Opinion
04 CV 0570 (GBD) (AJP).
December 10, 2004
REPORT AND RECOMMENDATION
Pro se plaintiff John Doe, a drug addicted inmate in the custody of the New York State Department of Correctional Services ("DOCS"), brings this action pursuant to: 42 U.S.C. § 1983 alleging violations of his constitutional rights by various employees of DOCS and the Office of Alcoholism and Substance Abuse Services ("OASAS"); Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12132; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. (E.g., Dkt. No. 1: Compl. ¶ 2.) Doe alleges that the defendants: (1) violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to provide him adequate comprehensive substance abuse services (Compl. ¶¶ 45-47 passim); (2) violated Doe's Fourteenth Amendment right to equal protection by denying him equal access to "comparable comprehensive mental health services than are provided to similarly situated groups of mentally disableds," specifically, "mentally ill" and "developmentally (sensorially)" disabled prisoners (Compl. ¶¶ 48-51; Doe Aff. ¶ 4); and (3) discriminated against Doe solely on the basis of his drug addiction disability, in contravention of the ADA and the Rehabilitation Act (Compl. ¶¶ 52-58). Doe seeks compensatory and punitive damages (Compl. ¶¶ 61-71) as well as injunctive relief. (Compl. ¶¶ 59-60, 72.) Doe sues defendants in their individual and official capacities. (Compl. ¶ 7.)
Doe states in his complaint that he is suing pursuant to 42 U.S.C. § "121232" (Dkt. No. 1: Compl. ¶ 2), and in his Affidavit states that the applicable section is "1211232" (Dkt. No. 9: Doe Aff. ¶ 2). However, because there are no such sections and the substance of his claim alleges violations of § 12132, this Court construes the extra numerals as merely typographical mistakes.
References to paragraphs in the Complaint are to the "Statement of Claim," unless otherwise indicated.
Presently before this Court is defendants' motion to dismiss the complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, 42 U.S.C. §§ 1997e(a) (c), and 28 U.S.C. § 1915(e)(2)(B)(i). (Dkt. No. 5: Defs. Notice of Motion at 1.) Defendants move to dismiss on the grounds that: (1) Doe failed to exhaust available administrative remedies as required by the Prison Litigation Reform Act (" PLRA"), 42 U.S.C. § 1997e (Dkt. No. 7: Defs. Br. at 7-12); (2) Doe's claims are barred by the statute of limitations (id. at 12-14); (3) Doe fails to state a claim of deliberate medical indifference under the Eighth Amendment (Defs. Br. at 14-17); (4) Doe fails to state a Fourteenth Amendment equal protection claim (Defs. Br. at 17-18); (5) Doe fails to state a claim under the ADA or Rehabilitation Act (Defs. Br. at 18-22); (6) Doe's § 1983 claims fail because the defendants were not personally involved (Defs. Br. at 22-23); and (7) defendants have qualified immunity for the damages claims (id. at 23-24).
For the reasons set forth below, defendants' motion to dismiss should be: (1) GRANTED as to the damages claims under § 1983 against defendants in their official capacities; (2) GRANTED as to the damages claims under the ADA and Rehabilitation Act against the individual defendants in their individual capacities; and (3) DENIED in all other respects. Leave is granted for Doe to amend his complaint within 30 days to name DOCS, OASAS and Grievance Counselor C. Kjellander as defendants in this action.
Even though DOCS was served with the summons and complaint (Dkt. No. 4: Aff. of Service), it is not named as a defendant in the complaint's caption and defendants have not understood DOCS to be a defendant in this action. (See Dkt. No. 7: Defs. Br. at 18-19; Dkt. No. 11: Defs. Reply Br. at 6). Leave is granted for Doe to amend his complaint within 30 days of this Report and Recommendation to name DOCS as a defendant.
Doe alleges facts against grievance counselor C. Kjellander (Compl. ¶¶ 37, 41), and seeks damages from her (Compl. ¶ 66, 71), but Kjellander is not named in the complaint's caption, nor is there any affidavit of service as to Kjellander. (See Dkt. No. 4 3/24/04 3/31/04 Affs. of Service.)
FACTS
The facts alleged in the complaint (and in Doe's affidavit in opposition to defendants' motion to dismiss) are assumed to be true for purposes of this motion, and will be set forth herein without use of the preamble of "Doe alleges."Doe is currently incarcerated at Mid-Orange Correctional Facility. (Dkt. No. 1: Compl. at III(A); Dkt. No. 8: Doe Br. at 13; Dkt. No. 9: Doe Aff. at p. 15.) Doe previously was incarcerated at Sing Sing Correctional Facility. (Doe Aff. ¶ 33; Compl. ¶ 34.) Doe is "certified" as substance dependent and therefore qualifies as mentally disabled. (Compl. ¶¶ 1, 18-19; Doe Aff. ¶¶ 12, 13 (citing Mental Hygiene Law § 1.03(3)).)
The Defendants
Defendant Glenn S. Goord is Commissioner of DOCS and is responsible for "providing state prisoners with timely and appropriate mental health care." (Dkt. No. 9: Doe Aff. ¶ 27 (citing Corr. Law §§ 45(6), 148).)
Defendant William A. Gorman is Commissioner of OASAS and is responsible for "establishing programs for the treatment of prisoners with substance dependence confined in state correctional facilities in New York." (Doe Aff. ¶ 27; Compl. ¶ 8.) The OASAS Commissioner also is responsible for administering federal, state, local and private funds for substance abuse services. (Compl. ¶ 9.)
Defendant James H. Nuttall is DOCS Deputy Commissioner for Program Services and is responsible for "the delivery of program services to DOCS inmates, including substance abuse services." (Doe Aff. ¶ 28.)
Defendant Susan I. Schultz, Superintendent of Mid-Orange Correctional Facility, "is charged with the supervision, management, and control of Mid[-]Orange, including directing the work and defining the duties of all subordinate officers and employees of the facility," as well as being "responsible for the delivery of program services at Mid-Orange, including substance abuse services." (Id.)
Defendants Raimondo and Hodelin are senior DOCS counselors and defendants Tully and Campbell are DOCS counselors. (Doe Aff. ¶ 29; Compl. ¶¶ 64-65.) DOCS counselors are responsible for evaluating prisoners and providing additional input in order to help determine the appropriate programs in which to place inmates. (Doe Aff. ¶ 29.)
Doe originally referred to this defendant as senior counselor "Romano" in his complaint but corrected the name in his opposition affidavit after defendants pointed out the error in their motion to dismiss. (Dkt. No. 7: Defs. Br. at 4 n. 3; Doe Aff. ¶ 26.)
Doe's Drug Addiction and Alleged Treatment Needs
DOCS and OASAS share responsibility for providing substance abuse services to inmates. (Dkt. No. 1: Compl. ¶ 8; Dkt. No. 9: Doe Aff. ¶ 14.) Such services, as defined in the New York Mental Hygiene Law, are mandated to "include services to inhibit the onset of substance abuse or substance dependence, to address the social dysfunction, medical problems or other disabilities associated with substance abuse or substance dependence, and to rehabilitate persons suffering from substance abuse or substance dependence." (Doe Aff. ¶ 15 (citing Mental Hygiene Law § 1.03(43)).) Carrying out its mandate, OASAS and DOCS implemented the Comprehensive Alcohol and Substance Abuse Treatment ("CASAT") program which, despite "the [l]egislative intent of providing comprehensive treatment was to address the medical and mental health issues of 'legally disabled' substance abusers," is operated by non-medical personnel and does not have clinical eligibility criteria. (Compl. ¶ 16; Doe Aff. ¶ 17.) DOCS and OASAS also have not established uniform standards for services offered to all categories of mentally disabled inmates. (Compl. ¶ 23; see Doe Aff. ¶ 6.) DOCS and OASAS have implemented a comprehensive treatment program for substance abusers that denies access to violent offenders, such as Doe. (Doe Aff. ¶ 18.) There is no treatment program comparable to CASAT available to Doe. (Compl. ¶¶ 20, 30, 42.)
Comprehensive treatment is essential to Doe's recovery because routine drug treatment has failed him in the past. (Compl. ¶¶ 28-29.) Since his incarceration in 1979, Doe has been in and out of the state prison system and currently is serving his fourth prison sentence. (Compl. ¶¶ 18, 29.) As a certified drug addict (Doe Aff. ¶ 10), Doe's medical condition "'substantially limits' the condition, manner, and duration in which he can work in the free society." (Compl. ¶ 19; Doe Aff. ¶ 12.) Upon his release from each period of incarceration, Doe was less likely to "seek necessary substance abuse services" and was "less likely to trust substance abuse health care providers" as his disability became more and more severe with each prison tour. (Compl. ¶ 18.) "As punishment for recidivism and current or prior criminal conduct," DOCS and OASAS have deprived Doe of access to "medically required treatment in a comprehensive therapeutic residential program with an aftercare and community reintegration component." (Compl. ¶ 20; see also Compl. ¶¶ 28, 42; Doe Aff. ¶ 3.)
