BROWN v. ANCORA PSYCHIATRIC HOSPITAL et al
Filing
54
MEMORANDUM OPINION & ORDER granting Defendants' 42 Partial Motion to Dismiss. All of Plaintiffs' claims, except the Fourteenth Amendment claims against Boyer and Velez for prospective injunctive relief, are hereby DIDMISSED. ORDERED that DHS and Ancora are DISMISSED from this action. Signed by Judge Renee Marie Bumb on 8/7/2013. (TH, )
NOT FOR PUBLICATION
[Dkt. Ent. 42]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
DELORES BROWN, as Parent and
Legal Guardian of ALVIN
PAYTON, JR., and DELORES BROWN
individually
Civil No. 11-7159 (RMB/KMW)
MEMORANDUM OPINION & ORDER
Plaintiffs,
v.
ANCORA PSYCHIATRIC HOSPITAL,
NEW JERSEY DEPARTMENT OF HUMAN
SERVICES, ALLAN BOYER, and
JENNIFER VELEZ,
Defendants.
BUMB, United States District Judge:
Plaintiff Delores Brown (“Brown”), proceeding pro se,
initially filed this action on behalf of her son, Alvin Payton,
Jr. (“Payton”), an involuntarily committed patient at Ancora
Psychiatric Hospital (“Ancora”). (Dkt. Ent. 1.) Upon a motion by
Defendants Jennifer Velez, Esq., Allan Boyer, the New Jersey
Department of Human Services (“DHS”), and Ancora (collectively,
the “Defendants”), this Court dismissed the claims against DHS
and Ancora but allowed the claims for prospective injunctive
relief against the individual defendants to proceed. (Dkt. Ent.
23.) After obtaining counsel, Plaintiff Brown filed an amended
complaint (the "Amended Complaint") on behalf of herself and her
1
son Payton (collectively, “Plaintiffs”), asserting claims for
(1) violations of substantive due process rights under the
Fourteenth Amendment (Count I), (2) violation of Section 504 of
the Rehabilitation Act of 1973 (Count II),1 (3) negligence for
failure to properly train, supervise, and implement policies
(Count III), and (4) medical malpractice (Count IV). (Dkt. Ent.
38.) Currently before the Court is Defendants’ motion to dismiss
the Amended Complaint. (Dkt. Ent. 42.) For the reasons set forth
below, the Court grants Defendants’ motion to dismiss.
STATEMENT OF FACTS
Plaintiff Payton suffers from PICA, a disorder that involves
the consumption of substances with little or no nutritional
value, and causes Payton to consume batteries and other metallic
items. (Am. Compl. ¶¶ 14-15.) In 1993, Payton was involuntarily
committed to Ancora, a New Jersey State hospital operated by DHS,
1
Plaintiffs label Count II as “liability for violation of civil
rights under 42 U.S.C. § 1983 and 42 U.S.C. § 2000d-7, section
504 of the Rehabilitation Act of 1973.” (Am. Compl. at p. 8.)
Section 2000d-7 simply effects a waiver of sovereign immunity for
violations of Section 504, and does not provide any substantive
rights. Similarly, “Section 1983 is merely a vehicle for
vindicating violations of substantive rights found [in] the
United States Constitution and certain federal statutes. There
can be no ‘violation’ of § 1983.” Gutin v. Wash. Tp. Bd. of
Educ., No. 04-1947, 2007 WL 2139376, at *1 n.2 (D.N.J. 2007)
(citing Brown v. Pa. Dep’t of Health Emer. Med. Servs. Training
Inst., 318 F.3d 473, 477 (3d Cir. 2003)). Violations of Section
504 of the Rehabilitation Act, however, are not actionable under
Section 1983. See A.W. v. Jersey City Pub. Schs., 486 F.3d 791,
805 (3d Cir. 2007). Accordingly, the Court interprets Count II as
merely asserting rights under Section 504 pursuant to the
statutory remedies set forth in that statute.
