                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JUN 23 2015

                                                                           MOLLY C. DWYER, CLERK
LARY FEEZOR,                                     No. 12-17388               U.S. COURT OF APPEALS



              Plaintiff - Appellant,             D.C. No. 2:10-cv-00908-KJM-
                                                 CMK
  v.

SEARS, ROEBUCK AND CO.,                          MEMORANDUM*

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                     Argued and Submitted February 10, 2015
                            San Francisco, California

Before: THOMAS, Chief Judge, and TASHIMA and McKEOWN, Circuit Judges.

       Lary Feezor appeals the district court’s grant of summary judgment against

him as to his action brought pursuant to the Americans with Disabilities Act of

1990, 42 U.S.C. §§ 12101 et. seq. (“ADA”) and California state law. We affirm.

Because the parties are familiar with the history of the case, we need not recount it


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
here. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review a grant of

summary judgment de novo. Metro. Life Ins. Co. v. Parker, 436 F.3d 1109, 1113

(9th Cir. 2006).

      An ADA plaintiff “can establish standing to sue for injunctive relief either

by demonstrating deterrence, or by demonstrating injury-in-fact coupled with an

intent to return to a noncompliant facility.” Chapman v. Pier 1 Imports (U.S.) Inc.,

631 F.3d 939, 944 (9th Cir. 2011). Where “the public accommodation being sued

is far from the plaintiff’s home,” a plaintiff shows “actual or imminent injury

sufficient to establish standing” when he or she “demonstrates an intent to return to

the geographic area where the accommodation is located and a desire to visit the

accommodation if it were made accessible.” D’Lil v. Best W. Encina Lodge &

Suites, 538 F.3d 1031, 1037 (9th Cir. 2008). A plaintiff’s “profession of an

‘inten[t]’ to return to the places [he] had visited before” is not sufficient to

establish standing because “[s]uch ‘some day’ intentions—without any description

of concrete plans, or indeed even any specification of when the some day will

be—do not support a finding of the ‘actual or imminent’ injury that our cases

require.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 564 (1992).

      Plaintiff has not demonstrated an intent to return to the Sears store. He has

failed to articulate a “concrete plan[]” to return to the store or to the geographic


                                            2
area where the store is located. Id.; D’Lil, 538 F.3d at 1037-38. Rather, he has

articulated only “‘some day’ intentions” that do not support a finding of actual or

imminent injury. Lujan, 504 U.S. at 564.

      Plaintiff also has failed to demonstrate that he is deterred from visiting the

Sears store. To establish standing based on deterrence, an ADA plaintiff must

demonstrate that he would return but for the barrier. See Doran v. 7-Eleven, Inc.,

524 F.3d 1034, 1040 (9th Cir. 2008); Pickern v. Holiday Quality Foods Inc., 293

F.3d 1133, 1138 (9th Cir. 2002). Plaintiff’s conclusory statements that he is

deterred from visiting Sears are insufficient to demonstrate that he would shop at

Sears if it were accessible. As a result, he lacks standing to pursue his claims.

      AFFIRMED.




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