United States District Court, W.D. New York
August 2, 2005.
ABDUL SHARIFF, Plaintiff,
GLENN S. GOORD, Commissioner of the New York State Department of Correctional Services, et. al., Defendants.
The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
AMENDED DECISION & ORDER
This is an action in which plaintiff alleges violations of his
rights as guaranteed by the Fifth, Eighth, and
Fourteenth amendments to the United States Constitution, as well as by Title
II of the Americans with Disabilities Act ("ADA"),
42 U.S.C. § 12132, and § 504 of the Rehabilitation Act, 29 U.S.C. § 794. Now
before the Court is defendants' motion to dismiss, pursuant to
Fed.R.Civ.P. 12(b)(6), all causes of action set forth in the
complaint, except plaintiff's "First Claim" as it pertains to defendant
Williams and plaintiff's "Fifth Claim" which pertains only to
defendant Gregoire. Alternatively, as to defendants Goord and New
York State Department of Correctional Services ("DOCS"),
defendants move to dismiss pursuant to the "first-to-file" rule.
For the reasons stated below, defendants' application is granted
in part and denied in part.
According to his complaint, plaintiff is presently an inmate
within the New York State Department of Correctional Services,
and has been during all times relevant to this litigation. In
addition, plaintiff has been confined to a wheelchair during his
entire period of incarceration. On September 28, 2000, plaintiff
was housed at the Green Haven Correctional Facility ("Green
Haven") in Stormville, New York. On that date, while in his
wheelchair, plaintiff maintains that he was transported by van to
an outside medical facility, and that he was injured when the van
in which he was traveling made a sharp turn. He claims that the
wheelchair he had been issued was not suitable to provide for his
safe transport in the van, and that defendant DOCS and defendant,
Glen S. Goord ("Goord"), the Commissioner of DOCS, were aware of
the unsuitability. On February 14, 2001, in connection with this
incident, plaintiff commenced an action in the Southern District
of New York.
During the course of that lawsuit, plaintiff moved for a
preliminary injunction requiring defendants to transport
plaintiff using procedures and equipment consistent with the ADA.
In support of his application, plaintiff submitted a report
prepared by an expert on wheelchair transportation, Gina
Bertocci, Ph.D. The report, which resulted from Dr. Bertocci's
March 28, 2003, inspection of the equipment and techniques used
at Green Haven for the transportation of prisoners requiring
wheelchairs, indicates the following: that the wheelchair used by Green Haven to transport plaintiff is not
intended for use as a motor vehicle seat, and does not meet the
current standards of the American National Standards
Institute/Rehabilitation Engineering and Assistive Technology
Society of North America ("ANSI/RESNA"); that the technique used
to secure wheelchair-bound inmates exposes them to a higher risk
of injury; and that the failure to properly use the Wheelchair
Tiedown and Occupant Restraint System ("WTORS") exposes
wheelchair-bound inmates to a higher risk of injury. Dr. Bertocci
concluded: that the procedures demonstrated by Green Haven
personnel were in violation of ADA regulations, industry
recommended practice, and guidelines provided by the WTORS
manufacturer, which are posted in the vehicle; that use of the
wheelchair that is inappropriate for vehicular transport,
together with the poor procedures in place, will lead to an
increased risk of injury during normal driving maneuvers,
emergency driving maneuvers, or a crash; and that to reduce the
risk of injury, ANSI/RESNA WC-19 compliant wheelchairs should be
used for the vehicular transportation of wheelchair-bound
inmates, and that those responsible for such transportation
should undergo appropriate training.
Neither Goord or DOCS disputed any of Dr. Bertocci's
conclusions, or presented expert testimony of their own. However,
on May 23, 2003, plaintiff was transferred to Five Points
Correctional Facility ("Five Points") in Romulus, New York, and
subsequently, on August 8, 2003, the Southern District entered an
order denying injunctive relief, on the grounds that plaintiff's
transfer rendered such application moot.
On February 10, 2004, while incarcerated at Five Points,
plaintiff was again transported by van, while in his wheelchair,
to another outside medical facility. He claims that, on this
occasion, he was injured when the van became involved in a motor
vehicle accident. He also claims that he was not afforded proper medical
care for the injuries he received as a result of the accident.
Plaintiff further maintains that the equipment and procedures,
which are the subject of the action before this Court, are the
same as those employed at Green Haven on September 28, 2000.
