United States District Court, S.D. New York
April 29, 2004.
ROBERT CARDEW, Plaintiff, V. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES; GLENN S. GOORD, Commissioner; FRANK R. HEADLEY, Deputy Commissioner of Program Services; THOMAS G. EAGAN, Director, Inmate Grievance Program, all of DOCS; and JAMES J. WALSH, Superintendent; KEVIN V. HUNT, Deputy Superintendent of Program Services; WILLIAM D. BROWN, Deputy Superintendent of Administrative Services; KENNITH COSKY, Senior Counselor; STANISLAUS OGBANNA, Catholic Frier and Senior Chaplain; JOANNA PAPONTOS, Senior Counselor; WLADYSLAW SIDOROWICZ, Medical Doctor; MICHAEL KAPLAN, Counselor; PENNY HENRY, Corrections Officer; ROBERT SMITH, Vocational Instructor; HAROLD LAYTON, Vocational Instructor; CARL STIGLICH, Protestant Chaplain; all of Sullivan Correctional Facility, Defendants
The opinion of the court was delivered by: BARBARA JONES, District Judge
Opinion and Order
Pro se Plaintiff Robert Cardew, an incarcerated inmate, brings this
action alleging various civil rights violations. He seeks injunctive and
declaratory relief, as well as monetary damages, pursuant to
42 U.S.C. § 1983, for violations of his constitutional rights by corrections
officers and other employees of the New York City Department of
Correctional Services ("DOCS"). Defendants move to dismiss Plaintiff's
complaint for failure to state a claim upon which relief may be granted.
Plaintiff's claims arise out of events that occurred during his
incarceration at Sullivan Correctional Facility; Plaintiff has since been
transferred and is presently incarcerated at Wende Correctional Facility.
The following facts are either undisputed or as alleged by Plaintiff.
A. PLAINTIFF'S CLAIMS UNDER THE ESTABLISHMENT AND FREE EXERCISE
CLAUSES OF THE FIRST AMENDMENT AND THE RELIGIOUS LAND USE AND
INSTITUTIONALIZED PERSONS ACT OF 2000
Plaintiff contends that, on December 18, 2000, while performing his
assigned duties in the Custodial Maintenance Program, he was notified by
Defendant Smith that members of his program class were required to report
to the chapel for a musical/religious event. (Compl. ¶ 33). Plaintiff
said that he did not want to attend the religious event, but his requests
to be excused were denied by Defendants Smith and Henry. (Compl. ¶¶
34-35). Plaintiff alleges that religious objects symbolizing Christmas
were displayed, and a prayer service was offered by Defendant Stiglich.
(Compl. ¶ 36). Plaintiff filed a grievance and maintains that
Defendants Eagen, Walsh and Hunt, after receiving his grievance,
acknowledged that the event was religious in nature, but failed to
promulgate any policy to ensure that a similar error does not occur in
the future. (Compl. ¶ 38).
Plaintiff alleges that on December 18, 2000, he sent a letter to
Defendant Stiglich requesting permission to attend a Jehovah's Witness
service. (Compl. ¶ 40). The following day, Plaintiff received a
letter from Stiglich denying his request because Plaintiff was designated
as a Protestant in the DOCS computer system. (Compl. ¶ 41). On
December 20, 2000, Plaintiff sent a second letter requesting to attend
the Jehovah's Witness service, and again his request was denied. (Compl.
¶ 41). Plaintiff believes he was randomly designated as a Protestant,
either by the computer or the operator, because he was never affiliated
with the Protestant faith prior to or during his incarceration. (Compl.
