Lebron v. Commonwealth of Puerto Rico

          United States Court of Appeals
For the First Circuit
No. 13-2078
MARIBEL LEBRÓN; FRANCISCO PORTALES; K.F.P.L. MINOR; CONJUGAL
PARTNERSHIP PORTALES-LEBRÓN,
Plaintiffs, Appellants,
v.
COMMONWEALTH OF PUERTO RICO, represented by Governor Alejandro
García Padilla; DEPARTMENT OF EDUCATION OF PUERTO RICO,
represented by its Secretary, Eduardo Moreno Alonso,
Defendants, Appellees,
COLEGIO DE TALLER INTELIGENCIA EMOCIONAL, INC.; MARLYN MENDEZ;
EDWIN R. CANO; CONJUGAL PARTNERSHIP CANO-MENDEZ; A INSURANCE CO.;
B INSURANCE CO.,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
Before
Thompson, Kayatta, and Barron,
Circuit Judges.
Carlos Rodriguez García, with whom Rodriguez García PSC was on
brief, for appellants.
Rosa Elena Pérez-Agosto, Assistant Solicitor General,
Department of Justice, Office of the Solicitor General, with whom
Margarita Mercado-Echegaray, Solicitor General, Department of
Justice, Office of the Solicitor General, was on brief, for
appellees.
October 20, 2014
THOMPSON, Circuit Judge.           Maribel Lebrón and Francisco
Portales, parents of K.F.P.L. (“the child“), sued the Commonwealth
of Puerto Rico and the Puerto Rico Department of Education (“DOE“)1
under       numerous       state     and     federal    statutes    for      alleged
discrimination and retaliation against their disabled child.                     The
district court dismissed all the claims against the Commonwealth,
and the parents appeal on various grounds.
For the reasons discussed below, we affirm.
I. BACKGROUND
We recite the facts as they are alleged in the complaint.
In    2008,   the   child    was    diagnosed   with   Asperger's
Syndrome, a form of autism that neither party disputes is a
disability.           In anticipation of enrolling the five year old in
school for the first time, the parents registered him with the DOE
in 2008.
Before school started, Lebrón, the child's mother, met
with       the   DOE's    Special    Education      Supervisor   regarding    school
placement.            From the beginning, the parents and the DOE butted
heads about how to satisfy the child's educational needs.                     Lebrón
told the Supervisor in that initial meeting that the child's
psychologist had recommended placement in a group of six or fewer
1
We refer to the appellants collectively as “the parents“ and
the appellees collectively as “the Commonwealth.“
While the parents sued a number of defendants, none of the
others are involved in this appeal. We, therefore, address only
the Commonwealth defendants in this opinion.
-3-
children.    The Supervisor said outright that the DOE would not
follow that recommendation.    Nor would the DOE provide the child
with certain vision therapy Lebrón requested.           Despite these
disagreements, on July 14, 2008, the DOE provided the child his
first Individualized Education Plan (“IEP“)--a requirement for
every disabled public school student.2
For reasons not specifically pleaded, around September
2008, the parents began to search for a school in a different area
of Puerto Rico.   The DOE recommended the parents consider Colegio
Taller de Inteligencia Emocional (“Colegio“), a private school.
Lebrón visited Colegio and met with the owner, Marlyn Mendez.
Lebrón   explained   to   Mendez   the   child's   medical   diagnoses,
treatments, and special education needs, including the importance
of his placement with a small group of children.      Mendez indicated
that she was able to accommodate the child, and the parents decided
to forego public schooling and enroll the child at Colegio.
The parents were pleased with Colegio until 2010.      That
summer, the child began a biomedical treatment that required him to
eat a special diet. Lebrón requested that when the new school year
started, she be permitted to go to the school to give the child his
lunch each day, until he adapted to his new dietary regime.        The
2
It is unclear from the complaint when, exactly, the DOE
completed the first IEP; at one point, the parents allege the IEP
was in place on July 14, 2008, but on the next page allege that the
first IEP was not done until August 28, 2008. The discrepancy is
not material to our outcome.
-4-
school “sternly prohibited“ Lebrón from giving the child his lunch
in the cafeteria, where the other children ate, instead requiring
that she do so in the playroom.             Other problems with the school
(the details of which we need not get into) intensified, and Lebrón
scheduled a meeting with the president of Colegio, Edwin Cano, to
discuss what she considered “discriminatory treatment“ on the part
of Colegio's administration.
Colegio apparently failed to allay the parents' concerns.
Fed   up,   the   parents   brought   their    complaints   to   the   DOE   by
attempting to file an administrative complaint against Colegio.
Maria Melendez, a DOE supervisor, told the parents in a March 8,
2011 meeting that the DOE could not help them because Colegio was
a private school.
Dissatisfied with both Colegio and the DOE, the parents
filed suit in the Puerto Rico District Court on February 29, 2012,
alleging that the defendants3 violated the Fourteenth Amendment;
the Individuals with Disabilities Education Act (“IDEA“), 

