K.M., parent, on behalf of B.M., a minor child v. New York State Public High School Athletic Association, Inc. et al
Filing
96
DECISION AND ORDER granting in part and denying in part 89 Commissioner's Motion to Dismiss. Signed by Hon. Elizabeth A. Wolford on 3/15/2019. (DPS)
UNITED STATES DISTRICT COURT
MAR 1 5 2019
WESTERN DISTRICT OF NEW YORK
BREWSTER MARSHALL,
DECISION AND ORDER
Plaintiff,
6;I7-CV-06310EAW
V.
NEW YORK STATE PUBLIC HIGH
SCHOOL ATHLETIC ASSOCIATION,
INC., SECTION IV OF NEW YORK
PUBLIC HIGH SCHOOL ATHLETIC
ASSOCIATION, INC., and MARYELLEN
ELIA, in her official capacity as
Commissioner of Education of the State
Of New York,
Defendants.
INTRODUCTION & BACKGROUND
This action was commenced on May 17, 2017, on behalf of Brewster Marshall
("Plaintiff), who suffers from postural orthostatie tachycardia syndrome as well as other
ailments, and who was a high school student within the Horseheads Central School District
(the "District"). (Dkt. 1). Plaintiff has since reached the age of majority and has been
substituted as the new party plaintiff. (Dkt. 58 at 1 n.\-,see Dkt. 57). On August 23, 2017,
Plaintiff filed an amended complaint, alleging that Maryellen Elia, in her official capacity
as Commissioner of Education of the State of New York (the "Commissioner"), the New
York State Public High School Athletic Association, Inc., and Section IV ofthe New York
Public High School Athletic Association, Inc.("Section IV")(collectively, "Defendants")
unlawfully denied him extended athletic eligibility to play a fifth consecutive year of high
school basketball in violation of Title II of the Americans with Disabilities Act, 42 U.S.C.
§ 12132 (the "ADA"), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section
504"). (See Dkt. 19 at 9-11). On December 4, 2017, this Court issued a Decision and
Order denying Plaintiff's motion for a preliminary injunction and denying the
Commissioner's motion to dismiss. (Dkt. 58). Plaintiff has since filed a second amended
complaint (the "SAC"), which remains the operative pleading in this action, and seeks
compensatory damages as well as declaratory and injunctive relief.
(Dkt. 81 ).
All
Defendants have answered the SAC. (Dkt. 84; Dkt. 87; Dkt. 88).
On June 15, 2018, the Commissioner filed a motion to dismiss the SAC or, in the
alternative, a motion for judgment on the pleadings.
(Dkt. 89).
Specifically, the
Commissioner contends that Plaintiff's requests for declaratory and injunctive relief should
be dismissed as moot because the 2017-2018 basketball season is over and Plaintiff is
preparing to graduate, 1 and that the rest of Plaintiff's action be dismissed based on the
doctrines of absolute judicial immunity and absolute legislative immunity. (Dkt. 89-1 at
4-10). In the alternative, the Commissioner contends that Plaintiff has failed to state a
claim for compensatory damages under Section 504 because Plaintiff has insufficiently
According to the Commissioner, Plaintiff's high school graduation was scheduled
for June 23, 2018. (Dkt. 89-1 at 5-6). The SAC alleges that Plaintiff was engaged in his
"final year in high school" (Dkt. 81 at ,r 1), and Plaintiff does not refute the Commissioner's
contention that the 2017-2018 basketball season is over and that his graduation was
imminent (see Dkt. 89-1 at 5-6; Dkt. 93 at 6-8 (arguing that Plaintiff's claims are not
mooted by his graduation)). As of the date of this Decision and Order, it appears based
upon a plain reading of the allegations in the SAC that Plaintiff has graduated.
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alleged that the Commissioner intentionally discriminated against him, and that Plaintiffs
ADA claim for money damages should be dismissed based on sovereign immunity. (Id. at
10-15). Plaintiff opposes the Commissioner's motion in all respects, but he concedes that
"compensatory damages pursuant to the ADA are not available to him from a state
defendant like [the Commissioner]." (Dkt. 93 at 11 n.2).
The Court assumes familiarity with the underlying facts of this litigation, which are
described in more detail in the Court's December 4, 2017, Decision and Order. (Dkt. 58).
For the following reasons, the Commissioner's motion to dismiss the SAC (Dkt. 89) is
granted in part and denied in part.
DISCUSSION
I.
The Commissioner's Motion to Dismiss Pursuant to Rule 12(b)(l)
A.
Legal Standard
Federal courts are courts of limited jurisdiction and possess only that power
authorized by Article III oftqe United States Constitution and statutes enacted by Congress
pursuant thereto. Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). The
party asserting jurisdiction bears the burden of establishing that a court has jurisdiction
over a particular claim. Id. When a movant challenges subject matter jurisdiction, a district
court may "consider affidavits and other materials beyond the pleadings" and "weigh the
evidence and satisfy itself as to the existence of its power to hear the case." Iqbal v. Sec '.Y,
US. Dep't of Homeland Sec., 190 F. Supp. 3d 322, 326-27 (W.D.N.Y. 2016) (citations
omitted). Although "the court must take all facts alleged in the complaint as true and draw
all reasonable inferences in favor of plaintiff," Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir.
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2000), "jurisdiction must be shown affirmatively, and that showing is not made by drawing
from the pleadings inferences favorable to the party asserting it," Shipping Fin. Servs.
Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998).
B.
Plaintiff's Requests for Declaratory and Injunctive Relief are Moot
"The mootness doctrine is rooted in the 'case or controversy' requirement of Article
III of the Constitution, which describes 'the principle that, at all times, the dispute before
the court must be real and live, not feigned, academic, or conjectural."' Pats kin v. Bd. of
Educ. of Webster Cent. Sch. Dist., 583 F. Supp. 2d 422, 428 (W.D.N.Y. 2008) (quoting
Russman v. Bd. of Educ. of Enlarged City Sch. Dist. of City of Watervliet, 260 F.3d 114,
118 (2d Cir. 2001)).
"A case is moot, and accordingly the federal courts have no
jurisdiction over the litigation, when 'the parties lack a legally cognizable interest in the
outcome."' Fox v. Bd. of Trs. of State Univ. of NY., 42 F.3d 135, 140 (2d Cir. 1994)
(quoting County ofLos Angeles v. Davis, 440 U.S. 625,631 (1979)).
The Commissioner argues that Plaintiffs requests for declaratory and injunctive
relief are moot because "the 2017-2018 basketball season has concluded and the [P]laintiff
is in his final school year." (Dkt. 89-1 at 5). The Commissioner also states that Plaintiffs
"graduation after five years of school is imminent as the Horseheads High School
Graduation is to be held on June 23, 2018." (Id. at 5-6). Plaintiff does not submit any
evidence or argument refuting these factual assertions. Instead, Plaintiff contends that
because "it is functionally impossible for a student, like Plaintiff, to have his claim heard
before graduation or the end of the athletic season renders that claim moot[,] . . . the
extraordinary remedy of mandatory injunction" is required in this context. (Dkt. 93 at
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7-8). 2 Plaintiff also argues that because "[i]t is likely that another student will find him or
herself in a situation analogous to Plaintiffs, and would then benefit from a declaratory
judgment stating that Defendant's policies, procedures and practices have subjected
Plaintiff to discrimination in violation of the ADA and Section 504," Plaintiffs request for
declaratory relief is not mooted by his graduation. (Id. at 8).
"The Declaratory Judgment Act permits declaratory relief only in 'a case of actual
controversy."' Tamplenizza v. Josephthal & Co., 32 F. Supp. 2d 702, 703 (S.D.N.Y. 1999)
(quoting 28 U.S.C. § 2201(a)). This statute incorporates "the case or controversy limitation
on federal jurisdiction found in Article III of the Constitution." Niagara Mohawk Power
Corp. v. Tonawanda Band of Seneca Indians, 94 F.3d 747, 752 (2d Cir. 1996). As such,
"[t]he Declaratory Judgment Act is properly invoked where 'there is a substantial
controversy, between parties having adverse legal interests, of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment."' Classic Liquor Importers, Ltd.
v. Spirits Int'! B. V., 151 F. Supp. 3d 451, 454 (S.D.N.Y. 2015) (quoting Md. Cas. Co. v.
