United States Court of Appeals For the First Circuit

No. 24-1098

LUTHER C. PARENTE; ERIC L. STEWART,

Plaintiffs, Appellees,

v.

NELSON LEFEBVRE, in his official capacity as Warden of the Department of Corrections Intake Service Center; MICHELLE GARRIEPY, JENNIFER MAGEAU, and NANCY RUOTOLO HULL, in their official capacities as Registered Nurses for the Department of Corrections; RHODE ISLAND DEPARTMENT OF CORRECTIONS,

Defendants, Appellants,

ASHBEL T. WALL, individually; MATTHEW KETTLE, individually and in his official capacity as Warden of the Department of Corrections Maximum Security Facility; JENNIFER CLARKE, individually and in her official capacity as Medical Director of the Rhode Island Department of Corrections; SIMON MELNICK, individually and in his official capacity as Corrections Physician of the Department of Corrections; TEJ BANSAL, individually and in her official capacity as Corrections Physician of the Rhode Island Department of Corrections; MARTIN J. BAUERMEISTER, individually and in his official capacity as Psychiatrist of the Rhode Island Department of Corrections; FRED H. VOHR, individually; PATRICIA ANNE COYNE-FAGUE, in her official capacity as Director of the Rhode Island Department of Corrections; WAYNE J. SALISBURY, JR., in his official capacity as Acting Director of the Rhode Island Department of Corrections; NELSON LEFEBVRE, in his individual capacity; MICHELLE GARRIEPY, in her individual capacity; JENNIFER MAGEAU, in her individual capacity; NANCY RUOTOLO HULL, in her individual capacity,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. Mary S. McElroy, District Judge]

Before

Gelpí and Rikelman, Circuit Judges Katzmann,* Judge

James J. Arguin, Special Assistant Attorney General, Office of the Attorney General of Rhode Island, for appellants. Chloe A. Davis, with whom Richard A. Sinapi and Sinapi Law Associates, Ltd. were on brief, for appellees.

December 5, 2024

* Of the United States Court of International Trade, sitting by designation. GELPÍ, Circuit Judge. Plaintiffs-Appellees Luther C.

Parente ("Parente") and Eric L. Stewart ("Stewart") sued the Rhode

Island Department of Corrections and its staff (collectively,

"RIDOC") for failing to properly treat their preexisting medical

conditions. They allege various federal and state constitutional,

statutory, and common law bases for relief, including a claim under

the Rhode Island Civil Rights Act of 1990 ("RICRA"). Only the

RICRA claim is before us. The district court denied RIDOC's motion

for summary judgment on Eleventh Amendment grounds as to RICRA.

RIDOC argues that the district court erred in holding that

violations of civil rights under RICRA are subject to the general

waiver of Eleventh Amendment immunity under Rhode Island's Tort

Claims Act.1 Parente and Stewart respond that the Rhode Island

Supreme Court's decision in Laird v. Chrysler Corp.,

(R.I. 1983), establishes that RICRA claims must be subject to this

general waiver. In evaluating the Eleventh Amendment question

posed by this appeal, we conclude that there is "special reason"

to certify the underlying state-law issue to the Rhode Island

Supreme Court. Figueroa-Rodriguez v. Aquino,

(1st Cir. 1988) ("[I]f the [federal] court felt there was special

reason to do so, it could certify the [state-law] issue to the

[relevant state supreme court], whose finding of waiver, if made,

1 Individual-capacity defendants are not parties to this appeal.

- 3 - would be binding . . . notwithstanding the statute's lack of

explicit language.").

I. BACKGROUND

We begin by recounting the facts and procedural history

of the case. A lengthy summary of the facts is unnecessary for

this opinion. Instead, we opt to briefly recite only those facts

necessary to understand the parties' arguments. For greater

detail, consult Parente v. Wall,

, 197-99

(D.R.I. 2023).

