United States District Court, D. Rhode Island
PATRICIA ROBISHAW, Executrix of the Estate of H.E.R., Plaintiff,
THE PROVIDENCE PROBATE COURT; PAUL V. JABOUR, in his Official Capacity as Clerk of the Providence Probate Court; and CITY OF PROVIDENCE, Defendants.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
matter emanates from a state court guardianship petition
relating to H.E.R. and her capacity to care for herself due
to Alzheimer's disease. Patricia Robishaw, as the
executrix of H.E.R.'s Estate (“Plaintiff”),
challenges the lawfulness and constitutionality of two fees
associated with the guardianship petition: (1) the fees
charged by H.E.R.'s court-appointed guardian ad litem
(“GAL Fee”); and (2) the statutory fee for filing
a petition in the Rhode Island Probate Court (“Probate
Court Fee”). Now before the Court is Plaintiff's
Motion for Summary Judgment (“Motion”). (ECF No.
31.) In it, Plaintiff asks the Court to hold that the two
fees violate Title II of the Americans with Disabilities Act
(“ADA”), the Rehabilitation Act (Counts I and V),
the United States Constitution's Due Process and Equal
Protection Clauses (Counts II, III and VI), and Article I,
Section 2 and 5 of the Rhode Island Constitution (Count IV
and VII). (See Pl.'s Mot., ECF No. 31; Am.
Compl., ECF No. 10.) For the following reasons, Plaintiff's
Motion is DENIED, and the Court sua sponte GRANTS
summary judgment for Defendants.
events leading up to this action commenced on May 24, 2012,
when Patricia Robishaw filed a petition with the Providence
Probate Court asking the court to appoint Robishaw as
guardian of her aunt, H.E.R. (Stipulation of Facts
(“SOF”) ¶ 35, ECF No. 29.) Robishaw
accompanied the petition with a $30.00 filing fee.
(Id. ¶ 38.) Robishaw also included a Decision
Making Assessment Tool (“DMAT”) from Brian Ott,
M.D. (Id. ¶ 36.) Dr. Ott was not H.E.R.'s
primary care physician, (see Part 1 of Ex. to SOF
PL0050, ECF No. 29-1), but nevertheless diagnosed H.E.R. with
Alzheimer's disease “which will become
progressively more severe over time.” (Part 2 of Ex. to
SOF PL00143, ECF No. 29-2.) Based on his assessment, Dr. Ott
concluded that H.E.R. required a substitute decision maker
for financial matters, as well as limited assistance in
health care matters, relationships, and residential matters.
(Id. at ¶ 00146.)
24, 2012, in response to Robishaw's petition, the
Providence Probate Court appointed Robert R. Nocera as
H.E.R.'s guardian ad litem (“GAL”) pursuant
to R.I. Gen. Laws § 33-15-7. (SOF ¶ 43, ECF No.
29.) After interviewing H.E.R. and Robishaw, as required by
statute, Nocera filed a Guardian Ad Litem Report with the
Providence Probate Court. (Id. ¶ 47.) The
report contained a detailed account of Nocera's
investigation into H.E.R.'s condition and concluded,
inter alia, that “[t]he guardian ad litem is of the
opinion that [H.E.R.] is in need of at least a limited
guardian at this time.” (Part 2 of Ex. to SOF PL00129,
ECF No. 29-2; Id. ¶¶ 47-48.)
Nocera filed his report, H.E.R. formally objected to the
petition and submitted a competing DMAT from her primary care
physician, Dr. Richard J. Ruggieri and a psychologist, Dr.
Eugene D'Andrea. (SOF ¶ 51, ECF No. 29.) Drs.
Ruggieri and D'Andrea concluded that H.E.R. did not need
a substitute decision-maker in financial, health care,
relationships, or residential matters. (Part 2 of Ex. to SOF
PL0117; ECF No. 29-2.)
probate court refused to credit Dr. Ruggieri's DMAT
because it relied on guidance from Dr. D'Andrea and
instead ordered H.E.R. to submit to another examination by
Dr. Ott. (SOF ¶ 57.) Dr. Ott examined H.E.R. on July 19,
2012 and arrived at the same conclusions stated in his
original DMAT. (SOF ¶ 59; see Part 1 of Ex. to
SOF Pl0090-91, ECF No. 29-1.)
Dr. Ott's follow-up report, the probate court conducted a
chambers conference with counsel. (SOF ¶ 60, ECF No.
