Reynolds v. Commonwealth Of Pennsylvania et al

Filing 36

MEMORANDUM and ORDER granting in part and denying in part 13 Motion to Dismiss ; GRANTED re pltf's claims for damages against the individual dfts per Americans w/ Disabilities Act and the Rehabilitation Act; and DENIED in all other respects.Signed by Honorable James M. Munley on 6/21/10 (sm, )

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MELINDA LAMBERSON REYNOLDS, : No. 3:09cv1492 Plaintiff : : (Judge Munley) : : v. : : COMMONWEALTH OF : PENNSYLVANIA; : PENNSYLVANIA DEPARTMENT OF : STATE; : PENNSYLVANIA BUREAU OF : PROFESSIONAL AND : OCCUPATIONAL AFFAIRS; : PENNSYLVANIA DIVISION OF : PROFESSIONAL HEALTH : MONITORING PROGRAMS; : PENNSYLVANIA STATE BOARD OF : NURSING; : BASIL L. MERENDA; : LINDA TANZINI AMBROSO; : K. STEPHEN ANDERSON; : CHRISTOPHER BARTLETT; : RAFAELA COLON; : KATHLEEN M. DWYER; : JUDY A. HALE; : SUZANNE M. HENDRICKS; : JOSEPH J. NAPOLITANO; : ANN L. O'SULLIVAN; : JANET H. SHIELDS; and : JOANNE L. SORENSEN; : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
M E M O R AN D U M

Before the court is defendants' motion to dismiss plaintiff's amended complaint. Having been fully briefed and argued, the matter is ripe for disposition. Background T h is case arises out of Plaintiff Melinda Lamberson Reynolds's attempts to o b ta in a license as a registered nurse in the Defendant Commonwealth of P e n n s ylva n ia . Plaintiff was a licensed practical nurse ("LPN") and a professional n u rs e ("RN") in the Commonwealth for over fifteen years. (Amended Complaint (D o c . 9) (hereinafter "Complt.") at ¶ 1). She suffers from chronic opioid drug d e p e n d e n c y . (Id.). Plaintiff cannot maintain her nursing license and/or has had her lic e n s e suspended because defendants refuse to permit her to obtain methadone m a in te n a n c e treatment for her drug dependency. (Id.). Plaintiff alleges that methadone is a legal, synthetic opioid drug used m e d ic a lly as an anti-addictive medication for people suffering from chronic opioid d ru g dependency. (Id. at ¶ 9). The efficacy of methadone treatment, plaintiff c o n te n d s , is well-established. (Id. at ¶ 10). Government agencies such as the N a tio n a l Institutes of Health and the Office of National Drug Control Policy have fo u n d methadone an effective means of reducing patients' cravings for illegal drugs. (Id. at ¶¶ 11-12). Moreover, methadone does not impair cognitive function or limit m e n ta l capability, intelligence, or the ability to maintain employment. (Id. at ¶ 13). Plaintiff also alleges that opioid dependency is a disability within the meaning o f the Americans with Disability Act ("ADA") and the Rehabilitation Act ("RA"). (Id. at

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¶ 14(a)). Methadone maintenance treatment, she insists, is a reasonable a c c o m m o d a tio n for that disability, allowing opioid-dependent persons to perform the e s s e n tia l functions of a job like nursing safely and skillfully. (Id. at ¶ 14(b)). Allowing a person with an opioid dependency to use methadone maintenance as an a c c o m m o d a tio n also does not pose a risk to the nurse's patients or fellow workers. (Id. at ¶ 14(c)). Plaintiff is qualified by training and experience to work as a licensed practical n u rs e or a professional nurse. (Id. at ¶ 15). She was licensed for over 25 years as a n u rs e , first in New Jersey and then in Pennsylvania. (Id. at 18). New Jersey g ra n te d her an LPN license in 1980 and Pennsylvania in 1991. (Id.). In 2000, the P e n n s ylva n ia Bureau of Nursing granted plaintiff an RN license. (Id.). Plaintiff is a ls o a person with a disability because: (a) she has a past history of opioid drug d e p e n d e n c y in the 1970s and 1980s; (b) she is not currently engaging in the illegal u s e of drugs; (c) she is currently participating in a supervised rehabilitation program; a n d (d) her past history of dependency and overall medical status places her at risk o f future illegal drug use, and this risk is minimized or avoided by methadone tre a tm e n t. (Id. at ¶ 17). Opioid dependency is a chronic condition, meaning that p e rs o n s like plaintiff are vulnerable to returning to drug use under stressful c o n d itio n s . (Id. at ¶ 20). In 1997, plaintiff became concerned that she would resume h e r dependence on illegal opioid drugs, and sought treatment through methadone m a in te n a n c e so that she could continue her sobriety and employment as a nurse.

