394 F.Supp.2d 493 (2005) | Cited 0 times | D. Rhode Island | July 13, 2005


This case is before the Court on cross motions for summaryjudgment. The dispute arises from an alleged violation of TitleII of the Americans with Disabilities Act (hereinafter "ADA").Plaintiff is The Center for Behavioral Health — Rhode Island,Inc. (hereinafter "CBH"), a methadone clinic in the Town ofWesterly, Rhode Island. CBH claims that it was subjected todiscrimination, because of the service it provides and itsassociation with methadone users, when it was served with a Cease and Desist Order (hereinafter "the Order") by Anthony Giordano,the Westerly Zoning Official (hereinafter "Giordano"). CBH alsoclaims that the Westerly Zoning Board of Review (hereinafter"ZBR") fostered that discrimination when it upheld the Order.Defendants have responded by denying that they discriminatedagainst CBH, and also have asserted nine affirmativedefenses.1 CBH seeks a declaration from this Court thatthe actions of Defendants violate the ADA, and prays for an awardof compensatory and punitive damages, costs and reasonableattorneys' fees.

For the reasons set forth below, this Court grants Defendants'motion for summary judgment on the ground that Plaintiff lacksstanding to bring this suit. Thus, the Court also deniesPlaintiff's motion for summary judgment.

FACTS AND TRAVEL In June 1999, Plaintiff, in order to open a methadone clinic,entered into a lease agreement with Rory H. and JacquelineOefinger (hereinafter "Oefingers"), the owners of the propertylocated at 86 Beach Street, Westerly, Rhode Island (hereinafter"the Property"). The Property is located in a P-15 zone, which isa commercial zone intended for Professional/Office use. TheWesterly Zoning Ordinance states that a Professional/Office Zone"is intended to establish areas within which the town encouragesa concentration of professional office and related uses."Westerly, R.I., Zoning Ordinance § 3.4(B)(1) (1998). AProfessional Office is defined as "a building or portion of abuilding wherein services are performed involving predominantlyadministrative, professional or clerical operations." Id. at §2.1. Additionally, the standard use tables indicate that "Generaland Professional Offices (including Medical, Legal, Accounting,engineering, architectural, insurance & real estate)" arepermitted by right in a P-15 zone. Id. at § 4.2(G)(1.3).Abutters to the Property that were allowed to do business in thatzone without a special use permit include a dentist,acupuncturist, radiologists, as well as oral and maxiofacialsurgeons.

On November 4, 1999, subsequent to receiving a license from theRhode Island Department of Mental Health, Retardation andHospitals (hereinafter "MHRH") to operate a narcotic treatmentfacility, CBH opened a methadone clinic on the Property. Section 1.27 of the MHRH Rules and Regulations for the Licensing ofSubstance Abuse Facilities defines a narcotic treatment facilityas "an organization that administers or dispenses a narcotic drugto a narcotic addict for maintenance or detoxification treatment,provides, when appropriate or necessary, a comprehensive range ofmedical and rehabilitative services."

On Friday, November 12, 1999, Giordano issued the Orderaddressed to the Oefingers. CBH also received a copy of theOrder. The Order stated that a substance abuse facility was notallowed by right in a P-15 zone, but could be allowed uponapplication for a special use permit. The Order mandated thecessation of the clinic's operations until an application for aspecial use permit was submitted to and approved by the WesterlyZoning Board.

In response to the Order, CBH filed an action in Rhode IslandSuperior Court for injunctive and declaratory relief on Monday,November 15, 1999. CBH did not assert a claim under the ADA orseek damages. CBH was represented by Attorney Elizabeth Noonan,of Adler, Pollock & Sheehan, P.C. That same day, CBH was granteda temporary restraining order allowing it to continue operationof the clinic. The temporary restraining order, by its terms, wasto remain effective until December 10, 1999. On that date, theOefingers appealed the issuance of the Order to the ZBR,retaining Attorney Noonan for the appeal. Pursuant to theWesterly Zoning Ordinance, the Order was stayed pending the outcome of the appeal. The Oefingers' appeal was based primarilyon the claim that a methadone treatment center is a professional,medical office and therefore permitted by right in a P-15 zone.

