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Panzer-Senzer v. New York State Office for People With Developmental Disabilities

United States District Court, S.D. New York

November 3, 2017

JUDITH H. PANZER-SENZER, as Administrator of the Estate of RICHARD FRED PANZER, Plaintiff,

          OPINION & ORDER

          KATHERINE B. FORREST United States District Judge.

         On 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 IV-VI).

         Pending 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 are GRANTED.

         I. BACKGROUND

         The factual allegations below are drawn from plaintiffs' First Amended Complaint, (ECF No. 10), and presumed true for purposes of this motion.

         Panzer, 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. ¶ 11.)

         On 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. ¶¶ 12-13.)

         Panzer-Senzer 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.)

         At the 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.)

         On 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.”


         A. Pleading Standard

         Under 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).

         In 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.

         B. Eleventh ...

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