McInnis-Misenor v. Maine Medical Center

United States Court of Appeals
For the First Circuit

No. 02-2086

KATHRYN MCINNIS-MISENOR; BRETT MISENOR,

Plaintiffs, Appellants,

v.

MAINE MEDICAL CENTER,

Defendant, Appellee.

APPEAL FROM THE U.S. DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, District Judge]

Before

Boudin, Chief Judge,

Torruella and Lynch, Circuit Judges.

Deirdre M. Smith, with whom was Drummond Woodsum & MacMahon on
the brief for appellants.

William J. Kayatta, Jr., with whom were Margaret Coughlin
LePage, Joanne H. Pearson and Pierce Atwood on the brief for
appellee.

February 11, 2003
 LYNCH, Circuit Judge. Kathryn McInnis-Misenor, age 43,

suffers from juvenile rheumatoid arthritis and uses a wheelchair.

She and her husband are attempting to have a second child, but she

is not yet pregnant. Anticipating that she will become pregnant,

they brought suit in federal court in October 2001. The complaint,

as amended in March 2002, alleged that the Maine Medical Center

("MMC") was in violation of the architectural barrier provisions of

Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C.

§ 12182 (2000), and the Maine Human Rights Act, Me. Rev. Stat. Ann.

tit. 5, § 4592 (West 2002). They seek an injunction to force MMC

-- the nearest hospital that handles high risk deliveries (as hers

would be) -- to move walls in the Family Center to make the

bathrooms wheelchair-accessible. The Family Center is an after-

birth recovery area of rooms usually used, when available, by newly

delivered mothers. If such rooms are not available, the mothers

remain in the newer Birth Center rooms, in a different wing of MMC,

where the delivery actually takes place.

McInnis-Misenor has reason for concern about her access

to the Family Center. She gave birth to her first child at MMC in

November 1999. At that time, MMC spent $5,300 to reconfigure a

private room in the Birth Center to make it available to her. Due

to complications associated with her giving birth, she was unable

to transfer to the Family Center and remained in the Birth Center

for the duration of her recovery. Even if she had not suffered

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those complications, moving her to the Family Center was not a

viable option because no room in that wing had toilet and shower

facilities configured to be wheelchair-accessible.

In April 2000, McInnis-Misenor filed a complaint with the

Maine Human Rights Commission alleging violations of the Maine

Human Rights Act, based on her November 1999 experience. The

Commission investigated and issued a report, which we shall refer

to later, and which the district court considered. Among the claims

made to the Commission was that MMC failed to remove architectural

barriers in the Family Center.

A magistrate judge, acting on MMC's Rule 12(b)(6) motion,

recommended that the action be dismissed because the plaintiffs did

not at present have standing to bring their claims. McInnis-

Misenor v. Me. Med. Ctr., 211 F. Supp. 2d 256, 257 (D. Me. 2002).

The district judge agreed and dismissed the action, without

prejudice, on July 30, 2002. Plaintiffs appeal.

I.

Our review of the decision to dismiss for lack of

standing is de novo. Mangual v. Rotger-Sabat, No. 02-1669, 2003

U.S. App. LEXIS 857, at *14 (1st Cir. Jan. 21, 2003).

Normally on a Rule 12(b)(6) motion to dismiss, only the

complaint is reviewed. However, where standing is at issue, it is

within the trial court's power to allow or to require the plaintiff

to provide by affidavit or amended complaint "further

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particularized allegations of fact deemed supportive of plaintiff's

standing." Warth v. Seldin, 422 U.S. 490, 501 (1975). Here the

district court also considered the Commission Report.1

The party invoking federal jurisdiction bears the burden

to establish standing. Bennett v. Spear, 520 U.S. 154, 167-68

(1997). The plaintiffs initially argue that the district court

erred in not taking all factual inferences from the complaint in

their favor, as is required on a Rule 12(b)(6) motion. The

argument is misplaced. We and the district court both have assumed

it to be true that McInnis-Misenor is disabled, that plaintiffs are

attempting to have another child, that they will use MMC (a place

of public accommodation) for any delivery, and that at present the

Family Center cannot accommodate her. But Rule 12(b)(6) does not

require we make the inferences necessary to establish that there is

federal jurisdiction.

