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D.K. v. Teams

United States District Court, S.D. New York

July 5, 2017

D.K., by her guardian L.K.; Z.O., by her guardian B.M.; and B.R., by her guardian C.R., Plaintiffs,

          OPINION & ORDER

          PAUL A. ENGELMAYER, District Judge

         Plaintiffs here are three people with developmental disabilities, each of whom is nonverbal, and each of whom has lived for many years at the "Union Avenue IRA, " a Bronx facility operated by the New York State Office for People with Developmental Disabilities ("OPWDD"). These plaintiffs-D.K., by her guardian L.K., Z.O., by her guardian B.M., and B.R., by her guardian C.R.-claim that their rights were violated in connection with allegedly deficient care and years of physical abuse at the Union Avenue IRA. They bring this action against staff workers at the Union Avenue IRA and their supervisors under 42 U.S.C. § 1983; § 504 of the Rehabilitation Act, 29 U.S.C. § 794; Title II of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq.; the Fair Housing Act, 42 U.S.C. § 3604(f)(2), and state law.

         Defendants Tiffany Teams, Sharnell Tucker, Lashonda Conner, Daphne McKelvey, Elizabeth Gonzalez, Sheila Linder, Jonathan Peyton, Cheryl Minter-Brooks, and Kerry A. Delaney now move to dismiss under Federal Rules of Civil Procedure 12(b) and 12(c). They argue that sovereign immunity deprives the Court of jurisdiction under Rule 12(b)(1); that plaintiffs fail to state claims under Rule 12(b)(6); and, as to defendants Conner and Linder, who answered the complaint rather than moving to dismiss, that they are entitled to judgment on the pleadings under Rule 12(c).

         For the following reasons, the Court denies the motions to dismiss, while narrowing the scope of plaintiffs' § 1983 claims to eliminate a theory of conspiracy liability.

         I. Background

         A. Factual Allegations[1]

         1. The Developmentally Disabled Plaintiffs

         D.K., Z.O., and B.R. are individuals with developmental disabilities who reside at a facility known as the “Union Avenue IRA”[2] in the Bronx, which is operated by OPWDD. AC ¶¶ 2, 13-18. Each plaintiff is “non-verbal” and has been seriously disabled either her entire life or since 18 to 24 months of age. Id. ¶¶ 41-46. As of October 26, 2016, when the AC was filed, D.K. was 47 years old and had resided at the Union Avenue IRA since 1992; Z.O. was 48 years old and had resided at the Union Avenue IRA since the late 1990s; and B.R. was 35 years old and has resided at the Union Avenue IRA since around 2001. Id. ¶¶ 13, 15, 17, 41-46. This lawsuit is brought by legal guardians on behalf of each plaintiff; L.K. is D.K.'s sister, B.M. is Z.O.'s sister, and C.R. is B.R.'s father. Id. ¶¶ 14, 16, 18.

         2. Defendants' Positions and Responsibilities

         Defendants were employed by OPWDD in various capacities. The AC sorts them into three groups. The “Staff Defendants” group consists of Teams, Tucker, Linton, Conner, Goodwin, and McKelvey, plus John/Jane Does Nos. 1-5. Id. ¶ 30. Teams, Tucker, Linton, and McKelvey were employed as Direct Support Assistants at the Union Avenue IRA, id. ¶¶ 19-21, 24; Conner and Goodwin were each employed as a Developmental Assistant 1 at the Union Avenue IRA, id. ¶¶ 22-23.

         The “Supervisor Defendants” group consists of Gonzalez, Linder, and Peyton, plus John/Jane Does Nos. 6-10. Id. ¶ 31. At the Union Avenue IRA, Gonzalez was employed as a Developmental Assistant 1, with responsibility to supervise other staff, id. ¶ 27, Linder was employed as a Developmental Assistant 2, with responsibility to manage and supervise other staff, id. ¶ 28, and Peyton was employed as a Social Worker Assistant 3, with responsibility to manage and supervise other staff, id. ¶ 29.

