Zach Hillesheim, Plaintiff - Appellant v. Myron‘s Cards and Gifts, Inc., Defendant - Appellee
No. 17-1408
United States Court of Appeals For the Eighth Circuit
Submitted: May 16, 2018, Filed: July 27, 2018
BENTON, KELLY, and STRAS, Circuit Judges. BENTON, Circuit Judge.
Appeal from United States District Court for the District of Minnesota - Minneapolis
Before BENTON, KELLY, and STRAS, Circuit Judges.
Zach Hillesheim sued Myron‘s Cards and Gifts, Inc., seeking declaratory and injunctive relief for alleged violations of the Americans with Disabilities Act (ADA),
I.
Paralyzed from the waist down, Hillesheim uses a wheelchair. He alleged that in October 2016, he visited a store owned and operated by Myron‘s. He encountered “displays and excess merchandise” in boxes that obstructed the aisles in the store. This was, he concluded, discrimination under the ADA because the aisles had “a clear width of less than 36 inches,” violating the ADA Accessibility Guidelines (ADAAG)—
Moving to dismiss, Myron‘s argued the displays and excess merchandise were only temporary or removable obstructions that do not violate the ADA. Hillesheim proposed an amended complaint, alleging he visited the store “approximately 15 times over the last four years. To the best of his recollection, the aisles were obstructed by displays and excess merchandise each of the times he visited.” He again pled that “temporary displays and excess merchandise” caused the aisles to have a width less than 36 inches, violating the ADAAG. He also alleged “extra displays near the entrance of the store narrow[ed] the path of travel.”
Myron‘s countered that amendment was futile because, like the original, the proposed complaint alleged that Hillesheim encountered only temporary or removable obstructions that (according to Myron‘s) do not violate the ADA. The district court agreed: “temporary objects like excess merchandise blocking a store‘s aisles is not an ADA violations.” Hillesheim, 2017 WL 379408, at *2. It also concluded that Hillesheim‘s allegation that he encountered the barriers “approximately 15 times over the last four years” was inconsequential: “Encountering temporary obstructions more often does not change the fact that temporary obstructions do not violate the ADA.” Id.
II.
“[D]enial of leave to amend pleadings is appropriate only in those limited circumstances in which undue delay, bad faith on the part of the moving party, futility of the amendment, or unfair prejudice to the non-moving party can be demonstrated.” Roberson v. Hayti Police Dep‘t, 241 F.3d 992, 995 (8th Cir. 2001), citing Foman v. Davis, 371 U.S. 178, 182 (1962). “A district court‘s denial of leave to amend a complaint may be justified if the amendment would be futile.” Geier v. Missouri Ethics Comm‘n, 715 F.3d 674, 678 (8th Cir. 2013). An amendment is futile if the amended claim “could not withstand a motion to dismiss under
Hillesheim argues that amendment is not futile because some temporary obstructions to store‘s aisles are ADA discrimination. “Title III of the ADA prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005), citing
One form of ADA discrimination occurs when a public accommodation is not “readily accessible to and usable by individuals with disabilities.”
That regulation, however, “does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs.”
[T]he accessible routes in offices or stores are commonly obstructed by boxes, potted plants, display racks, or other items so that the routes are inaccessible to people who use wheelchairs. Under the ADA, the accessible route must be maintained and, therefore, these items are required to be removed. If the items are placed there temporarily—for example, if an office receives multiple boxes of supplies and is moving them from the hall to the storage room—then § 36.211(b) excuses such “isolated or temporary interruptions.”
Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 73 Fed. Reg. 34,508, 34,523 (June 17, 2008). Finally, the Department of Justice‘s “Technical Assistance Manual” explains, “An isolated instance of placement of an object on an accessible route would not be a violation, if the object is promptly removed.” Technical Assistance Manual § III–3.7000.5, available at http://www.ada.gov/taman3.html (last visited Jul. 18, 2018).
These provisions mean that an obstruction of an accessible route violates the readily accessible standard unless the obstruction is isolated or temporary, like those due to maintenance or repairs, restocking shelves, or moving items to a storage room. An obstruction is not isolated or temporary unless it is promptly removed. The district court‘s conclusion—that “temporary objects like excess merchandise blocking a store‘s aisles is not an ADA violations“—is too broad, reflecting neither
Myron‘s emphasizes that the Seventh Circuit concluded that a “weather-related breakdown of elevator service” did not violate the ADA because “occasional elevator malfunctions, unaccompanied by systemic problems of poor maintenance policy or frequent denials of access, do not constitute violations.” Foley v. City of Lafayette, Ind., 359 F.3d 925, 930 (7th Cir. 2004), citing
This case does not involve a mechanical failure, and has not been factually developed like Foley because it is at the motion-to-dismiss stage. Hillesheim alleged that on an October 2016 visit to the store, he encountered “temporary displays and excess merchandise” in boxes that obstructed the accessible routes so they were less than 36 inches wide. He attached pictures of the alleged obstructions to the complaint. See Brown v. Medtronic, Inc., 628 F.3d 451, 459-60 (8th Cir. 2010) (“Documents attached to or incorporated within a complaint are considered part of the pleadings, and courts may look at such documents ‘for all purposes,’
Myron‘s contends that “it is undisputed that the alleged obstruction is a merchandise shipment temporarily placed in the aisle to restock shelves.” That, however, is not clear on the face of the complaint (or from the attached pictures). This court must construe “all reasonable inferences in favor of the non-moving party,” Hillesheim. Van Zee v. Hanson, 630 F.3d 1126, 1128 (8th Cir. 2011). Hillesheim has alleged ADA discrimination—that the store is not “readily accessible to and usable by individuals with disabilities.”
True, instead of “readily accessible” discrimination under
has authority under
42 U.S.C. § 12188 to grant Plaintiff injunctive relief, including an order requiring Defendant to make [the store] readily accessible to and independently usable by individuals with disabilities to the extent required by the ADA and ADAAG, and/or to close [the store] until such time as Defendant cures the access barriers.
(Emphasis added.)
Hillesheim‘s allegations “raise a right to relief above the speculative level” and are not just “labels and conclusions.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, 1008 (9th Cir. 2015) (where a store‘s “aisles appear[ed] inaccessible due to the presence of large items, such as furniture (armchairs and tables), or display racks holding merchandise and ladders,” the court affirmed
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The judgment is reversed, and the case remanded for proceedings consistent with this opinion.2
BENTON
Circuit Judge