United States District Court, S.D. New York
JUDITH H. PANZER-SENZER, as Administrator of the Estate of RICHARD FRED PANZER, Plaintiff,
NEW YORK STATE OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES, JANE AND JOHN DOES 1-10, Defendants.
OPINION & ORDER
KATHERINE B. FORREST United States District Judge.
February 13, 2017, plaintiff Judith Panzer-Senzer
(“Panzer-Senzer” or “plaintiff”)
filed this lawsuit as administrator of her brother, Richard
Panzer's (“Panzer”), estate. Plaintiff seeks
relief under § 504 of the Rehabilitation Act, 29 U.S.C.
§ 794 (Claim I); 42 U.S.C. § 1983 for violations of
Panzer's Fourth and Fourteenth Amendment rights (Claim
II) as well as his substantive due process rights (Claim
III); and state common law claims of, inter alia,
negligence and infliction of emotional distress (Claims
before the Court are two motions to dismiss filed by
defendant Office for People with Developmental Disabilities
(“OPWDD”). (ECF Nos. 11, 15.) Together, the two
motions seek dismissal of all six of plaintiff's claims
as to OPWDD. For the reasons set forth below, those motions
factual allegations below are drawn from plaintiffs'
First Amended Complaint, (ECF No. 10), and presumed true for
purposes of this motion.
whose sister brings this action as administrator of his
estate, was a developmentally disabled senior citizen who had
the “mental functioning capacity of a young
child.” (Am. Compl. ¶ 7.) He could not read or
“make complex or adult decisions” and required
“close supervision at all times.” (Id.)
Panzer had resided in a facility licensed by OPWDD since
1958, when he was about twelve years old. (Id.
¶¶ 1, 11.) He lived there until 1990, when he
transferred to Pearl River Community Center, where he resided
until he became ill in October 2015. (Id. ¶
October 15, 2015, Panzer was taken to Nyack Hospital and
diagnosed with pneumonia. (Id. ¶ 12.) He stayed
there for a week and then spent just under two months in
physical therapy at Northern Manor Multicare Center.
(Id.) On December 11, 2015, Panzer was transferred
to Mount Ivy IRA, an OPWDD facility, where he allegedly
“received the worst care possible.” (Id.
claims that at Mount Ivy, her brother was “deprived of
food, water, medical treatment, hygienic care, and basic
human decency, ” and that he was “inhumanely
allowed to sit, bed ridden, for days without activity,
physical therapy, medical care, or changing of soiled
undergarments.” (Id. ¶ 13.) He allegedly
became “gravely ill” after this “deliberate
indifference to his medical condition” and was
transferred back to Nyack Hospital on December 21, 2015.
(Id.) One day later, Panzer died. (Id.)
time of Panzer's death, according to the Amended
Complaint, his “undergarments were so soiled with feces
and human waste that they had fused to his skin. The attempt
to remove the decaying undergarments caused his skin to tear.
He was malnourished and dehydrated . . . .”
(Id. ¶ 14.)
February 13, 2017, Panzer-Senzer initiated this action as the
administrator of Panzer's estate. She alleges that OPWDD
was supposed to “ensure [Panzer's] care and ensure
that safe practices were administered by staff at Mount
Ivy.” (Id. ¶ 15.) She further asserts
that defendants were “clearly aware” of
Panzer's “mental incapacity which prevented him
from demanding proper care, food, water, and medical
treatment, ” and that they “knew or should have
known about the deplorable care.”
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
defendant may move to dismiss a complaint for “failure
to state a claim upon which relief can be granted.”
Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion to
dismiss, a plaintiff must provide grounds upon which their
claim rests through “factual allegations sufficient
‘to raise a right to relief above the speculative
level.'” ATSI Commc'ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In
other words, the complaint must allege “‘enough
facts to state a claim to relief that is plausible on its
face.'” Starr v. Sony BMG Music
Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
applying that standard, the Court accepts as true all
well-pled factual allegations, but it does not credit
“mere conclusory statements” or “threadbare
recitals of the elements of a cause of action.”
Id. Furthermore, the Court will give “no
effect to legal conclusions couched as factual
allegations.” Port Dock & Stone Corp. v.
Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007)
(citing Twombly, 550 U.S. at 555). If the Court can
infer no more than the mere possibility of misconduct from
the factual averments-in other words, if the well-pled
allegations of the complaint have not “nudged
[plaintiff's] claims across the line from conceivable to
plausible”-dismissal is appropriate. Twombly,
550 U.S. at 570.