II.

A. Standing: Constitutional and Prudential

Federal courts are confined by Article III of the

Constitution to deciding only actual cases or controversies. Allen

v. Wright, 468 U.S. 737, 750 (1984). Federal courts can only

decide a "live grievance." Am. Postal Workers Union v. Frank, 968

1
The Commission Report is an official public record and
for that reason could be considered by the court in deciding a Rule
(12)(b)(6) motion. See Alternative Energy, Inc. v. St. Paul Fire
& Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001).

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F.2d 1373, 1374 (1st Cir. 1992) (quoting Golden v. Zwickler, 394

U.S. 103, 110 (1969)). Standing is thus a threshold question in

every case, requiring the court to determine "whether the plaintiff

has 'alleged such a personal stake in the outcome of the

controversy' as to warrant [] invocation of federal-court

jurisdiction." See Warth, 422 U.S. at 498-99 (quoting Baker v.

Carr, 369 U.S. 186, 204 (1962)). The constitutional standing

inquiry has three elements. A litigant bears the burden of showing

"that he personally has suffered some actual or threatened injury

as a result of the putatively illegal conduct of the defendant, and

that the injury fairly can be traced to the challenged action and

is likely to be redressed by a favorable decision." See Valley

Forge Christian Coll. v. Ams. United for Separation of Church &

State, Inc., 454 U.S. 464, 472 (1982) (internal quotations

omitted). As this court has noted, "Article III standing is

largely -- albeit not entirely -- a practical jurisprudence." N.H.

Hemp Council, Inc. v. Marshall, 203 F.3d 1, 4 (1st Cir. 2000)

(citing 13 C.A. Wright, A.R. Miller & E.H. Cooper, Federal Practice

& Procedure § 3531.1, at 352, 355-56, 362-63 (2d ed. 1984)).

The plaintiffs' claim here involves a threat of future

injury.2 The parties dispute the degree of threat presented by

2
While plaintiff pursues a state law claim for damages
arising from her 1999 hospitalization, the ADA precludes her from
seeking damages in architectural barrier claims unless the Attorney
General assumes the case. 42 U.S.C. § 12188(b). Further, as a
factual matter, a claim based on the 1999 events suffers from a

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these facts to the plaintiffs' legal interests. Plaintiffs must

show that the threatened injury is impending and concrete, see

Valley Forge, 454 U.S. at 472, sufficient to constitute "injury in

fact." There must be some immediacy or imminence to the threatened

injury. See Los Angeles v. Lyons, 461 U.S. 95, 101-02 (1983); see

also Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)(quoting Lyons,

461 U.S. at 101-02).

The standing inquiry "involves both constitutional

limitations on federal-court jurisdiction and prudential

limitations on its exercise." Warth, 422 U.S. at 498; see also

Barrows v. Jackson, 346 U.S. 249, 255-56 (1953) (describing Court's

"complementary rule of self-restraint for its own governance" that

exists alongside constitutional restriction on jurisdiction).

Federal courts have identified a number of prudential concerns

regarding the proper exercise of federal jurisdiction. Three of

these areas are well-established: (1) the complaint must "fall

within the zone of interests protected by the law invoked"; (2) the

plaintiff "must assert his own legal rights and interests, and

cannot rest his claim to relief on the legal rights or interests of

third parties"; and (3) the suit must present more than "abstract

questions of wide public significance which amount to generalized

grievances, pervasively shared and most appropriately addressed in

causation problem: she was too sick to move to the Family Center
in any case. As a result, it is only the prospect of future injury
which is at issue here.

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the representative branches." N.H. Right to Life Political Action

Comm. v. Gardner, 99 F.3d 8, 15 (1st Cir. 1996) (quoting Allen, 468

U.S. at 751; Warth, 422 U.S. at 499; Valley Forge, 454 U.S. at

475); see also Adams v. Watson, 10 F.3d 915, 918 n.7 (1st Cir.

1993); United States v. AVX Corp., 962 F.2d 108, 114 (1st Cir.

1992).

