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UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF
NEW YORK
ROMUS ATKINS,
Plaintiffs,
-against-
COUNTY OF ORANGE, et al.,
Defendants.
01 Civ. 11536 (WCC)
251 F. Supp. 2d 1225
March 14, 2003, Decided
Conner, Sr. D.J.
Plaintiffs
Romus Atkins, Mark Bellotto, Dawn Brown, Jane Brown, Michael J. Croci, Jr.,
Michael P. Kracht and Robert Grassfield (collectively "plaintiffs")
bring this action against the County of Orange, Joseph P. Rampe, former County
Executive, sued in his individual capacity, Chris Ashman, Commissioner of
Mental Health, sued in his individual and official capacities, and John and/or
Jane Does one through twelve (collectively "defendants"), pursuant to:
1) 42 U.S.C. § 1983 alleging violations of their rights under the Fourteenth
and Eighth Amendments; 2) Title II of the Americans with Disabilities Act
("ADA"); 3) § 504 of the Rehabilitation Act of 1973
("Rehabilitation Act") alleging discrimination based on plaintiffs'
mentally [*1228] disabled status; and 4) New York Correction Law § 137(5)
alleging degrading treatment. Pursuant to FED. R. CIV. P. 12(b)(6), defendants
now bring this motion to dismiss the third cause of action alleging
discrimination based on the ADA and the Rehabilitation Act, the fourth cause of
action alleging degrading treatment under New York Correction Law § 137(5) and
all claims against Joseph P. Rampe. For the
reasons stated below, the motion is granted in its entirety.
BACKGROUND
The
following statement of facts relative to the instant motion is based on the
allegations in plaintiffs' Second Amended Complaint, which, for the purposes of
this motion, we assume to be true. n1 All plaintiffs were incarcerated at the
Orange County Correctional Facility (the "Jail") at various times
between 1999 and 2002. (2d Am. Complt. PP 11-17.) While incarcerated, each
plaintiff was under the care of the Orange County Department of Mental Health
("DMH"), which operates and staffs the forensic mental health clinic
(the "forensic clinic"). (Id. P 29.) The forensic clinic employed two
part-time psychiatrists to treat inmates at the Jail. (Id. P 30.)
In 1995,
the DMH Commissioner, Ashman, was
personally informed by Susan Menon, then a nurse administrator working for the
medical services contractor at the Jail, that the forensic clinic psychiatrists were routinely
over-prescribing psychotropic drugs to inmates under their care. (Id. P33.) Two
years later, Menon again informed Ashman of problems at the forensic clinic
including over-medication, delays in treatment and lack of emergency backup
treatment and facilities. (Id. P34.) In 1998, Menon along with another nurse,
Lurana Berweger, again informed Ashman of the same problems. (Id. P 35.)
In 1997,
Menon met with Deputy County Executive Toni Murphy. (Id. P 38.) She explained
the treatment problems occurring in the forensic clinic and provided memos she
had written to others in authority detailing the same problems. (Id.) Murphy
told Menon that Rampe would be shocked by this information and that it would be
dealt with after his re-election. (Id. P 39.) In 1998, Berweger wrote a letter
to Rampe outlining the same treatment problems she observed and included
documentary support. (Id. P 40.) Neither Ashman nor Rampe took measures to
rectify the problems at the forensic clinic although at all times they were
bound by the Consent Judgment in Merriweather v. Sherwood, 518 F. Supp. 355
(S.D.N.Y. 1981). n2
Plaintiffs
claim they were subjected to the following mistreatment while in jail:
over-medication with psychotropic drugs; denial of timely psychiatric
evaluations; denial of emergency psychiatric care; denial of timely
prescription drug administration; denial of adequate staffing of observation
holding cells; denial of adequate therapeutic psychiatric care; and denial of discharge
planning and treatment plans. (2d Am. Complt. P 3.) Each plaintiff, however,
[*1229] has specific allegations that we will briefly review.