2
for treatment of this disorder. (Id. ¶¶ 8, 10.) Plaintiffs allege
that the Ancora facility is not designed for PICA patients and
thus Payton has been able to access batteries and other items,
which he has ingested. (Id. ¶ 20.)
Shortly after Payton was committed to Ancora, he was
prescribed Risperdal, an antipsychotic drug, which he continued
taking until some point after the commencement of this action.
(Id. ¶¶ 18-19, 28.) According to the Amended Complaint, Payton’s
disorder worsened while he took Risperdal and, over the last 19
years, Payton has undergone 24 operations to remove items that he
has ingested. (Id. ¶¶ 20-22.)
Plaintiffs filed this action, seeking damages in the amount
of $25,000,000 and prospective injunctive relief “in the form of
building and staffing a fully equipped Ancora PICA Facility.”
(Id. ¶ 1.) Defendants have moved to dismiss the Section 1983
claims against DHS and Ancora, as well as the claims against
Boyer and Velez seeking monetary damages, on grounds that these
claims are barred by the Eleventh Amendment. They further contend
that the state law causes of action are barred by the Eleventh
Amendment and, in any event, these claims fail because Plaintiffs
do not allege compliance with the notice requirements of the New
Jersey Tort Claims Act (the “NJTCA”). Finally, Defendants argue
that the Amended Complaint fails to state an actionable claim
under Section 504 or for negligence and medical malpractice.
3
I.
Standard
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Sheridan v. NGK Metals
Corp., 609 F.3d 239, 263 n.27 (3d Cir. 2010) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. (quoting
Iqbal, 556 U.S. at 678).
The Court conducts a three-part analysis when reviewing a
claim:
First, the court must “tak[e] note of the elements a
plaintiff must plead to state a claim.” Second, the
court should identify allegations that, “because they
are no more than conclusions are not entitled to the
assumption of truth.” Finally, “where there are wellpleaded factual allegations, a court should assume
their veracity and then determine whether they
plausibly give rise to an entitlement for relief.”
Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)
(internal citations omitted); see also Fowler v. UPMC Shadyside,
578 F.3d 203, 211 (3d Cir. 2009) (“[A] complaint must do more
than allege the plaintiff's entitlement to relief. A complaint
has to ‘show’ such an entitlement with its facts.”).
II.
Analysis
A. The Eleventh Amendment Bars Most of the Section 1983 Claims.
In the Amended Complaint, Plaintiffs attempt to renew the
4
claims against all Defendants for violations of various
substantive due process rights under the Fourteenth Amendment.
However, the Court already addressed these claims in its prior
opinion disposing of Defendants' motion to dismiss the Complaint.
(See Opinion at 2-5, n.1 (construing Plaintiff's pro se Complaint
as invoking Section 1983 to redress substantive due process
rights under the Fourteenth Amendment).)
i.
Defendants DHS and Ancora
As discussed in this Court’s prior opinion, DHS and Ancora
are immune from suit under the Eleventh Amendment and, in any
event, as a state department and agency, they are not "persons"
amenable to suit under 42 U.S.C. § 1983. (See Opinion at 2-5.)
Plaintiffs’ Opposition cites cases that address qualified
immunity, a defense that may be available to government officials
for the performance of discretionary functions, but these do not
alter the Court’s Eleventh Amendment analysis. (See Pl.’s Opp. at
13-15); see also Clark v. Donahue, 885 F. Supp. 1164, 1166 (S.D.
Ind. 1995). Thus, for the same reasons cited in its prior
Opinion, this Court dismisses the Section 1983 claims against
Defendants DHS and Ancora for lack of jurisdiction.2
2
Plaintiffs suggest that the Court errs in phrasing its decision
as a dismissal for lack of jurisdiction. However, as the Supreme
Court has explained:
The text of the Amendment itself is clear enough on
this point: “The Judicial power of the United States
shall not be construed to extend to any suit....” And
5
ii.