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(Id. at ¶ 21). Since 1997, plaintiff has received this therapy at various clinics. (Id. at ¶ 24-25). Plaintiff maintains that methadone is a safe and effective treatment, and th a t her performance as a nurse has not suffered during her methadone therapy. (Id. at ¶¶ 22-24). Since 2004, plaintiff has received methadone maintenance treatment from N e w Directions Treatment Services ("NDTS") in Bethlehem, Pennsylvania. (Id. at ¶ 2 5 ). NDTS is accredited by the Commission on Accreditation and Rehabilitation F a c ilitie s pursuant to standards for methadone clinics promulgated by the United S ta te s Department of Health and Human Services. (Id. at ¶ 26). Under the NDTS p ro g ra m , plaintiff's methadone dose is given her directly by a nurse. (Id. at ¶ 27). She takes these doses both at the clinic and at home. (Id.). The nurse undertakes a w e e k ly visual evaluation of plaintiff, and an NDTS employee evaluates plaintiff at le a s t once a year. (Id.). She meets periodically with a counselor and is screened o n -s ite for drug use on a regular basis. (Id.). Plaintiff has continued to work s u c c e s s fu lly as a nurse while being treated at NDTS. (Id. at ¶ 28). She has re c e ive d many letters of recommendation from employers. (Id. At 29). S in c e at least 2005, defendants have followed an "unpublished but inflexible" p o lic y of refusing to license or relicense as a nurse any person known to be p a rtic ip a tin g in a methadone maintenance program. (Id. at ¶ 30). The defendants a ls o refuse to approve any methadone provider as a Division of Professional Health M o n ito rin g -A p p ro v e d provider. (Id.). The exact terms of these exclusions are

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unknown to the plaintiff, since the policy is an unpublished one. (Id. at ¶ 31). Still, th e policy, which is followed by the defendants, their subsidiary and component a g e n c ie s , their agents and employees and others participating with them, has the e ffe c t of unlawfully excluding plaintiff and others undergoing methadone treatment fro m being licensed as nurses. (Id.). The result of these programs is that plaintiff h a s been "wrongfully, arbitrarily and capriciously excluded" from licensing as a n u rs e . (Id. at ¶ 32). Plaintiff also suffers from chronic hepatitis C. (Id. at ¶ 33). She began re c e ivin g treatment for this condition in 2005 in the form of legal prescription m e d ic a tio n s . (Id.). These medications, interferon and ribovarin, caused her to suffer fro m anemia and exhaustion. (Id.). Plaintiff also had a prescription for Ambien, a s le e p aid. (Id.). In February 2005, plaintiff worked for a nurse staffing agency. (Id. a t 34). W h ile away from home, plaintiff forgot to bring her Ambien prescription with h e r and took another prescription sleep aid, Restoril, instead. (Id.). She borrowed th e drug from her mother. (Id.). The next day, plaintiff was exhausted, and her s u p e rvis o r requested that she submit to a drug test. (Id.). The screening showed s h e had taken Restoril. (Id. at ¶ 36). The tester reported this positive result to the s ta te , though plaintiff's use of the drug was limited to the single occasion of her visit to her mother. (Id. at ¶ 37). Plaintiff was referred to the state's Voluntary Recovery P ro g ra m , administered by the Bureau of Professional and Occupational Affairs. (Id.). On May 15, 2006, the Department of State filed with the Bureau of Nursing a

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petition to require plaintiff to submit to mental and physical evaluation. (Id. at ¶ 38). The basis for this petition was that plaintiff had tested positive for the Restoril and b e e n found eligible for a voluntary recovery program, but had not completed that e n ro llm e n t. (Id. at ¶ 39). The Bureau of Nursing granted the petition, and plaintiff w a s ordered to undergo a mental and physical examination by George E. W o o d y , M .D . (Id. at ¶¶ 39-40). D r. W o o d y is a widely recognized authority on drug addiction. (Id. at ¶ 40). He examined plaintiff on July 20, 2006. (Id. at ¶ 41). During this examination, p la in tiff told Dr. W o o d y about her addiction history and her current methadone tre a tm e n t. (Id. at ¶ 42). Dr. W o o d y issued a report dated August 30, 2006 after his e xa m in a tio n . (Id. at ¶ 43). This report concluded that plaintiff could "`practice n u rs in g with the requisite skill and safety.'" (Id. at ¶ 44). Dr. W o o d y also found that p la in tiff had responded positively to methadone maintenance. (Id.). Despite these findings, the Bureau of Nursing initiated a proceeding against p la in tiff designed to take away her nursing license. (Id. at ¶ 45). Plaintiff contends th a t this action was motivated by defendants' "inflexible methadone exclusion policy." (Id.). Defendants did not inform plaintiff that such a policy existed during the license s u s p e n s io n proceeding. (Id. at ¶ 46). Plaintiff alleges that defendants refused to c o n s id e r methadone maintenance as an accommodation for plaintiff's disability d u rin g the license suspension proceeding, and that they refused to consider such tre a tm e n t as an accommodation now. (Id. at ¶ 47). Board members never gave

