At least once a month, I get a phone call where a judge is treating a person with a disability in their courtroom in a hostile way. The person always wants to know what can be done about it and whether judges are allowed to do that. I have talked before going after the judiciary for disability discrimination, such as here, and it isn’t an easy thing to do, see here, though it is possible. This case, Mergl v. Wallace, Mergl v. Wallace-Judge wrongful treatment of pwd attorney (how I named the file), decided by the United States District Court for the Western District of Pennsylvania on September 29, 2023, is worth looking at. As usual, the blog entry is divided into categories and they are: facts; separate individual categories discussing the court’s reasoning as to why each incident did not support an ADA or Rehabilitation Act claim; court’s reasoning that sufficient facts not alleged to support a claim of general harassment; court’s reasoning that even if an ADA title II claim existed, plaintiff could not show deliberate indifference; court’s reasoning that the plaintiff stated a standalone equal protection claim; court’s reasoning that no relief exists under the equal protection clause; and thoughts/takeaways. Of course, the reader is free to concentrate on any or all of the sections.
- Incident 1: February 11, 2020 The first incident at issue stems from Plaintiff’s in-court appearance before Wallace on February 11, 2020. Plaintiff had triple booked his own calendar and was scheduled to appear in three state court courtrooms at the same time. Plaintiff was scheduled to appear before Judge Ronald D. Amrhein, also of the Court of Common Pleas of Mercer County, and when Plaintiff reached out to Judge Amrhein to rectify this conflict, Plaintiff was given permission to appear late. Plaintiff pleads that he was under the impression that Judge Amrhein’s staff would inform Wallace 2 Whether claims may be brought against government officers in their individual capacities under Title II of the ADA remains an open question. Durham, 2023 WL 6108591, at *2 n.12. The claims here as to Wallace are against him only in his official capacity. (ECF No. 30, ¶ 19). Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 7 of 31 8 that he would be appearing late. But when Plaintiff proceeded to Defendant’s courtroom, he was scolded by Wallace. Wallace went so far as to threaten him with a contempt hearing if Plaintiff were late in the future. (ECF No. 30, ¶ 41).
- Incident 2: March 11, 2020 On March 11, 2020, Plaintiff had double booked his own calendar once again. Plaintiff requested a continuance as to a judicial proceeding before Wallace, but Wallace denied this motion. Plaintiff then arranged for what he described to be a “qualified attorney” to represent his client before Wallace because of the conflict rather than appearing himself, but Wallace responded by ordering a Rule to Show Cause why Plaintiff should not be held in contempt for his failure to Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 8 of 31 9 appear personally. Wallace later dismissed the Rule to Show Cause without taking any adverse action against Plaintiff.
- Incident 3: August 3, 2020 Plaintiff was involved in a car accident on July 9, 2020. This accident left Plaintiff with a variety of injuries, including blurred vision, memory problems, and headaches. Because of these ailments, he was advised to limit himself to a maximum of three hours of cognitive activity per day. Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 9 of 31 10 On August 3, 2020, Plaintiff had a status conference in a pending case before Wallace, and Wallace allegedly stated during the conference that he (Wallace) had received a “disturbing email” notifying Wallace that Plaintiff had requested a continuance of a hearing in front of another judge. In response to learning about this email, Wallace allegedly scolded Plaintiff, suggesting that Plaintiff should be held in contempt for requesting the continuance. When Plaintiff tried to explain the car accident and its aftereffects, Wallace stated, “I don’t care” and left the room. (Id. ¶ 62)
- Incident 4: August 10, 2020 Plaintiff appeared in front of Wallace on August 10, 2020 for a pretrial status conference in a pending court case. Plaintiff requested a thirty-day continuance for a trial, which was scheduled to begin the very next day. Wallace initially denied the request, and an oral back and forth between Plaintiff and Wallace ensued. Wallace allegedly scolded Plaintiff, stating that (1) Plaintiff’s medical documentation was not sufficient because it had not been signed by “a real doctor;” (2) Plaintiff appeared “fine” to Wallace; (3) Plaintiff was “milking” his disability; (4) Plaintiff’s client should get his money back; and (5) Wallace would not provide an accommodation until Plaintiff provided medical documentation that Wallace personally deemed satisfactory. (Id. Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 10 of 31 11 ¶¶ 75.1–75.14). Wallace also asked Plaintiff “[w]hy [he wasn’t] treating around here like the rest of us?” (Id. ¶ 74.6). Plaintiff’s Amended Complaint adds that Plaintiff’s client was next to him during this exchange and asserts in conclusory fashion that Wallace generally does not treat other attorneys under similar circumstances in the same manner. (Id. ¶ 78–81)
- Incident 5: August 24, 2020 On August 24, 2020, Plaintiff filed a Complaint against Wallace with the United States Department of Justice (“DOJ”). On September 2, 2020, Plaintiff filed a motion asking Wallace to recuse himself from all of Plaintiff’s cases because of the pending Complaint with the DOJ. Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 11 of 31 12 Wallace refused to recuse himself from these cases and issued an Order of Court without a hearing. (ECF No. 30, ¶ 85). The Amended Complaint fails to set out the topic or content of that Order.
