United States District Court, D. Kansas
MONTI L. BELOT, District Judge.
This case comes before the court on defendant's motion for judgment on the pleadings. (Doc. 24). The motion has been fully briefed and is ripe for decision. (Docs. 25, 33, 37). Defendant's motion is granted for the reasons herein.
On February 12, 2015, plaintiff filed a complaint in the district court of Finney County, Kansas. Plaintiff's complaint was removed to this court. (Doc. 1). Plaintiff alleges that he is on social security disability and has been discriminated against while operating an "other powered driven mobility device" (OPDMD). Plaintiff was cited and convicted, presumably by officers employed by defendant, on multiple occasions for driving with a suspended license while operating an OPDMD, specifically a motor operated bicycle and a riding lawn mower. Plaintiff filed a supplement to his complaint in which he states that he has recently been diagnosed with multiple sclerosis. (Doc. 9). Plaintiff also attached his social security records and criminal records from Garden City to the supplement. (Doc. 9).
Defendant moves to dismiss on the basis that plaintiff has not alleged sufficient facts to state a claim.
II. Motion to Dismiss Standards: FRCP 12(c)
The standards this court must utilize upon a motion for judgment on the pleadings mirrors the standard for analyzing motions to dismiss under Rule 12(b)(6). Nelson v. State Farm Mut. Auto. Ins. Co., 419 F.3d 1117, 1119 (10th Cir. 2005). To withstand a motion to dismiss, a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007)). All well-pleaded facts and the reasonable inferences derived from those facts are viewed in the light most favorable to plaintiff. Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008). Conclusory allegations, however, have no bearing upon this court's consideration. Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007). In the end, the issue is not whether plaintiff will ultimately prevail, but whether he is entitled to offer evidence to support his claims. Beedle v. Wilson, 422 F.3d 1059, 1063 (10th Cir. 2005).
III. Legal Standard for Pro Se Litigants
It has long been the rule that pro se pleadings, including complaints and pleadings, must be liberally construed. See Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991); Hill v. Corrections Corp. of America, 14 F.Supp.2d 1235, 1237 (D. Kan. 1998). This rule requires the court to look beyond a failure to cite proper legal authority, confusion of legal theories, and poor syntax or sentence construction. See Hall, 935 F.2d at 1110. Liberal construction does not, however, require this court to assume the role of advocate for the pro se litigant. See id. Plaintiff is expected to construct his own arguments or theories and adhere to the same rules of procedure that govern any other litigant in this district. See id.; Hill, 14 F.Supp.2d at 1237. Additionally, the court need not accept as true plaintiff's conclusory allegations because no special legal training is required to recount the facts surrounding alleged injuries. See Hill, 14 F.Supp.2d at 1237. Thus, the court is required to accept as true only plaintiff's well-pleaded and supported factual contentions. See id.
A. ADA Discrimination
The ADA contains three titles which address discrimination against persons with disabilities in three contexts. Briefly summarized, Title I bars employment discrimination, 42 U.S.C. § 12112, Title II bars discrimination in services offered by public entities, 42 U.S.C. § 12132, and Title III bars discrimination by public accommodations engaged in interstate commerce, such as restaurants, hotels, and transportation carriers. 42 U.S.C. §§ 12182, 12184.
Plaintiff's complaint cites to Title III. Title III, however, applies to discrimination in public accommodations by private entities. See Gaona v. Town & Country Credit, 324 F.3d 1050, 1056 (8th Cir. 2003) ("Title III of the ADA prohibits discrimination on the basis of disability in public accommodations, while section 504 of the Rehabilitation Act (and Title II of the ADA) prohibit discrimination on the basis of disability by public entities."); Sandison v. Michigan High School Athletic Ass'n, Inc., 64 F.3d 1026, 1036 (6th Cir. 1995) (Title III "prohibits discrimination on the basis of disability in public accommodations operated by private entities.") Therefore, to the extent plaintiff alleges defendant has violated Title III of the ADA, 42 U.S.C. §§ 12181-12189, plaintiff's claim under Title III is dismissed with prejudice.
In plaintiff's exhibits to his supplement, he attached portions of Title II. Therefore, the court liberally construes plaintiff's complaint as making a claim under Title II. Title II of the ADA 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 subjected to discrimination by any such entity." 42 U.S.C. § 12132. To make out a prima facie case under Title II of the ADA, a plaintiff must establish that "(1) he is a qualified individual with a disability; (2) he was either excluded from participation in or denied the benefits of some public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such ...