Campbell v. Pallito et al

Filing 35

OPINION AND ORDER granting 24 Motion for Judgment on the Pleadings; denying 25 Motion to Compel. Pltf is granted leave to file an amended complaint within 30 days. Signed by Judge William K. Sessions III on 1/5/2016. (jam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

GORDON E. CAMPBELL, JR.,
Plaintiff,
v.
ANDREW PALLITO and
DAVID MINER,
Defendants.

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Case No. 2:14-cv-93

Opinion and Order
Plaintiff Gordon E. Campbell, Jr., proceeding pro se,
brings this action against Defendants Andrew Pallito and David
Miner in both their individual and official capacities.

Pallito

is the Commissioner of the Vermont Department of Corrections
(“Department”), and Miner is the District Manager of the
Bennington Probation and Parole Office.

In his complaint,

Campbell alleges that the Department has failed to make a
reasonable accommodation for his learning disabilities so that
he can participate in a treatment program ordered as a condition
of his probation.

Campbell seeks both injunctive relief and

$25,000 in damages.
Now before the Court are Defendants’ motion for judgment on
the pleadings (ECF No. 24) and Campbell’s motion to compel

discovery (ECF No. 25).

For the reasons explained below,

Defendants’ motion is granted, Campbell’s motion is denied, and
Campbell is granted leave to file an amended complaint within 30
days.
BACKGROUND
According to his complaint, Plaintiff Campbell began
participating in a treatment program as a condition of probation
in or around January 2014.

ECF No. 3 at 2.

Campbell alleges

that he has been diagnosed with various learning disabilities
and short-term memory deficit, and that he informed a Burlington1
probation officer that he requires a reasonable accommodation
for his intellectual disabilities in order to participate in
treatment.

ECF No. 3 at 2.

Despite his request, Campbell

claims that the Department has yet to provide him with an
accommodation.

ECF No. 3 at 2.

On May 7, 2014, Campbell filed this action against
Defendants Pallito and Miner in both their individual and
official capacities.

ECF No. 3.

Campbell asserts that the

Department has denied him a reasonable accommodation and
requests injunctive relief, as well as $25,000 in damages.
No. 3 at 2-3.

ECF

Defendants filed an Answer on July 7, 2014, ECF

No. 7, and moved for judgment on the pleadings on March 9, 2015,

1

In his complaint, Campbell states that “when [he] was let go from
court . . . [he met] with a probation officer from Burlington.” ECF No. 3 at
2. Because Campbell is supervised by the probation office in Bennington,
however, it is unclear whether he wrote “Burlington” by mistake.

2

ECF No. 24.

Campbell filed his motion to compel discovery on

March 18, 2015.

ECF No. 25.
DISCUSSION

I.

Defendants’ Motion for Judgment on the Pleadings
A. Legal Standard
In deciding a motion for judgment on the pleadings under

Federal Rule of Civil Procedure 12(c), district courts employ
the same standard applicable to motions to dismiss pursuant to
Rule 12(b)(6).
2010).

Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir.

Accordingly, the Court will accept all factual

allegations in the complaint as true and draw all reasonable
inferences in Plaintiff’s favor.

Id.

In order to survive a

Rule 12(c) motion, Plaintiff’s complaint “must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.”
omitted).

Id. (internal quotation

A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (citing Bell Atl. Corp. v. Twombley, 550 U.S. 544, 556
(2007)).
Furthermore, in a case in which the plaintiff is
unrepresented by counsel, a court “must interpret the factual
allegations of a pro se complaint to raise the strongest
3

arguments that they suggest.”

Grullon v. City of New Haven, 720

F.3d 133, 139 (2d Cir. 2013) (internal quotation omitted).

“A

pro se complaint should not be dismissed without the Court
granting leave to amend at least once when a liberal reading of
the complaint gives any indication that a valid claim might be
stated.”

Id.

(internal quotation and alterations omitted).

