S.B. v. Hamos
Filing
16
OPINION: Defendant's Motion to Dismiss Counts II, III, and IV of the Complaint (d/e 4 ) is DENIED. Defendant shall file an Amended Answer on or before October 22, 2012. SEE WRITTEN OPINION. Entered by Judge Sue E. Myerscough on 10/3/2012. (MJ, ilcd)
E-FILED
Wednesday, 03 October, 2012 02:46:51 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
S.B., by and through her father, W.B., )
)
Plaintiff,
)
)
v.
)
)
JULIE HAMOS, in her official capacity)
as Director of the Illinois Department )
of Healthcare and Family Services,
)
)
Defendant.
)
No. 12-cv-03077
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on Defendant’s Motion to
Dismiss Counts II, III, and IV of the Complaint (d/e 4). For the reasons
that follow, the Motion is DENIED.
I. BACKGROUND
On March 8, 2012, S.B., by and through her father, W.B.1, filed a
four-count Complaint (d/e 1) against Defendant, Julie Hamos, in her
For purposes of clarity, the Court will refer to S.B. by her initials and will
refer to W.B. as Plaintiff.
1
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official capacity as Director of the Illinois Department of Healthcare and
Family Services. The Complaint contains four counts. Plaintiff seeks
injunctive and declaratory relief in the first three counts: (1) Count 1,
alleging a violation of the Early and Periodic Screening, Diagnostic, and
Treatment (EPSDT) program of Medicaid and 42 U.S.C. § 1983; (2)
Count 2, alleging a violation of the Americans with Disabilities Act
(ADA) and 42 U.S.C. § 1983; (3) Count 3, alleging a violation of the
Rehabilitation Act and 42 U.S.C. § 1983. Plaintiff seeks money damages
in Count 4, which is a claim for a violation of the Rehabilitation Act.2
According to the Complaint, Plaintiff, S.B., is a Medicaid-eligible,
15-year-old girl who suffers from the following conditions: ADHD
(Combined Type), Post-Traumatic Stress Disorder, Oppositional Defiant
The heading of Count IV reflects that it is also brought pursuant to § 1983.
However, the prayer for relief only seeks compensatory damages under the
Rehabilitation Act and Plaintiff’s response to the Motion to Dismiss states that
Plaintiff seeks compensatory damages pursuant to the Rehabilitation Act. Therefore,
it does not appear that Count IV is brought pursuant to § 1983. This Court notes
that Defendant raised an Eleventh Amendment argument in the motion to dismiss
Count IV in a related case (J.T. v. Hamos, 12-3203) but does not do so in this case.
In any event, compensatory damages pursuant to § 1983 are not available against
Defendant in her official capacity. See, e.g., Brown v. Budz, 398 F.3d 904, 918 (7th
Cir. 2005) (“To the extent that Brown seeks monetary damages from defendants
acting in their official capacity, those claims . . . are dismissed as they are barred by
the Eleventh Amendment.”)
2
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Disorder, Depressive Disorder, Sexual Abuse Victim, Sexual Abuse
Perpetrator, and Mild Mental Retardation. Cmplt. ¶¶ 1, 28, 41. On
April 30, 2011, Plaintiff was admitted to Lincoln Prairie Behavioral
Health Center (Lincoln Prairie) in Springfield, Illinois. Cmplt. ¶ 77.
After her discharge from Lincoln Prairie, Plaintiff was directly admitted
to Riverside Academy (Riverside) in Wichita, Kansas, a psychiatric
residential treatment facility. Cmplt. ¶ 78. Blue Cross/ Blue Shield (Blue
Cross), Plaintiff’s private health insurance carrier, paid for her treatment
at Riverside through March 2, 2012. Cmplt. ¶ 79. While at Riverside,
Plaintiff attended school and participated in recreational activities.
Cmplt. ¶ 85. When Plaintiff is in the hospital, she cannot attend school
and cannot leave the hospital at all. Cmplt. ¶ 86.
Effective March 2, 2012, Blue Cross denied authorization for
Plaintiff’s continued treatment at Riverside. Cmplt. ¶ 80. Plaintiff
alleges that Blue Cross also denied authorization for treatment in a stepdown residential treatment facility because Blue Cross alleged that such
treatment is not a covered benefit. Cmplt. ¶ 81.
