E.B. by his guardians M.B. and R.B., et al v. Cuomo, et al
Filing
30
ORDERED that the Clerk of Court shall replace Kerry Delaney, former acting Commissioner of OPWDD, with Dr. Theodore Kastner, Commissioner of OPWDD; that the plaintiffs' third and fourth claims are dismissed with prejudice; that the plaintiffs 39; first, second, fifth, and sixth claims are dismissed without prejudice, and the plaintiffs may amend their complaint within 60 days of the date of this decision and order; that the plaintiffs' motion to certify two classes, Docket Item 3 , is denied without prejudice as premature; that if the plaintiffs do not amend their complaint within 60 days, the complaint will be dismissed without further order and the Clerk of Court shall close the case. Signed by Hon. Lawrence J. Vilardo on 07/11/2020. (CEH)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
E.B. ex rel. M.B. and R.B., et al.,
Plaintiffs,
16-CV-735
DECISION & ORDER
v.
ANDREW CUOMO, in his official capacity
as Governor of the State of New York,
and DR. THEODORE KASTNER, in his
official capacity as Acting Commissioner,
New York State Office for People with
Developmental Disabilities,
Defendants.
On September 13, 2016, the plaintiffs, five individuals with developmental
disabilities and their caregivers, filed a complaint under Title II of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-12134, and Section 504 of the
Rehabilitation Act of 1973 (“Section 504”), 29 U.S.C. § 794. Docket Item 1. They
alleged that the defendants, Andrew Cuomo, Governor of New York State, and Dr.
Theodore Kastner, Commissioner of the New York State Office for People with
Developmental Disabilities (“OPWDD”) 1 (collectively, “the state”), unlawfully had denied
them access to OPWDD-funded programs that provide supported and community-
1
Under Rule 25(d) of the Federal Rules of Civil Procedure, “when a public officer
who is a party in an official capacity . . . ceases to hold office while the action is
pending[, t]he officer’s successor is automatically substituted as a party. . . . The court
may order substitution at any time, but the absence of such an order does not affect the
substitution.” The Clerk of Court shall replace Kerry Delaney, the former acting
Commissioner of OPWDD, with Dr. Theodore Kastner, the current Commissioner of
OPWDD.
based residential placements. Id. The plaintiffs also moved that same day to certify two
classes. Docket Item 3.
On December 8, 2016, the defendants moved to dismiss the complaint. Docket
Item 17. The plaintiffs replied on January 17, 2017, opposing dismissal and, in the
alternative, moving for leave to replead. Docket Item 21. The defendants replied on
January 31, 2017. Docket Item 23. 2
For the reasons that follow, this Court grants the defendants’ motion without
prejudice with respect to the plaintiffs’ first, second, fifth, and sixth claims; and with
prejudice with respect to the plaintiffs’ third and fourth claims.
BACKGROUND
The plaintiffs in this matter are comprised of two discrete groups. The
“Residents” are “adults with developmental disabilities who qualify for services from the
[OPWDD]; who are not capable, by virtue of their developmental disabilities, to live in
the community without assistance and support, but who are capable of living in the
community with assistance and support[;] who are presently living . . . with family and/or
related caregiver(s); [and] who would prefer to live in the community in a supported
2
On December 19, 2016, this Court referred the matter to United States
Magistrate Judge H. Kenneth Schroeder, Jr., for all proceedings under 28 U.S.C. §
636(b)(1)(A) and (B). Docket Item 18. Because Judge Schroeder had yet to act on the
instant motions, this Court withdrew that reference on May 18, 2020. See Docket Item
29 (citing 28 U.S.C. § 636(c)(4) (“The court may, for good cause shown on its own
motion, or under extraordinary circumstances shown by any party, vacate a [dispositive]
reference of a civil matter to a magistrate judge under [section 636(c)].”); Cooley v. Foti,
1988 WL 10166, at *2 (E.D. La. Feb. 5, 1988) (“The withdrawal of a reference made to
the magistrate without the consent of the parties pursuant to [section] 636(b), of course,
requires no greater showing than the withdrawal of a reference made pursuant
to [section] 636(c).”)).
2
residential setting but cannot because there are insufficient available appropriate
residential settings.” Docket Item 1 at 4. And the “Caregivers” are “the parents and/or
related caregivers who provide housing, care and services to [the Residents],” even
though they “are not legally obligated to do so . . . [and] would prefer that [the
Residents] live in the community in a supported residential setting.” Id. at 4-5.
At issue is the state’s alleged policy of providing supported, community-based
residential placements only to those individuals with disabilities who are in “an acute
emergency or crisis,” such as being at “imminent risk of harm to themselves or others”
or “in imminent danger of homelessness.” Id. at 11. This prioritization policy results
from the state’s provision of fewer than 1,500 such placements each fiscal year, falling
far short of the slots needed to meet the demands of the 11,000 “eligible” individuals on
the program’s waiting list. Id. Because the Caregivers are able and willing to provide
housing and care to the Residents, the Residents have not received one of these
placements. Id.
DISCUSSION
I.
LEGAL STANDARD
To decide a motion to dismiss for failure to state a claim upon which relief may
be granted, courts “ask whether the complaint contains ‘sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.’” Gamm v.
Sanderson Farms, Inc., 944 F.3d 455, 462 (2d Cir. 2019) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). “The court accepts as true all well-pleaded factual allegations in
the complaint [and] draws all reasonable inferences in favor of the nonmoving
party.” Id. (citation omitted). “Dismissal is inappropriate unless it appears beyond doubt
3
that the plaintiff can prove no set of facts which would entitle him or her to relief.”
Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citation omitted). But
courts “are not bound to accept as true a legal conclusion couched as a factual
allegation,” nor will “a formulaic recitation of the elements of a cause of action” suffice.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).
II.
THE ADA AND SECTION 504
“The ADA was enacted to ‘provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities.’” Henrietta D. v.
Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (quoting 42 U.S.C. § 12101(b)(1) (2000)).
“Both Title II of the ADA and [Section 504] protect the rights of disabled individuals to
participate in state-administered or funded services.” Davis v. Shah, 821 F.3d 231, 259
(2d Cir. 2016). Under Title II, “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to discrimination by
any such entity.” 42 U.S.C. § 12132. And under Section 504, “[n]o otherwise qualified
individual with a disability . . . shall, solely by reason of her or his disability, be excluded
from the participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. §
794(a). A “qualified individual with a disability” is defined as “an individual with a
disability who . . . meets the essential eligibility requirements for the receipt of services
or the participation in programs or activities provided by a public entity.” 42 U.S.C. §
12131(2).
