Number range CHAPTER**IN THE UNITED STATES DISTRICT COURT**

**FOR THE DISTRICT OF PUERTO RICO**

RAMON BADILLO SANTIAGO, M.D. \*

PRO SE \*

\*

Plaintiff \*

\*

vs. \*

\*

HON. JOSE ANDREU GARCIA, in his \* **CIVIL NO.** 98-1993 (SEC)

official capacity as Administrador \*

del Sistema Judicial, LCDA. \*

MERCEDES M. BAUERMEISTER, in her \*

official capacity as Directora \* Jury Trial Demanded

de la Administracion de Tribunales \*

de Puerto Rico, WILFREDO GIRAU \*

TOLEDO, in his official capacity \*

as Director de la Autoridad de \*

Edificios Públicos \*

\*

COMMONWEALTH OF PUERTO RICO, \*

represented by the Secretary of \*

Justice of Puerto Rico, JOSE \*

FUENTES AGOSTINI, included in his \*

official capacity, \*

\*

JUDGE JULIO BERRIOS JIMENEZ, in \*

his official and personal \*

capacity, \*

\*

Defendants \*

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\*

**UNITED STATES' BRIEF AS\
AMICUS CURIAE**

TO THE HONORABLE COURT:

COMES NOW the United States of America through undersigned counsel, and
very respectfully alleges and prays as follows:

# I. INTRODUCTION

This action is brought by Mr. Ramón Badillo Santiago against Hon. Jose
Andreu Garcia in his official capacity as Administrator of the Judicial
System; Ms. Mercedes M. Bauermeister, in her official capacity as
Director of the Courts Administration of Puerto Rico; Mr. Wilfredo Girau
Toledo, in his official capacity as Director of the Public Buildings
Authority; the Commonwealth of Puerto Rico represented by Jose Fuentes
Agostini, included in his official capacity as Secretary of Justice of
Puerto Rico; and Judge Julio Berrios Jimenez, in his official and
personal capacity.

The plaintiff alleges a violation of title II of the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12131 [et
seq]{.underline}. Defendants have moved to dismiss on several grounds.
The United States as [amicus curiae]{.underline} urges the Court to deny
the motions as to plaintiff's ADA claim, because contrary to the basis
on which the Defendants seek such dismissal:

\(1\) Plaintiff has pleaded a [prima facie]{.underline} case under title
II of the ADA.[^1]

\(2\) Congress has specifically abrogated the States' eleventh amendment
immunity for suits brought pursuant to the ADA;

\(3\) Under title II of the ADA the defendants can be sued in their
official capacities**;** and

\(4\) Judges do not enjoy absolute immunity for acts that are
administrative rather than judicial in nature.

**II. FACTS AND PROCEDURAL HISTORY**

Plaintiff Ramón Badillo Santiago has a hearing impairment. He was a
defendant in a civil case at the Superior Court, First Instance Court,
Bayamón Part on September 2, 3, and 8, 1997. At the trial, the plaintiff
repeatedly requested an amplification device, in order to hear and
participate in the proceedings. The plaintiff also submitted to the
state court an audiometric evaluation by an audiologist, demonstrating
his need for this auxiliary aid. Instead of granting the request, the
judge ordered the Court Officer to instruct the plaintiff to use a
wheeled secretary's chair and authorized him to move around the room
during the proceedings to get closer to whoever was speaking at the
time. After initially complying with the Court's order, the plaintiff
discontinued the practice and declined to testify in his own trial.

Plaintiff filed the captioned case [pro se.]{.underline} All the
defendants have moved for dismissal under various grounds. The United
States hereby opposes dismissal on several grounds.

**III. ARGUMENT**

A. Plaintiff Has Alleged a Prima Facie Case Under Title II\
of the ADA

Despite Defendants' contentions, there is no question that plaintiff has
sufficiently pleaded a [prima]{.underline} [facie]{.underline} case of
discrimination under title II of the ADA. A complaint should not be
dismissed for failure to state a claim unless it appears beyond doubt
that there is no set of facts that plaintiff could prove which would
entitle him to relief. [Conley v. Gibson]{.underline}, 355 U.S. 41, 46,
78 S. Ct. 99, 102 (1957); Fed. R. Civ. P. 12(b)(6). Further, [pro
se]{.underline} complaints must be liberally construed and should not be
held to the same high standard as formal complaints filed by attorneys.
[Estelle v. Gamble]{.underline}, 429 U.S. 97, 105, 97 S. Ct. 285, 291
(1976); [Haines v. Kerner]{.underline}, 404 U.S. 519, 520, 92 S. Ct.
594, 595 (1972); [Ferranti v. Moran]{.underline}, 618 F.2d 888, 889
(1^st^ Cir. 1980) . It is under this more lenient standard that
plaintiff's complaint should be read.

