Daigle v. Friendly Ice Cream Corp.

Opinion

Daigle v. Friendly Ice Cream Corp. CV-96-225-SD 10/30/97 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Richard Daigle

v. Civil No. 96-225-SD

Friendly Ice Cream Corp.

O R D E R

This case, brought under the Americans with Disabilities

Act (ADA), arose from the eviction of plaintiff Richard Daigle

from a Friendly's Restaurant allegedly due to his disability.

Before the court at this time is defendant Friendly Ice Cream

Corporation's motion for summary judgment.

Background

Plaintiff claims the following facts. On May 4, 1993, he

was inside the Friendly's Restaurant and had just received a

drink when the manager approached him and stated that he was no

longer welcome in any Friendly's Restaurant. The plaintiff

voluntarily left.

Some time later, plaintiff received a "No Trespass Notice"

from defendant stating: "You were advised that you were no

longer welcome as a customer of any Friendly's Restaurant, and

that any attempt by you to enter a Friendly's Restaurant will be deemed a trespass!" Complaint at 2.

Plaintiff claims that Friendly's denied him services because

of his physical disability, corneal abrasion, described by

plaintiff as a condition in which the clear part of the eye is no

longer in place to protect the nerves of the eye. Plaintiff

claims that the defendant's actions are in violation of Title III

of the Americans with Disabilities Act, 42 U.S.C. § 12181, et

seg. (ADA).

Discussion

Friendly's seeks summary judgment on the ground that the

federal statutes under which plaintiff brings his claim do not

authorize the monetary relief sought by plaintiff. Plaintiff

brings his claim under Title III of the ADA, which provides:

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

42 U.S.C. § 12182(a). The remedies for private individuals under

Title III are those set forth in 42 U.S.C. § 2000a-3 (a) . See 42

U.S.C. § 12188 (a)(1) ("The remedies and procedures set forth in

section 2000a-3(a) of this title are the remedies and procedures

this subchapter provides to any person who is being subjected to

2 discrimination on the basis of disability in violation of this

subchapter or who has reasonable grounds for believing that such

person is about to be subjected to discrimination in violation of

section 12183 of this title."). Section 2000a-3 (a) provides:

Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 2000a-2 of this title, a civil action for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by the person aggrieved . . . .

Courts have held that section 2000a-3(a) does not permit monetary

damages. Newman v. Piggie Park Enterprises, 390 U.S. 400, 401-02

(1968); Mayberry v. Von Valtier, 843 F. Supp. 1160, 1167 (E.D.

Mich. 1994); Aikens v. St. Helena Hosp., 843 F. Supp. 1329 (N.D.

Cal. 1994). Since plaintiff seeks only monetary relief, which is

not permitted under Title III of the ADA, summary judgment in

favor of defendants is appropriate.

Conclusion

Friendly's motion for summary judgment must be and herewith

is granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

October 30, 1997

3 cc: Richard Daigle, pro se Gregory A. Moffett, Esg.