After twenty-five years of being denied comprehensive drug treatment, Doe has "physically and mentally deteriorate[d] and [has] engage[d] in behavior symptomatic of his illness: commission of crimes, recidivism, and continued heroin use with resulting contraction of liver disease (HCV), physical scarring of the body from needle marks, and other physical ailments." (Compl. ¶ 43.) Doe has suffered as a result of the "intentionally discriminatory practices, polices, and procedures" to the extent that there is "a grave and substantial risk of harm that [Doe] will not recover from substance dependence." (Compl. ¶ 44.) Doe's Requests for Treatment
Doe alleges that "[a]pplying for CASAT was nothing more than a 'procedural merrygo-round' that defendants knew . . . Doe would never qualify to participate [in]." (Dkt. No. 1: Compl. ¶ 32;see Dkt. No. 9: Doe Aff. ¶ 42.) On April 5, 1999, Doe applied for admission to the CASAT program. (Doe Aff. ¶ 44 Ex. A at 55.) Doe's application was approved at the facility level but denied on appeal to the Temporary Release Committee ("TRC") interviewer and Doe appealed by letter dated April 18, 1999 to the TRC Director but never received a response. (Doe Aff. ¶ 44 Ex. A at 57-58.)
As defendants explain in their motion to dismiss (Dkt. No. 7: Defs. Br. at 3), CASAT is a three-phase program which provides sustained support and services to chemically dependent inmates so that inmates can successfully reintegrate into society upon parole. See 7 N.Y.C.R.R. §§ 1950.1, 1950.2. Inmates become time eligible for CASAT when they are within 12-24 months of their earliest release date and are eligible for presumptive work release approval contingent on completion of Phase I of CASAT. 7 N.Y.C.R.R. §§ 1950.3(a)(1), (4). In Phase I, inmates enter a correctional treatment facility and then must be granted presumptive work release to enter Phase II wherein inmates are transferred to a work release facility in preparation for Phase III which is the aftercare component in the community provided inmates are granted parole. 7 N.Y.C.R.R. § 1950.2(a)-(c).
"Between September, 2000 and July 2003, [Doe] wrote numerous letters of complaint to OASAS and DOCS Commissioners requesting comprehensive medical treatment." (Compl. ¶ 34; Doe Aff. ¶ 31.) Doe's complaints were referred to Counselors Raimondo and Tully while Doe was at Sing Sing from July 2000 through April 2002. (Compl. ¶ 34.) Counselors Raimondo and Tully knew of Doe's "disability and medical needs for comprehensive treatment, past failures to respond to routine drug treatment, and likelihood of relapsing should he not receive comprehensive therapy." (Compl. ¶ 36; Doe Aff. ¶ 32.) Counselors provide the initial screening process for inmates being considered for comprehensive substance abuse services. (Compl. ¶ 35; Doe Aff. ¶ 30.) Despite their knowledge that "the deprivation of such services posed a grave and substantial risk that plaintiff will not recover from substance dependence," Counselors Raimondo and Tully "intentionally disregarded . . . Doe['s] request for required medical treatment." (Compl. ¶ 36; Doe Aff. ¶ 32.) In 2001, when Doe applied for "CASAT and Work-Release," Raimondo and Tully "intentionally mischaracterized "Doe's request as only an application for work-release. (Doe Aff. ¶ 33.) Raimondo and Tully "'personally'" chaired the temporary release committee and denied Doe's application despite the grave risk such denial posed to Doe's chance of recovery. (Id.)
Additionally, in the decision by the TRC reviewer rejecting Doe from CASAT again in 2001, he was told he could reapply in 2003. (Doe Aff. ¶ 34 Ex. A at 30.) Doe sent a letter of appeal to the "Temporary Release Supervisor," the same person who had just denied his application. (Id. Ex. A at 31-33.) Doe received a response from the TRC supervisor that his appeal was being returned to him because "it refers to a decision which was made on a previous appeal and is, in effect, an appeal of an appeal decision. There is no provision in Temporary Release Procedures for such action. An inmate is entitled to one appeal, and one only, on any given application." (Doe Aff. Ex. A at 34.) Doe was also informed he could reapply eight weeks "after the final decision, or as otherwise directed." (Id.)
In July 2003, Doe encountered a similar response at Mid-Orange when he filed a "formal grievance, along with several letters of complaint to DOCS and OASAS commissioners requesting access to a comprehensive therapeutic residential treatment program with an aftercare and community reintegration component" that his condition required. (Compl. ¶ 37.) Doe's grievance was assigned to Inmate Grievance Counselor Kjellander who referred his case to senior Counselor Hodelin. (Id.) They, along with Counselor Campbell, Doe's assigned counselor at the time, intentionally mischaracterized Doe's complaint as a "request for discretionary CASAT." (Id.) Counselors Hodelin and Campbell, who were fully apprised of Doe's history and risk of relapse without comprehensive treatment (id. ¶ 41), knew that Doe would be denied participation in CASAT and that "the deprivation of comprehensive medical treatment would pose a grave and substantial risk that [Doe] would not recover from substance dependence," but engaged in the mischaracterization nonetheless (id. ¶ 37). The grievance resolution officials "intentionally mischaracterized [Doe's] grievance as 'Wants RSAT' and recommended that he apply for CASAT upon becoming time eligible." (Id. ¶ 38.) Superintendent Shultz agreed with the mischaracterization and suggested Doe "revert to participation in the same conventional drug therapy that had failed him over the past 25 years." (Id.) The Central Office Review Committee ("CORC"), the body that handles appeals for DOCS' internal grievance procedure, continued the mischaracterization by referring to Doe's grievance as "'Wants CASAT'" and found that Doe could not be remedied through the internal grievance procedure because CASAT has its own appeal mechanism which meant Doe had recourse only through the CASAT appeal procedure. (Id.) Deputy Commissioner James H. Nuttall, who "often responded on behalf of Commissioner Goord" (Compl. ¶ 39), "repeatedly" referred Doe's complaints to corrections counselors "for disposition under CASAT." (Id.)
The "supervisory" defendants, "Commissioners Goord and Gorman, Deputy Commissioner Nuttall, and Superintendent Schultz, all had actual and constructive notice of the unconstitutional practices and policies which totally deprived [Doe] of comprehensive medical treatment and reasonable accommodation [sic] for his disability." (Compl. ¶ 40; see Doe Aff. ¶ 31.) None of these supervisory defendants acted to provide the treatment, "despite kn[o]wing that the deprivation of comprehensive medical treatment will pose a grave and substantial risk that [Doe] would not recover from substance dependence." (Compl. ¶ 40; Doe Aff. ¶ 31.) In sum, Doe alleges that DOCS and OASAS officials intentionally disregarded Doe's complaints and "relegated [Doe's] requests for treatment of his disability to disposition under DOCS's CASAT component . . . to avoid providing [Doe] the requisite comprehensive medical treatment due in light of his disability status." (Compl. ¶ 30.)
Doe's Allegations of Differential Treatment Between Mentally Disabled Prisoners
DOCS and OASAS deny Doe
equal protection of the law by denying him access to comprehensive treatment services as provided to similarly situated groups of mentally disableds: the mentally ill and developmentally (sensorially) disabled. Moreover, mentally disabled substance dependents are selectively denied access to comprehensive treatment services based on non-clinical reasons like history of violence and recidivism, while the mentally ill and developmentally disabled groups [a]re afforded unimpeded access to comprehensive treatment services solely on basis of their clinical criteria. Such discriminatory treatment is [n]ot rationally related to a legitimate state interest.
(Dkt. No. 1: Compl. ¶ 24; see Dkt. No. 9: Doe Aff. ¶ 4.) For example, the mentally ill have access to "intermediate level and long term care" by the Office of Mental Health ("OMH") through the Central New York Psychiatric Center ("CNYPC"). (Compl. ¶ 25.) The CNYPC provides "both inpatient and outpatient services to prisoners in DOCS facilities." (Id.) Inpatient services include Residential Crisis Treatment Programs where prisoners are housed within treatment units and admission is based on clinical criteria "without regard to history of violence or recidivism." (Id.) Similarly, sensorially developmentally disabled inmates have access to "intermediate level and long term care" through units provided by the Office of Developmentally Disabled. (Compl. ¶ 26.) The facilities allow the "sensorially" disabled inmates to serve part of their sentences in units that can accommodate their disabilities and placement is based on clinical criteria only. (Id.)
As a "disabled substance abuser," "unlike similarly situated mentally ill or sensorially disabled" inmates, Doe is denied access to comprehensive treatment services for "non-clinical reasons." (Compl. ¶ 27.) Moreover, while DOCS and OASAS furnish mentally ill and developmentally disabled inmates with service-level numbers to categorize their treatment needs, no such designations are provided to substance abusers. (Id.) "There is [n]o rational basis for the difference in treatment among the disabled groups." (Id.) The DOCS facilities that Doe has access to are ill-equipped to meet his treatment needs. (Compl. ¶ 28.)
Doe's Claims
Doe asserts claims for:
(1) Eighth Amendment cruel and unusual punishment because of deliberate indifference to Doe's "medically required comprehensive substance dependence treatment." (Dkt. No. 1: Compl. ¶¶ 45-47.)
(2) Denial of equal protection under the Fourteenth Amendment, by denying him equal access to comprehensive mental health services provided to other similarly situated groups of mentally disableds, to wit, mentally ill and developmentally (sensorially) disabled, and by denying him access to treatment because of his history of violence and recidivism. (Compl. ¶¶ 48-51.)
(3) Violation of the ADA and Rehabilitation Act. (Compl. ¶¶ 52-57.)
ANALYSIS
I. THE STANDARD GOVERNING A MOTION TO DISMISSA district court should deny a Rule 12(b)(6) motion to dismiss "'unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief.'" IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993) (quotingRyder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984)), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994). A court must accept as true the facts alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party — here, the plaintiff.Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989).
