SMITH et al v. TOWNSHIP OF WARREN et al

Filing 80

OPINION filed. Signed by Judge Brian R. Martinotti on 12/22/2016. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
__________________________________________
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:
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Plaintiff,
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v.
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TOWNSHIP OF WARREN, SOMERSET
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COUNTY, STATE OF NEW JERSEY, NEW
:
JERSEY OFFICE OF EMERGENCY
:
MANAGEMENT, CHRISTOPHER J. CHRISTIE, :
in his official capacity as the Governor of the State :
of New Jersey, COLONEL RICK FUENTES, in his :
official capacity as the New Jersey Director of
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Emergency Management, and JOHN DOES 1-10, :
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Defendants.
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__________________________________________:

NANCY A. SMITH, individually and as the
Administrator of the ESTATE of WILLIAM L.
SMITH,

Civ. Action No. 14-7178-BRM-LHG

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court are three Motions to Dismiss Plaintiff Nancy A. Smith’s (herein referred
to as “Plaintiff” in her capacity as both an individual plaintiff and administrator for the Estate of
William L. Smith, and referred to individually as “Nancy Smith”) First Amended Complaint
(“FAC”), pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), brought by Defendants Somerset
County (“Somerset”) (ECF No. 55), Township of Warren (“Warren”) (ECF No. 56), and the State
of New Jersey (“New Jersey” or the “State”), the New Jersey Office of Emergency Management
(the “OEM”), Governor Christopher J. Christie (“Christie”), and Colonel Rick Fuentes (“Fuentes”)
(collectively, “State Defendants”) (ECF No. 57). Plaintiff, as an individual and in her capacity as

administrator for the Estate (the “Estate”) of William L. Smith (“William Smith”), brings this
action against Warren, Somerset, New Jersey, the OEM, Christie, in his official capacity as the
Governor of the State of New Jersey, and Fuentes, in his official capacity as the New Jersey
Director of Emergency Management (collectively, “Defendants”), for allegedly failing to provide
Nancy and William Smith with equal access to emergency services during Superstorm Sandy (the
“Storm”) in violation of Title II of the Americans with Disabilities Act (the “ADA”), 42 U.S.C.
§ 12131, et seq., § 504 of the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C.
§ 794, et seq., the Fair Housing Act (the “FHA”), 42 U.S.C. § 3601, et seq., the Fourteenth
Amendment of the United States Constitution, pursuant to 42 U.S.C. § 1983 (“§ 1983”), and the
New Jersey Law Against Discrimination (the “NJLAD”), N.J.S.A. 10:5-1, et. seq. Plaintiff
opposes the pending Motions to Dismiss.
For the reasons set forth herein, the Motions to Dismiss are GRANTED IN PART and
DENIED IN PART.
I.

BACKGROUND
A. Factual Background

The following allegations are taken from Plaintiff’s FAC and are assumed as true for the
purposes of these Motions to Dismiss. Nancy Smith is a resident of the Township of Warren in
Somerset County, suffers from Parkinson’s disease, and is confined to a wheelchair. (ECF No. 47
at ¶¶ 2, 57.) William Smith, now deceased, was a resident of Warren in Somerset, and suffered
from dementia and Alzheimer’s disease. (Id. at ¶ 3.) Nancy Smith is the administrator of William
Smith’s estate. (Id.) This action arises from Defendants’ alleged failure to provide Nancy and
William Smith with equal access to emergency services, in the same way such services were
available to non-disabled individuals, before, during, and after Superstorm Sandy.

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Plaintiff alleges that “Defendants were required to ensure that people with disabilities
would have full and equal access to all aspects of emergency preparedness programs and services,
and that people with disabilities would not be prevented by virtue of their disability from
participating in and obtaining the benefits of such programs and services.” (Id. at ¶ 17.) During the
Storm, Defendants allegedly failed to fulfill these responsibilities and did not provide Nancy and
William Smith with sufficient access to emergency services, despite the fact that “[a]t the time of
the Storm – and for many years prior – Defendants were on notice that New Jersey was highly
susceptible to the effects of natural disasters and other emergencies” and that disabled residents
were especially vulnerable to such events. (Id. at ¶ 14.)
According to the FAC, prior to the Storm, the OEM and Fuentes openly admitted the
importance of their obligation to ensure that individuals with disabilities had adequate access to
emergency services. (Id. at ¶¶ 18-21.) Four years before the Storm, the OEM issued a revised 125page report entitled “Specialized Shelter Planning,” which allegedly “emphasized the importance
of, and the need for the state and local governments to implement, appropriate emergency planning
for people with disabilities.” (Id. at ¶ 19.) Additionally, the OEM’s website “emphasizes its
commitment to so-called ‘Whole Community Planning.’” (Id. at ¶ 19.) According to the website:
The OEM is committed to whole-community planning: emergency
planning that involves entire communities and not just government
agencies. By including the full spectrum of people and organizations
represented in a community, emergency planning will account for
the needs of all communities’ members, regardless of their personal
circumstances or abilities. We include individuals with functional
needs, advocates and human service providers in all phases of the
emergency management process – mitigation, preparedness,
response and recover. There is nothing “special” about insuring
everyone can access mass care shelters, understand emergency
information, evacuate safely or receive recovery information.
Whole-community planning is something we practice as a normal
course of business, because every life matters.

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(Id.) Months before the Storm struck, Fuentes, as director of the OEM, issued the following press
release, regarding Defendants’ obligations to ensure that people with disabilities have equal access
to emergency services:
Our goal is inclusion of people with disabilities in emergency
preparedness, and insuring access and integration of people with
functional needs into all our emergency management activities. . . .
Every life matters. We need to reverse the trend of people with
disabilities being disproportionately impacted by disasters. We have
a legal – but more importantly – an ethical obligation to do so.
(Id. at ¶ 21.) Plaintiff claims despite these obligations, “[b]efore, during, and after the Storm,
Defendants appropriately ensured that essential components, such as shelter and care, were
available to the general public,” but “failed to account for Nancy and William.” (Id. at ¶¶ 22-23.)
As a result of these failures, Nancy and William Smith allegedly “sustained, and continue[] to
sustain, substantial damages.” (Id. at ¶ 24.)
The Storm made landfall in New Jersey on October 29, 2012. (Id. at ¶ 39.) At that time,
Nancy and William Smith resided with their daughter, Deborah Smith (collectively, the “Smiths”),
in their home located at 10 Jennifer Lane, Warren, New Jersey. (Id. at ¶ 25.) Approximately four
or five days before the Storm, Deborah Smith registered Nancy and William Smith with the
“Special Needs Registry” offered by New Jersey. (Id. at ¶ 29.) According to Plaintiff, the Special
Needs Registry was “designed to help people who may have difficulty during an evacuation
because of physical or cognitive limitations.” (Id. at ¶ 28.) New Jersey “urged disabled individuals
to register ‘so emergency responders [could] better plan to serve them in a disaster or other
emergency.’” (Id. at ¶ 28.) (brackets in original)
Approximately 24 to 48 hours before the Storm, Carolann Garafola, the mayor of Warren
(“Garafola”), contacted Deborah Smith and informed her that because the only available shelter in
the area, Stonecrest Church, was not equipped to accommodate Nancy and William Smith’s

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disabilities, the township, therefore, planned to place them in a nursing home, hospital, or assisted
living facility for the duration of the Storm. (Id. at ¶¶ 33-34.) However, shortly before the Storm
struck New Jersey, on October 28, 2012, Deborah Smith spoke with Jane Asch (“Asch”) from the
Warren Office of Emergency Management, who advised her that “she had been on a phone call
with Governor Christie and it was determined that Nancy and William should stay put in their
home.” (Id. at ¶¶ 35-36.) Asch explained “that a generator would only be delivered to the home in
the event the Smiths lost power.” (Id. at ¶ 36.) “[R]elying on the assurance of Warren and Somerset
that they would be provided appropriate shelter and safety during the Storm, Nancy and William
forewent other opportunities to seek appropriate shelter and safety prior to the Storm’s arrival.”
(Id. at ¶ 38.)
When the Storm made landfall, on October 29, 2012, the Smiths’ home immediately lost
power. (Id. at ¶ 39.) On October 29, 2012, Warren delivered a generator to the Smiths’ home. (Id.
at ¶ 40.) The generator failed immediately after delivery. (Id. at ¶ 41.) On October 30, 2012,
Warren delivered a second generator, which also failed soon after delivery. (Id. at ¶¶ 42-43.)
Without access to electricity, the Smiths spent “several days suffering from the bitter cold, and
Nancy and William’s conditions deteriorated significantly.” (Id. at ¶¶ 44-47.)
During this period, Deborah Smith was “urgently requesting help from the local
authorities.” (Id. at ¶ 48.) In response to her calls for aid, on October 31, 2012, “a social worker
from Somerset arrived at the Smiths’ home.” (Id.) Ultimately, the social worker decided to remove
William Smith from the Smiths’ home, “[d]espite Deborah and Nancy’s vehement objections,”
because he “presented as a danger to himself or others,” as evidenced by the fact that he “had
unplugged the second generator.” (Id.) While in the care and custody of the State, 1 William Smith

1

It is not clear from the FAC specifically which Defendants had custody of William Smith.

