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John Gallagher v. San Diego Unified Port District

July 22, 2011

JOHN GALLAGHER,
PLAINTIFF,
v.
SAN DIEGO UNIFIED PORT DISTRICT, CITY OF CORONADO, AND DOES 1 THROUGH 20, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

[Doc. No. 64]

The Defendant, San Diego Unified Port District, filed a motion for summary judgment and request for judicial notice*fn1 , [Doc. No. 64]. The Plaintiff filed an opposition, [Doc. No. 66], and the Defendant filed a reply, [Doc. No. 67]. Based upon the record and the parties moving papers and for the reasons set forth herein, the Defendant's motion for summary judgment, Doc. No. 64, is hereby GRANTED.

Background

I. Factual Background

Plaintiff John Gallagher has a weak and shortened left leg due to childhood polio. Plaintiff brings this case, inter alia, to challenge the Port's failure to re-issue the anchorage permit for his boat in early 2007. Plaintiff previously sought an accessible anchorage for his boat in 1998 when he filed the federal

Gallagher v. San Diego Unified Port District, 98-cv-0615 J (JAH) ("Gallagher I").*fn2 The main factual allegations of Gallagher I were that: (1) the Port denied the disabled access to San Diego Bay due to inadequate docks, ramps, and facilities (the "Accessibility Claims"); and (2) the District's anchoring regulations discriminated against the disabled, resulting in their inability to anchor in the San Diego Bay (the "Anchoring Claim").

On August 8, 2000 Gallagher I resolved with respect to the Accessibility Claims only, when the parties signed a "Settlement Agreement and Release of Claims." [("Settlement Agreement"), Ex. 3 ISO Motion.] On November 17, 2000, in order to resolve the Anchoring Claim, the Port made a Third Offer of Judgment to Plaintiff wherein the Port agreed to issue a permit to Plaintiff to anchor in a portion of the A-9 anchorage free and long-term, subject to all the regulations applicable to the A-8 anchorage, as a reasonable accommodation. [("Third Offer of Judgment"), Port's Ex. 4 ISO Motion.] Plaintiff accepted the third offer of judgment on November 27, 2000. (Port's Ex. 5 ISO Motion.)

Even though the Port gave the Plaintiff a Permit to anchor in the A-9 Anchorage, the Plaintiff did not attempt to use the permit until July of 2006. On July 24, 2006, the Plaintiff called the Port's mooring office to obtain a Permit and was told that he needed to bring his vessel down to a dock for a vessel inspection in order to get a Permit. See Pla.'s Depo. 48:18-25. Two officers assisted the Plaintiff and a new Permit was issued to the Plaintiff dated July 24, 2006 with an expiration date of January 23, 2007. The Plaintiff's boat was vandalized on July 26, 2006, two days after he received his A-9 permit. The Plaintiff did not notify the Port of the vandalism or the removal of his boat from the anchorage for repairs. See Pla.'s Depo. 66: 3-6; 72: 3-6.

On September 5, 2006, the Port adopted amendments to § 4.36 of the Unified Port District Code ("UPDC"). In pertinent part, those amendments provided: "Upon enactment of this Section 4.36, as amended, the Port shall discontinue issuing permits to anchor in the A-8 Anchorage, except for the purpose of re-issuing Permits to Vessels with current valid Permits and meeting all the requirements and conditions of this Section." [Port's Ex. 8 ISO Motion (providing UPDC § 4.36(c)(11)).] The regulations of the A-9 Anchorage require permittees to comply with all regulations of the A-8 Anchorage. [Port's Ex. 7 ISO Motion (providing UPDC § 4.38(h)(4)(d)).] Accordingly, the halt in the issuance of new A-8 anchorage permits also ended the Port's issuance of new A-9 permits.

The Plaintiff alleges he attempted to renew his permit in December 2006 or January of 2007, but the Port ignored his letters and phone calls. A review of the record and moving papers, however, demonstrates that the Plaintiff has provided no evidence to support these contentions and the Port's mooring office has no record of any telephone calls or letters being received from the Plaintiff during this period. The Port does have a record of Staff Assistant Emily Quimpo receiving a telephone call on April 3, 2007 from the Plaintiff seeking to renew his Permit, and a message of this call being forwarded to Bay Control Officer Corporal Laura Tosatto, who asked her incoming replacement, Officer Matt Bishop, to return the call to the Plaintiff. See Bishop Decl. at ¶¶ 2-3. Officer Bishop called the Plaintiff back on April 3, 2007. Officer Bishop has determined that Plaintiff's Permit had expired and that his vessel was not currently in the water. The Plaintiff told Officer Bishop that he wanted to renew his Permit, but said nothing about any prior attempts to do so. The Plaintiff also asked Officer Bishop if it was true that the Port was no longer issuing A-8 Anchorage Permits and Officer Bishop replied that it was true based upon changes to the UPD Code made by the BPC in September 2006. Bishop Decl. at ¶7.

On July 3, 2007, the Plaintiff met with Port counsel Ellen Gross Miles. On July 6, 2007, the Plaintiff received a letter from the Port dated July 6, 2007,*fn3 which stated that the Plaintiff's Permit had expired pursuant to UPD Code § 4.36. (Port's Ex. 9-11.) The letter directed plaintiff's attention to the September 5, 2006 amendments regulating the A-8 and A-9 anchorages and explained the Port would not renew plaintiff's permit because it expired "in or about" January of 2007. (Id.)

II. Procedural Background

Plaintiff filed suit on May 19, 2008 and filed a first amended complaint ("FAC") on July 11, 2008, naming the Port and the City. The Court dismissed the FAC in its entirety on October 1, 2008, but granted Plaintiff leave to amend. (Doc. No. 14.) Plaintiff filed a second amended complaint ("SAC") on November 12, 2008. (Doc. No. 15.) The Court partially dismissed the SAC on February 6, 2009, ("Second Dismissal Order,") granting Plaintiff leave to amend some of his claims. On May 6, 2009, Plaintiff filed his third amended complaint ("TAC.") The TAC alleges eight causes of action: (1) discrimination in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132; (2) retaliation in violation of the ADA, 42 U.S.C. § 12203; (3) injunctive relief pursuant to California state laws protecting the disabled; (4) "impairment of contracts" in violation of the United States Constitution; (5) violation of 42 U.S.C. § 1983 based on impairment of ...


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