Lagervall et al v. Missoula County Public Schools et al

Filing 27

ORDER re 23 MOTION for Extension of Time to File filed by Robert T. Lagervall, 21 MOTION to Compel Responses to Discovery and Deem Requests Admitted filed by Jennie Haines, Missoula County Public Schools, Ted Fuller, Motions ter minated: 23 MOTION for Extension of Time to File filed by Robert T. Lagervall, 21 MOTION to Compel Responses to Discovery and Deem Requests Admitted filed by Jennie Haines, Missoula County Public Schools, Ted Fuller., FINDINGS AND RECOMMENDATIONS re 24 MOTION for Summary Judgment filed by Jennie Haines, Missoula County Public Schools, Ted Fuller. () Signed by Magistrate Judge Jeremiah C. Lynch on 8/22/2017. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
ROBERT T. LAGERVALL,

CV 16-57-M-DLC-JCL

Plaintiff,
ORDER, and FINDINGS
AND RECOMMENDATION

vs.
MISSOULA COUNTY PUBLIC
SCHOOLS, PRINCIPAL TED FULLER,
and JENNIE HAINES,
Defendants.

Before the Court is Defendants Missoula County Public Schools, Ted Fuller
and Jennie Haines’s Fed. R. Civ. P. 56 motion for summary judgment requesting
this case be dismissed. Plaintiff Robert Lagervall did not file a response to
Defendants’ motion. For the reasons discussed, the Court recommends the motion
be granted and this action be dismissed.
I.

Background
At the time of the events alleged in Lagervall’s complaint, his son, P.L., was

a student at Sentinel High School in Missoula, Montana. Apparently, P.L. is an
individual with disabilities.
Sentinel High School is within the Missoula County Public Schools district.
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Ted Fuller is the principal at Sentinel, and Virginia Haines is the Special
Education Coordinator at Sentinel.
On November 4, 2015, an issue arose as to the Sentinel teachers’ treatment
and education of P.L., so Lagervall went to Sentinel to visit with school
administrators, including Fuller, about the issue. The encounter escalated to some
degree of confrontation due to, as Lagervall recognizes, his own disabling
condition or conditions. As a result of the confrontation, Fuller decided Lagervall
was no longer welcome on the premises as Sentinel. Fuller engaged Sentinel’s
resource officer, Officer Monaco, to prevent Lagervall from entering the premises,
and to inform Lagervall, in writing, that he was not permitted on the premises.
Lagervall commenced this action alleging Defendants violated his rights
under the Americans with Disabilities Act (“ADA”). Specifically, he contends
Defendants violated regulatory provisions promulgated pursuant to the ADA at 28
C.F.R. § 35.130 (prohibiting discrimination), § 35.134 (prohibiting retaliation or
coercion), and § 35.160 (requiring effective communications).
II.

Applicable Law - Summary Judgment Standards
Federal Rule of Civil Procedure 56(a) entitles a party to summary judgment

“if the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” In deciding a motion for
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summary judgment, the Court views the evidence in the light most favorable to the
non-moving party and draws all justifiable inferences in the non-moving party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Betz v. Trainer
Wortham & Co., Inc., 504 F.3d 1017, 1020-21 (9th Cir. 2007).
The Court notes that Lagervall has not filed any brief in opposition to
Defendants’ motion for summary judgment, and the time for doing so has passed.
Nonetheless, the Ninth Circuit has made clear that a district court may not grant
“summary judgment simply because a party fails to file an opposition or violates a
local rule,” and the court must “analyze the record to determine whether any
disputed material fact [is] present.” Ahanchian v. Xenon Pictures, Inc., 624 F.3d
1253, 1258 (9th Cir. 2010). See also Martinez v. Stanford, 323 F.3d 1178, 1182
(9th Cir. 2003) (explaining that “a nonmoving party’s failure to comply with local
rules does not excuse the moving party’s affirmative duty under Rule 56 to
demonstrate its entitlement to judgment as a matter of law”).
Finally, because Lagervall is proceeding pro se the Court must construe his
documents liberally and give them “the benefit of any doubt” with respect to
Defendants’ summary judgment motion. Frost v. Symington, 197 F.3d 348, 352
(9th Cir. 1999). See also Erickson v. Pardus 551 U.S. 89, 94 (2007).

