Opinion
Index No. 500954/2022
09-05-2023
In the Matter of the Application of MATTHEW P. BY his next friend, FEDORA P., Petitioner, v. Kerri NEIFELD, as Commissioner of the New York State Office for People with Developmental Disabilities, and the Office for People With Developmental Disabilities, Respondent.
Benjamin W. Taylor, Jessica K. Cochrane, Esq., Attorneys for Petitioner, Disability Rights New York, 279 Troy Road, Ste 9 PMB 236, Rensselaer, New York 12144 LETITIA JAMES Attorney General of the State of New York, Attorney for Respondent Neifeld, Terrance K. DeRosa Assistant Attorney General, 44 South Broadway, 5th Floor, White Plains, New York 1060
Benjamin W. Taylor, Jessica K. Cochrane, Esq., Attorneys for Petitioner, Disability Rights New York, 279 Troy Road, Ste 9 PMB 236, Rensselaer, New York 12144
LETITIA JAMES Attorney General of the State of New York, Attorney for Respondent Neifeld, Terrance K. DeRosa Assistant Attorney General, 44 South Broadway, 5th Floor, White Plains, New York 1060
Victor G. Grossman, J. It is ORDERED that the motion is disposed of as follows: I. PROCEDURAL HISTORY
Petitioner Matthew P., a 26-year old man with severe autism, was arrested on April 27, 2022 for burglary and incarcerated at the Putnam County Correctional Facility. After a competency hearing in the Justice Court of the Town of Patterson, Judge Michael V. Caruso on July 27, 2022 issued a written order pursuant to CPL § 730.60 that Matthew be "committed to the custody of Commissioner of the Office for People with Developmental Disabilities for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this order." On the following day, Petitioner's attorney forwarded a copy of Judge Caruso's order to counsel for the Office for People with Developmental Disabilities (hereinafter "OPWDD") and asked when Matthew would be transferred from jail to an OPWDD facility. On August 4, 2022 OPWDD replied:
The plan for admitting [Mr. P.] — and others whose admissions are also paused — is to first take into account our ability to align our census with our staffing resources and — when admissions are possible — to then admit individuals based on key criteria including the existence of Court orders, the length of time they have been waiting, and the acuity of their respective clinical needs.
On August 11, 2022, in response to a request for an updated status, OPWDD stated:
[W]hile we haven't been able to alleviate the staffing shortage in the past week, we are monitoring Matthew's status and are in contact with Putnam Mental Health, the Jail and County DSS, and returned calls to the Court and defense counsel. As
of our last contact, we understood that he was doing better. We are limited by circumstances largely outside our control in regard to our ability to admit additional individuals, but share the concern for his welfare and will continue to undertake best efforts to facilitate his admission to our facility.
On August 23, 2022, a Verified Petition containing six claims for relief was filed on Matthew's behalf. Petitioner asserted that (1) Matthew's continued incarceration violated his substantive due process rights under the Constitutions of the United States and State of New York; (2) he was entitled to habeas corpus relief; (3) his incarceration violated the Mental Hygiene Law; (4) his incarceration violated Judge Caruso's order; (5) OPWDD's failure to remove him from jail constituted discrimination in violation of Title II of the Americans with Disabilities Act (ADA); and (6) the failure to remove him from jail violated Section 504 of the Rehabilitation Act. Petitioner sought injunctive relief on all claims, monetary damages on his ADA claim, and declaratory relief on all other claims.
By Order to Show Cause dated August 24, 2022, this Court directed service of process to be made upon the Respondent, OPWDD Commissioner Neifeld, via email to her General Counsel and Deputy Commissioner, and ordered a hearing on August 26, 2022. The Court thereupon granted Petitioner's request for injunctive relief and ordered Respondent Neifeld to remove Matthew from jail and provide him with care and services in an appropriate facility no later than 5:00 p.m. on August 29, 2022. Pursuant to the Court's order, Matthew was transferred on August 29th from the Putnam County Jail to the Sunmount Developmental Center.
Respondent then moved for dismissal of the Petition. By prior Decision and Order dated February 23, 2023, the Court held that it had jurisdiction per CPLR § 103[c] to convert Petitioner's special proceeding to an action. However, upon a finding that Petitioner's claims for declaratory relief had been mooted by his transfer from the Putnam County Jail to the Sunmount Development Center, the Court declined to exercise its authority under CPLR § 103(c) with respect to the First, Third, Fourth and Sixth Claims in the Petition, and granted Respondent's motion for dismissal of those Claims. Finally, the Court held that the Petition failed to state a claim for relief under ADA Title II. The Court therefore dismissed the Petition "without prejudice, and with leave to file an amended complaint, limited in accordance with this Decision, repleading a claim for monetary damages under Title II of the Americans with Disabilities Act."
