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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

RONALD WILSON,

NO. CIV. S-04-633 LKK/CMK

Plaintiff,

O R D E R

v.

 TO BE PUBLISHED

PIER 1 IMPORTS (US), INC;

and MELLON/PIER 1 PROPERTIES

LIMITED PARTNERSHIP I,

Defendants.

 /

This court recently issued an order in the above-captioned

case denying defendants’ motion to declare plaintiff and his

attorney vexatious litigants. Wilson v. Pier 1 Imports, 

__ F.Supp.2d __, 2006 WL 213823 (E.D. Cal. 2006). The parties have

also filed cross-motions for summary judgment. This order

addresses one aspect of those motions.

As the previous order noted, plaintiff is a person with a

disability who, on various occasions, has visited the store the

defendants own and operate in Fairfield, California. He asserts

that during his visits he has encountered various physical barriers

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1 Because the store predates the ADA, plaintiff claims the

defendants violated both the ADA and the Unruh Act by failing to

remove architectural barriers from an existing facility, when it

was readily achievable. 42 U.S.C. § 12182(b)(2)(A)(iv). Plaintiff

also claims that the store was required but failed to comply with

California’s disabled access laws existing at the time of

construction. See Title 24 of the California Building Code. 

2 Plaintiff’s failure to amend the complaint to include the

alleged additional barriers prior to the cross-motions for summary

judgment gives rise to yet another legal problem which must be

resolved before reaching the merits. That issue will be addressed

in a subsequent order.

2

to his enjoyment of the facility. By virtue thereof, he alleges

that the defendants violated Title III of the Americans with

Disabilities Act, 42 U.S.C. §§ 12181 et seq. and California’s Unruh

Civil Rights Act, Cal. Civ. Code §§ 51 et seq.

1

Attached as Exhibit A to plaintiff’s complaint is “a true and

accurate list, to the extent known by [plaintiff], (with photos)

of the barriers that denied him access to the store, or which he

seeks to remove on behalf of others.” Compl. at ¶ 19. That list

contains fifteen alleged violations. 

After the filing of the complaint, Joe Card, who plaintiff

tenders as an expert, inspected defendants’ facility. Card then

issued a report identifying various purported barriers, some of

which were not included in plaintiff’s original complaint.2

After completion of discovery, the parties brought the crossmotions now at bar. Resolution of those motions will require

detailed examination of the cognizable violations asserted by

plaintiff. That task, lacking general interest, will be

accomplished in a future unpublished opinion. This opinion will

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3

deal with the defendants’ assertion that plaintiff’s standing is

limited to alleged barriers that he either personally encountered,

or that he knew about and which deterred him as of the time his

complaint was filed.

I.

STANDING AND THE AMERICANS WITH DISABILITIES ACT

As with the vexatious litigant motion, the defendants’ motion

relative to standing is premised on recent district court cases.

In this instance, they are two recent cases issued by judges of

this court which advocate a strict standard for standing in

physical barrier ADA cases. Martinez v. Longs Drug Stores, Inc.,

2005 WL 2072013 (E.D. Cal. 2005)(Levi, C.J) and White v. Divine

Investments, Inc., 2005 WL 2491543 (E.D. Cal. 2005)(Damrell, J).

There is one conflicting case, however, issued by Judge Shubb of

this court, which applies a more flexible test for standing. 

Pickern v. Best Western Timber Cove Lodge Marina Resort, 2002 WL

202442 (E.D. Cal. 2002)(Shubb, J.). 

I have previously explained that “[w]hile the opinion of

another judge of this court is not binding on me, both

considerations of orderliness and my respect for the opinions of

my colleague[s] suggest great caution must be exercised before

departing from [their] opinion[s].” United States v. Downin, 884

F.Supp. 1474, 1477, n.4 (E.D. Cal. 1995) (citation excluded).

Those considerations are particularly weighty when two judges of

this court have come to the same conclusion. That concern is

diminished since a conflict already exists within the district.

