                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 18a0055n.06

                                        Case No. 17-1344
                                                                                        FILED
                                                                                  Jan 30, 2018
                                                                              DEBORAH S. HUNT, Clerk
                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


ALEXANDRA BEDFORD,                                  )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE WESTERN DISTRICT OF
STATE OF MICHIGAN; COUNTY OF                        )       MICHIGAN
KALAMAZOO,                                          )
                                                    )
      Defendants-Appellees.                         )
____________________________________/               )


Before: MERRITT, MOORE, and BUSH, Circuit Judges.

       MERRITT, Circuit Judge. This federal case arises from domestic-relations litigation in

family court in Kalamazoo, Michigan, in which plaintiff Alexandra Bedford was a party.

Plaintiff appeals from a district court ruling in favor of defendants, the State of Michigan and the

County of Kalamazoo, Michigan, dismissing pursuant to Federal Rule of Procedure 12(b)(6) her

claims under the broad language of Title II of the Americans with Disabilities Act, 42 U.S.C.

§ 12131 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. In the state-court

action, plaintiff claimed as an “invisible disability” her particular tendency to become stressed or

extremely nervous when engaged in litigation. She asked the state court judge presiding over her

domestic relations case to allow her to have a “disability advocate” represent her rather than a

lawyer. She asks this court to recognize “litigation stress” as a disability and as a basis for
Case No. 17-1344, Bedford v. Michigan, et al.


substituting a “disability advocate” with training in “litigation stress syndrome” to represent her

in her domestic relations case. For the following reasons, we affirm the district court’s dismissal

of plaintiff’s complaint. She has failed to state a claim demonstrating that she was denied a

required accommodation for a recognized disability.

       At the outset, it should be noted that the Supreme Court in Tennessee v. Lane, 541 U.S.

509 (2004), upheld the constitutionality of Title II against Eleventh and Fourteenth Amendment

claims. The Court cautioned nevertheless that “Title II does not require States to employ any and

all means to make judicial services accessible to persons with disabilities, and it does not require

States to compromise their essential eligibility criteria for public programs.” Id. at 531-32.

                                                 I.

       Plaintiff was a litigant appearing before the state family court pro se when she sought

accommodations for her alleged disability. Plaintiff is represented by counsel in this action

before our court, and she was represented by counsel below in the federal district court. Plaintiff

calls her disability a “diagnosed invisible disability,” specifically “extreme anxiety” that triggers

symptoms that include an “inability to concentrate, understand, and speak in an effective manner

when under stress.” Second amended complaint at ¶¶ 1, 4. Claiming physical and emotional

injury, plaintiff maintains that

       Defendants have discriminated intentionally against Plaintiff in violation of Title
       II of the ADA, by refusing to provide auxiliary aids and services necessary to
       ensure an equal opportunity for Plaintiff to participate in Defendants’ programs
       and activities.

Second amended complaint at ¶¶ 59-60 (citation omitted). Plaintiff submitted numerous requests

to the Michigan state court to provide accommodations during three hearings held in 2015. In

her second amended complaint, filed in federal district court below, she included the following

five requested accommodations she made to the state court: (1) that telephonic hearings be held

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for nonevidentiary hearings; (2) allow short breaks in proceedings if plaintiff was becoming

symptomatic, i.e., “stressed”; (3) allow plaintiff to digitally record proceedings for her immediate

and private use to offset memory deficits brought on by her condition, and for which written

transcripts would not be available in a timely manner; (4) allow a “disability advocate” to act on

her behalf during court proceedings; and (5) access to a court administrator regarding her

accommodations.

         Contrary to plaintiff’s claim that the state court denied her requests for accommodations,

the record discloses that the state court specifically allowed plaintiff to appear by telephone for

nonevidentiary hearings, and stated it always tried to accommodate litigants’ reasonable requests

for short breaks during proceedings.1             The court denied her request to record proceedings

because all court proceedings are recorded and transcripts are available. The court denied her

request for representation by a “disability advocate” because the advocate was not a lawyer, and

it denied her request for access to a court administrator to the extent that plaintiff wished

unfettered, direct access to court personnel. Instead, the court ruled that plaintiff’s requests for

accommodations must be in writing to be considered.

         In late 2015, plaintiff filed her first complaint in federal court claiming violation of Title

II of the Americans with Disabilities Act and the Rehabilitation Act by numerous individual and

institutional defendants in the State of Michigan. After two more amendments to the complaint,

the district court dismissed the complaint for failure to state a cognizable claim under the

Americans with Disabilities Act or the Rehabilitation Act on two grounds: (1) that plaintiff did

not “allege specific facts that would plausibly describe a qualifying disability;” and (2) failure to


1
  In addition to the allegations in the complaint, we may also consider other materials that are integral to the
pleadings or are attached to the pleadings, including public records, and documents that are otherwise appropriate
for the taking of judicial notice, such as transcripts and filings from a state court proceeding. See Ashland, Inc. v.
Oppenheimer & Co., 648 F.3d 461, 467 (6th Cir. 2011).

