United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE
the City of New Orleans moves to dismiss Plaintiff Darryl
Dean's Americans with Disabilities Act
claim. For the following reasons, the Court
grants the motion.
case arises out of an alleged violation of the Americans with
Disabilities Act (ADA). Plaintiff Darryl Dean is a disabled
veteran and retired police sergeant. On August 10, 2016,
plaintiff hit “a severely large water-filled
pothole” while driving down Moss Street in New
Orleans. Plaintiff alleges that the collision
damaged his car and injured his back. Plaintiff then called 911,
which he asserts “neglectfully mishandled the
call.” Emergency assistance never arrived, so
plaintiff sought medical attention on his own.Plaintiff sued the
City of New Orleans and the United States on August 10,
2017. The City of New Orleans now moves to
dismiss for failure to state a claim.
survive a Rule 12(b)(6) motion to dismiss, a plaintiff must
plead enough facts to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 547 (2007)). A claim is facially
plausible “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. at 678. A court must accept all well-pleaded
facts as true and must draw all reasonable inferences in
favor of the plaintiff. Lormand v. U.S. Unwired,
Inc., 565 F.3d 228, 239, 244 (5th Cir. 2009). But the
Court is not bound to accept as true legal conclusions
couched as factual allegations. Iqbal, 556 U.S. at
legally sufficient complaint must establish more than a
“sheer possibility” that the plaintiff's
claim is true. Id. It need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a
cause of action. Twombly, 550 U.S. at 555. In other
words, the face of the complaint must contain enough factual
matter to raise a reasonable expectation that discovery will
reveal evidence of each element of the plaintiff's claim.
Lormand, 565 F.3d at 257. If there are insufficient
factual allegations to raise a right to relief above the
speculative level, Twombly, 550 U.S. at 555, or if
it is apparent from the face of the complaint that there is
an insuperable bar to relief, Jones v. Bock, 549
U.S. 199, 215 (2007); Carbe v. Lappin, 492 F.3d 325,
328 n.9 (5th Cir. 2007), the claim must be dismissed.
complaint, plaintiff appears to allege that defendants
violated Title II of the ADA. Title II of the ADA prohibits
disability discrimination in the provision of public
services. See Frame v. City of Arlington, 657 F.3d
215, 223 (5th Cir. 2011) (en banc). Specifically, 42 U.S.C.
§ 12132 provides that “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.”
Plaintiff has failed to state a claim under this statute.
Plaintiff does not allege that the City of New Orleans
treated him differently than others because of his
disability. While he does allege that the 911 dispatcher
negligently handled the call, he does not assert that this
negligent treatment was based on his disability. Nor does he
allege that the pothole rendered Moss Street inaccessible.
Cf. Frame v. City of Arlington, 657 F.3d 215, 227
(5th Cir. 2011) (“When a city decides to build or alter
a sidewalk and makes that sidewalk inaccessible to
individuals with disabilities without adequate justification,
disabled individuals are denied the benefits of that
city's services, programs, or activities.”).
Although the Court construes plaintiff's complaint
broadly because of his pro se status, see
Davison v. Huntington Ingalls, Inc., 712 F.3d 884, 885
(5th Cir. 2013), the Court cannot discern from
plaintiff's pleadings any possible examples of
disability-based discrimination in violation of Title II of
the ADA. Accordingly, plaintiff's claim against the City
of New Orleans must be dismissed.
foregoing reasons, the Court GRANTS defendant's motion to
dismiss. Plaintiffs claim against the City of New Orleans is
DISMISSED WITHOUT PREJUDICE.