- Incident 6: Events Post-filing of the Original Complaint in this Court, New to Plaintiff’s Amended Complaint is Incident 6. Plaintiff’s allegations here are, generously described, very barebones, noting without elaboration only that Wallace allegedly told Case 2:21-cv-01335-MRH Document 40 Filed 09/29/23 Page 13 of 31 14 Plaintiff’s clients and other professionals that Plaintiff “is not allowed in [his] courtroom.” (ECF No. 30, ¶ 94). Plaintiff, in spite of plainly being in a position to know, sets forth no details as to such matters, including the identity of those involved.
Plaintiff sued alleging violations of title II of the ADA and the Rehabilitation Act, including retaliation. The court originally dismissed the claims with leave to amend. When the complaint was amended, plaintiff added an equal protection claim.
Court’s Reasoning That Incident 1 Did Not Violate the ADA or the Rehabilitation Act
- The complaint admits that the entire episode has its origins in plaintiff triple booking his own calendar and states no connection between that scheduling choice and any disability. Plaintiff does not plead any facts plausibly showing that he was denied access to the courts through this incident. Further, the judge’s comment about potential future events cannot be fairly read to allege either deliberate indifference to ADA rights, nor can it be considered severe and pervasive.
Court’s Reasoning That Incident 2 Did Not Violate the ADA or the Rehabilitation Act
- Plaintiff adds in the amended complaint that the judge did not treat non-disabled attorneys in similar circumstances in the way that he treated the plaintiff.
- Plaintiff was not denied access to the courts and the asserted disability was wholly unrelated to plaintiff’s self-generated conflict in his own schedule.
- There was no connection stated between any disability and plaintiff’s scheduling choices.
- The judge dismissed the rule to show cause without utilizing that proceeding to take any adverse action against the plaintiff.
Court’s Reasoning That Incident 3 Did Not Violate the ADA or the Rehabilitation Act
- While the judge’s remarks were not kind, there is no connection between the unfriendly dialogue and plaintiff’s ability to accept the courts. Plaintiff’s amended complaint shows that he was not denied access to the courts in the case before the judge nor in the case before a different judge. There is also no indication in the amended complaint that the judge actually denied plaintiff any requested accommodation.
- The judge’s unfriendly behavior, resulting in no limitation on the plaintiff appearing as a lawyer in any court, does not rise to a level supporting a plausible claim under the ADA.
Court’s Reasoning That Incident 4 Did Not Violate the ADA or the Rehabilitation Act
- The judge granted the very continuance that the plaintiff was seeking.
- For an ADA claim to exist, there has to be a denial of an accommodation or an underlying service.
- The granting of the continuance ensured that the plaintiff was not denied a benefit or service of the courts based on the disability, and despite the comments plaintiff says that he had to endure, his disability was actually accommodated. So, despite the judge’s allegedly confrontational language, there was no harm stemming from the incident connected to plaintiff’s ability to accept the courts or receive a service or benefit from the courts. In fact, plaintiff asked for a 30 day continuance and received it.
Court’s Reasoning That Incident 5 Did Not Violate the ADA or the Rehabilitation Act
- The claim is a straightforward attack on the judge’s alleged refusal to recuse in cases involving the plaintiff and therefore, is barred by the Rooker Feldman doctrine.
- The Rooker Feldman doctrine applies where: 1) the federal plaintiff lost in state court; 2) the plaintiff complains of injury caused by the state court’s judgment; 3) though judgment rendered before the federal suit was filed; and 4) the plaintiff is invited the district court to review and reject the state judgments. All of these elements are satisfied.
Court’s Reasoning That Incident 6 Did Not Violate the ADA or the Rehabilitation Act
- Plaintiff does not allege an actual denial of a service or benefit of the courts.
- Retaliation won’t fly either because there was no indication that: 1) the judge actually prevented the plaintiff from entering his courtroom; 2) any potential client declined to retain the plaintiff; or 3) any client discharge the plaintiff based on this incident.
