Summary
stating that the courts in the Second Circuit routinely hold that no individual liability attaches in Title II ADA claims
Summary of this case from Yates v. FisherOpinion
No. 03-CV-0873Sc.
May 10, 2004
DECISION AND ORDER
On November 26, 2003, this Court dismissed plaintiff's pro se complaint, pursuant to 28 U.S.C. § 1915(e)(2)(B) and 1915A, on the grounds that (1) to the extent the complaint could be construed to allege that plaintiff was being held in custody in violation of his constitutional rights because his disability (deafness) prevented him from understanding his Miranda warnings and that he had the right in New York to testify before the grand jury, said claim was only cognizable in a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, and not in a civil complaint filed pursuant to 42 U.S.C. § 1983, and (2) to the extent the complaint could be construed to allege some type of violation of plaintiff's civil rights by the police officer who arrested and interrogated him, Wesley Dibble, the Public Defenders who were defending him on charges pending Chemung County, New York, Michael Nevin and Paul Corradini, and the District Attorney who was still prosecuting him on those charges, John Trice, those claims failed to state a claim under 42 U.S.C. § 1983 upon which relief could be granted. (Docket No. 3, Decision and Order). Judgment was entered on December 8, 2003. (Docket No. 4).
On January 15, 2004, plaintiff filed a motion for relief from judgment pursuant to Fed.R.Civ.P. 59(e) claiming that the Court failed to recognize that what he was claiming was that he had been discriminated against by the defendants in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 et seq. (Docket No. 5). For the following reasons, plaintiff's motion is denied.
First, the Court needs to determine if this motion is one brought under Fed.R.Civ.P. 59(e) — "[m]otion to alter or amend judgment — or Fed.R.Civ.P. 60(b) — "[r]elief from judgment or order". The Second Circuit Court of Appeals has long held that a post-judgment motion made within 10 days of entry of judgment that seeks reconsideration of matters properly encompassed within a decision on the merits is a motion under Rule 59(e). E.g., Jones v. UNUM Life Ins. Co. of America, 223 F.3d 130, 137 (2d Cir. 2000). A motion for reconsideration brought outside of that 10 day period is generally treated as a motion under Rule 60(b). E.g., Association for Retarded Citizens of Connecticut, Inc. v. Thorne, 68 F.3d 547, 553 (2d Cir. 1995). While the motion herein was not filed until January 15, 2003, it is dated December 14, 2003 and, therefore, pursuant to the prison mail box rule, it is considered to have been filed on December 14, 2003, see Houston v. Lack, 487 U.S. 266, 271 (1988) (a pro se prisoner litigant's papers are deemed to have been filed when they are placed in the hands of prison officials for mailing), which is within 10 days of entry of judgment. Accordingly, the motion, as entitled, will be treated as a motion to alter or amend the judgment under Rule 59(e).
"Reconsideration of a court's previous order is an `extraordinary remedy to be employed sparingly in the interests of finality and conservation of scarce judicial resources.'" Parrish v. Sollecito, 253 F. Supp.2d 713, 715 (S.D.N.Y. 2003) (quoting In re Health Management Systems Inc. Secs. Litigation, 113 F. Supp. 613, 614 (S.D.N.Y. 2000)). Nevertheless, "reconsideration [under Rule 59(e)] may be granted to correct clear error, prevent manifest injustice or review the court's decision in light of the availability of new evidence." Id. (citing Virgin Atlantic Airways, Ltd. v. Nat'l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)). See also Cavallo v. Utica-Watertown Health Ins. Co., 3 F. Supp.2d 223, 225 (N.D.N.Y. 1998); Patterson-Stevens, Inc. v. International Union of Operating Eng'rs, 164 F.R.D. 4, 6 (W.D.N.Y. 1995). "A Rule 59(e) motion can only be granted if the movant presents newly discovered evidence that was not available at the time of the trial, or there is evidence in the record that establishes a manifest error of law or fact." Cray v. Nationwide Mutual Insurance Co., 192 F. Supp.2d 37, 39 (W.D.N.Y. 2001) (citing Cavallo, 3 F. Supp.2d at 225). See also United States v. Potamkin Cadillac Corp., 697 F.2d 491, 493 (2d Cir. 1983) (the evidence must be "newly discovered or . . . could not have been found by due diligence.") (citation omitted); Atlantic States Legal Found. v. Karg Bros., 841 F. Supp. 51, 56 (N.D.N.Y. 1993). The parties, however, may not address facts, issues, or arguments not previously presented to the court, Walsh v. McGee, 918 F. Supp. 107, 110 (S.D.N.Y. 1996), or "reargue those issues already considered." In re Houbigant, Inc., 914 F. Supp. 997, 1001 (S.D.N.Y. 1996).
Plaintiff seeks reconsideration of this case on the merits, claiming in effect that the Court misconstrued the complaint and wrongly dismissed it under 28 U.S.C. § 1915(e)(2)(B) and 1915A(b). He does not present newly discovered evidence, nor does he establish manifest error of law or fact. On the basis of what is alleged in the complaint, this Court finds that judgment was properly entered for defendants. The complaint, as discussed above, alleges that plaintiff, who is deaf, had trouble communicating with the investigating police officer, defendant Dibble, during his interrogation and that he did not "understand about his Miranda rights." (Complaint, ¶ 9). He also alleges that his assigned counsel, defendants Corradini and Nevin, and the district attorney, defendant Trice, did not make an effort to inform him of his right to testify before the grand jury, and that because of his deafness he has trouble communicating from the Chemung County Jail with his family. Based on these allegations and the reasons set forth in the Decision and Order dismissing the complaint (Docket No. 3), plaintiff's complaint fails to state a claim for relief against the defendants and the Decision and Order will not be reconsidered.
Moreover, while the Second Circuit has not addressed this exact issue, the clear weight of authority in the district courts of this Circuit is that there is no individual liability under Title II of the ADA because it provides disabled individuals redress for discrimination by a "public entity" and, as that term is defined in the statute, it does not include individuals. See Alsbrook v. City of Maumelle, 184 F.3d 999, 1004 n. 8 (8th Cir. 1999) (en banc) (citations omitted), cert. granted in part sub nom, Alsbrook v. Arkansas, 528 U.S. 1146 (2000), cert. dismissed, 529 U.S. 1001 (2000); see also Candelaria v. Cunningham, No. 98-CV-6273(LAP), 2000 W.L. 798636, at *2 (S.D.N.Y. June 20, 2002) (no individual liability under Title II of the ADA); Smith v. University of State of New York, No. 95 Civ. 0477E, 1997 WL 800882, at *7 (W.D.N.Y. Dec. 31, 1997) ("The legislative history of the ADA indicates that the discriminatory practices of public entities, and not individuals, are the target of Title II."); Cerrato v. Durham, 941 F. Supp. 388, 395 (S.D.N.Y. 1996) (Second Circuit's holding in Tomka v. Seiler, 66 F.3d 1295 (2d Cir. 1995), that there is no individual liability under Title VII is equally applicable to cases under the public entity context of ADA). Plaintiff's complaint, even it is construed to allege a claim under Title II of the ADA, is brought only against individuals, not a public entity.
Accordingly, the motion for to alter or amend the judgment, pursuant to Rule 59(e) is denied. Plaintiff may appeal from this decision upon a timely filing of a notice of appeal.
IT IS SO ORDERED.