Supreme Court, Putnam County, February 23, 2023

Disability Rights New York, Rensselaer (Ben Taylor of counsel), for petitioner.

Letitia James, Attorney General (Terrance K. DeRosa of counsel), for Kerri Neifeld, as Commissioner of the New York State Office for People with Developmental Disabilities, respondent.

It is ordered that the motion is disposed of as follows:

Petitioner Matthew P., a 26-year-old man with severe autism, was arrested on April 27, 2022, for burglary and incarcerated at the Putnam County Correctional Facility. After a competency hearing in the Justice Court of the Town of Patterson, Judge Michael V. Caruso on July 27, 2022, issued a written order pursuant to CPL 730.60 that Matthew be "committed to the [*2]custody of Commissioner of the Office for People with Developmental Disabilities for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this order." On the following day, petitioner's attorney forwarded a copy of Judge Caruso's order to counsel for the Office for People with Developmental Disabilities (hereinafter OPWDD) and asked when Matthew would be transferred from jail to an OPWDD facility. On August 4, 2022, OPWDD replied:

"The plan for admitting [Mr. P.]—and others whose admissions are also paused—is to first take into account our ability to align our census with our staffing resources and—when admissions are possible—to then admit individuals based on key criteria including the existence of Court orders, the length of time they have been waiting, and the acuity{**78 Misc 3d at 1055} of their respective clinical needs."

On August 11, 2022, in response to a request for an updated status, OPWDD stated:

"[W]hile we haven't been able to alleviate the staffing shortage in the past week, we are monitoring Matthew's status and are in contact with Putnam Mental Health, the Jail and County DSS, and returned calls to the Court and defense counsel. As of our last contact, we understood that he was doing better. We are limited by circumstances largely outside our control in regard to our ability to admit additional individuals, but share the concern for his welfare and will continue to undertake best efforts to facilitate his admission to our facility."

On August 23, 2022, a verified petition containing six claims for relief was filed on Matthew's behalf. Petitioner asserted that (1) Matthew's continued incarceration violated his substantive due process rights under the Constitutions of the United States and State of New York; (2) he was entitled to habeas corpus relief; (3) his incarceration violated the Mental Hygiene Law; (4) his incarceration violated Judge Caruso's order; (5) OPWDD's failure to remove him from jail constituted discrimination in violation of title II of the Americans with Disabilities Act (ADA); and (6) the failure to remove him from jail violated section 504 of the Rehabilitation Act. Petitioner sought injunctive relief on all claims, monetary damages on his ADA claim, and declaratory relief on all other claims.

By order to show cause dated August 24, 2022, this court directed service of process to be made upon the respondent, OPWDD Commissioner Neifeld, via email to her General Counsel and Deputy Commissioner, and ordered a hearing on August 26, 2022. The court thereupon granted petitioner's request for injunctive relief and ordered respondent Neifeld to remove Matthew from jail and provide him with care and services in an appropriate facility no later than 5:00 p.m. on August 29, 2022. Pursuant to the court's order, Matthew was transferred on August 29th from the Putnam County Jail to the Sunmount Developmental Center.

Respondent now moves for dismissal of the petition. The issues, as crystallized by the parties' motion papers, are essentially threefold. Respondent contends:

• The court lacks subject matter jurisdiction over petitioner's claims for monetary damages and{**78 Misc 3d at 1056} declaratory relief because no "action" was properly commenced.

• Petitioner's request for declaratory relief is moot.

• The petition fails to state a cause of action under the ADA.

I. The court has jurisdiction per CPLR 103 (c) to convert petitioner's special proceeding to an action. [*3]

Respondent contends that the court lacks subject matter jurisdiction over the "action" portion of this hybrid proceeding—petitioner's claims for monetary damages and declaratory relief—because the petitioner filed only an order to show cause and petition, not a summons and complaint. Not so.

CPLR 103 (c) provides in pertinent part: "If a court has obtained jurisdiction over the parties, a civil judicial proceeding shall not be dismissed solely because it is not brought in the proper form, but the court shall make whatever order is required for its proper prosecution." Thus, "courts are empowered and indeed directed to convert a civil judicial proceeding not brought in the proper form into one which would be in proper form, rather than to grant a dismissal" (Matter of First Natl. City Bank v City of N.Y. Fin. Admin., 36 NY2d 87, 94 [1975]), provided, as CPLR 103 (c) explicitly states, that the court "has obtained jurisdiction over the parties." (See Matter of Phalen v Theatrical Protective Union No. 1, 22 NY2d 34, 41 [1968]; Matter of Griffin v Panzarin, 305 AD2d 601, 603 [2d Dept 2003].) Supreme Court has ample authority in those circumstances to convert a special proceeding into an action, and to deem the pleadings filed—the order to show cause/notice of petition and petition—to be those required by CPLR 304, i.e., the summons and complaint, respectively. (See Matter of Dao Yin v Cuomo, 183 AD3d 926, 927 [2d Dept 2020]; Matter of Williams v Town of Carmel, 175 AD3d 550, 551 [2d Dept 2019]; Matter of Houston v Board of Mgrs. Deer Run Condominium Assn., 162 AD3d 1026 [2d Dept 2018]; Matter of State of New York [Essex Prop. Mgt., LLC], 152 AD3d 1169, 1171 [4th Dept 2017]; Matter of Greenberg v Assessor of Town of Scarsdale, 121 AD3d 986, 990 [2d Dept 2014]; Matter of Baba Makhan Shah Lobana Sikh Ctr., Inc. v Singh, 115 AD3d 948, 950 [2d Dept 2014]; Hodges v Beattie, 68 AD3d 1597, 1598 [3d Dept 2009].)

