United States District Court, M.D. Florida, Tampa Division
Cliarlene Edwards Honeywell, United States District Judge
matter comes before the Court upon the Defendants' Motion
to Dismiss Plaintiff's Complaint (Doc. 5),
Plaintiff's response thereto (Doc. 12), Plaintiff's
Amended Motion to Object to Defendants' Motion to Dismiss
(Doc. 17), and Defendants' response thereto (Doc. 19). In
his Complaint, Plaintiff alleges that he has a physical
disability, specifically post-traumatic stress disorder
(“PTSD”), and is assisted by a service animal
that specializes in PTSD. Doc. 1-2 ¶¶ 4-5.
Plaintiff further alleges that Defendants, which include the
University of South Florida (“USF”), the Director
of Financing at USF (Marie Bowen), the operator of a bus
holding company that USF uses to provide bus rides (Gareth
Neville), the supervisors who oversee the conduct of the
driver and riders on the buses (David Santos and Tracy
Williams), systematically singled him out because of his
disability to prevent him from accessing the bus, in
violation of federal and state law. Id. ¶ 12.
Motion to Dismiss, Defendants state that the Complaint should
be dismissed against the individual Defendants (Bowen,
Neville, Santos, and Williams) because these Defendants are
not public entities under the ADA, and are not alleged to be
public entities. Doc. 5. At 7-8. Additionally, Defendants
argue that the Complaint does not state a claim for relief
under the ADA because Plaintiff does not allege that he was
in compliance with the ADA's requirements with respect to
service animals, specifically that such animals must be under
the control of their handlers by leash, harness, or other
tether. Id. at 8-10. Defendants contend that the ADA
specifically allows handlers of service animals to be asked
to leave in the event that the handler does not follow this
requirement. Id. The Court, having considered the
motion and being fully advised in the premises, will grant
Defendants' Motion to Dismiss Plaintiff's Complaint.
suffers from PTSD. He contends that Defendants have
discriminated against him because of his disability by
denying him access to USF facilities, amenities and
resources- specifically the bus system-because of his use of
a service animal. Doc. 1-2 ¶¶ 2, 4-5,
12.Plaintiff alleges that Defendants'
refusal to allow a student to access resources or amenities
provided to the general public is a blatant violation of
federal and state law, which prohibits USF, its faculty, and
its staff from denying preapproved access to USF facilities,
amenities, and resources based on possession of a service
animal. Id. ¶ 2. Plaintiff cites to 42 U.S.C.
§ 12184, which relates to the prohibition of
discrimination in specified public transportation services
provided by private entities. Id. Section 12184
falls under Title III of the Americans with Disabilities Act
of 1990, 42 U.S.C. §§ 12181-12189
attached USF Police Department call history records to his
Complaint which indicates that Plaintiff was in possession of
an unleashed chihuahua, that was his service dog, refused to
get off the bus, and was denied a ride. Doc. 1-2 at 7. The
police report reflects that Plaintiff “stated he was in
control of the dog and ha[d] a wireless leash.”
Id. The dispatcher provided Plaintiff and his
service dog a ride and dropped Plaintiff off without issue.
served Santos with a copy of the complaint which was
different from that served on the remaining defendants and
the originally filed Complaint. Doc. 5 at 1-2. The Complaint
filed on Santos contained additional pages missing from the
originally filed Complaint. Doc. 5-1 at 4. In that copy of
the Complaint, Plaintiff alleges that he was authorized to
control his service animal via wireless leash, which could
instantly detain the animal in a range up to 900 feet. Doc.
5-1 ¶ 7. Plaintiff further alleges that USF changed its
policy in May 2017, requiring visible leaches only, and
depriving him of equal access to the bus. Id. ¶
filed the instant Motion to Dismiss arguing that Title III of
the ADA does not apply to USF because it is a public entity
to which Title II applies, and that the case should be
analyzed under Title II. Doc. 5 at 5-6. Additionally,
Defendants argue that the individual Defendants must be
dismissed because Title II does not provide for individual
liability. Id. Defendants further argue that the ADA
requires service animals to be controlled by a harness, leash
or other tether, unless the handler is unable because of a
disability to use a harness, leash or other tether, or such
use would interfere with the service animal's safe,
effective performance, in which case the service animal must
be otherwise under the handler's control. Id. at
8-9. Because the attachments to the Complaint show that
Plaintiff's service animal was not controlled by a
harness, leash, or other tether, Defendants contend that they
were permitted by regulation to ask Plaintiff to leave and,
therefore, Plaintiff cannot state a claim under the ADA.
Id. at 9.
responds that he could not use any form of physical tethering
to his service animal because the animal was unable to
function while tethered, and Plaintiff has a mobile
disability that requires a cane, walker, or other assistive
device. Doc. 12 ¶ 1. Plaintiff further responds that
Defendants primarily work for, with, or represent USF's
Parking and Transportation Department, which identifies as a
private entity. Id. ¶ 3.
from pro se litigants are held to a less stringent
standard than pleadings drafted by attorneys. Tannenbaum
v. United States¸ 148 F.3d 1262, 1263 (11th Cir.
1998). However, they still must meet minimal pleading
standards. Pugh v. Farmers Home Admin., 846 F.Supp.
60, 61 (M.D. Fla. 1994).
survive a motion to dismiss under Rule 12(b)(6), a pleading
must include a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009)
(quoting Fed.R.Civ.P. 8(a)(2)). Labels, conclusions and
formulaic recitations of the elements of a cause of action
are not sufficient. Id. (citing Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). Furthermore, mere
naked assertions are not sufficient. Id. A complaint
must contain sufficient factual matter, which, if accepted as
true, would “state a claim to relief that is plausible
on its face.” Id. (quoting Twombly,
550 U.S. at 570). “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.” Id. (citation
omitted). The court, however, is not bound to accept as true
a legal conclusion stated as a “factual
allegation” in the complaint. Id.
although the Court typically limits its review to the
“four corners” of the complaint on a motion to
dismiss, it may also examine exhibits attached to the
complaint, extrinsic documents central to plaintiff's
claim whose authenticity is unchallenged, and matters subject
to judicial notice. See Bryant v. Avado Brands,
Inc., 187 F.3d 1271, 1278 (11th Cir. 1999); Absolute
Activist Value Master Fund Ltd. v. Devine, 233 F.Supp.3d
1297, 1316 (M.D. Fla. 2017).