Fonner v. Fairfax County VA

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM FONNER; SAMUEL DURIE, 

Plaintiffs-Appellants,

v.

FAIRFAX COUNTY, VIRGINIA; JAMES

THUR, Executive Director, Fairfax-

Falls Church Community Services

Board; MARY W. KUDLESS, Deputy

Director, Fairfax-Falls Church

Community Services Board; ALAN

WOOTEN, Acting Director, Fairfax-  No. 03-1068

Falls Church Community Services

Board; ELLEN EINSTEIN, Acting

Residential Services Director,

Fairfax-Falls Church Community

Services Board; SYLVIA MCGILL,

Residential Program Coordinator,

Fairfax-Falls Church Community

Services Board,

Defendants-Appellees.



2 FONNER v. FAIRFAX COUNTY

WILLIAM FONNER; SAMUEL DURIE, 

Plaintiffs-Appellants,

v.

FAIRFAX COUNTY, VIRGINIA; JAMES

THUR, Executive Director, Fairfax-

Falls Church Community Services

Board; MARY W. KUDLESS, Deputy

Director, Fairfax-Falls Church

Community Services Board; ALAN

WOOTEN, Acting Director, Fairfax-  No. 03-1408

Falls Church Community Services

Board; ELLEN EINSTEIN, Acting

Residential Services Director,

Fairfax-Falls Church Community

Services Board; SYLVIA MCGILL,

Residential Program Coordinator,

Fairfax-Falls Church Community

Services Board,

Defendants-Appellees.



Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, Chief District Judge.

(CA-02-486-A)

Argued: December 5, 2003

Decided: July 14, 2005

Before WIDENER, MICHAEL, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Widener wrote the opinion, in

which Judge Michael and Judge Shedd concurred.

FONNER v. FAIRFAX COUNTY 3

COUNSEL

ARGUED: Harvey Shepherd Williams, HARVEY S. WILLIAMS

ATTORNEY, Washington, D.C., for Appellants. Ann Gouldin Kil-

lalea, Assistant County Attorney, OFFICE OF THE COUNTY

ATTORNEY, Fairfax, Virginia, for Appellees. ON BRIEF: David P.

Bobzien, County Attorney, Peter D. Andreoli, Jr., Deputy County

Attorney, OFFICE OF THE COUNTY ATTORNEY, Fairfax, Vir-

ginia, for Appellees.

OPINION

WIDENER, Circuit Judge:

Plaintiffs Samuel Durie and William Fonner, both mentally

retarded adult men, brought this action against Fairfax County, Vir-

ginia and five Fairfax County officials, alleging violations of their

constitutional rights and the Americans with Disabilities Act, 42

U.S.C. § 12132 (1995). Plaintiffs’ claims arose from the decision of

defendants to prohibit Fonner, a resident of a county group home,

from visiting Durie at Durie’s private home. After receiving a report

from a court-appointed guardian ad litem, the district court dismissed

Fonner from the action, finding that he was not a willing participant

in the litigation. The district court granted summary judgment for the

defendants on all of Durie’s claims. Fonner’s counsel appeals the dis-

trict court’s order dismissing Fonner from the case. Durie appeals the

district court’s order granting summary judgment for the defendants.

For the reasons stated below, we affirm the orders of the district court

as well as its judgment.

I.

William Fonner lived at the Essex House, a group home in Fairfax

County operated by Fairfax County. Fonner works at Mount Vernon-

Lee Enterprises, a nonprofit organization that provides Fonner with

vocational training and day support.

Samuel Durie lived with his adult brother, Robert Durie. Until

November 2002, Samuel Durie and his brother lived in Fairfax

4 FONNER v. FAIRFAX COUNTY

County with Doris Burnette, an employee of Fairfax County Mental

Retardation Services who was assigned to Essex House.

While working for Mental Retardation Services, Miss Burnette met

Fonner. In 1996, Miss Burnette arranged for Fonner and Samuel

Durie to meet and the two men became friends. Fonner and Durie

began to spend time together at the Duries’ home. Because neither

Fonner nor Durie drove, Fonner relied on Miss Burnette and Durie’s

brother Robert to pick him up at the Essex House and take him to the

Duries’ home. Miss Burnette sometimes took Fonner to visit Samuel

Durie during her work hours. Fonner spent some nights at the Duries’

home. The staff at Essex House knew Miss Burnette occasionally

took Fonner to visit Samuel Durie, but Miss Burnette did not obtain

approval from anyone at Essex House for the visits.

