by Bill Knowles
TRINIDAD — Although 10th Circuit Court Magistrate Judge Nina Wang said “there is no dispute that Stephen Hamer was impaired in his ability to get around the City of Trinidad due to curbs and sidewalks not being wheelchair accessible,” she dismissed his lawsuit Friday Dec. 1.
However, Hamer’s attorney, Andrew Bizer, says due to the difficulty of the issues, an appeal of the decision is likely.
Hamer filed the lawsuit 13 months ago in U.S. District Court in Denver. In the suit it was claimed the inaccessibility of curbs and sidewalks violated federal laws that prohibit discrimination against the disabled.
The dismissal of the lawsuit was on the grounds that Hamer waited too long to sue. He filed the lawsuit on Oct. 12, 2016, outside the two-year statute of limitations. “Ultimately, the undisputed evidence reveals that Mr. Hamer’s (claims under the Americans with Disabilities Act and the Rehabilitation Act) are untimely,” Wang wrote.
She stated the clock for the statute of limitations began running no later than August 2014, when Hamer pointed out his concerns to Trinidad City Council. Because he filed his lawsuit more than two years after that, Wang entered judgment in favor of the city. This decision however, is contrary to two other U.S. Circuit Court decisions that ruled in favor of similar cases.
According to Bizer, the decisions by the two circuits in favor of Hamer is based on the continuing violations theory. “This theory says that basically if the violation continues the statute of limitations starts with each new violation. In other words each time Mr. Hamer goes out and encounters an impassable sidewalk or a broken curb cut Mr. Hamer is reinjured and the violation starts over again.”
The City of Trinidad argued that Mr. Hamer waited too long to file his complaint and thus after two-years the statute of limitations expired. Judge Wang agreed with the City of Trinidad.
But in the final ruling the judge declined to award either party declaring that each party pay its own costs and fees.
Bizer indicated during the phone call that due to the nature of the final footnote giving the case some weight, they would file an appeal.
The footnote on the last page of the ruling that shows how close the call was on this issue. “While costs should generally “be allowed to the prevailing party,” Fed. R. Civ. P. 54(d)(1), the district court may in its discretion decline to award costs where a “valid reason” exists for the decision. She noted that there is no abuse of discretion when the district court denies fees where the “issues are close and difficult,” or where the prevailing party is only partially successful.
Still pending is a DOJ complaint filed by Stephen Hamer filed in April 2014, against the city concerning nearly 300 violations of the Americans with Disabilities Act.