After he filed grievance SUL-12968/00, Plaintiff was permitted to
attend a Jehovah's Witness service on January 26, 2001, but was then
denied access to the other services unless he "pledged allegiance" to the
Jehovah's Witness religion. (Compl. ¶ 47). Plaintiff then had to seek
assistance from Sgt. Brickell because Defendant Stiglich "provoked a
confrontation" with Plaintiff in order to force plaintiff to "pledge
allegiance" to the Jehovah's Witness religion. (Compl. ¶ 49). On
February 5, 2001, Plaintiff had to seek the assistance of Lt. Kessler
because Defendant Stiglich again sought to provoke him into "pledging
allegiance" to the religion. (Id.). Defendants Walsh and Eagen were made aware of these events, but failed to remedy the
situation. Plaintiff alleges that if he wanted to attend Catholic,
Protestant, or Muslim religious services, he would not have to "pledge
allegiance" to any of these religions. (Compl. ¶ 48).
B. PLAINTIFF'S CLAIM UNDER THE LIBERTY INTEREST CLAUSE AND EQUAL
PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT
On November 1, 1999, Plaintiff filed an Article 78 Petition in Albany
County Supreme Court against Defendant Goord, Cardew v. Goord,
Index # 6250-99, RJI # 01-99-ST0376, alleging that DOCS directive #4803,
and a DOCS disciplinary rule were unconstitutional since they conflicted
with New York State Correction Law § 171. (Compl. ¶ 51). On
February 3, 2000, Justice Torraca ruled there was no conflict of law, but
the DOCS rules must be "administered in accordance with the statute."
(Compl. ¶ 52).
On November 28, 2000, Plaintiff claims he went to the Program Committee
for an assignment, and was forced, under the threat of disciplinary
action, to take a hall porter position by Defendant Kaplan, which
required him to work on Sundays and holidays in violation of Correction
Law § 171. (Compl. ¶ 53). Plaintiff asserts that he then
presented a copy of the court decision of Justice Torraca to Defendant
Kaplan, but nonetheless, Defendant Kaplan refused to comply with
Correction Law § 171. (Compl. ¶ 54). Plaintiff continued
challenging his assignment but Defendants refused to change his assignment. (Compl. ¶¶
55-63). Plaintiff alleges that Defendants have a statewide policy of
"threaten [ing] inmates with disciplinary sanctions and  disciplin[ing]
inmates who refuse to work on Sundays and public holidays." (Compl. ¶
C. PLAINTIFF'S CLAIM UNDER THE RIGHT TO PETITION CLAUSE OF THE
Plaintiff claims that on December 14, 2000, Defendant Kaplan threatened
to take disciplinary action against Plaintiff in retaliation for
Plaintiff's filing grievances against the administration. (Compl. ¶
65). Kaplan said that Plaintiff was making false accusations and should
have been disciplined for doing so. (Compl. ¶ 66). Plaintiff then
filed a complaint against Defendant Kaplan; Defendant was never
disciplined for filing that grievance. (Compl. ¶¶ 67-68).
Plaintiff further contends that on December 13, 2000, he was told by
Defendant Cosky that he "could not have any of the better program
assignments since he had filed grievances against the facility staff,
medical staff and has staff separation orders in other facilities."
(Compl. ¶ 69).
D. PLAINTIFF'S CLAIMS UNDER THE CRUEL AND UNUSUAL PUNISHMENT
CLAUSE OF THE EIGHTH AMENDMENT AND CLAIMS UNDER THE AMERICANS WITH
DISABILITIES ACT AND SECTION 504 OF REHABILITATION ACT
In November 2000, Plaintiff claims that he was forced to work in
Vocational Building Maintenance, despite his hearing disability. (Compl. ¶ 81). His medical records reveal that his
hearing impairment and nerve damage causes him severe discomfort when
working in a high noise environment. (Compl. ¶¶ 81, 83, 86). This new
work assignment was, according to Plaintiff, very noisy. (Compl. ¶
Plaintiff further claims that he was not provided with adequate housing
accommodations relating to his hearing disability. (Compl. ¶¶ 95, 104,
110). After complaining, Plaintiff was transferred from "D" North housing
(Special Disability Unit) to "A" North housing (little disability
accommodation). (Compl. ¶¶ 98, 108, 113). Plaintiff believes that this
transfer was made in retaliation for his complaints.