A. Parente and Stewart's Allegations

Parente and Stewart entered RIDOC's custody with

preexisting injuries.2 Parente injured his ankles while attempting

to evade arrest. After several visits to non-RIDOC hospitals

following his arrest, medical staff diagnosed Parente with a

calcaneal fracture of his right foot and ankle and additional

fractures in his left heel and ankle. Parente's hospital discharge

papers recommended, among other things, that he use a carter pillow

to elevate his feet, ice his injuries, use a trauma chair with arm

rails, and take medication to manage his pain and to prevent blood

clots. Stewart, on the other hand, entered custody having already

sprained his ankle about a month before his arrest. His treating

2 In addition to their physical injuries, Parente and Stewart had long histories of psychiatric conditions.

- 4 - physicians at a non-RIDOC hospital advised him to use crutches, to

keep his leg elevated, to apply ice on his ankle, and to use

medication to manage his pain.

Parente and Stewart sued RIDOC on February 10, 2016,

alleging various federal and state constitutional, statutory, and

common law bases for relief. They amended that complaint for the

second time on June 22, 2020. Generally, they claimed that RIDOC's

medical and correctional staff failed to meet their medical needs.

Because of the limited nature of this appeal and our decision, we

discuss only Count II of their Second Amended Complaint -- the

claims under RICRA, R.I. Gen. Laws § 42-112-1 to -2. Specifically,

Parente and Stewart allege that RIDOC's corrections and medical

staff "discriminated against" them and caused them to "suffer harm"

by "depriv[ing] them of their rights under RICRA," including their

"rights to reasonable accommodations." In its answer, RIDOC denied

the allegations contained in Count II and asserted that it was

immune from liability under RICRA, pursuant to the Eleventh

Amendment to the United States Constitution.

B. District Court Proceedings

On February 23, 2023, the parties filed cross motions

for summary judgment. With respect to Count II, RIDOC pressed its

sovereign immunity argument. But the district court disagreed

with RIDOC's assessment. In denying RIDOC's motion, the district

court reasoned that Rhode Island had adopted a general waiver of

- 5 - its sovereign immunity for "all actions of tort" through the

enactment of the State Tort Claims Act. Parente, 708 F. Supp. 3d

at 211 (emphasis added) (quoting Laird,

). The

district court analogized an action for damages under RICRA to an

action for damages under the since-amended Civil Rights Act of

1968, which "sound[ed] basically in tort," and determined that

RICRA was thus not subject to Eleventh Amendment immunity.

(quoting Curtis v. Loether,

(1974)); see also

(1974), repealed and amended by Fair Housing

Amendments Act of 1988,

(2),

, 1625. Accordingly, the district court concluded that the

general waiver enacted under the State Tort Claims Act also applied

to actions under RICRA. Parente, 708 F. Supp. 3d at 212.

The district court further explained that the Rhode

Island Supreme Court held in Pellegrino v. Rhode Island Ethics

Commission,

(R.I. 2002), that "a waiver of

sovereign immunity may be implicit and need not be express in the

statute that gives rise to the cause of action." Parente, 708 F.

Supp. 3d at 211. Therefore, the district court reasoned, the

critical question here was "whether discrimination actions [under

RICRA] sound in tort." Id. The district court, relying on

precedent from various federal and state cases,3 answered that

3 The district court cites the following federal and state cases in its decision: Curtis,

; Rathbun v. - 6 - question in the affirmative, holding that "Rhode Island's general

waiver of sovereign immunity statute requires us to find that

immunity has been waived." Parente, 708 F. Supp. 3d at 212.

RIDOC timely appealed that decision. We have

jurisdiction under the collateral order doctrine to review the

district court's decision to deny RIDOC immunity under the Eleventh

Amendment. Nieves-Marquez v. Puerto Rico,

(1st Cir. 2003) (citing P.R. Aqueduct & Sewer Auth. v. Metcalf &

Eddy, Inc.,

(1993)).

