United States District Court, D. Connecticut
RULING AND ORDER
R. Underhill United States District Judge
December 22, 2015, the plaintiffs, Shereen Edelson and Arnold
Menchel, acting on their own behalf and also on behalf of
their disabled adult son, Robert Menchel, filed this action.
The complaint alleges that the defendants, Chapel Haven, Inc.
and Michael Storz (collectively “the Chapel Haven
defendants”) and the Connecticut Department of
Developmental Services (“DDS”), Mona Murray, the
Connecticut Department of Social Services
(“DSS”), and Roderick Bremby (collectively,
“the State defendants”), violated various state
and federal laws when they terminated Robert's access to
care at Chapel Haven. (doc. 1) On March 15, 2015, both sets
of defendants filed motions to dismiss the complaint. (docs.
25, 26) In response, the plaintiffs filed an amended
complaint on April 4, 2016 (the “complaint” or
“amended complaint”). (doc. 29) The State
defendants move to dismiss portions of the five counts
against them for lack of subject matter jurisdiction and move
to dismiss the remainder for failure to state a claim. (doc.
34) The Chapel Haven defendants move to dismiss eleven of the
fifteen claims against them for failure to state a claim.
following reasons, the defendants' motions are granted in
part and denied in part.
Standard of Review
Motion to Dismiss for Lack of Subject Matter
party who seeks to invoke a court's jurisdiction bears
the burden of establishing that jurisdiction. Thompson v.
Cnty. of Franklin, 15 F.3d 245, 249 (2d Cir. 1994)
(citing Warth v. Seldin, 422 U.S. 490, 518 (1975)).
To survive a motion brought under Rule 12(b)(1), a plaintiff
must allege facts demonstrating that the plaintiff is a
proper party to seek judicial resolution of the dispute.
Motion to Dismiss for Failure to State a Claim Upon Which
Relief May Be Granted
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6) is designed “merely to assess the legal
feasibility of a complaint, not to assay the weight of
evidence which might be offered in support thereof.”
Ryder Energy Distribution Corp. v. Merrill Lynch
Commodities, Inc., 748 F.2d 774, 779 (2d Cir. 1984)
(quoting Geisler v. Petrocelli, 616 F.2d 636, 639
(2d Cir. 1980)).
deciding a motion to dismiss pursuant to Rule 12(b)(6), the
court must accept the material facts alleged in the complaint
as true, draw all reasonable inferences in favor of the
plaintiffs, and decide whether it is plausible that
plaintiffs have a valid claim for relief. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009); Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555-56 (2007); Leeds v.
Meltz, 85 F.3d 51, 53 (2d Cir. 1996).
Twombly, “[f]actual allegations must be enough
to raise a right to relief above the speculative level,
” and assert a cause of action with enough heft to show
entitlement to relief and “enough facts to state a
claim to relief that is plausible on its face.” 550
U.S. at 555, 570; see also Iqbal, 556 U.S. at 679
(“While legal conclusions can provide the framework of
a complaint, they must be supported by factual
allegations.”). The plausibility standard set forth in
Twombly and Iqbal obligates the plaintiff
to “provide the grounds of his entitlement to
relief” through more than “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action.” Twombly, 550 U.S. at 555
(quotation marks omitted). Plausibility at the pleading stage
is nonetheless distinct from probability, and “a
well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of [the claims] is improbable, and .
. . recovery is very remote and unlikely.” Id.
at 556 (quotation marks omitted).
following facts are taken from the amended complaint. Robert
Menchel is an intellectually and developmentally disabled
adult. Am. Compl. at ¶ 8. Shereen Edelson and Arnold
Menchel are Robert's parents, guardians, and the
co-conservators of his estate. Id. at ¶ 9.