STANDARDS OF LAW
A. Motion to Dismiss Failure to State a Cause of Action
To prevail on a motion for dismissal under Rule 12, a defendant
must show that plaintiff can prove no set of facts in support of
his claim that would entitle him to relief. See H.J. Inc. v.
Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see
also 2 MOORE'S FEDERAL PRACTICE, § 12.34[a] (Matthew Bender
3d ed.). "In considering a motion to dismiss for failure to state
a claim under Fed.R.Civ.P. 12(b)(6), a district court must
limit itself to facts stated in the complaint or in documents
attached to the complaint as exhibits or incorporated in the
complaint by reference." Kramer v. Time Warner, Inc.,
937 F.2d 767, 773 (2d Cir. 1991). The Court must view the complaint, and
draw all reasonable inferences, in the light most favorable to
the non-moving party. Id.; see also 2 MOORE'S FEDERAL
PRACTICE, § 12.34[b] (Matthew Bender 3d ed.) (court must
accept plaintiff's factual allegations as true). Under the modern
rules of pleading, a plaintiff need only provide "a short and
plain statement of the claim showing that the pleader is entitled
to relief," FED. R. CIV. P. 8(a)(2), and that "all pleadings
shall be so construed as to do substantial justice," FED. R. CIV.
P. 8(f). On a Rule 12(b)(6) motion, the issue before the Court
"is not whether a plaintiff will ultimately prevail, but whether
the claimant is entitled to offer evidence to support the claim." Villager Pond, Inc. v. Town of Darien,
56 F.3d 375, 378 (2d Cir. 1995).
Finally, while the plaintiff need not set out in
detail the facts upon which he bases a claim, he must
provide the "defendant fair notice of the nature of
the claim and the grounds upon which it rests."
Washington v. James, 782 F.2d 1134, 1140 (2d Cir.
1986) (quoting Conley v. Gibson, 355 U.S. 41, 47,
78 S. Ct. 99, 103, 2 L. Ed. 2d 80 ). Where the
allegations are so baldly conclusory that they fail
to give notice of the basic events and circumstances
of which the plaintiff complains, they are
meaningless as a practical matter and legally
insufficient to state a claim. Barr v. Abrams,
810 F.2d 358, 363 (2d Cir. 1987) (citing Ostrer v.
Aronwald, 567 F.2d 551, 553 [2d Cir. 1977]).
Parisi v. Coca-Cola Bottling Co., 995 F. Supp. 298, 300-01
B. Motion to Dismiss The First-to-File Rule
The parties agree that the claims made in the complaint against
defendants Goord and DOCS in this case are similar to those made
against them, by the same plaintiff, in the previously-filed
lawsuit in the Southern District of New York. Defendants claim
that based on this, the Court should dismiss the claims against
these defendants. The Second Circuit has held that, "[t]he first
to file rule embodies considerations of judicial administration
and conservation of resources." First City Nat'l Bank & Trust
Co. v. Simmons, 878 F.2d 76, 80 (1989). In that case, the court
"[w]here there are two competing lawsuits, the first
suit should have priority, absent the showing of
balance of convenience . . . or . . . special
circumstances . . . giving priority to the second."
Motion Picture Lab. Technicians Loc. 780 v. McGregor
& Werner, Inc., 804 F.2d 16, 19 (2d Cir.
1986). . . .
Balancing factors of convenience is essentially an
equitable task. For that reason, an "ample degree of
discretion" is afforded to the district courts in
determining a suitable forum. Kerotest Mfg. Co.,
342 U.S. 180, at 183-84 (1952). . . .
Id. at 79 (some internal citations omitted). Thus, there is a
"presumption in favor of allowing the controversy to be
adjudicated in the forum where it was first filed," and while a
"balance of convenience . . . or . . . special circumstances" may warrant
allowing the second suit to go forward, mere concern of an
unfavorable outcome is insufficient. Id. at 80. Rather the
relevant concern is whether the issue can be fully adjudicated in
the original forum. Id.
In First City Nat'l Bank & Trust Co., the Second Circuit,
upon affirming the dismissal without prejudice of the second
suit, noted the following:
We agree . . . that there are no facts or
circumstances in this case which compel departure
from the well-settled principle favoring the forum
wherein a suit was first filed. Accordingly, the
decisions dismissing without prejudice . . . are
affirmed. We note the possibility that the outcome of
the [first] action may prompt plaintiff to renew its
suit in New York. Should that occur, our holding
would not preclude the [plaintiff from doing so].