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Plaintiff’s therapist advised that Plaintiff should be placed in a
“‘step[-]down facility closer to [the] primary care givers upon successful
discharge from Riverside Academy.’” Cmplt. ¶ 82; see also Cmplt. ¶¶ 93,
94 (alleging that Mary Dobbins, M.D., and Sarah Bahns LMFT have
recommended that S.B. receive residential treatment). According to
Plaintiff, S.B. cannot currently reside safely in her family’s home and she
is at risk for further hospitalization/institutionalization if she does not
receive the recommended treatment in a step-down residential
placement. Cmplt. ¶¶ 83, 84. However, Defendant has refused to
arrange and provide funding for S.B. to receive residential treatment.
Cmplt. ¶ 95. Plaintiff also alleges that the cost of treatment at a stepdown residential treatment facility is approximately one-third the cost of
treatment at a psychiatric hospital. Cmplt. ¶ 87.
Plaintiff asserts that she needs to be placed in a step-down
residential treatment facility “for the maximum reduction of her mental
disability and for the restoration of her to the best possible functional
level.” Cmplt. ¶ 88. Plaintiff alleges that “[u]nless [she] receives the
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necessary intensive residential services, she will likely be at risk for many
future hospitalizations.” Cmplt. ¶ 89. Plaintiff also alleges that she
requires residential treatment “to correct or ameliorate” her mental and
behavioral conditions. Cmplt. ¶ 90.
In Count I of the Complaint, Plaintiff alleges Defendant is violating
the federal Medicaid Act, 42 U.S.C. § 1396 et seq., because Defendant
has failed and continues to fail to provide S.B. with “medically necessary
intensive home and community based services, community residential
services, and/or residential mental health services” that Defendant is
mandated to provide under the EPSDT provisions of the Medicaid Act.
Cmplt. ¶ 100. Plaintiff also alleges in Count I that this conduct violates
42 U.S.C. § 1983. Cmplt. ¶ 101.
In Count II, Plaintiff alleges a violation of Title II of the ADA and a
violation of 42 U.S.C. § 1983. Specifically, Plaintiff alleges that S.B. is a
qualified individual with a disability, the Illinois Department of
Healthcare and Family Services is a public entity, and that Defendant
discriminates against S.B. by failing to provide her services in the most
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integrated setting appropriate to her needs. Cmplt. ¶¶ 107, 108, 110.
Plaintiff further alleges that “[b]y failing to provide adequate home based
and community-based mental health/behavioral services, Defendant has
and continues to discriminate against the Plaintiff by unnecessarily
segregating her in violation of the ADA.” Cmplt. ¶ 115.
In Count III, Plaintiff alleges a violation of the Rehabilitation Act
and a violation of 42 U.S.C. § 1983. Plaintiff alleges that S.B. is a
qualified individual with a disability under Section 504 of the
Rehabilitation Act. Cmplt. ¶ 123. Plaintiff alleges that Defendant
discriminates against S.B. by failing to provide her services in the most
integrated setting appropriate to her needs. Cmplt. ¶ 125.
Finally, in Count IV, brought pursuant to the Rehabilitation Act
(see Footnote 2), Plaintiff alleges Defendant has intentionally
discriminated against S.B. by “establishing a system which requires her to
become institutionalized (hospitalized) in order to receive or access
intensive services to address her behavioral or emotional disorders, while
other persons are able to access community based services without having
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to become institutionalized.” Cmplt. ¶ 134. Plaintiff further alleges that
Defendant’s actions constitute deliberate indifference because Defendant
continues to administer a system that relies heavily on hospitalization
despite the demonstrated advantages of community-based programs.
Cmplt. ¶ 136.
Plaintiff seeks a declaratory judgment declaring unlawful the
Defendant’s failure to comply with the mandates of the Medicaid Act,
ADA, and Rehabilitation Act and a permanent injunction enjoining
Defendant from subjecting S.B. to practices that violate her rights under
the Medicaid Act, ADA, and Rehabilitation Act. Plaintiff also seeks
money damages under the Rehabilitation Act, costs, and reasonable
attorney fees.
