Bailey v. Board of Commissioners of the Louisiana Stadium and Exposition District

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

SHELBY BAILEY CIVIL ACTION

VERSUS CASE NO. 18-5888

BOARD OF COMMISSIONERS OF THE LOUISIANA SECTION: “G”(2)

STADIUM AND EXPOSITION DISTRICT, ET AL.

ORDER AND REASONS

Pending before the Court is Defendants, the Board of Commissioners of the Louisiana

Stadium and Exposition District (the “Board”) and Kyle France’s, in his official capacity as

Chairman of the Board (“France”) (collectively “LSED Defendants”), “Motion for Summary

Judgment on all of Plaintiff’s Remaining Claims.”1 Plaintiff Shelby Bailey (“Plaintiff”) filed a

complaint alleging that the owners and operators of the Mercedes-Benz Superdome (the

“Superdome”), failed to provide him with handicap accessible seating during New Orleans Saints

(the “Saints”) football games.2 In the instant motion, the LSED Defendants argue that all of

Plaintiff’s claims should be dismissed because both the Board and France are entitled to sovereign

immunity.3 Considering Defendants’ motion, the memoranda in support and opposition, the

record, and the applicable law, the Court grants the motion in part and denies the motion in part.

I. Background

On June 14, 2018, Plaintiff filed a Complaint in this Court naming as defendants SMG as

the operator of the Superdome, the Board as the owner of the Superdome, and France in his official

1 Rec. Doc. 94.

2 Rec. Doc. 1.

3 Rec. Doc. 94-1 at 1.

capacity as chairman of the Board.4 Plaintiff brings claims against the Board and France for

declaratory and injunctive relief pursuant to Title II of the Americans With Disabilities Act

(“ADA”), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, 29 U.S.C. §794, et seq.5 Plaintiff

brings claims against SMG for declaratory and injunctive relief pursuant to Title III of the ADA.6

Plaintiff also seeks recovery of attorneys’ fees and costs.7

According to the Complaint, Plaintiff has a disability and relies on an electric wheelchair

for mobility.8 Plaintiff alleges that he has been a Saints season ticket holder for over 30 years.9

Plaintiff alleges that prior to 2011, his seat was located on a wheelchair accessible raised platform

in the 100 Level section of the Superdome.10 Plaintiff alleges that in 2011, Defendants began

extensive renovations on the Superdome and reconfigured the accessible seating section for

patrons with disabilities.11 Plaintiff alleges that as a result of the renovations, the wheelchair

accessible seating at the Superdome was moved to other positions where the views are obstructed

by barriers and other patrons or players standing during the game, or the seating is not fully

accessible by wheelchair.12

Plaintiff alleges that Defendants have been on notice of ongoing accessibility issues for

4 Rec. Doc. 1.

5 Id. at 1–2.

6 Id. at 2.

7 Id.

8 Id. at 4.

9 Id.

10 Id.

11 Id.

12 Id. at 4–8.

many years.13 According to the Complaint, in 2008 the United States Department of Justice

conducted an inspection of the Superdome and issued a report detailing violations of ADA

regulations.14 Additionally, Plaintiff alleges that Defendants were sued by private litigants in 2018

regarding ongoing accessibility violations.15

As a result, Plaintiff alleges that Defendants have failed to comply with various parts of

the ADA and Rehabilitation Act.16 Plaintiff seeks compensatory and nominal damages along with

declaratory and injunctive relief, and attorneys’ fees.17

On December 13, 2019, the Court granted in part and denied in part Defendant SMG’s

Motion for Judgment on the Pleadings.18 Accepting as true the allegations in the Complaint, the

Court found that SMG could be held liable as an operator of the Superdome because SMG controls

modification of the Superdome and could cause the Superdome to comply with the ADA.19

Additionally, viewing the allegations in the Complaint in the light most favorable to Plaintiff, the

Court found that Plaintiff’s claims for injunctive and declaratory relief were timely because the

Complaint was filed within one year of SMG allegedly denying Plaintiff “the full and equal

enjoyment” of a place of public accommodation.20 However, the Court found that Plaintiff’s claim

13 Id. at 10.

14 Id.

15 Id. at 10–11.

16 Id. at 11–29.

17 Id. at 1.

18 Rec. Doc. 86.

19 Id. at 24.

20 Id. at 24–25.

regarding future renovations was not ripe for judicial review.21 Accordingly, the Court granted the

motion to the extent it sought dismissal of Plaintiff’s claim regarding future renovations but denied

the motion in all other respects.22

The LSED Defendants filed the instant motion on December 30, 2019.23 Plaintiff filed an

opposition on January 7, 2020.24 The LSED Defendants, with leave of Court, filed a reply in further

support of the motion on January 17, 2020.25 Plaintiff, with leave of Court, filed a sur-reply to the

motion on January 27, 2020.26

II. Parties’ Arguments

A. The LSED Defendants’ Arguments in Support of the Motion

In the instant motion, the LSED Defendants argue that Plaintiff’s ADA claims and

Rehabilitation Act claims should be dismissed.27 The LSED Defendants contend that Plaintiff’s

claim against them under Title II of the ADA should be dismissed because both the Board and

France are entitled to sovereign immunity.28 The LSED Defendants argue that the Rehabilitation

21 Id. at 25.

22 Id.

23 Rec. Doc. 94.

24 Rec. Doc. 103.

25 Rec. Doc. 125. In opposition to the motion for leave to file reply memorandum, Plaintiff argued that the

LSED Defendants raised new arguments in their reply brief – namely that France cannot be sued under the doctrine

of Ex parte Young because he does not have enough power to effectuate relief. Rec. Doc. 117. This Court noted that

while courts in the Fifth Circuit have determined that new arguments raised for the first time in a reply brief need not

be considered, the Fifth Circuit has also found that courts “may rely on arguments and evidence presented for the first

time in a reply brief as long as the court gives the nonmovant an adequate opportunity to respond.” Rec. Doc. 124

(internal citations omitted). Accordingly, the Court ordered that the appropriate remedy to a defendant potentially

improperly raising new arguments for the first time in a reply brief is for plaintiff to file a sur-reply. Id.

26 Rec. Doc. 133.

27 Rec. Doc. 94-1 at 1.

28 Id.

Act claim should be dismissed because the Board is not a recipient of federal financial assistance,

which LSED Defendants argue is required under the Rehabilitation Act.29 Lastly, the LSED

Defendants contend that all of Plaintiff’s claims should be dismissed as untimely.30

1. LSED Defendants Assert they are Entitled to Sovereign Immunity

The LSED Defendants argue that Plaintiff’s claim under Title II of the ADA fails for four

reasons: (1) the Board is an arm of the State of Louisiana; (2) Plaintiff has failed to state a valid

claim under Title II of the ADA; (3) Plaintiff cannot, as a matter of law, demonstrate that the

alleged conduct of the Board violated the Fourteenth Amendment; and (4) Congress did not validly

abrogate the states’ sovereign immunity with respect to Plaintiff’s claim when it passed Title II of

the ADA.31

a. The Board is an Arm of the State of Louisiana.