Hearings were held by the ZBR on January 5, 2000 and on March1, 2000. During the hearings, Giordano acknowledged that CBHprovided some medical services on its premises. However, Giordanoalso indicated that he believed those medical services wereincidental to what he viewed as being CBH's primary function, thedispensation of methadone. This, he stated, likened CBH to apharmacy, which is not a permitted use in a P-15 zone. Giordanoargued that the general public could not walk into CBH and obtaingeneral medical services as they could at a general medicaloffice.

During the hearings, Giordano also acknowledged that there wasno definition of "medical office" in the Westerly ZoningOrdinance or the state enabling legislation. Additionally,Giordano also noted that prior to making his determination thatCBH was not a medical office, he never contacted or visited CBHin order to determine the nature of the services that wereprovided. In fact, Giordano acknowledged that he had noexperience dealing with methadone clinics, and that during histhirteen years as a zoning official in Westerly, he never hadoccasion to review zoning for methadone clinics. Giordano furtherstated that in his view, "a medical office provides a variety ofmedical services to a variety of patients." When pressed, however, Giordano also acknowledged that there were dentists,podiatrists, and obstetricians/gynecologists in the P-15 zone andthat each of these "medical offices" provided specific types ofservices to only a portion of the population.

On March 1, 2000, the ZBR voted four-to-one to uphold theOrder. Of the four members who voted to uphold the Order, twoindicated that they believed that the primary purpose of CBH wasto dispense methadone, which made it analogous to a pharmacy,rather than a medical office. The decision took effect on April6, 2000.

In a separate action that same day, the Oefingers appealed theZBR'S decision to Rhode Island Superior Court in WashingtonCounty. The Oefingers argued that due to the nature of theservices provided by CBH, it was indeed a medical office which ispermitted by right in a P-15 zone. Additionally, the Oefingersargued that the ZBR's decision violated the ADA. Without delay,the Oefingers received a temporary restraining order, allowingCBH to remain open during the appeal process, and on November 15,2000 the Superior Court issued a decision reversing the ZBR'sdecision and vacating the Order. The Court held that CBH is aprofessional medical office, and as such it was permitted tooperate by right in a P-15 zone. The Court did not address theADA claim.

CBH now requests that this Court declare that Defendants' Orderand the subsequent ZBR decision result in a violation of the ADA and award monetary damages.


This case arises under Title II, Part A, of the Americans withDisabilities Act, 42 U.S.C. §§ 12131-12134 (2000). Therefore,this Court has original federal question jurisdiction over thematter pursuant to U.S. Const. art. III, § 2, cl. 1, which statesthat "[t]he judicial Power shall extend to all Cases . . .arising under this Constitution, the Laws of the United States,and Treaties made, or which shall be made, under theirAuthority," and 28 U.S.C. § 1331, which states that "[t]hedistrict courts shall have original jurisdiction of all civilactions arising under the Constitution, laws, or treaties of theUnited States."


A court is empowered to grant a motion for summary judgment "ifthe pleadings, depositions, answers to interrogatories, andadmissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and thatthe moving party is entitled to a judgment as a matter of law."Fed.R.Civ.P. 56(c). A fact is material if it might affect theoutcome of the case. Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed.2d 202 (1986). Agenuine issue is one where "the evidence is such that areasonable jury could return a verdict for the nonmoving party."URI Cogeneration Partners, L.P. v. Bd. of Governors for Higher Educ., 915 F. Supp. 1267, 1279 (D.R.I. 1996) (quoting Andersonv. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,2510, 91 L. Ed.2d 202 (1986)).