Chapel Haven provides services to developmentally disabled
adults, and Michael Storz serves as the president of Chapel
Haven. Id. at ¶¶ 10-11. DSS is the agency
designated with ensuring Connecticut's compliance with
Medicaid requirements. Id. at ¶ 12. DSS has
delegated to DDS the provision of home and community-based
services for Medicaid recipients. Id. at
¶¶ 13, 51. Bremby and Murray are the respective
Commissioners of DSS and DDS, and have been named only in
their official capacities. Id.
Haven markets itself as offering a “unique”
program of lifelong and individualized services. Id.
at ¶¶ 22-23. In its Community Member Handbook,
Chapel Haven states that it provides a lifelong program of
care. Id. at ¶ 60. The Handbook also provides
that members have the right to be free from abuse and
discrimination, and would only be terminated for enumerated
reasons. Id. at ¶¶ 64-65.
has received services from Chapel Haven since 2000, and has
participated in its Supported Living program since 2002.
Id.at ¶ 27. Chapel Haven, through unidentified
means and at an unidentified time, represented to the
plaintiffs that it would assist Robert in all aspects of his
life as he grew older. Id. at ¶ 61. In 2011,
the parent-plaintiffs purchased a condominium unit for Robert
within walking distance of the Chapel Haven campus, because
Robert is unable to drive. Id. The amended complaint
does not state where Robert was living or how he was
accessing the campus between 2000 and 2011. The
parent-plaintiffs also live in close proximity to the Chapel
Haven campus. Id. at ¶¶ 20-21.
to his termination, Chapel Haven was providing Robert with 17
hours of individualized home support services and 22 hours of
job support services per week. Id. at ¶ 28.
Rosemary Williams, a Chapel Haven employee, provided
Robert's home care services for over fourteen years.
Id. at ¶¶ 29-34. Beginning in 2006, Robert
worked for 20 hours a week at the naval base in Groton with
the help of Chapel Haven's job support services, which
included transportation to the base in a group van.
Id. at ¶¶ 38, 40.
State Involvement in Robert's Care
services that Robert received from Chapel Haven were paid for
using federal funds through the Medicaid waiver program.
Id. at ¶ 53. In order to receive payments from
the Medicaid waiver program, Chapel Haven entered into an
agreement with DDS to, inter alia, follow all
requirements in the Waiver manual; obtain adequate
information to meet the needs of the recipient; discharge a
recipient only after review by an interdisciplinary
team meeting and approval of the Regional Administration; and
obtain prior approval from DDS before changing any support
hours to any recipient. Id. at ¶ 59.
to that agreement, the plaintiffs allege that DDS
“actively participated and acted in concert with Chapel
Haven” in two primary ways: (1) DDS was required to,
and actually did approve of any changes to Robert's plan
of care, including termination; and (2) Robert was assigned a
DDS case manager who worked jointly with Chapel Haven.
See Id. at ¶¶ 66-70. The plaintiffs allege
that on several occasions, DDS also conducted investigations
of Chapel Haven to ensure that it complied with federal
regulations and issued several citations for failures to do
so. Id. at ¶ 95.
Events Leading Up to Termination
had previously formed a relationship with another Chapel
Haven member, Client A. Id. at ¶ 71. Client A
pays Chapel Haven privately for the services she receives
instead of using Medicaid funding. Id. at ¶ 73.
Chapel Haven makes more money from private paying members
than Medicaid members. Id. Client A's parents
have also donated substantial amounts of money to Chapel
Haven. Id. at ¶ 74.
A developed an unhealthy attachment to Robert and exhibited
serious behavioral problems including high levels of anxiety,
temper tantrums, threats to a family pet, pounding on the
walls of Robert's apartment, and persistent harassment of
Robert. Id. at ¶¶ 76-80. The
parent-plaintiffs repeatedly informed Chapel Haven about
Client A's conduct and asked for assistance. Id.
at ¶¶ 81, 89, 90. Chapel Haven failed to follow its
internal complaint procedures or to properly supervise Client
A. Id. at ¶ 91. Robert's DDS case manager
also participated in meetings in which Client A's conduct
was discussed, and informed the plaintiffs that another DDS
case manager was managing Client A. Id. at
¶¶ 82-84. DDS did not take steps to control Client
A. Id. at ¶ 86.
A's unchecked and increasing harassment interfered with
Robert's ability to receive and benefit from individual
home and job support services. Id. at ¶¶
87-88. By late 2013, Client A had moved her belongings into
Robert's condominium. Id. at ¶ 96.
