Opinion
CV156053581S
01-18-2017
Dai-Yeng Leng v. Southern Connecticut State University
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO DISMISS (#103)
Robin L. Wilson, J.
FACTS AND PROCEDURAL HISTORY
On March 31, 2015, the plaintiff, Dai-Yeng Leng, filed a five-count complaint against the defendant, Southern Connecticut State University, seeking compensatory and punitive damages, as well as injunctive relief, based on his expulsion from the defendant university. The plaintiff claims that he was wrongfully expelled by the defendant on or about October 31, 2012, for allegedly threatening his roommate with physical harm, which the plaintiff denies, and alleges the following facts. The university police investigated the matter and found no evidence that the plaintiff had engaged in threatening behavior. Prior to being admitted to the defendant university, the plaintiff was diagnosed with schizoaffective disorder, a mental condition that impacts cognition and emotion, and the defendant was aware of this condition when it admitted the plaintiff. At a meeting held on October 17, 2012, the plaintiff informed the Director of Judicial Affairs of his condition and that he was suffering from a lack of mental clarity and memory problems. The plaintiff was not informed during the meeting that there was going to be an expulsion hearing based on this alleged incident or that he would be receiving an important email on his university e-mail account. An expulsion hearing was scheduled for two weeks following this meeting and notice was sent to the plaintiff's university e-mail account which he rarely used. The plaintiff was unaware that notice of the hearing had been sent and did not appear at the hearing, but was subsequently expelled by the defendant.
The plaintiff appealed his expulsion and submitted a letter dated January 25, 2013, from Branford Harbor Health that confirmed his condition and stated that as of November 13, 2012, he presented in control of his emotions and did not pose a danger to himself or others. On March 18, 2013, the plaintiff and his parents met with the Director of Judicial Affairs to ask that the defendant reconsider his case and readmit him. On or about November 26, 2013, the parties negotiated a settlement in which a statement would be prepared that was mutually agreed upon, to be issued in the event another institution were to inquire about the plaintiff. The plaintiff accepted all the material terms of the settlement via a letter dated and sent December 11, 2013, which included a proposed statement. The defendant rejected the proposed statement by a letter dated December 13, 2013, and since that date, the defendant has refused to honor the settlement agreement in its entirety.
The plaintiff asserts claims for violations of: his procedural due process rights under the fourteenth amendment (count one) and article first, § 8 of the Connecticut constitution (count two); Section 1983 of the Civil Rights Act (count three); Section 504 of the Rehabilitation Act of 1973 (count four); and for breach of an alleged settlement agreement (count five). On July 24, 2015, the defendant filed a motion to dismiss with a supporting memorandum of law, and the affidavit of Christopher Piscitelli, the Assistant Dean of Students and Director of Student Conduct. On November 16, 2015, the plaintiff filed an objection to the defendant's motion to dismiss with a supporting memorandum of law. The defendant filed a reply to the plaintiff's objection on December 14, 2015, and the, motion was heard at short calendar on October 31, 2016.
Conn. Const., art. I, § 8, Conn. Const., amend. XVII.
At all times as alleged in the complaint, Christopher Piscitelli worked as the Director of Judicial Affairs, a position he held from July 2000 to May 2015. Piscitelli Aff. ¶ 3.
The plaintiff does not address his claim alleging a violation of Section 1983 of the Civil Rights Act in his objection to the defendant's motion to dismiss and, therefore, this claim is effectively considered abandoned. See Nowacki v. Nowacki, 129 Conn.App. 157, 163-64, 20 A.3d 702 (2011) (" It is well settled that [the court is] not required to review claims that are inadequately briefed . . .") Accordingly, only counts one, two, four, and five are addressed in this memorandum.
DISCUSSION
" [A] motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013). " The grounds which may be asserted in [a motion to dimiss] are: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person . . . (4) insufficiency of process; and (5) insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10-30.
