Luxenberg et al v. Vermont Department of Disabilities Aging and Independent Living et al

Filing 296

ENTRY ORDER granting in part 273 Motion for Sanctions. Plaintiff Linda Luxenberg's personal injury and emotional distress claims are DISMISSED and may nonetheless pursue a claim for nominal damages. Signed by Chief District Judge Christina Reiss on 11/26/2024. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
LINDA LUXENBERG and
KELCEY LUXENBERG, as Guardians
and next best friends of JOHN DOE;
LINDA LUXENBERG, for herself; and
JOHN DOE,
Plaintiffs,
V.

VERMONT DEPARTMENT OF
DISABILITIES, AGING AND
INDEPENDENT LIVING; MONICA
WHITE, in her official and individual
capacities; JENNIFER GARABEDIAN,
in her official and individual capacities;
WASHINGTON COUNTY MENTAL
HEAL TH SERVICES INC.; MARY
MOUL TON, in her official and individual
capacities; and LAMOILLE COUNTY
MENTAL HEALTH SERVICES, INC.,
Defendants.

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U.S. DISTRICT COURT
DISTRICT OF VERHONT
C!LfD

702Q NOV 26 AH 9: 39

Case No. 2:22-cv-00188

ENTRY ORDER GRANTING IN PART DEFENDANTS'
RULE 37 MOTION FOR SANCTIONS
(Doc. 273)
Plaintiffs Linda Luxenberg ("Plaintiff Linda Luxenberg") and Kelcey Luxenberg,
as guardians and next best friends of John Doe; Linda Luxenberg individually; and John
Doe ( collectively "Plaintiffs") bring this action against Defendants Vermont Department
of Disabilities, Aging and Independent Living ("DAIL"); Monica White ("Commissioner
White"), in her individual capacity and her official capacity as the Commissioner of
DAIL; Jennifer Garabedian ("Director Garabedian"), in her individual capacity and her
official capacity as the Director of DAIL's Developmental Disabilities Services Division;

Washington County Mental Health Services Inc. ("WCMHS"); Mary Moulton, in her
capacity as the Executive Director ofWCHMS; and Lamoille County Mental Health
Services, Inc. ("LCMHS").
In their Third Amended Complaint, Plaintiffs assert fourteen claims under federal
and state law. 1 Plaintiffs seek declaratory and injunctive relief arising out of Defendants'
alleged termination of mental health services for John Doe without Plaintiffs' consent,
failure to develop a transition plan of services for John Doe, and failure to provide
funding for an appropriate placement for him.
On July 24, 2024, Defendants WCMHS, Mary Moulton, and LCMHS (collectively
"Defendants") filed a motion for sanctions under Fed. R. Civ. P. 37. Defendants seek (1)
the preclusion of any evidence related to Plaintiff Linda Luxenberg's personal injuries;
and (2) the dismissal of Plaintiff Linda Luxenberg's claims for physical, psychological,
and emotional injuries. Plaintiff Linda Luxenberg did not respond to Defendants' motion.
Plaintiff Linda Luxenberg is self-represented. The remaining Plaintiffs are
represented by James A. Valente, Esq., and Zachary D. Hozid, Esq. WCMHS, Ms.
Moulton, and LCMHS are represented by Richard J. Windish, Esq., and Elizabeth A.
Willhite, Esq.
I.

Procedural and Factual Background.
On December 19, 2023, the court held oral arguments to address a discovery

dispute related to Plaintiff Linda Luxenberg's medical and mental health records. The
court issued an Order, stating: "Request to compel re-Linda Luxenberg medical and

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Plaintiffs assert Fourteenth Amendment claims for procedural due process (Count I) and
Medicaid due process (Count II); Rehabilitation Act claims for risk of institutionalization for
termination of service (Count III), increased risk of institutionalization due to the deliberate
failure to provide necessary and identified services (Count IV), unjustified isolation (Count V),
failure to reasonably accommodate communication needs (Count VI), and an associational claim
(Count VII); Americans with Disabilities Act claims for retaliation (Count VIII), reasonable
accommodations (Count IX), and risk of institutionalization (Count X); state law claims under
the Vermont Fair Housing and Public Accommodations Act (Count XI), for negligence (Count
XII), and retaliation (Count XIII); and a First Amendment claim for violation of the right to free
speech (Count XIV).

