Opinion
Civil Action No. 03-CV-5661.
January 22, 2004
MEMORANDUM ORDER
Pro se Plaintiff James George Douris brings this action against the Office of the Pennsylvania Attorney General ("OAG"), Bucks County District Attorney's Office, Dianne Gibbons, and Arlene J. Angelo for violations of Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Pennsylvania Human Relations Act ("PHRA"), 43 PA. CONS. STAT. §§ 951, et seq. Plaintiff alleges that proper accommodation was not made for him at an auction of confiscated property in Bucks County. Plaintiff seeks equitable relief, damages, and attorney's fees and costs. Presently before the Court is Defendant OAG's Motion to Dismiss (Docket No. 4). For the reasons that follow, OAG's Motion will be granted and the claims against it will be dismissed.
I. Facts
Plaintiff is disabled. He is confined to a wheelchair, has an inability to use either of his hands, has chronic arthritic pain, and has visual and hearing problems. (Compl. ¶ 3.) On October 12th and 13th, 2001, Plaintiff attended a public auction of confiscated property in Bucks County held by the OAG and the Office of the District Attorney of Bucks County. (Id. ¶¶ 14, 15.) The building site did not have any posted handicapped parking signs close to the entrance of the auction site. (Id. ¶ 12.) Once inside the building, Plaintiff attempted to participate in the auctions. However, because of Plaintiff's inability to use his hands he was unable to fill out a "bid" and take advantage of the opportunity of participating in the auction. (Id. ¶ 16.) No accommodation was made for Plaintiff's disabilities. In addition, while at this public auction, Plaintiff attempted to use the restroom facilities. Again, because of his disabilities Plaintiff could not use the facilities that were provided. No accommodation had been made for his disability. (Id. ¶ 17.) Plaintiff alleges that Defendant OAG is liable because it was a beneficiary of the auction and was responsible for accommodating Plaintiff's disabilities under federal and state law. (Id. ¶ 15.) Defendant OAG moves to Dismiss the claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Defendant's Motion is based solely on the argument that the Eleventh Amendment and the doctrine of "sovereign immunity" bar Plaintiff's claims under Title II of the ADA and the PHRA.
Plaintiff also makes a claim under "Title VIII Section 813 of the 1968 Civil Rights Act." This provision gives private individuals a civil action for alleged discriminatory housing practices. See 42 U.S.C. § 3613, and has no apparent application to this case.
II. Legal Standard
Fed.R.Civ.P. 12(b)(1) allows a court to dismiss a complaint for lack of subject matter. A motion under Rule 12(b)(1) is the proper mechanism for raising the issue of whether sovereign immunity under the Eleventh Amendment bars federal jurisdiction.Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 694 n. 2 (3d Cir. 1996) (citing Penhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 98-100 (1984) (holding that the Eleventh Amendment is a jurisdictional bar which deprives federal courts of subject matter jurisdiction)). When considering a motion to dismiss under Rule 12(b)(1), the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of Plaintiff. Scott v. Pa. Dep't of Public Welfare, No. Civ. A. 02-3799, 2003 WL 22133799 at * 2 (E.D. Pa. Aug. 28, 2003) (citing Turicentro, S.A. v. Am. Airlines Inc., 303 F.3d 293, 300 n. 4 (3d Cir. 2002).
Defendant has moved the Court to dismiss pursuant to both Rule 12(b)(1) and 12(b)(6). Defendant's Motion is proper under Rule 12(b)(1). We only consider this Motion pursuant to that Rule.
Plaintiff is proceeding pro se in this case. A pro se complaint, "however inartfully pleaded," is subject to more liberal review than a district court's review of pleadings prepared by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). In liberally construing a pro se plaintiff's pleadings, we will "apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name." Higgins v. Beyer, 293 F.3d 683, 687 (3d Cir. 2002).
III. Discussion
1. Title II of the ADA
OAG argues that it cannot be sued under Title II of the ADA because Plaintiff's claims are barred by the Eleventh Amendment. Generally, pursuant to the Eleventh Amendment, states are immune from suit by private parties in federal courts. Kimel v. Florida Bd. of Regents, 528 U.S. 62, 72-73 (2000); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Lavia v. Pennsylvania, 224 F.3d 190, 195 (3d Cir. 2000); Penhurst, 465 U.S. at 100 ( Eleventh Amendment bar applies regardless of the relief sought). The Eleventh Amendment provides that, "[t]he judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. The Supreme Court has interpreted the Eleventh Amendment to prohibit suits by citizens against their own States as well. See Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). A state is subject to suit where it has either waived its immunity, or Congress has validly abrogated its immunity through statute.Id.; Seminole, 517 U.S. at 58. In this case, OAG claims that Congress has not validly abrogated its immunity from suit under Title II of the ADA.