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Case No. 17-1344, Bedford v. Michigan, et al.


“allege facts to show that she was denied ‘access’ to the courts either ‘solely’ by reason of such

‘disability’ or that she would have been treated differently ‘but for’ her ‘disability.’” D. Ct. op.

at 6.

                                                      II.

        To survive a motion to dismiss, a plaintiff must allege facts with sufficient specificity to

state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678–79

(2009). The plausibility standard “asks for more than a sheer possibility that a defendant has

acted unlawfully,” id. at 678, and instead “calls for enough fact to raise a reasonable expectation

that discovery will reveal evidence of [unlawful conduct].” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 556 (2007). Under the standard set out in Iqbal and Twombly, a court accepts as true all

factual allegations, but the court does not apply this presumption of truth to conclusory or legal

assertions. Iqbal, 556 U.S. at 678–79. If the plaintiff’s facts, accepted as true, do not state a

claim that has facial plausibility, the plaintiff has not satisfied the pleading requirements under

Rule 8, and the complaint will be dismissed. We review the district court’s ruling on a motion to

dismiss de novo. In re NM Holdings Co., 622 F.3d 613, 618 (6th Cir. 2010).

        Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132, states in broad

language that “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.” The broad language of the

statute and regulations leaves it to the federal judiciary to define what is a “disability” and what

action constitutes a required accommodation for such disability. To sustain a claim, a disabled

person must be denied meaningful access to a benefit or service. Alexander v. Choate, 469 U.S.

287, 301 (1985). Reasonable accommodation may be necessary to ensure meaningful access;



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and a refusal to modify a program or policy may, in view of the circumstances, become

unreasonable and discriminatory. Id.; see also Ability Center v. City of Sandusky, 385 F.3d 901,

907 (6th Cir. 2004). The language of Title II generally tracks the language of Section 504 of the

Rehabilitation Act, and the jurisprudence interpreting either section is applicable to both and

should be interpreted and applied consistently. See MX Group, Inc. v. City of Covington,

293 F.3d 326, 332 (6th Cir. 2002).

       To establish a claim under Title II of the Americans with Disabilities Act, a plaintiff must

show: (1) that she is a qualified individual with a disability; (2) that she was excluded from

participation in a public entity’s services, programs, or activities or was otherwise discriminated

against; and (3) that such exclusion or discrimination was by reason of her disability. See

Anderson v. City of Blue Ash, 798 F.3d 338, 357 (6th Cir. 2015).

A. Plaintiff’s Alleged Disability

       To survive a motion to dismiss, the plaintiff must first demonstrate that she is disabled

within the meaning of the Americans with Disabilities Act, and that such “impairment

[ ] substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Major life

activities include, but are not limited to, “caring for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning,

reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A).

       The district court ruled that plaintiff’s pleading contained “merely conclusory assertions

that she has a disability” because she does not allege specific facts that would plausibly describe

a qualifying disability. D. Ct. op. at 6 (citing Marks v. Tennessee, 562 F. App’x 341, 346 (6th

Cir. 2014)). While we agree that the “bare bones” description in plaintiff’s pleading is lacking in




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detail, plaintiff’s accommodation request for the hearing dated June 4, 2015, describes her

“functional impairments” more fully:

        Bedford is concerned that her symptoms have caused her to be misperceived by
        the Court as uncooperative or resistant. In fact problems with expressive speech
        and concentration slows her reaction time. It is important to notice that Dr.
        Bedford’s impairment is an injury that is largely invisible. When under the stress
        of litigation, she may appear to be functional on a superficial level even when she
        is not. Dr. Bedford’s functioning is highest when she is in supportive and safe
        environments. Her functioning deteriorates when she is in non-supportive, unsafe
        environments, or when she is under any perceived time pressure or stress.
        Concentration is affected causing communication difficulties. Stress is causing
        somatic symptoms. Dr. Bedford—during litigation—cannot sleep normally, rest,
        or recuperate due to traumatic stress symptoms including nightmares and startle
        responses (i.e., she jumps when doorbell rings). She has hyper reactivity/hyper
        arousal and she can’t eat or sleep or digest food normally.

Accommodation Request at 2.