II. THE FIRST AMENDED COMPLAINT: FACTUAL ALLEGATIONS
The Complaint alleges that Matthew is a disabled individual, having been diagnosed with autism spectrum disorder, Lyme's disease and Pediatric Acute-Onset Neuro-psychiatric Syndrome (PANS). (¶31) He was arrested on April 27, 2022 for burglary and incarcerated at the Putnam County Jail. (¶¶ 38-42) Upon a finding of Matthew's incompetency to stand trial, the Justice Court on July 27, 2022 issued an order directing that he be "committed to the custody of Commissioner of the [OPWDD] for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this order." (¶¶52-53) Despite Judge Caruso's order, Matthew remained in jail for 33 days until this Court ordered his release. (¶55) Unable to access necessary care and treatment at the Jail, Matthew was regressing and was regularly restrained on high dosages of medication. (¶¶ 56-62) Matthew's admittance to an OPWDD facility was delayed, purportedly on account of staff shortages. (¶¶ 63-80; see, p. 2 above)
The Complaint further alleges:
84. Pursuant to CPL § 730.60, OPWDD has a statutory duty to provide care and treatment to individuals with developmental disabilities placed in its custody.
85. OPWDD operates the facilities in which a person referred to its custody pursuant to CPL § 730.60 are directed to receive placement and services.
86. OPWDD also operates numerous Individualized Residential Alternatives ("IRAs") where it could provide care and treatment to Matthew as CPL § 730 contemplates "community restoration" as an alternative form of more integrated restoration.
87. On information and belief, during the time period in question there were open beds at Respondents’ facilities for providing care and treatment to individuals deemed to lack capacity pursuant to Article 730 of the CPL.
88. On information and belief, during the time period
in question there were open beds at community residences operated and certified by Respondents where Respondents also can provide care and treatment to individuals deemed to lack capacity pursuant to Article 730 of the CPL.
89. OPWDD's annual budget for the year 2022 was 4.9 billion dollars. As such, Respondents had adequate funding to remove Petitioner from jail expeditiously.
90. Sued in her official capacity as Commissioner of OPWDD, Respondent Neifeld had actual knowledge that Petitioner was in jail and that there was a court order directing her to remove him from jail and to provide him with care and treatment in an appropriate facility, upon her general counsel being provided a copy of the court order on July 28, 2022. Respondent OPWDD had actual knowledge of the situation for the same reason. Furthermore, as there can be no
question that the prolonged incarceration of a person with severe autism who lacks capacity to stand trial constitutes discrimination under the ADA, there is similarly no question that Respondents had actual knowledge that Petitioner's rights were being violated.
91. Because OPWDD is the agency with statutory responsibility for removing individuals with developmental disabilities who lack capacity to stand trial from jail, Respondents had the authority to remove Petitioner from jail and to provide him with care and treat-ment in an appropriate facility — indeed, Respondents were subject to a court order directing them to accomplish exactly this. Respondents were capable of exercising this authority as soon as they were made aware of the 730 order, yet they failed to do so until this Court's order of August 26, 2022, when Respondents finally removed Petitioner from jail and initiated care and services simultaneously.
92. Between July 27, 2022, and August 29, 2022, Respondents made a deliberate and calculated decision to leave Petitioner in jail and not to provide him with services in spite of a court order directing them to do the opposite. The undeniable fact that Respondents ulti-mately placed Petitioner within one business day of this Court directing them to do
so is clear proof that Resondents had the ability to remove Petitioner from jail and provide him treatment, yet let him remain in a hostile setting without appropriate care or treatment.
93. Respondents’ action subsequent to this Court's order demonstrate that their previous failure to act went beyond negligence or bureaucratic inaction. Respondents affirmatively elected not to comply with the 730 order despite having the ability and resources to do so. This calculated decision resulted in Petitioner's prolonged incarceration, in violation of his federally protected rights.
94. Based on the above, in failing to remove Petitioner from jail and provide him with care and treatment, Respondents acted with deliberate indifference to the strong likelihood that Petitioner's federally protected rights were being violated.
95. The facts of this case did not present Respondents with a unique or unusual circumstance requiring any sort of special accommodation. Pursuant to CPL Art. 730, Respondents are notified of all individuals with developmental disabilities determined to lack capacity to stand trial and is responsible to remove all such individuals from jail and provide all such individuals with care and treatment in an appropriate facility.
96. On information and belief, Respondents maintain a database which tracks the status and whereabouts of all individuals determined to lack capacity pursuant to CPR Art. 730.
97. On information and belief, Respondents routinely make the calculated decision to leave individuals with developmental disabilities in jails despite the existence of judicial deter-minations that such individuals lack capacity, and court orders directing Respondents to remove such individuals from jail.
98. On information and belief, Respondents have been leaving such individuals in county jails for many years as an alternative to expanding their capacity to provide care and treatment to individuals with developmental disabilities who have been adjudicated to lack capacity for trial.
99. On information and belief, there are dozens of individuals currently placed at OPWDD's two
developmental centers who have been approved for discharge
to community based residential settings, but for whom OPWDD has failed to actually provide community placement. As such, Respondents’ failure to promptly provide community placement to those individuals (itself a clear ADA violation) is an additional cause of Respondents’ failure to promptly remove Petitioner from jail.
