The opinion of the court was delivered by: Gershon, United States District Judge.
Plaintiff Elaine Olson brings this class action for declaratory and injunctive relief against Defendants Brian Wing, Commissioner of the Office of Temporary and Disability Assistance of the New York State Department of Family Assistance and Antonia C. Novello, M.D., Commissioner of the New York State Department of Health (collectively, "state defendants"), and Verna Eggleston, Commissioner of the New York City Department of Social Services ("city defendant"), alleging violations of the Due Process and Equal Protection Clauses of the United States Constitution and disability discrimination in violation of 29 U.S.C. § 794(a). A preliminary injunction was entered in February 2003. See Olson v. Wing, 281 F. Supp. 2d 476 (E.D.N.Y. 2003); Additional Preliminary Injunction, Docket Entry #34, February 26, 2003. Now before the court are plaintiff's motion for class certification pursuant to Fed. R. Civ. P. 23 and defendants' motions to dismiss or, alternatively, to preclude plaintiff from presenting evidence in support of her motion for class certification.
The underlying facts in this case have been set forth in a previous opinion and familiarity with them is assumed. See Olson, 281 F. Supp. 2d at 480-83. Thus, the facts below are limited to those bearing on the motions currently before the court.
At the time this court granted plaintiff's request for a preliminary injunction, on February 14, 2003, the parties were directed "to submit either an agreement on class certification for the approval of the court or a schedule for the briefing of a motion for class certification" and "to advise the court as to whether they seek any additional discovery and to propose a schedule for its prompt completion." Olson, 281 F. Supp. 2d at 490. The parties were unable to come to an agreement on class certification, and on April 24, 2003, plaintiff filed a motion for class certification.
Defendants then sought discovery concerning Ms. Olson's adequacy as a class representative. Even though several deposition dates were scheduled and defendants accommodated plaintiff's various requests that her deposition be rescheduled, taken at her home and on written questions, defendants were prevented from deposing plaintiff. Plaintiff consistently cancelled the scheduled depositions for several reasons, including reasons that implicated her mental health.
Plaintiff's counsel contacted Dr. Edward J. Linehan, who, on January 17, 2004, evaluated plaintiff for approximately an hour and found that plaintiff was mildly mentally retarded. Dr. Linehan recommended that the court appoint a guardian ad litem to protect plaintiff's interests. Dr. Linehan, however, did opine that plaintiff "clearly demonstrated a general understanding and vested interest in the litigation and wished to remain in it as the named plaintiff."
On March 11, 2004, based on Dr. Linehan's evaluation, plaintiff's counsel requested that the Honorable Cheryl L. Pollak, Magistrate Judge, appoint a guardian ad litem. Judge Pollak scheduled a competency hearing and ordered that, if defendants wanted to conduct their own psychological evaluation of plaintiff, they do so at plaintiff's home. Defendants retained Dr. Wilfred G. van Gorp, who expressed reservations about Dr. Linehan's conclusions and stated that it would be necessary for him to examine plaintiff, review her medical and educational records, and interview a family member to form an opinion. Despite scheduling various appointments to examine her, Dr. van Gorp was never permitted to examine plaintiff because she, through her counsel, cancelled the scheduled meetings. Finally, on September 22, 2004, Judge Pollak ordered plaintiff to appear for a psychological examination by November 5, 2004, and further ordered that, if plaintiff failed to appear, defendants should file their response to plaintiff's motion for class certification and their motions to dismiss. Not surprisingly, plaintiff again made herself unavailable for an evaluation. All motions have now been fully briefed.
It now has been over three years since this court's order granting plaintiff's request for a preliminary injunction, and it is undisputed that the Disaster Relief Medicaid ("DRM") program has expired and that the transition to traditional Medicaid has been complete for a year. Although plaintiff has not made herself available for a deposition or for a psychological evaluation by defendants' doctor, plaintiff's counsel has not sought to add any other named plaintiff in this action. Plaintiff's counsel represents that he has been unable to find another named plaintiff to represent the proposed class, and he has not added as named plaintiffs either of the two class members identified in this court's previous opinion. See Olson, 281 F. Supp. 2d at 483.
All defendants move to dismiss on the grounds that plaintiff's claims are moot and that plaintiff has failed to prosecute this action and to comply with court-ordered discovery. The State defendants also claim 11th Amendment immunity. The City defendant argues that plaintiff fails to state a claim against her.
In my previous opinion, I held that, although the named plaintiff had been granted the benefits she sought, the action was not rendered moot as to all class members because their claims were inherently transitory in nature and were thus within the exception to the mootness doctrine providing that class actions need not be deemed moot where they are moot as to the named plaintiff but clearly persist as to the remaining class members. Olson, 281 F. Supp. 2d at 484. The defendants again call upon this court to determine whether this action is moot, noting that it is undisputed that the DRM program has expired and that the transition to traditional Medicaid is complete. In addition, at oral argument, defendants argued that the preliminary injunction issued by this court fully remedied any injuries the remaining class members may have sustained. It is unnecessary, however, for this court to decide whether the claim is moot with respect to all class members. As is explained below, the court denies plaintiff's motion for class certification because she is not an adequate representative, and no other named plaintiff ...