II. PROCEDURAL BACKGROUND
On May 22, 2012, Plaintiff filed a Motion for Temporary
Restraining Order (TRO) and a Motion for Preliminary Injunction. On
May 24, 2012, the Court held a hearing on the Motion for a TRO and
granted the Motion. See Opinion (d/e 13). On June 7, 2012, pursuant
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to the agreement of the parties, this Court entered an Agreed Order (d/e
15) providing that Defendant would fund S.B.’s placement at Lincoln
Prairie so long as S.B. (1) continued to pursue applications for services
through the Illinois Department of Human Services in the Children and
Young Adults with Development Disabilities–Residential Waiver or
Support Waiver; and (2) complied and cooperated with all of the
procedures required by the Department of Healthcare and Family
Services and Illinois Department of Human Services. The Agreed Order
also provided that in the event S.B. was found eligible for the placement
and/or services under either of the Waivers, and was accepted for
placement and/or services, Defendant’s obligation to pay for the services
for S.B. at Lincoln Prairie shall terminate.
On May 2, 2012, Defendant filed an Answer to Count I and the
Motion to Dismiss at issue herein.
III. LEGAL STANDARD
A motion to dismiss under Federal Rule Civil Procedure 12(b)(6)
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permits dismissal of a complaint for “failure to state a claim upon which
relief can be granted.” Fed.R.Civ.P. 12(b)(6). For purposes of the
motion, a court must accept as true all well-pleaded allegations contained
in the complaint and draw all inferences in the light most favorable to the
non-moving party. Estate of Davis v. Wells Fargo Bank, 633 F.3d 529,
533 (7th Cir. 2011). To avoid dismissal for failure to state a claim, the
complaint must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). That
statement must be sufficient to provide the defendant with “fair notice”
of the claim and its basis. Tamayo v. Blagojevich, 526 F.3d 1074, 1083
(7th Cir. 2008); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007). This means that (1) “the complaint must describe the claim in
sufficient detail to give the defendant ‘fair notice of what the . . . claim is
and the grounds upon which it rests” and (2) its allegations must
plausibly suggest that the plaintiff has a right to relief, raising that
possibility above a “speculative level.” EEOC v. Concentra Health
Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007). Conclusory allegations
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are “not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662,
680 (2009) (citing Twombly, 550 U.S. at 544-55).
IV. ANALYSIS
Defendant seeks to dismiss Counts II, III, and IV.
A.
Count II States a Claim Under the ADA
Plaintiff brings Count II pursuant to Title II, the public services
portion of the ADA and § 1983. The relevant statutory provision
provides as follows:
Subject to the provisions of this subchapter, no
qualified individual with a disability shall, by
reason of such disability, be excluded from
participation in or be denied the benefits of
services, programs, or activities of a public entity,
or be subjected to discrimination by any such
entity.
42 U.S.C. § 12132. The regulations pertaining to Title II require a
public entity to “administer services, programs, and activities in the most
integrated setting appropriate to the needs of the qualified individual
with a disability.” 28 C.F.R. § 35.130(d).
In Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 597-98 (1999),
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the United States Supreme Court held that “[u]njustified isolation . . . is
properly regarded as discrimination based on disability.” The Court
recognized that institutionalizing individuals who could “handle and
benefit from community settings” is stigmatizing and diminishes the life
of those individuals. Id. at 600-01. The Court found that a State is
obligated to place persons with mental disabilities in community
placements rather than in institutions where (1) “the State’s treatment
professionals have determined that community placement is
appropriate;” (2) “the transfer from institutional care to a less restrictive
setting is not opposed by the affected individual;” and (3) “the placement
can be reasonably accommodated, taking into account the resources
available to the State and the needs of others with mental disabilities.”
Id. at 587.
Defendant argues this Court should dismiss Count II because,
although Plaintiff complains that Defendant violated the integration
mandate by failing to provide S.B. with home-based and communitybased services, Plaintiff actually wants S.B. to be placed in an institution
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(a psychiatric residential treatment facility). Defendant contends “[i]t is
far from clear why plaintiff asserts that failing to place S.B. in the
residential placement that he desires for S.B. violates the integration
mandate of the ADA.” Def. Mem. pp. 6-7.