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3 Neither the “fairly traceable” or redressable elements of

standing have been raised by the defendants, nor could they

reasonably have been raised.

4

In any event, for the reasons explained below, I cannot concur in

the view of Judges Levi and Damrell.

The Supreme Court has explained that to demonstrate a “case

or controversy” within the meaning of Article III of the

Constitution, and thus constitutional standing, a plaintiff must

show that:

(1) [he has] suffered an "injury in fact" that is (a)

concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical; (2) the injury is

fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely

speculative, that the injury will be redressed by a

favorable decision.

Friends of the Earth, Inc. v. Laidlaw Environmental Services, Inc.,

528 U.S. 167, 181 (2000).

The defendants’ motion raises the issue of whether the

plaintiff has suffered an injury in fact if he did not encounter

a barrier himself, or was not made aware of the barrier until his

expert paid a visit to the store.3

Judge Damrell, following Chief Judge Levi’s lead, held that

a plaintiff does not have standing under such circumstances. He

acknowledged that a plaintiff need not encounter every barrier he

raises in the case, but he held that he “must, at a minimum, know

of or have reason to know of, and be deterred by, the barrier at

the time the complaint is filed . . . .” White v. Divine

Investments, Inc., 2005 WL 2491543 (E.D. Cal. 2005) (Damrell, J.);

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Martinez v. Longs Drug Stores, Inc., 2005 WL 2022013, *4 (E.D. Cal.

2005)(Levi, C.J.).

As defendants suggest, this standard presents serious

difficulties for plaintiff. Mr. Wilson admits that he visited the

store regularly, and that the barriers he encountered did not deter

him from returning; moreover, plaintiff alleges that he plans to

visit again in the future. Focusing on the deterrence language in

White, the defendants claim that because plaintiff was not deterred

from entering the store and intends to return, he lacks standing

to sue. Moreover, as to those violations discovered by Card, but

not encountered by plaintiff, it seems clear that under the

White/Martinez standard, since plaintiff was not aware of the

barriers at the time he filed the complaint, he also would lack

standing under that standard. 

Because I believe the White/Martinez standard is unduly

restrictive, I cannot adhere to it. Nothing in the Act suggests

that the ADA was intended to protect the disabled only from

discriminatory conditions that are so intolerable so as to halt

visiting the facility altogether. Rather, the statute itself, the

regulations which implement it, and the case law indicate that the

Act was designed to eliminate a wide range of discriminatory

practices. The "general rule" set out by the ADA is that "no

individual shall be discriminated against on the basis of

disability in the full and equal enjoyment of the goods, services,

facilities, privileges, advantages or accommodations of any place

of public accommodation. . ." 42 U.S.C. § 12182(a) (emphasis

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added). The statute’s findings section sets out that persons with

disabilities encounter “various forms of discrimination including

outright intentional exclusion, the discriminatory effects of

architectural, transportation, and communication barriers. . .” 42

U.S.C. § 12101(a)(5). Congress thus responded by stating that the

purpose of the Act was to create a “mandate for the elimination of

discrimination” not just the weakening or reduction of

discrimination which is what the case would be if plaintiffs were

only allowed to bring suit for barriers that absolutely denied

access. 42 U.S.C. § 12101(b)(1) (emphasis added). 

The ADA is a “remedial statute, which should be broadly

construed to effectuate its purpose of eliminating discrimination

against the disabled in our society.” Parr v. L&L Drive-In

Restaurant, 96 F.Supp.2d 1065, 1081 (D. Haw. 2000). As to the Card

discoveries, plaintiff contends that the ADA should cover all

discriminatory barriers, regardless of when they are discovered.

The ADA condemns discrimination against the disabled and defines

such discrimination, inter alia, as a failure to remove “barriers

where such removal is readily achievable.” 42 U.S.C.

§ 12182(b)(2)(A)(iv).