III. THE DUE PROCESS CLAIM
As and for a First Claim for relief, the Complaint alleges a violation of the Due Process clause of the Fourteenth Amendment:
101. Petitioner was incarcerated for 124 days total, including 33 days after Judge Caruso ordered Respondents to remove him from jail and provide him treatment.
102. During this period Petitioner was unindicted and had been found to lack capacity to stand trial.
103. As a direct result of his incarceration, Petitioner was completely deprived of his most fundamental liberties.
104. Respondents had actual knowledge that Petitioner was incarcerated and that they had been ordered to remove him from jail and provide him treatment.
105. Respondents were authorized and capable of removing Petitioner from jail and providing him treatment. Respondents operate two development centers and a network of hundreds of IRAs where they could have provided Petitioner with treatment outside of jail.
106. Respondents made a deliberate and calculated decision not to remove Petitioner from jail or to provide him treatment.
107. Respondents’ failure to promptly remove Petitioner from jail and provide him with care and services in an appropriate placement violated the due process clause of the United States Constitution, U.S. Const. Amend. XIV, § 1.
Insofar as the First Amended Complaint purports to plead a stand-alone claim under the 14th Amendment, it does so in violation of the express directives of this Court.
In its prior Decision and Order dated February 23, 2023, the Court dismissed the 14th Amendment claim as moot, and authorized Petitioner to file an amended complaint "limited in accordance with this Decision, repleading a claim for monetary damages under Title II of the Americans with Disabilities Act." By letter dated March 13, 2023, Petitioner sought leave to revisit the Court's determination of mootness and to replead his 14th Amendment claim. Respondent opposed the application, and the Court declined to revisit on a letter application its holding that Petitioner's claims for declaratory relief, including the 14th Amendment claim, are moot. The Court by its law secretary further advised Petitioner's counsel: "Mr. Taylor, as you have observed, you must, to assert a claim for monetary damages under ADA Title II, plead and prove violations of both Title II and the 14th Amendment due process clause. In this context, the constitutional violation is an essential element of your claim for monetary damages, and may be pleaded accordingly."
In view of the foregoing, the stand-alone claim in the First Amended Complaint for a violation of the 14th Amendment due process clause is dismissed. The allegations setting forth the constitutional claim (¶¶101-107) were repeated and realleged in Petitioner's ADA Title II claim (¶108), which is fully consistent with the Court's directive that the alleged 14th Amendment violation be pleaded as an element of the ADA claim. The dismissal notwithstanding, then, those allegations will be considered as part and parcel of the ADA Title II claim.
IV. THE ADA TITLE II CLAIM
Petitioner alleges a claim for monetary damages against the State of New York (i.e., against OPWDD Commissioner Neifeld sued in her official capacity) predicated upon an alleged violation of the ADA's "integration mandate," as follows:
109. The ADA provides that, "no qualified individual with a disability shall, by reason of such disability, be excluded from participating in or be denied the benefits of services, programs, or activities of a public entity." 42 U.S.C. § 12132.
110. OPWDD is a public entity covered by Title II of the ADA. Respondents are responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) and (B).
111. Petitioner is an individual with a disability. He has mental impairments that substantially limit him in one or more major life activity.
112. Petitioner is a qualified individual with a disability within the meaning of 42 U.S.C. § 12131(2).
113. Respondents’ deliberate determination to leave Petitioner in jail, despite a court order directing them to remove him from jail and to provide him treatment, resulted in Petitioner spending 33 days in jail unnecessarily.
114. Incarceration is more restrictive than an "appropriate institution" that provides "care and treatment."
115. Respondents are obligated under the ADA to administer New York State programs in a manner that enables Petitioner to receive services in the most integrated setting appropriate to his needs. 28 C.F.R. § 35.130(d).
116. By failing to provide Petitioner with care and treatment in an appropriate placement, and by determining instead to simply leave Petitioner in jail, Respondents have failed to meet this obligation.
117. Given the existence of a court order directing Respondents to remove Petitioner from jail and provide him treatment, and the fact that Respondents operate two development centers and more than 100 community residences operated and certified by Respondents where Petitioner could have been brought for treatment, Petitioner's claim are eminently reasonable.
118. Serving Petitioner in a more integrated setting would not fundamentally alter Respondents’ programs.
119. Respondents’ failure to administer services, programs, and activities to Petitioner in the most integrated setting appropriate to his needs violates Title II of the ADA as interpreted by 28 C.F.R. §§ 35.130(d) and 35.152(b)(2).
As noted above, the Petition further asserts that "Respondent's failure to promptly remove Petitioner from jail and provide him with care and services in an appropriate placement violates the due process clause of the United States Constitution. U.S. Const. Amend. XIV, § 1." (¶107) Based on the foregoing, Petitioner seeks an award of monetary damages pursuant to Title II of the ADA.