Plaintiff also suffers from a lower back condition and was, apparently,
issued a medical restriction from a healthcare provider stating that he
should not lift more than 20 pounds. Plaintiff claims that on December
13, 2000, Defendant Cosky removed Plaintiff from Vocational Building
Maintenance, where he had been working as a hall porter, and assigned him
to Vocational Custodial Maintenance, also as a hall porter. (Compl. ¶
72). Plaintiff claims that he was required to lift objects in excess of
20 pounds or perform other tasks that were the equivalent of lifting more
than 20 pounds. (Compl. ¶ 73). Plaintiff also claims that Defendant
Sidorowicz refused to provide proper medical care for Plaintiff's lower
back condition. (Compl. ¶ 77). In addition, Defendant Sidorowicz neglected to renew the
Plaintiff's medical restrictions. (Id.)
In deciding a motion to dismiss, a Court must accept all allegations
made in the complaint as true. Barnett v. Int'l Bus. Machines,
885 F. Supp. 581, 585 (S.D.N.Y. 1995). A complaint "may be dismissed only
if `it appears beyond doubt that the plaintiff can prove no set of facts
in support of [his] claim which would entitle [him] to relief.'"
Paulemon v. Tobin, 30 F.3d 307, 309 (2d Cir. 1994) (quoting
Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Courts must
construe complaints liberally, especially when, as in this case, the
plaintiff is proceeding pro se. Weinstein v. Albright,
261 F.3d 127, 132 (2d Cir. 2001).
Defendants have urged the Court to consider the contents of Plaintiff's
grievances, as well as Defendants' responses thereto, in deciding this
motion. They argue that because these grievances were identified in
Plaintiff's Complaint, they are incorporated therein and are thus
properly considered. Defendants submitted copies of the grievances and
various supporting documents to the Court with their motion to dismiss.
The Court has considered the grievances insofar as they demonstrate
Plaintiff's administrative exhaustion before filing this suit. However,
because Plaintiff is entitled to have all facts assumed in his favor, the
Court has not considered either the substance of the statements in the grievances or any supporting
documents in deciding this motion.
As an initial matter the Court notes that Plaintiff is not entitled to
injunctive relief because he is no longer housed at Sullivan Correctional
Facility. It is well-settled law in this Circuit, that a transfer from a
prison moots any actions for injunctive relief. Prins v.
Coughlin, 76 F.3d 504, 506 (2d Cir. 1996). However, Plaintiff's
transfer does not moot his claims for damages, which are discussed in
I. PLAINTIFF'S ESTABLISHMENT CLAUSE CLAIMS AND CLAIMS UNDER THE
FREE EXERCISE CLAUSE AND "RLUIPA"
A. Religious Event
Plaintiff claims that Defendants violated his First Amendment rights
under the Establishment Clause in forcing him to attend a religious
event. The Establishment Clause guarantees, at a minimum, "that
government may not coerce anyone to support or participate in religion or
its exercise, or otherwise act in a way which establishes a [state]
religion or religious faith, or tends to do so." Lee v.
Weisman, 505 U.S. 577, 587 (1992) (quoting Lynch v.
Donnelly, 465 U.S. 668, 678 (1984)). Plaintiff also alleges that
it is a policy of DOCS and several of the individual Defendants to force
inmates to participate in religious services against their will. (Compl.
¶ 39).*fn1 For the purposes of this motion, Defendants do not dispute that
Plaintiff was forced to attend an event that was religious in nature.
However, Defendants argue any constitutional violation was de minimus and
the claim should therefore be dismissed. Although a de minimus
constitutional violation may result in an award of only nominal damages,
a de minimus violation does not fail to state a claim under § 1983.
