MEMMER v MARIN COUNTY COURTS, 9716880
U.S. 9th Circuit Court of Appeals
MEMMER v MARIN COUNTY COURTS
9716880
CARIN MEMMER,No. 97-16880Plaintiff-Appellant,D.C. No.v.CV-96-01686-DLJMARIN COUNTY COURTS,OPINIONDefendant-Appellee.
Appeal from the United States District Courtfor the Northern District of CaliforniaD. Lowell Jensen, District Judge, PresidingArgued and SubmittedNovember 3, 1998--San Francisco, CaliforniaFiled March 3, 1999Before: Arthur L. Alarcon, Diarmuid F. O'Scannlain andFerdinand F. Fernandez, Circuit Judges.Opinion by Judge O'Scannlain
_____________________________COUNSEL Mitchell J. Green (argued), Law Offices of Mitchell J. Green,San Francisco, California, for the plaintiff-appellant.Patrick K. Faulkner, John F. Govi (argued), Deputy CountyCounsel, San Rafael, California, for the defendant-appellee.
_____________________________OPINION O'SCANNLAIN, Circuit Judge:We must decide whether a municipal court system providedreasonable accommodation, within the meaning of the Ameri-cans with Disabilities Act, to a visually impaired litigant dur-ing her trial on a civil claim.ICarin Memmer is visually impaired. She cannot read hand-written or typewritten documents, cannot identify documentsin front of her, cannot evaluate trial exhibits, and cannot seeclearly generally even with corrective lenses.In 1996, Memmer's landlord brought a state-law unlawfuldetainer action in Marin County Municipal Court ("MunicipalCourt") against her. One week before the scheduled evictiontrial, Memmer filed a "Request for Accommodations by Per-sons with Disabilities" with the Municipal Court, asking thatshe be provided with a bi-directional human reader of herchoice to provide visual cues, to read written materials to her,to take notes, to describe documents and trial exhibits, and todeliver opening and closing arguments.Pursuant to such request, the trial judge presiding overMemmer's case held a hearing on April 12, but decided tocontinue the proceeding until the trial. At that time, there wereno other pre-trial hearings scheduled.1 On the day set for trial,April 16, Memmer failed to appear, and a default was enteredagainst her. Two days later, she filed a motion to vacate herdefault, which was granted. Memmer reiterated her requestfor accommodation, which was also granted; the court accord-ingly ordered that a reader be made available to her at trial.Memmer's eviction case was actually tried on April 22.Pursuant to the court order of April 16, Anthony Calderon, aSpanish-language interpreter who worked with the court andwas familiar with Municipal Court proceedings, was presentto assist Memmer. Memmer, however, refused Calderon'sassistance. She did so without talking with Calderon or other-wise attempting to determine if Calderon would be a suitablereader. Memmer requested instead that another person, San-ford Gossman, be allowed to serve as a reader. The presidingtrial judge granted her request, but limited Gossman's partici-pation to interpreting and describing visual cues, taking notes,and reading written materials to Memmer. The presidingjudge placed these limitations on Gossman because he hadobserved Gossman, in previous cases, to be disruptive in thecourtroom. Under such conditions, the trial ensued before ajury, which returned a verdict for Memmer's landlord.Memmer and Gossman filed an action in forma pauperis inthe United States District Court for the Northern District ofCalifornia against the Marin County Courts ("MCC"), all ofthe individual judges involved with Memmer's eviction pro-ceeding, MCC's Americans with Disabilities Act ("ADA")coordinator, and the attorney representing Memmer's land-lord, alleging that these defendants had violated their rightsunder the ADA, under the California Disabled Persons Act,and under California Rule of Court 989. Although Memmerand Gossman asserted a variety of claims, their principal con-tentions were that MCC failed to adopt adequate proceduresfor dealing with accommodation requests and that MCC'soffer of a Spanish-language interpreter to assist Memmer didnot constitute a reasonable accommodation. In their com-plaint, Memmer and Gossman sought injunctive relief andmonetary damages.The district court dismissed much of their complaint at theoutset of the case, first concluding that Gossman lacked stand-ing and accordingly dismissing him from the suit. 2 It then dis-missed the claims against the judges, finding them shielded byjudicial immunity. Finally, the district court dismissed theclaims against the landlord's attorney and against MCC'sADA coordinator for failure to state a claim for which reliefcould be granted.The district court concluded that Memmer did