Respondents move for dismissal on the ground that the Complaint fails to state a claim under ADA Title II's "integration mandate." On the prior motion for dismissal the Court noted that it "expresse[d] no opinion on whether the allegations of the Petition regarding OPWDD's delay in transferring Matthew from the Putnam County Correctional Facility to one of its own facilities for care and treatment actually implicate the ADA Title II ‘integration mandate’, as that issue was not the focus of Respondent's motion to dismiss." (Decision and Order dated February 23, 2023, p. 14 n.3). That issue is squarely presented now.
Respondents further assert that, despite being afforded an opportunity to amend, Petitioner has still failed to allege facts and circumstances demonstrating Respondents’ deliberate indifference to Matthew's federally protected rights, wherefore she is not entitled to monetary damages under ADA Title II.
V. LEGAL ANALYSIS
A. Title II of the Americans with Disabilities Act
Title II of the Americans with Disabilities Act prohibits discrimination against individuals with disabilities in public services furnished by governmental entities. It provides:
Subject to the provisions of this subchapter, no qualified individual 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 subject to discrimination by any such entity.
42 U.S.C. § 12132. To establish a claim under Title II, a plaintiff must demonstrate "(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) such exclusion or discrimination was due to his disability." See, Tardif v. City of New York, 991 F.3d 394, 404 (2d Cir. 2021) ; Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016). The first two elements are satisfied here: the Complaint alleges that Matthew is a qualified individual with a disability, and that he was excluded from participation in a public entity's services / programs — care and treatment in an OPWDD facility -- by reason of OPWDD's delay in admitting him to its facility in compliance with the Justice Court's order. The question is whether the Complaint satisfactorily alleges the third element, to wit, that Matthew's alleged "exclusion" from care and treatment at an OPWDD facility was "due to his disability." In Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003), the Second Circuit observed that the ADA is addressed to "rules that hurt people with disabilities by reason of their handicap "; that "there must be something different about the way the plaintiff is treated "by reason of disability" (citing 42 U.S.C. § 12132 ); that "[w]e have long recognized that the basic analytical framework of the ADA includes such a comparative component." See, id. at 276. The Court referenced Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) (declining to recognize discrimination where plaintiff requested a substantive benefit that was not provided to the non-disabled), and Doe v. Pfrommer, 148 F.3d 73, 83-84 (2d Cir. 1998) ("[T]he central purpose of the ADA is to assure that disabled individuals receive ‘evenhanded treatment’ in relation to the able-bodied. [W]hat [plaintiff] ultimately seeks to challenge is not illegal discrimination against the disabled, but the substance of services provided to him"). More recently, in Tardif v. City of New York, supra, 991 F.3d 394 (2d Cir. 2021), the Second Circuit addressed the question "whether the alleged failure by the police to provide custodial medical services to Tardif [a detainee suffering from epilepsy] in a timely and adequate manner prior to her arraignment, by itself, constitutes a failure to make a reasonable accommodation ‘by reason of’ an individual's disability under the ADA." Id., at 404. The Court held:
In the complete absence of evidence that Tardif's epilepsy caused a deprivation of medical services, the fact that her disability was her motivation for seeking out such services does not suddenly transform her allegations regarding the inadequate medical treatment into a "failure to accommodate" claim. Instead, her claim relates solely to whether she received adequate medical treatment in police custody for her disability, and such a claim is not cognizable under the ADA.
Id., at 405.
However, in its analysis of discrimination "by reason of disability" under the ADA, the Second Circuit in Henrietta D. also referenced Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999) and the "integration mandate" which is the foundation for Petitioner's ADA Title II claim. To that we now turn.
B. Olmstead and the "Integration Mandate"
In Olmstead , supra , the Supreme Court held based on the ADA's "integration mandate" that the proscription of discrimination may require the placement of mentally disabled persons in community settings rather than institutions "when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental difficulties." See id., 527 U.S. at 587, 607, 119 S.Ct. 2176.
The ADA's "integration regulation" provides:
A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.
28 CFR § 35.130(d). The Olmstead Court observed that "in findings applicable to the entire statute, Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘form of discrimination.’ " Id., at 527 U.S. at 600, 119 S.Ct. 2176 (citing 42 U.S.C. § 12101[a][2]) (boldface added). The Court accordingly rejected the State's contention that the petitioners had encountered no discrimination "by reason of [their] disability" within the meaning of 42 U.S.C. § 12132 because they were not denied community placement on account of the disability. Id., at 598, 119 S.Ct. 2176. Thus, as the Second Circuit observed in Davis v. Shah, 821 F.3d 231 (2016), " Olmstead unquestionably holds that the ‘unjustified institutional isolation of persons with disabilities’ is, in and of itself, a prohibited ‘form of discrimination.’ " Id. at 260 (boldface added).
