Surlock et al v. New York State Office for People with Developmental Disabilities et al

Filing 445

MEMORANDUM-DECISION AND ORDER granting 430 Motion to Dismiss: The Court hereby ORDERS that Defendant Delaney's motion to dismiss is GRANTED; and the Court further ORDERS that Defendant Delaney is DISMISSED from this action; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 1/11/2017. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BRADFORD J. SURLOCK, individually and as
next friend of Michael Surlock, and MARY-ANNE
SURLOCK, individually and as next friend of
Michael Surlock,
Plaintiffs,
vs.

5:11-cv-1121
(MAD/DEP)

KERRY DELANEY, Acting Commissioner of the
New York State Office For People With
Developmental Disabilities; AMY HILLARD,
Assistant House Director, Fravor Road IRA;
CORA SPENCER, Fravor Road IRA Direct Care
Staff; and JEANETTE MAYNES, Fravor Road
IRA Direct Care Staff,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF GUSTAVE J. DIBIANCO
62 Cherry Tree Circle
Liverpool, New York 13090
Attorneys for Plaintiffs

GUSTAVE J. DIBIANCO, ESQ.

SUSSMAN & WATKINS
55 Main Street, Suite 6
P.O. Box 1005
Goshen, New York 10924
Attorneys for Plaintiffs

MICHAEL H. SUSSMAN, ESQ.

OFFICE OF WILLIAM J. PORTA
42 Maple Avenue
Hamilton, New York 13346
Attorneys for Plaintiffs

WILLIAM J. PORTA, ESQ.

SMITH, SOVIK, KENDRICK &
SUGNET, P.C.
250 South Clinton Street
Suite 600

MICHAEL P. RINGWOOD, ESQ.
JOHN P. COGHLAN, ESQ.
KAREN G. FELTER, ESQ.

Syracuse, New York 13202-1252
Attorneys for Defendant Delaney
OFFICE OF LESLIE R. LEWIS
23 Genesee Street
New Hartford, New York 13413
Attorneys for Defendant Hillard

LESLIE R. LEWIS, ESQ.

MACKENZIE HUGHES LLP
101 South Salina Street
P.O. Box 4967
Syracuse, New York 13221-4967
Attorneys for Defendant Spencer

JENNIFER PLOETZ WILLIAMS, ESQ.
MARK R. SCHLEGEL, ESQ.

AMDURSKY, PELKY, FENNELL &
WALLEN, P.C.
26 East Oneida Street
Oswego, New York 13126
Attorneys for Defendant Maynes

TIMOTHY J. FENNELL, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Michael Surlock is a profoundly disabled young man who resides in the care and custody
of the State of New York. See Dkt. No. 371 at 9. He has a severe form of autism and an
intelligence quotient in the range of profound to severe mental retardation. See id. Michael is
non-verbal, cannot perform most basic life-sustaining tasks on his own, engages in self-injurious
behavior ("SIB") and requires constant, around-the-clock supervision just to survive. See id.
Michael also suffers from epilepsy and osteoporosis. See id. at 12. In October of 2007, it became
evident that Michael (then twenty five) required full-time care in a residential facility, so his
parents, Bradford and Mary-Anne Surlock, placed him in the care and custody of the New York
State Office for People with Developmental Disabilities ("OPWDD" or the "agency"). See id.
The agency placed him at Fravor Road Individual Residential Alternative ("IRA"), a facility it
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owned and operated in Mexico, New York. See id. Michael's care at Fravor Road was governed
by multiple Skill Acquisition Plans ("SAPs"), Residential Habilitation Plans ("RHPs"), Individual
Plans of Protective Oversight ("IPPOs"), and Behavior Plans. See Dkt. No. 390-1 at ¶ 9. Michael
lived at Fravor Road until December 18, 2012, when the agency moved him to the Central Square
IRA in Central Square, New York. See Dkt. No. 371 at 12.
Michael Surlock and his parents commenced this action on September 21, 2011, asserting
claims for constitutional violations pursuant to 42 U.S.C. § 1983, claims under Title II of the
Americans with Disabilities Act ("ADA"), and claims under New York State common law. See
Dkt. No. 1. Thereafter, Plaintiffs amended the complaint and Judge Mordue granted in part and
denied in part Defendants' joint motion to dismiss the amended complaint. See Dkt. No. 106.1
On September 30, 2015, through seven separate motions, sixteen of the eighteen
Defendants moved for summary judgment on Plaintiffs' claims. In a 128 page MemorandumDecision and Order dated June 8, 2016, the Court dismissed all of Plaintiffs' claims, except for the
following: (1) Plaintiffs' substantive due process claim against Defendant Jeannette Maynes
arising from a March 25, 2011 incident during which Plaintiffs claim that she physically assaulted
Michael; (2) Plaintiffs' substantive due process claim against Defendant Cora Spencer arising
from her alleged pervasive verbal abuse of Michael and an incident in which she allegedly placed
a laundry basket on Michael's head; (3) all of Plaintiffs' claims against Defendant Amy Hillard;
and (4) Plaintiffs' claims for prospective injunctive relief against Defendant Kerry Delaney.2 See