[1] Here, the court obtained jurisdiction over respondent Neifeld via service of the order to show cause in accordance with the court's directives (see NY St Cts Elec Filing [NYSCEF] Doc{**78 Misc 3d at 1057} Nos. 9, 10;^[FN1] cf. Griffin v Panzarin, 305 AD2d at 603 ["since the order to show cause was never signed, there was no service of the petition on the respondents and jurisdiction was not obtained over them"]). Consequently, it has discretion to grant relief pursuant to CPLR 103 (c).

Petitioner's claim for monetary damages under the ADA must be pursued in an action at law, not a special proceeding. The claim remains outstanding. Were it dismissed it could be recommenced as the statute of limitations has not run. Insofar as pertains to the petitioner's ADA claim, then, the court hereby converts the special proceeding to an action and denies respondent's motion to dismiss that claim on the purported ground of a lack of subject matter jurisdiction.

Petitioner's claims for declaratory relief must likewise be pursued in an action for declaratory judgment, not in a special proceeding. In Matter of Prisoners' Legal Servs. of N.Y. v [*4]New York State Dept. of Corr. & Community Supervision (209 AD3d 1208 [3d Dept 2022]), the Court wrote:

"[W]e discern no abuse of discretion in Supreme Court's dismissal of petitioner's claims for a declaratory judgment in light of its failure to file a summons and combined petition/complaint, nor did the court err in failing to convert the proceeding into a hybrid proceeding/action, particularly where, as here, several of the requested declarations were mooted by respondent's disclosure of the corresponding requested materials (see Matter of New York Times Co. v City of N.Y. Police Dept., 103 AD3d 405, 407 [1st Dept 2013], lv dismissed 21 NY3d 930 [2013], lv denied 22 NY3d 854 [2013]; see also Premier Restorations of N.Y. Corp. v New York State Dept. of Motor Vehs., 127 AD3d 1049, 1049 [2d Dept 2015])." (Matter of Prisoners' Legal Servs. of N.Y., 209 AD3d at 1211 n 1.)

Here, similarly, petitioner's claims for declaratory relief have been mooted by his transfer from the Putnam County Jail to{**78 Misc 3d at 1058} the Sunmount Developmental Center. (See Point II, infra.) Therefore, the court declines to exercise its authority under CPLR 103 (c) with respect to the first, third, fourth and sixth claims in the petition, and grants respondent's motion for dismissal thereof.

II. Petitioner's request for declaratory relief is moot.

[2] Petitioner has been granted complete injunctive relief by virtue of Matthew's transfer from the Putnam County Jail to the Sunmount Developmental Center pursuant to this court's August 26, 2022 order. His only claim for monetary damages arises under title II of the ADA. Under the circumstances, his request for a declaratory judgment that respondent violated (1) his due process rights under the Constitutions of the United States and State of New York, (2) the Mental Hygiene Law, (3) the Justice Court order issued by Judge Michael Caruso, and (4) the Rehabilitation Act is moot.

"An action for a declaratory judgment must be supported by the existence of a justiciable controversy (see CPLR 3001; Long Is. Light. Co. v Allianz Underwriters Ins. Co., 35 AD3d 253 [2006]; Tri-State Sol-Aire Corp. v County of Nassau, 156 AD2d 555 [1989]). There must be a genuine, concrete dispute between adverse parties, not merely the possibility of hypothetical, contingent or remote prejudice to the plaintiff (see Chanos v MADAC, LLC, 74 AD3d 1007, 1008 [2010]; Waterways Dev. Corp. v Lavalle, 28 AD3d 539, 540 [2006])." (Premier Restorations of N.Y. Corp. v New York State Dept. of Motor Vehs., 127 AD3d 1049, 1049 [2d Dept 2015]; see also Matter of JDM Holdings, LLC v Village of Warwick, 200 AD3d 880, 883 [2d Dept 2021].)

Although petitioner acknowledges that he has obtained complete injunctive relief, he nevertheless contends that his request for a declaratory judgment is not moot because, on account of his permanent disability, it is "entirely possible that Petitioner will find[ ] himself in this same circumstance in future." (Mem at 12.) However, as the Second Department observed in Premier Restorations, "a hypothetical injury which would be contingent upon the occurrence of events which may or may not come to pass at some point in the future" does not give rise to a "justiciable controversy." (See Premier Restorations of N.Y. Corp., 127 AD3d at 1049.) Moreover, petitioner has utterly failed to rebut respondent's demonstration of the inapplicability here of the exception to the mootness doctrine{**78 Misc 3d at 1059} permitting consideration of "substantial and novel issues that are likely to be repeated and will typically evade review." (See Matter of Hearst Corp. v Clyne, 50 NY2d [*5]707, 714-715 [1980]; see also Matter of Prisoners' Legal Servs. of N.Y. v New York State Dept. of Corr. & Community Supervision, 209 AD3d at 1211.)