Promulgated by the Department of Justice ("DOJ") pursuant to its enforcement powers under Title II of the ADA, the integration mandate provides that a public entity must "administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 CFR § 35.130(d). The "most integrated setting appropriate" is the "setting that enables individuals with disa-bilities to interact with non-disabled persons to the fullest extent possible ." Olmstead, 527 U.S. at 592
In Olmstead , the Supreme Court interpreted the integration mandate to mean that the "unjustified isolation" of disabled individuals in institutionalized care facilities constitutes discrimination on the basis of disability under the ADA. 527 U.S. at 597
As the
Court observed, the "unjustified institutional isolation" of disabled persons both "perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life," and "severely diminishes [their] everyday life activities." Id. at 600-01 To avoid such damaging repercussions, the integration mandate thus requires a state to provide community-based treatment for disabled persons when (1) "the State's treatment professionals determine that such placement is appropriate," (2) "the affected persons do not oppose such treatment," and (3) "the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with [similar] disabilities." Id. at 607
Davis v. Shah, supra, 821 F.3d at 262 (boldface added).
In the wake of Olmstead , President George W. Bush issued Executive Order 13217, entitled "Community-Based Alternatives for Individuals With Disabilities." The Executive Order states in pertinent part:
By the authority vested in me as President by the Constitution and the laws of the United States of America, and in order to place qualified individuals with disabilities in community settings whenever appropriate , it is hereby ordered as follows:
Section 1. Policy. This order is issued consistent with the following findings and principles:
(a) The United States is committed to community-based alternatives for individuals with disabilities and recognizes that such services advance the best interests of Americans.
(b) The United States seeks to ensure that America's community-based programs effectively foster independence and participation in the community for Americans with disabilities.
(c) Unjustified isolation or segregation of qualified individuals with disabilities through institutionalization is a form of disability-based discrimination prohibited by Title II of the Americans With Disabilities Act of 1990 (ADA)
(d) In [ Olmstead ], the Supreme Court construed Title II of the ADA to require States to place qualified individuals with mental disabilities in community
settings, rather than institutions, whenever treatment professionals determine that such placement is appropriate, the affected persons do not oppose such placement, and the State can reasonably accommodate the placement, taking into account the resources available to the State and the needs of others with disabilities.
(e) The Federal Government must assist States and localities to implement swiftly the Olmstead decision, so as to help ensure that all Americans have the opportunity to live close to their families and friends, to live more independently, to engage in productive employment, and to participate in community life .
Section 2. Swift Implementation of the Olmstead Decision: Agency Responsibilities.
(a) The Attorney General [and other federal agencies] shall work cooperatively to ensure that the Olmstead decision is implemented in a timely manner. Specifically, the designated agencies should work with the States to help them assess their compliance with the Olmstead decision and the ADA in providing services to qualified individuals with disabilities in community-based settings .
C. The "Integration Mandate" Is Not Implicated by the 33-Day Delay in Transferring Matthew to the Sunmount Developmental Center for Mental Competency Restorative Treatment
1. Caselaw
There is a plethora of caselaw involving incarcerated detainees found incompetent to stand trial who, like Matthew, complain of delay in their transfer from jail to appropriate facilities for the provision of mental competency restorative treatment. Almost exclusively, their claims have been evaluated under the rubric of 14th Amendment substantive due process rights, grounded in a liberty interest in freedom from incarceration and timely restorative treatment. See, e.g., United States v. Donnelly, 41 F.th 1102 (9th Cir. 2022); United States v. Magassouba, 544 F.3d 387 (2d Cir. 2008) ; Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101 (9th Cir. 2003) ; Montana v. Zapata, 2023 WL 2346055 (D. Mont., March 3, 2023) ; United States v. Lee, 2022 WL 18275882 (S.D. Fla., Dec. 27, 2022) ; Indiana Protection and Advocacy Services Comm'n v. Indiana Family and Social Services Admin., 630 F.Supp.3d 1022 (S.D. Ind. 2022) ; United States v. Brandreth-Gibbs, 2021 WL 764771 (W.D. Wash, Feb. 26, 2021) ; United States v. Jones, 2020 WL 7127321 (D. Mont., Dec. 4, 2020) ; Powell v. Maryland Department of Health, 455 Md. 520, 168 A.3d 857 (Md. 2017) ; Disability Law Center v. Utah, 180 F.Supp.3d 998 (D. Utah 2016) ; United States v. Zapata-Herrera, 2015 WL 4878319 (S.D. Cal., Aug. 14, 2015) ; Trueblood v. Washington State Dept. of Social and Health Services, 73 F.Supp.3d 1311 (W.D. Washington 2014) ; Lakey v. Taylor, 435 S.W.3d 309 (Tx. 2014) ; United States v. Smith, 764 F.Supp.2d 541 (W.D.N.Y. 2011). Although a person found incompetent to stand trial almost certainly constitutes a "qualified person with a disability" within the meaning of 42 U.S.C. § 12131(2), none of the petitioners in those cases alleged that delay in their transfer from jail to appropriate facilities for the provision of mental competency restorative treatment violated the ADA or its "integration mandate."