state a cog-nizable claim against MCC for failing reasonably to accom-modate her disability and accordingly ordered service ofprocess against MCC. After answering, MCC filed a summaryjudgment motion. Memmer thereafter filed a motion for par-tial summary judgment on the issue of liability. Concludingthat MCC's offer of a reader who was also a Spanish-language interpreter to assist Memmer was a reasonableaccommodation, the district court granted MCC's motion forsummary judgment and denied Memmer's cross-motion.Memmer now appeals from the grant of summary judgmentagainst her.3 Although she had asserted discrimination claimsunder both the ADA and under the California Disabled Per-sons Act at trial, Memmer raises only her ADA claims onappeal. Nor does she appeal the dismissal of any of the indi-vidual defendants.IIMemmer presents two separate claims under Title II of theADA. See 42 U.S.C. S 12132. First, she argues that MCCfailed reasonably to accommodate her visual impairment. Sec-ond, she argues that MCC's policy of referring accommoda-tion requests to the presiding trial judge violated 28 C.F.R.S 35.105. We address these claims in turn.A[1] Section 12132 provides: Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to dis- crimination by any such entity.42 U.S.C. S 12132. Although section 12132 itself does notexpressly provide for reasonable accommodations, Congressentrusted the Attorney General with the authority to promul-gate regulations defining the scope of the prohibitions setforth in Title II, see id. S 12134(a). One such implementingregulation is 28 C.F.R. S 35.130(b)(7), which provides that: A public entity shall make reasonable modifica- tions in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, pro- gram, or activity.28 C.F.R. S 35.130(b)(7). Thus, the key inquiry here iswhether MCC discriminated against Memmer by failing tooffer her reasonable accommodation for her disability.[2] Before turning to the merits of Memmer's discrimina-tion claim, we must address two preliminary points. First,because Memmer bears the burden of establishing an ADAviolation, she must establish the existence of specific reason-able accommodations that MCC failed to provide. SeeWeinreich v. Los Angeles County Metro. Transp. Auth. , 114F.3d 976, 978 (9th Cir. 1997), cert. denied, 118 S. Ct. 423(1997); see also Barnett v. U.S. Air, Inc., 157 F.3d 744, 748-49 (9th Cir. 1998) (holding that the plaintiff bears the burdenof establishing the availability of a reasonable accommoda-tion in cases brought under Title I of the ADA). Second,because Memmer's suit is for monetary damages, she mustshow intentional discrimination. See Ferguson v. City ofPhoenix, 157 F.3d 668, 674-75 (9th Cir. 1998); Bartlett v.New York State Board of Law Examiners, 156 F.3d 321, 331(2d Cir. 1998), petition for cert. filed, (U.S. Feb. 8, 1999) (No.98-1285); Tyler v. City of Manhattan, 118 F.3d 1400 (8th Cir.1997). Although Ferguson left unresolved the question ofwhether intentional discrimination can be established only byproving discriminatory animus, or whether deliberate indiffer-ence is sufficient, see, e.g., Bartlett , 156 F.3d at 331 (holdingthat deliberate indifference is sufficient), Ferguson made clearthat a plaintiff at least must establish deliberate indifferenceto recover monetary damages under Title II of the ADA. SeeFerguson, 157 F.3d at 675.1Memmer first argues that MCC's failure to provide anyaccommodation during pre-trial proceedings constituted dis-crimination in violation of the ADA.[3] The regulation governing reasonable accommodations,28 C.F.R. S 35.130(b)(7), requires that accommodations beprovided only "when the modifications are necessary to avoiddiscrimination on the basis of disability." It is clear from therecord, however, that Memmer's visual disability did not dis-advantage her in any way during pre-trial proceedings. In herrequest for accommodations, Memmer sought assistance withactivities such as examining trial exhibits and reading docu-ments. None of the pre-trial hearings involved activities withwhich Memmer needed assistance. Because Memmer was notdisadvantaged in any way by her disability, it logically fol-lows that no accommodations during the pre-trial stage wererequired.