Complete injunctive relief having been granted, and petitioner's injury (except for that underlying his claim for monetary damages under the ADA) having been obviated, he now seeks only an impermissible advisory opinion declaring that respondent violated his rights as alleged in the first, third, fourth and sixth claims in the petition. Consequently, respondent's motion for dismissal of those claims is granted.

III. The Legal Sufficiency of Petitioner's ADA Claim

A. The Basic Factual Allegations of the Petition

The petition alleges that Matthew is a disabled individual, having been diagnosed with autism spectrum disorder, Lyme disease and Pediatric Acute-Onset Neuropsychiatric Syndrome (PANS). (Petition ¶ 36.) He was arrested on April 27, 2022, for burglary and incarcerated at the Putnam County Correctional Facility. (Id. ¶ 39.) Upon a finding of Matthew's incompetency to stand trial, the Justice Court on July 27, 2022, issued an order directing that he be "committed to the custody of Commissioner of the [OPWDD] for care and treatment in an appropriate institution for a period not to exceed 90 days from the date of this order." (Id. ¶¶ 56-57.) OPWDD pursuant to CPL 730.60 has a duty to provide care and treatment to individuals with developmental disabilities who are placed in its custody and, with a 2022 budget of $4.9 billion, operates numerous facilities for this purpose. (Id. ¶¶ 67-69.) Although there were open beds at those facilities, Matthew's admittance to an OPWDD facility was delayed, purportedly on account of staff shortages. (Id. ¶¶ 65-66, 70.) As of August 23, 2022 (the date of filing), Matthew remained in the custody of the Putnam County Correctional Facility. (Id. ¶ 41.) Unable to access necessary care and treatment at the Correctional Facility, Matthew was regressing. (Id. ¶¶ 42-44.)

B. Petitioner's ADA Title II Claim

Petitioner alleges a claim for monetary damages against the State of New York (i.e., against OPWDD Commissioner Neifeld sued in her official capacity) predicated upon an alleged violation of the ADA's "integration mandate," as follows:

"99. The ADA provides that, 'no qualified individual with a disability shall, by reason of such disability,{**78 Misc 3d at 1060} be excluded from participating in or be denied the benefits of services, programs, or activities of a public entity.' 42 U.S.C. § 12132.

"100. Respondent OPWDD is a public entity covered by Title II of the ADA. Respondent is responsible for the operation of public entities covered by Title II of the ADA. 42 U.S.C. §§ 12131(1)(A) and (B).

"101. Petitioner is an individual with disabilities. He has mental impairments that substantially limit him in one or more major life activity.

"102. Petitioner is a qualified individual with disabilities within the meaning of 42 U.S.C. § 12131(2).

"103. Respondent's acts and omissions have caused Petitioner to remain incarcerated unnecessarily.[*6]

"104. Incarceration is more restrictive than an 'appropriate institution' that provides 'care and treatment.'

"105. Respondents are obligated under the ADA to administer New York State programs in a manner that enables Petitioner to receive services in the most integrated setting appropriate to his needs. 28 C.F.R. § 35.130(d).

"106. By failing to provide Petitioner with care and treatment in an appropriate placement, Respondents have failed to meet this obligation.

"107. Serving Petitioner in a more integrated setting would not fundamentally alter Respondent' s programs.

"108. Respondent's failure to administer services, programs, and activities to Petitioner in the most integrated setting appropriate to his needs violates Title II of the ADA as interpreted by 28 C.F.R. §§ 35.130(d), and 35.152(b)(2)."

The petition further asserts that "Respondent's failure to promptly remove Petitioner from jail and provide him with care and services in an appropriate placement violates the due process clause of the United States Constitution. U.S. Const. Amend. XIV, § 1." (Id. ¶ 75.) Based on the foregoing, petitioner seeks an award of monetary damages pursuant to title II of the ADA.

C. Respondent's Motion to Dismiss

Respondent asserted on two grounds that petitioner has failed to state a cause of action for monetary damages under{**78 Misc 3d at 1061} title II of the ADA. Citing Tardif v City of New York (991 F3d 394 [2d Cir 2021]), respondent asserted that the claim is insufficient as a matter of law because it alleges not a discriminatory denial of services "by reason of" Matthew's disability, but rather the inadequacy of services for his disability, which, she asserts, is not actionable under title II of the ADA. (See id. at 404-405.) Citing Garcia v S.U.N.Y. Health Sciences Ctr. of Brooklyn (280 F3d 98 [2d Cir 2001]), respondent further asserted that the ADA claim is insufficient as a matter of law because it alleges a denial of services available only to disabled individuals and therefore fails to allege "discriminatory animus or ill will based on disability." (See id. at 112.)

