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Nevada ADA Lawsuit
Nevada ADA Lawsuit
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AO 239 (Rev. ) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)
Kevin L. Zimmerman )
Plaintiff/Petitioner )
v. ) Civil Action No. 17-cv-00304
GJS Group, Inc. )
Defendant/Respondent )
I am a plaintiff or petitioner in this case and declare Complete all questions in this application and then sign it.
that I am unable to pay the costs of these proceedings Do not leave any blanks: if the answer to a question is 0,
and that I am entitled to the relief requested. I declare none, or not applicable (N/A), write that response. If
under penalty of perjury that the information below is you need more space to answer a question or to explain your
true and understand that a false statement may result in answer, attach a separate sheet of paper identified with your
a dismissal of my claims. name, your case's docket number, and the question number.
1. For both you and your spouse estimate the average amount of money received from each of the following
sources during the past 12 months. Adjust any amount that was received weekly, biweekly, quarterly,
semiannually, or annually to show the monthly rate. Use gross amounts, that is, amounts before any deductions
for taxes or otherwise.
Income source Average monthly income Income amount expected
amount during the past 12 next month
months
You Spouse You Spouse
Employment
$ 0.00 $ 0.00 $ 0.00 $ 0.00
Self-employment
$ 0.00 $ 0.00 $ 0.00 $ 0.00
Income from real property (such as rental income)
$ 0.00 $ 0.00 $ 0.00 $ 0.00
Interest and dividends
$ 0.00 $ 0.00 $ 0.00 $ 0.00
Gifts
$ 0.00 $ 0.00 $ 0.00 $ 0.00
Alimony
$ 0.00 $ 0.00 $ 0.00 $ 0.00
Child support
$ 0.00 $ 0.00 $ 0.00 $ 0.00
Case 2:17-cv-00304 Document 1 Filed 02/01/17 Page 2 of 5
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AO 239 (Rev. ) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)
2. List your employment history for the past two years, most recent employer first. (Gross monthly pay is before taxes or
other deductions.)
3. List your spouse's employment history for the past two years, most recent employer first. (Gross monthly pay is before
taxes or other deductions.)
Below, state any money you or your spouse have in bank accounts or in any other financial institution.
Financial institution Type of account Amount you have Amount your
spouse has
NA NA $ 0.00 $ 0.00
$ $
$ $
If you are a prisoner, you must attach a statement certified by the appropriate institutional officer showing all receipts,
expenditures, and balances during the last six months in your institutional accounts. If you have multiple accounts,
perhaps because you have been in multiple institutions, attach one certified statement of each account.
Case 2:17-cv-00304 Document 1 Filed 02/01/17 Page 3 of 5
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AO 239 (Rev. ) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)
5. List the assets, and their values, which you own or your spouse owns. Do not list clothing and ordinary
household furnishings.
Assets owned by you or your spouse
Model:
Registration #:
Model:
Registration #:
6. State every person, business, or organization owing you or your spouse money, and the amount owed.
Person owing you or your spouse Amount owed to you Amount owed to your spouse
money
NA $ 0.00 $ 0.00
$ $
$ $
7. State the persons who rely on you or your spouse for support.
Name (or, if under 18, initials only) Relationship Age
NA NA
Case 2:17-cv-00304 Document 1 Filed 02/01/17 Page 4 of 5
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AO 239 (Rev. ) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)
8. Estimate the average monthly expenses of you and your family. Show separately the amounts paid by your
spouse. Adjust any payments that are made weekly, biweekly, quarterly, semiannually, or annually to show the
monthly rate.
You Your spouse
Utilities (electricity, heating fuel, water, sewer, and telephone) $ 30.00 $ 0.00
Installment payments
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AO 239 (Rev. ) Application to Proceed in District Court Without Prepaying Fees or Costs (Long Form)
$ 1,726.00 $ 0.00
Total monthly expenses:
9. Do you expect any major changes to your monthly income or expenses or in your assets or liabilities during the
next 12 months?
u Yes No
u If yes, describe on an attached sheet.
