Opinion
99-CV-0904
September 21, 2001
NORMAN P. DEEP, ESQ., Clinton, New York Attorney for Plaintiff.
ELIOT SPITZER, Attorney General of the State of New York The Capitol, Sean M. Seely, Esq., Assistant Attorney General, Albany, New York Attorney for Defendant.
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
In this case, plaintiff, who is a psychologist employed by the New York State Office of Mental Health ("OMH"), alleges that after he testified on behalf of a New York State corrections officer in a case in which the officer claimed he was intentionally discriminated against by his employer in violation of the Americans with Disabilities Act ("ADA"), codified at 42 U.S.C. § 12101 et seq., plaintiff's own employer retaliated against him by removing him from participation in the Forensic Extra Services Program ("FESP"). Defendants filed a motion for summary judgment dismissing plaintiff's complaint on various grounds. Subsequently, in the wake of the Supreme Court's decision in Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, ___, 121 S.Ct. 955, 967-68 (2000), which held that lawsuits to recover money damages against states or state agencies are barred by the Eleventh Amendment, defendants moved to dismiss the complaint. Plaintiff opposes this motion but requests that he be afforded an opportunity to amend his pleading in the event the Court dismisses the present action.
The FESP is a program in which OMH employees, in addition to their regular duties with OMH, visit prisons administered by the New York State Department of Correctional Services ("DOCS") and provide counseling to inmates and DOCS employees. Participants in the FESP program receive additional wages in connection with their additional DOCS duties.
II. FACTUAL BACKGROUND
Plaintiff has been employed as an Associate Psychologist by defendant, the Central New York Psychiatric Center ("CNYPC") since November 1987. Outside of his duties at CNYPC, plaintiff was an adjunct college professor, a private psychotherapist and clinician in the FESP. Plaintiff participated in the FESP from 1993 to 1995 and again from 1997 to 1998. In October 1997, plaintiff testified as an expert witness on behalf of a DOC employee/patient whom he counseled at Midstate Correctional Facility. The employee/patient in question, Keith Muller, a correctional officer formerly employed by DOCS, brought suit pursuant to the ADA alleging that DOCS discriminated against him because of his disability of reactive airway disease, which substantially impaired his major life activities of working and breathing. See Muller v. Costello, 997 F. Supp. 299 (N.D.N.Y. 1998), aff'd 187 F.3d 298 (2d Cir. 1999). Muller alleged that when he complained about second-hand smoke in his workplace and asked for duties which would not expose him to this health hazard, DOCS retaliated against him for seeking to enforce his rights under state and federal law, in violation of the ADA. Plaintiff in the present case testified on behalf of Muller at the trial regarding his observations of the environment of the Midstate and other correctional facilities as well as Muller's mental health. The case was submitted to a jury which then returned a verdict in favor of Muller on both the discrimination and retaliation claims.
In March 1998, plaintiff was informed that OMH would not be renewing his FESP contract. When plaintiff questioned his supervisor, Randy Dymond, regarding the decision not to renew his contract, plaintiff alleges Mr. Dymond told him it was a "management" decision and that he had been pleased with plaintiff's performance in the program. Upon further inquiry, defendant Bruce Bradigan, Director of Operations for CNYPC, advised plaintiff that the decision not to renew plaintiff's contract was based on the agency's desire to "give some other people a chance at the [FESP]." Plaintiff alleges that the reason given for his removal from the FESP was pretext, and in fact was an act of retaliation by defendants for plaintiff's having rendered what he characterizes as "unfavorable" testimony regarding DOCS during the Muller trial. To wit, plaintiff alleges that he learned subsequent to his removal from the program that that there were OMH employees participating in the FESP who were less qualified than he and that the participating employees had been asked to work extra hours because of a shortage of clinicians to handle an increased workload.
III. DISCUSSION
A. Applicable Standards of Review
The standards applicable to motions to dismiss are well-settled. On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept the allegations of the complaint as true, and draw all reasonable inferences in favor of the nonmoving party. See Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). In addition, the Court may not dismiss the complaint unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Nettis v. Levitt, 241 F.3d 186, 191 (2d Cir. 2001) (quotation omitted). Therefore, the issue before the Court on such a motion "is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995)).
When a defendant moves to dismiss for lack of subject matter jurisdiction, however, a different standard is applied. In considering a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), federal courts "need not accept as true contested jurisdictional allegations." Jarvis v. Cardillo, Civil Case No. 98-5793, 1999 WL 187205, at *2 (S.D.N.Y. Apr. 5, 1999). Rather, a court may resolve disputed jurisdictional facts by referring to evidence outside the pleadings. See Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 932 (2d Cir. 1998). As the party "seeking to invoke the subject matter jurisdiction of the district court," plaintiff bears the burden of demonstrating that there is subject matter jurisdiction in this case. Scelsa v. City Univ. of New York, 76 F.3d 37, 40 (2d Cir. 1996).
Here, defendants have not specified the grounds for their motion to dismiss. Consequently, the Court presumes defendants have moved pursuant to both Fed.R.Civ.P. 12(b)(1) and 12(b)(6) and applies each of the above standards to the appropriate sections of the instant motion.