[4] Even assuming that there were accommodations avail-able that would have somehow assisted Memmer in her pre-trial proceedings, there is no evidence of the discriminatoryintent necessary for Memmer to recover monetary damages.See Ferguson, 157 F.3d at 674-75.2Memmer claims next that MCC discriminated against herduring the trial itself, because its offer of a Spanish-languageinterpreter to assist her with the trial was not a reasonableaccommodation.Memmer relies heavily on our decision in Duffy v.Riveland, 98 F.3d 447 (9th Cir. 1996). In that case, a deafprisoner was offered a Department of Corrections employeeas a sign-language interpreter in a prison disciplinary proceed-ing. The proposed interpreter "had no formal training in signlanguage"; she was "not a professional interpreter"; and shehad "learned how to sign through her relationship with herparents." Id. at 456. Given those facts, we concluded that amaterial question of fact existed as to the reasonableness ofthe accommodation offered. Memmer claims that, just like theinterpreter in Duffy was not sufficient because she was nottrained in assisting deaf people, Calderon was not an adequatereader because he was not specially trained in assisting visu-ally impaired persons.[5] Memmer's disability, however, differs from Duffy's ina crucial respect. Duffy was deaf; Memmer is visuallyimpaired. Accommodating a deaf person requires a specialskill -- the ability to converse in sign language -- not pos-sessed by the ordinary person. Memmer's evidence did notshow that accommodating her required more than a helperwith the ability to observe, to read, and to communicate ver-bally with her. These skills are possessed by the average per-son, and, more importantly, were possessed by Calderon, theSpanish-language interpreter offered by MCC.[6] Because Memmer bears the burden of proof, she mustshow how the accommodations offered by MCC were not rea-sonable. See Weinreich, 114 F.3d at 978 (9th Cir. 1997).Memmer now claims that Calderon did not have the skillsneeded to assist her adequately. It is undisputed, however, thatshe never consulted with Calderon to determine in what waysCalderon could or could not assist her. Thus, Memmer isunable to point out any specific tasks that Gossman -- thereader of her choice -- was better suited to assist her withthan Calderon. Although Calderon is trained in foreign lan-guage interpreting (as distinguished from specific training inassisting visually impaired persons), it does not appear that aspecialized background would have been very helpful.Because Memmer has failed to provide evidence that Calde-ron was a less able or sufficient reader than Gossman, she hasnot carried her burden of showing that the accommodationsoffered by MCC were not reasonable. See Weinreich, 114F.3d at 978.[7] Moreover, allowing Memmer to refuse outright the ser-vices of a court-appointed assistant in favor of one who hadpreviously been deemed a vexatious and disruptive litigantwould require MCC to make "substantial modifications" inthe way it runs its court system. Such a drastic result is simplynot mandated by the ADA. See 28 C.F.R. S 35.130(b)(7);Bercovitch v. Baldwin School, Inc., 133 F.3d 141, 152 (1stCir. 1998).[8] Finally, as previously noted, we have explicitly heldthat monetary damages are not warranted in cases of uninten-tional discrimination. See Ferguson, 157 F.3d at 674-75. Evenassuming that Calderon would not have been able effectivelyto assist Memmer, her failure to produce evidence of discrimi-natory intent on the part of MCC is fatal to her ADA claim.BMemmer's second claim of disability discrimination is thatMCC's procedures for processing accommodation requests donot satisfy the requirements set forth in 28 C.F.R.S 35.105(a),because MCC's current procedures are not exactly the sameas those outlined in a self-evaluation plan that MCC had cre-ated pursuant to 28 C.F.R. S 35.105(a).[9] As discussed above, Congress, in 42 U.S.C. S 12134(a),specifically provided for the promulgation of regulationsdefining the scope of the prohibitions set forth in Title II. Onesuch regulation, 28 C.F.R. S 35.105(a), requires all publicentities to conduct comprehensive self evaluations to identifyaccess-related deficiencies and to take remedial action to pro-vide full and equivalent participation to disabled persons. Thisregulation provides that: A public entity shall, within one year of the effective date of this part, evaluate its current services, poli- cies, and practices, and the effects thereof, that do not or may not meet the requirements of this part and, to the extent modification of any such services, policies, and practices is required, the public entity shall proceed to make the necessary modifications.28 C.F.R. S 35.105(a). Pursuant to this regulation, MCC con-ducted a self-evaluation of its procedures and developed aself-evaluation plan outlining procedures for dealing withrequests for accommodation.The procedures actually in place at the time of Memmer'strial appear to differ from those outlined in the self-evaluationplan. Under those in place since January 1996, a litigant seek-ing accommodations submits, pursuant to California Rule ofCourt 989.3(c), an official accommodations request form.This form is then referred to the trial judge presiding over thatlitigant's case for a decision on what accommodation to pro-vide. It was pursuant to these procedures that MCC processedMemmer's request for accommodation.