" [T]he doctrine of sovereign immunity implicates subject matter jurisdiction and is therefore a basis for granting a motion to dismiss." (Internal quotation marks omitted.) Housatonic R.R. Co. v. Comm'r of Revenue Servs., 301 Conn. 268, 274, 21 A.3d 759 (2011). " Claims involving the doctrines of common-law sovereign immunity and statutory immunity, pursuant to [General Statutes] § 4-165, implicate the court's subject matter jurisdiction." Kelly v. Albertsen, 114 Conn.App. 600, 605, 970 A.2d 787 (2009). Accordingly, " a motion to dismiss is the appropriate procedural vehicle to raise a claim that sovereign immunity [or statutory immunity] bars the action." Manifold v. Ragaglia, 94 Conn.App. 103, 116, 891 A.2d 106 (2006).
" Trial courts addressing motions to dismiss for lack of subject matter jurisdiction pursuant to § 10-31(a)(1) may encounter different situations, depending on the status of the record in the case . . . [L]ack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts . . . Different rules and procedures will apply, depending on the state of the record at the time the motion is filed." (Citation omitted; footnote omitted; internal quotation marks omitted.) Conboy v. State, 292 Conn. 642, 650-51, 974 A.2d 669 (2009).
" [T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised." Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003). " [I]t is the burden of the party who seeks the exercise of jurisdiction in his favor . . . clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute . . . It is well established that, in determining whether a court has subject matter jurisdiction, every presumption favoring jurisdiction should be indulged." (Internal quotation marks omitted.) Financial Consulting, LLC v. Commissioner of Insurance, 315 Conn. 196, 226, 105 A.3d 210 (2015).
The defendant has moved to dismiss counts one, two, and five on the ground that they are barred by the doctrine of sovereign immunity. The defendant additionally moves to dismiss the claims for money damages under Section 504 of the Rehabilitation Act on the ground that punitive damages may not be awarded in private suits and the plaintiff has not alleged an intentional violation, which is required for compensatory damages. Each argument will be addressed in turn.
I
The defendant argues that the plaintiff's claims for violations of his procedural due process rights are barred by sovereign immunity because no exception to sovereign immunity applies. The defendant additionally argues that the plaintiff's claim in count five for breach of the settlement agreement fails to allege that any constitutional interest was implicated and, therefore, is also barred by sovereign immunity. " The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law . . . Not only have we recognized the state's immunity as an entity, but [w]e have also recognized that because the state can act only through its officers and agents, a suit against a state officer concerning a matter in which the officer represents the state is, in effect, against the state." (Internal quotation marks omitted.) Columbia Air Servs. v. DOT, 293 Conn. 342, 349, 977 A.2d 636 (2009).
" The doctrine of sovereign immunity protects state officials and employees from lawsuits resulting from the performance of their duty." Hultman v. Blumenthal, 67 Conn.App. 613, 620, 787 A.2d 666, cert. denied, 259 Conn. 929, 793 A.2d 253 (2002). " [T]he sovereign immunity enjoyed by the state is not [however] absolute. There are [three] exceptions: (1) when the legislature, either expressly or by force of a necessary implication, statutorily waives the state's sovereign immunity . . . (2) when an action seeks declaratory or injunctive relief on the basis of a substantial claim that the state or one of its officers has violated the plaintiff's constitutional rights . . . and (3) when an action seeks declaratory or injunctive relief on the basis of a substantial allegation of wrongful conduct to promote an illegal purpose in excess of the officer's statutory authority." (Citations omitted; internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 349. " In the absence of a statutory waiver of sovereign immunity, the plaintiff may not bring an action against the state for monetary damages without authorization from the claims commissioner to do so." Id., 351; see also Miller v. Egan, 265 Conn. 301, 317, 828 A.2d 549 (2003).
