Elsie Alexander v. Pathfinder, Inc. ( 1996 )


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  •                                  ___________
    No. 95-3680
    ___________
    Elise Alexander, Individually,         *
    and as Guardian of Larry               *   Appeal from the United States
    Alexander, an incompetent              *   District Court for the Eastern
    person,                                *   District of Arkansas.
    *
    Appellant,                *
    *
    v.                             *
    *
    Pathfinder, Inc.; Colleen              *
    Black, Executive Director of           *
    Pathfinder, Inc., Individually         *
    and in her official capacity;          *
    Cindy Crook, Administrator of          *
    Pathfinder Home, Individually          *
    and in her official capacity;          *
    and Tom Dalton, in his official        *
    capacity as Director of Arkansas *
    Department of Human Services,          *
    *
    Appellees.                *
    ___________
    Submitted: May 16, 1996
    Filed: July 29, 1996
    ___________
    Before McMILLIAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
    ___________
    MORRIS SHEPPARD ARNOLD, Circuit Judge.
    This case arises from a state administrative hearing that permitted
    the discharge of a mentally retarded man from a care facility.         After
    losing in the hearing, his guardian filed a complaint in federal court,
    asserting violations of various federal and state laws.   The district court
    found    that the entire complaint was subject to dismissal under the
    doctrines of claim and issue preclusion.       We affirm in part, reverse in
    part, and remand.
    I.
    Pathfinder, a ten-bed intermediate care facility for the mentally
    retarded (ICF/MR), discharged Larry Alexander after he had resided there
    for a number of months.      His mother and legal guardian, Elise Alexander,
    objected to the discharge.       An administrative hearing under the authority
    of the Arkansas Department of Human Services was held to determine the
    propriety of the discharge, after which the hearing officer issued an
    opinion justifying his conclusion that Mr. Alexander had been discharged
    for "medical reasons" (see Arkansas Office of Long-Term Care Regulation
    353), and for "good cause" (see 42 C.F.R. § 483.440(b)(4)).
    The hearing officer made extensive findings of fact in support of his
    decision, and we now summarize them.        Mr. Alexander has a number of health
    problems that demand a high level of care, including Down's syndrome with
    severe retardation, morbid obesity, severe asthma, and sleep apnea.               With
    Ms. Alexander's consent, Mr. Alexander was put on a "behavior modification
    plan" to control his weight.        A few months after Mr. Alexander began to
    reside   at   Pathfinder,   an   incident    occurred   that   suggested   that   Mr.
    Alexander might have been beaten.      Ms. Alexander complained to Pathfinder
    but declined to pursue the matter with the police.              At some point, Ms.
    Alexander told Pathfinder that its employees used abusive language and were
    rude to her.   Pathfinder officials began taping Ms. Alexander's telephone
    calls to Pathfinder with her consent in order to discover which of its
    employees might have been abusive.            Ms. Alexander later withdrew her
    consent, yet Pathfinder continued to tape the calls.
    The hearing officer outlined the level of care that Pathfinder had
    to provide for Mr. Alexander.          A "team" of physicians (including an
    attending physician who functioned as a "quarterback") had to be available
    to treat Mr. Alexander for a variety of problems.              Mr. Alexander had to
    take quite a number of
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    different medications, and had to be monitored to ensure that he did not
    cease breathing in his sleep.        Without consulting a physician, Pathfinder
    administrators decided that, based on Mr. Alexander's medical diagnoses and
    what they perceived to be his deteriorating condition, he should be
    discharged.
    In his conclusions of law, the hearing officer decided that the level
    of   care   that Mr. Alexander required was too onerous for Pathfinder
    reasonably    to     provide.      Although   Pathfinder     violated     a   state   law
    requirement that it consult a physician before authorizing discharge (it
    did so later), the hearing officer found that the violation was merely a
    form of harmless error in light of his own finding that Pathfinder was ill
    equipped to care for Mr. Alexander properly.               The hearing officer also
    concluded that Pathfinder did not discharge Mr. Alexander as retribution
    for Ms. Alexander's complaints regarding abuse.           He found that despite the
    disputes     between    Ms.     Alexander    and    Pathfinder   regarding      behavior
    modification plans and the taping of telephone calls, each had Mr.