20 U.S.C. § 1400

 et seq.; and a number of other federal statutes: (1) 

42 U.S.C. § 1981

; (2) 

42 U.S.C. § 1983

; (3) 

42 U.S.C. § 1988

; (4) the
Americans with Disabilities Act (“ADA“), 

42 U.S.C. § 12101

 et seq.;
(5) Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et
seq.; and (6) the Rehabilitation Act of 1973 (“Rehabilitation
3
In addition to the Commonwealth, the parents sued Colegio,
Mendez, Cano, and the Cano-Mendez conjugal partnership (“the
Colegio defendants“), as well as two unnamed insurance companies.
-5-
Act“), 

29 U.S.C. § 794

.             The complaint also sought relief under
numerous     Puerto    Rico    laws:       Article   2   of    the    Puerto    Rico
Constitution; Articles 1054 and 1802 of the Civil Code of Puerto
Rico; and Law 44 of July 2, 1985, as amended, 

P.R. Laws Ann. tit. 1, § 501

 et seq.4       The parents asked for $500,000 for each of the
three plaintiffs for emotional distress; $500,000 for each of the
three plaintiffs in compensatory damages; $1 million for each of
the three plaintiffs in punitive damages; $500,000 in fees; and
$10,000    in   reimbursement        for    expenses     incurred     for     private
schooling.
The Commonwealth moved to dismiss, pursuant to Fed. R.
Civ. P. 12(b)(6), all the claims against it on May 4, 2012.                         On
June 20, 2012, in a brief, one-paragraph decision, the district
court dismissed all but the IDEA claim, holding that the “IDEA bars
all other claims against the Commonwealth“ and the “IDEA does not
allow claims as to damages against the State.“                    Concerning the
Puerto Rico state law claims specifically, the court held that
those causes of action were “barred under the Eleventh Amendment.“
After    what    the    Commonwealth    describes       as   a   harried
discovery    process,    on    April       10,   2013,   the   parents      moved   to
4
The complaint inconsistently cites various Puerto Rico Civil
Code Article numbers and statutory provisions. Given the nature of
the claims in this case, as well as the parents' briefing, we
deduce that the parents intended to plead claims for relief under
Article 1054 (

P.R. Laws Ann. tit. 31, § 3018

), and Article 1802
(

P.R. Laws Ann. tit. 31, § 5141

), which are negligence statutes.
-6-
voluntarily    withdraw     their   remaining   IDEA   claim   against   the
Commonwealth.    The court allowed that motion, and the Commonwealth
was dismissed from the lawsuit.
On January 16, 2013, the Colegio defendants moved for
judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c).             The
court allowed that motion on May 14, 2013.         The parents thereafter
moved for a reconsideration of the Colegio dismissal.5              In the
motion to reconsider, the parents also asserted (albeit in one
paragraph of a 30-page motion) that they “disagree[d] with the
Court's decision to dismiss the remaining causes of action in favor
of   the   Commonwealth.“      Addressing   that   lone   contention,    the
district court held that because the parents offered “no new
arguments, revelation of clear error, discovery of important, new
facts, or compelling jurisprudence,“ it would not reconsider its
dismissal of the claims against the Commonwealth.
The parents timely appealed, and now here we are.
II. STANDARD OF REVIEW
We review a Rule 12(b)(6) dismissal for failure to state
a claim de novo.    Woods v. Wells Fargo Bank, N.A., 

733 F.3d 349

,
353 (1st Cir. 2013).         Our well-established standard of review
mandates that we “[s]et[] aside any statements that are merely
5
The parents styled the motion as a “Motion to Amend/Correct
Memorandum Opinion,“ but given that neither party seems to dispute
that the motion sought reconsideration, we follow the district
court's lead in treating the motion as one to reconsider.
-7-
conclusory“ and take a complaint's factual allegations as true to
“determine if there exists a plausible claim upon which relief may
be granted.“6       

Id.

