Doe v. Zucker et al
Filing
51
DECISION AND ORDER denying # 20 Petitioner's Motion to Remand to State Court; and granting in part and denying in part # 27 Respondents' Motion to Dismiss, such that (1) Petitioner's claims regarding the OMH regulations are DISMISSED , (2) Petitioner's claims regarding the DOH regulation pursuant to the Americans with Disabilities Act (Count One), Rehabilitation Act (Count Two), and Fair Housing Act (Count Three) SURVIVE Respondents' motion to dismiss, (3) Petitioner 39;s claims pursuant to the New York State Human Rights Law (Count Four) and the First Amendment of the U.S. Constitution (Count Five) are DISMISSED, and (4) Petitioner's claim that the DOH regulation is arbitrary, capricious, and irrational (Co unt Six) SURVIVES Respondents' motion to dismiss. Respondents are directed to file an Answer to the Petition within FOURTEEN (14) DAYS of the date of this Decision and Order pursuant to Fed. R. Civ. P. Rule 12(a)(4)(a), and that this case is referred back to U.S. Magistrate Judge Christian F. Hummel for a Fed. R. Civ. P. 16 conference and the setting of pretrial scheduling deadlines. Signed by Chief Judge Glenn T. Suddaby on 7/20/18. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHN DOE, a fictitious name,
Petitioner,
v.
HOWARD ZUCKER, M.D., in his official
capacity as Commissioner of Health of the
State of New York; and ANNE MARIE T.
SULLIVAN, M.D., in her official capacity
as Commissioner of Mental Health of the
State of New York,
1:17-CV-1005
(GTS/CFH)
Respondents,
and
RUTH RIVERA; GEORGE IWCZENKO;
and ERIC SCOFF,
Intervenor-Respondents.
____________________________________________
APPEARANCES:
OF COUNSEL:
O’CONNELL & ARONOWITZ
Counsel for Petitioner
54 State Street, 9th Floor
Albany, New York 12207-2501
JEFFREY J. SHERRIN, ESQ.
CONSTANTINE CANNON LLP
Counsel for Respondents
353 Madison Avenue, 9th Floor
New York, New York 10017-4611
ROBERT L. BEGLEITER, ESQ.
MATTHEW J. KOENIG, ESQ.
ARNOLD & PORTER KAYE SCHOLER LLP
Counsel for Intervenor-Respondents
250 West 55th Street
New York, New York 10019
GLENN J. POGUST, ESQ.
KYLE D. GOOCH, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this disability-discrimination action filed by John Doe
(“Petitioner”) against Howard Zucker, M.D., in his official capacity as Commissioner of Health
of the State of New York, and Marie T. Sullivan, M.D., in her official capacity as Commissioner
of Mental Health of the State of New York, (“Respondents”) and Ruth Rivera, George Iwczenko,
and Eric Scoff as intervenors (“Intervenor-Respondents”), is Petitioner’s motion to remand to
state court, and Respondents’ motion to dismiss. (Dkt. Nos. 20, 27.) For the reasons set forth
below, Petitioner’s motion to remand this action is denied and Respondents’ motion to dismiss
Petitioner’s Petition is granted in part and denied in part.
I.
RELEVANT BACKGROUND
A.
Relevant Procedural Background
Petitioner commenced this action on or about November 22, 2016, in the Supreme Court
of the State of New York for the County of Albany pursuant to Article 78 of the New York Civil
Practice Law and Rules (“CPLR”). (Dkt. No. 2 [Pet’r’s State Ct. Petition].)
On June 27, 2017, Intervenor-Respondents moved to intervene in the state court
proceeding pursuant to CPLR § 7802. (Dkt. No. 1, Attach. 6.) On August 11, 2017, IntervenorRespondents’ motion to intervene was granted. (Dkt. No. 1, Attach. 2.) On September 8, 2017,
Intervenor-Respondents removed Petitioner’s state court action to this Court. (Dkt. No. 1.)
B.
Petitioner’s Claims
Generally, liberally construed, the Petition alleges as follows. (Dkt. No. 2.) Petitioner is
diagnosed with paranoid schizophrenia, which resulted in him being labeled as having a “serious
mental illness” (“SMI”) pursuant to the Department of Health (“DOH”) regulation 18 N.Y.
Comp. R. & Regs. (“NYCRR”) § 487.2. (Id.)
2
Until approximately two years ago, Petitioner had been a resident at Oceanview Manor
Home for Adults d/b/a Oceanview Manor (“Oceanview”) for approximately twelve years. (Id.)
Approximately two years ago, Petitioner took advantage of a program offered by Respondents
that enabled him to live in his own apartment, which is referred to as “supported housing.” (Id.)
While in supported housing, Petitioner was moved several times. (Id.) Petitioner is not satisfied
with his current housing situation because he is unfamiliar with the area, does not feel safe, and
cannot easily go play basketball, as he could when he lived at Oceanview Manor. (Id.)
Petitioner is isolated, lonely, and has difficulty meeting people and exercising since moving into
supported housing. (Id.)
Petitioner desires to move back to Oceanview, which is a transitional adult home
pursuant to DOH regulation. (Id.) Petitioner was informed Oceanview is willing to accept him
as a resident but cannot and will not do so because of the DOH regulation, which prohibits
transitional adult homes “with a certified capacity of eighty or more and a mental health census
as defined in section 487.13(b)(4) of this Part, of 25 percent or more of the resident population”
to “admit any person whose admission will increase the mental health census of the facility.”
(Id.)
Due to these new regulations, which were enacted on or about January 16, 2013, adult
homes are forced to deny people who suffer from SMI, like Petitioner, to access housing and
services of adult homes in violation of federal and state law. (Id.) Further, the Office of Mental
Health (“OMH”) regulations prohibit hospitals “from discharging any patient with a serious
mental illness to a transitional adult home, as defined in regulations of the Commissioner of
Health, unless the person was a resident of the home immediately prior to his or her current
period of hospitalization.” (Id.)
3
Generally, based on these factual allegations, the Petition asserts the following six
claims: (1) a claim that Respondents violated the American with Disabilities Act (“ADA”), 42
U.S.C. § 12101 et seq. (“Count One”); (2) a claim that Respondents violated the Rehabilitation
Act of 1973 (“RA”), 29 U.S.C. § 794(a) (“Count Two”); (3) a claim that Respondents violated
the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq. (“Count Three”); (4) a claim that
Respondents violated the New York Human Rights Law, N.Y. Exec. Law § 296 (“NYHRL”)
(“Count Four”); (5) a claim that Respondents violated his right to intimate association under the
First Amendment (“Count Five”); and (6) a claim that the challenged regulations “are arbitrary,
capricious, and irrational” under an unspecified Constitutional or statutory provision (“Count
Six”).1 (Id.)
Familiarity with these claims and the factual allegations supporting them in the Petition is
assumed in this Decision and Order, which is intended primarily for the review of the parties.
(Id.)
C.
Parties’ Briefing on Petitioner’s Motion to Remand
Generally, in support of his motion to remand, Petitioner makes the following four
arguments: (1) Intervenor-Respondents’ Notice of Removal is incurably defective because
Respondents did not consent to removal at the time of removal as is required by 28 U.S.C. §
1446(b)(2)(A); (2) in the alternative, Intervenor-Respondents are barred from exercising any
right of removal because they are not the “real parties in interest” in the lawsuit and Respondents
(who are the “real parties in interest”) waived their right to remove; (3) even if the Court finds
1
Presumably this claim arises under Article III, Section 1 of the New York State
Constitution, which provides that “[t]he legislative power of this State shall be vested in the
Senate and the Assembly.”
