The opinion of the court was delivered by: Lowe, District Judge.
Defendants have moved, pursuant to Fed.R.Civ.P. 12(b)(1) and
(6), to dismiss the complaint on the grounds that A) this
Court does not have subject matter jurisdiction over
defendants due to their Eleventh Amendment immunity to such
claims, and B) the complaint fails to state a claim upon which
relief can be granted. Defendants also argue that plaintiffs
claims are barred by the statute of limitations and the
doctrine of res judicata.
The motion was referred to Magistrate Leonard A. Bernikow
for a recommendation as to the proper disposition of
defendants' motion. In his thorough Report and Recommendation
("R & R"), the Magistrate recommended dismissal of four of the
five claims on the ground that the Eleventh Amendment bars the
type of relief plaintiff could properly seek against the
state. The Magistrate further held that monetary damages were
available based upon the state's alleged violation of § 504.
For the reasons discussed below, this Court agrees with the
Magistrate's R & R insofar as it holds that plaintiff's claims
for retrospective monetary relief that are actually claims
against the state are barred by the Eleventh Amendment and that
plaintiff's claim based upon § 504 may partially stand. We
disagree, however, with the Magistrate's findings that
plaintiff's claims against defendants Scott and Switzer, in
their individual capacities, are actually claims against the
state*fn1 and that plaintiff's claims for prospective relief
are moot. Yet, plaintiff's non-moot claims for injunctive and
declaratory relief are barred by the doctrine of res judicata.
Lastly, plaintiff has stated a § 1983 claim against the
individual defendants in their personal capacities with respect
to his allegations that the cap regulations violate the
individualization requirement of Title I and the Equal
Protection Clause of the Fourteenth Amendment.
Plaintiff McGuire is totally disabled, having suffered from
paraplegia since the age of seven. He relies on a wheelchair
for mobility. Continuously since 1978, plaintiff has been a
client of defendant Office of Vocational Rehabilitation
("OVR").
OVR operates rehabilitation programs established under the
federal Vocational Rehabilitation Act of 1973, as amended,
29 U.S.C. § 701 et seq. ("the Act"). The purpose of the Act is the
development and implementation of programs of vocational
rehabilitation for disabled individuals so that they can obtain
gainful employment. Substantial amounts of federal funds are
made available to states for provision of rehabilitation
services upon submission of appropriate plans pursuant to
29 U.S.C. § 721. New York State has filed such a plan designating
OVR as the agency responsible for vocational rehabilitation.
The Act requires states receiving funding under the Act to
develop an "individualized written rehabilitation program"
("IWRP") for each person they are rehabilitating.
29 U.S.C. § 721(a)(9), 722. The IWRP is to be tailored to each client's
individual needs and potential with emphasis placed upon the
determination and achievement of a vocational goal for each
individual.
Plaintiff initially brought a pro se Article 78 proceeding,
C.P.L.R. §§ 7801 et seq., in New York State Supreme Court,
Albany County, seeking review of an OVR administrative
determination that had upheld the application of the "cap"
regulations to him. The court dismissed the action on the
grounds that the petition was not served on the Commissioner of
Education or on the Attorney General as required by C.P.L.R. §§
312 and 7804(c) and that the action was not brought within the
four month period of limitations applicable to Article 78
proceedings under C.P.L.R. § 217.
Subsequently, plaintiff commenced the present action based
on his belief that the caps undermine the individualization of
service to rehabilitation clients that he alleges is required
by federal law. Complaint ¶ 9. He seeks relief through five
causes of action. First, plaintiff contends pursuant to § 1983
that the cap regulations deny him the equal protection of the
laws as guaranteed by the Fourteenth Amendment by undermining
the individualization required under federal law and by
treating him differently from other, similarly situated
persons. Plaintiff also alleges that OVR denied him his
Constitutionally protected rights to due process by adopting
cap regulations affecting his IWRP without giving him adequate
opportunity to be heard.
Plaintiff also relies on § 1983 in his second cause of action
which maintains that OVR's application of the cap regulations
to him violates his statutory rights under Title I. His third
cause of action is based solely on Title I under the implied
right of action doctrine. Plaintiff's fourth case of action,
brought under 28 U.S.C. § 1337, asserts that the application of
the challenged regulations violates an act of Congress
regulating commerce. Lastly, in the fifth cause of action,
plaintiff alleges that OVR discriminates against him due to his
disability, in violation of § 504 of the Act, 29 U.S.C. § 794.
Defendants have moved, pursuant to Fed.R.Civ.P. 12(b)(1) and
(6), to dismiss the complaint on four grounds. First,
defendants allege that this Court does not have subject matter
jurisdiction over defendants due to their Eleventh Amendment
immunity to such claims. Second, defendants argue the
complaint fails to state a claim upon which relief can be
granted. Third, defendants contend that plaintiffs claims are
barred by the statute of limitations. Finally, defendants
maintain that the claims made have already been considered and
rejected and therefore the doctrine of res judicata requires
that they be dismissed.
In his R & R, the Magistrate recommended dismissal of all
the counts except plaintiffs fifth cause of action based upon
§ 504 of the Act. The Magistrate found that none of the claims
are barred by the three-year statute of limitations that
applies and that plaintiff's fifth cause of action for monetary
relief is not barred by the earlier Article 78 proceeding.
Next, the Magistrate determined that the Eleventh Amendment
bars four of the five claims since the only aspects of those
claims that were not moot sought retroactive monetary relief
from the state and the state neither implicitly nor expressly
waived its immunity with regard to those claims.