Clearly, as plaintiff argues, requiring piecemeal compliance

runs the risk that an injunction will only remedy some barriers,

leaving others in place for the disabled to encounter. The

statute, however, provides for injunctive relief to any person who

has “reasonable grounds for believing that such person is about to

be subject to discrimination.” 42 U.S.C. § 12188(a)(1). The

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language makes plain that future threats of encountering physical

barriers suffices to bring suit under the statute. Indeed, it is

difficult to believe that a statute with the broad remedial purpose

of ending discrimination against the disabled, should be construed

as permitting discrimination to persist after its existence has

been discovered. The only question then is whether Congress

exceeded its power in providing for such relief.

It is established that standing doctrine should be liberally

applied in civil rights cases. As the Supreme Court taught in

Trafficante v. Metropolitan Life Insurance, 409 U.S. 205, in the

case of a civil rights act, where private enforcement suits “are

the primary method of obtaining compliance with the Act” and where

Congress defined discrimination broadly, Article III standing

should likewise be construed as broadly as possible. Id. at 366-

67; see also Walker v. Carnival Cruise Lines, 107 F.Supp.2d 1135,

1143 (N.D. Cal. 2000).

It seems clear that the injury-in-fact requirement of Article

III standing is easily satisfied by liberally construing it in this

context. All that is required is to recognize that the injury

suffered relative to later-discovered barriers is the threat of

being subjected to discrimination suffered by virtue of the

existence of barriers, whether or not initially encountered. 

Indeed, plaintiff, relying on Pickern v. Holiday Quality

Foods, Inc., 293 F.3d 1133 (9th Cir. 2002), maintains that the

issue is settled in his favor in this circuit. In Pickern, 

plaintiff, a paraplegic, was denied access to a grocery store

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4 The court explained that if "a plaintiff who is disabled within

the meaning of the ADA has actual knowledge of illegal barriers at

a public accommodation to which he or she desires access," that

plaintiff need not engage in the “futile gesture” of attempting to

gain access in order to show actual injury during the limitations

period. When such a plaintiff seeks injunctive relief against an

ongoing violation, he or she is not barred from seeking relief

either by the statute of limitations or by lack of standing. Id.

at 1135.

8

because of barriers that he claimed existed. Id. at 1136. The

court concluded that by alleging that he was currently deterred

from attempting to gain access to the store, plaintiff had “stated

sufficient facts to show a concrete, particularized injury.” Id.

1138.4 The court went on to explain, agreeing with an Eighth

Circuit opinion, that a plaintiff was not limited to challenging

ADA violations which he personally encountered, since such a narrow

construction of the Act would be both inefficient and impractical.

Id. (citing Steger v. Franco, Inc., 228 F.3d 889 (8th Cir. 2000)).

The Circuit explained that a plaintiff “need not necessarily have

personally encountered all the barriers that bar his access to the

Paradise store in order to seek an injunction to remove those

barriers.” Pickern, 293 F.3d at 1138. Moreover, the court

explained “a plaintiff who is threatened with harm in the future

because of existing or imminently threatened non-compliance with

the ADA suffers ‘imminent injury.’” Id. 

Judges Levi and Damrell concluded that Pickern is

distinguishable because it was primarily addressing a statute of

limitations issue, and they believe that it did not fully adopt the

Steger analysis. See White v. Divine Investments, Inc., 2005 WL

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5 The firm representing Wilson also represented the plaintiff in

Pickern and Wilson has provided this court with excerpts of the

brief that was before the Ninth Circuit which demonstrates that the

plaintiff in Pickern actually had not encountered all the barriers

that he sought to remedy in his suit. Pl.'s Reply Br. in Supp. of

Mot. for Summ. J. at 4-5. Apparently, neither the original nor

first amended complaint purported to identify all the barriers in

that case, and the Ninth Circuit was told that the plaintiff was

aware of some of the barriers only as a result of his expert’s

findings. Id. In sum, the distinction drawn in White did not

actually exist.

