DECISION AND ORDER
Plaintiff brings this action pursuant to 42 U.S.C. § 1983, alleging that his rights under the Rehabilitation Act of 1973 were violated by defendants Switzer and Gloeckler. At the time of the alleged violation, defendant Switzer, who is being sued in his individual capacity, was serving as Deputy Commissioner of the New York State Office of Vocational Rehabilitation. Defendant Gloeckler, who is being sued in both his individual and official capacities, presently serves as defendant Switzer's successor in the position of Deputy Commissioner. Plaintiff seeks compensatory damages as well as declaratory and injunctive relief.
This matter is presently before the Court on remand from the Second Circuit Court of Appeals, where an initial Order dismissing the complaint on the grounds that plaintiff was not entitled to bring this claim under 42 U.S.C. § 1983 was vacated. The original dismissal was based on the Court's finding that Title I of the Rehabilitation Act does not create enforceable rights within the meaning of section 1983. The Second Circuit held that the Act does create such rights and, therefore, plaintiff is entitled to bring his claim under section 1983. Marshall v. Switzer, 10 F.3d 925 (2d Cir. 1993).
The case was remanded for consideration of the remaining grounds for defendants' motion to dismiss. Those grounds consisted of defendants' assertions that plaintiff failed to state a claim for which relief may be granted, and that they are entitled to qualified immunity as a matter of law. By Order dated January 3, 1995, the Court converted the motion into a summary judgment motion on the same grounds.
Thereafter, the parties submitted additional affidavits addressing the issue of qualified immunity as well as the failure to state a claim defense. The Court, having duly considered all of the parties' submissions, will address each ground for summary judgment.
The Rehabilitation Act of 1973 provides a framework within which states devise and implement federally funded and regulated plans to provide handicapped individuals with vocational services in order to enable them to obtain gainful employment to the extent of their capabilities. Substantial amounts of federal funds are made available to states for the providing of such rehabilitation services.
The primary goal of the Rehabilitation Act is to enable states to provide rehabilitation services tailored to each individual client's needs. Pursuant to 29 U.S.C. § 721, in order to receive federal funding under the Act, a state must submit an appropriate rehabilitation services plan to the Commissioner of the Federal Rehabilitation Services Administration. These state plans must include administrative procedures and regulations which govern the provision of services under the Rehabilitation Act. In New York State, the Office of Vocational and Educational Services for Individuals with Disabilities ("VESID") is responsible for developing and implementing a state plan.
Both Title 29 of the U.S. Code and the corresponding state laws and regulations require that VESID prepare an individualized written rehabilitation program ("IWRP") for each of its clients.
An IWRP is intended to identify the vocational goal of the client along with the specific services which must be provided in order for him or her to achieve that goal.
The VESID regulation which is at issue in the case at bar is regulation number 1350.00, which is entitled "Vehicle Modifications and Adaptive Equipment." This regulation deals with client applications for the reimbursement of costs associated with vehicle modifications. In addition to setting forth the procedures that must be followed in requesting such reimbursements, this section also establishes limitations on the amount a client may be reimbursed for vehicle modifications.
The regulation states that VESID will not reimburse a client for the cost of basic automobile "equipment available from [a] dealer through factory installation." Marshall Ans. Aff. Ex. 12, Policy 1350.00, Sec. I.
Plaintiff became a client of VESID in 1984, at which time an initial IWRP was established for him. In his initial IWRP, plaintiff's occupational goal was listed as "business management and/or human services." Soon thereafter, in February 1985, a rehabilitation counselor evaluated plaintiff and concluded that his vehicle would require many modifications in order to enable him to drive independently. These modifications included both factory and non-factory installed options.
Following this evaluation, in August 1986, plaintiff purchased a 1987 Ford van which contained all of the factory-installed modifications that had been prescribed by the rehabilitation counselor in 1985.
