Bartolomeo v. Plymouth County

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1621
BARBARA A. BARTOLOMEO AND JOHN R. BARTOLOMEO,
Plaintiffs, Appellants,
v.
PLYMOUTH COUNTY HOUSE OF CORRECTIONS, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Barbara A. Bartolomeo and John R. Bartolomeo on brief pro
se.
Joseph E. Kelleher and Kraus & Hummel LLP on brief for
appellees.
August 16, 2000
Per Curiam. Between January and December 1998,
John Bartolomeo was confined at the Plymouth County
Correctional Facility (PCCF) in Massachusetts. He received
regular visits there from his parents, Barbara and Charles
Bartolomeo, in a first-floor visiting area. On one occasion
in June 1998, however, Barbara was unable to visit him
because of an unusual set of circumstances: John had been
placed in administrative segregation due to pending
disciplinary charges and, by rule, could only receive
visitors in a second-floor visiting area; Barbara allegedly
suffered from a malady that prevented her from using the
elevator; and PCCF officials refused to allow use of a
connecting stairway because of security concerns.
Mother and son responded with the instant pro se
action for injunctive relief and damages. As here relevant,
Barbara alleged a violation of her rights under Title II of
the Americans with Disabilities Act (ADA), 42 U.S.C. §§
12131-34, and section 504 of the Rehabilitation Act, 29
U.S.C. § 794, while John claimed an equal protection
violation. The district court, taking note of John's
intervening transfer to another facility, dismissed all
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requests for injunctive relief without prejudice on the
ground of mootness; that ruling has not been challenged on
appeal. As to the requests for damages, the court ended up
granting summary judgment for defendants--rejecting John's
claim on the merits and jettisoning Barbara's claims on
qualified immunity grounds. This appeal followed.
We shall assume arguendo that Barbara's appeal is
properly before us. A jurisdictional issue arises because,
in a joint request, both plaintiffs moved under Fed. R. App.
P. 4(a)(5) for an extension of time to appeal, and the
district court allowed John's request only. The most likely
basis for treating the two differently appears to be that
John had signed the motion while Barbara had not. Under
Fed. R. Civ. P. 11(a), "[a]n unsigned paper shall be
stricken unless omission of the signature is corrected
promptly after being called to the attention of the attorney
or party." Here, the omission of Barbara's signature was
not called to her attention, and she was appearing pro se.
In these circumstances, we are disinclined to dispose of her
appeal on jurisdictional grounds.
On the merits, however, the arguments advanced on
appeal by both plaintiffs prove clearly unavailing.
Barbara's principal contention is that the district court
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erred in rejecting her claims on qualified immunity grounds.
As neither side has disputed the point, we shall assume
without deciding that individuals may be subject to personal
liability under Title II of the ADA and the Rehabilitation
Act. But see, e.g., Walker v. Snyder, 213 F.3d 344, 346 (7th
Cir. 2000); Alsbrook v. City of Maumelle, 184 F.3d 999, 1005
n.8 (8th Cir. 1999) (en banc), cert. dismissed, 120 S. Ct.
1265 (2000).1 Even if so, we agree with the district court
that, under the circumstances with which the defendants were
confronted, a reasonable official would not have understood
that the actions taken violated a clearly established right.
See, e.g., Bilida v. McCleod, 211 F.3d 166, 174 (1st Cir.
2000) (delineating qualified immunity test).2
1 Neither below, in their untimely motion for
reconsideration, nor on appeal have plaintiffs pursued their
claims against the institutional defendants (or against the
personal defendants in their official capacities). Being
willing to afford only so much latitude to pro se litigants, we
consider the claims abandoned. We add, without deciding the
point, that their prospects of ultimately recovering damages
appeared unpromising. See, e.g., Powers v. MJB Acquis. Corp.,
184 F.3d 1147, 1153 (10th Cir. 1999) (requiring showing of
intentional discrimination in the form of "deliberate
indifference" in order to obtain damages in this context).
