The Hon. Richard S. Arnold stepped down as Chief Judge of the United 1

States Court of Appeals for the Eighth Circuit at the close of business on April 17,

1998. He has been succeeded by the Hon. Pasco M. Bowman II.

 The Hon. Joseph E. Stevens, Jr., United States District Judge for the 2

Western District of Missouri, sitting by designation. 

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1698

___________

Richard Ray Layton; Billy R. Penny, * 

 *

 Appellants, *

 * Appeal from the United

States

v. * District Court for the 

 * Western District of

Arkansas

Ted Elder, as County Judge *

of Montgomery County, Arkansas, *

 *

 Appellee. *

___________

Submitted: November 20, 1997 

 Filed: May 6, 1998 

___________

Before RICHARD S. ARNOLD, Chief Judge, McMILLIAN, Circuit Judge, and 1

STEVENS, District Judge. 2

___________

STEVENS, District Judge.
 Appellants sue Ted Elder, as County Judge of Montgomery County, 3

Arkansas. The district court construed this as an action against the county pursuant

to Kentucky v. Graham, 473 U.S. 159 (1985). We find no error in the court’s ruling

on this issue.

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Richard Ray Layton and Billy R. Penny brought this action against Ted

Elder, as County Judge of Montgomery County, Arkansas, alleging that the

county discriminated against them in violation of Title II of the Americans

with Disabilities Act, 42 U.S.C. § 12131-12134 (“ADA”) and section 504 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 (“section

504"). Appellants sought declaratory and injunctive relief to remedy

3

alleged ADA and section 504 violations at the Montgomery County Courthouse.

Following a bench trial, the district court denied appellants’ request for

relief as well as their application for attorneys’ fees. Layton and Penny

appeal and we reverse.

I. BACKGROUND

Appellants are disabled veterans. Richard Ray Layton is a

quadriplegic and confined to a wheelchair. Billy R. Penny suffers from the

conditions of ankylosing spondylitis, psoriatic arthritis, and psoriasis;

due to his conditions, Penny frequently uses crutches and occasionally

uses a wheelchair. Appellants allege that the county discriminates against

them by offering programs and services which are inaccessible to the

disabled in violation of the ADA and section 504. In particular,

appellants complain that the programs and services offered in the county

courthouse are inaccessible.

The district court held a bench trial and thereafter made findings

of fact. We recount those findings necessary to our review here. The

court found: On occasion, non-authorized vehicles are parked in the

Montgomery County Courthouse handicapped parking spaces. At the time

appellants’ lawsuit was filed, the two flights
 The district court failed to specify in its opinion the basis of its conclusion 4

that the wheelchair ramp was too steep and the courthouse restrooms were not

adequate to accommodate a wheelchair.

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of steps leading up to the courthouse were narrow, the wheelchair ramp was

too steep, and the courthouse restrooms were not adequate to accommodate

a wheelchair. On August 14, 1995, appellant Layton wished to attend a

4

meeting of the Montgomery County Quorum Court conducted at the county

courthouse in order to request that the county pave the road in front of

his house. Judith Layton, appellant’s wife, had difficulty locating a

handicapped parking space prior to the meeting, and Layton was physically

unable to attend the meeting because it was held on the second floor of the

building, to which there is no access for the mobility impaired. In

December of 1995, Layton was required to attend court at the county

courthouse on a hunting violation citation. Because there is no wheelchair

access to the courtroom on the second floor of the building, the presiding

judge conducted court in the first floor hallway to accommodate appellant.

Appellant Penny was not denied access to the courthouse. Neither Layton

nor Penny requested accommodation or suggested an alternative site for any

Montgomery County services, activities, or programs for which they were

eligible.

After reviewing the evidence presented in this case, the district

court concluded that entry of a mandatory injunction was not appropriate.

It found that the circumstances surrounding Layton’s single exclusion from

the Quorum Court meeting were not sufficiently compelling to warrant

equitable relief. The court noted that there was no evidence that Layton

alerted the county that he intended to attend the Quorum Court meeting or

ever requested accommodation for his attendance. Furthermore, the court

found that there was no evidence that the accommodation provided to Layton

when he appeared in court on his hunting violation was inadequate. Lastly,

the court noted that the county had made dutiful progress to remedy the

asserted violations by: 1) adopting a written policy expressing its intent

to comply with the ADA; 2) forming
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the requisite oversight Board; 3) developing a grievance procedure; and 4)

initiating the removal and/or modification of barriers limiting access to

the county facilities and services provided therein. Therefore, the

district court concluded that under the totality of the circumstances a

mandatory injunction was not required. 

The district court also denied appellants’ motion for attorneys’ fees

on the grounds that they could not be considered the “prevailing parties”

because they had not obtained a consent decree, a settlement, or an

enforceable judgment against the county. 

II. DISCUSSION 

As a preliminary matter the court will address appellee’s contention

that this appeal is moot in light of the improvements made by Montgomery

County to upgrade the accessibility of its government services and

programs. In order to demonstrate that this appeal is moot by virtue of

its voluntary actions, the county must prove that it is “absolutely clear

that the allegedly wrongful behavior could not reasonably be expected to

recur.” See Comfort Lake Ass’n, Inc. v. Dresel Contracting, Inc., Nos. 96-

3654, 96-3919, 96-4220, 1998 WL 92213, at * 3 (8 Cir. Mar. 5, 1998)

th

(citing United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199,

203 (1968); United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)). 