In opposition, petitioner asserted that his claim is actionable as a violation of the ADA's "integration mandate" (see Olmstead v L. C., 527 US 581 [1999]); that, in the wake of United States v Georgia (546 US 151 [2006]), no showing of "discriminatory animus or ill will based on disability" is required; and that he may recover monetary damages under the ADA upon a showing that Commissioner Neifeld failed to respond adequately to institute corrective measures on petitioner's behalf with deliberate indifference to a strong likelihood that a violation of federally protected rights would result. (See Biondo v Kaledia Health, 935 F3d 68 [2d Cir 2019]; Loeffler v Staten Is. Univ. Hosp., 582 F3d 268 [2d Cir 2009].)

In reply, respondent acknowledged that a violation of the "integration mandate" constitutes disability discrimination under the ADA, but asserted that a violation of the integration mandate, standing alone, is insufficient to subject the State of New York (i.e., Commissioner Neifeld sued in her official capacity) to damages; that proof of discriminatory animus is required per Garcia v S.U.N.Y. Health Sciences Ctr. of Brooklyn and its progeny; and that the delay in admitting Matthew into an OPWDD institution was due to staffing [*7]shortages and not to any discriminatory intent.^[FN2]{**78 Misc 3d at 1062}

D. The Legal Foundation of Petitioner's ADA Title II Claim

Title II of the Americans with Disabilities Act prohibits discrimination against individuals with disabilities in public services furnished by governmental entities. It provides: "Subject to the provisions of this subchapter, no qualified individual 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 USC § 12132.) To establish a claim under title II, a plaintiff must demonstrate "(1) that [he] is a qualified individual with a disability; (2) that [he] was excluded from participation in a public entity's services, programs or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to [his] disability." (See Tardif v City of New York, 991 F3d 394, 404 [2d Cir 2021]; Davis v Shah, 821 F3d 231, 259 [2d Cir 2016].) The first two elements are satisfied here: the petition alleges that Matthew is a qualified individual with a disability, and that he was excluded from participation in a public entity's services/programs—care and treatment in an OPWDD facility—by reason of OPWDD's delay in admitting him to an OPWDD facility in compliance with the Justice Court's order. The question is whether the petition satisfactorily alleges the third element, to wit, that Matthew's alleged "exclusion" was "due to his disability."

In Henrietta D. v Bloomberg (331 F3d 261 [2d Cir 2003]), the Second Circuit observed that the ADA is addressed to "rules ... that hurt [people with disabilities] by reason of their handicap"; that "there must be something different about the way the plaintiff is treated 'by reason of ... disability' " (citing 42 USC § 12132); and that "[w]e have long recognized that the basic analytical framework of the ADA includes such a comparative component." (See id. at 276.) The court referenced Rodriguez v City of New York (197 F3d 611, 618 [2d Cir 1999] [declining to recognize discrimination where plaintiff requested a substantive benefit that was [*8]not provided to the non-disabled]),{**78 Misc 3d at 1063} and Doe v Pfrommer (148 F3d 73, 83-84 [2d Cir 1998] ["(T)he central purpose of the ADA . . . is to assure that disabled individuals receive 'evenhanded treatment' in relation to the able-bodied. . . . (W)hat (plaintiff) ultimately seeks to challenge is not illegal discrimination against the disabled, but the substance of the services provided to him"]).

More recently, in Tardif v City of New York (991 F3d 394 [2d Cir 2021], supra), the Second Circuit addressed the question "whether the alleged failure by the police to provide custodial medical services to Tardif [a detainee suffering from epilepsy] in a timely and adequate manner prior to her arraignment, by itself, constitutes a failure to make a reasonable accommodation 'by reason of' an individual's disability under the ADA." (Id. at 404.) The court held:

"In the complete absence of evidence that Tardif's epilepsy caused a deprivation of medical services, the fact that her disability was her motivation for seeking out such services does not suddenly transform her allegations regarding the inadequate medical treatment into a 'failure to accommodate' claim. . . . Instead, her claim relates solely to whether she received adequate medical treatment in police custody for her disability, and such a claim is not cognizable under the ADA." (Id. at 405.)

However, in its analysis of discrimination "by reason of disability" under the ADA, the Second Circuit in Henrietta D. also referenced Olmstead v L. C. (527 US 581 [1999], supra), the primary foundation for petitioner's ADA title II claim. In Olmstead, the Supreme Court held based on the ADA's "integration mandate" that the proscription of discrimination may require the placement of mentally disabled persons in community settings rather than institutions

"when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." (See id. at 587, 607; see also Frank v Sachem Sch. Dist., 633 Fed Appx 14, 15 [2d Cir 2016].)

The ADA's "integration regulation" provides: "A public entity shall administer services, programs, and activities in the most{**78 Misc 3d at 1064} integrated setting appropriate to the needs of qualified individuals with disabilities." (28 CFR 35.130 [d].) The "reasonable-modification regulation" thereof further provides: "A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." (28 CFR 35.130 [b] [7] [i].)

Two aspects of the Olmstead plurality opinion have a particular bearing on this case.

