United States District Court, D. Nebraska
E. STROM, SENIOR JUDGE
matter is before the Court on the defendant, Valero, American
Enterprise Property’s ("defendant" or
"AEP"), motion to dismiss the amended complaint
(Filing No. 22). The matter has been fully briefed
by the parties. See Filing Nos. 23, 24, and 26.
After review of the motion, the parties’ briefs, and
the applicable law, the Court finds as follows.
Andrew Riggle ("plaintiff" or "Riggle")
commenced the present action on November 8, 2015 (Filing No.
1). Plaintiff seeks "injunctive relief,
attorney fees and costs pursuant to 42 U.S.C. §§
12181 et seq. . . ." (Filing No. 21 at
1). Plaintiff alleges he "experienced serious difficulty
accessing the goods and using the services [on
defendant’s property] due to the architectural barriers
. . . therein." (Id. at 2). Riggle claims to be
a "qualified individual" under the Americans with
Disabilities Act ("ADA"), 42 U.S.C. §§
12181 et seq., due to his "bad back, heart
problems, and arthritis." (Id. at 1).
January 29, 2015, AEP filed a motion to dismiss (Filing No.
12). The Court denied AEP’s motion without
prejudice and granted plaintiff the opportunity to amend his
complaint (Filing No. 20). Plaintiff filed his
amended complaint on April 18, 2016 (Filing No. 21).
Thereafter, on April 29, 2016, AEP filed the present motion
to dismiss (Filing No. 22). AEP contends the Court
lacks subject matter jurisdiction because "[p]laintiff
has failed to establish standing . . . ." (Filing No.
23 at 4). AEP also argues plaintiff’s
complaint should be dismissed for failure "to state a
claim for which relief can be granted under the ADA."
(Id. at 9).
Rule of Civil Procedure 12(b)(1)
are subject to dismissal when the Court lacks subject matter
jurisdiction to hear the matter. Fed.R.Civ.P. 12(b)(1). The
party asserting jurisdiction bears the burden of proving that
jurisdiction is proper. Great Rivers Habitat Alliance v.
FEMA, 615 F.3d 985, 988 (8th Cir. 2010).
federal district court must first address "the threshold
question whether [plaintiff has] alleged a case or
controversy within the meaning of Art. III of the
Constitution or only abstract questions not currently
justiciable by a federal court." Babbitt v. United
Farm Workers Nat. Union, 442 U.S. 289, 297, 99 S.Ct.
2301, 60 L.Ed.2d 895 (1979). "[T]he complaint must
contain more than bald assertions of injury to survive a
motion to dismiss . . . ." Burton v. Cent.
Interstate Low-Level Radioactive Waste Compact
Comm’n, 23 F.3d 208, 210 (8th Cir. 1994). "To
show Article III standing, a plaintiff has the burden of
proving: (1) that he or she suffered an
‘injury-in-fact, ’ (2) a causal relationship
between the injury and the challenged conduct, and (3) that
the injury likely will be redressed by a favorable
decision." Steger v. Franco, Inc., 228 F.3d
889, 892 (8th Cir. 2000) (quoting Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119
L.Ed.2d 351 (1992)).
prohibits "discrimination in places of public
accommodation against persons with disabilities."
Id. at 892 (citing 42 U.S.C. § 12182(a)). One
form of discrimination provided within the statute includes
"‘a failure to remove architectural barriers . . .
in existing facilities . . . where such removal is readily
achievable.’" Id. (quoting 42 U.S.C.
§ 12182(b)(2)(A)(iv)). The statute "grants a
private right of action for injunctive relief to, inter alia,
‘any person who is being subjected to discrimination on
the basis of disability.’" Id. (quoting
42 U.S.C. § 12188(a)(1)).
argues he has satisfied the three essential elements of
standing. First he claims to have sufficiently "alleged
an actual injury." (Filing No. 24 at 2).
Second, plaintiff claims his injuries resulted from
defendant’s violations of the ADA. (Id. at
2-3). Finally, plaintiff argues the injunctive relief he
seeks and his intention "to return to use
defendants’ property" is enough to satisfy the
redressibility element. (Id. at 3). Plaintiff
suggests he "had difficulty using the restroom, "
the "toilet stall" and had a difficult time
"turning the bathroom handle to enter and leave the
bathroom." (Filing No. 21 at 2). However,
plaintiff’s complaint fails to allege more than bare
assertions. The Court is left to guess as to how any of the
alleged ADA violations apply to plaintiff’s stated
disabilities or how defendant’s correction of the
supposed violations would remedy the discrimination to which
plaintiff claims he is subjected.
counters that the twenty-four ADA violations alleged by
plaintiff "do not apply to his disability" and
therefore plaintiff is unable to establish the injury-in-fact
and the causal relationship elements of standing (Filing No.
26 at 1; see also Filing No. 23 at
7-9). The Court agrees. The United States Court of Appeals
for the Eighth Circuit has explicitly held that in order
"[t]o meet the injury-in-fact requirement, ‘the
party seeking review must be himself among the
injured.’" Steger, 228 F.3d at 893
(quoting Lujan, 504 U.S. at 560). The Court
concludes that the plaintiff has failed to effectively show
how the ADA violations alleged by plaintiff apply to his
stated disabilities. Plaintiff’s alleged disabilities
include "a bad back, heart problems, and
arthritis." (Filing No. 21 at 1). Plaintiff has
provided the Court with no factual allegations, other than
conclusory statements, to support his claim that the alleged
ADA violations injured him or are somehow causally related to
his stated disabilities. Plaintiff is not "among the
injured." In addition, plaintiff’s complaint fails
to provide a concrete intent to return to AEP’s
property, demonstrating another example of plaintiff’s
deficiency to satisfy the injury-in-fact requirement. See
Steger, 228 F.3d at 892-93.
has failed to establish that he has standing. Therefore, the
Court is without jurisdiction. Accordingly, defendant’s
motion to dismiss will be granted and plaintiff’s
complaint will be dismissed with prejudice. A separate ...