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was “involuntarily committed to three hospitals over approximately eleven days” and was
allegedly “kept in substandard conditions,” including residing in rooms without heat and without
adequate clothing to keep him warm. (Id. at ¶¶ 50-53.) On November 10, 2012, William Smith
passed away. (Id. at ¶ 54.)
Nancy and Deborah Smith remained at the Smiths’ home, until November 4, 2012, without
heat or electricity. (Id. at ¶¶ 49, 55.) On November 4, an officer from Warren’s Office of
Emergency Management allegedly advised Nancy and Deborah Smith that there was room for
them at a shelter that had been opened at Bernard’s High School in Bernardsville, New Jersey. (Id.
at ¶ 55.) According to the officer, the shelter was accessible to the disabled and could
accommodate an individual confined to a wheelchair. (Id.) Nancy and Deborah Smith traveled to
the shelter that same day. (Id. at ¶ 56.) However, according to Plaintiff, the shelter “was beset with
issues which made it inappropriate for Nancy and other disabled persons.” (Id. at ¶ 57.) These
alleged issues included: (i) people with disabilities were housed upstairs in the shelter, and because
the elevator was not operating, these individuals were effectively trapped upstairs; (ii) the upstairs
bathroom was not handicapped accessible and could not accommodate Nancy Smith’s wheelchair;
(iii) the upstairs area was not equipped with appropriate power outlets; and (iv) people with
disabilities did not have access to a shower or hot water. (Id. at ¶¶ 57(A)-(K).) According to
Plaintiff, “Bernard’s High School was open to the general public as an emergency shelter until at
least November 14, 2012” and “[d]uring that time, Bernard’s High School was not equipped to
accommodate disabled individuals, such as Nancy and William.” (Id. at ¶ 58.) The FAC is silent
as to how long Nancy and Deborah Smith themselves sheltered at Bernard’s High School.
Plaintiff asserts that the failure of the Defendants to provide Nancy and William Smith
with access to public facilities and services before, during, and in the aftermath of Superstorm

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Sandy, caused significant physical, emotional, and monetary harm to them. (Id. at ¶ 59.)
Additionally, Plaintiff alleges that “[t]o date, Defendants have failed to implement an adequate
disaster relief program for disabled persons, such as Nancy.” (Id. at ¶ 60.) Plaintiff concludes
because New Jersey is susceptible to future emergencies, including both manmade and natural
disasters, Nancy Smith is likely to be harmed in the future if Defendants’ failures are left
unaddressed. (Id. at ¶¶ 61-62.) Plaintiff asserts five claims against Defendants: Count One,
violation of the ADA by all Defendants; Count Two, violation of § 504 of the Rehabilitation Act
by all Defendants; Count Three, violation of the FHA by all Defendants; Count Four, violation of
the Fourteenth Amendment, under 42 U.S.C. § 1983, by Warren and Somerset; and Count Five,
violation of the NJLAD by Warren and Somerset. Plaintiff seeks damages, as well as equitable
relief, including “[a] declaration that Defendants’ discriminatory provision of shelter during
emergencies violates” state and federal law and an order and judgment enjoining Defendants from
violating state and federal law and “requiring Defendants to develop and implement an emergency
preparedness program and provision of emergency shelter that addresses the unique needs of
people with disabilities during emergencies[.]” (Id. at Counts One-Three and Five, Wherefore
Clauses.)
B. Procedural Background
Plaintiff initially filed her Complaint in this matter on November 10, 2014. (ECF No. 1.)
On July 30, 2015, the Court appointed pro bono counsel for Plaintiff. (ECF No. 36.) On June 16,
2016, with the consent of all defendants, Plaintiff filed the FAC, which omitted certain previouslypled defendants and included more detailed allegations regarding Plaintiff’s claims. (ECF No. 47.)
Somerset moves to dismiss the claims against it for failure to state a claim, pursuant to Rule
12(b)(6). (ECF No. 55.) Warren likewise moves to dismiss the claims against it for failure to state

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a claim, pursuant to Rule 12(b)(6). (ECF No. 56.) State Defendants move to dismiss the claims
against them (1) pursuant to Rule 12(b)(1), for lack of subject-matter jurisdiction, on the basis of
Eleventh Amendment sovereign immunity, and (2) pursuant to Rule 12(b)(6), for failure to state a
claim. (ECF No. 57.) Plaintiff opposes these Motions. 2 (ECF Nos. 66, 67, & 79.)
II.

LEGAL STANDARD
A. Rule 12(b)(1)

Rule 12(b)(1) mandates the dismissal of a case for “lack of subject-matter jurisdiction.”
Fed. R. Civ. P. 12(b)(1). An assertion of Eleventh Amendment immunity is a challenge to a district
court’s subject-matter jurisdiction. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2
(3d Cir. 1996) (“[T]he Eleventh Amendment is a jurisdictional bar which deprives federal courts
of subject matter jurisdiction.”) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S.
89, 98-100 (1984)). Typically, when jurisdiction is challenged pursuant to Rule 12(b)(1), the
plaintiff bears the burden of persuading the court that subject-matter jurisdiction exists. Kehr
Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). However, because “Eleventh
Amendment immunity can be expressly waived by a party, or forfeited through non-assertion, it
does not implicate federal subject matter jurisdiction in the ordinary sense,” and therefore, a party
asserting Eleventh Amendment immunity bears the burden of proving its applicability. Christy v.
Pennsylvania Turnpike Comm., 54 F.3d 1140, 1144 (3d Cir. 1994); see also Carter v. City of
Philadelphia, 181 F.3d 339, 347 (3d Cir. 1999).
When evaluating a Rule 12(b)(1) motion to dismiss, a court must first determine whether
the motion attacks the complaint as deficient on its face, or whether the motion attacks the

2

On October 7, 2016, Plaintiff filed a letter requesting that the Court consider her sur-reply to
address new arguments raised in State Defendants’ reply brief. (ECF No. 79.) The Court has read
and will consider Plaintiff’s sur-reply in deciding the pending Motions. See L. Civ. R. 7.1(d)(6).

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existence of subject-matter jurisdiction in fact, apart from any pleadings. Mortensen v. First Fed.
Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). If the motion consists of a facial attack, “the
court must only consider the allegations of the complaint and documents referenced therein and
attached thereto, in the light most favorable to the plaintiff.” Gould Elecs. Inc. v. United States,
220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d. at 891). However, if the motion
involves a factual attack, “the court may consider evidence outside the pleadings.” Gould, 220
F.3d at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997)). Here, State
Defendants’ motion is a facial attack, because State Defendants assert that they are immune from
Plaintiff’s claims as pled. Therefore, on reviewing this question of sovereign immunity, the Court
may only consider the FAC in the light most favorable to Plaintiff.
B. Rule 12(b)(6)
In deciding a motion to dismiss pursuant to Rule 12(b)(6), a district court is “required to
accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in
the light most favorable to [the plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 228 (3d
Cir. 2008). “[A] complaint attacked by a . . . motion to dismiss does not need detailed factual
allegations.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s
“obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the
factual allegations in the complaint are true, those “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.

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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. “Determining whether the allegations in a complaint are
plausible is a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—’that the pleader is entitled to relief.’” Id. (citing Fed. R. Civ. P. 8(a)(2)).
III.