Defendants Boyer and Velez
As to the Section 1983 claims against Defendants Boyer and
Velez, Plaintiffs have made this analysis needlessly opaque by
failing to specify in the Amended Complaint whether they are
suing Defendants Boyer and Velez in their individual or official
capacities and their briefing does not provide much
clarification. “[O]fficial-capacity suits ‘generally represent
only another way of pleading an action against an entity of which
an officer is an agent’ . . . [and] therefore should be treated
as suits against the State.” Hafer v. Melo, 502 U.S. 21, 25
(1991) (internal citations omitted). “Personal-capacity suits, on
the other hand, seek to impose individual liability upon a
government officer for actions taken under color of state law.”
Id.
It should be noted that Plaintiff Brown previously asserted
these claims against Defendants Boyer and Velez in their official
capacities. (See Opinion at 5 n.4.) Moreover, the allegations
contained in the Amended Complaint strongly suggest that
Plaintiffs bring these claims against the individual defendants
in their official capacities. Nearly all of the allegations are
our decisions since Hans had been equally clear that
the Eleventh Amendment reflects “the fundamental
principle of sovereign immunity [that] limits the grant
of judicial authority in Art. III,” (citations
omitted).
Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 64 (1996).
6
generally asserted against “Ancora and DHS” (see, e.g., Am.
Compl. ¶¶ 45, 46), “Ancora and DHS defendants” (id. ¶ 48), or
“Ancora and DHS employees and representatives” (id. ¶¶ 40, 41;
see also id. ¶¶ 36, 37), with no distinction between the state
and individual defendants. The only allegations specifically
directed to Defendants Boyer and Velez relate to their positions
as CEO of Ancora and Commissioner of DHS, respectively. In fact,
in describing the state and individual defendants, the Amended
Complaint describes them as similarly possessing “responsibility”
for “policy” and “oversight of the health, safety and welfare” of
the patients (id. ¶¶ 10-13), further suggesting that Plaintiffs
viewed these individuals merely as extensions of the State. In
addition, Plaintiffs’ Opposition discusses the constitutional
obligations of “state agencies and officials (like Ancora, DHS,
Allan Boyer, and Jennifer Velez),” but nowhere does it provide
any clarification of the nature of Plaintiffs’ suit. (Pl.’s Opp.
at 15.) Accordingly, this Court construes the Amended Complaint
as asserting claims against Defendants Boyer and Velez in their
official capacities.3 See Pena v. Div. of Child & Fam. Servs.,
3
The Amended Complaint and Plaintiffs’ memorandum of law in
opposition to the motion to dismiss have been unhelpful to the
Court in its analysis. Based on the allegations of the Amended
Complaint, it is hard to see how a claim against the individual
defendants in their personal capacities would be viable. See,
e.g., Gaymon v. Esposito, No. 11-4170, 2012 WL 1068750, at *4-5
(D.N.J. Mar. 29, 2012). Thus, to the extent Plaintiffs intended
to assert such claims against the individual defendants, they
will need to seek leave from the Court to amend their complaint.
7
No. 08-1168, 2010 WL 3982321, at *5 (D.N.J. Oct. 8, 2010)
(reviewing “course of proceedings” and concluding claims were
brought against individual defendants in their official
capacities).
Plaintiffs’ Opposition attempts to assert additional
allegations regarding Defendants Boyer and Velez, presumably to
demonstrate their personal involvement in the alleged violations.
Specifically, Plaintiffs claim these Defendants have "knowledge
of and actively participated in the inadequate care, inadequate
medical treatment and violating [sic]" of Payton’s rights because
they received an investigative report from the Department of
Justice noting certain “deficiencies” in patient care. (Pl.’s
Opp. at 16, 18.) Plaintiffs do not indicate when this report was
purportedly received by Defendants. In any event, these
allegations are not contained in the Amended Complaint and
therefore will not be considered by the Court. Voneida v. Penn.,
508 F. App’x 152, 155 (3d Cir. 2012) (“statements in a brief are
not a substitute for the allegations in the complaint”) (citing
Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n.9 (3d Cir.