Atkins was incarcerated at the Jail in 2001. (Id. P 47.) He
suffers from schizophrenia and bipolar disorder and, upon his incarceration,
was referred to the forensic clinic. (Id. P 46.) One day later, a forensic
clinic psychiatrist evaluated Atkins and prescribed medication, which Atkins
refused to take. (Id. P 48.) No action was taken when the forensic unit was
informed of his refusal. (Id.) Atkins then experienced a psychotic episode
after which he was placed in a "bullpen," pepper-sprayed, restrained
and beaten. (Id. PP 49-50.) Without a psychiatrist's order, Atkins was placed
in therapeutic restraint, a seclusion cell that is monitored by staff every
fifteen minutes. (Id. P 53.) Atkins was not seen by a forensic unit
psychiatrist unit two days later. (Id. P 51.)
Bellotto, a minor with no previous history of mental illness,
was serving a thirty-day sentence in 2000. (Id. P 56.) A forensic unit
psychiatrist, citing depression, prescribed Paxil to Bellotto. (Id. PP 56-57,
59.) Bellotto was not informed he could refuse medication; his mother protested
the administration of the drug to her son.
(Id. PP 60-61.) DMH continued to administer Paxil to Bellotto for the
remainder of his sentence. (Id. P 62.)
Dawn Brown was an inmate at the Jail on several occasions and
suffers from schizoaffective disorder and bipolar disorder. (Id. PP 67-68.) In
2000, Dawn Brown was behaving irrationally and was referred to the forensic
clinic. (Id. P 69.) The nursing staff placed her on close watch but she was not
seen by a psychiatrist until five days later. (Id. PP 70-71.) On several other
occasions during her incarceration, Dawn Brown refused treatment and DMH took
no further steps to provide her with care. (Id. PP 76, 80.) She was also put in
keeplock isolation, restraints and was beaten. (2d Am. Complt. PP 75, 77,
80-82.)
Jane Brown was incarcerated at the Jail in 2001 and suffers from
cyclothymic disorder, panic disorder and post-traumatic stress disorder in
addition to being a recovering substance abuser. (Id. PP 89-91.) A psychiatrist
at the forensic clinic prescribed Paxil to Jane Brown but she frequently missed
taking the drug because she was
attending GED classes during the time it was distributed. ( Id. P 92.) Her
request to have to the distribution schedule changed went unheeded until one
week before her release. (Id. PP 92-93.) The forensic clinic provided no discharge
planning and Jane Brown suffered withdrawal symptoms after release. (Id. P 95.)
Croci was incarcerated at the Jail twice between 1999-2001 and
suffers from bipolar disorder, claustrophobia and anxiety. (Id. PP 98-99.) Upon
incarceration, Croci was referred to DMH "ASAP" but was not seen
until many days later. (Id. P 102.) When he was finally seen, he was
administered a number of prescribed medications that left him in an
"almost constant state of somnolence." (Id. P 103.) During another
period of incarceration, Croci was seen by DMH but there was no follow-up
treatment even though he refused medication. ( Id. PP 106, 109-10.) Thereafter,
he had a psychotic episode, was beaten by corrections officers and restrained
in the "bullpen." (Id. PP 107-8.)
Kracht has been incarcerated at the Jail more than ten times,
the last time being in 2001. (Id. PP 116-17.) He suffers from bipolar disorder.
(Id. P 115.) Kracht alleges that DMH knew of his mental illness but denied him
medication for his illness for a week. (Id. P 118.) When he was finally seen by
a psychiatrist, his previous mental health records were not reviewed and he was
given several prescribed psychotropic medications. (Id. PP 119-20.) Upon
learning of side effects Kracht was experiencing, a different psychiatrist
[*1230]thereafter abruptly stopped one of his medications, which is not
recommended, and put him on another one, which was not closely monitored. (Id.
PP 123-24.) Kracht's medications were changed again and a caseworker noticed he
was "sleeping day and night." (Id. P 130.) Kracht alleges he missed
"recreation and meal opportunities" and was otherwise deprived of any
significant activity of any kind while at the Jail. (Id. P 135.)