The LSED Defendants argue that the Fifth Circuit has developed a six-factor test for

determining whether a state entity is entitled to Eleventh Amendment sovereign immunity, which

includes:

1. Whether state statutes and case law view the agency as an arm of the state;

2. The source of the entity’s funding;

3. The entity’s degree of local autonomy;

4. Whether the entity is concerned with primarily local as opposed to statewide problems;

5. Whether the entity has the authority to sue and be sued in its own name; and

6. Whether the entity has the right to hold and use property.32

First, the LSED Defendants contend that constitutional and legislative pronouncements

29 Id. at 1-2.

30 Id. at 2.

31 Id. at 6.

32 Id. (citing Hudson v. City of New Orleans, 174 F.3d 677, 681 (5th Cir. 1999); Clark v. Tarrant County,

798 F.2d 736, 744 (5th Cir. 1986)).

show that the Board is a state agency within Louisiana’s executive branch.33 Second, the LSED

Defendants argue that any judgment against the Board would be paid from the state treasury;

therefore the second factor, which is the most important factor, is met.34 Third, the LSED

Defendants contend that the seven member Board is appointed by and serve entirely at the pleasure

of the Governor of Louisiana, and therefore does not have any significant local autonomy.35

Fourth, the LSED Defendants argue that while the Superdome is located in Orleans Parish, it was

built for the benefit of all the people of the State of Louisiana, making its primary concern

“statewide” in satisfaction of the fourth factor.36 Finally, the LSED Defendants acknowledge that

the Board has the authority to sue and be sued and does have the right to hold and use property,

and therefore, does not satisfy the fifth and sixth factors.37 In sum, the LSED Defendants argue

that because four of the six factors weigh in favor of the Board, the Board is entitled to the

protection of Eleventh Amendment sovereign immunity.38

b. Congress did not Abrogate Sovereign Immunity Under Title II of

the ADA as to Plaintiff’s Claims.

Next, the LSED Defendants contend that sovereign immunity protects the Board from

Plaintiff’s claims unless Congress validly abrogated the state’s immunity as to those claims.39 The

LSED Defendants argue that applying the three-part test from U.S. v. Georgia to this case

33 Id. at 7.

34 Id. at 8-9.

35 Id. at 9.

36 Id. at 9-10.

37 Id. at 10.

38 Id. at 10-11.

39 Id. at 11.

demonstrates that the state’s sovereign immunity was not abrogated.40

i. Failure to Show A Violation of Title II of the ADA.

The LSED Defendants contend that to sustain a claim for damages under Title II of the

ADA, a plaintiff is required to show intent.41 The LSED Defendants argue that Plaintiff has not

presented any evidence showing that the LSED Defendants intended to discriminate against him

because of his disability in renovating the Superdome.42

ii. Failure to Show A Violation of the Fourteenth Amendment.

The LSED Defendants contend that under the Equal Protection Clause, disabled persons

are not a suspect class; therefore, any classifications on the basis of disability are subject to

rational-basis scrutiny.43 The LSED Defendants argue that the renovations to the Superdome bore

a rational relationship to a legitimate governmental purpose, and therefore Plaintiff cannot show

that the LSED Defendants violated the Fourteenth Amendment.44

iii. Congress Did Not Validly Abrogate Sovereign Immunity as to

the Conduct Involved Here.

The LSED Defendants contend that if the Court concludes that Plaintiff failed to carry his

summary-judgment burden as to either of the first two elements of Georgia test, the Court need

not reach the third element.45 However, the LSED Defendants argue that if the Court reaches the

third element, it should find that the Title II violations Plaintiff alleges neither implicate nor violate

40 Id..

41 Id. at 12-13 (citing Miraglia v. Bd. of Supervisors of the La. State Museum, No. 17-30834, 2018 U.S.

App. LEXIS 24037, at *13-14 (5th Cir. Aug. 24, 2018).

42 Id. 94-1 at 13.

43 Id. at 14 (citing Douglas v. Gusman, 567 F. Supp. 877, 886 (E.D. La. 2008) (Duval, J.)).

44 Id. at 14-15.

45 Id. at 15.

any right guaranteed by the Fourteenth Amendment.46

2. Compensatory Damages under the Rehabilitation Act and Titles II and III of

the ADA

The LSED Defendants contend that in suits for money damages under the Rehabilitation

Act and Titles II and III of the ADA, a plaintiff must prove that the defendant violated the ADA

or Rehabilitation Act and that the discrimination was intentional.47 The LSED Defendants assert

that while Plaintiff argues that he need not show intent for a claim of disparate impact, the Fifth

Circuit held to the contrary in Miraglia.48 The LSED Defendants contend that Plaintiff presents no

facts showing that the defendants acted with deliberate indifference and that therefore, Plaintiff is

not entitled to receive compensatory damages.49

3. Plaintiff’s Claims are Untimely

Lastly, the LSED Defendants contend that Plaintiff’s claims are untimely and therefore

barred because Plaintiff should have brought his claims within the one-year prescriptive period for

tort claims.50 The LSED Defendants argue that Plaintiff knew or should have known about the

renovations to the Superdome in 2011 or 2016.51

B. Plaintiff’s Arguments in Opposition to the Motion

In opposition to the motion, Plaintiff first clarifies that he does not oppose the dismissal of

46 Id. at 16.

47 Id. at 17-18 (citing Delano-Pyle v. Victoria Cty., 302 F.3d 567, 574 (5th Cir. 2002)).

48 Id. at 18 (citing Miraglia v. Bd. of Supervisors, 901 F.3d 565, 574 (5th Cir. 2018)).

49 Id. at 19-20.

50 Id. at 20.

51 Id. at 22-23.

his claim for damages under Title II of the ADA or the Rehabilitation Act.52 However, Plaintiff

argues that his claim for injunctive relief under Title II of the ADA against France should not be

dismissed under the Ex parte Young doctrine.53 Furthermore, Plaintiff contends that his claims are

timely.54

First, Plaintiff argues that his ADA claim against France should be permitted to proceed

under the doctrine of Ex parte Young.55 Plaintiff contends that the Ex parte Young doctrine permits

a plaintiff to seek prospective injunctive relief and attorneys’ fees against a state official in his

official capacity for violations of federal law.56 Specifically, Plaintiff argues that in the Fifth

Circuit, a state official can be sued for prospective relief in their official capacity under Title II of

the ADA.57 Furthermore, Plaintiff contends that “even where legislation invalidly abrogates a

state’s sovereign immunity, the Ex parte Young exception is still available to the plaintiff.”58 In

sum, Plaintiff argues that the prospective relief he seeks against France is properly sought under

the doctrine of Ex parte Young.59

Second, Plaintiff contends that his claims are timely because a new ADA claim accrues

52 Rec. Doc. 103 at 1-2 (citing Smith v. Bd. of Commissioners of Louisiana Stadium & Exposition Dist., 372

F. Supp. 3d 431 (E.D. La. 2019)).

53 Id. at 1-2.

54 Id. at 2.

55 Id. at 3-5.

56 Id. at 3 (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 291 (2d Cir. 2003); McCarthy ex rel. Travis v.

Hawkins, 381 F.3d 407, 412 (5th Cir. 2004)).

