* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument. This order and judgment is

not binding precedent, except under the doctrines of law of the case, res judicata,

and collateral estoppel. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED

United States Court of Appeals

Tenth Circuit

January 21, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

NANCY LEWIS,

Plaintiff-Appellant,

v.

BURGER KING, Llano Street, Santa

Fe,

Defendant-Appellee.

No. 09-2191

(D.C. No. 6:09-CV-00703-DJS-RHS)

(D. N.M.)

ORDER AND JUDGMENT*

Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.

Nancy Lewis, proceeding pro se, appeals from an order dismissing her

claims against Burger King under Title III of the Americans with Disabilities Act

(“ADA”), which proscribes discrimination against the disabled in public

accommodations, 42 U.S.C. § 12182(a). Exercising jurisdiction pursuant to

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-2-

28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further

proceedings. 

Ms. Lewis claims to be “disabled by chronic sciatica which makes walking

difficult.” R. at 3. She therefore prefers to be accompanied by her dog, which,

she claims, “walks ahead of [her] on a taut leash” and “alert[s] [Ms. Lewis] to

obstacles in her path.” Id. In January 2009, Ms. Lewis brought her dog into the

defendant Burger King restaurant on Llano Street in Santa Fe, New Mexico. 

After a short time however, and allegedly due to complaints from another

customer, employees asked her to remove her dog. In July 2009, Ms. Lewis filed

this lawsuit against Burger King based on this incident, claiming that her eviction

from the restaurant violated the public accommodation provision of the ADA. 

This was not the first such encounter between Ms. Lewis and a Burger King

restaurant. In March 2009, she filed a nearly-identical pro se lawsuit stemming

from an incident at a Burger King restaurant in Espanola, New Mexico (the

“Espanola case”). In the Espanola case, as here, Ms. Lewis sought monetary

damages as well as injunctive relief under Title III of the ADA. In that case, in

addition to her own claims, Ms. Lewis attempted to bring claims on behalf of her

dog. The district court dismissed the Espanola case with prejudice under

28 U.S.C. § 1915(e)(2), concluding that Ms. Lewis had failed to state a claim on

her own behalf, and that her dog, an animal, lacked standing to sue. 

Appellate Case: 09-2191 Document: 01018352947 Date Filed: 01/21/2010 Page: 2 
1 With respect to Ms. Lewis’s claim for money damages, however, the

district court correctly reasoned that monetary relief is not available to private

litigants under Title III of the ADA. See, e.g., Powell v. Nat’l Bd. of Med.

Exam’rs, 364 F.3d 79, 86 (2nd Cir. 2004) (explaining that “[a] private individual

may only obtain injunctive relief for violations of a right granted under Title

III”). Because that portion of its decision was supported by proper grounds and

was not dependent on res judicata, we hereby affirm the district court’s dismissal

with prejudice of Ms. Lewis’s claim for money damages.

-3-

Ms. Lewis appealed that decision to this court, and in an Order and

Judgment dated September 4, 2009, we vacated the district court’s judgment and

remanded for further proceedings. More specifically, this court affirmed the

dismissal of the claims on behalf of Ms. Lewis’s dog, but concluded that the

district court should have afforded Ms. Lewis an opportunity to amend her

complaint as to her own claims. Although she had failed to describe her

disability or the precise assistance provided by her dog, we concluded that

dismissal under § 1915(e)(2) was unwarranted because these deficiencies in

Ms. Lewis’s complaint were fixable. We therefore concluded it would not have

been futile to grant Ms. Lewis an amendment and that the district court erred in

dismissing her claims with prejudice. Accordingly, we vacated its dismissal and

instructed the district court to enter an order of dismissal without prejudice. 

Unfortunately, our decision in the Espanola case was too late to guide the

district court in this action. On August 6, 2009, it dismissed Ms. Lewis’s claims

for injunctive relief based on res judicata, noting that the identical claims in the

Espanola case had been dismissed with prejudice.1

 This of course was premature. 

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Less than a month later, we vacated that very dismissal in an order that all but

invited Ms. Lewis to file an amended complaint. As such, the Espanola case did

not end “with a judgment on the merits,” thereby precluding application of

res judicata. See In re Mersmann, 505 F.3d 1033, 1049 (10th Cir. 2007).

We therefore AFFIRM the dismissal of Ms. Lewis’s claim for monetary

relief; REVERSE the dismissal of her claim for injunctive and declaratory relief;

and REMAND for further proceedings consistent with this decision.

Entered for the Court

John C. Porfilio

Circuit Judge

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