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                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 04a0043n.06
                          Filed: October 28, 2004

                                     Case No. 03-5916

                     IN THE UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT




JAMES ROSS, MARCELLA BROGLIN      )     ON APPEAL FROM THE UNITED
and JIM KIDWELL, on behalf of     )     STATES DISTRICT COURT FOR
themselves and all others similarly
                                  ) THE EASTERN DISTRICT OF TENNESSEE
situated,                         )
                                  )
           Plaintiffs-Appellants. )
                                  )
v.                                )
                                  )
CITY OF GATLINBURG, TENNESSEE, )
                                  )
           Defendant-Appellee.    )



Before: BATCHELDER and GIBBONS, Circuit Judges; STAFFORD, District Judge*

        STAFFORD, District Judge. The plaintiffs appeal the summary judgment for the

defendant in this action brought by mobility-impaired individuals who allege that the

defendant’s failure to provide access to public facilities and services violates Title II of

the Americans with Disabilities Act (“ADA”) and the Rehabilitation Act (“RA”). We affirm.

                                              I.

       Plaintiffs, James Ross, Marcella Broglin and Jim Kidwell, (collectively “Plaintiffs”),



        * The Honorable William Stafford, United States District Judge for the Northern
District of Florida, sitting by designation.
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filed a class action complaint against the City of Gatlinburg, Tennessee, (the “City”), on

December 16, 2002. As “persons with disabilities who are mobility impaired, or who

regularly use wheelchairs for mobility [and] are unable to lift themselves from their

wheelchairs without assistance,” compl. at ¶ 1, Plaintiffs alleged that they were

aggrieved by the City’s lack of accessible parking, lack of accessible bathrooms, failure

to keep sidewalks clear, inadequate procedures for filing grievances, failure to provide

program access, failure to have an adequate transition plan, and lack of curb cuts at

some intersections. Plaintiffs also alleged that the City failed to self-evaluate their

facilities, policies, and services as required under the RA, failed to comply with the ADA

and the RA when it built new structures or altered existing structures, and failed to make

reasonable modifications to its policies and procedures in order to give meaning to the

ADA.

       The City moved for summary judgment, arguing that Plaintiffs lacked standing to

bring an action against the City because they failed to allege or identify any specific

injury. The City also argued that Congress did not authorize a private cause of action

against a municipality for failure to develop or implement a self-evaluation or transition

plan under the ADA.

       In response to the City’s motion for summary judgment, each Plaintiff provided a

one-page affidavit describing in very general terms his or her grievance against the City.

None of the Plaintiffs identified any particular street, sidewalk, intersection, parking lot,

public building, or facility that purportedly does not comply with the ADA. Neither did

they specify any City service, program, or activity from which they were excluded or cite

any particular incident on any particular date when they suffered discrimination as a
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result of the City’s provision or non-provision of services.

       Agreeing with both of the City’s arguments, the district court granted the City’s

motion for summary judgment and dismissed the case. Plaintiffs soon after filed this

appeal, in which they raise two issues: (1) whether the district court erred in finding that

Plaintiffs lack standing to bring an action against the City because they failed to produce

evidence of any specific injury; and (2) whether the district court erred in finding that

Plaintiffs cannot bring a private cause of action for the City’s failure to develop or

implement a self-evaluation or transition plan under the ADA.

                                              II.

       This court reviews de novo the district court’s grant of summary judgment.

Petrey v. City of Toledo, 246 F.3d 548, 553 (6th Cir. 2001). “Rule 56(c) mandates the

entry of summary judgment, after adequate time for discovery and upon motion, against

a party who fails to make a showing sufficient to establish the existence of an element

essential to that party’s case, and on which that party will bear the burden of proof at

trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

                                             III.

       To establish standing to bring suit, a plaintiff must show that (1) he or she has

suffered an "injury in fact" that is (a) concrete and particularized and (b) actual or

imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the

challenged action of the defendant; and (3) it is likely, as opposed to merely speculative,

that the injury will be redressed by a favorable decision. Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). As explained by the Supreme
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Court:

               Since [the elements required to establish standing] are not
               mere pleading requirements but rather an indispensable part
               of the plaintiff's case, each element must be supported in the
               same way as any other matter on which the plaintiff bears
               the burden of proof, i.e., with the manner and degree of
               evidence required at the successive stages of the
               litigation....At the pleading stage, general factual allegations
               of injury resulting from the defendant's conduct may suffice,
               for on a motion to dismiss we ‘presum[e] that general
               allegations embrace those specific facts that are necessary
               to support the claim.’...In response to a summary judgment
               motion, however, the plaintiff can no longer rest on such
               ‘mere allegations,’ but must ‘set forth’ by affidavit or other
               evidence ‘specific facts,’...which for purposes of the
               summary judgment motion will be taken to be true.

Lujan, 504 U.S. at 561 (citations omitted).

         Here, in response to the City’s motion for summary judgment, Plaintiffs failed to

provide ANY evidence of “concrete and particularized, actual or imminent” injuries

resulting from the City’s actions or inactions. Absent such evidence, Plaintiffs failed to

establish a genuine issue of material fact with regard to an essential element of their

case against the City. Accordingly, we find that the district court was correct in granting

the City’s motion for summary judgment.

                                              IV.

         Because Plaintiffs have not established standing to pursue their claims against

the City, it is not necessary to reach the question of whether there is a private cause of

action for the City’s alleged failure to develop or implement a self-evaluation or

transition plan under the ADA. We note, however, that this issue has been decided in

the negative in a recent published decision of this court. See Ability Center of Greater

Toledo v. City of Sandusky,       F.3d      (6th Cir. 2004) (holding that there is no private
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right of action to enforce the self-evaluation and transition plan requirements set forth in

the regulations accompanying Title II).

                                             V.

       For the foregoing reasons, we AFFIRM the district court’s entry of summary

judgment in favor of the City.