DECISION
A. Standing to Bring Claims for Prospective Injunctive Relief

Plaintiff seeks, among other remedies, equitable relief in the form of “[a]n order and
judgment enjoining Defendants from violating” the ADA, the Rehabilitation Act, the FHA, and
the NJLAD (as to Warren and Somerset only), “and requiring Defendants to develop and
implement an emergency preparedness program that addresses the unique needs of people with
disabilities during emergencies.” (ECF No. 47 at ¶¶ 76, 86, 97, 114.) Defendants argue Plaintiff
does not have standing to seek prospective injunctive relief, because (1) she has not plead facts
indicating that Nancy Smith is in immediate threat of danger from a repetition of the type of
experience that she suffered during the Storm and (2) the Estate, as an entity rather than a disabled
individual, cannot be harmed by future lack of emergency services. Plaintiff does not contest that
the Estate lacks standing to seek prospective injunctive relief, nor could she, but maintains that
Nancy Smith has such standing, because she “faces a threat of discrimination in the provision of

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emergency services that is real and immediate.” (Br. in Opp’n to the Mot. to Dismiss Filed by
Defs. New Jersey, OEM, Christie, and Fuentes (ECF No. 67) at 24 (quotations omitted).)
Under Article III of the Constitution, the jurisdiction of federal courts is “constitutionally
restricted to ‘cases’ and ‘controversies.’” Flast v. Cohen, 392 U.S. 83, 94 (1968). To have standing
to sue, a plaintiff must establish “(1) an injury-in-fact that is (a) concrete and particularized, and
(b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury
and the conduct complained of; and (3) a likelihood that the injury will be redressed by a favorable
decision.” McNair v. Synapse Grp., Inc., 672 F.3d 213, 223 (3d Cir. 2012) (marks omitted).
Additionally, when a plaintiff seeks prospective relief, he “must show that he is ‘likely to suffer
future injury from the defendant’s conduct.’” Id. (quoting City of Los Angeles v. Lyons, 461 U.S.
95, 105 (1983)).
In Lyons, for example, the plaintiff brought claims against the City of Los Angeles for a
Los Angeles police officer’s alleged use of a chokehold on the plaintiff. 461 U.S. at 97-98. The
plaintiff sought an injunction prohibiting the Los Angeles police department from using
chokeholds and other control holds in situations where deadly force was not threatened. Id. at 98.
The Supreme Court ruled that the plaintiff did not have standing to seek the requested injunction,
because he had not shown that he was “likely to suffer future injury from the use of the chokeholds
by police officers.” Id. at 105. Although the plaintiff had been choked in the past, this singular
event did not “establish a real and immediate threat that he would again be stopped for a traffic
violation, or for any other offense, by an officer or officers who would illegally choke him into
unconsciousness without any provocation or resistance on his part.” Id. The Supreme Court further
explained, “[t]he additional allegation in the complaint that the police in Los Angeles routinely
apply chokeholds in situations where they are not threatened by the use of deadly force falls far

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short of the allegations that would be necessary to establish a case or controversy between these
parties.” Id. at 106. The Supreme Court concluded that to establish an actual controversy in this
case, the plaintiff would have had “not only to allege that he would have another encounter with
the police but also to make the incredible assertion either (1) that all police officers in Los Angeles
always choke any citizen with whom they happen to have an encounter, whether for the purpose
of arrest, issuing a citation, or for questioning, or (2) that the City ordered or authorized police
officers to act in such manner.” Id. at 105-06.
Applying these principals to the present case, the Court finds that Nancy Smith lacks
standing to seek prospective injunctive relief against Defendants. According to the FAC,
[b]y failing to provide Nancy and William with access to public
facilities and services before, during, and in the aftermath of the
Storm, Defendants have caused significant physical, emotional, and
monetary harm to Plaintiff. To date, Defendants have failed to
implement an adequate disaster relief program for disabled persons,
such as Nancy. Because New Jersey is particularly susceptible to
similar disasters, the harm from Defendants’ lack of an adequate
disaster relief program for disabled persons is ongoing and must be
addressed immediately before the next natural disaster inevitably
strikes. If Defendants’ failures are left unaddressed, Nancy is likely
to be harmed in the future when another natural disaster or
emergency strikes New Jersey.
(ECF No. 47 at ¶¶ 59-62.) It is likely the County of Somerset will experience another natural
disaster or emergency, however major or minor, at some point in the future. See Brooklyn Ctr. for
Indep. of the Disabled v. Bloomberg, 290 F.R.D. 409, 415 (S.D.N.Y. 2012) (“It is, of course, not
possible to know with certainty if or when disaster will strike the City, but — as the tragic events
of the past few weeks make abundantly clear — it is beyond ‘mere conjecture’ that another
disaster, whether natural or manmade, will occur . . . .”). However, Plaintiff has failed show that
when such a disaster strikes, Nancy Smith faces a real and immediate threat of discrimination in

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Defendants’ future provision of emergency services to her, because she has not plead facts
indicating that the violations alleged in the FAC will likely be repeated.
First, Plaintiff does not assert, nor could she, that it is the official policy of Defendants to
discriminate against people with disabilities when providing emergency services. To the contrary,
according to the FAC, State Defendants have publicly acknowledged that individuals with
disabilities are disproportionately impacted by disasters, and have expressed intent to ensure that
everyone has sufficient access to emergency services, regardless of their disabilities. (ECF No. 47
at ¶¶ 19-22.) Instead, Plaintiff claims “[t]o date, Defendants have failed to implement an adequate
disaster relief program for disabled persons, such as Nancy.” (Id. at ¶ 60.) However, the Complaint
contains no facts indicating that Defendants have not revised their emergency procedures since the
Storm to sufficiently provide services to disabled individuals. To the contrary, the facts alleged
indicate that prior to and during the Storm, Defendants were actively attempting to improve access
to their emergency services for disabled individuals.
For example, according to the FAC, “Warren had utilized Stonecrest Church on five prior
occasions before the Storm” to provide emergency shelter for its residents, but “[o]n each such
occasion, Stonecrest Church could not accommodate disabled persons.” (Id. at ¶ 33.) However,
during the Storm, rather than attempt to again utilize Stonecrest Church to provide Nancy and
William Smith with shelter, Warren, Somerset, and the OEM attempted to administer emergency
aid to them at their home. (Id. at ¶¶ 33-47.) Indeed, Garafola even explained that Warren wanted
to provide William and Nancy Smith with alternative emergency services because Stonecrest
Church was not sufficiently accessible. (Id. at ¶¶ 33-34.) Such allegations indicate that Defendants
were actively seeking to accommodate Nancy and William Smith’s needs. Therefore, it appears

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unlikely that at the advent of the next emergency, Defendants will implement the same programs
that allegedly failed the Smiths so completely during the Storm.
Furthermore, under the facts alleged, the Storm appears to have been such a unique, largescale event that it overwhelmed Defendants’ normal emergency services infrastructure in a way
that may never reoccur. Thus, Plaintiff has not demonstrated, as she asserts, that “Nancy is highly
likely, if not absolutely certain, to suffer discrimination any time any emergency or disaster strikes
[her] geographic area.” (ECF No. 67 at 25.)
In sum, although it appears likely that at some point in the future the County of Somerset
may experience another natural disaster or emergency, Plaintiff has not sufficiently alleged that
when that disaster strikes Defendants are likely to again fail to provide her with sufficient access
to emergency services. Accordingly, Nancy Smith’s claims for prospective injunctive relief are
dismissed without prejudice and the Estate’s claims for prospective injunctive relief are dismissed
with prejudice.
B. Eleventh Amendment Immunity
Plaintiff brings claims against State Defendants under the ADA, the Rehabilitation Act,
and the FHA. State Defendants move to dismiss the ADA and FHA claims against them, arguing
that they are barred by Eleventh Amendment sovereign immunity. 3 Plaintiff concedes that the
Eleventh Amendment bars FHA claims against State Defendants, with the exception of claims for

3

State Defendants do not move to dismiss Plaintiff’s Rehabilitation Act claims on the basis of
sovereign immunity, because they concede New Jersey has waived its immunity from such claims
by accepting federal funds. (Br. in Supp. of Defs.’ Mot. to Dismiss (ECF No. 75) at 2 n.1); see
also Koslow v. Pennsylvania, 302 F.3d 161, 170 (3d Cir. 2002) (“[B]y accepting federal funds
under the Rehabilitation Act, [states] waive their Eleventh Amendment immunity to Rehabilitation
Act claims.”). Nonetheless, as discussed infra, State Defendants assert that the Rehabilitation Act
claims against them should also be dismissed, because Plaintiff has failed to state a claim upon
which relief may be granted.

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prospective injunctive relief against Fuentes and Christie. 4 (ECF No. 67 at 2 n.2.) However, due
to lack of standing, the Estate’s claims for prospective injunctive relief are dismissed with
prejudice and Nancy Smith’s claims for prospective injunctive relief are dismissed without
prejudice. Therefore, Nancy Smith’s FHA claims against Christie and Fuentes are dismissed
without prejudice insofar as they seek prospective injunctive relief, and all her remaining FHA
claims against State Defendants are dismissed with prejudice. The Estate’s FHA claims against
State Defendants are dismissed with prejudice in their entirety.
Regarding the ADA claims against State Defendants, Plaintiff asserts, under the doctrine
of constitutional avoidance, that the Court should decline to reach the question of whether such
claims are barred by State Defendants’ Eleventh Amendment sovereign immunity. According to
Plaintiff, because State Defendants concede that they have waived their rights to sovereign
immunity under the Rehabilitation Act, a statute that provides coextensive rights and remedies
with the ADA, the Court need not determine whether Plaintiff’s ADA claims are barred by
sovereign immunity until the Rehabilitation Act claims are dismissed. State Defendants counter
that the Court should reach the question of whether they have immunity from Plaintiff’s ADA
claims, because these claims are not coextensive with Plaintiff’s Rehabilitation Act claims.
Plaintiff further asserts that in the event the Court reaches the question of whether the ADA claims
are barred by Eleventh Amendment immunity, the Court should find that the ADA abrogates State
Defendants’ sovereign immunity with regard to Plaintiff’s claims. For the reasons set forth below,
the Court finds that Plaintiff has stated a claim against State Defendants under both the

4

Where claims against a non-consenting state are barred by the Eleventh Amendment, a party can
sue a state official under Ex parte Young, 209 U.S. 123 (1908) for prospective injunctive relief
from ongoing violations of a federal law or the Constitution. Koslow, 302 F.3d at 179.