One of appellants’ primary complaints in this lawsuit is that the

services, programs, and activities, including court proceedings, held on

the second floor of the county courthouse are not accessible to citizens

with mobility impairments. The steps taken by the county towards ADA

compliance, while commendable, have not addressed this problem. Therefore,

this appeal clearly cannot be considered moot.

Turning now to the merits of the appeal, we review the district

court’s decision to deny appellants’ request for mandatory injunctive

relief for an abuse of discretion. Smith v. Arkansas Dep’t of Correction,

103 F.3d 637, 644 (8 Cir. 1996). “An abuse th
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of discretion occurs if the district court rests its conclusion on clearly

erroneous factual findings or if its decision relies on erroneous legal

conclusions.” International Ass’n of Machinists & Aerospace Workers v. Soo

Line R.R., 850 F.2d 368, 374 (8 Cir. 1988) (en banc). Appellants contend th

that the district court abused its discretion by not ordering mandatory

injunctive relief after finding ADA and section 504 violations at the

county courthouse.

Title II of the ADA states in pertinent part: “[N]o 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 such entity. 42 U.S.C. § 12132 (1994). Similarly

section 504 provides: “No otherwise qualified individual with a disability

. . . shall, solely by reason of her or his disability, be excluded from

the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial

assistance.” 29 U.S.C. § 794(a) (1994). The rights, procedures, and

enforcement remedies under Title II are the same as under section 504.

Pottgen v. Missouri State High Sch. Activities Ass’n, 40 F.3d 926, 930 (8th

Cir. 1994). To establish a violation of the Acts, one or more of the

appellants must demonstrate: 1) he is a qualified individual with a

disability; 2) he was excluded from participation in or denied the benefits

of a public entity’s services, programs, or activities, or was otherwise

discriminated against by the entity; and 3) that such exclusion, denial of

benefits, or other discrimination, was by reason of his disability. See

Lightbourn v. County of El Paso, Texas, 118 F.3d 421, 428 (5 Cir. 1997); th

Tyler v. City of Manhattan, 857 F. Supp. 800, 817 (D. Kan. 1994).

The district court found that appellants are qualified individuals

with a disability as defined in 42 U.S.C. § 12131(2), that Montgomery

County is a public entity as defined in 42 U.S.C. § 12131(1), and that

Layton had been excluded from a session of the Montgomery County Quorum

Court because of his disability. Therefore, the court concluded that

plaintiffs had established a statutory violation. We find no error in the
 We note that the county does not argue that compliance with 28 C.F.R. § 5

35.150 would fundamentally alter the nature of a service, program, or activity of the

county or would result in undue financial and administrative burdens. 

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court’s ruling on this issue. However, the court went on to hold that

under the circumstances mandatory injunctive relief was not warranted and,

in our view, this is a clearly erroneous legal conclusion.

Once a party has demonstrated actual success on the merits, the court

must balance three factors to determine whether injunctive relief is

appropriate: (1) the threat of irreparable harm to the movant; (2) the harm

to be suffered by the nonmoving party if the injunction is granted; and (3)

the public interest at stake. See Fogie v. Thorn Americas, Inc., 95 F.3d

645, 654 (8 Cir. 1996) (citing Amoco Prod. Co. v. Village of Gambell, 480 th

U.S. 531, 546 n.12 (1987)).

Appellants have succeeded on the merits of their claim, and they will

suffer substantial irreparable harm if the programs, services, and

activities held in the Montgomery County Courthouse are not made accessible

as required under the statutes. Furthermore, public interest strongly

favors mandating accessibility. When these factors are balanced against

the harm to the county of making its programs, services, and activities

accessible the balance tips heavily in favor of granting appellants the

relief they request. Therefore, it was an abuse of discretion for the

5

court to deny appellants mandatory injunctive relief. 

In accordance with this opinion, this case is remanded to the

district court for entry of an injunction mandating that the county make

each county service, program, and activity, when viewed in its entirety,

readily accessible and usable by individuals with disabilities in

accordance with 28 C.F.R. § 35.150. The regulations give public entities

substantial latitude in determining how they will comply with the Acts.

We emphasize, however, that if the county intends to continue using the

county courthouse
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to provide services, programs, and activities, it must make the parking

accommodations and the building accessible to individuals with disabilities

in accordance with 28 C.F.R. § 35.151. 

Because appellants have succeeded on the merits of their

discrimination claim they are the prevailing parties and are entitled to

an award of attorneys’ fees. See Pedigo v. P.A.M. Transp., Inc., 98 F.3d

396, 397-98 (8 Cir. 1996). On remand the district court shall determine th

the amount of fees to which appellants are entitled and enter an order

awarding them the same. 

III. CONCLUSION

For the foregoing reasons, the decision of the district court is

reversed and the case remanded for further proceedings consistent with this

opinion.

A true copy.

ATTEST:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.