On May 27, 2001, Fonner complained to Miss Burnette that he had

been left alone in a county van for an hour while Victor Palermo, an

Essex House employee, was inside another group home. Miss Bur-

nette reported the incident to her supervisor, and took Fonner home

to stay with her and the Duries that night. An investigation by Mental

Retardation Services determined that Fonner’s human rights had not

been violated. The investigators’ report also found communications

problems between Miss Burnette and Palermo. The report noted that

Miss Burnette had taken Fonner to her home for the night because

Fonner was upset and that she did not notify her supervisor of her

actions. The Mental Retardation Services report recommended that

"in order to ensure that the professional relationship between staff and

the consumer is not compromised, a defined protocol should be put

into place and adhered to that addresses under what circumstances it

is appropriate for consumers to visit with or at staff’s homes." There

is no evidence in the record that suggests the investigators who com-

pleted the report were aware that Miss Burnette lived with Samuel

and Robert Durie.

After the report was issued, Alan Wooten, the director of Mental

Retardation Services, decided to prohibit Essex House residents from

visiting the homes of Essex House staff members. On June 22, 2001,

Wooten met with Miss Burnette and her supervisor and explained that

Fonner could no longer be taken to Miss Burnette’s home. Wooten

told Miss Burnette that Fonner and Samuel Durie could still meet at

FONNER v. FAIRFAX COUNTY 5

Essex House or other locations. Miss Burnette relayed this informa-

tion to Robert Durie.

On July 23, 2001, an Essex House counselor helped Fonner call

Samuel Durie and arrange to meet him at a pizza shop the following

Thursday. On Thursday, Durie’s brother Robert picked Fonner up at

Essex House. When Fonner returned that evening, he told Essex

House staff members that Robert had stopped to buy spaghetti and

then taken Fonner back to the Duries’ home for dinner. On August 4,

2001, Miss Burnette took Fonner from Essex House and dropped him

off at the Duries’ home. On August 17, 2001, Fonner again visited the

Duries’ home to watch a football game. It is unclear from the record

who took Fonner to the Duries’ home that day. On August 18, 2001,

Miss Burnette again took Fonner to the Duries’ home for lunch.

On September 7, 2001, Robert Durie went to Mount Vernon-Lee

Enterprises, where Fonner works during the day, and told the staff he

was picking Fonner up to take him to see an attorney. A staff member

found Fonner in the lunch room and asked him if he had any appoint-

ments that day. Fonner said he did not. The staff member then told

Robert that he could not allow Fonner to leave because no prior

appointment had been made and Robert was not an authorized visitor.

Mental Retardation Services asked Fonner several times if he wanted

to meet with a county human rights advocate or an attorney but Fon-

ner stated that he did not want to meet with an attorney.

At some point, which is not clear from the record, Miss Burnette

stopped working for Mental Retardation Services. On October 3,

2001, Alan Wooten issued a memo stating that Fonner was not to

have any contact with Robert Durie or Doris Burnette. Wooten stated

that he was concerned "Robert is attempting to involve William in his

own complaint against [the county]." He stated that he viewed Robert

Durie’s actions as "exploitive of William’s mental health status."

On October 18, 2001, without notifying any Essex House staff,

Robert Durie and Samuel Durie’s lawyer, Harvey Williams, boarded

a van used to transport residents of the county’s group homes. Wil-

liams spoke with Fonner and had Fonner sign a retainer agreement.

Fonner did not receive a copy of the document and when he later told

Essex House staff members what happened he did not know what he

6 FONNER v. FAIRFAX COUNTY

had signed. Fonner later told the court-appointed guardian ad litem

that he was afraid when Robert Durie and Harvey Williams boarded

the van and spoke to him. On April 4, 2002, Fonner and Durie, both

represented by Harvey Williams, brought the suit which is now

appealed in the United States District Court for the Eastern District

of Virginia.

On August 21, 2002, the defendants filed a motion to appoint a

guardian ad litem for Fonner, arguing that there was evidence Fonner

did not want to be involved in the lawsuit. The district court granted

the motion and appointed a guardian ad litem on September 13, 2002.