4
“Title II’s enforcement provision extends relief to ‘any person alleging
discrimination on the basis of disability.’” Innovative Health Sys., Inc. v. City of White
Plains, 117 F.3d 37, 47 (2d Cir. 1997) (alteration omitted) (quoting 42 U.S.C. §
12133), recognized as superseded on other grounds, Zervos v. Verizon N.Y., Inc., 252
F.3d 163, 171 n.7 (2d Cir. 2001). “Similarly, [Section 504] extends its remedies to ‘any
person aggrieved’ by the discrimination of a person on the basis of his or her disability.”
Id. (quoting 29 U.S.C. § 794a(a)(2)). Because these “enforcement provisions . . .
‘evince[ ] a congressional intention to define standing to bring a private action under
[section] 504 [and Title II] as broadly as is permitted by Article III of the Constitution,’”
both a qualified individual with a disability and an individual subject to discrimination
based on her “association with [such] persons” may bring a claim under either statute.
See id. (citation omitted) (third alteration in original); see also Loeffler v. Staten Island
Univ. Hosp., 582 F.3d 268, 280-82 (2d Cir. 2009) (same).
“[Courts] ‘treat claims under the two statutes identically’ in most cases.” Davis,
821 F.3d at 259 (quoting Henrietta D., 331 F.3d at 272). “To state a prima facie claim
under either provision, a plaintiff must establish ‘(1) that she is a qualified individual with
a disability; (2) that she was excluded from participation in a public entity’s services,
programs or activities or was otherwise discriminated against by a public entity; and (3)
that such exclusion or discrimination was due to her disability.’” Id. (quoting Fulton v.
Goord, 591 F.3d 37, 43 (2d Cir. 2009)). “Additionally, to establish a violation [of Section
504], a plaintiff must show that the defendants receive federal funding.” Henrietta D.,
331 F.3d at 272 (citing Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998)).
5
The parties do not dispute that the plaintiffs adequately have alleged the first,
second, and fourth elements. The parties do, however, dispute whether the plaintiffs
have met their burden with respect to the third element—that is, whether the complaint
plausibly alleges that the state has excluded the Residents from access to supported,
community-based residential placements because of, or on the basis of, their
disabilities. The Court first addresses the Residents’ theories of discrimination and then
turns to the Caregivers’.
III.
RESIDENTS’ CLAIMS
To establish discrimination on the basis of disability, a plaintiff may rely on “one
of three theories of liability: disparate treatment, disparate impact, or failure to make a
reasonable accommodation.” Davis, 821 F.3d at 260. This Court understands the
Residents to advance the first theory of liability in two distinct ways. 3 They first allege,
in counts one and two, that the state has violated the ADA’s and Section 504’s
community-integration mandates, as articulated by the Supreme Court in Olmstead v.
L.C. ex rel. Zimring, 527 U.S. 581 (1999). And they also allege, in counts three and
four, that the state unlawfully has treated them differently than others who are similarly
situated.
A.
Counts One and Two: Community-Integration Mandate
The Residents’ first theory is that the state, in denying them access to OPWDD’s
supported, community-based residential placements, has violated the ADA’s and
3
Cf. Davis, 821 F.3d at 260 n.18 (treating the plaintiffs’ Olmstead claim, brought
under both disparate-treatment and reasonable-accommodation theories, as “primarily
pressing” a disparate-treatment claim).
6
Section 504’s community-integration mandate. See Docket Item 1 at 12-16. The state
disagrees, arguing that the integration mandate applies only when an individual with a
disability unjustifiably is at imminent risk of institutionalization, a situation the Residents
do not allege that they face. See Docket Item 17-1 at 16-18.
The Court agrees with the state that the Residents have not plausibly alleged
that they are at imminent risk of institutionalization. But the Court disagrees that home
placement never can violate the community-integration mandate. Nevertheless,
because that theory is insufficiently pleaded, the Court dismisses the Residents’
integration claims with leave to replead.
1.
Olmstead and the Integration Mandate
In Olmstead, the Supreme Court held that if states provide treatment to
individuals with disabilities, they must, within financial reason, do so in the most
community-integrated setting appropriate to each individual’s needs. 527 U.S. at 607.
In that case, two individuals with mental disabilities challenged Georgia’s refusal to
transition them from psychiatric hospitals into community-based living arrangements.
Id. at 593. Justice Ginsburg, writing for the majority, framed the issue as “whether the
proscription of discrimination [in Title II of the ADA] may require placement of persons
with mental disabilities in community settings rather than in institutions” and held that
the answer was “a qualified yes.” Id. at 587. The Court based its holding on “two key
determinations” apparent from the Department of Justice’s implementing regulations:
the integration mandate and the fundamental-alteration defense. Id. at 597-98; see also
id. at 598 (observing that the Department of Justice’s views “warrant[ed] respect”).
7
The integration mandate provides that “[a] public entity shall administer services,
programs, and activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities.” Id. at 592 (quoting 28 CFR § 35.130(d)). “‘[T]he
most integrated setting appropriate to the needs of qualified individuals with disabilities’
. . . mean[s] ‘a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.’” Id. (quoting 28 CFR pt. 35, App. A, p.
450). This regulation, the Court explained, demonstrated that “[u]njustified isolation . . .
is properly regarded as discrimination based on disability.” Id. at 597.
In this regard, the fact that the plaintiffs “had identified no comparison class, i.e.,
no similarly situated individuals given preferential treatment,” was of no moment. Id. at
598. “Congress had a more comprehensive view of the concept of discrimination
advanced in the ADA.” Id. For instance, it had “explicitly identified unjustified
‘segregation’ of persons with disabilities as a ‘fo[rm] of discrimination.’” Id. at 600
(alteration in original) (quoting 42 U.S.C. § 12101(a)(2) (“[H]istorically, society has
tended to isolate and segregate individuals with disabilities, and, despite some
improvements, such forms of discrimination against individuals with disabilities continue
to be a serious and pervasive social problem.”)) (citing 42 U.S.C. § 12101(a)(5)
(“[I]ndividuals with disabilities continually encounter various forms of discrimination,
including . . . segregation.”)). These findings expanded the sorts of conduct cognizable
under the ADA because they demonstrated Congress’s belief (1) that “institutional
placement of persons who can handle and benefit from community settings perpetuates
unwarranted assumptions that persons so isolated are incapable or unworthy of
participating in community life” and (2) that “confinement in an institution severely
8
diminishes the everyday life activities of individuals, including family relations, social
contacts, work options, economic independence, educational advancement, and cultural
enrichment.” Id. at 600-01. Stated differently, unjustified isolation constituted
discrimination per se.
The fundamental-alteration defense tempers—in Justice Ginsburg’s words,
“qualif[ies]”—the integration mandate. It requires that “[a] public entity . . . make
reasonable modifications in policies, practices, or procedures when the modifications
are necessary to avoid discrimination on the basis of disability, unless the public entity
can demonstrate that making the modifications would fundamentally alter the nature of
the service, program, or activity.” Id. at 592 (quoting 28 CFR § 35.130(b)(7)). From this
regulation, it was apparent that states could “resist modifications that ‘would
fundamentally alter the nature of the service, program, or activity.’” Id. at 597 (quoting
28 CFR § 35.130(b)(7)).
Writing for a plurality of the Court, Justice Ginsburg explained that “the
fundamental-alteration component of the reasonable-modifications regulation [allows a
state] to show that, in the allocation of available resources, immediate relief for the
plaintiffs would be inequitable, given the responsibility the [s]tate has undertaken for the
care and treatment of a large and diverse population of persons with mental disabilities.”
