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Barfield v. American Enterprise Properties Nebraska

United States District Court, D. Nebraska

August 17, 2016

JIMMY BARFIELD, Plaintiff,
v.
AMERICAN ENTERPRISE PROPERTIES NEBRASKA, 1222 South 4th Street, LLC; BRAD GORDON, MIDTOWN GAS AND GROCERY, AND DOES 1-5 INCLUSIVE, Defendants.

          Jimmy Barfield, Plaintiff, represented by Jackie L. Barfield, BARFIELD LAW FIRM.

          American Enterprise Properties Nebraska, Defendant, represented by Adam J. Prochaska, O'NEILL, HEINRICH LAW FIRM.

          Brad Gordon, Defendant, represented by Adam J. Prochaska, O'NEILL, HEINRICH LAW FIRM.

          Midtown Gas and Grocery, Defendant, represented by Adam J. Prochaska, O'NEILL, HEINRICH LAW FIRM.

          FINDINGS, RECOMMENDATION, AND ORDER

          CHERYL R. ZWART, Magistrate Judge.

         This matter is before the court on Defendants' motion to dismiss, (Filing No. 9), under Rules 12(b)(1) and 12(b)(6). For the reasons set forth below the motion should be granted.

         BACKGROUND

         Plaintiff, Jimmy Barfield, alleges he[1] is a disabled[2] individual and "has limited mobility when walking or standing." (Filing No. 1, ¶6 at CM/ECF p. 1). Defendant Midtown Gas and Grocery is apparently a commercial business located at 1222 South 24th Street, Omaha, Nebraska 68102. The remaining defendants are the alleged owners and/or landlords of Midtown Gas and Grocery. (Filing No. 1, ¶3 at CM/ECF p. 2).

         Plaintiff alleges that on or about November 16, 2015 he visited Midtown Gas and Grocery "to utilize goods and/or services" and was prevented from doing so "because [the facility] failed to comply with federal ADA Access Guidelines For Buildings and Facilities" ("ADAAG"). (Filing No. 1, ¶7 at CM/ECF pp. 3-4). Plaintiff listed the following specific violations:

(a) Designated disabled parking spaces are insufficient and in violation of ADAAG section 4.6.
(b) Failure to provide an adequate access aisle in violation of ADAAG 4.6.3.
(c) Failure to provide disabled parking space signage at proper height in violation of ADAAG 4.6.4.
(d) Failure to provide an unobstructed view of disabled parking signage in violation of ADAAG 4.6.4.
(e) Failure to provide "VAN ACCESSIBLE" Parking-Space in violation of ADAAG ...

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