Robert's neighbors repeatedly called the
parent-plaintiffs to complain about Client A's disruptive
conduct, and the plaintiffs, in turn, repeatedly requested
that Chapel Haven and DDS intervene. Id. at
Haven and DDS then implemented a “Code Red”
procedure, in which Robert was instructed to call one of
three Chapel Haven employees if Client A became disruptive.
Id. at ¶ 101. The plaintiffs assert that the
“Code Red” procedure was not practicable because
Robert's disabilities would prevent him from being able
to make that call, and that Chapel Haven and DDS would have
known that the procedure had that flaw. Id.at
¶¶102-04. After the procedure was implemented, the
plaintiffs repeatedly requested modifications to the
procedure, including allowing others to initiate the
procedure. Id. at ¶¶105, 109. Chapel Haven
and DDS refused those requests. Id. at ¶ 110.
August 6, 2014, while Robert's visiting nurse was
administering his diabetes medications, Client A began
provoking Robert. Id. at ¶¶ 115-16. The
nurse told Client A to stop. Id. at ¶ 117.
Robert became frustrated with Client A, and “an
altercation followed.” Id. at ¶¶
118-19. The nurse then intervened to separate Robert and
Client A. Id. at ¶ 120. Client A, however,
refused to leave Robert's condominium for another five
days. Id. at ¶ 123. The parent-plaintiffs wrote
to Chapel Haven through counsel proposing a
“collaborative approach” to removing Client A
from the apartment. Id. at ¶ 124. Getting no
response, they wrote a second letter threatening to
“evict” Client A. Id. at ¶ 126.
Although Chapel Haven did not respond, it did remove Client A
and her belongings from the premises. Id. Sunny
Richards, Chapel Haven's Director of Community Programs
subsequently called Robert directly to confront him over the
August 6 incident. Id. at ¶ 127. Robert was
very distressed by the call. Id. at ¶ 128-29.
on August 15, 2014, as a result of the stress of the August 6
incident and its aftermath, Robert was hospitalized for seven
days. Id. at ¶ 129. Prior to his discharge, a
pre- discharge meeting was held with Edelson, Robert's
DDS case manager, the visiting nurse supervisor, the hospital
psychiatrist, and Richards. Id. at ¶ 130. The
psychiatrist recommended that Robert receive modifications to
his supports and opined that Robert's hospital admission
had been precipitated by Client A's conduct. Id.
Richards again refused to change the Code Red procedure to
allow others to initiate. Id. at ¶ 131.
Robert's discharge, the plaintiffs requested six specific
modifications: (1) additional support hours; (2) that Roberts
be dropped off from work at his condominium rather than on
campus; (3) that the driver of the van ensure that Robert and
Client A do not sit near each other in the van; (4) that
Robert and Client A's support coordinators ensure that
they do not run into each other at the supermarket; (5)
allowing all competent authorities to contact Chapel Haven in
the case of Client A's misbehavior; and (6) that Client A
not be present at Robert's condominium. Id. at
¶ 132. The hospital supported those requests.
Id. at ¶ 133. Chapel Haven did not directly
respond to the parent-plaintiffs' requests. It did,
however, provide additional support hours for two days, and
began dropping off Robert directly at his condominium.
Id. at ¶ 134-35.