Grassfield was incarcerated in 2002 and suffers from bipolar
disorder and post-traumatic stress disorder. Grassfield saw a psychiatrist four
days after being admitted who then renewed the medications he had been deprived
of since entering the Jail. (Id. PP 140, 142-43.) Grassfield claims, however,
that he received his medications sporadically and became depressed. (Id. P
144.) Grassfield then tried to commit suicide but when the corrections officers
found him, they beat and handcuffed him. ( Id. PP 149-50.) Grassfield was
placed in keeplock isolation and again did not properly receive his
medications. (Id. PP 152-53.) He again tried to commit suicide. (Id. P 155.)
DISCUSSION n3
I. Standard on Motion to
Dismiss
As previously noted, on a motion to dismiss pursuant to Rule
12(b)(6), the court must accept as true all of the well pleaded facts and
consider those facts in the light most favorable to the plaintiff. See cases cited,
supra note 1. On such a motion, the
issue is "whether the claimant is entitled to offer evidence to support
the claims." Scheuer, 416 U.S. at 236. A complaint should not be dismissed
for failure to state a claim "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." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996)
(quoting Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173
(1980)). Generally, "conclusory
allegations or legal conclusions masquerading as factual conclusions will not
suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S
FEDERAL PRACTICE § 12.34 [1][b] (3d ed. 1997); see also Hirsch v. Arthur
Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations that are so
conclusory that they fail to give notice of the basic events and circumstances
of which the plaintiff complains, are insufficient as a matter of law. See
Martin v. New York State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir.
1978).
II. The ADA and
Rehabilitation Act n4
Under
Title II of the ADA, "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." 42 U.S.C. § 12132.
Similarly, under § 504 of the Rehabilitation Act, "no otherwise qualified
individual with a disability ... shall, solely by reason [*1231] 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." 29
U.S.C. § 794(a). The Supreme Court has
held that these provisions extend to state prisons. Pennsylvania Dep't of
Corrections v. Yeskey, 524 U.S. 206, 208, 141 L. Ed. 2d 215, 118 S. Ct. 1952
(1998); Shariff v. Artuz, 2000 U.S. Dist. Lexis 12248, No. 99 Civ. 0321, 2000 WL
1219381, at *4 (S.D.N.Y. Aug. 28, 2000).
In order
to establish a violation of Title II of the ADA, plaintiffs must show that: 1)
he or she is a qualified individual with a disability; 2) he or she is being
excluded from participation in, or being denied the benefits of some service,
program or activity by reasons of his or her disability; and 3) the entity
which provides the service, program or activity is a public entity. Lee v.
State of New York Dep't of Corr. Servs., 1999 U.S. Dist. Lexis 13214, No. 97
Civ. 7112, 1999 WL 673339, at *13 (S.D.N.Y. Aug. 30, 1999).
Under §
504 of the Rehabilitation Act, a plaintiff must show that: 1) he or she has a
disability for purposes of the Rehabilitation Act; 2) he or she was
"otherwise qualified" for the benefit he or she had been denied; 3)
he or she has been denied the benefits "solely by reason" of his or
her disability; and 4) the benefit is part of a "program or activity
receiving Federal financial assistance." Doe v. Pfrommer, 148 F.3d 73, 82
(2d Cir. 1998).
In their
third cause of action, plaintiffs allege that defendants discriminated against
them by "punishing them for their symptoms of mental illness by placing
them in keeplock isolation thereby exacerbating their mental illness" and
by "failing to provide alternate punishments to keeplock isolation as a
reasonable accommodation so that punishments which exacerbate mental illness
are not imposed."
(2d Am. Complt. PP 178-79.) Defendants first argue that the ADA and
Rehabilitation Act claims be dismissed as to Atkins, Bellotto, Jane Brown,
Crocci and Kracht because none of these plaintiffs allege that they were placed
in keeplock isolation, and, of the two remaining plaintiffs, only Grassfield
alleges that his condition was exacerbated by keeplock isolation, and therefore
Dawn Brown's claim should also be dismissed. (Defs. Mem. Supp. Mot. Dismiss at
5.) Defendants further argue that the Second Amended Complaint does not allege
that plaintiffs, who are
mentally disabled, are treated any differently than inmates that are not
mentally disabled because all inmates are subject to being placed in keeplock
isolation if they exhibit violent or self-destructive behavior. (Id. at 6-7.)