2 While various courts have applied qualified immunity in
the ADA context, see, e.g., Bartell v. Lohiser, 215 F.3d 550,
___, 2000 WL 726482, at *10 n.1 (6 th Cir. 2000); Gorman v.
Bartch, 152 F.3d 907, 914-16 (8th Cir. 1998), one has briefly
mused about the propriety of doing so, see Walker, 213 F.3d at
346. As plaintiffs have raised no such objection, we do not
address the matter.
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To be sure, just seventeen days before the events
in question here, the Supreme Court concluded that Title II
of the ADA applied in the prison context. See Pennsylvania
Dep't of Corrections v. Yeskey, 524 U.S. 206 (1998). Courts
have reached the same conclusion concerning the
Rehabilitation Act. See, e.g., Stanley v. Litscher, 213
F.3d 340, 343 (7 th Cir. 2000). And defendants have not
disputed that prison visitation policies constitute
"services, programs, or activities" within the meaning of 42
U.S.C. § 12132. See, e.g., Crawford v. Indiana Dep't of
Corrections, 115 F.3d 481, 483-84 (7 th Cir. 1997) (noting
concession by state on that point); Niece v. Fitzner, 922 F.
Supp. 1208, 1217 (E.D. Mich. 1996).
Nonetheless, the incident in question was an
isolated one, arising out of an apparent misunderstanding,
and resulting in just a single failed visit out of many
successful ones. It does not appear that Barbara was
deprived of "meaningful access" to the visitation program.
Theriault v. Flynn, 162 F.3d 46, 48 (1st Cir. 1998) (quoting
Alexander v. Choate, 469 U.S. 287, 301 (1985)); cf., e.g.,
Spurlock v. Simmons, 88 F. Supp. 2d 1189, 1195-96 (D. Kan.
2000) (holding that restricting hearing-impaired inmate to
two thirty-minute calls per week on special telephone
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amounted to meaningful access). The provision of elevator
service ordinarily avoids rather than creates problems of
physical access. Barbara, it is true, had furnished
defendants with a physician's note explaining that her
anxiety disorder and claustrophobia rendered her
"particularly ... unable to tolerate riding in elevators."
Yet defendants' initial belief--that this meant simply that
assistance would be required (they offered the use of a
wheelchair)--was not an indefensible one. And once that
misimpression was dispelled, their refusal to make a
special, on-the-spot accommodation was not unreasonable--
especially with a throng of visitors milling about and with
Barbara (as she concedes) becoming increasingly
obstreperous. For these reasons, we conclude that qualified
immunity was properly invoked.3
Plaintiffs' remaining arguments require little
comment. John's equal protection claim can be summarily
rejected for the reason that he was not similarly situated
to his fellow inmates (all of whose visitors, it can be
3 From a broader standpoint, we also note that, in the wake
of Yeskey, the manner in which the ADA is to be applied in the
prison context and the appropriate level of judicial scrutiny
are matters that remain unsettled. See, e.g., Onishea v.
Hopper, 171 F.3d 1289, 1299-1301 (11th Cir. 1999) (en banc),
cert. denied, 120 S. Ct. 931 (2000).
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inferred, were able to use the elevator). Both plaintiffs
complain that the district court acted prematurely in
entertaining the summary judgment motion without affording
adequate time for discovery. Yet they never moved for
relief under Fed. R. Civ. P. 56(f) or otherwise voiced any
such objection below.4 The issue has thus been waived, see,
e.g., de la Torre v. Continental Ins. Co., 15 F.3d 12, 15
(1st Cir. 1994), and we find no plain error. Finally, they
object that a motion to amend their complaint (so as to add
an additional PCCF employee as defendant) was never
addressed. Since an allowance of the motion would not have
affected the disposition of the case, any error in this
regard was harmless.
Affirmed.
4Their summary judgment opposition contained only the
single closing comment that the case "must proceed to the
discovery phase," while their reconsideration motion made no
reference to the matter at all.
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