See Smith v. Coughlin, 748 F.2d 783, 789 (2d Cir. 1984) ("even
when a litigant fails to prove actual compensable injury, he is entitled
to an award of nominal damages upon proof of violation of a substantive
constitutional right"). Thus, Defendant's motion to dismiss this claim is
B. Jehovah's Witness Services
Plaintiff claims that Defendants violated his First Amendment rights
under the Free Exercise Clause when they refused to allow him to attend
Jehovah's Witness religious services. In determining whether there is a
violation of the Free Exercise Clause, courts must assess: "(1) whether
the practice asserted is religious in the person's scheme of beliefs, and
whether the belief is sincerely held; (2) whether the challenged practice
of prison officials infringes upon the religious belief; and (3) whether
the challenged practice of the prison officials furthers some legitimate penological objective." Farid v. Smith,
850 F.2d 917, 926 (2d Cir. 1988). Plaintiff also claims that the denial
of his requests to attend Jehovah's Witness religious services violates
the Religious Land Use and Institutionalized Persons Act ("RLUIPA").
RLUIPA states that a prison regulation shall not impose a "substantial
burden" on the "religious exercise" of a prisoner, unless the government
demonstrates that the burden is in furtherance of a "compelling
government interest" and is the "least restrictive means" of furthering
that interest.*fn2 42 U.S.C. § 2000cc-l(a).
Plaintiff claims that he was prohibited from attending Jehovah's
Witness services unless he "pledged allegiance" to the Jehovah's Witness
religion. Plaintiff also claims that inmates were not required to "pledge
allegiance" to other religions in order to attend their services. (Compl.
¶ 48; Pl. Mem. at 13). Defendants argue that, pursuant to DOCS
Directive 4202, Plaintiff would be allowed to attend the Jehovah's
Witness services if he merely were to complete a "religious designation
form" and that Plaintiff's claim "mischaracterizes and distorts" DOCS
policy. (Reply Mem. at 4-5). Defendants do not argue that requiring an inmate to "pledge allegiance" to a particular religion is not a
constitutional violation, and therefore the Court will assume without
deciding that such a requirement would violate the First Amendment.
See Torcaso v. Watkins, 367 U.S. 488, 495 (1961) ("We repeat
and again reaffirm that neither a State nor the Federal Government can
constitutionally force a person to profess a belief or disbelief in any
religion.") (internal quotations omitted).
Construing the facts as Plaintiff has alleged them, the Court denies
Defendants' motion to dismiss this claim.*fn3
II. PLAINTIFF'S LIBERTY INTEREST AND EQUAL PROTECTION CLAIMS UNDER
NEW YORK STATE CORRECTION LAW SECTION 171
Plaintiff claims that his liberty and equal protection interests under
the Fourteenth Amendment were violated because Defendants required him to
work on Sundays and public holidays, in violation of New York State
Correction Law § 171.*fn4
To the extent that Plaintiff brings this claim as a violation of his
liberty interests under the Fourteenth Amendment, the Court grants Defendants' motion to dismiss.*fn5
Plaintiff appears to argue that Correction Law § 171 creates an
expectation that inmates will only be required to work on Sundays and
public holidays if they volunteer to do so. See N.Y. Corr. L.
§ 171(1) ("the commissioner and superintendents of state correctional
facilities may employ inmates on a volunteer basis on Sundays and public
holidays"). Plaintiff alleges that he has repeatedly requested not to
work on Sundays or public holidays, but has been forced to do so under
the threat of disciplinary sanctions. (Compl. ¶ 57-61). This,
Plaintiff argues, is a violation of his liberty interests, which are
protected by the Fourteenth Amendment.
The Fourteenth Amendment provides that a state shall not "deprive any
person of life, liberty, or property, without due process of law." Thus,
in order to determine whether an individual's rights have been violated
under the Due Process Clause, courts must examine two issues: (1) whether there exists a
liberty or property interest which has been interfered with by the State;
and (2) whether the procedures attendant upon that deprivation were
constitutionally sufficient. Kentucky Dep't of Corrections v.
Thompson, 490 U.S. 454, 460 (1989). Here, Plaintiff claims that
Correction Law § 171 creates a liberty interest, which Defendants
have interfered with by requiring him to work on Sundays and public
holidays. However, Plaintiff has failed to allege that Defendants have
denied him adequate process when refusing his requests to stop working on
Sundays and holidays. To the contrary, Plaintiff's Complaint details the
administrative process he received. Interference of a liberty interest
without more is insufficient to support a procedural due
To the extent Plaintiff brings this claim as a violation of his equal
protection interests, Defendant's motion is also granted. In his
Memorandum of Law, Plaintiff claims that, while he is forced to work on
Sundays and public holidays, other inmates are not. (Pl. Mem. at 19).