See, 28 CFR § 35.108, subdivisions (a)(2)(i), (b)(1)(ii), (c)(1)(i), (c)(2)(i), (d)(1)(i), and (d)(2)(iii)(C). See generally, Hamilton v. Westchester County, 3 F.4th 86, 92-93 (2d Cir. 2021).
In Winters v. Arkansas Department of Health and Human Services, 491 F.3d 933 (8th Cir. 2007), the Eighth Circuit squarely rejected a claim akin to that made by the Petitioner here and held that a delay in transferring a mentally ill arrestee from jail to an appropriate facility for medical treatment does not implicate Olmstead and the ADA "integration mandate". See, id. at 936-937. The Court wrote:
The district court rejected as inapplicable the plaintiff's argument based on [ Olmstead ] that Mr. Winters did not receive an appropriate placement under the ADA because jail is not the least restrictive placement for a person with a mental illness. The Olmstead case dealt with discrimination arising from isolating persons with mental illness in an institution when the state's own treatment professionals have determined that a community setting would be appropriate. See 527 U.S. at 602 The district court properly distinguished the situation at hand, noting that Mr. Winters was awaiting transfer to the State Hospital for a decision about his appropriate placement, and the staff at Ozark had returned him to the custody of the
Sheriff until there was an open bed at the State Hospital because no other treatment facility could take him.
(He was still under an order requiring him to post bail on the trespass charge.) No treatment professionals had yet had the opportunity to evaluate him or recommend a placement for him and consequently, the least restrictive placement standard did not come into play...
....
No party to this suit suggests that jail is an appropriate treatment facility for a mentally ill person ... Mr. Winters was not denied admittance to the State Hospital on the basis of his disability, but for a lack of available space. While a policy of same-day or immediate admission into an appropriate mental health facility may be desirable in the best of all worlds, it is not mandated by the ADA, the Rehabilitation Act, or the Constitution, and it may not always be feasible given a state's limited resources. We agree with the district court's conclusion that Mr. Winters was not discriminated against on the basis of his disability.
Winters, supra, 491 F.3d at 936-937.
In M.S. v. County of Ventura, 2016 WL 11506613 (C.D. Cal., Oct. 24, 2016), arrestees found incompetent to stand trial alleged that the denial of timely restorative treatment services violated the ADA. As in the case at bar, the arrestees were not admitted to a treatment facility immediately upon the court's order, and "thus, at least to some extent, [were] denied access to a public program or service." See, id. at *12. Nevertheless, applying Winters, supra , the Court held that where the delay in admission occurred not because of the arrestees’ disability but because the state hospital lacked space to receive them, there was no liability for discrimination under the ADA. See, id. Although the court in Cooper v. Kliebert, 2016 WL 3892445 (M.D. La.) found a facially valid ADA claim on similar facts, the court ignored Winters ; indeed, the court's decision is wholly devoid of legal analysis, and therefore of little value. More instructive — on the issues of "unjust segregation" and ADA causation -- is a subsequent decision from the same court in Summers v. Louisiana, 2022 WL 4490161 (M.D. La., Sept. 27, 2022). In Summers , plaintiffs with disabilities — including persons (i) acquitted by reason of insanity, (ii) found incompetent to stand trial, and (iii) detained pending trial -- claimed that the Louisiana Department of Health and Hospitals ("LDOH") violated the ADA by "warehousing" them in a forensic hospital setting ("ELMHS") instead of providing community-based integration. The foundation for their claim was that "such ‘undue’ or ‘unjust’ segregation violates the ADA's integration mandate." Id., at *22. The Court observed that LDOH was not responsible for the plaintiffs’ commitment to ELMHS and had no authority to release them into the community because their institutionalization and resulting segregation from the community was by virtue of a Louisiana state court order. Id., at *22. It held that unless and until the plaintiffs could allege facts showing that they met the requirements of state law for release into the community (or that their qualifying for release was imminent and not merely speculative), they failed to demonstrate standing to assert an Olmstead "integration mandate" claim against LDOH. Id., at 23.