II. DISCUSSION

A. Sovereign Immunity and the State Tort Claims Act

"The Eleventh Amendment generally bars suits against

states and state officials" in federal court. Doe v. Shibinette,

(1st Cir. 2021) (citing Ex parte Young,

(1908)). States "may waive [their] eleventh amendment immunity

to suit." Della Grotta v. Rhode Island,

(1st

Cir. 1986) (citations omitted), abrogated on other grounds by Will

v. Mich. Dep't of State Police,

(1989). The question

of whether the state has waived sovereign immunity against suit in

Autozone, Inc.,

(1st Cir. 2004); Acevedo Lopez v. Police Dep't of P.R.,

(1st Cir. 2001); Milton v. Scrivner, Inc.,

(10th Cir. 1995); Mancuso v. Douglas Elliman LLC,

(S.D.N.Y. 2011); McMillan v. Lincoln Fed. Sav. Loan Ass'n,

, 92 (D.N.J. 1988); Marrapese v. Rhode Island,

(D.R.I. 1980); Pellegrino,

; and Laird,

.

- 7 - federal court is one of federal law. When evaluating whether a

statute includes such a waiver, this court "will find waiver only

where stated 'by the most express language or by such overwhelming

implications from the text as [will] leave no room for any other

reasonable construction.'" Davidson v. Howe,

(1st

Cir. 2014) (alteration in original) (first quoting Edelman v.

Jordan,

(1974); then quoting Murray v. Wilson

Distilling Co.,

(1909)). We can also find a

waiver of Eleventh Amendment immunity as a matter of federal law

if a state's highest court has expressly held that the state

statute at issue includes such a waiver. See Della Grotta,

(explaining that the rule "that waiver may not be

inferred from a less than explicit statute" was "designed to

protect a state from a federal court's ill-founded, possibly

mistaken, view of what its state legislature really intended").

The State Tort Claims Act, R.I. Gen. Laws § 9-31-1(a),

provides that Rhode Island is "liable in all actions of tort in

the same manner as a private individual or corporation" (emphasis

added). In Laird, the Rhode Island Supreme Court interpreted the

State Tort Claims Act to contain "sweeping language abrogating the

sovereign immunity of the state as well as all other political

subdivisions in Rhode Island," including for suits in federal

court.

. RICRA, on the other hand, protects

individuals from discrimination. R.I. Gen. Laws § 42-112-1 to -2.

- 8 - Section 42-112-1(a) provides, in relevant part, that "[a]ll

persons within the state, regardless of race, color, religion,

sex, disability, age, or country of ancestral origin,

have . . . the same rights . . . to the full and equal benefit of

all laws and proceedings for the security of persons and property."

RICRA does not expressly state whether the state is immune from

suit.

RIDOC argues that the district court erred by broadening

that waiver of the state's Eleventh Amendment immunity from suit

to include cases brought under RICRA. RIDOC rests its argument on

the stringent test articulated by the U.S. Supreme Court in

Edelman, which is that a state's waiver of sovereign immunity must

be presented in "the most express language or by such overwhelming

implications from the text as [will] leave no room for any other

reasonable construction." 415 U.S. at 673 (internal quotation

marks and citation omitted). Since RICRA neither expressly

mentions waiving sovereign immunity nor implicitly suggests it

through such an "overwhelming implication[]," id., RIDOC argues

that the district court erred in interpreting the State Tort Claims

Act to have waived Eleventh Amendment immunity over claims based

on RICRA.

B. Certification

This court typically reviews de novo a district court's

denial of an Eleventh Amendment immunity-based motion for summary

- 9 - judgment. Fresenius Med. Care Cardiovascular Res., Inc. v. P.R.

& the Caribbean Cardiovascular Ctr. Corp.,

(1st

Cir. 2003) (citing Arecibo Cmty. Health Care, Inc. v. Puerto Rico,

, 22 (1st Cir. 2001)). For Rhode Island to have waived

its sovereign immunity for civil rights claims under RICRA, those

claims need to be considered "actions of tort" under the State

Tort Claims Act. R.I. Gen. Laws § 9-31-1(a).

