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Ambrose S. Fernandez, Jr v. Director Clayton Frank

October 4, 2011

AMBROSE S. FERNANDEZ, JR.,
PLAINTIFF,
v.
DIRECTOR CLAYTON FRANK, DEPARTMENT OF PUBLIC SAFETY,
INSPECTOR NINO, STATE SHERIFF PAUL MCINTIRE, DOES 1-10, DEFENDANTS.



The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART STATE DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS (ECF No. 35); ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT (ECF No. 37)

I. INTRODUCTION.

On October 4, 2010, Plaintiff Ambrose S. Fernandez, Jr., filed a Complaint pro se. See ECF No. 1. The Complaint mentions negligence in passing. Id. at 3. It then asserts violations of the Americans With Disabilities Act ("ADA") and its state law counterpart, claiming public accommodation discrimination based on unidentified "architecture barriers," id.

¶ 5, retaliation, id. ¶ 12, and discrimination based on Fernandez's disability. Id. ¶¶ 7-11.

On July 28, 2011, Defendants Clayton Frank and Paul McIntire, filed a motion for judgment on the pleadings, arguing that the Complaint fails to sufficiently allege claims. This court agrees in part and grants the motion in part. To the extent the Complaint mentions negligence and architectural barrier discrimination, it fails to support any such claims with factual assertions. Accordingly, those claims are dismissed with leave to amend. However, to the extent the Complaint alleges public accommodation discrimination based on Defendants' alleged refusal to accommodate Fernandez's medical condition when Fernandez attempted to pass through security at the Hawaii Supreme Court building, and to the extent Defendants allegedly retaliated against Fernandez by kicking him out of the building, the Complaint sufficiently alleges facts supporting his claims, and the motion is denied.

On August 26, 2011, Fernandez filed a motion for summary judgment. Because Fernandez fails to establish that he is entitled to judgment as a matter of law, that motion is denied.

II. BACKGROUND FACTS.

The Complaint is not a picture of clarity. The court gleans from it that, starting on or about August 25, 2010, Fernandez visited the Hawaii State Supreme Court building. See Compl. ¶¶ 7-9. To enter the building, Fernandez had to pass through a security checkpoint. See Compl. ¶ 10. Fernandez appears to have a heart condition that he claims is a qualified disability for purposes of the ADA. See ECF No. 1, Ex. A. Fernandez alleges that the security officers on duty touched his body instead of using a metal wand detector. See Compl. ¶ 9. He claims that he told the security officers not to touch him, but that they continued to do so. See Compl. ¶ 8. Fernandez allegedly experienced "great distress and strain because of public entity retaliation." See ECF No. 1, Ex. A. Fernandez says he has a cardiac defibrillator designed to prevent sudden cardiac arrest. See Compl. ¶ 12. Fernandez alleges that his defibrillator has moved an inch because of the officers' body contact. See Compl. ¶ 8.

III. ANALYSIS. A. Judgment on the Pleadings.

Rule 12(c) states, "After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." The standard governing a Rule 12© motion for judgment on the pleadings is "functionally identical" to that governing a Rule 12(b)(6) motion. United States ex rel. Caffaso v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011). For a Rule 12(c) motion, the allegations of the nonmoving party are accepted as true, while the allegations of the moving party that have been denied are assumed to be false. See Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). A court evaluating a Rule 12© motion must construe factual allegations in a complaint in the light most favorable to the nonmoving party. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). "Judgment on the pleadings under Rule 12© is proper when the moving party establishes on the face of the pleadings that there is no material issue of fact and that the moving party is entitled to judgment as a matter of law." Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 937 n.1 (9th Cir. May 27, 2011).

Generally, when matters outside the pleadings are considered, a motion for judgment on the pleadings must be considered as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. See Fed. R. Civ. P. 12(d). Courts have held, however, that, when adjudicating a Rule 12© motion, courts may consider matters subject to judicial notice without converting the motion to one for summary judgment. See Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999) ("When considering a motion for judgment on the pleadings, this court may consider facts that are contained in materials of which the court may take judicial notice." (quotations omitted)); accord Lacondeguy v. Adapa, 2011 WL 9572, *2 (E.D. Cal. Jan. 3, 2011); Williams v. City of Antioch, 2010 WL 3632199, *2 (N.D. Cal. Sept. 2, 2010).

Defendants' motion for judgment on the pleadings contends that Fernandez's Complaint fails to sufficiently allege facts supporting the causes of action. Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, Fernandez was required to set forth in his Complaint "a short and plain statement of the claim[s] showing that [he] is entitled to relief." Factual allegations in a complaint "must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted); accord Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) ("the pleading standard Rule 8 announces does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation"). While a complaint does not need detailed factual allegations, it must have "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. The complaint must "state a claim to relief that is plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.

To the extent the Complaint mentions negligence and architectural barriers in violation of the ADA or section 103-50 of the Hawaii Revised Statutes, it fails to allege facts supporting those claims. Those claims are therefore not properly pled, and Defendants' motion is granted with respect to those claims. The court, however, grants Fernandez leave to file an Amended Complaint that reasserts those claims and includes factual allegations supporting those claims.

Defendants' motion is denied with respect to Fernandez's public accommodation and retaliation claims. The ADA was enacted in 1990 to remedy widespread discrimination against disabled individuals. PGA Tour, Inc. v. Martin, 532 U.S. 661, 674 (2001). To effectuate this sweeping purpose, the ADA forbids discrimination against disabled individuals in major areas of public life, including employment (Title I, 42 U.S.C. §§ 12111-12117), public entities (Title II, 42 U.S.C. §§ 12131-12165), and public accommodations (Title III, ...


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