4
that Intervenor-Respondents had a right to removal they waived that right when they indicated
their intention to litigate this matter in state court and thus, waived their right to removal; and (4)
in any event, Petitioner’s two Article 78 claims (i.e., his Fourth and Sixth Causes of Action)
must be severed and remanded because those claims must be litigated exclusively in New York
State Court. (See generally Dkt. No. 24 [Pet’r’s Mem. of Law].)
Generally, in response to Petitioner’s motion, Intervenor-Respondents assert five
arguments: (1) Intervenor-Respondents have complied with the unanimity requirement of 28
U.S.C. § 1446 (which was amended in 2011) because they unambiguously represented in the
Notice of Removal that Respondents consented to the removal and, in any event, to the extent
there was a technical defect, that defect has now been cured; (2) Intervenor-Respondents had the
right to remove this action because (a) they are also “real parties in interest” (in that they would
be harmed by the relief sought by Petitioner), and (b) they did not waive that right by seeking a
protective order in state court; (3) Respondents did not waive their right to consent to the
removal; (4) alternatively, even if the removal was not valid pursuant to 28 U.S.C. §§ 1441 and
1446, it is valid pursuant to the All Writs Act; and (5) the Court has original jurisdiction over
Petitioner’s federal law claims and supplemental jurisdiction over Petitioner’s state law Article
78 claims, which have not been made non-removable by statute. (See generally Dkt. No. 32
[Intervenor-Resp’ts’ Opp’n Mem. of Law].)
Generally, in response to Petitioner’s motion, Respondents assert four arguments: (1) the
consent requirement of 28 U.S.C. § 1446 has been satisfied under the circumstances; (2)
Intervenor-Respondents have a right to remove, which has not been waived under the
circumstances; and (3) Respondents cannot waive Intervenor-Respondents’ right to remove; and
5
(4) the Court may exercise removal jurisdiction over Petitioner’s state law claims, which have
not been rendered non-removable by the statute. (See generally Dkt. No. 33 [Resp’ts’ Opp’n
Mem. of Law].)
Generally in its reply, Petitioner asserts three arguments: (1) this proceeding has no
bearing on the federal settlement referenced by Intervenor-Respondents; (2) Respondents cannot
consent to removal because (a) Intervenor-Respondents were never served with service of
process and (b) the 2011 amendments to 28 U.S.C. § 1446 do not permit a defendant whose time
to remove has expired to join in or consent to removal filed by a defendant who has not been
served with process; and (3) Respondents should not be allowed the cure their lack of consent by
filing an opposition to remand. (See generally Dkt. No. 36 [Pet’r’s Reply Mem. of Law].)
D.
Parties’ Briefing on Respondents’ Motion to Dismiss
Generally, in support of their motion to dismiss, Respondents make the following three
arguments: (1) the U.S. District Court for the Eastern District of New York’s March 22, 2017,
directive to New York (in a related proceeding) to allow Petitioner to move to an adult home
moots the controversy and eliminates any basis for jurisdiction; (2) Petitioner lacks standing to
challenge the OMH regulation because the Petition does not allege he is currently, or ever has
been, a patient in an OMH-regulated hospital and thus in a position to be injured by the OMH
regulation; and (3) the Petition fails to state a cause of action in that (a) Counts One, Two, and
Three do not allege any actionable discrimination because Petitioner is free to seek residence in
any compliant adult home in New York that does not already have a resident population with
greater than 25% of residents classified as having SMI, (b) with regard to Count Four, the State
does not own, and is not providing, a public accommodation and thus cannot be held liable
6
pursuant to the NYHRL, (c) with regard to Count Five, the Petition does not identify a
protectable right to intimate association under the First Amendment because Petitioner does not
have any such right here and in any event is still free to associate with any or all individuals at
Oceanview, and (d) with regard to Count Six, Petitioner’s Article 78 claim lacks foundation and
should be dismissed because the regulations are a rational exercise of discretion by DOH and
OMH. (See generally Dkt. No. 27, Attach. 1 [Resp’ts’ Mem. of Law].)
Generally, in response to Respondents’ motion, Petitioner asserts three arguments: (1)
allowing him to move back into an impacted adult home does not moot the controversy because
the regulations he challenges continue to impact him and others with a history of SMI, and
alternatively the Court should still hear the controversy because the allegedly unlawful activity is
capable of repetition yet evading review; (2) Petitioner has standing to bring this action because
he has been a patient in an OMH-regulated hospital and is always at risk of a psychiatric
admission; and (3) Petitioner stated valid claims in that (a) the challenged regulations prohibit an
individual with SMI, like him, from moving into a desired adult home solely because he suffers
from a SMI, (b) N.Y. Exec. Law § 296 provides for a public accommodation owned by a state or
local government and is extended to the government’s agents or lessees, (c) the challenged
regulations unduly burden the First Amendment right to intimate association for persons with
SMI and the Petition has sufficiently pled facts to sustain such a claim, and (d) the challenged
regulations are arbitrary and capricious because they categorize individuals solely based on their
mental illness and are unsupported by empirical evidence. (See generally Dkt. No. 37 [Pet’rs’
Opp’n Mem. of Law].)
7
Generally in their reply, Respondents assert three arguments: (1) the Court lacks
jurisdiction because (a) Petitioner has already been returned to an adult home, which was the
entirety of his alleged injury, (b) Petitioner’s injury is not a phenomenon capable of repetition
yet evading review, and (c) there is no reasonable expectation that Petitioner will again be
affected by the regulations because the exception for Petitioner was mandated by U.S. District
Judge Garaufis for the Eastern District of New York; (2) Petitioner never possessed standing to
challenge the OMH regulation because the Petition contains no allegation that Petitioner was
ever admitted to an OMH-regulated hospital, Petitioner does not claim to have ever been
affected or injured by the OMH regulation, and he does not provide any evidentiary support for
his newly made claim of recent OMH hospitalization; and (3) Petitioner has not stated a claim
upon which relief can be granted because (a) Petitioner has failed to alleged a valid claim of
discrimination, (b) the NYHRL cannot be applied to the state in these circumstances given that
New York is not an owner of a regulated entity’s property, (c) Petitioner has not alleged a
protectable right to intimate association under the First Amendment of the U.S. Constitution, and
(d) the regulations are supported by weighty and important justifications and thus Petitioner’s
Article 78 claim should be dismissed. (See generally Dkt. No. 38 [Resp’ts’ Reply Mem. of
Law].)
II.
ANALYSIS
A.
Petitioner’s Motion to Remand
1.
Legal Standard Governing Motions to Remand
“A state court action may be removed to federal court only in limited circumstances
where the federal court has original jurisdiction over the claims in the plaintiff’s complaint.”
Dumont v. U.S., 13-CV-0873, 2013 WL 6240468, at *6 (N.D.N.Y. Dec. 3, 2013) (Suddaby, J.)
8
(citing 28 U.S.C. § 1441). “Removal jurisdiction must be strictly construed, both because the
federal courts are courts of limited jurisdiction and because removal of a case implicates
significant federalism concerns.” In re NASDAQ Market Makers Antitrust Litigation, 929 F.
Supp. 174, 178 (S.D.N.Y. 1996) (citing Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 109
[1941]) (“Due regard for the rightful independence of state governments, which should actuate
federal courts, requires that they scrupulously confine their own jurisdiction to the precise limits
which the statute has defined.”). Removal statutes are to be strictly construed against removal
and in favor of remand. See Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 220 (2d Cir. 2013)
(citing Syngenta Crop Protection, Inc. v. Henson, 537 U.S. 28, 32-33 [2002]; Franchise Tax Bd.
v. Constr. Laborers Vacation Trust, 463 U.S. 1, 21 n.22 [1983]); see also Pan Atl. Group, Inc. v.
Republic Ins. Co., 878 F. Supp. 630, 638 [S.D.N.Y. 1995]) (holding that if there is doubt as to
whether federal jurisdiction exists, remand is appropriate).