For a moving party to show that there is no genuine issue ofmaterial fact, it "must point out `an absence of evidencesupporting the nonmoving party's case.'" Oliver v. DigitalEquip. Corp., 846 F.2d 103, 105 (1st Cir. 1988) (quotingCelotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548,2554, 91 L. Ed.2d 265 (1986)). A party opposing a motion forsummary judgment must do more than merely assert allegations inorder to raise a genuine issue of material fact; "it must setforth specific facts demonstrating that there is a genuine issuefor trial." Id.

When there are cross-motions for summary judgment, as is thesituation in the present case, "the district court must resolveall genuine factual disputes in favor of the party opposing eachsuch motion and draw all reasonable inferences derived from thefacts in that party's favor." Doyle v. Huntress, Inc.,301 F. Supp. 2d 135, 141 (D.R.I. 2004) (quoting Atl. Fish SpottersAss'n v. Evans, 321 F.3d 220, 223 (1st Cir. 2003)).

At the summary judgment stage, "there is `no room for themeasured weighing of conflicting evidence such as the trialprocess entails, no room for the judge to superimpose his ownideas of probability and likelihood.'" Id. (quoting Greenburgv. P.R. Mar. Shipping Auth., 835 F.2d 932, 936 (1st Cir. 1987))."Therefore, when hearing a motion for summary judgment, it is the responsibility of the trial judge to determine whether areasonable trier of fact could find for the nonmoving party basedon the admissible evidence, and to refrain from invading theprovince of the jury by weighing the evidence or makingcredibility determinations." Tanya Creations, Inc. v. Talbots,Inc., 356 F. Supp. 2d 97, 98 (D.R.I. 2005).


In its motion, Defendants argue that Plaintiff does not havestanding to bring this suit and supports this claim with severaldifferent arguments. For the reasons stated herein, this Courtconcludes that Defendants are correct and that indeed CBH doesnot have standing to bring this suit.

As the First Circuit has held in the past, "[s]tanding is a`threshold question in every federal case, determining the powerof the court to entertain the suit.' After all, `[i]f a partylacks standing to bring a matter before the court, the courtlacks jurisdiction to decide the merits of the underlying case."N.H. Right to Life PAC v. Gardner, 99 F.3d 8, 12 (1st Cir.1996) (second alteration in original) (citations omitted).

The United States Supreme Court has said that "[i]t isaxiomatic that `[t]he starting point in every case involvingconstruction of a statute is the language itself.'" LandrethTimber Co. v. Landreth, 471 U.S. 681, 685, 105 S. Ct. 2297,2301, 85 L. Ed. 2d 692 (1985) (quoting Blue Chip Stamps v. ManorDrug Stores, 421 U.S. 723, 756, 95 S. Ct. 1917, 1935,44 L. Ed. 2d 539 (1975) (Powell, J., concurring)) (second alteration in original).Therefore, to determine if the standing requirements under TitleII of the ADA are met, this Court must first examine the text ofthe statute. The relevant language of Title II of the ADA statesthat "no qualified individual with a disability shall, by reasonof such disability, be excluded from participation in or bedenied the benefits of the services, programs, or activities of apublic entity, or be subject to discrimination by any suchentity." 42 U.S.C. § 12132. Additionally, the enforcementprovision of Title II, 42 U.S.C. § 12133, states that "[t]heremedies, procedures, and rights set forth in section 794a ofTitle 29 shall be the remedies, procedures, and rights thissubchapter provides to any person alleging discrimination on thebasis of disability in violation of section 12132 of this title."Finally, the phrase "qualified individual with a disability" isdefined as "an individual with a disability who . . . meets theessential eligibility requirements for the receipt of services orthe participation in programs or activities provided by a publicentity." 42 U.S.C. § 12131(2).