57 Id. at 4 (citing McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 409-10 (5th Cir. 2004)).

58 Id. at 4-5 (citing Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 374 n. 9 (2001); Ysleta Del Sur

Pueblo v. Laney, 199 F.3d 281, 285–86 (5th Cir.2000), cert. denied, 529 U.S. 1131 (2000)).

59 Id. at 5.

each time Plaintiff is denied full and equal enjoyment of the Superdome.60 Plaintiff points to the

Court’s previous Order on this point and argues that this Court already determined that Plaintiff’s

claims were timely because they were filed within one year of SMG denying Plaintiff the full and

equal enjoyment of a place of public accommodation.61 Plaintiff contends that each time he goes

to the Superdome for a Saints game, he encounters the same architectural barriers that leave him

unable to fully see the field and prevent him from an equal opportunity to enjoy Saints games.62

Therefore, Plaintiff argues that the Court should deny summary judgment because the Complaint

was timely filed.63

C. The LSED Defendant’s Arguments in Further Support of the Motion

In further support of the instant motion, the LSED Defendants argue that the Ex parte

Young exception is inapplicable to this case.64 The LSED Defendants contend that Plaintiff relies

on cases involving either the heads of state agencies or voting boards wherein all members of the

board were named as defendants.65 The LSED Defendants argue that here, although France is the

Chairman of the Board, he does not possess any overarching authority to unilaterally enact

policies.66 Rather, the LSED Defendants contend that in order to implement a new policy,

including capital outlays, there must be a quorum of board members, and a majority must vote to

60 Id. at 5-7.

61 Id. at 5-6 (citing Rec. Doc. 86).

62 Id. at 6.

63 Id. at 7.

64 Rec. Doc. 125 at 1.

65 Id. at 1-2.

66 Id. at 2 (citing 1921 La. Const. Art. XIV, § 47; Louisiana Revised Statute § 36:4(B)(1)(u)).

approve the measure; France as chairman is only one of the seven voting members.67

The LSED Defendants argue that in cases in which a plaintiff invokes Ex parte Young, the

defendant state official must have some authority to enforce the law or an order for injunctive

relief.68 For example, the LSED Defendants contend that the United States Supreme Court in

Western Union Telegraph Co. v. Andrews determined that the Ex parte Young doctrine requires a

connection between the state official and the challenged statute.69 The LSED Defendants argue

that here, in order to act on any injunctive relief ordered by the Court, France would need a majority

of the Board to adopt the measure and only France himself would be bound by the Court’s order.70

The LSED Defendants contend that “the 5th Circuit stated that any probe into the existence

of a Young exception should gauge ‘(1) the ability of the official to enforce the statute at issue

under his statutory or constitutional powers, and (2) the demonstrated willingness of the official to

enforce the statute.’”71 The LSED Defendants argue that here, while France could be enjoined to

vote for a capital outlay to remedy a potential ADA violation, Plaintiff’s failure to include other

board members means France would be powerless the enforce the measure.72 The LSED

Defendants contend that pursuant to Lujan v. Defenders of Wildlife, a plaintiff must show that his

injury will be redressed by a favorable decision.73 In sum, the LSED Defendants argue that “by

failing to bring suit against all the members of the LSED Board [Plaintiff] has failed to sufficiently

67 Id. at 2 (citing Louisiana Revised Statute § 42:13(A)(3)).

68 Id. (citing Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001); Lytle v. Griffith, 240 F.3d 404, 412 (4th Cir.

2001)).

69 Id. at 2-3 (citing Western Union Telegraph Co. v. Andrews, 216 U.S. 165 (1910)).

70 Id. at 3.

71 Id. at 4 (citing Okpalobi, 244 F.3d 405 at 417).

72 Id.

73 Id. at 5 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

name as defendants the persons who could grant him relief,” because France does not control the

remaining members of the Board and how they vote.74 Therefore, the LSED Defendants contend

that France enjoys Eleventh Amendment immunity and that the Ex parte Young exception is

inapplicable here.75

D. Plaintiff’s Arguments in Further Opposition to the Motion

In further opposition to the instant motion, Plaintiff contends the LSED Defendants argue

that this Court should depart from the “straightforward inquiry” under the doctrine of Ex parte

Young and instead adopt a standard, that the chairman of a board must be dismissed unless all

board members are also joined as defendants, an argument has never been adopted by the United

States Supreme Court or the Fifth Circuit.76 Plaintiff contends that the Ninth Circuit recently

rejected a similar argument.77 Plaintiff argues that this Court should reject the LSED Defendants’

argument and instead find that France has at least some enforcement connection with the

challenged statute and is thus a proper defendant.78

Plaintiff contends that “[t]he Fifth Circuit has made it clear that a suit under Ex parte Young

is properly directed at an official who has ‘some enforcement connection with the challenged

statute’” whereas “a suit against an official who does not have ‘any duty or ability to do anything’

is not proper under Ex parte Young.”79 Here, Plaintiff argues that France has a role, by casting a

74 Id.

75 Id. at 6.

76 Rec. Doc. 133 at 1.

77 Id. at 3 (citing Salt River Project Agr. Imp. & Power Dist. v. Lee, 672 F.3d 1176, 1180-81 (9th Cir.

2012)).

78 Id. at 1-2.

79 Id. at 2 (citing Okpalobi v. Foster, 244 F.3d 405, 414, 427 (5th Cir. 2001)).

potential vote in favor of renovations, in ensuring that the Board brings the Superdome into

compliance with the ADA.80 Specifically, Plaintiff contends that in his role as Chairman of the

Board, France can investigate problems, make proposals to the Board, and cast his vote in favor

of renovations.81 Furthermore, Plaintiff argues that the LSED Defendants’ argument that the other

Board members would vote “no” on renovations ordered by the Court is speculative.82

III. Legal Standard

A. Legal Standard for Summary Judgment

Summary judgment is appropriate when the pleadings, the discovery, and any affidavits

show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.”83 When assessing whether a dispute as to any material fact exists, the court

considers “all of the evidence in the record but refrains from making credibility determinations or

weighing the evidence.”84 All reasonable inferences are drawn in favor of the nonmoving party,

but “unsupported allegations or affidavits setting forth ‘ultimate or conclusory facts and

conclusions of law’ are insufficient to either support or defeat a motion for summary judgment.”85

If the record, as a whole, “could not lead a rational trier of fact to find for the non-moving party,”

then no genuine issue of fact exists, and the moving party is entitled to judgment as a matter of

law.86 The nonmoving party may not rest upon the pleadings, but must identify specific facts in

80 Id. at 3.

81 Id. at 3-4.

82 Id. at 4.

83 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid Air

Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

84 Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398–99 (5th Cir. 2008).