         Finally, the “OPWDD Defendants” group consists of White, Minter-Brooks, and Delaney. Id. ¶ 35. White was the Deputy Director of the Metro New York Developmental Disabilities State Operations (“DDSO”) Office, with responsibility for development and monitoring of OPWDD systems improvement, overseeing the provision of services to developmentally disabled people, recordkeeping, and promoting best practices at OPWDD facilities in the Bronx and Manhattan, including at the Union Avenue IRA. Id. ¶ 32. Minter-Brooks was the Region 5 Director of OPWDD, with responsibility for development and monitoring of OPWDD systems improvement, overseeing the provision of services to developmentally disabled people, recordkeeping, and promoting best practices at OPWDD facilities in New York City, including the Union Avenue IRA. Id. ¶ 33. Delaney was the Acting Commissioner of OPWDD, responsible for developing, implementing, and overseeing OPWDD policies and practices throughout New York State, including at the Union Avenue IRA. Id. ¶ 34.

         3. The Initial Reports and Evidence of Abuse of Plaintiffs

         In or before 2011, plaintiffs' families started to suspect that plaintiffs were suffering mistreatment at the Union Avenue IRA. They noticed unexplained bruises, lacerations, and other injuries on each plaintiff. See, e.g., id. ¶¶ 48-50 (D.K.), 52-56 (Z.O.), 58-66 (B.R.). For example, in July 2011, C.R. was called by a Union Avenue IRA staff member and notified that “a staff member had pulled B.R.'s hair because B.R. was taking a nap on a couch that staff wanted to use”; in that call, “[t]he staff member told C.R. that abuse of residents by staff at the Union Avenue IRA was widespread.” Id. ¶ 58. After C.R. reported this information to an OPWDD Acting Deputy Director, a Union Avenue IRA supervisor conducted an investigation, met with staff at the Union Avenue IRA, and issued a report to the staff, “to apprise them of the situation and to remind them that abuse of our individuals will not be tolerated.” No staff member was disciplined as a result of the supervisor's investigation. Id. ¶¶ 60-61.

         In summer 2014, D.K., Z.O., and B.R. were each treated at a hospital for black eyes. Id. ¶ 67. On May 17, 2014, B.R. woke up with a blue and purple bruise under her left eye. Id. ¶ 68. Gonzalez was the supervisor on duty at the time; she informed C.R. that B.R. had been taken to the emergency room of Lincoln Hospital after having awakened that day with the black eye and that B.R. had been examined by a doctor at the hospital. Id. ¶ 69. Hospital staff, however, later explained to C.R. that B.R. had been sent home before being seen by a doctor. Id. ¶ 70. Later, on May 27, 2014, a different supervisor called C.R. and explained that B.R.'s injury had been “upgraded” to an allegation of physical abuse. The supervisor “explained that B.R. had been punched in the face by an OPWDD employee in front of witnesses.” Id. ¶ 71. Investigators later determined that B.R. had been punched by a staff member, although they could not determine who hit her because the witnesses' stories and recantations were in conflict. Id. ¶ 72.

         On August 5, 2014, Peyton contacted L.K. to inform her that D.K.'s eyes were discolored, explaining that the discoloration had been caused by “allergies” and that D.K. had possibly been rubbing her eyes out of discomfort. Id. ¶ 74. After Peyton's phone call, however, L.K. received messages at her home and on her cell phone indicating that the claim that the eye discoloration was caused by “allergies” was false and that D.K.'s eye injury had been caused by an assault. Id. ¶ 75. L.K. then traveled to Lincoln Hospital, where D.K. had been taken for treatment; upon seeing D.K., L.K. “could immediately tell that D.K. had a black eye.” Id. ¶¶ 76- 77. In addition, McKelvey had been D.K.'s escort from the Union Avenue IRA to Lincoln Hospital; Lincoln Hospital staff told L.K. that McKelvey had “spoke[n] to D.K. in a verbally abusive manner and ‘violently pushed the patient.'” Id. ¶¶ 78-79. The hospital staff also reported this incident to Peyton and Linder. Id. State investigators investigated this incident and, after interviewing witnesses, determined that McKelvey “had abused and neglected D.K. at Lincoln Hospital.” Id. ¶ 80. Months later, state authorities determined that D.K.'s black eye had been caused by Tucker, “who punched D.K. in the back and pushed her against a bathroom wall at the Union Avenue IRA” on July 29, 2014, a week before D.K. had been taken to Lincoln Hospital. Id. ¶¶ 81-83.

