Forestier Fradera v. Municipality of Mayaguez

Decision Date01 March 2006
Docket NumberNo. 05-2238.,05-2238.
Citation440 F.3d 17
CourtU.S. Court of Appeals — First Circuit
PartiesIsrael FORESTIER FRADERA, Plaintiff, Appellant, v. MUNICIPALITY OF MAYAGÜEZ; José Guillermo Rodríguez, in his official capacity as Mayor of Mayagüez; Roberto Pérez Colón, in his official capacity as President of the Municipal Assembly of Mayagüez; Jane Doe; John Doe, Defendants, Appellees, José Guillermo Rodríguez, in his personal capacity; Roberto Pérez Colón, in his personal capacity, Defendants.

Israel Roldán González for appellant.

Vanesa Vicéns Sánchez, with whom Juan Rafael González Muñoz and González Muñoz & Vicéns Sánchez were on brief, for appellees.

Before SELYA, LYNCH, and HOWARD, Circuit Judges.

LYNCH, Circuit Judge.

Israel Forestier Fradera, a municipal assemblyman, filed this lawsuit against the Municipality of Mayagüez and certain municipal officials. He sought compensatory damages, among other relief, for emotional pain and suffering allegedly caused by the defendants' discrimination against him because of his physical disability. The district court dismissed the claims on summary judgment.

On appeal, Forestier attempts to raise an issue regarding the availability of damages for emotional distress under Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12131-12134—a question that this court has twice considered but not fully resolved. See Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 127 (1st Cir.2003); Schultz v. Young Men's Christian Ass'n, 139 F.3d 286, 290-91 (1st Cir. 1998). We do not reach the damages issue here, because we hold that there is no evidence from which a reasonable factfinder could infer that Forestier suffered discrimination on account of his disability.


As a result of a car accident in 1970, Forestier suffers from a gait-related impairment. He wears an orthopedic device and requires the assistance of a cane when walking both short and long distances. In the 1996 general elections in Puerto Rico, he was elected as an assemblyman to the Municipal Assembly of Mayagüez ("Assembly"). He won reelection in 2000, and, as a member of the New Progressive Party (NPP), was one of only three Assembly members who were not part of the Popular Democratic Party (PDP).

Meetings of the Assembly and its committees are held in the Assembly Room, which is on the second floor of City Hall and, until March 2003, accessible only via a stairway. Forestier has attended those meetings in the second-floor Assembly Room on a regular basis—over four hundred times in all—since the beginning of his tenure. Climbing the stairs to reach the Assembly Room caused him physical pain.

On March 17, 1997, Forestier requested from the Assembly President, Roberto Pérez Colón, permission to move to a seat at the rear of the Assembly Room, where he would have space to lean back, stand up, or move about when sitting became too uncomfortable. That request for a reasonable accommodation was readily granted.

At some point later in 1997, Forestier requested a second accommodation from Pérez, in the form of the installation of an elevator at City Hall.1 No progress was made. In a petition to the Office of the Solicitor for Persons with Disabilities (OPPI) on March 17, 1998, Forestier alleged that the Municipality took no action on this request.

At an administrative hearing before the OPPI on November 14, 2000, the Municipality announced its intention to build an elevator as part of a large-scale project to remodel City Hall and agreed to present a report within thirty days on the status of the project. The Municipality also agreed to start that very week on accommodating a third request by Forestier: the installation of handrails that would allow him to support himself as he walked up the stairs to the second-floor Assembly Room.

When, as of January 11, 2001, the handrails had not been installed, the OPPI submitted a motion to the examiner who had presided over the November hearing, requesting that he order the Municipality to comply with its earlier agreement to take immediate steps to install the handrails. The examiner issued an interlocutory order on January 18, 2001, requiring the Municipality to report within ten days the status of both the handrail installation and the remodeling project. Responding on January 30, the Municipality stated that "all steps were taken to install the handrails," and that, "after receiving various quotations," the Municipality had contracted with a company. It explained "[t]hat for reasons beyond our control and the ordinary procedure of these projects, the handrails have not been able to be installed [yet]"; however, it assured the OPPI that the contractor had "informed us that he expects to have [the handrails] installed by next week," and asked for a minimum of twenty days to come into full compliance. The handrails were finally installed in February 2001.

