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RAMON BADILLO-SANTIAGO, M.D. Plaintiff, Appellant, and
UNITED STATES, Intervenor, v. HON. MIRIAM NAVEIRA-MERLY,
in her official capacity as Administrator of the Judiciary System; HON.
LIRIO BERNAL SANCHEZ, in her official capacity as Director of the
Courts Administration of Puerto Rico; WILFREDO GIRAU-TOLEDO,
in his official capacity as Director of the Public Buildings Authority; THE
COMMONWEALTH OF PUERTO RICO; ADMINISTRACION DE
TRIBUNALES, Adm. de Tribunales de P.R.; AUTORIDAD DE
EDIFICIOS PUBLICOS, Defendants, Appellees, JOSE A.
FUENTES-AGOSTINI, in his official capacity as Secretary of Justice of
Puerto Rico; JULIO BERRIOS-JIMENEZ, Judge, in his official and
personal capacity, Defendants.

No. 01-2640

UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT

378 F.3d 1;2004 U.S. App. LEXIS 15608;


July 29, 2004, Decided




PRIOR HISTORY:    [*1]  APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon.
Salvador E. Casellas, U.S. District Judge.

Badillo-Santiago v. Andreu-Garcia, 167 F. Supp. 2d 194, 2001 U.S.
Dist. LEXIS 16244 (D.P.R., 2001)



COUNSEL:   Marc P. Charmatz, with whom Mary C. Vargas, Rosaline
Crawford, and National Association of the Deaf Law Center were on
brief, for appellant.

Kevin K. Russell, Attorney, Department of Justice, with whom R.
Alexander Acosta, Assistant Attorney General, Ralph F. Boyd Jr.,
Assistant Attorney General, Jessica Dunsay Silver, Attorney, and Seth
M. Galanter, Attorney, were on brief, for intervenor United States.

Alfredo Fernandez-Martinez, with whom Delgado & Fernandez, LLP
was on brief, for appellees Administrator of the Judiciary System and
Director of the Courts Administration of Puerto Rico.

Hiram Melendez, with whom Roberto J. Sanchez Ramos, Solicitor
General, Vanessa Lugo Flores, Deputy Solicitor General, Kenneth
Pamias Velazquez, Deputy Solicitor General, Leticia Casalduc Rabell,
Assistant Solicitor General, and Camelia Fernandez Romeu, Assistant
Solicitor General, were on brief, for appellee Commonwealth of Puerto
Rico.

JUDGES:   Before Selya, Lynch, and Lipez, Circuit Judges.

OPINION BY:   LYNCH

OPINION:   LYNCH, Circuit Judge. This case raising several  [*2]  
different federalism issues arose from a dispute in the courts of Puerto
Rico over the sale of a house.

In August 1995, Amparo Fuentes-Gonzalez sued Ramon
Badillo-Santiago ("Badillo"), along with Badillo's wife and brother, in the
Superior Court of Puerto Rico in connection with a purchase and sale
contract for a house. Badillo is the plaintiff and appellant here.

Before trial, Badillo never asserted that his hearing was disabled or that
he would require accommodation. The only pre-trial reference to his
hearing was in his answer to the complaint. In paragraph 20 of his
answer, he stated: "The right to have witnesses and to have [the deed]
read aloud was declined, especially by me, since I do not hear well and
rely on hearing aids." Trial started on September 2, 1997. On that first
day of trial, Badillo's counsel informed the court about Badillo's hearing
impairment and asked that he be permitted to sit near witnesses. That
request was granted. On the second day of trial, Badillo stated that he
had heard very little of a witness's testimony. At that point, the trial judge
stated that Badillo's demeanor indicated otherwise, as Badillo had made
signs of approval and disapproval  [*3]  of the testimony.








On the third day of trial, defendant Badillo moved for a new trial on the
ground that no reasonable accommodation had been provided to him for
his hearing impairment, as required by the Americans with Disabilities
Act (ADA), 42 U.S.C. § 12101 et seq. In support of that motion, Badillo
submitted a report that had been prepared by a clinical audiologist two
days earlier, on September 6. The trial court, which had already
accommodated both Badillo's request to sit near witnesses and his
request that counsel be required to examine him from the podium, denied
the motion. The court did, however, order that Badillo be provided with
a chair on wheels that he could move around the courtroom. The court
allowed Badillo to move freely around the courtroom in order to hear
better and advised him to stand up and inform the court if he could not
hear testimony. Badillo claims that he attempted to comply, but that he
still could not hear witnesses, and claims that he was humiliated and
embarrassed by the conditions. The court ultimately ruled in favor of the
plaintiff on the merits and Badillo appealed, inter alia, on the ground that
the trial court  [*4]  had failed to provide him with reasonable
accommodation for his hearing impairment, which, in turn, prevented
him from receiving a fair trial.

