Summary
recognizing that out-of-circuit case law is not binding precedent
Summary of this case from American International Specialty Lines Ins. v. Nwi-IOpinion
01 C 50133
October 10, 2001
MEMORANDUM OPINION AND ORDER
Plaintiffs, Doug and Chris Block, individually and as parents and guardians of Amanda Block, have filed a four-count first-amended complaint against defendants, Rockford Public School District # 205 ("School District # 205") and Yolanda Simmons, in her capacity as Principal of Guilford High School. Relevant to this order is Count I, in which plaintiffs allege School District # 205 and Simmons violated Amanda's rights under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"). Junsdiction and venue are proper under 28 U.S.C. § 1331, 1367, 1391. Before the court is Simmons' motion to dismiss, filed pursuant to Federal Rule of Civil Procedure 12 (b)(6), plaintiffs' motion for leave to file their untimely response brief to Simmons' motion, and Simmons' motion to strike said response brief.
The court first denies plaintiffs' motion to file an untimely response brief, and thus denies as moot Simmons' motion to strike that brief. Plaintiffs' response brief was due September 5, 2001. They did not, however, actually file the brief until two weeks later on September 20, 2001 — two days after Simmons had already filed her reply brief. To make matters worse, plaintiffs waited five days after September 20 before even moving for leave to file the late response brief. And the reasons plaintiffs offer for not filing the response brief on time are particularly unconvincing. In any event, the court has reviewed the response brief and finds it would not change the court's decision in ruling upon the motion to dismiss.
Although plaintiffs imply Count I is brought under Title III of the ADA, it is inescapable that Title II is the only option open to them. Title II of the ADA applies to public entities, which are defined to include "any department, agency, special purpose district, or other instrumentality of a State or States or local government." 42 U.S.C. § 12131(1)(B). Title III, on the other hand, applies to private entities operating "places of public accommodations," not to public entities. See id. §§ 12181(6), (7), 12182(a); 28 C.F.R. § 36.104; see also Bloom v. Bexar County, Tex., 130 F.3d 722, 726-27 (5th Cir. 1997) (collecting other cases). Plaintiffs' allegation that School District # 205 is the "operator of a public accommodation" (Am. Compl., ¶ 7), in an apparent attempt to invoke Title III, is simply untenable as it ignores the fact that it is not a private entity.Cf. 42 U.S.C. § 12181 (7)(J). As the amended complaint makes clear, School District # 205 is a " public school district" and Simmons is the principal of Guilford High School — a high school within School District # 205. (Am. Compl. ¶ 7) (emphasis added) These are quintessential "public entities," making Title II the exclusive means of enforcing Amanda's rights under the ADA. See DeBord v. Board of Educ. of the Ferguson-Florissant Sch. Dist., 126 F.3d 1102, 1106 (8th Cir. 1997), cert. denied, 523 U.S. 1073 (1998). That leaves plaintiffs without a claim against Simmons because the Seventh Circuit has recently and specifically held there is no personal liability under Title II of the ADA, See Walker v. Snyder, 213 F.3d 344, 346 (7th Cir. 2000),cert. denied sub nom., United States v. Snyder, 121 S.Ct. 1188 (2001), and Count I is the only count brought against Simmons.
Plaintiffs try to skirt around this issue in their response brief by citing some cases (from district courts outside the Seventh Circuit no less) holding 42 U.S.C. § 12182 — i.e., Title III of the ADA — permits liability against individual defendants. Apart from not being binding on this court, those cases are beside the point because, as the court just made clear in the discussion above, this is not a Title III case.
For the reasons stated above, plaintiffs' motion for leave to file a late response brief is denied, Simmons motion to strike that response brief is denied as moot, and Simmons' motion to dismiss is granted. Simmons is hereby dismissed as a defendant.