KIROLA v. THE CITY AND COUNTY OF SAN FRANCISCO

3. Likelihood of Recurrence

66. Even if Kirola had satisfied the Lujan test for constitutional standing, she has failed to meet the further requirement applicable in cases where prospective injunctive relief is being sought; that is, that injury is likely to recur. "Likelihood of recurrence is established when the plaintiff shows that 'the defendant had, at the time of the injury, a written policy, and that the injury ' stems from ' that policy.'" Taylor v. Westly, 488 F.3d 1197, 1199 (9th Cir. 2007) (emphasis added, citation omitted).

67. There must be "a very significant possibility" that future harm will ensue. Nelsen v. King Cnty., 895 F.2d 1248, 1250 (9th Cir. 1990). In the absence of an immediate threat, federal courts must exercise restraint in interfering with government operations. Midgett v. Tri-Cnty. Metro. Transp. Dist. of Or., 254 F.3d 846, 850 (9th Cir. 2001) ("This 'well-established rule' bars federal courts from interfering with non-federal government operations in the absence of facts showing an immediate threat of substantial injury." (quoting Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042-43 (9th Cir. 1999)).

68. Here, Kirola contends that her injuries are likely to recur because they arise from eleven City policies which allegedly violate the ADA. Dkt. 662, 13:15-11. Thus, to show a likelihood of recurrence, Kirola must demonstrate an injury that "stems from" each policy. See Taylor, 488 F.3d at 1199. Each policy is discussed below.

a) Curb Ramp and Sidewalk Transition Plan

70. The Curb Ramp and Sidewalk Transition Plan affirms the City's previously existing policy of achieving curb ramp saturation; that is, the practice of installing a curb ramp at every pedestrian crossing in the City. DTX G18. According to Kirola, the City's transition plan "does not comply with the three-year implementation period and the January 26, 1995 deadline established by Title II of the ADA (28 C.F.R. § 35.150(c)) for the completion of any barrier removal necessary for program access." Dkt. 662, 13:15-18.

71. Kirola has failed to demonstrate that she suffered any injury that stems from the Curb Ramp and Sidewalk Transition Plan. Program access does not require curb ramp saturation. See Cohen, 754 F.3d at 696 (holding that Title II regulations do "not require the City to build curb ramps at every corner during its transition to compliance with the ADA."). As such, the fact that Kirola encountered a missing curb ramp at one corner and bi-directional curb ramps at another is not attributable to any deficiency in the Curb Ramp and Sidewalk Transition Plan, which actually provides more access than is required by Title II. In addition, the evidence presented at trial shows that Kirola routinely and independently travels across the City, using the City's public right-of-way, public transportation systems, and paratransit service, which undermines her claim that she has been injured by the denial of program access resulting from the occasional missing curb ramp. RT 1380:12-22, 1392:17-23, 1393:12-23; see also Findings of Fact ¶ 142.

b) Historic Curb Ramp Design Standards

72. Next, Kirola complains that the City's historic curb ramp design standards in effect from 1994 to 2004 resulted in the design and installation of curb ramps that included a half-inch lip in violation of ADA regulations. Dkt. 662, 13:20-22. However, no evidence was presented at trial demonstrating that Kirola encountered a curb ramp with a half-inch lip. Accordingly, she cannot legitimately claim that she suffered an injury that stems from the City's historic curb ramp standards or any curb ramp lip that has not yet been removed under the City's current curb ramp design standards. DTX H04; RT 1981:9-1985:6, 1986:23-1991:24.

c) Sidewalk Inspection Repair Plan

73. Kirola next complains that the SIRP "only inspects and repairs access barriers on a 25 year cycle, and . . . fails to comply with the January 26, 1995 deadline for program access." Dkt. 662, 13:18-20. That argument ignores that SIRP operates in tandem with ASAP, a program which ensures that accessibility complaints regarding sidewalks are addressed and rectified, typically within ninety days. Given that there are 2,000 miles of sidewalks in the City, it is inevitable that Kirola will occasionally experience challenges resulting from cracked or uneven pavement. The fact that defects can and do arise—attributable, for example, to expanding tree roots or occasional ground movement—does not ipso facto demonstrate that there is a defect in any written policy that caused injury to Kirola.

