Abbott v. Salem, N H , et al.

2006 DNH 012

• Court: District Court, D. New Hampshire
• Decided: February 2, 2006
• Docket: 05-CV-127-SM
• Status: Published

Opinion

Abbott v . Salem, N H , et a l . 05-CV-127-SM 2/2/06 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Rhonda S . Abbott, Plaintiff

v. Civil N o . 05-cv-127-SM Opinion N o . 2006 DNH 012 Town of Salem, New Hampshire; Prints Plus, Inc.; Control Security Services, Inc.; Simon Property Group, Inc.; Louis Currier; Jeffrey Ouellette; Kristin Fili; Nicholas J. Tela; Greg Weeden; and Denise L . Smith, Defendants

O R D E R

Rhonda Abbott asserts claims under the Americans With

Disabilities Act (“ADA”) and, apparently, New Hampshire common

law, for damages arising from an incident in which private

security guards allegedly forcibly removed her from the Prints

Plus store at the Mall at Rockingham Park, and a Salem, New

Hampshire, police officer arrested her. Before the court are a

motion dismiss Counts II and V filed by defendants Louis Currier, Jeffrey Ouellette,1 and Kristin Fili 2 and a motion to dismiss

Count I I I filed by defendant Control Security Services, Inc.

Plaintiff objects to both motions. For the reasons given, both

motions to dismiss are granted, with prejudice with respect to

plaintiff’s federal claims, and without prejudice to filing a

properly drafted amended complaint asserting state law claims.

The Legal Standard

A motion to dismiss for “failure to state a claim upon which

relief can be granted,” F E D . R . C I V . P . 12(b)(6), requires the

court to conduct a limited inquiry, focusing not on “whether a

plaintiff will ultimately prevail but whether the claimant is

entitled to offer evidence to support the claims.” Scheuer v .

Rhodes, 416 U . S . 2 3 2 , 236 (1974). When considering a motion to

dismiss under Rule 12(b)(6), the court must “accept as true the

factual allegations of the complaint and construe all reasonable

inferences therefrom in favor of [plaintiff].” Perry v . N . E .

Bus. Serv., Inc., 347 F.3d 343, 344 (1st Cir. 2003) (citing

1 Currier and Ouellette are security guards employed by Control Security Services, Inc. 2 Fili is a Salem, New Hampshire, police officer.

2 Beddall v . State S t . Bank & Trust Co., 137 F.3d 1 2 , 16 (1st Cir.

1998)). “A district court may grant a 12(b)(6) motion to dismiss

for failure to state a claim upon which relief can be granted

only if ‘it clearly appears, according to the facts alleged, that

the plaintiff cannot recover on any viable theory.’” Pomerleau

v . W . Springfield Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004)

(quoting Correa-Martinez v . Arrillaga-Belendez, 903 F.2d 4 9 , 52

(1st Cir. 1990)).

Factual Background

The facts of this case, as alleged in Abbott’s complaint and

presented in the light most favorable to her, are as follows.

Abbott suffers from a hearing impairment. On November 3 ,

2001, she went to the Prints Plus, Inc. store (“Prints Plus”) in

the Mall at Rockingham Park (“the mall”) to pick up a painting

she had left for framing. The mall is managed by Simon Property

Group (“Simon”). When Denise Smith, the clerk at Prints Plus,

was unable to find Abbott’s picture, Abbott asked Smith if she

could look for it herself. Abbott had difficulty hearing Smith’s

response, and asked for paper and a pen, so she could communicate

3 in writing. In response, Smith ordered Abbott from the store.

Abbott again had difficulty hearing and understanding Smith, and

did not leave the store. Smith called for mall security, which

is provided by Control Security Services, Inc. (“Control”),

pursuant to a contract with Simon.

In response to Smith’s call to security, Louis Currier went

to the Prints Plus store, accompanied by Greg Weeden and Nicholas

Tela. Currier was an off-duty Salem police officer employed by

Control. Weeden was Control’s Security Director, and Tela was

Control’s Security Supervisor. When Currier, Weeden, and Tela

arrived, Abbott tried to explain the situation to them, and asked

them for a pen and paper. They refused, and told Abbott to leave

the store. Then, at the direction of Weeden and Tela, Currier

placed Abbott in handcuffs. In doing s o , Currier threw Abbott to

the floor, causing her to strike her head on the wall.

