Wiesner v. Parsons et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Andrew C. Wiesner
v. 	Case No. 18-cv-673-JL
Jeb Parsons
Julie Cleary
REPORT AND RECOMMENDATION
Plaintiff Andrew C. Wiesner, proceeding in forma pauperis,
has filed a Complaint (Doc. No. 1) that is before this court for
preliminary review, pursuant to LR 4.3(d) and 28 U.S.C.
§ 1915(e)(2).
Preliminary Review Standard
The magistrate judge conducts a preliminary review of
pleadings filed in forma pauperis. 	See LR 4.3(d). 	The
magistrate judge may recommend to the district judge that one or
more claims be dismissed if, among other things, the court lacks
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. 	See 28 U.S.C. § 1915(e)(2); LR 4.3(d). 	In conducting
its preliminary review, the court construes pro se complaints
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam). 	The complaint must contain “sufficient factual matter,
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accepted as true, to ‘state a claim to relief.’” 	Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (citation omitted).
Background
Wiesner alleges that defendants Jeb Parsons and Julie
Cleary own a parking lot and operate a business served by the
lot, respectively. 	In his Complaint (Doc. No. 1), Wiesner
alleges that Parsons and Cleary signed writs of trespass against
him “without notice.” 	According to Wiesner, Parsons asked
Wiesner to place notes on cars that were improperly parking
overnight in the lot. 	In a small claims complaint he filed
against Parsons, which appears to have been resolved by
Parsons’s payment of the amount demanded, Wiesner alleged that
after Cleary complained to Parsons about the notices Wiesner had
placed on the cars, she and Parsons executed the trespass
notifications. 	Doc. No. 5, at 4.
Wiesner has further asserted that his vehicle has handicap
plates, which evince his disability. 	See Doc. No. 5, at 1.
Wiesner has also filed as exhibits emails he exchanged with City
of Dover, New Hampshire, employees complaining about the writs
of trespass and asserting that he believed he was the target of
disability discrimination. 	Wiesner has included an
informational notice issued by the Maine Department of Human
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Rights regarding disability discrimination to with his filings
in this case.
Construed liberally, Wiesner’s complaint asserts a claim
that defendants violated his rights as a handicapped person
under Title III of the Americans with Disabilities Act, 42
U.S.C. § 12181 et seq. (“ADA”), when they secured writs of
trespass barring him from access to a parking lot and businesses
owned by defendants. 	Doc. No. 4, at 3-7.
Discussion
The ADA provides, in pertinent part:
No individual shall be discriminated against on the
basis of disability in the full and equal 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). 	“To prove a violation of Title III of the
ADA, a plaintiff must show that she is disabled within the
meaning of the ADA, that the defendant is a private entity that
owns or operates a place of public accommodation, and that the
plaintiff was denied accommodation because of her disability.”
Collins v. Dartmouth–Hitchcock Med. Ctr., 2015 DNH 15, 8–9
(DiClerico, J.) (citing Arizona ex rel. Goddard v. Harkins
Amusement Enters., Inc., 603 F.3d 666, 670 (9th Cir. 2010).
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A plaintiff can assert three types of ADA Title III claims,
of which two may be pertinent here: “disparate treatment” and
“disparate impact.” 	A disparate treatment claim asserts
intentional discrimination, “i.e., that the disability actually
motivated the defendant’s challenged adverse conduct.” 	Nunes v.
Mass. Dep’t of Corr., 766 F.3d 136, 144–45 (1st Cir. 2014). 	In
the alternative, a plaintiff can assert a disparate impact
claim, “i.e. that a defendant’s challenged conduct, even if not
motivated by a discriminatory animus, disparately affects the
disabled.” 	Nat’l Ass’n of the Deaf v. Harvard Univ., No. 3:15-
CV-30023-MGM, 2016 WL 3561622, at *4 (D. Mass. Feb. 9, 2016),
R&R adopted, No. 15-30023-MGM, 2016 WL 6540446 (D. Mass. Nov. 3,
2016) (citing Nunes, 766 F.3d at 145).
Wiesner has not alleged facts sufficient to state a claim
of intentional discrimination. 	Although Wiesner has alleged
that the disability plates on his car “evince” that he is
disabled, Wiesner has not alleged facts showing that defendants
were aware that his car had such, or that they otherwise knew
that he was disabled, when they obtained writs of trespass.
Even if he had alleged such knowledge, he fails to allege that
his disability “actually motivated the defendants.” 	Nunes, 766
F.3d at 144. 	Indeed, the small claims complaint states, and
other attached documents suggest, that the defendants caused the
no trespass writs to issue after Cleary complained about the
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notes Wiesner was placing on parked cars. 	Accordingly,
Wiesner’s complaint fails to state a claim of disparate
treatment discrimination under ADA Title III.
Exhibits filed as complaint addenda indicate that Wiesner
considered the writs of trespass to be evidence of “disparate
impact” disability discrimination. 	“[T]he appropriate inquiry
is into the impact on the total group to which a policy or
decision applies.” 	Hallmark Developers, Inc. v. Fulton Cty.,
466 F.3d 1276, 1286 (11th Cir. 2006) (race discrimination
claim). 	“Typically, a disparate impact is demonstrated by
statistics.” 	Id.; see also Tsombanidis v. West Haven Fire
Dep’t, 352 F.3d 565, 576 (2d Cir. 2003) (observing that it “is
not sufficient for disparate impact purposes” to show only that
an ordinance “prevents a handicapped person from living in a
particular house.”).
Wiesner has alleged no facts to support a claim that
disabled individuals as a class have been disproportionately
impacted by the issuance of writs of trespass by defendants.
Accordingly, Wiesner has failed to state sufficient facts to
support an ADA Title III disparate impact claim upon which
relief can be granted.1
1 Plaintiff also requests money damages. 	Money damages are
not available to a private individual bringing suit under Title
III of the ADA. 	See Goodwin v. C.N.J., Inc., 436 F.3d 44, 50
(1st Cir. 2006).
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Conclusion
For the foregoing reasons, the district judge should
dismiss this claim pursuant to 28 U.S.C. § 1915(e)(2). 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file objections within the specified time
waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
September 27, 2018
cc: 	Anthony Wiesner pro se
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