d) Paving Guidelines

74. The City's Paving Guidelines permit the City to defer curb ramp installation for a period of up to twenty-four months in cases where there is a pre-planned project that would require demolition of the newly constructed curb ramp. DTX N23. While acknowledging that she has not been negatively impacted by this policy, Kirola nonetheless contends that she faces a "real threat of injury" given her daily use of sidewalks throughout the City. Id. at 19:1-8. However, no evidence was presented at trial showing that the City has actually deferred installation of a curb ramp under the Paving Guidelines. The mere possibility that the City will delay construction of a curb ramp and that Kirola may be injured as a result is simply "'too speculative to support standing.'" Ervine v. Desert View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 868 (9th Cir. 2014) (quoting Friends of the Earth, 528 U.S. at 190). As the Ninth Circuit has explained, a plaintiff "cannot manufacture standing through bald assertion, contradicted by the record." Id. (finding that the plaintiff had not shown a real or immediate threat of future injury in regard to the claims asserted). The Court thus finds that Kirola has not established that there is a substantial probability that she will be harmed in the future as a result of the City's Paving Guidelines.

e) UPhAS

76. Kirola complains that the City's facilities transition plan, i.e., UPhAS, fails to require the removal of barriers that deny program access until the particular facility is scheduled for renovation. Dkt. 662, 13:27-14:4. Yet, no evidence has been presented that Kirola has been deprived of meaningful access to any program, service or activity because of the lack of access improvements at an existing facility. Though Kirola complained of purported barriers at a few libraries and pools, there is no evidence that she was denied meaningful access to other facilities within San Francisco or the City's programs and services in their entirety. Moreover, every library Kirola uses regularly was completely renovated prior to trial, and the three pools about which she complained have since been renovated or are scheduled for renovation. The Court thus finds that Kirola's has not shown that she suffered any injury that stems from UPhAS.

f) The RecPark Website

77. Kirola challenges "the City's policy as stated on its [RecPark] website that an 'accessible' park need only provide an 'accessible entrance' and 'at least one recreational opportunity[.]'" Dkt. 662, 13:4-27. Kirola asserts that the RecPark website's definition of "accessible" constitutes a City policy "of general application" relating to program access and argues that the policy is discriminatory because it does not require the City to provide mobility disabled individuals with meaningful and equal access to recreation opportunities. Dkt. 672, 16:6-12.

78. The flaw in Kirola's claim is that it fundamentally mischaracterizes the nature of the information provided on the RecPark website. Despite Kirola's claim to the contrary, the website does not purport to articulate a general policy of what the City considers to qualify as program access. Rather, the information is posted on the website simply to provide the public with information about sites they may wish to visit, and the website invites further inquiry for more detailed information. PTX 3875 [075767].

79. Even if the website defined the meaning of "accessible" as a matter of general policy, Kirola has failed to establish that she suffered any injury as a result of the policy. Of the City's 220 parks, Kirola complained only that the accessible entrance at Alamo Square Park was steep—not that it was inaccessible. RT 1385:5-8. Perhaps more fundamentally, Kirola cannot legitimately allege that she suffered any harm stemming from a website which she never used.

g) New Construction and Alterations

80. Kirola contends that "the City's policies and procedures regarding new construction and alterations . . . do not require a close-out inspection for compliance with federal disability access design standards or specific sign-off from the relevant City official that a project is in full compliance with those standards as built." Dkt. 662, 9:3-10.

81. At trial, Kirola offered no testimony regarding any architectural barriers at any newly-constructed or renovated library, swimming pool or other RecPark facility. In the absence of such evidence, Kirola cannot show that she suffered an injury in fact or that such injury stems from any City policy governing new construction and alterations.

h) Maintenance Policies

82. Kirola complains that the City's maintenance policies and procedures "do not set specific and prompt deadlines for the identification and repair of items that are broken, non-operational, or in need of repair." Dkt. 662, 14:9-11.

83. Under 28 C.F.R. § 35.133, public entities "shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities[.]" 28 C.F.R. § 35.133(a). The section, however, "does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs." 28 C.F.R. § 35.133(b); see also U.S. Dep't of Justice Technical Assistance Manual, II-3.10000 Maintenance of Accessible Features ("Where a public entity must provide an accessible route, the route must remain accessible and not blocked by obstacles such as furniture, filing cabinets, or potted plants. An isolated instance of placement of an object on an accessible route, however, would not be a violation, if the object is promptly removed.").