First City Nat'l Bank & Trust Co., 878 F.2d at 80.
Subsequently, in Curtis v. Citibank, N.A., 226 F.3d 133
(2d Cir. 2000), the circuit court, while affirming, pursuant to
the first-to-file rule, the lower court's dismissal of claims
that were, in fact, duplicative, reversed as to one claim, "to
the extent [it arose] out of events occurring subsequent to the
filing of the first . . . complaint. . . ."
A. Motion to Dismiss-Failure to State a Cause of Action
1. Second and Sixth Causes of Action
The parties agree that the second and sixth causes of action
are to be dismissed.
2. First Cause of Action
Defendants maintain that the § 1983 claim as alleged against
DOCS in plaintiff's first cause of action and as alleged against
individual defendants in their official capacities should be
dismissed pursuant to the Eleventh Amendment of the United States
Constitution. It is, of course, well settled that "absent waiver
by the State or valid congressional override, the Eleventh Amendment bars a damages
action against a State in federal court. Kentucky v. Graham,
473 U.S. 159, 160 (1985).
The Eleventh Amendment bar, however, applies only to suits for
damages; State officials may be sued in their official capacity
for injunctive relief.
"[N]either a State nor its officials acting in their
official capacities are `persons' under [42 U.S.C.] §
1983." Will v. Mich. Dep't of State Police,
491 U.S. 58, 71 (1989). Therefore, state officials cannot
be sued in their official capacities for
retrospective relief under section 1983. See id.
Nonetheless, state officials can be subject to suit
in their official capacities for injunctive or other
prospective relief. Id. at 71 n10. Suit can also be
brought against them under section 1983 in their
individual capacities for both prospective and
retrospective relief. See Hafer v. Melo,
502 U.S. 21, 23 (1991); Posr v. Court Officer Shield # 207,
180 F.3d 409, 414 (2d Cir. 1999).
Huminski v. Corsones, 396 F.3d 53
, 70 (2d Cir. 2005).
Defendants cite Shariff v. Coombe, No. 96 Civ. 3001 (BSJ),
2002 U.S. Dist. Lexis 11422 (S.D.N.Y. Jun. 26, 2002), which was
an unrelated lawsuit, previously initiated by the plaintiff in
the instant case, in support of their contention that the claims
against defendants in their official capacities are barred by the
Eleventh Amendment. In Coombe, however, the court only
dismissed "claims for monetary relief pursuant to § 1983 against
the . . . [d]efendants in their official capacities." Id. In
this case, in addition to money damages, plaintiff is also
seeking injunctive relief. Therefore, the Court declines to
dismiss, as to such relief, either DOCS or the named defendants
in their official capacities.
As to the first claim, defendants further argue that, with
respect to defendants Goord, Wright, and Poole, plaintiff's
"simple allegation that these individuals failed to train and
supervise, without more is insufficient" to properly allege
personal involvement. (Defs.' Mem. of Law at 12).
"It is well settled in . . . [the Second] Circuit
that personal involvement of defendants in alleged constitutional deprivations is
a prerequisite to an award of damages under § 1983."
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(internal quotation marks omitted). Personal
involvement of a supervisory official may be
established "by evidence that: (1) the [official]
participated directly in the alleged constitutional
violation, (2) the [official], after being informed
of the violation through a report or appeal, failed
to remedy the wrong, (3) the [official] created a
policy or custom under which unconstitutional
practices occurred, or allowed the continuance of
such a policy or custom, (4) the [official] was
grossly negligent in supervising subordinates who
committed the wrongful acts, or (5) the [official]
exhibited deliberate indifference to the rights of
[others] by failing to act on information indicating
that unconstitutional acts were occurring." Id.
Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246
, 254 (2d
While defendants' assertion regarding personal involvement may
be correct, plaintiff has also alleged that these defendants
exhibited deliberate indifference in their failure to train and
supervise. (Pl.'s Compl. ¶ 95.) The U.S. Supreme Court has ruled
that this may serve as a "basis for § 1983 liability. . . ."