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Rehabilitation Act and the ADA, and reserves decision on the question of whether sovereign
immunity bars Plaintiff’s ADA claims against State Defendants.
“That a State may not be sued without its consent is a fundamental rule of jurisprudence.”
Pennhurst, 465 U.S. at 98, (1984) (quoting Ex parte State of New York, 256 U.S. 490, 497 (1921)).
This protection is afforded by the Eleventh Amendment, which provides that “[t]he judicial power
of the United States shall not be construed to extend to any suit in law or equity, commenced or
prosecuted against one of the United States by citizens of another state, or by citizens or subjects
of any foreign state.” U.S. Const. amend. XI. States and state agencies are immune from suits in
federal court brought by their own citizens, or citizens of other states, regardless of the relief
sought. Pennhurst, 465 U.S. at 100-01; see also Thorpe v. New Jersey, 246 F. App’x 86, 87 (3d
Cir. 2007) (“The Eleventh Amendment of the U.S. Constitution protects a state or state agency
from a suit brought in federal court by one of its own citizens regardless of the relief sought . . .
.”). New Jersey, as “one of the United States,” enjoys the benefits of Eleventh Amendment
sovereign immunity.
The Eleventh Amendment also provides sovereign immunity to agencies, departments, and
officials of the state when the state is the real party in interest in the suit. Alabama v. Pugh, 438
U.S. 781, 781 (1978); Pa. Fedn. of Sportsmen’s Clubs, Inc. v. Hess, 297 F.3d 310, 323 (3d. Cir.
2002); Chisolm v. McManimon, 275 F.3d 315, 323 (3d Cir. 2001). The state is a real party in
interest when “the judgment sought would expend itself on the public treasury or domain, or
interfere with the public administration, or if the effect of the judgment would be to restrain the
Government from acting or to compel it to act.” Fitchik v. New Jersey Transit Rail Operations,
Inc., 873 F.2d 655, 659 (3d. Cir. 1989). “In short, sovereign immunity is appropriate if the named
defendant is an arm of the state.” Love v. N.J. State Police, Civ. No. 14-1313 (FLW)(TJB), 2016

16

U.S. Dist. LEXIS 69562, at *24-25 (D.N.J. May 26, 2016) (quotations omitted); see also Chisolm,
275 F. 3d at 323. State officials in their official capacities are also immune from suit, “because it
is merely another way of pleading an action against the state.” Shahin v. Delaware, 563 F. App’x
196, 198 (3d Cir. 2014); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71 (1989).
The parties do not dispute, nor could they, that the OEM, Christie, in his official capacity as the
Governor of the State of New Jersey, and Fuentes, in his official capacity as the New Jersey
Director of Emergency Management, all qualify as “arms of the state” for the purposes of
sovereign immunity. 5
There are only three narrowly circumscribed exceptions that have been established to limit
the breadth of the Eleventh Amendment: “1) congressional abrogation, 2) state waiver, and 3) suits
against individual state officers for prospective relief to end an ongoing violation of federal law.”
MCI Telecomm. Corp. v. Bell Atlantic-Pennsylvania, 271 F.3d 491, 503 (3d Cir. 2001). At issue
here is whether the ADA validly abrogates State Defendants’ sovereign immunity from Plaintiff’s
claims.
“In order for Congress to validly abrogate state sovereign immunity, Congress must: (1)
unequivocally express its intent to abrogate that immunity; and (2) act pursuant to a valid grant of
constitutional authority.” Bowers v. NCAA, 475 F.3d 524, 550 (3d Cir. 2007). Here, the first prong
of this test is satisfied by language in the ADA which expressly dictates that “[a] State shall not be

5

The OEM is controlled by the New Jersey State Police, which has been found by courts in this
district to be an “arm of the state” for the purposes of Eleventh Amendment immunity. See New
Jersey Governor Brendan Byrne’s Executive Order No. 101 (December 17, 1980) (“[T]here is
hereby established an Office of Emergency Management in the Division of State Police,
Department of Law and Public Safety.”); Lassoff v. New Jersey, 414 F. Supp. 2d 483, 489 (D.N.J.
2006) (finding the New Jersey State Police entitled to Eleventh Amendment immunity as an arm
of the state); Simmerman v. Corino, 804 F. Supp. 644, 650 (D.N.J. 1992) (same); Canales v. Twp.
of Toms River, Civ. No. 11-3159 (MLC), 2014 U.S. Dist. LEXIS 21086, at *42 (D.N.J. Feb. 20,
2014) (same).

17

immune under the eleventh amendment to the Constitution of the United States from an action in
[a] Federal or State court of competent jurisdiction for a violation of this Act.” 42 U.S.C. § 12202;
see Bowers, 475 F.3d at 550. Regarding the second prong of this test, “[i]n enacting the ADA
Congress ‘invoke[d] the sweep of congressional authority, including the power to enforce the
fourteenth amendment.’” United States v. Georgia, 546 U.S. 151, 154 (2006) (quoting 42 U.S.C.
§ 12101(b)(4)). Under § 5 of the Fourteenth Amendment, Congress has broad powers to abrogate
states’ sovereign immunity for the purpose of enforcing the substantive guarantees of that
Amendment. Bowers, 475 F.3d at 550-51. Among these broad powers is the right to “‘enforce . . .
the provisions’ of the [Fourteenth] Amendment by creating private remedies against the States for
actual violations of those provisions.” Georgia, 546 U.S. at 158.
However, congressional power to enforce the Fourteenth Amendment is limited in that it
must exhibit “a congruence and proportionality between the injury to be prevented or remedied
and the means adopted to that end.” Bowers, 475 F.3d at 551 (quoting Tennessee v. Lane, 541 U.S.
509, 520 (2004)). Essentially, Congress does not have the power to “decree the substance of the
Fourteenth Amendment’s restrictions on States.” City of Boerne v. Flores, 521 U.S. 507, 519
(1997). As the Supreme Court has explained:
Legislation which alters the meaning of the Free Exercise Clause
cannot be said to be enforcing the Clause. Congress does not enforce
a constitutional right by changing what the right is. It has been given
the power “to enforce,” not the power to determine what constitutes
a constitutional violation. Were it not so, what Congress would be
enforcing would no longer be, in any meaningful sense, the
“provisions of [the Fourteenth Amendment].”
Id. (brackets in original). Therefore, the ADA only validly abrogates state sovereign immunity,
“insofar as [it] creates a private cause of action for damages against the States for conduct that
actually violates the Fourteenth Amendment.” Georgia, 546 U.S. at 159 (emphasis in original).

18

Whether the ADA validly abrogates a defendant’s Eleventh Amendment immunity must
be determined on a “claim-by-claim basis.” Id. This inquiry requires district courts to analyze
(1) which aspects of the State’s alleged conduct violated Title II; (2)
to what extent such misconduct also violated the Fourteenth
Amendment; and (3) insofar as such misconduct violated Title II [of
the ADA] but did not violate the Fourteenth Amendment, whether
Congress’s purported abrogation of sovereign immunity as to that
class of conduct is nevertheless valid.
Id. District courts “do not reach the constitutional issue[, however,] unless and until it is decided
that the plaintiff has made out a valid Title II claim.” Baxter v. Pa. Dep’t of Corr., Civ. No. 161838, 2016 U.S. App. LEXIS 17705, at *6 (3d Cir. Sep. 30, 2016).
i.

Violation of the ADA

First, the Court determines which aspects of State Defendants’ alleged conduct violated the
ADA. Under Title II of the ADA, “[n]o 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 subjected to discrimination by any such entity.” 42
U.S.C. § 12132. A “qualified individual with a disability” is defined as:
an individual with a disability who, with or without reasonable
modification to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.
42 U.S.C. § 12131(2). Thus,
[t]o establish a violation of Title II of the ADA, a plaintiff must
allege that: (1) he is a qualified individual with a disability; (2) he
was either excluded from participation in or denied the benefits of
some public entity’s services, programs, or activities; and (3) such
exclusion, denial of benefits, or discrimination was by reason of his
disability.
Muhammad v. Court of Common Pleas, 483 F. App’x 759, 762 (3d Cir. 2012).

