The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge
(1) DEFENDANTS SANJ SAPPAL AND SECURITAS'S MOTION FOR SUMMARY JUDGMENT,
(2) DEFENDANTS CLAYTON FRANK AND PAUL McINTIRE'S MOTION FOR SUMMARY JUDGMENT, AND
(3)DEFENDANT SATURINO GERVACIO'S MOTION FOR SUMMARY JUDGMENT
On October 25, 2011, pro se Plaintiff Ambrose S.
Fernandez, Jr. ("Fernandez"), filed his Amended Complaint. Mot. for Amended Compl., Oct. 25, 2011, ECF No. 57. The Amended Complaint asserts claims under the "American with Disabilities Act of 1990" and an unidentified "Repealed Accessibility Law." Amended Compl. at 20, 23. Fernandez claims that he was discriminated against at the Hawaii Supreme Court building by security personnel because of his disability. His alleged disability relates to the cardiac defibrillator implanted in his chest. Fernandez also generally takes issue with the way in which people with disabilities are accommodated at the Hawaii Supreme Court building. The court construes the Amended Complaint as asserting violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. Defendants Clayton Frank, Director of the Department of Public Safety ("DPS");*fn1 Sheriff Paul McIntire (incorrectly named as "Paul MacIntyre"); Securitas Security Services USA, Inc. ("Securitas"); Sanj Sappal, the Area Vice President of Securitas (incorrectly named as "Sanj Sappel"); and Saturino Gervacio (named as "Inspector Nino") now seek summary judgment. Def. Director Clayton Frank, Department of Public Safety, and Paul McIntire's Mot. for Summ. J., Nov. 15, 2011, ECF. No. 63; Defendants Sanj Sappal and Securitas Security Services USA, Inc.'s Mot. for Summ. J., Nov. 15, 2011, ECF No. 68; Defendant Saturino Gervacio aka Inspector Nino's Mot. for Summ. J., Dec. 21, 2011, ECF No. 85. The court grants the motions on multiple grounds.
Summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A moving party has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).
The burden initially falls on the moving party to identify for the court "the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)); accord Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 987 (9th Cir. 2006). "A fact is material if it could affect the outcome of the suit under the governing substantive law." Miller, 454 F.3d at 987. When the moving party bears the burden of proof at trial, that party must satisfy its burden with respect to the motion for summary judgment by coming forward with affirmative evidence that would entitle it to a directed verdict if the evidence were uncontroverted at trial. Id. (quoting C.A.R. Transp. Brokerage Co., Inc. v. Darden Rest., Inc., 213 F.3d 474, 480 (9th Cir. 2000)). When the nonmoving party bears the burden of proof on one or more issues at trial, the party moving for summary judgment may satisfy its burden with respect to those issues by pointing out to the court an absence of evidence from the nonmoving party. Miller, 454 F.3d at 987.
When the moving party meets its initial burden on a summary judgment motion, "[t]he burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial." Id. The court must not weigh the evidence or determine the truth of the matter but only determine whether there is a genuine issue for trial. See Balint v. Carson City, Nev., 180 F.3d 1047, 1054 (9th Cir. 1999). On a summary judgment motion, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Miller, 454 F.3d at 988 (brackets omitted) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)).
It is difficult to tell what facts give rise to Fernandez's claims and what conduct by Defendants Fernandez is complaining about. Although Fernandez does submit affidavits, they go to events relating to the service of documents, not to the underlying events. In an attempt to understand what Fernandez is claiming, the court is drawing on details from the Amended Complaint and the numerous other documents Fernandez has filed, even though, except for the affidavits, they do not present evidence in admissible form. See Fraser v. Goodale, 342 F.3d 1032, 1046 (9th Cir. 2003) ("At the summary judgment stage, we do not focus on the admissibility of the evidence's form. We instead focus on the admissibility of its contents." (citing Block v. City of Los Angeles, 253 F.3d 410, 418-19 (9th Cir. 2001) ("To survive summary judgment, a party does not necessarily have to produce evidence in a form that would be admissible at trial, as long as the party satisfies the requirements of Federal Rules of Civil Procedure 56."), and Fed. Deposit Ins. Corp. v. N.H. Ins. Co., 953 F.2d 478, 485 (9th Cir. 1991) ("the nonmoving party need not produce evidence in a form that would be admissible at trial in order to avoid summary judgment." (citations and quotation marks omitted))).