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III.

DISCUSSION
While Lagervall’s son, P.L., was a student at Sentinel High School,

Lagervall engaged in a pattern of recurring conduct in his interactions with
Sentinel staff members regarding either P.L.’s education or his conduct at
Sentinel. At times, when staff would contact Lagervall by telephone to discuss
issues about P.L., Lagervall would become agitated, upset and would terminate the
phone conversation. (Doc. 25-1 at 2.) Typically, after a terminated phone call he
would arrive at Sentinel “in an escalated, dysregulated state, demanding
information, responses to questions, and disrupting school operations.” (Doc. 251 at 2.)
The record reflects Lagervall engaged in various forms of other conduct at
times while on the premises at Sentinel.1 He would:
1

This description of Lagervall’s disruptive conduct is taken from
Defendants’ Fed. R. Civ. P. 36 requests for admission served upon Lagervall to
which Lagervall failed to respond. Rule 36 provides that “[a] matter is admitted
unless, within 30 days after being served, the party to whom the request is directed
serves on the requesting party a written answer or objection addressed to the
matter and signed by the party or its attorney.” Fed. R. Civ. P. 36(a)(3). The
operation of Rule 36(a)(3) “results in the automatic admission of the matters
requested...No motion to establish the admissions is needed because Federal Rule
of Civil Procedure 36(a) is self-executing.” Lanier v. San Joaquin Valley Officials
Association, 2016 WL 4764669, *4 (E.D. Cal. 2016) (citations and quotations
omitted). Since Lagervall did not respond to, and deny the Rule 36 requests for
admission submitted by Defendants, those matters are deemed admitted. And
unanswered matters deemed admitted “may be relied on as the basis for granting
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(1.)

raise his voice when speaking with Sentinel employees, and yell at
the employees;

(2.)

raise his voice when speaking with Sentinel employees at meetings
concerning P.L., disrupt those meetings, and walk out on some
meetings because he was angry;

(3.)

act aggressively towards, and intimidate Sentinel employees; and

(4.)

hang up the phone in the middle of telephone conversations with
Sentinel employees.

(Doc. 22-7 at 15-16.)
As a result, Sentinel staff members complained to Fuller about Lagervall’s
“intimidating and disruptive behavior[.]” (Doc. 25-1 at 3.) Staff members had
expressed concern for their own safety and welfare, and were anxious about
Lagervall arriving at the school in a state of escalated anger. (Id.) Fuller himself
had personally interacted with Lagervall “in various contexts and on many
occasions.” (Doc. 25-1 at 2.)
On November 4, 2015, a Sentinel employee telephoned Lagervall to discuss
an issue of P.L.’s conduct at school. Lagervall became angry, advised he was on
his way to Sentinel, and terminated the phone call. Consequently, Fuller directed
School Resource Officer Mark Monaco to meet Lagervall at the door, to prevent
Lagervall from entering the building, and to instruct Lagervall to leave the school
summary judgment.” Conlon v. United States, 474 F.3d 616, 621 (9th Cir. 2007).
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property. Officer Monaco successfully persuaded Lagervall to leave the school
after a “heated exchange” between the two. (Doc. 25-1 at 2-3.)
On November 4, 2015, Fuller prepared and delivered a letter to Lagervall.
The letter instructed Lagervall that in the future, if he wanted to come to Sentinel
he had to first notify Fuller and obtain permission to come to the school. The
letter noted that the required permission was due to Lagervall’s prior conduct
towards school officials which they perceived to be “aggressive and disruptive[.]”
(Doc. 25-2.) Fuller states that with his letter he sought to prevent further
disruptions of school operations caused by Lagervall, yet still allow Lagervall to
participate in P.L.’s education. And the procedure for Lagervall to obtain
permission was further intended to allow Sentinel staff to gather appropriate
personnel who were familiar with Lagervall and his behavior to meet with
Lagervall at a designated time.
Fuller notes that Lagervall invoked the procedure for obtaining permission
outlined in his letter, and Lagervall was granted permission to come to Sentinel
several times. Fuller states he is not aware of a time when Lagervall was denied
permission to come to Sentinel.
As a result of the foregoing events, Lagervall commenced this action under
the ADA. Title II of the Americans with Disabilities Act (ADA) at 42 U.S.C. §
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12132 provides as follows:
Subject to the provisions of this subchapter, 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. A viable claim for relief under section 12132 requires a
plaintiff to satisfy four elements as follows:
(1) [the plaintiff] “is an individual with a disability;” (2) [the plaintiff] “is
otherwise qualified to participate in or receive the benefit of some public
entity's services, programs, or activities;” (3) [the plaintiff] “was either
excluded from participation in or denied the benefits of the public entity's
services, programs, or activities, or was otherwise discriminated against by
the public entity;” and (4) “such exclusion, denial of benefits, or
discrimination was by reason of [the plaintiff’s] disability.”
McGary v. City of Portland, 386 F.3d 1259, 1265 (9th Cir. 2004).
A. Individual Defendants
The individuals named as Defendants in this action – Fuller and Haines –
argue Lagervall does not advance any claim against them that is cognizable under
the ADA. The Court agrees.
Title II of the ADA governs the actions of a public entity, not an individual.
Therefore, the ADA does not impose individual liability against a state official in
his or her individual capacity. Heinke v. County of Tehama Sheriff’s Dept., 2013
WL 3992407, *7-8 (E.D. Cal. 2013). See also Vinson v. Thomas, 288 F.3d 1145,