After he placed Abbott in handcuffs, Currier called Jeffrey

Ouellette for additional assistance. Like Currier, Ouellette was

an off-duty Salem police officer employed by Control. When

Ouellette arrived, Abbott asked him for a pen and paper, but he

4 refused to provide them. Then Currier, Ouellette, Weeden, and

Tela escorted Abbott through the Mall in handcuffs. She was

placed in a Salem police cruiser, driven by Officer Kristin Fili.

Officer Fili, in turn, transported Abbott to the Salem police

station. En route, Officer Fili refused to communicate with

Abbott, and at the police station, Fili and other officers

taunted Abbott regarding her hearing impairment.

Discussion

A . Count II

In Count I I , Abbott seeks damages from Currier and Ouellette

for failing to provide her with a pen and paper, throwing her to

the ground while handcuffing her, escorting her through the Mall

in handcuffs, and placing her in Officer Fili’s cruiser. While

the complaint is not clear on this point, Count II appears to

assert both an ADA claim and common law claims.

Count II does not mention, by name, any common law cause of

action, but in Count I , against Prints Plus and Smith, Abbott

asserts that as a result of Smith’s violation of her rights under

the ADA, she was assaulted, unlawfully detained, and falsely

5 imprisoned by various other defendants, including Currier and

Ouellette. Moreover, in her objection to the motion to dismiss

Count I I , plaintiff states that “[t]he state law claims alleged

against the Defendants, Currier, Ouellette and Fili are not

addressed in this Memorandum as those claims are not a part of

their Motion to Dismiss,” (Pl.’s O b j . at 2 ) , which suggests

plaintiff’s belief that she adequately asserted common law claims

against Currier, Ouellette, and Fili. She has not done s o .

Currier and Ouellette had no reason to address any common law

claims, because Count I I includes no common law claims that have

been pled by means of “a short and plain statement of the claim

showing that the pleader is entitled to relief.” FED. R . CIV. P .

8(a)(2).

The court construes Count I I as an A D A claim. If plaintiff

intended to assert common law claims against Currier and

Ouellette in Count I I , she may, within thirty (30) days of the

date on this order, file an amended complaint setting out

separate causes of action in separate counts, plainly and

concisely stating the nature of the claim and the legal theory

upon which she seeks relief.

6 Regarding her ADA claim, it would appear that Abbott is

alleging in Count II that Currier and Ouellette violated Title

III of the ADA by failing to provide her with a pen and paper

when she requested them. Currier and Ouellette move to dismiss

Count II on grounds that Title III does not apply to individuals.

Abbott counters that under the relevant statutory definitions and

decisional law, Currier and Ouellette are subject to ADA

liability. They are not.

Title III of the Americans With Disabilities Act provides,

in part:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases t o ) , or operates a place of public accommodation.

42 U.S.C. § 12182(a). Abbott argues that Currier and Ouellette

“operated” security services at the Mall in a manner that makes

them liable under the ADA.

Even assuming, for argument’s sake, that “security at the

mall” – rather than the mall itself – is a place of public

7 accommodation within the meaning of the ADA, Currier and

Ouellette did not operate mall security. In the primary case on

which Abbott relies for the proposition that individual liability

is possible under the ADA, Gluckenberger v . Boston University,

957 F. Supp. 306 (D. Mass. 1997), the district court denied a

motion to dismiss filed by John Silber, president of Boston

University at the time of the ADA violations alleged by the

plaintiff, but granted a motion to dismiss filed by Craig

Klafter, who was: (1) labeled in the complaint as the assistant

to Boston University’s current president; (2) identified as

“responsible for insuring that students with disabilities in

Boston University are treated in compliance with state and

federal law”; and (3) alleged to have “knowingly ‘participated in

carrying out and continuing’ the university’s allegedly

discriminatory accommodations policies”. The court noted:

Klafter’s alleged role as an “assistant” undermines the plaintiffs’ argument that he exercises the authority, control, or discretion that is necessary for one to be deemed an “operator” of a place of public accommodation for the purpose of liability under Title III. In the complaint, plaintiffs allege only that Klafter assists in the perpetration of BU’s discriminatory policy, and, by making such a characterization, plaintiffs have failed to state facts sufficient to support the claim that Klafter is subject to individual liability under the ADA.

