The opinion of the court was delivered by: CHARLES SIRAGUSA, District Judge
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.
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 ...