I hope everyone had a fantastic Thanksgiving weekend. Today’s blog entry goes to the dogs literally. The blog entry talks about two different cases involving service animals and how the court system deals with them. My thanks to Prof. Leonard Sandler, clinical law professor at the University of Iowa Law School for sending along the cases. In the first case, Cohen v. Sinnot, from the United States District Court of Colorado decided on November 9, 2023 (unfortunately, I could not figure out a way to link to the decision as it is not in Google scholar yet or on casetext), a state court discriminates against a person with a service animal by not allowing his service animal to accompany the litigant. In the second case, Hayer v. Liverant, from the Northern District of California decided on September 17, 2023, here, the court allows a Rule 35 exam of a dog’s owner in order to figure out whether the person with the disability/owner really needs the animal to allow them to benefit from enjoying their housing unit. As usual, the blog entry is divided into categories and they are: Cohen Facts; good things for Cohen and persons with disabilities with service animals; turns out Rooker-Feldman is a problem for Cohen; thoughts/takeaways Cohen; Hayer facts; Hayer’s reasoning to permit medical exam; and thought/takeaways Hayer. Of course, the reader is free to focus on any or all of the categories.
Cohen Facts (taken directly from the opinion).
Plaintiff’s Complaint alleges that she is facing numerous charges brought by the Boulder District Attorney. (ECF No. 5 at 4). She has attended numerous court hearings with her service dog, James, who is an adult male Golden Retriever. (Id.). According to Plaintiff, she has PTSD and dyslexia, which constitute disabilities under the ADA. (Id.). Her service dog is specifically trained for her PTSD disability. (Id.). The dog alerts Plaintiff to PTSD tachycardia and tachypnea so that she can take appropriate [*2] medicine and prevent a heart attack. (Id.). Plaintiff alleges that in May 2023 all of the Defendants told her that she could no longer bring her dog to Court. (Id. at 4-5). Her criminal defense attorney, Defendant Sinnott, told Plaintiff that the District Attorneys, Defendants Dougherty and Kendall, did not like the “optics” of her having a dog during trial. (Id. at 5). Plaintiff alleges that the Judge, Defendant Howard, made an oral ruling in court that the dog was no longer allowed, and told Plaintiff she would have to get permission from court disability services if she wanted to bring the dog. (Id.). Plaintiff states that there is no “court disability services” office. (Id.). She brings claims based on access to the Court and failure to provide reasonable accommodations for her disability under Title II of the Americans with Disabilities Act.
Plaintiff requested an injunction or other declaratory relief stating her dog is allowed and damages. (Id. at 9).
Good Things for Cohen and Persons with Disabilities with Service Animals
- Title II requires public entities to permit service animal to accompany people with disabilities in all areas where members of the public are allowed. 28 C.F.R. §35.136(g).
- Service animals are defined as dogs individually trained to do work or perform tasks for people with disabilities.
- Emotional support animals are not considered service animals under title II.
- To determine if a dog is a service animal, employees of a public entity are permitted to ask if the dog is a service animal required because of a disability, and what work or task the dog has been trained to perform. 28 C.F.R. §35.136(f).
- Employees of the public entity are not permitted to request documentation for the dog, require the dog to demonstrate a task, or inquire about the nature of the person’s disability.
- Per Tennessee v. Lane, sovereign immunity is not an issue because accessibility to the courtroom is involved.
Turns Out Rooker-Feldman is a Problem for Cohen
- Plaintiff’s claim of exclusion from the courthouse stems from a judicial order and not from a courthouse policy or practice.
- Rooker-Feldman doctrine provides that federal courts, other than the United States Supreme Court, lack jurisdiction to adjudicate claims seeking review of state court judgments.
- Since Rooker-Feldman itself arose from a constitutional challenge to the state court’s use of procedures, the Rooker-Feldman doctrine applies to procedural state court rulings as well as to substantive ones.
- Interlocutory orders enacted prior to the final disposition of state court lawsuits are not immune from the jurisdiction stripping powers of Rooker-Feldman.
- For Rooker-Feldman to apply, the state court judgment must be inextricably intertwined with the federal court lawsuit. That is, there must be no way for the injury complained of by a plaintiff to be separated from a state court judgment.
- The proper way to challenge the court order was through state court avenues as there is no conceivable way to address the wrong without overturning the order of the state court.
- Plaintiff can file an amended complaint asserting claims not barred by the Rooker-Feldman doctrine and the court encouraged the plaintiff to contact a pro se clinic to accomplish that.
- What happened after this decision is unclear. I can say that the case was dropped after an appeal of the magistrate decision was filed. I am not sure why as it is hard to tell from looking at the docket.
- There is another doctrine, Younger, that prohibits federal courts from interfering with state courts during the course of state court proceedings. Thus, this means that the best option a person has in order to challenge proceedings in state court that discriminate on the basis of disability, is to bring up those claims in state court while that proceeding is going on. You could under Rooker-Feldman, bring up a challenge to how the court went about deciding what it did so long as you don’t actually challenge the decision itself. Take a look at this blog entry for example.
- The decision certainly gives courts incentive to have judges decide the reasonable accommodation request rather than administrative personnel so as to come within the protection of a judicial order per Rooker-Feldman.
- Be aware, as we have previously discussed in the blog, that courts are pushing back on the wide applicability of Rooker-Feldman. See this blog entry for example.
- Unfortunately, pleading to get around Rooker-Feldman probably requires advanced legal knowledge and an attorney to figure that out. In this situation, the plaintiff was pro se as many are.
- It is not two questions but two inquiries. The two inquiries are whether the animal is required because of a disability and what work or task the animal has been trained to perform. 28 C.F.R. §35.136(f)
- On the positive side, the court does say that service animals must be allowed in the courtroom and that courts must follow the two inquiry paradigm.