     We make reasonable inferences, drawn from the
facts alleged in the complaint, in the pleader's favor.                    Ocasio-
Hernández v. Fortuño-Burset, 

640 F.3d 1

, 12-13 (1st Cir. 2011).
III. DISCUSSION
A. The Federal Claims
To frame our analysis, we first provide some background
on a centerpiece of this lawsuit--the IDEA.
As   we      have    previously    emphasized,    the      IDEA   is   a
“comprehensive statutory scheme“ intended “to ensure that all
children     with      disabilities      have   available     to   them    a   free
appropriate public education.“               Frazier v. Fairhaven Sch. Comm.,

276 F.3d 52

,      58      (1st   Cir.    2002)   (quoting     

20 U.S.C. § 1400

(d)(1)(A)).           To      protect this statutory right, the IDEA
requires public school systems to guarantee disabled children and
their parents certain procedural safeguards, such as a right to an
administrative hearing if a parent disagrees with the school
district's educational plan for a child.              

Id.

In stride with this comprehensive scheme, the IDEA limits
the remedies available to those aggrieved by a school district's
failure to provide a disabled child with a free appropriate public
6
We note that the standard of review articulated in Conley v.
Gibson, 

355 U.S. 41

 (1957), which is relied upon in the parents'
brief, is no longer good law, and has not been for several years.
-8-
education.    For instance, the only monetary damages plaintiffs may
recover for an IDEA claim is reimbursement for expenses they
incurred for private schooling. Díaz-Fonseca v. Puerto Rico, 

451 F.3d 13

, 19 (1st Cir. 2006).
Plaintiffs in the past have tried to get around the
IDEA's limited remedies, as well as its other restrictions, by
suing under other federal statutes, such as § 1983, the ADA, and
the Rehabilitation Act.        But our existing jurisprudence is clear
that “where the underlying claim is one of violation of the IDEA,
plaintiffs may not use § 1983--or any other federal statute for
that matter--in an attempt to evade the limited remedial structure
of the IDEA.“     Id. at 29.
Still, Congress has clarified that the IDEA does not
restrict plaintiffs' right to sue under other statutes, so long as
their cases do not “turn[] entirely on the rights created by
statute in the IDEA.“     Id.    Specifically, the IDEA provides:
[n]othing in this chapter shall be construed
to restrict or limit the rights, procedures,
and remedies available under the Constitution,
the Americans with Disabilities Act of 1990,
title V of the Rehabilitation Act of 1973, or
other Federal laws protecting the rights of
children with disabilities.
M.M.R.-Z. ex rel. Ramírez-Senda v. Puerto Rico, 

528 F.3d 9

, 14 (1st
Cir. 2008) (quoting 

20 U.S.C. § 1415

(l)).      Thus, denying a child a
free appropriate public education on account of his disability
could, for instance, be a valid basis for a claim under either the
-9-
Rehabilitation Act or the ADA, even if the factual basis for those
claims might overlap with that of an IDEA claim.               D.B. ex rel.
Elizabeth B. v. Esposito, 

675 F.3d 26

, 40 (1st Cir. 2012).
Against that backdrop, the parents in the instant case
have argued that the district court erred in dismissing their non-
IDEA claims because their complaint sufficiently stated disability-
based       discrimination   and   retaliation   under   the   ADA   and   the
Rehabilitation Act, both of which “prohibit discrimination against
an otherwise qualified individual based on his or her disability.“7
Calero-Cerezo v. U.S. Dep't of Justice, 

355 F.3d 6

, 19 (1st Cir.
2004).       The Commonwealth disagrees, and urges us to affirm the
district court's dismissal; in the Commonwealth's estimation, the
ADA, Rehabilitation Act, and other federal statutes “cannot be used
to remediate what is essentially a claim seeking remedy under
7
While the parents brought claims under numerous federal
statutes, we focus our analysis on the disability-based
discrimination and retaliation claims asserted under the ADA, the
Rehabilitation Act, and § 1983.      The other claims we can more
quickly dispose of. First, both 

42 U.S.C. § 1981

 and 42 U.S.C. §
2000d prohibit race-based discrimination. The complaint provides
no factual support for such a theory; the only mention of race or
national origin in the complaint is the allegation stating that the
child “is of American nationality, of Caucasian race, and suffers
from Asperger's Syndrome.“ We, therefore, affirm the dismissal of
these claims for inadequate pleading. Finally, the provision of 

