United States District Court, N.D. West Virginia
MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATION
[DKT. NO. 60], OVERRULING PLAINTIFF'S OBJECTIONS [DKT.
NO. 61, 57], GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [DKT. NO. 45], AND DISMISSING PLAINTIFF'S
AMENDED COMPLAINT [DKT. NO. 3-5] WITH PREJUDICE
S. KLEEH UNITED STATES DISTRICT JUDGE
before the Court is a Report and Recommendation
(“R&R”) by United States Magistrate Judge
Michael J. Aloi (“Judge Aloi”) [Dkt. No. 60]. For
the reasons stated below, the Court hereby
ADOPTS the R&R in its entirety.
Factual and Procedural Background
Vanessa Frogge (“Plaintiff” or
“Frogge”), initiated this case by filing a
pro se complaint in the Magistrate Court of
Monongalia County in Morgantown, West Virginia, on April 20,
2017 [Dkt. No. 3-1 at 1]. On June 2, 2017, Defendant Craig
Fox, d.b.a. the Mountain Line Transit Authority
(“MLTA”) timely filed a notice of removal of
Plaintiff's suit to the Circuit Court of Monongalia
County under W.Va. Code § 50-4-8, at which time the
Circuit Court assumed control of the matter [Dkt. No. 3-1 at
30-34]. At the same time, Defendant filed a Motion to Dismiss
Plaintiff's Complaint, arguing that the Complaint was in
violation of W.Va. Code §§ 29-12A-13; 29-12A-6(d)
[Dkt. No. 4-1 at 2]. The Court heard argument on
Defendant's Motion to Dismiss on August 15, 2017
[Id.]. The Court ordered Frogge to file an amended
complaint within twenty (20) days of the hearing [Dkt. No.
4-1 at 2]. Plaintiff filed an Amended Complaint against
Defendant in the Circuit Court of Monongalia County, West
Virginia, on August 29, 2017 [Dkt. No. 3-5].
Amended Complaint alleged a claim for discrimination against
Defendant, Craig Fox, pursuant to Title II of the Americans
with Disabilities Act of 1990 (“ADA”) [Dkt. No.
3-5]. Plaintiff alleges that Defendant discriminated against
her as “an opinionated individual acting on his/her own
behalf” when he denied her “Route Deviation
Request” in December 2016, and that the conduct
“was outside the scope of his employment as a
government official” [Dkt. No. 3-5 at 9].
case was removed to the United States District Court for the
Northern District of West Virginia on September 8, 2017. On
September 15, 2017, Defendant filed a Motion to
Dismiss [Dkt. No. 4]. A Roseboro Notice was issued to
Plaintiff on October 25, 2017. On November 6, 2017, Frogge,
filed a response to Defendant's motion and a Request for
Pro Se Packet [Dkt. No. 12]. Defendant did not file
a reply. After consideration of the parties' filings, and
finding no hearing deemed necessary, the magistrate judge
recommended that the Motion to Dismiss be granted
[Dkt. No. 16]. Upon review of the magistrate judge's
R&R of February 27, 2018 [Dkt. No. 16], and liberally
construing Plaintiff's Amended Complaint, the Court found
that Frogge alleged sufficient facts to survive a motion to
dismiss and it rejected the R&R [Dkt. No. 20]. The matter
was recommitted to Magistrate Judge Aloi to consider the
record and enter rulings or recommendations as appropriate
initial Complaint, filed in the Magistrate Court of
Monongalia County in Morgantown, West Virginia, Frogge
asserted a claim of discrimination against Defendant Craig
Fox, d.b.a. Mountain Line Transit Authority and sought $10,
000 in damages [Dkt. No. 3-1 at 1]. In the Amended Complaint,
Frogge brings a claim of discrimination against Defendant,
Craig Fox, pursuant to Title II of the Americans with
Disabilities Act of 1990 (“ADA”) [Dkt. No. 3-5].
Plaintiff alleges that within his official capacity,
Defendant Fox discriminated against her as “an
opinionated individual acting on his/her own behalf”
when he denied her ‘Route Deviation Request' in
December 2016 and that such conduct “was outside the
scope of his employment as a government official” [Dkt.
