United States Court of Appeals, Second Circuit
United States Court of Appeals, Second Circuit
3d 1370
Appellant alleged that the amended rule was a violation under the Americans
With Disabilities Act ("ADA"), 42 U.S.C. 12182(a) and 12132. Appellant
also asserted a breach of contract claim. The district court granted the appellees'
motion with respect to the ADA claim and dismissed the remaining claims.
Appellant does not assert that the district court erred in granting summary
judgment. Instead, appellant argues that the court erred when it refused to
permit him to discharge his attorney. He contends that he wanted to appear
before the court pro se and amend his complaint to allege a violation of the
Rehabilitation Act of 1973, 29 U.S.C. 792 et seq. This Act prohibits
discrimination against persons with disabilities by any program or activity
receiving federal assistance.
Appellant states in his brief that "[t]he Court denied plaintiff's request [to
discharge his attorney]." Appellant's Brief at 5. There is no evidence to support
this statement. First, the district court opinion granting summary judgment and
dismissing the remaining claims states:
7 Court notes that when the parties appeared for argument of this motion on May
The
31, 1996, plaintiff's counsel, Robert J. Pellicane, Esq., informed the Court that his
client no longer wished Mr. Pellicane to represent him. It was decided on the record
that Mr. Pellicane would continue to represent plaintiff for the pendency of the
instant motion.
The appellant's correspondence with the district court confirms the district
The appellant's correspondence with the district court confirms the district
court's statement. In a letter dated May 31, 1996 and filed with the district
court, appellant wrote:
9 our conference in your courtroom on May 31, 1996, as I understand it, Mr.
Per
Pellicane will only represent me for the purpose of the pending summary judgment
motion, and then will be relieved as my counsel.
10
In addition, in a letter dated June 12, 1996 appellant wrote to Judge Platt:
11 the last hearing on May 31, 1996 it is my understanding that my current attorney,
At
Robert Pellicane will only be serving me at my Summary Judgment Hearing and
then will be release[d]. I would like to request the court in assisting me in finding an
attorney who will take my case on a pro bono bas[is].
12
Appellant also requests that we direct the district court to grant him leave to
amend his complaint. This argument is meritless. First, a motion to amend the
complaint was never made in the district court. It is well settled that we
generally do not consider an issue raised for the first time on appeal. See
Singleton v. Wulff, 428 U.S. 106, 120-21 (1976) (exceptions to general rule are
left to discretion of appellate court); Rodick v. Schenectedy, 1 F.3d 1341, 1347
(2d Cir.1993). Second, a plaintiff that raises a claim under the Rehabilitation
Act bears the initial burden of establishing a prima facie case. To satisfy the
burden, the plaintiff must show that he is disabled within the meaning of the
Act, that he has been denied a benefit for which he was qualified and that the
benefit is part of a program or activity receiving federal financial assistance.
The appellees have denied receiving federal funding and appellant makes no
showing to the contrary.
13
We have considered all of appellant's contentions on this appeal and have found
them to be without merit. For the reasons set forth above, the judgment of the
district court is hereby AFFIRMED.
The Honorable Harlington Wood, Jr. of the United States Court of Appeals for
the Seventh Circuit, sitting by designation