D.N.Mex: dismiss ADA and Rehabiliation Act claims for failure to show has disability

The District Court of New Mexico dismissed a lawsuit by a medical student against the University of New Mexico and the National Board of Medical Examiners (NBME).

The medical student claimed that the University and NBME violated his rights under Title II of the Americans with Disabilities Act, the Rehabilitation Act, and state contract law by refusing to grant him accommodations on the United States Medical Licensing Examination. The court dismissed the claims under 42 U.S.C. § 1983 because of Eleventh Amendment sovereign immunity. It dismissed the ADA and Rehabilitation Act claims for failure to satisfy the requirement that the plaintiff show he has a disability. Finally the court dismissed the state contract law claim for lack of jurisdiction over a state law claim. Cunningham v. Univ. of New Mexico Bd. of Regents, 2011 WL 1548389 (D.N.M. April 20, 2011). Judge Black, nominated by President Clinton, wrote the opinion.

Chad Cunningham, a medical student at the University of New Mexico, was diagnosed with Scoptic Sensitivity Syndrome (SSS) during a leave of absence from school. When he returned to school, he requested accommodations for SSS, but the University refused. Nevertheless, he completed the first two years of medical school and passed his medical school exams.

Subsequently, Cunningham took the United States Medical Licensing Examination without any accommodations but did not pass. He then requested accommodations from the National Board of Medical Examiners, but NBME asked for further proof of his disability. He asked the University to help him convince NBME to provide him with accommodations, but the University refused. He retook the Licensing Examination without accommodations, and failed again. He brought a lawsuit against the NBME and the University claiming that they violated 42 U.S.C. § 1983, the ADA, the Rehabilitation Act, and state contract law.

The court addressed the bar of the Eleventh Amendment. The court stated that a public university is clearly an “arm of the state.” The plaintiff had sued state agencies, instead of state officials in their official capacity, and therefore, sovereign immunity barred the claims under 42 U.S.C. § 1983. Following four court of appeals, the New Mexico district court held that Congress had abrogated sovereign immunity under Title II of the ADA. The court then incorrectly stated that the Rehabilitation Act also abrogated sovereign immunity, citing to a case that actually held that the state waived immunity from suit under the Rehabilitation Act.

The court rejected NBME’s argument that the clams against it were not ripe. Though NBME had not rejected Cunningham’s application for accommodations, it had requested more proof before it would grant the request. This extra burden on Cunningham made the issue ripe for judicial review.

The court then turned to the merits of the ADA and Rehabilitation Act claims. Title II of the ADA requires that no person be excluded from participation in activities of a public agency because of a disability. 42 U.S.C. § 12131(2). Cunningham, according to the court, had not adequately pled that he had a “disability” as defined in the statute. The court noted that reading is a major life activity, as referenced in the ADA. But Cunningham did not allege that he was unable to read. The court stated: “Plaintiff has not alleged that his SSS condition substantially limits reading or any other life activity.” He was able to succeed in school up to the MLE without accommodations utilizing colored glasses and blood pressure medication. The court reasoned that Cunningham’s ability to mitigate his condition meant that he had not stated that he was disabled under the ADA, and that he failed to state a claim under 12(b)(6) of the Federal Rules of Civil Procedure. The Rehabilitation Act requires the same showing of a disability, and so for the same reason, Cunningham had failed to state a claim under 12(b)(6) for a violation of the Rehabilitation Act. The court cited a case from 1998 and did not discuss the impact of the 2008 legislative changes to the definition of disability which specifically instructed courts that the determination of an impact on a major life activity should be determined “without regard to the ameliorative effects of mitigating measures such as medication.” 42 U.S.C. § 12102(4)(E)(i)(I).

Only the state law claims remained after dismissing the ADA and Rehabilitation Act claims. The court only had supplemental jurisdiction over the state law claims. After dismissing the federal claims, it could no longer take jurisdiction over the state law claims.


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