However, he does not make this allegation in his Complaint. To the extent
that Plaintiff wishes to pursue this particular claim and to the extent
that this disparate treatment is based upon some impermissible criteria,
such as race or religion, Plaintiff is granted leave to amend his
complaint no later than 60 days from the date of this Opinion.
III. PLAINTIFF'S CLAIM UNDER THE RIGHT TO PETITION CLAUSE OF THE
Plaintiff claims that Defendants Kaplan and Cosky impermissibly
retaliated against him in response to his exercise of his right to
petition under the First Amendment. Specifically, he alleges that
Defendants retaliated against him because he filed grievances. To
establish a First Amendment retaliation claim, a plaintiff must prove:
"(1) he has an interest protected by the First Amendment; (2) defendants'
actions were motivated or substantially caused by his exercise of that
right; and (3) defendants' actions effectively chilled the exercise of
his First Amendment right." Curley v. Vill. of Suffern,
268 F.3d 65, 73 (2d Cir. 2001) (citing Connell v. Signoracci,
153 F.3d 74, 79 (2d Cir. 1998)).
Plaintiff has failed to allege that Defendants' "chilled" the exercise
of his First Amendment rights. In fact, Plaintiff's complaint in this
action and many of the grievances Plaintiff filed related to this action
were filed after Defendant Kaplan's and Corsky's alleged threats,
demonstrating that Defendants' comments did not chill the
exercise of Plaintiff's First Amendment rights. Defendants' motion for summary judgment as to
Plaintiff's claims of retaliation is GRANTED.
IV. PLAINTIFF'S CLAIMS UNDER THE CRUEL AND UNUSUAL PUNISHMENT
CLAUSE OF THE EIGHTH AMENDMENT AND CLAIMS UNDER THE ADA AND SECTION 504
OF THE REHABILITATION ACT
A. Eighth Amendment Claims
Plaintiff claims that he has a back injury which caused him pain while
performing his duties as a custodial porter. Plaintiff also contends that
Defendants were on notice of his medical condition, yet failed to
adequately remedy the situation. Plaintiff claims that this deliberate
indifference to his medical needs violated his Eighth Amendment rights.
Accepting these allegations as true, the Defendants' motion to dismiss
must be denied as to Plaintiff's back injury claims.
Plaintiff's second Eighth Amendment claim relates to his hearing
disability. Plaintiff suffers from tinnitus and nerve damage in his ear
that cause him severe pain when performing his duties as hall porter.
Plaintiff wears hearing aids, which he alleges were not made available to
him for some time during his incarceration at Sullivan. Defendants
contend that they were not indifferent to Plaintiff's medical needs and
that his hearing disability was accommodated. Again, construing the facts
as Plaintiff alleges them, the motion to dismiss this claim is
Defendants cite Davidson v. Scully, 155 F. Supp.2d 77, 84
(S.D.N.Y. 2001), for the proposition that tinnitus is not a serious
medical condition, and thus indifference thereto cannot violate the
Eighth Amendment as a matter of law. However, the plaintiff's expert in
Davidson conceded that the plaintiff did not suffer any pain.
Thus, this Court does not read Davidson as holding that
tinnitus can never form the basis of an Eighth Amendment claim. Moreover,
here, the Plaintiff also claims to suffer from nerve damage, in addition
to other hearing conditions, and that these hearing conditions cause him
pain. Defendants' motion to dismiss Plaintiff's Eighth Amendment claims
with respect to his hearing problems is denied.
B. Americans With Disabilities Act Claims
Plaintiff's complaint includes two claims under Title II of the
Americans with Disabilities Act ("ADA") related to his hearing disability
and Defendants' refusal to provide him with appropriate accommodations.