85 Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Little, 37 F.3d at 1075.

86 Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

the record and articulate the precise manner in which that evidence establishes a genuine issue for

trial.87

The party seeking summary judgment always bears the initial responsibility of informing

the court of the basis for its motion and identifying those portions of the record that it believes

demonstrate the absence of a genuine issue of material fact.88 Thereafter, the nonmoving party

should “identify specific evidence in the record, and articulate” precisely how that evidence

supports his claims.89 To withstand a motion for summary judgment, the nonmoving party must

show that there is a genuine issue for trial by presenting evidence of specific facts.90 The

nonmovant’s burden of demonstrating a genuine issue of material fact is not satisfied merely by

creating “some metaphysical doubt as to the material facts,” “by conclusory allegations,” by

“unsubstantiated assertions,” or “by only a scintilla of evidence.”91 Rather, a factual dispute

precludes a grant of summary judgment only if the evidence presented by the nonmovant is

sufficient to permit a reasonable trier of fact to find for the nonmoving party.92 Further, a court

“resolve[s] factual controversies in favor of the nonmoving party, but only when there is an actual

controversy, that is, when both parties have submitted evidence of contradictory facts.”93 Hearsay

evidence and unsworn documents that cannot be presented in a form that would be admissible in

87 See Celotex, 477 U.S. at 325; Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).

88 Celotex, 477 U.S. at 323.

89 Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir.), cert. denied, 513 U.S. 871 (1994).

90 Bellard v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012) (citing Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248–49 (1996)).

91 Little, 37 F.3d at 1075.

92 Anderson, 477 U.S. at 248.

93 Little, 37 F.3d at 1075.

evidence at trial do not qualify as competent opposing evidence.94 Ultimately, summary judgment

is appropriate in any case “where critical evidence is so weak or tenuous on an essential fact that

it could not support a judgment in favor of the nonmovant.”95

B. ADA Compliance

The Americans with Disabilities Act of 1990 (“ADA”) “is a broad mandate of

comprehensive character and sweeping purpose intended to eliminate discrimination against

disabled individuals, and to integrate them into the economic and social mainstream of American

life.”96 “To effectuate its sweeping purpose, the ADA forbids discrimination against disabled

individuals in major areas of public life, among them employment (Title I of the Act), public

services (Title II), and public accommodations (Title III).”97 Plaintiff brings claims against the

Board and France under Title II of the ADA and the Rehabilitation Act.98 Plaintiff brings claims

against SMG under Title III of the ADA.99

“Title II of the ADA focuses on disability discrimination in the provision of public

services.”100 Specifically, Title II 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,

94 Fed. R. Civ. P. 56(c)(2); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987).

95 Armstrong v. City of Dallas, 997 F.2d 62 (5th Cir. 1993).

96 Frame v. City of Arlington, 657 F.3d 215, 223 (5th Cir. 2011) (en banc) (citing PGA Tour, Inc. v. Martin,

532 U.S. 661, 675 (2001); Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 599 (1999) (internal quotation marks

omitted)).

97 PGA Tour, 532 U.S. at 675.

98 Rec. Doc. 1 at 1–2.

99 Id. at 2.

100 Frame, 657 F.3d at 223.

programs, or activities of a public entity, or be subjected to discrimination by any such entity.”101

A “public entity” includes “any department, agency, special purpose district, or other

instrumentality of a State or States or local government.”102

Similarly, “Section 504 of the Rehabilitation Act prohibits disability discrimination by

recipients of federal funding.”103 Like Title II, Section 504 provides that no qualified individual

with a disability “shall, solely by reason of her or his disability, be excluded from participation in,

be denied the benefits of, or be subjected to discrimination under any program or activity receiving

Federal financial assistance.”104 “The ADA and the Rehabilitation Act generally are interpreted in

pari materia.”105 “Indeed, Congress has instructed courts that “nothing in [the ADA] shall be

construed to apply a lesser standard than the standards applied under title V [i.e., § 504] of the

Rehabilitation Act . . . or the regulations issued by Federal agencies pursuant to such title.’”106

“To show a violation of either statute, a plaintiff must prove “(1) that he has a qualifying

disability; (2) that he is being denied the benefits of services, programs, or activities for which the

public entity is responsible, or is otherwise discriminated against by the public entity; and (3) that

such discrimination is by reason of his disability.”107

The United States Attorney General is authorized to promulgate regulations implementing

101 42 U.S.C. § 12132.

102 Hainze v. Richards, 207 F.3d 795, 799 (5th Cir. 2000) (quoting 42 U.S.C. § 12131(1)(B)).

103 Frame, 657 F.3d at 223.

104 29 U.S.C. § 794(a).

105 Frame, 657 F.3d at 223 (citing Kemp v. Holder, 610 F.3d 231, 234–35 (5th Cir. 2010); Pace v. Bogalusa

City Sch. Bd., 403 F.3d 272, 287–88, 289 n. 76 (5th Cir. 2005) (en banc)).

106 Id. at 223–24 (quoting 42 U.S.C. § 12201(a); Bragdon v. Abbott, 524 U.S. 624, 632 (1998)).

107 Miraglia v. Bd. of Supervisors of Louisiana State Museum, 901 F.3d 565, 574 (5th Cir. 2018) (quoting

Hale v. King, 642 F.3d 492, 499 (5th Cir. 2011) (per curiam)).

Title II.108 The regulations provide that “no qualified individual with a disability shall, because a

public entity’s facilities are inaccessible to or unusable by individuals with disabilities, be excluded

from participation in, or be denied the benefits of the services, programs, or activities of a public

entity, or be subjected to discrimination by any public entity.”109 A public entity must operate

“each service, program, or activity so that the service, program, or activity, when viewed in its

entirety, is readily accessible to and usable by individuals with disabilities.”110 Therefore, Title II

requires “program accessibility.”111

“Recognizing that failure to accommodate persons with disabilities will often have the

same practical effect as outright exclusion, Congress required the States to take reasonable

measures to remove architectural and other barriers to accessibility.”112 However, a public entity

is not “necessarily required . . . to make each of its existing facilities accessible to and usable by

individuals with disabilities.”113 Instead, with respect to facilities built before 1992, Title II only

requires ‘“reasonable modifications’ that would not fundamentally alter the nature of the service

provided, and only when the individual seeking modification is otherwise eligible for the

service.”114

“In the case of facilities built or altered after 1992, the regulations require compliance with

108 42 U.S.C. § 12134(a).