19

According to the FAC, William Smith was a disabled individual within the meaning of the
ADA, because he suffered from dementia and Alzheimer’s disease. (ECF No. 47 at ¶ 3.) Nancy
Smith is disabled within the meaning of the ADA, because she suffers Parkinson’s disease and is
confined to a wheelchair. (Id. at ¶¶ 2, 57.) Plaintiff alleges, generally, that “Defendants provide an
aid, benefit, or service in the form of an emergency preparedness program.” (Id. at ¶ 72.)
According to the Complaint, Defendants provided their emergency preparedness program “in an
unequal manner that denied or limited Nancy and William’s ability to enjoy the benefits as nondisabled persons could.” (Id.) Specifically, Plaintiff alleges that the Stonecrest Church shelter in
Warren was open to the general public, but was “not equipped to accommodate William and Nancy
due to their disabilities.” (Id. at ¶ 33.) Similarly, the Bernard’s High School shelter in Bernardsville
was open to the general public, but was unable to accommodate Nancy Smith’s wheelchair. (Id. at
¶ 57.) Plaintiff asserts that State Defendants were responsible for the administration of these two
shelters, because “[t]he OEM, on behalf of Governor Christie, coordinates, directs, and controls
all emergency management activities throughout the State.” (Id. at ¶ 8.) Taking the facts pled as
true, State Defendants’ alleged conduct violated the ADA because (1) William and Nancy Smith
were individuals with disabilities who were qualified to receive benefits offered by State
Defendants, i.e. shelter at Stonecrest Church or Bernard’s High School, but (2) they were excluded
from use of these shelters, because (3) their disabilities rendered the shelters inaccessible to them.
ii.

Constitutional Avoidance

Because Plaintiff has successfully stated ADA claims against State Defendants, the Court
next turns to whether the doctrine of constitutional avoidance requires the Court to reserve its
decision as to whether the ADA validly abrogates State Defendants’ sovereign immunity from
these claims. “A fundamental and long-standing principle of judicial restraint requires that courts

20

avoid reaching constitutional questions in advance of the necessity of deciding them.” Lyng v. Nw.
Indian Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). Plaintiff argues that because State
Defendants have waived their sovereign immunity under the Rehabilitation Act and because “the
Rehabilitation Act and the ADA are virtually identical, and provide coextensive rights and
remedies,” it is not necessary, at this early stage of the litigation, to decide the abrogation issue.
(ECF No. 67 at 11.) Plaintiff therefore asserts judicial restraint militates reserving this decision
until the point at which the rights and remedies available under Plaintiff’s ADA claims are no
longer coextensive with those available under Plaintiff’s Rehabilitation Act claims.
“[T]he substantive standards for determining liability under the Rehabilitation Act and the
ADA are the same.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 275 (3d Cir. 2014) (citing
Ridley Sch. Dist. v. M.R., 680 F.3d 260, 283 (3d Cir. 2012)). Indeed, the ADA expressly
incorporates the standards of the Rehabilitation Act, stating that “[t]he remedies, procedures, and
rights set forth in section 505 of the Rehabilitation Act . . . shall be the remedies, procedures, and
rights” provided to any person alleging discrimination on the basis of disability under Title II of
the ADA. 42 U.S.C. § 12133; see also Blunt, 767 F.3d at 316. The only material difference between
a claim under Title II of the ADA and a claim under § 504 of the Rehabilitation Act is the causation
element. 6 New Directions Treatment Servs. v. City of Reading, 490 F.3d 293, 300 n.4 (3d Cir.
2007) (“[D]espite the fact that Congress has directed the courts to construe the ADA and the
Rehabilitation Act such that conflicting standards do not arise, the ADA and the Rehabilitation
Act are not exactly the same. The language of these two statutory provisions regarding the

6

A claim under § 504 of the Rehabilitation Act also requires a showing “that the program or
activity in question receives federal financial assistance.” Wagner v. Fair Acres Geriatric Ctr., 49
F.3d 1002, 1009 (3d Cir. 1995). However, this element is not at issue here, because State
Defendants concede that they “receive federal funding in relation to emergency responses.” (ECF
No. 75 at 2 n.1.)

21

causative link between discrimination and adverse action is significantly dissimilar.”) (marks and
citations omitted). Under the Rehabilitation Act, to bring a claim, a qualified individual must have
been excluded from or denied benefits solely by reason of her disability. 29 U.S.C. § 794(a); Id.
By contrast, under the ADA, discrimination need not be the sole reason for the exclusion or denial
of benefits; the statute “requires only but for causation.” New Directions, 490 F.3d at 300 n.4.
State Defendants argue that Plaintiff has failed to plead the causation element of a
Rehabilitation Act claim. If State Defendants are correct, Plaintiff’s constitutional avoidance
argument would be rendered moot, because Plaintiff’s Rehabilitation Act claims must be dismissed
and thus cannot provide the same remedies Plaintiff seeks through her ADA claims. However,
State Defendants misapply the Rehabilitation Act’s causation standard. State Defendants assert
that Plaintiff has not met the causation requirements of the Rehabilitation Act because “the
Amended Complaint is completely devoid of any factual allegations that the State Defendants
denied any benefits to Plaintiffs due to discrimination based solely on their disabilities.” (ECF No.
57-1 at 23.) According to State Defendants, “there is virtually an endless amount of factors and
considerations that public officials need to account for during an emergency, and none of
Plaintiffs’ allegations tend to show that any State Defendant or State employee was motivated
‘solely’ by the disabilities of Plaintiffs rather than any other possible motivation.” (Id. at 25-26.)
However, a plaintiff bringing a Rehabilitation Act claim need not allege that her disability
was the sole motivation for the policy or action that ultimately excluded her from receiving
benefits. Indeed, discriminatory motive is not a necessary element of a Rehabilitation Act claim.7

7

Separate from the elements of a Rehabilitation Act or ADA claim, the Third Circuit has found
that to pursue compensatory damages under these statutes, a plaintiff must show intentional
discrimination. S.H. v. Lower Merion Sch. Dist., 729 F.3d 248, 261 (3d Cir. 2013). However, even
this heightened standard does not require a showing that the defendant’s sole intent was to

22

Nathanson v. Med. Coll. of Pa., 926 F.2d 1368, 1384 (3d Cir. 1991) (finding that a plaintiff need
not establish that there has been an intent to discriminate in order to prevail under § 504). Even a
facially neutral policy may violate the Rehabilitation Act, if the agency instituting that policy fails
to make a “reasonable accommodation to the ‘known physical or mental limitations’ of otherwise
qualified individuals.” Id. Therefore, contrary to State Defendants’ assertions, Plaintiff need not
allege that Nancy and William Smith’s exclusion from full use of the Stonecrest Church shelter
and Bernard’s High School shelter was a result of conduct by State Defendants that was solely
motivated by discriminatory animus towards Nancy and William Smith’s disabilities. Rather,
Plaintiff may satisfy the causation element of the Rehabilitation Act by alleging that William and
Mary Smith were excluded from full use of these shelters because they were unable to access
and/or utilize them solely due to their respective disabilities. For these reasons, the Court finds that
Plaintiff has successfully plead claims under both the ADA and the Rehabilitation Act against
State Defendants on behalf of both Nancy Smith and the Estate.
Furthermore, to the extent that State Defendants argue that possible facts in this case “could
theoretically give rise to liability under the ADA but not the Rehabilitation Act” (ECF No. 75 at
3), this argument is premature. On a motion to dismiss, courts do not consider “potential” or
“theoretical” facts proposed by the defendant. See In re Burlington Coat Factory Sec. Litig., 114

discriminate against the plaintiff on the basis of her disability. Indeed, a showing of deliberate
indifference to the plaintiff’s disability is sufficient to satisfy this standard. Id. at 264.
As the Supreme Court has explained, when Congress enacted the Rehabilitation Act and
the ADA, “[d]iscrimination against the handicapped was perceived by Congress to be most often
the product, not of invidious animus, but rather of thoughtlessness and indifference — of benign
neglect.” Alexander v. Choate, 469 U.S. 287, 295 (1985). “Consistent with these motivations, the
[Rehabilitation Act] and the ADA are targeted to address more subtle forms of discrimination than
merely obviously exclusionary conduct.” S.H., 729 F.3d at 264 (quotations omitted).
Consequently, for the purposes of a Rehabilitation Act claim or ADA claim, “deliberate
indifference is a form of intentional discrimination.” Blunt, 767 F.3d at 316 (emphasis in original).