2002)); see also Seeds of Peace Collective v. City of Pittsburgh,
453 F. App’x 211, 215 n.3 (3d Cir. 2011) (“[W]e do not consider
factual allegations made in [the plaintiff’s] brief but not
The Court will not opine on whether any proposed amended claims
will be sustained.
8
pleaded in the complaint.”).
Thus, for the reasons explained in its prior Opinion, this
Court will dismiss the claims against the individual defendants
to the extent they seek monetary relief. (Opinion at 5-6.)
B. Plaintiffs’ State Law Claims Against All Defendants Are
Barred by the Eleventh Amendment and the NJTCA.
Here, again, the Court has already explained the reasons why
it lacks jurisdiction over Plaintiffs’ state law claims and will
not reiterate its reasoning herein. (Opinion at 6-7.)
Even if these claims were not barred by the Eleventh
Amendment, Plaintiffs have failed to allege compliance with the
notice requirements of the NJTCA. The NJTCA requires a plaintiff
bringing a claim against a public entity or public employee to
give the relevant public entity notice of the claim within ninety
days after the cause of action accrues. N.J. Stat. Ann. §§ 59:8–
3, 59:8-8. “A plaintiff is ‘forever barred’ from recovering on
the claim if she fails to comply with these filing requirements.”
Pena, 2010 WL 3982321, at *6. Further, the filing of a complaint
is not a substitute for compliance with the notice requirements
of the statute. Guzman v. City of Perth Amboy, 518 A.2d 758, 761
(N.J. Sup. App. Div. 1986).
Plaintiffs respond only that they are not required to follow
the NJTCA notice provisions because the requirements do not apply
to civil rights violations under Section 1983, claims brought
under the New Jersey Civil Rights Act of 2004 (the “NJCRA”), or
9
claims brought under the New Jersey Law Against Discrimination
(the “NJLAD”). However, Defendants have not moved to dismiss the
Section 1983 claims on this ground, and Plaintiffs do not bring
claims under either the NJCRA or the NJLAD. Furthermore,
characterizing this action as a “civil rights action” does not
permit Plaintiffs to bypass the notice requirements applicable to
their state law claims. See Rolax v. Whitman, 53 F. App’x 635 (3d
Cir. 2002) (“When an action in tort is initiated against a public
entity or its employees, the complaint must also meet the
requirements of the New Jersey Tort Claims Act, N.J.S.A. § 59:83[].”); Baklayan v. Ortiz, No. 11-3943, 2012 WL 3560384, at *5
(D.N.J. Aug. 15, 2012) (“All common law tort claims, including
both negligence and intentional claims, are subjected to this
notice requirement.”). Plaintiffs’ failure to allege compliance
with the notice requirements as to their tort claims provides an
independent basis for dismissal of these claims against all
Defendants.4
C. Plaintiffs Fail to State a Claim Under Section 504.
Plaintiffs’ claims under Section 504 of the Rehabilitation
Act, 29 U.S.C. § 794, must be dismissed for failure to state a
claim. As an initial matter, Defendants have consented to a
4
Although Defendants also argued that the Amended Complaint
fails to adequately plead the negligence and medical malpractice
claims, this Court need not address these arguments as the claims
must be dismissed on other grounds.
10
waiver of their sovereign immunity with respect to these claims
through their voluntary receipt of federal funds.5 42 U.S.C.
§ 2000d–7(a)(1); M.A. ex rel. E.S. v. State-Operated Sch. Dist.
of Newark, 344 F.3d 335, 347 (3d Cir. 2003) (“The Supreme Court
held that § 2000d–7(a)(1) accomplished a valid and unambiguous
waiver of the states' Eleventh Amendment immunity.”) (citing Lane
v. Pena, 518 U.S. 187, 198-200 (1996)); (see also Am. Compl.
¶ 2).