109 28 C.F.R. § 35.149.

110 28 C.F.R. § 35.150(a).

111 Tennessee v. Lane, 541 U.S. 509, 531 (2004).

112 Id. (citing 42 U.S.C. § 12131(2)).

113 28 C.F.R. § 35.150(a)(1).

114 Lane, 541 U.S. at 531.

specific architectural accessibility standards,”115 including the ADA Accessibility Guidelines for

Buildings and Facilities (“ADAAG”) set forth at 36 C.F.R. part 1191, appendices B and D.

Pursuant to the regulations, “[e]ach facility or part of a facility altered by, on behalf of, or for the

use of a public entity in a manner that affects or could affect the usability of the facility . . . shall,

to the maximum extent feasible, be altered in such manner that the altered portion of the facility is

readily accessible to and usable by individuals with disabilities. . . .”116

C. Eleventh Amendment Immunity and the Ex parte Young Exception

The Supreme Court has interpreted the Eleventh Amendment to bar suits in federal court

by private citizens against nonconsenting states.117 This immunity extends to protect state officers

acting in their official capacities, who, under the principle of state-sovereign immunity, are

generally bared from suit.118 However, the Supreme Court has recognized an exception to this rule

under the Ex parte Young doctrine whereby “a federal court, consistent with the Eleventh

Amendment, may enjoin state officials to conform their future conduct to the requirements of

federal law.”119 A court undertaking an Ex parte Young analysis must conduct two inquires to

determine whether the exception applies to the state officer in question. First, the court must

conduct a “straightforward inquiry into whether the complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as prospective.”120 Next, the court must “also

115 Id. (citing 28 CFR § 35.151).

116 28 C.F.R. § 35.151(b)(1).

117 Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001).

118 Edelman v. Jordan, 415 U.S. 651, 663–69 (1974); McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407,

412 (5th Cir. 2004) (finding that “the principle of state-sovereign immunity generally precludes actions against state

officers in their official capacities”).

119 Quern v. Jordan, 440 U.S. 332, 337 (1979).

120 City of Austin v. Paxton, 943 F.3d 993, 998 (5th Cir. 2019) (quoting Verizon Maryland, Inc. v. Public

Service Commission of Maryland, 535 U.S. 635, 645 (2002)).

decide whether the official in question has a ‘sufficient connection [to] the enforcement’ of the

challenged act.”121

IV. Analysis

In the instant motion, the LSED Defendants argue that they are entitled to summary

judgment because (1) both the Board and France are entitled to sovereign immunity and (2) the

Complaint was not timely filed.122 After Plaintiff argued in opposition that the ADA claim against

France should be permitted to proceed under the doctrine of Ex parte Young, the LSED Defendants

argued that the Ex parte Young exception is inapplicable to this case.123 The Court will address

each argument in turn.

A. Whether the Board and France are Entitled to Sovereign Immunity

The LSED Defendants contend that Plaintiff’s claim against them under Title II of the

ADA should be dismissed because both the Board and France are entitled to sovereign

immunity.124 The LSED Defendants argue that Plaintiff’s Rehabilitation Act claim must also be

dismissed because the Board is not a recipient of federal financial assistance, which the Board

argues is required under the Rehabilitation Act.125 In response, Plaintiff states that he does not

oppose the dismissal of his claim for damages under Title II of the ADA or the Rehabilitation

Act.126 Plaintiff also does not contest the LSED Defendants’ assertion that all claims against the

121 Id. (quoting Ex Parte Young, 209 U.S. 123, 157 (1908) (citation omitted).

122 Rec. Doc. 94-1 at 2.

123 Rec. Doc. 125 at 1.

124 Rec. Doc. 94-1 at 1.

125 Rec. Doc. 94-1 at 1-2.

126 Rec. Doc. 103 at 1-2 (“Based on Judge Morgan’s holding in Smith, dismissal of Mr. Bailey’s claim for

injunctive relief under Title II of the Americans with Disabilities Act against Kyle France, in his official capacity,

would be inappropriate under the doctrine of Ex parte Young. Also because of Judge Morgan’s holding in Smith,

Mr. Bailey does not oppose the dismissal of his claims for damages under Title II of the ADA or the Rehabilitation

Board must be dismissed because the Board is entitled to sovereign immunity.127 Summary

judgment is appropriate when the pleadings, the discovery, and any affidavits show that “there is

no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.”128 Here, Plaintiff does not oppose dismissal of his claims against the Board and his claim for

damages against France. Therefore, those claims are dismissed with prejudice.129

B. Whether the Ex Parte Young Exception Applies

While Plaintiff does not oppose the dismissal of his claims against the Board or his claim

for damages against France, Plaintiff argues that his claim against France for injunctive relief under

Title II of the ADA should not be dismissed under the doctrine of Ex parte Young.130 The LSED

Defendants contend that the Ex parte Young exception is inapplicable here because France cannot,

without approval of the other members of the Board, authorize renovations to the Superdome.131

The Ex parte Young exception only applies when the plaintiff names “individual state

officials as defendants in their official capacities.”132 The Fifth Circuit has previously held that a

suit against a state officer sued in their official capacity can proceed under Title II of the ADA.133

Act”) (citing Smith v. Bd. of Commissioners of Louisiana Stadium & Exposition Dist., 372 F. Supp. 3d 431 (E.D. La.

2019)).

127 Rec. Doc. 103 at 7 (“LSED and France’s motion for summary judgment should be denied as to Mr.

Bailey’s claims for injunctive relief under Title II of the ADA with respect to Kyle France because of Ex parte

Young.”).

128 Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).

129 Rec. Doc. 103 at 1-2, 3.

130 Rec. Doc. 103 at 1-2.

131 Rec. Doc. 125 at 6.

132 Raj v. La. State Univ., 714 F.3d 322, 328 (5th Cir. 2013).

133 McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407, 414 (5th Cir. 2004) (“We thus join the Second,

Sixth, Seventh, Eighth, and Ninth Circuits in holding that Plaintiffs' Ex parte Young suit to enforce Title II can

As discussed above, a court undertaking an Ex parte Young analysis must conduct two inquires to

determine whether the exception applies to the state officer in question. First, the court must

conduct a “straightforward inquiry into whether the complaint alleges an ongoing violation of

federal law and seeks relief properly characterized as prospective.”134 Next, the court must “also

decide whether the official in question has a ‘sufficient connection [to] the enforcement’ of the

challenged act.”135

First, the Court considers “whether the complaint alleges an ongoing violation of federal

law and seeks relief properly characterized as prospective.”136 Here, the Complaint alleges an

ongoing violation of federal law and seeks relief properly characterized as prospective. Plaintiff

alleges that France, in his official capacity as Chairman of the Board, is violating the ADA and

seeks injunctive relief, including an order that France make the Superdome readily and fully

accessible and useable to Plaintiff.137 Plaintiff also seeks attorney’s fees, which are not barred by

the Eleventh Amendment if he ultimately obtains prospective injunctive relief.138

Next, the Court considers whether France has “some connection” to the enforcement of the

disputed act.139 Most of the Fifth Circuit cases addressing this standard arise in the context of a

proceed; Defendants have been sued in their official capacities and are therefore representing their respective state

agencies (which are proper Title II defendants) for all purposes except the Eleventh Amendment.”).