Accord, e.g., Weinstein v. Albright, 261 F.3d 127, 131 (2d Cir. 2001); In re Scholastic Corp. Sec. Litig., 252 F.3d 63, 69 (2d Cir.), cert. denied, 534 U.S. 1071, 122 S. Ct. 678 (2001); Grandon v. Merrill Lynch Co., 147 F.3d 184, 188 (2d Cir. 1998).
Accord, e.g., Weinstein v. Albright, 261 F.3d at 131; In re Scholastic Corp. Sec. Litig., 252 F.3d at 69.
The "standards for dismissal under [Rule] 12(b)(6) and 12(b)(1) are substantively identical." Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.), cert. denied, 124 S. Ct. 532 (2003); see also, e.g., Moore v. PaineWebber, Inc., 189 F.3d 165, 169 n. 3 (2d Cir. 1999); Bishop v. Porter, 02 Civ. 9542, 2003 WL 21032011 at *3 (S.D.N.Y. May 8, 2003); Tennant v.United States Bureau of Prisons, 02 CV 00558, 2003 WL 1740605 at *1 (D. Conn. Mar. 29, 2003).
The only substantive difference is "that the party invoking the jurisdiction of the court has the burden of proof in a 12(b)(1) motion, in contrast to a 12(b)(6) motion, in which the defendant has the burden of proof." Lerner v. Fleet Bank, N.A., 318 F.3d at 128 (citing Thompson v. County of Franklin, 15 F.3d 245, 249 (2d Cir. 1994)); see also, e.g., Langella v. Bush, 306 F. Supp. 2d 459, 463 (S.D.N.Y. 2004) ("On a motion to dismiss pursuant to Rule 12(b)(1), plaintiff carries the burden of establishing that subject matter jurisdiction exists over his complaint."); Bishop v. Porter, 2003 WL 21032011 at *3.
A motion to dismiss challenges only the face of the pleading. Thus, in deciding a motion to dismiss, "the Court must limit its analysis to the four corners of the complaint." Vassilatos v.Ceram Tech Int'l Ltd., 92 Civ. 4574, 1993 WL 177780 at *5 (S.D.N.Y. May 19, 1993) (citing Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991)). The Court, however, may consider documents attached to the complaint as an exhibit or incorporated in the complaint by reference. E.g., Chambers v.Timer Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("Because this standard has been misinterpreted on occasion, we reiterate here that a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough.");Yak v. Bank Brussels Lambert, BBL (USA) Holdings, Inc., 252 F.3d 127, 130 (2d Cir. 2001) (citing Cortec Indus., Inc. v.Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960, 1125 S. Ct. 1561 (1992)); Rothman v.Gregor, 220 F.3d 81, 88 (2d Cir. 2000) ("For purposes of a motion to dismiss, we have deemed a complaint to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. . . ."); see also, e.g., Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Brass v. American Film Tech., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Accord, e.g., Aniero Concrete Co. v. New York City Constr. Auth., 94 Civ. 3506, 2000 WL 863208 at *31 (S.D.N.Y. June 27, 2000); Six West Retail Acquisition, Inc. v. Sony Theatre Mgmt. Corp., 97 Civ. 5499, 2000 WL 264295 at *12 (S.D.N.Y. Mar. 9, 2000) ("When reviewing the pleadings on a motion to dismiss pursuant to Rule 12(b)(6), a court looks only to the four corners of the complaint and evaluates the legal viability of the allegations contained therein.").
When additional materials are submitted to the Court for consideration with a 12(b)(6) motion, the Court must either exclude the additional materials and decide the motion based solely upon the complaint, or convert the motion to one for summary judgment under Fed.R.Civ.P. 56. See Fed.R.Civ.P. 12(b); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000); Fonte v. Board of Managers of Cont'l Towers Condos, 848 F.2d 24, 25 (2d Cir. 1988).
The Court's role in deciding a motion to dismiss "'is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.'" Saunders v. Coughlin, 92 Civ. 4289, 1994 WL 88108 at *2 (S.D.N.Y. Mar. 15, 1994) (quoting Geisler v.Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980)); accord, e.g., Watson v. McGinnis, 964 F. Supp. 127, 130-31 (S.D.N.Y. 1997) (Kaplan, D.J. Peck, M.J.). "'[T]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.'"Saunders v. Coughlin, 1994 WL 88108 at *2 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686 (1974)). A Rule 12(b)(6) motion will be granted "'only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Saunders v.Coughlin, 1994 WL 88108 at *2 (quoting Hishon v. King Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232 (1984)).
When reviewing a pro se complaint, the Court must use less stringent standards than if the complaint had been drafted by counsel. See, e.g., LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Watson v. McGinnis, 964 F. Supp. at 131;Saunders v. Coughlin, 1994 WL 88108 at *2 (citing Hughes v.Rowe, 449 U.S. 5, 101 S. Ct. 173 (1980)). However, "[d]ismissal under Rule 12(b)(6) is proper if the complaint lacks an allegation regarding an element necessary to obtain relief. . . ." 2 Moore's Federal Practice § 12.34[4][a], at 12-72.7 (2004). Thus, the "'duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it.'" Id., § 12.34[1][b], at 12-61; see also, e.g., Joyner v. Greiner, 195 F. Supp. 2d 500, 503 (S.D.N.Y. 2002) (action dismissed because pro se plaintiff "failed to allege the facts tending to establish" that defendants violated his constitutional rights).
The PLRA allows dismissal of claims that are "frivolous or malicious." 28 U.S.C. § 1915(e)(2)(B)(i); see, e.g., McEachin v. McGuinnis, 357 F.3d 197, 198 (2d Cir. 2004). "An action is 'frivolous' for § 1915(e) purposes if it has no arguable basis in law or fact, as is the case if it is based on an 'indisputably meritless legal theory.'" Montero v. Travis, 171 F.3d 757, 759-60 (2d Cir. 1999). "A complaint will be dismissed as 'frivolous' when 'it is clear that the defendants are immune from suit.'" Montero v. Travis, 171 F.3d at 760. Additionally, 42 U.S.C. § 1997e(c) requires the Court, inter alia, to dismiss an action which is frivolous or malicious or seeks money damages from a defendant who is "immune from such relief." II. THE COURT SHOULD DENY DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES FOR DOE'S EIGHTH AMENDMENT AND FOURTEENTH AMENDMENT CLAIMS A. Exhaustion of Administrative Remedies: Background
Defendants also contend that Doe's ADA claims are unexhausted because Doe did not follow the additional administrative remedies set by the Department of Justice ("DOJ"). (Dkt. No. 7: Def. Br. at 11.) Doe concedes that his ADA claims were not exhausted through the DOJ. (See Dkt. No. 9: Doe Aff. ¶ 20.) District court decisions in this Circuit are split as to whether exhaustion of DOJ remedies is required before prisoner ADA claims may be brought in federal court. Several courts have held exhaustion was not mandatory because Title II of the ADA does not require exhaustion prior to filing a federal suit and filing external grievances is not necessary for the PLRA's policy concerns of allowing corrections officials to address inmate complaints internally. E.g., Veloz v. State of New York, 02 Civ. 7070, 2004 WL 2274777 at *8 (S.D.N.Y. Sept. 30, 2004) (Stein, D.J.); Parkinson v. Goord, 116 F. Supp. 2d 390, 398 (W.D.N.Y. 2000) (Larimer, D.J.). Other district court decisions in this Circuit have dismissed prisoner ADA claims for failure to exhaust them with the DOJ. E.g., Burgess v. Garvin, 01 Civ. 10994, 2004 WL 527053 at *3 (S.D.N.Y. Mar. 16, 2004) (Lynch, D.J.); Rosario v. New York State Dep't of Corr. Servs., 03 Civ. 859, 2003 WL 22429271 at *3-4 (S.D.N.Y. Sept. 24, 2003) (Brieant, D.J.).
Since Doe's constitutional claims survive and the ADA claims do not expand the scope of discovery, it makes sense to let this claim proceed at this stage and revisit the DOJ exhaustion issue after discovery via a summary judgment motion, if appropriate, by which time the Second Circuit may have resolved the conflict in the caselaw. See, e.g., Metallia U.S.A. LLC v. Stulpinas, 98 Civ. 3497, 1998 WL 1039103 at *2 n. 3 (S.D.N.Y. Dec. 16, 1998) (Peck, M.J.) (denying defendant's motion to dismiss certain claims where decision on the motion would not affect scope of discovery) (citing cases).
Moreover, the record is not clear at this stage as to whether the information provided to prisoners such as Doe informs them of the DOJ procedures. Even decisions requiring prisoners to exhaust DOJ procedures have recognized that this is dependent on DOCS making this information known to prisoners. See, e.g., Burgess v. Garvin, 2004 WL 527053 at *5.
The DOJ exhaustion issue can be re-visited after discovery at the summary judgment or trial stage of this case.
Under 42 U.S.C. § 1997e(a), as amended by the Prison Litigation Reform Act (" PLRA"), a prisoner must exhaust administrative remedies before bringing suit in federal court under federal law:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a). This provision requires complete exhaustion in accordance with the administrative procedures within DOCS. Exhaustion is required even when a prisoner seeks a remedy that cannot be awarded by such administrative procedures. Porter v.Nussle, 534 U.S. 516, 122 S. Ct. 983, 988 (2002); Booth v.Churner, 532 U.S. 731, 741, 121 S. Ct. 1819, 1825 (2001). The Supreme Court has made clear that the PLRA's exhaustion requirement applies to all prisoner claims:
See also, e.g., Beharry v. Ashcroft, 329 F.3d 51, 58 (2d Cir. 2003); Rivera v. Pataki, 01 Civ. 5179, 2003 WL 21511939 at *4, 8 (S.D.N.Y. July 1, 2003); Muhammad v. Pico, 02 Civ. 1052, 2003 WL 21792158 at *7 (S.D.N.Y. Aug. 5, 2003) (Peck, M.J.); Nelson v. Rodas, 01 Civ. 7887, 2002 WL 31075804 at *2 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.).