B. Plaintiff’s 42 U.S.C. § 1983 Claim
In his complaint, Campbell explicitly states that he is
bringing the present suit pursuant to 42 U.S.C. § 1983.
3 at 2.

ECF No.

Section 1983 provides a cause of action against “any

person who, acting under color of state law, deprives another of
a right, privilege or immunity secured by the Constitution or
the laws of the United States.”

Thomas v. Roach, 165 F.3d 137,

142 (2d Cir. 1999) (citing 42 U.S.C. § 1983).

“Section 1983

itself creates no substantive rights; it provides only a
procedure for redress for the deprivation of rights established
elsewhere.”

Id. (internal citations omitted).

Thus, to succeed

on a § 1983 claim, “a plaintiff must establish that a person
acting under color of state law deprived him of a federal
right.”

Id. (internal citations omitted).
1. The Alleged Violation of Plaintiff’s Federal Rights

As an initial matter, Campbell does not make clear in his
complaint which of his federal rights he claims Defendants to
have violated.

Campbell states only that the Department has
4

denied him a reasonable accommodation for his intellectual
disabilities, making no mention of how Defendants’ conduct
deprived him of a specific federal right.

See ECF No. 3 at 2.

Construing Campbell’s pleadings liberally, as the Court must,
the complaint may be read to allege a violation of the Americans
with Disabilities Act (“ADA”) or the Equal Protection Clause of
the Fourteenth Amendment.

As plead, however, Campbell’s § 1983

claim cannot survive Defendants’ motion for judgment on the
pleadings.
Beginning with the alleged ADA violation, it is well
settled in the Second Circuit that “[a] § 1983 action may
not . . . be brought to vindicate rights conferred only by a
statute that contains its own structure for private
enforcement.”

Patterson v. Cnty. of Oneida, 375 F.3d 206, 225

(2d Cir. 2004) (internal citation omitted).

Reasonable

accommodation for a disability in a public program is a right
secured by statute, see ADA, 42 U.S.C. 12132, not the
Constitution, see Bd. of Trs. of Univ. of Ala. V. Garrett, 531
U.S. 356, 368 (2001) (“If special accommodations for the
disabled are to be required, they have to come from positive law
and not through the Equal Protection Clause.”).

Thus, insofar

as Campbell’s claim of disability discrimination is based on the
substantive rights provided by the ADA, it is not actionable
under § 1983.

See EC ex rel. RC v. Cnty. of Suffolk, 882 F.
5

Supp. 2d 323, 355 (E.D.N.Y. 2012) (“ADA has its own right of
enforcement and, consequently, an ADA action may not be brought
pursuant to 42 U.S.C. § 1983.”).
Next, Campbell’s complaint may also be read to assert a
violation of the Equal Protection Clause of the Fourteenth
Amendment.

The Fourteenth Amendment provides in part that “[n]o

State shall . . . deny to any person within its jurisdiction the
equal protection of the laws.”

U.S. Const. amend. XIV, § 1.

That provision, known as the Equal Protection Clause, “is
essentially a direction that all persons similarly situated
should be treated alike.”

City of Cleburne v. Cleburne Living

Ctr., 473 U.S. 432, 439 (1985) (internal citation omitted).
When evaluating a claim brought under the Equal Protection
Clause, the general rule is that state legislation or other
official action “is presumed to be valid and will be sustained
if the classification drawn by the [official action] is
rationally related to a legitimate state interest.”
(internal citations omitted).

Id. at 440

“The general rule gives way,

however, when [the official action] classifies by race,
alienage, or national origin.”

Id.

In those cases, the action

is “subjected to strict scrutiny and will be sustained only if
[it is] suitably tailored to serve a compelling state interest.”
Id.

A classification based on gender also “call[s] for a

heightened standard of review” and “fails unless it is
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substantially related to a sufficiently important governmental
interest.”

Id. at 440-41.

With respect to the intellectually disabled, the Supreme
Court has held that they are not a suspect class for the
purposes of the Equal Protection Clause.