Defendants interpret this language to mean that only naturalpersons have standing to bring suit under Title II of the ADA.However, some courts have held that organizations such asPlaintiff have standing to sue on their own behalf under Title IIof the ADA. See MX Group, Inc. v. City of Covington,293 F.3d 326, 335 (6th Cir. 2002); Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997), rev'd onother grounds, 252 F.3d 163 (2d Cir. 2001); see also START,Inc. v. Baltimore County, Maryland, 295 F. Supp. 2d 569, 576 (D.Md. 2003) (recognizing that a methadone clinic had standing topursue a claim under Title II of the ADA if it suffereddiscrimination due to its plans to treat individuals withdisabilities). But see Discovery House, Inc. v. Consol. City ofIndianapolis, 319 F.3d 277 (7th Cir. 2003) (refraining fromagreeing or disagreeing with cases that have held that entitiessuch as CBH can sue to enforce the rights of others under theADA, and instead holding that a drug treatment facility may notsue for lost profits under the ADA or the Rehabilitation Act).

In Innovative Health Sys., Inc., the plaintiff (hereinafter"IHS"), an outpatient drug and alcohol rehabilitation treatmentcenter, sought a building permit in an effort to relocate itsbuilding. 117 F.3d at 40. After more than a year of trying toobtain the permit, IHS's application for same was ultimatelydenied. Id. IHS, along with five of its clients, brought suitagainst the City of White Plains and others claiming that thedecision to revoke IHS's permit was discriminatory. Id. at 42.The City defended itself by arguing inter alia, that IHS lackedstanding to bring the suit under the ADA. Id.

Upon appeal, the Second Circuit held that IHS had standingunder Title II of the ADA. Id. at 47. The panel indicated that"Title II's enforcement provision extends relief to `any person alleging discrimination on the basis of disability.'" Id.(quoting 42 U.S.C. § 12133). The Court went on to say that "theuse of such broad language in the enforcement provisions of thestatutes `evinces a congressional intention to define standing tobring a private action under [section 504 of the RehabilitationAct] [and Title II] as broadly as is permitted by Article III ofthe Constitution.'" Id. (second alteration in original)(quoting Innovative Health Sys., Inc. v. City of White Plains,931 F. Supp. 222, 237 (S.D.N.Y. 1996), aff'd, 117 F.3d 37 (2dCir. 1997)). See also Transp. Workers Union of Am., Local 100,AFL-CIO v. N.Y. City Transit Auth., 342 F. Supp. 2d 160, 165(S.D.N.Y. 2004) (using the broad reading of the phrase "anyindividual" as applied by the Second Circuit in InnovativeHealth Sys., Inc.).

The defendants in Innovative Health Sys., Inc. also arguedthat Titles I and III of the ADA have provisions that expresslyprohibit associational discrimination while Title II does not. InTitle I, the word "discriminate" includes "excluding or otherwisedenying equal jobs or benefits to a qualified individual becauseof the known disability of an individual with whom the qualifiedindividual is known to have a relationship or association."42 U.S.C. 12112(b)(4) (emphasis added). Likewise, Title III statesthat "[i]t shall be discriminatory to exclude or otherwise denyequal goods, services, facilities, privileges, advantages,accommodation, or other opportunities to an individual or entitybecause of the known disability of an individual with whom the individual or entity is known to have a relationship orassociation." 42 U.S.C. 12182(b)(1)(E) (emphasis added). Thedefendants in Innovative Health Sys., Inc. argued that becausesimilar language is not found in Title II, Congress intended towithhold standing based on associational discrimination underTitle II. Innovative Health Sys., Inc., 117 F.3d at 47.