Thus, “[a] party seeking to remove an action from state to federal court bears the burden
of proving federal jurisdiction.” In re WorldCom, Inc. Sec. Litig., 293 B.R. 308, 316 (S.D.N.Y.
2003) (citing Linardos v. Fortuna, 157 F.3d 945, 947 [2d Cir. 1998]; Pan Atl. Group, Inc., 878
F. Supp. at 638).
In order to remove a case from state court to federal court on the basis of federal question
jurisdiction, the removing party must show that the action, as originally filed in state court,
presents a federal question. Dumont, 2013 WL 6240468, at *7. A federal question arises if a
substantial, disputed question of federal law is presented on the face of the well-pleaded
complaint. Id.; City of Rome, New York v. Verizon Commc’ns, Inc., 362 F,3d 168, 174 (2d Cir.
2004) (citing Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 6 [2003]).
9
Where an interveneor seeks removal, the “thirty day statutory period begins to run either
on the date an intervention petition is filed in the state court from which removal is sought or on
the date the state court grants the motion to intervene.” Bank of N.Y. Mellon v. Walnut Place
LLC, 819 F. Supp. 2d 354, 359 (S.D.N.Y. 2011), rev’d on other grounds sub nom. BlackRock
Fin. Mgmt. Inc. v. Segregated Account of Ambac Assurance Corp., 673 F.3d 169 (2d Cir. 2012);
see also Tucker v. Equifirst Corp., 57 F. Supp. 3d 1347, 1349 (S.D. Ala. 2014) (“[T]he 30–day
period began to run when the motion to intervene was granted.”).
2.
Whether Petitioner’s Motion to Remand Should Be Granted
After carefully considering the matter, the Court denies Petitioner’s motion to remand for
the reasons stated in Intervenor-Respondents’ and Respondents’ opposition memoranda of law.
(Dkt. No. 32; Dkt. No. 33.) To those reasons, the Court adds the following analysis.
a.
Whether There Was Unanimous Consent to Removal
After carefully considering the matter, the Court finds that there was unanimous consent
to the removal. Pursuant to 28 U.S.C. § 1446(b)(2)(A), “[w]hen a civil action is removed solely
under section 1441(a), all defendants who have been properly joined and served must join in or
consent to the removal of the action.”
Here, Respondents provided written notice of their consent to removal to IntervenorRespondents on August 29, 2017, ten days before Intervenor-Respondents removed Petitioner’s
state court action to this Court. (Dkt. No. 1; Dkt. No. 1, Attach. 2; Dkt. No. 16, at 1, n.1.) As a
result, when Intervenor-Respondents filed their notice of removal, they represented
unambiguously (in a document governed by Fed. R. Civ. P. 11) that Respondent has consented to
the removal. (Dkt. No. 1, at ¶ 21.) At least three courts of appeals have held such a
10
representation to satisfy the unanimity requirement. See Mayo v. Bd. of Educ. of Prince
George’s Cty., 713 F.3d 735, 742 (4th Cir. 2013) (“To be sure, § 1446 requires at least one
notice of removal signed by at least one attorney, in accordance with Rule 11, thus mandating
that at least one attorney for the removing defendant or defendants be accountable to the court by
representing, as provided in Rule 11, that removal is warranted by law and is not pursued for an
improper purpose and that the facts alleged are justified or supported.”); Proctor v. Vishay
Intertechnology, Inc., 584 F.3d 1208, 1225 (9th Cir. 2009) (“[W]e conclude that the filing of a
notice of removal can be effective without individual consent documents on behalf of each
defendant. One defendant's timely removal notice containing an averment of the other
defendants' consent and signed by an attorney of record is sufficient.”); Harper v. AutoAlliance
Int’l, Inc., 392 F.3d 195, 201-02 (6th Cir. 2004) (“[T]he attorney for AutoAlliance, AAI and
Childress was bound by Rule 11 when she represented to the district court that Kelly consented
to the removal.”).
Moreover, Respondents provided written notice of their consent of removal to the Court
by letter on September 20, 2017, twelve days after Intervenor-Respondents removed Petitioner’s
state court action to this Court. (Dkt. No. 16.) Both a court of appeals and the undersigned have,
in the past, found such a post-removal letter to satisfy the unanimity requirement. See Griffioen
v. Cedar Rapids and Iowa City Rw. Co., 785 F.3d 1182, 1188 (8th Cir. 2015) (“We . . . . hold
that a defendant's timely removal notice indicating consent on behalf of a codefendant, signed
and certified pursuant to Rule 11 and followed by the filing of a notice of consent from the
codefendant itself, sufficiently establishes that codefendant's consent to removal.”); Crenshaw v.
McNamara, 15-CV-6229, 2016 WL 228358, at *2 (W.D.N.Y. Jan. 19, 2016) (Suddaby, C.J.,
11
sitting by designation) (holding that a letter filed with court by the RPD Defendants indicating
that “RPD Defendants ‘support and join’ the motion to remove and oppose the motion to remand
. . . [was] sufficient to independently express RPD Defendants' consent to removal.”).
In any event, Respondents have opposed Petitioner’s motion to remand, thus
independently expressing their consent to removal. At least three courts of appeals have held
such an opposition to satisfy the unanimity requirement. See Stone v. Bank of New York Mellon,
N.A., No. 13-15433, 2015 WL 1769370, at *2 (11th Cir. 2015) (“Although Prommis did not join
the notice of removal, it did oppose remand, and therefore the district court did not err by
refusing to remand for a technical defect related to the unanimity rule.”); Esposito v. Home
Depot U.S.A., Inc., 590 F.3d 72, 77 (1st Cir. 2009) (“And in this particular case, even assuming
that Home Depot's answer failed to satisfy the unanimity requirement, resulting in a technical
defect in the removal process, the defect was subsequently cured when Home Depot opposed
Esposito's remand motion, thereby clearly communicating its desire to be in federal court.”);
Harper, 392 F.3d at 202 (“In addition, the fact that [the defendant] opposed [the plaintiff's]
motion to remand cured any purported defect in the removal petition.”); cf. Christiansen v. W.
Branch Cmty. Sch. Dist., 674 F.3d 927, 933 (8th Cir. 2012) (holding that the unanimity
requirement was satisfied where a non-removing defendant's filed, in federal court, a motion to
dismiss that incorporated a brief arguing that removal was “appropriate”).
Finally, the Court finds that Intervenor-Respondents had been properly served (for
purposes of 28 U.S.C. § 1446[b][2][A]) by the time they removed this action on September 8,
2017. Pursuant to CPLR § 1014, “[a] motion to intervene shall be accompanied by a proposed
pleading setting forth the claim or defense for which intervention is sought.” This requirement
12
presumes that, prior to filing a motion to intervene, the intervenor would have access to the
complaint or petition.2 As a result, New York State courts have not required the original plaintiff
to re-serve the complaint or petition on an intervenor. See Town of Southold v. Cross Sound
Ferry Servs., Inc., 256 A.D.2d 403, 404 (N.Y. App. Div., 2d Dept. 1998) (granting intervenor
status to intervening plaintiff and deeming intervening plaintiff’s intervening complaint served);
Stockdale v. Hughes, 189 A.D.2d 1065, 1067-68 (N.Y. App. Div., 3d Dept. 1993) (granting
intervenor status to intervening defendant who filed an answer with motion to intervene and
granting intervenor defendant’s motion to dismiss); Pirrotti v. Town of Greenburgh, 25 Misc. 3d
1226(A), at *5 (N.Y. Sup. Ct., Westchester Cnty. 2009) (granting intervenor status to intervening
respondents and deeming intervening respondents’ cross claims duly filed and served); Niemann
v. Luca, 168 Misc. 2d 1023, 1028-29 (N.Y. Sup. Ct., Suffolk Cnty. 1996) (granting intervenor
status to an intervening plaintiff and directing the intervening plaintiff to file the intervening
complaint within fifteen days of the decision and order).
