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National Federation of Blind v. Clark County

United States District Court, D. Nevada

August 25, 2014

NATIONAL FEDERATION OF THE BLIND, on behalf of its members and itself; and ALAN SCHLANK, BILLIE RUTH SCHLANK, JOYCE PRATT, MARK ADREON and MICHAEL MAY, on behalf of themselves and all others similarly situated, Plaintiffs,


LLOYD D. GEORGE, District Judge.

The plaintiffs, several blind individuals as well as the National Federation of the Blind, filed their original complaint in March 2011 before filing an amended complaint in May 2011. They allege that Clark County, Nevada, violated the Americans with Disabilities Act ("ADA") and § 504 of the Rehabilitation Act, by owning and operating airport ticketing kiosks which were inaccessible to the blind. The defendants move to dismiss, arguing that they followed regulations from the U.S. Department of Transportation ("DOT") that outline what types of accommodations satisfy federal nondiscrimination statutes. The defendants also filed, as supplemental authority, new regulations from the DOT that grant airport owners and operators until December 2016 to make kiosks accessible to the disabled. The plaintiffs seek both monetary damages and injunctive relief. The Court will deny the motion to dismiss as to monetary damages, but will grant the motion to dismiss as to injunctive relief.

Motion to Dismiss

The defendants' motion to dismiss, brought pursuant to Fed.R.Civ.P. 12(b)(6), challenges whether the plaintiffs' complaint states "a claim upon which relief can be granted." In ruling upon these motions, the court is governed by the relaxed requirement of Rule 8(a)(2) that the complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief." As summarized by the Supreme Court, a plaintiff must allege sufficient factual matter, accepted as true, "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Nevertheless, while a complaint "does not need detailed factual allegations, a plaintiff's obligation to provide the grounds' of his entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citations omitted). In deciding whether the factual allegations state a claim, the court accepts those allegations as true, as "Rule 12(b)(6) does not countenance... dismissals based on a judge's disbelief of a complaint's factual allegations." Neitzke v. Williams, 490 U.S. 319, 327 (1989). Further, the court "construe[s] the pleading s in the light most favorable to the nonmoving party." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th Cir. 2007).

However, bare, conclusory allegations, including legal allegations couched as factual, are not entitled to be assumed to be true. Twombly, 550 U.S. at 555. "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. Thus, this court considers the conclusory statements in a complaint pursuant to their factual context.

To be plausible on its face, a claim must be more than merely possible or conceivable. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]'-that the pleader is entitled to relief.'" Id. (citing Fed.R.Civ.P. 8(a)(2)). Rather, the factual allegations must push the claim "across the line from conceivable to plausible." Twombly, 550 U.S. at 570. Thus, allegations that are consistent with a claim, but that are more likely explained by lawful behavior, do not plausibly establish a claim. Id. at 567.


The plaintiffs filed the instant complaint in May 2011, alleging that Clark County owned and operated at least 180 common use self-service ("CUSS") kiosks that were inaccessible to blind individuals, in violation of the ADA (42 U.S.C. § 12101) and § 504 of the Rehabilitation Act (29 U.S.C. § 794). The CUSS kiosks are installed at McCarran International Airport, and permit passengers to check in for flights, print boarding passes, select seats, upgrade their tickets, check baggage, and otherwise prepare for their flights. The plaintiffs seek both monetary damages and injunctive relief.

According to the Ninth Circuit, "there is no significant difference in the analysis of rights and obligations" for claims brought under the ADA and claims brought under § 504 of the Rehabilitation Act. Vinson v. Thomas, 288 F.3d 1145, 1152 n.7 (9th Cir. 2002). Therefore, the Court will analyze the claims together. In order to plead a disability discrimination claim, the Ninth Circuit requires a plaintiff to allege that:

(1) the plaintiff is an individual with a disability; (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity's services, programs or activities; (3) the plaintiff was either excluded from participation in or denied the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (4) such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability.

Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

The defendants moved to dismiss this complaint in April 2012. They argue that the plaintiffs have failed to sufficiently allege the third element because accommodations already in place provide blind individuals with the same benefits available to those who use the CUSS kiosks. The defendants cite a regulation promulgated by the DOT, which states:

As a carrier, if your automated kiosks in airport terminals cannot readily be used by a passenger with a disability for such functions as ticketing and obtaining boarding passes that the kiosks make available to other passengers, you must provide equivalent service to the passenger (e.g., by assistance from your personnel in using the ...

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