Title II of the ADA provides that "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 discrimination by any
such entity." 42 U.S.C. § 12132. The statute defines the term "qualified
individual with a disability" as "an individual with a disability who,
with or without \...the provision of auxiliary aids and services, meets
the essential eligibility requirements for the receipt of services or
the participation in programs or activities provided by a public
entity." See 42 U.S.C. § 12131(2). "Auxiliary aids and services" are
defined as including a wide range of methods to provide effective
communication with people who are deaf or hard of hearing. The ADA lists
as examples of auxiliary aids and services, "qualified interpreters or
other effective methods of making aurally delivered materials available
to individuals with hearing impairments," 42 U.S.C. § 12102(1)(A); these
include "assistive listening devices," such as the device requested by
plaintiff. See 28 C.F.R. § 35.104.

The ADA implementing regulation imposes on a public entity the duty to
provide appropriate auxiliary aids. 28 C.F.R. § 35.160. This section
establishes the following:

> A public entity shall furnish appropriate auxiliary aids and services
> where necessary to afford an individual with a disability an equal
> opportunity to participate in, and enjoy the benefits of, a service,
> program or activity conducted by a public entity.

In the case at bar, plaintiff easily satisfies the [prima
facie]{.underline} elements for his cause of action under title II of
the ADA. Plaintiff has averred that he has a hearing impairment, that he
requested an auxiliary aid to participate in his trial, and that the
secretary's chair provided by the court was an ineffective aid.
Complaint ¶¶ 8, 9. Read liberally, as the complaint must be, plaintiff
has sufficiently alleged that he is an "individual with a disability"
under title II. See 42 U.S.C. § 12102(2). In addition, plaintiff has
clearly alleged that he was "qualified," because he has stated that he
was a defendant in a case before Judge Berríos from which it follows
that plaintiff met "the essential eligibility requirements for the
receipt of services or the participation in" his trial. 28 C.F.R. §
35.104. Finally, plaintiff has alleged that he was discriminated against
by defendants. He alleged that he requested and was denied an assistive
listening device, and was rendered unable to effectively participate in
his own trial. Complaint ¶¶ 8, 9. Plaintiff has therefore alleged that
he was "excluded from participation in or denied the benefits of"
defendants' program. 42 U.S.C. § 12132; 28 C.F.R. § 35.160. Thus,
plaintiff has pleaded his [prima facie]{.underline} case.

**B. Congress has expressly abrogated the states\' eleventh amendment
immunity from private suits brought under the ADA**

Defendants Jose Fuentes Agostini, the Commonwealth of Puerto Rico and
Judge Julio Berríos Jimenez, all alleged that the captioned case is
barred as against them under the eleventh amendment. Based on the
language of the ADA, defendants' argument is without merit.

The eleventh amendment,[^2] as interpreted by the Supreme Court,
embodies a general constitutional principle of state sovereign immunity
in federal court actions. The amendment, therefore, generally precludes
a federal court from rendering judgment against an unconsenting state in
favor of a citizen of the state. [Hans v. Louisiana]{.underline}, 134
U.S. 1, 15 (1890). The Commonwealth of Puerto Rico enjoys full benefits
of the eleventh

amendment. [Fernandez v. Chardón]{.underline}, 681 F.2d 42, 59 (1st Cir.
1982); [Ezratty v. Commonwealth of P.R.]{.underline}, 648 F.2d 770, 776,
n.7 (1st Cir. 1981).

However, the eleventh amendment does not bar suits for damages under
title II of the ADA. The Supreme Court has held that Congress may
abrogate the eleventh amendment without the states\' consent when acting
pursuant to its plenary powers, so long as it does so explicitly.
[Seminole Tribe of Florida v. Florida]{.underline}, 166 S. Ct. 1114,
1123 (1996). [See e.g.]{.underline}, [Fitzpatrick v.
Bitzer]{.underline}, 427 U.S. 445, 456 (1976) (Congress has the
authority to override states\' immunity when legislating pursuant to
section 5 of the fourteenth amendment); [Atascadero State Hosp. v.
Scanlon]{.underline}, 473 U.S. 234, 242 (1985) (Congress must make \"its
intention unmistakably clear in the language of the statute\").