No. 3-5 at 9].
to her Amended Complaint, Frogge suffers from a neck
condition and lives in an apartment complex on Scott Avenue
in Morgantown, West Virginia. She submitted a route deviation
request to Mountain Line, asking for a new bus stop to be
established at the top of the hill, presumably, within her
apartment complex. She further alleges that “there is
no sidewalk connecting [her] apartment to a hill and several
flights of stairs leading to the [existing] bus stop”
[Dkt. No. 3-5 at 8]. She also alleges that when Defendant
conducted a site visit to consider the proposed deviation
request, he failed to include consideration for her
disability [Id.]. Defendant denied Plaintiff's
request determining that the roads in Frogge's apartment
complex were too small and did not have an acceptable place
for the bus to turn around. Defendant further determined that
fundamental changes would have significantly impacted other
passengers on the route [Dkt. No. 3-5 at 5, 6].
STANDARD OF REVIEW
Motion for Summary Judgment [Dkt. No. 45] is brought
pursuant to Rule 56(c) of the Federal Rule of Civil
Procedure. Under Rule 56(c),
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c).
judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(c); see also Hunt v.
Cromartie, 526 U.S. 541, 549 (1999); Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986); Hoschar v.
Appalachian Power Co., 739 F.3d 163, 169 (4th Cir.
2014). A “material fact” is a fact that could
affect the outcome of the case. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986); News &
Observer Publ'g Co. v. Raleigh-Durham Airport Auth.,
597 F.3d 570, 576 (4th Cir. 2010). A “genuine
issue” concerning a material fact exists when the
evidence is sufficient to allow a reasonable jury to return a
verdict in the nonmoving party's favor. FDIC v.
Cashion, 720 F.3d 169, 180 (4th Cir. 2013); News
& Observer, 597 F.3d at 576.
summary judgment motion should be granted if the nonmovant
fails to make a showing sufficient to establish the existence
of an essential element of his claim or defense upon which he
bears the burden of proof. Celotex, 477 U.S. at 323.
That is, once the movant shows an absence of evidence on one
such element, the nonmovant must then come forward with
evidence demonstrating there is indeed a genuine issue for
trial. Id. at 323-324. The existence of a mere
scintilla of evidence supporting the nonmovant's position
is insufficient to create a genuine issue; rather, there must
be evidence on which a jury could reasonably find for the
nonmovant. Anderson, 477 U.S. 252. When determining
whether summary judgment is appropriate, a court must view
all factual evidence and any reasonable inferences to be
drawn therefrom, in the light most favorable to the nonmoving
party. Hoschar, 739 F.3d at 169.
considering a motion for summary judgment, the court will not
“weigh the evidence and determine the truth of the
matter, ” Anderson, 477 U.S. at 249, nor will
it make determinations of credibility. Sosebee v.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986). If disputes
over a material fact exist that “can be resolved only
by a finder of fact because they may reasonably be resolved
in favor of either party, ” summary judgment is
inappropriate. Anderson, 477 U.S. at 250. If,
however, the nonmoving party “fails to make a showing
sufficient to establish the existence of an element essential
to that party's case, ” then summary judgment
should be granted because “a complete failure of proof
concerning an essential element . . . necessarily renders all
other facts immaterial.” Celotex, 477 U.S. at
stated, this matter is pending on the Report and
Recommendation of Magistrate Judge Aloi, recommending that
the Court grant Defendant's Motion for Summary
Judgment [Dkt. No. 45]. “The Court will review de
novo any portions of the magistrate judge's Report and
Recommendation to which a specific objection is made . . .
and the Court may adopt, without explanation, any of the
magistrate judge's recommendations to which the [parties
do] not object.” Dellacirprete v. Gutierrez,
479 F.Supp.2d 600, 603-04 (N.D. W.Va. 2007)(citing Camby
v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Moreover,
the Court must liberally construe pro se pleadings.
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe
v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978).