Upon an examination of the legislative history and regulationsimplementing Title II of the ADA, the Second Circuit determinedthat Title II only uses a general definition of discriminationrather then a list of specific examples as it did in othersections, and that Congress did not intend for discrimination bya public entity that is not spelled out in Title II to beexcused. Id. The Court noted that "[t]he House Committee onEducation and Labor indicated that Title II's prohibitions are tobe `identical to those set out in the applicable provisions oftitles I and III of this legislation.'" Id. (quoting H.R. Rep.No. 101-485(II), at 84 (1990) reprinted in 1990 U.S.C.C.A.N.303, 367). The House Report that the Second Circuit quoted fromalso states that "the construction of `discrimination' set forthin section 102(b) and (c) and section 302(b) should beincorporated in the regulations implementing this title." H.R.Rep. No. 101-485(II), at 84 (1990) reprinted in 1990U.S.C.C.A.N. 303, 367. Sections 102(b) and 302(b) are theassociational discrimination provisions of Title I and Title III,respectively. The Second Circuit also asserted that "the House Report on the ADA states that the prohibitions of discriminationon the basis of association from Titles I and III should beincorporated in the regulations implementing Title II."Innovative Health Sys., Inc., 117 F.3d at 47. The House Reportreferred to by the Second Circuit, which was from the HouseCommittee on the Judiciary, specifically remarks that: Title II should be read to incorporate provisions of titles I and III. . . . Unlike the other titles of this Act, title II does not list all of the forms of discrimination that the title is intended to prohibit. Thus, the purpose of this section is to direct the Attorney General to issue regulations setting forth the forms of discrimination prohibited. The Committee intends that the regulations under title II incorporate interpretations of the term discrimination set forth in titles I and III of the ADA. . . .H.R. Rep. No. 101-485(III), at 51-52 (1990) reprinted in 1990U.S.C.C.A.N. 445, 474-75. See also S. Rep. No. 101-116, at 44(1989) (stating that the forms of discrimination prohibited bysection 202 of the ADA are comparable to those in the applicableprovisions of Titles I and III). "[T]he regulations implementingTitle II provide: `[a] public entity shall not exclude orotherwise deny equal services, programs, or activities to anindividual or entity because of the known disability of anindividual with whom the individual or entity is known to have arelationship or association.'" Innovative Health Sys., Inc.,117 F.3d at 47 (quoting 28 C.F.R. § 35.130(g) (2004)). The SecondCircuit stated that, despite the inconsistency between thelanguage of Title II of the ADA and the legislative history and federal regulations, "[i]n light of the specific congressionalmandate to include this paragraph in the regulations . . . andthe fact that this particular construction of discrimination isnot `manifestly contrary' to Title II's general discriminationprohibition, we give the regulation the weight to which it isdue." Innovative Health Sys., Inc., 117 F.3d at 48.

In MX Group, Inc. v. City of Covington, the plaintiff(hereinafter "MXG"), sought to open a new methadone clinic.293 F.3d at 328. After having one zoning permit for a potentiallocation revoked by the Covington Board of Adjustment(hereinafter "CBA"), MXG sought a second permit for anotherpotential location, but was informed that a methadone clinic wasnot permitted in any zone in the city. Id. at 330. MXG broughtsuit against the City of Covington, claiming, inter alia,violation of the ADA, Id. at 328. No named patients were joinedas plaintiffs, Id. at 335, and because of this defendantsargued that MXG did not have standing under Title II of the ADA,Id. at 331.

Upon appeal, the Sixth Circuit adopted the Second Circuit'sreasoning with regard to whether an entity such as a methadoneclinic can sue under Title II of the ADA. 293 F.3d at 335. TheSixth Circuit noted that the Department of Justice was grantedthe authority to formulate regulations to implement Title II ofthe ADA and that it followed Congressional intent by doing so.Id., at 334. The Sixth Circuit also indicated that "theappendix to [28 C.F.R. § 35.130] explain[s] that `the individuals coveredunder this paragraph are any individuals who are discriminatedagainst because of their known association with an individualwith a disability.'" Id. (quoting 28 C.F.R. 35.130, app. A at544). Additionally, the Sixth Circuit noted that: The rule is therefore intended to encompass "entities that provide services to or are otherwise associated with" individuals with disabilities. "The provision was intended to ensure that entities such as health care providers, employees of social service agencies, and others who provide professional services to persons with disabilities are not subjected to discrimination because of their professional association" with them.Id. at 335 (quoting 28 C.F.R. 35.130, app. A at 544) (citationsomitted).