Id. at 442; accord

Suffolk Parents of Handicapped Adults v. Wingate, 101 F.3d 818,
824 n.4 (2d Cir. 1996) (declining to treat disabled individuals
as a protected class under the Equal Protection Clause).

Of

course, the fact that the intellectually disabled are not
considered a suspect class “does not leave them entirely
unprotected from invidious discrimination.”
473 U.S. at 446.

City of Cleburne,

Rather, official action “that distinguishes

between the [intellectually disabled] and others must be
rationally related to a legitimate government purpose.”

Id.

In the present matter, Campbell has not asserted any facts
indicating that he is a member of a suspect class.
3 at 2.

See ECF No.

Moreover, Campbell’s allegations do not identify any

official action that distinguished between treatment
participants with intellectual disabilities and treatment
participants without such disabilities.

See ECF No. 3 at 2.

The complaint states only that the Department did not make a
reasonable accommodation for Campbell’s learning disabilities.
ECF No. 3 at 2.

Absent a more specific claim that Defendants

treated him differently than similarly-situated non-disabled
7

persons on account of his intellectual disabilities, Campbell
has failed to adequately plead a violation of the Fourteenth
Amendment.
Finally, Campbell’s complaint may also assert that he was
unfairly denied a reasonable accommodation by Defendants
irrespective of his intellectual disabilities.

The Supreme

Court has recognized a “class of one” equal protection claim
“where the plaintiff alleges that [he] has been intentionally
treated differently from others similarly situated and that
there is no rational basis for the difference in treatment.”
Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

To

succeed on such a claim, “a plaintiff must establish that (i) no
rational person could regard the circumstances of the plaintiff
to differ from those of a comparator to a degree that would
justify the differential treatment on the basis of a legitimate
government policy; and (ii) the similarity in circumstances and
difference in treatment are sufficient to exclude the
possibility that the defendants acted on the basis of a
mistake.”

Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d

55, 60 (2d Cir. 2010) (internal citation omitted).
Here, Campbell has not sufficiently stated such a claim.
As Defendants note, Campbell’s complaint does not contain any
information regarding similarly situated individuals.
No. 3 at 2.

The complaint also fails to describe how Defendants
8

See ECF

have treated Campbell differently than any other participant in
the treatment program.

See ECF No. 3 at 2.

Accordingly,

Campbell has not properly pleaded a “class of one” equal
protection claim, and has failed to demonstrate a violation of
his federal rights.
2. Eleventh Amendment Sovereign Immunity
Beyond contending that Campbell has failed to allege a
violation of his federal rights, Defendants submit that
Campbell’s § 1983 claim against Pallito and Miner in their
official capacities is barred by Vermont’s sovereign immunity.
Under the doctrine of sovereign immunity, the Eleventh Amendment
prohibits suits by private citizens against a state or its
agencies in federal court unless the state has waived its
immunity or Congress has properly abrogated the state’s
immunity.

See Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 98-99 (1984).

The protection of the Eleventh Amendment

also extends to suits for monetary damages against state
officers sued in their official capacities.

Kentucky v. Graham,

473 U.S. 159, 169 (1985); Davis v. New York, 316 F.3d 93, 101
(2d Cir. 2002) (“[A] claim for damages against state officials
in their official capacity is considered to be a claim against
the State and is therefore barred by the Eleventh Amendment.”).
The protection does not extend, however, to injunctive or

9

declaratory actions brought against state officials in their
official capacities.

Kentucky v. Graham, 473 U.S. at 169 n.18.

Here, neither Vermont nor Congress has waived the sovereign
immunity that protects Defendants from suits for damages brought
against them in their official capacities.

Vermont has

expressly preserved its immunity under the Eleventh Amendment,
see 12 V.S.A. § 5601(g) (Vermont Tort Claims Act reserves
Eleventh Amendment immunity for all claims not explicitly
waived), and Congress did not intend to abrogate the states’
sovereign immunity by enacting § 1983, see Quern v. Jordan, 440
U.S. 332, 340-41 (1979).