In addition, defendants argue that the ADA and Rehabilitation Act claims merely
restate their § 1983 claims. (Id. at 7.) Finally, defendants argue that neither
the ADA nor the Rehabilitation Act require alternatives to medical isolation as
an "accommodation" to the plaintiffs. (Id. at 8.)
We remind defendants that
when ruling on a 12(b)(6) motion, the Court will look at the Second
Amended Complaint as a whole because failing to do so would undermine the
liberal pleading principles established by Rule 8 of the Federal Rules of Civil
Procedure. Clark v. Town of Ticonderoga, 213 F. Supp. 2d 198, 202 (N.D.N.Y.
2002); Albert v. Carovano, 851 F.2d 561, 571 n.3 (2d Cir. 1988) ("Factual
allegations alone are what matters."); Flickinger v. Harold C. Brown &
Co., 947 F.2d 595, 600 (2d Cir. 1991) ("... federal pleading is by
statement of claim, not by legal theory."); Gins v. Mauser Plumbing Supply
Co., 148 F.2d 974, 976 (2d Cir. 1945) ("... particular legal theories of
counsel yield to the court's duty to grant the relief to which the prevailing
party is entitled, whether demanded or not."). Thus, we will look at the
Second Amended Complaint as a whole in determining whether plaintiffs have
presented [*1232]factual allegations sufficient to state claims under the ADA
and Rehabilitation Act for which relief
can be granted.
As the defense
argues, plaintiffs, with the exception of Kracht, do not allege that they were
denied the benefits of a service, program or activity in the Jail. Such a
failure is a "fundamental defect" that may lead to the dismissal of
the claims. Lee, 1999 U.S. Dist. Lexis 13214, 1999 WL 673339, at *14
(citing Burgess v. Goord, 1999 U.S. Dist. Lexis 611, No. 98 Civ. 2077, 1999 WL
33458, at *7 (S.D.N.Y. Jan. 26, 1999) (dismissing ADA claim where inmate did
not allege that he was prevented from using recreation yard or attending
religious services because of his severe difficulty walking on stairs); Devivo
v. Butler, 1998 U.S. Dist. Lexis 17719, No. 97 Civ. 7919, 1998 WL 788787, at *4
(S.D.N.Y. Nov. 10, 1998) (dismissing ADA claim where blind inmate failed to
allege that he was denied services in prison because he was blind)). Nor do plaintiffs allege that
violent and self-destructive inmates who are disabled due to mental illness are
treated any differently than violent, self-destructive inmates who are not
disabled due to mental illness. The Orange County Jail Health Services
Policy and Procedural Manual outlines when a prisoner will be put in keeplock
isolation: whenever an inmate presents risk of danger to self or others. n5
Plaintiffs do not allege that the mentally disabled are the only prisoners
subjected to this procedure while the non-mentally disabled prisoners are
excluded therefrom. The
purpose of the ADA and Rehabilitation Act statutes is to "eliminate
discrimination on the basis of disability and to ensure evenhanded treatment
between the disabled and the able-bodied." Doe, 148 F.3d at 82. With no
allegation of disparate treatment, no claim for discrimination under the ADA or
Rehabilitation Act lies.
As noted above, Kracht alleges that the "inappropriate
medical regime caused him to sleep all the time, miss recreation and meal
opportunities and otherwise deprive him of any significant activity of any kind
while he was at the jail." (2d Am. Complt. P 135.) While this comes closer
to stating a claim, Kracht is in essence challenging the adequacy of the mental
health services provided at the Jail,
not illegal disability discrimination. Doe, 148 F.3d at 82.