The defendants in that case argued that because MXG failed toname patients among the plaintiffs, it still lacked standing tobring the suit because as the United States Supreme Court held,an individualized inquiry is necessary in order to determinewhether or not an individual is disabled. See Sutton v. UnitedAir Lines, Inc., 527 U.S. 471, 483, 119 S. Ct. 2139, 2147,144 L. Ed. 2d 450 (1999). Without a patient as a plaintiff,defendants argued that an individualized inquiry is not possible,and therefore MGX did not have standing.

However, the Sixth Circuit held that despite the fact thatthere were no named patients as plaintiffs, [T]o overturn the district court's disposition . . . on the basis that an individualized inquiry of a client is needed would defy reason as Plaintiff has presented evidence that it was altogether foreclosed from opening its clinic in the first place because of the substance abuse services it planned to offer to its potential clients and that Defendants discriminated against it on that basis.

MX Group, Inc., 293 F.3d at 336.

Given the logic of those decisions, this Court concludes thatthe interpretation of Title II of the ADA set forth by the Secondand Sixth Circuits proves out to be persuasive. However,Defendants, also citing Sutton, 527 U.S. 471, argue that CBH'sclients are not individuals with disabilities and that there mustbe an individualized inquiry into the status of its potentialclients to determine whether or not they are disabledindividuals. Defendants, relying on Discovery House, Inc.,319 F.3d 277, also claim that CBH does not have standing because itis seeking damages on its own behalf rather than injunctiverelief, and that an entity, like CBH, cannot seek benefits thatinure only to its benefit under Title II of the ADA. Accordingly,Defendants claim that CBH still lacks standing to bring thissuit.

However, pursuant to Innovative Health Sys., Inc.,117 F.3d at 47, before this Court can address these arguments, it mustdetermine whether or not CBH has met the basic standingrequirements of Article III of the United States Constitution.

It has been held that "[t]he presence of a disagreement, however sharp and acrimonious it may be, is insufficient byitself to meet [Article] III's requirements." N.H. Right to LifePAC V. Gardner, 99 F.3d 8, 13 (1st Cir. 1996) (quoting Diamondv. Charles, 476 U.S. 54, 62, 106 S. Ct. 1697, 1703,90 L. Ed. 2d 48 (1986)). Article III requires that the party invoking afederal court's jurisdiction "establish that (1) he or shepersonally has suffered some actual or threatened injury as aresult of the challenged conduct; (2) the injury can fairly betraced to that conduct; and (3) the injury likely will beredressed by a favorable decision from the court." United Statesv. Moneta Capital Corp., Nos. 04-1950, 04-1951, 2005 U.S. App.LEXIS 12902, at *7-8 (1st Cir. June 29, 2005) (emphasis added)(quoting N.H. Right to Life PAC, 99 F.3d at 13). See alsoValley Forge Christian Coll. v. Ams. United for Separation ofChurch & State, 454 U.S. 464, 472, 102 S. Ct. 752, 758,70 L.Ed. 2d 700 (1982); Lujan v. Defenders of Wildlife,504 U.S. 555, 560, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992); Tandyv. City of Wichita, 380 F.3d 1277, 1283 (10th Cir. 2004).Furthermore, "[s]ince they are not mere pleading requirements butrather an indispensable part of the plaintiff's case, eachelement must be supported in the same way as any other matter onwhich the plaintiff bears the burden of proof." Lujan,504 U.S. at 561. Therefore, "[i]n response to a summary judgment motion . . .the plaintiff can no longer rest on such `mere allegations,'but must `set forth' by affidavit or other evidence `specificfacts' . . . which for purposes of the summary judgment motion will be taken to betrue." Id.