Prudential standing concerns, unlike constitutional ones,

can be abrogated by an act of Congress. "Congress may grant an

express right of action to persons who otherwise would be barred by

prudential standing rules." Warth, 422 U.S. at 501. We start with

the language of the ADA. The enforcement provisions of Title III

of the ADA are set forth in § 308, which provides:

The remedies and procedures set forth in section 204(a)
of the Civil Rights Act of 1964 (42 U.S.C. 2000a-3(a))
are the remedies and procedures this title provides to
any person who is being subjected to discrimination on
the basis of disability in violation of this title or who
has reasonable grounds for believing that such person is
about to be subjected to discrimination in violation of
section 303. Nothing in this section shall require a
person with a disability to engage in a futile gesture if
such person has actual notice that a person or
organization covered by this title does not intend to
comply with its provisions.

42 U.S.C. § 12188(a)(1). McInnis-Misenor is not "being subjected

to discrimination," so her claim must rest on whether she "has

reasonable grounds for believing [she] is about to be subjected to

discrimination." The statutory language "about to be subjected to

discrimination" dovetails with the usual prudential analysis as to

whether McInnis-Misenor's claims are too contingent and premature.

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 McInnis-Misenor cites some ADA cases to us, all factually

distinguishable. This is not, for example, a case in which the

existence of architectural barriers is the only reason the ADA

plaintiff has not returned for services. E.g., Parr v. L&L Drive-

Inn Rest., 96 F. Supp. 2d 1065, 1079-80 (D. Hi. 2000) (finding

standing for a plaintiff prevented from using fast food chain

restaurant due to various architectural barriers because of his

sincere intent to return as evidenced by his past patronage and

taste for the chain's food). The ADA does not permit private

plaintiffs to bring claims as private attorneys general to

vindicate other people's injuries.

The statutory requirement that plaintiff must have

reasonable grounds to believe she "is about to be subjected to

discrimination" does not, in our view, displace the normal

background prudential standing limitations. See Bennett, 520 U.S.

at 163 ("Congress legislates against the background of our

prudential standing doctrine, which applies unless it is expressly

negated."); cf. Linda R.S. v. Richard D., 410 U.S. 614, 617 n.3

(1973) (noting that while Congress may not confer jurisdiction to

render advisory opinions, Congress does have the power to enact

statutes expanding standing through the creation of new legal

rights).

B. Ripeness: Constitutional and Prudential

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 In general, standing and ripeness inquiries overlap. See

13A Wright, Miller & Cooper, supra, § 3531.12, at 51 ("The most

direct connections [among justiciability doctrines] run between

standing and ripeness."); see also Warth, 422 U.S. at 499 n.10

("The standing question thus bears close affinity to questions of

ripeness -- whether the harm asserted has matured sufficiently to

warrant judicial intervention . . . ."). The overlap is most

apparent in cases that deny standing because an anticipated injury

is too remote, for example. 13A Wright, Miller & Cooper, supra, §

3531.12, at 51. Ripeness, standing, and mootness3 are closely

linked:

Ripeness and mootness easily could be seen as the time
dimensions of standing. Each assumes that an asserted
injury would be adequate; ripeness then asks whether an
injury that has not yet happened is sufficiently likely
to happen, and mootness asks whether an injury that has
happened is too far beyond a useful remedy.

Id. at 50. Ripeness, however, can be thought of as focusing on the

"when" of litigation, as opposed to the "who." See E. Chemerinsky,

Federal Jurisdiction § 2.4.1, at 114 (3d ed. 1999). Even if

3
While mootness in general is irrelevant to the case at
hand -- as McInnis-Misenor complains of future injuries, not past
ones -- an interest protected by one aspect of mootness analysis
might be thought to be pertinent here: the "capable of repetition,
yet evading review" exception. See S. Pac. Terminal Co. v. ICC,
219 U.S. 498, 515 (1911). Because some injuries occur and are over
so quickly that they will always be moot before federal litigation
is complete, such injuries are deemed an exception to the ordinary
mootness doctrine. See E. Chemerinsky, Federal Jurisdiction §
2.5.3, at 132 (3d ed. 1999).

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plaintiffs were the appropriate "who," the question of "when"

remains.