Petitioner relies instead on Geness v. Cox, 902 F.3d 344 (3d Cir. 2018). Concerning Mr. Geness's claim that "his prolonged detention, without a hearing, pending duplicative and futile psychiatric examinations" constituted discrimination "by reason of[mental] disability" under the ADA ( id. at 361 ), the Geness Court wrote:
Regulations promulgated under the ADA require that the Commonwealth "shall ensure that inmates or detainees
with disabilities are housed in the most integrated setting appropriate to the needs of the individuals," 28 CFR § 35.152(b)(2) and "[s]hall not place inmates or detainees with disabilities in inappropriate security classifications because no accessible cells or beds are available," id. § 35.152(b)(2)(i). Pennsylvania's Mental Health Procedures Act also requires that "[w]henever a person who is detained on criminal charges or is incarcerated is made subject to inpatient examination or treatment, he shall be transferred, for this purpose, to a mental health facility," [cit.om.], and although the Act provides that a person accused of murder "may be subject to court-ordered involuntary treatment,"
it limits that to "a period not to exceed one year," [cit.om.]. Involuntary competency restoration treatment can only take place if it is "reasonably certain that the involuntary treatment will provide the defendant with the capacity to stand trial." [cit.om.]. These procedural protections are designed to avoid undue delays and safeguard the fair and efficient functioning of the criminal justice system, and the denial of those protections, leading to the "unjustified instutional-[ization] of persons with disabilities," is a form of discrimination." Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 600, 119 S.Ct. 2176
Geness v. Cox, supra, 902 F.3d at 361-362 (boldface added). Addressing the specific record before it, the Geness Court continued:
... Geness was incarcerated for seven months before he was ordered to seek [involuntary competency restoration] treatment, was forced to wait three months more for that order to be carried out, and — notwithstanding that the competency evaluation declared him "unable to recognize the role of personnel in the court system," "unable to recognize the different methods of trial," "unable to recognize various outcomes from his pending charges," with a "poor" prognosis for improvement ... -- Geness was returned to prison for three years . He was then ordered to undergo another evaluation, forced to wait another year to receive it, and involuntarily committed for several more years — not only without "reasonabl[e] certain[ty]" he would attain capacity but in the face of a second evaluation that had declared him "not likely to respond to any additional treatment interventions." ...
As alleged, these multiple, protracted, and inexcusable delays in the handling of Geness's examinations, transfers, and motions — resulting in nearly a decade of imprisonment and civil commitment before a hearing was finally held on his habeas petition — are more than sufficient to state a claim under the ADA .
Id., 902 F.3d at 362 (boldface added).
Quite obviously, the facts of Geness — involving multiple protracted delays resulting in a decade's imprisonment and civil commitment — bear little relation to the 33 days’ delay in transferring Matthew from the Putnam County Jail to OPWDD's Sunmount Developmental Center. Perhaps more importantly, though, Geness , like Summers , affirms that a claim under Olmstead and the ADA "integration mandate" exists only if the actions of the defendant have resulted in a disabled plaintiff's unjust institutionalization and segregation from the community.
2. Application
CPL § 730.30(1) provides:
At any time after a defendant is arraigned upon an accusatory instrument other than a felony complaint and before the
imposition of sentence, or at any time after a defendant is arraigned upon a felony complaint and before he is held for the action of the grand jury, the court wherein the criminal action is pending must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person.
CPL § 730.30(3) further provides:
When the examination reports submitted to the court show that each psychiatric examiner is of the opinion that the defendant is an incapacitated person, the court may, on its own motion, conduct a hearing to determine the issue of capacity and it must conduct such hearing upon motion therefor by the defendant or by the district attorney.
CPL § 730.40(1) provides in pertinent part:
When a local criminal court, following a hearing conducted pursuant to subdivision 3 or 4 of Section 730.30 of this article, is satisfied that the defendant is not an incapacitated person, the criminal action against him must proceed. If it is satisfied that the defendant is an incapacitated person, or if no motion for such a hearing is made, such court must issue a final or temporary order of observation committing him to the custody of the Commissioner for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of the order .... When a felony complaint has been filed against the defendant, such court must issue a temporary order of observation committing him to the custody of the Commissioner for care and treatment in an appropriate institution or, upon the consent of the
district attorney, committing him to the custody of the Commissioner for care and treatment on an out-patient basis, for a period not to exceed 90 days from the date of such order...
The term "Commissioner" means "the state Commissioner of Mental Health or the state Commissioner of the Office for People with Developmental Disabilities." CPL § 730.10(3). The term "appropriate institution" means:
(a) a hospital operated by the Office of Mental Health or a developmental center operated by the Office for People with Developmental Disabilities; or
(b) a hospital licensed by the Department of Health which operates a psychiatric unit licensed by the Office of Mental Health, as determined by the Commissioner.
In this case, the Hon. Michael V. Caruso, Patterson Town Justice, issued a "Temporary Order of Observation" dated July 27, 2022, which states:
To: Sheriff of Putnam County
Defendant, having been ordered pursuant to Section 730.30 of the Criminal Procedure Law, to submit to an examination to ascertain whether said defendant, as a result of mental disease or defect, lacks capacity to understand the proceedings against him or assist in his defense and is otherwise fit to proceed in the above-captioned prosecution.
Defendant, having been duly examined by Alexis Gendell, Psy.D., report dated June 2, 2022 and Jerome Norton, Psy.D. MSCP, report dated July 6, 2022 and in accordance with the findings set forth in said examinations; and
The Court, on July 20, 2022, having made a finding that the Defendant is unfit and lacks capacity, as a result of mental disease or defect, to understand the proceedings against him or to assist in his defense.
Now, it is hereby Ordered that
Pursuant to Section 730.40(1) of the Criminal Procedure Law, Defendant shall be committed to the custody of the Commissioner of the Office for Persons with Developmental Disabilities for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this Order.