Accordingly, the Campbell’s § 1983

claim for monetary damages against Pallito and Miner in their
official capacities is barred by the Eleventh Amendment.
3. Personal Involvement
With respect to Campbell’s § 1983 claim against Pallito and
Miner in their individual capacities, Defendants contend that
Campbell has failed to show that Pallito and Miner were
personally involved in the alleged unlawful conduct.

The Second

Circuit has long held that “personal involvement of defendants
in alleged constitutional deprivations is a prerequisite to an
award of damages under § 1983.”

Wright v. Smith, 21 F.3d 496,

501 (2d Cir. 1994) (internal quotation omitted).
involvement can be shown by evidence that:

10

Personal

(1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after
being informed of the violation through a report or
appeal, failed to remedy the wrong; (3) the defendant
created a policy or custom under which
unconstitutional practices occurred, or allowed the
continuance of such a policy or custom, (4) the
defendant was grossly negligent in supervising
subordinates who committed wrongful acts; or (5) the
defendant exhibited deliberate indifference to the
rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (internal
citation omitted).
Here, Campbell’s complaint does not assert sufficient facts
to show that either Defendant was personally involved in the
alleged violation of Campbell’s federal rights.

With respect to

Pallito, the complaint in no way suggests that he had any
involvement in the purported misconduct.

In fact, Pallito’s

name is not mentioned anywhere in the complaint outside of the
case caption.

As to Miner, Campbell states only that he

“[oversees] the Bennington office and he would not talk to
[Campbell] and he should be aware of what[] [is] going
on . . . .”

ECF No. 3 at 2.

Such assertions are similarly

inadequate to establish personal involvement for a claim brought
under § 1983.
For the reasons explained above, Campbell’s complaint fails
to state a plausible claim for relief under § 1983.

11

Accordingly, Defendants motion for judgment on the pleadings
with respect to Campbell’s § 1983 claim is granted.
C. Plaintiff’s ADA Claim
In addition to raising a claim under § 1983, Campbell’s
complaint may be liberally interpreted to allege a violation of
Title II of the ADA.

Under Title II, “no qualified individual

with a disability shall, by reason of such disability, be
excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be
subjected to discrimination by any such entity.”
12132.

42 U.S.C. §

To prevail on a violation of Title II, a plaintiff must

therefore establish “(1) that he is a ‘qualified individual’
with a disability; (2) that he was excluded from participation
in a public entity’s services, programs or activities or was
otherwise discriminated against by a public entity; and (3) that
such exclusion or discrimination was due to his disability.”
Mary Jo C. v. New York State and Local Ret. Sys., 707 F.3d 144,
153 (2d Cir. 2013) (internal citation omitted).
In the present case, Campbell asserts in his complaint that
he has been diagnosed with various learning disabilities and
short-term memory deficit.

ECF No. 3 at 2.

Campbell further

states that he has been participating in a treatment program as
a condition of his probation, and that the Department has denied
his request for a reasonable accommodation for his learning
12

disabilities. ECF No. 3 at 2.

Defendants offer several

arguments as to why Campbell’s Title II claim should be
dismissed.
1. Individual Liability
Defendants first submit that Campbell’s Title II claim
against Pallito and Miner in their individual capacities should
be dismissed.

As Defendants correctly assert, there is no

individual liability under Title II of the ADA.

Garcia v.

S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d
Cir. 2001) (indicating that “neither Title II of the ADA nor §
504 of the Rehabilitation Act provides for individual capacity
suits against state officials.”).

Accordingly, the Court grants

Defendants’ motion for judgment on the pleadings as to
Campbell’s Title II claim against Pallito and Miner in their
individual capacities.
2. Eleventh Amendment Sovereign Immunity
Next, Defendants assert that Campbell’s Title II claim for
monetary damages against Defendants in their official capacities
must be dismissed on the grounds that Title II is an invalid
abrogation of Eleventh Amendment immunity.