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plaintiff an opportunity "to gain consideration in the license suspension proceeding" fo r her disability and methadone as an accommodation for it. (Id. at ¶ 48). Plaintiff a lle g e s that no current board members or other defendants are willing to consider re s to rin g plaintiff's license and allowing her to treat her addiction with methadone m a in te n a n c e . (Id. at ¶ 49). Authorities initiated the license proceeding against plaintiff on October 5, 2 0 0 6 . (Id. at ¶ 50). On that date, the Prosecution Division of the Office of Chief C o u n s e l of the Pennsylvania Department of State sent plaintiff a letter offering to e n te r into a settlement agreement. (Id.). Neither that letter nor a settlement a g re e m e n t proposed to plaintiff contained any mention of a requirement that plaintiff a b s ta in from methadone treatment. (Id. at ¶ 52). The only reference the settlement a g re e m e n t made to methadone was a reference to Dr. W o o d y 's finding concerning p la in tiff's positive response to such treatment. (Id. at ¶ 53). The settlement a g re e m e n t did require, however, that plaintiff be evaluated by and comply with any tre a tm e n t requirements imposed by a "PHMP-approved provider." (Id. at ¶ 54). The d e fe n d a n ts , however, have never approved any provider of methadone as an a P H M P -a p p ro ve d provider. (Id. at ¶ 55). They did not inform plaintiff­and she could n o t know­that only those providers who required abstention from methadone could b e PHMP-approved. (Id. at ¶ 56). Plaintiff signed the settlement agreement. (Id. at ¶ 57). She did so because th e agreement allowed her to keep working, and did not state that she would be

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required to quit using methadone maintenance. (Id.). The Bureau of Nursing e n te re d an order adopting the agreement on January 4, 2007. (Id. at ¶ 58). The a g re e m e n t stated that plaintiff "suffers from chemical dependency, specifically, opiod d ru g dependence, and is on methadone maintenance with evidence of excellent tre a tm e n t response and generalized anxiety disorder, under adequate control with tre a tm e n t." (Id.). At the same time, that agreement required plaintiff to comply with a n y treatment recommended by the PHMP-approved-provider, attend meetings tw ic e a week in programs the provider recommended, and to obtain the provider's p e rm is s io n before practicing nursing. (Id. at ¶ 59). The provider assigned to plaintiff, A Better Today, Inc., had a uniform and in fle xib le policy requiring patients using methadone maintenance to "detoxify" from a n d stop using methadone. (Id. at ¶ 60). Plaintiff alleges that the settlement a g re e m e n t existed to serve defendants' methadone-exclusion policy, forcing plaintiff to forego a program that the settlement agreement itself recognized as effective. (Id. a t ¶ 61). This policy of excluding methadone treatment is unpublished, and some s ta te officials have described that policy as secret. (Id. at ¶ 62). Plaintiff's m e th a d o n e treatment provider has repeatedly sought a copy of this exclusion policy fro m defendants, but no such policy has been provided. (Id. at ¶ 63). On August 10, 2007, the Department of State Hearing Examiner issued a p ro p o s e d order recommending that plaintiff's license be suspended. (Id. at ¶ 64). The order became final on September 18, 2007. (Id.). That order acknowledged

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that the settlement agreement did not require plaintiff to discontinue her methadone tre a tm e n t. (Id. at ¶ 65). Despite this acknowledgment, plaintiff alleges that she n e ve r had an opportunity to continue her methadone treatment and maintain her lic e n s e , since the order required her to obtain treatment from a provider the d e fe n d a n ts approved, and none of defendants' approved providers offer such tre a tm e n t. (Id. at ¶ 66). Plaintiff insists that this lack of methadone treatment is a p ro d u c t of defendants' policy choices. (Id.). Plaintiff alleges that this refusal of defendants to allow plaintiff simultaneously to obtain methadone maintenance and hold a nursing license is ongoing. (Id. at ¶ 6 9 ). Plaintiff's treating physician, Dr. W illia m Santoro, wrote a February 15, 2008 le tte r to Pearl Harris, a PHMP case manager assigned to plaintiff's file. (Id. at ¶¶ 697 0 ). Dr. Santoro described a conversation with a counselor from the PHMPa p p ro v e d treatment agency working on plaintiff's case. (Id. at ¶ 71). That counselor in s is te d that plaintiff be weaned from methadone, even though the counselor a d m itte d that plaintiff would probably resume using illegal opiates if she stopped u s in g methadone. (Id.). Dr. Santoro also wrote that he believed plaintiff should re m a in on her current course of methadone treatment and warned Harris of "`u n to w a rd outcomes'" that could come from stopping methadone. (Id. at ¶ 73). O n March 13, 2008, Harris wrote plaintiff to inform her that her case had been "c lo s e d " until the PHMP-approved provider reported that she had been "`weaned fro m methadone.'" (Id. at ¶ 74). Thus, plaintiff has been forced to choose between