Plaintiff denies that the allegations suggest S.B. seeks to be
institutionalized. Pl. Resp., p. 5. Plaintiff responds that he has stated a
claim because S.B. requests “treatment in a community based residential
treatment setting where she can attend school and participate in other
community activities.” Pl. Resp., p. 5, citing Cmplt. ¶¶ 85, 88. Plaintiff
alleges S.B. cannot attend school or participate in community activities
when she is in a hospital. Pl. Resp., p. 5, citing Cmplt. ¶ 86. Plaintiff
notes that S.B.’s physician has recommended she receive treatment in a
residential treatment facility. Pl. Resp., p. 6. Further, Plaintiff asserts
that the request for community based residential services can be
accommodated given that community based residential services are less
costly than hospital delivered services. Pl. Resp., p. 6. Finally, Plaintiff
notes that the Seventh Circuit has recognized that residential treatment
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facilities are less restrictive than psychiatric hospitals. See Collins v.
Hamilton, 349 F.3d 371, 376 (7th Cir. 2003) (rejecting the argument
that services offered through inpatient psychiatric hospitals removed the
need for residential treatment).
The allegations in Plaintiff’s Complaint are unclear in light of the
undefined terminology. Plaintiff uses the term “step-down residential
placement,” “step-down residential treatment facility,” and “psychiatric
residential treatment facility” to describe the desired placement for S.B.
See Cmplt. ¶¶ 78, 81, 84. Plaintiff alleges that while at Riverside (a
psychiatric residential treatment facility), S.B. can attend school and
participate in other recreational activities. Cmplt. ¶ 85. Yet, Plaintiff
also describes a “psychiatric residential treatment facility” as a restrictive
setting that severely limits a child from interacting with his or her family,
school, peers, and community. Cmplt. ¶ 74.
However, construing the factual allegations in the light most
favorable to Plaintiff, the Court construes Plaintiff’s Complaint as
seeking a less-restrictive placement (psychiatric residential treatment
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facility) than an institution (hospital). The Seventh Circuit has found, in
the context of a placement in a psychiatric residential treatment facility, a
“distinction between the acute care available in a psychiatric hospital
setting and the less restrictive treatment provided by a residential
facility.” Collins, 349 F.3d at 376.
In addition, Plaintiff alleges all of the elements of an integration
mandate violation required by Olmstead. Plaintiff alleges that a
community-based residential services placement is appropriate, that S.B.
wants to be placed in a less-restrictive setting than an institution, and
that S.B.’s request for community-based residential services can be
reasonably accommodated taking into account the resources available to
the State. Therefore, Count II states a claim under the ADA.
B.
Count III States a Claim Under Section 504 of the Rehabilitation
Act
In Count III, Plaintiff alleges a violation of the Rehabilitation Act
and § 1983. The Rehabilitation Act prohibits public entities and
recipients of federal funds from discriminating against any individual on
the basis of disability:
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No otherwise qualified individual with a disability
in the United States, as defined in section 705(20)
of this title, shall, solely by reason of her or his
disability, be excluded from the participation in,
be denied the benefits of, or be subjected to
discrimination under any program or activity
receiving Federal financial assistance or under any
program or activity conducted by any Executive
agency or by the United States Postal Service.
29 U.S.C. § 794. A prima facie case under Section 504 of the
Rehabilitation Act requires a plaintiff allege the following four elements:
(1) that she is a handicapped individual under the Act; (2) that she is
“otherwise qualified” for the benefit sought; (3) that she was
discriminated against solely by reason of her handicap; and (4) that the
program in question receives federal financial assistance. Grzan v.
Charter Hospital of Northwest Indiana, 104 F.3d 116, 119 (7th Cir.
1997) (quotations and citations omitted).
Defendant first seeks to dismiss Count III on the same basis raised
in Count II–that Plaintiff has not stated a claim because S.B. seeks
placement in an institution. The Court will not dismiss Count III on this
basis either.
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Defendant next seeks to dismiss Count III on the basis that no
cause of action is stated under the Rehabilitation Act because Plaintiff
must allege that S.B. is “otherwise qualified” for the benefit sought.