From what the court can discern, prior to August 25, 2010, Fernandez was parking at the Hawaii Supreme Court and actually entering the building to use the Hawaii Supreme Court library, which is open to the public. Amended Compl. ¶ 26. On August 25, 2010, Fernandez again went to the Hawaii Supreme Court to use the library. Although Fernandez's papers do not clearly say so, the court surmises that Fernandez declined to walk though the magnetometer at the entrance out of concern that it might affect the defibrillator implanted in him. Fernandez says he told Gervacio, allegedly on duty as a security guard, not to touch his upper body. Fernandez apparently wanted to be searched with a handheld wand, but, because Gervacio allegedly had no wand, allowed Gervacio to pat him down from the waist down. Mot. to Deny Def. Saturino Gervacio aka Inspector Nino's Concise Statement of Deny Facts in Support of Mot. for Summ. J. Filed December 19, 2011, at 4, Jan. 13, 2012, ECF No. 95-1. From the period after August 25, 2010, until September 2, 2010, Fernandez allegedly entered the Hawaii Supreme Court building through the main entrance. Amended Compl. ¶ 39. He further alleges that "Security System Inspectors (Filipinos)" and the Department of Public Safety Officer on duty improperly touched him, and that they did not have a metal-detecting wand to use to inspect someone who, like him, had a defibrillator. Id. ¶¶ 39-40. He alleges that he was retaliated against and threatened by Defendant McIntire in an undescribed manner. Id. ¶ 45.
Fernandez appears to further allege that Securitas, the Department of Public Safety, and an inspector (presumably Gervacio) lack training, and improperly continue to "pat down" individuals who come to the Hawaii Supreme Court building and engage in a pattern of oppression, malicious misrepresentation, and misconduct. Id. ¶ 42.
Fernandez also points to various alleged deficiencies at the Hawaii Supreme Court building that, according to Fernandez, the State of Hawaii must correct to bring the building into compliance with Title II of the Americans with Disabilities Act. Amended Compl. ¶ 27. For example, Fernandez states, "The curb ramp at front of the Supreme Court building contains an abrupt change in level greater than 1/4 inch." Id. ¶ 31. He suggests that the curb ramp be altered "so that it does not contain [an] abrupt change in level greater than 1/4 inch." Id. The Amended Complaint is accompanied by various exhibits that range from the text of statutes, regulations, and ordinances, to diagrams of proper "maneuvering clearances at doors," and photos and diagrams of the Hawaii Supreme Court building. See ECF Nos. 57-1 to 57-14.*fn2
According to Defendants, on August 25, 2010, Fernandez attempted to enter the Hawaii Supreme Court building. See Decl. of Saturino Gervacio ¶¶ 2-3, Dec. 21, 2011, ECF No. 85-2.
Gervacio says he was working as a security guard at the security check point at the building's main entrance. Id. ¶ 3. At the check point, Fernandez allegedly told Gervacio that, if Gervacio touched him, Fernandez would sue him. Id. Gervacio maintains that he did not touch Fernandez. Id. ¶¶ 5-8.
At some point during Gervacio's encounter with Fernandez, McIntire, a uniformed patrol deputy on duty at the Hawaii Supreme Court Building, received a call about a disturbance at the entrance of the building. Decl. of Paul McIntire ¶ 3, ECF No. 65-2. McIntire says that Fernandez told him he wanted to go to the law library in the building. Id. Fernandez also allegedly said that he could not be screened by security because of his defibrillator. Id. McIntire says that he told Fernandez he could either go through the metal detector, be screened with a metal-detecting wand, or be patted down. Id. According to McIntire, Fernandez refused all three options, so McIntire gave Fernandez the fourth option of turning his belt around, turning his pockets inside out, and taking off his shoes. Id. McIntire says that, at that point, Fernandez became "belligerent and irate." Id. ¶ 4. He allegedly threatened to sue anyone who touched him and began "ranting and raving" about being discriminated against and harassed. Id. McIntire recalls that Fernandez eventually left the Hawaii Supreme Court without entering the building. Id. McIntire also maintains that he did not touch Fernandez. Id. ¶ 6.
A sign at the front of the Hawaii Supreme Court building states, "All individuals entering this secured area are required to pass through security screening. Any individual refusing to comply will be denied entry." McIntire Decl. ¶ 8; Id. Ex. A.
C. Fernandez's Facts as Stated at the Hearing.
Given the different accounts and the unclear nature of Fernandez's filings, the court questioned Fernandez at length at the hearing on the present motions about what had happened to him at the Hawaii Supreme Court. Although Fernandez's answers to the court's questions were sometimes contradictory, they provided more clarity than his papers. His statements at the hearing were not in admissible format, but the court, bending over backwards given Fernandez's pro se status and keeping Fraser in mind, considers those statements here.
At the hearing, Fernandez said that he had been a frequent visitor to the Hawaii Supreme Court library for years. He said that, on August 25, 2010, in what Fernandez suggested was a departure from earlier practice, he was patted down, from the waist down, by security personnel. Fernandez said that he told the security officers that he was permitting them to do the pat down on that day only. Fernandez denied that he was offered other options, such as having a metal-detecting wand passed over him, or turning his belt around and taking off his shoes. According to Fernandez, after that day the security officers ...