United States Court of Appeals
For the First Circuit
No. 07-2025
M.M.R.-Z., a minor child, by and through his parents;
MARIO A. RAMÍREZ-SENDA, on his own behalf, and on behalf of his
minor child, M.M.R.-Z.; HAYDEÉ ZAYAS-ROSARIO, on her own behalf,
and on behalf of her minor child, M.M.R.-Z.; CARMEN HAYDEÉ ROSARIO-
RIVERA, on her own behalf,
Plaintiffs, Appellees,
v.
COMMONWEALTH OF PUERTO RICO; RAFAEL ARAGUNDE, Secretary of
Education, in his official capacity; ELIZABETH ORTEGA, Regional
Supervisor of Special Education, in her official and individual
capacities,
Defendants, Appellants,
EDGAR RIVERA-LUGO, Special Education Teacher, in his official and
individual capacities; AIDA E. RIVERA, School Principal, in her
official and individual capacities; SONIA ROSARIO, Auxiliary
Secretary of Special Education, in her official and individual
capacities; ESCUELA DE LA COMUNIDAD CANEJAS,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille Vélez-Rivé, U.S. Magistrate Judge]
Before
Boudin, Chief Judge,
Torruella, Circuit Judge,
and Selya, Senior Circuit Judge.
Luis A. Rodríguez-Muñoz with whom Hon. Roberto Sánchez-Ramos,
Secretary of Justice, Hon. Salvador Antonetti-Stutts, Solicitor
General, Vivian González, Deputy Secretary for Litigation, Eileen
Landrón-Guardiola, Eduardo A. Vera-Ramírez and Landrón & Vera, LLP
were on brief for defendants, appellants.
Nora Vargas-Acosta with whom Wilma E. Reverón-Collazo was on
brief for appellees.
June 5, 2008
BOUDIN, Chief Judge. Plaintiff ("Mario"1)--a minor who
suffers from cerebral palsy among other disabilities--received
homebound educational services from the Puerto Rico Department of
Education. In September 2001, Mario's grandmother began to suspect
that he was being physically and sexually abused by his teacher,
Edgar Rivera-Lugo. After further investigation, Mario's family filed
a complaint with the police. Rivera-Lugo was arrested and, following
a bench trial, was found guilty of misdemeanor aggravated assault and
institutional abuse.
Mario, together with his parents and grandmother, then
filed suit in federal district court based on the abuse he suffered
and the alleged deprivation of educational services in the year-long
period following Rivera-Lugo's termination. The defendants named
were Rivera-Lugo in his official and individual capacities; Elizabeth
Ortega, regional supervisor of special education, in her official and
individual capacities; the Commonwealth Secretary of Education in his
official capacity; and the Commonwealth of Puerto Rico.
Although the complaint is not crystal clear as to which
claims were asserted against which defendants, it did identify as
bases for relief Title II of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12132 (2000); section 504 of the Rehabilitation
Act, 29 U.S.C. § 794 (2000); Title IX of the Education Amendments of
1
The child, age eight at the time of the incidents, is referred
to in the briefs by his initials; we use one of his given names in
this decision.
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1972, 20 U.S.C §§ 1681-88 (2000); section 1983, 42 U.S.C. § 1983; and
various provisions of Puerto Rico law. The complaint sought
compensatory damages of $5 million, punitive damages against each
defendant and injunctive relief.
Following various motions and orders,2 defendants Ortega,
the Secretary of Education, and the Commonwealth of Puerto Rico
sought summary judgment on the federal claims. They argued that they
were unaware of Rivera-Lugo's abusive behavior and that when they
learned of it they took immediate action to remove him.
Alternatively, they argued that they are shielded by qualified
immunity (as to Ortega in her individual capacity) or sovereign
immunity (for the Commonwealth and the defendants sued in their
official capacities).
The magistrate judge, presiding with the consent of the
parties, granted summary judgment in part, finding that Rivera-Lugo's
supervisors did not participate in or act recklessly with regard to
Rivera-Lugo's misconduct. However, the magistrate judge found that
material disputes of fact remained regarding defendants' actions
following Rivera-Lugo's termination, primarily claims that the
defendants had retaliated against Mario for complaining to the
2
The Commonwealth initially sought dismissal on sovereign
immunity grounds and ultimately obtained dismissal only of section
1983 claims on this ground. Plaintiffs moved for summary judgment
against Rivera-Lugo, arguing that his criminal conviction established
his civil liability; the district court granted the motion as to
plaintiffs' physical abuse claims, but denied it as to the sexual
abuse claims.