[W]e hold that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.Porter v. Nussle, 534 U.S. at 532, 122 S. Ct. at 992.
The Second Circuit recently held that the defendants' behavior may render administrative remedies unavailable. Abney v.McGinnis, 380 F.3d 663, 669 (2d Cir. 2004) (Defendant prison officials' failure to implement inmate's favorable rulings resulting from the internal grievance procedure rendered administrative relief "unavailable" under the PLRA because "[a] prisoner who has not received promised relief is not required to file a new grievance where doing so may result in a never-ending cycle of exhaustion."); accord, Hemphill v. New York, 380 F.3d 680, 686 (2d Cir. 2004) ("We hold today in Abney v. McGinnis that, in some circumstances, the behavior of the defendants may render administrative remedies unavailable."). Therefore, where a prisoner's failure to exhaust administrative remedies has been raised, courts should first determine whether the remedies were in fact available to be exhausted. Abney v. McGinnis, 380 F.3d at 667. "The test for deciding whether the ordinary grievance procedures were available must be an objective one: that is, would a 'similarly situated individual of ordinary firmness' have deemed them available." Hemphill v. New York, 380 F.3d at 688.
Even if the administrative remedies are determined to have been "available," the Second Circuit has ruled that certain "caveats" apply to the PLRA's mandatory exhaustion requirement. Giano v.Goord, 380 F.3d 670, 676-78 (2d Cir. 2004) ("'Special circumstances'" may serve as justification for a prisoner's failure to exhaust available administrative remedies, including a prisoner's reasonable mis-interpretation of DOCS regulations.). Justification for a failure to exhaust otherwise available administrative remedies is determined by "looking at the circumstances which might understandably lead usually uncounselled prisoners to fail to grieve in the normally required way." Giano v. Goord, 380 F.3d at 678 (prisoner's belief that direct appeal of his disciplinary conviction was his only available remedy was a reasonable interpretation of DOCS' directives on the grievance procedure and therefore his failure to exhaust was justified).
See also, e.g., Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004) (affirmative defense of exhaustion is waived if not raised by defendants); Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (affirmative defense of exhaustion is subject to estoppel when defendants prevent an inmate from following grievance procedures).
Dismissal of an action for failure to exhaust administrative remedies ordinarily is without prejudice. E.g., Giano v.Goord, 380 F.3d at 675 ("[A]dministrative exhaustion is not a jurisdictional predicate."); Berry v. Kerik, 366 F.3d 85, 87 (2d Cir. 2004) ("As we have noted, '[f]ailure to exhaust administrative remedies is often a temporary, curable procedural flaw. If the time permitted for pursuing administrative remedies has not expired, a prisoner who brings suit without having exhausted these remedies can cure the defect simply by exhausting them and then reinstituting his suit. . . .' In such circumstances, we have recognized that dismissal without prejudice is appropriate.") (citations omitted).
See also, e.g., Townsend v. Armstrong, No. 02-0175, 67 Fed. Appx. 47, 49, 2003 WL 21309185 at *1 (2d Cir. June 5, 2003); De La Motte v. Menifee, No. 01-0313, 40 Fed. Appx. 639, 639, 2002 WL 1635422 at *1 (2d Cir. July 23, 2002);Muhammad v. Pico, 2003 WL 21792158 at *8; Stevens v.Goord, 99 Civ. 11669, 2003 WL 21396665 at *4 (S.D.N.Y. June 16, 2003); Nelson v. Rodas, 2002 WL 31075804 at *2.
It is useful briefly to summarize DOCS' "well-established" normal three tier internal grievance procedure ("IGP"):
It consists of three levels. The first is the filing of a complaint with the facility's Inmate Grievance Review Committee. The second is an appeal to the facility superintendent. The final level is an appeal to the DOCS Central Office Review Committee in Albany. . . . A prisoner has not exhausted his administrative remedies until he goes through all three levels of the grievance procedure.Muhammad v. Pico, 2003 WL 21792158 at *8 n. 21 (citing cases); see N.Y. Correct. Law §§ 138-39; 7 N.Y.C.R.R. § 701.1, et seq.; see also, e.g., Abney v. McGinnis, 380 F.3d at 668. B. Doe's Exhaustion of Administrative Remedies
Defendants concede that Doe exhausted DOCS' three-tier Internal Grievance Procedure. (Dkt. No. 7: Defs. Br. at 7.) Defendants contend, however, that Doe's failure to appeal the denial of his CASAT application, which has its own appeal mechanism, amounts to a failure to exhaust under the PLRA. (Defs. Br. at 7-10 (citing 7 N.Y.C.R.R. § 701.3(e)(1)).) Defendants specifically point to Doe's 1999 application for the CASAT program which was denied by the central office for temporary release but Doe did not appeal to the director of the temporary release program as required by regulation. (Defs. Br. at 7, 9.)
Section 701.3(e) of DOCS Regulations sets forth that certain matters need to be grieved outside the Internal Grievance Procedure:
Some grievances request actions that are not obtainable through the IGP. These cases, although initially accepted as grievances, may be dismissed at the IGRC hearing. In such cases the grievant shall be directed to the appropriate mechanism where he/she can seek the solution requested.
(1) The individual decisions or dispositions of any current or subsequent program or procedure having a written appeal mechanism which extends review to outside the facility shall be considered nongrievable.
(2) The policies, rules and procedures of any such nongrievable programs or procedures, however, may be the subject of a grievance.
However, Doe alleges that he did in fact appeal to the Director of TRC, in a letter dated April 18, 1999, and never received a response. (Dkt. No. 9: Doe Aff. ¶ 44 Ex. A at 57-58.) Such an appeal would appear to satisfy the CASAT exhaustion requirement.
Doe attached this letter to his opposition affidavit; while it is addressed generally to the "Temporary Release Program," it is not clear whether it was intended for the Director, since the salutation is to "Sir/Madame." (Doe Aff. Ex. A at 57-58.) However, viewing the facts as alleged by Doe to be true, the letter is considered to have been directed to the director and therefore would serve as proper exhaustion.
Additionally, after his appeal of the denial of his CASAT application to the TRC reviewer, Doe received a response telling him he could not appeal an already appealed decision. (See page 8 above.) Doe also was told he could reapply at a later date. (See page 8 above.) Doe's acceptance of this notice as an indication that he had no further avenues of appeal would seem to be objectively reasonable. Under the considerations outlined by the Second Circuit, Doe may well have been justified in any unexhausted appeals through CASAT because he reasonably interpreted the appeals process as it was presented to him.
Finally, recognizing that the denial of temporary release through CASAT is non-greivable under DOCS regulations (Doe Aff. ¶ 22), Doe outlined the requirements for challenging a DOCS policy regarding accommodations for disabilities as he understood them. (Doe Aff. ¶¶ 23-25.) Doe apparently believed that his desire to change DOCS's policies required grievances filed through the IGP process, which he did.
In short, on a motion to dismiss (or even considered as an early, pre-discovery summary judgment motion), the Court cannot say for certain that plaintiff will be unable to show that he exhausted administrative remedies. Defendants' motion to dismiss for failure to exhaust should be DENIED. III. DEFENDANTS' MOTION TO DISMISS ON STATUTE OF LIMITATIONS GROUNDS SHOULD BE DENIED
The statute of limitations for a § 1983 action is three years.See, e.g., Patterson v. County of Oneida, 375 F. 3d 206, 225 (2d Cir. 2004) ("The statute of limitations applicable to claims brought under § . . . 1983 in New York is three years.");Holiday v. Martinez, No. 02-7848, 68 Fed. Appx. 219, 222, 2003 WL 21242641 at *2 (2d Cir. May 29, 2003) (three-year statute of limitations applies to § 1983 due process claim, which accrues when plaintiff knows or has reason to know of the injury which is the basis of his action); Warren v. Altieri, No. 02-69, 59 Fed. Appx. 426, 427, 2003 WL 1191173 at *1 (2d Cir. Mar. 13, 2003) (plaintiff's "§ 1983 action is governed by New York's three-year statute of limitations as set out in N.Y.C.P.L.R. § 214, the provision applicable to actions for personal injury.").
See also, e.g., Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002), cert. denied, 123 S. Ct. 1574 (2003); Paige v. Police Dep't, 264 F.3d 197, 199 n. 2 (2d Cir. 2001); Connolly v. McCall, 254 F.3d 36, 40-41 (2d Cir. 2001); Muhammad v. Pico, 02 Civ. 1052, 2003 WL 21792158 at *18 (S.D.N.Y. Aug. 5, 2003) (Peck, M.J.); Bristow v. Smith, 03 Civ. 2663, 2003 WL 21437005 at *1 (S.D.N.Y. June 18, 2003) (Peck, M.J.); cf. Noguera v. Hasty, 99 Civ. 8786, 2000 WL 1011563 at *12 (S.D.N.Y. July 21, 2000) (Peck, M.J.) report rec. adopted in part, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001) (Wood, D.J.).