Id. at 604. “If, for example, the [s]tate were to demonstrate that it had a comprehensive,
effectively working plan for placing qualified persons with mental disabilities in less
restrictive settings, and a waiting list that moved at a reasonable pace not controlled by
the [s]tate’s endeavors to keep its institutions fully populated, the reasonablemodifications standard would be met.” Id. at 605-06. Stated differently, courts “have no
9
warrant effectively to order displacement of persons at the top of the community-based
treatment waiting list by individuals lower down who commenced civil actions.” Id. at
606; see also id. at 607 (Stevens, J., concurring in judgment) (“If a plaintiff requests
relief that requires modification of a State’s services or programs, the [s]tate may assert,
as an affirmative defense, that the requested modification would cause a fundamental
alteration of a [s]tate’s services and programs.”).
In light of these principles, the Court summarized states’ obligations as follows: A
state must “provide community-based treatment for persons with mental disabilities”
when (1) “the [s]tate’s treatment professionals determine that such placement is
appropriate”; (2) “the affected persons do not oppose such treatment”; and (3) “the
placement can be reasonably accommodated, taking into account the resources
available to the [s]tate and the needs of others with mental disabilities.” Id. at 607. But
the Court explicitly rejected the notion that “the ADA imposes on the [s]tates ‘a standard
of care’ for whatever medical services they render[ ] or . . . requires [s]tates to ‘provide a
certain level of benefits to individuals with disabilities.’” Id. at 603 n.14. Instead,
“[s]tates must adhere to the ADA’s nondiscrimination requirement with regard to the
services they in fact provide.” Id. (emphasis added).
The Residents claim that the state has violated the integration mandate in either
of two ways: (a) placing them at risk of institutionalization or (b) unjustifiably segregating
them from the community. See Docket Item 1 at 12-16. The Court considers the
viability of each theory in turn.
10
2.
The Residents’ Theories of Olmstead Liability
a.
Risk of Institutionalization
The Residents first argue that the state’s method for prioritizing its supported,
community-based residential placements violates the integration mandate because it
places them at unacceptable risk of institutionalization. See Docket Item 1 at 11. The
state counters that such an assertion is too speculative to confer standing. The Court
agrees with the state.
“To establish Article III standing, . . . a plaintiff must show “(1) an ‘injury in fact,’
(2) a sufficient ‘causal connection between the injury and the conduct complained of,’
and (3) a ‘likel[ihood]’ that the injury ‘will be redressed by a favorable decision.’” Knife
Rights, Inc. v. Vance, 802 F.3d 377, 383 (2d Cir. 2015) (quoting Susan B. Anthony List
v. Driehaus, 573 U.S. 149, 157-58 (2014)). “[The] injury must be ‘concrete,
particularized, and actual or imminent; fairly traceable to the challenged action; and
redressable by a favorable ruling.’” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409
(2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010)). “An
allegation of future injury may suffice if the threatened injury is ‘certainly impending,’ or
there is a ‘substantial risk’ that the harm will occur.” Susan B. Anthony List, 573 U.S. at
158 (quoting Clapper, 568 U.S. at 409, 414 n.5). But “‘allegations of possible future
injury’ are not sufficient.” Clapper, 568 U.S. at 398 (emphasis added) (quoting
Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)).
In Davis, the Second Circuit found that a New York statute limiting Medicaid
coverage of orthopedic footwear and compression stockings to a narrow set of medical
conditions—a decision that the state conceded would “severely exacerbate [the
plaintiffs’] ailments, putting them at a substantial risk of requiring institutionalized
11
care”—constituted “discrimination due to disability so as to violate the ADA and
Rehabilitation Act.” 821 F.3d at 260, 264. Reading Olmstead “broad[ly],” the court
found that a state may violate the ADA and Section 504 when it denies individuals with
disabilities a service or support necessary for those individuals to avoid a “serious” or
“substantial risk of institutionalization.” Id. at 260, 263, 264. In support of this
conclusion, the court cited a Department of Justice statement that a plaintiff
need not wait until the harm of institutionalization or segregation occurs or
is imminent’ in order to bring a claim under the ADA. Rather, a plaintiff
establishes a ‘sufficient risk of institutionalization to make out an Olmstead
violation if a public entity’s failure to provide community services . . . will
likely cause a decline in health, safety, or welfare that would lead to the
individual’s eventual placement in an institution.
Id. at 262-63 (emphasis in original) (quoting U.S. Dep’t of Justice, Statement of the
Department of Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C. [“DOJ Olmstead Guidance”], (last
updated June 22, 2011), www.ada.gov/olmstead/q&a_olmstead.htm).
The relevant question therefore is not whether the plaintiffs might someday face
institutionalization; rather, it is whether the plaintiffs can demonstrate that the state’s
prioritization policy “will likely cause a decline in health, safety, or welfare that would
lead to [their] eventual placement in an institution.” Id. at 263 (citation omitted); see also
Forziano v. Indep. Grp. Home Living Program, Inc., 613 Fed. App’x 15, 17 (2d Cir.
2015) (summary order) (finding that the plaintiffs lacked standing and dismissing their
complaint because “[a]lthough [they] posit[ed] that they may be forced to move out of
[their preferred living situation] at some point, such speculative harm [was] insufficient to
confer standing”).
12
Here, the plaintiffs allege that “[o]ver 11,000 persons with developmental
disabilities statewide . . . have requested and are awaiting placement in an appropriate
supported community residential setting.” Docket Item 1 at 11. More than sixty percent
of those individuals currently reside with caregivers “who themselves are experiencing
health or other issues impacting their ability to provide care,” and almost fifty percent
reside with caregivers “over the age of 60.” Id. Because “[fewer] than 1,500 supported
community residential placements statewide will become available . . . in [the upcoming]
fiscal year,” they will be used primarily to meet the needs of “eligible individuals who are
in acute emergency situations, such as being at imminent risk of harm to themselves or
others or who are in imminent danger of homelessness.” Id. As such, “[s]upported
community residential settings . . . will not be [ ] available for other individuals” who, like
the plaintiffs, do not face emergency situations. Id. “In other words,” the Residents
explain in their opposition to the state’s motion to dismiss, “Resident[s] must wait until
their own circumstances have devolved to the point where [they are] at imminent risk of
hurting [themselves] or others, or in danger of homelessness,” at which point they “will
likely have to be institutionalized due to [the state’s] failure to appropriately plan for the
expected transition.” Docket Item 21 at 23.