         On August 15, 2014, Z.O. also sustained a black eye and was taken to the hospital, where she was treated and observed for roughly 13 hours. Id. ¶¶ 84-85. After this incident, state investigators reported “that a Union Avenue IRA staff member had witnessed . . . Tucker push Z.O. in the shower that day. . . . Tucker had then ‘pointed out' the mark on Z.O.'s eye.” Id. ¶ 86.

         4. The Whistleblower's August 2014 Letter to White

         On August 20, 2014, a staff member at the Union Avenue IRA (the “whistleblower”) anonymously sent a letter to White “detailing the abuse of disabled residents by OPWDD staff.” Id. ¶¶ 88-89. The letter explained to White that Union Avenue IRA staff, including Tucker, Teams, Linton, Linder, Conner, and Goodwin, “‘abused and beat consumers' openly at the Union Avenue IRA, ” and that “Peyton and Linder ‘cover[] up every and anything that goes on' at the facility and ‘are fully aware of the abuse and even know who the abusers are.'” Id. ¶¶ 90- 91. The letter stated that Linton had punched B.R. in the face, resulting in a black eye, and that the whistleblower, along with another staff member, had observed that incident; however, the whistleblower wrote, he/she and the staff member were “too afraid to confess it was Deena [sic] Linton, ” and that “Linton [had] intimidated other staff members into blaming the incident on another staff member[.]” Id. ¶ 92. The whistleblower stated that he or she had “personally reported” Linton's behavior to Peyton and Linder and “was told it would be taken care of” but that “nothing was done.” Id. ¶ 93. Further, the whistleblower wrote, Linder often invited a former staff member to spend time at the Union Avenue IRA even though this staff member had been banned from the facility for physically abusing residents; the letter stated that “ALL of the staff sees him com[e] and no one turns him away.” Id. ¶ 94.

         The whistleblower's letter detailed instances of abuse by various defendants and lapses by supervisors in supervising staff members and responding to instances of abuse by staff members. The letter stated that Linder-despite acknowledging that the banned former staff member had “bust[ed]” a disabled resident's eardrum-had left this individual alone with residents at the Union Avenue IRA while Linder ran errands. Id. ¶ 95. The letter also stated that another staff member had “hit a resident in the head, causing an injury that required staples, ” and that Linder had “instructed [the staff member] not to come to work the next day to cover it up.” Id. ¶ 100.

         Among other instances of abuse, the letter described a staff member's punching a resident in the stomach and another's slapping a resident in the face, and reported that Peyton consumed alcohol while working and “comes to work drunk.” Id. ¶¶ 101-04. The letter also stated that the black eye for which D.K. had been treated at Lincoln Hospital on August 5, 2014 had “c[o]me from Sharnell Tucker punching her in the back and her face hit the wall”; that Teams had “pulled D.K.'s hear and ‘spit directly in her face'”; and that Teams had denied food to residents. Id. ¶¶ 97-99. The letter stated that Conner had kicked Z.O. “in the legs to the point where they swelled up like balloons.” Id. ¶ 106. The letter also stated that “Goodman, Conner, and Linder hit, kicked, and punched B.R.” Id. ¶ 105.[3] As summarized by the AC, the letter stated those three defendants “‘don't like' B.R.-a disabled resident in their care who has the intellectual functioning of a toddler-‘because she shows off in front of her dad and drinks from everybody['s] cups and bottles.'” Id. The letter closed with a plea to White: “I hold you Ms. Joyce White responsible for getting these people of God Justice. May God have mercy on your soul. I did my part as a trainee; I think it is in order for you to DO YOURS.” Id. ¶ 109. The AC alleges, however, that neither “White nor any other OPWDD administrator took any action in response to the letter for more than three weeks.” Id. ¶ 110.