In the present case, this Court concludes that given theevidence here, CBH cannot satisfy the first prong of the test forstanding under Article III of the United States Constitution.Indeed, CBH has not established that it has suffered an actualinjury in the past or is threatened with injury in the future.The evidence indicates that CBH opened its facilities on November4, 1999 and received the Order on Friday, November 12, 1999. Onthe following Monday, November 15, 1999, CBH sought and receiveda temporary restraining order allowing it to continue operation.CBH has never alleged or submitted any evidence showing that itwas forced to close its clinic at any time as a result of theOrder. In fact, there is no allegation or supporting evidencethat indicates that CBH was ever prevented from running itsmethadone clinic. Additionally, there is no allegation orevidence indicating that CBH lost profits, clients, or wasotherwise adversely affected as a result of Defendants' actions.

The only allegation that CBH has made is a very generalstatement that "[a]s a direct and proximate cause of thediscriminatory actions of the Zoning Official and the Board, CBHhas suffered damages." (Pl.'s Compl. ¶ 20.) The only otherpossible evidence that could indicate that CBH suffered an injurycomes from Defendants, not CBH. In Exhibit A of the Memorandum ofDefendants in Reply to the Plaintiff's Objection to Defendants' Motion to Amend is a copy of the decision from the Oefingers'state court case which stated "[t]he Board upheld the Cease andDesist Order issued by the zoning official, denying Plaintiffs(appellants) and their lessee the right to operate a methadonetreatment facility on the subject property." Oefinger v. ZoningBd. of Review of Town of Westerly, No. C.A. 00-0159, 2000 WL1725485, at *1 (R.I. Super. Ct. Nov. 15, 2000). However, ashighlighted above, there has been no evidence submitted to thisCourt that supports that statement. Additionally, the case at baris not an appeal from the state court case — it is a separateaction with different parties. This Court is not bound by anyfactual determinations made by the state court. SeeLektro-Vend Corp. v. Vendo Corp., 500 F. Supp. 332, 348 (N.D.Ill. 1980), aff'd, 660 F.2d 255 (7th Cir. 1981); see alsoEllis v. Weasler Eng'g Inc., 258 F.3d 326, 334 (5th Cir. 2001).

Additional potential evidence to support CBH is also found inExhibit B of the Memorandum of Defendants in Reply to thePlaintiff's Objection to Defendants' Motion to Amend. Theverified complaint from CBH's action in state court seekinginjunctive relief, which is part of that exhibit, states that"[o]n or about November 4, 1999 CBH began receiving and treatingpatients and currently provides daily treatment to approximately20 patients." (Verified Compl. ¶ 7.) This suggests that at thetime of the state court action, CBH was open for business on theweekends, including between Friday, November 12, 1999 and Monday, November 15, 1999. While it seems like a reasonable assumptionthat CBH was forced to close its business as a result of theOrder, there is evidence in the same exhibit that suggestsotherwise.

As part of Exhibit B of the Memorandum of Defendants in Replyto the Plaintiff's Objection to Defendants' Motion to Amend,Defendants attached a copy of CBH's memorandum of law supportingits motion for a preliminary injunction in the earlier statecourt action. Several passages in that memorandum suggest thatCBH was not forced to close as a result of the Order. One suchpassage reads "[i]f this treatment is interrupted, CBH will beunable to treat its patients at the Westerly facility. . . .Those patients will be denied any type of treatment to thedetriment of their health and mental well being." (Pl.'s Mem.Supp. Prelim. Inj. at 7.) Another passage states that "[i]f CBHcannot continue its treatment of patients, it will constituteinference [sic] with the doctor-patient relationship which willcause irreparable harm." (Id. at 8-9.) The memorandum furtherstates: The injunction will protect the physician/patient relationship and the health of patients using CBH while the legal issues are resolved. Alternatively, failure to grant the injunction will significantly jeopardize the physician/patient relationship and put at risk the health of patients involved. The injunction will maintain the status quo and allow this Court to decide the matter without threat to any patent's health or mental well being. . . . Accordingly, the Town should have no rational objection to maintaining the status quo while the matter is resolved.(Id. at 9.) Finally, the memorandum concludes by asserting that"[t]he injunction will protect the integrity of thephysician/patient relationship in the State of Rhode Island andwill protect the health of the patients of CBH. Alternatively,denial of the injunction would create a significant risk to thehealth of these patients. . . ." (Id.) All of these passagesshare a common theme: the state court should grant a preliminaryinjunction to prevent infliction of harm on CBH and itspatients, not to redress inflicted harm. The fact that CBH arguedto maintain the status quo by the granting of a preliminaryinjunction indicates clearly that CBH was still operating at thattime.