Pac. Coal & Oil Co., 312 U.S. 270,273 (1941)). The dispute must "admi[t] of specific
While Plaintiff also argues that his request for compensatory damages is not
rendered moot (Dkt. 93 at 6-7), the Commissioner does not contend that the monetary
remedies asserted in the SAC are moot (see Dkt. 89-1 at 6 (claiming that "all claims for
declaratory and injunctive relief should be dismissed"); but see id. at 4 (stating that
"Plaintiffs lawsuit is moot")). To the extent the Commissioner's motion could be
construed as requesting that the entire action be dismissed as moot, the Court rejects this
proposition because Plaintiffs request for compensatory damages creates a live "case and
controversy" between the parties. See Orozco by Arroyo v. Sobol, 703 F. Supp. 1113, 1117
(S.D.N.Y. 1989) ("Plaintiff correctly notes that a claim for damages remains viable even
though claims for injunctive or declaratory relief are deemed moot." (citing Powell v.
McCormack, 395 U.S. 486,496 (1969))).
2
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relief through a decree of a conclusive character, as distinguished from an opinion advising
what the law would be upon a hypothetical state of facts." Medlmmune, Inc. v. Genentech,
Inc., 549 U.S. 118, 127 (2007) (quoting Aetna Life Ins. Co. ofHartford, Conn. v. Haworth,
300 U.S. 227, 241 (1937)).
In other words, "where 'the remedy sought is a mere
declaration oflaw without implications for practical enforcement upon the parties, the case
is properly dismissed."' S. Jackson & Son, Inc. v. Coffee, Sugar & Cocoa Exch. Inc., 24
F.3d 427,431 (2d Cir. 1994) (quoting Browning Debenture Holders' Comm. v. Dasa
Corp., 524 F.2d 811, 817 (2d Cir. 1975)).
Plaintiff correctly asserts that the Second Circuit has recognized "certain
circumstances [where] it may be possible for a claim for declaratory relief to survive,
notwithstanding the mootness of a companion claim for an injunction." Campbell v.
Greisberger, 80 F.3d 703, 706 (2d Cir. 1996), abrogated on other grounds as recognized
by Green v. Mattingly, 585 F.3d 97, 101 (2d Cir. 2009). "Issuing a declaratory judgment
in an otherwise moot case is only appropriate when the 'behavior complained of is of such
a nature that it might predictably be repeated again,' in which case 'a prior declaratory
judgment may serve the useful purpose of facilitating an injunction at a future date."' 6264 Kenyon St. Hartford, LLC v. City of Hartford, No. 3:16-CV-00617(VAB), 2017 WL
20911, at *4 (D. Conn. Jan. 2, 2017) (quoting Browning Debenture Holders' Comm., 524
F .2d at 816). Nonetheless, Plaintiff's position that this principle applies to this case is
misplaced.
Plaintiff contends that "another student" or "future students" may find a favorable
declaratory judgment rendered in this case, as between Plaintiff and Defendants, beneficial
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to combatting a hypothetical instance of analogous discriminatory conduct under the ADA
and Section 504. (Dkt. 93 at 8). While this Court's issuance of a declaratory judgment of
the kind requested by Plaintiff may very well establish favorable precedent for other
students in similar scenarios, doing so in this case would be tantamount to an advisory
opinion. See generally Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528
U.S. 167, 212-13 (2000) ("A court may not proceed to hear an action if, subsequent to its
initiation, the dispute loses 'its character as a present, live controversy of the kind that must
exist if [the court is] to avoid advisory opinions on abstract propositions of law.'" (quoting
Hall v. Beals, 396 U.S. 45, 48 (1969))).
Here, there is no live case or controversy between the parties to this action that
would permit this Court to issue the declaratory or injunctive relief requested in the SAC.
See, e.g., Tamplenizza, 32 F. Supp. 2d at 703-04 (plaintiff lacked a substantial controversy
warranting declaratory judgment related to a mandatory arbitration agreement where he
failed to allege that "he or any other securities customer" had filed securities fraud claims
"or plans to do so in the immediate future" and merely sought an order "advising him of
his right to choose the forum in which he may or may not bring suit at some undisclosed
time in the future") (emphasis added). As the Second Circuit explained in Browning
Debenture Holders' Committee, declaratory relief is inappropriate where "the remedy
sought is a mere declaration of law without implications for practical enforcement upon
the parties." 524 F.2d at 817 (emphasis added). Here, Plaintiff requests the Court to
determine that his declaratory relief is not mooted because it may benefit other non-party
students during some hypothetical future litigation. However, because Plaintiffs alleged
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injury will not be addressed by any such decree, "the remedy sought is a mere declaration
of law" and is subject to dismissal. Id.
"[S]tudents' declaratory and injunctive claims against the universities that they
attend are mooted by the graduation of the students, because after their graduation and
absent a claim for damages, 'it becomes impossible for the courts, through the exercise of
their remedial powers, to do anything to redress the injury."' Fox, 42 F.3d at 140 (quoting
Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993)); see Cook, 992 F.2d at 19 ("We
agree with Colgate that the end of the ice hockey season and the graduation of the last of
the plaintiffs render this action moot."). Plaintiff further suggests that it is not possible for
his claims or those of any other student in analogous circumstances to receive legal
recourse before the athletic season ends or graduation occurs, and thus it is "functionally
impossible" for such claims requesting injunctive and declaratory relief to be addressed in
time. (See Dkt. 93 at 7-8). In reviewing this argument in tandem with Plaintiff's position
that other students would benefit from a favorable declaratory judgment, it appears Plaintiff
attempts to invoke the exception to the mootness doctrine recognized for situations
"capable of repetition, yet evading review." See generally Van Wie v. Pataki, 267 F.3d
109, 113 (2d Cir. 2001) ("A moot case may still be justiciable, however, if the underlying
dispute is 'capable of repetition, yet evading review.'" (quoting Knaust v. City ofKingston,
157 F.3d 86, 88 (2d Cir. 1998))).
"The exception, however, 'applies only in exceptional situations,' where two
circumstances are 'simultaneously present[.]"' Lillbask ex rel. Mauclaire v. State of Conn.
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Dep 't ofEduc., 397 F.3d 77, 85 (2d Cir. 2005) (quoting Spencer v. Kemna, 523 U.S. 1, 17
(1998)).
In the absence of a class action, the "capable of repetition, yet evading
review" exception will not be applied unless "(1) the challenged action was
in its duration too short to be fully litigated prior to its cessation or expiration,
and (2) there [i]s a reasonable expectation that the same complaining party
would be subjected to the same action again."
Muhammad v. City of NY. Dep't of Corr., 126 F.3d 119, 123 (2d Cir. 1997) (quoting
Murphy v. Hunt, 455 U.S. 478,482 (1982)). The Court acknowledges that Plaintiff-and
likely other students in similar circumstances-must indeed work under a "finite period of
time between ripeness of the claim following the final [administrative] appeal decision and
mootness of the claim once an athletic season has ended." (See Dkt. 93 at 8). Nonetheless,
Plaintiff provides no reason for this Court to expect that "the same complaining party
would be subjected to the same action again." See Christopher P. by Norma P. v. Marcus,
915 F.2d 794, 802 (2d Cir. 1990) ("This exception requires at least the possibility that the
'same complaining party would be subjected to the same action again."' (emphasis added)
(quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975))).
Plaintiff does not suggest that he will ever again be subject to the challenged policies
at issue, but instead, he speculates that unidentified students in the future may benefit from
the declaratory judgment he seeks in this action. (0kt. 93 at 8); see Cook, 992 F .2d at 20
(declining to apply the "capable of repetition, yet evading review" exception where "there
has been no suggestion that [the defendant's] policies will be visited upon any one of [the
complaining parties] in the future"); McFarlin v. Newport Special Sch. Dist., 980 F.2d
1208, 1211 (8th Cir. 1992) (stating that the "capable of repetition, yet evading review"
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exception "does not apply when the issue might recur in someone else's case, but not the
plaintiffs"); Gomes v. R.I. Interscholastic League, 604 F.2d 733, 736 (1st Cir. 1979)
("There remains no live controversy between [the plaintiff] and [the] defendants: the
volleyball season is over and [the plaintiff], having graduated, will never again attempt to
play in interscholastic high school competition."). Furthermore, while "a student's claim
may not be rendered moot by graduation if he or she sued in a 'representational capacity'
as the leader of a student organization," Cook, 992 F.2d at 20, Plaintiff has not alleged that
he is suing in a representational capacity on behalf of other students (see Dkt. 81 ); Mincone
v. Nassau Cty. Cmty. Coll., 923 F. Supp. 398,403 (E.D.N.Y. 1996) (finding the plaintiffs
claims moot where there was no suggestion in the complaint that he was "suing in a
representational capacity on behalf of 'similarly situated' individuals"). In other words,
Plaintiff "may not litigate the claims of students unnamed and unrepresented in this action."
