14‐1147(L) Forziano v. Indep. Grp. Home Living Program, Inc.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of May, two thousand fifteen.

PRESENT: RALPH K. WINTER, JOHN M. WALKER, JR., CHRISTOPHER F. DRONEY, Circuit Judges. ____________________________________________

FRANK FORZIANO and ROSEANN FORZIANO, as parents and Article 17A co‐guardians of PAUL FORZIANO, NORMAN SAMUELS and BONNIE SAMUELS, as parents and Article 17A co‐guardians of HAVA SAMUELS, PAUL FORZIANO, and HAVA SAMUELS,

Plaintiffs‐Appellants,

‐v.‐ No. 14‐1147‐cv(L) 14‐2217‐cv(CON)

INDEPENDENT GROUP HOME LIVING PROGRAM, INC., MARYHAVEN CENTER OF HOPE, INC., COURTNEY BURKE, in her official capacity as the COMISSIONER OF THE NEW YORK STATE OFFICE OF PERSONS WITH DEVELOPMENTAL DISABILITIES, and STATE OF NEW YORK. Defendants‐Appellees.

____________________________________________

FOR APPELLANTS: MARTIN J. COLEMAN (Robert Briglio, on the brief), Law Office of Martin J. Coleman, P.C., Woodbury, NY.

FOR APPELLEE INDEP. GRP. HOME LIVING PROGRAM: ANNE C. LEAHEY, Devitt, Spellman, Barrett LLP, Smithtown, NY.

FOR APPELLEE MARYHAVEN CENTER OF HOPE: ROBERT G. VIZZA, Bartlett, McDonough & Monaghan, LLP, Mineola, NY.

FOR APPELLEE STATE OF NEW YORK: ANDREW KENT ( Anisha S. Dasgupta, on the brief), for Barbara D. Underwood, Solicitor General of New York and Eric T. Schneiderman, Attorney General of New York, New York, NY. ____________________________________________

Appeal from the United States District Court for the Eastern District of New York (Leonard D. Wexler, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court be and

hereby is AFFIRMED.

2 Plaintiffs Paul Forziano and Hava Samuels’s claims arise from the denial

of their request, made as a developmentally disabled married couple, to

cohabitate in a publicly funded group home. Plaintiffs appeal from the dismissal

of their complaint alleging violations of the Americans with Disabilities Act

(“ADA”), 42 U.S.C. §§ 12101‐12213; the Rehabilitation Act, 29 U.S.C. §§ 701‐796l;

the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601‐3619;

(“Section

1983”); the New York State Executive Law § 269; and the New York Mental

Hygiene Law. Plaintiffs seek money damages, declaratory relief, and a

permanent injunction. We assume the parties’ familiarity with the underlying

facts, procedural history, and specification of issues for review.

We review a dismissal for lack of subject matter jurisdiction under Federal

Rule of Civil Procedure 12(b)(1) or failure to state a claim under Rule 12(b)(6) de

novo, accepting all factual allegations in the complaint as true and drawing

inferences from those allegations in the light most favorable to the plaintiff.

Jaghory v. N.Y. Depʹt of Educ.,

, 329 (2d Cir. 1997).

Permanent Injunction Claims

Plaintiffs’ amended complaint included a request for a permanent

injunction prohibiting defendants from refusing to provide them with residential

3 services as a cohabitating couple. The district court dismissed all permanent

injunction claims because the plaintiffs sought to prevent harm that they may or

may not suffer in the future. We agree.

Both standing and jurisdictional ripeness require “a conclusion that the

complaining party will sustain immediate injury and that such injury would be

redressed by the relief requested.” Simmonds v. I.N.S.,

(2d Cir.

2003) (internal quotation marks, brackets, and ellipses omitted). After

commencing their lawsuit, plaintiffs received a residential placement at East End

Disability Associates (“East End”), where they receive all of their requested

services. Although plaintiffs posit that they may be forced to move out of East

End at some point, such speculative harm is insufficient to confer standing on the

plaintiffs. See, e.g., City of Los Angeles v. Lyons,

, 108‐109 (1983) (plaintiff

was without standing to request injunction against police use of chokeholds

because it was “no more than speculation” that he would again be subject to an

illegal chokehold).