First, the Court observed that "in findings applicable to the entire statute, Congress explicitly identified unjustified 'segregation' of persons with disabilities as a 'for[m] of discrimination.' " (Olmstead, 527 US at 600, citing 42 USC § 12101 [a] [2].) The Court accordingly rejected the State's contentions that

• the petitioners had encountered no discrimination "by reason of [their] disability" within the meaning of 42 USC § 12132 because they were not denied community placement on account of the disability; and that[*9]

• discrimination necessarily requires uneven treatment of similarly situated individuals, and the petitioners had identified no "comparison class." (Olmstead at 598.)

Thus, as the Second Circuit observed in Davis v Shah (821 F3d 231 [2016]), "Olmstead unquestionably holds that the 'unjustified institutional isolation of persons with disabilities' is, in an[d] of itself, a prohibited 'form of discrimination.' " (Id. at 260 [emphasis added].)

Second, the Olmstead Court explained the operation of the "reasonable-modifications" regulation:

"The reasonable-modifications regulation speaks of 'reasonable modifications' to avoid discrimination, and allows States to resist modifications that entail a 'fundamenta[l] alter[ation]' of the States' services and programs. 28 CFR § 35.130(b)(7) . . .

"Sensibly construed, the fundamental-alteration component of the reasonable-modifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the{**78 Misc 3d at 1065} responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. . . .

"If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met . . . In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the community-based treatment waiting list by individuals lower down who commenced civil actions." (Olmstead at 603, 604, 605-606.)

In short, since the unjustified "segregation" of disabled persons in itself constitutes discrimination under the ADA (see 42 USC § 12101 [a] [2]), the focus of the integration mandate is instead upon the sufficiency of the services provided by a public entity to provide an "integrated setting" appropriate to the needs of the disabled person (see 28 CFR 35.130 [d]), and the feasibility of reasonable modifications (without fundamental alteration) of the entity's programs and services to avoid unjustified segregation of disabled persons. (See 28 CFR 35.130 [b] [7].)

On constraint of Olmstead, respondent acknowledged in reply that a violation of the "integration mandate" constitutes disability discrimination under the ADA and appears to have abandoned her reliance on Tardif v City of New York, and her contention that petitioner's claim is not actionable under title II of the ADA because it alleges only the inadequacy of services for Matthew's disability and not a denial of services by reason of his disability. What remains for consideration are respondent's contentions that proof of discriminatory animus is required per Garcia v S.U.N.Y. Health Sciences Ctr. of Brooklyn and its progeny for petitioner to recover monetary damages from the State of New York, and that the delay in admitting Matthew into an OPWDD institution was due to staffing shortages and not to any discriminatory intent.^[FN3][*10]{**78 Misc 3d at 1066}

E. The Intent Element of Petitioner's Claim for ADA Title II Monetary Relief

Petitioner's claim for monetary damages under ADA title II implicates New York State's sovereign immunity under the 11th Amendment. However, section 5 of the 14th Amendment authorizes Congress to "enforce" by "appropriate legislation" the constitutional guarantees of due process of law and the equal protection of the laws, and Congress, acting pursuant to its section 5 authority, purported to abrogate state sovereign immunity with respect to ADA title II claims. (See 42 USC § 12202; Garcia v S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F3d at 107-108.) In Garcia, the Second Circuit addressed the question "how Title II monetary claims against the states can be limited so as to comport with Congress's § 5 authority." The court held:

"The answer, we believe, is to require plaintiffs bringing such suits to establish that the Title II violation was motivated by discriminatory animus or ill will based on the plaintiff's disability. Government actions based on discriminatory animus or ill will towards the disabled are generally the same actions that are proscribed by the Fourteenth Amendment—i.e., conduct that is based on irrational prejudice or wholly lacking a legitimate government interest." (Id. at 111 [emphasis added].)

However, Garcia is not the last word on the matter. Relevant post-Garcia developments are succinctly described in Matagrano v New York State Dept. of Corr. & Community Supervision (2020 WL 7338586, 2020 US Dist LEXIS 234149 [ND NY, Dec. 13, 2020, 9:19-CV-00763 (BKS/DJS)]):

"After the Second Circuit's decision in Garcia, the Supreme Court decided Tennessee v. Lane, 541 U.S. 509 . . . (2004), in which it held that Congress's abrogation of sovereign immunity under Title II was valid in the specific context of cases challenging barriers to courtroom accessibility. It reasoned that in enacting Title II, Congress sought to enforce not only the Equal Protection Clause (as recognized in Garcia), but also 'a variety of other basic constitutional guarantees, infringements of which are subject to more searching judicial review,' including rights under the Fourteenth Amendment's Due Process Clause. Id. at 522-23 . . . Put another way, {**78 Misc 3d at 1067}the Supreme Court found that Title II was 'not wholly premised on discrimination against the disabled that violates the Equal Protection Clause,' arguably opening up the possibility of other avenues for Title II damages claims to clear the Eleventh Amendment hurdle besides the Equal Protection 'discriminatory animus' test recognized in Garcia. Bolmer v. Oliveira, 594 F.3d 134, 147 (2d Cir. 2010).