Cook, 992 F.2d at 20.
Therefore, because Plaintiff no longer holds a legally cognizable interest in the
outcome of his requests for declaratory and injunctive relief, they are dismissed as moot.
C.
The Commissioner has Failed to Establish the Applicability of the
Doctrine of Absolute Judicial Immunity
Issues of absolute immunity are properly considered under Rule 12(b)(l). See
Robinson v. Jarris, No. l:07-CV-265, 2008 WL 3979260, at *5 (D. Vt. Aug. 25, 2008)
("Absolute immunity would bar this Court's jurisdiction, resulting in dismissal under Fed.
R. Civ. P. 12(b)(l).").
"Judicial and quasi-judicial immunity are both absolute
immunities." Gross v. Rell, 585 F.3d 72, 81 (2d Cir. 2009), certified question answered,
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304 Conn. 234 (2012). "Judges are granted absolute immunity from liability for acts taken
pursuant to their judicial power and authority .... " Oliva v. Heller, 839 F.2d 37, 39 (2d
Cir. 1988). "The doctrine of quasi-judicial immunity extends absolute immunity to 'certain
others who perform functions closely associated with the judicial process."' Parent v. New
York, 786 F. Supp. 2d 516, 535 (N.D.N.Y. 2011) (quoting Cleavinger v. Saxner, 474 U.S.
193, 200 (1985)), aff'd, 485 F. App'x 500 (2d Cir. 2012).
[J]udicial immunity is not overcome by allegations of bad faith or malice, the
existence of which ordinarily cannot be resolved without engaging in
discovery and eventual trial. . . . Rather, our cases make clear that the
immunity is overcome in only two sets of circumstances. First, a judge is not
immune from liability for nonjudicial actions, i.e., actions not taken in the
judge's judicial capacity. Second, a judge is not immune for actions, though
judicial in nature, taken in the complete absence of all jurisdiction.
Mireles v. Waco, 502 U.S. 9, 11-12 (1991) (citations omitted).
The Second Circuit has advised that "absolute immunity is of a 'rare and exceptional
character."' City of Providence, Rhode Island v. Bats Glob. Mkts., Inc., 878 F .3d 36, 46
(2d Cir. 2017) (quoting Barrett v. United States, 798 F.2d 565, 571 (2d Cir. 1986)), cert.
denied sub nom. BATS Glob. Mkts., Inc. v. City ofProvidence, R.I., 139 S. Ct. 341 (2018).
As such, "courts must examine the invocation of absolute immunity on a case-by-case
basis, and the party asserting immunity bears the burden of demonstrating its entitlement
to it." In re NYSE Specialists Sec. Litig., 503 F.3d 89, 96 (2d Cir. 2007) (citation omitted);
see Victory v. Pataki, 814 F.3d 47, 65-66 (2d Cir. 2016), as amended (Feb. 24, 2016)
("Most executive officials receive only qualified immunity, and the official seeking
absolute immunity bears the burden of showing that such immunity is justified for the
function in question." (quotation and citations omitted)).
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"The Supreme Court has set forth a 'functional' approach to determine whether a
particular individual is entitled to quasi-judicial immunity." Gross, 585 F.3d at 88. Factors
"characteristic of the judicial process" that are used in applying this doctrine include:
(a) the need to assure that the individual can perform his functions without
harassment or intimidation; (b) the presence of safeguards that reduce the
need for private damages actions as a means of controlling unconstitutional
conduct; (c) insulation from political influence; (d) the importance of
precedent; (e) the adversary nature of the process; and (f) the correctability
of error on appeal.
Cleavinger, 474 U.S. at 202. "Because the approach is functional rather than titular, an
official may be absolutely immune from liability with respect to certain functions of his
job, but enjoy only qualified immunity as to others." Gyadu v. Workers' Comp. Comm 'n,
930 F. Supp. 738, 748 (D. Conn. 1996); see Stewart v. Lattanzi, 832 F.2d 12, 13 (2d Cir.
1987) ("If the official acts adjudicatively, the official probably has absolute immunity. If
the official acts executively, the official probably has qualified, good-faith immunity.");
see also Stump v. Sparkman, 435 U.S. 349, 362 (1978) ("The relevant cases demonstrate
that the factors determining whether an act by a judge is a 'judicial' one relate to the nature
of the act itself, i. e., whether it is a function normally performed by a judge, and to the
expectations of the parties, i. e., whether they dealt with the judge in his judicial capacity.").
Accordingly, a court "must conduct 'some factual inquiry' to determine if the duties of the
defendants were judicial[,] ... which entitles them to absolute immunity, or administrative,
which may entitle them to qualified immunity." Victory, 814 F.3d at 66 (quoting Stewart,
832 F.2d at 13).
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In support of her motion, the Commissioner relies upon Cross v. King, No. 14-CV7394 (SJF) (SIL), 2015 WL 6438819 (E.D.N.Y. Oct. 22, 2015), which found thatthe Office
of the New York State Commissioner of Education, "whose function includes the authority
'to examine and decide' petitions challenging school board elections and meetings and who
is authorized to render 'decisions in the matter [that] shall be final and not subject to
review,' is likewise 'functionally comparable' to that of a judge." Id. at *3 (quoting N.Y.
Educ. Law§§ 310, 2037). The Commissioner argues that because an application to extend
Plaintiffs athletic eligibility was filed and then proceeded through the administrative
review process, the Commissioner's order denying Plaintiffs participation during the
2017-2018 basketball season was a judicial or quasi-judicial act that warrants absolute
immunity from all claims arising from that determination. (See Dkt. 89-1 at 7-9; Dkt. 94
at 10-11).
"Plaintiff does not dispute that [the Commissioner's] role in determining the
outcome of his appeal pursuant to Education Law § 310 was a judicial action." (Dkt. 93 at
9). However, Plaintiff argues that quasi-judicial immunity should not apply because "this
lawsuit does not challenge the validity of Defendants['] appeal determination, nor does it
make any claims regarding Education Law§ 310." (Id. at 9-10). Plaintiff further contends
that because the Commissioner "has never made a determination regarding Plaintiffs
request for a reasonable accommodation to the extended eligibility policy, and ... has
taken the position that she is not legally obligated to do so," the Commissioner "cannot be
judicially immune from suit regarding a decision that has not been made .... " (Id. at 10).
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The Commissioner offers no assessment of the "functional approach" outlined
above. Her papers are devoid of any comparative discussion of her role in reviewing an
administrative appeal such as Plaintiffs and the functional role of judges. Instead, the
Commissioner primarily relies upon Cross, but this lone case is insufficient by itself to
demonstrate the applicability of the "rare and exceptional" doctrine of absolute quasijudicial immunity.
Indeed, the facts at issue in Cross are manifestly distinct from those presented here.
In Cross, the court addressed the plaintiffs claim that the Commissioner had improperly
"removed her from her seat" from a school board in violation of due process. Id. at * 1.
New York Education Law vests the Commissioner with the authority to resolve "[a]ll
disputes concerning the validity of any district meeting or election or any of the acts of the
officers of such meeting or election," and provides that the Commissioner's "decisions in
the matter shall be final and not subject to review."
N.Y. Educ. Law § 2037.
In
determining that the Commissioner's role was "'functionally comparable' to that of a
judge," the Cross court found this language persuasive, at least in the context of "petitions
challenging school board elections and meetings." See Cross, 2015 WL 6438819, at *3.
By comparison, the Commissioner's regulation establishing the four-year athletic
eligibility standard (hereinafter, the "Duration of Competition Rule")3 does not clearly
3
The Duration of Competition Rule provides:
A pupil shall be eligible for senior high school athletic competition in a sport
during each of four consecutive seasons of such sport commencing with the
pupil's entry into the ninth grade and prior to graduation, except as otherwise
provided in this subclause, or except as authorized by a waiver granted under
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explain the type of appellate process afforded to a student seeking to contest an unfavorable
athletic eligibility determination. See 8 NYCRR § 135.4(C)(7)(ii)(b)(l)(iii).