August 27, 2014, Chapel Haven notified the plaintiffs that it
was terminating all services to Robert, banning him from the
campus, and dismissing him from the Chapel Haven program as
of October 1, 2014. Id. at ¶ 138. The
plaintiffs assert that they were given no process and that
the stated reason for termination was “false and
pretexual” and inconsistent with the grounds for
termination in Chapel Haven's Handbook, although they do
not disclose what that reason was. Id. at
Haven and DDS did not inform the plaintiffs of their right to
have an interdisciplinary team meeting to review the
termination, as provided in Chapel Haven's Agreement with
DDS, nor the right to seek a Programmatic Administrative
Review (“PAR”) with DDS, nor the right to a
“fair hearing” under the Medicaid statute.
Id. at ¶ 147. Nevertheless, the plaintiffs
learned of their right to a PAR, and requested such a
meeting. Id. at ¶ 148.
October 1, 2014, a PAR was held. Id. at 149. It was
attended by the plaintiffs and counsel, Robert's DDS case
manager, Richards, and DDS employees and attorneys.
Id. DDS employees apologized for miscommunications
regarding five additional hours of support that had been
authorized on September 30, 2014. Id. at ¶ 150.
Chapel Haven agreed to make the requested modifications, and
to continue providing services to Robert. Id. at
¶ 152-53. Chapel Haven also agreed to “next steps,
” including additional staff, a male mentor for Robert,
a plan for the use of the additional hours, and exploration
of counseling options. Id. at ¶ 154. The group
agreed that it would reconvene in six to eight weeks.
Id.at ¶ 155.
next day, however, Storz contacted DDS without notifying the
plaintiffs. Id. at ¶ 156. He stated that Chapel
Haven would not make the modifications to which it had
agreed, and would persist in terminating Robert's
services. Id. He also made false statements about
Robert's prior conduct and diagnoses, and asserted that
the police should have been called about Robert's conduct
with Client A. Id. at ¶¶ 157, 163.
unclear when or how Chapel Haven communicated its intent to
persist in terminating Robert's services to the
plaintiffs. The amended complaint suggests that Chapel Haven
provided them with a statement of reasons insofar as it
alleges that the reasons given are “false and
pretextual, ” but it does not state what those reasons
were. See Id. at ¶ 165. It is also unclear to
what extent Chapel Haven provided the agreed-upon
modifications in the interim, because the complaint alleges
that Robert did receive additional support hours before his
termination. See Id. at ¶ 186. The timeline is
further confused by the plaintiffs' allegation that
Williams, Robert's long-time caregiver, was given only
24-hours' notice of her last day working with Robert.
See Id. at ¶¶ 35-37. That timeline appears
to be inconsistent with the plaintiffs' allegation that
DSS denied their request for a fair hearing to contest the
termination in June 2015, id. at ¶ 11, but
services were not actually terminated until August 1, 2015,
id. at ¶ 184, giving Williams over a
termination has caused Robert to lose the support and
services of Williams-who is effectively bound to Chapel Haven
by a non-compete agreement-his job, his friends, and his
access to the Chapel Haven campus and community. Id.
at ¶¶ 189-91. He does not handle stress and change
well, and has become isolated and depressed. Id. at
¶¶ 194-96. Client A, however, continues to receive
services from Chapel Haven and also continues to harass
Robert. Id. at ¶ 188.