The Eleventh Amendment bar "extends to suits against departments or agencies of the state having no existence apart from the state." Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Defendant OAG is indisputably a state agency with no existence apart from the state.
Title II concerns discrimination in public accommodations, and reads in relevant part: "Subject to the provisions of this subchapter, 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.
Congress may abrogate a state's sovereign immunity only if it (1) unequivocally expresses its intent to do so and (2) acts pursuant to a valid exercise of power under Section 5 of the Fourteenth Amendment. Garrett, 531 U.S. at 363; Kimel, 538 U.S. at 73. The first of these requirements is not in dispute here. In the ADA Congress clearly states its intention to hold states liable for violations of the ADA. Garrett, 531 U.S. at 364. The only issue in dispute is whether Congress properly exercised its authority under Section 5 of the Fourteenth Amendment when it subjected the states to suit in federal court.
The ADA provides that: "[a] State shall not be immune under the [E]leventh [A]mendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter." 42 U.S.C. § 12202.
Section 5 is the enforcement provision of the Fourteenth Amendment that allows Congress to enact "appropriate legislation" to remedy or deter violations of the Amendment's due process and equal protection guarantees. City of Boerne v. Flores, 521 U.S. 507, 536 (1997). "Congress' power to enforce the Amendment includes the authority both to remedy and to deter violations of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text." Kimel, 538 U.S. at 81. However, City of Boerne confirmed that "it is the responsibility of this Court, not Congress, to define the substance of Constitutional guarantees." 521 U.S. at 519-24. As a result, the Supreme Court has said that Section 5 legislation "reaching beyond the scope of § 1's actual guarantees must exhibit `congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'"Garrett, 531 U.S. at 365 (quoting City of Boerne, 521 U.S. at 520).
Section 5 of the Fourteenth Amendment provides: "Congress shall have power to enforce, by appropriate legislation, the provisions of this article." U.S. Const. Amend. XIV.
Plaintiff argues that the issue in this case is controlled by the decision in Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 213 (1998), where the Court held that a prison inmate could sue the Commonwealth of Pennsylvania under Title II. However, in Yeskey the Supreme Court explicitly stated that it declined to consider whether the actions taken by Congress in applying the ADA to the states was a valid exercise of constitutional power. 524 U.S. at 212-13. In Garrett, the Supreme Court decided the issue of whether Congress properly exercised its power under Section 5 of the Fourteenth Amendment with regard to suits brought under Title I of the ADA. The Court first determined that "the constitutional right at issue protects the disabled only from irrational discrimination on the part of the states." Id. at 365. The Supreme Court then sought to determine whether Congress "identified a history and pattern of unconstitutional employment discrimination by the states against the disabled" such that the exercise of authority was warranted. Id. at 368. It concluded that "[t]he legislative record of the ADA . . . simply fails to show that Congress did in fact identify a pattern of irrational state discrimination in employment against the disabled," such that the remedies of Title I were not sufficiently "congruent and proportional" to any finding of unconstitutional discrimination.Id. As a result, the Court held that Congress had not sufficiently abrogated sovereign immunity so that states would be liable for money damages under Title I.
Title I of the ADA prohibits employment discrimination against disabled individuals. See 42 U.S.C. § 12112.
In Garrett the court declined to specifically address the question currently before us. 531 U.S. at 360 n. 1 ("We are not disposed to decide the constitutional issue whether Title II, . . ., is appropriate legislation under § 5 of the Fourteenth Amendment. . . ."). While the Third Circuit has not yet spoken on this issue, Koslow v. Commonwealth of Pennsylvania, et al., 302 F.3d 161, 166 n. 3 (3d Cir. 2002); Lavia, 224 F.3d at 195 n. 2, a split currently exists among the Circuits that have. However, with one exception, the district courts in this Circuit that have considered the issue after Garrett have determined that Congress did not validly abrogate the states' immunity in enacting Title II. See, e.g., O.F. v. Chester Upland Sch. Dist., 246 F. Supp.2d 409 (E.D. Pa. 2002); Lieberman v. Delaware, Civ. A. No. 96-523, 2001 WL 1000936 (D. Del. Aug. 30, 2001); Jones v. Pennsylvania, 164 F. Supp.2d 490 (E.D. Pa. 2001); Frederick L. v. Dep't of Pub. Welfare, 157 F. Supp.2d 509 (E.D. Pa. 2001); Doe v. Division of Youth Family Servs., 148 F. Supp.2d 462 (D.N.J. 2001); but see Wesley v. Vaughn, Nos. Civ.A. 99-1228, 99-1229, 2003 WL 1493375, at *6 (E.D. Pa. March 19, 2003). These courts have concluded that, in light of Garrett, "it is evident that Congress did not sufficiently identify a pattern of unconstitutional discrimination by the states." Chester Upland, 246 F. Supp.2d at 425. They found that the remedies connected to Title II, are not congruent and proportional to the targeted constitutional infirmity so as to abrogate the sovereign immunity of the states Id. We agree. Accordingly, we will grant the OAG's Motion with respect to Plaintiff's claim under Title II of the ADA.