- One wonders if there might not be interference claims available against the prosecutor and the defense attorney for discouraging the use of the service animal and in their advocacy and advice to discourage such use.
- One wonders if it is not malpractice for the defense attorney to not bring the ADA into their advocacy with respect to the client’s service animal.
Plaintiff rents a basement apartment in an approximately 12 unit building. She has a mental health condition that substantially impairs the major life activities of sleeping and coping with stress. She has been receiving treatment, including psychological therapy, for her mental health condition since January 2022. To better manage the symptoms of her disability and with the advice of her therapist, plaintiff decided to get a dog that would serve as an emotional support animal. On or about August 19, 2022, plaintiff emailed her property manager to request an emotional support animal in her home as a reasonable accommodation, attaching a letter from her therapist explaining the basis for her request.
The property manager never responded, but a week later, plaintiff received the first of a series of letters from the attorney representing the building owner to her and her therapist attacking her request on various grounds. In response, on September 5, 2022, plaintiff provided an updated letter to the property manager where she asked to be allowed to have a service dog in training in her home. On or about September 15, 2022, plaintiff received a 10 day warning of a possible eviction notice.
Among the allegations in her complaint was a claim for the intentional infliction of emotional distress.
Plaintiff did not plan to prove disability, mental condition, or emotional distress through expert testimony. Defendant designated Dr. John Fielder, a forensic psychologist, as an expert, and also sought to have him conduct a mental examination of Plaintiff pursuant to Rule 35. Defendant deposed Plaintiff, her treating psychiatrist, Dr. Kim, as well as her treating psychologist, Dr. Rosenberg, and will depose her second treating psychologist, Dr. Koshkarian. Defendant also received Plaintiff’s psychiatry records, relating to her psychiatry care and visits, and her therapist records. Both the therapist and psychiatrist records list Plaintiff’s disability diagnosis.
Hayer’s Reasoning to Permit Medical Exam
- Under Rule 35, a court may order a party whose mental or physical condition is in controversy to submit to a physical or mental examination upon a showing of good cause. So, to justify a mental examination under Rule 35, a defendant has to demonstrate that the plaintiff has placed their mental condition in controversy, and that there is good cause for the examination.
- Defendant has to show that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.
- Deciding to mandate a Rule 35 exam, requires a discriminating application by the trial judge. After all, suffering a legal wrong is often emotionally distressing, but if that qualified as putting a mental condition in controversy, then the courts would be ordering mental exams all the time, which would be inconsistent with the discriminating application required by Rule 35.
- The intentional infliction for emotional distress claim puts plaintiff’s mental condition in controversy.
- Plaintiff also alleges discrimination based on her mental health condition. A claim based on a mental disability is sufficient to place the plaintiff’s mental state in controversy.
- In deciding whether good cause exists, a court considers several factors, including: 1) the possibility of obtaining desired information by other means; 2) whether plaintiff plan to prove her claim through testimony of expert witnesses; 3) whether the desired materials are relevant; and 4) whether plaintiff is claiming ongoing emotional distress.
- Defendant has not specified facts justifying an invasive mental examination because there are multiple other sources of relevant information. However, the court was persuaded that a mental examination is warranted in order to evaluate plaintiff’s mental disability and whether a dog is a reasonable accommodation for her condition. Defendant has specified the tool to be used to evaluate the plaintiff, a two-hour test called the Minnesota Multiphasic Personality Inventory-2. So, a mental examination is not superfluous as good cause exists to assess the plaintiff’s condition and whether the dog is a reasonable accommodation.
- There is absolutely no indication that this case involved filing a claim with HUD. If a claim would have been filed with HUD, then the circular, which we discussed here, would have driven matters. The issue of whether the circular is entitled to deference, which we discussed here, may have also come up considering how this case was litigated.
- Very worrisome that a claim alleging discrimination based upon a mental condition comes pretty close to automatically being subject to a Rule 35 exam. If a Rule 35 exam is required every time someone alleging a Fair Housing Act violation brings a mental health condition into the equation because of disability discrimination, then HUD’s Fair Housing Act circular might as well not exist. It also certainly discourages individuals from making a request to have a service animal or an emotional support animal so that they can enjoy their housing.
- The decision most definitely encourages people to file with HUD rather than first file with a court when it comes to contesting the exclusion of their service animal or emotional support animal from housing subject to the Fair Housing Act.
- Remember, the HUD circular talks about three different kind of animals: emotional support animals, assistance animals, and service animals. They are different from each other, though assistance animals per HUD can either be service animals that are not dogs or can be a broad category including support animals and service animals.
- One does wonder whether the decision would be the same without the intentional infliction of emotional distress claim.
- One also wonders if this case would have gone differently if HUD was the first option for the plaintiff.
- This is not the first time that I have seen a reference to the Minnesota Multiphasic Personality Inventory Test. There is a very well-known employment discrimination case, here, involving this test, which I have mentioned in my books.
- If a housing provider has sufficient resources and wants to ignore the HUD circular, this decision gives the landlord a roadmap for doing so. Utilizing the roadmap would mean the plaintiff electing to proceed with court proceedings instead of HUD and the landlord having substantial resources.
- I have seen persons with disabilities not understand the very important and significant distinction between emotional support animals and service animals. To be fair, the line between the two can be incredibly small for psychiatric service animals in particular.
- One wonders if a retaliation claim under the FHA or possibly even under the ADA does not exist against the landlord’s/landlord attorney for aggressively pursuing eviction despite being given substantial medical information.
Next week, should be my last substantive blog entry of the year. The week after I plan to post my annual most visited understanding the ADA blog entries for the year. I will, as I have done in years past, also include in that list some blog entries that are not the most visited but are super important as well.