Title II of the ADA does not provide for suits against state officials in
their individual capacities. Thus, to the extent Plaintiff has brought suit against Defendants
in their individual capacities, those claims are dismissed.
Plaintiff's claims against Defendants in their official capacities are
also dismissed. Title II monetary claims against the states and state
officials in their individual capacities must allege that the Title II
violation was motivated by discriminatory animus or ill will based on the
plaintiff's disability. Garcia v. State Univ. of N.Y. Health Scis.
Ctr., 280 F.3d 98, 111 (2d Cir. 2001). Plaintiff's claims are claims
of failure to accommodate and deliberate indifference
he does not claim that Defendant's actions were motivated by
discriminatory animus or ill will based on his hearing disability.
Plaintiff does allege that:
Upon information and belief, it is defendant
DOCS's policy to use federal funding to
discriminate and deny inmates with plaintiff's
particular hearing problems reasonable
accommodations under the Americans With
Disabilities Act for the purpose and malicious
intent of causing plaintiff extreme pain and
suffering along with reckless disregard for
plaintiff's well being.
(Compl. ¶ 102). To the extent that this allegation can be read
as an allegation that DOCS's failure to provide him with accommodations
was motivated by discriminatory animus or ill will based on his hearing
disability, it is conclusory and thus fails to state a claim. However,
the Court grants Plaintiff leave to amend his complaint and replead this
claim against DOCS. If Plaintiff wishes to amend his complaint, he must do so no later
than 60 days after the date of this Opinion.
C. Section 504 of the Rehabilitation Act
Section 504 of the Rehabilitation Act of 1973 prohibits any program or
activity receiving Federal financial assistance from discriminating
against, excluding from participation in, or denying benefits to persons
with a disability on the basis of his or her disability.
29 U.S.C. § 794. Defendants argue that Plaintiff's claims under § 504 are
barred by the Eleventh Amendment. However, as described below, whether
states are immune from suit under § 504 of the Rehabilitation Act is
intertwined with the question of whether the Eleventh Amendment shields
states from suits brought under the ADA.*fn8
It was previously believed that the ADA was properly enacted pursuant
to congressional authority under § 5 of the Fourteenth Amendment.
Because the ADA and Section 504 of the Rehabilitation Act "impose
identical obligations upon employers, [and because] the validity of
abrogation under the twin statutes present[ed] a single question for
judicial review," the Second Circuit concluded that Congress had validly abrogated the states' immunity
under § 504. See Kilcullen v. New York State Dep't of
Labor, 205 F.3d 77, 82 (2d Cir. 2000). However, in Board of
Trustees of the University of Alabama v. Garrett, 531 U.S. 356
(2001), the Supreme Court held that the enactment of Title I of the ADA
exceeded Congress's authority under § 5 of the Fourteenth Amendment
and thus suits brought against states thereunder were barred by the
Eleventh Amendment. Subsequent to the decision in Garrett, the
Second Circuit found that the enactment of Title II of the ADA also
exceeded congressional authority and went on to analyze whether New York
State had knowingly waived its sovereign immunity for suits under Section
504 of the Rehabilitation Act by virtue of the fact that Congress had
also enacted Section 504 pursuant to its authority under the Spending
Clause of the Constitution. Garcia v. State Univ. of N.Y. Health
Scics. Ctr., 280 F.3d 98 (2001). A state may waive its sovereign
immunity if it engaged in a "knowing and intentional waiver" of its
sovereign immunity as a condition of accepting federal funds pursuant to
a statute. In Garcia, the Second Circuit found that although
Congress had clearly evinced its intention to require such a waiver, New
York had not knowingly waived its sovereign immunity because that
immunity had apparently already been abrogated under Title II of the ADA.
[W]e are unable to conclude that New York in fact
waived its sovereign immunity against suit under § 504 when it accepted federal
funds for SUNY. At the time that New York accepted
the conditioned funds, Title II of the ADA was
reasonably understood to abrogate New York's
sovereign immunity under Congress's Commerce
Clause authority. . . . Since, as we have noted,
the proscriptions of Title II and § 504 are
virtually identical, a state accepting conditioned
federal funds could not have understood that in
doing so it was actually abandoning its sovereign
immunity from private damages suits, since by all
reasonable appearances state sovereign immunity
had already been lost.