As stated above, the

Eleventh Amendment prohibits suits by private citizens against a
state or its agencies in federal court unless the state has
waived its immunity or Congress has properly abrogated the
state’s immunity.

See Pennhurst State Sch. & Hosp., 465 U.S. at
13

98-99.

The protection of the Eleventh Amendment also extends to

suits for monetary damages against state officers sued in their
official capacities.

Kentucky v. Graham, 473 U.S. at 169

(1985).
With respect to Title II of the ADA, it is clear that
Vermont has not waived its sovereign immunity.
5601(g).

See 12 V.S.A. §

It is less clear, however, whether Title II is a valid

abrogation of the states’ sovereign immunity.

Congress may

abrogate the states’ sovereign immunity “if it makes its
intention to abrogate unmistakably clear in the language of the
statute and acts pursuant to a valid exercise of its power under
§ 5 of the Fourteenth Amendment.”

Nevada Dept. of Human Res. v.

Hibbs, 538 U.S. 721, 726 (2003) (internal citations omitted).
In determining whether there has been a valid abrogation of
sovereign immunity for the purposes of a private action for
monetary damages under Title II, district courts in the Second
Circuit have applied the three-part test presented by the
Supreme Court in United States v. Georgia, 546 U.S. 151 (2006).
Pursuant to the test set forth in Georgia, a reviewing court is
to determine, “‘on a claim-by-claim basis, (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 Amendment, whether Congress’s purported
14

abrogation of sovereign immunity as to that class of conduct is
nevertheless valid.’”

Goonewardena v. New York, 475 F. Supp. 2d

310, 323 (S.D.N.Y. 2007) (quoting Georgia, 546 U.S. at 159); see
also Andino v. Fischer, 698 F. Supp. 2d 362, 377 (S.D.N.Y.
2010).
Here, as discussed below, Campbell has failed to show that
the state’s alleged conduct violated Title II of the ADA.
Therefore, the Court need not reach the constitutional question
addressed by the remaining two prongs of the Georgia analysis.
See Goonewardena, 475 F. Supp. 2d at 323 (“If there is no
violation of Title II, then the Georgia analysis ends and the
claim is dismissed on the ground that plaintiff has failed to
state a claim rather than that the court lacks jurisdiction due
to sovereign immunity.”).
3. Plaintiff’s Reasonable Accommodation Claim
Finally, Defendants contend that Campbell has failed to
establish the second element of a Title II violation.

The

second element a plaintiff must prove to demonstrate a violation
of Title II is that he was denied the opportunity to participate
in or benefit from a public entity’s services, programs, or
activities, or was otherwise discriminated against by the public
entity.

See 42 U.S.C. § 12132; Mary Jo C., 707 F.3d at 153.

Here, Campbell admits in his complaint that he has been
participating in the treatment program.
15

ECF No. 3 at 2.

Moreover, although he states that he has asked for “help” and a
“reasonable accommodation,” nowhere in his complaint does he
explain what the program requires and/or offers, or how he has
been denied the benefits of the program.

In fact, the complaint

is entirely devoid of any substantive information regarding the
program.

Thus, because it is unclear what the program involves

and how Campbell’s intellectual disabilities impact his ability
to engage in treatment, Campbell has failed to demonstrate that
he has been denied the opportunity to participate in or benefit
from the Department’s treatment program.

See Henrietta D. v.

Bloomberg, 331 F.3d 261, 277 (2d Cir. 2003) (holding that a
reasonable accommodation claim under Title II requires a
plaintiff to “demonstrate that a disability makes it difficult
for [him] to access benefits that are available to both those
with and without disabilities.”).
Furthermore, Campbell has failed to demonstrate that
Defendants have otherwise discriminated against him.

It is

well-established that a defendant discriminates within the
meaning of Title II “when it fails to make a reasonable
accommodation that would permit a qualified disabled individual
to have access to and take a meaningful part in public
services.”
Cir. 2012).