Section 504 of the Rehabilitation Act of 1973 forbids
federally-funded state programs from discriminating against
disabled individuals based solely on their disability. In
relevant part, the statute states that “[n]o otherwise qualified
individual with a disability in the United States . . . shall,
solely by reason of her or his disability, be excluded from
participation in, be denied the benefits of or be subjected to
discrimination under any program or activity receiving Federal
assistance . . . .” 29 U.S.C. § 794(a). To establish a claim
under Section 504, a plaintiff must prove: (1) that he is a
disabled individual under the Rehabilitation Act; (2) that he is
“otherwise qualified” for the position sought; (3) that he was
5
It should be noted that claims under Section 504 could not be
sustained against Defendants Boyer and Velez in their personal
capacities because Section 504 applies only to those who receive
federal financial assistance. See, e.g., Robinson v. Burlington
Cnty Bd. of Social Servs., No. 07-2717, 2008 WL 4371765, at *6
(D.N.J. Sept. 18, 2008).
11
excluded from the position sought, denied the benefits of, or
subjected to discrimination under the program or activity solely
by reason of his disability; and (4) that the program or activity
in question receives federal financial assistance. See Farrell v.
A.I. DuPont Hosp. for Children of the Nemours Found., No. 043877, 2006 WL 1284947, at *3 (E.D. Pa. May 5, 2006) (citing
Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1009 (3d Cir.
1995); Nathanson v. Med. College of Pa., 926 F.2d 1368, 1380 (3d
Cir. 1991)). Defendants contend that Plaintiffs have failed to
sufficiently plead the second and third elements. This Court
agrees.
An “otherwise qualified” individual with disabilities “is
one who can meet all of a program’s requirements in spite of his
handicap.” See, e.g., Wagner, 49 F.3d at 1009. Other courts have
recognized, “[t]he ‘otherwise qualified’ language, when
considered in conjunction with the ‘solely’ language of the third
condition, poses a formidable obstacle for anyone alleging
discrimination based upon the failure to receive medical
treatment for a birth defect.” Johnson v. Thompson, 971 F.2d
1487, 1493 (10th Cir. 1992). “This is because, ordinarily, one
seeking medical treatment as a result of a disability would not
need the treatment but for the disability.” Farrell, 2006 WL
1284947, at *7 (citing Wagner, 49 F.3d at 1009). Therefore,
“[w]here the handicapping condition is related to the
(conditions) to be treated, it will rarely, if ever, be possible
12
to say with certainty that a particular decision was
‘discriminatory.’” United States v. Univ. Hosp., 729 F.2d 144,
157 (2d Cir. 1984). In determining whether an individual is
“otherwise qualified”, however, the Third Circuit has directed
courts to focus not on the reason the individual sought access to
the benefit but rather on the reasons why the individual was
denied access. Wagner, 49 F.3d at 1010; see also Farrell, 2006 WL
1284947, at *7; Faustino v. A.I. DuPont Hosp. for Children of
Nemours Found., No. 05-3002, 2006 WL 3227820, at *4 (E.D. Pa.
2006).
Here, Plaintiffs have failed to allege facts sufficient to
show Payton was “otherwise qualified” for the treatment he
received or that he was discriminated against solely because of
his PICA disorder. At most, the Amended Complaint alleges that
Payton suffered from PICA and that he has ingested numerous items
during his commitment at Ancora. Plaintiffs then assert that
“Ancora discriminated against Mr. Payton and other patients with
pica [sic] disorders by denying them access to proper medical
treatment, suitable medication, proper physical treatment
facilities, and specialized medical staff and appropriate
therapy.” (Am. Compl. ¶ 4.) Despite this single conclusory
statement that Payton was “den[ied] [] access” to proper
treatment, the Amended Complaint’s other assertions reflect not
that he was denied access but that the treatment afforded to
Payton was not good enough.
13
Most of Plaintiffs’ allegations concern Payton’s treatment
with Risperdal, which they contend worsened Payton’s disorder.
These allegations demonstrate that the heart of Plaintiffs’
Amended Complaint concerns allegations that Payton did not
receive adequate medical treatment. (See also Am. Compl. ¶ 27
(Payton has suffered from the “prolonged use of the Risperdal
medication and the improper medical treatment he received”).)