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1156 (9th Cir. 2002) (concluding a plaintiff cannot pursue a claim under 42 U.S.C.
§ 1983 against an individual state official predicated upon a violation of Title II of
the ADA).
Therefore, Defendants Fuller and Haines’ summary judgment motion should
be granted in this respect. Lagervall’s claims against them in their individual
capacities should be dismissed.
B. No ADA Violation
Missoula County Public Schools (“Missoula Schools”) asserts the actions it
took in response to Lagervall’s history of conduct at Sentinel do not constitute
violations of his rights under the ADA. Specifically, Missoula Schools argues it
did not exclude Lagervall from its activities, programs or services, and it did not
discriminate against him. And to the extent any exclusion or discrimination
occurred, it was not because of any disability from which Lagervall may suffer.2
Undisputedly, Fuller delivered a written letter to Lagervall informing him
he was not permitted on the premises at Sentinel unless Lagervall first obtained
Fuller’s “express consent and permission.” (Doc. 25-2.) Fuller noted in the letter
2

Missoula Schools also suggests Lagervall has not demonstrated he is a
“qualified individual with a disability.” But it concedes it possesses no
information which it could present to the Court to affirmatively establish he is not
a “qualified individual with a disability.” Thus, Missoula Schools does not argue
Lagervall’s ADA claim fails on the first element of an ADA claim.
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that the restrictions were due to both Lagervall’s prior failure to comply with
school policy, and his aggressive and disruptive actions while previously on the
premises at Sentinel.3
Fuller affirmatively states that after his November 4, 2015 letter to
Lagervall, Lagervall sought and obtained Fuller’s consent and permission to go to
Sentinel’s campus on several occasions. Fuller states he is not aware of any
occasion where Lagervall was denied access to Sentinel’s campus. And
specifically, Fuller asserts that, contrary to Lagervall’s allegations, there was no
“educational career fair” that took place at Sentinel on November 5, 2015, which
he prevented Lagervall from attending. (Doc. 25-1 at 4.)
Because Lagervall did not respond to Missoula Schools’ summary judgment
motion, he has not identified or presented any evidentiary materials suggesting
Missoula Schools excluded him from participating in, or obtaining the schools’
programs and activities. The Court also finds no evidence in the record suggesting
he was excluded from Sentinel’s services.
In addition to arguing it did not exclude Lagervall from the benefit of
3

