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CARDEW v. NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES

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. Fed.R.Civ.P. 12(b)(6).

Facts

  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. ¶ 44).

  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. ¶ 64).

 C. PLAINTIFF'S CLAIM UNDER THE RIGHT TO PETITION CLAUSE OF THE FIRST AMENDMENT

  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. ¶ 82).

  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.)

  Discussion

  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 detail below.

 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 denied.

 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 process claim.*fn6

  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 FIRST AMENDMENT

  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 denied.*fn7

  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. 30, 2003).

  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.

  SO ORDERED.


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