The test to be applied in ripeness analysis is whether

"there is a substantial controversy, between parties having adverse

legal interests, of sufficient immediacy and reality to warrant the

issuance of a declaratory judgment." Lake Carriers' Ass'n v.

MacMullan, 406 U.S. 498, 506 (1972). The ripeness doctrine seeks

"to prevent the courts, through avoidance of premature

adjudication, from entangling themselves in abstract

disagreements." Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967).

Determining ripeness involves a dual inquiry: evaluation of "both

the fitness of the issues for judicial decision and the hardship to

the parties of withholding court consideration." Id. at 149. Both

prongs of the test must be satisfied, although a strong showing on

one may compensate for a weak one on the other. See Ernst & Young

v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995).

Like standing, ripeness has both constitutional and prudential

elements. See Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 57

n.18 (1993); 13A Wright, Miller & Cooper, supra, § 3532.1, at 118.

In the fitness inquiry, both constitutional and

prudential concerns operate, with prudential concerns focusing on

the policy of judicial restraint from unnecessary decisions. The

fitness inquiry "typically involves subsidiary queries concerning

finality, definiteness, and the extent to which resolution of the

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challenge depends on facts that may not yet be sufficiently

developed." Stern v. U.S. Dist. Court, 214 F.3d 4, 10 (1st Cir.

2000) (quoting Ernst & Young, 45 F.3d at 535). "The critical

question concerning fitness for review is whether the claim

involves uncertain and contingent events that may not occur as

anticipated or may not occur at all." Ernst & Young, 45 F.3d at

536 (quoting Mass. Ass'n of Afro-Am. Police, Inc. v. Boston Police

Dep't, 973 F.2d 18, 20 (1st Cir. 1992)). The fact that an event

has not occurred can be counterbalanced in this analysis by the

fact that a case turns on legal issues "not likely to be

significantly affected by further factual development." Ernst &

Young, 45 F.3d at 536.

The second prong -- hardship -- is entirely prudential.

The hardship prong evaluates "the extent to which withholding

judgment will impose hardship -- an inquiry that typically turns

upon whether the challenged action creates a 'direct and immediate'

dilemma for the parties." Stern, 214 F.3d at 10 (quoting Abbott

Labs., 387 U.S. at 152). The greater the hardship, the more likely

a court will be to find ripeness. Ernst & Young, 45 F.3d at 536.

This inquiry encompasses the question of whether plaintiff is

suffering any present injury from a future contemplated event. See

Reg'l Rail Reorganiz. Act Cases, 419 U.S. 102, 143 n.29 (1974); 1

L. Tribe, American Constitutional Law § 3-10, at 337 (3d ed. 2000);

see also Larson v. Valente, 456 U.S. 228, 242-43 (1982) (assessing

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under standing both the injury to the church from compliance with

a challenged registration statute and the burden on the state of

demonstrating that the church is not a religious organization).

III.

We consider the constitutional standing issue to be a

close one. Plaintiffs here are better situated than those in Lujan

v. Defenders of Wildlife, 504 U.S. 555, 564 (1992), who argued the

injury could some day occur, or the plaintiff in Lyons, 461 U.S. at

98, who argued that, having been once placed in a choke hold by

police when arrested, he might well be again. Within the Article

III standing cases, there is considerable language about not

recognizing standing where "hypothetical," "speculative," or

"conjectural" injury is at issue. See, e.g., Lujan, 504 U.S. at

560; Lyons, 461 U.S. at 101-02. Calling McInnis-Misenor's possible

injuries 'hypothetical' is, in a sense, inaccurate; it is clear

already what the nature of the claim is, the contours of the

threatened injury, that the injury would be traced to challenged

action, and that the injury is redressable by a court. See Valley

Forge, 454 U.S. at 471.

This is not a situation of a litigant "pressing solely

abstract concerns founded on ill-defined facts, creating a danger

that a judicial pronouncement would constitute a prohibited

'advisory opinion.'" 1 Tribe, supra, § 3-14, at 388. Plaintiffs'

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concern is not solely abstract, given her experiences at MMC in

1999; nor are the facts ill-defined.