8 Id. at 323. Currier and Ouellette, similarly, did not “operate”

mall security and, as a consequence, are not liable to Abbott

under the ADA.3

Abbott’s ADA claim against Currier and Ouellette also fails

for a more basic reason. Count II seeks only money damages.

Money damages are not available under Title III of the ADA, see

Dorsey v . City of Detroit, 157 F. Supp. 2d 729, 733 (E.D. Mich.

2001), and the complaint does not assert facts warranting

injunctive relief.

Because Currier and Ouellette are not liable under the ADA,

as a matter of law, and because Count II seeks a remedy

unavailable under Title I I I , Currier and Ouellette are entitled

to dismissal of Count I I .

3 That Currier and Ouellette were subordinates rather than decision-makers is demonstrated by plaintiff’s own factual allegation that “plaintiff was placed in handcuffs at the direction of Tela and Weeden.” Compl. ¶ 3 4 .

9 B . Count V

In Count V , Abbott seeks damages from the Town of Salem and

Officer Fili for failing to fulfill the Town’s duty, under the

ADA, to provide proper assistance to handicapped persons in the

mall and at the Salem police station. Plaintiff has stipulated,

in response to a request for a more definite statement, that the

legal bases for Count V are Title II of the ADA, 42 U.S.C.

§ 12132, and Section 504 of the Rehabilitation Act, 29 U.S.C.

§ 794.

Fili moves to dismiss Count V on grounds that individuals

are not subject to liability under Title II of the ADA or Section

504 of the Rehabilitation Act. Abbott counters that individual

liability under those statutes is “almost a case of first

impression” and that the blanket elimination of individual

liability urged by Fili “would materially inhibit voluntary

compliance with the laws promulgated to eliminate discrimination

[against] those with disabilities.”

10 1 . Title II of the ADA

Title II of the Americans With Disabilities Act provides, in

part:

Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. The statute defines “public entity” as “any

State or local government; any department, agency, special

purpose district, or other instrumentality of a State or States

or local government; and the National Railroad Passenger

Corporation, and any commuter authority . . .” 42 U.S.C. §

12131(1). Plaintiff’s theory is that Officer Fili was an “other

instrumentality” of the Town of Salem.

While the court of appeals for this circuit has yet to

decide whether Title II of the ADA provides for individual

liability, five other circuits have ruled that Ҥ 12132 does not

provide for claims against individuals in their individual

capacities.” Miller v . King, 384 F.3d 1248, 1277 (11th Cir.

2004) (citing Vinson v . Thomas, 288 F.3d 1145, 1156 (9th Cir.

11 2002); Garcia v . State Univ. of N.Y. Health Scis. Ctr., 280 F.3d

9 8 , 107 (2d Cir. 2001); Walker v . Snyder, 213 F.3d 3 4 4 , 346 (7th

Cir. 2000), abrogated on other grounds, as recognized in

Bruggeman ex rel. Bruggeman v . Blagojevich, 324 F.3d 906, 912-13

(7th Cir. 2003); Alsbrook v . City of Maumelle, 184 F.3d 999, 1005

n.8 (8th Cir. 1999)).

The instrumentalities listed in § 12131(1) are all

collective units, making it readily apparent that Congress

intended for the term “other instrumentalities” to include other

collective units, but not individuals, within the definition of

“public entity.” See United States v . McKelvey, 203 F.3d 6 6 , 71

(1st Cir. 2000) (“where general words (‘other matter’ in this

case) follow the enumeration of particular classes of things

(“books, magazines, periodicals, films, video tapes”), the

general words will be construed as applying only to things of the

same general class as those enumerated”). Because Fili is not a

“public entity” within the meaning of Title II of the ADA, the

ADA claim against her in Count V is dismissed.

12 2 . Section 504 of the Rehabilitation Act

“[N]either Title II of the ADA nor § 504 of the

Rehabilitation Act provides for individual capacity suits against

state officials.” Garcia, 280 F.3d at 107 (citing Calloway v .

Boro of Glassboro Dep’t of Police, 89 F. Supp. 2d 543, 557

(D.N.J. 2000); Montez v . Romer, 32 F. Supp. 2d 1235, 1240-41 (D.

Colo. 1999)). Accordingly, the Rehabilitation Act claim against

Fili in Count V is also dismissed.