         5. Continued Abuse of Plaintiffs After the Whistleblower's Letter

         The AC alleges that abuse at the Union Avenue IRA continued after the whistleblower's letter was received. On August 27, 2014, D.K. was taken to Lincoln Hospital for injuries to her right knee and hip, which staff claimed were the result of a fall she sustained in the shower, even though D.K.'s hair was dry when L.K. arrived at the hospital to visit D.K. Id. ¶¶ 112-13. An internal investigation determined that the bathroom floor had been very slippery and that Teams and Tucker had used a detached showerhead “like a hose while showering the service recipients” in “assembly line showering” practices, and that Teams and Tucker used this practice regularly. Id. ¶ 114. On September 1, 2014, Z.O sustained bruises and swelling to her legs, injuries that state investigators later determined were the result of “being kicked repeatedly by Defendant Conner.” Id. ¶ 119-20. The investigators also noted that even though “the whistleblower ‘had already written the anonymous letter to Deputy Director Joyce White[, ] no action was taken to protect the individuals at Union Ave.'” Id. ¶ 121.

         6. The Whistleblower's September 2014 Letters to Plaintiffs' Relatives

         On or about September 12, 2014, the same whistleblower sent letters directly to L.K., B.M., and C.R. Id. ¶ 122. These letters repeated, and added detail to, many claims in the August 20, 2014 letter to White. Id. ¶ 124. As to D.K., the letter sent to L.K. stated that Teams and Tucker make D.K. sit in a corner away from other residents and deny her food, that Tucker was responsible for D.K.'s black eye, and that Peyton and Linder “are aware of the abuse and cover[] it up.” Id. ¶¶ 125-27. As to Z.O., the letter to B.M. stated that Z.O.'s black eye “came from Sharnell Tucker who is still working there with her, ” that “Lashonda Conner beats on [Z.O.] also and kicks her, ” that Goodwin “covered up [Z.O.] being cut in the toe by Tiffany Teams and Sharnell Tucker, ” that “Sheila Linder and Jonathan Peyton cover[] up everything that goes on in there.” Id. ¶¶ 128-31. As to B.R., the letter to C.R. stated that Goodwin, Teams, and Linton punched B.R, that Linton was “responsible for B.R.'s May 2014 black eye, ” and that Peyton was often drunk at work and that Linder was sexually abusing residents. Id. ¶¶ 132-35.

         7. The OPWDD's Investigation and Report on the Abuse Allegations

         After receiving these letters, L.K., B.M., and C.R. demanded that OPWDD conduct an investigation. Id. ¶ 137. OPWDD began an investigation and placed the staff members named in the whistleblower's letter on administrative leave and removed them from contact with residents. Id. ¶ 138. The investigation was led by the New York State Justice Center for the Protection of People with Special Needs. Id. ¶ 140.

         The investigation, which resulted in a report, found, among other things, the following.

         It found that between February 2014 and August 2014, Teams had pulled D.K.'s hair and spat on her face, id. ¶ 141; that, on July 29, 2014, Tucker had punched D.K. in the back and pushed her against a bathroom wall, id. ¶ 142; that McKelvey had grabbed D.K. and forcibly sat her in a seat and spoke to her in an abusive manner during D.K.'s August 5, 2014 visit to Lincoln Hospital, id. ¶ 143; that Teams and Tucker had ordered Z.O. and B.R. to wait naked on their beds to be showered, that Z.O. and B.R. “would comply [with this directive] out of fear, ” and that Teams and Tucker had used cold water to bathe D.K and Z.O., id. ¶ 144; that Tucker had given Z.O. a black eye on August 15, 2014 by pushing her in the shower, id. ¶ 145; that, on September 1, 2014, Conner had “repeatedly struck and/or kicked” Z.O. “throughout the day, ” resulting in bruising and swelling of Z.O.'s legs, id. ¶ 146; and that a staff member had punched B.R. in the face on May 16, 2014 because B.R. had coughed while the staff member was trying to administer her medication, causing a black eye, although the investigation could not determine the identity of the staff member responsible, id. ¶¶ 151-52.