    Alexander's interests at heart.        There was, he said, no scheme or plan by
    Pathfinder to make life difficult for Ms. Alexander so that she would
    voluntarily remove Mr. Alexander from Pathfinder's care.
    Rather than appeal the administrative decision, the plaintiffs filed
    a complaint in federal district court against Pathfinder, two Pathfinder
    administrators, and Tom Dalton, Director of the Arkansas Department of
    Human    Services.      Mr.     Alexander   asserted    violations   of   his   federal
    constitutional rights under the first amendment, in addition to due process
    and equal protection claims.          He also raised claims under the Americans
    with Disabilities Act (ADA), 42 U.S.C. § 12181 et seq., and section 504 of
    the Rehabilitation Act of 1973, 29 U.S.C. § 794, as well as state-law tort
    claims for invasion of privacy, assault, battery, intentional infliction
    of emotional distress, and negligence.            The due process claims included an
    allegation that the state had failed to provide a competent hearing officer
    to preside over the original
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    administrative proceeding and that it had made time demands on the officer
    that interfered with his ability to review the record and make a sound
    decision.     Ms. Alexander asserted violations of her first and fourteenth
    amendment rights, which appear to amount to a claim that Pathfinder
    retaliated against her by discharging Mr. Alexander because she exercised
    her right of free speech by criticizing Pathfinder.
    The district court reviewed University of Tennessee v. Elliott, 
    478 U.S. 788
    (1986), and, after giving plaintiffs an opportunity to distinguish
    its holding, found that they were estopped from litigating their claims in
    federal court.    The court analyzed the plaintiffs' claims under applicable
    federal regulations, the ADA, and the Rehabilitation Act, finding that the
    hearing officer's factfinding had necessarily resolved factual issues that
    formed a predicate for those claims in favor of the defendants.         Alexander
    v. Pathfinder, Inc., 
    906 F. Supp. 502
    , 507-08 (E.D. Ark. 1995).
    II.
    The    Alexanders   have   challenged   the   district   court's   preclusion
    analysis.     We begin with Mr. Alexander's claims.
    Federal courts must give a state agency's findings of fact the same
    preclusive effect that those findings would be entitled to in that state's
    courts, provided that the agency was acting in a judicial capacity, the
    questions litigated were properly before the agency judge, and the parties
    had an adequate opportunity to litigate them.       
    Elliott, 478 U.S. at 797-99
    ;
    Plough v. West Des Moines Community School Dist., 
    70 F.3d 512
    , 515-16 (8th
    Cir. 1995).    There is little doubt that all three of these predicates are
    present here.    The hearing officer considered a great deal of evidence in
    the course of the hearing and rendered a written decision including
    findings of fact and conclusions of law.       The issue of the reasonableness
    of the discharge was properly before
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    the hearing officer because a hearing on that issue is provided for under
    state law.    See Ark. Code Ann. § 20-10-1005(a)(2).          The parties had ample
    chance to put on their proof over the course of a proceeding that lasted
    six days and generated 1,400 pages of transcript and voluminous exhibits.
    In Arkansas, issue preclusion bars relitigation of an issue of law
    or fact that was litigated in the first suit when the issue sought to be
    precluded is the same as that involved in the prior litigation, was
    actually litigated, determined by a valid and final judgment, and its
    determination was essential to the judgment.            Crockett & Brown, P.A. v.
    Wilson, 
    314 Ark. 578
    , 581, 
    864 S.W.2d 244
    , 246 (1993).           Under Arkansas law,
    an unappealed administrative decision is a final judgment.            See Pine Bluff
    Warehouse v. Berry, 
    51 Ark. App. 139
    , 142, 
    912 S.W.2d 11
    , 13 (1995).                The
    parties thoroughly litigated the issue of whether the discharge was for
    medical reasons and good cause, and the hearing officer concluded that it
    was.