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abandoning a successful treatment for her addiction and ending her career as a n u rs e . (Id. at ¶ 75). P la in tiff filed a complaint in this court on August 4, 2009. (See Doc. 1). Defendants filed a motion to dismiss that complaint on October 5, 2009. (See Doc. 7 ). Plaintiff then filed an amended complaint, making the defendants' initial motion to dismiss moot. (See Doc. 9). The amended complaint raises three counts related to defendants' alleged violations of the Americans with Disabilities Act (ADA), 42 U .S .C . § 12132, and the Rehabilitation Act (RA), 29 U.S.C. Count one seeks a d e c la ra tio n from the court that defendants' policy of excluding from licensing nurses w h o are in a methadone maintenance prorgram violates the ADA and the RA. Count II seeks injunctive relief for this alleged violation of federal anti-discrimination law. Count III seeks damages for these violations. Defendants then filed a motion to d is m is s this amended complaint. (Doc. 13). The parties briefed the issue, and the c o u rt held oral argument, bringing the case to its present posture. J u r is d ic tio n B e c a u s e the case was brought pursuant to the ADA, 42 U.S.C. §§ 12101, et seq. and the RA, 29 U.S.C, § 794, the court has jurisdiction pursuant to 28 U.S.C. § 1 3 3 1 . ("The district courts shall have original jurisdiction of all civil actions arising u n d e r the Constitution, laws, or treaties of the United States."). Legal Standard D e fe n d a n ts seek dismissal of the complaint pursuant to Federal Rule of Civil 10

Procedure 12(b)(6). W h e n a defendant files a motion pursuant to Rule 12(b)(6), all w e ll-p le a d e d allegations of the complaint must be viewed as true and in the light m o s t favorable to the non-movant to determine whether "under any reasonable re a d in g of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper D a rb y Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (citing Estate of Bailey by O a re v. County of York, 768 F.3d 503, 506 (3d Cir. 1985), (quoting Helstoski v. G o ld s te in , 552 F.2d 564, 565 (3d Cir. 1977) (per curiam)). The court may also c o n s id e r "matters of public record, orders, exhibits attached to the complaint and ite m s appearing in the record of the case." Oshiver v. Levin, Fishbein, Sedran & B e rm a n , 38 F.3d 1380, 1384 n.2 (3d Cir. 1994) (citations omitted). The court does n o t have to accept legal conclusions or unwarranted factual inferences. See CurayC ra m e r v. Ursuline Acad. of W ilm in g to n , Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006) (c itin g Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). The federal rules require only that plaintiff provide "`a short and plain s ta te m e n t of the claim showing that the pleader is entitled to relief,'" a standard w h ic h "does not require `detailed factual allegations,'" but a plaintiff must make "`a s h o w in g , rather than a blanket assertion, of entitlement to relief' that rises `above the s p e c u la tiv e level.'" McTernan v. City of York, 564 F.3d 636, 646 (3d Cir. 2009) (q u o tin g Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The "c o m p la in t must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)

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(quoting Twombly, 550 U.S. at 570). Such "facial plausibility" exists "when the p la in tiff pleads factual content that allows the court to draw the reasonable inference th a t the defendant is liable for the conduct alleged." Id. D is c u s s io n D e fe n d a n ts seek dismissal of plaintiff's complaint on a number of grounds. The court will address each in turn. i. Abstention D e fe n d a n ts first characterize plaintiff's claim as a collateral attack on an a g e n c y decision and argue that the court should abstain from hearing this case for th e principles of federalism stated in Younger v. Harris, 401 U.S. 37 (1971), and the c a s e s that followed. They contend that plaintiff's complaint seeks to overturn a d e c is io n by a state administrative agency that was judicial in nature, involved im p o rta n t state interests, and provided plaintiff an opportunity to raise objections b a s e d on the ADA and RA. Plaintiff contends that her complaint challenges the c o n d u c t of state officials, not state statutes, and is thus not barred by the abstention d o c trin e . She challenges an unwritten policy of excluding methadone maintenance fro m approved treatment, and thus focuses on the conduct of officials, not the d e c is io n made by the Board of Nursing. This anti-methadone policy is not part of the a d m in is tra tiv e procedures, and plaintiff seeks mainly prospective relief in preventing o p e ra tio n of that policy in the future. "A federal district court has discretion to abstain from exercising jurisdiction 12

over a particular claim where resolution of that claim in federal court would offend p rin c ip le s of comity by interfering with an ongoing state proceeding." Addiction S p e c ia lis ts , Inc. v. Twp. of Hampton, 411 F.3d 399, 408 (3d Cir. 2005). Abstention, h o w e ve r, applies only "rarely," and only "in a few carefully defined situations." Id. (q u o tin g Arkenbrandt v. Richards, 504 U.S. 689, 705 (1992); Gwynedd Properties, In c . v. Lower Gwynedd Twp., 970 F.2d 1195, 1199 (3d Cir. 1992)). Three elements a re required for Younger abstention to apply; "(1) there are ongoing state p ro c e e d in g s that are judicial in nature; (2) the state proceedings implicate an im p o rta n t state interest; and (3) the state proceedings afford an adequate o p p o rtu n ity to raise the federal claims." Id. The Supreme Court has extended this a b s te n tio n doctrine to include civil cases, but only where "`the State's interests in the p ro c e e d in g are so important that exercise of the federal judicial power would d is re g a rd the comity between the States and the National Government.'" Gwynedd P ro p e rtie s , Inc. v. Lower Gwynedd Township, 970 F.2d 1195, 1200 (3d Cir. 1992) (q u o tin g Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11 (1987)). Likewise, "[a ]d m in is tra tiv e proceedings are also subject to Younger abstention." Zahl v. H a rp e r, 282 F.3d 204, 208 (3d Cir. 2002). The court finds that Younger abstention cannot apply to this case, as there are n o ongoing state proceedings and the state court proceedings are final. In cases th a t arise from state proceedings which have "been reviewed extensively and with fin a lity by the state courts" and where "there is no longer any state court action