"Following Lane, the Supreme Court decided United States v. Georgia, 546 U.S. 151 . . . (2006), in which it held that 'insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.' Id. at 159 . . . However, because it was unclear whether the petitioner's amended complaint might assert Title II claims not premised on Fourteenth Amendment violations, and because the justices disagreed as to the scope of Congress's 'prophylactic' authority to regulate conduct not itself barred by the Fourteenth Amendment, the Court remanded for the lower courts to determine, 'on a claim-by-[*11]claim basis, (1) which aspects of the State's alleged conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.' Id. at 158-59 . . .

"The Second Circuit has not fully resolved the question of whether, or to what extent, Garcia remains valid in light of Georgia. In Bolmer v. Oliveira, 594 F.3d 134 (2d Cir. 2010), the Second Circuit held that 'Garcia only applies to Title II claims based on Equal Protection,' that 'Garcia is not applicable when Congress's abrogation is supported by its enforcement of the substantive due process right not to be involuntarily committed absent a danger to self or others,' and that 'under Georgia and Lane, Congress validly abrogated states' Eleventh Amendment immunity where the same conduct by the defendant violated both Title II and substantive due process.' Id. at 145-49." (Matagrano, 2020 WL 7338586, *15-16, 2020 US Dist LEXIS 234149,{**78 Misc 3d at 1068} *47-50 [some citations omitted].)

To date, then, the Second Circuit has held that Garcia applies only to ADA title II claims based on equal protection, and that Garcia's "discriminatory animus" test does not apply to title II claims implicating the substantive due process right not to be involuntarily committed absent a danger to self or others. It has not resolved the question whether or to what extent Garcia remains valid in the wake of Tennessee v Lane and United States v Georgia. (See Dean v University at Buffalo Sch. of Medicine & Biomedical Sciences, 804 F3d 178, 194 n 6 [2d Cir 2015]; Bolmer v Oliveira, 594 F3d 134, 148 [2d Cir 2010], supra.) In Bolmer, however, the Second Circuit did hold that

"(1) Garcia is not applicable when Congress's abrogation [of 11th Amendment immunity] is supported by its enforcement of the substantive due process right not to be involuntarily committed absent a danger to self or others; and (2) under Georgia and Lane, Congress validly abrogated states' Eleventh Amendment immunity where the same conduct by the defendant violated both Title II and substantive due process." (Bolmer v Oliveira, 594 F3d at 149.)

The petition here alleges that Commissioner Neifeld's conduct violated ADA title II's integration mandate as well as Matthew's substantive due process rights, upon the finding of his incompetency to stand trial, to freedom from incarceration and provision of restorative treatment. On the constitutional issue, petitioner cites Trueblood v Washington State Dept. of Social & Health Servs. (73 F Supp 3d 1311 [WD Wash 2014]), which contains a cogent analysis of the substantive due process issues involved where, as here, there is a delay in transferring an incapacitated person charged with crimes from jail to a forensic hospital setting for restorative treatment:

" 'The Due Process Clause ... provides heightened protection against government interference with certain fundamental rights and liberty interests,' ... 'forbid[ding] the government to infringe certain "fundamental" liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.' The Supreme Court has long recognized that individuals have a fundamental liberty interest in being free from incarceration absent a criminal conviction, and that there are corresponding{**78 Misc 3d at 1069} constitutional limits on pretrial detention.

" 'Incapacitated criminal defendants have liberty interests in freedom from incarceration and in restorative treatment.' Oregon Advocacy Ctr. v. Mink, 322 F.3d 1101, 1121 (9th Cir.2003). 'Because incapacitated criminal defendants have not been convicted of any crime, they have an interest in freedom from incarceration. They also have a liberty [*12]interest in receiving restorative treatment.' Id. '[A] person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant. Furthermore, even if it is determined that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal.' Jackson v. Indiana, 406 U.S. 715, 738 . . . (1972).

" 'Whether the substantive due process rights of incapacitated criminal defendants have been violated must be determined by balancing their liberty interests in freedom from incarceration and in restorative treatment against the legitimate interests of the state.' Mink, 322 F.3d at 1121. . . .

" '[T]he paradigmatic liberty interest under the due process clause is freedom from incarceration.' Furthermore, 'a person committed solely on the basis of his mental incapacity has a constitutional right to receive such individual treatment as will give [him] a realistic opportunity to be cured or to improve his . . . mental condition.' 'Adequate and effective treatment is constitutionally required because, absent treatment, [he] could be held indefinitely as a result of [his] mental illness, while those convicted and sentenced' need only serve the maximum term for their criminal offense. . . .

" 'The safeguards that the Constitution accords to criminal defendants presuppose that government{**78 Misc 3d at 1070} has a sovereign prerogative to put on trial those accused in good faith of violating valid laws. Constitutional power to bring an accused to trial is fundamental to a scheme of "ordered liberty" and prerequisite to social justice and peace.' In furtherance of that goal, the state has a legitimate interest in evaluating a potentially incompetent defendant's competency so as to determine whether he . . . may stand trial, and in restoring the competency of those found incompetent so that [he] may be brought to trial. The state has a corresponding interest in an efficient and organized competency evaluation and restoration system, the administration of which uses public resources in an appropriate manner. 'Lack of funds, staff or facilities,' however, 'cannot justify the State's failure to provide [him] with [the] treatment necessary for rehabilitation.' Mink, 322 F.3d at 1121 . . .