    As we have noted, the district court believed that the hearing
    officer's    factfinding     necessarily    precluded   Mr.   Alexander's     ADA   and
    Rehabilitation Act claims.      See Alexander v. Pathfinder, 
    Inc., 906 F. Supp. at 507-08
    .     Mr. Alexander offers almost nothing to refute the district
    court's conclusions in this regard.         He makes no argument that the district
    court's rejection of the ADA claim is unfounded (and we therefore do not
    address it), and dedicates only one sentence to arguing that the hearing
    officer's factfinding does not undermine his Rehabilition Act claim.                The
    Rehabilitation Act requires federally-funded programs to make reasonable
    accommodations, not fundamental or substantial alterations in the nature
    of the services that they provide.         Alexander v. Choate, 
    469 U.S. 287
    , 299
    (1985).      The   hearing   officer's     findings   are   replete   with   instances
    revealing that Mr. Alexander required a much higher level of care than
    Pathfinder could reasonably provide.           The hearing officer concluded that
    Mr. Alexander's "physical problems
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    are many and interrelated.       His weight problem, sleep apnea, reflux,
    asthma,    environmental   allergies    and     Barrett's     esophagitis    --    when
    considered in toto and in conjunction with his recent medical history --
    pose unique daily living problems for which an ICF/MR is ill-equipped to
    handle."    We believe that the hearing officer's findings that caring for
    Mr. Alexander was more than Pathfinder could reasonably be expected to do
    rather clearly estops him from asserting a claim under the legal principles
    outlined in the Rehabilitation Act.
    We hold, however, that one of Mr. Alexander's federal claims was not
    and could not have been litigated at the hearing, namely, the claim that
    the state (in the person of Mr. Dalton) violated Mr. Alexander's due
    process rights in failing to provide a competent hearing officer for the
    administrative hearing and in making unreasonable demands on his time.               By
    hypothesis,   the   factual   basis    for    this   claim    could   not   have   been
    adjudicated in the administrative hearing because the claim could not have
    finally arisen until that hearing was concluded.             The district court thus
    inappropriately dismissed the claim against Mr. Dalton when it dismissed
    the entirety of plaintiffs' case on the basis of preclusion.            The district
    court, moreover, never considered Mr. Dalton's separately-made arguments
    for dismissal.      We believe that the district court should pass on the
    merits of Mr. Dalton's arguments in the first instance.           See Moses v. Union
    Pacific R.R., 
    64 F.3d 413
    , 419 (8th Cir. 1995).
    The hearing officer made other factual findings that supported his
    conclusion that Pathfinder discharged Mr. Alexander for medical reasons and
    for good cause, namely, that Pathfinder did not harass Ms. Alexander to
    make her remove her son from Pathfinder, and that the discharge was not in
    retaliation for Ms. Alexander's complaints about her son's care.                     We
    believe that these findings preclude further proceedings on Mr. Alexander's
    state-law claim for the intentional infliction of emotional distress.               The
    hearing officer,
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    however, made no findings that would appear at this point to preclude his
    claims of invasion of privacy, assault, battery, and negligence.               The
    district court must therefore address these state law claims in some
    fashion on remand.
    III.
    The complaint sets forth a retaliation claim brought by Ms. Alexander
    individually.    It appears that she took an active role in her son's case
    and it is reasonable to treat her as a party to the administrative
    adjudication as a "sponsor" of Mr. Alexander.      See Ark. Code Ann. § 20-10-
    1005(a)(2)(A).    She raised and litigated her retaliation argument in an
    effort to prove that Mr. Alexander's discharge was improper, and the
    hearing officer made findings of fact and conclusions of law rejecting her
    allegations.     Hence, issue preclusion prevents her from litigating her
    retaliation claim.
    IV.
    Ms. Alexander argues that the district court impermissibly granted
    summary judgment when it dismissed the lawsuit on the basis of the
    administrative decision.         We find that the district court's use of
    materials outside the pleadings in resolving to dismiss the complaint,
    without converting the matter to summary judgment, was harmless error
    because   appellant   had   an    adequate   opportunity   to   respond   to   the
    contemplated dismissal, and the existence of the administrative decision
    was not disputed and it was part of the record.      See Dorothy J. v. Little
    Rock School Dist., 
    7 F.3d 729
    , 733 n. 3 (8th Cir. 1993); Gibb v. Scott, 
    958 F.2d 814
    , 816 (8th Cir. 1994).       For the foregoing reasons, we affirm the
    judgment of the district court in part, reverse it in part, and remand for
    further proceedings consistent with this opinion.
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    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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