After the guardian ad litem submitted her report to the court, the

defendants moved to dismiss Fonner from the lawsuit. Relying on the

findings of the guardian ad litem, the district court determined that

Fonner did not want to proceed with the litigation and granted the

defendants’ motion to dismiss.

After Fonner was dismissed, Durie gave notice to take the deposi-

tion of Fonner. The defendants moved for a protective order, arguing

that the deposition could be harmful to Fonner, and the magistrate

judge granted the motion. The district court affirmed the magistrate’s

order.

On March 4, 2003, the district court granted summary judgment for

the defendants on all counts. Fonner, through his counsel, has

appealed the district court’s order dismissing Fonner from the case.

Durie appealed from the district court’s grant of a protective order

preventing Fonner’s deposition, and from the district court’s order

granting summary judgment for the defendants.

II.

We first address the district court’s dismissal of Fonner from the

lawsuit and the entry of a protective order to prevent the taking of his

deposition. Our review of legal questions, including applications of

law to facts, is de novo. See United States ex rel. Maddux Supply Co.

v. St. Paul Fire & Marine Ins. Co., 86 F.3d 332, 334 (4th Cir. 1996).

Factual findings are reviewed for clear error. Maddux Supply Co., 86

F.3d at 334. The district court’s entry of a protective order is reviewed

FONNER v. FAIRFAX COUNTY 7

for abuse of discretion. M & M Medical Supplies & Serv., Inc. v.

Pleasant Valley Hosp., Inc., 981 F.2d 160, 163 (4th Cir. 1992).

Fonner’s counsel objects to Fonner’s dismissal from the case on

two grounds. First, he argues that the district court was not authorized

to appoint a guardian ad litem under Fed. R. Civ. P. 17(c) absent a

determination of incompetency by the Commonwealth of Virginia.

Second, Fonner’s counsel argues that the district court’s decision was

not supported by the facts.

We reject these arguments. First, Fed. R. Civ. P. 17(c) provides

that the district court "shall appoint a guardian ad litem for an infant

or incompetent person not otherwise represented in an action or shall

make such other order as it deems proper for the protection of the

infant or incompetent person." Fed. R. Civ. P. 17(c). Nothing in the

rule prohibits the district court from appointing a guardian ad litem

to represent a person not previously adjudicated as incompetent

through a state proceeding. Moreover, we have noted previously that

"[t]he federal district court may, of course, appoint a guardian ad

litem in its discretion" where the district court believes the appoint-

ment is in the infant or incompetent’s interests. Genesco, Inc. v. Cone

Mills Corp., 604 F.2d 281, 285 (4th Cir. 1975).

Indeed, this court has previously appointed a guardian ad litem to

advise the court on a litigant’s competency in as serious a fact situa-

tion as might be imagined. In Lucas v. McKellar, No. 95-4009 (4th

Cir. Dec. 27, 1995), a death row inmate moved to forego his remain-

ing appeals in order that he be executed. The court appointed a guard-

ian ad litem to consider the inmate’s competency and assist in

determining what action this court should take on the inmate’s

motion. There is no reason to prohibit the district court from appoint-

ing a guardian ad litem in similar circumstances simply because the

State has not made a determination of competency. Thus, we find it

entirely appropriate that the district court, recognizing that Fonner

suffered from some degree of mental retardation, appointed a guard-

ian ad litem to assist the court in determining the propriety of Fon-

ner’s continued participation in the litigation.

Fonner’s counsel next argues that the district court’s dismissal of

Fonner was not supported by the facts. Even though the record indi-

8 FONNER v. FAIRFAX COUNTY

cates that Fonner made statements indicating his desire to bring a law-

suit, the record also shows that Fonner made equally or more

prohibitive statements indicating that he did not want to bring suit.

The guardian ad litem, Denise Tassi, filed her report with the district

court. The first part of that report is worth repeating here:

During the investigation of this matter, I interviewed the fol-

lowing: the named-plaintiffs William Fonner and Samuel

Durie; their attorney Harvey S. Williams; Robert Durie,

Samuel Durie’s brother; Richard and Michael Fonner, Wil-

liam Fonner’s brothers; Dr. Leslie Schwartz, William Fon-

ner’ psychologist; Nick Trujillo, Joe Herbert and Sylvia

McGill, staff members at Essex House; and Ann Killalea,

attorney for the defendants.