up some preliminary matters, I first consider whether the
State defendants engaged in “state action” and
whether the Chapel Haven defendants were acting as
“state actors, ” closely related issues that
underpin many of the federal causes of action in the
plaintiffs' complaint. I resolve some technical issues
raised with respect to the parent-plaintiffs. I then consider
the State Defendants' motions to dismiss portions of the
complaint for lack of subject matter jurisdiction and for
failure to state a claim. Finally, I consider the Chapel
Haven defendants' motion to dismiss for failure to state
the State defendants' motion is premised on the argument
that they were not sufficiently involved in Robert's care
or in the termination decision to be held liable for those
acts. See, e.g., State Defs.' Br. at 19 (in the
context of the adverse action requirement for the retaliation
claim); 23 (in the context of the freedom of choice and fair
hearing provisions of the Medicaid Act); 27-31 (same); 34-35
(in the context of the due process claim). That argument
relies heavily on language in the amended complaint alleging
that Chapel Haven “unilaterally terminated Robert's
service, ” see, e.g., Am. Compl. at ¶
228; however, reading the complaint as a whole and drawing
all reasonable inferences in favor of the plaintiffs, they
have adequately alleged that the State defendants
were responsible for decisions about Robert's
care as active participants. The plaintiffs have alleged that
DDS had a contractual right to review all changes to the care
Chapel Haven provided to its members and to participate in
termination proceedings. See Am. Compl. at ¶
59. One can also reasonably infer from the complaint that DDS
actually did exercise that supervisory responsibility-the
complaint alleges that DDS representatives were present at
the pre-discharge meeting where the August 21 modifications
were discussed, id. at ¶ 130, as well as the
October 1, 2014 PAR where the initial termination decision
was reversed and additional modifications were proposed,
id. at ¶ 149. More importantly, the amended
complaint alleges that Storz contacted DDS to explain and
justify his decision to proceed with the termination after
the PAR meeting, id. at ¶ 156, from which one
can infer that DDS then had the opportunity to approve or
reject that decision.
State defendants' reliance on Blum v. Yaretsky,
457 U.S. 991 (1982), and Rovner v. Keystone Human
Servs., 2013 WL 4016490 (M.D. Pa. Aug. 6, 2013), does
not change that analysis. Blum lays out an
analytical framework for determining whether a decision made
by a private actor may nevertheless constitute state action.
See 457 U.S. at 1004-05. The Blum Court
instructed that extensive regulation was not sufficient to
create state action and a State would generally be liable for
the decision of a private actor only when (1) “[the
State] has exercised coercive power or has provided such
significant encouragement, either overt or covert, that the
choice must in law be deemed to be that of the State;”
or (2) “the private entity has exercised powers that
are traditionally the exclusive prerogative of the
State.” Id. (quotation marks and citations
omitted). The Court further observed that “[m]ere
approval of or acquiescence in the initiatives of a private
party is not sufficient to justify holding the State
responsible.” Id. Summarizing what would be
required in the case at hand, Justice White wrote in his
concurrence that the plaintiffs “must show that the
transfer or discharge is made on the basis of some rule of
decision for which the state is responsible.”
Id. at 1012 (White, J., concurring).
Blum and Rovner, the courts held there was
no “state action” by a highly regulated private
actor when the state agency had no contemporaneous role in
the contested decision. See Blum, 457 U.S. at 1005
(“The decisions about which respondents complain are
made by physicians and nursing home administrators, all of
whom are concededly private parties.”);
Rovner, 2013 WL 4016490, at *1 (“It is
undisputed that the Commonwealth defendants played no active
role in any of these events.”). By contrast, in the
present case, the plaintiffs have alleged that the DDS
actually did approve the termination decision before
it went into effect, and indeed that Chapel Haven sought out
DDS approval before termination. Moreover, in the words of
Justice White, the plaintiffs have successfully pointed to
the agreement between Chapel Haven and DDS as a “rule
of decision” under which the State has the final word,
and therefore the final responsibility, on termination
decisions. In other words, the plaintiffs have alleged that
the State's approval of their termination decision was
not merely an acquiescence, but actually an affirmatively
required step in order for the termination to take
place. Thus, the plaintiffs have adequately
alleged that the state actually engaged in “state
action” when it affirmatively managed Robert's care
and exercised its authority to approve the termination
Chapel Haven Defendants
Chapel Haven defendants similarly devote many of their
arguments to establishing that they are not “state
actors, ” the flip-side of the State defendants'
“state action” argument.
either section 1983 or the Fourteenth Amendment, the actions
of a private entity are treated as state action when:
(1) the entity acts pursuant to the “coercive
power” of the state or is “controlled” by
the state (“the compulsion test”); (2) when the
state provides “significant encouragement” to the
entity, the entity is a “willful participant in joint
activity with the [s]tate, ” or the entity's
functions are “entwined” with state policies
(“the joint action test” or “close nexus
test”); or (3) when the entity “has been
delegated a public function by the [s]tate, ”
(“the public function test”).