42 U.S.C. § 1988

 under which the parents seek relief--subsection (b)--
is merely a vehicle by which the parents could have collected
attorney's fees for a successful § 1983 claim. As discussed below,
we affirm the dismissal of the § 1983 claim, and therefore, §
1988(b) can provide the parents no relief.
-10-
IDEA.“8
As we explain below, we find that regardless of whether
the parents' claims overlay completely with their IDEA claim, the
parents have not sufficiently pleaded either discrimination or
retaliation.   Therefore, dismissal of the ADA, Rehabilitation Act,
and § 1983 claims was proper.
1. The Discrimination and Retaliation Claims
The only facts in the complaint that even reference the
Commonwealth aver that (1) the DOE created the child's IEP in 2008,
and (2) when the parents sought to file an administrative complaint
against Colegio some three years later, the DOE said it “couldn't
do anything since [Colegio] was a private school.“   Neither party
disputes that the parents, on their own accord, abandoned public
schooling and enrolled the child at the private school in 2008.
And neither party disputes that the parents fault Colegio's staff
for treating the child in a discriminatory manner while he was
enrolled there.
Given this set of facts, we had trouble even identifying
from the complaint the parents' discrimination-based theory of
liability against the Commonwealth.    Searching for guidance, we
8
As noted above, the district court held only that the “IDEA
bars all other claims against the Commonwealth“ and that the “IDEA
does not allow claims as to damages against the State.“        The
district court did not elaborate its reasoning any further, and we
interpret the decision to adopt the rationale pressed by the
Commonwealth on appeal.
-11-
tenaciously waded through the sea of scattered, convoluted, and
often irrelevant prose that comprised the parents' 44-page opening
brief.   The puzzle persisted.
So, at oral argument we resolved to ask counsel (multiple
times) to identify even the “flavor“ of the parents' asserted
theory of liability for the non-IDEA claims.       We specifically
asked--“What did the Commonwealth do that's wrong?“
Counsel told us that the non-IDEA claims do not rest on
the child's unmet educational needs.    Rather, counsel urged, they
turn on the Commonwealth's refusal to allow the parents to file a
complaint against Colegio after the parents reported Colegio's
discriminatory “segregation“ of the child and its failure to
accommodate the child's special dietary needs.     The Commonwealth
should have responded to these complaints, counsel argued, because
the government is required to supervise organizations that receive
public grant money.
Accepting the parents' interpretation of their pleading
at face value, we explore whether these theories sufficiently state
a claim for discrimination or retaliation.
First, we are not convinced by the parents' argument that
the DOE should have “supervised“ Colegio simply because Colegio
received federal funds.    The parents provide us with no law or
other reasoning to support the legal proposition that a private
school acts as an agent of a state educational agency solely
-12-
because the school may generally receive public grant money.     “It
is not our job to put flesh on the bare bones of an underdeveloped
argument.“     United States v. Mathur, 

624 F.3d 498

, 508 (1st Cir.
2010) (citation omitted). We consider this argument waived for our
purposes.
More fatal to the parents' case, the pleaded allegations
concerning the Commonwealth do not otherwise sufficiently state a
claim for discrimination or retaliation under the ADA or the
Rehabilitation Act.      The parents alleged that the Commonwealth
engaged in “intentional discrimination“ against the child.        To
state a claim for intentional discrimination under either statute,
the parents need have pleaded that the Commonwealth engaged in some
wrongful action because of the child's disability.         Parker v.
Universidad de Puerto Rico, 

225 F.3d 1

, 5 (1st Cir. 2000); Lesley
v. Hee Man Chie, 

250 F.3d 47

, 52-53 (1st Cir. 2001).   The complaint
misses the mark.    The parents have provided no factual allegations
that would support any inference, let alone a reasonable one, that
the Commonwealth or any of its agents intentionally discriminated
against the child because he was disabled.      Simply alleging in a
conclusory fashion that the defendants engaged in “intentional
discrimination,“ as does the complaint here, is not enough to
satisfy the pleading standard.     Ocasio-Hernández, 640 F.3d at 13.
To establish a prima facie claim for retaliation under
the ADA or the Rehabilitation Act, the parents would have to show
-13-
that they “engaged in protected conduct,“9 were “subjected to an
adverse      action   by    the    defendant,“     and     “there    was   a   causal
connection between the protected conduct and the adverse action.“
Esposito, 

675 F.3d at 41

.          The parents provide no facts that would
allow us to plausibly infer that the DOE's refusal to file an
administrative complaint against Colegio was causally related to
the    parents'    decision       to    complain   about    Colegio's      allegedly
discriminatory behavior, as opposed to the DOE's belief that it
could not take action against a private school.                    See M.M.R.-Z. ex
rel.       Ramírez-Senda,    