See Popovich v. Cuyahoga County Ct. of Common Pleas, 276 F.3d 808, 815 (6th Cir. 2002) (en banc) (permitting plaintiff to sue the state under Title II when plaintiff alleged a due process violation, but not when he alleged an equal protection violation); Kiman v. New Hampshire, 301 F.3d 13, 24 (1st Cir. 2002) (holding Congress validly abrogated the Eleventh Amendment insofar as Title II applies to cases involving a constitutional violation by the state); Wessel v. Glendening, 306 F.3d 203 (4th Cir. 2002) (holding Congress did not validly abrogate the Eleventh Amendment when it enacted Title II); Reickenbacker v. Foster, 274 F.3d 974 (5th Cir. 2001) (same); Garcia v. S.U.N.Y. Health Scis. Ctr., 280 F.3d 98, 112 (2d Cir. 2001) (holding Title II exceeds Congress' authority to the extent that it authorizes suit against the States absent evidence of "discriminatory animus or ill will due to disability"); Walker v. Snyder, 213 F.3d 344 (7th Cir. 2000) (holding Title II's abrogation invalid); Alsbrook v. City of Maumelle, 184 F.3d 999 (8th Cir. 1999) (en banc) (same); Dare v. California, 191 F.3d 1167 (9th Cir. 1999) (holding "that the ADA was a congruent and proportional exercise of Congress's enforcement powers . . . that abrogated Eleventh Amendment immunity").
2. Pennsylvania Human Relations Act
Plaintiff claims that Defendant's failure to make accommodation for his disabilities also violates the Pennsylvania Human Relations Act, 42 PA. CONST. STAT. § 951, et seq. Defendant contends that sovereign immunity also applies to this claim and precludes judgment against the state. As has been previously stated, a state can only be sued if Congress effectively abrogates the state's immunity or if the state consents to be sued. "While the PHRA has been held to waive Pennsylvania's immunity from suit in state court . . . that waiver does not subject Pennsylvania to a PHRA suit in federal court." Moore v. Pa. Dept. of Military and Veterans Affairs, 216 F. Supp.2d 446, 454 (E.D. Pa. 2002). In fact, Pennsylvania law explicitly withholds this consent. See 42 Pa. Cons. Stat. § 8521(b) ("Nothing contained in this subchapter shall be construed to waive the immunity of the Commonwealth from suit in Federal courts guaranteed by the Eleventh Amendment of the United States."). Thus, we agree with the other courts that have addressed this issue. Plaintiff may not pursue a PHRA claim against Pennsylvania or its agencies in federal court. See Moore, 216 F. Supp.2d at 454; Demyun v. Pa. Dep't of Corrections, No. 300CV155, 2001 WL 1083936, *4 (M.D. Pa. Sept. 14, 2001); Williams v. Pa. State Police-Bureau of Liquor Control Enforcement, 108 F. Supp.2d 460, 465 (E.D. Pa. 2000);Fitzpatrick v. Commonwealth of Pa. Dep't of Transp., 40 F. Supp.2d 631, 635 (E.D. Pa. 1999); Dill v. Pennsylvania, 3 F. Supp.2d 583, 587-88 (E.D. Pa. 1998). Defendant's Motion with respect to the PHRA will be granted.
The PHRA concerns discrimination in employment and in public accommodations and reads in relevant part:
The opportunity for an individual to obtain employment for which he is qualified, and to obtain all the accommodations, advantages, facilities and privileges of any public accommodation and of any housing accommodation and commercial property without discrimination because of race, color, familial status, religious creed, ancestry, handicap or disability, age, sex, national origin, the use of a guide or support animal because of the blindness, deafness or physical handicap of the user or because the user is a handler or trainer of support or guide animals is hereby recognized as and declared to be a civil right which shall be enforceable as set forth in this act. 43 PA. CONS. STAT. § 953.
An appropriate Order follows.
ORDER
AND NOW, this 22 day of January, 2004, upon consideration of Defendant Office of the Attorney General of Pennsylvania's Motion to Dismiss (Docket No. 4), and all papers filed in support thereof and in opposition thereto, it is ORDERED that Defendant's Motion is GRANTED and the action against Defendant Office of the Pennsylvania Attorney General is DISMISSED.IT IS SO ORDERED.