According to the defendants, sometime in 2001 or 2002, the Municipality became concerned that the remodeling of City Hall would take longer than expected. It installed a temporary elevator for Forestier, which would be removed when the permanent elevator is installed in the remodeled City Hall. The temporary elevator was installed in March 2003.

In the interim, on February 27, 2002, Forestier filed this suit, seeking injunctive relief and punitive and compensatory damages pursuant to Title II of the ADA, see 42 U.S.C. § 12133, and certain provisions of the Puerto Rico Civil Code, see P.R. Laws Ann. tit. 1, §§ 501-511; id. tit. 31, § 5141. He named as defendants the Municipality, as well as Pérez, the Assembly President, and José Guillermo Rodríguez, the Mayor of Mayagüez, in their official capacities.2 The defendants, his complaint alleged, "act[ed] with malice and reckless indifference" to his rights by failing to make the City Hall building—and specifically the Assembly Room—accessible to him, thereby causing him to suffer physical and emotional pain.

At the time Forestier filed his ADA complaint in court, the temporary elevator had not yet been installed. At an initial scheduling conference on December 18, 2002, the district court instructed the defendants to notify the court before January 15, 2003 whether the installation was complete. After requesting a continuance because "the installation of the elevator ha[d] not been concluded due to the supplier's two week recess during the holidays," the defendants informed the court on January 29, 2003 that the installation of the elevator was scheduled to begin on February 1; Forestier confirmed that the elevator was installed as of March 13.

This mooted Forestier's request for injunctive relief. Consequently, at a January 8, 2004 pretrial conference, the district court ordered the defendants to file a memorandum of law addressing the only legal issue that, in the court's view, remained unresolved in the case—whether Forestier was entitled to compensatory damages for his alleged emotional pain and suffering.3

In compliance with the order, on February 2, 2004, the defendants submitted a memorandum, which was accompanied by two exhibits, requesting that the court dismiss Forestier's complaint on two grounds: first, that Forestier had failed to show that Title II of the ADA provided for compensatory damages for emotional harm in a case such as this one; and second, that Forestier had no viable Title II claim because he testified in his deposition that political discrimination, not disability discrimination, motivated defendants' alleged delay in installing the elevator. Forestier filed a reply brief, which referred to defendants' exhibits, as well as to five evidentiary proffers he made with his own filing.

The district court, treating the defendants' initial filing as a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, denied the motion on April 25, 2005, concluding that plaintiff's pleadings were sufficient to survive a Rule 12(b)(6) challenge. The defendants filed a motion for reconsideration.

On June 30, 2005, the court reconsidered its April 25 order. It agreed with defendants that "[o]nce extrinsic materials were attached to their request [for dismissal], and referred to by plaintiff[] in [his] opposition, the motion understood to be under Rule 12(b)(6) was converted into one under Rule 56." Upon review of the record in its entirety, the court granted defendants' motion for reconsideration and for summary judgment and dismissed with prejudice Forestier's federal claim. It also declined to exercise supplemental jurisdiction over his claims under Puerto Rico law, dismissing them without prejudice.


Forestier makes two arguments on appeal. He first argues that the district court abused its discretion in converting defendants' Rule 12(b)(6) motion into a summary judgment motion. He then attacks, on the merits, the court's summary judgment decision.

The first challenge is mentioned but not developed in his brief. It thus amounts to waiver, and we do not address it.4 See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.").

Turning to the merits of the summary judgment dispute, we review a district court's grant of summary judgment de novo, Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 329-30 (1st Cir.2005), drawing all reasonable inferences in favor of Forestier, the non-movant, Nadherny v. Roseland Prop. Co., 390 F.3d 44, 48 (1st Cir.2004). "`Even in [disability] discrimination cases where elusive concepts such as motive or intent are at issue,' summary judgment is appropriate if the non-moving party rests `merely upon conclusory allegations, improbable inferences, and unsupported speculation.'" Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003) (quoting Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1,...

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