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October 4, 1995

RICHARD M. SWITZER, Former Deputy Commissioner, Office of Vocational Rehabilitation of: the New York Stated Educational Department, in his individual capacity, and LAWRENCE C. GLOECKLER, Deputy Commissioner, Office of Vocational and Educational Services for Individuals with Disabilities of the New York State Education Department, in his individual and official capacity, Defendants.

The opinion of the court was delivered by: SCULLIN


 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. *fn1" 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. *fn2" 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. *fn3" 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. *fn4" 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. *fn5"

 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. *fn6" 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. *fn7" 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 ...

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