According to Defendant, S.B. is not “otherwise qualified” because, absent
the handicap, she would not have been eligible for placement in a
residential mental health facility in the first place.
In support thereof, Defendant cites Grzan, 104 F.3d 116. In
Grzan, the Seventh Circuit found that the psychiatric plaintiff who
complained about her counselor’s sexual relationship with her was not
“otherwise qualified” under the Rehabilitation Act because “[h]ad she not
suffered from a psychiatric condition, she would not have qualified for
Charter’s program and would not have been treated, negligently or
otherwise.” Id. at 120-121.
However, Grzan is distinguishable. Unlike the plaintiff in Grzan
who complained about the medical treatment she received, Plaintiff
herein is complaining that S.B. is being denied treatment in an integrated
setting. Plaintiff alleges S.B. has been discriminated against by being
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denied community mental health services and forced to receive medically
necessary treatment in an institutional setting.
As noted above, the United States Supreme Court held in Olmstead
that unjustified isolation constitutes discrimination under the ADA. This
holding has been extended to the Rehabilitation Act, which is generally
construed as coextensive with the ADA and which also contains an
integration provision. See 28 C.F.R. § 41.51(d) (requiring “the most
integrated setting appropriate to the needs of qualified handicapped
persons”); Washington v. Indiana High Sch. Athletic Ass’n, Inc., 181
F.3d 840,845-846 n. 6 (7th Cir. 1999) (ADA and Rehabilitation are
“nearly identical” and “precedent under one statute typically applies to
the other.”)3
Specifically, the Seventh Circuit held, in Radaszewski v. Maram,
383 F.3d 599 (7th Cir. 2004), that the plaintiff stated a claim under the
ADA and Rehabilitation Act where she alleged that Illinois’ failure to
“The chief difference between the two statutes is that the Rehabilitation Act
applies only to entities receiving federal funding . . . . [and] the Rehabilitation Act
requires that the exclusion be solely by reason of disability, while the ADA requires
only that the exclusion be by reason of the disability.” Washington, 181 F.3d at 845
n. 5. (Emphasis in original.)
3
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fund private-duty nursing care (community-based care) constituted
discrimination. Specifically, the Seventh Circuit found that the plaintiff
had sufficiently alleged the three elements set forth in Olmstead: the
plaintiff alleged (1) private-duty nursing care was appropriate care; (2)
the disabled individual and his family agreed to such care; and (3) the
State could reasonably accommodate the care for the disabled individual.
Radaszewski, 383 F.3d at 607, 612-13 (wherein the analysis focused on
the ADA but the Court held that it applied “with equal force” to the
Rehabilitation Act claim); see also Grooms v. Maram, 563 F. Supp. 2d
840, 855 (N.D. Ill. 2008) (finding that the plaintiff “may bring a claim
for violation of the integration mandate if he satisfies the three factors set
forth in Olmstead and Radaszewski”); B.N. v. Murphy, 2011 WL
5838976, at *6 (N.D. Ind. 2011) (“[i]n a case involving the potential for
forced institutionalization, this court must apply the Olmstead court’s
analysis to the integration mandate under the ADA and R[ehabilitation]
A[ct]”).
Here, Plaintiff has alleged that community-based care is appropriate
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for S.B., that S.B. consents to such care, and that the State can
reasonably accommodate the community-based care. Cmplt. ¶¶ 82, 90,
91, 92, 93, 87, 138, 139. As such, Plaintiff states a cause of action under
the Rehabilitation Act.
Finally, with regard to Count III, Defendant asserts that Plaintiff
cannot rely on § 1983 to sue Hamos in her official capacity for violations
of the Rehabilitation Act.4
“In order to seek redress through § 1983, . . . a plaintiff must assert
a violation of a federal right, not merely a violation of federal law.”
Blessing v. Freestone, 520 U.S. 329, 340 (1997) (emphasis in original).
Whether a statutory provision creates a federal right depends on whether
(1) Congress intended that the provision in question benefit the plaintiff;
(2) the right is not so “‘vague and amorphous’ that its enforcement would
strain judicial competence”; and (3) the statute unambiguously imposes a
binding obligation on the State. Id. at 340-41; see also Bontrager v.
