Badalamenti v. La. Dep't of Wildlife & Fisheries

SECTION: “H” (1)

ORDER AND REASONS

JANE TRICHE MILAZZO UNITED STATES DISTRICT JUDGE

Before the Court are Defendants' Motion for Summary Judgment (Doc. 39); Plaintiff's Motion for Partial Summary Judgment (Doc. 35); and Plaintiff's Motion to Limit the Expert Testimony of Jay McAninch (Doc. 36). For the following reasons, Defendants' Motion for Summary Judgment is GRANTED, Plaintiff's Motion is DENIED, and Plaintiff's Motion in Limine is DENIED AS MOOT.

BACKGROUND

Plaintiff Louis Badalamenti alleges that Defendants, the Louisiana Department of Wildlife and Fisheries (LDWF) and Jack Montoucet, in his official capacity as Secretary of the LDWF, have excluded Plaintiff from participating in bow hunting in Louisiana because of his disability. Plaintiff

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alleges that he suffers from diabetic neuropathy and Dupuytren's disease in his hands, making it difficult and painful for him to “grasp objects, perform simple movements, and apply force and pressure.”^[1] Plaintiff alleges that his disability makes drawing a conventional bow and arrow or crossbow impossible, but he is able to operate an airbow, which can be operated with little grasping or squeezing strength. Plaintiff argues that the use of an airbow for archery hunting is a necessary and reasonable modification for his disability. Plaintiff made a request to Defendants to be allowed to use an airbow to hunt during the whitetail deer archery hunting season, but Defendants denied his request outright because it is illegal to hunt with an airbow under Louisiana law. Plaintiff now brings this action, alleging that Defendants have violated the Americans with Disabilities Act (ADA) and the Rehabilitation Act by refusing to provide him with a reasonable modification for his disability.

Defendants have moved for summary judgment, alleging that Plaintiff lacks standing to bring his claim and that he cannot show that his requested accommodation is reasonable. Plaintiff moves for partial summary judgment on his claim for injunctive relief and for exclusion of Defendants' expert, Jay McAninch. Because the Court finds that Plaintiff does not have standing to bring his claims, it need not address Plaintiff's motions.

LEGAL STANDARD

Summary judgment is appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if

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any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”^[2] A genuine issue of fact exists only “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”^[3]

In determining whether the movant is entitled to summary judgment, the Court views facts in the light most favorable to the non-movant and draws all reasonable inferences in his favor.^[4] “If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial.”^[5] Summary judgment is appropriate if the non-movant “fails to make a showing sufficient to establish the existence of an element essential to that party's case.”^[6] “In response to a properly supported motion for summary judgment, the non-movant must identify specific evidence in the record and articulate the manner in which that evidence supports that party's claim, and such evidence must be sufficient to sustain a finding in favor of the non-movant on all issues as to which the non-movant would bear the burden of proof at trial.”^[7] “We do not . . . in the absence of any proof, assume that the nonmoving party could or would prove the

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necessary facts.”^[8] Additionally, “[t]he mere argued existence of a factual dispute will not defeat an otherwise properly supported motion.”^[9]

LAW AND ANALYSIS

A. Standing

At the outset, Defendants argue that Plaintiff lacks standing to assert this claim. “Article III of the Constitution limits federal courts' jurisdiction to certain ‘Cases' and ‘Controversies.'”^[10] “One element of the case-or-controversy requirement is that plaintiffs must establish that they have standing to sue.”^[11]Standing requires a showing of three elements: (1) an injury in fact; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable decision.^[12] As to the injury requirement, the injury must be concrete and particularized and actual or imminent, not conjectural or hypothetical.^[13] “A plaintiff seeking injunctive relief, unlike a plaintiff seeking damages, must establish more than the existence of a ‘past wrong' to satisfy the injury-in-fact requirement. Instead, a plaintiff must ‘show that he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged conduct.'”^[14]

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Notably, “[t]he party invoking federal jurisdiction bears the burden of establishing [the] elements [of standing].”^[15] “[E]ach element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation.”^[16] In response to a summary judgment motion like this one, the plaintiff “must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.”^[17]

In their Motion, Defendants argue that Plaintiff does not have standing to bring this claim because he does not have a bowhunting license, an active hunting license, or a Physically Challenged Hunter's Permit (PCHP).^[18] In a supplemental reply, Defendants presented new evidence that a lien for unpaid state income taxes was filed against Plaintiff in 2008, and he is therefore statutorily prohibited from obtaining a hunting license under Louisiana law.^[19]Defendants argue therefore that even if injunctive relief is granted, Plaintiff cannot legally hunt in Louisiana. They argue that Plaintiff cannot “show that

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he has sustained or is immediately in danger of sustaining some direct injury as the result of the challenged conduct.”^[20]

Plaintiff argues that Defendants' denial of his request to use an airbow deterred him from obtaining the necessary licenses to hunt. In support of this argument, Plaintiff cites to cases discussing the “deterrent effect” test of standing. Under the “deterrent effect” test, plaintiffs need only show that they were deterred from accessing a public accommodation to show standing.^[21]Plaintiff cites to the Supreme Court's decision in Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., in which it held that the plaintiff environmental organization had established an injury in fact sufficient to create standing when its members testified that the defendant's pollution deterred them from participating in recreational activities on the allegedly polluted river.^[22] Likewise, in Smith v. Board of Commissioners of Louisiana Stadium & Exposition District, the court held that the plaintiff had standing where she had testified that the alleged disability discrimination at issue deterred her from attending future events at the defendants' event venue.^[23]Finally, in Beverly R. on behalf of E.R. v. Mt. Carmel Academy of New Orleans, Inc., the court held that the plaintiff had standing even though she did not submit an application to attend the defendant school where applying would have been futile in light of the defendant's position that it could not accommodate her wheelchair-bound child.^[24]

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In his deposition, Plaintiff testified that he is an avid hunter and has recently hunted in other states both with and without the airbow. He testified that he has not applied for a hunting license in Louisiana “because of the state's ruling.”^[25] Indeed, from Plaintiff's perspective, he would have no use for a bowhunting license if he was not permitted to use the airbow. “[A] disabled individual need not engage in futile gestures before seeking an injunction.”^[26]Further, an application for a hunting and bowhunting license can be completed online for a small fee, and therefore it is not likely to prevent a favorable decision from redressing Plaintiff's alleged injury.^[27] Accordingly, the Court does not find that Plaintiff's failure to apply for a hunting or bowhunting license prevents standing in this case.

That said, the Court finds that Plaintiff's inability to obtain a hunting or bowhunting license is a different matter. Louisiana Revised Statutes § 47:296.3 states that:

A. Hunting or fishing licenses shall be suspended, revoked or denied at such time as the Department of Revenue has an assessment or judgment against an individual that has become final and nonappealable, if the amount of the final assessment or final judgment is in excess of five hundred dollars of individual income tax, exclusive of penalty interest, costs, and other charges

B. The suspension, revocation, or denial shall be effective until such time as the individual has paid or made arrangements to pay the delinquent tax, interest, penalty and all costs and the

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Department of Revenue notifies the Department of Wildlife and Fisheries of the payment.^[28]

Defendants have shown that a tax lien was filed against Plaintiff, and he has been ineligible to obtain a hunting license since 2016. Plaintiff does not present any contrary evidence.

Plaintiff also has not shown that the denial of his request to use an airbow deterred him from resolving his tax lien. Indeed, he admits that prior to Defendants' supplemental reply, he was unaware that his tax lien precluded him...