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pending or ongoing, resolution of the federal claims cannot impermissibly interfere w ith such state proceedings, so application of Younger is not appropriate." Taliaferro v. Darby Twp. Zoning Bd., 458 F.3d 181, 192 (3d Cir. 2006); see also H u ffm a n v. Pursue, Ltd., 420 U.S. 592, 602 (1975) (finding that "a necessary c o n c o m ita n t of Younger is that a party in appellee's posture must exhaust his state re m e d ie s before seeking relief in the District Court, unless he can bring himself w ith in one of the exceptions specified in Younger). Plaintiff here did not bring her c a s e until she had no remedy available in state court; there is thus no reason for the c o u rt to avoid hearing the case on Younger abstention grounds. The motion will be d e n ie d on these grounds. ii. 11th Amendment N e x t, defendants claim that the Eleventh Amendment to the United States C o n s titu tio n bars suit against the state and its agencies under the ADA in this m a tte r.1 The Eleventh Amendment provides that "the Judicial power of the United S ta te s shall not be construed to extend to any suit in law or equity, commenced or p ro s e c u te d against one of the United States by Citizens of another State, or by C itiz e n s or Subjects of any Foreign State." U.S. Const. Amend XI. This prohibition

Plaintiff brings her claims under both the ADA and the RA. The Third Circuit Court of Appeals has made it clear that Eleventh Amendment Immunity is unavailable under the RA, and defendants do not seek dismissal of the RA claims on those grounds. See Bowers v. National Collegiete Athletic Association, 475 F.3d 524, 545 (3d Cir. 2007) ("a state program or activity that accepts federal funds waives its Eleventh Amendment immunity in Rehabilitation Act claims."). 14

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of suits against states applies "to suits by citizens against their own states." Board of T ru s te e s of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363 (2001). Such im m u n ity is not absolute, but "there are only three narrowly circumscribed exceptions to Eleventh Amendment immunity: (1) abrogation by an Act of Congress, (2) waiver b y state consent to suit; and (3) suits against individual state officials for prospective re lie f to remedy an ongoing violation of federal law." M.A. ex rel. E.S. v. StateO p e ra te d Sch. Dist., 344 F.3d 335, 345 (3d Cir. 2003). The issue here is whether C o n g re s s validly abrogated state sovereign immunity in the ADA. Thus, abrogation is valid when Congress: "(1) unequivocally expresses its intent to abrogate that im m u n ity; and (2) act[s] pursuant to a grant of constitutional authority." Bowers v. N C A A , 475 F.3d 524, 550 (3d Cir. 2007). T h e Supreme Court has found that Title I of the ADA, which prohibits d is c rim in a tio n in employment, does not validly waive state sovereign immunity. Id. at 3 7 4 . The question here, however, involves Title II of that Act. Title II of the ADA p ro vid e s that "no qualified individual with a disability shall, by reason of such d is a b ility , be excluded from participation in or be denied the benefits of the services, p ro g ra m s or activities of a public entity, or be subjected to discrimination by any such e n tity.'" 42 U.S.C. § 12132. Plaintiff's claim alleges that she has been deprived or d e n ie d the benefits of a state program and the services of a state agencies through th e PHMP's policy of preventing opiod addicts from utilizing methadone m a in te n a n c e . Plaintiff cannot work as a nurse unless she is licensed by the board,

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and the board will not provide her that license because of a policy plaintiff claims is d is c rim in a to ry . As such, plaintiff has been denied the benefits and services of a p u b lic entity and has stated a claim on those grounds. See, e.g., Hason v. Medical B d ., 279 F.3d 1167, 1172 (3d Cir. 2002) (finding that "[t]he act of licensing involves th e Medical Board (i.e. a "public agency") providing a license (i.e. providing a "s e rvic e ") to an applicant for a medical license."). The question here is whether s o ve re ig n immunity applies to plaintiff's Title II claims.2 C o n g re s s unequivocally expressed its intent to abrogate immunity in Title II of th e ADA. See 42 U.S.C. § 12101(b)(4) ("[a] State shall not be immune under the e le ve n th amendment to the Constitution of the United States for an action in Federal o r State court of competent jurisdiction."). The question here is whether that action w a s valid. The Supreme Court has found that Congress validly abrogated the S ta te s ' 11th Amendment immunity in some circumstances, and that "Title II, as it a p p lie s to the class of cases implicating the fundamental right of access to the c o u rts , constitutes a valid exercise of Congress's § 5 authority to enforce the g u a ra n te e s of the Fourteenth Amendment." Tennessee v. Lane, 541 U.S. 509, 5333 4 (2004). Lane limited its holding to the question of access to the courts, however, a n d plaintiff's claim addresses a different type of discrimination. The question here, th e n , is whether discrimination in licensing on the basis of a plaintiff's disability is the