In August of 1987, VESID issued an amended IWRP for plaintiff which addressed his need for the prescribed van modifications. This IWRP stated that VESID would reimburse plaintiff for all "essential, justified, and recommended" modifications other than "standard or optional equipment available from the dealer by factory installation. . . . " Marshall Ans. Aff. Ex. 4. VESID's decision not to reimburse plaintiff for the factory-installed options was based on the provisions contained in regulation number 1350.00.
Plaintiff appealed this decision, and two levels of administrative review ensued, with the validity of regulation 1350.00 being upheld at both levels. Id. P 15. Thereafter, an administrative hearing was held at which time the hearing officer found VESID's decision to not reimburse Marshal for factory-installed modifications "arbitrary and discriminatory," and recommended that VESID reconsider its policy of not reimbursing clients for such modifications. Id. Ex. 5.
The hearing officer's findings and recommendation were subsequently denied by defendant Switzer in his capacity as Deputy Commissioner of the Office of Vocational Rehabilitation.
In denying the recommendation, Switzer stated that section 1350.00 was "appropriate as stated and applied to [Marshall's] case." Marshall Ans. Aff. Ex. 6. As a result of this decision, the denial of plaintiff's request for reimbursement for the factory-installed modifications was upheld, and plaintiff's VESID case was closed as "successfully rehabilitated." Id.
Following Switzer's final determination, plaintiff filed this action pursuant to 42 U.S.C. § 1983 alleging that VESID's refusal to fully reimburse him for the costs of the factory-installed modifications constituted a deprivation of his rights under the Rehabilitation Act. Plaintiff seeks declaratory and injunctive relief as well as compensatory damages.
In the case at bar, plaintiff seeks a judicial interpretation of the scope of services that the Rehabilitation Act requires state agencies to provide. Because this task "falls squarely within the traditional realm of judicial competence," Marshall, 10 F.3d at 930, the entire action is ripe for disposition at the summary judgment stage. As stated above, both defendant Switzer, in his individual capacity, and defendant Gloeckler, in his individual and official capacities, have moved for summary judgment on two separate grounds.
First, they assert that plaintiff has failed to state a claim upon which relief may be granted. Because this motion is being decided in the summary judgment context, the Court will treat this as a claim that plaintiff failed to establish a prima facie case. And, secondly, defendants assert that they are entitled to qualified immunity to the extent that they are being sued in their individual capacities. The Court will address each of these grounds individually.
Summary Judgment Standard
Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is warranted if, when viewing the evidence in the light most favorable to the non-movant, the court determines that there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 112 S. Ct. 2072, 2077, 119 L. Ed. 2d 265 (1992); Commander Oil v. Advance Food Serv. Equip., 991 F.2d 49, 51 (2d Cir. 1993). The burden of showing that no genuine issue of material fact exists rests on the moving party. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). Where the moving party does not bear the ultimate burden of proof at trial, the summary judgment burden may be satisfied by pointing out the absence of evidence to support the non-movant's claims. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). Once the movant shows the absence of such evidence, the burden of persuasion shifts to the non-movant to show that the record contains sufficient evidence to establish each element of its case. Id., at 322, 106 S. Ct. at 2552
Because a motion for summary judgment requires the court to search the entire record, American Camping Ass'n, Inc. v. Whalen, 554 F. Supp. 396, 399 (S.D.N.Y. 1983), "summary judgment may be rendered in favor of the opposing party even though he has made no formal cross-motion under Rule 56." 10 A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, § 2720, pp. 29-30 (2d ed. 1983); see also Project Release v. Prevost, 722 F.2d 960, 969 (2d Cir. 1983).
The ability to grant summary judgment, sua sponte, allows a court to remain true to the goal of Rule 56 by expediting the disposition of cases. 10 A C. Wright et al., Federal Practice and Procedure, § 2720, at 33. Therefore, the Second Circuit has stated that where "the evidence of the facts bearing on the issues arising out of the complaint is all before the court in affidavit form, it is most desirable that the court cut through mere outworn procedural niceties and make the same decision as would have been made had [the non-movant] made a cross-motion for summary judgment." Local 33, Int'l Hod Carriers Bldg. & Common Laborers' Union of America v. Mason Tenders Dist. Council of Greater New York, 291 F.2d 496, 505 (2d Cir. 1961).