Plaintiffs argue that an alternative to keeplock isolation
should be provided to the mentally disabled in order to avoid exacerbation of
their illness. Many cases address ways in which to ensure meaningful access to
services offered. Lee, 1999 U.S. Dist. Lexis 13214, 1999 WL 673339, at *14
(listing cases). In those cases, however, plaintiffs specified precise
affirmative measures necessary to render the disabled individuals' access to a
specified service meaningful. Here, plaintiffs suggest no alternative
accommodations to keeplock isolation or any other procedure and, even if they did,
they mention no specific service that is being denied as a result of the
current procedures. Clearly, plaintiffs are dissatisfied with the quality of
the mental health services, which is already covered under their[*1233] § 1983
claims. Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996) (stating that
plaintiff failed to state a claim under the ADA because the core complaint was
incompetent treatment of his underlying medical condition). These factual
allegations, even construed in the light most favorable to the plaintiffs, do
not state a claim under the ADA or Rehabilitation Act.
III. Claims Against Rampe
Rampe is being sued in his individual capacity under § 1983, the
ADA, the Rehabilitation Act and New York Correction Law. (2d Am. Complt. PP 20,
163, 180, 182.) Plaintiffs allege that Rampe was bound by the terms of the
Consent Judgment in Merriweather and took no action to address the problems he
learned of through a letter and information received by Murphy. (Id. PP 42-44.)
Defendants argue that Rampe has qualified immunity from all claims because he
acted reasonably and in addition, he had no personal involvement, a
prerequisite for § 1983 liability. (Defs. Mem. Supp. Mot. Dismiss at 10-17.)
Defendants do not specifically address the question of whether
plaintiffs may assert claims under the ADA and Rehabilitation Act against Rampe
in his individual capacity. Because
Title II of the ADA provides redress to disabled individuals for discrimination
by a public entity, individuals may not be sued. Hallett v. New York State
Dep't of Correctional Servs., 109 F. Supp. 2d 190, 199 (S.D.N.Y. 2000); Cerrato
v. Durham, 941 F. Supp. 388, 395 (S.D.N.Y. 1996); Lee, 1999 U.S. Dist. Lexis
13214, 1999 WL 673339, at *13 n.14. Thus, the ADA and Rehabilitation Act claims
against Rampe are dismissed.
To state a claim under § 1983, plaintiffs must allege direct
or personal involvement in the alleged constitutional violation. Higgins v.
Coombe, 1997 U.S. Dist. Lexis 8418, No. 95 Civ. 8696, 1997 WL 328623, at *11
(S.D.N.Y. June 16, 1997); Hallett, 109 F. Supp. 2d at 201; Woods v. Goord, 2002
U.S. Dist. Lexis 7157, No. 01 Civ. 3255, 2002 WL 731691, at *6 (S.D.N.Y. April
23, 2002). Personal involvement means direct participation in the infraction,
failure to remedy the alleged wrong after learning of it through a report or
appeal, creation of a policy or custom under which unconstitutional practices
occurred, or gross negligence in managing subordinates. Williams v. Smith, 781
F.2d 319, 323-24 (2d Cir. 1986). Plaintiffs allege that the letter sent to
Rampe by Berweger and the information given to Murphy, the Deputy County
Executive, establish Rampe's personal involvement in the alleged constitutional
violations, especially in light of the Merriweather Consent Judgment. n6 (2d
Am. Complt. PP 38, 40.) We disagree.
It is well established that plaintiffs cannot bring a § 1983
claim against individuals based solely on their supervisory capacity or their
high positions of authority. Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).
It is equally clear that allegations that an official ignored a prisoner's
letter is not enough to establish personal involvement. Johnson v. Wright, 234
F. Supp. 2d 352, 363 (S.D.N.Y. 2002) (noting that the second type of personal
involvement, failing to remedy the alleged wrong after learning of it, should
be construed narrowly because the case from which it originated involved a
supervisory official who was mandated by regulation to receive reports of
certain prison conditions); [*1234] Watson v. McGinnis, 964 F. Supp. 127, 130
(S.D.N.Y. 1997); Higgins, 1997 U.S. Dist. Lexis 8418, 1997 WL 328623, at *11;
Woods, 2002 U.S. Dist. Lexis 7157, 2002 WL 731691, at *7; Thomas v. Coombe,
1998 U.S. Dist. Lexis
10519, No. 95 Civ. 10342, 1998 WL 391143, at *6 (S.D.N.Y. July 13,
1998). While the letter and information in the present case came from nurses
working at the Jail and not the plaintiffs themselves, it still holds true
that "if mere receipt of a letter
or similar complaint were enough, without more, to constitute personal
involvement, it would result in liability merely for being a supervisor, which
is contrary to the black-letter law that § 1983 does not impose respondeat
superior liability." Johnson, 234 F. Supp. 2d at 363. Personal involvement
will be found, however, if an official acts on a prisoner's grievances or
otherwise responds to them. Id. Rampe did not act, nor did he respond to the
letter or information received by Murphy. Because there is no personal
involvement, the § 1983 claims against Rampe are dismissed.