[10] Memmer argues that MCC's policy of processingaccommodation requests in this manner, rather than pursuantto the procedures outlined in the self-evaluation plan, violates28 C.F.R. S 35.105. In analyzing this argument, it is appropri-ate to begin with the regulation itself. Nothing in the plainlanguage of 28 C.F.R. S 35.105 forbids MCC from imple-menting procedures other than those described in the self-evaluation plan. See Daniels v. Apfel, 154 F.3d 1129, 1134(10th Cir. 1998) (rejecting interpretation of a regulation thatwas not supported by the plain language of the regulation).Instead, section 35.130 simply requires that a public entitymake "necessary modifications" to ensure that its servicescomply with the ADA. It does not prohibit public entitiesfrom utilizing procedures other than those outlined in the self-evaluation plan.Interpreting section 35.130 as locking public entities intothe procedures outlined in the self-evaluation plan would, infact, ill serve the objectives of the ADA generally. Suppose,for example, that a public school formulates a self-evaluationplan (pursuant to section 35.130) that contains plans for phys-ical improvements aimed at facilitating access by physicallydisabled persons. Suppose further that, after the plan is devel-oped, but before it is implemented, technological develop-ments make an alternative set of renovations both cheaper andmore effective (in terms of providing access to the disabled).Under Memmer's reading of section 35.130, the school wouldbe barred from deviating from the self-evaluation plan, anddoing so would subject it to liability under the ADA. Such aninterpretation of the ADA is simply untenable.[11] Accordingly, we hold that a public entity's decision toadopt procedures other than those outlined in its self-evaluation does not, in itself, constitute a violation of theADA.IIIFinally Memmer contends that California Rule of Court989.3(c)(4) requires that the names of applicants submittingrequests for accommodation be kept confidential. Accordingto Memmer, the fact that she had filed a request for accommo-dation was disclosed in open court on various occasions.Memmer, however, has not provided any case law or othersupport for the proposition that California intended to createa private right of action for violations of court rules, see gen-erally Moradi-Shalal v. Fireman's Fund Ins. Co., 46 Cal.3d287, 299 - 300 (Cal. 1988) (discussing when implied rights ofaction will be found under California law), and we have foundno cases so holding. Moreover, there is no evidence here thatMCC intentionally violated any court rule. Thus, summaryjudgment was appropriately granted on this claim. 4AFFIRMED.
___________________________FOOTNOTES 1 Later on April 12, Memmer moved for a continuance of her evictiontrial. After a hearing on April 15, Memmer's motion was denied.2 Gossman did not appeal his dismissal.3 In her complaint, Memmer requested "injunctive relief, enjoining[MCC] from maintaining a discriminatory and retaliatory course of con-duct against them, and affirmatively requiring [sic] all the defendants frominterfering with the peaceful exercise by Memmer and Gossman, [sic]their rights under both federal and state law." Memmer's complaintfocuses on MCC's actions with regard to her eviction suit, but she appearsto have been evicted over two years ago. There is no evidence in therecord that there remains an actual controversy. Her claims for injunctiverelief are therefore moot. See Williams v. Alioto, 549 F.2d 136, 143 - 44(9th Cir. 1977).Injunctive relief, however, is not all that Memmer seeks. Instead, shealso is suing for monetary damages (both compensatory and punitive),which are recoverable under the ADA in certain circumstances even wherethe discriminatory conduct has ceased. Accordingly, although her requestfor an injunction is moot, her suit for damages is not.4 MCC asserts judicial immunity as an alternative ground for affirmingthe grant of summary judgment in its favor. In light of our analysis ofMemmer's ADA claims, we need not address MCC's alternative argu-ment.Finally, MCC requests that the court, on its own motion, award it dam-ages and fees pursuant to 42 U.S.C. S 1988(b), Ninth Circuit Rule 28-2.3,and Federal Rule of Appellate Procedure 38. In our discretion, we declineto do so. the end