In the present case, the complaint is silent as to whether the action was ever brought before the claims commissioner, and the plaintiff concedes in his objection to the defendant's motion to dismiss that there is no applicable statutory waiver of immunity. The court therefore lacks subject matter jurisdiction for the plaintiff's claims for money damages against the defendant. The plaintiff further concedes in his objection that the third exception to sovereign immunity, wrongful conduct to promote an illegal purpose, is not applicable. Accordingly, the court will only consider whether the second exception to sovereign immunity applies to the plaintiff's claims insofar as they seek injunctive relief.
A
" For a claim made pursuant to the second exception, complaining of unconstitutional acts, [the court] require[s] that [t]he allegations of such a complaint and the factual underpinnings if placed in issue, must clearly demonstrate an incursion upon constitutionally protected interests." (Internal quotation marks omitted.) Columbia Air Services, Inc. v. Dept. of Transportation, supra, 203 Conn. 350. In the present case, the plaintiff alleges violations of his rights to due process under the federal and Connecticut constitutions. Specifically, the plaintiff argues that his rights to procedural due process were violated because the notice of the expulsion hearing was sent to his university e-mail which he rarely used and despite his absence, the university went forward with the hearing and subsequently expelled him. The defendant argues that the issue of sufficient notice is not whether the plaintiff acknowledged the notice but whether the notice attempted by the defendant satisfies the requirements of procedural due process in this context. The defendant contends that it provided sufficient notice that was in accordance with its student code of conduct, which was available to the plaintiff and, therefore, the plaintiff cannot establish a constitutional violation and overcome sovereign immunity.
" Undoubtedly . . . a student attending a state college has a liberty interest in continuing that education . . . Disciplinary actions which seriously damage a student's reputation among fellow students and teachers and which may impair future educational and employment opportunities affect a liberty interest and such actions must satisfy procedural due process." (Citation omitted.) Danso v. University of Connecticut, 50 Conn.Supp. 256, 263, 919 A.2d 1100 (2007). " Since the landmark decision of the Court of Appeals for the Fifth Circuit in Dixon v. Alabama State Board of Education, 294 F.2d 150, cert. denied, 368 U.S. 930, 82 S.Ct. 368, 7 L.Ed.2d 193 (1961), the lower federal courts have uniformly held the Due Process Clause applicable to decisions made by tax-supported educational institutions to remove a student from the institution long enough for the removal to be classified as an expulsion." Goss v. Lopez, 419 U.S. 565, 576 n.8, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).
" What process is due is measured by a flexible standard that depends on the practical requirements of the circumstances." Nash v. Auburn University, 812 F.2d 655, 660 (11th Cir. 1987) citing Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). In Goss, this flexible standard was construed to mean that high school students facing the deprivation of a protected property right by suspension from school must, at a minimum, " be given some kind of notice and afforded some kind of hearing." (Internal quotation marks omitted.) Goss v. Lopez, supra, 419 U.S. 579. Although the court in Goss only addressed short-term suspensions and left the precise contours of minimum procedural due process for longer suspensions or expulsions undefined; see Danso v. University of Connecticut, supra, 50 Conn.Supp. 263; federal circuit courts have generally applied the balancing test set forth by the Supreme Court in Mathews . See Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1240 (10th Cir. 2001). Under Mathews, a court must balance three factors: " the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the [g]overnment's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Mathews v. Eldridge, supra, 424 U.S. 335.
Due process essentially requires the " opportunity to be heard at a meaningful time and in a meaningful place." Mathews v. Eldridge, supra, 424 U.S. 333. " Due process does not require, however, that the notice and hearing attendant to suspension of a college student resemble a 'full-dress' civil or criminal trial." Danso v. University of Connecticut, supra, 50 Conn.Supp. 264. " There are no hard and fast rules by which to measure meaningful notice . . . All that is demanded is information sufficient to apprise a reasonable student of the subject matter of the hearing, its time and place." (Citation omitted; internal quotation marks omitted.) Id., 266. Furthermore, " [d]ue process does not mandate actual notice, but rather a method of notice that is reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." (Emphasis added; internal quotation marks omitted.) Oladokun v. Ryan, United States District Court, Docket No. 06CV2330 (KMW), (S.D.N.Y. September 30, 2010); see also Rosa R. v. Connelly, 889 F.2d 435, 439 (2d. Cir. 1989). Finally, " [n]otice of a suspension proceeding may be written, oral, or a combination of both." Danso v. University of Connecticut, supra, 267.
