United States District Court, D. Maryland
Lipton Hollander United States District Judge
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.
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
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.
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.
Factual and Procedural Background
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
"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.
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).
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).
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).
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.
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.
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
also asserts that he has filed several complaints with the
MTA. But, he claims that the violations continue.
Id. ¶ 16.
facts are included in the Discussion.
Standard of Review
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
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.
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).
The ADA and Its Regulations
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.
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)
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.
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.
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. §
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).
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.
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 ...