"Prolonged incarceration awaiting competency evaluation or restoration undermines [the state's primary government interest of bringing the accused to trial] because '[w]hile they are detained in jail, incapacitated criminal defendants do not receive care giving them a realistic opportunity of becoming competent to stand trial.' Mink, 322 F.3d at 1121. In other words, because jails are inherently punitive and not therapeutic institutions, the mental health of detainees further erodes with each additional day of wait time, especially when those detainees are held in solitary confinement. Because delays lengthen incarceration, worsening the mental health conditions of detainees, and because 'continued commitment must be justified by progress toward [the] goal' of restoration of competency so that the detainee is able to stand trial, Jackson v. Indiana, 406 U.S. 715, [*13]738 . . . (1972), there is no legitimate interest in delays." (Trueblood, 73 F Supp 3d at 1314-1316 [some citations omitted]; see also Disability Law Ctr. v Utah, 180 F Supp 3d 998, 1005-1012 [D Utah 2016]; Powell v Maryland Dept. of Health, 455 Md 520, 552-555, 168 A3d 857, 876-878 [2017]; Lakey v Taylor, 435 SW3d 309, 317-321 [Tex Ct App 2014].)

Even confronted with Trueblood, respondent chose not to amplify her conclusory assertion that the petition does not sufficiently{**78 Misc 3d at 1071} allege a 14th Amendment substantive due process violation.^[FN4] Absent such a showing, respondent is foreclosed by United States v Georgia and Bolmer v Oliveira from asserting that petitioner is required to plead and prove "discriminatory animus" per Garcia in order to recover damages on his ADA title II claim.

However, petitioner acknowledges that to recover damages on his ADA title II claim, he must establish that Commissioner Neifeld acted with at least "deliberate indifference" to the strong likelihood that a violation of federally protected rights will result. (See Biondo v Kaledia Health, 935 F3d 68, 73 [2d Cir 2019], supra; Frank v Sachem Sch. Dist., 633 Fed Appx 14, 15 [2d Cir 2016], supra; Loeffler v Staten Is. Univ. Hosp., 582 F3d 268, 276 [2d Cir 2009], supra; Feltenstein v City of New Rochelle, 254 F Supp 3d 647, 657 [SD NY 2017].) It is therefore incumbent on the court to assess petitioner's claim under that standard.

F. The petition fails to state a claim for ADA title II monetary damages under the "deliberate indifference" standard.

Although petitioner, to recover monetary damages, must establish that Commissioner Neifeld acted (or failed to act) with deliberate indifference to a strong likelihood that her conduct would result in a violation of the ADA title II integration mandate, the petition contains no allegation whatsoever of respondent's intent. Petitioner contends that the Commissioner's "deliberate indifference" is inferable from her knowledge that she was subject to a court order to remove Matthew from jail and provide adequate care and services, but left him in jail without adequate services. (See petitioner's mem at 10.)

Per Biondo and Loeffler, the standard for "deliberate indifference" is such that "damages are not recoverable unless an official who at a minimum [1] has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf [2] has actual knowledge of discrimination in the recipient's programs and [3] fails adequately to respond." (Biondo, 935 F3d at 73 [emphasis added]; Loeffler, 582 F3d at 276.) Commissioner Neifeld had authority to address{**78 Misc 3d at 1072} discrimination and institute corrective measures in OPWDD's programs. However, contrary to petitioner's suggestion, neither her actual knowledge of discrimination in OPWDD's programs nor the inadequacy of her response to Matthew's situation is reasonably inferable from the allegations of the petition.

To establish a violation of the "integration mandate," petitioner is required to [*14]demonstrate inter alia that Matthew's placement in an OPWDD facility "[could] be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities." (See Frank v Sachem Sch. Dist., 633 Fed Appx at 15, citing Olmstead v L. C., 527 US at 587.) Moreover, petitioner faces "a heavy burden of proof in showing that the state's response was so patently inadequate to the task as to amount to deliberate indifference." (See Reynolds v Giuliani, 506 F3d 183, 192-193 [2d Cir 2007].) "[Deliberate] indifference must reflect a 'deliberate choice among various alternatives' and may not be inferred from mere 'negligence or bureaucratic inaction.' " (Biondo v Kaledia Health, 935 F3d at 74, quoting Reynolds v Giuliani.)

The meaning of the "deliberate indifference" standard is elucidated in the Fourth Circuit's recent decision in Koon v North Carolina (50 F4th 398 [4th Cir 2022]). Although it does not concern the integration mandate per se, Koon addresses "deliberate indifference" in the context of an ADA claim premised on an alleged failure to make reasonable accommodations and is therefore apropos.