528 F.3d at 15

    (noting    that   ADA   and
Rehabilitation Act retaliation claims “rest on improper retaliatory
intent“).      The parents also made no effort in their briefing or at
oral argument to illuminate the rationale they expect us to adopt.
For all of these reasons, we affirm the district court's
dismissal of the parents' ADA and Rehabilitation Act claims. Given
such holding, we further affirm dismissal of the § 1983 claim,10 as
the parents predicated it upon the failed discrimination claims.
2. The Reconsideration
In a last-ditch effort, the parents also argue that the
district court abused its discretion by dismissing their non-IDEA
9
Protected conduct includes advocating for a student's right
to be free from disability-based discrimination. Esposito, 

675 F.3d at 41

.
10
Section 1983 is the statutory vehicle by which plaintiffs
may sue for violations of their constitutional rights.
-14-
claims with prejudice, failing to take into account the “material
facts“ they brought forth after voluntarily withdrawing their IDEA
claim.   See Tell v. Trs. of Dartmouth Coll., 

145 F.3d 417

, 419-20
(1st Cir. 1998).      The parents, however, did not see fit to share
with us what those material facts actually were.         A district court
“exceeds its discretion when it fails to consider a significant
factor in its decisional calculus, if it relies on an improper
factor in computing that calculus, or if it considers all of the
appropriate factors but makes a serious mistake in weighing such
factors.“    Colón Cabrera v. Esso Standard Oil Co. (Puerto Rico),
Inc., 

723 F.3d 82

, 88 (1st Cir. 2013) (quotations omitted).           Given
that the parents' brief directs us to nothing, be it fact or law,
that they brought to the district court's attention, or would
otherwise support a finding that the district court abused its
discretion, we affirm the denial of the reconsideration.
B. The State Law Claims
Finally, the district court also dismissed the Puerto
Rico claims, on the ground that the parents were “barred under the
Eleventh Amendment“ from hauling the Commonwealth into federal
court.      The   parents   argue,   however,   that   the   Commonwealth's
sovereign immunity under the Eleventh Amendment is waived because
Puerto Rico accepts federal funds for disabled students.
Unless a state consents, “a suit in which the State or
one of its agencies or departments is named as the defendant is
-15-
proscribed by the Eleventh Amendment.“           Díaz-Fonseca, 

451 F.3d at 33

 (quotations omitted).       “The Commonwealth of Puerto Rico is
treated as a state for purposes of Eleventh Amendment immunity
analysis.“    

Id.

   “The Commonwealth can waive its immunity in three
ways: (1) by a clear declaration that it intends to submit itself
to the jurisdiction of a federal court . . . ; (2) by consent to or
participation in a federal program for which waiver of immunity is
an express condition; or (3) by affirmative conduct in litigation.“

Id.

 (quotations omitted).
As noted in the parents' brief, we previously held that
Puerto Rico does not have Eleventh Amendment immunity against the
federal IDEA and Rehabilitation Act claims because it accepts
federal funds for those programs.      

Id.

       But that holding relied on
particular statutory language.             See   

id.

   (citing 

20 U.S.C. § 1403

(a), which conditions a state's receiving federal IDEA funds on
consent to suit, and 42 U.S.C. § 2000d–7(a)(1), which provides for
same under the Rehabilitation Act).         This principle does not apply
to Puerto Rico's general negligence statute, 

P.R. Laws Ann. tit. 31, § 5141

.     Díaz-Fonseca,   

451 F.3d at 33

   (“Although   the
Commonwealth has consented to be sued for damages in actions
brought under the Commonwealth general negligence statute, such
consent does not extend to actions filed in any courts but the
Commonwealth's own.“).     Law 104 (

P.R. Laws Ann. tit. 32, § 3077

),
which authorizes certain negligence suits against the Commonwealth
-16-
in state trial courts, “does not extend that waiver to suits filed
in federal court.“11   Díaz-Fonseca, 

451 F.3d at 33

.   And, as far as
we can tell, Law 44 (Puerto Rico's version of the ADA) contains no
statutory waiver of immunity from federal court lawsuits.     All in
all, the parents offer no authority (or reasoning) why sovereign
immunity would not extend to the Puerto Rico causes of action
brought in this case under state law.12   Thus, any argument in this
regard is waived for lack of development, and we affirm the
dismissal of the Puerto Rico claims.
IV. CONCLUSION
For all of the reasons discussed above, we affirm the
district court.
11
As we mentioned above, it is not obvious from the complaint
under which state statutory provisions the parents intended to
plead claims for relief. Regardless of what they had in mind, the
parents have provided no basis for statutory (or other) waiver of
the Commonwealth's sovereign immunity under any state cause of
action.
12
Given the parents' failure to assert otherwise, we assume,
as we have in the past, that the “DOE's Eleventh Amendment immunity
is coextensive with that of the Commonwealth's.“ Díaz-Fonseca, 

451 F.3d at 34

.
-17-