Both parties have submitted numerous affidavits supporting their respective positions on these motions. After examining these affidavits, the Court finds that there are no questions of material fact which would preclude it from disposing of this action at the summary judgment stage. Accordingly, the Court makes the following determinations.
Failure to Establish a Prima Facie Case
In order to properly allege a claim under 42 U.S.C. § 1983, a party must satisfy two essential elements. A party must allege that the conduct complained of was committed by a person acting under color of state law, and that that conduct deprived the party of rights, privileges, or immunities secured by the Constitution or laws of the United States. Fonte v. Board of Managers of Continental Towers Condominium, 848 F.2d 24 (2d Cir. 1988). Additionally, allegations of personal involvement by any defendant "is a prerequisite to an award of damages (against that defendant) under [section] 1983." Mckinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087, 98 S. Ct. 1282, 55 L. Ed. 2d 792 (1978).
In support of his motion for summary judgment, defendant Gloeckler argues that plaintiff has failed to state a claim for relief against him, in his individual capacity, because he was not personally involved in the alleged denial of services. The Second Circuit has recognized various ways in which a defendant can be personally involved in a deprivation of rights within the meaning of section 1983. One of the ways that personal involvement can exist is where "[a] supervisory official, after learning of the [statutory] violation through a report or appeal, . . . fail[s] to remedy the wrong." Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). In the case at bar, plaintiff claims that defendant Gloeckler was personally involved in the wrongful denial of services because he ultimately learned of plaintiff's claim that policy 1350.00 was illegal and he failed to remedy it. Pl. Sec. Opp. Mem. at 10.
While plaintiff makes this contention in his memorandum, his complaint fails to allege any specific acts of personal involvement by Gloeckler. In fact, the only allegation that even mentions defendant Gloeckler summarily states that "defendant Switzer's determination (not to reimburse plaintiff for the van modifications) became a final determination of the OVR and successor agency VESID and, as such, has been relied upon by Defendant Gloeckler." Complaint P 49. There is no explanation, either in the complaint or in plaintiff's memorandum, of what, if anything, Gloeckler did to fail to "remedy the wrong" done to plaintiff.
Plaintiff argues in his memorandum that Gloeckler has had sufficient personal involvement in this matter because he admitted that he has been aware of plaintiff's claim of the illegality of policy 1350.00 since June 1992, and he has allowed it to continue to be applied since that time. Pl. Sec. Opp. Mem. at 10. He bases this argument on Gloeckler's statement that he took "no action with respect to the claims raised in plaintiff's complaint and, until informed of the services of process [in this case], [he] was unaware of the fact that plaintiff contends that VESID's vehicle modification policy is illegal . . . . " Gloeckler Aff. P 3. This statement hardly supports plaintiff's argument that Gloeckler was aware of a wrong towards plaintiff and allowed it to continue.
The record clearly indicates, and plaintiff openly concedes, that Gloeckler did not become aware of plaintiff's contentions that regulation 1350.00 was illegal until after he had been served with process. Thus, Gloeckler's failure to remedy the alleged illegality of regulation 1350.00 occurred, if at all, after this action had already been filed. Accordingly, the Court finds that plaintiff has failed to show that defendant Gloeckler was personally involved in the alleged wrongful conduct, and, therefore, he is entitled to summary judgment as to the claims against him in his individual capacity.
In support of his defense that plaintiff has failed to establish a prima facie case against him in his individual capacity, defendant Switzer asserts that the present action is barred from going forward because it is comprised of claims which plaintiff failed to raise in the administrative process below. The Court, however, finds that plaintiff, at both the administrative stage and in filing this lawsuit, has consistently claimed that VESID's policy 1350.00 violated the Rehabilitation Act. Even if the Court were to find otherwise, "it is well-established that § 1983 generally allows plaintiffs with federal or constitutional claims the right to sue in federal court without first resorting to state judicial remedies, or state administrative remedies." Kraebel v. Dept. of Housing Pres. & Dev., 959 F.2d 395, 404 (2d Cir. 1992), cert. denied, 906 U.S. 917, 121 L. Ed. 2d 245, 113 S. Ct. 326 (1992). Accordingly, defendant Switzer is not entitled to summary judgment on this ground.