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mental health records-granted. Parties to meet, confer, and stipulate as to records that will
be provided. [Plaintiff Linda Luxenberg] to provide those records by 1/5/2024." (Doc.
230.) Plaintiff Linda Luxenberg did not comply with the court's Order.
On March 27, 2024, Defendants filed a motion to compel Plaintiff Linda
Luxenberg to execute releases authorizing "Defendants to obtain relevant medical and
psychological records directly from providers." (Doc. 247 at 1.) On May 6, 2024, the
court granted Defendants' motion in a Text Order stating:
Linda Luxenberg is hereby ORDERED to provide signed releases
authorizing Defendants ... to obtain relevant medical and psychological
records directly from Linda Luxenberg's providers to Defendants within
twenty (20) days of the date of this Text Order. Failure to do so may result
in the imposition ofsanctions, up to and including preclusion of evidence
and dismissal ofLinda Luxenberg 's claims for her physical, psychological,
and emotional injuries.
(Doc. 256) (emphasis in original).
Pursuant to the court's Order, Defendants corresponded with Plaintiff Linda
Luxenberg to obtain the releases. Plaintiff Linda Luxenberg refused to sign the
releases and provided several reasons for her refusal to do so, including a
statement representing that she did not intend to pursue personal injury claims on
her own behalf except for the nominal sum of $1.
On May 17, 2024, in emails related to Defendants' initial email request to
Plaintiff Linda Luxenberg to sign the releases, Plaintiff Linda Luxenberg stated:
"All have been notified of my release of damage for personal injury, per notice by
Attorney Hozid." (Doc. 273-5 at 2.) DAIL, through Assistant Attorney General
("AAG") Edward M. Kenney, replied to Plaintiff Linda Luxenberg, stating: "It is
not correct that Zach Hozid gave anyone valid notice that you were releasing your
personal claims in this case .... Moreover, your claims for personal injury-style
damages were re-included in Mr. Hozid's recently filed Amended Complaint." Id.
at 1. AAG Kenney noted a Stipulation was required to make clear Plaintiff Linda
Luxenberg was relinquishing her claims and stated his willingness "to draft such a
stipulation for [Plaintiff Linda Luxenberg's] review." Id. Plaintiff Linda
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Luxenberg accepted AAG Kenney's offer.
On May 20, 2024, AAG Kenney forwarded a Stipulation to Plaintiff Linda
Luxenberg, noting that he was acting on behalf of DAIL only. Counsel for the
other Defendants was in the midst of a trial and was unable to approve the
proposed Stipulation. Once these Defendants reviewed the document, they
rejected it because Plaintiff Linda Luxenberg was not dismissing her personal
injury claims but instead sought to preserve them by limiting her damages to $1.
As of the filing of this motion, Plaintiff Linda Luxenberg has not executed a
Stipulation confirming the release of her personal claims, nor has she provided
Defendants with signed HIPAA releases.

II.

Conclusions of Law and Analysis.
Fed. R. Civ. P. 37 provides that "[i]fthe court where the discovery is taken orders

a deponent ... to answer a question and the deponent fails to obey, the failure may be
treated as contempt of court." Fed. R. Civ. P. 37(b)(l). "If a party ... fails to obey an
order to provide or permit discovery, ... the court where the action is pending may issue
further just orders[,]" including: "prohibiting the disobedient party from supporting or
opposing designated claims or defenses, or from introducing designated matters in
evidence[,]" and "dismissing the action or proceeding in whole or in part[.]" Fed R. Civ.
P. 37(b)(2)(A).
"The imposition of sanctions under Rule 37 lies within the discretion of the district
court[.]" Valentine v. Museum of Mod. Art, 29 F.3d 47, 49 (2d Cir. 1994). "Dismissal
with prejudice is a harsh remedy to be used only in extreme situations ... , and then only
when a court finds willfulness, bad faith, or any fault on the part of the prospective
deponent." Id. at 50 (internal quotation marks and alteration omitted) (quoting Bobal v.
Rensselaer Polytechnic Inst., 916 F.2d 759, 764 (2d Cir. 1990), cert. denied, 499 U.S.