For each of these alternative reasons, the Court finds that there was unanimous consent to
removal in this action.
Finally, for all of these reasons, the Court finds that there was unanimous consent to the
removal.
2
“It has been held that omission of the pleading is jurisdictional; that in its absence
the court has ‘no power’ to entertain the motion.” DAVID D. SIEGEL, NEW YORK PRACTICE:
PRACTITIONER TREATISE SERIES, 299 (3RD ED. WEST GROUP 1999).
13
b.
Whether Intervenor-Respondents Were Barred from
Exercising a Right to Removal
After carefully considering the matter, the Court finds that Intervenor-Respondents were
entitled to seek removal within thirty days after the state court granted their motion to intervene.
Petitioner argues that Intervenor-Respondents were barred from removing this action
because they are not a “real party in interest” in this lawsuit, and the actual “real parties in
interest” (i.e. Respondents) waived their right to remove. (Dkt. No. 20.) For the reasons set
forth in Intervenor-Respondents’ and Respondents’ opposition memoranda of law, the Court
finds that Intervenor-Respondents are “real party in interests” because they are individuals who
have alleged that they will be injured if the regulations that Petitioner seeks to strike down are
not enforced. See, e.g., Bank of N.Y. Mellon, 819 F. Supp. 2d at 358-59; Tucker v. Equifirst
Corp., 57 F. Supp. 3d 1347, 1349 (S.D. Ala. 2014) (holding that intervenors may file notice of
removal as long as they are properly aligned as defendants and do so within thirty days after
their motion to intervene is granted). In the alternative, the Court finds that the 2011
amendments to 28 U.S.C. § 1446 rendered inapplicable the authorities cited by Petitioner for the
point of law that an intervening party may not remove an action when the original defendant’s
right to remove has expired.
Petitioner also argues that Intervenor-Respondents were barred from removing this action
because Respondents waived their right to removal by moving to dismiss Petitioner’s Petition on
May 31, 2017, approximately one month before Intervenor-Respondents moved to intervene.
(Dkt. No. 24.) For the reasons set forth in Intervenor-Respondents’ and Respondents’ opposition
memoranda of law, the Court finds that Respondents’ filing of a motion to dismiss in state court
did not, and could not, waive Intervenor-Respondents’ right to removal. See Eclipse Aesthetics
14
LLC v. Regenlab USA, LLC, 16-CV-1448, 2016 WL 4800342, at *4 (N.D. Tex. Sept. 12, 2016)
(“[T]he Court concludes that an earlier-served defendant’s litigation conduct does not constitute
a waiver of its right to consent to the notice of removal filed by a later-served defendant.”)
(collecting cases).
For all of these reasons, the Court finds that Intervenor-Respondents are not barred from
exercising their right to removal.
c.
Whether Intervenor-Respondents Waived Their Right to
Removal by Indicating an Intention to Litigate this Matter in
State Court
After carefully considering the matter, the Court finds that Intervenor-Respondents did
not waive their right to removal by litigating this matter in state court.
Petitioner argues that Intervenor-Respondent waived their right to removal by expressing
an intent to join in Respondents’ motion to dismiss. (Dkt. No. 24.) In support of this argument,
Petitioner includes excerpts from a hearing held in state court on August 11, 2017, in which
counsel for Intervenor-Respondents indicated that Intervenor-Respondents support Respondents’
motion to dismiss and oppose Petitioner’s motion for a preliminary injunction. (Id.)
As an initial matter, “the Second Circuit does not appear to have endorsed a waiver
exception to an otherwise timely removal.” Stemmle v. Interlake Steamship Co., 198 F. Supp. 3d
149, 166 (E.D.N.Y. 2016). In any event, even assuming that there is such a waiver exception to
removal, courts have tended to limit the exception to instances where a defendant takes a “clear
and unequivocal” action in state court that manifests its intent to have the matter adjudicated
there. Stemmle, 198 F. Supp. 3d at 166 (citing Engle v. R.J. Reynolds Tobacco Co., 122 F. Supp.
2d 1355, 1360 [S.D. Fla. 2000]); see also Heafitz v. Interfirst Bank of Dallas, 711 F. Supp. 92,
15
96 (S.D.N.Y. 1989) (holding that removal may be “improper if defendant manifested an intent to
litigate in state court, and thereby waived its right to remove.”). A “waiver will not occur by
defensive action in state court” and “not every action by a defendant is ‘defensive.’” Heafitz, 711
F. Supp. at 96.
If the motion is made only to preserve the status quo ante and not to
dispose of the matter on its merits, it is clear that no waiver has occurred.
On the other hand, if a motion seeks a disposition, in whole or in part, of
the action on its merits, the defendant may not attempt to invoke the right
to remove after losing on the motion.
Bolivar Sand Co., Inc. v. Allied Equip., Inc., 631 F. Supp. 171, 173 (W.D. Tenn. 1986).
Here, the state court held a hearing on August 11, 2017, at which the state court heard
oral argument then granted intervenor status to Intervenor-Respondents. (Dkt. No. 20, Attach.
4.) Thereafter, the state court indicated a need to address additional pending motions including
Respondents’ motion to dismiss and Petitioner’s motion for a preliminary injunction. (Dkt. No.
20, Attach. 4, at 28-31.) Before addressing the motions to dismiss and for a preliminary
injunction, the state court asked what impact the Intervenor-Respondent’s intervention would
have on the proceedings. (Id. at 29.) In response, Intervenor-Respondents through their counsel
stated,
Well, your Honor, one, we know that on for today is the motion to
dismiss. We support that. I know having gone through this now but if the
case doesn’t continue, we support that and we oppose the preliminary
injunction. We’ll defer to the State on that. We are not looking to delay
anything on those issues. If something comes up going forward, we will
fall into that process. We do not want this to be something that would
delay anything and we don’t take issue with the position of the State so far
in the case.
(Id.)
16
Such statements by Intervenor-Respondents are far from a clear and unequivocal action
in state court that manifested their intent to have the matter adjudicated there. IntervenorRespondents here, unlike the intervenor in Heafitz v. Interfirst Bank of Dallas, did not file any
moving papers or brief the issues. Heafitz v. Interfirst Bank of Dallas, 711 F. Supp. 925
(S.D.N.Y. 1989). In addition, Intervenor-Respondents did not request to formally join in
Respondents’ pending motion to dismiss. Heafitz, 711 F. Supp 925. Instead, IntervenorRespondents merely indicated their support, which was insufficient to waive their right to seek
removal.
Petitioner also argues that Intervenor-Respondents’ Order to Show Cause pursuant to
CPLR § 3103(c), which requested various relief concerning certain medical records of
Intervenor-Respondents that were improperly obtained by Petitioner (the “OSC”), also waived
Intervenor-Respondents’ right to removal. (Dkt. No. 1, Attach. 9.) The Court finds that the
filing of this OSC was defensive and would not have disposed of the matter on its merits.
Heafitz, 711 F. Supp. at 96.
For all of these reasons, the Court finds that Intervenor-Respondents did not waive their
right to removal by litigating this matter in state court.
d.
Whether this Court Has Jurisdiction over Petitioner’s
Article 78 Claims
After carefully considering the matter, the Court finds that, for the reasons set forth in
Respondents’ and Intervenor-Respondents’ opposition memoranda of law, this Court has
jurisdiction over all of Petitioner’s causes of action. (Dkt. Nos. 32, 33.) In addition, the Court
finds that Petitioner’s Article 78 claims are removable for the reasons set forth by the U.S.