Plaintiffs also argue that the district court erred by considering their

injuries at the time of the amended complaint instead of the original complaint,

when they lacked a facility willing to allow them to cohabitate. This argument is

4 without merit. The district court properly assessed the plaintiffs’ standing to

request an injunction based on the amended complaint, which “supercede[d] the

original, and render[ed] it of no legal effect.” Dluhos v. Floating & Abandoned

Vessel,

, 68 (2d Cir. 1998) (internal quotation marks omitted)

(determining whether the court had jurisdiction based on the allegations in the

most recent complaint). Based on the allegations in the amended complaint, there

is no immediate injury needing to be redressed. Accordingly, the district court

correctly dismissed plaintiffs’ claims seeking a permanent injunction for lack of

subject matter jurisdiction.

Intentional Discrimination under the ADA, Rehabilitation Act, and FHA

Plaintiffs asserted that defendants intentionally discriminated against

them in violation of the ADA, Rehabilitation Act, and FHA. Title II of the ADA

and Section 504 of the Rehabilitation Act provide that no person shall be

excluded from participation in or be denied the benefits of a public entity by

reason of a disability.

;

(a). Similarly, the FHA

makes it unlawful to discriminate in the sale or rental of any dwelling to any

buyer or renter because of a handicap.

(f). Because of similarities

in the three statutes, intentional discrimination claims under the ADA,

5 Rehabilitation Act, and FHA are considered in tandem. See McElwee v. Cnty. of

Orange,

(2d Cir. 2012); Tsombanidis v. W. Haven Fire Dep’t,

(2d Cir. 2003).

To prove intentional discrimination, a plaintiff must establish: “(1) that he

is a ’qualified individual’ with a disability; (2) that he was excluded from

participation in a public entity’s services, programs, or activities or was

otherwise discriminated against by a public entity; and (3) that such exclusion or

discrimination was due to his disability.” Hargrave v. Vermont,

, 34‐35

(2d Cir. 2003).

We agree with the district court that plaintiffs cannot show that they were

excluded from any of the defendants’ residential or habilitation services because

of their disability. “The ADA requires only that a particular service provided to

some not be denied to disabled people.” Rodriguez v. City of New York,

(2d Cir. 1999). Plaintiffs do not allege that cohabitation in the defendant

group homes was provided to some but denied to them because of their

disability; it is undisputed that no couples cohabitated in either home. The

defendants cannot have unlawfully discriminated against plaintiffs by denying a

benefit that they provide to no one. See

Said another way, the defendants

6 cannot have discriminated against plaintiffs on the basis of their disability

because that disability is an eligibility requirement for participation in those

services in the first place. See Doe v. Pfrommer,

(2d Cir. 1998).

In sum, even assuming that plaintiffs could show that defendants

harbored some discriminatory animus against their disabilities, they cannot

show that they were excluded from the defendants’ programs because of their

disabilities. Accordingly, we affirm the district court’s dismissal of plaintiffs’

intentional discrimination claims arising under the ADA, Rehabilitation Act, and

FHA.

Reasonable Accommodation under the ADA, Rehabilitation Act, and FHA

Plaintiffs also asserted non‐intentional discrimination claims under Title III

of ADA, the Rehabilitation Act, and the FHA. Like the district court, we construe

these claims as claims that the defendants violated the statutes by failing to

provide plaintiffs with the reasonable accommodation they requested—the

ability to cohabitate in one of the defendants’ facilities. See

(b)(2)(A)(ii);

;

(f)(3)(B). Again, because of

similarities in the three statutes, we consider reasonable accommodation claims

7 arising under the ADA, Rehabilitation Act, and FHA in tandem. See McElwee,

; Tsombanidis,

.

Plaintiffs’ reasonable accommodation damages claims must be dismissed

because it is well‐settled that injunctive relief is the only relief available for non‐

intentional violations of these statutes. See, e.g., Powell v. Natʹl Bd. of Med.

Examiners,

(2d Cir. 2004) (“A private individual may only obtain

injunctive relief for violations of a right granted under Title III; he cannot recover

damages.”); Loeffler v. Staten Island Univ. Hosp.,

(2d Cir. 2009)

(same under Rehabilitation Act).