134 Paxton, 943 F.3d at 998 (quoting Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645

(2002)).

135 Id. (quoting Young, 209 U.S. at 157) (citation omitted).

136 Paxton, 943 F.3d at 998 (quoting Verizon Md., Inc., 535 U.S. at 645).

137 Rec. Doc. 1 at 23.

138 Jones v. Texas Juvenile Justice Dept., 646 F. App’x 374, 377 n.15 (5th Cir. 2016) (citing Warnock v.

Pecos Cty., Tex., 88 F.3d 341, 343 (5th Cir. 1996)).

139 Young, 209 U.S. at 157; Okpalobi v. Foster, 244 F.3d 405, 414, 427 (5th Cir. 2001) (quoting Young, 209

U.S. at 155-56) (holding that the Ex parte Young exception “only applies when the named defendant state officials

have some connection with the enforcement of the act and ‘threaten and are about to commence proceedings’ to

enforce the unconstitutional act.”).

plaintiff seeking to enjoin a state official from enforcing an allegedly unconstitutional state

statute.140 The Fifth Circuit recently acknowledged that it has not been clear about what constitutes

a sufficient connection to enforcement.141 The Fifth Circuit noted that different panels of the court

have adopted different definitions of “connection.”142 Under one definition, a plurality of the en

banc court in Okpalobi v. Foster held that the state officer must have “the particular duty to enforce

the statute in question and a demonstrated willingness to exercise that duty.”143 Under this

definition, the state official must be “specially charged with the duty to enforce” the allegedly

unconstitutional state statute and “be threatening to exercise that duty.”144 The LSED Defendants

point to Okpalobi and contend that in undertaking an Ex parte Young analysis, this Court “should

gauge (1) the ability of the official to enforce the statute at issue under his statutory or

constitutional powers, and (2) the demonstrated willingness of the official to enforce the

statute.”145

However, other panels have explicitly declined to follow the sovereign immunity analysis

in Okpalobi “[b]ecause that part of the en banc opinion did not garner majority support, the

140 See Okpalobi, 244 F.3d at 414; Paxton, 943 F.3d at 993; K.P. v. LeBlanc, 627 F.3d 115, 124 (5th Cir.

2010).

141 Paxton, 943 F.3d at 999 (“What constitutes a sufficient ‘connection to [ ] enforcement’ is not clear from

our jurisprudence.”).

142 Id.; see also Boudreaux v. La. State Bar Ass’n, No. cv-19-11962, 2020 WL 137276 (E.D. La. Jan. 13,

2020) (noting that “panels in the Fifth Circuit are split as to whether the official must have ‘the particular duty to

enforce the statute in question and a demonstrated willingness to exercise that duty’ or, rather, whether the state

officer only must have some connection with the enforcement of the statute”); K.P., 627 F.3d at 124 (characterizing

the dispute as “whether Ex Parte Young requires only ‘some connection’ or a ‘special relationship’ between the state

actor and the challenged statute.”).

143 Okpalobi, 244 F.3d at 414, 416.

144 Id. at 414.

145 Id. at 414, 427 (internal citations omitted).

Eleventh Amendment analysis is not binding precedent.”146 Still, the panel in Morris v. Livingston

approvingly quoted the Okpalobi “connection” formulation as correct.147 On the other hand,

another panel has held that to satisfy the “connection” standard, a state officer need only have some

connection with the enforcement of the statute.148

Most recently, in City of Austin v. Paxton, the Fifth Circuit declined to opine on which

“connection to the enforcement” standard is correct.149 However the Paxton Court did state that

the “circuit’s caselaw requires some scintilla of ‘enforcement’ by the relevant state official with

respect to the challenged law.”150 This may involve “point[ing] to specific enforcement actions of

the respective defendant state officials warranting the application of the Young exception.”151

Additionally, “[p]anels in this circuit have defined ‘enforcement’ as ‘typically involv[ing]

compulsion or constraint.’”152

The Court finds that France has the requisite connection with the challenged act to fall

within the Ex Parte Young exception. The Board has final approval authority over all capital

expenditures at the Superdome.153 By virtue of that responsibility, the members of the Board,

146 K.P., 627 F.3d at 124 (citing United States v. Ferguson, 211 F.3d 878, 885 (5th Cir. 2000)).

147 Morris v. Livingston, 739 F.3d 740, 746 (5th Cir. 2014) (quoting Okpalobi, 244 F.3d at 416 (plurality))

(“The required ‘connection’ is not ‘merely the general duty to see that the laws of the state are implemented,’ but

‘the particular duty to enforce the statute in question and a demonstrated willingness to exercise that duty.’”).

148 See Air Evac EMS, Inc. v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d 507, 518 (5th Cir.

2017); K.P., 627 F.3d at 120-25.

149 Paxton, 943 F.3d at 1000 (“[I]n the same vein as panels before us, we find that we need not define the

outer bounds of this circuit’s Ex parte Young analysis today”).

150 Id. at 1002.

151 Id. at 1001.

152 Id. at 1001 (quoting K.P., 627 F.3d at 124).

153 Rec. Docs. 95-12 at 14, 85, 92-8 at 1, 5-6 (Pursuant to the Management Agreement, the Board retains

exclusive control over approving, budgeting, and making funds available for the implementation of “building

additions, alterations or improvements. . .”).

including France, are delegated some enforcement authority to ensure that the Superdome

complies with the requirements of the ADA. As stated above, the Fifth Circuit’s “caselaw requires

some scintilla of ‘enforcement’ by the relevant state official with respect to the challenged law.”154

France has at least some authority, as one of the seven voting members of the Board, to bring the

Superdome into compliance with the ADA. The fact that France does not have unilateral authority

to order renovations does not disrupt the “connection to the enforcement” standard articulated in

Paxton. France has “some connection with the enforcement of the act” sufficient to fall within the

Ex Parte Young exception.155 Accordingly, summary judgment is inappropriate on this basis.

Next, the LSED Defendants make a similar and related argument that the “logic [of the

LSED Defendants’ Ex parte Young argument] is supported by the classic requirements of Lujan v.

