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dismissing the plaintiff's Title II claim because she did not allege facts to establish that the defendant qualified as a "public entity"
Summary of this case from RIX v. McCLUREOpinion
CIVIL ACTION No. 00-2433-CM
May 6, 2002
MEMORANDUM AND ORDER
Plaintiff Rowana Riggs filed the instant lawsuit alleging that defendant American Heritage Insurance Company ("American Heritage") wrongfully failed to pay disability benefits. This case was consolidated with Rowana Riggs v. CUNA Mutual Insurance Company, No. 00-2432-GTV, in which District Court Judge VanBebber dismissed plaintiff's claims. This matter is before the court on Defendant's Motion for Summary Judgment or to Dismiss Plaintiff's Claims (Doc. 25) and plaintiff's Motion For Final Judgment of Plaintiff's Case (Doc. 28).
I. Background
Plaintiff's complaints against American Heritage and CUNA Mutual Insurance Company ("CUNA") are virtually identical. In both complaints, plaintiff asserts that she is filing suit under "the A.D.A. 42USC12111 (sic) and 42USC12132 (sic) and Title VII of the Civil Rights discrimination and 42 U.S.C. § 12112(a)." In his Memorandum and Order dated October 10, 2001, Judge VanBebber construed plaintiff's allegations against CUNA to be claims for denial of disability benefits under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Titles I, II, and III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq. Judge VanBebber held that plaintiff failed to state a claim upon which relief could be granted.
The court first notes that defendant has moved for summary judgment or, in the alternative, to dismiss for failure to state a claim. In its motion, defendant set forth numbered statements of material facts, to which plaintiff failed to respond. Moreover, plaintiff in her response appears to make some factual allegations related to her claim. However, plaintiff fails to present such factual material in the form of affidavits, declarations, or other sworn testimony as required by D. Kan. Rule 56.1(d). In any event, it matters not whether the court considers plaintiff's new allegations and construes defendant's motion as one for summary judgment or whether the court merely looks to the pleadings and construes defendant's motion as one for dismissal. In either case, plaintiff's claims must be dismissed.
II. Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
Under the standards for dismissal, the court will dismiss a cause of action for failure to state a claim only when it appears beyond a doubt that the plaintiff can prove no set of facts in support of the theory of recovery that would entitle him or her to relief, Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998), or when an issue of law is dispositive, Neitzke v. Williams, 490 U.S. 319, 326 (1989). The court accepts as true all well-pleaded facts, as distinguished from conclusory allegations, Maher, 144 F.3d at 1304, and all reasonable inferences from those facts are viewed in favor of the plaintiff, Witt v. Roadway Express, 136 F.3d 1424, 1428 (10th Cir. 1998). The issue in resolving a motion such as this is not whether the plaintiff will ultimately prevail, but whether he or she is entitled to offer evidence to support the claims. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984).
The court acknowledges that plaintiff appears pro se and her response is entitled to a somewhat less stringent standard than a response filed by a licensed attorney. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, in responding to a motion for summary judgment, this does not excuse plaintiff from the burden of coming forward with evidence to support her claims as required by the Federal Rules of Civil Procedure and the local rules of this court. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). Even a pro se plaintiff must present some "specific factual support" for her allegations. Id. Moreover, in considering a motion to dismiss, the court should liberally construe a pro se plaintiff's complaint; however, "the court should not assume the role of advocate, and should dismiss claims which are supported only by vague and conclusory allegations." Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992).
III. Discussion
Defendant argues that plaintiff's claims against American Heritage should be dismissed because those claims are identical to plaintiff's claims against CUNA, which already have been dismissed. In response, plaintiff contends that her claims against American Heritage are not identical because American Heritage never denied plaintiff's claim for the reason CUNA did. In her prior case, it appears plaintiff alleged that CUNA denied plaintiff's disability claim for a pre-existing condition. As best the court can discern, plaintiff appears to allege in this case that American Heritage approved plaintiff's claim and that payment was in fact made. Thus, the court is somewhat at a loss in construing plaintiff's claim against American Heritage. Plaintiff states in her response brief that American Heritage intentionally discriminated against plaintiff by saying, "American Heritage has fully complied under its obligations pursuant to its insurance contract with plaintiff by paying all claims which it agreed to pay." Plaintiff asserts that American Heritage "knowingly, willfully, intentionally, deprivation (sic) by denying plaintiff (sic) claim."
Defendant also argues that plaintiff's case should be dismissed due to her failure to appear at her deposition. Because the court dismisses this case on other grounds, the court declines to address this argument.
Thus, plaintiff attempts to draw a distinction between the factual basis for her claims against CUNA and American Heritage. However, plaintiff makes no distinction between her legal theories and, based on the facts plaintiff alleged in her response brief, the court is unable to draw one. Plaintiff's complaint in this case alleges the exact same legal claims as alleged in the previous case. Thus, the court will adopt the reasoning and conclusions as set forth more fully in Judge VanBebber's Order dated October 10, 2001.
A. Title VII
Title VII makes it an unlawful employment practice for an employer to fail or refuse to hire, or otherwise discriminate against, any individual with respect to his or her employment on the basis of that individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1). In this case, plaintiff has failed to advance the minimal factual allegations necessary to establish that American Heritage qualifies as an employer under Title VII. Moreover, plaintiff fails to allege that she was discriminated against on the basis of any one of Title VII's protected categories, which are race, color, religion, sex, and national origin. Thus, plaintiff has failed to state a claim under Title VII.
B. Title I of the ADA
Title I of the ADA prohibits any "covered entity" from discriminating against a qualified individual because of a disability regarding the terms, conditions, and privileges of that individual's employment. 42 U.S.C. § 12112. Under Title I, a "covered entity" is "an employer, employment agency, labor organization, or joint labor-management committee." Id. § 12111(2). In this case, plaintiff has failed to advance the minimal factual allegations necessary to establish that American Heritage qualifies as a "covered entity" under Title I of the ADA. Plaintiff therefore has failed to state a claim under Title I of the ADA.
C. Title II of the ADA
Title II of the ADA prohibits a "public entity" from excluding a qualified individual with a disability from participation in or denying benefits of services, programs, or activities. Id. § 12132. A "public entity" is defined as "any State or local government; any department, agency, special purpose district, or other instrumentality of a State or States local government; and the National Railroad Passenger Corporation, and any commuter authority." Id. § 12131(1). In this case, plaintiff has failed to advance the minimal factual allegations necessary to establish that American Heritage qualifies as a "public entity" under Title II of the ADA. Plaintiff has therefore failed to state a claim under Title II of the ADA.
D. Title III of the ADA
Title III of the ADA does not permit recovery of monetary damages. Specifically, 42 U.S.C. § 12188(a)(1) provides that the remedies available under Title III are the same as those outlined in 42 U.S.C. § 2000a-3(a). Pursuant to the Supreme Court's holding in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 401-02 (1968), monetary damages are not available under 42 U.S.C. § 2000a-3(a). In this case, plaintiff has not requested injunctive relief. Rather, plaintiff's request for relief is limited to monetary damages. As a result, plaintiff is not entitled to relief under Title III of the ADA and, accordingly, this claim must be dismissed.
IT IS THEREFORE ORDERED that Defendant's Motion for Summary Judgment or to Dismiss Plaintiff's Claims (Doc. 25) is granted, and plaintiff's Motion For Final Judgment of Plaintiff's Case (Doc. 28) is denied. This case is hereby dismissed.