United States District Court, D. New Jersey
ROCCO CREEL, THOMAS HAMILL, and ADVOCATES FOR DISABLED AMERICANS, Plaintiffs,
ROWAN UNIVERSITY and ALI A. HOUSHMAND, Defendants.
Anthony J. Brady, Jr., Esq. Counsel for Plaintiffs
Kathryn Elizabeth Duran, Esq. OFFICE OF THE ATTORNEY GENERAL,
STATE OF NEW JERSEY Counsel for Defendants
B. SIMANDLE U.S. District Judge
matter comes before the Court on Defendants Rowan University
(“Rowan”) and Ali A. Houshmand's
(“Houshmand”) Motion to Dismiss the Complaint.
[Docket Item 12.] Plaintiffs Rocco Creel
(“Creel”), Thomas Hamill (“Hamill”),
and Advocates for Disabled Americans (“AFDA”)
filed this lawsuit against Defendants on May 22, 2016,
alleging violations of the New Jersey Law Against
Discrimination, N.J.S.A. §10:5-1 et seq.
(“NJLAD”); the Rehabilitation Act of 1973, 29
U.S.C.A. §§ 701-796 (“RA”); and the
Americans with Disabilities Act, 42 U.S.C. §§
12101-12213 (“ADA”). Plaintiffs allege that
Rowan's campus is inaccessible for wheelchair users and
does not provide appropriate parking for people with
has moved to dismiss the Complaint pursuant to Fed.R.Civ.P.
12(b)(1) (for lack of AFDA's standing to sue) and
12(b)(6) (for failure of Plaintiffs Creel and Hamill to state
a claim). Plaintiffs submitted a response in opposition
[Docket Item 14] and Defendants submitted a letter brief in
reply [Docket Item 15].
reasons set forth below, the Court grants Defendant's
Motion without prejudice to the rights of Plaintiffs Creel
and Hamill to file an Amended Complaint curing the many
pleading deficiencies noted herein.
FACTUAL AND PROCEDURAL BACKGROUND
Creel is a resident of New Jersey who uses a wheelchair and
is disabled. Thomas Hamill is also a New Jersey resident who
uses a wheelchair and is disabled. AFDA is a non profit
corporation doing business in New Jersey whose members are
disabled. [Docket Item 1 ¶¶ 2-3, 8.]
University, located in Glassboro, Gloucester County, New
Jersey, is a public university “organized and operating
under the State of New Jersey”; Ali A. Houshmand is the
president of Rowan University and is being sued in his
official capacity. [Id. at ¶¶ 6-7.]
is a student at Rowan; he alleges that his “ability to
enjoy the services” of Rowan “has been impaired
as a result of the Defendant's lack of proper access to
him and the disabled as a whole.” [Id. at
¶¶ 8-9.] More specifically, Creel alleges that
Rowan does not provide “proper accessible parking, . .
. routes throughout the campus, . . . bathrooms, etc. . . .
both for educational purposes [as] well as extra[-]curricular
activities” and “does not maintain its accessible
elements.” [Id. at ¶¶ 10-11.] He
alleges that non-disabled students use parking spaces
provided for the disabled; that Rowan rejected Creel's
suggested method of enforcing the parking limitations
“by requiring that students prove to Rowan that they
are disabled”; and that Creel, as an education major,
“was placed in inaccessible classrooms both on and off
campus” as part of his clinical practice. [Id.
at ¶¶ 12-13.] Creel asserts that he
“sustained anger and emotional distress” as a
result of this lack of accessibility and that he intends to
continue to return and use Rowan's services “both
as a patron and a tester.” [Id. at
Hamill, in contrast, alleges that he was “on many
occasions” “a patron at the Defendants[, ]
including enjoying sporting events and campus [sic] ¶
2015.” [Id. at ¶ 20.] Hamill allege that
his ability to use Rowan's services has “been
impaired because of lack of proper access to him and the
disabled.” [Id. at ¶ 21.] Specifically,
Hamill alleges: that Rowan “does not provide proper
parking for the disabled in that it is not located on the
safest most direct route as mandated by NJAC 5:23-7.10(a). .
. . [and] it is more difficult for him to travel from point A
to B” as a wheelchair user; that the “route from
the parking to the front entrance is on acute slopes perhaps
more than five feet that are dangerous and hard to
overcome” resulting in Hamill having
“difficulties while using the curb ramp, ”
“in violation of NJAC 5:23-7.7 and ANSI 406.7”;
that “the parking for the disabled is not
proper”; and that the above “discriminatory
violations” are not an exclusive list of
problems/violations” and Plaintiffs “require an
inspection to identify all barriers.” [Id. at
¶¶ 22-24, 26.] Hamill alleges that he has suffered
emotional distress as a result of these violations and
“intends to be a frequent patron of [D]efendants”
and “also return as a tester.” [Id. at
Creel and Hamill seek injunctive relief, damages,
attorneys' fees, and costs. [Id. at 6, 8.] AFDA
seeks the same. [Id. at ¶¶ 31-33.]
Plaintiffs also seek injunctive relief in the form of an
order instructing Houshmand “to make said facility
accessible to the disabled.” [Id. at ¶
STANDARD OF REVIEW
considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted under
Fed.R.Civ.P. 12(b)(6), a court must accept all well-pleaded
allegations in the complaint as true and view them in the
light most favorable to the nonmoving party. A motion to
dismiss may be granted only if a court concludes that the
plaintiff has failed to set forth fair notice of what the
claim is and the grounds upon which it rests that make such a
claim plausible on its face. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007).
the court must accept as true all well-pleaded factual
allegations, it may disregard any legal conclusions in the
complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009); Fowler v. UPMC Shadyside, 578 F.3d 203,
210-11 (3d Cir. 2009). Threadbare recitals of the elements of
a cause of action, supported by mere conclusory statements,
do not suffice. Iqbal, 556 U.S. at 678.
addition, the complaint must contain enough well-pleaded
facts to show that the claim is facially plausible. This
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. “If 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 shown
- that the pleader is entitled to relief.” Id.
at 679 (internal quotation marks and citation omitted).
seek to dismiss Count III, AFDA's claim, pursuant to
Fed.R.Civ.P. 12(b)(1), on the grounds that AFDA lacks
standing either to pursue claims in its own right or as a
representative of its individual members. [Docket Item 12-1
at 10-14.] See Pa. Prison Soc'y v. Cortes, 508
F.3d 156, ...