15‐1178‐pr Dimperio v. NY State Dep’t of Corr. & Cmty. Supervision

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 24th day of June, two thousand sixteen.

PRESENT: RICHARD C. WESLEY, DEBRA ANN LIVINGSTON, DENNY CHIN, Circuit Judges. ______________________

CARL A. DIMPERIO, JR.,

Plaintiff‐Appellant,

‐v.‐ No. 15‐1178

NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION,

Defendant‐Appellee,

1 BRIAN FISCHER, Commissioner,

Defendant. ______________________

FOR APPELLANT: CARL A. DIMPERIO, JR., pro se, Liverpool, NY.

FOR APPELLEE: LAURA ETLINGER, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, NY.

Appeal from the United States District Court for the Northern District of New York (Hurd, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the order of the District Court is

AFFIRMED.

Appellant Carl A. Dimperio, Jr., proceeding pro se, appeals from an order

granting summary judgment to Appellee New York State Department of

Corrections and Community Supervision (“DOCCS”) and dismissing his suit

under Title II of the Americans with Disabilities Act (“ADA”),

et seq., asserting that DOCCS discriminated against him by denying him

participation in so‐called “shock incarceration”1 and work release programs. We

These programs “provide rigorous physical activity, intensive regimentation and 1

discipline and rehabilitation therapy and programming.”

[2].

2 assume the parties’ familiarity with the underlying facts, procedural history, and

issues on appeal.

We review de novo a district court’s grant of summary judgment. Garcia v.

Hartford Police Dep’t,

(2d Cir. 2013) (per curiam). Where, as

here, the party opposing summary judgment bears the burden of proof at trial,

summary judgment should be granted if the moving party can “point to an

absence of evidence to support an essential element of the nonmoving party’s

claim.” Goenaga v. March of Dimes Birth Defects Found.,

(2d Cir.

1995).

As an initial matter, DOCCS primarily urges that we affirm the district

court’s judgment on the alternative ground that Dimperio failed to exhaust his

administrative remedies. As DOCCS concedes, however, it failed to raise this as

an affirmative defense in its answer. Although we have held that a district court

has “discretion to entertain [an affirmative] defense when it is raised in a motion

for summary judgment, by construing the motion as one to amend the

defendant’s answer,” Monahan v. N.Y.C. Dep’t of Corr.,

, 283 (2d Cir.

2000), and Dimperio did not object that the defense was not timely raised, neither

the magistrate judge nor the district court reached the issue of exhaustion. We

3 therefore decline to determine, in the first instance, either the merits or

permissibility of considering the defense.

We conclude, however, that the district court properly determined that

Dimperio failed to demonstrate a prima facie case of ADA discrimination. To

have done so, Dimperio was required to demonstrate that he was a “qualified

individual with a disability”—i.e., “an individual with a disability who, with or

without reasonable modifications to rules, policies, or practices . . . meets the

essential eligibility requirements for . . . participation in programs or activities

provided by a public entity.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical

Scis.,

(2d Cir. 2015) (quoting

(2)). The plaintiff

“bears the burdens of both production and persuasion as to the existence of some

accommodation that would allow the plaintiff to meet the essential requirements

of the service, program, or activity at issue.”

.

Dimperio failed to present evidence of the existence of a reasonable

accommodation to the programs in question. He asserted only that DOCCS was

obligated under state law to create an “alternative‐to‐shock‐incarceration

program” for inmates whom a court orders to participate in shock incarceration

but who require “a degree of medical care or mental health care that cannot be

4 provided at a shock incarceration facility,”

(7)(b).

Dimperio thus did not identify any modification to the standard incarceratory or

work release programs to which he sought access. Instead, he sought creation of

an individualized, alternative program akin to those created pursuant to

§ 60.04(7)(b). However, Title II of the ADA requires only the implementation of

reasonable modification to existing programs, not the creation of alternative

programs. See Wright v. Giuliani,

(2d Cir. 2000); Rodriguez v.

City of New York,

(2d Cir. 1999). Accordingly, Dimperio failed

to carry his burden of establishing that a reasonable modification to the shock

incarceration or work release programs existed and would have allowed him to

otherwise satisfy the essential requirements of those programs.

We have considered Dimperio’s remaining arguments and find them to be

without merit. For the reasons stated above, the order of the District Court is

AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

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