C. Irreparable Harm
A showing of probable irreparable harm is "the single most important prerequisite for the issuance of a preliminary injunction." Reuters Ltd. v. United Press Int'l, Inc., 903 F.2d 904, 907 (2d Cir. 1990) (citations omitted). Plaintiffs must demonstrate that such injury is "imminent, not remote or speculative," Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989), and that the alleged injury cannot be fully remedied by monetary damages. See id ; Loveridge v. Pendleton Woolen Mills, Inc., 788 F.2d 914, 917-18 (2d Cir. 1986). The law in this Circuit requires a strong showing of irreparable injury where mandatory injunctive relief is sought, Doe, 666 F.2d at 773; Pazer v. N.Y. State Board of Law Examiners, 849 F. Supp. 284, 287 (S.D.N.Y. 1994), and a sufficient showing in any case. Reuters, 903 F.2d at 907.
Defendant argues that plaintiffs have failed to demonstrate that they will suffer irreparable harm if the instant motion is not granted. We agree. The record supports defendant's contention that it is not closing CERC so much as effecting the transfer of its services to Morrisania. Morrisania, in turn, has represented its intentions to assume CERC's responsibilities in full; i.e. to take over CERC's clients, to provide them with diagnostic and evaluative services and, eventually, to offer those clients in need rehabilitative services.
Plaintiffs have not shown how the transfer of services to Morrisania and Lincoln, in itself, will irreparably harm them. It is evident that plaintiffs are dubious of Morrisania's capacity and HHC's good faith, however, the court is not. Morrisania has a commendable record and years of experience providing health care services to the disabled. Moreover, HHC and Morrisania have made considerable efforts to smooth the transition, such as hiring CERC's former employees and offering ambulette service to the children who need it. Their actions demonstrate commitment to CERC's former clients, not a desire to abandon them. We also find no sign whatsoever of discriminatory intent toward the disabled clients of CERC. Given the layoffs at Lincoln and the termination of two other programs unrelated to the disabled, it seems evident that the budget cuts in health care cause inconvenience across the board, and not merely to plaintiffs. Thus plaintiffs' prediction, that Morrisania's performance for CERC's former clients will be ineffectual, is not shared by the court. In any event, such conjecture affords no basis for injunctive relief.
Plaintiffs also argue that the change in location, itself, is irreparable harm. Although plaintiffs have made much of the twenty block distance between Morrisania and Lincoln, a one mile difference in travel simply does not rise to the level of harm necessary to sustain a preliminary injunction, particularly a mandatory one.
See id. This is especially so in light of the ambulette service that Morrisania is willing to provide to any of CERC's former clients who want it.
Finally, plaintiffs suggest that the mere allegation of a civil rights violation is sufficient, on its own, to establish irreparable injury. It is true that there is a presumption of irreparable injury that flows from a violation of constitutional rights and the mere allegation of such a violation will trigger a finding of irreparable harm. Jolly, 76 F.3d 468, 1996 U.S. App. LEXIS 1757, *42, 1996 WL 49162, at *13; citing Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992); and Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984). However, this rule is limited to constitutional rights; that is, that the possibility alone of a deprivation of rights is sufficient to constitute irreparable harm due to the fundamental nature of the right involved. See Jolly, 1996 U.S. App. LEXIS 1757, *42, 1996 WL 49162, at *13 (eighth amendment); Covino, 967 F.2d at 77 (fourth amendment); Mitchell, 748 F.2d at 806 (eighth amendment); Ambrose v. Malcolm, 414 F. Supp. 485, 493 (S.D.N.Y. 1976) (eighth amendment); and Wright & Miller, Federal Practice and Procedure, Sec. 2948 at 440 ("When an alleged deprivation of a constitutional right is involved, most courts hold that no further showing of irreparable injury is necessary") (emphasis added).
Here, plaintiffs' claims are statutory, not constitutional. Although this distinction may seem academic, no case law has been found to support the idea that merely alleging violations of the ADA and Rehab Act, without more, establishes irreparable injury. To the contrary, injunctive relief has been denied in this Circuit because irreparable injury was absent in claims arising under the ADA. See, e.g., Pazer, 849 F. Supp. at 287 (plaintiff suing pursuant to the ADA made no showing of irreparable injury sufficient to entitle him to mandatory injunctive relief). Accordingly, we find that plaintiffs have not made a strong showing of irreparable harm or, indeed, even a sufficient showing.
D. Substantial Likelihood of Success on the Merits
1. Rehab Act Claim
The Rehabilitation Act provides that "no otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, or be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. 794. This includes instrumentalities of local governments. Id. at 794(1)(A).
To prevail on a Rehab Act claim, plaintiffs must establish that: (1) they are "handicapped persons" under the Act; (2) they are "otherwise qualified" for the benefit that has been denied; (3) they are being denied benefits solely by reason of their disabilities; and (4) the entity denying plaintiffs benefits receives federal financial assistance. Flight v. Gloeckler, et al., 68 F.3d 61, 63, (2d Cir. 1995) (citations omitted); Rothschild v. Grottenthaler, 907 F.2d 286, 289-90 (2d Cir. 1990); Civic Assoc. of the Deaf v. Giuliani, et al., 915 F. Supp. 622, 1996 U.S. Dist. LEXIS 1498, at *47-48 (S.D.N.Y. February 9, 1996).