Defendants claim that Doe's claim accrued in 1999, when he first was rejected for CASAT. (Dkt. No. 7: Defs. Br. at 13.) Doe, however, clearly claims injuries arising out of the denials of his August 2001 and July 2003 applications and the continuing failure to provide him comprehensive drug treatment up through the present. (Dkt. No. 1: Compl. ¶¶ 34-42; see also Dkt. No. 9: Doe Aff. Ex. A at 25-34, 35-52.) These claims are within the three-year statute of limitations and therefore provide Doe with the possibility of relief. See, e.g., Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999) (At the motion to dismiss stage, "in the statute of limitations context . . . dismissal is appropriate only if a complaint clearly shows the claim is out of time. And consistently with the Amended Complaint it is possible that [plaintiff] could demonstrate some discriminatory act that did occur within the statute of limitations, so that his claim would not be time-barred."). Defendants' motion to dismiss on statute of limitations grounds therefore should be DENIED. IV. DEFENDANTS' MOTION TO DISMISS SHOULD BE DENIED AS TO DOE'S § 1983 CLAIMS
Whether the "continuing violation doctrine" should apply also need not be determined at this stage; nevertheless as required by that doctrine Doe has alleged both "the existence of an ongoing policy of discrimination and some non-time-barred acts taken in furtherance of that policy." See, e.g., Harris v.City of New York, 186 F. 3d at 250.
Doe has sued the defendants in their official and individual capacities. It is well-settled that suits brought pursuant to § 1983 against state officials in their official capacities are barred by the Eleventh Amendment insofar as they seek money damages. E.g., Baker v. Welch, 03 Civ. 2267, 2003 WL 22901051 at *6 (S.D.N.Y. Dec. 10, 2003) (Peck, M.J.) ("'It is black letter law that a suit against a state official in his official capacity seeking damages is barred by the Eleventh Amendment . . .'") (quoting Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *1 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.) (quoting Jackson v. Johnson, 30 F. Supp. 2d 613, 618 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.) ( cases cited therein)). The Eleventh Amendment does not, however, bar suits against state officials seeking prospective injunctive relief.Jackson v. Johnson, 30 F. Supp. 2d at 618 ("[A] suit against a state official in his official capacity based on federal law and seeking prospective injunctive relief is not barred by the Eleventh Amendment.") (citing cases). Therefore, Doe's § 1983 damages claims survive against the individual defendants in their individual capacities and his claims for injunctive relief may go forward against the defendants in their official capacities.
To state a claim under § 1983 the plaintiff must show that: "(1) the defendant officials acted under 'color of state law'; and (2) their conduct or actions deprived plaintiff of a right, privilege, or immunity guaranteed by the Constitution or laws of the United States." Shabazz v. Vacco, 97 Civ. 3761, 1998 WL 901737 at *2 (S.D.N.Y. Dec. 28, 1998) (citing Pitchell v. Callan, 13 F.3d 545, 547-48 (2d Cir. 1994)); see also, e.g., Feingold v. New York, 366 F.3d 138, 159 (2d Cir. 2004) ("To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law."); Hall v. Perilli, 03 Civ. 4635, 2004 WL 1068045 at *5 (S.D.N.Y. May 13, 2004) (Peck, M.J.) ("To prevail in a § 1983 action, a plaintiff must demonstrate that he has been denied a constitutional or federal statutory right and that the deprivation occurred under color of state law."); Nelson v.Rodas, 01 Civ. 7887, 2002 WL 31075804 at *11 (S.D.N.Y. Sept. 17, 2002) (Peck, M.J.) (same). Further, to survive a motion to dismiss, the § 1983 complaint must make specific allegations of facts "indicating a deprivation of constitutional rights."Shabazz v. Vacco, 1998 WL 901737 at *2. Section 1983 claims brought by prisoners will fail if the complaint "'consist[s] of nothing more than naked assertions. . . .'" Shabazz v. Vacco, 1998 WL 901737 at *2 (quoting Mitchell v. Keane, 974 F. Supp. 332, 338 (S.D.N.Y. 1998) (quoting Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978)),aff'd, No. 98-2368, 175 F.3d 1008 (table) (2d Cir. 1999)). A. Defendants' Personal Involvement
For additional decisions by this Judge discussing the personal involvement standard for § 1983 claims in language substantially similar to that in this entire section of this Report and Recommendation, see Hall v. Perilli, 03 Civ. 4635, 2004 WL 1068045 at *8-9 (S.D.N.Y. May 13, 2004) (Peck, M.J.); Muhammad v. Pico, 02 Civ. 1052, 2003 WL 21792158 at *16 (S.D.N.Y. Aug. 5, 2003) (Peck, M.J.); Walker v. Pataro, 99 Civ. 4607, 2002 WL 664040 at *10 (S.D.N.Y. Apr. 23, 2002) (Peck, M.J.); Espinal v. Goord, 00 Civ. 2242, 2001 WL 476070 at *10 (S.D.N.Y. May 7, 2001) (Peck, M.J.); Fulmore v. Mamis, 00 Civ. 2831, 2001 WL 417119 at *8 (S.D.N.Y. Apr. 3, 2001) (Peck, M.J.) ( cases cited therein); Freeman v. Strack, 99 Civ. 9878, 2000 WL 1459782 at *7 (S.D.N.Y. Sept. 29, 2000) (Peck, M.J.); Djonbalic v. City of New York, 99 Civ. 11398, 2000 WL 1146631 at *11 (S.D.N.Y., Aug 14, 2000) (Peck, M.J.); Carbonell v. Goord, 99 Civ. 3208, 2000 WL 760751 at *6 (S.D.N.Y. June 13, 2000) (Peck, M.J.); Ali v. Szabo, 81 F. Supp. 2d 447, 462 (S.D.N.Y. 2000) (Pauley, D.J. Peck, M.J.).
"It is well settled in this Circuit 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); accord, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004); Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003); Blyden v. Mancusi, 186 F.3d 252, 264 (2d Cir. 1999); Fischl v. Armitage, 128 F.3d 50, 55 (2d Cir. 1997); Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995);Torres v. Mazzuca, 246 F. Supp. 2d 334, 338-39 (S.D.N.Y. 2003); Zamakshari v. Dvoskin, 899 F. Supp. 1097, 1109 (S.D.N.Y. 1995) (Sotomayor, D.J. Peck, M.J.) ("In order to maintain a cause of action [under § 1983] against any official, a plaintiff must show that the defendant was personally involved in the alleged deprivation of his constitutional rights, since the doctrine of respondeat superior does not apply to § 1983 actions.").
See also, e.g., Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir. 2001); see also, e.g., Provost v. City of Newburgh, 262 F.3d 146, 154 (2d Cir. 2001); Gaston v. Coughlin, 249 F.3d 156, 164 (2d Cir. 2001) ("Proof of an individual defendant's personal involvement in the alleged wrong is . . . a prerequisite to his liability on a claim for damages under § 1983."); Brown v. Peters, No. 97-2725, 175 F.3d 1007 (table), 1999 WL 106214 at *1 (2d Cir. Feb. 26, 1999).
"The personal involvement of a supervisory defendant may be shown by evidence that: (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 the 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 at 873.
Accord, e.g., Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir. 1997); Wright v. Smith, 21 F.3d at 501; Torres v.Mazzuca, 246 F. Supp. 2d at 339; Zamakshari v. Dvoskin, 899 F. Supp. at 1109; see also, e.g., Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).
Defendants Schultz, Raimondo, Hodelin, Tully and Campbell contend that they were not personally involved because Doe alleges injuries resulting from the policy of denying residential drug treatment programs to inmates like him and they are not policymakers. (Dkt. No. 7: Defs. Br. at 22.) However, Doe alleges that counselors Raimondo, Campbell, Tully and Hodelin, as counselors, are charged with evaluating inmates for appropriate program placements. (Dkt. No. 9: Doe Aff. ¶ 29; see also Dkt. No. 1: Compl. ¶¶ 2, 34-37, 41.) Further, Raimondo and Tully knew of Doe's history of addiction, his recidivism, past relapses and failures to respond to drug treatment and "likelihood of relapsing should [Doe] not receive comprehensive therapy," and nonetheless intentionally mischaracterized Doe's applications. (Compl. ¶ 36; Doe Aff. ¶ 33.) Hodelin and Campbell also mischaracterized Doe's applications (Compl. ¶¶ 37, 41; Doe Aff. ¶ 37), and "intentionally refused to initiate the 'screening' and 'review' process for CASAT" which impeded Doe's administrative exhaustion process. (Doe Aff. ¶ 35.) The Court cannot say that there are no facts that Doe can prove that would entitle him to relief against these defendants for their roles in denying him proper drug treatment. (See Point I above.) Whatever the results on a summary judgment motion or at trial, at this motion to dismiss stage, these defendants' motion to dismiss for lack of personal involvement should be DENIED.
As to the "supervisory defendants," Doe alleges that they failed to remedy the deficient treatment once they had received notice of it, and acted with deliberate indifference when they were aware that unconstitutional practices were ongoing as to Doe. (Compl. ¶¶ 40, 42-43.) Specifically, Doe alleges that Deputy Commissioner Nuttall, who is "responsible for the delivery of program services to DOCS inmates, including substance abuse services" (Doe Aff. ¶¶ 28, 30), referred Doe's complaints back to the corrections counselors for "disposition under CASAT." (Compl. ¶ 39.) Doe alleges that Superintendent Schultz, in addition to her role as supervisor of employees at Mid-Orange, also is responsible for the delivery of "program services at Mid-Orange, including substance abuse services." (Doe Aff. ¶ 28.) Superintendent Schultz participated in the intentional mischaracterization of Doe's complaints despite having notice of the unconstitutional practices which resulted in the deprivation of adequate services provided Doe. (Compl. ¶ 38, 40.)