"The cluster of immunities protecting the various participants in judge-supervised
trials stems from the characteristics of the judicial process rather than its location." Butz
v. Economou, 438 U.S. 478,512 (1978). Moreover, "the safeguards built into the judicial
process tend to reduce the need for private damages actions as a means of controlling
unconstitutional conduct." Id. Such safeguards include "[t]he insulation of the judge from
political influence, the importance of precedent in resolving controversies, the adversary
nature of the process, ... the correctability of error on appeal, ... [and] the rigors of crossexamination and the penalty of perjury" imposed upon witnesses. Id. Because the question
of "[w ]hether non-judicial officers merit quasi-judicial absolute immunity depends upon
'the functional comparability of their judgments to those of the judge,"' Young v. Selsky,
clause (d) of this subparagraph to a student with a disability. If a board of
education has adopted a policy, pursuant to subclause (a)(4) of this
subparagraph, to permit pupils in the seventh and eighth grades to compete
in senior high school athletic competition, such pupils shall be eligible for
competition during five consecutive seasons of a sport commencing with the
pupil's entry into the eighth grade, or six consecutive seasons of a sport
commencing with the pupil's entry into the seventh grade. A pupil enters
competition in a given year when the pupil is a member of the team in the
sport involved, and that team has completed at least one contest. A pupil
shall be eligible for interschool competition in grades 9, 10, 11 and 12 until
the last day of the school year in which he or she attains the age of 19, except
as otherwise provided in subclause (a)(4) or clause (d) of this subparagraph,
or in this subclause. The eligibility for competition of a pupil who has not
attained the age of 19 years prior to July 1st may be extended under the
following circumstances.
8 NYCRR § 135.4(C)(7)(ii)(b)(l).
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41 F.3d 47, 51 (2d Cir. 1994) (quoting Imbler v. Pachtman, 424 U.S. 409,423 n.20 (1976)),
the Commissioner's failure to set forth the similarities between her role in declining to
address Plaintiffs requested accommodation and the role of a judge is reason alone to
reject her argument, see generally DeRosa v. Bell, 24 F. Supp. 2d 252, 256-57 (D. Conn.
1998) (noting that the plaintiff did not enjoy "any of the safeguard features that make the
hearing stage facially similar to a judicial proceeding" where "the [c]ommissioner made
her decision based on a report prepared by a sister agency and reviewed by her staff, a
police report, her staff members' recommendations and the sworn statement of one witness,
obtained by one ofthe staff members"); cf Rolon v. Henneman, 389 F. Supp. 2d 517,520
(S.D.N.Y. 2005) (stating that "[l]ike judicial proceedings, the arbitration proceedings at
issue incorporated the requisite procedural safeguards," such as appearance by counsel, an
opportunity to present evidence and to cross examine witnesses, a neutral arbitrator, and
the ability to submit argument), aff'd, 517 F.3d 140 (2d Cir. 2008); Johnson v. Kelsh, 664
F. Supp. 162, 165 (S.D.N.Y. 1987) ("Parole revocation hearings are administrative in
nature but they have many of the indicia of judicial proceedings[,] ... such as written notice
of claimed violations; disclosure to the parolee of evidence against him; an opportunity to
confront and cross examine adverse witnesses; a neutral and detached hearing officer; and
a written statement by factfinders of evidence relied upon and reasons for revoking
parole .... "); Ackerman v. State Bd. for Prof'! Med. Conduct, No. 83 CIV. 7871 (DNE),
1984 WL 1258, at *3 (S.D.N.Y. Nov. 13, 1984) (finding the proceedings "adversarial in
nature" where "[t]he licensee is entitled to offer oral or written evidence on his behalf and
to cross-examine witnesses and examine evidence produced against him, a stenographic
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record of the hearings is required, and the licensee is entitled to know the findings and
conclusions on all issues of fact and law").
To this point, it appears the Commissioner never rendered any decision regarding
Plaintiffs request for an accommodation. See Williams v. Trimble, 527 F. Supp. 910, 912
(S.D.N.Y. 1981) ("[T]hat [the defendant] felt no need to make a 'finding or conclusion' as
to [the plaintiffs] constitutional contentions[] also indicates that [the defendant] was not
acting in the formal judicial context alluded to in Butz."). The Court already rejected the
Commissioner's position that the Duration of Competition Rule's waiver provisions
constitute a built-in mechanism that satisfies the modification provisions of the ADA and
Section 504-at least at this stage of these proceedings and without further fact-specific
inquiry into the purposes underlying the rule. (Dkt. 58 at 20). As such, the Court cannot
determine based upon this record that the resolution of the administrative appeal process
provided for under the Duration of Competition Rule constitutes a "judicial act" upon the
issues contested in this case.
Furthermore, the Commissioner's argument suffers from an illogical weakness. The
Commissioner takes the position that ADA and Section 504 claims are not appropriately
raised on administrative appeal. (See Dkt. 58 at 8-9). Thus, if the Court were to conclude
that the Commissioner is absolutely immune from ADA or Section 504 causes of action
by simply affirming the decision not to permit extended athletic eligibility under the
Duration of Competition Rule, there would be little recourse for plaintiffs to challenge the
Commissioner's compliance with these two federal statutes in this context.
- 17 -
Plaintiff does not challenge the validity of the Commissioner's decision to deny him
extended athletic eligibility under the Duration of Competition Rule; rather, Plaintiff
challenges the Commissioner's failure to provide a reasonable accommodation to that
regulation pursuant to the ADA and Section 504. (Dkt. 93 at 9-10). Plaintiff alleges that
he "requested extended athletic eligibility for contact athletics as a reasonable modification
under the ADA" and has "received no response to this reasonable modification request."
(Dkt. 81 at,, 59-60). To be sure, "[c]ourts in this Circuit and others have found judicial
immunity to extend to claims under the ADA." Brooks v. Onondaga Cty. Dep 't ofChildren
& Family Servs., No. 5:17-CV-1186 (GLS/TWD), 2018 WL 2108282, at *4 (N.D.N.Y.
Apr. 9, 2018) (collecting cases), report and recommendation adopted, 2018 WL 2108187
(N.D.N.Y. May 7, 2018). Nevertheless, these decisions are inapposite and involve "[a]
judge's control of ongoing proceedings and managing the court's docket," Richter v. Conn.
Judicial Branch, No. 3:12CV1638 (JBA), 2014 WL 1281444, at *10 (D. Conn. Mar. 27,
2014), aff'd, 600 F. App'x 804 (2d Cir. 2015), court orders "issued by a Family Court judge
in response to the serious accusations raised in a Family Offense petition," Positano v. New
York, No. 12-CV-2288 (ADS) (AKT), 2013 WL 880329, at *4 (E.D.N.Y. Mar. 7, 2013),
and the issuance of protective orders, setting bail, sentencing a convicted defendant, and a
judge's decision to decline to recuse himself, see Bobrowsky v. Yonkers Courthouse, 777
F. Supp. 2d 692, 712-714 (S.D.N.Y. 2011); see also Goldblatt v. Doerty, 503 F. App'x
537, 537 (9th Cir. 2013) (affirming the district court's dismissal of claims "regarding
defendant's alleged denial of ADA accommodations because they arose out of defendant's
rulings in his capacity as a judge presiding over a state court family law proceeding").
- 18 -
The doctrine of absolute judicial immunity is intended "to protect 'the independent
and impartial exercise of judgment vital to the judiciary [which] might be impaired by
exposure to potential damages liability."' McKnight v. Middleton, 699 F. Supp. 2d 507,
523 (E.D.N.Y. 2010) (quoting Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435
(1993)), aff'd, 434 F. App'x 32 (2d Cir. 2011). "If judges were personally liable for
erroneous decisions, the resulting avalanche of suits, most of them frivolous but vexatious,
would provide powerful incentives for judges to avoid rendering decisions likely to
provoke such suits." Forrester v. White, 484 U.S. 219, 226-27 (1988). Accordingly, the
doctrine is intended to "shield" officials acting in a judicial capacity from monetary
damages for actions taken in their official capacity. Montero v. Travis, 171 F.3d 757, 760
(2d Cir. 1999); see DiPasquale v. Milin, 303 F. Supp. 2d 430, 431 (S.D.N.Y. 2004) ("By
its very nature, the doctrine of judicial immunity . . . operates to shield judges acting in
their official capacity.").