Court’s Reasoning That Sufficient Facts Were Not Alleged to Support a Claim of General Harassment
- To state a claim under title II of the ADA, the plaintiff must plead that: 1) he is a qualified individual; 2) with a disability; 3) who was excluded from participation in or denied the benefit of the services, programs, or activities of a public entity, or who was subjected to discrimination by such an entity; 4) by reason of his disability. Under 3), a plaintiff must sufficiently allege that he was either denied the benefits of the services, program, or activities of a public entity OR falls within a catchall clause of being subjected to discrimination by such an entity. The catchall clause prohibits all discrimination by a public entity regardless of context.
- It is possible that title II’s catch-all provision could allow for a general harassment claim. For such an inquiry, the courts would look to the totality of the circumstances, which includes: 1) the frequency of the discriminatory conduct; 2) its severity; 3) whether it is physically threatening or humiliating or a mere offensive utterance; and 4) whether it unreasonably interferes with the underlying right at issue.
- Courts cannot turn anti-discrimination statutes into civility codes. Accordingly, courts are reluctant to hold defendants liable for discrimination unless the claimed discrimination leads to the actual denial of a statutory or constitutional right or benefit.
- The amended complaint fails to plausibly show that plaintiff’s interactions with the judge fundamentally altered the nature of plaintiff’s relationship with the Pennsylvania judicial system. Many of the incidents had to do with multiple booking by the plaintiff simultaneously and in the other incidents, plaintiff did not actually suffer any adverse procedural outcome.
Court’s Reasoning That Even If a Title II Claim of the ADA Existed, Plaintiff Could Not Show Deliberate Indifference
- Showing deliberate indifference means a plaintiff has to show: 1) knowledge that a federally protected right is substantially likely to be violated; and 2) failure to act despite that knowledge.
- The amended complaint does not plausibly demonstrate that the judge actually knew that a federally protected right was likely to be violated by his statements or actions.
- Nothing in the amended complaint plausibly shows that the judge engaged in a pattern of endangering federally protected rights of others or that the risk of harm was so great and so obvious that failing to provide the plaintiff an accommodation constituted deliberate indifference.
- The judge’s dismissal of the rule to show cause and his decision to grant all of the plaintiff’s continuances show that the plaintiff was not ultimately harmed in any tangible fashion.
Court’s Reasoning That the Plaintiff Stated a Standalone Equal Protection Claim
- When a classification is made based upon an individual’s disability, the differential treatment associated with that classification is subject to rational basis review.
- The Third Circuit has been cautious about upholding dismissals prior to discovery. That means the plaintiff only has to plausibly demonstrate that he was treating differently from those similarly situated and that the relationship between the differential treatment and the underlying governmental purpose plausibly appears irrational. The proper inquiry at the motion to dismiss stage is whether the amended complaint construed liberally alleges a plausible claim under the equal protection clause.
- Plaintiff at the motion to dismiss stage, does not need to negate all possible basis for the offending conduct as he must do at summary judgment or at trial when the plaintiff has been classified in the rational basis category.
- Plaintiff has alleged repeated instances of differential treatment from the judge in the form of verbal abuse and the imposition of what is arguably a separate set of rules applicable to him in the form of requiring the plaintiff to attend effectively the start of contempt proceedings, and to provide rather complex explanation for any anticipated absences.
- Plaintiff repeatedly asserted in his amended complaint that the judge did not treat attorneys without disabilities in the same manner. Accordingly, the judge’s treatment of the plaintiff could plausibly constitute a differential classification.
- The judge’s treatment of the plaintiff plausibly illustrates a bare desire to demean, belittle, and harass plaintiff. There is also absolutely no indication of any of that advancing the efficiency of the judge’s judicial proceedings. Therefore, the factual circumstances underlying the equal protection claim could demonstrate that the judge’s conduct was not rationally related to a legitimate governmental purpose for purposes of stating an equal protection claim.
- An equal protection clause claim does not need to be tied to the actual denial of the service or benefit of a governmental entity.
- While verbal harassment alone failed to state a claim under the equal protection clause, when there is an associate threat of injury a plaintiff does state a plausible claim for relief.
- Plaintiff’s amended complaint plausibly demonstrates a violation of the equal protection clause because the judge applied a different set of procedures to the plaintiff because of his disability.
- Plaintiff has adequately stated that he qualifies as an equal protection class of one because: 1) the judge treated him differently from other similarly situated; 2) the defendant allegedly did so intentionally; and 3) there was no rational basis for the difference in treatment.