In the present case, as Christopher Piscitelli, who was the Director of Judicial Affairs at the time alleged in the complaint, avers in his signed and sworn affidavit, the form and content of the notices sent to the plaintiff were in accordance with the defendant's code of conduct. All students are informed during orientation that the code of conduct governs student conduct and that the code is available in both electronic and paper form. The code details the various forms in which notice may be sent, including certified mail, return receipt requested or by university email, with delivery receipt attached. Additionally, the code provides that if the student refuses to sign for registered or certified mail, the postal document indicating such refusal shall constitute notice and that delivery of notice via university e-mail shall constitute notice regardless of whether the student has opened and read the e-mail.
On October 17, 2012, the defendant initially sent a notice to the plaintiff that he was being interim suspended because he had been charged with actual or threatened physical assault or abuse, threatening behavior, intimidation, or coercion. The interim suspension notice indicated to the plaintiff that if he was found guilty of the charges filed, suspension or expulsion was a possible result and that he should make an appointment with the Director of Judicial Affairs, who would explain the process involved with the formal hearing. On October 25, 2012, the plaintiff was then sent an e-mail indicating that formal hearing paperwork had been drafted and a hearing scheduled because the plaintiff had not yet contacted the Office of Judicial Affairs to set up an appointment. The e-mail attached the formal hearing paperwork, which indicated the specific charges against him, the incident that gave rise to the charges, the date and time of the hearing, and where and how to report for the hearing. Additionally, the paperwork advised the plaintiff of his rights, including the right to question the information presented, the right to call witnesses, and the right to consult with an advisor. On that same day, the defendant sent a letter via certified mail to the plaintiff at the official address he had provided the defendant upon admission. The letter contained the same information as the e-mail and notified the plaintiff regarding the time, date, and place of the hearing and informed him of his rights. The letter was subsequently returned to the defendant by the U.S. Postal Service because the plaintiff did not sign and accept receipt of the letter.
The plaintiff contends that notice was insufficient because notice of the expulsion hearing was sent to his university e-mail address, which he rarely uses and he was not informed in person of the hearing at the meeting with the Director of Judicial Affairs. The court disagrees with the plaintiff, and concludes that the plaintiff was provided with adequate notice.
Any reasonable college student in the plaintiff's position would anticipate that important information regarding their status as a student, whether it be in regards to academic, safety, or disciplinary reasons would be sent to their university e-mail. See Danso University of Connecticut, supra, 266. Furthermore, the plaintiff was essentially on notice from the day he enrolled at the university about what conduct was prohibited, how the university handled disciplinary matters, the various forms in which notice could be sent, and what would constitute notice, e.g., the delivery of an e-mail or certified letter, regardless of whether the party actually opened the e-mail or signed for the certified letter. See e.g., Wynar v. Douglas County School District, 728 F.3d 1062, 1074 (9th Cir. 2013) (" [a]part from common sense, the school's student handbook, which is distributed at the beginning of each year, gave adequate warning to [the plaintiff] that he could face sanctions for his statements"); Heller v. Hodgin, 928 F.Supp. 789, 795 (S.D.Ind. 1996) (finding that plaintiff's notice that use of obscenity was prohibited began with distribution of school's student handbook).