Here, the Commissioner does not assert the doctrine as a
defensive guard against liability for a decision rendered, but instead, brandishes it as a
sword to beat back its responsibility under federal law to respond to Plaintiff's modification
request. The Commissioner's request for absolute quasi-judicial immunity would likely
tum the doctrine on its head.
Therefore, under the facts and circumstances of this case, and at the motion to
dismiss stage of these proceedings, the Commissioner has failed to carry her burden of
demonstrating that the application of absolute quasi-judicial immunity is appropriate.
- 19 -
D.
The Commissioner has Failed to Establish the Applicability of the
Doctrine of Absolute Legislative Immunity
Like absolute judicial or quasi-judicial immunity, "[c]ourts apply a functional test
to determine whether an act is legislative.... " Schubert v. City of Rye, 775 F. Supp. 2d
689, 701 (S.D.N.Y. 2011). "Absolute legislative immunity attaches to all actions taken 'in
the sphere of legitimate legislative activity."' Bogan v. Scott-Harris, 523 U.S. 44, 54
(1998) (quoting Tenney v. Brandhove, 341 U.S. 367, 376 (1951)). "Under the Supreme
Court's functional test for determining the applicability of absolute legislative immunity,
'whether immunity attaches turns not on the official's identity, or even on the official's
motive or intent, but on the nature of the act in question.'" State Emps. Bargaining Agent
Coal. v. Rowland, 494 F.3d 71, 82 (2d Cir. 2007) (quoting Almonte v. City ofLong Beach,
478 F.3d 100, 106 (2d Cir. 2007)). "Legislative immunity shields from suit not only
legislators, but also officials in the executive and judicial branches when they are acting
'in a legislative capacity."' Id. (quoting Bogan, 523 U.S. at 55).
"In making the determination whether an act, or a course of conduct, is within the
'sphere oflegitimate legislative activity,' two factors are relevant." Schubert, 775 F. Supp.
2d at 701.
First, it is relevant whether the defendants' actions were legislative "in form,"
i.e., whether they were "integral steps in the legislative process." Second, it
may also be relevant whether defendants' actions were legislative "in
substance," i.e., whether the actions "bore all the hallmarks of traditional
legislation," including whether they "reflected . . . discretionary,
policymaking decision[ s] implicating the budgetary priorities of the
[government] and the services the [government] provides to its constituents."
- 20 -
Rowland, 494 F.3d at 89 (alterations in original) (citation omitted) (quoting Bogan, 523
U.S. at 55-56).
Conduct properly characterized as "administrative acts" is not shielded by absolute
legislative immunity. See Alfaro v. Labador, No. 06-CV-1470(JS)(WDW), 2007 WL
9710118, at *6 (E.D.N.Y. Mar. 28, 2007) (citingHarhayv. Town ofEllingtonBd. ofEduc.,
323 F.3d 206, 211 (2d Cir. 2003)); see Bloomingburg Jewish Educ. Ctr. v. Vill. of
Bloomingburg, NY., 111 F. Supp. 3d 459, 491 (S.D.N.Y. 2015) ("Legislative immunity
does not apply to administrative acts or the enforcement of existing laws, ordinances, or
regulations."); S. Lyme Prop. Owners Ass'n, Inc. v. Town of Old Lyme, 539 F. Supp. 2d
547, 558 (D. Conn. 2008) ("[L]egislative officials may ... be liable for their enforcement
and administrative actions."). "[B]road, prospective policymaking ... is characteristic of
legislative action," Harhay, 323 F.3d at 211, while "actions aimed at one person and one
situation are not," Alfaro, 2007 WL 9710118, at *6.
The Commissioner argues, as she did on her previous motion, that she has absolute
legislative immunity from suit in this action "[t]o the extent that the SAC alleges that [her]
'athletic eligibility rules' discriminated against the [P]laintiff." (Dkt. 89-1 at 9). While the
Commissioner acknowledges that the Court previously rejected this ~gument, allowing
her to reassert it "in a subsequent motion supported by a more fully developed argument"
(Dkt. 58 at 26), the Commissioner's motion papers provide little if any additional reason
for this Court to apply the doctrine of absolute legislative immunity to the facts presented
(compare Dkt. 89-1 at 9-10, with Dkt. 46-1 at 15-16). Plaintiff argues that the Court should
apply the law of the case doctrine and once again reject the Commissioner's legislative
- 21 -
immunity arguments because they simply rehash the same position the Court previously
found unpersuasive. (Dkt. 93 at 10-11 & n.l). In reply, the Commissioner contends that
Plaintiff is "attacking [her] athletic eligibility regulations" in an attempt to raise ADA and
Section 504 violations. (Dkt. 94 at 9).
Plaintiffs claims for monetary damages do not challenge the validity or
applicability of the Duration of Eligibility Rule. 4 Rather, Plaintiff challenges Defendants'
alleged failure to provide a "reasonable modification" to the Duration of Competition Rule
pursuant to the ADA and Section 504. (See Dkt. 81 at ,r,r 82 (alleging that his requested
"[e]xtended contact sport athletic eligibility ... is a reasonable modification of the existing
rules under the ADA because it does not frustrate the purpose of the four year eligibility
standard"), 90 (alleging the same but under Section 504)). As such, the challenged conduct
alleged here is the Commissioner's refusal to provide a reasonable accommodation under
the ADA or Section 504, not the promulgation of the Duration of Competition Rule itself
or any perceived failure to amend it.
A different conclusion might have been reached if Plaintiffs declaratory and
injunctive relief survived. Indeed, Plaintiff requests that the Court order the Commissioner
"to promptly promulgate an emergency regulation by which students with disabilities who,
because of their disabilities, must attend high school for more than four years may request
extended athletic eligibility." (Dkt. 81 at 11 (emphasis added)). However, because
Plaintiffs requests for injunctive and declaratory relief are moot, the Court has no occasion
to determine whether this request for relief should be struck under the absolute quasilegislative immunity doctrine. Cf Supreme Court of Va. v. Consumers Union of US., Inc.,
446 U.S. 719, 733-34 (1980) (stating that "there is little doubt that if the Virginia
Legislature had enacted the State Bar Code and if suit had been brought against the
legislature, its committee, or members for refusing to amend the Code[,] ... the defendants
in that suit could successfully have sought dismissal on the grounds of absolute legislative
immunity").
4
- 22 -
Furthermore, "the question of whether a measure to accommodate a student's
disability is a reasonable accommodation" is "fact-specific" and requires a "case-by-case"
determination. Dean v. Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178,
189 (2d Cir. 2015) (quoting Wernick v. Fed. Reserve Bank of NY., 91 F.3d 379, 384 (2d
Cir. 1996)). Accordingly, the Commissioner's inaction constituted a constructive denial
of Plaintiffs request and appears more akin to an administrative act applicable to a single
individual. See Harhay, 323 F.3d at 211 ("The Board members are not entitled to absolute
legislative immunity because their acts were not quintessentially legislative, but rather
were part of a process by which an employment situation regarding a single individual was
involved." (emphasis added)); Roman Catholic Diocese ofRockville Ctr., NY. v. Jnc. Viii.
of Old Westbury, No. 09 CV 5195 (DRH) (ETB), 2012 WL 1392365, at *16 (E.D.N.Y.
Apr. 23, 2012) (determining that an "individual assessment" of a single application for a
special use permit was not legislative in nature); Schubert v. City of Rye, 775 F. Supp. 2d
689, 701 (S.D.N.Y. 2011) (noting that the defendants "did not engage in some broad policy
debate about changing or enacting" regulations, and instead their "alleged actions involved
existing land-use policies as applied to a single resident" ( emphases added)); Ruston v.
Town Ed.for Town ofSkaneateles, No. 5:06-CV-927(FJS/GHL), 2009 WL 3199194, at *4
(N.D.N.Y. Sept. 30, 2009) (stating that "courts have distinguished between situations
where a single issue relevant to a single individual is resolved and a 'broad, prospective
policymaking that is characteristic of legislative action"' (quoting Almonte, 478 F.3d at
108)), ajf'd, 610 F.3d 55 (2d Cir. 2010); Massaro v. Allingtown Fire Dist., No. CIV.
