         In addition, Congress directed the United States Department of Transportation ("DOT") to promulgate regulations implementing the parts of Title II that address public transportation. 42 U.S.C. §§ 12143 (regulations pertaining to paratransit); 12149 (regulations pertaining to paratransit and transportation by intercity and commuter rail); and 12164 (regulations pertaining to public transportation by intercity and commuter rail). DOT regulations prohibit public entities from "denying] to any individual with a disability the opportunity to use the entity's transportation service for the general public, if the individual is capable of using that service." 49 C.F.R. § 37.5.

         In service of this prohibition, the entity must ensure that bus operators "make use of accessibility-related equipment." 49 C.F.R. § 37.167(e). "Where necessary or upon request," the bus operators also must "assist individuals with disabilities with the use of securement systems, ramps and lifts." 49 C.F.R. § 37.165(f).

         "Public and private entities providing transportation services" also must "maintain in operative condition those features of facilities and vehicles that are required to make the vehicles and facilities readily accessible to and usable by individuals with disabilities." 49 C.F.R.§ 37.161(a). Such features include "lifts, and other means of access to vehicles-----" Id. Although the state must "promptly" repair "[accessibility features . .. if they are damaged or out of order," "isolated or temporary interruptions in service or access due to maintenance or repairs" are permitted. Id. § 37.161(b)-(c). "When an accessibility feature is out of order," the state "shall take reasonable steps to accommodate individuals with disabilities who would otherwise use the feature." M § 37.161(b).

         It is well established that private parties may sue to enforce Title II of the ADA. Barnes v. Gorman, 536 U.S. 181, 184-85 (2002); Pandazides v. Virginia Bd. of Educ, 13 F.3d 823, 828 (4th Cir. 1994); Davis v. Southeastern Community Coll., 574 F.2d 1158, 1159 (4th Cir. 1978), rev'don other grounds, 442 U.S. 397 (1979). Cf. Guardians Ass 'n v. Civil Serv. Comm'n 463 U.S. 582 (1983) (establishing that Title VI of the Civil Rights Act of 1964 supports a private right of action). To prevail under an ADA Title II claim, "a plaintiff must show that [he or] she was excluded from participation in, or denied the benefits of, a program or service offered by a public entity, or subjected to discrimination by that entity." Constantine v. Rectors & Visitors of George Mason Univ., 411 F.3d 474, 499 (4th Cir. 2005) (emphasis omitted). To that end, the Fourth Circuit has recognized "three distinct grounds for relief: (1) intentional discrimination or disparate treatment; (2) disparate impact; and (3) failure to make reasonable accommodations." Helping Hand, 515 F.3d at 362.

         There are limitations as to the scope of Title II. Constantine, 411 F.3d at 488. Before an individual "can even invoke the nondiscrimination provisions of the statute," the plaintiff must make a "threshold showing" that he or she is a '"qualified individual with a disability.'" Id. Moreover, a state ...


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