The Residents’ allegations are too tenuous to establish standing. They allege, in
effect, that their caregivers may become unable to provide care; that they then may not
receive one of the 1,500 available supported, community-based residential placements
(placements they elsewhere concede are specifically reserved for such situations); and
that their health and welfare then may deteriorate to such a level that they require
13
institutional care. This hypothetical chain of events falls short of demonstrating a
“certainly impending” risk of injury.
In short, the plaintiffs have not plausibly alleged that the state’s failure to
immediately provide them with supported, community-based residential placements now
“will likely” result in their institutionalization in the future. See Davis, 821 F.3d at 263.
The Court therefore turns to their alternative Olmstead theory—that home placement
itself constitutes “unjustified isolation.”
b.
Unjustified Isolation
The Residents offer the alternative, and novel, argument that their current living
situation in their relatives’ homes constitutes unjustified isolation. See Docket Item 1 at
13-16. The state responds that an Olmstead claim requires, at a minimum, a
substantial risk of institutionalization and cannot otherwise be premised on a claim of
intra-class discrimination. See Docket Item 17-1 at 16, 20. This Court agrees with the
Residents in the abstract but finds that their complaint, as pleaded, does not allege facts
sufficient to support this theory. It therefore dismisses counts one and two with leave to
replead.
i.
Unjustified Isolation Is Broader than Unjustified
Institutionalization
The integration mandate plainly applies when individuals with disabilities
needlessly are placed in institutional settings. But does it apply when those same
individuals needlessly are placed in non-institutional, but nevertheless more-restrictivethan-necessary, settings? Neither the Supreme Court nor the Second Circuit has
answered this question, but both have suggested the answer is yes.
14
In Olmstead, the Supreme Court held that “undue institutionalization qualifies as
discrimination ‘by reason of . . . disability.’” 527 U.S. at 597-98. But the textual sources
on which the Court relied spoke of “segregation” and “isolation”—not merely
“institutionalization.” See, e.g., 42 U.S.C. § 12101(a)(2) (“[H]istorically, society has
tended to isolate and segregate individuals with disabilities, and, despite some
improvements, such forms of discrimination against individuals with disabilities continue
to be a serious and pervasive social problem.” (emphasis added)); 42 U.S.C. §
12101(a)(5) (“[I]ndividuals with disabilities continually encounter various forms of
discrimination, including . . . segregation.” (emphasis added)); 28 CFR § 35.130(d) (“A
public entity shall administer services . . . in the most integrated setting appropriate to
the needs of qualified individuals with disabilities.” (emphasis added)). So, too, did the
Court itself. See, e.g., Olmstead, 527 U.S. at 597 (“Unjustified isolation . . . is properly
regarded as discrimination based on disability.” (emphasis added)); id. at 613-14
(Kennedy, J., concurring in judgment) (“I deem it relevant and instructive that Congress
in express terms identified the ‘isolat[ion] and segregat[ion]’ of disabled persons by
society as a ‘for[m] of discrimination’ . . . .’” (alterations in original) (citations omitted)).
In short, although Olmstead answered only the question presented—whether the
plaintiffs’ institutionalization constituted discrimination—its rationale for finding in the
affirmative was not limited to that specific scenario.
The Second Circuit’s discussion of Olmstead in Davis similarly suggests that the
integration mandate applies more broadly than only in the institutionalization context. In
Davis, the Second Circuit found that denying medical services that were necessary to
avoid a “serious” or “substantial risk of institutionalization” constituted “unjustified
15
isolation on the basis of . . . disabilit[y] in violation of the integration mandate.” 821 F.3d
at 263-64. Notably, the state conceded that this denial would “severely exacerbate [the
plaintiffs’] ailments, putting them at a substantial risk of requiring institutionalized care.”
Id. at 264. The court therefore had no occasion to decide whether an Olmstead claim
may be premised on something other than institutionalization (or its imminent threat).
But nothing in the opinion suggests that the Second Circuit would limit Olmstead to its
facts. On the contrary, the Second Circuit suggested the opposite by reading Olmstead
“broad[ly].” Id. at 260.
So neither the Supreme Court nor the Second Circuit has ever decided whether
the integration mandate applies outside the context of institutionalization. But several
other courts have addressed that question head on and found that it does apply.
For example, in Steimel v. Wernert, 823 F.3d 902 (7th Cir. 2016), the Seventh
Circuit vacated summary judgment in favor of the defendant state and found that
Indiana may have violated the ADA and Section 504 by limiting certain “community
time” services and supports to individuals who required a nursing-facility level of care.
Id. at 908. As a consequence of the state’s providing these supports “to some persons
with disabilities, but not to [others],” id. at 913, the plaintiffs, who previously had relied
on those services and supports to “enjoy community activities such as eating in
restaurants, visiting flea markets, and window-shopping” had their “community time”
quartered from forty to roughly ten hours per week, id. at 908. The Court reasoned that
although Olmstead “had no occasion” to consider whether “the same evils it had
identified for institutional placements might exist in some settings outside of an
institution,” there was “no reason why the same analysis should not apply” when an
16
individual needlessly is isolated in his home and that “its rationale . . . reaches more
broadly.” Id. at 910. “[I]solation in the home for a person ‘who can handle and benefit
from’ time out in the general community,” the court therefore held, also was
“inconsistent with the integration mandate.” Id.
Although the Seventh Circuit noted that “[t]he plaintiffs provided evidence that
[the restriction placed them at] serious risk of being institutionalized,” its holding
explicitly was not limited to this scenario. Rather, the court said, “the integration
mandate [may be] implicated where the state’s policies have either (1) segregated
persons with disabilities within their homes, or (2) put them at serious risk of
institutionalization.” Id. at 914 (emphasis added); see also id. at 918 (“If [Indiana’s]
programs in practice allow persons with disabilities to leave their homes only 12 hours
each week, cooping them up the rest of the time, or render them at serious risk of
institutionalization, then those programs violate the integration mandate unless the state
can show that changing them would require a fundamental alteration of its programs for
the disabled.” (emphasis added)).
Several district courts have reached similar conclusions about the expansive
reach of the integration mandate. In Lane v. Kitzhaber, 841 F. Supp. 2d 1199 (D. Or.
2012), for example, the court denied Oregon’s motion to dismiss claims that the state’s
provision of only sheltered-workshop employment opportunities violated the integration
mandate. Id. at 1204-05. The court rejected Oregon’s argument that because the
plaintiffs “[did] not allege that they [were] at risk for institutionalization, . . . the
integration mandate . . . [did] not cover their claims.” Id. The cases on which the state
relied, the court explained, “were premised upon state action creating a risk of
17
residential institutionalization, [and so] that risk naturally was discussed. However, the
cases [did] not otherwise suggest that such a risk is the sine qua non of a Title II claim.”
