John W. Madsen v. Boise State University

976 F.2d 1219 78 Ed. Law Rep. 219 , 3 NDLR P 107 John W. MADSEN, Plaintiff-Appellant, v. BOISE STATE UNIVERSITY, Defendant-Appellee. No. 91-35335. United States Court of Appeals, Ninth Circuit. Submitted June 4, 1992 * . Decided Sept. 22, 1992. John Madsen, Boise, Idaho, pro se. Donald W. Lojek, Lojek & Gabbert, Boise, Idaho, for defendant-appellee. Appeal from the United States District Court for the District of Idaho. Before FARRIS, NORRIS and KOZINSKI, Circuit Judges. PER CURIAM. 1 John Madsen sues Boise State University under 42 U.S.C. § 1983 , claiming handicap discrimination based on the fact that the University did not offer free handicap parking permits on campus. Madsen claims this is discrimination because all handicap parking spots on campus require a permit (and therefore a fee), whereas there is some non-handicap parking available that students may use free of charge. 2 Madsen made several calls to the Parking Services Office, Student Special Services, and the Vice President's Office to inquire about the availability of free handicap permits and was told none were available. He did not actually apply for a permit; he did not seek a waiver of the $15 permit…

John Madsen sues Boise State University under 42 U.S.C. § 1983 , claiming handicap discrimination based on the fact that the University did not offer free handicap parking permits on campus. Madsen claims this is discrimination because all handicap parking spots on campus require a permit (and therefore a fee), whereas there is some non-handicap parking available that students may use free of charge.

Madsen made several calls to the Parking Services Office, Student Special Services, and the Vice President’s Office to inquire about the availability of free handicap permits and was told none were available. He did not actually apply for a permit; he did not seek a waiver of the $15 permit fee; he did not pay the $15 and seek a refund. OCR Letter at 3, Finding of Fact 12 (July 2, 1990). 1 Instead, he filed a complaint with the U.S. Department of Education, Office of Civil Rights, alleging that the University had discriminated against him on the basis of handicap by charging $15 for a handicap parking permit. OCR investigated the complaint, and found that the University parking policies did not comply with section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 . The…

dissenting.

In reviewing this dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), we are required to accept the allegations in Madsen’s complaint as true. Klarfeld v. United States, 944 F.2d 583, 585 (9 th Cir.1991). Moreover, because Madsen is pro se, his complaint is held to a less stringent standard than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 , 92 S.Ct. 594, 595-96 , 30 L.Ed.2d 652 (1971) (per curiam). Madsen’s complaint alleges a violation of his civil rights and incorporates a letter from the Department of Education’s Office of Civil Rights (“OCR”). The OCR letter contains findings of fact, which we must treat as supplementing Madsen’s factual allegations.

Thus, Madsen alleges that he is physically disabled, which affects his ability to walk more than 50 to 100 feet; that, for professional reasons, he obtained an instructor’s permission to audit a calculus course; that he needed to park in the disabled parking areas on campus in order to attend the course and to use the library; that some free parking was available to those without disabilities but that the university required a $15 fee for all disabled parking spots;…