[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit

No. 99-1621

BARBARA A. BARTOLOMEO AND JOHN R. BARTOLOMEO,

Plaintiffs, Appellants,

v.

PLYMOUTH COUNTY HOUSE OF CORRECTIONS, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Selya, Circuit Judge, Campbell, Senior Circuit Judge, and Lipez, Circuit Judge.

Barbara A. Bartolomeo and John R. Bartolomeo on brief pro se. Joseph E. Kelleher and Kraus & Hummel LLP on brief for appellees.

August 16, 2000 Per Curiam. Between January and December 1998,

John Bartolomeo was confined at the Plymouth County

Correctional Facility (PCCF) in Massachusetts. He received

regular visits there from his parents, Barbara and Charles

Bartolomeo, in a first-floor visiting area. On one occasion

in June 1998, however, Barbara was unable to visit him

because of an unusual set of circumstances: John had been

placed in administrative segregation due to pending

disciplinary charges and, by rule, could only receive

visitors in a second-floor visiting area; Barbara allegedly

suffered from a malady that prevented her from using the

elevator; and PCCF officials refused to allow use of a

connecting stairway because of security concerns.

Mother and son responded with the instant pro se

action for injunctive relief and damages. As here relevant,

Barbara alleged a violation of her rights under Title II of

the Americans with Disabilities Act (ADA),

, and section 504 of the Rehabilitation Act,

, while John claimed an equal protection

violation. The district court, taking note of John's

intervening transfer to another facility, dismissed all

-2- requests for injunctive relief without prejudice on the

ground of mootness; that ruling has not been challenged on

appeal. As to the requests for damages, the court ended up

granting summary judgment for defendants--rejecting John's

claim on the merits and jettisoning Barbara's claims on

qualified immunity grounds. This appeal followed.

We shall assume arguendo that Barbara's appeal is

properly before us. A jurisdictional issue arises because,

in a joint request, both plaintiffs moved under Fed. R. App.

P. 4(a)(5) for an extension of time to appeal, and the

district court allowed John's request only. The most likely

basis for treating the two differently appears to be that

John had signed the motion while Barbara had not. Under

Fed. R. Civ. P. 11(a), "[a]n unsigned paper shall be

stricken unless omission of the signature is corrected

promptly after being called to the attention of the attorney

or party." Here, the omission of Barbara's signature was

not called to her attention, and she was appearing pro se.

In these circumstances, we are disinclined to dispose of her

appeal on jurisdictional grounds.

On the merits, however, the arguments advanced on

appeal by both plaintiffs prove clearly unavailing.

Barbara's principal contention is that the district court

-3- erred in rejecting her claims on qualified immunity grounds.

As neither side has disputed the point, we shall assume

without deciding that individuals may be subject to personal

liability under Title II of the ADA and the Rehabilitation

Act. But see, e.g., Walker v. Snyder,

(7th

Cir. 2000); Alsbrook v. City of Maumelle,

, 1005

n.8 (8th Cir. 1999) (en banc), cert. dismissed,

(2000).1 Even if so, we agree with the district court

that, under the circumstances with which the defendants were

confronted, a reasonable official would not have understood

that the actions taken violated a clearly established right.

See, e.g., Bilida v. McCleod,

(1st Cir.

2000) (delineating qualified immunity test).2

1 Neither below, in their untimely motion for reconsideration, nor on appeal have plaintiffs pursued their claims against the institutional defendants (or against the personal defendants in their official capacities). Being willing to afford only so much latitude to pro se litigants, we consider the claims abandoned. We add, without deciding the point, that their prospects of ultimately recovering damages appeared unpromising. See, e.g., Powers v. MJB Acquis. Corp.,

(10th Cir. 1999) (requiring showing of intentional discrimination in the form of "deliberate indifference" in order to obtain damages in this context). 2 While various courts have applied qualified immunity in the ADA context, see, e.g., Bartell v. Lohiser,

, ___,

, at *10 n.1 (6 th Cir. 2000); Gorman v. Bartch,

, 914-16 (8th Cir. 1998), one has briefly mused about the propriety of doing so, see Walker,

. As plaintiffs have raised no such objection, we do not address the matter.

-4- To be sure, just seventeen days before the events

in question here, the Supreme Court concluded that Title II

of the ADA applied in the prison context. See Pennsylvania

Dep't of Corrections v. Yeskey,

(1998). Courts

have reached the same conclusion concerning the

Rehabilitation Act. See, e.g., Stanley v. Litscher,

(7 th Cir. 2000). And defendants have not

disputed that prison visitation policies constitute

"services, programs, or activities" within the meaning of

. See, e.g., Crawford v. Indiana Dep't of

Corrections,

(7 th Cir. 1997) (noting

concession by state on that point); Niece v. Fitzner,

(E.D. Mich. 1996).

Nonetheless, the incident in question was an

isolated one, arising out of an apparent misunderstanding,

and resulting in just a single failed visit out of many

successful ones. It does not appear that Barbara was

deprived of "meaningful access" to the visitation program.

Theriault v. Flynn,

(1st Cir. 1998) (quoting

Alexander v. Choate,

(1985)); cf., e.g.,

Spurlock v. Simmons,

(D. Kan.

2000) (holding that restricting hearing-impaired inmate to

two thirty-minute calls per week on special telephone

-5- amounted to meaningful access). The provision of elevator

service ordinarily avoids rather than creates problems of

physical access. Barbara, it is true, had furnished

defendants with a physician's note explaining that her

anxiety disorder and claustrophobia rendered her

"particularly ... unable to tolerate riding in elevators."

Yet defendants' initial belief--that this meant simply that

assistance would be required (they offered the use of a

wheelchair)--was not an indefensible one. And once that

misimpression was dispelled, their refusal to make a

special, on-the-spot accommodation was not unreasonable--

especially with a throng of visitors milling about and with

Barbara (as she concedes) becoming increasingly

obstreperous. For these reasons, we conclude that qualified

immunity was properly invoked.3

Plaintiffs' remaining arguments require little

comment. John's equal protection claim can be summarily

rejected for the reason that he was not similarly situated

to his fellow inmates (all of whose visitors, it can be

3 From a broader standpoint, we also note that, in the wake of Yeskey, the manner in which the ADA is to be applied in the prison context and the appropriate level of judicial scrutiny are matters that remain unsettled. See, e.g., Onishea v. Hopper,

(11th Cir. 1999) (en banc), cert. denied,

(2000).

-6- inferred, were able to use the elevator). Both plaintiffs

complain that the district court acted prematurely in

entertaining the summary judgment motion without affording

adequate time for discovery. Yet they never moved for

relief under Fed. R. Civ. P. 56(f) or otherwise voiced any

such objection below.4 The issue has thus been waived, see,

e.g., de la Torre v. Continental Ins. Co.,

(1st Cir. 1994), and we find no plain error. Finally, they

object that a motion to amend their complaint (so as to add

an additional PCCF employee as defendant) was never

addressed. Since an allowance of the motion would not have

affected the disposition of the case, any error in this

regard was harmless.

Affirmed.

4Their summary judgment opposition contained only the single closing comment that the case "must proceed to the discovery phase," while their reconsideration motion made no reference to the matter at all.

-7-