But, Section 504 is not designed as a vehicle for asserting
medical malpractice actions. Indeed, numerous courts in this and
other Circuits have dismissed claims under Section 504 for this
very reason. See, e.g., Watson v. A.I. DuPont Hosp. for Children
of Nemours Found., No. 05-674, 2007 WL 1009065, at *2 (E.D. Pa.
Mar. 30, 2007) (“Defendants are correct insofar as they argue
that § 504 should not be applied to medical treatment
decisions.”); Farrell, 2006 WL 1284947, at *6 (“While an
examination of complex medical decisions is commonly made with
respect to negligence claims, such medical decisions are removed
from the purview of the Rehabilitation Act.”); United States v.
Univ. Hosp., 729 F.2d 144, 156-57 (2d Cir. 1984) (“The phrase
[‘otherwise qualified’] cannot be applied in the comparatively
fluid context of medical treatment decisions without distorting
its plain meaning.”); O'Guinn v. Nevada Dep’t of Corr., 468 F.
App’x 651, 652-653 (9th Cir. 2012) (“The district court correctly
concluded that key elements of an ADA or RA claim cannot be
reconciled with medical treatment decisions for the underlying
14
disability.”); see also Iseley v. Beard, 200 F. App’x 137, 142
(3d Cir. 2006) (“Iseley does not claim that he was excluded from
any program on the basis of his disability. Rather he claims that
he was denied medical treatment for his disabilities, which is
not encompassed by the ADA's prohibitions.”); Simmons v. Navajo
Cnty., Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010) (“The ADA
prohibits discrimination because of disability, not inadequate
treatment for disability.” (citing Bryant v. Madigan, 84 F.3d
246, 249 (7th Cir.1996)));6 Rosario v. Wash. Mem’l Hosp., No. 121799, 2013 WL 2158584, at *4, *13-14 (W.D. Pa. May 17, 2013)
(“The rule that medical malpractice does not violate the ADA,
which was announced in Bryant has been applied by the United
States Court of Appeals for the Third Circuit.”).7
6
“In light of the similarities between . . . the ADA and [the
Rehabilitation Act] and their implementing regulations, we
construe and apply them in a consistent manner.” Disabled in
Action of Penn. v. Se. Penn. Transp. Auth., 635 F.3d 87, 91 (3d
Cir. 2011) (quoting Penn. Prot. and Advocacy, Inc. v. Penn. Dep't
of Pub. Welfare, 402 F.3d 374, 379 n.3 (3d Cir. 2005)); see also
Defreitas v. Montgomery Cnty. Corr. Facility, No. 12-3305, 2013
WL 1878842, at *5 (3d Cir. May 7, 2013) (“The substantive
standards for determining liability under the ADA and RA are the
same, and we thus analyze them together.” (citations omitted)).
7
Wagner does not contradict the holding here. The Third Circuit
in Wagner did not explicitly reject the district court’s
conclusion that medical treatment decisions are generally immune
from scrutiny under Section 504. 49 F.3d at 1011-12. Rather, the
court characterized the decision at issue there as involving
administrative decisionmaking and not medical treatment. Id.; see
also Watson, 2007 WL 1009065, at *2 (noting that Wagner did not
expressly find Section 504 inapplicable to medical treatment
decisions). Here, the Amended Complaint’s allegations cannot be
read as asserting a similar administrative decision.
15
Therefore, the Section 504 claims against all Defendants
must be dismissed.
ORDER
FOR THESE REASONS, it is on this 7th day of August 2013,
hereby:
ORDERED that Defendants’ partial motion to dismiss is
GRANTED, and all of Plaintiffs’ claims, except the Fourteenth
Amendment claims against Defendants Boyer and Velez for
prospective injunctive relief, are hereby DISMISSED; and it is
further
ORDERED that DHS and Ancora are accordingly DISMISSED from
this action, and the Clerk of Court shall therefore remove them
from the docket caption.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
16
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