ADA. See Menes v. CUNY Univ. of New York, 92 F. Supp.2d 294,
306 (S.D.N.Y. 2000); see also Sutherland v. New York State
Dep't of Law, 1999 WL 314186, at *7 (S.D.N.Y. May 19, 1999)
("Individual defendants may not be held personally liable for
alleged violations of the ADA. . . .") (citations omitted);
Harrison v. Indosuez, 6 F. Supp.2d 224, 229 (S.D.N.Y. 1998);
Cerrato v. Durham, 941 F. Supp. 388, 395 (S.D.N.Y. 1996); Yaba
v. Cadwalader, Wickersham & Taft, 931 F. Supp. 271, 274
(S.D.N.Y. 1996). In addition, Second Circuit precedent involving
individual liability under Title VII of the Civil Rights Act of
1964 supports the conclusion that an individual may not be held
liable in her or his personal capacity under the ADA. See Tomka
v. Seiler Corp., 66 F.3d 1295, 1321 (2d Cir. 1995) (holding
that individual defendants may not be held liable for violations
under Title VII); See also Cerrato, 941 F. Supp. at 395 ("The
Second Circuit's reasoning in Tomka is equally applicable to
the question of individual liability under the ADA as well.").
Furthermore, Janosek may not be held liable in his official
capacity under the ADA. See Lane v. Maryhaven Ctr. of Hope,
944 F. Supp. 158, 162-63 (E.D.N.Y. 1996) (stating that
individuals, named in their official or representative
capacities as defendants, may not be held liable under the ADA);
Sutherland, 1999 WL 314186, at *7 (citations omitted).
Accordingly, the claims under Title I and Title II of the ADA
against Janosek in both his individual and official capacities
5. As to Section 1983 and OCA
The Second Circuit has stated that the Eleventh Amendment bars
a Section 1983 action against the State. See Dube v. State
Univ. of New York, 900 F.2d 587, 594-95 (2d Cir. 1990) (holding
that the Eleventh Amendment precludes an action under Section
1983 against SUNY, an integral part of the State of New York);
see also Garcia v. S. U.N.Y. Health Sci. Ctr. at Brooklyn, No.
97-4189, 2000 WL 1469551, at *4 (E.D.N.Y. Aug. 21, 2000)
(dismissing Section 1983 claim against state agent under the
Eleventh Amendment). Here, no evidence exists that OCA waived
its immunity under the Eleventh Amendment. Accordingly, the
Section 1983 claim against OCA is dismissed.
6. As to Section 1983 and Janosek
Just as the Eleventh Amendment bars a Section 1983 action
against the State, it bars the action against a state employee
sued in her or his official capacity. Berman Enter., Inc. v.
Jorling, 3 F.3d 602, 606 (2d Cir. 1993) ("To the extent that
the suit [Section 1983] sought damages from defendants in their
official capacities, dismissal under the eleventh amendment was
proper because a suit against a state official in his official
capacity is, in effect, a suit against the state itself, which
is barred."). Accordingly, the claim under Section 1983 against
Janosek in his official capacity is dismissed.
However, the Eleventh Amendment does not provide immunity to a
state official sued in her or his personal capacity. Dube, 900
F.2d at 596 (stating that the Eleventh Amendment does not
immunize state officials sued in their personal capacities);
see also Farid v. Smith, 850 F.2d 917, 920-23 (2d Cir. 1988).
Accordingly, the Court has jurisdiction over the claim under
Section 1983 against Janosek in his personal capacity.
7. As to the State Law Claim
It is well settled that "the Eleventh Amendment bars the
adjudication of pendent state law claims against nonconsenting
state defendants in federal court." Raygor v. Regents of the
Univ. of Minn.,
___ U.S. ___, 122 S.Ct. 999, 1004, ___ L.Ed.2d ___ (2002)
(citing Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 120, 104 S.Ct. 900, 918, 79 L.Ed.2d 67 (1984)). The Eleventh
Amendment is an "`explicit limitation on federal jurisdiction.'"