In the ADA, Congress expressly abrogated the States\' eleventh amendment
immunity. Title V, which contains provisions generally applicable to all
other titles of the ADA, provides:

> A State shall not be immune under the eleventh amendment to the
> Constitution of the United States from an action in Federal or State
> court of competent jurisdiction for a violation of this Act. In any
> action against a State for a violation of the requirements of this
> Act, remedies (including remedies both at law and in equity) are
> available for such a violation to the same extent as such remedies are
> available for such a violation in an action against any public or
> private entity other than a State.

Section 502 of the ADA, 42 U.S.C. § 12202 (parenthetical remark in the
original). [See also]{.underline} 28 C.F.R. § 35.178; S. Rep. No. 116,
101st Cong., 1st Sess., at 184 (1989); and House Comm. on Educ. and
Labor, 101st Cong., 2d Sess., Americans with Disabilities Act of 1990,
at 138 (1990), [reprinted in]{.underline} 1990 U.S.C.C.A.N. at 421;
[Niece v. Fitzner]{.underline}, 941 F.Supp 1497, 1501 (E.D. Michigan
1996); [Coolbaugh v. Louisiana]{.underline}, 136 F.3d 430, 438 (5th Cir.
1998); [cert. denied]{.underline}, 119 S. Ct. 58 (1998). Thus, the ADA
explicitly abrogates eleventh amendment immunity, and defendants' motion
on this point must be denied.

**C. The Defendants Can Be Sued in Their Official Capacities**

Defendants Garcia's and Bauermeister's motion to dismiss argues that
they cannot be sued in their individual capacities under the ADA. Their
argument is misplaced, because the plaintiff's complaint clearly names
them only in their official, not individual, capacities. The plaintiff
has named all of the defendants in their official capacities only except
Judge Berríos, whom is being sued both in his official and individual
capacities.[^3]

Not only have defendants Garcia and Bauermeister misread plaintiff's
complaint, they also cite entirely inapplicable case law. All cases
these defendants cite involve charges of discrimination in employment,
which is governed by different definitions and standards than is
discrimination by a public entity against its constituents. See 28
C.F.R. § 35.140.[^4] Because all of those cases turn on the definition
of "employer" under a different title of the ADA, they have no bearing
on the captioned case.

# D. Judge Berríos is not Immune from Suit

Given the abrogation of state immunity by the ADA, claims can be brought
against a state judge in his/her individual or official capacity under
the ADA but for the doctrine of judicial immunity. It has been
established that this doctrine generally affords judges immunity from
damage suits. See [Stump v. Sparkman]{.underline}, 435 U.S. 349, 356
(1978). However, the Supreme Court has held that judges can be held
liable for damages[^5] in suits where actions which are administrative
in nature are challenged. See [Forrester v. White]{.underline}, 484 U.S.
219, 224-225 (1988). The Court in [Forrester]{.underline} refused to
attach judicial immunity to a judge's decision to fire a court employee,
because the act was not judicial in nature. The Court held that truly
judicial acts must be distinguished from the administrative, legislative
or executive functions that judges may occasionally be assigned to
perform. According to the Court, it is the nature of the function
performed \-- adjudication \-- rather than the identity of the actor who
performed it \-- a judge \-- that determines whether absolute immunity
attaches to the act.[^6] Any time an action taken by a judge is not an
adjudication between parties, it is less likely that the act \[will be
found to be\] a judicial one. [Cameron v. Seitz]{.underline}, 38 F.3d
264, 271 (6th Cir. 1994).

In [Morrison v. Lipscomb]{.underline}, 877 F.2d 463 (6th Cir. 1989), a
Chief Judge's moratorium on writs of restitution during two holiday
weeks was challenged by a landlord unable to redeem his property from a
tenant for those two weeks. The Court of Appeals for the Sixth Circuit
held that the moratorium, though performed by a judge, was not a
judicial act entitled to absolute immunity. [Id.]{.underline} at 466.
The court noted that the act was not judicial in nature, because the
legislature could have easily issued the moratorium as well.
[Id.]{.underline}

The [Morrison]{.underline} Court's reasoning has a direct bearing on the
captioned case. The processing of auxiliary aid requests can easily be,
and often is, a function performed by court administrators rather than
judges. The ADA requires that necessary auxiliary aids and services be
provided by courts to all participants in the judicial system, including
parties, witnesses, jurors, and spectators. 28 C.F.R. § 35.160; \[TA
manual cite\]. In its enforcement of the ADA, the United States has seen
that courts establish system-wide administrative policies and leave the
task of processing individual requests to system-wide administrators
rather than individual judges. This court should not dismiss Judge
Berríos from the case before plaintiff has an opportunity to prove that
the Judge acted administratively, not judicially, when refusing
plaintiff's auxiliary aids.

