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Creel v. Rowan University

United States District Court, D. New Jersey

June 23, 2017


          Anthony J. Brady, Jr., Esq. Counsel for Plaintiffs

          Kathryn Elizabeth Duran, Esq. OFFICE OF THE ATTORNEY GENERAL, STATE OF NEW JERSEY Counsel for Defendants


          JEROME B. SIMANDLE U.S. District Judge


         This 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 disabilities.

         Defendant 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].

         For the 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.


         Rocco 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.]

         Rowan 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.]

         Creel 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 ¶¶ 17-18.]

         Thomas 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 Defendants' “accessibility 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 ¶¶ 27-29.]

         Both 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 ¶ 36.]


         When 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).

         Although 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.

         In 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).


         A. AFDA

         Defendants 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, ...

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