84. At trial, Kirola failed to identify a single barrier that she encountered as a result of something being "broken, non-operational, or in need of repair," much less an ADA barrier that existed because of any maintenance policy. Dkt. 662, 14:9-11. The errant stools Kirola encountered on occasion at three libraries have not been shown to be broken, non-operational or in need of repair, nor did they render the particular library—or the library system in general—inaccessible. She also failed to identify any maintenance issue as to any RecPark facility.²¹ Accordingly, the Court finds that because Kirola has not shown that she suffered any injury stemming from the City's maintenance policies, she cannot show any injury resulting from those policies.

i) Grievance Procedures

85. Kirola alleges that the City's ADA grievance procedures violate Title Il's program access requirements on the ground that the City's "written complaint policies and forms make no requirement that disability access barriers be removed within any particular time period, but instead permit the City to take up to two years to remove barriers[.]" Dkt. 662, 14:4-6; Dkt. 672, 25:6-9.

86. Kirola lacks standing to challenge the City's grievance procedure.²² At trial, Kirola testified to having made a single request for the removal of an access barrier; namely, her July 2006 request that the City install curb ramps at the corner of Hayes and Fillmore. RT 1383:19-1384:8, 1391:18-1392:2. The requested curb ramps were installed in April 2008, less than two years after the requests were made. RT 1384:7-8. There also is no evidence in the trial record that Kirola was unable to traverse the intersection or that she was compelled to take a substantially longer alternative route. To the extent that Kirola is complaining about the length of time it took for the City to install the curb ramps, she has presented no evidence to substantiate any injury resulting from such delay or that such delay is attributable to an ineffective grievance procedure.

^22. As will be discussed below, even if Kirola had standing, there is no private right of action to challenge an ADA grievance procedure

j) Safety Hazards Policy

87. Kirola complains that the City has failed to adopt an overarching "written policy or procedure regarding the identification and removal of safety hazards to persons with mobility disabilities." Dkt. 662, 14:15-17.

88. At trial, Kirola failed to offer any testimony demonstrating that she encountered any "safety hazards" at any library or RecPark facility. Though Kirola complained of steep paths at Alamo Square Park, the probative value of such testimony is undermined by the lack of any objective data (such as actual measurements of those paths) to quantify her claim. Additionally, there is no evidence that those conditions denied her program access.

89. The Court is likewise unpersuaded by Kirola's testimony regarding her one-time experience in which her wheelchair was caught in an exposed tree well. The record presented at trial shows that, in fact, there was an unobstructed 48-inch-wide accessible path of travel around the tree well. RT 1383:3-12, 431:3-10; PTX 4140Y. The Court therefore finds that Kirola has failed to establish any actual and concrete injury in fact in regard to the City's policies related to removal of safety hazards. See Lujan, 504 U.S. at 560-61.

k) Self-Evaluation/Transition Plan

90. Kirola asserts that the City has not adopted or implemented a self-evaluation or transition plan in violation of California Government Code § 11135. Dkt. 662, 14:13-25.

91. Section 11135 provides, in pertinent part, that:

No person in the State of California shall, on the basis of . . . disability, be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted, operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.

Cal. Gov. Code § 11135(a). Regulations promulgated to implement Section 11135 insofar as discrimination based on physical or mental disabilities is concerned, state that a transition and self-evaluation plan "should be required" by the "responsible State agency." Cal. Code Regs., tit. 22, §§ 98251(a), 98258.

92. The City argues that Kirola lacks standing to challenge any alleged non-compliance with California Government Code § 11135 or its regulations based on her failure to demonstrate that she (1) was deprived program access to any state-funded program or activity or (2) encountered any access barriers to a state-funded program or activity because of the alleged absence of a self-evaluation or transition plan. Dkt. 666, 20:20-24. The Court agrees. At best, Kirola has presented only bare and conclusory allegations of injury resulting from the City's failure to develop and implement a self-evaluation or transition plan. Moreover, there is no evidence that each of the specific programs to which she was allegedly denied access is state-funded or otherwise receives financial assistance from the state. See Cal. Gov't Code § 11135. As such, Kirola has not shown that she suffered any injury that stems from the City's alleged failure to comply with Section 11135 or its regulations.

l) Conclusion

93. Kirola has failed to establish that she sustained any injury which stems from any written policy. A fortiori, she has not shown a likelihood of recurrence, which is necessary for standing where prospective, injunctive relief is sought. Taylor, 488 F.3d at 1199. Thus, separate and apart from the Lujan requirements for Article III standing, the Court finds that Kirola lacks standing to seek the relief she seeks in this action.