District Court for the Eastern District of New York in Residents & Families United to Save Our
17
Adult Homes v. Zucker,16-CV-1683, 2017 WL 5496277, at *11-13 (E.D.N.Y. Jan. 24, 2017).
There, the Court held that plaintiff’s Article 78 claims were removable where the federal law
claims asserted in plaintiffs’ petitions “fall within the court’s original jurisdiction, and the court
has supplemental jurisdiction over the state law claims within these pleadings because the
federal and state law claims ‘derive from a common nucleus of operative fact,’ namely the effect
of the regulations on the adult home industry and residents of the adult homes.” Residents &
Families United to Save Our Adult Homes, 2017 WL 5496277, at *13.
As a result, the Court does not, and need not, address Respondents’ argument that this
case is removable pursuant to 28 U.S.C. § 1651(a) (the All Writs Act). (Dkt. No. 32, at 24-25.)
For all of these reasons, Petitioner’s motion to remand is denied.
B.
Respondents’ Motion to Dismiss
After carefully considering the matter, the Court denies Respondents’ motion to dismiss
to the extent it is based on mootness; the Court grants Respondents’ motion to dismiss to the
extent it is based on a lack of standing; and the Court grants in part and denies in part
Respondents’ motion to dismiss to the extent it is based on a failure to state a claim. (Dkt. No.
27 [Resp’ts’ Mem. of Law]; Dkt. No. 38 [Resp’ts’ Reply Mem. of Law].)
1.
Whether Petitioner’s Claims Are Moot
After carefully considering the matter, the Court finds that, for the reasons set forth in
Petitioner’s memorandum of law, Respondents’ motion to dismiss for mootness should be
denied. (Dkt. No. 37.) To those reasons, the Court adds the following analysis
18
a.
Legal Standard Governing Motions to Dismiss for Mootness
Pursuant to Fed. R. Civ. P. 12(b)(1), “a defendant may move to dismiss for want to
subject matter jurisdiction when a matter has become moot and, therefore, no live case or
controversy remains.” Akinde v. New York City Health and Hosp. Corp., 16-CV-8882, 2017 WL
4350587, at *1 (S.D.N.Y. July 7, 2017). “Dismissal of a case for lack of subject matter
jurisdiction under Rule 12(b)(1) is proper when the district court lacks the statutory or
constitutional power to adjudicate it.” Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d
Cir. 2009).
“A party seeking to have a case dismissed as moot bears a heavy burden.” Lillbask ex
rel. Mauclaire v. State of Conn. Dept. of Educ., 397 F.3d 77, 84 (2d Cir. 2005). However,
“[t]here is no question that Article III of the Constitution limits federal judicial Power, that is,
federal-court jurisdiction, to Cases and Controversies.” Lillbask ex rel. Mauclaire, 397 F.3d at
84 (internal quotation marks omitted). “[T]he dispute before the court must be real and live, not
feigned, academic, or conjectural. . . . When the issues in dispute between the parties are no
longer live, a case becomes moot, and the court–whether trial, appellate, or Supreme–loses
jurisdiction over the suit, which therefore must be dismissed.” Id. (internal quotation marks
omitted). “The core question in [a] mootness inquiry is whether granting a present determination
of the issues offered will have some effect in the real world.” Kennecott Utah Copper Corp. v.
Becker, 186 F.3d 1261, 1266 (10th Cir. 1999).
There is an exception to the mootness doctrine, which requires that two circumstances are
simultaneously present: “(1) the challenged action is in duration too short to be fully litigated
prior to its cessation or expiration; and (2) there is a reasonable expectation that the same
19
complaining party would be subjected to the same action again.” Lillbask ex rel. Maulclaire,
397 F.3d at 85 (internal quotation marks omitted).
Similarly, “voluntary cessation of the alleged illegal conduct usually will render a case
moot ‘if the defendant can demonstrate that (1) there is no reasonable expectation that the
alleged violation will recur and (2) interim relief or events have completely and irrevocably
eradicated the effects of the alleged violation.’” Lamar Adver. of Penn, LLC v. Town of Orchard
Park, 356 F.3d 365, 375 (2d Cir. 2004) (quoting Granite State Outdoor Adver., Inc. v. Town of
Orange, 303 F.3d 450, 451 [2d Cir. 2002]).
b.
Respondents’ Court-Ordered Agreement
Respondents agreed, and were ordered by the U.S. District Court Eastern District of New
York, to allow Petitioner to move back to a transitional adult home. (Dkt. No. 27, Attach. 3, at
6-7.) On October 31, 2017, Petitioner moved back into Oceanview. (Dkt. No. 38, Attach. 1, at
4.)
Respondents argue that, because of this agreement and Petitioner’s return to Oceanview,
the issues are moot. The Court respectfully disagrees with Respondents. “The hallmark of a
moot case or controversy is that the relief sought can no longer be given or is no longer needed.”
Martin-Trigona v. Shiff, 702 F.2d 380, 386 (2d Cir. 1983). While the Court rejects Petitioner’s
argument that he is suing on behalf of others (given that this is not a class action), the Court
accepts Petitioner’s argument that he “seeks not just the capricious permission of the State for
him to make this singular move.” (Dkt. No. 37, at 12.)
20
In Vitek v. Jones, the Supreme Court held that a matter was not moot in a similar
situation. Vitek v. Jones, 445 U.S. 480, 486-87 (1980). There, while incarcerated for a criminal
conviction, Jones was transferred to a secure mental hospital after it was determined that he
could not receive proper treatment in a penal complex pursuant to Nebraska Rev. Stat. § 83176(2). Vitek, 455 U.S. at 484. Jones then intervened in the civil case, which was brought by
other prisoners against the appropriate state officials challenging on procedural due process
grounds the adequacy of the procedures by which Nebraska statutes permit transfers from the
prison complex to a mental hospital. Id. The district court declared the Nebraska law
unconstitutional as applied to Jones. Id. at 485. Thereafter, Jones was paroled on the condition
that he accept psychiatric treatment. Id. “[R]elying on Jones’ history of mental illness and the
State’s representation that he represented a serious threat to his own safety as well as to that of
others, [the district court] found that Jones ‘is in fact under threat of being transferred to the state
mental hospital’” even though Jones was on parole. Id. at 486. When the Supreme Court heard
the case, Jones had violated his parole. Id. However, the Court affirmed the district court’s
holding that the case was not moot, even when Jones was on parole, because the “[r]eality of the
controversy between Jones and the State has not been lessened by the cancellation of his parole
and his return to the state prison, where he is protected from further transfer by the outstanding
judgment and injunction of the District Court.” Id.
Similarly, here, Petitioner argues that, even now that he has returned to Oceanview, the
matter is not moot. Specifically, Petitioner argues that, should he desire to move to another adult
transitional home, the challenged regulations bar him from doing so, and bar him from returning
to an adult transitional home if he again leaves and/or decides to try an alternative living
21
arrangement, e.g., short term rehab, supported housing, or residence with family or friends.
(Dkt. No. 37, Attach. 3.)
While Respondents argue that there is not a reasonable expectation that Petitioner will
again be affected by the regulations, the Court respectfully disagrees. (Dkt. No. 38, at 5.) Much
like the controversy faced by Jones in Vitek, the controversy between Petitioner and Respondents
here has not been lessened by the return of Petitioner to Oceanview. Further the Court agrees
with Acting Albany County Supreme Court Justice Kimberly A. O’Connor that “Respondents’
assertion that [P]etitioner’s claimed harm is purely speculative ignores the realities of mental
illness, which make the likelihood of the harm alleged more real and possible than not.” (Dkt.
No. 1, Attach. 8, at 6.)
c.