(Temporary Order of Observation dated July 27, 2022) Thus, Matthew was by order of the court pursuant to the Criminal Procedure Law committed to the custody of the Commissioner of the OPWDD, and hence subject to institutionalization and segregation from the community in the Sunmount Developmental Center no less than if he had remained in the custody of the Putnam County Sheriff.
The crux of Petitioner's ADA claim — that "incarceration is more restrictive than an ‘appropriate institution’ that provides ‘care and treatment’ " (Complaint ¶114) — is invalid for two reasons.
First, Matthew was not denied care and treatment "due to his disability." See, Tardif v. City of New York, supra ; Davis v. Shah, supra ; Henrietta D. v. Bloomberg, supra ; Winters v. Arkansas Department of Health and Human Services, supra .
Second, "integration" for purposes of the Olmstead "integration mandate" is not defined in terms of the availability of care and treatment, but rather, in terms of community-based interaction with non-disabled persons. See, Olmstead v. L.C. ex rel. Zimring , supra ; Davis v. Shah, supra ; Winters v. Arkansas Department of Health and Human Services , supra ; Executive Order 13217, supra. As the Second Circuit observed in Davis v. Shah, supra :
• Olmstead held that the "unjustified institutional isolation of persons with disabilities" is a prohibited form of discrimination.
• "In Olmstead , the Supreme Court interpreted the integration mandate to mean that the ‘unjustified isolation’ of disabled individuals in institutionalized care facilities constitutes discrimination on the basis of disability under the ADA. 527 U.S. at 597 ."
• "[T]he integration mandate provides that a public entity must ‘administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.’ 28 CFR § 35.130(d). The ‘most integrated setting appropriate’ is the ‘setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible .’ Olmstead, 527 U.S. at 592 ..."
• "As the [Olmstead] Court observed the ‘unjustified
institutional isolation’ of disabled persons both ‘perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life,’ and ‘severely diminishes [their] everyday life activities.’ Id. at 600-01 ... To avoid such damaging repercussions, the integration mandate thus requires a state to provide community-based treatment for disabled persons when (1) ‘the State's treatment professionals determine that such placement is appropriate...’ "
Davis v. Shah, supra, 821 F.3d at 260, 262.
The 33-day delay in transferring Matthew from the Putnam County Jail to the Sunmount Developmental Center simply does not implicate the "integration mandate" because, upon transfer, he would justifiably be isolated in an institutionalized care facility and deprived of inter-action with non-disabled persons pursuant to the "Temporary Order of Observation" issued by the Justice Court pursuant to the Criminal Procedure Law. Evidently cognizant of this problem, Petitioner further alleges that OPWDD had "100 community residences where Petitioner could have been brought for treatment." (Complaint ¶117) However, that allegation is inaccurate as a matter of law. The state's treatment professionals had not determined that community placement was appropriate for Matthew. Cf., Olmstead, supra . Moreover, OPWDD lacked discretion to place Matthew in a community residence: it was required under the Criminal Procedure Law and the terms of the Temporary Order of Observation to place him in the institutionalized care setting of one of its developmental centers. See, CPL §§§ 730.40(1), 730.10(9) ; Temporary Order of Observation dated July 27, 2022. While the district attorney may pursuant to CPL § 730.40(1) consent to a temporary order of observation providing for care and treatment on an out-patient basis, that is wholly outside the purview of the OPWDD, which lacks standing to intervene in criminal proceedings. See, People v. B.D., 79 Misc.3d 920, 193 N.Y.S.3d 864 (Sup. Ct. N.Y. Co. 2023). Therefore, despite its 33-day delay in transferring Matthew to the Sunmount Develomental Center, OPWDD did not cause his institutionalization and resulting segregation from the community and hence cannot be charged with any violation of the Olmstead "integration mandate." See, Summers v. Louisiana, supra .
VI. CONCLUSION
By reason of the foregoing, the First Amended Complaint fails to state a cause of action under Title II of the Americans With Disabilities Act, wherefore the Complaint must be dismissed. The Court is also of the view that the Petitioner has not alleged facts and circumstances demonstrating Respondents’ deliberate indifference to Matthew's federally protected rights, wherefore she is not entitled to monetary damages under ADA Title II. See, Biondo v. Kaledia Health, 935 F.3d 68, 73 (2d Cir. 2019) ; Frank v. Sachem School District, 633 Fed.Appx. 14, 15 (2d Cir. 2016) ; Loeffler v. Staten Island University Hospital, 582 F.3d 268, 276 (2d Cir. 2009) ; Feltenstein v. City of New Rochelle, 254 F.Supp.3d 647, 657 (S.D.N.Y. 2017). However, the Court does not reach that issue as the Petitioner's failure to state a claim under ADA Title II is dispositive.
It is therefore
ORDERED, that Respondents’ motion is granted, and the First Amended Complaint is hereby dismissed.
The foregoing constitutes the decision and order of the Court.