motion to dismiss we make no attempt to do so.
While the regulatory regime for adult care facilities is known, the present record does not fully detail the state's relationship with these defendants. Such information might be important in deciding whether defendants should be treated as state actors. Given our uncertainty regarding the state's relationship with defendants and the historic role of the state in adult home care, we cannot say with any confidence based solely on the pleadings, whether defendants were acting under color of state law. We thus decline to dismiss plaintiffs' § 1983 cause of action.
3. 29 U.S.C. § 794: The Rehabilitation Act Claim
The Rehabilitation Act states that "no otherwise qualified individual with handicaps . . . shall, persons . . . "solely by reason of her or his handicap, 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)(Supp. 1992). Defendants argue: (1) that the Manor receives no federal assistance and is therefore not subject to § 794; and (2) the disabled residents received no housing or medical benefits of less quality than non-disabled residents. In short, they contend that plaintiffs claims are aimed at the adequacy of the housing and treatment of all the Manor's residents; they do not suggest that non-disabled residents received better treatment than the disabled resident. Therefore, defendants claim that § 794 is an inappropriate vehicle for their claims and the remedies they seek.
Plaintiffs argue that they have expressly alleged that defendants receive federal financial assistance to operate their adult home. In paragraph 106 of the complaint, plaintiffs state that "the enterprise receives most if not all of its financial resources, from the state and federal government." Further, the complaint alleges in paragraphs 136-139 discrimination based on plaintiffs' disabilities.
Because both factual questions are obviously in dispute, we cannot dismiss plaintiff's Rehabilitation Act claim at this point. If it turns out that no federal funds are used by defendants, this claim may be resolved on summary judgment. However, we do not concern ourselves with this matter at this point.
4. § 1985(3) Conspiracy Claim
In order to state a claim under 28 U.S.C. § 1985(3), plaintiffs must allege that defendants engaged in "1) a conspiracy; 2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." Gray v. Town of Darien, 927 F.2d 69, 73 (2d Cir. 1991), cert. denied, 116 L. Ed. 2d 133, 112 S. Ct. 170 (1991).
Defendants argue that the complaint fails to state a claim under § 1985(3) because "it is rather unlikely" that plaintiffs can represent a class of people protected by § 1985. Furthermore, defendants argue that plaintiffs have not alleged that the conspiracy was carried out with discriminatory animus. Plaintiffs argue that they, and the other disabled persons residing at the home, constitute a class of persons protected by § 1985.
Defendants have cited no case law holding that the disabled cannot constitute a class under § 1985. Considering the developing nature of the law under the Americans with Disabilities Act, we are not convinced that persons with disabilities in the nature of those of the plaintiffs and other residents of the home cannot constitute a class of persons protected by § 1985.
Although paragraph 132 of the complaint alleges a conspiracy to deprive plaintiffs and other disabled residents of the home of their rights to equal protection, plaintiffs are merely parroting the language of the statute. We earlier failed to find sufficient allegations of conspiracy under RICO and we again fail to find sufficient factual allegations of conspiracy under § 1985. Without alleging any facts to support the alleged conspiracy by defendants to deprive plaintiffs of their civil rights, plaintiffs' complaint is deficient. Because of this deficiency in the complaint, plaintiffs' § 1985 claim fails and we do not address whether discriminatory animus is sufficiently alleged. Therefore, we also dismiss plaintiffs' § 1985 claim.
Based on the foregoing reasons, we grant defendants' motion to dismiss in part and deny in part. In summary, we dismiss plaintiffs' mail and wire fraud claims, and consequently all the RICO claims, the Rehabilitation Act claim, and the conspiracy claim under 42 U.S.C. § 1985. We decline to dismiss plaintiffs' civil rights claim under 42 U.S.C. § 1983.
However, leave to replead is liberally granted, particularly when a plaintiff brings suit alleging violations of his civil rights under § 1983. Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119 (2d Cir. 1991). In keeping with this tradition, we grant plaintiffs leave to amend their complaint, directing them to replead so that defendants are afforded a fair understanding of the substance of their complaint and whether there is a legal basis for recovery. Id. at 123. Although plaintiffs' entire RICO claim falls because of a failure to meet the minimum requirement of two predicate acts, plaintiffs should heed our additional comments regarding the deficiency of the rest of its RICO claim.
Finally, since we are declining to dismiss some of plaintiffs' federal causes of action we maintain jurisdiction over the various pendent state claims for negligence, intentional infliction of emotional distress, breach of contract, and violations of New York Real Property Law § 235-b on hazardous conditions. We note, in this respect, that this is truly a state court action (indeed, if the allegations are true, the state should be a plaintiff) which is struggling to be a federal case. In conclusion, defendants' motion to dismiss is granted in part and dismissed in part. Plaintiffs are given leave to amend their complaint within thirty days of this decision in order to comply with the pleading requirements as discussed above.
Dated: White Plains, New York
December 11, 1992
GERARD L. GOETTEL