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police; and the court denied defendants' immunity defenses as to such
claims. The abuse claims therefore remain pending only against
Rivera-Lugo.
Defendants other than Rivera-Lugo now appeal, invoking our
jurisdiction to review on an interlocutory basis a district court's
denial of qualified and sovereign immunity defenses. Torres v.
Puerto Rico, 485 F.3d 5, 8-9 (1st Cir. 2007). On appeal we review
legal rulings de novo. Asociacion De Subscripcion Conjunta Del
Seguro De Responsabilidad Obligatorio v. Galarza, 484 F.3d 1, 22 (1st
Cir. 2007). The qualified immunity and sovereign immunity claims
present quite different issues.
The qualified immunity claim is relevant only to Ortega
insofar as she was sued for damages in her individual capacity.
Qualified immunity is not available to the Commonwealth,
Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 705 (1st Cir.
1993), nor to the Secretary of Education because he was sued only in
his official capacity, and qualified immunity does not apply to
official capacity claims, usually aimed at injunctive relief based on
Ex parte Young, 209 U.S. 123, 159-60 (1908). See Nereida-Gonzalez,
990 F.2d at 705.
Plaintiffs' brief on appeal says that the only damages
claim asserted against Ortega was under section 1983; and the
gravamen of this claim after the summary judgment ruling appears to
be that Ortega retaliated against plaintiffs in violation of their
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first amendment rights by denying Mario educational services after
his family complained to the police. This would arguably be a
legitimate claim under section 1983, if it could be factually
supported, Powell v. Alexander, 391 F.3d 1, 16-17 (1st Cir. 2004);
and such a claim was preserved (although not emphasized) by the
complaint.3
In addition to the first amendment claim, the magistrate
judge also deemed preserved against Ortega a separate claim based on
the same denial of services after Rivera-Lugo's termination. This
appears to be based on the theory that the denial of services was
"discriminatory"--possibly on an equal protection theory. We can
find no reference to any such claim in the complaint or in
plaintiffs' opposition to summary judgment. We conclude that it was
not presented and so think it must be disregarded.
Turning, then, to the retaliation claim against Ortega,
the evidentiary basis for such a claim is invisible to us. Although
much time passed after Rivera-Lugo was arrested before Mario got new
adequate home services, the defendants' motion for summary judgment
3
Section 1983 cannot be used as a vehicle for ADA or other
statutory claims that provide their own frameworks for damages. See
Fitzgerald v. Barnstable Sch. Comm., 504 F.3d 165, 178-79 (1st Cir.
2007), petition for cert. filed, No. 07-1125 (Mar. 3, 2008) (no
section 1983 action against school official premised on violation of
Title IX); A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 803-06 (3d
Cir. 2007) (no section 1983 action against official for violation of
Rehabilitation Act); Holbrook v. City of Alpharetta, 112 F.3d 1522,
1531 (11th Cir. 1997) (no section 1983 action against official for
violation of ADA or Rehabilitation Act).
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pointed to substantial evidence in the record developed in the
discovery process indicating that resource problems and bureaucratic
tangle were the explanation for the admittedly long delay.
In opposing summary judgment on the retaliation claim,
the plaintiffs baldly asserted that the delay in furnishing services
was based on retaliatory animus but without citing any evidence in
the record to support such an assertion. And although the magistrate
judge discussed the motion for summary judgment on the retaliation
claim, her discussion contains no reference to any such evidence.
Her decision merely states that the plaintiffs' claim of retaliation
raises a disputed issue of material fact.
Under the case law, an interlocutory appeal is available
to review denials of qualified immunity at the summary judgment stage
only if based upon an error of law of a kind other than a dispute
about the adequacy of evidence. Johnson v. Jones, 515 U.S. 304, 317-
18 (1995); Rodriguez-Rodriguez v. Ortiz-Velez, 391 F.3d 36, 40 (1st
Cir. 2004). The restriction is purely prudential, being designed to
avoid the weighing of the evidence at the interlocutory stage.
Here, defendants do not dispute that under clearly
established law, retaliation could give rise to a first amendment
claim remediable under section 1983; the only apparent basis for the
denial seems to be the court's perception of a factual dispute,
namely, whether there was enough evidence of a retaliatory motive to
survive summary judgment. Since the qualified immunity denial does
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not turn on a legal issue, under Johnson we arguably have no
authority to overturn the ruling on interlocutory review.