McElwee v. Cty. of Orange, 700 F.3d 635, 640 (2d
The burden is on the plaintiff, however, to prove

that an accommodation exists.

Jackan v. New York State Dept. of
16

Labor, 205 F.3d 562, 566 (2d Cir. 2000).2

It is then a factual

issue “whether a plaintiff’s proposed modifications amount to
‘reasonable modifications’ which should be implemented, or
‘fundamental alterations,’ which the state may reject.”

Mary

Jo. C, 707 F.3d at 153 (internal quotation and alterations
omitted).
In the present case, as Defendants note, Campbell has not
proposed any accommodation.

See ECF No. 3 at 2.

The complaint

states that Campbell has asked for “help,” but it does not
suggest what type of help the Department should provide.
ECF No. 3 at 2.

See

Such a vague statement cannot serve to

establish that Defendants have discriminated against Campbell by
failing to provide him with a reasonable accommodation, for it
does not adequately identify the type of accommodation required.
For all of the reasons stated above, Defendants’ motion for
judgment on the pleadings with respect to Campbell’s ADA claim
is granted.
II.

Plaintiff’s Motion to Compel Discovery

The Court now turns to Campbell’s motion to compel
discovery.

In his motion, Campbell requests an order requiring

Defendants to turn over “all Discovery.”

ECF No. 25.

2

Jackan addresses reasonable accommodation claims in the context of Title I
of the ADA. In McElwee, however, the Second Circuit indicated that in cases
brought under Title II of the ADA, courts may look for guidance to case law
under Title I, in part because “courts use the terms ‘reasonable
modifications’ in Title II and ‘reasonable accommodations’ in Title I
interchangeably.” 700 F.3d at 640 n.2 (internal citations omitted).

17

Pursuant to Local Rule 26(d)(2), a party filing a motion to
compel must include an affidavit stating that he has made a good
faith effort to resolve the dispute without court intervention.
The affidavit must also list any unresolved issues and the
reasons therefore, as well as the dates and other details
regarding the communications between the parties.

See Local

Rule 26(d)(2).
Here, although Campbell’s motion includes correspondence
that he has sent to opposing counsel, it fails to provide an
affidavit with the information required by the Local Rule.

Most

importantly, the motion does not indicate any particular issues
that are outstanding.

Rather, it simply requests that

Defendants turn over “all Discovery.”

ECF No. 25.

In addition,

Defendants indicate that the Department has already provided
Campbell with (1) a copy of its ADA policy; (2) all of the ADA
documentation related to Campbell’s treatment while in the
community; (3) all case notes related to Campbell’s programming
in the community; and (4) Campbell’s treatment records.
No. 27.

See ECF

The remainder of Campbell’s requests, as evidenced by

his letters to opposing counsel, appear to pertain to documents
unrelated to the claims at bar.

Thus, lacking compliance with

the Local Rule, and given that records beyond those relevant to
Campbell’s claims are not discoverable, see Fed. R. Civ. P.
26(b)(1), the motion to compel is denied.
18

CONCLUSION
As explained above, Defendants’ motion for judgment on the
pleadings (ECF No. 24) is granted, and Plaintiff’s motion to
compel discovery (ECF No. 25) is denied.

In addition, Plaintiff

is granted leave to file an amended complaint within 30 days.
Plaintiff’s amended complaint shall not include a 42 U.S.C. §
1983 claim for monetary damages against Pallito or Miner in
their official capacities, as such a claim is barred by the
Eleventh Amendment.

Nor shall Plaintiff’s amended complaint

include a claim brought under Title II of the ADA against
Pallito or Miner in their individual capacities, as Title II of
the ADA does not provide for individual liability.

Failure to

file an amended complaint within 30 days may result in the
dismissal of Plaintiff’s suit with prejudice.
Dated at Burlington, in the District of Vermont, this 5th
day of January, 2016.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

19