Having conducted a de novo review of the R&R and the
record, the Court concludes that Defendant's Motion
for Summary Judgment [Dkt. No. 45] should be
GRANTED in its entirety, that
Plaintiff's Amended Complaint [Dkt. No. 3-5] be
DISMISSED WITH PREJUDICE, and that this case
be STRICKEN from the Court's active
alleges a violation of Title II of the ADA, 42 U.S.C. §
12132, which 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 subject to discrimination by any such entity.” 42
U.S.C. § 12132. A “public entity” includes
“any department, agency, special purpose district, or
other instrumentality of a State or States or local
government.” 42 U.S.C. § 12131(1)(B).
“[I]ndividuals sued in their individual capacity are
not public entities.” Carter v. Maryland, No.
JKB-12-1789, 2012 WL 6021370, at *5 (D. Md. Dec. 3, 2012).
But “a suit against a state official in his or her
official capacity . . . is no different from a suit against
the State [or public entity] itself.” Will v.
Michigan Department of State Police, 492 U.S. 58, 71
general, a plaintiff seeking recovery for violation of [the
ADA] must allege that (1) she has a disability, (2) she is
otherwise qualified to receive the benefits of a public
service, program, or activity, and (3) she was excluded from
participation in or denied the benefits of such service,
program, or activity, or otherwise discriminated against, on
the basis of her disability.” Constantine v.
Rectors & Visitors of George Mason Univ., 411 F.3d
474, 498 (4th Cir. 2005). “The ADA defines a
disability, in part, as a physical or mental impairment that
substantially limits one or more of the major life activities
of such individual.” Rhoads v. F.D.I.C., 257
F.3d 373, 387 (4th Cir. 2001)(internal quotation and
alteration omitted)(quoting 42 U.S.C. § 12102(2)(A)). An
individual “is ‘otherwise qualified' for a
program if she ‘with or without reasonable
modifications . . . meets the essential eligibility
requirements for' participation in the program.”
Zimmeck v. Marshall Univ. Bd. of Governors, 106
F.Supp.3d 776, 781 (S.D. W.Va. 2015)(quoting 42 U.S.C.
plaintiff may satisfy the third prong by alleging “(1)
intentional discrimination or disparate treatment; (2)
disparate impact; [or] (3) failure to make reasonable
accommodations.” Adams v. Montgomery College
(Rockville), 834 F.Supp.2d 386, 393 (D. Md.
2011)(quoting A Helping Hand, LLC v. Baltimore
County, 515 F.3d 356, 362 (4th Cir. 2008)). “A
‘reasonable accommodation' is one that gives the
otherwise qualified plaintiff with disabilities
‘meaningful access' to the program or services
sought.” Henrietta D. v. Bloomberg, 331 F.3d
261, 282 (2d Cir. 2003)(quoting Alexander v. Choate,
469 U.S. 287, 301 (1985)). Nonetheless, a public entity need
not make a modification that would “fundamentally alter
the nature of the service, program, or activity.” 28
C.F.R. § 35.130; see also Tennessee v. Lane,
541 U.S. 509, 531-32 (2004)(explaining that Title II does not
require a public entity to employ any and all means to make
services accessible to persons with disabilities, and it does
not require states to compromise their essential eligibility
criteria for public programs).
its Motion for Summary Judgment [Dkt. No. 45],
Defendant argues that Plaintiff's condition does not meet
the ADA's definition of “disabled.” While
Defendant does not dispute that Plaintiff has a neck and back
condition, it argues that she has failed to demonstrate that
the condition “substantially limits one or more”
of her “major life activities.” Defendant asserts
Frogge has no medical restrictions on her lifestyle,
ambulates independently, and merely as “some
difficulty” walking up hill, playing basketball, and
jumping rope [Dkt. No. 46 at 10].
further argues that no evidence supports Plaintiff's
claim of intentional discrimination or disparate treatment.
Plaintiff testified at deposition that she did not know why
there was discrimination, only that she believed there to
have been discrimination [Dkt. No. 46 at 12]. Defendant also
contends that it properly demonstrated another reason for the
denial of Plaintiff's route deviation request -
Defendant's inability to restructure the nature of the
bus route. As support, Defendant cites the Code of Federal
Regulations applicable to the Department of Transportation.
These regulations allow the denial of a modification to a
service when, as in this case, a modification would