3:02CV537(PCD), 2002 WL 32500871, at *3 (D. Conn. Nov. 22, 2002) ("[A]s a general
- 23 -
proposition[,] decisions limited to one individual are characterized as administrative rather
than legislative."); accord Acevedo-Cordero v. Cordero-Santiago, 958 F .2d 20, 23 (1st Cir.
1992) ("If the action involves establishment of a general policy, it is legislative; if the action
single[s] out specifiable individuals and affect[ s] them differently from others, it is
administrative.").
"The law of the case doctrine commands that when a court has ruled on an issue,
that decision should generally be adhered to by that court in subsequent stages in the same
case unless cogent and compelling reasons militate otherwise." Johnson v. Holder, 564
F.3d 95, 99 (2d Cir. 2009). Although the Court's earlier decision did not preclude the
Commissioner from raising the doctrine of absolute legislative immunity upon a "more
fully developed argument" (Dkt. 58 at 26), the Commissioner's papers fail to present a
more robust rationale in support of the application of this doctrine (see Dkt. 89-1 at 9-1 O;
Dkt. 94 at 9). The Commissioner does not provide any argument as to why her decision to
decline consideration of Plaintiffs requested accommodation is more akin to "broad,
prospective policymaking" than it is simply her own interpretation of the Duration of
Competition Rule as applied to Plaintiffs circumstances. To the extent the Commissioner
relies upon the regulation itself as grounds for the denial of Plaintiffs requested
modification, as noted above, this position involves factual matters not suited for resolution
on a motion to dismiss. As the Court previously stated, "[w]ithout a/act-specific inquiry
into the purposes underlying the rule in question-juxtaposed with the nature of the
program or service at issue-a court generally cannot determine whether a given eligibility
requirement is 'essential' for purposes of the ADA and Section 504." (Dkt. 58 at 20).
- 24 -
In sum, the Commissioner has failed to assert any reason-let along a "cogent" or
"compelling" one-for this Court to depart from its previous decision to refrain from
applying the doctrine oflegislative immunity at this stage of these proceedings.
II.
The Commissioner's Motion for Judgment on the Pleadings
A.
Legal Standard
"Judgment on the pleadings may be granted under Rule 12(c) where the material
facts are undisputed and where judgment on the merits is possible merely by considering
the contents of the pleadings." McAuliffe v. Barnhart, 571 F. Supp. 2d 400,402 (W.D.N.Y.
2008). "In deciding a Rule 12(c) motion for judgment on the pleadings, the court should
'apply the same standard as that applicable to a motion under Rule 12(b)(6), accepting the
allegations contained in the complaint as true and drawing all reasonable inferences in
favor of the nonmoving party."' Aboushama v. EMF Corp., 214 F. Supp. 3d 202, 205
(W.D.N.Y. 2016) (quoting Mantena v. Johnson, 809 F.3d 721, 727-28 (2d Cir. 2015)).
"In considering a motion to dismiss for failure to state a claim pursuant to Rule
12(b )( 6), a district court may consider the facts alleged in the complaint, documents
attached to the complaint as exhibits, and documents incorporated by reference in the
complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). To
withstand dismissal, a complaint must set forth "enough facts to state a claim to relief that
is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Turkmen
- 25 -
v. Ashcroft, 589 F.3d 542,546 (2d Cir. 2009) (quotingAshcroftv. Iqbal, 556 U.S. 662,678
(2009)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiffs obligation to provide the grounds of his
entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal
quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual
allegations must be enough to raise a right to relief above the speculative level."' Nielsen
v. AECOM Tech. Corp., 762 F.3d 214,218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at
555).
B.
Plaintiff's ADA Claim is Dismissed as Against the Commissioner
Although the parties do not address the vitality of Plaintiffs ADA claim for
compensatory damages in great detail, the Court feels compelled to acknowledge the
unsettled state of the ·law regarding the application of sovereign immunity to Title II
monetary claims.
"The Eleventh Amendment bars a damages action in federal court against a state
and its officials when acting in their official capacity unless the state has waived its
sovereign immunity or Congress has abrogated it." Dean, 804 F.3d at 193. "Congress can
abrogate a State's sovereign immunity if it seeks to enforce the 'substantive guarantees' of
the Fourteenth Amendment." Colon v. N. Y. State Dep 't ofCorr. & Cmty. Supervision, No.
15 CIV. 7432 (NSR), 2017 WL 4157372, at *6 (S.D.N.Y. Sept. 15, 2017) (quoting
Tennessee v. Lane, 541 U.S. 509, 518 (2004)).
- 26 -
"In enacting the ADA, Congress 'invoke[ d] the sweep of congressional authority,
including the power to enforce the fourteenth amendment. ... "' United States v. Georgia,
546 U.S. 151, 154 (2006) (quoting 42 U.S.C. § 1210l(b)(4)). Because Congress also
provided that "[a] State shall not be immune under the eleventh amendment to the
Constitution of the United States from an action in Federal or State court of competent
jurisdiction for a violation of this chapter," see 42 U.S.C. § 12202, Congress has
unequivocally expressed its "intent to abrogate state sovereign immunity," Georgia, 546
U.S. at 154; see Bolmer v. Oliveira, 594 F.3d 134, 146 (2d Cir. 2010) ("Congress has
unambiguously purported to abrogate states' immunity from Title II claims."); Kearney v.
NYS. D.O.C.S., No. 9:11-CV-1281 GTS/TWD, 2013 WL 5437372, at *9 (N.D.N.Y. Sept.
27, 2013) ("With respect to claims arising under Title II of the ADA, it is clear from the
language of the statute that Congress fully intended to abrogate state sovereign immunity,
thus satisfying the 'unequivocal intent' requirement." (quoting Garcia v. S. UNY Health
Scis. Ctr. of Brooklyn, 280 F.3d 98, 108 (2d Cir. 2001))), ajf'd sub nom. Kearney v. NY.
State Dep't of Corr. Servs., 581 F. App'x 45 (2d Cir. 2014). Furthermore, "[a] plaintiffs
ability to sue a state under Title II is tied to the plaintiffs allegation that the defendants
violated his Fourteenth Amendment rights."
Kearney v. Adams, No. 9:15-CV-824
(GLS/CFH), 2018 WL 3121618, at *10 (N.D.N.Y. Feb. 8, 2018) (citing Georgia, 546 U.S.
at 154), report and recommendation adopted, 2018 WL 1470579 (N.D.N.Y. Mar. 26,
2018). In other words, the law clearly permits a plaintiff to "sue a state under Title II if the
violation alleged is also a violation of the Fourteenth Amendment." Rosen v. Pallito, No.
2: 13-CV-277, 2017 WL 6513663, at *3 (D. Vt. Dec. 19, 2017).
- 27 -
Nonetheless, there is "a growing fracture among the district courts in this Circuit in
their approach to determining whether Congress validly abrogated state sovereign
immunity under Title II of the ADA." Dean, 804 F.3d at 193. "Before United States v.
Georgia, the Second Circuit applied the approach articulated in Garcia v. S. U.N Y. Health
Sciences Center, which held that 'Congress had exceeded its section five authority in
enacting Title II, but that Title II suits could be limited to circumstances in which it had
not."' Rosen, 2017 WL 6513663, at *3 (quoting Bo/mer, 594 F.3d at 146). The Garcia
court limited Title II monetary claims brought against the states to those where the plaintiff
could "establish that the Title II violation was motivated by discriminatory animus or ill
will based on the plaintiffs disability." 280 F.3d at 111. However, the Second Circuit has
acknowledged that the Supreme Court's decision in Georgia "concerning the
constitutionality of Congress's abrogation of Eleventh Amendment immunity under Title
II calls Garcia's validity into question." Dean, 804 F.3d at 194.
In Georgia, the Supreme Court explained that "insofar as Title II creates a private
cause of action for damages against the States for conduct that actually violates the
Fourteenth Amendment, Title II validly abrogates state sovereign immunity." 546 U.S. at
159.
The Court then remanded the action, stating that it was "unclear whether [the
plaintiffs] amended complaint will assert Title II claims premised on conduct that does
not independently violate the Fourteenth Amendment." Id. The Court required the lower
courts to determine, in the first instance:
(1) which aspects of the State's alleged conduct violated Title II; (2) to what
extent such misconduct also violated the Fourteenth Amendment; and (3)
insofar as such misconduct violated Title II but did not violate the Fourteenth
- 28 -
Amendment, whether Congress's purported abrogation of sovereign
immunity as to that class of conduct is nevertheless valid.