Missoula Schools’ policy provides that an individual, while on “school
property”, may not “[i]mpede, delay, or otherwise interfere with the orderly
conduct of the District’s educational program or any other activity occurring on
school property[,]” or “[w]illfully violate other District rules and regulations.”
(Doc. 25-3.)
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Sentinel’s services, Missoula Schools further argues its conduct in requiring
Lagervall to first obtain consent and permission to go to Sentinel’s campus was
not because of any disability Lagervall may have. The record reflects Lagervall
had a history of going to Sentinel’s campus and being disruptive, aggressive, and
intimidating to employees by being angry, raising his voice, yelling at Sentinel
employees, and causing employees to be concerned for their safety and well being.
Thus, the record reflects the restrictions imposed upon Lagervall were by reason
of his past angry, aggressive, disruptive, and non-compliant conduct, not by reason
of any disability. Defendants’ motion should be granted in this respect.
C. No Retaliation, Coercion, or Intimidation Under the ADA
The ADA prohibits retaliatory conduct as follows:
No person shall discriminate against any individual because such individual
has opposed any act or practice made unlawful by this chapter or because
such individual made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this chapter.
42 U.S.C. § 12203(a). See also 28 C.F.R. § 35.134(a). An ADA retaliation claim
does not necessarily depend on the plaintiff’s proof of a disability, but instead
requires the plaintiff to establish “(a) that he or she was engaged in protected
activity, (b) that he or she suffered an adverse action, and (c) that there was a
causal link between the two.” T.B. ex rel. Brenneise v. San Diego Unified School

10

District, 806 F.3d 451, 473 (9th Cir. 2015) (citations and quotations omitted). See
also Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1269 (9th Cir. 2009)
(quoting Coons v. Sec'y of U.S. Dept. of Treasury, 383 F.3d 879, 887 (9th Cir.
2004)). The claim requires the plaintiff to prove that but for his or her engagement
in protected activity he or she would not have experienced the adverse action.
T.B. ex rel. Brenneise, 806 F.3d at 473.
The record in this case does not support a finding that Missoula Schools
engaged in retaliatory conduct as prohibited under the ADA, and no reasonable
jury could conclude retaliation occurred under the facts presented. For purposes
of the retaliation analysis, the Court assumes, without deciding, that Lagervall had
engaged in an activity protected under the ADA.4 Additionally, the Court assumes
the restrictions Missoula Schools imposed on Lagervall’s access to the Sentinel
campus was an action that was adverse to him. Nonetheless, Missoula Schools
has demonstrated there exists no evidence in the record suggesting that the
restrictions it imposed were the result of any protected activity in which Lagervall
may have engaged. Instead, the record reflects the restrictions were the result of

