United States District Court, D. New Jersey
MEMORANDUM AND ORDER
G. SHERIDAN, U.S.D.J.
matter comes before the Court on two motions to dismiss: one
filed by Defendant Ocean County (ECF No. 44) and another
filed by Defendants State of New Jersey; Superior Court of
New Jersey; Superior Court of New Jersey, Ocean Vicinage,
Chancery Division (ECF No. 50). Plaintiff has also filed a
cross-motion for sanctions and for denial of Defendants'
motions. (ECF No. 72). In addition, Plaintiff has filed what
she calls an "emergent bifurcated application seeking to
correct the record pursuant to Plaintiffs pleading filed with
the Court on May 31, 2019. (Plaintiffs Motion to Correct the
Record, ECF No. 83 at 1).
to the allegations in Plaintiffs amended complaint, "on
November 30, 2016, Plaintiff arrived at the State's
courthouse in Toms River, New Jersey." (Amended Complain
("AC"), ECF No. 32 at 9). As Plaintiff approached
the courthouse, her "mobility scooter flipped over and
Plaintiff shattered her ankle." (Id.).
alleges that the incident was caused because there are no
accessible handicap parking spaces in close proximity to the
subject courthouse. (Id.). However, she also alleges
that "the uneven and broken sidewalks impaired access to
the courthouse entrance." (Id.). There is a
parking lot adjacent to the courthouse, but it is privately
owned. (Id. at 10).
Plaintiff alleges that "the only parking spaces in close
proximity to the [c]ourthouse are those 'reserved'
and 'assigned' to .. . attorneys." (Id.
at 11). "The public parking lot is relatively far from
the [c]ourthouse entrance." (Id. at 13).
Plaintiff claims the courthouse has "an unreasonably
dangerous and unsafe condition for the handicapped."
claims she underwent surgery because of the accident, which
left her "bed-ridden and wheelchair bound."
(Id. at 9). She allegedly suffers from "severe
osteoarthritis" and is in constant pain. (Id.).
Plaintiff claims she has incurred medical bills "for
acute care physical rehabilitation, rental of special
handicap van vehicles, as well as purchasing wheelchairs,
ramps, and related disability devices." (Id. at
13). As such, she says she "urgently requires handicap
housing" and "a special handicap accessible
wheelchair van." (Id.).
eleven-count complaint alleges: violations of Title III of
the Americans with Disabilities Act, 42 U.S.C. § 1281,
et seq. (count one); discrimination on the basis of
disability, in violation of the ADA (count two); "range
of defendants' violations of the ADA" (count three);
breach of fiduciary duty (count four); negligence (count
five); civil conspiracy/aiding and abetting (count six);
unconscionability (count seven); federal statutory protection
of access to state, local, and federal courts (count eight);
federal ADA access to the courts (count nine); federal
statutory protection of access to state, local, and federal
courts (count ten); and the United States Department of
Justice implementation of Title II of the ADA (count eleven).
motion to dismiss for failure to state a claim pursuant to
Fed.R.Civ.P. 12(b)(6), the Court is required to accept as
true all allegations in the Complaint and all reasonable
inferences that can be drawn therefrom, and to view them in
the light most favorable to the non-moving party. See
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d
1380, 1384 (3d Cir. 1994). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Asheroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). While a court will
accept well-pleaded allegations as true for the purposes of
the motion, it will not accept bald assertions, unsupported
conclusions, unwarranted inferences, or sweeping legal
conclusions cast in the form of factual allegations.
Iqbal, 556 U.S. at 678-79; see also Morse v.
Lower Merion School District, 132 F.3d 902, 906 (3d Cir.
1997). A complaint should be dismissed only if the
well-pleaded alleged facts, taken as true, fail to state a
claim. See In re Warfarin Sodium, 214 F.3d 395,
397-98 (3d Cir. 2000).
as here, plaintiff is proceeding pro se, the Court
should read plaintiffs complaint generously and hold it
"to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551
U.S. 89, 94 (2007) (internal quotation marks and citation
omitted). However, "a pro se plaintiff is not
exempt from his burden of providing some affirmative
evidence, i.e. not just mere allegations, to establish a
prima facie case, and to show that there is a genuine dispute
for trial." Niblack v. Murray, No. 12-6910,
2016 U.S. Dist. LEXIS 99325, at *7 (D.N.J. July 29, 2016)
(citing Barnett v. N.J. Transit Corp., 573 Fed.Appx.
239, 243 (3d Cir. 2014)).
successfully state a claim under Title II of the ADA, a
person 'must demonstrate: (1) he is a qualified
individual; (2) with a disability; (3) [who] was excluded
from participation in or denied the benefits of the services,
programs, or activities of a public entity, or was subjected
to discrimination by any such entity; (4) by reason of his
disability.'" Haberle v. Troxell, 885 F.3d
170, 178 (3d Cir. 2018) (quoting Bowers v. Nat'l
Collegiate Athletic Ass 'n, 475 F.3d 524, 553 n.32
(3d Cir. 2007)). "[T]he ADA prohibits discrimination
against an individual 'by reason of such
disability.'" New Directions Treatment Servs. v.
City of Reading, 490 F.3d 293, 300 n.4 (3d Cir. 2007)
(quoting 42 U.S.C. § 12132). The ADA requires "but
for causation." Id.
to Plaintiffs complaint is her failure to allege that
Defendants' actions were the cause of her injury.
Plaintiffs complaint states that the cause of the alleged
incident was "broken curbs, cracked pavement, and
irregular and uneven . . . pavement, among other
things." (AC at 2). Although Plaintiff alleges the lack
of handicap access to the courthouse or the location of the
handicap parking spaces caused the incident, (See
Id. at ...