City of Canton v. Harris, 489 U.S. 378 (1989) (holding that the
inadequacy of police training may serve as the basis for § 1983
liability where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police come
The Court agrees with plaintiff that he has made allegations
that are sufficient under more than one of these alternatives. In
that regard, plaintiff has set forth in his complaint the
findings of Dr. Bertocci, discussed above, relating to wheelchair
safety. These were provided to DOCS and went undisputed well in
advance of the incident that forms the basis of this lawsuit.
Plaintiff allegations that Goord, Wright, an Associate
Commissioner and Chief Medical Officer of DOCS, and Poole, the
Superintendent of Five Points, were aware of or should have been
aware of the danger posed by the use of a wheelchair
inappropriate for vehicle transport and by inadequate training of
DOCS personnel are sufficient to establish personal involvement at the pleading stage where "the
issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims." Villager Pond, Inc. v. Town of Darien, 56 F.3d at 378.
3. Third and Fourth Causes of Action
It is well settled that neither Title II of the ADA nor § 504
of the Rehabilitation Act provides for individual capacity suits
against state officials. However, beyond individual capacity
suits, defendants argue that Title II of the ADA and § 504 of the
Rehabilitation Act do not allow state actors to be sued in their
official capacities. The Court disagrees. Defendants do not
dispute that, pursuant to the holding in Garcia v. State Univ.
of N.Y. Health Scis. Ctr., 280 F.3d 98, 107 (2d Cir. 2001), the
Eleventh Amendment does not bar an action against DOCS for money
damages under either the ADA or Rehabilitation Act. Since the
Eleventh Amendment only shields individual defendants in their
official capacities to the same extent that it shields DOCS, it
follows that the individual defendants may be sued in their
official capacities for violating the ADA and the Rehabilitation
Act. See id. at 107.
With respect to plaintiff's ADA and Rehabilitation Act claims,
defendants further argue that his allegations on these causes of
action are insufficient. While in paragraphs 93 and 94 of his
complaint, plaintiff references defendants' "ill will or animus
toward prisoners with disabilities who require a wheelchair for
mobility" and "callous indifference to the risks posed to
prisoners who use wheelchairs for mobility," defendants contend
that these assertions are not enough, that "plaintiff must allege
`irrational discriminatory animus or ill will' and `deliberate
indifference' to plead a valid cause of action." (Defs.' Mem. of
Law at 10.) However, defendants offer no authority to substantiate
their contentions. In any event, the Court finds that, at the
pleading stage, the difference between what defendants claim
plaintiff should have alleged, and what plaintiff did allege,
amounts to a distinction without a difference.
Additionally, defendants contend that plaintiff, in order to
support a Title II ADA claim, must show he was "excluded from
participation in, or being denied the benefits of some service,
program, or activity by reason of his or her disability. . . ."
(Pl.'s Mem. of Law at 11(quoting Johnson v. Goord, No. 01 Civ.
9587 (PKC), 2004 U.S. Dist. Lexis 19658 (S.D.N.Y. Sep. 29,
2004)).) Defendants maintain that plaintiff fails to make the
necessary allegations, claiming only that the manner in which he
was transported to receive medical services was improper. The
Second Circuit has held that "[t]he ADA requires only that a
particular service provided to some not be denied to disabled
people." Rodriguez v. City of New York, 197 F.3d 611, 618 (2d
Cir. 1999). The court must "focus on the particular services
provided by [defendants]. . . ." Id. The service in the instant
case is not medical care, but the safe transportation to receive
it. Plaintiff has made detailed allegations regarding the unsafe
nature of his transportation for medical care. He has also
alleged that inmates that are not wheelchair-bound are
transported safely. Therefore, plaintiff has met his burden with
respect to claiming a denial of a service for reason of his
B. Motion to Dismiss First-to-File Rule
Defendants argue that the claims against Goord and DOCS that
are before this Court are virtually the same as the claims
pending in the Southern District in connection with the September
28, 2000, incident, and therefore should be dismissed as
duplicative pursuant to the first-to-file rule. The Court disagrees. In this
action, plaintiff seeks injunctive relief against Goord and DOCS,
which the Southern District has declined to consider, because
plaintiff's transfer from Green Haven rendered it moot. Moreover,
this case involves an event that occurred subsequent to
plaintiff's filing in the Southern District. Additionally, this
action involves claims of money damages against Goord and DOCS
that will remain regardless of the result in the Southern
Accordingly, defendants' motion to dismiss (# 8) is granted
with respect to the second and sixth causes of action, and
IT IS SO ORDERED.
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