23

F.3d 1410, 1426 (3d Cir. 1997) (“As a general matter, a district court ruling on a motion to dismiss
may not consider matters extraneous to the pleadings.”). Instead, with few exceptions, courts’
analyses are limited to the facts alleged in the complaint. Id. On these Motions to Dismiss, this
Court considers only the allegations in the FAC and finds Plaintiff has sufficiently alleged both
ADA and Rehabilitation Act claims against State Defendants. State Defendants’ Motion to
Dismiss is therefore denied insofar as it seeks to dismiss Plaintiff’s Rehabilitation Act claims for
failure to state a claim.
Accordingly, because Plaintiff’s rights and remedies under both the ADA claims and the
Rehabilitation Act claims are currently coextensive, the Court finds that the doctrine of
constitutional avoidance militates reserving a decision on whether Congress has validly abrogated
State Defendants’ sovereign immunity to Plaintiff’s ADA claims. See Bennett-Nelson v. Louisiana
Bd. of Regents, 431 F.3d 448, 455 (5th Cir. 2005) (“[H]aving already held that sovereign immunity
does not bar the appellants’ claim under § 504, we need not address at this juncture the issue of
abrogation under Title II of the ADA, because the rights and remedies under either are the same
for purposes of this case.”). In that regard, the Court is persuaded that the discovery process for
the pending ADA claims will be virtually identical to the discovery process for the pending
Rehabilitation claims. Furthermore, discovery may yet reveal some deficiency in Plaintiff’s ADA
claims that will require the dismissal of these claims without necessitating a decision of the
constitutional question. The Court therefore reserves judgment on this issue until it is “squarely
presented” to the Court. See Bowers, 475 F.3d at 550 (finding ADA abrogation question “squarely
presented” to court on motion for summary judgment). State Defendants’ Motion to Dismiss
Plaintiff’s ADA claims on Eleventh Amendment immunity grounds is denied without prejudice.
C. Statutes of Limitations

24

Both Warren and Somerset argue that Plaintiff’s claims against them should be dismissed
as time-barred under the applicable statute of limitations. Typically, “the Federal Rules of Civil
Procedure require a defendant to plead an affirmative defense, like a statute of limitations defense,
in the answer, not in a motion to dismiss.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
However, in this circuit, a defendant may succeed on a motion to dismiss on the basis of statute of
limitations, “if the time alleged in the statement of a claim shows that the cause of action has not
been brought within the statute of limitations.” Id. (quoting Robinson v. Johnson, 313 F.3d 128,
134-35 (3d Cir. 2002)) (quotations omitted).
The parties agree that the relevant statutes of limitations as to all of Plaintiff’s claims is
two years. Claims under the FHA are governed by a two-year statute of limitations. 42 U.S.C.
§ 3613. The ADA, the Rehabilitation Act, and § 1983 do not contain their own statutes of
limitations, meaning courts must apply the most appropriate or analogous state statute of
limitations. See Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010) (“state law provides
the statute of limitations applicable to a section 1983 claim”); Disabled in Action v. SEPTA, 539
F.3d 199, 208 (3d Cir. 2008) (“Neither Title II of the ADA nor Section 504 of the [Rehabilitation
Act] includes an express statute of limitations. As both statutes were enacted prior to the effective
date of the default four-year statute of limitations for federal statutes, see 28 U.S.C. § 1658, we
borrow the statute of limitations of the most analogous state law cause of action.”). Claims under
these statutes are governed by the forum state statute of limitations for personal injury claims. See
Dique, 603 F.3d at 185 (“A section 1983 claim is characterized as a personal-injury claim and thus
is governed by the applicable state’s statute of limitations for personal-injury claims.”); Disabled
in Action, 539 F.3d at 208 (applying forum state statute of limitations for personal injury claims to
Title II of the ADA and § 504 Rehabilitation Act claims). In New Jersey, personal injury claims

25

are subject to a two-year statute of limitations. N.J.S.A. 2A:14-2(a). Similarly, claims under the
NJLAD are also subject to a two-year statute of limitations. Alexander v. Seton Hall Univ., 204
N.J. 219, 228 (2010). Therefore, because Plaintiff brought her Complaint on November 10, 2014,
if any of her claims accrued prior to November 10, 2012, they will be barred by the applicable
statutes of limitations.
i.

Date of Accrual

Federal law governs a federal cause of action’s accrual date. Kach v. Hose, 589 F.3d 626,
634 (3d Cir. 2009). Additionally, “[t]he New Jersey Supreme Court has adopted the federal
framework for determining when an NJLAD claim accrues.” Serrano v. Marcal Paper Mills, LLC,
Civ. No. 11-03501 (SDW), 2012 U.S. Dist. LEXIS 10742, at *11 (D.N.J. Jan. 30, 2012) (citing
Roa v. Roa, 200 N.J. 555, 568 (2010)). Under federal law, a claim accrues when the facts which
support the claim reasonably should have become known to the plaintiff. Sameric Corp. v. City of
Phila., 142 F.3d 582, 599 (3d Cir. 1998); Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 507 (3d
Cir. 2006) (quoting Mathews v. Kidder Peabody & Co., 260 F.3d 239, 252 (3d Cir. 2001)); see
also Large v. County of Montgomery, 307 F. App’x 606, 606 (3d Cir. 2009). “The determination
of the time at which a claim accrues is an objective inquiry; [courts] ask not what the plaintiff
actually knew but what a reasonable person should have known.” Kach, 589 F.3d at 634.
Importantly, accrual is not tied to whether the potential claimant knew or should have known that
the injury constitutes a legal wrong. Giles v. City of Philadelphia, 542 F. App’x 121, 123 (3d Cir.
2013) (citing Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir.1982)). Rather, “a cause of action
accrues when the fact of injury and its connection to the defendant would be recognized by a
reasonable person.” Kriss v. Fayette County, 827 F. Supp. 2d 477, 484 (W.D. Pa. 2011) aff’d, 504
F. App’x 182 (3d Cir. 2012). Accordingly, “[a]s a general matter, a cause of action accrues at the

26

time of the last event necessary to complete the tort, usually at the time the plaintiff suffers an
injury.” 8 Kach, 589 F.3d at 634.
Here, under the facts alleged, almost all of Plaintiff’s claims accrued more than two years
before Plaintiff filed the Complaint. The Storm made landfall in New Jersey on October 29, 2012.
(ECF No. 47 at ¶ 39.) According to the FAC, on October 29, 2012, and again on October 30, 2012,
Warren delivered generators to the Smith’s home that failed almost immediately after delivery.
(Id. at ¶¶ 40-46.) Plaintiff alleges that the resulting “bitter cold” almost immediately caused Nancy
and William Smith’s conditions to deteriorate significantly. (Id. at ¶¶ 46-47.) As such, under the
facts alleged, once Nancy and William Smith began to suffer the effects of the cold, they should
have reasonably recognized the fact of their injury and its connection to Defendants. To that point,
according to the FAC, Deborah Smith spent the period between October 29, 2012 and October 31,
2012 “urgently requesting help from the local authorities” on behalf of Nancy and William Smith.
(Id. at ¶ 48.) Therefore, any claims arising from Defendants’ alleged failure to provide Nancy and
William Smith with adequate shelter during the storm accrued on October 29, 2012 or October 30,
2012, because on those dates Defendants’ alleged failure to provide Nancy and William Smith
with adequate shelter first caused them injury. Accordingly, claims arising from such allegations
fall outside the statute of limitations.

8

Plaintiff argues that because her claims arise from Defendants’ failure to properly ensure
individuals with disabilities were provided equal access to emergency services during the Storm,
her claims did not accrue until November 14, 2012, the last date the Bernard’s High School shelter
remained open to the general public. However, Defendants’ continued provision of services to the
public at large did not bar Plaintiff from bringing the claims she asserts in this action. In that regard,
Nancy or William could have brought any of their claims the moment they suffered an injury. As
such, Nancy and William’s claims accrued “when the fact of [their] injury and its connection to
the defendant would be recognized by a reasonable person.” See Kriss, 827 F. Supp. 2d at 484.