IV. New York Correction Law
n7
Defendants argue that the New York Correction Law claim must be
dismissed because: plaintiffs failed to file a notice of claim as required by
New York County Law § 52; there is no private cause of action; the statute
regulates only the activities of the sheriff; the statute of limitations
expired with respect to most of the incidents in the complaint; and the alleged
conditions were not "degrading." (Defs. Mem. Supp. Mot. Dismiss at
17-18.) We agree that the New York Correction Law claim must be dismissed
because plaintiffs failed to file a notice of claim.
The notice of claim requirement is an important safeguard to
protect municipalities from stale and fraudulent claims while also allowing the
government an opportunity to investigate the claim. Mills v. County of Monroe, 59
N.Y.2d 307, 310, 464 N.Y.S.2d 709, 451 N.E.2d 456 (1983). In this case, there
is no dispute that plaintiffs did not file a notice of claim. (2d Am. Complt. P
9.) Plaintiffs maintain that no notice of claim was required because they seek
to vindicate a public interest, namely challenging the inhumane mental health
treatment at the Jail. (Id.) Indeed,
vindication of a public right is an exception to the notice of claim
requirement recognized by the New York Court of Appeals as opposed to an action
brought merely to enforce a private right. Union Free School Dist. No. 6 of
Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35
N.Y.2d 371, 380, 362 N.Y.S.2d 139, 320 N.E.2d 859 (1974). There, the Division
of Human Rights was asserting a claim on behalf of a class of women plaintiffs
alleging that the school board's maternity leave policy was discriminatory and
that such a claim brought by the Division was a vindication of the public's
interest in the elimination of discrimination based on sex. n8 Id. Nearly a
decade later, the New York Court of Appeals distinguished the facts of this
case when an individual plaintiff brought suit against a county alleging she
was fired based on her race and national origin. Mills, 59 N.Y. 2d at 309.
[*1235] In Mills, the court found that the actionable conduct on the part of
the county referred only to conduct that related to the plaintiff and that the
plaintiff sought monetary relief for lost wages. Id. at 312. Accordingly, she
was not seeking to vindicate a public interest and her claim was dismissed. Id.
Further, other district courts have found that the public
interest exception does not apply when plaintiffs are seeking money damages for
the sole purpose of redressing plaintiffs' individual injuries. Turner v.
County of Suffolk, 955 F. Supp. 175, 177 (E.D.N.Y. 1997) (dismissing
plaintiff's complaint because it redressed only plaintiff's individual injuries
and the relief requested only benefitted plaintiff); Finley v. Giacobbe, 827 F.
Supp. 215, 220 (S.D.N.Y. 1993) (stating that while a victory for the plaintiff
may have a positive effect on the public interest she claims to have been
vindicating, the court could not say that her cause of action was more imbued
with the public interest than that of any other human rights plaintiff); Brown
v. Massena Memorial, 2000 U.S. Dist. Lexis 4819, No. 99 Civ. 1729, 2000 WL
381941, at *6 (N.D.N.Y. April 11, 2000) (dismissing plaintiff's claim because
it was not of any greater value to the public than any other award to a civil
rights plaintiff).
Here, plaintiffs are solely seeking redress for their individual
injuries and while plaintiffs' recovery might have an effect on the mental
health conditions in jails, we do not think such an effect would be of any
greater value to the public than any other award to civil rights plaintiffs.
Finley, 827 F. Supp. at 220. Therefore, the fourth cause of action under New
York Correction Law § 137(5) is dismissed.
