The opinion of the court was delivered by: James H. Alesia, Judge
MEMORANDUM OPINION AND ORDER
In August and September 2000, the City renovated one of its
firehouses. Plaintiff John Baaske ("Baaske") has filed this lawsuit,
alleging that the firehouse renovation did not conform with the
requirements of the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12101 et seq. Baaske claims that he brings this action as
"an individual who has reasonable grounds to believe that a class of
disabled individuals has been and will be denied access to a public
building and public accommodations and public events and activities."
(Compl. ¶ 6.) He purports to bring this case on behalf of a class of
individuals with disabilities. However, Baaske's complaint does not
allege that he is disabled.
Baaske brings this case against both the City and Burns. Each defendant
has filed a motion to dismiss this case. The City raises two arguments in
support of its motion to dismiss: (1) Title III of the ADA does not apply
to local governments and other public entities and (2) Baaske does not
have standing to bring a claim under Title II of the ADA. Burns moves to
dismiss Baaske's claims against him on the grounds that those claims are
redundant, as claims filed against a municipal officer in his official
capacity. Additionally, both defendants ask the court to award them
attorneys' fees. First, the court will address the City's motion to
dismiss. Second, the court will consider Burns's motion to dismiss.
Third, the court will discuss the defendants' claims for attorneys'
A. Standard for Deciding a Rule 12(b)(6) Motion to Dismiss
In ruling on a motion to dismiss pursuant to Rule I 2(b)(6), the court
must accept all factual allegations in the complaint as true and draw all
reasonable inferences in favor of the plaintiff Szumny v. Am. Gen. Fin.,
Inc., 246 F.3d 1065, 1067 (7th Cir. 2001). The purpose of a motion to
dismiss is not to decide the merits of the challenged claims but to test
the sufficiency of the complaint. Weller v. Household Fin. Corp.,
101 F.3d 519, 524 n. 1 (7th Cir. 1996). A court will grant a motion to
dismiss only if it is impossible for the plaintiff to prevail under any
set of facts that could be proven consistent with the allegations.
Forseth v. Vill of Sussex, 199 F.3d 363, 368 (7th Cir. 2000).
B. The City's Motion to Dismiss
Before evaluating the merits of the City's motion to dismiss, the court
must determine which title of the ADA gives rise to Baaske's claims. The
ADA is separated into three titles, each of which prohibits disability
discrimination in a different context: Title I, 42 U.S.C. § 12111-17,
applies to discrimination in employment; Title 11, 42 U.S.C. § 12131-65,
applies to discrimination in public services; and Title III,
42 U.S.C. § 12181-89 applies to discrimination in public
accommodations. Baaske makes no allegation regarding discrimination in
employment and alleges that the City's renovation violates
42 U.S.C. § 12132, 12182, 12183 and
12188. (Compl. ¶ 5.)
Therefore, the court's analysis will focus upon Title II and Title III.
The City raises two arguments in support of its motion to dismiss: (1)
Title III of the ADA does not apply to local governments and other public
entities and (2) Baaske does not have standing to bring a claim under
Title II of the ADA.
1. Baaske's Title III Claims
The City argues that the court should dismiss Baaske's Title III claims
against the City because Title III does not apply to municipalities and
other public entities. Baaske does not oppose the City's argument.
Title III prohibits owners and operators of public accommodations from
discriminating against persons with disabilities. 42 U.S.C. § 12182
(a). A "public accommodation," under Title III is a private entity whose
operations affect commerce. 42 U.S.C. § 12181 (7). A private entity is
any entity other than a public entity, as defined by Title II.
42 U.S.C. § 12181 (6). Title II's definition of public entity
includes both state and local governments as well as their departments
and agencies. 42 U.S.C. § 12131. With this statutory language in
mind, the court must determine whether Baaske may bring a Title III claim
against the City. Neither the Supreme Court nor the Seventh Circuit has
directly resolved this issue; therefore, this case appears to be one of
first impression in this circuit. However, the Fifth, Sixth, and Eighth
Circuits have ruled on the issue and the court will look to the
reasonings of those decisions for guidance in this case.
In Bloom v. Bexar County, the Fifth Circuit held that the ADA does not
apply to public entities, including local governments. 130 F.3d 722, 726
(5th Cir. 1997). The Fifth Circuit emphasized the statutory language of
the ADA and concluded that because Title III applies only to public
accommodations, which are private entities, the public entity defendant
could not be held liable under Title III. Id. at 726. The Eighth and
Sixth Circuits have reached the same conclusion. See DeBord v. Bd of
Educ., 126 F.3d 1102, 1106 (8th Cir. 1997) ("Title III of the ADA applies
to private entities providing public accommodations, however, not to
public entities. . . . Entities subject to Title III include private
schools, but not public ones."); Sandison v. Mich. High Sch. Athletic
Ass'n, 64 F.3d 1026, 1036 (6th Cir. 1995) ("Public accommodations are
operated by ...