27

On October 31, 2012, William Smith was involuntarily committed to a hospital by a social
worker employed by Somerset. (Id. at ¶¶ 48-50.) Since the injury from his involuntary committal
was inherently obvious and occurred immediately upon being taken into custody, any claims
arising from his involuntary committal, accrued on October 31, 2012 and are outside the statute of
limitations.
From October 31, 2012 through November 10, 2012, William Smith was allegedly kept in
“substandard conditions” while in the custody of the State. (Id. at ¶¶ 50-53.) The FAC does not
specify exactly how or when William Smith was injured by these conditions. Therefore, it is
unclear from these allegations when William Smith, or Plaintiff as the executor of the Estate after
William Smith’s death, reasonably should have known of his injuries and their connection to
Defendants. Accordingly, because it is not clear on the face of the FAC when the Estate’s claims
related to William Smith’s alleged mistreatment while in State custody accrued, such claims
cannot be dismissed as time-barred on this Motion to Dismiss.
Finally, Plaintiff alleges that on November 4, 2012, at the direction of an officer from
Warren’s Office of Emergency Management, Nancy and Deborah Smith relocated to the Bernard’s
High School shelter. (Id. at ¶¶ 54-56.) According to Plaintiff, the shelter did not adequately
accommodate the needs of individuals with disabilities.9 (Id. at ¶ 57.) It is not clear how long
Plaintiff remained at the Bernard’s High School shelter, however, the FAC alleges that the shelter
was open to the public until November 14, 2012. (Id. at ¶ 58.) Furthermore, it is not clear on the
face of the FAC when, during the course of her stay at the Bernard’s High School shelter, Nancy

9

Warren asserts that it was not responsible for the Bernard’s High School shelter and therefore
cannot be liable for any of its shortcomings. However, Plaintiff alleges that it was an officer of
Warren’s Office of Emergency Management that directed her to the shelter. Accordingly, taking
all allegations as true, the Court cannot conclude on this Motion to Dismiss that Warren was not
an entity responsible for the administration of the Bernard’s High School shelter.

28

Smith should have become reasonably aware of her injuries due to the alleged short-comings of
the shelter. Some of the alleged problems with the shelter would have been immediately apparent
on arrival. For example, according to the FAC,
Nancy and other disabled persons were housed upstairs, while
nondisabled individuals were kept downstairs. The elevator was not
functioning, and the high school was not equipped with appropriate
ramps. As a result, disabled individuals faced difficulty making it
upstairs, and when they finally did make it upstairs, they were
effectively trapped on the second floor.
(Id. at ¶¶ 57(A)-(B).) However, other of the shelter’s alleged defects may not have been reasonably
discovered by Nancy Smith until after November 10, 2012. For example, at some point during
Nancy Smith’s stay “the women’s bathroom on the second floor broke down, the female disabled
persons were compelled to use the men’s room on the second floor.” (Id. at ¶ 57(C).) Additionally,
it is not clear on the face of the FAC when Nancy Smith should have reasonably discovered that
unlike the downstairs bathroom, the upstairs bathroom used by the residents with disabilities “did
not have a shower” and “did not [provide] access to hot water.” (Id. at ¶¶ 57(E)-(G).) As such,
under the facts alleged, Nancy Smith’s claims arising from the inadequate accommodations at the
Bernard’s High School may have accrued after November 10, 2012. Consequently, these claims
cannot be dismissed as time-barred on this Motion to Dismiss.
In sum, the Estate’s claims arising from Defendants’ alleged failure to provide William
Smith with adequate access to emergency services while he sheltered at his home, between October
29, 2012 and October 31, 2012, clearly accrued outside the applicable statues of limitations.
Likewise, under the facts alleged, the Estate’s claims related to William Smith’s involuntary
commitment on October 31, 2012 is clearly time-barred. However, it is not apparent from the face
of the FAC when the Estate’s claims arising from the alleged mistreatment of William Smith while
in State custody accrued. Similarly, Nancy Smith’s claims arising from Defendants’ alleged failure

29

to provide her with adequate access to emergency services while she sheltered at her home,
between October 29, 2012 and November 4, 2012, clearly accrued outside the statute of
limitations. However, under the facts pled, Nancy Smith’s claims arising from the alleged failure
of the Bernard’s High School shelter to adequately accommodate residents with disabilities may
have accrued within the applicable statutes of limitations.
Plaintiff argues that her claims seeking relief for violations occurring before November 10,
2014 are timely, nonetheless, based on the continuing violations doctrine. “The continuing
violations doctrine is most often applied in employment discrimination cases and is an ‘equitable
exception to the timely filing requirement.’” Bennett v. Susquehanna Cty. Children & Youth Servs.,
592 F. App’x 81, 84 (3d Cir. 2014) (quoting Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.
2001)). “The continuing violations doctrine is an equitable exception to a strict application of a
statute of limitations where the conduct complained of consists of a pattern that has only become
cognizable as illegal over time.” Foster v. Morris, 208 F. App’x 174, 177 (3d Cir. 2006) (Cowell,
263 F.3d at 292). “When a defendant’s conduct is part of a continuing practice, an action is timely
so long as the last act evidencing the continuing practice falls within the limitations period; in such
an instance, the court will grant relief for the earlier related acts that would otherwise be time
barred.” Foster, 208 F. App’x at 177-78 (quoting Brenner v. United Bhd. of Carpenters & Joiners,
927 F.2d 1283, 1295 (3d Cir.1991) (marks omitted). “Courts consider two factors in determining
whether to apply the continuing violations doctrine: (1) whether the violations were related in
subject matter and (2) whether the acts were recurring.” 10 Bennett, 592 F. App’x at 84 (citing
Cowell, 263 F.3d at 292 and Mandel v. M & Q Packaging Corp., 706 F.3d 157, 166 (3d Cir. 2013)).

10

The Court notes that Plaintiff cites to Cowell, 263 F.3d 286, which sets forth a three-factor
continuing violation test, with the third factor requiring a showing of permanency. “However,

30

However, the Third Circuit has cautioned “the continuing violations doctrine is not a
substitute for a plaintiff’s ‘awareness of and duty to assert his/her rights’ in a timely fashion.”
Bennett, 592 F. App’x at 85 (quoting Cowell, 263 F.3d at 295). As such, “the doctrine ‘does not
apply when plaintiffs are aware of the injury at the time it occurred.’” Bennett, 592 F. App’x at 85
(quoting Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417
n.6 (3d Cir. 2003)); see also Muhammad, 483 F. App’x at 762 (“The District Court correctly
reasoned that . . . the continuing violations doctrine did not apply because [the plaintiff] should
have been aware of each act’s negative impact at the time it occurred.”); Zied v. Barnhart, 418 F.
App’x 109, 114 (3d Cir. 2011) (“[A]s explained by the District Court, the continuing violations
doctrine for extending a statute of limitation does not apply to injuries that occurred before the
filing period if the plaintiff was aware, as Zied was, of those injuries at the time they occurred.”).
Here, the continuing violation doctrine does not apply to Plaintiff’s time-barred claims, because
under the facts alleged, Nancy and William Smith should have been aware of the negative impact
of each of these alleged violations at the time they occurred. 11 Therefore, on the face of the FAC,
claims arising from the following alleged violations accrued outside the applicable statutes of
limitations: (1) failure to provide William Smith with adequate access to emergency services while
he sheltered at his home; (2) failure to provide Nancy Smith with adequate access to emergency
services while she sheltered at her home; and (3) William Smith’s involuntary commitment. It is

under Mandel v. M & Q Packaging Corp., 706 F.3d 157, 166 (3d Cir. 2013), there is no longer a
permanency requirement under the continuing violations doctrine.” Bennett, 592 F. App’x at 84
n.3.
11

It remains a question of fact as to when Plaintiff’s remaining claims accrued and whether Nancy
or William should have been aware of the negative impact of each of these alleged violations at
the time they occurred. Therefore, the Court makes no finding as to whether the continuing
violations doctrine applies to the Estate’s claims arising from William’s alleged mistreatment
while in the custody of the State, or Nancy’s claims arising from the alleged shortcomings of the
Bernard’s High School shelter.

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unclear, based on the pleadings, whether the remaining claims are timely. As such, taking the
allegations in the light most favorable to Plaintiff, the Motions to Dismiss these claims as timebarred are denied.
ii.

Equitable Tolling

Once a defendant has successfully raised a statute of limitations defense to a claim,
generally, it is the plaintiff’s burden to show that the statute of limitations should be equitably
tolled. Schmidt, 770 F.3d at 251; see also Credit Suisse Sec. (USA) LLC v. Simmonds, 132 S. Ct.
1414, 1419 (2012). “At the motion to dismiss stage, a plaintiff who seeks to invoke equitable
tolling need only ‘plead the applicability of the doctrine.’” 12 Perelman v. Perelman, 545 F. App’x
142, 151 (3d Cir. 2013) (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380,
1391 (3d Cir. 1994)). Here, Plaintiff argues that the Estate’s time-barred claims should be equitably
tolled until November 10, 2012, the date of William Smith’s death, because his mental disability
prevented him from understanding his legal rights and commencing a legal action.
Federal tolling principals apply to federal statutes of limitation, while state tolling
principals apply to state statutes of limitation, unless such state tolling principals are inconsistent
with federal law. See Knopick v. Connelly, 639 F.3d 600, 606 (3d Cir. 2011) (applying state tolling
principals); Santos v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (applying federal tolling

12

The Court notes “the discovery rule, which governs a claim’s accrual date for statute of
limitations purposes, is distinct from equitable tolling, which applies where circumstances unfairly
prevent a plaintiff from asserting her claim. Santos, 559 F.3d at 199. In that regard, on a motion to
dismiss, unlike equitable tolling, a plaintiff does not have the burden of pleading facts indicating
the applicability of the discovery rule. Schmidt, 770 F.3d at 251. According to the Third Circuit, a
court “may not allocate the burden of invoking the discovery rule in a way that is inconsistent with
the rule that a plaintiff is not required to plead, in a complaint, facts sufficient to overcome an
affirmative defense.” Id. (citations omitted). Thus, “in the context of the discovery rule[,] when
the pleading does not reveal when the limitations period began to run[,] the statute of limitations
cannot justify Rule 12 dismissal.” Id. (marks omitted).