Id. at 1205. “To the contrary, the broad language and remedial purposes of the
ADA, the corresponding lack of any limiting language in either the ADA or the
integration mandate itself, and the lack of any case law restricting the reach of the
integration mandate suggest[ed] just the opposite conclusion.” Id. (footnote omitted).
Likewise, in Guggenberger v. Minnesota, 198 F. Supp. 3d 973 (D. Minn. 2016),
the court explained that Olmstead’s “‘two evident judgments’ . . . , discussed . . . in the
context of institutionalized isolation, [could] be applied equally to other forms of
segregation that exclude individuals with disabilities from ‘participating in community life’
and ‘diminish[ ] [their] everyday life activities’ in a wide range of settings.” Id. at 1027.
(third and fourth alterations in original) (quoting Olmstead, 527 U.S. at 600-01).
“[U]njustified isolation [therefore was] properly regarded as discrimination based on
disability’ beyond the limited scope of institutionalization.” Id. (quoting Olmstead, 527
U.S. at 597). And the plaintiffs, who were “between the ages of twenty-two and twentyfive and reside[d] at home with their parents,” met the pleading standard. Id. at 987.
They had been “deemed eligible” for a state program that provided supports and
services to facilitate independent living but had spent more than three years on a
waiting list for that program. Id. In addition, the plaintiffs specifically alleged that they
“wishe[d] to move out of [their] parents’ home[s]” because they “[felt] isolated from the
community in [their] current living arrangement[s],” “[sought] independence and
integration into the community on a social, cultural and vocational level and desire[d]
18
interaction with peers with disabilities and without disabilities.” Id. at 1029 (citations
omitted).
In short, the plaintiffs’ theory of liability here may be novel in the Second Circuit,
but it has been tested and approved elsewhere.
What is more, the Department of Justice has embraced broader interpretations of
the ADA and Section 504 than a literal reading of those statutes might suggest.
Department of Justice guidance explains:
Integrated settings are those that provide individuals with disabilities
opportunities to live, work, and receive services in the greater community,
like individuals without disabilities. Integrated settings are located in
mainstream society; offer access to community activities and opportunities
at times, frequencies and with persons of an individual’s choosing; afford
individuals choice in their daily life activities; and [ ] provide individuals with
disabilities the opportunity to interact with non-disabled persons to the
fullest extent possible.
DOJ Olmstead Guidance. “Because the integration mandate ‘is a creature of the
[DOJ’s] own regulations,’ [the] DOJ’s interpretation of that provision is ‘controlling unless
plainly erroneous or inconsistent with the regulation.’” Davis, 821 F.3d at 263 (alteration
in original) (quoting Auer v. Robbins, 519 U.S. 452, 461 (1997)); see also Olmstead,
527 U.S. at 598 (“[T]he well-reasoned views of the agencies implementing a statute
constitute a body of experience and informed judgment to which courts and litigants
may properly resort for guidance.” (quoting Bragdon v. Abbott, 524 U.S. 624, 642
(1998))).
And “the legislative history [of the ADA] makes clear that Congress considered
the provision of segregated services to individuals with disabilities a form of
discrimination prohibited by the ADA.” L.C. by Zimring v. Olmstead, 138 F.3d 893, 898
(11th Cir. 1998), aff’d in part, vacated in part, remanded sub nom. Olmstead v. L.C. ex
19
rel. Zimring, 527 U.S. 581 (1999) (citing S. Rep. No. 101-116 at 20 (1989) (noting a
“compelling need to provide a clear and comprehensive national mandate . . . for the
integration of persons with disabilities into the economic and social mainstream of
American life” (emphasis added)); H.R. Rep. No. 101-485, pt. 2, at 29 (1990), as
reprinted in 1990 U.S.C.C.A.N. 267, 310 (listing “segregation” as a form of
“[d]iscrimination against people with disabilities”); H.R. Rep. No. 101-485, pt. 3, at 26,
49-50 (1990), as reprinted in 1990 U.S.C.C.A.N. 449, 472-73 (“The ADA is a
comprehensive piece of civil rights legislation which promises a new future: a future of
inclusion and integration, and the end of exclusion and segregation. . . . The purpose of
Title II is to continue to break down barriers to the integrated participation of people with
disabilities in all aspects of community life, . . . [and] integrated services are essential to
accomplishing the purposes of Title II. . . . Separate-but-equal services do not
accomplish this central goal and should be rejected.”); id. at 26, as reprinted in 1990
U.S.C.C.A.N. at 448-49 (“[S]egregation for persons with disabilities ‘may affect their
hearts and minds in a way unlikely ever to be undone.’” (quoting Brown v. Board of
Educ., 347 U.S. 483, 494 (1954)))).
Finally, the Residents’ expansive theory of integration fits comfortably with the
“familiar canon of statutory construction that remedial legislation should be construed
broadly to effectuate its purposes.” Henrietta D., 331 F.3d at 279 (quoting Tcherepnin
v. Knight, 389 U.S. 332, 336 (1967)). The “ADA and Rehabilitation Act [are] both
remedial statutes.” Id. (citations omitted). And even if the 1999 Olmstead court—or the
2016 Davis court—would not have considered home placement to be a segregated
setting, “societal attitudes and the responses of public authorities [change] from time to
20
time.” Olmstead, 527 U.S. at 609 (Kennedy, J., concurring). So today, the most
integrated setting, as discussed below, plausibly may be a community-based residential
setting rather than the family home.
In sum, the Residents need not allege that they face an imminent risk of
institutionalization to plead a viable claim under the ADA’s and Section 504’s integration
mandates. Allegations of unjustified segregation suffice.
ii.
Allegations of Disparate Treatment Are Not Required
Under Olmstead
The state also argues that, even assuming the integration mandate
encompasses unjustified isolation in a non-institutional setting, the plaintiffs’ claims still
fail because what they really are alleging is that they have been treated differently than
other individuals with disabilities on a basis other than disability (that is, the availability
of voluntary caregivers). See Docket Item 17-1 at 19. According to the state, such
intra-class discrimination claims, premised on a classification other than disability, are
not cognizable under the ADA and Section 504. See id. at 20. Although this argument
is relevant to the Residents’ disparate-treatment claim discussed below, it does not
affect their Olmstead integration claims.
In Davis, the Second Circuit rejected the state’s argument that there was no
discrimination because the challenged statute “simply allocate[d] limited state resources
among disabled individuals.” 821 F.3d at 260 (emphasis in original). In so holding, the
court found it irrelevant that the challenged statute limited a certain support to
individuals with disabilities who also had “a narrow set of medical conditions.” Id. at
261. Claims premised on the integration mandate, the court explained, did not require
the plaintiff to “identif[y] a ‘comparison class.’” Id. (quoting Olmstead, 527 U.S. at 598).