Defendant Switzer's Motion for Summary Judgment on the Separate Ground that he is Entitled to Qualified Immunity
Qualified immunity protects state officials from liability for damages where their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would know." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Smith v. Coughlin, 938 F.2d 19 (2d Cir. 1991). Simply stated, qualified immunity is intended to protect "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 106 S. Ct. 1092, 1096, 89 L. Ed. 2d 271 (1986). Accordingly, in order to establish the defense of qualified immunity, an official "must satisfy one of two tests: either that his conduct did not violate 'clearly established' rights of which a reasonable person would have known, or that it was 'objectively reasonable' to believe that his acts did not violate these clearly established rights." Finnegan v. Fountain, 915 F.2d 817 (2d Cir. 1990).
It is well settled that a right may be deemed "clearly established," if it is "sufficiently clear that a reasonable official would understand that what he is doing violates the right." Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). In other words, an action need not be previously held unlawful in order for it to be beyond the reach of qualified immunity. Rather, "in light of pre-existing law the unlawfulness [of the action] must be apparent." Id.
The Second Circuit has delineated three factors that a court may look to in determining whether a particular right was clearly established at the time the defendants acted. These factors include:
(1) whether the right in question was defined with "reasonable specificity"; (2) whether the decisional law of the Supreme Court and the applicable circuit court support the existence of the right in question; and (3) whether under preexisting law a reasonable defendant official would have understood that his or her acts were unlawful.
Jermosen v. Smith, 945 F.2d 547, 550 (2d Cir. 1991), cert. denied 503 U.S. 962, 112 S. Ct. 1565, 118 L. Ed. 2d 211 (1992).
In determining qualified immunity, therefore, the initial inquiry must focus on the right that is deemed to have been violated by the defendants. In the case at bar, this inquiry is made more difficult by the fact that the parties do not agree as to what particular right may have been violated. Plaintiff asserts that the Rehabilitation Act requires the state to provide him with all necessary rehabilitation services, and that such services cannot be denied without taking into account the individual needs of the clients. Accordingly, plaintiff asserts that regulation 1350.00 is illegal because it is a blanket prohibition that denies him his right to receive necessary services. Plaintiff's Supp. Mem. at 17. However, defendants maintain that there is no clearly established legal right which requires "states to provide individuals with disabilities with compensation for factory-available options in vehicles they purchase." Def. Supp. Mem. at 14-15.
"The practical application of [the 'clearly established'] standard depends substantially upon the level of generality at which the relevant legal [right] is to be identified." Alvarado v. Picur, 859 F.2d 448, 452 (7th Cir. 1988). Therefore, the more generalized the right, the more likely that it will be deemed to have been "clearly established." For purposes of this analysis, the Court will assume that the right as proposed by plaintiff, being the more generalized, is the right at issue in this case.
I. Was the "Right" Defined with "Reasonable Specificity?"10
The Rehabilitation Act mandates that state plans "shall provide, at a minimum, for the provision of . . . vocational rehabilitation services." 29 U.S.C. § 721(a)(8). Vocational rehabilitation services are subsequently defined as "any goods or services necessary to render a handicapped individual employable." Id. § 723(a). The Act requires states to provide all of the goods and services specifically described in section 723 of the Act, unless the client can receive similar benefits under any other program.
One of the services which states are required to provide, unless the client can receive similar benefits under another program, is "transportation in connection with the rendering of any vocational rehabilitation service." Id. § 723(a)(10). Additionally, in 1986, the Act was amended to include "Rehabilitation Engineering Services" as an additional benefit available to eligible clients. These services were defined as
the systematic application of technologies, engineering methodologies, or scientific principles to meet the needs of and address the barriers confronted by individuals with handicaps in areas which include education, rehabilitation, employment, transportation, independent living, and recreation.