The parties agree that plaintiff may seek injunctive relief against the individual defendants acting in their official capacities. 16

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sort of violation for which Congress could validly abrogate sovereign immunity p u rs u a n t to Section 5 of the Fourteenth Amendment. In making such a determination, the court must first ask whether the conduct d e s c rib e d by the plaintiff was the sort of conduct that actually violates the Fourteenth A m e n d m e n t. "`Section 5 authorizes Congress to create a cause of action through w h ic h the citizen may vindicate his Fourteenth Amendment rights.'" United States v. G e o rg ia , 546 U.S. 151, 158 (2006) (quoting Lane, 541 U.S. at 559-60). In these c irc u m s ta n c e s , "insofar as Title II creates a private cause of action for damages a g a in s t the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity." Id. at 159 (emphasis in original). Defendant argues that plaintiff cannot demonstrate an actual violation of the F o u rte e n th Amendment by prevailing on her claim that denying her use of m e th a d o n e as a condition of working violates her right to equal protection of the law. The Fourteenth Amendment's Equal Protection clause provides that "no State shall "d e n y to any person within its jurisdiction the equal protection of the laws,' which is e s s e n tia lly a direction that all persons similarly situated should be treated alike." City o f Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 4 5 7 U.S. 202, 216 (1982)). Section 5 allows enforcement of this provision, "but a b s e n t controlling direction, the courts have themselves devised standards for d e te rm in in g the validity of state legislation or other official action that is challenged a s denying equal protection." Id. at 439-40. Generally, "legislation is presumed to

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be valid and will be sustained if the classification drawn by the statute is rationally re la te d to a legitimate state interest." Id. at 440. "If, however, a State classifies on th e basis of race, alienage or national origin or impinges upon a fundamental right s u c h as the right to vote or the right to travel, the classification is subject to strict s c ru tin y analysis." Cochran v. Pinchak, 401 F.3d 184, 192 (3d Cir. 2005). Here, the a lle g e d classification is on the basis of plaintiff's status as a dependent on narcotics; th is is not a suspect class, and the rule need only pass the rational basis test. New D ire c tio n s Treatment Services v. City of Reading, 490 F.3d 293, 301 (3d Cir. 2007); C ity of Cleburne, 473 U.S. at 436, 441-42. In this case, the state's interest in licensing nurses involves insuring that h e a lth professionals are adequately trained and capable of performing their jobs in a w a y that promotes the health and safety of the population. That interest is surely le g itim a te . Requiring that those licensed by the state to perform such vital services a re free of any chemical dependencies is rationally related to that desire to provide fo r public health and safety. W h ile plaintiff may disagree about the defendant's a lle g e d position on methadone, the treatment is controversial and the state could re a s o n a b ly conclude that nurses should not use it. The court therefore finds that C o n g re s s did not validly abrogate state immunity for this conduct. W h ile the court is s ym p a th e tic to the idea that methadone treatment can provide a means for opiod a d d ic ts to function successfully in society, the state is entitled to make an in d e p e n d e n t medical assessment of such treatment. The conduct here alleged does

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not amount to an Equal Protection violation, and thus Congress did not validly a b ro g a te state immunity for an actual 14th Amendment violation. Courts have found, however, that Congress could still validly abrogate s o ve re ig n immunity without pointing to conduct actually violating the 14 th A m e n d m e n t, and the court must also analyze Title II under these circumstances. See, e.g., Bowers, 475 F.3d at 554 ("Having determined that the alleged misconduct in this case states a claim for violation of Title II but not the Fourteenth Amendment, w e arrive at the final step of Georgia's tripartite test [which] requires [us] to d e te rm in e whether Congress's purported abrogation of state sovereign immunity is n e ve rth e le s s valid."). Though Congress's power to act under Section 5 is broad, "it is not unlimited." Id. at 551. Congress cannot act to "work `a substantial change in th e governing law.'" Id. (quoting City of Boerne v. Flores, 521 U.S. 507, 519 (1997)). Legislation passed pursuant to Section 5 "is valid if it exhibits `a congruence and p ro p o rtio n a lity between the injury to be prevented or remedied and the means a d o p te d to that end.'" Id. (quoting Lane, 541 U.S. 520). This "congruence and p ro p o rtio n a lity " test "requires [the court] to identify: (1) with some precision the c o n s titu tio n a l right at issue; (2) whether Congress identified a history and pattern of u n c o n s titu tio n a l discrimination by the States against the disabled; and (3) whether th e rights and remedies created by the statute are congruent and proportional to the c o n s titu tio n a l rights it purports to enforce and the record of constitutional violations a d d u c e d by Congress." Id.