Id. "Thus, Georgia explicitly left open the question of whether Congress may validly
abrogate sovereign immunity with respect to a particular class of misconduct that violates
Title II but does not violate the Fourteenth Amendment." Dean, 804 F.3d at 194.
As a result, some district courts in this Circuit still apply Garcia while "[o]thers,
adopting the approach in Georgia, determine whether Congress's purported abrogation of
immunity for conduct that violates Title II but not the Fourteenth Amendment is
nevertheless valid." Id. at 194-95 (footnote omitted). While the Second Circuit has not
directly spoken on this issue, it has advised that district courts should "at a minimum,
evaluate whether the approach erected in Georgia applies." Id. at 195.
Neither party mentions the apparent rift in opinion among the district courts in this
Circuit. The Commissioner argues that Plaintiffs "ADA claim for money damages is
barred by sovereign immunity" because Plaintiff has not and could not allege an "actual
violation of the Fourteenth Amendment" in this case. (Dkt. 89-1 at 13-14). Plaintiff has
"concede[d] that compensatory damages pursuant to the ADA are not available to him from
a state defendant like" the Commissioner. (Dkt. 93 at 11 n.2). Accordingly, the Court
dismisses the remaining Title II claim for monetary damages as against the Commissioner
based on Plaintiffs concession. In doing so, the Court does not reach the constitutional
question of whether Title II validly abrogates state sovereignty for misconduct that does
not also violate the Fourteenth Amendment. See generally Lyng v. Nw. Indian Cemetery
Protective Ass 'n, 485 U.S. 439, 445 (1988) ("A fundamental and longstanding principle of
- 29 -
judicial restraint requires that courts avoid reaching constitutional questions in advance of
the necessity of deciding them.").
C.
The Commissioner Does Not Have Sovereign Immunity from Plaintiff's
Section 504 Monetary Claim
Despite the similarities between claims brought pursuant to Title II of the ADA and
Section 504, Plaintiffs Section 504 claim for compensatory damages is not subject to the
same sovereign immunity questions addressed above. 5 Plaintiff alleges that "Defendants
receive federal financial assistance" (Dkt. 81 at
,r
88), and the Commissioner has not
refuted this allegation. In Garcia, the Second Circuit found that the plaintiffs "§ 504
damage claim against New York fails because New York had not knowingly waived its
sovereign immunity from suit." Garcia, 280 F.3d at 114-15 (footnote omitted). However,
several courts have found that "New York, by accepting federal funds after the Garcia
decision, has waived sovereign immunity for damage suits brought under section 504 of
the Rehabilitation Act of 1973." Alexander v. State Univ. ofNY. at Buffalo, 932 F. Supp.
2d 437,443 (W.D.N.Y. 2013); see, e.g., Blasio v. NY. State Dep 't ofCorr. Servs., No. 04CV-653S, 2005 WL 2133601, at *3 (W.D.N.Y. Aug. 31, 2005) ("By continuing to accept
federal funds after Garcia, however, New York knowingly waived its immunity for
Rehabilitation Act claims, which are based on post-Garcia events."). Therefore, because
the actions alleged in this matter all took place years after the Second Circuit's decision in
The Court addresses this issue merely for the sake of completeness as the
Commissioner does not argue that she is immune from Plaintiffs Section 504 monetary
claim on this ground.
5
- 30 -
Garcia, there is no question that the Commissioner does not enjoy sovereign immunity
from the Section 504 monetary claims alleged here.
The Court turns to the Commissioner's argument that Plaintiff has failed to
sufficiently allege an "intentional violation" of Section 504. (Dkt. 89-1 at 10-13 ).
D.
Plaintiff has Sufficiently Alleged "Deliberate Indifference"
"A plaintiff aggrieved by a violation of [Section 504] may seek all remedies
available under Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d et seq.),
including monetary damages." Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275
(2d Cir. 2009). In order to allege Section 504 claims for money damages, a plaintiff must
allege "intentional violations" of the Rehabilitation Act. Bartlett v. NY. State Bd. of Law
Examiners, 156 F.3d 321, 331 (2d Cir. 1998), vacated on other grounds, 527 U.S. 1031
(1999). "The standard for intentional violations is 'deliberate indifference to the strong
likelihood [of] a violation[.]'" Loeffler, 582 F.3d at 275 (quoting Bartlett, 156 F.3d at 331);
see Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 89 (2d Cir.) ("In order to recover
monetary damages under the Rehabilitation Act ... , [a] plaintiff would need to show that
any violation resulted from 'deliberate indifference' to the rights the disabled enjoy under
the Act." (citing Garcia, 280 F.3d at 115)), opinion corrected, 511 F.3d 238 (2d Cir. 2004);
see Parks v. Blanchette, 144 F. Supp. 3d 282, 338 n.36 (D. Conn. 2015) (same).
"In the context of the Rehabilitation Act, intentional discrimination against the
disabled does not require personal animosity or ill will." Alexander, 932 F. Supp. 2d at
443 (quoting Bartlett, 156 F .3d at 331 ).
"Plaintiffs need only plead intentional
discrimination, which 'may be inferred when a policymaker acted with at least deliberate
- 31 -
indifference to the strong likelihood that a violation of federally protected rights will result
from the implementation of the challenged policy or custom."' Felix v. City ofNew York,
344 F. Supp. 3d 644, 664-65 (S.D.N.Y. 2018) (quoting Loeffler, 582 F.3d at 275). "[A]
plaintiff demonstrates deliberate indifference by pointing to evidence [that] the 'official
with authority to address the alleged discrimination and to institute corrective measures on
Plaintiffs behalf had actual knowledge of ongoing discrimination against Plaintiff but
failed to respond adequately."' Feltenstein v. City ofNew Rochelle, 254 F. Supp. 3d 647,
657 (S.D.N.Y. 2017) (quoting Gershanow v. Cty. of Rockland, 11-CV-8174 (CS), 2014
WL 1099821, at *4 (S.D.N.Y. Mar. 20, 2014)). "A defendant's actions must demonstrate
'deliberate choice . . . rather than negligence or bureaucratic inaction."' Id. (quoting
Reynolds v. Giuliani, 506 F.3d 183, 193 (2d Cir. 2007)); see also Loeffler, 582 F.3d at 276
(stating that "[i]n a separate context, we have also said that deliberate indifference must be
a 'deliberate choice[,] rather than negligence or bureaucratic inaction'" (quoting Reynolds,
506 F.3d at 193)).
In support of her motion, the Commissioner argues that the SAC fails to allege that
she "acted with deliberate indifference to a strong likelihood that a violation of federally
protected rights would result from the implementation of the [Duration of Competition
Rule] and administrative review process." (Dkt. 89-1 at 11). The Commissioner quotes a
number of cases that stand for the proposition that accommodations must be reasonable
and need not be granted if they would fundamentally alter the service provided or would
impose significant financial or administrative strains upon the public entity. (Id. at 11-12).
Once again, the Commissioner falls back on her position that the application of this
- 32 -
regulation sufficiently discharges her federal obligations. As this Court has reiterated
several times now, these arguments require a "fact-specific inquiry" into the nature and
purpose of the Duration of Competition Rule. "Indeed, 'deliberate indifference will often
be a fact-laden question, for which bright line rules are ill-suited.'" Goldman v. Brooklyn
Ctr. for Psychotherapy, Inc., No. 15-CV-2572 (PKC) (PK), 2018 WL 1747038, at *3
(E.D.N.Y. Apr. 11, 2018) (quoting Tesoriero v. Syosset Cent. Sch. Dist., 382 F. Supp. 2d
387, 398 (E.D.N.Y. 2005)).
In response, Plaintiff argues that the SAC sufficiently alleges deliberate indifference
to proceed past the pleadings stage of these proceedings. (Dkt. 93 at 12-15). The SAC
states that the District filed an application to Section IV seeking extended athletic eligibility
on Plaintiffs behalf. (Dkt. 81 at
,r 53).
