The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
MEMORANDUM AND ORDER RE: MOTION TO DISMISS ) FIRST AMENDED COMPLAINT
On June 23, 2011, Plaintiff, Timothy Daubert, ("Plaintiff") filed a Second Amended Complaint ("SAC") against Defendant, City of Lindsay ("Defendant"). The SAC alleges violations of the Americans with Disabilities Act ("ADA") and § 504 of the Rehabilitation Act ("the Rehabilitation Act" or "RA") at the McDermont Field House in Lindsay, California, which is a large indoor recreational facility operated by Defendant ("the Field House"). (Doc. 48).
On July 7, 2011, Defendant filed a Motion to Dismiss.*fn1
(Doc. 42). Plaintiff filed an opposition on August 4, 2011.
(Doc. 55). Defendant filed a reply on August 11, 2011. (Doc. 56). On
August 12, 2011, the Court took the matter under submission pursuant
to Local Rule 230(g). (Doc. 57). Upon a review of all of the
pleadings, Defendant's Motion to Dismiss is GRANTED.
Under Federal Rule of Civil Procedure 12(b)(6)a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), the court accepts the complaint's material allegations of fact as true, and the court construes these facts in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004). However, the court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). As the Supreme Court has explained:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations 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). Thus, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949. "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.
The plausibility standard is not akin to a probability requirement, but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief. . . .
Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.
Iqbal, 129 S.Ct. at 1949-50 (internal cites and quotes omitted). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,'and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Service, 572 F.3d 962, 969 (9th Cir. 2009).
SUMMARY OF PLAINTIFF'S COMPLAINT *fn2
The SAC alleges the following
Plaintiff is a resident of the City of Lindsay with physical disabilities. He is significantly impaired in his ability to walk and he uses a wheelchair for mobility.
Defendant is a public entity who owns, operates, and controls the McDermont Field House located in Lindsay, California.
The McDermont Field House is a renovated sports facility that was originally an abandoned orange packinghouse. It held its grand opening on June 21, 2008.
The entire Field House encompasses approximately 172,000 square feet. It is a venue that includes basketball courts, laser tag arenas, arcades, concession stands, restaurants, an indoor FlowRider, an indoor skate park, a 50 foot climbing wall, regulation indoor soccer fields, and a zipline that starts from four stories up. It also includes a dance floor, hosts concerts, bike and car shows, and more.
On or about December 4, 2009, Plaintiff went to the Field House and paid his admission fee so that he could enjoy the programs available within. Unfortunately, he encountered a number of inaccessible and discriminatory conditions.
The path of travel that leads from the accessible parking on the north side of the Field House to the entrance is inaccessible to wheelchair users because the sidewalk is only thirteen inches in width which violates the Americans with Disabilities Act Accessibility Guidelines ("ADAAG") §§ 4.3.2(a) and 4.3.3.
The path of travel from the slot car track to the second floor is discriminatory to wheelchair users. Ambulatory persons simply take the adjacent stairs. The "accessible" path of travel for wheelchair users is dramatically longer and requires the wheelchair user to go outside on a balcony, exposed to the elements (wind, cold, and rain), before reentering the building. This violates the anti-discrimination provisions of the ADA and the provision under 28 C.F.R. 35.151(a)(1) that new facilities be designed so that they are readily accessible to and useable by persons with disabilities.
The ramp that leads from the arcade area to the gym/rock wall is fifty two feet long with a rise of forty two inches. Pursuant to ADAAG § 4.8.4, level landings at the bottom and the top of each ramp and ramp run are required. Here, the landing in the middle of the ramp has an incline which is exhausting for Plaintiff.
The soda fountain counter, which is also the sales and service counter in the dining room area, is forty six inches high and inaccessible to wheelchair users. ADAAG § 7.2 requires a portion of the counter to be no ...