10. Have you spent or will you be spending any money for expenses or attorney fees in conjunction with this
lawsuit? u Yes u No
11. Provide any other information that will help explain why you cannot pay the costs of these proceedings.
11 Plaintiff,
COMPLAINT
12 vs.
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GJS Group, Inc.,
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15 Defendant.
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18 injunctive relief, attorneys fees and costs pursuant to the Americans with Disabilities
19 Act, 42 U.S.C. 12101 et. seq., and its implementing regulations (the, ADA).
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JURISDICTION AND VENUE
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1. Defendant, owns and/or operates a place of Public Accommodation (PPA) as
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that term is defined in 42 U.S.C. 12181(7) located at 8080 S LAS VEGAS
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 2 of 12
1 2. On the date of the visit to Defendants PPA, Plaintiff was, and is currently, a
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resident of the State of Nevada.
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3. Plaintiff travels throughout Nevada including, in particular, the communities in
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and surrounding Las Vegas, Nevada.
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4. This action arises from a violation ADA Title III regulations. This Court has
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8 U.S.C. 12188.
9 5. Venue in this judicial district is proper under 28 U.S.C. 1391(b) and (c) in that
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this is the judicial district in which a substantial part of the acts and omissions
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giving rise to the claims occurred.
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STANDING
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14 6. Plaintiff seeks both retrospective declaratory relief (that Defendant has violated
15 and continues to violate Title III of the ADA) and prospective injunctive relief all
22 8. Plaintiff personally visited Defendants PPA, but was denied full and equal
23 access and full and equal enjoyment of the facilities, services, goods and
24 amenities.
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 3 of 12
7 future provided that Defendant modify the PPA to accommodate individuals with
8 disabilities.
9 11. Completely independent of Plaintiffs personal desire to access the PPA, Plaintiff
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also acted as a tester for purposes of discovering, encountering, and engaging
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discrimination against persons with disabilities at Defendants PPA. 1 Plaintiff
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intends to visit the PPA regularly to verify compliance or non-compliance with
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14 the ADA. In the instances referenced herein, Plaintiff, in his individual capacity
15 and as a tester, visited the PPA, encountered barriers to access at the PPA,
16 engaged and tested those barriers, suffered legal harm and legal injury and will
17 continue to suffer harm and injury as a result of the illegal barriers to access and
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the violations of Defendant set forth herein. Without judicial intervention,
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Plaintiff will suffer a real and imminent threat of encountering Defendants
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accessibility barriers in the near future.
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Tandy v. City of Wichita, 380 F.3d 1277, 1285-86 (10th Cir. 2004)
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 4 of 12
1 12. With respect to prospective relief, Plaintiff alleges that Plaintiff is suffering a
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continuing injury or is under a real and immediate threat of being injured in the
3
future all as more fully developed below.
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13. Plaintiff avers that Plaintiff intends to visit Defendants PPA several times per
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year in the near future, but is deterred from doing so while Defendants PPA
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8 14. Plaintiff further avers that Plaintiff is deterred from visiting the Defendants
9 PPA. 3
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15. Plaintiff further avers that any voluntary cessation of Defendants noncompliance
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with the ADA may be readily reversed by the reinstatement of the barriers to
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individuals with disabilities. Therefore, injunctive relief should be issued
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23 Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014)
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Chapman v. Pier 1 Imports (U.S.) Inc., 631 F. 3d 939, 946 (9th Cir. 2011).
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24 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145
L.Ed.2d 610 (2000): It is well settled that a defendant's voluntary cessation of a challenged
25 practice does not deprive a federal court of its power to determine the legality of the practice. If
it did, the courts would be compelled to leave the defendant free to return to his old ways.
