## 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.

-2- Richard Ray Layton and Billy R. Penny brought this action again st Ted Elder, as County Judge of Montgomery County, Arkansas, alleging that the county discriminated against them in violation of Title II of the American s with Disabilities Act , 42 U.S.C. § 12131-12134 (“ADA”) and section 504 of the Rehabi litation Act of 1973, as amended, 29 U.S.C. § 794 (“sectio n 504" ). Appellants sought declaratory and injunctive relief to remed y

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

. Following a bench trial, the district court deni ed appellants’ request for relief as well as their application for attorney s’ 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 th e conditions of ankylos ing spondylitis, psoriatic arthritis, and psoriasis; due to his conditions, Penny frequently uses crutches and occasionall y uses a wheelchair. Appellants allege that the county discriminates agains t them by offering programs and services which are inaccessible to th e 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 dist rict court held a bench trial and thereafter made finding s of fact. We recount those findings necessary to our review here. Th e court found: On occasion, non-authorized vehicles are parked in th e Montgomery County Courthouse handicapped parking spaces. At the tim e 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.
-3- of steps leading up to the courthouse were narro w, the wheelchair ramp was too steep, and the courthouse restrooms were not adequate to accommodate
a wheelc hair. On August 14, 1995, appellant Layton wished to attend a 4 meeting of the Montgomery County Quorum Court conducted at the count y 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 s pace prior to the meeting, and Layton was physically unable to attend the meeting because it was held on the second floor of th e buildi ng, to which there is no access for the mobility impaired. I n December of 1995, Layton was required to attend court at the count y courthouse on a hunting violation citation. Because there is no wheelchai r access to the courtroom on the second floor of t he 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 a n alternative site for any Montgomery County services, activities, or programs for which they were eligible.

After reviewing the evidence presented in this case, the distric t court concluded that entry of a mandatory injunction was not appropriate. It found that the circumstances surrounding Layt on’s single exclusion from the Qu orum Court meeting were not sufficiently compelling to warran t equitable relief. Th e court noted that there was no evidence that Layton alerted the county th at 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 accomm odation 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 th e asserted violations by: 1) adopting a written po licy expressing its intent to comply with the ADA; 2) forming

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the requisite oversight Board; 3) developing a g rievance procedure; and 4) initiating the remova l and/or modification of barriers limiting access to the co unty facilities and services provided therein. Therefore, th e dis trict 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 t hey could not be considered the “prevailing parties” because t hey had not obtained a consent decree, a settlement, or a n enforceable judgment against the county. II. DISCUSSION
As a preliminary matter the court wi ll 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 an d 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 o f appellants’ primary complaints in this lawsuit is that th e services, programs, and activities, including court proceedings, held on the second floor of the county courthouse are not accessible to citizens with mobil ity impairments. The steps taken by the county towards AD A 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 distric t court’s decision to deny appellants’ request for mandatory injunctiv e relief for an abuse of discretion. Smith v. Ark ansas 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 clearl y
err oneous factual findings or if its decision relies on erroneous lega l conclusions.” International Ass’n of Machinists & Aerospace Workers v. Soo Line R.R. , 850 F.2d 368, 374 (8 Cir. 1988) (en ban c). Appellants contend th tha t the district court abused its discretion by not ordering mandator y injunct ive relief after finding ADA and section 504 violations at th e county courthouse.

Tit le II of the ADA states in pertinent part: “[N]o qualifie d indi vidual with a disability shall, by reason of such disability, b e excluded from partici pation in or be denied the benefits of the services, progra ms, or activities of a public entity, or be subjected t o disc rimination by such entity. 42 U.S.C. § 12132 (1994). Similarl y section 504 provides: “No otherwise qualified individual with a disabilit y

. . . shall, solely by reason of her or his disability, be excluded from the parti cipation in, be denied the benefits of, or be subjected t o discrimination under any program or activity receiving Federal financial assistance .” 29 U.S.C. § 794(a) (1994). The rights, procedures, an d enfor cement 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 (8 th Cir

. 1994). To establish a violation of the Acts, one or more of th e appellants must demonstrate: 1) he is a qualified individual with a disability; 2) he was excluded from participation in or denied the benefit s 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).

Th e district court found that appellants are qualified individual s with a dis ability as defined in 42 U.S.C. § 12131(2), that Montgomer y Count y is a public entity as defined in 42 U.S.C. § 12131(1), and tha t Layton had been excluded from a session of the Montgomery County Quoru m Court b ecause of his disability. Therefore, the court concluded tha t 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.

-6- court’s ruling on this issue. However, the court went on to hold tha t under the circumstances mandatory injunctive rel ief 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 b alance three factors to determine whether injunctive relief i s appropriate: (1) the threat of irreparable harm to the movant; (2) the har m to be suffered by the nonmoving party if the injunction is granted; and (3 ) the public interest a t 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 the y will suffer substantial irreparable harm if the programs, services, an d activities held in the Montgomery County Courthouse are not made accessibl e
as req uired under the statutes. Furthermore, public interest strongl y favors mandating accessibility. When these factors are balanced against the harm to the county of making its programs, services, and activitie s
acc essible the balance tips heavily in favor of granting appellants th e relief t hey request. Therefore, it was an abuse of discretion for th e 5 court to deny appellants mandatory injunctive relief.

In accordance with this opinion, this case is remanded to th e district court for entry of an injunction mandating that the county make each county service, program, and activity, when viewed in its entirety,
rea dilyaccessible and usable by individuals with disabilities i n accordance with 28 C. F.R. § 35.150. The regulations give public entities sub stantial latitude in determining how they will comply with the Acts

. We emphasize, however, that if the county intends to continue using th e county courthouse

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to provide services, programs, and activities, it must make the parkin g accommodations and the building accessible to individuals with disabilitie s in accordance with 28 C.F.R. § 35.151.

Because appellants have succeeded on the merits of thei r 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 orde r awarding them the same.

III. CONCLUSION

Fo r the foregoing reasons, the decision of the district court i s reversed and the case remanded for further proceedings consistent with thi s opinion.

A true copy.

ATTEST:

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