Appeal from the United States District Court for the Eastern District of California, Lawrence K. Karlton, District Judge, Presiding, D.C. No. CV-04-01339-LKK.
The opinion of the court was delivered by: N.R. Smith, Circuit Judge
Argued and Submitted February 11, 2009 -- San Francisco, California.
Before: John T. Noonan, David R. Thompson and N. Randy Smith, Circuit Judges.
Byron Chapman ("Chapman") sued Pier 1 Imports (U.S.), Inc. ("Pier 1 Imports") under the Americans with Disabilities Act, ("ADA") 42 U.S.C. §§ 12101 et seq., the Unruh Civil Rights Act, Cal. Civ. Code §§ 51 et seq., and the Disabled Persons Act, Cal. Civ. Code §§ 54 et seq., after visiting Pier 1 Imports's Vacaville, California location (the "Store") and encountering five accessibility barriers to his use of the men's restroom facilities. Chapman does not have standing to pursue unencountered barriers under our prudential standing doctrine, because the barriers Chapman encountered did not deter him from visiting or shopping in the Store. Because we conclude that Chapman did not have standing to pursue claims for unencountered barriers, and because the district court granted Pier 1 Imports summary judgment on all the barriers Chapman claimed to have encountered, all other appealed issues are moot.
Chapman suffers from a spinal cord injury that requires him to use a motorized wheelchair to travel in public, and is therefore considered "physically disabled" by California and federal laws. While visiting the Store on either May 22 or June 1, 2004, Chapman encountered five alleged accessibility barriers to his use of the men's restroom (the "encountered alleged barriers").
Chapman did not experience any other alleged barriers during his Store visits. Further, despite encountering these barriers, Chapman testified that he was not deterred from visiting the Store or using the restroom, that he intended to return to the Store in the future, and that he may already have done so.
Chapman filed his unverified Complaint on July 13, 2004, alleging that the Store did not comply with ADA and Unruh Civil Rights Act accessibility requirements. Chapman attached a "Survey of Access Code Violations" to his Complaint (the "Accessibility Survey"). Chapman alleges that the Complaint and Accessibility Survey present a "true and accurate list (with photos) of the barriers that denied him access to the Store, or which he seeks to remove on behalf of others." The Accessibility Survey listed twenty-three alleged barriers: the encountered alleged barriers, plus eighteen additional alleged barriers Chapman did not encounter. Though the unverified Complaint claims that Chapman had personal knowledge of the eighteen additional alleged barriers, he testified otherwise at his deposition. There he said that he (1) did not prepare the Accessibility Survey; (2) did not know who prepared the Accessibility Survey; and (3) was generally unfamiliar with the Accessibility Survey's contents.
Approximately ten months after Chapman filed his Complaint, Chapman retained an expert, Joe Card, who inspected the Store and prepared a report (the "Card Report") on August 25, 2005. The Card Report identified thirty alleged accessibility violations, repeating three of the alleged violations found in the Complaint/Accessibility Survey and asserting twenty-seven new alleged violations (together with the Accessibility Survey alleged barriers, the "un-encountered alleged barriers").
Pier 1 Imports moved for summary judgment; Chapman opposed the motion and filed a cross-motion for summary judgment. Chapman attached the Card Report to his cross-motion. Chapman's brief, which he filed in the district court, did not (1) oppose Pier 1 Imports's motion for summary judgment, (2) provide evidence to support, or (3) move for summary judgment on four of the five alleged encountered barriers. In his brief, Chapman only discussed eleven of the alleged barriers, leaving the district court to conclude that he was only moving for summary judgment on those eleven barriers.
The district court granted summary judgment for Pier 1 Imports on all of the alleged encountered barriers; a decision Chapman does not appeal. Even though Chapman did not brief four of the five encountered barriers, the district court addressed those barriers.
First, the district court held that Chapman "fail[ed] to cite a relevant ADAAG standard" with respect to his claims that the seat cover dispenser was improperly located over the back grab bar and that the back grab bar was improperly located. Accordingly, the district court found that Chapman supplied no legal basis for these claims and granted summary judgment for Pier 1 Imports. Moreover, the court noted that, even if Chapman had cited the relevant ADAAG standards for these claims, Pier 1 Imports "put[s] forth facts that ...