Defenders of Wildlife. . .” 156 The LSED Defendants contend that pursuant to Lujan, a plaintiff

must show that his injury will be redressed by a favorable decision.157 The LSED Defendants argue

that “by failing to bring suit against all the members of the LSED Board [Plaintiff] has failed to

sufficiently name as defendants the persons who could grant him relief,” because France does not

control the remaining members of the Board in terms of how they might vote on a proposal that

could bring the Superdome into compliance with the ADA.158

The Fifth Circuit has recognized that there is “significant overlap” between Article III

standing analysis and Ex parte Young analysis.159 “In fact, it may be the case that an official’s

154 Paxton, 943 F.3d at 1002.

155 Young, 209 U.S. at 157.

156 Rec. Doc. 125 at 5 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)).

157 Id.

158 Id.

159 Air Evac, 851 F.3d at 520.

‘connection to [ ] enforcement’ is satisfied when standing has been established.”160 In Lujan v.

Defenders of Wildlife, the Supreme Court laid out the general requirements for plaintiffs to

establish standing under Article III of the Constitution.161 “[T]o satisfy Article III’s standing

requirements, a plaintiff must show (1) it has suffered an ‘injury in fact’ that is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly

traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a favorable decision.”162

Plaintiff attended nine Saints games in the year prior to filing this lawsuit and ten games

since the case was filed. In his declaration, Plaintiff states that he intends to continue attending

Saints games at the Superdome in the future, and he is “gravely concerned that [his] view of the

game, jumbotron, and scoreboard will continue to be obstructed when [he] return[s].163 Therefore,

Plaintiff has standing to seek injunctive relief because: he has suffered an injury in fact that is

concrete and particularized and actual or imminent; the injury is fairly traceable to the challenged

action of France; and it is likely, as opposed to merely speculative, that the injury will be redressed

by a favorable decision.164 “[A] plaintiff satisfies the redressability requirement when he shows

160 Paxton, 943 F.3d at 1002 (citing Russell v. Lundergan-Grimes, 784 F.3d 1037, 1047 (6th Cir. 2015)

(“[A]t the point that a threatened injury becomes sufficiently imminent and particularized to confer Article III

standing, that threat of enforcement also becomes sufficient to satisfy [the connection to the enforcement] element of

Ex parte Young.”).

161 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

162 Friends of the Earth, Inc. v. Laidlaw Environ. Servs. (TOC), Inc., 528 U.S. 167, 180–81 (2000) (citing

Lujan, 504 U.S. at 560–61).

163 Rec. Doc. 95-4.

164 Friends of the Earth, Inc., 528 U.S. at 180–81.

that a favorable decision will relieve a discrete injury to himself. He need not show that a favorable

decision will relieve his every injury.”165

Specifically regarding the redressability requirement, Plaintiff has shown that a favorable

decision as to France will likely relieve his injury. The Board has final approval authority over all

capital expenditures at the Superdome.166 While France cannot unilaterally authorize the capital

expenditures that may bring the Superdome into compliance with the ADA, he holds one of the

seven votes that could vote to effectuate those changes. In K.P. v. LeBlanc, the Fifth Circuit found

that even though “the Board is far from the sole participant in the application of the challenged

statute . . . the Board has definite responsibilities relating to the application [of the challenged

statute].”167 Those “definite responsibilities” including the Board’s power to “start the process for

considering a claim . . . or . . . refus[ing] to do so,” led the Fifth Circuit to conclude that the

members of the board in K.P. could favorably redress the plaintiffs’ injury and therefore find that

plaintiffs had standing.168 The Court finds the factual scenario in K.P. analogous to the facts here.

While France is not the sole participant in the application of the challenged statute, he has definite

responsibilities relating to the application of the challenged statute. Therefore, France can

favorably redress Plaintiff’s injury.

In Okpalobi, the Fifth Circuit concluded that the plaintiffs failed to satisfy the

“redressability” requirement of Lujan because the named state officers, the governor and the

attorney general, “have no power to redress the asserted injuries” and in fact, did not have “any

165 Larson v. Valente, 456 U.S. 228, 243 n. 15 (1982).

166 Rec. Docs. 95-12 at 14, 85, 92-8 at 1, 5-6 (Pursuant to the Management Agreement, the Board retains

exclusive control over approving, budgeting, and making funds available for the implementation of “building

additions, alterations or improvements. . .”).

167 K.P., 627 F.3d at 123-24.

168 Id.

duty or ability to do anything” relating to enforcement of the statute.169 Here the Court cannot say

that France has “no powers to redress the injuries alleged.”170 While France cannot unilaterally

authorize renovations to bring the Superdome into compliance with the ADA, he holds one of

seven votes that could vote to effectuate those changes. Therefore, Plaintiff has standing to seek

relief from France.

C. Whether Plaintiff’s Claims are untimely

The LSED Defendants contend that Plaintiff’s claims are untimely barred because Plaintiff

should have brought his claims within the one-year prescriptive period for tort claims.171 The

LSED Defendants argue that Plaintiff knew or should have known about the renovations in 2011

or 2016, yet waited until June 14, 2018 to file his Complaint.172 In response, Plaintiff contends that

his claims are timely because a new ADA claim accrues each time Plaintiff is denied full and equal

enjoyment of the Superdome.173

Because Congress did not establish a statute of limitations under the ADA, as a “general

rule” courts apply “the most analogous period from state law.”174 The Fifth Circuit has found that

discrimination claims under the ADA are analogous to personal-injury tort claims because they

involve “injury to the individual rights of a person.”175 Furthermore, neither party disputes that

169 Okpalobi, 244 F.3d at 426-27.

170 Id. at 427.

171 Rec. Doc. 94-1 at 20.

172 Id. at 20-23.

173 Rec. Doc. 103 at 5-7.

174 Frame v. City of Arlington, 657 F.3d 215, 237 (5th Cir. 2011) (citing N. Star Steel Co. v. Thomas, 515

U.S. 29, 34 (1995); Wilson v. Garcia, 471 U.S. 261, 266–67 (1985); 28 U.S.C. § 1652).

175 Id. (applying Texas’ statute of limitations for personal injury actions).

Louisiana’s one-year statute of limitations for personal injury actions applies to this case.176 Thus,

Plaintiff’s claims are time-barred if he filed them more than one year after the date they accrued.

Although state law determines the applicable limitations period, “the particular accrual date

of a federal cause of action is a matter of federal law.”177 The starting point must be the statute’s

plain meaning.178 The Fifth Circuit has explained that “[a]bsent unusual circumstances . . . the rule

is that accrual occurs when a plaintiff has ‘a complete and present cause of action, that is, when

the plaintiff can file suit and obtain relief.’”179 “In other words, accrual occurs ‘the moment the

plaintiff becomes aware that he has suffered an injury or has sufficient information to know that

he has been injured.’”180

In Frame v. City of Arlington, the Fifth Circuit determined that an injury under Title II of

the ADA occurs “when a disabled individual has sufficient information to know that he has been

denied the benefits of a service, program, or activity of a public entity.”181 There, the Fifth Circuit

sitting en banc, reversed the district court’s determination that the statute of limitations accrued on

the date that the City finished building or altering an inaccessible sidewalk, holding instead that

the plaintiffs’ cause of action accrued when they knew or should have known they were being

denied the benefits of the City’s newly built or altered sidewalks.182

176 Rec. Doc. 31-1 at 8; Rec. Doc. 33 at 11.

177 Frame, 657 F.3d at 238 (citing Wallace v. Kato, 549 U.S. 384, 388 (2007); Walker v. Epps, 550 F.3d 407,

414 (5th Cir. 2008)).