Although "Plaintiff requested extended athletic
eligibility for contact athletics as a reasonable modification under the ADA" (id. at ,r 59),
he never received any response to this request (id. at ,r 60). Subsequently, the District filed
a second application to Section IV, "which [also] included a request for reasonable
accommodation under the ADA on behalf of Plaintiff." (Id. at ,r 61). Section IV denied
this request as well and "did not address nor acknowledge Plaintiffs request for reasonable
accommodation under the ADA." (Id. at ,r,r 62-63). An appeal was taken from this denial,
which "explicitly requested a reasonable modification of the eligibility rules in order to
accommodate Plaintiffs disability." (Id. at
,r 64).
affirmed,
or
agam
without
addressing
However, Section IV's decision was
acknowledging
Plaintiffs
requested
accommodation. (Id. at ,r,r 65-66). Plaintiff further alleges that "the [Commissioner] has
repeatedly and consistently held that 'an appeal to the Commissioner is not the proper
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forum in which to raise alleged violations of the ADA."' (Id. at, 69). Plaintiff claims that
Defendants have violated Section 504 and "have discriminated and continue to
discriminate against [him] by refusing to grant his request for reasonable modification of
their athletic eligibility rules." (Id. at, 91).
"[K]nowledge that an individual has a disability and a failure to offer an
accommodation is not sufficient to establish deliberate indifference." Viera v. City ofNew
York, No. 15 CIV. 5430 (PGG), 2018 WL 4762257, at *17 (S.D.N.Y. Sept. 30, 2018).
Instead, the "indifference" must "have been so pervasive as to amount to a choice."
Loeffler, 582 F.3d at 277. However, "deliberate indifference can be found when the
defendant's response to known discrimination 'is clearly unreasonable in light of the
known circumstances."' Gant ex rel. Gant v. Wallingford Bd. ofEduc., 195 F.3d 134, 141
(2d Cir. 1999) (quoting Davis Next Friend LaShonda D. v. Monroe Cty. Bd. ofEduc., 526
U.S. 629, 648 (1999)); see Spring v. Allegany-Limestone Cent. Sch. Dist., No. 14-CV476S, 2017 WL 6512858, at *6 (W.D.N.Y. Dec. 20, 2017) (same). Moreover, "[i]t is not
necessary to prove that the defendant fully appreciated the harmful consequences of that
discrimination, because deliberate indifference is not the same as action (or inaction) taken
'maliciously or sadistically for the very purpose of causing harm."' Gant, 195 F .3d at 141
(quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)).
Viewing Plaintiffs SAC in the light most favorable to him, and drawing all
reasonable inferences in his favor from the facts alleged therein, the Court cannot say that
Plaintiff has failed to allege deliberate indifference as a matter of law. Although many of
Plaintiffs factual assertions are based upon Defendants' alleged failure to address his
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requested accommodation pursuant to the ADA, because "the standards for actions" under
Title II of the ADA and Section 504 "are generally equivalent" and are analyzed together,
see Dean, 804 F.3d at 187, the Court views these same allegations as supportive of
Plaintiffs Section 504 claim as well.
Furthermore, Plaintiff alleges that he applied for extended athletic eligibility as a
modification to the Duration of Competition Rule under federal law due to his claimed
disability, and that Defendants failed to elucidate any reason or provide him with any
response explaining why he was not entitled to his requested accommodation-or, for that
matter, any other modification. The Commissioner's alleged blanket refusal to address this
issue at all is what draws Plaintiffs claim out of the realm of "bureaucratic inaction" and
potentially into the sphere of an "intentional violation." See Loeffler, 582 F.3d at 275-76.
Courts within and without this Circuit have found disputed issues of fact regarding a public
entity's "deliberate indifference" where the defendant has denied the requested
accommodation after failing to pursue any sort of investigation or attempt at remedial
action. See Updike v. Multnomah County, 870 F.3d 939, 954 (9th Cir. 2017) (stating that
"[a] denial of a request [for an accommodation] without investigation is sufficient to
survive summary judgment on the question of deliberate indifference"), cert. denied sub
nom. Multnomah County, Oregon v. Updike, 139 S. Ct. 55 (2018); Loejjler, 582 F.3d at
276 (noting that "it is not clear that the district court construed all the facts in the light most
favorable to the Loefflers" where it "did not reference any of the Loefflers' alleged attempts
to secure an interpreter prior to surgery, or their numerous attempts to secure one
afterward," which went "unheeded"); Duvall v. County ofKitsap, 260 F.3d 1124, 1140 (9th
- 35 -
Cir. 2001) (stating that the plaintiff "provided sufficient evidence to create a triable issue
of fact as to whether [the defendants] ... had notice of his need for the accommodation
involved and that they failed despite repeated requests to take the necessary action"), as
amended on denial ofreh 'g (Oct. 11, 2001); Nat'/ Ass'n ofDeafv. State, 318 F. Supp. 3d
1338, 1348 (S.D. Fla. 2018) (denying the defendants' motion to dismiss where the plaintiff
notified the defendants of the alleged ADA and Section 504 violations, but never received
a response, and where the defendants' response to a related Federal Communications
Commission complaint "evidences no intent to change their current practices"); Prakel v.
Indiana, 100 F. Supp. 3d 661, 685-86 (S.D. Ind. 2015) (stating that "[i]t is the defendant's
duty to undertake a fact-specific investigation ... to determine the proper accommodation
required, giving 'primary consideration' to the plaintiffs preference"' and denying
summary judgment where a reasonable jury could conclude that the decisions to deny the
requests were made "without making sufficient effort to determine whether it would have
been possible to provide the requested accommodation without fundamental alteration or
undue burden, or to consider whether some alternate accommodation could be provided");
Scaggs v. NY. Dep'tofEduc., No. 06-CV-0799 (JFB) (VVP), 2007 WL 1456221, at *16
(E.D.N.Y. May 16, 2007) (finding the plaintiffs "sufficiently pied the requisite 'gross
misjudgment' ... to withstand a motion to dismiss" where they alleged "that defendants
were aware of plaintiffs' disabilities, that plaintiffs' parents requested accommodation and
programs to address such disabilities and that defendants intentionally refused to take any
remedial or corrective action to remedy the problems"); Naiman v. NY. Univ., No. 95 CIV.
6469 (LMM), 1997 WL 249970, at *5 (S.D.N.Y. May 13, 1997) ("Assuming that intent is
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a prerequisite for monetary relief under the [Rehabilitation Act], Naiman's allegation that
he requested a qualified interpreter, which was not provided, coupled with the absence of
any allegation that [the defendant} attempted to provide Naiman with effective
communication, sufficiently alleges intent." (emphasis added)); see also Sutherlin v. lndep.
Sch. Dist. No. 40 of Nowata Cty., Okla., 960 F. Supp. 2d 1254, 1267 (N.D. Okla. 2013)
(finding the plaintiffs' allegations that "bullying behavior was reported ... to the school,
which ... did not take responsive action," sufficient "[a]t the dismissal stage" to plead "a
claim for disability-based student-on-student harassment" (emphasis added)).
The Commissioner has failed to describe any actions taken to investigate or
otherwise respond to Plaintiffs requested accommodation.
It is apparent from her
arguments that the Commissioner believes no modification to the Duration of Competition
Rule could be prescribed because it would fundamentally alter the interscholastic athletics
services provided by New York State. (See Dkt. 89-1 at 11-13; Dkt. 94 at 7-8). The Court
has not determined whether the Duration of Competition Rule is an "essential eligibility
requirement" because that inquiry requires resolution of factual disputes not appropriate at
the pleadings stage.
(Dkt. 58 at 20-21).
Whether or not the Commissioner's view
ultimately prevails, Plaintiff has alleged that he requested an accommodation from the
strictures of the Duration of Competition Rule under federal law, and that he never received
any response to this request despite proceeding with the administrative review process
provided under New York law.
These allegations are sufficient to survive the
Commissioner's motion for judgment on the pleadings.
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Therefore, the Court rejects the Commissioner's argument that Plaintiff has failed
to state a claim for monetary damages under Section 504.
CONCLUSION
For the foregoing reasons, the Commissioner's motion to dismiss or, in the
alternative, for judgment on the pleadings(Dkt. 89) is granted insofar as it seeks dismissal
of Plaintiffs requests for injunctive and declaratory relief and Plaintiffs ADA claim for
monetary damages as against the Commissioner, and it is otherwise denied.
SO ORDERED.
lEIZAyiH-A. WOLFORD
United^tates District Judge
Dated:
March 15, 2019
Rochester, New York
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