The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
)
ANDREW JOHN KERR, )
Plaintiff, )
) Civil Action No.
v. ) 23-13045-NMG
)
CITY OF ATTLEBORO, )
Defendant. )
)
ORDER
GORTON, J.
Pro se litigant Andrew John Kerr has filed a complaint
(Docket # 1) in which he alleges that the City of Attleboro
violated the Americans with Disabilities Act, 42 U.S.C. § 12131-
12165 (“ADA”), when it “refused to allow access to remote
participation to City Council meetings via Zoom and would not
make a reasonable accommodation in accordance with the A.D.A.”
Compl. at 4. Kerr has also filed a motion for leave to proceed
in forma pauperis, a motion for leave to file electronically,
and a motion that any hearings in this action be held remotely
by video or telephone.
For the reasons stated below, the Court will allow in forma
pauperis motion, allow the motion for leave to file
electronically, allow the motion for remote participation in
hearings, and order Kerr to file an amended complaint.
I. Motion for Leave to Proceed in Forma Pauperis
Upon review of the motion for leave to proceed in forma
pauperis, the Court ALLOWS the same.
II. Review of the Complaint
A. Court’s Authority to Review the Complaint
When a plaintiff is allowed to proceed in forma pauperis,
the Court conducts an initial review of the complaint and may
dismiss any claim that is malicious or frivolous, fails to state
a claim upon which relief may granted, or seeks monetary damages
from a party who is immune from such relief. See 28 U.S.C.
§ 1915(e)(2).
To state a claim upon which relief can be granted, a
complaint must contain sufficient factual allegations which
“allow[] the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id.
In conducting this review of the complaint, the Court
liberally construes the complaint because Kerr is representing
himself. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam).
B. Complaint Fails to State a Claim for Relief
Title II of the ADA states in broad language 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.”
42 U.S.C. § 12132. “To establish a prima facie case of a Title
II violation, a plaintiff must show that: (1) he is a ‘qualified
individual with a disability’; (2) he was ‘excluded from
participation in, or denied the benefits of a public entity’s
services, programs, or activities or was otherwise discriminated
against’; and (3) this exclusion, denial of benefits, or
discrimination was ‘by reason of [his] disability.’” Sosa v.
Mass. Dep’t of Corr., 80 4th 15, 30 (1st Cir. 2023) (quoting
Snell v. Neville, 998 F.3d 474, 499 (1st Cir. 2021)). “In cases
where the alleged violation involves the denial of a reasonable
modification/accommodation, ‘the ADA's reasonable accommodation
requirement usually does not apply unless triggered by a
request.’” Kiman v. New Hampshire Dep’t of Corrs., 451 F.3d
274, 283 (1st Cir. 2006) (footnote omitted) (quoting Reed v.
LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir.2001)).
Here, Kerr has failed to state a claim under Title II of
the ADA. First, he has not alleged facts from which the Court
may reasonably infer that he is a qualified person with a
disability as defined in 42 U.S.C. § 12102.
Second, Kerr has not alleged any facts that he was denied
from participation in the City of Attleboro’s city council
meetings by reason of his disability.1 Although he cites twenty-
five dates on which the City of Attleboro allegedly violated his
rights under the ADA (twenty-four of which are two weeks apart
from each other), he does not indicate when he specifically when
he identified his disability to City of Attleboro and asked the
defendant to accommodate that disability by allowing him to
participate in city council meetings remotely. If the City of
Attleboro was not aware of his disability and Kerr did not ask
them to accommodate his disability by offering remote
participation in city council meetings, the City cannot be held
liable under Title II of the ADA.
Thus, if Kerr wishes to proceed with this action, he must
file an amended complaint to cure these pleading deficiencies.
III. Motion to File Electronically
The motion to file electronically is ALLOWED provided that
Kerr complies with all requirements for electronic filing in the
District of Massachusetts, including the following:
1 For purposes of this order, the Court assumes that at the city
council meetings Kerr sought to attend, attendees other than
city council members were allowed to participate (rather than
merely observe).
a. Kerr must have an individual PACER account to
electronically file in the District of
Massachusetts. If Kerr does not have a PACER
account, he must obtain one by visiting
https://pacer.uscourts.gov/register-account.
b. Kerr must contact Tracy McLaughlin
(tracy_mclaughlin@mad.uscourts.gov) to obtain
access to file electronically through the Court’s
Case Management/Electronic Case Files (“CM/ECF”)
system.
c. Kerr must follow this District’s instructions for
pro se litigants filing electronically, which may
be found at
https://www.mad.uscourts.gov/caseinfo/nextgen-
pro-se.htm.
d. Once Kerr registers to file electronically in
this action, he will no longer receive notice of
docket activity in paper form. Thus, Kerr must
maintain reliable access to the internet and
check his email frequently.
e. When there is docket activity in this case, the
CM/ECF system will send a Notice of Electronic
Filing (“NEF”) to the email address Kerr
provided. This NEF will include docket text. If a
document was docketed as part of the docket
entry, the NEF will contain a hyperlink to the
document. Once received, Kerr must promptly read
the NEF and any documents linked to the same.
f. In the fourteen (14) days following the docketing
of a document linked to an NEF, Kerr may have one
“free look” at the document through the hyperlink
in the NEF. Kerr is strongly encouraged to print
or download the document when he avails himself
of the “free look” of the document.
IV. Motion to Hold Hearings Remotely
The motion to hold any hearings in this action remotely by
video or telephone is ALLOWED, subject to reconsideration by the
Court if the parties’ in person attendance is required for
proper review or adjudication of the matter at hand.
V. Conclusion
In accordance with the foregoing, the Court hereby orders:
1. The motion for leave to proceed in forma pauperis
(Docket # 2) is ALLOWED.
2. The motion for leave to file electronically (Docket
# 3) is ALLOWED as set forth above.
3. The motion to hold hearings remotely (Docket No. # 4)
is ALLOWED, subject to reconsideration as set forth above.
4. If Kerr wishes to pursue this action, he must, within
twenty-eight (28) days, file an amended complaint in which he
sufficiently states a claim under Title II of the ADA. Failure
to do so will result in dismissal of this action for failure to
state a claim upon which relief can be granted.
So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: January 8, 2024