I met Mr. Fonner on three occasions at Essex House where

he lives in a group home with several other men. The house

is a modest, brick rambler in an older section of Springfield,

Virginia. Mr. Fonner is a very thin, 44-year old mentally

retarded man, who is legally blind. He conversed easily but

often repeated himself and frequently returned to matters

previously discussed. He likes living at the Essex House and

maintains a friendly relationship with the counselors.

During each visit, Mr. Fonner and I first discussed various

neutral topics, such as the Redskins, music and a recent trip

to Pennsylvania. Our conversation were always pleasant and

Mr. Fonner appeared comfortable talking to me. He usually

held my hands while we talked.

At our first meeting on October 28, 2002, Mr. Fonner

became extremely anxious and began to cry when we dis-

cussed the pending lawsuit. He wanted his radio so he could

listen to music to calm himself. As our conversation prog-

ressed, he remained upset and very child-like. He put his

head on my lap, just like he did with his mother when they

listened to music together.

Miss Tassi concluded that Fonner was "easily persuaded and his opin-

ions parrot those he heard from others." She also concluded that Fon-

FONNER v. FAIRFAX COUNTY 9

ner did not understand what a "lawsuit" is or what "civil rights" are.

She also explained that Fonner "clearly stated" that he "does not want

to meet Mr. [Harvey] Williams despite my efforts in assuring him that

Mr. Williams is a nice person." In her opinion, Fonner had not know-

ingly authorized Mr. Williams to represent him. On this report the

district court dismissed Fonner from the case. In our opinion, such

dismissal was within its discretion.

Durie claims that the district court erred in granting the protective

order preventing Durie from deposing Fonner. Durie argues that the

defendants failed to show that the deposition would cause irreparable

harm and that the district court should have allowed Durie to have his

own medical expert examine Fonner before ruling on the motion.

"An order under Rule 26(c) is committed to the discretion of the

trial court and will not be disturbed on appeal unless the court has

abused its discretion." M & M Medical Supplies & Serv., Inc., 981

F.2d at 163. Here, the magistrate judge’s ruling, affirmed by the dis-

trict court, relied on the report of Fonner’s court-appointed guardian

ad litem and the affidavit of Fonner’s treating psychologist.

The guardian ad litem’s report noted that Fonner is emotionally

fragile and that his opinions and beliefs could be changed by the sug-

gestions of others. Fonner’s psychologist, Dr. Leslie Schwarz, stated

that a deposition would cause Fonner to be "emotionally over-

whelmed and traumatized." Dr. Schwarz also stated that "the negative

effects of the deposition would likely trigger a relapse of previous

symptoms and problematic behaviors" in Fonner and "greatly inter-

fere with Fonner’s functioning in daily life." Based on the report of

the guardian ad litem and the affidavit of Dr. Schwarz, we hold that

the district court did not abuse its discretion in affirming the protec-

tive order of the magistrate judge which quashed a subpoena for Fon-

ner to testify.

III.

We next address Durie’s claim that the district court erred in grant-

ing summary judgment for the defendants on Durie’s 42 U.S.C.

§ 1983 and Americans with Disabilities Act claims.

10 FONNER v. FAIRFAX COUNTY

We first address Durie’s claims under 42 U.S.C. § 1983 (1994).

Durie claims that the defendants violated his constitutional rights of

free association, substantive due process, procedural due process, and

equal protection. All of these claims depend on a finding that Durie’s

relationship with Fonner is a protected liberty interest.

We first note that the restrictions did not prevent Durie and Fonner

from spending time together. Durie was allowed to visit Fonner at

Essex House, and Fonner could be picked up at the group home and

taken to other locations, such as a restaurant for dinner. The restric-

tion placed on Durie’s ability to meet with Fonner was that Fonner

could not visit Durie at Durie’s home, at least as long as Miss Bur-

nette, an employee and counselor of the county group home, also

lived there.

The district court believed that the friendship of Fonner and Sam-

uel Durie was merely the kind of "attenuated . . . personal attachment"

which is not afforded Constitutional protection. See Roberts v. United

States Jaycees, 468 U.S. 609, 617 (1994); Board of Directors v.

