NOT FOR PUBLICATION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
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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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