Reducing the "deliberate indifference" standard to its essence, the court observed that it "starts with determining whether there was—objectively speaking—an ongoing or likely violation of some federal right, and then moves on to determining whether a defendant had the appropriate mental state—subjectively speaking—toward that federal-rights violation." (See id. at 404.) Concerning the right to reasonable accommodation under the ADA (the objective component), the court wrote:

"Congress has told us that disability 'discrimination' includes not just 'outright intentional exclusion' but also lesser injustices like 'failure to make modifications to existing facilities and practices' . . . § 12101(a)(5). . . . But Congress has also told us that public entities are responsible only for 'reasonable modifications.' § 12131(2). . . . Public accommodations must be 'readily accessible' and 'usable' {**78 Misc 3d at 1073}without requiring 'fundamental alterations' or causing 'undue financial and administrative burdens.' 28 C.F.R. § 35.150(a). From all this, we can see that disability discrimination includes the failure to provide reasonable modifications that would make accommodations accessible to the disabled without causing an undue burden to the program." (Id. at 405-406.)

Concerning "deliberate indifference" (the subjective component), the court wrote:

"Simple failure to comply with the law is not deliberate indifference. It is not enough simply to point to what could or should have been done. That is the language of negligence. Deliberate indifference requires a 'deliberate or conscious choice' to ignore something. That is more like criminal-law recklessness than mere negligence. An official must know of the dangers to federal rights and nonetheless disregard them. The official must know of the facts from which a federal-rights violation could be inferred and then actually draw the damning inference. Deliberate indifference is a high bar.

"With that said, knowledge can be shown by circumstantial evidence. When a risk was so 'obvious' that an official must have had knowledge, that can get a deliberate-indifference question to a jury. But it must be truly obvious; we should avoid transforming deliberate indifference back into negligence by finding that the reasonably prudent person would have surely known of the issues. We look to whether it was so obvious they must have known, instead of whether it was so obvious they should have [*15]known. The Supreme Court has suggested that circumstantial evidence might make out a fact question on deliberate indifference where the rights violations were 'longstanding, pervasive, well-documented, or expressly noted by prison officials in the past . . . ' Farmer, 511 U.S. at 842 . . . . Again, it's a high bar." (Id. at 406-407 [some citations omitted].)

[3] In this case, the petition fails to allege that Matthew's earlier placement in an OPWDD facility could have been reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities, even though that is an element of his ADA title II{**78 Misc 3d at 1074} integration mandate claim. The petition also contains no allegation of Commissioner Neifeld's "deliberate indifference" to Matthew's rights under the ADA, even though that is an element of his claim for monetary damages against the State under title II of the ADA. Neither the Commissioner's actual knowledge of discrimination nor her deliberate indifference to Matthew's ADA rights may be inferred from her knowledge of and failure to comply with the Justice Court's order, as simple failure to comply with the law is not deliberate indifference. There is here no allegation of "longstanding, pervasive, well-documented, or expressly noted" ADA violations such as might circumstantially evidence the obviousness of the risk of an ADA violation and deliberate indifference thereto. Merely alleging that OPWDD had a large budget and an unspecified number of "open beds" in its facilities is insufficient; petitioner does not assert otherwise.

In sum, given the petitioner's heavy burden in pleading a claim for monetary damages against the State of New York under the ADA, the court has little difficulty concluding that the petition does not state a valid claim to recover damages under title II of the ADA because it fails to allege, either explicitly or by implication, the respondent Commissioner's deliberate indifference to Matthew's rights under the ADA title II integration mandate. (See Frank v Sachem Sch. Dist. at 15 [affirming dismissal of "integration mandate" claim for failure to allege deliberate indifference].) It is therefore ordered that respondent's motion to dismiss the petition is granted without prejudice, and with leave to file within 30 days of the date of this order an amended complaint, limited in accordance with this decision, repleading a claim for monetary damages under title II of the Americans with Disabilities Act.

"In U.S. v Georgia, 546 U.S. 151, 159 (2006), the Supreme Court held that Title II of the ADA abrogates the states' immunity when the Title II violation [']actually violates the 14th Amendment' (emphasis in orig.). The petition does not sufficiently allege a 14th Amendment violation and therefore the Title II claim does not fall within U.S. v Georgia's exception, but the argument is not addressed at length because the ADA claim fails to state a cause of action." (Mem at 5 n 1.)

In consequence of respondent's decision not to address the alleged 14th Amendment violation, the parties have not fully briefed the questions (a) whether respondent violated petitioner's 14th Amendment rights or (b) whether New York's sovereign immunity bars petitioner's ADA claim for monetary damages; neither have they applied United States v Georgia's three-pronged approach to addressing states' sovereign immunity (see United States v Georgia, 546 US at 159) to the facts herein alleged. At this juncture, then, the court will advert to those matters only so far as necessary to resolve the questions specifically presented by the parties.

Footnote 3: Under the circumstances, the court expresses no opinion on whether the allegations of the petition regarding OPWDD's delay in transferring Matthew from the Putnam County Correctional Facility to one of its own facilities for care and treatment actually implicate the ADA title II "integration mandate," as that issue was not the focus of respondent's motion to dismiss.

Footnote 4: Once again, the court expresses no opinion on whether the allegations of the petition regarding OPWDD's delay in transferring Matthew from the Putnam County Correctional Facility to one of its own facilities for care and treatment actually implicate Matthew's substantive due process rights under the 14th Amendment, as that issue was not the focus of respondent's motion to dismiss.