                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2005

Douris v. Genuardi
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3878




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"Douris v. Genuardi" (2005). 2005 Decisions. Paper 1073.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1073


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                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 04-3878
                                  ________________

                              JAMES GEORGE DOURIS,

                                                Appellant

                                           v.

                      GENUARDI’S FAMILY MARKETS, INC.
                             ________________

                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                            (E.D. Pa. Civ. No. 03-cv-03076)
                      District Judge: Honorable Herbert J. Hutton
                                  ________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 23, 2005

            BEFORE: RENDELL, AMBRO and FUENTES, Circuit Judges

                                 (Filed: June 2, 2005)

                                  ________________

                                      OPINION
                                  ________________

PER CURIAM

      Appellant James Douris, proceeding pro se, appeals an order of the United States

District Court for the Eastern District of Pennsylvania granting summary judgment in

favor of Genuardi’s Family Markets, Inc. in his action under the Americans with
Disabilities Act, 42 U.S.C. §§ 12181-12189 (“ADA”), the Pennsylvania Human Relations

Act, 43 Pa. Cons. Stat. §§ 951-963 (“PHRA”), 42 U.S.C. § 1983, and state law. We will

affirm the District Court’s order.

       Douris, who uses a wheelchair, alleges in his complaint that he had various

accessibility problems while shopping at Genuardi’s. In granting summary judgment for

Genuardi’s on Douris’ ADA claim, the District Court noted that Douris sought monetary

damages, but only injunctive relief is available under the statute. The District Court also

stated that Genuardi’s established that it had remedied the accessibility problems in its

store, and Douris had not shown that there is a genuine issue of material fact for trial.

The District Court rejected Douris’ claim under 42 U.S.C. § 1983 because Genuardi’s is

not a state actor, and Douris had not been deprived of his rights under the ADA, the only

federal law at issue. The District Court also dismissed Douris’ state law claims for

product liability and harassment for lack of subject matter jurisdiction. This appeal

followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is

plenary. Doe v. County of Centre, 242 F.3d 437, 446 (3d Cir. 2001).

       Douris argues on appeal that the District Court erred in striking certain documents

from the record. Douris filed numerous “Praecipes” as a means to submit documents that

he believed supported his claims. Noting that the documents are immaterial and appeared

to be an attempt to harass Genuardi’s, the District Court granted Genuardi’s motion to

strike all but three documents that are related to his ADA claim. Douris complains about

                                              2
the dismissal of evidence of Genuardi’s weekly mailings, which he states he cannot read

due to his vision disability. Douris, however, did not make an ADA claim based upon the

mailings in his complaint. He only complained that the weekly mailings constituted

harassment, and the District Court dismissed this claim. Douris also complains about the

striking of documents related to settlements in other discrimination suits. These

documents are immaterial. The District Court did not abuse its discretion in granting

Genuardi’s motion to strike.

       Douris also argues that summary judgment is not warranted on his ADA claim

because the customer service counter at Genuardi’s is too high for a person in a

wheelchair to access. He relies on a photograph of the front of the counter. As

recognized by the District Court, Genuardi’s evidence establishes that the counter is

accessible from the side, and Douris did not submit evidence creating a genuine issue of

material fact regarding the counter’s accessibility.

       Finally, Douris argues that Genuardi’s is a state actor for purposes of Section 1983

because it sells Pennsylvania lottery ticket forms, and receives money from the

Commonwealth when it sells tickets. The District Court correctly noted that the relevant

inquiry in determining whether a person acted under color of state law is whether the

action at issue can be fairly attributed to the state. Groman v. Township of Manalapan,

47 F.3d 628, 638-39 (3d Cir. 1995). Here, the action at issue is the accessibility of items




                                              3
in the store, which is attributable to Genuardi’s.1

       Douris has not shown that the District Court erred. Because there is no genuine

issue of material fact for trial, we will affirm the District Court’s order.2




  1
    The District Court also held that Douris did not establish that he had exhausted his
administrative remedies related to his PHRA claim. In his brief, Douris states that he
filed “this matter” with the Pennsylvania Human Relations Commission, and received no
response. Even if he exhausted his remedies, Douris’ PHRA claim is treated as
coextensive with his ADA claim. Kelly v. Drexel Univ., 94 F.3d 102, 105 (3d Cir. 1996).
  2
   Douris’ Motion to Add Ongoing Evidence of Discrimination is denied. The Court
cannot consider material on appeal that is outside the District Court record. In re Capital
Cities/ABC Inc.’s Application for Access to Sealed Transcripts, 913 F.2d 89, 96 (3d Cir.
1990).

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