Conceivably, Johnson's limitation could be disregarded on
the ground that in denying qualified immunity the magistrate judge
made an error of law in disregarding the need for some evidence of
retaliatory intent for the first amendment claim. Cf. Behrens v.
Pelletier, 516 U.S. 299, 313 (1996). But it would be a stretch to so
construe the magistrate judge's decision. The cleaner course is for
her take a fresh look before permitting a seemingly hopeless
retaliation claim to proceed to trial
We turn now to the defendants' claim that, in addition,
sovereign immunity defeats retaliation claims against the
Commonwealth and the official capacity defendants based on three
other statutes: the ADA, the Rehabilitation Act and Title IX.
Defendants argue that Mario's claim based on delay in providing him
special education services after Rivera-Lugo's departure is
cognizable only under the Individuals with Disabilities Education Act
("IDEA"), 20 U.S.C. § 1415, and that the IDEA does not provide for
the tort-like damages here sought, Nieves-Marquez v. Puerto Rico, 353
F.3d 108, 124 (1st Cir. 2003); alternatively, they argue that
plaintiffs were required to resort to administrative remedies before
pursuing their IDEA-like claim. See 20 U.S.C. § 1415(l).
Neither version of the defendants' theory--preemption or
exhaustion--is a classic sovereign immunity defense. Indeed, the
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plaintiffs say that on interlocutory appeal, we lack jurisdiction to
entertain these arguments. But our earlier decision in Nieves-
Marquez holds that, on an interlocutory appeal from the rejection of
a sovereign immunity defense, the court may entertain certain
arguments about the unavailability of monetary damages based on the
IDEA. 353 F.3d at 123-24.
Nieves-Marquez concluded, partly on technical and partly
on policy grounds, that the substantive IDEA issue--whether it
preempted claims under other statutes--was sufficiently intertwined
with the classic sovereign immunity defense to permit interlocutory
review. Still, Nieves-Marquez limited interlocutory review to an
issue of this kind and we do not read it as extending to a defense
such as failure to exhaust administrative remedies. Id. at 124; see
also Fairley v. Fermaint, 482 F.3d 897, 902-03 (7th Cir. 2007).
Although the IDEA preemption claim is thus before us, it
lacks merit. IDEA itself provides that
[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.
20 U.S.C. § 1415(l). Thus, on its face IDEA does not preclude claims
against the Commonwealth, or the individual defendants, under the
ADA, the Rehabilitation Act or (arguably) Title IX as applied to a
disabled child.
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While we have held that relief under these other statutes
is not available where "[p]laintiffs' case turns entirely on the
rights created by statute in the IDEA," Diaz-Fonseca v. Puerto Rico,
451 F.3d 13, 29 (1st Cir. 2006), here plaintiffs' claim is
"independently available through other sources of law," namely, the
retaliation provisions of the three statutes here invoked.4 These
claims rest on improper retaliatory intent, are by no means mirrors
of the IDEA, and are not within the rationale of Diaz-Fonseca.
In the district court, the defendants did make classic
sovereign immunity arguments, specifically, that the Commonwealth
(and officers sued in their official capacities) were protected under
the Eleventh Amendment. These arguments turned primarily on the
scope of waiver provisions that appear in two of the relevant
statutes and, in the case of the ADA, on the extent of Congress'
power to abrogate. Initially the district court granted defendants'
motion as to the ADA and Rehabilitation Act claims, but because of
intervening changes in governing authority the district court revised
its position.
In the end, the district court found that classic
sovereign immunity did not apply because of the receipt of federal
funds under two of the statutes--the Rehabilitation Act and Title IX-
4
See 42 U.S.C. § 12203(a) (retaliation claim under the ADA); 29
U.S.C. § 794a(a)(2); 34 C.F.R. § 104.61 (incorporating Title VI's
retaliation provision into the Rehabilitation Act); Jackson v.
Birmingham Bd. of Educ., 544 U.S. 167, 171 (2005) (recognizing a
retaliation claim under Title IX).
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-and a direct abrogation by the ADA of state sovereign immunity. The
defendants have not pursued these arguments in this court; the
conclusions are at least colorable; and we need not pursue further
arguments that have not been preserved on appeal.
Insofar as the appeal presents cognizable legal issues on
interlocutory appeal, the judgment of the district court is affirmed.
With regard to issues not appealable under Johnson, the appeal is
dismissed.
It is so ordered.
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