Court’s Reasoning That No Relief Exists under the Equal Protection Clause
- While plaintiff did not sue the judge in his personal capacity, a claim in the judge’s personal capacity would be subject to judicial immunity which is an absolute bar to a suit for money damages. Further, such immunity applies even in the face of malicious or erroneous actions.
- Plaintiff cannot overcome judicial immunity because the underlying action at issue was judicial and the lack of jurisdiction is not an issue. The action was judicial because it related to the nature of the act itself (a function normally performed by a judge), and to the expectation of the parties (whether they dealt with the judge in his judicial capacity).
- Action subject to judicial immunity can be thrown out at the motion to dismiss stage based upon allegations in the complaint.
- Pennsylvania has not waived its sovereign immunity for equal protection claims. Any such waiver has to be explicit and Pennsylvania has not done that in any of their statutes.
- Issuing an injunction against the judge is generally prohibited. That is, a state judicial officer cannot be enjoined by a federal court as to acts taken or to be taken into judicial capacity.
- The 11th amendment also bars injunctive actions against the State without its consent.
- The case is being appealed.
- Pleadings that approach fact based pleadings are always preferred in ADA and Rehabilitation Act cases. That is, you want to give the defense enough notice as to what is involved and more facts are better than less.
- It is inaccurate to say that people with disabilities are always in the rational basis class. It is curious that Tennessee v. Lane was not cited by the court. Tennessee v. Lane, here, holds that people with disabilities vary their equal protection status depending upon the facts of the case. Further, when it comes to accessing the courts, people with disabilities are at least in the intermediate scrutiny class.
- There are many many cases saying that sovereign immunity does not bar injunctive relief against a State entity. This case goes against that trend.
- Title II of the ADA does apply to everything that a public entity does.
- With respect to the Rooker Feldman doctrine, that is a very narrow doctrine as we discussed here.
- Interesting discussion about title II having a catch-all provision. That is not something I see a lot of in the case law and presents an opportunity for plaintiff lawyers.
- The equal protection class of persons with disabilities matters because the ADA permits a forced waiver of sovereign immunity should that particular title be proportionate to the harm that the ADA is redressing. That is, a forced waiver is out with respect to employment matters, see here, but with respect to nonemployment matters, a forced waiver may very much be in play depending upon the particular facts, see here.
- In many cases, it shouldn’t be that hard for a person with the disability to show that he or she or they is an equal protection class of one. Again, a critical underlying consideration is to figure out what equal protection class a person with a disability falls in.
- Is discrimination based upon a protected characteristic, a judicial action, see this blog entry for example. One has to wonder, especially in 2023.
- How the case is ultimately resolved on appeal bears watching. We do know from this blog entry, the federal courts are not afraid to look over state courts, see here, if they engage in disability discrimination.
- It is a different question if a federal court engages in disability discrimination because outside of hearing loss covered in the Administrative Office of the Courts rules, the federal courts (article III courts I am referring to here), are not subject to the ADA nor are they subject to the Rehabilitation Act. They would be subject to the equal protection clause through the due process clause of the Fifth Amendment. Whether any remedy access is another story.
- On the plaintiff side, you have to show that the actions were by reason of a disability with respect to the ADA and solely by reason of disability with respect to Rehabilitation Act. In other words, causation always has to be shown.
- What is deliberate indifference varies from jurisdiction to jurisdiction. The leading case on this we discussed here.
- Since the equal protection classification of persons with disability varies depending upon the particular facts of the case, plaintiff attorneys in particular should not assume that a person with a disability automatically falls into the rational basis class.
- Case law is just about unanimous that the ADA does not allow for individual liability. The exception that I am aware of is here in the 11th Circuit where individual liability is allowed in a retaliation matter where the person doing the retaliation is employed by a nonfederal governmental entity. See here.
- There may be room to argue over what is a judicial act, especially if protected characteristic discrimination is involved. An even better argument that a judicial act does not exist occurs if the judge denies a reasonable accommodation/modification request.
- I’ve seen many cases saying that sovereign immunity does not apply to injunctive relief, so the case discussed in this blog entry is an outlier that way.
- Mergl appears to limit remedies against state judges discriminating against a person by reason of their disability to filing a complaint with the end of the overseeing judicial conduct. Procedural due process might be another possibility.
- One has to wonder if this case goes the same way if a protected characteristic other than disability was involved.
- Recently, the EEOC issued a guideline on harassment in the workplace, which we discussed here. One of the important things from that guideline is that harassment must be viewed from the person with the protected characteristic point of view.
- The whole concept of severe and pervasive can be a bit of a headache as we discussed here.