Nor is the standing issue in this case clearly resolved

by the precedent set by the cases relied upon by MMC that reject

claims to standing to challenge restrictions on abortion based on

potential pregnancy. See Roe v. Wade, 410 U.S. 113, 121 (1973);

Abele v. Markle, 452 F.2d 1121, 1124-25 (2d Cir. 1971); Crossen v.

Breckenridge, 446 F.2d 833, 839 (6th Cir. 1971); Akron Ctr. for

Reproductive Health v. Rosen, 633 F. Supp. 1123, 1128 (N.D. Ohio

1986). There is an important difference in the level of imminence

between the risk of an unhoped-for and actively avoided pregnancy

(which might or might not lead to seeking an abortion) and an

actively sought-after and planned-for pregnancy. It is, however,

also true that the time frame to obtain an abortion is shorter. We

decline to embrace a per se rule barring all claims to standing

based on potential pregnancy whatever the nature of the cause of

action. Given the difficulty of predicting all the possible claims

that might arise in the context of pregnancy, we cannot say that

standing can never be based on potential pregnancy.

In the end, we do not decide the more difficult question

of whether constitutional standing is present, because we think the

case may be resolved based on the prudential aspects of the

standing and ripeness doctrines. As noted above, ripeness and

standing overlap in many ways; for purposes of analysis here, the

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cases dealing with ripeness present a closer fit. Both analyses

are concerned with fitness for review and hardship.

A. Fitness

In several ways, this is a simple case, and arguably fit

for determination. The legal issues are relatively

straightforward. Plaintiffs' complaint asserts, at paragraphs 22

and 23:

Removal of the barrier in the Family Center to permit use
by Mrs. McInnis-Misenor and other people who use
wheelchairs would be readily achievable for MMC within
the meaning of 42 U.S.C. § 12181(9) and 5 M.R.S.A. § 4592
in light of:
a. The nature and cost of the barrier removal;
b. MMC's overall financial resources, number of
employees and the effect of the barrier
removal on MMC's expenses and resources; and
c. MMC's type of operation.
Unless Defendant removes the barriers in the Family
Center, Plaintiffs and other people who use wheelchairs
will continue to be excluded from the Family Center and
therefore unable to enjoy the goods, services,
facilities, privileges, advantages, and accommodations
provided to non-disabled persons who stay in and use the
Family Center.

The claims and defenses are well-presented by the Commission

Report.

The Commission's Report detailed MMC's position on

whether renovating a room in the Family Center was "readily

achievable" under 42 U.S.C. § 12181(9). The Report outlined MMC's

revenue for the fiscal year ended September 2000, its expenses, and

its capital budget. It specified that the estimated cost of

renovating a patient room and associated bath/shower room was

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$62,000. There would be additional costs from closing that room

while renovations were done. If money was spent on this

renovation, MMC said, it would have to postpone other ADA physical

barrier removals, such as a wheelchair ramp, or cut back elsewhere.

MMC also noted that it is a relatively rare occurrence to have a

wheelchair-using patient give birth, and there was not another such

patient between November 1999 and March 2001. MMC took the

position that it would be irrational to spend the money as

plaintiffs desired, as the labor and delivery unit has the lowest

incidence of use by mobility-impaired patients of any of the in-

patient units.4 The facts at issue are limited in number, and

easily discoverable, and this suggests simplicity.

But this simplicity is not enough to create fitness.

Even though the legal issues may be clear, a case may still not be

fit for review:

[T]he question of fitness does not pivot solely on
whether a court is capable of resolving a claim
intelligently, but also involves an assessment of whether
it is appropriate for the court to undertake the task.
Federal courts cannot -- and should not -- spend their
scarce resources on what amounts to shadow boxing. Thus,
if a plaintiff's claim, though predominantly legal in
character, depends on future events that may never come
to pass, or that may not occur in the form forecasted,
then the claim is unripe.

Ernst & Young, 45 F.3d at 537. "[P]remature review not only can

involve judges in deciding issues in a context not sufficiently

4
The Commission found that the Family Center renovations
proposed by plaintiffs were not required by Maine law.

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concrete to allow for focus and intelligent analysis, but it also

can involve them in deciding issues unnecessarily, wasting time and

effort." W.R. Grace & Co. v. United States EPA, 959 F.2d 360, 366

(1st Cir. 1992). Moreover, this is not a situation in which a

decision is "unavoidable," as in Stern. 214 F.3d at 10. Here,

that the future event may never come to pass augurs against a

finding of fitness.

