United States District Court, D. Columbia.
ANTHONY HUNTER, on his behalf and as parent of his minor daughter, A.H., Plaintiffs,
THE DISTRICT OF COLUMBIA, a municipal corporation, THE COMMUNITY PARTNERSHIP FOR THE PREVENION OF HOMELESSNESS, COALITION FOR THE HOMELESS, and COMMUNITY OF HOPE, Defendants
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For ANTHONY HUNTER, On his behalf and as parent of his minor daughter, A.H., A. H., Minor, Plaintiffs: Amber W. Harding, LEAD ATTORNEY, WASHINGTON LEGAL CLINIC FOR THE HOMELESS, Washington, DC; Jeffrey S. Gutman, LEAD ATTORNEY, GEORGE WASHINGTON UNIVERSITY LAW SCHOOL, Community Legal Clinics, Washington, DC.
For DISTRICT OF COLUMBIA, Defendant: Gary Daniel Feldon, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC; Robert Joseph Rich, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Public Interest Division, Washington, DC.
For COMMUNITY PARTNERSHIP FOR THE PREVENTION OF HOMELESSNESS, Defendant: Marlene L. Johnson, LEAD ATTORNEY, Washington, DC.
For COALITION FOR THE HOMELESS, Defendant: Deborah Murrell Whelihan, LEAD ATTORNEY, JORDON COYNE, LLP, Fairfax, VA.
For COMMUNITY OF HOPE, Defendant: John S. Vander Woude, LEAD ATTORNEY, ECCLESTON & WOLF, P.C., Hanover, MD; Melissa E. Goldmeier, LEAD ATTORNEY, PRO HAC VICE, BALTIMORE-WASHINGTON LAW CENTER, Hanover, MD.
For UNITED STATES OF AMERICA, Interested Party: David William Knight, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Disability Rights Section, Washington, DC.
For COMMUNITY OF HOPE, Cross Claimant: John S. Vander Woude, LEAD ATTORNEY, ECCLESTON & WOLF, P.C., Hanover, MD; Melissa E. Goldmeier, LEAD ATTORNEY, BALTIMORE-WASHINGTON LAW CENTER, Hanover, MD.
For COALITION FOR THE HOMELESS, Cross Defendant: Deborah Murrell Whelihan, LEAD ATTORNEY, JORDON COYNE, LLP, Fairfax, VA.
For COMMUNITY PARTNERSHIP FOR THE PREVENTION OF HOMELESSNESS, Cross Defendant: Marlene L. Johnson, LEAD ATTORNEY, Washington, DC.
For DISTRICT OF COLUMBIA, Cross Defendant: Gary Daniel Feldon, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC; Robert Joseph Rich, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Public Interest Division, Washington, DC.
For DISTRICT OF COLUMBIA, Cross Claimant: Gary Daniel Feldon, LEAD ATTORNEY, OFFICE OF THE ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Public Interest Division, Washington, DC; Robert Joseph Rich, LEAD ATTORNEY, DC OFFICE OF THE ATTORNEY GENERAL, Public Interest Division, Washington, DC.
For COMMUNITY OF HOPE, Cross Defendant: John S. Vander Woude, LEAD ATTORNEY, ECCLESTON & WOLF, P.C., Hanover, MD; Melissa E. Goldmeier, LEAD ATTORNEY, BALTIMORE-WASHINGTON LAW CENTER, Hanover, MD.
Gladys Kessler, United States District Judge.
Plaintiff Anthony Hunter (" Hunter" ) and his minor daughter A.H. (collectively, " the Hunters" ) filed this action against the District of Columbia (" the District" or " D.C." ), the Community Partnership for the Prevention of Homelessness (" the Partnership" ), the Coalition for the Homeless (" the Coalition" ), and Community of Hope (" COH" ) (collectively, " Defendants" ). The Hunters allege that Defendants violated various federal and local anti-discrimination statutes and were negligent.
This matter is presently before the Court on the District's Motion to Dismiss Plaintiffs' First Amended Complaint [Dkt. No. 65] and COH's Motion to Dismiss Plaintiffs' First Amended Complaint [Dkt. No. 66]. Upon consideration of the Motions, Oppositions [Dkt. Nos. 73 and 74], Replies [Dkt. Nos. 77 and 80], the United States of America's Statement of Interest [Dkt. No. 79], the Responses to the United States' Statement of Interest [Dkt. Nos. 93 and 94], the entire record herein, and for the reasons stated below, the District's Motion is granted in part and denied in part, and Defendant COH's Motion is granted in part and denied in part.