Garcia, 280 F.3d at 114.
After Garcia was decided in September 2001, New York appears
to have continued to accept federal funds, and thus, in the wake of
Garcia, has waived its sovereign immunity from suit under
Section 504 of the Rehabilitation Act. However, the exact date at which
New York's knowing and intentional waiver of sovereign immunity began
remains unclear. The Garcia Court noted that:
an argument could be made that if there is a
colorable basis for the state to suspect that an
express congressional abrogation is invalid, then
the acceptance of funds conditioned on the waiver
might properly reveal a knowing relinquishment of
sovereign immunity. This is because a state
deciding to accept the funds would not be ignorant
of the fact that it was waiving its possible claim
to sovereign immunity.
Garcia, 280 F.3d at 114 n.4.
The courts that have examined this issue have reached differing
results. Some courts have found that New York could not have knowingly
waived its sovereign immunity until Garcia was decided. See Kilcullen v. New York State Dep't of Labor,
2003 U.S. Dist. LEXIS 3826, at *8 n.1 (N.D.N.Y. March 13, 2003)
(collecting cases). Other courts have stated that New York should have
been on notice when the Supreme Court reached its February 2001 decision
in Garrett, that despite the express abrogation of Eleventh
Amendment immunity under the ADA, states were immune from suit under the
Eleventh Amendment.*fn9 E.g., Smith v. State Univ. of
N.Y., 2003 U.S. Dist. LEXIS 6835, at *19-21 (N.D.N.Y. April 23,
2003). One court has suggested that New York had a "colorable basis" to
have suspected the invalidity of purported Eleventh Amendment abrogation
under the ADA even earlier i.e., when the Supreme Court
granted certiorari in Garrett on April 17, 2000. Wasser v.
New York State Office of Voc. & Educ. Servs. for Individuals with
Disabilities, 2003 U.S. Dist. LEXIS 17496, at *33-34 (E.D.N.Y. Sept.
Having examined these decisions and their underlying rationale, this
Court concludes that New York knowingly waived its sovereign immunity
under Section 504 of the Rehabilitation Act as of February 21, 2001, the
date the Supreme Court issued its opinion in Garrett, As the Supreme Court's decision
in Garrett explicitly held that states were immune from ADA
suits under the Eleventh Amendment, New York did not need the Second
Circuit's opinion in Garcia to "suspect that an express
congressional abrogation is invalid" the Garrett
decision made that possibility clear.
Since New York is not immune from suits under § 504 arising out of
events after February 2001, any claims that Plaintiff may have that arose
between February 21, 2001 and March 22, 2001 the date Plaintiff
executed his Complaint are not barred by Eleventh Amendment
immunity. All claims under § 504 arising out of events prior to
February 21, 2001 are dismissed. Plaintiff is directed to file an amended
complaint no later than 60 days after the date of this Opinion setting
forth his precise claims under Section 504 of the Rehabilitation Act that
arose between February 21, 2001 and March 22, 2001. Failure to submit an
amended complaint by that date will result in dismissal of all of
Plaintiff's § 504 claims. Conclusion
For the reasons stated above, Defendants' motion to dismiss is GRANTED
with respect to Plaintiff's liberty interest, equal protection, right to
petition, and ADA claims. His claims for injunctive relief are also
dismissed. Plaintiff has been given leave to amend his complaint and
replead his equal protection and ADA claims. Defendants' motion to
dismiss is DENIED with respect to Plaintiff's Establishment Clause, Free
Exercise Clause, RLUIPA, and Eighth Amendment claims. Plaintiff's claims
under Section 504 of the Rehabilitation Act are dismissed in so far as
they arose before February 21, 2001. Plaintiff is directed to file and
serve on Defendants an amended complaint no later than 60 days after the
date of this Opinion setting forth any claims under Section 504 that
arose between February 21, 2001 and March 22, 2001.