B. Eleventh Amendment
Under the Eleventh Amendment, federal courts generally lack jurisdiction over suits brought by a private party against a state, unless the state has consented to suit or Congress has expressly abrogated the state's immunity. See Board of Trustees v. Garrett, 121 S.Ct. at 962 ("The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court."); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54-56 (1996); Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990). Eleventh Amendment immunity does not just bar suits that name a state as a defendant; rather, it prohibits a district court from hearing any action brought against a state department or agency, regardless of the relief sought. See Dube, 900 F.2d at 594. Claims for money damages brought against state officials in their official capacities are likewise barred by the Eleventh Amendment. See Rodriguez v. Weprin, 116 F.3d 62, 66 (2d Cir. 1997); see also Kostok v. Thomas, 105 F.3d 65, 69 (2d Cir. 1997). After the Supreme Court's decision in Ex Parte Young, 209 U.S. 123 (1908), however, it has long been settled that private individuals may sue state officials in their official capacities for prospective injunctive relief without running afoul of the Eleventh Amendment. See id.
C. Plaintiff's ADA Claims
In this case, plaintiff asserts claims for monetary and injunctive relief against defendants — the State of New York, OMH, DOCS and defendant Bradigan, a state employee sued in both his personal and official capacities — under the ADA. The State of New York along with OMH and DOCS as state agencies and Bradigan as a state official enjoy full Eleventh Amendment immunity from plaintiff's claims and there has been no evidence presented to the Court which suggests that these defendants have or intend to waive this immunity. Accordingly, all claims for money damages and for injunctive relief against the State of New York, OMH and DOCS must be dismissed. Plaintiff's claim for injunctive relief against Bradigan in his official capacity as Director of Operations at CNYPC survive, however, based upon the Ex Parte Young principle. Moreover, the Eleventh Amendment is not a bar to plaintiff's claim for money damages and injunctive relief against defendant Bradigan in his individual capacity.
D. Remaining ADA Claim
Although the Eleventh Amendment does not preclude plaintiff from suing defendant Bradigan in his official capacity for injunctive relief, or in his individual capacity for money damages as well as injunctive relief, the ADA only prevents disability discrimination by "employers." See 42 U.S.C. § 12111(2) (term "covered entity" means employer, employment agency, labor organization, or joint labor-management committee). Individuals may not be sued under the ADA in either their personal or official capacities. See Menes v. CUNY Univ., 92 F. Supp.2d 294, 306 (S.D.N.Y. 2000) (collecting cases). Accordingly, plaintiff's remaining ADA claims against defendant Bradigan must also be dismissed.
E. Leave to Amend
When a cross-motion for leave to file an amended complaint is made in response to a motion to dismiss under Fed.R.Civ.P. 12(b)(6), leave to amend will be denied as futile only if the proposed new claim cannot withstand a 12(b)(6) motion to dismiss for failure to state a claim, i.e., if it appears beyond doubt that the plaintiff can plead no set of facts that would entitle him to relief. See Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). Here, plaintiff did not make a formal cross-motion to amend, but rather, requested the option of repleading in his memorandum of law in opposition to defendants' motion to dismiss. Plaintiff asserts that leave to amend should be granted so he may add claims "pursuant to 42 U.S.C. § 1983 and/or § 504 of the Rehabilitation Act." If plaintiff is referring to the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794 which was enacted to secure opportunities for people with developmental disabilities to enjoy the benefits of community living, he has no legal basis to state a claim thereunder against defendant Bradigan. It is well-settled that "individual defendants may not be held personally liable for alleged violations of the ADA or the Rehabilitation Act." Sutherland v. New York State Dep't of Law, Civ. Action No. 96-6935, 1999 WL 314186, at *7 (S.D.N.Y. May 19, 1999) (citing Coddington v. Adelphi Univ., 45 F. Supp.2d 211, 215 (E.D.N.Y. 1999); Harrison v. Indosuez, 6 F. Supp.2d 224, 229 (S.D.N.Y. 1998); Cerrato v. Durham, 941 F. Supp. 388, 395 (S.D.N.Y. 1996); Yaba v. Cadwalader, Wickersham Taft, 931 F. Supp. 271, 274 (S.D.N.Y. 1996)). Nor can individuals be named in their official or representative capacities as defendants in ADA or Rehabilitation Act suits. See id. (citing Harrison, 6 F. Supp.2d at 229; Lane v. Maryhaven Center of Hope, 944 F. Supp. 158, 162-63 (E.D.N.Y. 1996)). Accordingly, plaintiff's request to amend his complaint to add a claim pursuant to the Rehabilitation Act must be denied. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 76 (2d Cir. 1998), cert. denied, 525 U.S. 1103 (1999) (where plaintiff is unable to demonstrate that he could amend complaint in manner which would survive dismissal, opportunity to replead is rightfully denied).
With respect to plaintiff's request to add a claim pursuant to 42 U.S.C. § 1983, however, in the absence of any details regarding the nature or facts of this proposed claim, the Court cannot state with certainty that plaintiff would be unable to sustain an action against defendant Bradigan pursuant to this statute as a matter of law. See e.g., Hafer v. Melo, 502 U.S. 21, 25-31 (1991) (state officers subject to § 1983 liability for damages in their personal capacities even when conduct in question relates to their official duties).
VI. CONCLUSION
Based on the foregoing, defendants' motion to dismiss all claims currently pending against them in connection with the present action is GRANTED, defendants' motion for summary judgment is DENIED as moot, and plaintiff is hereby GRANTED leave to amend his complaint to add a cause of action against defendant Bradigan in his individual capacity pursuant to 42 U.S.C. § 1983. The Court orders that any such amended pleading must be filed and served within thirty (30) days.
IT IS SO ORDERED.