A. Factual Background
The District, through its Department of Human Services (" DHS" ), provides social services for individuals and families in the city who are homeless or at risk of homelessness. First Amended Complaint (" Compl." ) ¶ 8. In doing so, it entered into contracts with various service providers. Id. ¶ 9.
One such contractor, the Partnership, has been retained to manage and direct emergency shelter services. Id. ¶ ¶ 9-10. As part of its duties, the Partnership runs the District-owned D.C. General Shelter.
Id. ¶ 10. The Partnership contracted with the Coalition to operate the Virginia Williams Family Resource Center (" the Center" ), which is the central intake facility for all families seeking placements in shelters. Id. ¶ 12. The Partnership has also contracted with COH to manage the day-to-day operations at the District-owned Girard Street Apartments. Id. ¶ ¶ 8, 11.
At the time of the events relevant to this case, Plaintiff Hunter lived with his six-year old daughter, A.H. Id. ¶ ¶ 7, 36. She was born with and continues to suffer from spina bifida and cri-du-chat syndrome. Id. ¶ ¶ 7, 35. As a result, she uses a wheelchair and cannot engage in " self-care, such as bathing, dressing and eating." Id. Her medical conditions leave her particularly susceptible to infections, and doctors have recommended she live in an environment that minimizes exposure to infections and other communicable diseases. Id.
On December 7, 2011, the Hunters faced immediate homelessness and applied for placement in a homeless shelter in the District. Id. ¶ 37. While at the Center discussing placement, Hunter told the staff that A.H. had mobility impairments and that the Hunters needed a non-communal environment with a private bathroom that was wheelchair accessible. Id. ¶ ¶ 37, 39. The Center staff failed to include the request for a non-communal environment with a private bathroom and included only the request for a wheelchair accessible unit when writing up the Hunters' reasonable accommodation request. Id. ¶ 39.
The Hunters were placed in " Building 12" of the D.C. General Shelter. Id. ¶ 41. Although the room was private, the ramp into the building was too steep to be wheelchair accessible. Id. ¶ ¶ 43, 46. The Hunters had to share a bathroom with several other families and the staff refused to let the Hunters eat in a separate room. Id. ¶ ¶ 47-48, 50. While residing in this shelter, A.H. developed a urinary tract infection resulting in the need for treatment at Children's Hospital. Id. ¶ 54. Asserting that the placement did not meet A.H.'s needs, Hunter repeatedly asked that he and A.H. be relocated to an accessible unit. Id. ¶ ¶ 51, 53.
On or about December 29, 2011, the Hunters were moved to the Girard Street Apartments, where they were given a private apartment. Id. ¶ ¶ 56, 66. The Hunters were told that the only available unit at the Girard Street Apartments was on the third floor and that they would not receive an accessible unit. Id. ¶ ¶ 69, 71. There was no elevator, so Hunter had to carry A.H. and her wheelchair up and down two flights of stairs to arrive at or leave the apartment. Id. ¶ 74. Finally, the hallways in the unit were too narrow to accommodate A.H.'s wheelchair. Id. ¶ 75.
There was at least one accessible first floor unit at the Girard Street Apartments that was occupied by a family that did not need the accessible features. Id. ¶ 78. Hunter was told by the program director that she could not require that family to move and that the Hunters would need to stay in the third floor unit. Id. On February
10, 2012, after the intervention of the Hunters' attorney, the Hunters were moved to a first floor unit. Id. ¶ 86. Because the wheelchair lift was broken, Hunter still had to lift the wheelchair up three steps to get to this apartment. Id. ¶ ¶ 73, 86. As a result of the need to lift and carry A.H.'s wheelchair, Hunter experienced back and chest pain. Id. ¶ 77.
On March 12, 2012, the Hunters moved out of the Girard Street Apartments and into a supportive housing program. Id. ¶ 88.
B. Procedural History
On December 6, 2012, the Hunters filed their Complaint [Dkt. No. 1], and on April 29, 2013, they filed a Motion for Leave to File an Amended Complaint [Dkt. No. 54]. On May 17, 2013, the Motion was granted via Minute Order.