         The investigation also found that Union Avenue IRA staff members had reported the physical abuse to Gonzalez, their supervisor, but that Gonzalez had responded that staff members should not worry and that “nothing more was going to happen.” The investigators' report stated that Gonzalez had admitted to investigators that she had directed that B.R. be brought back to the Union Avenue IRA from the Lincoln Hospital emergency room without seeing a doctor. Id. ¶¶ 152-54. The report stated that a different staff member, who had heard about B.R.'s having been punched on May 16, 2014, had reported the incident to Peyton and Linder after Gonzalez did not act, and Peyton and Linder summoned a different staff member who apparently had witnessed the punching. Id. ¶ 156. The report stated that that staff member had confirmed to Peyton that she had punched B.R., but that the staff member had refused to complete a written statement out of fear of potential repercussions. Id. ¶ 157. The report further stated that Linder, when interviewed, described the meeting with the staff member who had apparently witnessed the punching incident as hostile and argumentative, and as not conclusively establishing that the witness had seen the punching. The report stated that Linder, when confronted about Peyton's statement to investigators that the witness had reported seeing the punching but refused to put this in writing out of fear of reprisal, stated that “the noise from the arguing was too loud and that she did not hear anything.” Id. ¶ 158.

         The investigation also found that Tucker and Teams had withheld food from plaintiffs, and that Tucker and Teams did not feed Union Avenue IRA residents and discarded their food as punishment. Id. ¶ 161. The report also found that Tucker and Teams frequently denied plaintiffs their scheduled evening snacks “because they do not deserve it.” Id.

         The investigation also found that nurses and other medical personnel at the Union Avenue IRA had medically neglected plaintiffs. Id. ¶ 163. Lapses included repeatedly failing to schedule medically indicated doctors' appointments, including with neurologists, gynecologists, otolaryngologists, and dentists; failing to administer necessary blood tests to B.R. in connection with psychotropic drugs prescribed to her; administering expired medication to B.R. and assigning medication to Z.O. that had belonged to another resident; and to have falsified documents related to D.K.'s and Z.O.'s medical care. Id. ¶¶ 163-67. The investigation found, based on interviews of Union Avenue IRA staff and residents including Peyton, that “body checks of residents ‘are not routinely reviewed or monitored by supervisory staff' and ‘did not occur on a consistent basis.'” Id. ¶ 172.

         8. The 2015 “Early Alert” Notice of Compliance Deficiencies

         On or about March 16, 2015, Minter-Brooks received a letter from OPWDD Deputy Commissioner Megan O'Connor-Hebert. It stated that the Metro New York DDSO Office- overseen by White, Minter-Brooks, and Delaney-was being placed on “Early Alert, ” meaning that there were serious deficiencies in its operations. Id. ¶ 184. The letter stated that the Metro New York DDSO Office “‘has been unable to sustain compliance with applicable laws and regulations' and had received no fewer than ‘eight 45 day letters'-letters issued by OPWDD Division of Quality Improvement inspectors repeatedly noting serious and persistent concerns with agency operations-in the year between March 2014 and March 2015.” Id. ¶ 185. The letter stated that that OPWDD was concerned with the “lack of compliance” in eight areas, including protective oversight, staff training, and incident management. Id. ¶ 186. As used in the letter, “protective oversight” means “protecting residents . . . from physical abuse and neglect;” “staff training” “includes training staff not to abuse or neglect residents;” and “incident management” means “ensuring that potential abuse and neglect is reported, properly investigated, and if substantiated, that appropriate discipline is given.” Id. ¶ 187. The AC alleges that the OPWDD Division of Quality Assurance, in fact, wrote repeatedly to Minter- Brooks to advise her, in the words of the AC, “that she was failing in all of these areas necessary to protect D.K., Z.O. and B.R.'s safety.” Id. ¶ 188.[4]

         9. The Plaintiffs' February/March 2016 Head Injuries

         In 2016, each plaintiff sustained unexplained head wounds within a roughly one-month period. Id. ¶ 190. On or about February 12, 2016, an inspection of B.R. revealed a gash in her scalp; she was taken to the emergency room at Montefiore Hospital for treatment. Id. ¶ 191. On or about February 23, 2016, Z.O. was taken to the emergency room at Montefiore Hospital for treatment of a laceration to her head; although Union Avenue IRA supervisors could not explain the origin of the injury, they admitted it was the result of staff misconduct. Id. ¶¶ 193-94. On or about March 9, 2016, D.K. also suffered a gash on her head at the Union Avenue IRA, an injury that went unexplained. Id. ¶¶ 196-97.