Commissioner Zucker’s Assurance that DOH Will
Accommodate Petitioner in the Future
Respondents also argue in their memorandum of law that “Commissioner Zucker has
represented, in open court, that the DOH will accommodate Petitioner going forward with
respect to the DOH Regulation.” (Dkt. No. 38, at 6.) However, Respondents do not cite any
portion of the record containing such a statement by Commissioner Zucker, and the Court has
not come across any such statement in the record. (Id.)
Alternatively, even if the Court were to find such a voluntary statement to have been
made by Commissioner Zucker, the Court still would find that the case is not moot. To prevail
on a claim of mootness, Respondents must establish that subsequent events have “made it
absolutely clear that the allegedly wrong behavior could not reasonably be expected to recur.”
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000).
22
The Court finds that, at this juncture, Respondents have failed to meet this heavy burden.
Were this Court to dismiss Petitioner’s claims regarding the DOH and OMH regulations, other
than through the exercise of the burdensome right to recommence litigation, there might be no
legal remedy for Petitioner to pursue in the event DOH or OMH (through a change of leadership
or policy) later decide not to allow Petitioner to transfer or return to a transitional adult home of
his choosing. See Vermont Right to Life Comm., 221 F.3d 376, 382 (2d Cir. 2000) (“The State
also argues that VRLC's fear of suit could not possibly be well-founded because the State has no
intention of suing VRLC for its activities. While that may be so, there is nothing that prevents
the State from changing its mind. It is not forever bound, by estoppel or otherwise, to the view of
the law that it asserts in this litigation.”) (collecting cases).
For all of these reasons, the Court finds that Petitioner’s claims are not moot.
2.
Whether Petitioner Lacks Standing to Bring His Claims
After carefully considering the matter, the Court finds that, for the reasons set forth in
Respondents’ memoranda of law, Respondents’ motion to dismiss the claims challenging the
OMH regulation for lack of standing should be granted. (Dkt. No. 27, Attach. 1; Dkt. No. 38.)
To those reasons, the Court adds the following analysis.
a.
Legal Standard Governing Motions to Dismiss for Lack of
Standing
Under Article III of the U.S. Constitution, the jurisdiction of federal courts is limited to
the resolution of “cases” and “controversies.” U.S. Const. art. III, § 2. “In order to ensure that
this ‘bedrock’ case-or-controversy requirement is met, courts require that plaintiffs establish
their ‘standing’ as ‘the proper part[ies] to bring’ suit.” W.R. Huff Asset Mgmt. Co., LLC v.
Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (quoting Raines v. Byrd, 521 U.S. 811,
23
818 [1997]). “Article III standing consists of three irreducible elements: (1) injury-in-fact,
which is a ‘concrete and particularized’ harm to a ‘legally protected interest’; (2) causation in
the form of a ‘fairly traceable’ connection between the asserted injury-in-fact and the alleged
actions of the defendant; and (3) redressability, or a non-speculative likelihood that the injury
can be remedied by the requested relief.” W.R. Huff Asset Mgmt. Co., LLC, 549 F.3d at 106-07
(citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 [1992]) (emphasis in original).
“These requirements ensure that a plaintiff has a sufficiently personal stake in the outcome of the
suit so that the parties are adverse.” Id. (citing Baker v. Carr, 369 U.S. 186, 204 [1962]).
With regard to the first element, “plaintiff must have personally suffered an injury.” Id.
(citing Lujan, 504 U.S. at 560 n.1 [“By particularized, we mean that the injury must affect the
plaintiff in a personal and individual way.”]; Valley Forge Christian College v. Am. United for
Separation of Church and State, Inc., 454 U.S. 464, 472 [1982] [“Art[icle] III requires that the
party who invokes the court’s authority to show that he personally has suffered some action or
threatened injury as a result of the putatively illegal conduct of the defendant.”]; Baker, 369 U.S.
at 204).
The injury must be “concrete and particularized” and “actual or imminent, not
‘conjectural’ or ‘hypothetical.’” Lujan, 504 U.S. at 560. An allegation of future injury may
suffice if the threatened injury is “clearly impending,” or there is a “‘substantial risk’ that the
harm will occur.” Clapper v. Amnesty Intern. USA, 568 U.S. 398, 441 n.5 (2013); see also
Carver v. City of New York, 621 F.3d 221, 228 (2d Cir. 2010) (“To establish standing to obtain
prospective relief, a plaintiff must show a likelihood that he will be injured in the future.”).
24
“The basic question when standing is at issue is whether the plaintiff has alleged ‘such a
personal stake in the outcome of the controversy’ as to warrant his or her invocation of federalcourt jurisdiction, and to justify exercise of the court’s remedial powers on his or her behalf.”
Montgomery v. Cuomo, 14-CV-6709, 2018 WL 1157171, at *35 (W.D.N.Y. Mar. 5, 2018)
(quoting Baker v. Carr, 369 U.S. 186, 204 [1962]). “[T]he ‘injury in fact’ test requires more
than an injury to a cognizable interest. It requires that the party seeking review be himself
among the injured.” Lee v. Bd. of Governors of the Fed. Reserve Sys., 118 F.3d 905, 912 (2d
Cir. 1997) (quoting Sierra Club v. Morton, 405 U.S. 727, 734-35 [1972]).
b.
Standing to Challenge an OMH Regulation
In Montgomery v. Cuomo, plaintiff gun owners brought an action challenging as
unconstitutional (1) the New York Mental Hygiene Law requiring mental-health treatment
providers to report to OMH, patients who appeared to pose a threat of serious harm to
themselves or others, and (2) the statute requiring that, if such patient has a New York State
firearms license, the license be suspended or revoked and that the patient’s firearms be seized.
Montgomery v. Cuomo, 14-CV-6709, 2018 WL 1157171 (W.D.N.Y. Mar. 5, 2018). The district
court held that specific plaintiffs lacked standing to challenge Mental Health Law § 9.46
(“MHL”), because they were not affected by MHL § 9.46 and did not show that they are in
imminent danger of being affected in the future despite having their pistol permits suspended
pursuant to other sections of the MHL. Montgomery, 2018 WL 1157171, at *40-41.
Similarly, here, Petitioner is not currently, nor does the Petition allege he was ever,
injured as a result of the OMH regulations. In fact, the Petition does not allege that Petitioner
has ever been hospitalized, such that his housing would have ever been impacted by the OMH
25
regulations. In addition, he adduces no evidence in support of his late-blossoming assertion that
he was “recently in” an OMH hospital. Finally, Petitioner is currently in a transitional adult
home.
For all of these reasons, the Court finds that Petitioner lacks standing to challenge the
OMH regulation and the causes of action that challenge the OMH regulation should be dismissed
without prejudice.
3.
Whether the Petition Fails to State a Claim
After carefully considering the matter, the Court finds that, for the reasons set forth in
Respondents’ memoranda of law, Respondents’ motion to dismiss for failure to state a claim
should be granted as to Counts Four and Five. (Dkt. No. 27, Attach. 1; Dkt. No. 38.) The Court
finds that for the reasons set forth in Petitioner’s memorandum of law, Respondents’ motion to
dismiss for failure to state a claim should be denied as to Counts One, Two, Three, and Six.
(Dkt. No. 37.)
a.
Legal Standard Governing Motions to Dismiss for Failure to
State Claim
It has long been understood that a dismissal for failure to state a claim upon which relief
can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cnty., 549 F. Supp.2d
204, 211, nn.15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo
review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
26
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).
On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp.2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp.2d at
212, n.17 (citing Supreme Court cases) (emphasis added).3
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp.2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp.2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
3
Accord, Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (Munson, J.);
Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998); Powell v.
Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y.1995) (McAvoy, C.J.).
27
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F.
Supp.2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v.
