Opinion
Case No. C 99-4375 JL C 00-0221 JL
March 7, 2001
SUMMARY JUDGMENT
INTRODUCTION
The parties' cross-motions for summary judgment came on for hearing on February 28, 2001. Plaintiff appeared in propria persona. Stephanie Bowick, Deputy City Attorney, appeared for Defendant. The court considered the written pleadings and oral argument and for good cause grants Defendants' motion and denies Plaintiff's.
FACTUAL BACKGROUND
In September 1999, the Plaintiff, who is homeless and claims to be disabled, applied for General Assistance from the City and County of San Francisco ("the City" or "Defendants"). The Plaintiff also received medical treatment at the Tom Waddell Clinic, ("the Clinic") which is run by the City's Department Public of Health. The Plaintiff claims that during his intake interview at the Clinic he informed the social worker of his mental and physical disabilities and specifically mentioned a hernia that restricts his physical activities, including climbing stairs.
As part of the City's program of services for the homeless, the social worker provided the Plaintiff with a voucher for housing and referred him to the Drake Hotel. On another occasion the City referred the Plaintiff to the Alder Hotel. According to the Plaintiff neither hotel has an elevator. The Plaintiff claims that the lack of an elevator required him to climb stairs. This, in turn, aggravated Plaintiff's already painful hernia, which then required surgery.
The Plaintiff does not raise the issue of his surgery or his referral to the Alder Hotel in his complaint; both issues are first raised in Plaintiff's Motion for Summary Judgment. However, because courts should hold pro se litigants to a lesser pleading standard than those represented by counsel, see Eldridge v. Block, 832 F.2d 1132, 1137, (9th Cir. 1987. The City also addresses these aspects of the Plaintiff's claims in its Opposition to Plaintiff's Motion and in its Motion for Summary Judgment.
PROCEDURAL BACKGROUND
On September 28, 1999, the Plaintiff filed suit against the City, claiming negligence and a violation of Title II, subtitle A, of the Americans with Disabilities Act of 1990, Title 42 section 12102, et seq. ("the ADA" or "Act"). On January 20, 2000, the Plaintiff also filed a related suit (C 00-0221) against the Tom Waddell Clinic which claims only a violation of the ADA. Both the case at bar and C 00-0221 involve the same factual circumstances. The court filed a Related Case Order on February 21, 2000. The Plaintiff has filed a motion for summary judgment in this case only. The City has filed a motion for summary judgment in both cases. This court's ruling applies to both cases, but the court will refer to the City as the defendant.A case management conference was set for July 12, 2000, and rescheduled for August 16, 2000. At the City's request the conference was again rescheduled for September 6, 2000. According to a letter from the City dated December 14, 2000, the court requested that the City file a motion for summary judgment in this case. In this same letter the City requested a continuance to file the motion because of an emergency in the City attorney's family. On December 19, 2000, the Plaintiff filed a motion for summary judgment. On January 5, 2001 the court granted the City's motion to continue the hearing on the Plaintiff's motion for summary judgment. On January 31, 2001, the City filed an opposition to Plaintiff's summary judgment for both cases; the City also filed its own motion for summary judgment. A hearing was set for January 31, 2001, and rescheduled for February 28, 2001.
LEGAL ANALYSIS
I. The Standard for Summary Judgment
Federal Rule of Civil Procedure 56(a) provides that the claimant may file for summary judgment any time after 20 days from the commencement of the action, with or without supporting affidavits, on any or all of his claims. Fed.R.Civ.P. 56(a). Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law determines whether a fact is material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists if a reasonable jury could return a verdict in favor of the nonmoving party. Id. The moving party bears the initial burden of showing the absence of a genuine issue of material fact. See Celotex Corp. v. Cattrett, 477 U.S. 317, 323 (1986). The moving party must inform the district court of the basis for its motion and identify those portions of the record that support its assertion that there is no triable issue of fact. See id. On an issue where the moving party bears the burden of proof at trial, it must establish each element of its claim and affirmatively show that no reasonable trier of fact could find for the other party. See Id. But on an issue for which the opposing party bears the burden of proof at trial, the moving party need only point out the absence of evidence supporting the non-moving party's position. See id. at 323-324.
Once the moving party has met its initial burden, the non-moving party may not rest upon its pleadings; it must set forth specific facts, through admissible evidence, that demonstrate a genuine issue for trial. See Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324. If the non-moving party fails to make this showing "the moving party is entitled to judgment as a matter of law." Id. at 323.