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Defendants were originally all represented by the New York State Attorney General's

Office.
At the time Plaintiffs commenced this action, Courtney Burke was OPWDD's
Commissioner. Burke was succeeded by Defendant Kerry Delaney, who has replaced Burke in
the caption of this matter.
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Dkt. No. 423. In its Memorandum-Decision and Order, the Court noted that, although counsel for
Defendant Delaney filed a motion for summary judgment on behalf of Defendants Gleason,
O'Brien and DiNuzzo, the motion did not seek any relief on behalf of Defendant Delaney. See
id. at 4 n.2. Moreover, Plaintiffs indicated in their response that they intended to "continue all of
their Section 1983 claims for prospective injunctive relief against Kerry Delaney in her official
capacity as OPWDD Commissioner[.]" Dkt. No. 371 at 3 n.5. After noting Plaintiffs' intention,
the Court indicated its belief that it is "unclear from the amended complaint what injunctive relief
Plaintiffs believe that they are entitled to, especially since Michael no longer resides at Fravor
Road. Without the benefit of the parties' guidance, however, Defendant Delaney shall remain in
this action in her official capacity." Dkt. No. 423 at 128 n.26.
Currently before the Court is Defendant Delaney's motion to dismiss for lack of subject
matter jurisdiction.
II. BACKGROUND
For a complete recitation of the relevant factual background, the Court refers the parties to
the June 8, 2016 Memorandum-Decision and Order. See Dkt. No. 423.
III. DISCUSSION
A.

Claims Against Defendant Hillard
In her motion, Defendant Delaney first asks the Court to dismiss the supervisory claims

against Defendant Hillard under the law of the case doctrine. See Dkt. No. 430-1 at 11-13.
According to Defendant Delaney, Plaintiffs' amended complaint and interrogatory responses as to
Defendant Hillard allege that, during her tenure as Assistant House Director of the Fravor Road
IRA, "'house staff reporting to her committed eight medication administration failures and six
reported incidents of staff abuse and/or neglect of M.S., who was admitted on four occasions to
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the emergency room.'" Id. at 11 (quotation omitted). Further, Plaintiffs allege that under
Defendant Hillard's watch, Michael's "wrist splint was not used appropriately, his toileting skills
regressed, and he sustained a number of injuries due to [D]efendant Hillard's failure to properly
supervise and train her staff." Id. at 11-12. Plaintiffs, however, contend that the Court should
deny Defendant Delaney's request to dismiss these claims against Defendant Hillard as
procedurally improper. See Dkt. No. 443 at 6-8. Further, Plaintiffs contend that even if the Court
considers the merits of Defendant Delaney's argument, it should be rejected on the merits. See
id. at 7. Plaintiffs argue that "[t]he sole basis for Delaney's request to dismiss plaintiffs'
supervisory claims against Hillard is that such relief is warranted by the law of the case doctrine
because the court has already granted summary judgment to the other supervisory defendants on
similar claims, and she uses plaintiffs' responses to Hillard's interrogatories to support her
argument. But her reasoning is flawed. Even though plaintiffs' supervisory claims against Hillard
are related to their supervisory claims against the other supervisory defendants, each supervisory
defendant is an individual person potentially subject to supervisory liability for their own actions
or omissions." Id.
Although the Court suspects that the supervisory claims against Defendant Hillard will be
subject to dismissal for the same reasons set forth in the Court's June 8, 2016 MemorandumDecision and Order, the Court declines to dismiss the claim at this time. Defendant Hillard has
not moved for dismissal and it would be improper to grant such relief through Defendant
Delaney's motion to dismiss.
B.