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Here, the right at issue, as in Bowers, is "the right to be free from irrational d is a b ility discrimination." Bowers, 475 F.3d at 555. Plaintiff contends that officials d e n ie d her the right to practice nursing because she is a drug addict who uses m e th a d o n e to treat her condition. Such treatment is not rational, she alleges, since m e th a d o n e makes it possible for her safely to perform her job. She contends that s h e was denied licensing as a nurse because of her use of methadone maintenance to treat her disability, and was thus treated differently than others seeking licensing. Defendants argue that plaintiff's claim fails based on the second part of the "congruence and proportionality" test. They insist that Congress did not develop a le g is la tiv e record of discrimination in issuing and suspending professional licenses. Defendant cites to Roe v. Johnson, 334 F. Supp. 2d 415 (S.D.N.Y. 2004), for that p ro p o s itio n . In Roe, the plaintiff suffered from depression when she filed an a p p lic a tio n for admission to the New York bar in July 2002. Id. at 417. After the b a r's screening committee demanded information on plaintiff's medical condition, s h e sued claiming that the question on the screening form violated the Title II of the A D A . Id. at 418. The State of New York sought to have plaintiff's case dismissed o n sovereign immunity grounds. The district court granted this motion. The court fo u n d that under Lane, Congress did not validly abrogate state immunity in the c o n te xt of an application for admission to a state bar because Congress had not m a d e a finding of "a pattern of state discrimination" in licensure and employment of in d ivid u a ls with disabilities, and "[t]here is therefore no basis to determine that Title

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II, as applied to cases challenging a state's denial of admission to the bar, is n e c e s s a ry to enforce the Fourteenth Amendment in the face of an established p a tte rn of state discrimination." Id. at 423. The court thus found "Title II, as applied to cases challenging a state's decisions concerning an applicant's admission to the b a r, is an invalid exercise of congressional power under Section 5" of the Fourteenth A m e n d m e n t and barred plaintiff from seeking damages against the state, state e n titie s , or state actors in their official capacities. Id. T h e court notes that Roe v. Johnson has only persuasive authority in this action. The court finds that defendants demand too narrow an interpretation of C o n g re s s 's findings of a pattern of state discrimination; courts in this circuit have c o n c lu d e d that Congress found a broad swath of disability discrimination in the p ro vis io n of state services when it enacted Title II. In Bowers, the Third Circuit Court o f Appeals found that "[t]he Court in Lane concluded that Congress had clearly id e n tifie d a history and pattern of disability discrimination with respect to public s e rvic e s ." Id. In a footnote, the court noted that in Lane the Supreme Court "c o n s id e re d evidence of disability discrimination in a variety of public services, not ju s t limited to access to the courts." Id. at 555 n.35. The Court had "referenc[ed] vo tin g , serving as jurors, unjustified commitment, abuse and neglect of young p e rs o n s committed to state mental hospitals, and irrational discrimination in zoning d e c is io n s ." Id. Indeed, the court concluded that "[s]ubsequent decisions of the c o u rts of appeals have recognized that the second prong of the Boerne test was

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conclusively established with respect to Title II by the Lane Court." Id. Thus, the c o u rt concludes that Congress found a history and pattern of discrimination by the s ta te s in the provision of services to persons with disabilities, and thus met part two o f the Boerne test. See, e.g., Cochran v. Pinchak, 401 F.3d 184, 188 (3d Cir. 2005) (a g re e in g with the finding that "`Title II in its entirety satisfies Boerne's step-two re q u ire m e n t that it be enacted in response to a history and pattern of States' c o n s titu tio n a l violations.'") (quoting Miller v. King, 384 F.3d 1248, 1272 (11th Cir. 2 0 0 4 )). The court must now determine whether "the rights and remedies created by th e statute are congruent and proportional to the constitutional rights it purports to e n fo rc e and the record of constitutional violations adduced by Congress." Bowers, 4 7 5 F.3d at 551. Title II of the ADA provides in relevant part that "no qualified in d ivid u a l with a disability shall, by reason of such disability, be excluded from p a rtic ip a tio n in or be denied the benefits of the services, programs, or activities of a p u b lic entity, or be subjected to discrimination by such entity." 42 U.S.C. § 12132. As applied to state licensing and regulation of medical professionals, the remedies p ro vid e d in Title II of the ADA are congruent and proportional to the problem of d is a b ility discrimination identified by Congress. Congress prohibits exclusion of and d is c rim in a tio n against people with disabilities in such areas, thus guaranteeing that q u a lifie d disabled people are not excluded from an opportunity to practice p ro fe s s io n s for which they have studied and trained. At the same time, the law does

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not disrupt the ability of states to examine and license such professionals, and does n o t interfere with the state's interest in regulating the practice of medicine. Because th e means chosen by Congress to address this problem are congruent and p ro p o rtio n a l to the discrimination identified by legislators, Congress validly abrogated s ta te sovereign immunity in this area. The court will deny defendants' motion on th o s e grounds. iii. Damages Against Individuals D e fe n d a n ts also argue that the ADA and RA do not authorize damages a g a in s t individuals, and that any claims for damages against the individual d e fe n d a n ts must be dismissed. The Third Circuit Court of Appeals has found that "in d ivid u a ls are not liable under Titles I and II of the ADA, which prohibit d is c rim in a tio n by employers and public entities respectively." Emerson v. Thiel C o lle g e , 296 F.3d 185, 189 (2002). As such, none of the individual defendants can b e liable in their individual capacities for damages under Title II of the ADA, the p ro vis io n of the statute under which plaintiff brings her claims. Moreover, the Court o f Appeals has concluded that the RA applies only to entities which receive federal fin a n c ia l assistance for a program or activity; since an individual defendant does not re c e ive such financial aid, individual defendants cannot be liable under the act. Id. a t 190. Plaintiff therefore cannot recover damages under the RA against the in d ivid u a l defendants in their individual capacities. The court will therefore grant the m o tio n on these grounds.

