5th circuit appeal for injunctive relief follows allegations of ADA violations by Texas courts

By David Yates | Jun 11, 2018

SAN ANTONIO - The Manhattan resident who sued her San Antonio-based mother Mauricette Fairley for fraudulently and unconstitutionally guardianizing her blind military veteran father James Fairley has filed a notice of voluntary dismissal without Prejudice with the federal Western District Court of Texas.

SAN ANTONIO - The Manhattan resident who sued her San Antonio-based mother Mauricette Fairley for fraudulently and unconstitutionally guardianizing her blind military veteran father James Fairley has filed a notice of voluntary dismissal without Prejudice with the federal Western District Court of Texas.

The pleading was filed last week and states that plaintiff Juliette Fairley’s “voluntary dismissal against Defendant Mauricette Fairley is without prejudice,” which means that the case may be filed again in the near future, according to a press release.

In order to successfully sue for violations of abuse and neglect under the Americans with Disability Act, the plaintiff is required to name not only Mauricette Fairley as guardian of James Fairley but also Bexar County in her lawsuit, according to court records.

James Fairley is a veteran of World War 2, the Korean War and Vietnam.

The Texas State Auditor’s Office, which investigates fraud by state agencies, reports that the Texas Health and Human Services Commission oversees the state’s Adult Guardianship Program under which James Fairley and other people with cognitive decline or physical disabilities are being held, according to a press release.

The Spectrum Institute’s Legal Director Tom Coleman filed a class action complaint with the Supreme Court of Texas, alleging violations of the American with Disabilities Act on April 9.

“Our complaint calls the attention of the judiciary to documented deficiencies in the guardianship system -- deficiencies that place respondents at risk of abuse and neglect,” said Tom Coleman, a civil rights attorney who founded the Spectrum Institute, a nonprofit organization promoting equal rights and justice for people with disabilities.

Nina Hsu, general counsel for the Supreme Court of Texas, responded to the Spectrum Institute on May 7, stating that the Texas Judicial Council has been actively enacting and proposing improvements to the guardianship system in Texas.

“The court does not file general challenges or concerns regarding the structure or function of Texas courts as part of its administrative docket,” Hsu stated in her letter.

On April 20, the plaintiff sued her mother Mauricette in a 50 page complaint with 200 pages of exhibits, alleging that the 82 year old was choosing to extract James Fairley’s teeth instead of filling cavities, cancelling James’ appointments to see specialty physicians, cancelled James’ private health insurance with the Teacher Retirement System (TRS), provided no supporting documentation to substantiate her claim that Juliette had criminally abducted James, opposed visits with James so wrong doing would not be uncovered, was nowhere to be found when James required authorization to receive anesthesia for surgery at Christus Santa Rosa Hospital in Westover Hills, failed to deliver James’ blood pressure medication for ten days at a time and turned a blind eye to James being diagnosed as malnourished while residing at Lakeside Assisted Living and Memory Care facility in San Antonio at 8627 Lakeside Parkway.

The plaintiff sued the Lakeside facility in a separate lawsuit and received a ruling from the 5th Circuit Court of Appeals on May 29, which includes the position that “the district court properly dismissed the Title II claim because Lakeside is not a place of public accommodation.”

Lawyers who specialize in the federal American With Disabilities Act (ADA), however, offer a different interpretation of the law. “Privately owned care centers are places of public accommodation that fall under the ADA category of social service centers, day care or senior citizen centers,” said David Stephanides, an attorney who works in the corporate compliance division of Wolters Kluwer Legal & Regulatory U.S.

Located in New Orleans, the Court of Appeals for the Fifth Circuit has appellate jurisdiction over the federal district courts within the state of Texas, including the Western District in San Antonio.

On appeal, plaintiff Juliette Fairley is represented by the Truitt Law Firm.

“She has a court monitor who has gone through her things, who manipulates the conversation that is going on," stated Lou Anne Milliman, attorney for the appellant who filed a petition for panel rehearing with the 5th Circuit on June 11.

“Fairley’s visitation with her father has been severely limited due to the intimidation she has endured from this monitor at her visits. Thus, Fairley has adequately alleged that injury has been inflicted upon her by way of unreasonable conditions placed upon her visitation and phone calls to her father.”

A ruling on the appellant's petition would typically occur within 30 days, according to a press release.

“Absent injunctive relief, James and Appellant Juliette Fairley will continue to experience unlawful retaliation as a result of the failures of Lakeside to comply with the ADA,” states Attorney Milliman in her 30 page brief. “Injunctive relief is necessary in order to implement policies to ensure that administration of Lakeside's services and programs are accessible to individuals with disabilities without retaliation being rained down upon those who would advocate on behalf of people with disabilities, and to see that its employees are properly instructed on the rights of individuals with disabilities. Moreover, there are reasonable grounds to believe that Lakeside will continue to engage in acts and practices prohibited by these statutes.”

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