Durante v. Belknap, NH

2005 DNH 026

• Court: District Court, D. New Hampshire
• Decided: February 16, 2005
• Docket: CV-03-333-SM
• Status: Published

Opinion

Durante v. Belknap, NH CV-03-333-SM 02/16/05 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Count Durante, Plaintiff

v. Civil No. 03-333-SM Opinion No. 2005 DNH 026 County of Belknap, New Hampshire, Defendant

O R D E R

Plaintiff, Count Durante, brings this suit against defendant

County of Belknap, New Hampshire ("the County"), seeking redress

for injuries he sustained after he allegedly fell while

attempting to enter the Belknap County Courthouse ("the

courthouse"). Count I asserts that the County was negligent in

failing to provide a safe passageway for the public to enter the

courthouse. In Count II, Durante asserts violations of his

rights under the Americans with Disabilities Act ("ADA" or the

"Act"), 42 U.S.C. § 12131, et seg. Specifically, Durante asserts

that the County failed to make the courthouse readily accessible

to individuals with disabilities, as reguired by Title II of the

Act. The County now moves for summary judgment. Durante objects.

For the reasons set forth below, the motion is granted.

STANDARD OF REVIEW

Summary judgment is appropriate when the record demonstrates

"that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

F e d . R. C i v . P. 56(c). In considering a motion for summary

judgment, the court must view the record "in the light most

hospitable" to the nonmoving party. Euromodas, Inc. v. Zanella,

Ltd., 368 F.3d 11, 17 (1st Cir. 2004) (citing Houlton Citizens'

Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999);

Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990)). An

issue is "'genuine' if the parties' positions on the issue are

supported by conflicting evidence." Int'l Ass'n of Machinists &

Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196,

200 (1st Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 250 (1986)). An issue is "'material' if it potentially

affects the outcome of the suit." Id. at 199-200.

2 In support of its summary judgment motion, the moving party

must "identify[] those portions of [the record] which . . .

demonstrate the absence of a genuine issue of a material fact."

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the

moving party successfully demonstrates the lack of a genuine

issue of material fact, "the burden shifts to the nonmoving party

. . . to demonstrate that a trier of fact reasonably could find

in [its] favor." DeNovellis v. Shalala, 124 F.3d 298, 306 (1st

Cir. 1997) (citing Celotex, 477 U.S. at 322-25) . Once the burden

shifts, the nonmoving party "may not rest upon mere allegations

or denials of his [or her] pleading, but must set forth specific

facts showing that there is a genuine issue for trial."

Anderson, 477 U.S. at 256.

BACKGROUND

The facts, set forth in the light most favorable to Durante,

are as follows. Durante is visually impaired and often walks

with the assistance of his guide dog. Patches. On August 29,

2000, Durante and Patches attempted to enter the Belknap County

Courthouse. Patches led Durante to the old entrance to the

building, but the doors were locked. (Compl. at 1.) Durante

3 "observed a sign on the [locked] door designating the entrance

and an arrow pointing towards the right." (Compl. at 1.)

Patches then led Durante down the front steps and onto what

Durante believed to be an "asphalt walkway." (Compl. at 1.)

While traversing the "walkway," which apparently was a drainage

feature of some sort, and not meant for pedestrian travel.

Durante "hit a low branch on a tree with his nose, face and eyes,

and was rendered unconscious." (Compl. at 1.) Durante fell, and

both he and Patches sustained injuries.

The courthouse is located in Laconia, New Hampshire. In

1976, after determining that the existing building was too small

to accommodate the needs of the community, the County constructed

a new addition. (Def's Mot. Summ. J., Ex. 1. (Cook Aff.) 5 4.)

While the old entrance remains intact, visitors must now enter

the building through the new addition. (Cook Aff. 55 5-6.) The

old entrance, though locked, is not inaccessible - there are no

physical barriers preventing one from approaching the former

entrance. (Compl. at 2.)

4 Given the injuries he suffered. Durante brought this two-

count suit against the County for negligence and violations of

his rights under the ADA.

DISCUSSION

The County moves for summary judgment, arguing that it

cannot be found in violation of the ADA because the courthouse

has one ADA compliant entrance. Further, the County argues that

the negligence claim should be dismissed for lack of

jurisdiction. Durante objects, arguing that even though the

courthouse did have an ADA-compliant entrance, that entrance was

not "readily" accessible to him as a visually impaired

individual. Moreover, Durante asserts that the negligence claim

should not be dismissed because the County removed this suit to

federal court, and dismissal would reguire him to return to state

court.

I. ADA CLAIM

To prevail on a ADA Title II claim, a plaintiff must prove

"(1) that he [or she] is a gualified individual with a

disability; (2) that he [or she] was either excluded from

5 participation in or denied the benefits of some public entity's

services, programs, or activities or was otherwise discriminated

against; and (3) that such exclusion, denial of benefits, or

discrimination was by reason of the plaintiff's disability."

Parker v. Universidad de P.R., 225 F.3d 1, 5 (1st Cir. 2000)

(interpreting 42 U.S.C. § 12131). The parties agree that the

County, which owns the courthouse, is a public entity. There is

also no dispute that Durante is a "gualified individual with a

disability." The parties do dispute, however, whether Durante

was denied access to "services, programs, or activities" due to

his visual impairment.

Because the Act "does not elaborate on the obligation of a

public entity . . . in the provision of 'services, programs, or

activities[]' . . . [the court] must rely . . . on the

regulations promulgated under Title II." Parker, 225 F.3d at 5

(guoting 42 U.S.C. § 12132). One of those regulations, 28 C.F.R

§ 31.150(a), reguires that "[a] public entity shall operate each

service, program , or activity so that the service, program or

activity, when viewed in its entirety, is readily accessible to

and usable by individuals with disabilities."