Sybalski v. Indep. Grp. Home Living Program, Inc.,
546 F.3d 255, 257 (2d Cir. 2008) (quoting Brentwood Acad.
v. Tenn. Secondary Sch. Ath. Ass'n, 531 U.S. 288,
plaintiffs here rely solely on the joint action test, and
allege that the Chapel Haven defendants can be considered
state actors because they acted jointly with the State
defendants to terminate Robert from their program.
See Pls.' Opp'n Br. at 45-48. To be clear,
the mere existence of the contract is not sufficient to
convert Chapel Haven into a state actor. See Phelan
ex rel. Phelan v. Torres, 843 F.Supp.2d 259, 273
(E.D.N.Y. 2011), aff'd sub nom. Phelan ex rel. Phelan
v. Mullane, 512 F. App'x 88 (2d Cir. 2013)
(“Although the state and private entities might, by
virtue of a contractual relationship, be engaged jointly in
the general mission of caring for abandoned children, only
the joint acts of the private entity and the state
are subject to challenge as state action.”). When
applying the “joint action” test, courts
routinely explain a determination that the private entity is
not a state actor by emphasizing that the state was
not involved in the specific decision at issue. See,
e.g., Blum, 457 U.S. at 1008; Sybalski v.
Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 259
(2d Cir. 2008) (“While the State of New York has
established procedures governing the limitations
that mental health facilities place on the ability of
patients to receive visitors, the administrators of those
facilities make the decision about whether such
limitations should be imposed.”) (emphasis in
original); Schlein v. Milford Hosp., Inc., 561 F.2d
427, 428-29 (2d Cir. 1977) (observing that the neither the
state nor state officials “contribute[d] material facts
or information to the decisionmaking process or play[ed] any
other role in the decision”). Conversely, in the
present case, as discussed above, the plaintiffs have
adequately alleged that the State defendants took action when
they exercised their power to pre-approve Robert's
termination decision. Thus, when Chapel Haven carried out
that termination decision, the plaintiffs have adequately
alleged that it was acting jointly with and as the agent of
Parental Representative Standing
State defendants challenge both the parent-plaintiffs'
ability to bring suit on Robert's behalf under all of the
various roles identified in the amended complaint and their
ability to represent their child jointly.
respect to the former issue, I note that the State defendants
concede that the parent-plaintiffs have standing to bring the
suit on Robert's behalf in their role as his
“guardians.” See State Defs.' Br. at
3 (“Neither DDS nor DSS challenge the plaintiffs in
their capacity as guardian to bring suit on behalf of
Robert.”). Rule 17(c)(1)(A) permits a “general
guardian” to sue on an incompetent person's behalf,
and does not appear to put any limitations on that
representation. Thus, it is unclear why permitting the
parent-plaintiffs to sue under their additional roles (or
not) would have any effect on this case, and I do not discuss
the question further.
State defendants also argue that only one of the
plaintiff-parents may represent their son. As the State
defendants point out, the Second Circuit has approvingly
cited in dicta a 10th Circuit case as “stand[ing] for
the (sound) proposition that only one party may act in a
representative capacity with respect to an infant or
incompetent who comes before the court.” Neilson v.
Colgate-Palmolive Co., 199 F.3d 642, 650 (2d Cir. 1999)
(citing Garrick v. Weaver, 888 F.2d 687, 693 (10th
Cir. 1989)). The Garrick court, in turn, did not
rely on binding legal authority but instead invoked policy
considerations, observing that two guardians could interfere
with the orderly development of the lawsuit by creating the
potential for inconsistent positions. 888 F.2d at 693.
