The opinion of the court was delivered by: P. Kevin Castel, U.S.D.J.
Plaintiff Prasanna Goonewardena, proceeding pro se, brings this action pursuant to Title II and III of the Americans with Disabilities Act, 42 U.S.C. 12101, et seq. ("ADA"), the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. ("Rehabilitation Act") and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq. ("Title IX") against Hunter College, The City University of New York, Jennifer Raab, President of Hunter College, Linda Chin, Esq., Special Counsel to the President of Hunter College, and Michael Escott, Associate Dean of Students at Hunter College. Plaintiff's Amended Complaint ("AC") alleges that CUNY and various officials and employees of Hunter College discriminated against him on the basis of his disability, race, national origin, and religion and denied him due process and equal protection under the law as guaranteed the Fourteenth Amendment.
On its face, plaintiff's Amended Complaint does not expressly invoke 42 U.S.C. § 1983. However, plaintiff's Amended Complaint and other papers indicate that he believes that his rights to due process and equal protection under the Fourteenth Amendment have been violated. A proper statutory vehicle by which plaintiff could bring those claims is a section 1983 claim. Therefore, in light of plaintiff's pro se status, and the command that pro se pleadings are to be given liberal construction, see e.g., Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001), I will read the Amended Complaint as alleging a violation of plaintiff's rights under section 1983. Similarly, while plaintiff's memorandum of law in opposition to this motion references Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d ("Title VI"), his Amended Complaint does not on its face refer to that statute. However, as with plaintiff's section 1983 claim, I will read the Amended Complaint as alleging a violation of Title VI. I also note that Linda Chin does not appear in the full caption of this suit but is named in the Amended Complaint and was served with the summons and complaint. (Docket 14, 19) The caption is deemed amended to include Ms. Chin.
Defendants move to dismiss the Amended Complaint on various grounds, alleging that this court lacks subject matter jurisdiction over several of plaintiff's claims because CUNY and the individual defendants are arms of the State of New York and, therefore, enjoy sovereign immunity. Defendants contend that those claims to which a defendant is immune should be dismissed pursuant to Rule 12(b)(1), Fed. R. Civ. P., and that plaintiff's remaining allegations fail to state a claim and should be dismissed pursuant to Rule 12(b)(6), Fed. R. Civ. P. Plaintiff has been served with the requisite Notice to Pro Se Litigants Opposing a Motion to Dismiss pursuant to Local Rule 12.1. For the reasons set forth below, defendants' motion is granted in part and denied in part.
A. Goonewardena's Suspension
Plaintiff, a self-described South Asian male who is a Buddhist, was a student at Hunter College when the events underlying this action took place. Hunter College is a senior college of the City University of New York ("CUNY").*fn1 In 1995, Goonewardena was elected to Hunter's undergraduate Student Government as a Senator. (AC ¶ 61) In October of 1995, Goonewardena became concerned that members of the Student Government were illegally holding their seats. (AC Exh. I-3) In a letter from Hunter College Vice-President Silvia Fishman, Goonewardena was directed to contact Student Government President Michelle Gonzalez in order to pursue the matter. (Id.) At a meeting with Fishman, Goonewardena alleges that he accused Michael Escott, Hunter Associate Dean of Students, of "bias against me because of my Race and National Origin." (AC ¶ 61) Goonewardena contends that in response to his criticism of Escott and his allegations concerning the illegality of the Student Government elections, Escott and Gonzalez acted collusively to bring false charges against him so that they could "continue to misuse and abuse their powers". (Id.)