Doe alleges that OASAS Commissioner Gorman is responsible for "establishing programs for the treatment of prisoners with substance dependence confined in state correctional facilities." (Doe Aff. ¶ 27.) DOCS Commissioner Goord is responsible for providing inmates with "timely and appropriate mental health care." (Id.) Doe wrote numerous letters to Commissioners Gorman and Goord requesting access to comparable comprehensive substance abuse treatment which alerted them to the unconstitutional policy that Doe alleges is in place. (Doe Aff. ¶¶ 31, 36; Compl. ¶¶ 34, 40, 42.)
In addition, implicit in defendants' argument that the counselor defendants were not personally involved because Doe is complaining about DOCS/OASAS policies and the counselors "are not policymakers" (Defs. Br. at 22) is the concession that the policymakers — the Commissioners and Superintendents — are personally involved in creating and/or continuing the challenged policy.
Doe's allegations satisfy the factors necessary to show personal involvement of all defendants at the motion to dismiss stage. Defendants' motion to dismiss for lack of personal involvement should be DENIED. B. Doe's Eighth Amendment Deliberate Medical Indifference Claim
The Eighth Amendment protects prisoners from "cruel and unusual punishment" in the form of "unnecessary and wanton infliction of pain" at the hands of prison officials and conduct that offends "evolving standards of decency." E.g., Hudson v. McMillan, 503 U.S. 1, 5, 8, 112 S. Ct. 995, 998, 1000 (1992); Wilson v.Seiter, 501 U.S. 294, 297, 308, 111 S. Ct. 2321, 2323, 2329 (1991); Estelle v. Gamble, 429 U.S. 97, 102, 104-05, 97 S. Ct. 285, 290, 291 (1976); Gregg v. Georgia, 428 U.S. 153, 173, 96 S. Ct. 2909, 2925 (1976); Hall v. Perilli, 03 Civ. 4635, 2004 WL 1068045 at *5 (S.D.N.Y. May 13, 2004) (Peck, M.J.).
To establish an Eighth Amendment violation based on a claim that a prison official has placed an inmate's health in danger, the inmate must show that the prison official acted with "deliberate indifference" to the inmate's serious medical needs.E.g., Helling v. McKinney, 509 U.S. 25, 32, 113 S. Ct. 2475, 2480 (1993); Estelle v. Gamble, 429 U.S. at 104-05, 97 S. Ct. at 291.
Accord, e.g., Hall v. Perilli, 2004 WL 1068045 at *5; see also, e.g., Smith v. Carpenter, 316 F.3d 178, 183 (2d Cir. 2003); Selby v. Coombe, No. 00-172, 17 Fed. Appx. 36 (table), 2001 WL 964195 at *1 (2d Cir. Aug. 20, 2001) (citingChance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998));Perkins v. Obey, 00 Civ. 1691, 2004 WL 238036 at *8 (S.D.N.Y. Feb. 10, 2004).
As the Second Circuit has explained, "the deliberate indifference standard embodies both an objective and a subjective prong." Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). "Objectively, the alleged deprivation must be 'sufficiently serious.'" Hathaway v. Coughlin, 99 F.3d at 553; see, e.g., Hudson v. McMillian, 503 U.S. at 9, 112 S. Ct. at 1000 ("Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are 'serious'"). Eighth Amendment protection is limited to "'a condition of urgency' that may result in 'degeneration' or 'extreme pain.'" Chance v. Armstrong, 143 F.3d at 702.
Accord, e.g., Smith v. Carpenter, 316 F.3d at 183;Selby v. Coombe, 2001 WL 964195 at *1; Chance v.Armstrong, 143 F.3d at 702; Hall v. Perilli, 2004 WL 1068045 at *5.
See also, e.g., Smith v. Carpenter, 316 F.3d at 183-84 ("The objective "medical need' element measures the severity of the alleged deprivation . . ."); Selby v. Coombe, 2001 WL 964195 at *1; Chance v. Armstrong, 143 F.3d at 702;Hall v. Perilli, 2004 WL 1068045 at *5; Torres v.Mazzuca, 246 F. Supp. 2d 334, 339 (S.D.N.Y. 2003).
"Subjectively, the charged official must act with a sufficiently culpable state of mind." Hathaway v. Coughlin, 99 F.3d at 553; accord, e.g., Smith v. Carpenter, 316 F.3d at 184 ("[T]he subjective 'deliberate indifference' element ensures that the defendant prison official acted with a sufficiently culpable state of mind."); Selby v. Coombe, 2001 WL 964195 at *1; Chance v. Armstrong, 143 F.3d at 702; Hall v. Perilli, 2004 WL 1068045 at *5. "The required state of mind, equivalent to criminal recklessness, is that the official "'knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.'"" Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (quoting Hathaway v.Coughlin, 99 F.3d at 553 (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 1979 (1994))); accord, e.g., Hall v. Perilli, 2004 WL 1068045 at *6.
While defendants contend that Doe's complaint "merely alleges the kind of disagreement about treatment which has long been held not to arise to the level of a violation of the Constitution" (Dkt. No. 7: Defs. Br. at 16), Doe's complaint sufficiently alleges that defendants acted with deliberate indifference to his drug treatment needs as a mentally disabled substance dependent prisoner. According to Doe, the defendants intentionally mischaracterized his complaints and failed to provide him access to a drug treatment program comparable to the CASAT program. (Dkt. No. 1: Compl. ¶¶ 1-6, 36, 37, 39-47.) Doe alleges that he already has suffered injuries as a result of decades of insufficient treatment for his drug addiction. (Compl. ¶ 43.) He also alleges that defendants were aware of the "grave and substantial risk" that Doe would not recover from substance dependence. (See e.g., Compl. ¶¶ 40-41, 44.) Doe sufficiently pleads deliberate indifference to both present and future injuries. See, e.g., Warren v. Keane, 196 F.3d 330, 333 (2d Cir. 1999) (holding risk of future harm is actionable under Eighth Amendment in § 1983 prisoner suit alleging unreasonable exposure to second-hand tobacco smoke) (citingHelling v. McKinney, 509 U.S. 25 at 32, 113 S. Ct. 2475 at 2480 (same)).
Whether the denial of a comprehensive drug treatment is "sufficiently serious" to satisfy the objective prong of the medical needs analysis is "fact-specific" and "must be tailored to the specific circumstances of [this] case." See Smith v.Carpenter, 316 F. 3d at 185. Constitutionally required medical treatment has been held to include drug addiction therapy.Fiallo v. Batista, 666 F.2d 729, 731 (1st Cir. 1981); Waldo v. Goord, 97-CV-1385, 1998 WL 713809 at *4 (N.D.N.Y. Oct. 1, 1998). Doe admits in his complaint to having received some "routine" drug counseling for his addiction (Compl. ¶¶ 29, 41) — when he was first convicted in 1973 (Doe Aff. ¶ 10), and then again in 1995 (Doe Aff. Ex. A at 52) — and emphasizes his failure to respond to any past drug therapy (Compl. ¶ 41). Defendants contend, as discussed above, that a disagreement with treatment is not a cognizable constitutional claim. (Defs. Br. at 16.) The fact that Doe has received some treatment for his drug addiction, albeit ineffective according to Doe, may provide the basis for dismissal of this claim on a summary judgment motion as it did inFiallo v. Batista, 666 F. 2d at 731. In Fiallo, a drug addicted prisoner who had received some drug treatment while incarcerated alleged a constitutional violation for the denial of more comprehensive drug therapy which he desired. Id. at 730. The First Circuit granted defendants summary judgment on this claim, construed as an Eighth Amendment claim, because the plaintiff had not alleged "'acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.'" Id. at 731. Rather, the First Circuit held, the plaintiff had only alleged that he had "not received the type of treatment which he desire[d]." Id. at 731. The motion before this Court, however, is a motion to dismiss, and the Court cannot say on this record that Doe can prove no facts that would entitle him to relief.
Defendants' motion to dismiss Doe's Eighth Amendment deliberate medical indifference claim should be DENIED. C. Doe's Fourteenth Amendment Equal Protection Claim
"The Equal Protection Clause directs that 'all persons similarly circumstanced shall be treated alike.'" Plyler v.Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394 (1982); see also, e.g., Giano v. Senkowski, 54 F.3d 1050, 1057 (2d Cir. 1995). "To prove an equal protection violation, claimants must prove purposeful discrimination . . . directed at an identifiable or suspect class." Giano v. Senkowski, 54 F.3d at 1057; see, e.g., Verley v. Goord, 02 Civ. 1182, 2004 WL 526740 at *20 (S.D.N.Y. Jan. 23, 2004); Lee v. State of New York Dep't of Corr. Servs., 97 Civ. 7112, 1999 WL 673339 at *12 (S.D.N.Y. Aug. 30, 1999); see also, e.g., Hayden v.County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999) ("intentional discrimination can be demonstrated in several ways. First, a law or policy is discriminatory on its face if it expressly classifies persons on the basis of race or gender. In addition, a law which is facially neutral violates equal protection if it is applied in a discriminatory fashion. Lastly, a facially neutral statute violates equal protection if it was motivated by discriminatory animus and its application results in a discriminatory effect.") (citations omitted).