6 The Act and relevant regulations have been construed to

place the primary emphasis of Title II on "'program

accessibility' rather than 'facilities accessibility.'" Parker,

225 F.3d at 6. Courts have thus held that if a public facility

has at least one entrance accessible to individuals with

disabilities, and that entrance affords access to the various

services, programs, or activities of the public entity, then the

facility is compliant with Title II of the Act. See, e.g., id.

at 7; see also Kasten v. Port Auth. of N.Y., No. 98-CV-4988, 2002

WL 31102689, *4-*5 (E.D.N.Y. Sept. 10, 2002) (airport terminal

with only one ADA-compliant full-service elevator).

Here, there is no dispute that the courthouse has at least

one entrance that is accessible to individuals with disabilities,

including those with visual impairments. Plaintiff concedes that

the courthouse's new entrance is "accessible and usable by

individuals with disabilities." (Pi's Obj. to Sum. J. at 2

("plaintiff does not dispute the courthouse has a complying

entrance")). Plaintiff argues, however, that despite the one

ADA-compliant entrance, the building was still not "readily

7 accessible" to individuals with disabilities. Plaintiff points

to Parker, where a public university was required to make its

Botanical Gardens "'readily accessible' to and 'usable' by

individuals with disabilities." 225 F.3d at 6. But the court in

Parker went on to explain that while "the University was

obligated to ensure that each service, program or activity at the

Botanical Gardens 'when viewed in its entirety,' was accessible

to individuals with disabilities . . . [it] . . . [was] not

required to make every passageway in and out of the Monet Garden

accessible." Id. at 7. So, even under the analysis used in

Parker, the existence of one ADA-compliant entrance necessarily

renders the courthouse's services, programs, and activities

"readily accessible" to individuals with disabilities.

Put differently, plaintiff essentially asserts that,

notwithstanding the courthouse's compliance with the ADA, the

County had additional obligations to individuals with visual

disabilities. But as Parker also explains, "the primary injury

alleged and proven under Title II in a case such as this remains

the alleged violation by the [County] of its statutory duty to

disabled persons to prevent discriminatory denial of access to a service, program, or activity." 225 F.3d at 7. Therefore, by

providing one ADA-compliant entrance to the courthouse, which, in

turn, rendered the courthouse services, programs, and activities

readily accessible to persons with disabilities, the County

satisfied its legal duty under the Act.

Although Durante suffered an unfortunate accident, it did

not result from a violation of his rights under the Act. In

Association for Disabled Americans v. City of Orlando, 153 F.

Supp. 2d 1310, 1320 (2001), the court found that even though a

public theater and sports arena had numerous areas and features

that were inaccessible to individuals in wheelchairs, "when

viewed in their entirety," both venues were "readily accessible

to disabled patrons." The court further explained that while the

Orlando plaintiffs "have identified several elements at each

facility that pose difficulties for individuals in wheelchairs,"

id., which may "inconvenience disabled individuals to varying

extents . . . none of them are so severe that they effectively

prevent disabled individuals from attending games, performances

or events." Id. Like the plaintiffs in Orlando, Durante has perhaps

identified an area of a public facility that poses difficulty and

inconvenience for visually impaired individuals (only one ADA-

compliant entrance). But considering the facility in its

entirety, that inconvenience is not so significant that it

"effectively prevent[s] disabled individuals" from participating

in the services, programs, or activities of the courthouse.

Because Durante has failed to identify a genuine issue of

material fact regarding accessibility of the courthouse's

services, programs, or activities to individuals with

disabilities, defendant's motion for summary judgment as to the

ADA claim is granted.

II. NEGLIGENCE CLAIM

Under the provisions of 28 U.S.C. § 1367(a), a federal court

with original jurisdiction over federal claims may also exercise

"supplemental jurisdiction over all other claims that are so

related to claims in the action within such original jurisdiction

. . ." Another portion of the same statute, § 1367(c), provides

10 that a district court may decline to exercise supplemental

jurisdiction over a plaintiff's state law claim when:

(1) the claim raises a novel or complex issue of State law, (2) the claim substantially predominates over the claim or claims over which the district court has original jurisdiction, (3) the district court has dismissed all claims over which it had original jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining jurisdiction.

The Court of Appeals has held that "if the [district] court

dismisses the foundational federal claims, it must reassess its

jurisdiction, this time engaging in a pragmatic and case-specific

evaluation of a variety of considerations that may bear on the

issue." Camelio v. Am. Fed'n, 137 F.3d 666, 672 (1st Cir. 1998)

(guoting Roche v. John Hancock Mut. Life Ins. Co., 81 F.3d 249,

256-57 (1st Cir. 1996)). The factors district courts should

consider when determining whether to exercise supplemental

jurisdiction over state law claims include: (1) the interests of

fairness; (2) judicial economy; (3) convenience; and (4) comity.

See id. Explaining the fairness and comity factors, the Supreme

Court noted:

11 Needless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties, by procuring for them a surer-footed reading of applicable law. Certainly, if the federal claims are dismissed before trial even though not unsubstantial in a jurisdictional sense, the state claims should be dismissed as well.

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (footnote

omitted).

In the interest of comity, this court declines to exercise

supplemental jurisdiction over plaintiff's state law claim.

CONCLUSION

The County's motion for summary judgment (document no. 17)

is granted as to the ADA claim. The court declines to exercise

supplemental jurisdiction over the state law negligence claim

(Count I). Accordingly, the clerk of the court shall enter

judgment in accordance with this order and remand the state

negligence claim to the New Hampshire Superior Court from which

it was removed.

12 SO ORDERED.

Steven J. McAuliffe Chief Judge

February 16, 2005

cc: Philip A. Brouillard, Esq. Debra W . Ford, Esq.