While it is possible that one could reasonably assume that CBHwas forced to close its business as a result of the Order at somepoint, it is also an equally reasonable assumption that CBHcontinued to operate and was never forced to close. Therefore, itwould be pure speculation for this Court to make an assumptioneither way. However, one fact is strikingly clear: CBH has notalleged or offered evidence to this Court that it was forced toclose its business as a result of the Order at any time after itcommenced operation. As stated above, there is "no room for thejudge to superimpose his own ideas of probability and likelihood"when deciding a motion for summary judgment. Doyle, 301 F.Supp. 2d at 141 (quoting Greenburg v. P.R. Mar. Shipping Auth.,835 F.2d 932, 936 (1st Cir. 1987)). "The exercise of judicial power,which can so profoundly affect the lives, liberty, and propertyof those to whom it extends, is therefore restricted to litigantswho can show `injury in fact' resulting from the action whichthey seek to have the court adjudicate." Valley Forge ChristianColl., 454 U.S. at 473. Had CBH proffered some evidenceindicating that CBH had suffered an actual injury, this casewould proceed to trial because there would be disputed issues offact.

Therefore, despite apparent similarities, this case isdistinguishable from both Innovative Health Sys., Inc. and MXGroup, Inc. in that the plaintiffs in both of those casesalleged, and were able to prove, actual injuries. IHS wasprevented from relocating its business, while MXG was preventedfrom opening its methadone clinic altogether. It bears repeatingthat there is no allegation or supporting evidence that CBH wasever interfered with or prevented from running its business.

Since CBH cannot meet the first prong of the test for standingunder Article III of the United States Constitution, CBH does nothave standing to bring this suit. As a result, this court,lacking jurisdiction, can go no further and may not evaluateDefendants' additional arguments regarding standing on the meritsof the case, including the numerous affirmative defenses assertedby Defendants. For the foregoing reasons, this Court grants summary judgmentin favor of Defendants and denies Plaintiff's motion for brevisdisposition.

The clerk shall enter judgment for all Defendants, forthwith.

It is so ordered.

1. Defendants list as their affirmative defenses: (1) "Theplaintiff lacks standing," (2) "The immunity and/or qualifiedimmunity provided by law protects the Defendants from suit," (3)"Zoning decisions of a municipality are not properly the subjectof the Americans with Disabilities Act," (4) "The Defendantsspecifically deny discriminatory intent, motive or conduct," (5)"The Plaintiff failed to exhaust administrative remedies, barringits right to seek recovery in this litigation," (6) "All of therelief to which the Plaintiff would be entitled, if successful,has been obtained, requiring dismissal," (7) "This Court lacksjurisdiction over the subject matter of the lawsuit and thereforeshould abstain from a determination of the matter," (8) "TheDefendants specifically rely upon the rules, regulations andordinances of the Town of Westerly as they concern zoning rightsand procedures, in their defense," and (9) "The Defendants relyupon the doctrine of res judicata in their defense, and as acomplete bar to the claims of the plaintiff." See Am. Answer at3-4.

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