MEMORANDUM OPINION AND ORDER
Before the Court is Defendant’s Motion for Summary Judgment [Docket Entry #83], Plaintiffs Third Motion for Summary Judgment [Docket Entry # 85], Defendant’s Motion , for Reconsideration [Docket Entry # 113], and the parties’ submissions regarding new Fifth Circuit case law [Docket Entries # 122, 125, & 126]. For the reasons explained below, Defendant’s Motion for Reconsideration is GRANTED, Defendant’s Motion for Summary Judgment as to the ramp and parking spaces is GRANTED, and Plaintiffs Third Motion for Summary Judgment as to the ramp and parking spaces is DENIED. Plaintiffs claims as to the ramp and parking spaces are DISMISSED.
*761 BACKGROUND FACTS AND PROCEDURAL HISTORY
The background facts and procedural history of this case are recounted in a prior memorandum opinion and order of August 2, 2010, where this Court granted in part and denied in part certain of Defendant and Plaintiffs Motions for Summary Judgment [Docket Entry # 111]. Specifically, this Court granted summary judgment in favor of Defendant as to Plaintiffs claims relating to existing facilities at Berkner B Field, and granted summary judgment in favor of Plaintiff as to the construction of a new ramp. In doing so, this Court noted that the Fifth Circuit had not addressed whether a plaintiff must have encountered the architectural barrier at issue in order to have standing to bring suit to challenge the compliance of such barrier with the ADA and its regulations and guidelines and their state court analogues. The Court concluded that Defendant had not countered Plaintiffs summary judgment evidence, and this Court granted Plaintiffs Motion for Summary Judgment as to the ramp.
The Court reserved decision on the parties’ Cross-Motions for Summary Judgment as to the handicapped parking spaces and ordered the parties to submit a joint stipulation as to the number of handicapped parking spaces at Berkner B Field and whether they met the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (“ADAAG”) requirements.
On August 12, 2010, the parties submitted a Joint Stipulation, agreeing that there are 189 parking spaces in Parking Area A, adjacent to Berkner B Field, and that under ADAAG, only six parking spaces must be designated as handicapped accessible for such a parking lot. The parties disagreed as to whether the spaces actually comply with ADAAG. Also on August 12, 2010, Defendant filed a Motion for Reconsideration as to the ramp, claiming there was summary judgment evidence proving the ramp’s compliance. On September 2, 2010, Defendant filed a supplemental brief arguing that the new case of
Frame v. City of Arlington,
ANALYSIS
I. Motion for Reconsideration
The Federal Rules of Civil Procedure do not formally recognize a “Motion for Reconsideration,” but out of necessity, the Fifth Circuit has developed an approach for trial courts to evaluate such a motion. The first inquiry involves determining which federal rule governs the motion.
Lavespere v. Niagara Machine & Tool Works, Inc.,
Because the present Motion for Reconsideration was filed within ten days of entry of the Court’s Order denying Defendant’s Motion for Summary Judgment, the Court treats it as a Rule 59(e) motion to alter or amend. Fed.R.Civ.P. 59(e). Relief under Rule 59(e) is appropriate when there has been an intervening change in the controlling law.
Schiller v. Physicians Res. Grp. Inc.,
Defendant requests reconsideration of the ramp determination because: (1) this Court did not consider the evidence contained in an affidavit it provided in the summary judgment context; and (2) Greer did not have a private right of action to assert the ramp issue because under Frame she could not pursue a private right of action.
Here, where recent Fifth Circuit case law constitutes controlling authority which this Court earlier noted was lacking, Rule 59(e) relief is warranted. This Court did not enter final judgment, allowing additional briefing on Frame, which both parties agree is controlling authority. See Pl.’s Br. in Opp. To Def.’s Mot. for Recons. 2 (“RISD contends, and Ms. Greer agrees, that Frame v. City of Arlington, controls this case.”). Therefore, this Court GRANTS Defendant’s Motion for Reconsideration as to the ramp issue, and addresses the issue of whether Plaintiff has a private right of action to pursue it.
II. Private Right of Action
Title II provides that no individual with a qualifying disability shall be denied the benefits of the “services, programs, or activities” of a public entity. 42 U.S.C. § 12132. The phrase “services, programs, or activities” is not defined in the statute. The Fifth Circuit has held that Title II of the ADA mandates physical accessibility and the removal and amelioration of architectural barriers,
Pace v. Bogalusa City Sch. Bd.,
Until Frame, the Fifth Circuit had not decided two issues relevant to this case: (1) whether “constructive exclusion” applies, so that a plaintiff need not show it was impossible for her to access the “services, programs, or activities” in order to have a private right of action; and (2) whether curbs, sidewalks, and parking lots are encompassed by the phrase “services, programs, or activities.”
The Fifth Circuit’s decision
on
rehearing in
Frame v. City of Arlington,
The Fifth Circuit, in
Frame,
considered several issues of first impression. Agreeing with the Sixth and Ninth Circuits, the Fifth Circuit held that under the ADA, a plaintiff may show that a benefit is being administered in a way that “effectively denies” individuals with disabilities “meaningful access” to services, programs, and activities.
Frame,
Thus, if a plaintiff claims that a physical infrastructure’s noncompliance with the law excludes her from, or effectively denies her meaningful access to services, programs, or activities, she has a private right of action to enforce compli *763 anee. In Frame, however, plaintiffs sought correction of a noncompliant sidewalk, curb, and parking lot, but they did not correlate the violation with a deprivation of other services, programs, or activities; they instead argued that the sidewalks, curbs, and parking lots themselves constituted services, programs, or activities of which they were deprived.
The Fifth Circuit disagreed, finding that sidewalks, curbs, and parking lots are not services, programs, or activities within the meaning of Title II, but are, instead, “infrastructure,” “facilities,” or gateways to services, programs, or activities.
Frame,
Therefore, this Court must inquire whether the alleged noncompliance of the ramp or parking spaces deprived Plaintiff of access to Berkner B Field’s services, programs, or activities. This Court previously found that Plaintiff was not denied access to the services at Berkner B Field, and she has not presented any new evidence that correlates the ramp and parking spaces to a denial of such access. Thus, Greer cannot prove a claim for injunctive relief regarding the allegedly non-compliant ramp and parking spaces.
CONCLUSION
For the reasons stated above, Defendant’s Motion for Reconsideration is GRANTED, Defendant’s Motion for Summary Judgment as to the ramp and parking spaces is GRANTED, and Plaintiffs Third Motion for Summary Judgment as to the ramp and parking spaces is DENIED. Plaintiffs claims as to the ramp and parking spaces are DISMISSED.
SO ORDERED.