Eleventh Amendment Immunity
Defendant Delaney contends that "[a] straightforward inquiry into Plaintiffs' Amended

Complaint definitively establishes that their remaining allegations are legally insufficient to
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invoke the Ex parte Young exception to Eleventh Amendment immunity." Dkt. No. 430-1 at 15.
According to Defendant Delaney, this Court's June 8, 21016 Memorandum-Decision and Order
"disposed of each and every one of Plaintiffs' allegations concerning an ongoing violation of
federal law, nothing that the only claims remaining concern four isolated allegations of past abuse
against defendants Maynes, Spencer and Hillard." Id. (emphasis in original). Even assuming that
the supervisory claim against Defendant Hillard is not subject to dismissal, Defendant Delaney
argues that Ex parte Young is still not applicable because Plaintiffs' claims are limited to
Michael's tenure as a resident at the Fravor Road IRA. See id. Defendant Delaney argues that a
review of the Amended Complaint and Interrogatory Responses to each Defendant "establishes
that there is not a single allegation that pertains to any OPWDD institution other than Fravor
Road." Id. (emphasis in original). According to Defendant Delaney, Michael no longer resides at
Fravor Road IRA and Defendant Hillard was removed from the Fravor Road IRA at the
conclusion of an investigation into allegations of abuse and has no contact with him or
supervisory responsibilities over any OPWDD employees who continue to work with Michael at
the Central Square IRA. See id. at 15-16. As such, Defendant Delaney argues that, even if the
supervisory claim against Defendant Hillard is not dismissed, she is still entitled to dismissal
because the supervisory claim against Defendant Hillard does not allege an ongoing violation of
federal law. See id.
Defendant Delaney further notes that, "[i]n addition to seeking injunctive relief requiring
the production of a '1:1 aide' for [Michael], Plaintiffs also seek an 'order requiring defendants to
establish a fund with sufficient resources to place [and keep] Michael in . . . an independent living
facility, or other similar arrangement, in which he shall receive constant and direct care and the
other resources his disability requires.'" Dkt. No. 430-1 at 16 (quoting Dkt. No. 53 at 40).
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Defendant Delaney contends that this Court has "no authority to order such relief under Ex parte
Young and its progeny." Id.
The Eleventh Amendment provides a state with sovereign immunity from suit. See
Virginia Office for Protection and Advocacy v. Stewart, 131 S. Ct. 1632, 1638 (2011) (citation
omitted). "[A]bsent waiver or valid abrogation, federal courts may not entertain a private person's
suit against a State." Id. at 1638 (citation omitted). Generally, New York and its agencies enjoy
sovereign immunity from suit in federal court under the Eleventh Amendment. See Woods v.
Rondout Valley Central Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006) (holding that
the Eleventh Amendment extends beyond the states themselves to state agents and state
instrumentalities) (citation omitted).
In 1908, the Supreme Court decided Ex parte Young, 209 U.S. 123 (1908), which
established an exception to the Eleventh Amendment sovereign immunity protection afforded to
the states. "In determining whether the doctrine of Ex parte Young avoids an Eleventh
Amendment bar to suit, a court need only conduct a 'straightforward inquiry into whether [the]
complaint alleges an ongoing violation of federal law and seeks relief properly characterized as
prospective.'" Verizon Md., Inc. v. Pub. Serv. Com'n. of Md., 535 U.S. 635, 645 (2002) (quoting
Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296, 117 S. Ct. 2028, 138 L. Ed.2d 438
(1997) (O'Connor, J., joined by Scalia and Thomas, JJ., concurring in part and concurring in
judgment)). The exception is due to the fact that "[r]emedies designed to end a continuing
violation of federal law are necessary to vindicate the federal interest in assuring the supremacy
of that law." Green v. Mansour, 474 U.S. 64, 68 (1985) (citation omitted). The Supreme Court,
however, has repeatedly held that the Ex parte Young exception is inapplicable when the asserted
claims seek only retroactive relief. See id.; see also Pennhurst, 465 U.S. at 102-03.
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"Under Ex parte Young, the state officer against whom a suit is brought 'must have some
connection with the enforcement of the act' that is in continued violation of the law." In re Dairy
Mart Convenience Stores, Inc. v. Nickel, 411 F.3d 367, 372-73 (2d Cir. 2005) (quoting Ex parte
Young, 209 U.S. at 157). "So long as there is such a connection, it is not necessary that the
officer's enforcement duties be noted in the act." In re Dairy Mart, 411 F.3d at 373. Deciding
whether or not a state official has violated federal law, however, "affects both the initial immunity
inquiry as well as the ultimate decision on the merits." 17A James Wm. Moore et al., Moore's
Federal Practice § 123.40[3][a] (3d ed. 2004); see also In re Dairy Mart, 411 F.3d at 374.
Although Plaintiffs argue that they are seeking prospective injunctive relief, the
allegations in the amended complaint make clear that their claims relate to the care Michael was
receiving at the Fravor Road IRA. See Dkt. No. 53. After Michael was moved to the Central
Square IRA, Plaintiffs amended the complaint and indicated that he no longer resides at the
Fravor Road IRA. See id. at ¶¶ 1, 12. Despite this amendment, the only allegations relating to
the Central Square IRA allege that Michael currently resides there. See id. Nothing in the