For this Court to have the power to adjudicate the state law
claim in the complaint, namely the NYSHRL, either an express
waiver by the State or a congressional abrogation of the
Eleventh Amendment must exist. Coll. Sav. Bank v. Fla. Prepaid
Postsecondary Ed. Expense Bd., 527 U.S. 666, 670, 119 S.Ct.
2219, 144 L.Ed.2d 605 (1999). This Court finds neither.
Supplemental jurisdiction under 28 U.S.C. § 1367(a) does not
constitute a congressional abrogation of the Eleventh Amendment
granting district courts the power to adjudicate pendent state
law claims. Raygor, 122 S.Ct. at 1004-05 (holding that Section
1367(a) does not contain a clear statement of a congressional
intent to abrogate state sovereign immunity). In addition, the
plaintiff does not refer to any congressional statute that
intends to abrogate the immunity of New York State with respect
to the NYSHRL and this Court has found no such law.
Moreover, district courts in the Second Circuit has
consistently found that the NYSHRL does not include a waiver of
the State's sovereign immunity to suit in federal court.
Lambert v. New York State Office of Mental Health, 97-1347,
2000 WL 574193, at *7 (E.D.N.Y. Apr. 24, 2000); Cassells v.
Univ. Hosp. at Stony Brook, 740 F. Supp. 143, 147-48 (E.D.N.Y.
1990); accord, e.g., Harris v. Long Island Dev. Ctr., 1994 WL
445625, at *4 n. 6 (S.D.N.Y. Aug. 17, 1994); Arroyo v. New York
State Ins. Dep't, 1993 WL 248210 (S.D.N.Y. June 30, 1993);
Moche v. City Univ. of New York, 781 F. Supp. 160, 165
(E.D.N.Y. 1992), aff'd, 999 F.2d 538 (2d Cir. 1993).
Furthermore, the Second Circuit has stated that "pendent
jurisdiction should not be exercised merely because `the
exercise of such judicial power is desirable or expedient.'"
Young v. New York City Transit Auth., 903 F.2d 146, 164 (2d
Cir. 1990) (citations omitted). Accordingly, the claim under the
NYSHRL is dismissed.
B. Judgment on the Pleadings
The standard of review on a motion for judgment on the
pleadings under Rule 12(c) is whether "the moving party is
entitled to judgment as a matter of law." Burns Int'l Sec.
Serv., Inc. v. Int'l Union, United Plant Guard Workers of Am.,
47 F.3d 14, 16 (2d Cir. 1995). This standard is the same as that
applicable to a motion to dismiss for failure to state a claim
upon which relief can be granted pursuant to Federal Rule of
Civil Procedure 12(b)(6) ("Rule 12(b)(6)"). Nat'l Ass'n of
Pharm. Mfrs. v. Ayerst Lab., 850 F.2d 904, 909 n. 2 (2d Cir.
On a motion to dismiss for failure to state a claim under
Rule 12(b)(6), the Court should dismiss the complaint if it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his complaint which would entitle him to relief.
King v. Simpson, 189 F.3d 284, 286 (2d Cir. 1999); Bernheim
v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The Court must accept
all well-pled factual allegations in the complaint as true and
draw all reasonable inferences in favor of the plaintiff.
Koppel v. 4987 Corp., 167 F.3d 125, 127 (2d Cir. 1999);
Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d
Cir. 1997). The issue is not whether the plaintiff will
ultimately prevail but whether the plaintiff is entitled to
offer evidence to support the
claims. Villager Pond, Inc. v. Town of Darien, 56 F.3d 375,
378 (2d Cir. 1995).
2. Materials Presented Outside the Pleadings
The Second Circuit has stated that: Rule 12(b) gives district
courts two options when matters outside the pleadings are
presented in response to a 12(b)(6) motion: the court may
exclude the additional material and decide the motion on the
complaint alone or it may convert the motion to one for
summary judgment under Fed.R.Civ.P. 56 and afford all parties
the opportunity to present supporting material. See
Fonte v. Bd. of Managers of Cont'l Towers Condo., 848 F.2d 24,
25 (2d Cir. 1988). The Second Circuit has strictly enforced "the
conversion requirement of Rule 12(b)(6) where there is a
legitimate possibility that the district court relied on
inappropriate material in granting the motion." Amaker v.
