                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                January 21, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    NANCY LEWIS,

                Plaintiff-Appellant,

    v.                                                  No. 09-2191
                                            (D.C. No. 6:09-CV-00703-DJS-RHS)
    BURGER KING, Llano Street, Santa                     (D. N.M.)
    Fe,

                Defendant-Appellee.


                             ORDER AND JUDGMENT *


Before KELLY, PORFILIO, and O’BRIEN, Circuit Judges.



         Nancy Lewis, proceeding pro se, appeals from an order dismissing her

claims against Burger King under Title III of the Americans with Disabilities Act

(“ADA”), which proscribes discrimination against the disabled in public

accommodations, 42 U.S.C. § 12182(a). Exercising jurisdiction pursuant to




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
28 U.S.C. § 1291, we affirm in part, reverse in part, and remand for further

proceedings.

      Ms. Lewis claims to be “disabled by chronic sciatica which makes walking

difficult.” R. at 3. She therefore prefers to be accompanied by her dog, which,

she claims, “walks ahead of [her] on a taut leash” and “alert[s] [Ms. Lewis] to

obstacles in her path.” Id. In January 2009, Ms. Lewis brought her dog into the

defendant Burger King restaurant on Llano Street in Santa Fe, New Mexico.

After a short time however, and allegedly due to complaints from another

customer, employees asked her to remove her dog. In July 2009, Ms. Lewis filed

this lawsuit against Burger King based on this incident, claiming that her eviction

from the restaurant violated the public accommodation provision of the ADA.

      This was not the first such encounter between Ms. Lewis and a Burger King

restaurant. In March 2009, she filed a nearly-identical pro se lawsuit stemming

from an incident at a Burger King restaurant in Espanola, New Mexico (the

“Espanola case”). In the Espanola case, as here, Ms. Lewis sought monetary

damages as well as injunctive relief under Title III of the ADA. In that case, in

addition to her own claims, Ms. Lewis attempted to bring claims on behalf of her

dog. The district court dismissed the Espanola case with prejudice under

28 U.S.C. § 1915(e)(2), concluding that Ms. Lewis had failed to state a claim on

her own behalf, and that her dog, an animal, lacked standing to sue.




                                         -2-
      Ms. Lewis appealed that decision to this court, and in an Order and

Judgment dated September 4, 2009, we vacated the district court’s judgment and

remanded for further proceedings. More specifically, this court affirmed the

dismissal of the claims on behalf of Ms. Lewis’s dog, but concluded that the

district court should have afforded Ms. Lewis an opportunity to amend her

complaint as to her own claims. Although she had failed to describe her

disability or the precise assistance provided by her dog, we concluded that

dismissal under § 1915(e)(2) was unwarranted because these deficiencies in

Ms. Lewis’s complaint were fixable. We therefore concluded it would not have

been futile to grant Ms. Lewis an amendment and that the district court erred in

dismissing her claims with prejudice. Accordingly, we vacated its dismissal and

instructed the district court to enter an order of dismissal without prejudice.

      Unfortunately, our decision in the Espanola case was too late to guide the

district court in this action. On August 6, 2009, it dismissed Ms. Lewis’s claims

for injunctive relief based on res judicata, noting that the identical claims in the

Espanola case had been dismissed with prejudice. 1 This of course was premature.


1
       With respect to Ms. Lewis’s claim for money damages, however, the
district court correctly reasoned that monetary relief is not available to private
litigants under Title III of the ADA. See, e.g., Powell v. Nat’l Bd. of Med.
Exam’rs, 364 F.3d 79, 86 (2nd Cir. 2004) (explaining that “[a] private individual
may only obtain injunctive relief for violations of a right granted under Title
III”). Because that portion of its decision was supported by proper grounds and
was not dependent on res judicata, we hereby affirm the district court’s dismissal
with prejudice of Ms. Lewis’s claim for money damages.

                                          -3-
Less than a month later, we vacated that very dismissal in an order that all but

invited Ms. Lewis to file an amended complaint. As such, the Espanola case did

not end “with a judgment on the merits,” thereby precluding application of

res judicata. See In re Mersmann, 505 F.3d 1033, 1049 (10th Cir. 2007).

      We therefore AFFIRM the dismissal of Ms. Lewis’s claim for monetary

relief; REVERSE the dismissal of her claim for injunctive and declaratory relief;

and REMAND for further proceedings consistent with this decision.


                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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