21
Rather, allegations of “‘unjustified isolation’ of disabled individuals in institutionalized
care facilities constitutes discrimination on the basis of disability under the ADA.” Id. at
262 (quoting Olmstead, 527 U.S. at 597). That is so because “[i]n order to receive
needed medical services, persons with mental disabilities must, because of those
disabilities, relinquish participation in community life they could enjoy given reasonable
accommodations, while persons without mental disabilities can receive the medical
services they need without similar sacrifice.” Olmstead, 527 U.S. at 601. In other
words, unjustified isolation constitutes per se discrimination on the basis of disability—
no comparator class is necessary. 4 So the fact that some individuals with disabilities
received the service while others did not, far from defeating the plaintiffs’ claim, in fact
was central to their claim.
4
See also Amundson ex rel. Amundson v. Wis. Dep’t of Health Servs., 721 F.3d
871, 874 (7th Cir. 2013) (“[D]iscrimination’ as used in [Title II of the ADA] includes not
only disparate treatment of comparably situated persons but also undue
institutionalization of disabled persons, no matter how anyone else is treated.”
(emphasis in original) (citing Olmstead, 527 U.S. at 597-603)); Fisher v. Okla. Health
Care Auth., 335 F.3d 1175, 1181 (10th Cir. 2003) (explaining that the integration
mandate requires “public entities . . . to ‘make reasonable modifications in policies,
practices, or procedures’ in order to avoid the discrimination inherent in the unjustified
segregation of the disabled” (emphasis added) (quoting 28 CFR § 35.130(b)(7)); Joseph
S. v. Hogan, 561 F. Supp. 2d 280, 290 (E.D.N.Y. 2008) (“[U]nnecessary segregation of
individuals with mental illness is discrimination per se and a violation of the ADA; no
demonstration of differential treatment between individuals with mental illness and those
without is required.”); see also DOJ Olmstead Guidance (“[A]n Olmstead claim is
distinct from a claim of disparate treatment or disparate impact and accordingly does
not require proof of those forms of discrimination.”); cf. Henrietta D., 331 F.3d at 273
(holding that “a Title II plaintiff who wishes to proceed on a reasonable accommodation
theory” need not “also establish disparate impact” because “the ‘concept of
discrimination’ embraced by the ADA” does not “demand[ ] that plaintiffs identify a
‘comparison class’ of ‘similarly situated individuals given preferential treatment’”
(quoting Olmstead, 527 U.S. at 598)).
22
Similarly, in Townsend v. Quasim, 328 F.3d 511 (9th Cir. 2003), the Ninth Circuit
found that the State of Washington had violated the integration mandate by providing
only some individuals with disabilities the “option of receiving long-term living assistance
and medical care in their own homes or adult family homes in the community.” Id. at
514. More specifically, while the “categorically needy” (defined by financial resources)
had their choice of settings, the “medically needy” were limited to receiving “long-term
medical care and living assistance in nursing home settings . . . or not at all.” Id. The
Ninth Circuit framed the issue as “not whether the state must provide the long term care
services sought by . . . the [medically needy]—the state [was] already providing these
services—but in what location these services [must] be provided.” Id. at 517.
Significantly, in noting that Washington already provided the services sought by the
medically-needy plaintiffs, the court referred not to the state’s provision of these
services to categorically-needy individuals but instead to its provision of these services
in “the nursing home setting.” Id. In other words, what mattered was not that only some
of those with disabilities received the services at issue (i.e., disparate treatment vis-à-vis
individuals with disabilities), but instead that the state provided services necessary to
the plaintiffs’ achieving greater community-integration (“assistance in dressing, bathing,
preparing meals, taking medications, and so on”) only in a segregated setting (i.e., per
se discrimination-by-isolation vis-à-vis individuals without disabilities). Id. The court
remanded to the district court for a determination of whether “providing [these] services
in community-based settings would fundamentally alter the nature of the services
[Washington] currently dispenses to [the medically needy].” Id. at 518.
23
In short, while the Residents’ allegations implicitly allege disparate treatment visà-vis other individuals with disabilities on a basis other than disability status (that is, the
availability of relatives who can be caregivers), that allegation is not relevant to their
Olmstead claim. An Olmstead claim inherently alleges disparate treatment vis-à-vis
individuals without disabilities and thus satisfies the requirement that an individual
demonstrate exclusion “by reason of [her] disability.” 42 U.S.C. § 12132; cf. Arc of
Wash. State Inc. v. Braddock, 427 F.3d 615, 621-22 (9th Cir. 2005) (affirming grant of
summary judgment to state on fundamental-alteration defense where plaintiffs alleged
integration mandate violation because they had been placed on a waiting list for
community-based care that “[was] available to all Medicaid-eligible disabled persons as
slots become available, based only on their mental-health needs and position on the
waiting list”). What matters is that the plaintiffs have some disability and allegedly are
denied a service necessary to avoid segregation. Whether or not the plaintiffs also
allege disparate treatment is irrelevant. The state therefore is incorrect that the
Residents’ claims are defeated by their separate allegations of intra-class disparate
treatment.
iii.
The Plaintiffs Have Not Plausibly Alleged that They Are
Segregated in Their Homes
Having decided that the integration mandate is neither limited to claims that
individuals with disabilities face a risk of institutionalization nor defeated by incidental
claims of intraclass discrimination, the question becomes whether the Residents
adequately have pleaded that they, in fact, are subject to unjustified isolation. In that
regard, the question is whether the Residents plausibly have alleged that the state has
denied them placement in the “most integrated setting appropriate to their needs”—that
24
is, that that their family homes are not the setting that “enables [them] to interact with
non-disabled persons to the fullest extent possible.” 28 C.F.R. § 35.130(d) & App; see
also DOJ Olmstead Guidance (“Integrated settings are those that provide individuals
with disabilities opportunities to live, work, and receive services in the greater
community, like individuals without disabilities. Integrated settings are located in
mainstream society; offer access to community activities and opportunities at times,
frequencies and with persons of an individual’s choosing; afford individuals choice in
their daily life activities; and, provide individuals with disabilities the opportunity to
interact with non-disabled persons to the fullest extent possible.”). The Court answers
that question in two parts: First, is it possible, in an abstract sense, that home
placement might not be the most integrated setting? And second, have the plaintiffs
pleaded facts in support of such a claim?
The abstract, theoretical injury here is no different than that identified in
Olmstead. In the same way that “institutional placement of persons who can handle
and benefit from community settings perpetuates unwarranted assumptions that
persons so isolated are incapable or unworthy of participating in community life,”
Olmstead, 527 U.S. at 600, so too might forcing adult children to live with their families
reflect a belief that such individuals are unworthy—or at least incapable—of the same
independent lifestyles expected of their peers without disabilities. And in the same way
that “confinement in an institution severely diminishes the everyday life activities of
individuals, including family relations, social contacts, work options, economic
independence, educational advancement, and cultural enrichment,” id. at 601, so too
might living at home diminish an adult’s independence and capacity to assert, develop,
25
and pursue her own interests and goals. Indeed, “although family relations might be
enhanced at home if people are around, isolation in a home may often be worse than
confinement to an institution on every other measure of ‘life activities’ that Olmstead
recognized.” Steimel, 823 F.3d at 911.