In Alexander v. Choate, the Supreme Court defined the limits of the Rehab Act. 469 U.S. 287 (1985). Plaintiffs, who were disabled within the meaning of the Act, brought a class action to challenge Tennessee's across-the-board reduction in the number of annual days of in-patient hospital care covered by Medicaid. Plaintiffs claimed that this reduction discriminated against the disabled, since the cut in health care services would affect them disproportionately. The Supreme Court reversed the United States Court of Appeals for the Sixth Circuit, which had held that the plaintiffs had a cognizable claim under the Rehab Act. The Court emphasized that the Rehab Act protects handicapped persons' rights to "meaningful and equal access" to health care benefits and then explicitly stated that "the State is not required to assure the handicapped 'adequate health care' by providing them with more coverage than the non-handicapped." Id. at 306; 309.
It is therefore clear that the Rehab Act "mandates only that services provided non-handicapped individuals not be denied [to a disabled person] because he is handicapped," Flight, 68 F.3d at 63-64 (affirming dismissal of plaintiff's Rehab Act claim because the benefit plaintiff alleged he had been denied was only available to handicapped individuals); citing P.C. v. McLaughlin, 913 F.2d 1033, 1041 (2d Cir. 1990). CERC's specialized services were not available to the non-disabled at all: they were specifically and exclusively created for the benefit of the developmentally disabled. Plaintiffs have identified no CERC-related service or benefit available to the non-disabled that is being denied to them. Nor have they identified any general health service that is being provided to the non-disabled that is being denied to them. Thus it is extremely unlikely that plaintiffs could prevail on their Rehab Act claim even if HHC had terminated, rather than merely relocated, CERC's services. Furthermore, plaintiffs have not shown that they were denied benefits "solely by reason of [their disabilities]" within the meaning of section 504. Two other programs (not for the disabled) were terminated as well. Yet it was the CERC program that was salvaged, albeit in another location and form. Accordingly, plaintiffs have not shown a substantial likelihood of success on their Rehab Act claim.
2. ADA Claim
The purpose of the ADA is to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities."
42 U.S.C. Sec. 12101. In passing the ADA in 1990, Congress determined that forty-three million Americans have at least one disability, that they are a discrete and insular minority, and that they have been subjected to purposeful unequal treatment and relegated to a status of political powerlessness "based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society." 42 U.S.C. 12101(a). The ADA must be broadly construed to effectuate its remedial purpose. Tcherepnin v. Knight, 389 U.S. 332, 335, 19 L. Ed. 2d 564, 88 S. Ct. 548 (1967); Civic Assoc. of the Deaf, 915 F. Supp. 622, 1996 U.S. Dist. LEXIS 1498, at *33-34.
Title II of the ADA prohibits discrimination against the disabled in public services. Section 12132 provides, in relevant part: "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 ..." 42 U.S.C. sec. 12132. The legislative history of Title II clarifies Congress's intent to extend the Rehab Act's proscription to all state and local government programs and services irrespective of funding. See H. R. Rep. No. 101-485(II), 101st Cong., 2d Sess. 84 (1990). The regulations implementing Title II "confirm the uniformity of interpretation between the ADA and the Rehab Act." 28 C.F.R. Sec. 35.103.
Thus, the test to determine whether Title II has been violated is essentially the same as is applied to the Rehab Act and case law interpreting the Rehab Act is relevant to claims arising under the ADA. To establish a violation of Title II, plaintiff must show that: (1) he or she is a "qualified individual with a disability," (2) he or she is being excluded from participation in or being denied the benefits of some service, program or activity by reason of his or her disability, and (3) the entity which provides the service, program or activity is a public entity. See Civic Assoc. of the Deaf, 915 F. Supp. 622, 1996 U.S. Dist. LEXIS 1498, at *33-34; citing Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995). The services which plaintiffs allege they are being denied in the instant case are those formerly offered by CERC: diagnostic and evaluative services for all clients and rehabilitative services for about 10% of clients.
As previously discussed, the disabled are not entitled to more public services than the abled receive, even if the disabled need them. See, e.g., Alexander, 469 U.S. at 301-02. Given that plaintiffs have not shown they are being denied regular general health care or, indeed, denied any benefit or service provided to the abled, we cannot conclude that plaintiffs have a substantial likelihood of success on the merits. Further, plaintiffs have not even established that they are being denied the special services they previously received from CERC. Instead, these same services -- diagnostic, evaluative, and rehabilitative -- will be provided to CERC's former clients by, respectively, Morrisania and Lincoln. A relocation of services is simply not a denial or exclusion from services under the ADA.
Plaintiffs' attempt to liken this case to Civic Assoc. of the Deaf is unavailing. In Civic Assoc. of the Deaf, plaintiffs brought a class action pursuant to the ADA to challenge the City's plan to remove street fire alarm boxes. 915 F. Supp. 622, 1996 U.S. Dist. LEXIS 1498. Under the City's proposal, alarm boxes were to be removed and replaced with notification alternatives wholly inaccessible to the deaf. The court, stressing that the City had offered no alternative to accommodate New York's deaf community, concluded that the ADA had been violated because the non-disabled still had the benefit of reporting fires from the street, whereas the deaf, by reason of their disability, could not. Id. at *38-39; 42. In contrast, plaintiffs here have not defined a service available to the non-disabled that they are being denied by reason of their disability. Accordingly, we find plaintiffs have no substantial likelihood of success on their ADA claim.
Plaintiffs have not shown they will suffer irreparable injury in the absence of an injunction compelling HHC to reopen CERC pending trial on the merits of their claims. Further, they have not made a substantial or clear showing of a likelihood of success on either their ADA or Rehab Act claims. Plaintiffs' motion for preliminary injunctive relief is, therefore, denied. In addition, plaintiffs' motion for class certification is denied as unnecessary.
New York, New York
March 21, 1996
CONSTANCE BAKER MOTLEY