943 (1991)). A sanction of dismissal with prejudice is available "even against a plaintiff
who is proceeding prose, so long as a warning has been given that noncompliance can
result in dismissal." Id. (emphasis in original).
The instant discovery dispute commenced in December 2023. In its most recent
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Order, the court informed Plaintiff Linda Luxenberg that her failure to comply with the
court's Order compelling her cooperation with discovery regarding her personal injury
claims could lead to preclusion of evidence and dismissal of those claims. Rose v. Vt.

Mut. Ins. Co., 2007 WL 3333394, at *2 (D. Vt. Nov. 8, 2007) ("[S]eeking emotional
distress damages is sufficient to bring the emotional condition into issue, opening the
door for discovery into psychiatric records.") (internal quotation marks omitted) ( quoting

Ruhlmann v. Ulster Cnty. Dep't ofSoc. Servs., 194 F.R.D. 445,449 (N.D.N.Y. 2000)).
Plaintiff Linda Luxenberg is apparently willing to abandon her personal injury and
emotional distress claims. She, however, seeks to pursue a claim to nominal damages,
presumably to preserve her right to request an award of attorney's fees.
In light of Plaintiff Linda Luxenberg's lack of compliance with this court's Orders
and her statements that she is willing to abandon her claims to personal injury and
emotional distress damages, the court finds that dismissal of those claims is proper. See

Zou/as v. NY City Dep't ofEduc., 400 F. Supp. 3d 25, 61 n.9 (S.D.N.Y. 2019) ("A court
may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a
defendant's arguments that the claim should be dismissed.") (citation and internal
quotation marks omitted). This does not preclude a claim for nominal damages.
"[A] person who is awarded nominal damages receives 'relief on the merits of his
[or her] claim[.]"' Uzuegbunam v. Preczewski, 141 S. Ct. 792, 801 (2021) (quoting

Farrar v. Hobby, 506 U.S. 103, 111 (1992)). Under Supreme Court precedent, nominal
damages are available when a constitutional violation is established:
Doubtless the basic purpose of a § 1983 damages award should be to
compensate persons for injuries caused by the deprivation of constitutional
rights. For this reason, no compensatory damages may be awarded in a
§ 1983 suit absent proof of actual injury. [The Court] ha[s] also held,
however, that the denial of procedural due process should be actionable for
nominal damages without proof of actual injury. The awarding of nominal
damages for the 'absolute' right to procedural due process recognizes the
importance to organized society that this right be scrupulously observed
while remaining true to the principle that substantial damages should be
awarded only to compensate actual injury. Thus, Carey [v. Piphus, 435
U.S. 247 (1978)] obligates a court to award nominal damages when a
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plaintiff establishes the violation of his [or her] right to procedural due
process but cannot prove actual injury.

Farrar, 506 U.S. at 112 (alterations adopted) (internal citations and quotation marks
omitted); see also Ruggiero v. Krzeminski, 928 F.2d 558, 563 (2d Cir. 1991) ("[The
Second Circuit has] directed lower courts to award nominal damages when substantive
constitutional rights had been violated but no compensatory damages had been proved.")
(citations omitted).
As a result, provided Plaintiff Linda Luxenberg establishes a violation of the
United States Constitution, she may pursue an award of nominal damages, regardless of
whether she proves compensatory damages. See Smith v. Coughlin, 748 F.2d 783, 789
(2d Cir. 1984) (ruling that "even when a litigant fails to prove actual compensable injury,
he is entitled to an award of nominal damages upon proof of violation of a substantive
constitutional right[]").
CONCLUSION

For the foregoing reasons, the court GRANTS IN PART Defendants' Rule 37
Motion for Sanctions. (Doc. 273.) Plaintiff Linda Luxenberg's personal injury and
emotional distress claims are hereby DISMISSED. Plaintiff Linda Luxenberg may
nonetheless pursue a claim for nominal damages.

,f...

SO ORDERED.
Dated at Burlington, in the District of Vermont, this

2' day of November, 2024.

Christina Reiss, Chief Judge
United States District Court

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