The Court recognizes Department of Justice guidance that “in cases involving
residential segregation in institutions or large congregate facilities, remedies should
provide individuals opportunities to live in their own apartments or family homes, with
necessary supports.” DOJ Olmstead Guidance (emphasis added). But the fact that the
Department of Justice lists the family home as one example of an appropriately
integrated setting does not ipso facto meant that the family home is the most integrated
setting for every individual with a disability. That same guidance provides that
“[r]emedies should focus on expanding the most integrated alternatives,” id., and thus
contemplates a range of options. While the most integrated setting appropriate to the
needs of one individual may be a group home rather than a psychiatric hospital, for
someone else such a placement may be too restrictive. Similarly, for some individuals
the family home may be the most integrated setting appropriate to their specific,
individual needs; for others it may be too restrictive. The inquiry focuses on the
individual’s needs and does not categorically declare any given setting the “most”
integrated.
But the theoretical plausibility of the Residents’ claims does not suffice to survive
a motion to dismiss. They must further allege “sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Gamm, 944 F.3d at 462
26
(quoting Iqbal, 556 U.S. at 678). And in this respect, the Residents have not met their
burden.
The Residents allege that the state has “excluded [them] from participation in the
OPWDD’s residential program,” a decision that “effectively segregates [the p]laintiffs
from participation in the community.” Docket Item 1 at 13, 15. This alleged exclusion
“violates [the state’s] obligation to administer services, programs, and activities in the
most integrated setting appropriate to the needs of qualified individuals with disabilities”
and “infantilizes [the Residents] by forcing [them] to live with family caregivers rather
than in the community with peers.” Id. at 14, 15. They further allege that “[s]uch
unjustified isolation constitutes discrimination based on disability.” Id. The Residents,
each of whom is in her twenties or thirties, also claim that they are “capable of” and
would “prefer” living in “the community in a supported residential setting,” rather than
their sexagenarian caregivers. See id. at 6-9.
The Residents have done no more than assert “legal conclusion[s] couched as
factual allegation[s]” and provide “a formulaic recitation of the elements of [the] cause of
action.” See Twombly, 550 U.S. at 555. Such conclusory assertions do not suffice to
survive a motion to dismiss. But because the Residents’ claims are not implausible as a
matter of law, the Court grants the plaintiffs leave to amend their complaint, if possible,
to allege facts showing that their home placements effectively segregate them—
perhaps in the manner described by the Department of Justice. 5 The Residents also
5
Under Rule 15(a) of the Federal Rules of Civil Procedure:
(1) A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
27
should clarify the precise parameters of the “Hobson’s choice” faced by their caregivers.
See Docket Item 1 at 21. In other words, what consequence would follow from the
caregivers’ simply refusing, tomorrow, to voluntarily provide care for the Residents?
3.
Fundamental-Alteration Defense
In the interests of judicial economy, the Courts notes that in amending their
pleadings, the Residents need not allege facts addressing any possible fundamentalalteration defense that may be raised by the state. It is true that a state may defeat a
community-integration mandate claim by showing that “the placement can[not] be
reasonably accommodated, taking into account the resources available to the [s]tate
and the needs of others with mental disabilities.” Olmstead, 527 U.S. at 607 (plurality
opinion). But the fundamental-alteration argument is an “affirmative defense.” Id.
(Stevens, J., concurring in judgment); see also Brown v. D.C., 928 F.3d 1070, 1077
(D.C. Cir. 2019) (“[T]he State bears the burden of proving the unreasonableness of a
(B) if the pleading is one to which a responsive pleading is required,
21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) In all other cases, a party may amend its pleading only with the opposing
party’s written consent or the court’s leave. The court should freely give
leave when justice so requires.
Id. This liberal standard “is consistent with [the Second Circuit’s] ‘strong preference for
resolving disputes on the merits.’” Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d
Cir. 2011) (quoting New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)).
Because the plaintiffs now have the benefit of a ruling, they may, if possible,
amend their complaint to set forth a cognizable claim. See Loreley Fin. (Jersey) No. 3
Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015) (“Without the benefit of
a ruling, many a plaintiff will not see the necessity of amendment or be in a position to
weigh the practicality and possible means of curing specific deficiencies.”).
28
requested accommodation once the individual satisfies the first two requirements.”);
Steimel, 823 F.3d at 916 (“It is the state’s burden to prove that the proposed changes
would fundamentally alter their programs”—that is, “that its criteria are ‘necessary for
the provision’ of the [services at issue].”).
So the state ultimately may defeat the plaintiffs’ claims by showing that providing
supported, community-based residential placements to the plaintiffs would require it to
unfairly reduce the level of services and supports it presently provides to others with
disabilities. Or the state might show that it has “a comprehensive, effectively working
plan for placing qualified persons with mental disabilities in less restrictive settings, and
a waiting list that moved at a reasonable pace not controlled by the [s]tate’s endeavors
to keep its institutions fully populated.” Olmstead, 527 U.S. at 605-06. In that case, this
Court would “have no warrant effectively to order displacement of persons at the top of
the community-based treatment waiting list by individuals lower down who commenced
civil actions.” Id. at 606. But that argument is not appropriately considered at the
pleadings stage. See, e.g., Mental Disability Law Clinic v. Hogan, 2008 WL 4104460, at
*15 (E.D.N.Y. Aug. 28, 2008) (“Although plaintiff has not alleged the placement can be
reasonably accommodated, taking into account (a) the resources available to the State
and (b) the needs of others with mental disabilities, it would be inappropriate to dismiss
on these claims on this ground as defendants bear the burden of establishing
‘fundamental alteration’ as a defense.” (citations omitted)); Martin v. Taft, 222 F. Supp.
2d 940, 972 (S.D. Ohio 2002) (“[W]hether [the] requested relief would entail a
fundamental alteration is a question that cannot be answered in the context of a motion
to dismiss.”).
29
B.
Counts Three and Four: Disparate Treatment Claims
The Residents’ third and fourth claims allege that the state has treated them
differently from other individuals with disabilities. That is to say, they allege that the
defendants impermissibly discriminated between two classes of individuals with
disabilities: those who have willing caretakers and those who do not, offering only the
latter supported, community-based residential placements. The state contends that
such intra-class allegations of disparate treatment cannot support a discrimination
claim. 6 The Court agrees with the defendants on the facts of this case and accordingly
dismisses those claims.
Even assuming that the ADA and Section 504 recognize claims of intra-class
discrimination, 7 the Residents have not alleged any facts supporting such a claim. They
allege that the state has prioritized individuals in “emergency” situations over individuals
6
To the extent the state’s argument is that it has made reasonable choices in
allocating limited resources, as discussed above, such a fundamental-defense
argument may not be used to dismiss claims at the pleading stage.