Plaintiffs withdrew their request for a preliminary injunction after they

began cohabitating at East End. And, as discussed above, plaintiffs lack standing

to request a permanent injunction. Therefore, because plaintiffs lack standing to

request the only relief available for the alleged non‐intentional violations of the

ADA, Rehabilitation Act, and FHA, these claims must be dismissed.

Accordingly, we affirm the district court’s dismissal of plaintiffs’ non‐intentional

discrimination claims.

8 Section 1983 Claims against New York

Plaintiffs asserted Section 1983 claims against the State for alleged

violations of the Medicaid Act and Fourteenth Amendment. The district court

held that plaintiffs’ Medicaid Act damages claims against the State were barred

by the Eleventh Amendment, and plaintiffs did not appeal that ruling. And, as

discussed above, plaintiffs lack standing to request a permanent injunction.

Therefore, as plaintiffs implicitly concede, their Medicaid Act claims against the

State must be dismissed.

Unlike their Medicaid Act claims, plaintiffs contend that their Fourteenth

Amendment damages claims against the State are not barred by the Eleventh

Amendment because the Fourteenth Amendment has its own Eleventh

Amendment abrogation clause. This argument is without merit.

Both plaintiffs’ equal protection claim and their due process claim are

based in Section 1 of the Fourteenth Amendment. See U.S. Const. amend. XIV,

§ 1. We have squarely held that Section 1 claims for damages are barred by the

Eleventh Amendment. Santiago v. N.Y. Depʹt of Corr. Servs.,

(2d

Cir. 1991) (suit for damages jurisdictionally barred because “Section 1 of the

Fourteenth Amendment fits neither the clear statement nor the state waiver

9 exceptions to a state’s immunity from a damages suit in federal court.”). Thus,

plaintiffs fail to distinguish between damages claims under Section 1 of the

Fourteenth Amendment, which are barred by the Eleventh Amendment, and

claims for injunctive relief, which, in some situations, are not. See Edelman v.

Jordan,

, 663‐64 (1974). Because they lack standing to request

injunctive relief and their damages claims are barred by the Eleventh

Amendment, plaintiffs’ Fourteenth Amendment claims must also be dismissed.

Accordingly, we affirm the district court’s dismissal of plaintiffs’ Section

1983 claims against New York State and its official, Courtney Burke.

Section 1983 Claims against Independent Group Home Living and Maryhaven

Plaintiffs asserted the same Medicaid Act and Fourteenth Amendment

claims against their former group homes, Independent Group Home Living

(“IGHL”) and Maryhaven, as they did against the state. Unlike the state, IGHL

and Maryhaven are not protected by the Eleventh Amendment. The district court

correctly dismissed these claims, however, because plaintiffs failed to plausibly

allege that IGHL and Maryhaven are state actors.

It is well‐settled that a plaintiff pressing a claim for violation of his rights

under Section 1983 is required to show state action. See, e.g., Sybalski v. Indep. Grp.

10 Home Living Program, Inc.,

(2d Cir. 2008). The complaint alleges

that the State’s involvement in the challenged action—IGHL and Maryhaven’s

refusal to permit plaintiffs to cohabitate—consisted of an abdication of the State’s

duty to ensure compliance with the Medicaid Act and state law provisions. Such

abdication is insufficient to turn IGHL and Maryhaven’s decision not to permit

cohabitation into state action because it does not involve the State in the decision‐

making of private entities. See

(IGHL not engaged in state action where

the State established procedures governing limitations on visitors but IGHL

made the decision about whether such limitations should be imposed).

Plaintiffs’ failure to show that the State acted through IGHL and

Maryhaven is fatal to their Section 1983 claims alleging violations of the

Medicaid Act and Fourteenth Amendment by the group homes. Accordingly, we

affirm the district court’s dismissal of these claims.

State Law Claims

After dismissing all of plaintiffs’ federal causes of action, the district court

declined to exercise supplemental jurisdiction over plaintiffs’ state law claims.

On appeal, plaintiffs do not argue that the district court abused its discretion by

11 dismissing their state law claims. Accordingly, we affirm the district court’s

dismissal of plaintiffs’ state law claims.

Conclusion

We have considered the remainder of the plaintiffs’ arguments and find

them to be without merit. Accordingly, the judgment of the district court hereby

is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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