Iqbal, 129 S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atlantic Corp. v. Twombly, the Supreme Court reversed an
appellate decision holding that a complaint had stated an actionable antitrust claim under 15
U.S.C. § 1. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court
“retire[d]” the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),
that “a complaint should not be dismissed for failure to state a claim unless it appears beyond
doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an
actionable claim, the Court clarified, the “fair notice” standard turns on the plausibility of an
actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a
pleading need “set out in detail the facts upon which [the claim is based],” it does mean that the
pleading must contain at least “some factual allegation[s].” Id. at 1965. More specifically, the
“[f]actual allegations must be enough to raise a right to relief above the speculative level [to a
plausible level],” assuming (of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
28
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.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,
supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
29
any matter of which the court can take judicial notice for the factual background of the case.4
b.
Counts One (ADA), Two (RA), and Three (FHA)
After carefully considering the matter, the Court finds that, for the reasons set forth in
Petitioner’s opposition memorandum of law, Respondents’ motion to dismiss for failure to state
a claim with regard to Count One, Two, and Three should be denied. (Dkt. No. 37, Attach. 1.)
To prove that a state regulation violates the ADA, a plaintiff must establish the
following: “(1) that he is a ‘qualified individual’ with a disability; (2) that he was excluded from
participation in a public entity’s services, programs or activities or was otherwise discriminated
4
See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant’s motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
30
against by a public entity; and (3) that such exclusion or discrimination was due to his
disability.” Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003) (citing 42 U.S.C. § 12132).
These requirements apply with equal force to Petitioner’s Rehabilitation Act claim. Hargrave,
340 F.3d at 35. Under the FHA, it is unlawful “[t]o discriminate in the sale or rental, or to
otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap[.]”
42 U.S.C. § 3604(f)(1). “Discrimination is actionable under the ADA and FHA pursuant to one
of three distinct theories, including (1) intentional discrimination, or disparate treatment; (2)
disparate impact; and (3) failure to make a reasonable accommodation.” Candlehouse, Inc. v.
Town of Vestal, N.Y., 11-CV-0093, 2013 WL 1867114, at *6 (N.D.N.Y. May 3, 2013) (Peebles,
M.J.) (citing Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 574 [2d Cir. 2003]).
As stated above in Part I.D. of this Decision and Order, Respondents argue that Petitioner
does not allege facts plausibly suggesting a valid claim of discrimination, which is fatal to
Counts One, Two and Three. (Dkt. No. 38, at 9-10.) Respondents argue that the challenged
DOH regulation does not deny Petitioner meaningful access to an adult home because, “while
the DOH Regulations may effectively bar a person with serious mental illness from living in a
specific adult home that is in violation of that regulation, that individual is free to seek residence
in any of the many other compliant adult homes in New York.” (Dkt. No. 27, Attach. 1, at 15.)
31
For the reasons set forth in Petitioner’s opposition memorandum of law, the Court finds
that Petitioner sufficiently alleges discrimination.5 As set forth in Hargrave v. Vermont, “[a]
program may discriminate on the basis of mental illness if it treats a mentally ill individual in a
particular set of circumstances differently than it treats non-mentally ill individuals in the same
circumstances.” Hargrave v. Vermont, 340 F.3d 27, 36-37 (2d Cir. 2003).
The Petition specifically alleges, “The challenged Regulations prohibit the operator of a
transitional adult home ‘with a certified capacity of eighty or more and a mental health
consensus as defined in section 487.13(b)(4) of this Part, of 25 percent or more of the residential
population’ to ‘admit any person whose admission will increase the mental health census of the
facility’. Id § 487.4(c).” (Dkt. No. 2, at 7.) Further, the Petition alleges, “The prohibition
against Petitioner moving back into a transitional adult home is based solely upon the
categorization of Petitioner as a person with a serious mental illness.” (Id. at 8.) Petitioner also
states in an affidavit attached to the Petition, “If my disability were purely physical, I could live
in Oceanview without violating the law and have the freedom to move out and back in to
Oceanview. Before the current regulations were adopted, I did in fact have that freedom.” (Id.
at 37.)
5
The Court disagrees with Petitioner’s argument that he sufficiently alleges
discrimination because he has a right to choose his preferred care option in light of his needs.
(Dkt. No. 37, at 19-20.) This is because it is undisputed that Petitioner could move to a
transitional adult home that is compliant with the challenged regulations and has a resident
population of less than 25% individuals with SMI. Rather, the Court finds that Petition
sufficiently alleges discrimination because, as explained above, the challenged regulations treat
Petitioner differently because of his disability.
32
The allegations contained in the Petition are different from the facts set forth in CERPAC
v. Health & Hosps. Corp., cited by Respondents in support of their motion to dismiss. 147 F.3d
165 (2d Cir. 1998). There, a municipal agency decided to close a specialized health care facility
that treated children with developmental disabilities. CERCPAC, 147 F.3d at 165. The Second
Circuit affirmed the dismissal. The district court reasoned that “the Rehabilitation Act and the
ADA afford disabled persons only a right to care equal to that made available to non-disabled
persons.” Id. at 167. In addition, the Second Circuit noted, “The closing of the CERC is
challenged, not because its absence will deprive disabled children of medical service available to
non-disabled children, but because the closing will eliminate or reduce some services needed by
disabled children and will inconveniently relocate at Morrisania other services that these
children require.” Id. at 168.
Here, the challenged DOH regulation does not close a facility as did the regulations in
CERCPAC. Rather, they require that individuals categorized as having a SMI be treated
differently than those without that disability. It is not required that Petitioner allege that he was
excluded from participation in, or was denied the benefits of, services. The plain language of 42
U.S.C. § 12132 indicates that, to sufficiently allege a cause of action pursuant to the ADA,
Petitioner may need only allege that he was subjected to discrimination, which he has. See
generally Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999).
For all of these reasons, Court finds that the Petition sufficiently alleges discrimination.
33
c.
Count Four (NYHRL)
After carefully considering the matter, the Court finds that, for the reasons set forth in
Respondents’ memoranda of law, Respondents’ motion to dismiss for failure to state a claim
with regard to Count Four should be granted. (Dkt. No. 27, Attach. 1; Dkt. No. 38.)
It is not alleged that New York State owns, leases, manages, is a proprietor of, is a
superintendent of, is an agent of, or is an employee of transitional adult homes. (Dkt. No. 2.)
Rather, Petitioner seeks to impose liability on the state because New York licenses transitional
adult homes and heavily regulates them. (Dkt. No. 37, at 22-23.)
The regulation of transitional adult homes by New York State does not covert the state to
an owner, lessee, proprietor, manager, superintendent, agent or employee of any place of
accommodation. See Jackson v. Metro. Edison Co., 419 U.S. 345, 358 (1974); Benjamin
Koeppel, 85 N.Y.2d 549, 554 (N.Y. 1995); Southworth v. State, 47 N.Y.2d 874, 876 (N.Y.
1979). Moreover, there is no legal basis for this Court to interpret the NYHRL beyond its terms,
which applies strictly to an “owner, lessee, proprietor, manager, superintendent, agent or
employee of any place of public accommodation.” N.Y. Exec. Law § 296(2)(a).
For all of these reasons, the Court finds that, because Petitioner fails to state a claim with
regard to Count Four (the NYHRL violation), Count Four should be dismissed.
d.
Count Five (Intimate Association)
Petitioner alleges that the challenged regulations violated his right to intimate association
pursuant to the First Amendment of the U.S. Constitution. (Dkt. No. 2.) As set forth above in
Part I.D. of this Decision and Order, Respondents argue that this claim should be dismissed
because Petitioner fails to allege any legally protected relationship that has been impeded
34
because he was unable to live at Oceanview. (Dkt. No. 27, Attach. 1, at 16-17.)
The U.S. Constitution affords protection to two distinct types of association: “intimate
association” and “expressive association.” City of Dallas v. Stanglin, 490 U.S. 19, 23-25 (1989).