7
In Amundson ex rel. Amundson v. Wisconsin Department of Health Services,
for example, the Seventh Circuit posited that “[i]f Wisconsin [bought] the best available
care for persons with visual impairments, but pa[id] only for mediocre care for the
developmentally disabled, then [the] plaintiffs [would] have a theory of discrimination
even though all of them remain[ed] in group homes.” 721 F.3d 871, 874 (7th Cir. 2013)
(Easterbrook, C.J.). The Court cited Olmstead, in which the Supreme ”g[a]ve[ ] as an
example [of intra-class discrimination] O’Connor v. Consolidated Coin Caterers
Corp., 517 U.S. 308, 312 (1996), which concluded that discrimination against older
persons within the class of all persons protected by the Age Discrimination in
Employment Act—say, favoring 45 year olds over 60 year olds—could violate that
statute.” Id. (citing Olmstead, 527 U.S. at 598 n.10). But because the Amundson
plaintiffs “ha[d] not offered any comparison group or any standard by which ‘worse
treatment’ could be identified,” their claim could not survive. Id.; see also Nelson v.
Milwaukee Cty., 2006 WL 290510, at *5 (E.D. Wis. Feb. 7, 2006) (“[T]o the extent that
plaintiffs allege that defendants are treating them worse than persons with less severe
disabilities, they may proceed as such claims allege differential treatment by reason of
disability.”).
30
who have “caregivers” willing and able to provide safe homes for them. Docket Item 1
at 11. Such a claim fails to allege that the state is treating the plaintiffs differently “by
reason of [their] disability[ies].” 42 U.S.C. § 12132 (emphasis added). The Residents’
third and fourth claims therefore are dismissed with prejudice because amendment
would be “futile.” See Chunn v. Amtrak, 916 F.3d 204, 208 (2d Cir. 2019) (citation
omitted).
IV.
CAREGIVERS’ ASSOCIATIONAL CLAIMS
Finally, the Court considers whether the Caregivers plausibly have alleged that
the state has discriminated against them on the basis of their association with the
Residents. And because the Court dismisses the Residents’ disparate treatment
claims, the question is whether the Caregivers may allege discrimination based on their
association with individuals whose statutory right to integration has been denied.
The Second Circuit has explained that “to gain entry to the courts, non-disabled
parties bringing associational discrimination claims need only prove [(1)] an
independent injury [(2)] causally related to the denial of federally[-]required services to
the disabled persons [(3)] with whom the non-disabled plaintiffs are associated.”
Loeffler, 582 F.3d at 279 (Wesley, J., concurring and stating the opinion of the court on
this issue). In Loeffler, the court found this standard satisfied when two children were
“compelled to provide sign language interpretation” for their hearing-impaired father
while he was hospitalized, “forced [into] truancy from school, and involuntary[il]y
expos[ed] to their father’s suffering.” Id. The court noted that the plaintiffs “[did] not
claim that the [defendant hospital’s] failure to provide a sign language interpreter injured
them by preventing their father from coming home earlier or from providing care and
31
support. Instead, they claim[ed] that they were forced to provide a service as a result of
the [h]ospital’s failure to honor its federally[-]imposed obligation.” Id. at 281.
Here, the Caregivers allege that they “have no legal obligation to provide care and
services to [the Residents],” Docket Item 1 at 20, 22, and do so “only . . . out of love and
the necessity forced upon them by [the state’s] failure to meet their legal obligations,” id.
at 21, 23. The Court agrees that such a claim mirrors that found viable by the Second
Circuit in Loeffler.
The state makes much of the fact that the discrimination underlying the instant
associational claim is for failure to integrate—not for disparate treatment or, as in
Loeffler, failure to accommodate. See Docket Item 23 at 17-20. But the state provides
no persuasive reason why this distinction should be material. The Court in Olmstead
was clear that “[u]njustified isolation . . . is properly regarded as discrimination based on
disability.” 527 U.S. at 597. It therefore follows that “[u]njustified isolation” (so long as it
satisfies the other requirements of Olmstead, including not requiring the state to
fundamentally alter its programming) constitutes “the denial of federally[-]required
services to the disabled persons.” See Loeffler, 582 F.3d at 279. And being forced to
provide care and services constitutes an “independent injury” that is “causally related” to
this denial.
The state also argues that the Caregivers lack standing because they “have no
particularized injury. . . . [I]t appears from the [c]omplaint that the relief sought would be
identical whether or not the [Caregivers] remain parties.” Docket Item 17-1 at 25. The
state reads far too much into the requirement that a plaintiff “must have . . . suffered . . .
[a] ‘particularized’” injury. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016), as
32
revised (May 24, 2016). “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in
a personal and individual way.’” Id. The purpose of this requirement is to ensure that a
plaintiff has a “personal stake in the outcome of the controversy.” Susan B. Anthony
List, 573 U.S. at 158 (quoting Warth v. Seldin, 422 U.S. 490, 498 (1975)).
Even if the Residents and Caregivers seek the same relief, their alleged injuries
are distinct. The Residents allege segregation; the Caregivers allege the forced
provision of care. And although it is possible that retaining the Caregivers as parties to
the action would not materially affect the relief ordered, that is neither necessarily true
nor relevant. On the contrary, it hardly can be argued that the Caregivers do not have a
unique and “personal stake in the outcome of” this case that might shape the Court’s
understanding of the issues and any relief that might be awarded.
The Caregivers therefore have articulated a viable theory of discrimination. But
because the Court has dismissed the Residents’ underlying claims, so too must the
Caregiver claims’ fail. For the same reasons discussed above, however, the Court
grants the Caregivers leave to amend their pleadings.
33
ORDER
In light of the above, IT IS HEREBY
ORDERED, under Rule 25(d) of the Federal Rules of Civil Procedure, that the
Clerk of Court shall replace Kerry Delaney, former acting Commissioner of OPWDD,
with Dr. Theodore Kastner, Commissioner of OPWDD; and it is further
ORDERED that the plaintiffs’ third and fourth claims are dismissed with
prejudice; and it is further
ORDERED that the plaintiffs’ first, second, fifth, and sixth claims are dismissed
without prejudice; the plaintiffs may amend their complaint within 60 days of the date of
this decision and order; and it is further
ORDERED that the plaintiffs’ motion to certify two classes, Docket Item 3, is
denied without prejudice as premature; and it is further
ORDERED that if the plaintiffs do not amend their complaint within 60 days of the
date of this decision and order, the complaint will be dismissed without further order and
the Clerk of Court shall close the case.
SO ORDERED.
Dated: July 11, 2020
Buffalo, New York
/s/ Hon. Lawrence J. Vilardo
LAWRENCE J. VILARDO
UNITED STATES DISTRICT JUDGE
34
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