CONCLUSION
For the above stated reasons, defendants' motion to dismiss
plaintiffs' third cause of action under the ADA and Rehabilitation Act, fourth
cause of action under the New York Correction Law § 137(5) and all claims
against Joseph P. Rampe is granted in its entirety.
SO ORDERED.
Dated: March 14, 2003
William C. Conner
Sr.
United States District Judge
n1 On a
motion to dismiss pursuant to Rule 12(b)(6), the court must accept all of the
well pleaded facts as true and consider those facts in the light most favorable
to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94
S. Ct. 1683 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183,
82 L. Ed. 2d 139, 104 S. Ct. 3012 (1984); Hertz Corp. v. City of New York, 1
F.3d 121, 125 (2d Cir. 1993); In re AES Corp. Sec. Litig., 825 F. Supp. 578,
583 (S.D.N.Y. 1993) (Conner, J.).
n2 The
Merriweather class action was brought in 1977 to secure better medical and
mental health care at the facility, as well as improved living conditions in
the form of recreational, educational, and other out-of-cell and out-of-tier
activities. A compromise was reached and a Consent Judgment was entered by the
Hon. Edward Weinfeld of this Court on October 27, 1978. Merriweather v. Sherwood,
518 F. Supp. 355, 356 (S.D.N.Y. 1981).
n3 We
note at the outset that plaintiffs do not address some claims in their
opposition paper, enabling the Court to conclude that they have abandoned them.
Singleton v. City of Newburgh, 1 F. Supp. 2d 306, 312 (S.D.N.Y. 1998) (Conner,
J.) (plaintiff's claim deemed "abandoned" and defendants' summary
judgment granted where claim was alleged in the complaint but "not raised
elsewhere in the record"); Anti-Monopoly, Inc., v. Hasbro, Inc., 958 F.
Supp. 895, 907 (S.D.N.Y. 1997) ("The failure to provide argument on a
point at issue constitutes abandonment of the issue."), aff'd, 130 F.3d
1101 (2d Cir. 1997). Despite
plaintiffs' silence in these matters, we will discuss the sufficiency of their
claims.
n4 This
Court has jurisdiction over the Rehabilitation Act under 28 U.S.C. §§
1343(a)(3) & (4) and the ADA pursuant to 28 U.S.C. § 1331.
n5 In
assessing the legal sufficiency of a claim, the court may consider those facts
alleged in the complaint, documents attached as an exhibit thereto or
incorporated by reference, see FED. R. CIV. P. 10(c); De Jesus v. Sears, Roebuck
& Co., Inc., 87 F.3d 65, 69 (2d Cir. 1996), and documents that are
"integral" to plaintiff's claims, even if not explicitly incorporated
by reference. Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 46-48 (2d
Cir. 1991); Lee, 1999 U.S. Dist. Lexis 13214, 1999 WL 673339, at *2 n.4; see
United States Fidelity & Guaranty Co. v. Petroleo Brasileiro S.A.-Petrobas,
2001 U.S. Dist. Lexis 3349, No. 98 Civ. 3099, 2001 WL 300735, at *2 (S.D.N.Y.
Mar. 27, 2001) ("the Court can consider documents referenced in the
complaint and documents that are in the plaintiffs' possession or that the
plaintiffs knew of and relied on in their suit.").
n6 To
the extent plaintiffs are alleging violations of the Merriweather Consent
Judgment, their action is not properly before this Court and thus cannot be
considered. Woods, 2002 U.S. Dist. Lexis 7157, 2002 WL 731691, at *7 n.13
(citing Kaminsky v. Rosenblum, 737 F. Supp. 1309, 1317 n.6 (S.D.N.Y. 1990)
(stating that violations of the decree must be brought before the judge who
retains supervision over decree)).
n7 This
Court has jurisdiction over the New York Correction Law claim pursuant to 28
U.S.C. § 1367 as it arises from the same nucleus of operative facts as the
federal claims.
n8 While
it is acknowledged that all actions brought to enforce civil rights can be said
to be in the public interest, "actions that are brought to protect an
important right, which seek relief for a similarly situated class of the
public, and whose resolution would directly affect the rights of that class or
group are deserving of special treatment." Mills, 59 N.Y.2d at 311.