* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 7 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ALLISON CHILDS,

Plaintiff-Appellant,

v. NATIONAL JEWISH CENTER FOR IMMUNOLOGY AND RESPIRATORY MEDICINE and DOES I THROUGH X,

Defendants-Appellees. Case No. 97-1133 (D.C. 97-S-69) (District of Colorado)

ORDER AND JUDGMENT *
Before ANDERSON, HENRY, and BRISCOE, Circuit Judges

.

After examining the briefs and appellate record, th is panel has unanimously determined that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 In response to an order for a more definite stateme nt, Ms. Childs listed

her disabilities as compulsive obsessive disorder, severe anxiety, depression, fearfulness, post-delayed stress syndrome, bronchop ulmonary allergic aspergillosis, severe allergies, scarring on the lu ngs, severe asthma, chronic immune disorder, intravenous immunoglobulins, herne a, colitis, spastic colon, deafness in the left ear, and several forms of arth ritis. See Rec. vol. I, doc. 9, at 2 (Resp. to Order for More Definite Statem., dated Fe b. 18, 1997) [hereinafter “Resp. to Order”]. 2 In response to the district court’s order for a mo re definite statement, Ms. Childs identified “Does I through X” as Dr. D. Hamilos; Louis Necks; Dr. Phillip Colsello; Lynn Taussig, M.D.; Mr. Cotts; Carol King Hawkins; Dr. King; Leonard Perlmuller; Bernard Fullner; and Michael K. Fchonbrun. Resp. to Order at 4. 2 Ms. Allison Childs appeals the district court’s dis missal of her pro se, in forma pauperis action under the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. §§ 12101-12213. We exercise jurisdictionunder 28 U.S.C. § 1291 and affirm in part and remand in part.

I. BACKGROUND Ms. Childs suffers from numerous physical and menta l disorders. 1 She is a patient of the National Jewish Center for Immunolog y and Respiratory Medicine (“NJC”). Ms. Childs brought this action against NJC and agai nst individuals identified in the complaint as “Does I through X.” 2 The district court dismissed Ms. Childs’s complaint under 28 U.S.C. § 1915(e)(2) (B) as frivolous and for failure to state a claim. Ms. Childs appeals.3 II. DISCUSSION

We review the district court’s dismissal for abuse of discretion. See Yellen v. Cooper , 828 F.2d 1471, 1475 (10th Cir. 1987). In her complaint, Ms. Childs alleges two ADA violations — discrimination and ret aliation. We will consider these claims in turn.

A. Discrimination

In her discrimination claim, Ms. Childs alleges that NJC has, at the request of Does I through X, “erect[ed] barriers against . . . her disability.” Rec. vol. I, doc. 3, ¶ 17 (Compl., dated Jan. 15, 1997) [hereina fter “Compl.”]; see also id . ¶ 12. Specifically, Ms. Childs claims that she has b een denied overnight lodging to accommodate her disability. See Compl. ¶¶ 11, 12. Section 202 of the ADA provides that “no qualified individual with a disab ility 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. § 12 132 (1994). The district court dismissed the discrimination cla im on the ground that Ms. Childs had not alleged sufficient facts to show that any defendant was a “public entity” subject to section 202. See Rec. vol. I, doc. 10, at 3-4 (Order of4

Dismissal, dated Mar. 11, 1997). Ms. Childs allege s that NJC’s “status as a public entity is supported by the fact that [it] re ceives public grant monies.” Resp. to Order at 4. However, the statutory defini tion of “public entity” is limited to “any State or local government”; “any department , agency . . . , or other instrumentality of a State . . . or local governmen t”; or “the National Railroad Passenger Corporation [or] any commuter authority.” 42 U.S.C. § 12131(1). As Ms. Childs’s allegation fails to satisfy the defini tion of “public entity,” we affirm the dismissal of the discrimination claim.