The Magistrate did find, however, that the state's sovereign
immunity to suit was eliminated by Congress's amendment of
§ 504 of the Act, the statute underlying plaintiff's fifth
claim. Finding that the alleged violation of § 504 at issue
occurred in part after the amendment, the Magistrate held that
monetary damages were available based upon the state's
differing treatment
of the visually-impaired but not based upon OVR's differing
treatment of its clients.
Plaintiff raises three objections to the Magistrate's R & R.
First, he argues that there is no Eleventh Amendment bar to
his first four claims because a) federal reimbursement removes
the state's Eleventh Amendment immunity; b) the state
implicitly waived its immunity privilege by accepting the
federal guidelines for handicapped assistance; and c) the
state officials are being sued in their individual capacities.
Second, plaintiff claims that even if his injunctive claims
are moot with regard to law school, he has a continuing
relationship with OVR for which injunctive relief is
appropriate and, in any event, this Court should use its
discretionary powers to rule on any moot claims since the
issue of discrimination in a case such as this is capable of
repetition and will always evade review. Third, plaintiff
argues that his § 504 action states a claim with respect to his
allegation that OVR discriminated against him vis-a-vis other
OVR clients.
Defendants object to the Magistrate's recommendation that
plaintiff has stated an adequate claim with respect to his
contention that he deserves to receive the amount of
reimbursement for tuition and maintenance expenses that is
given to eligible blind persons. Defendants maintain that
Congress intended to treat the visually-impaired differently
than other disabled individuals. In addition, defendants
object to the Magistrate's R & R on the ground that the § 504
action should not proceed because the amendment that eliminated
the state's Eleventh Amendment immunity did not cover the
alleged violation at issue. In other words, defendants argue
that if any violation occurred it did not occur "in part" after
the passage of the amendment. Finally defendants claim that a
one-year statute of limitation should apply and not the
three-year limit recommended by the Magistrate.
At the outset, it should be noted that on objection to a
Magistrate's ruling, a District Court is to conduct "a de novo
determination of the facts and legal conclusions to be drawn
therefrom." Campbell v. U.S. District Court, 501 F.2d 196, 206
(9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42
L.Ed.2d 119 (1974); see generally, 12 Wright, Miller and
Elliott, Federal Practice and Procedure, § 3076.8 (1986 supp.).
The Magistrate's ruling that plaintiff's § 1983 claims are
not barred by the statute of limitations is correct. As the
Magistrate determined, the appropriate statute of limitations
is three years, that being the statute of limitations for the
New York general personal injury statute, New York Civil
Practice Law and Rules ("C.P.L.R.") § 214(5). Okure v. Owens,
816 F.2d 45, 49 (2d Cir. 1987). Defendants object to this
conclusion on the grounds that Okure v. Owens, which held that
the State's 3-year residual statute of limitations for personal
injury claims not embraced by specific statutes of limitations
was applicable to § 1983 actions, was decided erroneously and
had been appealed to the Supreme Court. Since that time, the
Supreme Court in an opinion written by Justice Marshall has
affirmed the decision in Okure v. Owens holding that in all
instances where state law provides multiple statutes of
limitations for personal injury actions — as is the case in
New York, see C.P.L.R. § 214(5) (three years) and C.P.L.R. §
215(3) (one year for intentional torts) — the State's general
or residual personal injury statute of limitations should apply
to § 1983 claims. Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573,
102 L.Ed.2d 594 (1989). As a result, there can now be no
dispute that New York state law provides a three year statute
of limitations for § 1983 actions.*fn2
Defendants also argue, however, that the cause of action
arose prior to January 28, 1983 because plaintiff was advised
of the caps in January 1983*fn3 and therefore the action is
time-barred even under the three year statute of limitations
since the action was not filed until January 28, 1986. Yet,
plaintiff did not find out until June 15, 1983 that the
January notice he received was not, in OVR's view, erroneous.
As a result, this Court concurs with the Magistrate's
conclusion that "plaintiff's cause of action more definitely
arose on June 15, 1983" when he received clear notice of the
agency action that gave rise to his claims.*fn4 R & R at 5,
n. 1. Plaintiff's § 1983 claims are therefore not time-barred.
Eleventh Amendment Immunity
The Magistrate found that plaintiffs first four claims were
barred by the Eleventh Amendment. Looking only at plaintiff's
claims for retroactive monetary relief — since the Magistrate
found that plaintiff's demand for prospective relief was mooted
by his graduation from law school — the Magistrate concluded
that the state had neither implicitly nor expressly waived its
immunity with regard to those four claims. The Magistrate did
find however that defendants' sovereign immunity to suit with
regard to plaintiff's fifth claim was eliminated when Congress
amended § 504 of the Act. Both plaintiff and defendants raise
numerous objections to these findings. Supra, pp. 103-104. This
Court disagrees with the Magistrate's holding in two respects.
First, we find that plaintiff's claims against defendants
Switzer and Scott in their individual capacities do not
constitute a suit against the state itself and therefore are
not barred by the Eleventh Amendment. Second, we hold that
plaintiff's claims for prospective relief are not made moot by
his graduation from law school.
Under the Eleventh Amendment, a private person may not sue
a state in a federal court without its consent, whether or not
the plaintiff is a citizen of that state. Edelman v. Jordan,
415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662
(1974) (citations omitted); Minotti v. Lensink, 798 F.2d 607
(2d Cir. 1986). Where state officials are sued in their
official capacities for retroactive money damages by private
parties in a federal court, suit is still barred by the
Eleventh Amendment because the liability is one which must be
paid from public funds in the state treasury. Edelman v.
Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1355. This ...