On June 3, 2013, the District filed a Motion to Dismiss (" Mot." ) [Dkt. No. 65]. On June 7, 2013, COH filed a Motion to Dismiss (" COH Mot." ) [Dkt. No. 66]. On July 3, 2013, the Hunters filed their Opposition to the District's Motion (" Opp'n" ) and COH's Motion (" COH Opp'n" ) [Dkt. Nos. 73, 74]. On July 24, 2013, COH filed its Reply (" COH Reply" ) [Dkt. No. 77], and an Answer with regard to the two negligence claims [Dkt. No. 78]. On July 26, 2013, the District filed its Reply (" Reply" ) [Dkt. No. 81].
On July 26, 2013, the U.S. Department of Justice (" DoJ" ) filed a Statement of Interest related to and opposing the District's Motion to Dismiss [Dkt. No. 79]. On October 29, 2013, the District and COH both filed Responses to the Statement of Interest [Dkt. Nos. 93, 94].
II. STANDARD OF REVIEW
Under Rule 12(b)(6), a plaintiff need only plead " enough facts to state a claim to relief that is plausible on its face" and to " nudge [his or her] claims across the line from conceivable to plausible." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " [A] complaint [does not] suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotations omitted) (citing Twombly, 550 U.S. at 557). Instead, the complaint must plead facts that are more than " merely consistent with" a defendant's liability; " the pleaded factual content [must] allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678 (citing Twombly, 550 U.S. at 556).
" [O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. Under the standard set forth in Twombly, a " court deciding a motion to dismiss must . . . assume all the allegations in the complaint are true (even if doubtful in fact) . . . [and] must give the plaintiff the benefit of all reasonable inferences derived from the facts alleged." Aktieselskabet AF 21., 525 F.3d at 17 (internal quotations and citations omitted); see also Tooley v. Napolitano, 586 F.3d 1006, 1007, 388 U.S.App.D.C. 327 (D.C. Cir. 2009) (declining to reject or address the government's argument that Iqbal invalidated Aktieselskabet).
The District and COH raise several similar arguments. Consequently, the Court will address together the issues raised by both parties to each Count of the Complaint.
A. Counts I and III: Plaintiffs Have Sufficiently Alleged Claims Under Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act
Count I of the Amended Complaint alleges that Defendants violated Title II of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12131 et seq, which provides that " 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.
Count III of the Amended Complaint alleges that Defendants violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 701 et seq. Similar to Title II, Section 504 prohibits programs and activities receiving federal funds from discriminating on the basis of disability. 29 U.S.C. § 794(a) ( " No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." ); see also Young v. D.C. Hous. Auth., No. 13-652, 31 F.Supp.3d 90, 2014 WL 948317, at *5 (D.D.C. Mar. 12, 2014).
The focus of the Rehabilitation Act is narrower than the ADA because it only applies to programs receiving federal financial assistance. Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 85, opinion corrected, 511 F.3d 238 (2d Cir. 2004). Because Plaintiffs allege that the District receives federal funds, Compl. ¶ ¶ 8-9, the Rehabilitation Act claims and the Title II claims against the District may be considered together. Mot. at 5-6, 6 n.4; Opp'n at 4; see also Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1260 n.2, 381 U.S.App.D.C. 162 (D.C. Cir. 2008) (noting that the statutory provisions are so similar in substance that " cases interpreting either are applicable and interchangeable" (citation omitted)); Harrison v. Rubin, 174 F.3d 249, 253, 335 U.S.App.D.C. 413 (D.C. Cir. 1999) (" Claims and defenses under the [ADA and the Rehabilitation Act] are virtually identical." ).
COH argues that the ADA and the Rehabilitation Act do not apply to it, for various reasons. The Court will first address the substantive arguments raised by the District and then will resolve applicability of these statutes to COH.
1. Plaintiffs Are Not Required to Prove Intentional Discrimination to Plead a Claim for Declarative Relief
To establish a prima facie case under either Title II or the Rehabilitation Act, a plaintiff must allege that (1) she is a qualified individual with a disability; (2) the defendant is subject to the Acts; and (3) she was denied the opportunity to participate in or benefit from the defendant's services, programs, or activities, or was otherwise discriminated against by the defendant because of her disability. 42 U.S.C. § 12131;
29 U.S.C. § 794(a); see also McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)).
Although a plaintiff " need not plead a prima facie case of discrimination" in order to survive a motion to dismiss, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002), the District does not dispute that Plaintiffs have sufficiently alleged a prima facie case under the Acts. Instead, the District's primary argument is that Plaintiffs have failed to allege facts to support a claim that the District acted with the required intent. Mot. at 5-8.