Intimate association is defined as those relationships that may be classified as familial in nature,
as involving “deep attachments and commitments to the necessarily few other individuals with
whom one shares not only a special community of thoughts, experiences, and beliefs but also
distinctively personal aspects of one’s life.” Roberts v. U.S. Jaycees, 468 U.S. 609, 620 (1984).
Examples of such relationships include the creation and sustenance of a family (Roberts, 468
U.S. at 620), marriage (Zablocki v. Redhail, 434 U.S. 374 [1978]), the begetting and bearing of
children (Carey v. Population Servs. Int’l, 431 U.S. 678 [1977]), cohabitation with relatives
(Moore v. E. Cleveland, 431 U.S. 494 [1977]), and child rearing and education (Pierce v. Soc’y
of Sisters, 268 U.S. 510 [1925]).
Moreover, the U.S. Constitution protects “certain kinds of highly personal relationships .
. . from unjustified interference by the State.” Roberts v. U.S. Jaycees, 468 U.S. 609, 618
(1984). However, the Supreme Court has not defined the “precise boundaries” as to what
qualifies as a “highly personal relationship[]” entitled to constitutional protections. Bd. of Dir. of
Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987). The Supreme Court has noted
that “[d]etermining the limits of state authority over an individual’s freedom to enter into a
particular association therefore unavoidably entails a careful assessment of where the
relationship’s objective characteristics locate it on a spectrum from the most intimate to the most
attenuated of personal attachments.” Roberts, 468 U.S. at 620 (citing Ruyon v. McCrary, 427
U.S. 160, 187-89 [1976]). The assessment of a relationship includes considering the
35
relationship’s “size, purpose, policies, selectivity, congeniality, and other characteristics that in a
particular case may be pertinent.” Stalter v. Orange Cnty., 15-CV-5274, 2016 WL 8711397, at
*7 (S.D.N.Y. Aug. 5, 2016) (citing Roberts, 468 U.S. at 620). Further, “[t]o determine whether
certain familial relationships warrant protection, a court must ‘assess such factors as cohabitation
and the precise degree of kinship.” Norton v. Town of Brookhaven, 33 F. Supp. 3d 215, 234
(E.D.N.Y. 2014) (quoting Patel v. Searles, 305 F.3d 130, 136 [2d Cir. 2002]).
“At the motion to dismiss stage, that assessment [of the relationship’s objective
characteristics] is necessarily premised upon the description of the relationship in the operative
pleadings. Accordingly, the Court looks to the Complaint’s description of the relationship
between Plaintiff and [the person whom he alleged has a relationship] to determine whether it is
the sort of highly personal relationship afforded constitutional protection.” Stalter, 2016 WL
8711397, at *8.
Here, there is no specific relationship or individual cited by Petitioner with whom he is
unable to form or maintain an intimate association with due to the challenged regulations.
Rather, Petitioner alleges that the challenged regulations prohibit his ability to “live in a
transitional adult home, because he wants to live, congregate and associate with persons with
mental illness, where he will not be lonely or isolated, and will have the right to develop intimate
friendships with persons who understand and accept him more.” (Dkt. No. 2, at 16.) Petitioner
also alleges that
there are as many as 6,000 people with serious mental illness residing in
adult homes subject to the Regulations challenged herein. There are
thousands more adults with serious mental illness residing in New York
State, of which Petitioner is one, who now want to, or might in the future
want to, move into what the challenged regulations call a “transitional
adult home”.
(Dkt. No. 2, at 5.)
36
Even affording the most liberal construction to the allegations contained in the Petition,
the Court finds that Petitioner does not allege facts plausibly suggesting that he has an intimate
relationship with the more-than 6,000 unnamed individuals who have been diagnosed with a
SMI and either currently reside in New York State or may so in the future. Therefore, Count
Five of the Petition pursuant to the First Amendment is dismissed.
e.
Count Six (Arbitrary, Capricious, and Irrational)
As stated above in Part I.D. of this Decision and Order, Respondents argue that this
Count of the Petition must be dismissed because the challenged regulations were enacted based
on reasoned and clearly articulated concerns, within the State’s authority, and thus, must be
sustained.
It is well settled that the
standard for judicial review of an administrative regulation is whether the
regulation has a rational basis and is not unreasonable, arbitrary or
capricious. An administrative agency’s exercise of its rule-making powers
is accorded a high degree of judicial deference, especially when the
agency acts in the area of its particular expertise. Accordingly, the party
seeking to nullify such a regulation has the heavy burden of showing that
the regulation is unreasonable and unsupported by any evidence.
Matter of Consolation Nursing Home v. Comm’r of N.Y. State Dept. of Health, 85 N.Y.2d 326,
331 (N.Y. 1995).
“[N]either the possibility of unfairness in a particular case nor the availability of
alternatives to the adopted regulation renders the Secretary’s choice invalid.” Friedman v.
Heckler, 765 F.2d 383, 388 (2d Cir. 1985) (citing Knebel v. Hein, 429 U.S. 288, 294 [1977]).
It is axiomatic that DOH possesses authority to promulgate regulations governing adult
homes. Soc. Servs. Law § 461. The DOH regulation was enacted to further the legislative
objective the “Legislature sought to advance when it enacted SSL Section 461(2), under which
37
the Department of Health and the Offices of the Department of Mental Hygiene are to develop
and promulgate standards for the protection of the health and well-being of adult care facility
residents with mental disabilities.” (Dkt. No. 2, at 23.) Moreover, the DOH regulation sought to
address the fact that OMH “has made a clinical determination that while mixed use, larger scale
congregate housing is an important and viable form of community living, certain housing
settings in which there are a significant number of individuals with serious mental illness are not
conducive to the recover or rehabilitation of the residents.” (Id.)
However, the Complaint alleges facts plausibly suggesting that the regulation categorizes
all persons with mental illness alike (without regard to their individual needs, circumstances,
conditions or desires) based solely on the label of serious mental illness. (Dkt. No. 2, at ¶¶ 37,
80.c, 80.d.) Moreover, the stated purpose of the DOH regulation (which the Court can, and does,
consider as either integral to the Complaint or a matter of which the Court may take judicial
notice) raises questions without providing answers, through use of words such as “certain,”
“significant” and “conducive.” As a result, the Court finds that this challenge by Respondents
would be more appropriately asserted (and evaluated) through a motion for summary judgment
than a motion to dismiss for failure to state a claim.
For all of these reasons, Respondents’ motion to dismiss Count Six is denied.
ACCORDINGLY, it is
ORDERED that Petitioner’s motion to remand (Dkt. No. 20) is DENIED; and it is
further
38
ORDERED that Respondents’ motion to dismiss Petitioner’s Petition (Dkt. No. 27) is
GRANTED in part and DENIED in part, such that (1) Petitioner’s claims regarding the OMH
regulations are DISMISSED, (2) Petitioner’s claims regarding the DOH regulation pursuant to
the Americans with Disabilities Act (Count One), Rehabilitation Act (Count Two), and Fair
Housing Act (Count Three) SURVIVE Respondents’ motion to dismiss, (3) Petitioner’s claims
pursuant to the New York State Human Rights Law (Count Four) and the First Amendment of
the U.S. Constitution (Count Five) are DISMISSED, and (4) Petitioner’s claim that the DOH
regulation is arbitrary, capricious, and irrational (Count Six) SURVIVES Respondents’ motion
to dismiss;
ORDERED that Respondents file an Answer to the Petition within FOURTEEN (14)
DAYS of the date of this Decision and Order pursuant to Fed. R. Civ. P. Rule 12(a)(4)(a), and
that this case is referred back to U.S. Magistrate Judge Christian F. Hummel for a Fed. R. Civ. P.
16 conference and the setting of pretrial scheduling deadlines.
Dated:
July 20, 2018
Syracuse, NY
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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