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 5 of 12
14 19. On July 26, 1991, the Department of Justice (DOJ) issued rules implementing
15 Title III of the ADA, which are codified at 28 CFR Part 36.
16 20. Appendix A of the 1991 Title III regulations (republished as appendices B and D
17 to 36 C.F.R. part 1191, and 28 C.F.R. part 36) contains the ADA standards for
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Accessible Design (1991 Standards), which were based upon the Americans with
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Disabilities Act Accessibility Guidelines (1991 ADAAG) published by the
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Access Board on the same date.
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22 21. In 1994, the Access Board began the process of updating the 1991 ADAAG by
24 industries, the building code community, and State and local governmental
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entities, as well as individuals with disabilities.
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 6 of 12
1 22. In 1999, based largely on the report and recommendations of the advisory
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committee, the Access Board issued a notice of proposed rulemaking to update
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and revise its ADA and ABA Accessibility Guidelines.
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23. The Access Board issued final publication of revisions to the 1991 ADAAG on
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July 23, 2004 (2004 ADAAG).
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7 24. On September 30, 2004, the DOJ issued an advanced notice of proposed
14 DOJ published the Final Rule detailing the 2010 Standards on September 15,
15 2010. The 2010 Standards consist of the 2004 ADAAG and the requirements
22 accommodation by any person who owns, leases (or leases to), or operates a
24 28. The ADA also provides a private right of action for preventative relief, including
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an application for a permanent or temporary injunction or restraining order for
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 7 of 12
7 31. Plaintiff was prevented from the full and equal enjoyment of the goods, services,
14 pathways no less than 36 inches (915 mm) as required by 36 CFR Part 1191,
22 seek to amend the Complaint to allege additional ADA violations upon the
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See also 36 C.F.R. Pt. 1191, App. A and D.
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 8 of 12
8 33. Defendant has discriminated against Plaintiff and others in that it has failed to
9 make its PPA fully accessible to, and independently usable by, individuals who
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are disabled in violation of the ADA.
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34. Defendant has discriminated against Plaintiff in that it has failed to remove
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architectural barriers to make its PPA fully accessible to, and independently
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16 declaratory and injunctive relief, as well as costs, expenses and attorneys fees.
17 28 U.S.C. 2201, 2202, 28 C.F.R. 36.501.
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COUNT ONE: VIOLATION OF TITLE III OF ADA
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36. Plaintiff adopts and re-alleges the allegations stated in the preceding paragraphs
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as fully stated herein.
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23 full and equal enjoyment of the goods, services, facilities, privileges, advantages,
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 9 of 12
1 38. 42 U.S.C. 12188(a) provides for a private cause of action against such
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discrimination.
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39. The mobility impairment at issue constitutes a disability under 42 U.S.C.
4
12102.
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40. Plaintiff was prevented from the full and equal enjoyment of the goods, services,
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14 42. Defendant was required to make the PPA accessible to persons with disabilities.
15 As of the dates discussed herein, Defendant has failed to comply with the
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 10 of 12
1 RELIEF
2
44. With respect to prospective relief, Plaintiff alleges that Plaintiff is suffering a
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continuing injury or is under a real and immediate threat of being injured in the
4
future all as more fully developed below.
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45. Plaintiff avers that Plaintiff intends to visit Defendants PPA several times per
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7 year in the near future, but is deterred from doing so while Defendants PPA
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A. A declaration that Plaintiff has a federally protected right to the full and
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equal enjoyment of the goods, services, facilities, privileges, advantages,
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23 Colo. Cross-Disability Coal. v. Abercrombie & Fitch Co., 765 F.3d 1205 (10th Cir. 2014)
7
Chapman v. Pier 1 Imports (U.S.) Inc., 631 F. 3d 939, 946 (9th Cir. 2011).
8
24 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145
L.Ed.2d 610 (2000): It is well settled that a defendant's voluntary cessation of a challenged
25 practice does not deprive a federal court of its power to determine the legality of the practice. If
it did, the courts would be compelled to leave the defendant free to return to his old ways.