9

2491543, *3 (finding in addition that Pickern was distinguishable

on the ground that the Pickern plaintiff “actually encountered all

of the barriers that he sought to remedy in his suit.”)5; Martinez

v. Longs Drug Stores, 2005 WL 2072013; see also Harris v. Costco

Wholesale Corp., 389 F.Supp.2d 1244, 1249 (S.D. Cal. 2005) (finding

that plaintiff’s “standing to bring an ADA action must rest on the

architectural barriers he contends he encountered during the visit

that pre-dates the filing of the Complaint.”).

I begin by noting that nothing in Pickern itself supports the

distinction my colleagues have made. The substantive portion of

the opinion is divided into two parts, the first commencing at 293

F.3d at 1136 is entitled “II Statute of Limitations,” the second

commencing at 1137 is entitled “III Standing”. With the greatest

of respect, the conclusion that the case dealt primarily with the

statute of limitations is not supported by the text of the opinion.

Moreover, the conclusion that the Circuit did not adopt the

Eighth Circuit’s opinion seems equally to simply depart from

Pickern's text. The court wrote that “we agree with Steger v.

Franco,” Pickern, 293 F.3d at 1138, and again, ”we agree with the

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Eighth Circuit that [plaintiff] need not necessarily have

personally encountered all barriers . . . in order to seek an

injunction to remove those barriers.” Id. 

Moreover, even if the White/Martinez courts’ distinction

existed, the opinion’s clear statements of principles cannot be

simply ignored. As I have previously observed, “as a subordinate

court my role is to the apply the law as pronounced by courts

hierarchically superior, and in attempting to do so my duty is to

consider those courts’ considered dicta.” Natural Resources

Defense Council v. Patterson, 791 F.Supp. 1425, 1435 n.18 (E.D.

Cal. 1992). The extended discussion in Pickern demonstrates that

the Circuit’s view is that plaintiffs are not required to actually

encounter a barrier in order to sue for its removal. Thus,

respectful consideration requires that, in the absence of

persuasive reasons, that conclusion should be given effect. 

Finally, I note yet another set of considerations counseling

against the White/Martinez conclusion, although not considered by

the Pickern court. The issue is whether plaintiff has standing to

sue. There can be no doubt that once plaintiff has encountered any

readily-removable barrier, he has standing to sue the offending

entity under the statute. Thus, given plaintiff’s allegations

concerning barriers he did encounter, there can be no doubt that

plaintiff has standing to sue. Accordingly, the real issue is not

whether plaintiff has standing, but the breadth of the right to

sue. It would thus seem to follow that the issue is not Article

III standing to sue, but, at most, the doctrine of prudential

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6 Exactly what those considerations are has not been explained by

my colleagues.

11

standing, which is a judicially-created doctrine of self-restraint.

Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 11-12 (2004);

United Food and Commercial Workers Union Local 751 v. Brown Group,

Inc., 517 U.S. 544, 551 (1996). Put somewhat differently, the

White/Martinez standard is not compelled by Article III, but is

based on other non-constitutional considerations.6 Once Article

III standing exists, nothing prevents Congress from not only

creating a private right of action, but also defining the scope of

the litigation. Put differently, Congress may override the

judicial scruples informing determinations of prudential standing.

Raines v. Byrd, 521 U.S. 811, 820 n. 3 (1997) (Congressional grant

of authority to bring suit "eliminates any prudential standing

limitations"); Federal Election Comm'n v. Akins, 524 U.S. 11, 20

(1998). As noted above, any reasonable construction of the ADA

must recognize that Congress intended to permit suits for

injunction to reach any existing barriers, and as long as Article

III standing exists, nothing prevents it from doing so.

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III.

CONCLUSION 

For all the above reasons, the court must reject the

contention of the defendants that the plaintiff is without standing

to bring the instant litigation. The court also concludes that

plaintiff may sue to require the removal of any architectural

barriers which affect him due to his disability which exist at a

facility at which he has encountered a barrier.

IT IS SO ORDERED.

DATED: February 7, 2006.

/s/Lawrence K. Karlton 

LAWRENCE K. KARLTON

SENIOR JUDGE

UNITED STATES DISTRICT COURT

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