Rotary Club, 481 U.S. 537, 546 (1987). But even if it is, there is no

evidence that any of the action of Fairfax County or its employees

was aimed at Samuel Durie because he was incompetent or was

aimed at incompetents in general. The restriction imposed was only

that Fonner could not visit in Durie’s home so long as Miss Burnett,

who was a counselor at the county group home in which Fonner lived,

also lived in the Durie home, which she did.

The decision by the defendants to restrict residents from the group

home was made in response to an investigation by Mental Retardation

Services warning that the professional relationship between staff and

residents of the Essex House could be compromised if residents were

allowed to visit staff member’s homes. The need to maintain profes-

sional relationships between county staff and group home residents is

a legitimate State interest. Therefore, even if Durie could establish

that other similarly situated individuals were treated differently, the

defendants’ decision should be upheld as rationally related to a legiti-

mate State interest. Accordingly, we hold that the district court did

not err in granting summary judgment for the defendants on Durie’s

§ 1983 claims.

FONNER v. FAIRFAX COUNTY 11

Durie also argues that the district court erred in dismissing his

claim that the defendants discriminated against him because of his

disability in violation of the Americans with Disabilities Act, 42

U.S.C. § 12132 (1995). The applicable portion of the ADA provides

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 sub-

jected to discrimination by any such entity." 42 U.S.C. § 12132

(1995). The district court granted summary judgment for the defen-

dants on this claim because Durie "has never requested, applied for,

or received any service from the County, nor has he ever been

excluded from receiving services or participating in programs because

of his disability."

Durie does not point to any facts that support his allegation that

Durie was denied a benefit or service of a public entity. There is no

evidence that Durie ever requested services or benefits from Essex

House or Fairfax County, and no evidence that he was excluded from

participating in any programs of Essex House or Fairfax County.

Durie’s only allegation is that the defendants prohibited Fonner, a res-

ident of a county facility, from visiting Durie at Durie’s home while

Doris Burnette, a county employee and counselor, was also living

there. This allegation is not sufficient to support a claim that Durie

was denied the benefits of a service, program, or activity of a public

entity, or subjected to discrimination by a public entity because of his

disability.

Durie also argues that, even if he was not subjected to discrimina-

tion by the defendants, he has a claim under the ADA because of his

association with Fonner. However, unlike the ADA sections relating

to employers and places of public accommodation, the section appli-

cable to public entities does not contain a specific provision authoriz-

ing liability based on association with a person with a disability.1

1

The ADA prohibits an employer from "excluding or otherwise deny-

ing equal jobs or benefits to a qualified individual because of the known

disability of an individual with whom the qualified individual is known

to have a relationship or association." § 12112(b)(4) (1995) (emphasis

added). The ADA prohibits a place of public accommodation from "ex-

12 FONNER v. FAIRFAX COUNTY

Even assuming that such liability exists, however, Durie’s argument

misconstrues the purpose of association liability under the ADA.

Association liability applies when the plaintiff himself has been

discriminated against because of his relationship or association with

a disabled person. See Tyndall v. National Educ. Centers, Inc. of Cal.,

31 F.3d 209, 214 (4th Cir. 1994). Thus, Durie must still prove that he,

not Fonner, was excluded from the benefits or services of the defen-

dants or otherwise discriminated against by the defendants. As the

district court correctly found, Durie has not produced evidence to sup-

port this claim. Accordingly, we hold that the district court did not err

in granting summary judgment for the defendants on Durie’s ADA

claim.

IV.

For the reasons stated, we find that the district court did not err in

dismissing William Fonner from the action, in granting a protective

order preventing Fonner from being deposed, and likewise did not err

in granting summary judgment for the defendants on Samuel Durie’s

42 U.S.C. § 1983 and Americans with Disabilities Act claims.

Accordingly, the judgment of the district court is

AFFIRMED.2

clud[ing] or otherwise deny[ing] equal goods, services, facilities, privi-

leges, advantages, accommodations, or other opportunities to an

individual or entity because of the known disability of an individual with

whom the individual or entity is known to have a relationship or associa-

tion." 42 U.S.C. § 12182(b)(1)(E) (1995) (emphasis added). The ADA

section applicable to public entities, 42 U.S.C. § 12132, does not contain

similar language.

2

Durie’s claim for emotional distress is also denied.