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iv. Quasi-Judicial Immunity D e fe n d a n ts argue that the doctrine of quasi-judicial immunity bars plaintiff's c la im s against the individual members of the nursing board. Courts have concluded th a t some government officials enjoy a quasi-judicial immunity from suit. This d o c trin e holds that "government actors whose acts are relevantly similar to judging a re immune from suit." Dotzel v. Ashbridge, 438 F.3d 320, 325 (3d Cir. 2006). Thus, "if a state official must walk, talk, and act like a judge as part of his job, then he is as absolutely immune from lawsuits arising out of that walking, talking, and acting a s are judges who enjoy the title and other formal indicia of office." Id. Defendant contends that plaintiff sues the individual defendants on the basis o f their decision to suspend her from nursing, which was an administrative decision m a d e in the defendants' capacities as members of the Nursing Board. As such, the d e c is io n is the sort of adjudicatory finding that entitles defendants to quasi-judicial im m u n ity. Plaintiff responds that the allegations against these defendants are d ire c te d not at their decision to suspend plaintiff, but at their formulation of a policy th a t plaintiff contends discriminates against her. T h e court agrees with the plaintiff. Taking all the plaintiff's allegations in the lig h t most favorable to her, she alleges that defendants formulated a policy designed to deny anyone on methadone maintenance a nursing license. The lawsuit is about th e formulation of this policy, not the decision to suspend plaintiff because of it. W h ile plaintiff will have to demonstrate after discovery that the defendants actually

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created this policy, at this point in the litigation plaintiff's allegations are sufficient to s u rvive a motion to dismiss. The court will deny the motion on these grounds. v. Defendant Merenda F in a lly, defendants insist that plaintiff's complaint does not identify Defendant B a s il L. Merenda other than to identify him as a party. As such, plaintiff has not s ta te d a claim against this defendant, and he should be dismissed from the case. Plaintiff responds that she has identified Commissioner Merenda as Commissioner o f the Pennsylvania Bureau of Professional and Occupational Affairs, the agency s h e alleges established the policy excluding methadone patients from licensing, and th u s as the author of the policy about which she complains. The court agrees with the plaintiff. W h ile her complaint could be more p re c is e , plaintiff does allege with sufficient particularity that Defendant Merenda is o n e of the authors of the policy about which she complains. W h ile discovery may re ve a l that the policy does not exist, or that Merenda had nothing to do with its d e ve lo p m e n t, at this point in the litigation plaintiff has sufficiently alleged that the M e re n d a drafted a policy designed to discriminate against her because of her d is a b ility . The court will deny the motion on this point. C o n c lu s io n F o r the reasons stated above, the court will grant the motion in part and deny it in part. The court will grant the motion as it relates to damages against the in d ivid u a l defendants under the ADA and RA; damages are available under those 25

acts, however, from the Commonwealth. The motion is denied in all other respects. An appropriate order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA MELINDA LAMBERSON REYNOLDS, : No. 3:09cv1492 Plaintiff : : (Judge Munley) : : v. : : COMMONWEALTH OF : PENNSYLVANIA; : PENNSYLVANIA DEPARTMENT OF : STATE; : PENNSYLVANIA BUREAU OF : PROFESSIONAL AND : OCCUPATIONAL AFFAIRS; : PENNSYLVANIA DIVISION OF : PROFESSIONAL HEALTH : MONITORING PROGRAMS; : PENNSYLVANIA STATE BOARD OF : NURSING; : BASIL L. MERENDA; : LINDA TANZINI AMBROSO; : K. STEPHEN ANDERSON; : CHRISTOPHER BARTLETT; : RAFAELA COLON; : KATHLEEN M. DWYER; : JUDY A. HALE; : SUZANNE M. HENDRICKS; : JOSEPH J. NAPOLITANO; : ANN L. O'SULLIVAN; : JANET H. SHIELDS; and : JOANNE L. SORENSEN; : Defendants : ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

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ORDER AN D NOW, to wit, this 21st day of June 2010, the defendants' motion to d is m is s the amended complaint (Doc. 13) is hereby GRANTED in part and DENIED in part, as follows: 1 ) The motion is GRANTED with respect to plaintiff's claims for damages a g a in s t the individual defendants pursuant to the Americans with Disabilities A c t and the Rehabilitation Act; and 2 ) The motion is DENIED in all other respects. B Y THE COURT:

s / James M. Munley JUDGE JAMES M. MUNLEY U N IT E D STATES DISTRICT COURT

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