II. Title II of the Americans with Disabilities Act
The Plaintiff claims a violation of Title II, subtitle A, of the Americans with Disabilities Act. In order to prove that a public program or service violates Title II of the ADA, the plaintiff must show that
(1) he is a `qualified individual with a disability';
(2) he was either excluded from participation in or denied the benefits of a public entity's services programs or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits or discrimination was by reason of his disability.
Weinreich v. Los Angeles County Metropolitan Transp. Authority, 114 F.3d 976, 978 (9th Cir. 1997), citing 42 U.S.C. § 12132. Title 42 U.S.C. § 12131 defines a "qualified individual with a disability" as
an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.
42 § 12131(2). Title 42 section 12102 defines a disability as:
(A) "a physical or mental impairment that substantially limits one or more of the major life activities" of the individual,
B) . . . "a record of such an impairment; or
C) "being regarded as having such an impairment."
42 U.S.C. § 12102(2)(A),(B),(C).
A major life activity is "substantially limited" where the person is either:
(i) Unable to perform a major life activity that the average person in the general population can perform; or
(ii) Significantly restricted as to the condition, manner or duration under which the individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.
To determine whether an impairment "substantially limits" a major life activity the court should consider the nature of the impairment, the duration or expected duration of the impairment and the permanent or long term impact of the impairment. 29 C.F.R. § 1630(j)(2).
DISCUSSION
I. The Plaintiff Has Not Established the Elements of an ADA Claim
The Plaintiff claims that he is disabled as a result of a hernia. (Complaint C 99-4375, page 1; Complaint C 00-0221 page 1). The City does not dispute that the Plaintiff has a hernia. (Santiago Decl. in Opp'n. to Pl.'s Mot. for Summ. J. ¶ 65; Martinez Decl. in Opp'n. to Pl.'s Mot. for Summ J. ¶ 6). A hernia, however, does not qualify as a disability under the ADA. In order to establish that he has a disability the Plaintiff must show that he has a physical or mental impairment that substantially limits one or more of his major life activities. To determine whether a major life activity is limited, the court considers the nature of the impairment, the duration of the impairment and the long term impact of the impairment.
The Plaintiff also asserts a mental disability, but does not specify what it is or submit any evidence as to it. The Defendant does not address the Plaintiff's alleged mental disability in either its motion or its opposition.
In support of his motion, the Plaintiff submitted a medical bill from San Francisco General Hospital ("the hospital bill" or "bill"), dated December 26, 2000, presumably to establish the existence of a disability. The hospital bill lists charges incurred for surgery performed on the Plaintiff on February 29, 2000. The court cannot consider the hospital bill, however, because the bill is not authenticated by an affidavit. In order for the court to consider a document in a decision on summary judgment, the document "must be authenticated by and attached to an affidavit that meets the requirements of [Fed.R.Civ.P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence." Canada v. Blain's Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987); see also Hal Roach Studios, Inc. v. Richard Feiner and Co., Inc., 896 F.2d 1542, 1550-51, citing Fed.R.Civ.P. 56(e). The Ninth Circuit has consistently held that courts may not consider unauthenticated documents on a motion for summary judgment. See Hal Roach Studios, Inc., 896 F.2d. at 1550-51 Although the Plaintiff is a pro se litigant, and thus the court should liberally construe his pleadings, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Thus, even with less stringent pleading requirements for pro se litigants, the Court should not consider the hospital bill. The Plaintiff has not submitted any other evidence of a disability.
Although the Ninth Circuit has not held specifically that a hernia is not a disability for purposes of the ADA, it has held that temporary disabilities do not constitute disabilities under the Act. See Sanders v. Arneson Products, Inc., 91 F.3d 1351, 1354 (9th Cir. 1996), citing 29 C.F.R. Part 1630 App., § 1630.2(j). In Sanders the plaintiff claimed that his employer discriminated against him when by terminating him after he took a leave of absence for a temporary psychological impairment. See 91 F.3d at 1353. The court held that a 4-month long psychological impairment does not qualify as a disability, and thus the plaintiff was not a "qualified individual" under the Act. Id. The court noted that "disability" under the ADA is a term of art; a person may be considered "disabled" in an ordinary sense, but not be "disabled" under the ADA. See Id. at 1354 fn 2. District courts within the Ninth Circuit have further held that temporary physical impairments do not qualify as disabilities under the ADA. See Rondon v. Wal-Mart, Inc., 1998 WL 730843, at *4 (N.D. Cal. Oct. 8, 1998), (holding that lower back injury that restricted plaintiff's ability to lift was a temporary impairment, and thus not a disability under the ADA); see also Barnes v. Homes, 2000 WL 558641, at *6 (N.D. Cal. May 4, 2000), (holding that abdominal pain from ovarian cysts was a temporary medical condition and thus not a disability under the ADA).