As the District admits in its Response, the issue of intentional discrimination is only relevant to the issue of compensatory damages. Response at 9 n.5; Liese v. Indian River Cnty. Hosp. Dist., 701 F.3d 334, 344 (11th Cir. 2012) (observing that failure to provide reasonable accommodation " by itself will not sustain a claim for compensatory damages; the [plaintiffs] must also show by a preponderance that the [defendant]'s failure to provide appropriate [reasonable accommodations] was the result of intentional discrimination" ); Meagley v. City of Little Rock, 639 F.3d 384, 388 (8th Cir. 2011) (noting that every Court of Appeals to address the issue has held that a plaintiff may not recover compensatory damages under the ADA or the Rehabilitation Act without proof of discriminatory intent).
Therefore, Plaintiffs do not have to allege discriminatory intent in order to be entitled to the declaratory relief they request. Compl. at 38 (praying for declaratory relief); Am. Council, 525 F.3d at 1260 (noting that " section 504 does not require proof of discriminatory intent" ) (discussing Alexander v. Choate, 469 U.S. 287, 295, 105 S.Ct. 712, 83 L.Ed.2d 661 (1985)); Powers v. MJB Acquisition Corp., 184 F.3d 1147, 1152 (10th Cir. 1999) (" [I]ntentional discrimination is not an element of the plaintiff's prima facie case." ). Consequently, Plaintiffs have sufficiently alleged violations
under both Title II of the ADA and the Rehabilitation Act for declarative relief.
2. Plaintiffs Have Sufficiently Alleged Deliberate Indifference By the District of Columbia
The District argues that Plaintiffs have failed to sufficiently allege that it acted with deliberate indifference, and, hence, that Plaintiffs' request for compensatory damages under the ADA and the Rehabilitation Act must be dismissed.
Deliberate indifference occurs when a " defendant knew that harm to a federally protected right was substantially likely and . . . failed to act on that likelihood." Liese, 701 F.3d at 344 (quoting T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty., Fla., 610 F.3d 588, 604 (11th Cir. 2010));
Meagley, 639 F.3d at 389 (noting that deliberate indifference can be " inferred from a defendant's deliberate indifference to the strong likelihood that pursuit of its questioned policies will likely result in a violation of federally protected rights" ) (quoting Barber ex rel. Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1228-29 (10th Cir. 2009)).
Plaintiffs present two different theories under which the District can be found to have acted with deliberate indifference. First, Plaintiffs allege the District acted with deliberate indifference by failing to enforce its own obligations under the ADA. Second, Plaintiffs allege the District is responsible for the deliberate indifference of its contractors. The Court will address each theory in turn.
a. Direct Liability
First, Plaintiffs allege that the District was deliberately indifferent to its affirmative obligation under the ADA to ensure that its contractors not discriminate in the provision of public services on the basis of disability. The District argues that it does not have any affirmative obligation to monitor the actions of the contractors.
Regulations promulgated by the DoJ make clear that public entities cannot escape liability by contracting away the provision of services to a private entity. 28 C.F.R. § 35.130(b)(1) (" A public entity, in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of disability . . ." discriminate against an individual with a disability);
id. pt. 35, App'x A, at 517 (2002) (" All governmental activities of public entities are covered, even if they are carried out by contractors. For example, a State is obligated by title II to
ensure that the services, programs, and activities of a State park inn operated under contract by a private entity are in compliance with title II's requirements." ).