Doe alleges that as a matter of DOCS/OASAS policy and practice, he has been denied equal protection of the law because defendants provide him with "fewer and less comparable comprehensive mental health services than are provided to other similarly situated groups of mentally disableds: mentally ill and developmentally (sensorially) disabled." (Compl. ¶ 48.) According to Doe, the mentally ill and developmentally disabled inmates have access to comprehensive treatment programs based on their clinical needs, not on their "non-clinical" history such as recidivism or violent offender status. (Compl. ¶¶ 24-26.) On the other hand, Doe, as a disabled substance dependent inmate, is denied access to comparable comprehensive treatment based solely on "non-clinical" factors. (Compl. ¶¶ 27-28.)
Defendants, however, claim that Doe's "admission" that "he was denied participation in the CASAT program because of his violent criminal history . . . is fatal to [his] claim," because it provides a rational basis for his different treatment. (Dkt. No. 7: Defs. Br. at 17.) That may prove to be so on a summary judgment motion or at trial, but on a motion to dismiss, the Court cannot say that there are no facts that plaintiff could prove pursuant to his complaint that would entitle him to relief. Defendants' motion to dismiss Doe's equal protection claim should be DENIED. V. DOE'S ADA AND REHABILITATION ACT CLAIMS A. Doe's ADA and Rehabilitation Act Claims for Damages Against the Individual Defendants In Their Individual Capacity Should Be Dismissed
The state interest that defendants have proffered, "violent criminal history," does not go towards Doe's equal protection claim of being treated differently than are other mentally ill prisoners who are provided comprehensive treatment regardless of any "non-clinical" reasons. (See Compl. ¶ 24.) However, were Doe' s criminal history construed as the state's "rational basis" for the allegedly discriminatory treatment of Doe, the Court would be faced with a closer question: While the Rule 12(b)(6) standard requires the court to deny a motion to dismiss if relief "'could be granted under any set of facts that could be proved consistent with the allegations,'" the rational basis standard "'requires the government to win if any set of facts reasonably may be conceived to justify its classification.'" Zavatsky v. Anderson, 130 F. Supp. 2d 349, 356 (D.Conn. 2001). To overcome the "presumption of rationality" a plaintiff, therefore, must allege more than conclusory allegations that a policy is "'without rational basis.'" Id. at 357. Doe does allege facts about the accommodations provided other groups of mentally disabled prisoners and the comprehensive treatment they are provided but that he, a drug addicted mentally disabled, is not. (Compl. ¶¶ 25-28.) As recognized above, this Court does not have to decide this issue because the defendants have argued that Doe's violent history serves as the rational basis for the state to deny Doe entrance into CASAT, not as the rational basis for treating Doe differently than other mentally ill prisoners. Again, at a summary judgment phase, evidence produced through discovery may serve to resolve this claim one way or another.
Damage claims against state officials in their individual capacities brought under the ADA and the Rehabilitation Act are not actionable. Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir. 2001). "Insofar as [plaintiff] is suing the individual defendants in their individual capacities, neither Title II of the ADA, nor § 504 of the Rehabilitation Act provides for individual capacity suits against state officials." Garcia v.S.U.N.Y. Health Sciences Ctr., 280 F.3d at 107 (citing cases). Accordingly, Doe's ADA and Rehabilitation Act damage claims against the individual defendants in their individual capacities should be dismissed.
"Insofar as [plaintiff] is suing the individual defendants in their official capacities, he is seeking damages from New York, and the Eleventh Amendment therefore shields them to the same extent it shields [the State or State agencies]." Garcia v.S.U.N.Y. Health Sciences Ctr., 280 F.3d at 107. The Court therefore turns in the next sub-sections to the availability of ADA and Rehabilitation Act claims against the State under the Eleventh Amendment.
B. Doe's ADA Damage Claims Against the Individual Defendants In Their Official Capacity Is Not Barred By the Eleventh Amendment
A damage claim under the ADA against a state (or state agency or official) is not barred by the Eleventh Amendment as long as the "plaintiff can establish that the Title II violation was motivated by either discriminatory animus or ill will due to disability." Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 112 (2d Cir. 2001). The Second Circuit, in Garcia, recognized that "direct proof of this will often be lacking: smoking guns are rarely left in plain view," and that plaintiffs may establish "discriminatory animus" by relying on a "burden-shifting technique similar to that adopted in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), or a motivating-factor analysis similar to that set out in Price Waterhouse v. Hopkins, 490 U.S. 228, 252-58, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989)." Garcia v.S.U.N.Y. Health Sciences Ctr., 280 F.3d at 112. Defendants claim that Doe has not done so because the complaint asserts that denial of treatment was based on a distinction "between violent and non-violent criminal history, not between drug addiction and the lack of it." (Dkt. No. 7: Defs. Br. at 21.) Doe's complaint, liberally read, asserts that he was discriminated against because of his substance dependence. (E.g., Dkt. No. 1: Compl. ¶ 56.) The Court cannot say, on a motion to dismiss, that there are no facts Doe can prove consistent with his complaint that would entitle him to relief.
Since the Court also is granting Doe leave to amend, however, he would be wise to elaborate on the facts supporting his ADA claim consistent with the legal standard for abrogating sovereign immunity.
Defendants' motion to dismiss Doe's ADA damage claim against defendants in their individual capacity should be DENIED. (See also pages 37-39 n. 35 below.)
C. Doe's Rehabilitation Act Damage Claim Against the Individual Defendants In Their Official Capacity Is Not Barred By The Eleventh Amendment
Congress enacted Section 504 of the Rehabilitation Act pursuant to its authority under the Spending Clause of Article I of the Constitution. See Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 113 (2d Cir. 2001). When Congress provides federal funding, it may require that a state agree to waive its sovereign immunity as a condition of accepting the funds. Id. The Second Circuit in Garcia recognized that Congress expressly intended such a condition to apply for Section 504 of the Rehabilitation Act, Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d at 113 (citing 42 U.S.C. § 2000d-7), but ruled that a state may only effectively waive its sovereign immunity through an "'intentional relinquishment or abandonment of a known right or privilege.'"Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d at 114 (quoting College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 682, 119 S. Ct. 2219, 2229 (1999)). Garcia held that SUNY had not effectively waived its sovereign immunity because at the time it accepted federal funds, the Second Circuit had held that states did not have sovereign immunity under the essentially-similar provisions of the ADA. Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d at 114 (citing Killcullen v. New York State Dep't of Labor, 205 F.3d 77, 82 (2d Cir. 2000) ("Congress has validly abrogated the States' immunity from suit under both the ADA and Section 504 of the Rehabilitation Act."), overruled by Garcia v. S.U.N.Y. Health Sciences Ctr.
Since Garcia, state agencies in New York including DOCS have continued to accept federal funds and, therefore, waived immunity from suit under Section 504 of the Rehabilitation Act. (See cases cited immediately below.) The district court decisions in this Circuit disagree as to whether New York effectively waived its sovereign immunity only by accepting federal funds afterGarcia was decided, on September 25, 2001, or whether the waiver occurred as early as February 25, 2001, when the U.S. Supreme Court handed down its decision in Bd. of Trustees of the University of Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001) (holding Title I of the ADA exceeded Congress' authority under § 5 of the Fourteenth Amendment and therefore suits against states were barred by the Eleventh Amendment). Compare, e.g., Cardew v. New York State Dep't of Corr. Servs., 01 Civ. 3669, 2004 WL 943575 at *8 (S.D.N.Y. Apr. 30, 2004) (holding sovereign immunity waived as of the decision in Garrett); with Kilcullen v. New York State Dep't of Labor, No. 97-CV-484, 2003 WL 1220875 at *3 n. 1 (N.D.N.Y. Mar. 13, 2003) (collecting cases holding sovereign immunity waived as of Garcia); and with Wasser v. New York State Office of Vocational Educ. Servs. for Individuals with Disabilities, No. 01-CV-6788, 2003 WL 22284576 at *10 (E.D.N.Y. Sept. 30, 2003) (dicta; finding an "arguable" basis that sovereign immunity may have been waived as of April 17, 2000, when the Supreme Court granted certiorari inGarrett).
This Court need not decide the exact date that sovereign immunity was effectively waived because part of Doe's claims arise out of conduct in 2003, by which time New York was clearly subject to suit under Section 504 of the Rehabilitation Act. Whether Doe's damages will be limited with respect to his 2001 or earlier claims need not be decided at this stage. (See pages 22-23 above.)
D. Doe Has Adequately Plead ADA and Rehabilitation Act Claims
To state a claim under the ADA and the Rehabilitation Act, a plaintiff must plead that "(1) [he] has a disability for purposes of § 504/ADA, (2) [he] is otherwise qualified for the benefit that has been denied, and (3) [he] has been denied the benefit by reason of [his] disability."Weixel v. Bd. of Educ. of the City of New York, 287 F.3d 138, 146-47 (2d Cir. 2002) (reversing and remanding the district court's grant of defendants' motion to dismiss because the district court failed to apply the liberal pleading standard afforded pro se litigants); see also, e.g., Clarkson v.Coughlin, 898 F. Supp. 2d 1019, 1036-38 (S.D.N.Y. 1995). To fulfill the first prong, i.e. that the plaintiff is disabled within the meaning of the ADA and the Rehabilitation Act, a plaintiff must demonstrate (1) he "suffers from a physical or mental impairment"; (2) the "activity claimed to be impaired . . . constitutes a 'major life activity'"; and (3) his "impairment 'substantially limits' the major life activity previously identified." Weixel v. Bd. of Educ. of the City of New York, 287 F. 3d at 147.
42 U.S.C. § 12132 provides: "Subject to the provisions of this subchapter, 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."
29 U.S.C. § 794(a) provides in pertinent part: "No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."
Both statutes define a disabled individual as one who has "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2); accord, 29 U.S.C. § 705(20)(B).