As we noted above, whether a state has waived Eleventh

Amendment immunity is a question of federal constitutional law.

See Edelman,

. Ordinarily, "we will not consider

a State to have waived its sovereign immunity" where "a statute is

susceptible of multiple plausible interpretations." Sossamon v.

Texas,

, 288 (2011) (holding that a state's acceptance

of federal funds pursuant to the ambiguous terms of a federal

statute did not constitute waiver). And in most cases,

certification to a state's highest court is not the appropriate

remedy. See Micomonaco v. Washington,

(9th Cir.

1995) (resolving, rather than certifying, the question of whether

a Washington statute waived Eleventh Amendment immunity); see also

Minotti v. Lensink,

(2d Cir. 1986) (concluding

that a Connecticut statute, which the Connecticut Supreme Court

interpreted to waive sovereign immunity in state court, did not

unambiguously waive Eleventh Amendment immunity in federal court

and therefore finding no waiver). Of course, federal courts need

- 10 - to interpret state law while deciding the ultimate federal question

at issue: whether a state has waived Eleventh Amendment immunity.

See Atascadero State Hosp. v. Scanlon,

(1985)

(reading a California constitutional provision not to waive

sovereign immunity but only to authorize the state legislature's

waiver of sovereign immunity and therefore declining to find

waiver). Accordingly, we have held that where there is "special

reason to do so," a federal court grappling with an underlying

state-law issue while interpreting a state statute may "certify

the issue to" the relevant state supreme court, "whose finding of

waiver, if made, would be binding . . . notwithstanding the

statute's lack of explicit language." Figueroa-Rodriguez,

.

Here, we are presented with one such special reason to

certify. The parties' dispute focuses on the scope of Laird, a

Rhode Island Supreme Court decision. In particular, counsel for

Parente and Stewart contended at oral argument that Laird alone

establishes waiver in this case. She pointed to Laird's

interpretation of the State Tort Claims Act as reflecting "a

legislative intent to place the state in the same position as any

other private litigant and thus amenable to suit in either state

or federal court," and Laird's reasoning that "in order to have an

actionable claim against the state, just as with a private

defendant, a plaintiff must show that there was a breach of a duty

- 11 - owed to him or her in an individual capacity and not merely a

breach of some obligation owed to the general public."

-30 (citing Ryan v. State Dep't of Transp.,

(R.I. 1980)). Counsel for Parente and Stewart therefore frames

the issue as one requiring us to interpret a potential ambiguity

in Laird itself. In these circumstances, we choose to exercise

our discretion to certify the state-law question below to the Rhode

Island Supreme Court. In so doing, we reserve for a later date

the federal constitutional question of whether state law, as

interpreted by the Rhode Island Supreme Court, waives immunity "by

the most express language or by such overwhelming implications

from the text as [will] leave no room for any other reasonable

construction." Edelman,

(internal quotation marks

and citation omitted).

The Rhode Island Supreme Court "may answer questions of

law certified to it" if the state-law question "may be

determinative of the cause then pending in the certifying court"

and "it appears to the certifying court there is no controlling

precedent in the decisions of the Supreme Court." R.I. Sup. Ct.

R. 6. The conditions necessary for certification, in our view,

are satisfied here.

We begin by considering how the question we certify may

be determinative of the issue before us. As mentioned, the State

Tort Claims Act waived Eleventh Amendment immunity for "all actions

- 12 - of tort." R.I. Gen. Laws §9-31-1(a) (emphasis added). The Rhode

Island Supreme Court in Laird held that the Rhode Island

legislature, by enacting this provision, intended "to place the

state in the same position as any other private litigant and thus

amenable to suit in either state or federal court."

. But Parente and Stewart do not bring claims under the State

Tort Claims Act. Rather, their claims hinge on alleged violations

of their rights under RICRA -- a separate statute that is silent

as to immunity. R.I. Gen. Laws § 42-112-1 to -2. Thus, a

subsidiary state-law question in this appeal is whether claims

under RICRA are "actions of tort" under the State Tort Claims Act.

