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Thomas v. University of South Florida

United States District Court, M.D. Florida, Tampa Division

June 12, 2019



          Cliarlene Edwards Honeywell, United States District Judge

         This 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.

         In the 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.

         I. BACKGROUND[1]

         Plaintiff 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.[2]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 (“ADA”).

         Plaintiff 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. Id.

         Plaintiff 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. ¶ 8.

         Defendants 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.

         Plaintiff 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.


         Pleadings 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).

         To 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.

         Additionally, 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).

         III. ...

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