Judge Berríos does respond in his official capacity for any injunctive
relief the plaintiff is requesting and also responds in his individual
capacity to the extent the acts in controversy are administrative in
nature and not protected by the absolute immunity doctrine.[^7]

# IV. CONCLUSION

For the foregoing reasons, the United States respectfully requests that
this court deny defendants' motions to dismiss on the issues discussed
in this memorandum.

I HEREBY CERTIFY that on this date a true copy of the foregoing has been
mailed to **Alfredo Fernandez Martinez, Esq.,** Union Plaza Building,
Suite 316, 416 Ponce De León Avenue, San Juan, Puerto Rico 00918;
**Marie L. Cortés Cortés, Esq.**, Federal Litigation Division,
Department of Justice, P.O. Box 9020192, San Juan, Puerto Rico
00902-0192; **Harry R. Segarra Arroyo, Esq.**, Flamingo Professional
Building, Ponce De León Avenue, Suite 306, San Juan, Puerto Rico 00907;
**José S. Dapena Thompson, Esq.**, #32 Isabel Street, Ponce, Puerto Rico
00733; and **Mr. Ramón Badillo**, **Santiago** 10918 Waterbury Court,
Orlando, Fl. 32821.

RESPECTFULLY SUBMITTED, in San Juan, Puerto Rico, this 10th day of
March, 1999.

> GUILLERMO GIL
>
> UNITED STATES ATTORNEY
>
> LILLIAM E. MENDOZA TORO
>
> Assistant U.S. Attorney
>
> U.S.D.C. No. 205211
>
> Room 452, Federal Building
>
> 150 Carlos Chardón Avenue
>
> Hato Rey, Puerto Rico 00918
>
> Tel. (787) 766-5656
>
> Fax (787) 766-5193

BILL LANN LEE, ESQ.

Acting Assistant Attorney General

Civil Rights Division

JOHN WODATCH, ESQ.

IRENE BONIEN, ESQ.

BEBE NOVICH, ESQ.

Attorneys

[^1]: ^?^ The United States takes no position on defendants' other
    claims.

[^2]: ^?^ The eleventh amendment provides, \"The Judicial power of the
    United States shall not be construed to extend to any suit in law or
    equity, commenced or prosecuted against one of the United States by
    Citizens of another State, or by Citizens or Subjects of any Foreign
    State.\"

[^3]: ^?^ These defendants do not dispute the well-settled premise that
    they may be named in their official capacities, as an alternative
    method of suing the entity for which they are representative.
    [See]{.underline} [Hafer v. Melo]{.underline}, 502 U.S. 21, 112 S.
    Ct. 358, 116 L. Ed.2d 301 (1991); [Gorman v. Bartch]{.underline},
    152 F.3d 907, 916 (8th Cir. 1998).

[^4]: ^?^ Disability-based discrimination in employment is governed by
    the definitions and regulatory standards of title I of the ADA. 28
    C.F.R. § 35.140; 42 U.S.C. § 12101 [et]{.underline}
    [seq.]{.underline}; 29 C.F.R. pt. 1630. Requirements governing the
    activities of public entities other than employment are detailed in
    the Department of Justice's regulation under title II, 28 C.F.R. pt.
    35.

[^5]: ^?^ It is undisputed that judicial immunity does not extend to
    injunctive suits. [Pulliam v. Allen]{.underline}, 466 U.S. 522
    (1984); [Livingston v. Guice]{.underline}, 1995 U.S. App. Lexis
    39238 (copy attached.)

[^6]: ^?^ Defendant Judge Berríos admits in his motion that "\[a\] judge
    loses protection of absolute immunity if his or her acts occur when
    there is clear absence of jurisdiction or [when said act does not
    constitute a judicial act]{.underline}". (See docket 8- Judge
    Berríos Motion to Dismiss at page 8)(emphasis added).

[^7]: ^?^ Of course, Judge Jimenez may still be entitled to raise a
    "qualified immunity" defense. See [Gorman v. Bartch]{.underline},
    supra, at page 914-915 (8th Cir. 1998).