If they are not, then the Eleventh Amendment would bar their RICRA

claims. And as noted above, we have held that a state's highest

court can speak with finality on whether a state statute was

intended to waive the state's Eleventh Amendment immunity. Della

Grotta,

. Therefore, an answer from the Rhode

Island Supreme Court on this open question of state law may be

outcome-determinative.

Having concluded that the answer to the certified

question may be determinative of the issue before us, we next

address the lack of dispositive state court precedent. The Rhode

Island Supreme Court has not addressed whether RICRA claims are

covered by the general waiver of sovereign immunity under the State

Tort Claims Act.

- 13 - The district court relied on Pellegrino,

,

in which the Rhode Island Supreme Court held that the state had

waived its sovereign immunity in suits brought by former members

of the Rhode Island Ethics Commission in state court. The Court

found waiver "by necessary implication from the very statutory

terms that provided for specific compensation" to be paid to the

plaintiffs for attending commission meetings.

.

But unlike the plaintiffs in Pellegrino, Parente and Stewart do

not suggest that the text of the statute at issue (here, RICRA)

necessarily implies a waiver. Instead, they rely on the express

waiver in the State Tort Claims Act. The more precise question is

whether the text of the State Tort Claims Act, properly construed,

includes waiver of immunity over RICRA claims. Pellegrino is

therefore inapplicable here.4

The district court's reliance on the U.S. Supreme

Court's decision in Loether was similarly misplaced. In Loether,

the Court held that a private enforcement action arising under the

Civil Rights Act for money damages "sound[ed] basically in tort"

4 Further, Pellegrino concerned waiver of Rhode Island's sovereign immunity in state, not federal, court. To the extent that the district court suggested that Pellegrino's holding was in tension with our holding in Acevedo Lopez,

, we disagree. Both cases acknowledge that immunity may be waived by necessary implication from statutory text. See Pellegrino,

(phrasing it as "necessary implication"); Acevedo Lopez,

(phrasing it as "overwhelming implication[]" precluding "any other reasonable construction" (quoting Edelman,

)).

- 14 - and, in turn, was an action "to enforce legal rights" triggering

the Seventh Amendment's jury-trial guarantee. 415 U.S. at 196-97.

RICRA, on the other hand, authorizes both money damages and

"injunctive and other appropriate equitable relief." R.I. Gen.

Laws § 42-112-2 (2024). Hence, the statute at issue in Loether is

not fully analogous here, where Parente and Stewart request damages

and injunctive relief on the basis of RICRA. And in any event,

whether RICRA is an "action[] of tort" is a question of Rhode

Island law, so any reasoning as to analogous federal laws might be

persuasive but not binding. W. Rsrv. Life Assur. Co. v. ADM

Assocs., LLC,

(1st Cir. 2013) ("[T]he Rhode

Island Supreme Court is the ultimate arbiter of matters of Rhode

Island law . . . .").

For these reasons, we conclude that it is an open

question under Rhode Island law whether discrimination claims

under RICRA are covered by the waiver of sovereign immunity

articulated in the State Tort Claims Act.

III. CONCLUSION

In light of the foregoing, we certify the following

question to the Rhode Island Supreme Court:

1. Whether discrimination claims under the Rhode Island

Civil Rights Act of 1990, R.I. Gen. Laws § 42-112-1 to -2, are

"actions of tort" under the State Tort Claims Act, R.I. Gen. Laws

§ 9-31-1(a)?

- 15 - We would welcome further guidance from the Rhode Island

Supreme Court on any other relevant aspects of Rhode Island law

that it understands would aid in the proper resolution of the

issues pending in this matter.

The clerk of this court is directed to forward to the

Rhode Island Supreme Court, under the official seal of this court,

a copy of the certified question, this opinion, the district

court's opinion, and the merits briefs and appendices filed by the

parties. We retain jurisdiction over this issue pending resolution

of this certified question.

It is so ordered.

- 16 -