C . Count III

In Count I I I , Abbott seeks damages from Control, as an

independent contractor, under contract to Simon, for failing to

fulfill its duty under the ADA to provide her with assistance.

Specifically, plaintiff appears to assert that Control violated

the ADA by virtue of the failure of Currier and Ouellette to

provide her with a pen and paper with which to communicate. Like

Count I I , Count III may or may not be asserting one or more

common law claims against Control, and, in the interest of

caution, Control has moved to dismiss claims for false arrest,

false imprisonment, and assault and battery. But, like Count I I ,

the court construes Count III as asserting an ADA claim only. If

13 plaintiff meant to assert common law claims as well, she may file

an amended complaint, setting out those claims in a proper

fashion (one cause of action per count), within thirty (30) days

of the date of this order.

Control moves to dismiss Count III on grounds that it is not

an entity that “owns, leases (or leases t o ) , or operates a place

of public accommodation.” Abbott counters that Control qualifies

as an operator of a place of public accommodation by virtue of

its operation of security at the mall.

As noted above, liability under Title III is limited to

persons who own, lease (or lease to) or operate places of public

accommodation. Based upon plaintiff’s factual allegations,

Control does not operate a place of public accommodation.

Control’s position relative to the mall is analogous to the

position of Ogden Aviation Services, International (“Ogden”) in

Adiutori v . Sky Harbor Int’l Airport, 880 F. Supp. 696 (D. Ariz.

1995). In Adiutori, the plaintiff asserted ADA claims against

the City of Phoenix, owner and operator of Sky Harbor Airport,

14 and Ogden, which provided skycap services at the airport.4 In

attempting to hold Ogden liable under Title III of the ADA,

“[t]he plaintiff assert[ed], without any legal citation other

than the statute [42 U.S.C. § 12181(7)(G) 5 ], that Ogden ‘is bound

by this statute by the fact that it is a private entity providing

a service in a “terminal, depot or other station used for

specified public transportation.”’” 880 F. Supp. at 704. The

district court rejected that argument:

[Section] 12182 does not state that it applies to entities which merely provide a service in a place of public accommodation, e.g. a terminal, etc. – it only applies to entities which own, lease or operate a place of public accommodation and the plaintiff does not explain how Ogden fits into that definition. The only evidence of record concerning Ogden’s relationship to Phoenix is that Ogden possesses a permit from Phoenix, which is the owner and operator of Terminal Four, to conduct business therein.

Id. Here, the facts alleged by plaintiff are that Control

provides security services at the mall, under a contract with

4 Specifically, the plaintiff asserted that he suffered a heart attack on a “flight from Phoenix to Pittsburgh, allegedly caused by the defendants’ failure to provide him with proper handicap services while in transit between terminals at Sky Harbor International Airport.” 880 F. Supp. at 699. 5 Section 12182(7)(G) defines the term “public accommodation” to include “a terminal, depot, or other station used for specified public transportation.”

15 Simon. Control operates a security service; it does not operate

a place of public accommodation. Accordingly, Count III is

dismissed.

Conclusion

For the reasons given, Currier, Ouellette, and Fili’s motion

to dismiss (document n o . 33) and Control’s motion to dismiss

(document n o . 38) are both granted.6 Accordingly, the ADA and

Rehabilitation Act claims set out in Counts I I , I I I , and V are

dismissed with prejudice. However, if plaintiff chooses to

pursue common law claims against any of the defendants in this

case – not just those who moved to dismiss Counts I I , I I I , and V

– she may do so by filing an amended complaint, within thirty

(30) days of the date of this order. In that complaint, each

separate cause of action must be set out in a separate count,

plainly describing the claim and the legal theory entitling her

to relief.

6 As the motion to dismiss granted herein (document n o . 38) supersedes Control’s previous motion to dismiss (document n o . 1 0 ) , that motion i s , necessarily, moot.

16 SO ORDERED.

/Steven __ . McAuliffe ' Chief Judge

February 2, 2006

cc: William R. Sullivan, Jr., Esq. William R. Sullivan, Sr., Esq. Donald E. Gardner, Esq. Catherine M. Costanzo, Esq. John P. Coakley, Esq. Richard J. Riley, Esq. Vincent A. Wenners, Jr., Esq. Meredith M. Lasna, Esq.