The analysis whether a person is disabled under the ADA is the same in employment and Title II cases. See 42 U.S.C. § 12102
A number of district courts outside of the Ninth Circuit have held specifically that a hernia is not a disability under the ADA. See Gonzalez v. Perfect Carton Corp., 1996 WL 89058, at *2 (N.D. III. Feb. 28, 1996); see also Green v. Rosemont Ind., 5 F. Supp.2d 568, 572 (S.D. Ohio 1998); Farley v. Gibson Container Inc., 891 F. Supp. 322, 326 (N.D. Miss. 1995); Sarno v. Douglas Elliman-Gibbons Ives, Inc., 17 F. Supp.2d 271, 274 (S.D.N.Y. 1998). In Gonzalez the plaintiff alleged that his employer violated the ADA when the employer failed to give the plaintiff light-duty assignments after he was diagnosed with a hernia. See 1996 WL 89058 at *2. The court held that the plaintiff's hernia was not a disability under the ADA. Id. The court cited the Appendix to the EEOC regulations, which interprets the ADA, and held that a hernia "falls squarely within the category of `temporary, non-chronic impairments of short duration' that the EEOC has deemed beyond the coverage of the ADA." Id., quoting 29 C.F.R. Part 1630 App., § 1630.2(j).
Here, the Plaintiff's hernia is the only condition for which he offers any evidence of a disability under the ADA. The undisputed evidence indicates that the Plaintiff's condition was temporary and could be corrected by surgery. (Martinez Decl. in Opp. to Pl's Mot. for Summ. J. ¶ 66). Further, the Plaintiff has also failed to show that his hernia substantially limited a major life activity. See 42 U.S.C. § 12102(2)(A); see also Colwell v. Suffolk Co. Police Dept., 158 F.3d 635, 642 (2nd Cir. 1998). The Plaintiff claims that because of pain from his hernia he cannot walk, bend, lift or climb stairs. (Complaints C 99-4375, page 1; C 00-0221, page 1). Although some of these functions are considered "major life activities," id., the Plaintiff must show that his impairment substantially limits these activities, see id., (emphasis added). In Colwell, for example, one of the plaintiffs claimed that his impairments limited "his abilities to stand, sit, lift, sleep and work." Id. at 644. The plaintiff offered only vague testimony as to how severely his impairment limited these functions; for example, the plaintiff testified that he could not stand "for `any period of time.'" Id. The court held that such vague assertions failed to show a substantial limitation to these major life functions. Id. In Sarno, the plaintiff had pain and restricted movement due to a hernia that was exacerbated by a fall. See Sarno, 17 F. Supp.2d at 272. The plaintiff claimed that the hernia impaired his breathing and limited his ability to lift. Id. at 273. The court held that restricted lifting and shortness of breath caused by the hernia did not substantially limit the plaintiff's major life activities. See id. at 273-274. The court distinguished between impairments that "merely affect major life activities" and "those that substantially limit" major life activities, and concluded that the plaintiff was not disabled under the ADA. See id.
Here, the Plaintiff has not provided any evidence that his hernia substantially limits a major life activity. The Plaintiff asserts that his hernia "is real [sic] painful when Plaintiff has to climb stairs, prolong [sic] walking, prolong [sic] standing and heavy lifting." (Complaint, C 00-0221, page 1). The Plaintiff offers no other evidence of physical limitations. Such vague assertions fail to show that his hernia substantially limits his major life activities. Colwell, 158 F.3d at 644. Further, the undisputed evidence shows that the Plaintiff's hernia did not cause any substantial limits to his ability to walk or climb stairs. (Santiago Decl. in Supp. of Opp. to Pl.'s Mot. for Summ. J.6¶ 5; Martinez Decl.in Supp. of Opp. to Pl.'s Mot. for Summ J. ¶ 7; Brisco Decl. in Supp. of Opp. to Pl.'s Mot. for Summ J.6¶ 7).