         10. The May 2016 Inspection

         On May 17, 2016, state regulators from OPWDD's Division of Quality Improvement inspected the Union Avenue IRA. Id. ¶ 212. After the inspection, that division sent Minter-Brooks a letter stating that the inspection had “determined that the facility is not in compliance with New York State regulatory requirements to operate an IRA.” Id. The results of the inspection, which were given to Minter-Brooks, “identified serious and/or systemic deficiencies” at the facility, “including in the areas of protective oversight, incident management, physical plant, personal allowance management, staff training, behavior management, and habilitation services.” Id. ¶ 213. The inspectors found that 23 reports of abuse, neglect, or mistreatment had been made between September and December 2014 on the floor on which plaintiffs reside in the Union Avenue IRA. Id. ¶ 214. And, the inspectors found that the Union Avenue IRA “failed to show that any of the systemic concerns noted during the investigations of these allegations have been addressed.” Id.

         11. The August 2016 Inspection

         On August 10, 2016, the OPWDD Division of Quality Improvement's inspectors conducted a return visit to the Union Avenue IRA, to determine whether the facility “had achieved regulatory compliance through the effective implementation of plans of corrective action that had been submitted in response to the May 17, 2016 statement of deficiencies.” Id. ¶ 216. The inspection found that, as to the floor on which the three plaintiffs reside, “‘serious and/or systemic deficiencies remain' in all of the areas cited in the previous inspection.” Id. ¶ 217. The inspection warned that “[c]ontinued authorization of the program/service cannot be considered until we have verified that identified deficiencies have been corrected, and the agency is operating in compliance with applicable regulations.” Id. ¶ 218. And, despite the earlier findings of “systemic issues”-involving program services, physical plant maintenance, training, incident management, individuals' rights, policy, insufficient monitoring and documentation, and lack of administrative oversight-the inspectors on the return visit found that nothing had been done “to fix these problems.” Id. ¶ 219. The August 2016 inspection also found that the Union Avenue IRA's review committee had failed to implement the recommendations stemming from earlier investigations aimed at “prevent[ing] future and similar events of abuse and neglect.” Id. ¶ 220.

         12. Substandard Quality of Care

         In light of the above allegations, the plaintiffs allege in the AC that the Union Avenue IRA-managed or overseen by the Supervisor Defendants and the OPWDD Defendants-“has been so brazenly and wantonly mismanaged and incompetently run over a period of several years that it does not even meet New York State's own minimum requirements to provide care to the disabled.” Id. ¶ 223.

         B. Procedural History

         On May 2, 2016, plaintiffs filed an initial Complaint. Dkt. 1. The Court granted several requests for extensions of time by the New York State Attorney General (“NYAG”) on behalf of defendants, see Dkts. 20-22, 24-26, 36, to enable it to determine whether it could represent the defendants. On August 22, 2016, the NYAG determined that it could not. Dkt. 36.

         On August 31, 2016, Peyton and White filed motions to dismiss. Dkts. 50-51, 54-56. On September 1, 2016, McKelvey filed a motion to dismiss. Dkts. 57, 59. On September 14, 2016, Minter-Brooks, Delaney, and Gonzalez filed answers. Dkts. 74-75, 78. On October 9, 2016, Goodwin filed an answer and crossclaim against the other defendants for contribution and indemnification. Dkt. 111. On October 12, 2016, Tucker and Teams filed answers. Dkts. 118, 119. On October 7, 2016, the Court held an initial conference, ordered that limited documentary discovery be ...

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