While he pursued his claims in the court system of Puerto Rico, Badillo
also filed this suit, pro se, in the U.S. District Court for the District of
Puerto Rico on August 31, 1998. The suit alleged claims under the ADA
and under 42 U.S.C. § 1983 for violations of his due process and equal
protection rights. Badillo named as defendants the Commonwealth of
Puerto Rico and numerous heads of Puerto Rico government entities in
their official capacities, including the presiding judge of the Puerto Rico
Supreme Court and the trial judge who had presided over the civil case
against Badillo. Badillo also sued the trial judge in his individual capacity.
He sought compensatory and punitive damages and an injunction
ordering the defendants to bring the courts of Puerto Rico into
compliance with Title II of the ADA.

The defendants in the federal suit filed motions to dismiss for failure to
state a claim, which Badillo, still pro se, opposed. On February 11, 1999,
the United States successfully moved for leave to appear as amicus  [*5]  
curiae to oppose the motion to dismiss. On September 29, 1999, counsel
entered an appearance for Badillo. On September 30, 1999, the district
court (1) dismissed the ADA claim against the trial judge in his official
capacity, (2) dismissed the claim against the trial judge in his individual
capacity on grounds of judicial immunity, (3) dismissed the § 1983
claims against all of the individual defendants in their official capacities
on the ground that those claims were barred by the Eleventh
Amendment, and (4) declined to dismiss Badillo's ADA claims against
the Commonwealth and the other individual defendants in their official
capacities.

Badillo subsequently sought leave to amend his complaint to add claims
under § 504 of the Rehabilitation Act, arguing that the court should grant
him leave to amend because of the difficulties he had faced as a pro se
litigant. The district court denied his requests to amend, noting that
Badillo had almost a year after the filing of his federal complaint to retain
a lawyer. Badillo also asked the court to reconsider its dismissal of the §
1983 claims for injunctive relief against the individual defendants in their
official capacities, pointing  [*6]  to Ex parte Young, 209 U.S. 123, 52 L.
Ed. 714, 28 S. Ct. 441 (1908). The district court denied these requests
as well.

On August 31, 2000, Puerto Rico's intermediate appellate court, the
Circuit Court of Appeals, reversed the judgment of the Puerto Rico
Superior Court and granted Badillo a new trial, concluding that the
accommodation provided by the trial court was not adequate under the
ADA. Because the court found that a new trial was necessary, it did not
reach several other issues raised by Badillo. The plaintiff in the
Commonwealth action, Fuentes-Gonzalez, appealed the judgment of the
Circuit Court of Appeals to the Supreme Court of Puerto Rico.

In March 2001, the remaining defendants n1 in the federal suit filed new
motions to dismiss the Title II ADA claims on Eleventh Amendment
grounds. On September 28, 2001, the district court entered judgment
dismissing the ADA claims against those defendants on the ground that it
had no jurisdiction in light of Puerto Rico's Eleventh Amendment
immunity. Badillo-Santiago v. Andreu-Garcia, 167 F. Supp. 2d 194 (D.
P.R. 2001). Badillo appealed that ruling to this court, and also argued
that the district court had erred  [*7]  both in not permitting him to
amend to assert a § 504 claim and also in dismissing his Ex parte Young
claims for injunctive relief.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 After the dismissals of September 30, 1999, one of the
official-capacity defendants, Fuentes-Agostini, successfully moved to
have the ADA claims against him dismissed.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

We heard oral arguments in the case on September 12, 2002, at which
time the parties agreed to stay the appeal pending the outcome of the
parallel appeal in the Supreme Court of Puerto Rico. On September 30,
2003, the Supreme Court of Puerto Rico reversed the judgment of the
Circuit Court of Appeals, finding no violation of Badillo's due process
right to a fair trial, and remanded the case to the intermediate appellate
court so that it could pass on the remaining issues appealed by Badillo. In
analyzing whether the trial court had violated Badillo's procedural due
process rights, the Supreme Court of Puerto Rico explained that it "need
not resort to the obligations imposed by the ADA on public entities,  
[*8]  inasmuch as such obligations have been incorporated into the
Puerto Rican law system as part of the due process of law." The court
explicitly adopted the definition of the procedural due process rights
under the U.S. Constitution as it was set forth in Mathews v. Eldridge,
424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976). The court then
offered its definition of reasonable accommodation:


We define reasonable accommodation, within the context of the services
rendered by the court system, as one that does not involve modification
of such magnitude as may fundamentally alter the nature of the service --
in this case, the trial on the merits. Reasonable accommodation must
guarantee significant access to the benefits, rights, and guarantees that a
trial on the merits entails; this, however, should not be mistaken for the
creation or addition of substantive benefits different from those provided
to persons without disabilities. The purpose of reasonable
accommodation is to facilitate the equal and equitable use and enjoyment
of recognized services and rights by all users. Thus, we deem
unreasonable an accommodation that imposes a disproportionate
financial or administrative  [*9]  burden on the court system and on the
users.