        Although we uncovered no case where a court has recognized stress caused by litigation

to qualify as a disability covered by the Americans with Disabilities Act or the Rehabilitation

Act, and we do not do so here, depression and severe anxiety, whatever its cause, can rise to the

level of a disability. See, e.g., Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 572

(4th Cir. 2015) (anxiety can be a valid disability for purposes of the ADA); Santos v. City of New

York, No. 01-cv-0120, 2001 WL 1568813, *4 (S.D.N.Y. Dec. 7, 2001) (stress and depression

may be considered impairments depending on whether they result from a documented

physiological or mental disorder); Reilly v. Revlon, Inc., 620 F. Supp. 2d 524, 539 (S.D.N.Y.

2009) (finding that depression may qualify as a disability for purposes of the Americans with

Disabilities Act, “provided that the condition is not a ‘temporary psychological impairment’”).

We will assume, at this stage of the litigation, that plaintiff has a qualifying disability.




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B. Plaintiff’s Requested Accommodations

       In her brief for this appeal, plaintiff challenges the district court’s dismissal of her

complaint on the issue of whether she has sufficiently alleged a qualifying disability in her

second amended complaint. The accommodations she seeks reflect the nature of the disability

she asserts. Plaintiff has not made any argument in her brief on appeal discussing how the

handling of her accommodation requests excluded or limited her access to the state court, or how

she was otherwise discriminated against based on her alleged disability.

       Under Title II of the Americans with Disabilities Act, an individual may assert a claim

against a state or its employees for violation of the right of access to the courts. Tennessee v.

Lane, 541 U.S. at 533–34. The Disabilities Act requires reasonable accommodations for persons

with disabilities, to provide them “an even playing field,” but does not require that disabled

persons be treated preferentially or necessarily be given the accommodation of their choice.

Goldblatt v. Geiger, 867 F. Supp. 2d 201, 210 (D.N.H. 2012) (quoting Felix v. New York City

Transit Auth., 324 F.3d 102, 107 (2d Cir. 2003)). In Lane, the Supreme Court held that Title II

of the Americans with Disabilities Act’s “requirement of program accessibility” in the context of

the right of access to the courts “unquestionably is valid . . . as it applies to the class of cases

implicating the accessibility of judicial services.” 541 U.S. at 534. But, as quoted in the

introduction to this opinion, Lane cautioned that Title II requires only “reasonable modifications

that would not fundamentally alter the nature of the service provided,” not “to employ any and

all means to make judicial services accessible to persons with disabilities.” Id. at 531–32

(internal quotation marks omitted).

       In her second amended complaint, plaintiff enumerated five accommodation requests she

submitted to the state court. Plaintiff’s primary complaint is focused on the state court’s denial



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of her request to present her case through a “disability advocate.” We note that in response to at

least one of plaintiff’s requests for a disability advocate, plaintiff was directed to file a written

motion with the court if she wanted her disability advocate to be present with her when she

appeared in court. Plaintiff objected to filing a written motion and apparently did not do so. At

the October 1, 2015, show-cause hearing concerning plaintiff’s failure to pay certain court-

ordered fees, plaintiff did not appear in person and instead sent her “disability advocate” to

represent her. Because the person was not a lawyer, the court denied the person permission to

speak on plaintiff’s behalf because Michigan does not allow the unauthorized practice of law.

See Mich. Comp. Laws § 600.916(1).

       As the state court judge ruled, Michigan law generally prohibits appointment of a

nonlawyer to represent a party in state court. Plaintiff points to no authority that would require a

court to allow a “disability advocate” to substitute for representation by a lawyer, and she fails to

explain why she did not file a written motion requesting her “disability advocate” participate in

the proceedings when told this was necessary for the state court to consider her request. The

Americans with Disabilities Act does not require that a state court in a family-court proceeding

approve an accommodation that allows a party to present her case through a nonlawyer

“disability advocate” in violation of state law when the party did not file a motion as directed.

Plaintiff has the same right as all litigants to be assisted in court proceedings by a lawyer or to

speak on her own behalf, with or without the assistance of a lawyer. Imposing a federal duty to

allow a litigant to act through a “disability advocate” without complying with the state court’s

requirement to file a written motion on the issue would “fundamentally alter the services”

provided by the court in violation of Lane and is not a reasonable modification. Plaintiff was not

denied access to the court or prevented from participating in the proceeding either pro se or with



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a lawyer. Plaintiff represented herself competently at numerous points throughout the state-court

proceeding. The number of filings made and hearings held in the proceeding belie plaintiff’s

allegation that she was denied meaningful access to the courts. And the state court did make

reasonable modifications to its proceedings in response to plaintiff’s other requests.

         Even assuming plaintiff had a qualifying disability, she has not alleged facts to show that

she was denied access to the state court. In short, construing the second amended complaint,

with its allegations accepted as true and all reasonable inferences drawn in her favor, along with

consideration of the record in the state court proceeding, plaintiff failed to state a cognizable

claim.

         For the foregoing reasons, we affirm the judgment of the district court.




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