Defendant does not raise in her Motion a claim that Plaintiff cannot rely on
§ 1983 to sue Hamos in her official capacity for violations of the ADA, although she
does cite a case holding that § 1983 claims may not rest on the ADA. See Def.
Mem., pp. 9-10, citing Torrence v. Advanced Home Care Inc., 209 WL 1444448
(N.D. Ill. 2009).
4
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Indiana Family & Social Servs. Admin., No. 11-3710, 2012 WL
4372524, at *2,
F.3d
(7th Cir. 2012). If the federal statute
creates an individual right, the Court must determine if Congress
foreclosed a remedy under § 1983 either expressly or implicitly, “by
creating a comprehensive enforcement scheme that is incompatible with
individual enforcement under § 1983.". Blessing, 520 U.S. at 341.
In her Motion to Dismiss, Defendant does not discuss whether the
Rehabilitation Act creates an individual right or contains a
comprehensive enforcement scheme but cites two Northern District of
Illinois cases for the proposition that, in this Circuit, a plaintiff cannot
employ § 1983 to sue for violations of the Rehabilitation Act. However,
the law in this Circuit is mixed. See Zachary M. v. Board of Educ. of
Evanston Twp. High Sch. Dist. No. 202, 820 F. Supp. 2d 649, 662-63
(N.D. Ill. 2011) (noting conflict in the district courts whether a § 1983
action under the Rehabilitation Act is cognizable). This Court would
prefer to decide the issue after more substantial briefing by the parties.
See, e.g., Lindstrom v. W.J. Bauman Assoc., Ltd., 2006 WL 278858, at
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*6 (W.D. Wis. 2006) (finding that the court did not need to consider
undeveloped arguments). Therefore, the Motion to Dismiss on this basis
is denied. Defendant is granted leave, however, to raise the issue again in
a Motion for Summary Judgment.
C.
Count IV States a Claim for Damages Under the Rehabilitation Act
In Count IV, Plaintiff seeks money damages under the
Rehabilitation Act. Although the Seventh Circuit has not decided the
issue, several courts in this district (and courts in other Circuits) have
held that compensatory damages are available under the Rehabilitation
Act only if the plaintiff shows discriminatory intent. See Zachary M.,
829 F. Supp. 2d at 662 (granting summary judgment in favor of
defendants where no evidence supported the inference that the school
district was deliberately indifferent); see also Powers v. MJB Acquisition
Corp., 184 F.3d 1147, 1153 (10th Cir. 1999) (“[I]ntentional
discrimination can be inferred from a defendant’s deliberate indifference
to the strong likelihood that pursuit of its questioned policies will likely
result in a violation of federally protected rights”); Duvall v. County of
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Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). That is, the plaintiff must
show that the defendant acted with deliberate indifference. Zachary M.,
829 F. Supp. 2d at 662. To show deliberate indifference, a plaintiff must
show knowledge (i.e. notice that an accommodation is required) and
deliberate conduct (as opposed to mere negligence). Kennington v.
Carter, 2004 WL 2137652, at *7 (S.D. Ind. 2004) (ADA case).
Defendant argues Plaintiff has not alleged deliberate indifference
because S.B. has been given services, just not the precise type of services
S.B. wants. Plaintiff responds that he has sufficiently alleged deliberate
indifference. The Court agrees with Plaintiff.
Plaintiff alleges that Defendant is aware that many children with
severe mental illnesses and emotional disturbances are unable to obtain
medically necessary home and community based services. Cmplt. ¶¶ 7-10
(referencing DHS reports purportedly regarding children not receiving
community services). Plaintiff further alleges that Defendant established
a system of requiring Plaintiff to be institutionalized (hospitalized) to
receive services for her behavioral or emotional disorders. Cmplt. 134.
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Plaintiff also alleges that Defendant relies heavily on hospitalizations
despite “the demonstrated advantages of community-based programs.”
Cmplt. ¶ 136. This Court finds that Plaintiff has sufficiently alleged
deliberate indifference.
V. CONCLUSION
For the reasons stated, Defendant’s Motion to Dismiss Counts II,
III, and IV of the Complaint (d/e 4) is DENIED. Defendant shall file an
Amended Answer on or before October 22, 2012.
ENTER: October 3, 2012
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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