The determination to provide such an accommodation within the context
of a trial requires a thorough consideration of the interests of all the
parties affected by the procedure. . . . It is vitally important to also
consider the date on which the request for accommodation was
submitted, [and] the quality and degree of evidence presented to show
the degree and extent of the disability . . . .
The court noted that the audiology report submitted by Badillo indicated
that his hearing impairment was partial and that he could hear people up
to a distance of four feet if he faced them and resorted to lip reading.
Accordingly, the court said, the accommodation provided by the trial
court met due process requirements because it conformed to the degree
of Badillo's disability.

The parties filed supplemental briefs addressing the effect of the Puerto
Rico Supreme Court decision on this federal suit. We advised the parties
that we would withhold ruling on this appeal until the United States
Supreme Court issued its decision in Tennessee v. Lane, 541 U.S. 509,
158 L. Ed. 2d 820, 124 S. Ct. 1978 (2004), on the constitutionality of
Title  [*10]  II of the ADA insofar as it purported to abrogate Eleventh
Amendment immunity. The parties later provided supplemental briefing
on how Lane impacts this appeal.

I.

We review de novo the district court's grant of the defendants' motions
to dismiss and may affirm on any independently sufficient ground.
Willhauck v. Halpin, 953 F.2d 689, 704 (1st Cir. 1991). The district
court dismissed Badillo's Title II ADA claims against the Commonwealth
and its officials in their official capacities on Eleventh Amendment
grounds, concluding that Congress did not validly abrogate the
Commonwealth's sovereign immunity to such claims. 167 F. Supp. 2d at
198-201. That ruling, on these facts, turned out to be contrary to
Tennessee v. Lane, 541 U.S. 509, 158 L. Ed. 2d 820, 124 S. Ct. 1978
(2004), in which the Supreme Court held that Congress did validly
abrogate states' sovereign immunity to certain constitutionally-based
claims under Title II of the ADA, on an as-applied basis. Id. at 1994.

In Lane, the Court held that Title II of the ADA enforces a number of
constitutional rights and that a history of unconstitutional disability
discrimination supported  [*11]  Congress's enactment of prophylactic
legislation. Id. at 1988-92 (applying the first two parts of the three-part
analysis of Fourteenth Amendment legislation created by City of Boerne
v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997)).
Considering next whether Title II is an appropriate response to the
history and pattern of unequal treatment of individuals with disabilities,
the Court declined to "examine the broad range of Title II's applications
all at once" and instead concluded that the only question before it was
"whether Congress had the power under § 5 to enforce the constitutional
right of access to the courts." Id. at 1992-93. The Court held that Title
II's "requirement of program accessibility . . . is congruent and
proportional to its object of enforcing the right of access to the courts" as
it requires only "'reasonable modifications' that would not fundamentally
alter the nature of the service provided" and does not require states to
"undertake measures that would impose an undue financial or
administrative burden." Id. at 1993-94. The court thus concluded that
Title II, "as it applies to the class of cases implicating the fundamental
right  [*12]  of access to the courts," is a valid exercise of Congress's
authority under § 5 of the Fourteenth Amendment. Here, at least one of
Badillo's federal claims implicates his right of access to the courts and
thus falls within the holding of Lane, and so is not barred by the Eleventh
Amendment. That is his claim that during his trial he was denied due
process because there was no reasonable accommodation of his hearing
impairment. n2

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 For present purposes, we assume arguendo that his impairment rose
to the level of a disability.


- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

It does not follow, though, that Badillo is now entitled to go forward in
federal court and try to establish the merits of that claim. Given the
decision of the Supreme Court of Puerto Rico, this case now presents a
potential and separate bar to federal court jurisdiction under the
Rooker-Feldman doctrine (and/or the issue preclusion doctrine). The
Rooker-Feldman doctrine provides that the district courts lack
jurisdiction over any action that is effectively or substantially  [*13]  an
appeal from a state court's judgment. See Wilson v. Shumway, 264 F.3d
120, 125 (1st Cir. 2001); Hill v. Town of Conway, 193 F.3d 33, 34-35
(1st Cir. 1999). Rooker-Feldman applies to state or territorial court
judgments to which the federal courts would accord preclusive effect,
Cruz v. Melecio, 204 F.3d 14, 21 n.5 (1st Cir. 2000), and the federal
courts "can ascribe no greater preclusive force to a state court judgment
than would the courts of that state," id. at 21.