Unless the DoJ regulations are " arbitrary, capricious, or manifestly contrary to the statute," they should be given " controlling weight." Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); see also City of Arlington v. FCC, 133 S.Ct. 1863, 1868, 185 L.Ed.2d 941 (2013) (" Statutory ambiguities will be resolved, within the bounds of reasonable interpretation, not by the courts but by the administering agency." ). The District does not argue that the regulations are arbitrary or capricious. Indeed, all of the courts that have addressed the regulations have concluded that they are entitled to deference. See, e.g., Kerr v. Heather Gardens Ass'n, No. 09-00409, 2010 WL 3791484, at *9 (D. Colo. Sept. 22, 2010) (" [T]he regulations directing that a public entity is liable under Title II for direct conduct as well as indirect conduct, achieved through contracting, licensing, or the like, is not arbitrary, capricious, or manifestly contrary to the statute. Therefore, the regulations are entitled to controlling weight." ) (citing Chevron, 467 U.S. at 844); Armstrong v. Schwarzenegger, 622 F.3d 1058, 1065-67 (9th Cir. 2010) (analyzing statute and legislative history and holding that regulations " reflect the fairest reading of the statute" ).
Instead, the District argues that the statute and the regulations are satisfied so long as the public entity merely requires its contractors to comply with the statute. Mot. at 6-7. Its only citation to support this argument is language contained in an illustration in the DoJ's Title II Technical Assistance Manual stating that a State parks department would be " obligated to ensure by contract" that a privately owned restaurant in a State park " operated in a manner that enables the parks department to meet its title II obligations." Id. at 6 (citing United States Dep't of Justice, Civil Rights Div., The Americans With Disabilities Act: Title II Technical Assistance Manual (" TAM" ) § II-1.3000, illus. 1).
However, other illustrations in the TAM demonstrate that the ADA obligations of a public entity go beyond simply including particular language in its contracts with private contractors: Illustration 4 states that a public entity " must ensure that its contracts are carried out in accordance with title II." TAM § II-1.3000, illus. 4 (emphasis added). As the District Court for the District of Colorado observed, these examples " support a conclusion that a public entity cannot escape its obligations under Title II by delegating its duties to a private entity. Indeed, in each illustration the public entity remains subject to Title II despite its delegation of authority or duty to another, private entity."
Kerr, 2010 WL 3791484, at *10.
A number of courts have confirmed that public entities have an obligation to ensure that their private contractors comply with title II of the ADA. Henrietta D., 331 F.3d at 284-86 (holding that general rules of contract apply and supervisory liability exists under Rehabilitation Act); Hahn ex rel. Barta v. Linn Cnty., Iowa, 191 F.Supp.2d 1051, 1054 n.2 (N.D. Iowa 2002) (noting that its earlier opinion had concluded that " a contractual relationship between a public and a private entity may obligate the public entity to ensure that the private entities with which it contracts comply with the public entity's Title II obligations" ); James v. Peter Pan Transit Mgmt., Inc., No. 97-747, 1999 WL 735173, at *9 (E.D.N.C. Jan. 20, 1999) (" A public entity must not only ensure by contract that the private entity with whom it contracts complies with title II, but further,
must ensure that the private entity complies with the contract." ); Deck v. City of Toledo, 56 F.Supp.2d 886, 895 (N.D. Ohio 1999) (noting that public entity can be held liable for failing to oversee its contractors, even if it did not affirmatively intend to discriminate).
In sum, the District has not presented any support for its argument that it has no obligation to ensure that its private contractors comply with its ADA and Rehabilitation Act obligations, and all courts to address the issue have found that they have such an obligation. Thus, the Court holds that Plaintiffs may proceed on a theory that the District is directly liable for its deliberate indifference to its obligations under the ADA and the Rehabilitation Act.
b. Vicarious Liability
Plaintiffs also argue that the District can be held vicariously liable for the deliberate indifference of its contractors. The District concedes that a public entity can be held liable under the ADA for the deliberate indifference of its employees or agents. Mot. at 6 n.5. It argues, however, that the other Defendants in this case are independent contractors for whose actions it cannot be held liable. Id.
As a " general rule," an entity is not held vicariously liable for actions taken by an independent contractor. Interstate Fire & Cas. Co. v. Wash. Hosp. Ctr. Corp., No. 13-7024, 758 F.3d 378, 411 U.S.App.D.C. 187, 2014 WL 3538081, at *6 (D.C. Cir. July 18, 2014) (citing W.M. Schlosser Co. v. Md. Drywall Co.,673 A.2d 647, 651 (D.C. 1996)). " In determining whether a person is an employee or an independent contractor, District of Columbia courts consider multiple specified factors." Id. (citations omitted). However, the " decisive test is whether the employer has the right to control and direct the servant ...