The chain of contingencies lying between the plaintiffs'

current state and their complained-of future injury bolsters that

conclusion. Like the situation in Ernst & Young, the present case

also depends on a chain of contingencies. In Ernst & Young, the

threatened injury was contingent upon a series of eight events

which may or may not come to pass, "a long string of

contingencies," we found, "so long that [Ernst & Young's] assertion

of fitness for judicial review trips over it and falls." 45 F.3d

at 538.

Similarly, the present case is one in which the

threatened injury is contingent on several events which may or may

not happen. First -- as the magistrate judge recognized -- the

keystone is that McInnis-Misenor may or may not become pregnant.

Second, there is no way of knowing when, if ever, McInnis-Misenor

will become pregnant, and so there is no way of knowing whether MMC

will by then have Family Center facilities available to mothers in

wheelchairs. Other contingencies include: if she delivers at MMC

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(as is likely) she may or may not be eligible for transfer to the

Family Center; her delivery may pose complications, as last time,

which prevent her transfer; and there may or may not be room

available at the Family Center on the day she would want to

transfer. We do not suggest, however, that these latter conditions

alone would defeat standing.

As in Ernst & Young, "the case that [plaintiffs] argue []

is, at this stage, largely hypothetical, and such cases are seldom

fit for federal judicial review." Id.

B. Hardship

We consider hardship as well. The plaintiffs' weak

showing on the fitness prong means that they must compensate on the

hardship prong. The hardship analysis focuses on 'direct and

immediate' harm. It is unconcerned with wholly contingent harm.

W.R. Grace, 959 F.2d at 367. The plaintiffs contend that they will

suffer hardship from withholding of a decision. They argue that

they will be unable to present their claims in federal court, have

the claims heard, have the court grant them any relief to which they

may be entitled, and have the defendants comply with any remedial

orders, including the employment of necessary professionals such as

carpenters and architects to remove the barrier, all within the

limited term of a pregnancy.

We disagree with the plaintiffs' assessment of hardship.

There is every reason to think the district court could timely

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resolve a case if McInnis-Misenor becomes pregnant and effectuate

a remedy. The legal issues presented by plaintiffs are not

complicated. Many of the facts are already presented, or can be

discovered readily. Discovery will concern the costs of the

architectural changes versus MMC's size and resources, matters all

capable of stipulation. We predict trial, if any, would be short

and discovery brief. MMC represented that litigation and

implementation of any decision could be accomplished within the

needed time. The magistrate judge expressed certainty that the

trial court could achieve speedy resolution and remedy, and there

is no reason to doubt that confidence.5 We do not find sufficient

hardship on the part of the plaintiffs to offset their weak showing

on the fitness prong.

In balancing these alternatives, we also must weigh the

fact that McInnis-Misenor may never become pregnant, or she may not

deliver, or MMC may have a new facility by then and so that the

claimed injury may never come to pass. The conditional nature of

the claims counseled in favor of the district court refusing to

entertain jurisdiction at this point. The prudential reasons alone

provide adequate basis to affirm the order dismissing the ADA claim

without prejudice.

5
For the reasons discussed above, while this case may be
capable of repetition, it would not evade review, because of the
district court's ability to respond to a complaint in a timely
fashion. This distinguishes the situation from that in Roe v.
Wade, 410 U.S. at 125.

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 IV.

We review the dismissal of pendent state law claims for

abuse of discretion. United Mine Workers v. Gibbs, 383 U.S. 715,

728 (1966). The plaintiffs' arguments that the district court

should not have dismissed the pendent state claims are without

merit. When federal claims are dismissed before trial, state claims

are normally dismissed as well. See Camelio v. Am. Fed'n, 137 F.3d

666, 672 (1st Cir. 1998). It is up to plaintiffs whether to file

their state claims, as to past actions of the MMC in the 1999

delivery, in the state courts.

V.

The dismissal of the case is affirmed. Costs are awarded

to MMC.

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