Although that problem had actually been realized before the
Garrick court, its concerns could apply with equal
force in the present case. At the hearing on these motions, I
instructed the parent-plaintiffs to designate one parent as
the “primary” representative, whose views would
be followed in the unlikely case of a dispute between them.
Because the plaintiff-parents have not yet done so, I now
order them to inform the court within thirty days of this
Order which parent is the “primary”
decision-maker in the context of this case.
Parental Standing for Associational Claims Brought on
their Own Behalf
language in the complaint suggests that the plaintiff-parents
are bringing claims on their own behalf under Title II of the
ADA, and several counts refer to harms suffered by the
“Plaintiffs, ” suggesting that those counts were
brought on behalf of Robert and his parents. At the
hearing, however, the parent-plaintiffs clarified that the
only claims brought on their own behalf are the
Rehabilitation Act Claims in Counts One, Two, and Three of
Chapel Haven defendants challenge the parent-plaintiffs'
ability to bring such claims. See Chapel Haven
Defs.' Reply Br. at 1-2. The Second Circuit has held that
associational claims are cognizable under the Rehabilitation
Act if the plaintiffs can “establish that each suffered
an injury independent from [the disabled person]” as a
result of their association with a disabled person, and
further show that the injury was “causally related to
the denial of federally required services to the disabled
person.” Loeffler v. Staten Island Univ.
Hosp., 582 F.3d 268, 280, 282 (2d Cir. 2009) (Wesley, J.
concurring, but writing for the majority for that portion of
the ruling). In Loeffler, the plaintiffs alleged
that they were required to provide a service that should have
been provided by the hospital, and were subject to specific
and personal emotional distress. Id. Given that
Loeffler held additional caretaking tasks and
emotional distress suffered by the care-giving family members
to be sufficient, the Chapel Haven defendants have not shown
as a matter of law that the plaintiff-parents will be
unable to make an associational claim; however, thus
far, the plaintiff-parents have alleged individual damages in
a conclusory and vague manner, and they have not meaningfully
alleged causation at all. See Am. Compl. at
¶¶ 198, 210, 223 (making vague claims about
expenses, time expended, and unattributed emotional
distress). I accordingly grantthe motion to dismiss the
plaintiff-parents' associational claims without prejudice
to amending within thirty days of this Order.
State Defendants' Rule 12(b)(1) Motion
State defendants move to dismiss the ADA claims against them
in Counts One, Two, and Three for lack of subject matter
jurisdiction on sovereign immunity grounds. See
State Defs.' Br. at 6 -10 (headed “The Eleventh
Amendment Bars the Claims for Monetary Damages under Title II
of the ADA”). First, I note that the State defendants
do not appear to be challenging those counts to the extent
that they are brought under section 504 of the Rehabilitation
Act, which expressly requires states to waive sovereign
immunity as a condition of receiving federal funds.
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn,
280 F.3d 98, 113 (2d Cir. 2001).
II of the ADA has been held to validly abrogate sovereign
immunity in certain circumstances. See United States v.
Georgia, 546 U.S. 151, 159 (2006) (sovereign immunity
abrogated if both Title II and Fourteenth Amendment
violations are shown); Goonewardena v. New York, 475
F.Supp.2d 310, 323, 326 (S.D.N.Y. 2007) (sovereign immunity
abrogated even without a specific constitutional violation
because statute's penalty is a congruent and proportional
response to the history of discrimination against the
disabled). The Georgia framework for
determining whether a Title II claim can abrogate sovereign
immunity asks a court to determine whether the plaintiff has
shown both a Title II claim and a constitutional claim. It
thereby functionally moves what would otherwise be a Rule
12(b)(6) argument that the plaintiff has failed to state a
claim under the statute into Rule 12(b)(1) territory. As
discussed below, I find that Robert has adequately alleged a
Title II violation against the State defendants, and
accordingly, I conclude that sovereign immunity does not
apply to bar the claim at this stage of the proceedings.
State Defendants' Rule ...