amended complaint alleges a continuing pattern of violations occurring at that facility. Further,
no employees of the Central Square IRA were named in the amended complaint. Without such
allegations, it is clear that the amended complaint seeks compensation for past harms, not the
prospective relief permitted by the Ex parte Young exception.
Moreover, as Defendant Delaney correctly notes, this Court's June 8, 2016 MemorandumDecision and Order disposed of each and every one of Plaintiffs' allegations concerning an
alleged ongoing violation of federal law. After that decision, the only claims remaining concern
four isolated allegations of past abuse against Defendants Maynes, Spencer and Hillard. See Dkt.
No. 423 at 126-28. Although Plaintiffs' amended complaint suggests that they seek prospective
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relief, the only remaining allegations pertain to past violations, ending once Michael was moved
from the Fravor Road IRA to the Central Square IRA in 2012. The relief sought, including the
establishment of a fund to pay for Michael's placement and care and a request for one-to-one
staffing, cannot be properly characterized as "prospective." Jackson v. Battaglia, 63 F. Supp. 3d
214, 220-21 (N.D.N.Y. 2014). None of the remaining Defendants have any contact with Michael
in any capacity. Plaintiffs' conclusory assertions that the remaining allegations represent ongoing
substantive due process claims are unpersuasive since Michael no longer resides at the Fravor
Road IRA, and Defendants Maynes, Spencer and Hillard have no contact with him or those who
work at the Central Square IRA where Michael presently resides. See In re Deposit Ins. Agency,
482 F.3d 612, 618 (2d Cir. 2007) (holding that the Ex parte Young exception requires an
"'ongoing violation of federal law'") (quotation omitted). The expenditure of state monies to
establish a fund to care for Michael would not bring the state into conformance with federal law,
but would be intended to compensate Plaintiffs for past acts that are no longer occurring. Such
expenditures are exactly the type of remedy that is prohibited by the Eleventh Amendment.
To the extent that the amended complaint seeks an order "enjoining Defendants from
engaging in abusive or neglectful conduct toward Michael," Plaintiffs lack standing to obtain such
relief. "Past exposure to illegal conduct does not in itself show a present case or controversy
regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects."
O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974). "The injury or threat of injury must be both
'real and immediate,' not 'conjectural' or 'hypothetical.'" Id. at 494. As discussed, Plaintiffs'
claims are now limited to four isolated incidents of abuse that allegedly occurred while Michael
was a resident at the Fravor Road IRA. These isolated incidents, allegedly perpetrated by
individuals who no longer have any contact with Michael, do not create a real and immediate
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threat necessary for Plaintiffs to seek such relief. See City of Los Angeles v. Lyons, 461 U.S. 95,
106-07 (1983).3
Finally, the Court finds that this result is further supported by the fact that discovery in
this matter was limited "to the period during which Michael resided at Fravor Road[.]" Dkt. No.
443 at 10. Moreover, as Plaintiffs acknowledge, the Court previously held that any claims arising
after Michael moved to the Central Square IRA at the end of 2012 must be asserted in a new
lawsuit. See id. In fact, Plaintiffs filed such a lawsuit with the New York State Court of Claims
"arising from specific incidents of abuse and neglect at the Central Square IRA, where Michael
now resides." Id. Although Plaintiffs amended complaint attempted to portray rampant, systemic
failures concerning the care Michael received while at the Fravor Road IRA, those claims were
dismissed when the Court granted the pending motions for summary judgment. The only claims
to survive summary judgment concern four isolated incidents of alleged abuse, which cannot
support Plaintiffs' claim for prospective injunctive relief against Defendant Delaney.
Based on the foregoing, the Court grants Defendant Delaney's motion to dismiss.
IV. CONCLUSION
After carefully reviewing the record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby

Plaintiffs argue that Defendant Delaney's motion should be denied because "they also
continue to have supervisory claims against defendant Hillard in her individual capacity." Dkt.
No. 443 at 9. While the Court has declined to dismiss this claim at this time, the Court
nonetheless finds that this claim is insufficient to support their claim against Defendant Delaney.
Plaintiffs do not dispute the fact that the amended complaint does not contain a single supervisory
claim that is unique to Defendant Hillard. Further, Plaintiffs presented no unique factual
allegations against Defendant Hillard in their supplemental responses to her interrogatories.
Given the Court's determination that the Supervisory Defendants were entitled to summary
judgment as to Plaintiffs' substantive due process claims in its June 8, 2016 MemorandumDecision and Order, Defendant Hillard is almost certainly entitled to the same relief as to the
supervisory claim asserted against her if she should move for such relief.
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ORDERS that Defendant Delaney's motion to dismiss is GRANTED; and the Court
further
ORDERS that Defendant Delaney is DISMISSED from this action; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: January 11, 2017
Albany, New York

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