In addition to these common elements, under the ADA, the plaintiff must show that the entity that provides the service, program, or activity is a "public entity," 42 U.S.C. § 12132, and under the Rehabilitation Act, the plaintiff must show that the entity denying the inmate participation "receiv[es] Federal financial assistance," 29 U.S.C. § 794(a). See, e.g., Gowins v. Greiner, 01 Civ. 6933, 2002 WL 1770772 at *9 (S.D.N.Y. July 31, 2002). Defendants do not challenge these elements. (See Defs. Br. at 18-22.)
Defendants contend that Doe fails to state a claim because he has not sufficiently alleged a physical or mental impairment that substantially limits a major life activity. (Defs. Br. at 19.) However, as defendants note, drug addiction can be an "impairment" within the statutory definitions of a disability.Regional Econ. Cmty. Action Program, Inc., v. City of Middletown, 294 F.3d 35, 46-48 (2d Cir. 2002) (Addiction can substantially limit the ability to live independently without suffering a relapse, which limits the major life activity of caring for one's self.). Further, "working" is recognized as a "major life activity." Id. at 47 (citing 28 C.F.R. § 41.31(b)(2), 45 C.F.R. § 85.3(j)(2)(ii))). Doe alleges that he became more "severely disabled" each time he was released from prison without any comprehensive drug treatment program and that the substance dependence from which he has suffered "much of his adult life" "'substantially limits' the condition, manner, and duration in which he can work in the free society." (Compl. ¶¶ 18-19.) These allegations satisfy Doe's pleading requirements.
Defendants also argue that Doe's claim fails because he was not denied a comprehensive treatment program based solely on his handicap. (Defs. Br. at 19-20.) Doe alleges that he has been denied access to comprehensive mental health treatment, comparable to those offered mentally ill and developmentally disabled inmates, because of his status as a substance dependent. (Compl. ¶ 24.) While defendants may well prevail on summary judgment or at trial on their argument that "it is not discriminatory to restrict access to a program because the applicant's addiction creates a danger to the community" (Defs. Br. at 20), the Court cannot decide that question on the record of this motion to dismiss. (See cases cited at page 34 above.)
Therefore, construing Doe's pro se complaint liberally as required, Doe has sufficiently plead his claim under the ADA and the Rehabilitation Act, and defendants' motion to dismiss on that ground should be DENIED. E. The Proper Defendants Subject to Liability Under the ADA and the Rehabilitation Act
Defendants argue that Doe has named the wrong defendants for his ADA and Rehabilitation Act claims because he has not sued DOCS, the appropriate public entity. (Dkt. No. 7: Defs. Br. at 18-19; Dkt. No. 11: Defs. Reply Br. at 6.) As discussed above,Garcia v. S.U.N.Y. Health Sciences Ctr., 280 F.3d 98, 107 (2d Cir. 2001), appears to allow ADA and Rehabilitation Act damages claims against individual defendants in their official capacity as the equivalent of a suit against the entity. Nevertheless, some district court decisions in this Circuit, even post-Garcia, have held that no such claims can be brought against individual defendants even in their official capacity. To avoid any issue here, the Court will allow (and strongly encourages) Doe to amend to name DOCS as an additional defendant on his ADA and Rehabilitation Act claims.
Compare, e.g., Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 441 (S.D.N.Y. 2004) ("Individuals cannot be named as defendants in ADA suits in either their official or representative capacities.") (citing pre-Garcia cases);Neville v. Goord, No. 03-CV-155, 2004 WL 2202659 at *2 (W.D.N.Y. Sept. 28, 2004) ("[I]ndividuals cannot be named as defendants in suits under either the ADA or the Rehabilitation Act in their official or representative capacities.") (citing pre-Garcia cases); Lyman v. City of New York, 01 Civ. 3789, 2003 WL 22171518 at *10 (S.D.N.Y. Sept. 19, 2003) ("While the Second Circuit has yet to decide whether individual liability exists under the ADA and § 504 of the Rehabilitation Act, The Honorable Denny Chin has thoughtfully considered the issue inHallett v. N.Y.S. Dep't of Correctional Services, 109 F. Supp. 2d 190 (S.D.N.Y. 2000), concluding that there is no individual liability under either statute."); with Johnson v.Goord, 01 Civ. 9587, 2004 WL 2199500 at *19 (S.D.N.Y. Sept. 29, 2004) ("[P]laintiffs' claims against the individual defendants in their official capacities under section 504 of the Rehabilitation Act and Title II of the ADA fail because those laws do not provide for money damages against the state or state officials in their official capacities, absent a showing that any violation was motivated by discriminatory animus or ill will due to the disability."). The oft-cited pre-Garcia case of Hallett v.New York State Dep't of Corr. Servs., 109 F. Supp. 2d 190, 199-200 (S.D.N.Y. 2000) (relying upon Candelaria v.Cunningham, 98 Civ. 6273, 2000 WL 798636 at *3 (S.D.N.Y. June 20, 2000)), found that officials could not be sued in their official capacity because the public entities could be sued directly.
Moreover, State officials sued in their official capacities are considered public entities for purposes of the ADA and the Rehabilitation Act in suits for prospective injunctive relief.See, e.g., Henrietta D. v. Bloomberg, 331 F.3d 261, 288 (2d Cir. 2003) ("[A]n individual sued in his or her official capacity under the doctrine of Ex parte Young" is a "'public entity' subject to liability under the ADA" because "[t]he real party in interest in an official-capacity suit is the government entity . . . since the suit is in effect against the 'public entity,' it falls within the express authorization of the ADA."),cert. denied, 124 S. Ct. 1658 (2004); Gowins v. Greiner, 01 Civ. 6933, 2002 WL 1770772 at *9 (S.D.N.Y. July 31, 2002) ("[N]otwithstanding the Eleventh Amendment, both the Rehabilitation Act claim and the ADA claim may proceed under Ex parte Young as claims for prospective injunctive relief against the individual Green Haven officials named in their official capacities."). Therefore, Doe's claim against the individual defendants in their official capacity clearly may proceed insofar as Doe seeks injunctive relief.
VI. DEFENDANTS' MOTION TO DISMISS ON QUALIFIED IMMUNITY GROUNDS SHOULD BE DENIED
The defendants have raised the affirmative defense of qualified immunity from the damages claims because, they contend, their actions were objectively reasonable and did not violate any clearly established rights. (Dkt. No. 7: Defs. Br. at 23.) A Rule 12(b)(6) motion to dismiss is usually not the appropriate pleading in which to raise an affirmative defense. See, e.g., McKenna v. Wright, 386 F.3d 432, 435 (2d Cir. 2004). However, the Second Circuit has recently recognized a caveat to this general rule: "we see no reason why even a traditional qualified immunity defense may not be asserted on a Rule 12(b)(6) motion as long as the defense is based on facts appearing on the face of the complaint." McKenna v. Wright, 386 F.3d at 436.
While the complaint acknowledges that the CASAT program is not available to inmates with a violent history (see Defs. Br. at 23-24; Dkt. No. 1: Compl. ¶¶ 24, 32, 37), the Court cannot say, as defendants argue, that as a matter of law, on a motion to dismiss, defendants are entitled to qualified immunity, since other mental health treatment is provided to violent mentally disabled (but not drug addicted) inmates. Moreover, qualified immunity is not available to DOCS, Timmons v. New York State Dep't of Corr. Servs., 887 F. Supp. 576, 582 (S.D.N.Y. 1995) ("The defense of qualified immunity is available to state actors who are sued in their individual capacities, not to sovereign state bodies such as DOCS that only exist in official capacities.") (emphasis in original); see Ford v. Reynolds, 316 F. 3d 351,356 (2d Cir. 2003) ("'[T]he defense of qualified immunity protects only individual defendants sued in their individual capacity, not governmental entities, and it protects only against claims for damages, not against claims for equitable relief.'"), which will be added as a defendant (see page 3 above).
CONCLUSION
For the reasons discussed above, defendants' motion to dismiss should be GRANTED to the limited extent of dismissing (1) Doe's damage claims under § 1983 against defendants in their official capacity and (2) Doe's damage claims under the ADA and Rehabilitation Act against defendants in their individual capacity, and in all other respects DENIED. Doe is directed to amend his complaint within thirty days of this Report and Recommendation to add DOCS, OASAS and Kjellander as defendants.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels, 40 Centre Street, Room 410, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Daniels. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994);Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v.Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v.Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v.Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).
SCHEDULING ORDER
1. All fact and expert discovery must be completed by March 31, 2005. Expert reports must be served by March 1, 2005 plaintiff, March 15, 2005 defendants.
2. Each party will notify the Court by April 5, 2005 as to whether it intends to move for summary judgment. Summary judgment motions must be filed by April 22, 2005, and must comply with the Federal Rules of Civil Procedure, the Local Rules of this Court, and the chamber rules of the District Judge to whom this case is assigned.
3. The parties are to submit a joint proposed pretrial order, in conformance with the Federal Rules of Civil Procedure, the Local Rules of this Court, and the chamber rules of the District Judge to whom this case is assigned, by April 22, 2005 if neither party is moving for summary judgment, or 30 days after decision on the summary judgment motion. The case will be considered trial ready on 24-hours notice after the pretrial order has been submitted.
4. A status conference will be held before the undersigned on December 21, 2004 at 9:30 a.m. in Courtroom 20D (500 Pearl Street). Defense counsel shall arrange for plaintiff's telephonic participation.
5. The parties are directed to follow the "Individual Practices of Magistrate Judge Andrew J. Peck," a copy of which is enclosed.