178 Id. at 224 (internal citations omitted); Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481, 486 (5th Cir.

2013).

179 Id. at 238 (quoting Wallace, 549 U.S. at 388).

180 Id. (quoting Epps, 550 F.3d at 414).

181 Id.

182 Id. at 221, 238.

In Frame, the Fifth Circuit did not address whether claims under the ADA can continue to

accrue until after the offending activity ceases, and it does not appear that the Fifth Circuit has

addressed that issue in any subsequent case. However, at least three circuit courts have held that

claims under the ADA continue to accrue until the offending activity ceases. In Pickern v. Holiday

Quality Foods, Inc., the Ninth Circuit stated that “[s]o long as the discriminatory conditions

continue, and so long as a plaintiff is aware of them and remains deterred, the injury of the ADA

continues.”183 Similarly, in Scherr v. Marriott International, Inc., the Seventh Circuit held that the

plaintiff’s Title III claims were timely, because she was allegedly aware of continued ADA

violations at the defendant’s hotel even though she filed her suit nearly four years after she visited

the noncompliant hotel.184 The Seventh Circuit reasoned that “the statute itself makes clear that

injunctive relief under Title III of the ADA . . . is available to ‘any person who is being subjected

to discrimination on the basis of disability’ or who has ‘reasonable grounds for believing that such

person is about to be subjected to discrimination.’”185 Accordingly, the Seventh Circuit determined

that a continuing or a threatened violation of the ADA is an injury within the meaning of the Act.186

Recently, in Hamer v. City of Trinidad, the Tenth Circuit held that under the repeated

violations doctrine a public entity violates Title II of the ADA each day that it fails to remedy a

noncompliant service, program, or activity.187 As a result, the Tenth Circuit found that “the

applicable statute of limitations does not operate in its usual capacity as a firm bar to an untimely

183 293 F.3d 1133, 1137 (9th Cir. 2002).

184 703 F.3d 1069, 1075–76 (7th Cir. 2013) (“Because the violations Scherr alleges are continuing, the

applicable statute of limitations does not bar her claim.”).

185 Id. at 1076 (quoting 42 U.S.C. § 12188(a)(1)).

186 Id.

187 Hamer v. City of Trinidad, 924 F.3d 1093, 1103 (10th Cir. 2019).

lawsuit. Instead, it constrains a plaintiff’s right to relief to injuries sustained during the limitations

period counting backwards from the day he or she files the lawsuit and injuries sustained while the

lawsuit is pending.”188 The Tenth Circuit noted that the Fifth Circuit’s decision in Frame v. City

of Arlington did not bear on the issue of whether the repeated violations doctrine apples to ADA

claims because that issue was not before the court in Frame.189 The Tenth Circuit further noted

that nothing in the Fifth Circuit’s holding rejected or was inconsistent with the repeated violations

doctrine.190

Following Hamer, a district judge in the Middle District of Louisiana found that Congress’s

use of the present tense in Title II of the ADA “suggests that a new claim accrued on each day the

[defendant] failed to correct a non-compliant service, program, or activity.”191 Accordingly, the

district court found that the plaintiff’s claims were not time barred because the record reflected

that the defendant subjected the plaintiff to discrimination within the limitations period.192

Plaintiff alleges that the 2010 renovations violated the alteration requirements of the ADA

in six ways. Plaintiff alleges that he has been a Saints season ticket holder for over 30 years;193

since 2011 his season tickets have been located in Section 109, Row 36, seats that offer a

substantially limited view that is obstructed by multiple barriers;194 he has visited the Superdome

188 Id. at 1097.

189 Id. at 1104, n.6.

190 Id.

191 Guy v. LeBlanc, No. 18-223, 2019 WL 4131093, at *4 (M.D. La. Aug. 29, 2019) (Jackson, J.) (citing

Hamer, 924 F.3d at 1104).

192 Id.

193 Rec. Doc. 1 at 4.

194 Id. at 5.

numerous times in the past, including during the 2017 Saints season;195 and he planned to return

to the Superdome in August 2018 for the 2018 Saints season.196 During his deposition, Plaintiff

stated that he continued to experience the sight line issues, due to standing patrons and the concrete

overhang, each time he entered the Superdome since 2011.197

Title II mandates 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 subjected to discrimination by any such entity.”198 Congress’s

use of the present tense suggests that a new claim accrued on each day the defendants failed to

correct a non-compliant service, program, or activity.199 Plaintiff filed suit within one year of

allegedly being denied the benefit of a service, program, or activity that was “readily accessible to

and usable by individuals with disabilities.”200 Therefore, the claims are timely. Accordingly,

France is not entitled to summary judgment on this issue.

V. Conclusion

For the reasons discussed above, the LSED Defendants’ motion for summary judgment is

granted in part and denied in part. The motion is granted to the extent that the LSED Defendants

seek dismissal of Plaintiff’s claims for damages under Title II of the ADA or the Rehabilitation

Act. While Plaintiff’s claim against the Board and his claim for damages against France is

dismissed with prejudice, Plaintiff’s claim against France for injunctive relief under Title II of the

195 Id. at 17.

196 Id. at 16.

197 Rec. Doc. 95-11 at 20–21.

198 See 42 U.S.C. § 12132.

199 See Hamer, 924 F.3d at 1104.

200 28 C.F.R. § 35.150(a).

ADA may proceed under the doctrine of Ex parte Young. Lastly, Plaintiffs claims are not time

barred.

Accordingly,

IT IS HEREBY ORDERED that Defendants, the Board and France’s “Motion for

Summary Judgment on all of Plaintiff's Remaining Claims’?! is GRANTED IN PART and

DENIED IN PART.

IT IS FURTHER ORDERED that the motion is GRANTED to the extent that

Defendants seek dismissal of Plaintiff's claims for damages under Title II of the ADA or the

Rehabilitation Act. Any claims for damages under Title Il of the ADA or the Rehabilitation Act is

DISMISSED WITH PREJUDICE. The motion is DENIED in all other respects.

NEW ORLEANS, LOUISIANA, this 21st gay of February, 2020.

NANNETTE JOLIVETTE BROWN

CHIEF JUDGE

UNITED STATES DISTRICT COURT

701 Rec. Doc. 94.

32