On December 7, 1995, Escott sent to Goonewardena a letter informing Goonewardena that he had been "temporarily suspended" from Hunter College pursuant to 15.6 of Article 15 of the Bylaws of CUNY. (AC Exh. F) Goonewardena's suspension was effective upon his receipt of the letter. The stated basis for plaintiff's suspension was "stalking, harassing and physically assaulting Ms. Michelle Gonzalez" on repeated occasions in November of 1995 in violation of Article 129A of the New York State Education Law. (Id.) The letter scheduled a hearing before the Faculty-Student Disciplinary Committee ("FSDC") on December 13, 1995 at noon in a building on Hunter's 695 Park Avenue campus. It also referred Goonewardena to a counselor in the Office of Student Services in the event that he had questions regarding the hearing. It appears that the December 13 hearing was postponed at plaintiff's request, although the precise reason for its postponement is not clear in the record. (AC Exh. H, "Hearing Trans." at 22)
On January 19, 1996, Escott wrote to Goonewardena stating that given that there was no evidence that Goonewardena would be medically unable to attend the FSDC hearing, it would be rescheduled for January 30, 1996, at 9 a.m. (AC Exh. I) Escott's letter also advised Goonewardena of the procedure surrounding the hearing, including his opportunity to present evidence and witnesses, as well as his opportunity to confront any witnesses or evidence presented against him. Neither Goonewardena nor Gonzalez attended and the January 30 hearing did not go forward on the merits. The FSDC postponed the hearing indefinitely without taking any action. (Hearing Trans. at 22-23)
B. The Disciplinary Hearing
More than seven years later, on May 19, 2003, Goonewardena wrote to Hunter President Jennifer Raab requesting that a date be set for the FSDC hearing which had been twice scheduled but never held. Pursuant to plaintiff's request, a hearing was scheduled for June 25, 2003 at Hunter's Park Avenue campus. (AC Exh. H) Prior to the hearing, Goonewardena's attorney sent a letter to Escott demanding that the hearing be held at Hunter's main administrative office at 535 E.80th St. "due to plaintiff's disability (minor psychiatric illness)." (AC ¶ 22) The request was denied. The Park Avenue campus, which is Hunter's main campus, is handicapped-accessible, (AC Exh. B), and fifteen blocks from the plaintiff's requested location. Goonewardena did not appear at the hearing. The hearing proceeded in his absence and an audio recording and a transcription of the proceeding was made.
Present at the FSDC hearing were members of the committee and Escott. Escott presented to the committee chairwoman an unopened letter from Goonewardena which had been sent to Escott's office. The submission stated that Goonewardena was unable to attend the hearing for "personal reasons" and denied all allegations against him. It further stated that Goonewardena did not intend to return to Hunter and requested that, because it was eight years after the initial incident and neither he nor Gonzalez were still enrolled at Hunter, all allegations against him be dropped. (AC Exh. H, Hearing Trans. 3-4) Escott then presented Hunter's opening statement and evidence which, it appears from the hearing transcript submitted by plaintiff with the Amended Complaint, consisted principally of written statements by witnesses taken at or near the time of the underlying events. The statements detailed plaintiff's harassing conduct directed at Gonzalez. After questioning Escott, the FSDC retired to deliberate.
On June 26, 2003, the FSDC chairwoman sent Goonewardena a letter detailing the committee's decision that he was "guilty as charged" of stalking, harassing and physically assaulting Gonzalez. (AC Exh. J at 2) The FSDC imposed a University-wide suspension which barred plaintiff from enrolling in any CUNY school. The letter stated that the suspension is effective until Goonewardena receives psychiatric treatment and submits to the school documentation that, at a minimum, he is no longer a danger to the school or himself. The letter also states that Escott will be "guided by the Hunter College psychologist" regarding the adequacy of any submitted materials. (AC Exh. J at 2) In addition, Goonewardena was informed that "the suspension will be noted on your transcript and will remain on your transcript until such time as the suspension is lifted as indicated above." (Id.) Goonewardena was also informed of his right to appeal the FSDC determination to President Raab and, if necessary, to the Board of Trustees of CUNY.
On August 6, 2003, Goonewardena wrote to President Raab, contending that his time to appeal should be extended due to an error in the mailing of the FSDC decision and requesting all documents related to the June 2003 hearing as well as an additional copy of the audiotape of the hearing as his copy was inaudible. (AC Exh. G) While it is unclear from the record when or by whom an extension of Goonewardena's time to appeal was granted, it appears that his time was, indeed, extended. Goonewardena's letter also asserted that "the hearing record and the decision should be quashed or set aside to be fair" as the hearing was conducted without the testimony of the alleged accuser. (Id. at 2) Goonewardena further contended that he had not assaulted Gonzalez and transmitted a copy of sections of the New York Penal law defining assault. Goonewardena's appeal to President Raab was denied on October 1, 2003. He did not appeal to the Board of Trustees.