The law of Puerto Rico accords preclusive effect only to judgments that
are "final and unappealable," id. at 20, so "a commonwealth court
judgment cannot be accorded preclusive effect until all available appeals
have been exhausted (or the time for taking them has expired)," id. When
the district court issued its decision dismissing Badillo's ADA claims on
September 28, 2001, Badillo's case in the Commonwealth courts was still
pending review by the Supreme Court of Puerto Rico. Accordingly, the
lack of finality of judgment in the case at that time prevented the
Rooker-Feldman doctrine from coming into play. Because  [*14]  Puerto
Rico's highest court has since issued a final judgment, and because the
claims in this federal suit appear to be the functional equivalent of an
appeal from that judgment, we remand the case to the district court so
that it can address whether it has jurisdiction under Rooker-Feldman. For
the same reasons, if the district court determines that it does have
jurisdiction over the suit, then it should address the res judicata and issue
preclusion effects (if any) of the judgment by the Commonwealth's
highest court.

We remand because the issue whether the federal suit is barred is not
straightforward, nor has it adequately been briefed to this court by the
parties. Indeed, the Commonwealth has not raised Rooker-Feldman, but
we are obliged to do so because the Rooker-Feldman doctrine is
jurisdictional. Maymo-Melendez v. Alvarez-Ramirez, 364 F.3d 27, 33
n.7 (1st Cir. 2004) (the Rooker-Feldman doctrine is jurisdictional).

It is true that the Commonwealth officer defendants were not nominally
parties in the state court proceedings. Cf. Perez-Guzman v. Gracia, 346
F.3d 229, 238 & n.5 (1st Cir. 2003) (cautioning  [*15]  that
Rooker-Feldman may not apply where there is no identity of parties
under Puerto Rico law). It is equally true that the Puerto Rico Supreme
Court has adjudicated the merits of Badillo's denial of due process claim
and has done so under federal due process standards and has articulated
a reasonable accommodation standard essentially equivalent to the Lane
standard. We thus reject Badillo's argument that the standard used by the
Puerto Rico Supreme Court was different from the ADA standard. We
also reject Badillo's argument that the Puerto Rico Supreme Court's
analysis was affected by its allocation of the burden of proof as to the
reasonableness of an accommodation. Nothing about the outcome
reached by the Puerto Rico Supreme Court turned on who had what
burden of proof.

Although we remand, we caution Badillo about whether it is worth
continuing his suit. Whether or not the decision of the Supreme Court of
Puerto Rico precludes him from having the lower federal courts
adjudicate his claim, Badillo should be aware that the merits of his claim
have been thoughtfully received and were found to be wanting.

II.

Badillo also appeals from the dismissal of his claims  [*16]  under § 1983
against Commonwealth officials. The only place where this might make a
difference is in his request that the defendants be enjoined to prepare a
plan to secure compliance with the ADA and educate the public.

It is not clear if Badillo intends this as an independent claim or whether
he wishes to pursue it at all. If, on remand, he pursues the claim, then a
number of issues must be resolved: whether such a claim is stated under
the ADA, whether Badillo has standing, whether the Eleventh
Amendment and Lane foreclose such a claim, and others. These issues
may be addressed initially in the district court.

III.

This leaves only Badillo's appeal from the district court's refusal to allow
him to amend his complaint to add claims under § 504 of the
Rehabilitation Act. We review the district court's denial of leave to
amend for abuse of discretion and pay deference "to any adequate
reason for the denial." Acosta-Mestre v. Hilton Int'l of P.R., Inc., 156
F.3d 49, 51 (1st Cir. 1998). We affirm.

Badillo filed this case on August 31, 1998. Before the end of 1998, the
defendants had filed several motions to dismiss. Yet Badillo waited until
September  [*17]  1999 to retain counsel (counsel made his first
appearance on September 29, 1999), and he did not file the motion to
amend until October 22, 1999 -- almost one month after the court had
ruled on the defendants' motions to dismiss and more than a full year
after the filing of the complaint. Under those circumstances, it was within
the district court's discretion to deny the belated motion to amend. See
Hayes v. New England Millwork Distribs., Inc., 602 F.2d 15, 20 (1st
Cir. 1979) (undue delay can be a basis for denial of leave to amend).

IV.

The judgment of the district court dismissing the ADA claim is vacated,
the denial of the motion to amend to add a § 504 claim is affirmed, and
the case is remanded for proceedings consistent with this opinion. No
costs are awarded.



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