29.) At the conference, it was agreed that Attorney Arlene
Violet would be appointed H.E.R.'s guardian for finances
and health care. (Id. ¶ 61.) They agreed not to
appoint a guardian to manage H.E.R's personal
relationships or residential matters. (Id.)
to her guardianship responsibilities, Violet filed a
Universal Inventory of H.E.R.'s estate with the probate
court on December 6, 2012. (Id. ¶ 65.) Based on
this inventory and pursuant to R.I. Gen. Laws §
33-22-21, the probate court clerk's office calculated the
Probate Court Fee due on H.E.R.'s estate as $1, 500.
(Id. ¶ 67.) After subtracting the $30.00 paid
when Robishaw filed the petition, H.E.R. owed the probate
court $1, 470. (Id. ¶ 68.) The court noted that
H.E.R.'s “inventory [would] not be filed until
additional percentage is paid.” (Id. (emphasis
letter to the Clerk of the probate court, H.E.R. objected to
this fee, claiming it violated Title II of the ADA and both
the Federal and Rhode Island Constitutions. (Part 2 of Ex. to
SOF PL 000152, ECF No. 29-2.) The record does not reflect
whether the probate court ever responded to this letter.
However, H.E.R. never paid the fee. (See Samos Aff.
¶ 18, Amicus Curiae, State of Rhode Island's, App.
83, ECF No. 33-1.)
the same time, Nocera sought his GAL Fee in the amount of $1,
993.75 pursuant to R.I. Gen. Laws § 33-15-7(h). (SOF
¶ 70, ECF No. 29.) H.E.R. objected to the fee on
multiple grounds, including that it violated the ADA and
various provisions in the Rhode Island Constitution. (SOF
¶ 71.) The probate court denied H.E.R.'s objection
and ordered H.E.R. to pay a reduced $1, 100 fee.
(Id. ¶ 74.) H.E.R. complied, but also appealed
the probate court's ruling to the Rhode Island Superior
Court. (SOF ¶¶ 75-78.) The appeal is still pending.
judgment is appropriate “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.”
Fed.R.Civ.P. 56(a). An issue of fact is only considered
“‘genuine' if it ‘may reasonably be
resolved in favor of either party.'” Cadle Co.
v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997) (quoting
Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576,
581 (1st Cir. 1994)). When deciding a motion for summary
judgment, the court must “examine the entire record
‘in the light most flattering to the nonmovant and
indulg[e] all reasonable inferences in that party's
favor.'” Id. at 959 (quoting
Maldonado-Denis, 23 F.3d at 581).
“a district court has the legal power to render summary
judgment in favor of the party opposing a summary judgment
motion even though [he or she] has made no formal
cross-motion under rule 56.” Nat'l Expositions,
Inc. v. Crowley Mar. Corp., 824 F.2d 131, 133 (1st Cir.
1987) (internal quotation marks and citations omitted). To do
so, however, (1) there must have been “a reasonable
opportunity to glean the material” facts through the
discovery process, and (2) the targeted party must have
received appropriate notice and opportunity to present
“evidence on the essential elements of the claims or
defense[s]” at issue. Sanchez v. Triple-S Mgmt.,
Corp., 492 F.3d 1, 7 (1st Cir. 2007); accord Tucard,
LLC v. Fid. Nat'l Prop. & Cas. Ins. Co., 567
F.Supp.2d 215, 222 (D. Mass. 2008). For the
“notice” requirement - at least where the
targeted party has moved for summary judgment - “the
question is whether, given the procedural circumstances of
the case, ‘the original movant . . . has had an
adequate opportunity to show that there is a
genuine issue [in the case] and that [his or her] opponent is
not entitled to judgment as a matter of law.'”
Nat'l Expositions, 824 F.2d at 133-34 (emphasis
in original) (quoting 10A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and
Procedure § 2720, at 34 (1983)).
fees that form the basis of Plaintiff's claims have
different forms and functions. The GAL Fee compensates GALs
for the advisory services they provide to Rhode Island's
probate courts. Under the State's guardianship statute,
the probate court must appoint a GAL whenever a petition for
an adult guardianship is filed. See R.I. Gen. Laws
§ 33-15-7(a). The statute then specifically sets out a
duties of a guardian ad litem shall include all of the
(1) Personally visiting the respondent;
(2) Explaining to the respondent the nature, purpose, and
legal effect of the appointment of a guardian;
(3) Explaining to the respondent the hearing procedure,
including, but not limited to, the right to contest the
petition, to request limits on the guardian's powers, to
object to a particular person being appointed guardian, to be
present at the hearing, and to be represented by legal
(4) Informing the respondent of the name of the person known
to be seeking appointment as guardian;
(5) Reviewing the decision making assessment tool(s),
petition for guardianship/limited ...