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 11 of 12
8 barriers so that Plaintiff shall have the full and equal enjoyment of the
9 goods, services, facilities, privileges, advantages, or accommodations of
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Defendants PPA; and
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D. An Order requiring Defendant to alter its PPA that is the subject of this
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Complaint to make the PPA accessible to and usable by individuals with
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Case 2:17-cv-00304 Document 1-1 Filed 02/01/17 Page 12 of 12
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RESPECTFULLY SUBMITTED this January 31, 2017.
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/s/ Whitney C. Wilcher, Esq.
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Whitney C. Wilcher, Esq.
7 THE WILCHER FIRM
8465 West Sahara Avenue Suite 111-236
8 Las Vegas, NV 89117
702-466-1959
9 Email: [email protected]
Attorney for Plaintiff
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JS 44 (Rev. 08/16) Case
CIVIL COVER SHEET
2:17-cv-00304 Document 1-2 Filed 02/01/17 Page 1 of 1
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law,
except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of
Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) DEFENDANTS
PLAINTIFFS
Kevin Zimmerman GJS Group, Inc.
(b) County of Residence of First Listed Plaintiff Clark
(EXCEPT IN U.S. PLAINTIFF CASES)
County of Residence of First Listed Defendant CLARK
(IN U.S. PLAINTIFF CASES ONLY)
(c) Attorneys (Firm Name, Address, and Telephone Number)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE
THE WILCHER FIRM TRACT OF LAND INVOLVED.
Whitney C. Wilcher, Esq.
8465 West Sahara Avenue Suite 111-236, Las Vegas, Attorneys (If Known)
NV 89117
702-466-1959
II. BASIS OF JURISDICTION (Place an X in One Box III. CITIZENSHIP OF PRINCIPLE PARTIES (Place an X in One Box for Plaintiff)
Only) (For Diversity Cases Only) and One Box for Defendant)
PTF DEF PTF DEF
1 U.S. Government 3 Federal Question Citizen of This State 1 1 Incorporated or Principle Place 4 4
Plaintiff (U.S. Government Not a Party) Of Business In This State
Citizen of Another State 2 2 Incorporated or Principle Place 5 5
2 U.S. Government 4 Diversity Of Business In Another State
Defendant (Indicate Citizenship of Parties in
Item III) Citizen or Subject of a 3 3 Foreign Nation 6 6
Foreign Country
VI. CAUSE OF ACTION Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity): 42 U.S.C. 12101, et. Seq.; 36 C.F.R
Part 1191
Violation of Title III of the ADA
Brief description of cause: Discrimination on the basis of disability.
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND DEC. INJ. FEES CHECK YES only if demanded in complaint:
COMPLAINT UNDER RULE 23, F.R.Cv.P. JURY DEMAND: Yes No
DATE January 31, 2017 SIGNATURE OF ATTORNEY OF RECORD /s/ Whitney C. Wilcher, Esq.
RECEIPT # __________________ AMOUNT ___________________________ APPLYING IFP _______________________ JUDGE _______________________ MAG. JUDGE ________________________________
Case 2:17-cv-00304 Document 1-3 Filed 02/01/17 Page 1 of 2
11 Plaintiff,
12 vs.
13
GJS Group, Inc.,
14
15 Defendant.
21 Within 21 days after service of this summons on you (not counting the day you
22 received it) or 60 days if you are the United States or a United States agency, or an
23 officer or employee of the United States described in Fed. R. Civ. P. 12 (a)(2) or (3)
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you must serve on the plaintiff an answer to the attached complaint or a motion under
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Case 2:17-cv-00304 Document 1-3 Filed 02/01/17 Page 2 of 2
1 Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served
2
on the plaintiff or plaintiffs attorney, whose name and address are:
3
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Whitney C. Wilcher, Esq.
5 THE WILCHER FIRM
Nevada State Bar No. 7212
6 8465 West Sahara Avenue Suite 111-236
Las Vegas, NV 89117
7
702-466-1959
8 Email: [email protected]
10 If you fail to respond, judgment by default will be entered against you for the relief
11 demanded in the complaint. You also must file your answer or motion with the court.
12
13 CLERK OF COURT
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15 Date:
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