B. Retaliation

In her retaliation claim, Ms. Childs alleges that N JC retaliated against her in violation of section 503 of the ADA. See Compl. ¶ 21. Section 503 provides, in pertinent part, that “[n]o person shall discrimi nate against any individual because such individual has opposed any act or prac tice made unlawful by this chapter or because such individual made a charge, t estified, assisted, or participated in any manner in an investigation, pro ceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Ms. Childs claims that NJC “retaliated against [her] by . . . refusing to make and/or keep appoint ments with her.” Compl. ¶ 14. On appeal, Ms. Childs further states: “I am not ge tting good and appro[pr]iate care. Medical care received is almost nill [sic].” Aplt’s Br. at 3.3 We recognize that Ms. Childs’s complaint is not a m odel of clarity. She

does not specify which of her appointments were can celed, or by whom, or when. See Compl. ¶¶ 14-15, 20-22. However, the proper way t o flesh out these details is for the defendants to file a motion for a more d efinite statement, see Fed. R. Civ. P. 12(e), and/or for the defendants to explore these matters during discovery, summary judgment, etc. Dismissal for failure to st ate a claim is appropriate only “if the pleading is so sketchy that it cannot be co nstrued to show a right to relief.” 5A Charles A. Wright & Arthur R. Miller, Federal Pr actice and Procedure § 1376, at 576 (2d ed. 1990). As we explain above, we do n ot believe that Ms. Childs’s complaint rises to such a level of sketchiness. 5 The district court did not, in its order of dismiss al, address the merits of Ms. Childs’s retaliation claim. By failing to do s o before dismissing Ms. Childs’s complaint in its entirety, the district court abuse d its discretion. Cf. McNickle v. Bankers Life & Cas. Co. , 888 F.2d 678, 680 (10th Cir. 1989) (per curiam) ( “A clear example of an abuse of discretion is where th e trial court fails even to consider either an applicable legal standard or the facts upon which the exercise of its discretionary judgment is based.”) (consider ing motion under Fed. R. Civ. P. 60(b)). We are free to “affirm for reasons other than those relied on by the district court, as long as those reasons find support in the record.” Swoboda v. Dubach , 992 F.2d 286, 291 (10th Cir. 1993). However, we di scern no such basis for affirmance here: we cannot conclude, based on the record before us, that Ms. Childs’s retaliation claim is frivolous, fails to s tate a claim, or is otherwise prone to sua sponte dismissal under 28 U.S.C. § 1915(e)(2 )(B). 3 Unlike the anti-4 In her opening brief on appeal, Ms. Childs avers th at section “503 was

wrongfully looked at and considered” by the distric t court. Aplt’s Br. at 4. This statement mischaracterizes the analysis of the dist rict court; as explained above, the district court did not examine section 503 at a ll. Also, Ms. Childs’s statement is contradicted by other parts of her brief, where she argues in favorof section 503 analysis: “[s]ection 503 is the retaliation wh ich I said [NJC] did to me,” and NJC “retaliated against me because of prior ADA complaints.” Id . at 2, 3. As Ms. Childs is proceeding pro se, we must constru e her allegations liberally. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam). Thus, we decline to construe her objection to considerati on of section 503 as an abandonment of her retaliation claim. Ms. Childs’s objection seems to be more of 6 discrimination provision in section 202, the anti-r etaliation provision in section 503 applies to any “person,” not just to public ent ities. 42 U.S.C. § 12203; see also 42 U.S.C. § 12111(7) (defining “person”). Moreove r, the fact that Ms. Childs’s section 202 discrimination claim is invali d does not automatically mean that her section 503 retaliation claim is invalid a s well: Section 503 prohibits not only retaliation that occurs “because [an] individu al has opposed an[] act or practice made unlawful by this chapter,” such as th e discrimination outlawed by section 202. Id . Section 503 also proscribes retaliation that occ urs “because [an] individual [has] made a charge . . . in a[] . . . p roceeding . . . under this chapter,” id ., even if the charge is ultimately found to be wit hout merit. See also Williams v. Chicago Bd. of Educ. , No. 97 C 1063, 1997 WL 467289, at *3 (N.D. Ill. A ug. 13, 1997) (outlining prima facie case for retaliati on). Because Ms. Childs’s retaliation claim appears to be non-frivolous and t o state a claim under section 503, we remand the claim to the district court for further proceedings. 4an unintentional misstatement than an intentional r elinquishment of the retaliation

issue. 7 III. CONCLUSION

For the foregoing reasons, we AFFIRM the district c ourt’s judgment as to Ms. Childs’s discrimination claim, and we REMAND th e retaliation claim for further proceedings. The mandate shall issue forth with. Entered for the Court,

Robert H. Henry Circuit Judge