Plaintiff (“Mario” 1 ) — a minor who suffers from cerebral palsy among other disabilities — received homebound educational services from the Puerto Rico Department of Education. In September 2001, Mario’s grandmother began to suspect that he was being physically and sexually abused by his teacher, Edgar Rivera-Lugo. After *12 further investigation, Mario’s family filed a complaint with the police. Rivera-Lugo was arrested and, following a bench trial, was found guilty of misdemeanor aggravated assault and institutional abuse.
Mario, together with his parents and grandmother, then filed suit in federal district court based on the abuse he suffered and the alleged deprivation of educational services in the year-long period following Rivera-Lugo’s termination. The defendants named were Rivera-Lugo in his official and individual capacities; Elizabeth Ortega, regional supervisor of special education, in her official and individual capacities; the Commonwealth Secretary of Education in his official capacity; and the Commonwealth of Puerto Rico.
Although the complaint is not crystal clear as to which claims were asserted against which defendants, it did identify as bases for relief Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132 (2000); section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (2000); Title IX of the Education Amendments of 1972, 20 U.S.C §§ 1681-88 (2000); section 1983, 42 U.S.C. § 1983; and various provisions of Puerto Rico law. The complaint sought compensatory damages of $5 million, punitive damages against each defendant and injunctive relief.
Following various motions and orders, 2 defendants Ortega, the Secretary of Education, and the Commonwealth of Puerto Rico sought summary judgment on the federal claims. They argued that they were unaware of Rivera-Lugo’s abusive behavior and that when they learned of it they took immediate action to remove him. Alternatively, they argued that they are shielded by qualified immunity (as to Ortega in her individual capacity) or sovereign immunity (for the Commonwealth and the defendants sued in their official capacities).
The magistrate judge, presiding with the consent of the parties, granted summary judgment in part, finding that Rivera-Lugo’s supervisors did not participate in or act recklessly with regard to Rivera-Lugo’s misconduct. However, the magistrate judge found that material disputes of fact remained regarding defendants’ actions following Rivera-Lugo’s termination, primarily claims that the defendants had retaliated against Mario for complaining to the police; and the court denied defendants’ immunity defenses as to such claims. The abuse claims therefore remain pending only against Rivera-Lugo.
Defendants other than RiveraLugo now appeal, invoking our jurisdiction to review on an interlocutory basis a district court’s denial of qualified and sovereign immunity defenses.
Torres v. Puerto Rico,
The qualified immunity claim is relevant only to Ortega insofar as she was sued for damages in her individual capacity. Qualified immunity is not available to the Commonwealth,
Nereida-Gonzalez v. Tirado-Delgado,
Plaintiffs’ brief on appeal says that the only damages claim asserted against Ortega was under section 1983; and the gravamen of this claim after the summary judgment ruling appears to be that Ortega retaliated against plaintiffs in violation of their first amendment rights by denying Mario educational services after his family complained to the police. This would arguably be a legitimate claim under section 1983, if it could be factually supported,
Powell v. Alexander,
In addition to the first amendment claim, the magistrate judge also deemed preserved against Ortega a separate claim based on the same denial of services after Rivera-Lugo’s termination. This appears to be based on the theory that the denial of services was “discriminatory”—possibly on an equal protection theory. We can find no reference to any such claim in the complaint or in plaintiffs’ opposition to summary judgment. We conclude that it was not presented and so think it must be disregarded.
Turning, then, to the retaliation claim against Ortega, the evidentiary basis for such a claim is invisible to us. Although much time passed after Rivera-Lugo was arrested before Mario got new adequate home services, the defendants’ motion for summary judgment pointed to substantial evidence in the record developed in the discovery process indicating that resource problems and bureaucratic tangle were the explanation for the admittedly long delay.
In opposing summary judgment on the retaliation claim, the plaintiffs baldly asserted that the delay in furnishing services was based on retaliatory animus but without citing any evidence in the record to support such an assertion. And although the magistrate judge discussed the motion for summary judgment on the retaliation claim, her discussion contains no reference to any such evidence. Her decision merely states that the plaintiffs’ claim of retaliation raises a disputed issue of material fact.
Under the case law, an interlocutory appeal is available to review denials of qualified immunity at the summary judgment stage only if based upon an error of law of a kind
other
than a dispute about the adequacy of evidence.