4

Defendants do not seek to establish that Lagervall had not been engaged in
a protected activity. Arguably, Lagervall may have been asserting his own rights
as a disabled person to participate in, or gain access to, the educational process
provided to P.L. at Sentinel.
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Lagervall’s history of intimidating, aggressive, disruptive and angry behavior. In
view of Lagervall’s behavior, the evidence in the record does not suggest that
Missoula Schools would not have imposed restrictions on Lagervall’s access but
for any protected activities in which Lagervall engaged. Therefore, Missoula
Schools’ motion for summary judgment on the retaliation claim should be granted.
Similarly, the ADA also prohibits coercive or intimidating conduct as
follows:
It shall be unlawful to coerce, intimidate, threaten, or interfere with any
individual in the exercise or enjoyment of, or on account of his or her
having exercised or enjoyed, or on account of his or her having aided or
encouraged any other individual in the exercise or enjoyment of, any right
granted or protected by this chapter.
42 U.S.C. § 12203(b). See also 28 C.F.R. § 35.134(b). A violation of this
prohibition requires the plaintiff to establish that at the time the alleged coercive
or intimidating conduct occurred the plaintiff was exercising or enjoying a right
protected under the ADA. Alford v. City of Cannon Beach, 2000 WL 33200554,
*12 (D. Or. 2000).
Although the Court has not located decisional law within the Ninth Circuit
expressly discussing whether section 12203(b) requires that a causal link be
shown between a plaintiff’s protected conduct and a defendant’s unlawful
conduct, the Court concludes, by analogy with other federal laws, that section
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12203(b) requires a causal link. Federal Fair Housing Act laws similarly prohibit
a defendant from engaging in coercive or intimidating conduct towards a person
who is exercising rights protected under fair housing laws. The specific statute
prohibiting the wrongful conduct employs the exact same language as that used
under the ADA in 42 U.S.C. § 12203(b) quoted above. See 42 U.S.C. § 3617.
The language in section 3617 is construed to prohibit a defendant from engaging
in coercive or intimidating conduct because of the plaintiff’s protected activity.
Smith v. Housing Authority of South Bend, 867 F. Supp. 2d 1004, 1016 (N.D.
Indiana 2012). See Arceneaux v. Marin Housing Authority, 2015 WL 3396673, *6
(N.D. Cal. 2015) (dismissing section 3617 claim where allegations demonstrated
defendant’s alleged wrongful conduct occurred because of reasons other than the
plaintiff’s protected activity).
Because section 12203(b) of the ADA employs language identical to the
language in section 3617 of the Fair Housing Act, the Court construes section
12203(b) to impose the same requirement of a causal link between a plaintiff’s
protected activities and the defendant’s alleged wrongful coercive or intimidating
conduct. Thus, Lagervall must demonstrate that any alleged coercive or
intimidating conduct committed by Missoula Schools was because of his
engagement in activities protected under the ADA.
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Lagervall’s allegations suggest Missoula Schools sought to coerce and
intimidate him by means of the letter Fuller issued to him on November 4, 2015,
and by its deployment of Officer Monaco, a law enforcement officer, for the
purpose of delivering Fuller’s letter and preventing Lagervall from entering the
school building on November 4, 2015. But Missoula Schools has presented
sufficient evidence in the record demonstrating the absence of a genuine issue of
fact as to the reason Fuller issued his letter to Lagervall, and the reason Officer
Monaco was directed to interact with Lagervall. The reason those events occurred
was because of Lagervall’s disruptive, aggressive, and angry behavior towards
employees at Sentinel. No reasonable jury could conclude Missoula Schools’
actions were taken because of any protected activity in which Lagervall engaged.
The summary judgment motion should be granted in this respect.
D. Effective Communication
Lagervall’s allegations suggest Missoula Schools engaged in conduct which
prevented effective communication between Sentinel staff and Lagervall in
violation of the ADA. Missoula Schools moves for summary judgment dismissing
this claim.
Regulations promulgated under the ADA require a “public entity” to take
appropriate steps to ensure that its communications with disabled individuals are
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effective. 28 C.F.R. § 35.160(a)(1). Lagervall alleges that during his
communications with staff at Sentinel:
the volume of my voice increased (part of my documented disability) this
made verbal communication inadequate. I stated that I would bring [Fuller]
a copy of the normal accommodations needed to ensure equally effective
communication. 28 C.F.R. 35.160.
(Doc. 2-1 at 2.) Significantly, however, Lagervall does not allege that Missoula
Schools refused to make accommodations for his disability so as to make
communications with him effective. Rather, it appears from his allegations that he
contends Fuller’s letter imposing restrictions upon his access to the Sentinel
campus impeded his opportunities for communications. But, Fuller’s affidavit
confirms that in response to his letter Lagervall obtained permission for access to
Sentinel, and Lagervall was granted such permission several times. Fuller is not
aware of any time Lagervall’s request for access was denied. Therefore, the record
reflects that Lagervall’s opportunities for effective communication were preserved
and exercised by Lagervall. There exists no evidence in the record suggesting
Missoula Schools refused to make accommodations for Lagervall to make
communications with him effective. Missoula Schools motion should be granted
in this respect.

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IV.

Conclusion
Based on the foregoing, IT IS RECOMMENDED that Defendants’ motion

for summary judgment be GRANTED, and this action be DISMISSED.
And in view of this recommended dismissal, IT IS ORDERED that
Defendants’ motion to compel Lagervall to respond to discovery requests, and
Lagervall’s motion to extend the deadline for filing his summary judgment motion
(doc. 23 at 2) are DENIED.
DATED this 22nd day of August, 2017.

Jeremiah C. Lynch
United States Magistrate Judge

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