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principals); Nicolas v. Ocean Plaza Condo. Ass’n, 73 F. App’x 537, 540 (3d Cir. 2003) (noting
that “federal tolling principles . . . apply to federal statutes of limitations”). Here, the Estate’s FHA
claim, as the only claim with a federal statute of limitations, is the only claim to which federal
tolling applies. The Estate’s ADA, Rehabilitation Act, § 1983, and NJLAD claims are governed
by New Jersey’s equitable tolling principals.
a. Federal Tolling Doctrine
“Federal courts may toll statutes of limitations for federal laws where the plaintiff in some
extraordinary way has been prevented from asserting his or her rights.” Frasier-Kane v. City of
Phila., 517 F. App’x 104, 106 (3d Cir. 2013) (quoting Lake v. Arnold, 232 F.3d 360, 370 (3d Cir.
2000)) (quotations omitted). “But the remedy of equitable tolling is extraordinary” and federal
courts “extend it only sparingly.” Frasier-Kane, 517 F. App’x at 106 (quoting Santos, 559 F.3d at
197) (marks omitted). The Third Circuit has held that “mental incompetence, even rising to the
level of insanity, does not toll a federal statute of limitations for claims.” Hedges v. United States,
404 F.3d 744, 753 (3d Cir. 2005); see also Lake, 232 F.3d at 371 (“Mental incompetence is not
per se a reason to toll the statute of limitations in federal actions.”). And the FHA itself “does not
provide a savings clause that would toll its statute of limitations for insanity.” Nicholas v. Ocean
Plaza Condo. Ass’n, Civ. No. 00-2589 (WHW), 2002 U.S. Dist. LEXIS 26755, at *14 (D.N.J. June
24, 2002). Consequently, William Smith’s alleged mental incompetence does not toll the statute
of limitations as to the Estate’s FHA claim.
b. New Jersey Tolling Doctrine
Under New Jersey law, statutes of limitations are tolled for any person with “a mental
disability that prevents the person from understanding his legal rights or commencing a legal action
at the time the cause of action or right or title accrues,” until such time as that person regains the

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mental capacity to pursue his rights. N.J.S.A. § 2A:14-21; see also Nicolas, 73 F. App’x at 541.
Here, Plaintiff alleges “[b]efore his death, William suffered from dementia and Alzheimer’s
Disease” and on October 31, 2016, William Smith was involuntary committed by Somerset and
the State because he supposedly “presented a danger to himself or others.” 13 (ECF No. 47 at ¶¶ 3,
48.) Taking these allegations as true, it is plausible that at the time the Estate’s claims accrued and
for the entirety of the intervening period before his death, William Smith’s mental disabilities
prevented him from understanding his legal rights or commencing a legal action. Under these facts,
William Smith’s claims would be tolled until November 10, 2012, the date William Smith passed
and Nancy Smith, who presumably had the mental capacity to understand the Estate’s rights and
commence a legal action, became the administrator of the Estate. Accordingly, it is appropriate on
this Motion to Dismiss to toll the statutes of limitations as to the Estate’s ADA, Rehabilitation Act,
§ 1983, and NJLAD claims until November 10, 2012.
For these reasons, only the following claims are dismissed with prejudice: (1) the Estate’s
FHA claim, insofar as it arises from Defendants’ alleged failure to provide William Smith with
adequate access to emergency services while he sheltered at his home and (2) all of Nancy Smith’s
claims, insofar as they arise from Defendants’ alleged failure to provide her with adequate access
to emergency services while she sheltered at her home.
D. Warren and Somerset’s Immunity under the New Jersey Tort Claims
Act (“TCA”)
Warren argues that “[t]o the extent that plaintiffs’ Brief suggests any causes of action based
on tort liability (as had been pleaded in the original Complaint), those claims are barred by

13

Although Plaintiff contends in the FAC that William’s involuntary commitment was improper,
she does not concede that, at the time, William had the necessary mental capacity to understand
his legal rights or commence a legal action.

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operation of the [TCA].”(Br. on Behalf of Def. Township of Warren in Supp. of Mot. to Dismiss
Compl. with Prejudice for Failure to State a Claim (ECF No. 56-1) at 9.) Somerset likewise asserts:
The claims against the [Somerset] should be dismissed because
Plaintiff cannot prove his [sic] theory of liability pursuant to [the
TCA]. Moreover, she has also failed to file the requisite Notice of
Tort Claim pursuant to N.J.S.A. 59:8-3 through 8, et seq. whereby a
plaintiff is required to file a Notice of Tort Claim within 90 days of
the accrual of the cause of action.
(Mem. of Law in Supp. of Def’s Mot. to Dismiss (ECF No. 55-1) at 2-3.) However, these
arguments are irrelevant, because “the TCA only immunizes public entities and employees from
liability for state law tort claims,” and the FAC does not include such claims. See Novellino v. N.J.
Dep’t of Corr. Mountainview Youth Corr. Facility, Civ. No. 10-4542 (AET), 2011 U.S. Dist.
LEXIS 85209, at *11 (D.N.J. July 28, 2011).
Of Plaintiff’s five causes of action against Warren and Somerset, four arise under federal
law: ADA claims (Count 1), Rehabilitation Act claims (Count 2), FHA claims (Count 3), and
§ 1983 claims (Count 4). The Supremacy Clause of the United States Constitution dictates that a
state statute, such as the TCA, cannot provide immunity from a claim under a federal statute. See
Islam v. City of Bridgeton, No. 08-1844, 2011 U.S. Dist. LEXIS 32411, 2011 WL 1205277, at *5
(D.N.J. Mar. 28, 2011) (“[B]ecause of the federal constitution’s Supremacy Clause, [the TCA]
does not apply to federal claims.”) (citing Tice v. Cramer, 133 N.J. 347, 375 (1993) (“[T]he [TCA]
provides no immunity from the federal claim.”)). The TCA is similarly inapplicable to Plaintiff’s
only state law cause of action, the NJLAD claims (Count 5). The notice provisions of the TCA do
not apply to claims asserted under the NJLAD. Velez v. City of Jersey City, 180 N.J. 284, 295
(2004) (citing Fuchilla v. Layman, 109 N.J. 319, 332-338 (1988)); see also Garlanger v. Verbeke,
223 F. Supp. 2d 596, 601 n.3 (D.N.J. 2002). Accordingly, Warren and Somerset’s Motions to
Dismiss are denied insofar as they seek to dismiss Plaintiff’s claims as barred by the TCA.

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IV.

CONCLUSION

For the reasons set forth above, the Motions to Dismiss (ECF Nos. 55, 56, & 57) are
GRANTED IN PART and DENIED IN PART. Nancy Smith’s claims for prospective injunctive
relief (Counts 1, 2, 3, & 5) are DISMISSED WITHOUT PREJUDICE. The Estate’s claims for
prospective injunctive relief (Counts 1, 2, 3, & 5) are DISMISSED WITH PREJUDICE. Both
Nancy Smith and the Estate’s FHA claims (Count 3) against State Defendants are DISMISSED
WITH PREJUDICE, except Nancy Smith’s claims against Christie and Fuentes are
DISMISSED WITHOUT PREJUDICE insofar as they seek prospective injunctive relief. The
Estate’s FHA claim (Count 3) against Warren and Somerset is DISMISSED WITH PREJUDICE
insofar as it arises from their alleged failure to provide William Smith with adequate access to
emergency services while he sheltered at his home. Nancy Smith’s claims (Counts 1, 2, 3, 4, & 5)
are DISMISSED WITH PREJUDICE insofar as they arise from Defendants’ alleged failure to
provide her with adequate access to emergency services while she sheltered at her home. State
Defendants’ Motion to Dismiss is DENIED WITHOUT PREJUDICE insofar as it seeks to
dismiss Plaintiff’s ADA claim (Count 1) as barred by Eleventh Amendment sovereign immunity,
and further DENIED WITH PREJUDICE insofar as it seeks to dismiss Plaintiff’s Rehabilitation
Act claims (Count 2) for failure to state a claim. Warren and Somerset’s Motions to Dismiss are
DENIED WITH PREJUDICE insofar as they seek to dismiss claims against these defendants as
barred by the TCA.

Date: December 22, 2016

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

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