Johnson v. Jones,
Here, defendants do not dispute that under clearly established law, retaliation could give rise to a first amendment claim remediable under section 1983; the only *14 apparent basis for the denial seems to be the court’s perception of a factual dispute, namely, whether there was enough evidence of a retaliatory motive to survive summary judgment. Since the qualified immunity denial does not turn on a legal issue, under Johnson we arguably have no authority to overturn the ruling on interlocutory review.
Conceivably,
Johnson’s
limitation could be disregarded on the ground that in denying qualified immunity the magistrate judge made an error of law in disregarding the need for some evidence of
retaliatory intent
for the first amendment claim.
Cf. Behrens v. Pelletier,
We turn now to the defendants’ claim that, in addition, sovereign immunity defeats retaliation claims against the Commonwealth and the official capacity defendants based on three other statutes: the ADA, the Rehabilitation Act and Title IX. Defendants argue that Mario’s claim based on delay in providing him special education services after Rivera-Lugo’s departure is cognizable only under the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1415, and that the IDEA does not provide for the tort-like damages here sought,
Nieves-Marquez v. Puerto Rico,
Neither version of the defendants’ theory — preemption or exhaustion — is a classic sovereign immunity defense. Indeed, the plaintiffs say that on interlocutory appeal, we lack jurisdiction to entertain these arguments. But our earlier decision in
Nieves-Marquez
holds that, on an interlocutory appeal from the rejection of a sovereign immunity defense, the court may entertain certain arguments about the unavailability of monetary damages based on the IDEA.
Nieves-Marquez
concluded, partly on technical and partly on policy grounds, that the substantive IDEA issue — whether it preempted claims under other statutes— was sufficiently intertwined with the classic sovereign immunity defense to permit interlocutory review. Still,
Nieves-Marquez
limited interlocutory review to an issue of this kind and we do not read it as extending to a defense such as failure to exhaust administrative remedies.
Id.
at 124;
see also Fairley v. Fermaint,
Although the IDEA preemption claim is thus before us, it lacks merit. IDEA itself provides that
[njothing in this chapter shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities.
20 U.S.C. § 1415(1). Thus, on its face IDEA does not preclude claims against the Commonwealth, or the individual defendants, under the ADA, the Rehabilitation Act or (arguably) Title IX as applied to a disabled child.
While we have held that relief under these other statutes is not available where “[pjlaintiffs’ case turns entirely on the rights created by statute in the IDEA,”
Diaz-Fonseca v. Puerto Rico,
In the district court, the defendants did make classic sovereign immunity arguments, specifically, that the Commonwealth (and officers sued in their official capacities) were protected under the Eleventh Amendment. These arguments turned primarily on the scope of waiver provisions that appear in two of the relevant statutes and, in the case of the ADA, on the extent of Congress’ power to abrogate. Initially the district court granted defendants’ motion as to the ADA and Rehabilitation Act claims, but because of intervening changes in governing authority the district court revised its position.
In the end, the district court found that classic sovereign immunity did not apply because of the receipt of federal funds under two of the statutes — the Rehabilitation Act and Title IX — and a direct abrogation by the ADA of state sovereign immunity. The defendants have not pursued these arguments in this court; the conclusions are at least colorable; and we need not pursue further arguments that have not been preserved on appeal.
Insofar as the appeal presents cognizable legal issues on interlocutory appeal, the judgment of the district court is affirmed. With regard to issues not appeal-able under Johnson, the appeal is dismissed.
It is so ordered.
Notes
. The child, age eight at the time of the incidents, is referred to in the briefs by his initials; we use one of his given names in this decision.
. The Commonwealth initially sought dismissal on sovereign immunity grounds and ultimately obtained dismissal only of section 1983 claims on this ground. Plaintiffs moved for summary judgment against Rivera-Lugo, arguing that his criminal conviction established his civil liability; the district court granted the motion as to plaintiffs' physical abuse claims, but denied it as to the sexual abuse claims.
. Section 1983 cannot be used as a vehicle for ADA or other statutory claims that provide their own frameworks for damages.
See Fitzgerald v. Barnstable Sch. Comm.,
.
See
42 U.S.C. § 12203(a) (retaliation claim under the ADA); 29 U.S.C. § 794a(a)(2); 34 C.F.R. § 104.61 (incorporating Title Vi’s retaliation provision into the Rehabilitation Act);
Jackson v. Birmingham Bd. of Educ.,