Weiner, 179 F.3d 48, 50 (2d Cir. 1999). The purpose is to
ensure that "courts will refrain from engaging in fact-finding
when considering a motion to dismiss, and also that plaintiffs
are given a fair chance to contest defendants' evidentiary
assertions. . . ." Id.
In a motion to dismiss under Rule 12(b)(6), the Court must
confine its consideration "to facts stated on the face of the
complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of
which judicial notice may be taken." Leonard F. v. Israel Disc.
Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999); Hayden v.
County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999).
The Plaintiffs Affidavit submitted with his memorandum of law
in opposition to the motion for judgment on the pleadings
details the specific acts of discrimination allegedly committed
by Janosek during the course of the plaintiffs employment. The
Court declines to convert the motion for judgment on the
pleadings to one for summary judgment but rather decides the
motion on the complaint. Therefore, the Court declines to
consider the affidavit submitted by the plaintiff.
3. As to the ADA Title II Claim
This Court has jurisdiction over the plaintiffs claim against
OCA under Title II of the ADA. See supra Part II.A.3 for the
jurisdictional analysis of the ADA claims. In its motion to
dismiss, OCA only challenges the jurisdiction of this Court over
the ADA claims but does not attack the factual sufficiency of
the ADA claims under Rule 12(c). Accordingly, for the purposes
of this motion, the Court need not analyze the Title II claim to
determine whether it states a claim upon which relief can be
However, even assuming that the plaintiff moved to dismiss the
Title II claim for failure to state a claim upon which relief
can be granted, the Court finds that the plaintiff has met his
burden under the pleading requirements. As previously noted, the
Second Circuit has stated that "a private suit for money damages
under Title II of the ADA may only be maintained against a state
if the plaintiff can establish that the Title II violation was
motivated by either discriminatory animus or ill will due to
disability. . . ." Garcia v. S.U.N.Y. Health Sci. Ctr. of
Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001).
"To establish discriminatory animus, . . . a plaintiff may
rely on the burden-shifting technique similar to that adopted in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 or a motivating-factor analysis similar to that
set out in Price Waterhouse v. Hopkins
[490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989)]." Id.
(internal citations omitted). In a seminal pleading case, the
Supreme Court has recently stated that "an employment
discrimination complaint need not include such facts [under the
McDonnell Douglas framework] and instead must contain only `a
short and plain statement of the claim showing that the pleader
is entitled to relief.'" Swierkiewicz v. Sorema, ___ U.S. ___,
122 S.Ct. 992, ___ L.Ed.2d ___ (2002).
The complaint alleges that OCA treated the plaintiff
differently than other court officers because of his disability.
In particular, the complaint alleges that OCA charged him and
not other court officers with petty infractions, such as writing
in a journal while seated in the back of a courtroom even though
court was not in session and failing to lock a courtroom. The
complaint also specifies that these acts violated the ADA.
Finally, the complaint alleges that the plaintiff was terminated
because of his disability. These allegations give OCA fair
notice of the plaintiffs claims and the grounds upon which they
rest. Accordingly, the Court finds that the plaintiff has stated
a claim upon which relief can be granted under Title II of the
4. As to the Section 1983 Claim
This Court has subject matter jurisdiction over the claim
under Section 1983 against Janosek in his personal capacity.
See supra Part II.A.4.b. The Court now turns to the merits of
this claim. Section 1983 provides in pertinent part:
Every person who, under color [of state law] . . .
subjects, or causes to be subjected, any citizen of
the United States . . . to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983. Section 1983 has three essential elements: (1)
a person; (2) acting under color of state law; and (2)
infringement upon a plaintiffs constitutional or federal
statutory rights. Eagleston v. Guido,