C. The Psychiatrist Letters
On December 9, 2003, plaintiff forwarded to President Raab a letter from his psychiatrist, Dr. Ludmilla Dashevsky, which asserted that plaintiff was her patient, he suffered from a "chronic psychiatric condition", and plaintiff's condition "appears stable and [plaintiff is] not a danger to [himself] or others." (AC Exh. K). Escott responded on March 16, 2004, stating that Goonewardena's case would be reviewed by Escott and the College Psychologist, pursuant to the FSDC decision. (AC Exh. L)
On March 31, 2004, Escott wrote to plaintiff stating that despite repeated efforts, Katherine Leak, the Hunter counselor assigned to plaintiff's case, had been unable to speak to Dr. Dashevsky. (AC Exh. M) On April 28, 2004, plaintiff's lawyer mailed Escott a letter imposing conditions on the revelation of plaintiff's psychiatric information to Hunter officials. As a precondition to approving both the college's communication with plaintiff's psychologist and a review of plaintiff's psychological records, plaintiff's counsel demanded to know, among other things, what information was sought from the psychologist, how long the information would be retained and how it would be protected. (AC Exh. O) Escott responded in writing to the inquiry. (AC Exh. Y)
On July 6, 2004, plaintiff forwarded to Escott a letter from Dr. Dashevsky which stated that plaintiff showed a "partial response and partial improvement" to treatment. (AC Exh. N) Thereafter, Escott wrote to Dr. Dashevsky requesting more information on plaintiff's medications, treatment and functionality as "the Hunter College Administration lacks a clear sense of [plaintiff's] baseline functioning, responsiveness to treatment modality and his manifest mental health improvements." (AC Exh. P) Although a letter exchange with plaintiff followed, no additional information on Goonewardena's psychological condition was given to Hunter and Goonewardena was not readmitted. On April 14, 2005, Linda Chin, legal counsel to President Raab wrote to Goonewardena, once again informing him that he could not be readmitted to Hunter or any CUNY college until he complied with the conditions imposed by the FSDC. (AC Exh. B at 1)
In July 2005, plaintiff commenced an Article 78 proceeding in Supreme Court, New York County, against the State of New York and CUNY. On January 3, 2006, Justice William A. Wetzel denied plaintiff's motion as untimely. Justice Wetzel further noted that all claims for monetary damages were dismissed as an improper remedy under Court of Claims Act § 9 and New York Education Law § 2264. On October 5, 2005, while the Article 78 proceeding was pending, plaintiff filed the Complaint in this action. Plaintiff filed the Amended Complaint on January 26, 2006.
The plaintiff's Amended Complaint is 26 pages is length. It purports to assert two claims. Count One is denominated as "Malicious and False Allegations". The plaintiff has disclaimed an intention to assert a claim under federal law in either Count One or Two, contending that "the Plaintiff did not state any State violations in his claim.[sic] This is a Federal law suit  Federal violations . . . ." (Docket 21 at 3). The substance of Count One is that he was accused of assaulting and staking Ms. Gonzalez when, in truth, his conduct does not meet the definition of "assault" or "stalking" as used in the New York Penal Law. The foregoing allegation states no cognizable claim under state or federal law and Count One is therefore dismissed.
Count Two is denominated a claim "For Discrimination on Disability." Generously read, it alleges more than claims of discrimination on the basis of disability and also contains, among other allegations, assertions that might be considered under section 1983 and Title VI. I will consider the facts as alleged in Count One in assessing the broad claim asserted in Count Two. For ease of understanding, I will assess Count Two- indeed, the entirety of the Amended Complaint- on the basis of the possible legal theories asserted.
Sprinkled throughout the Amended Complaint are allegations which include those asserting that plaintiff was discriminated against by Hunter College and the individual defendants based on his disability, race, color, national origin and religion. (AC ¶ 1) He alleges that he was wrongly suspended from Hunter by "White Americans" because of his "[r]ace (non-white), color (brown), religion (Buddhist), national origin (South Asian and born outside of the United States) and disability". (AC ¶¶ 20, 29) He further alleges that the suspension was the result of a hearing held "improperly without the accuser, accused and any witnesses." (AC ¶ 21)
Goonewardena alleges that letters from witnesses to plaintiff's alleged stalking of Gonzalez were not admissible at the disciplinary hearing as they were not notarized and that Escott's "actions were clearly discriminatory and a denial of due process" under the Fourteenth Amendment. (AC ¶ 27) He further contends that, as evidenced by the letters submitted to Hunter from Dr. Dashevsky, he has demonstrated that he is not a threat to himself or others and has therefore complied with the FSDC's requirement for his readmission. Plaintiff asserts that Hunter's refusal to readmit him or to remove the notation regarding his suspension ...