The Plaintiff has not shown that his disability is of more than temporary duration or that it substantially limits a major life activity. Therefore the Plaintiff is not a qualified individual with a disability under the ADA.
II. The Defendants Are Entitled to Judgment As a Matter of Law on the Plaintiff's ADA Claims.
The City and Tom Waddell Clinic are entitled to summary judgment if "there is no genuine issue as to any material fact" and they are "entitled to judgment as a matter of law." Fed.R.Civ.Pro. 56(c). On an issue for which the Plaintiff bears the burden of proof at trial the City need only point out the absence of evidence supporting the Plaintiff's position. See Celotex, 477 U.S. at 323-324. Once the City has met its burden, the Plaintiff may not rest on the pleadings. Id. at 324. He must set forth specific facts, through admissible evidence, that demonstrates a genuine issue for trial. Id. Under the ADA the Plaintiff must establish that he is a qualified individual with a disability and that the City discriminated against him because of his disability. See 42 U.S.C. § 12132.
For the reasons discussed in detail above, and summarized here, the Plaintiff is not disabled under the ADA. The Plaintiff's hernia, although undoubtedly a physical ailment, fails to rise to the level of disability. The Plaintiff has not offered any evidence that he suffers from a disability that qualifies under the ADA. The undisputed facts indicate that the Plaintiff's condition was temporary and could be corrected with surgery. The facts also indicate that the Plaintiff's hernia did not substantially limit his major life activities. Thus he is not disabled under the ADA and the City is entitled to judgment as a matter of law.
OTHER GROUNDS
The Plaintiff's motion fails because he has not established that he is disabled under the ADA. Therefore the court does not reach the City's other arguments in opposition to the Plaintiff's Motion for Summary Judgment and in support of its own motion for summary judgment. These arguments are (1) that the Plaintiff failed to follow the proper rules of civil procedure; (2) that the Plaintiff failed to show that the City denied him benefits or otherwise discriminated against him because of his disability; and (3) that the City is immune from negligence liability and liability for punitive damages.
The City raises this argument in its opposition only.
SUPPLEMENTAL JURISDICTION
Negligence is a state law claim. See Cal. Civ. Code § 1714(a). Federal courts have the power to hear state law claims that arise out of the same Article III "case and controversy" as a federal claim. 28 U.S.C. § 1367(a). This supplemental jurisdiction is applicable where the state law claim and federal claim share the same "common nucleus of operative fact." See United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966).
The court has some discretion in exercising supplemental jurisdiction. See 28 U.S.C. § 1367(c). The court may decline to exercise supplemental jurisdiction over a related state claim if, inter alia, the court has dismissed the federal claims over which it had original jurisdiction. See 28 U.S.C. § 1367(c)(3). Indeed, "if the federal claims are dismissed before trial . . . the state claims should be dismissed as well." United Mine Workers of America, 383 U.S. at 726.
Here, the court has jurisdiction over the Plaintiff's ADA claims pursuant to 28 United States Code section 1331. The Plaintiff's negligence claim arises out of the same set of facts as his ADA claim. The court, however, has found that the Plaintiff has not made a prima facie showing of discrimination under the ADA, and therefore grants summary judgment to the Defendant. This has disposed of the Plaintiff's federal claims. The court therefore declines to exercise supplemental jurisdiction over the supplemental state law claim.
CONCLUSION
In order to prevail on summary judgment the Plaintiff must establish each element of his claim. The Plaintiff has failed to show that he has a disability under the ADA, and thus his motion for summary judgment must fail. In order for the City to prevail on summary judgment, it need only point out the absence of evidence supporting the Plaintiff's claim. The undisputed evidence indicates that the Plaintiff was not disabled under the ADA, and thus the City's motion for summary judgment is granted. The court declines to exercise supplemental jurisdiction over the Plaintiff's state law negligence claims; the court informed Plaintiff at the hearing that the statute of limitations on his state claim was tolled during the pendency of this action but that as of the judgment it begins to run. Judgment shall be entered for Defendant. The Clerk shall close the files in both the related cases.
JUDGMENT
The court granted Defendant's Motion for Summary Judgment on February 28, 2001, and by written order on March 7, finding that Plaintiff is not disabled as defined by the Americans with Disabilities Act, 42 U.S.C. § 12102 et seq., and dismissed without prejudice his claim of negligence. Accordingly for good cause appearing, judgment shall be entered for Defendant in both related cases. Parties to bear their own costs.