The plaintiff additionally argues that his procedural due process rights were violated because no one attempted to contact him when he failed to show up to the hearing, and the defendant went forward with the expulsion despite his absence. The plaintiff, however, cites to no authority to support the contention that due process required the defendant to ensure his presence at the hearing or to investigate his absence. " Due process does not require . . . that the notice and hearing attendant to suspension of a college student resemble a 'full-dress' civil or criminal trial." Danso v. University of Connecticut, supra, 50 Conn.Supp. 264. The plaintiff was provided with two forms of notice that were reasonably calculated to inform him of the hearing and was afforded an opportunity to be heard. That is all that due process requires. The plaintiff has failed to clearly demonstrate a violation of his procedural due process rights and, therefore, the second exception to sovereign immunity does not apply. Because the plaintiff's claims in counts one and two are barred by sovereign immunity, the defendant's motion to dismiss counts one and two for lack of subject matter jurisdiction is granted.
B
The defendant argues that the plaintiff has failed to allege any constitutional interest implicated by the settlement agreement and any alleged breach and, therefore, count five must be dismissed on sovereign immunity grounds. The plaintiff counters that count five should not be dismissed because his rights to due process were violated. The plaintiff, however, does not specify in either his complaint or his objection to the motion to dismiss how the settlement agreement and alleged breach are connected to his allegations that he was not afforded adequate notice. " Procedural due process imposes constraints on governmental decisions which deprive individuals of liberty or property interests within the meaning of the [d]ue [p]rocess [c]lause of the . . . [f]ourteenth [a]mendedment." Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 358-59. " To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." (Internal quotation marks omitted.) Greater New Haven Prop. Owners Ass'n v. City of New Haven, 288 Conn. 181, 198, 951 A.2d 551 (2008).
In the present case, the plaintiff has failed to demonstrate how the terms of the oral settlement agreement conferred upon him a constitutionally cognizable property interest. See Lawrence v. State Board of Education, 140 Conn.App. 773, 781, 60 A.3d 961 (2013) (" we are not persuaded that the terms of the settlement agreement reasonably can be construed to confer on the plaintiff a constitutionally cognizable property interest in employment that the defendants were required to honor"). The plaintiff's complaint contains no specific factual allegations regarding what the terms of the settlement agreement were, beyond the allegation that the parties agreed to prepare a " statement" that was to be mutually agreed upon. The facts regarding the statement are vague, and the complaint only alleges that the statement was to be prepared and issued in the event another institution were to inquire. Pl.'s Compl. Ct. 5 ¶ 19. Construing allegations broadly and taking this allegation to mean if another institution were to inquire regarding the plaintiff's expulsion, the plaintiff cites to no authority to indicate how this created any sort of right for the plaintiff, let alone a cognizable property interest with constitutional implications. See Lawrence v. State Board of Education, supra, 140 Conn.App. 781 (" [t]he plaintiff has cited no authority for the proposition that the right to apply for an unspecified government position is a cognizable property interest that has constitutional implications"). The settlement agreement, therefore, was not an entitlement to which due process applies. See Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 361.
Furthermore, even if the settlement agreement were construed to have conferred on the plaintiff a property interest entitled to the protections of due process, count five would still be dismissed because the plaintiff's rights to procedural due process were not violated. He was provided with notice and the opportunity to be heard as required by due process.
The plaintiff has failed to demonstrate that the defendant violated a constitutionally protected interest in not complying with the settlement agreement, and thus, count five is barred by sovereign immunity. The defendant's motion to dismiss count five is therefore granted.
II
The defendant argues that count four, to the extent the plaintiff is seeking money damages for violations of the Rehabilitation Act, should be dismissed because (1) punitive damages may not be awarded in private suits brought under § 504, and (2) the plaintiff has failed to allege an intentional violation of the provision, necessary to recover compensatory damages. The plaintiff argues that because he is seeking both injunctive and monetary relief under § 504, the motion to dismiss should be denied, because a defendant cannot move to dismiss an entire claim on the basis that the plaintiff is not entitled to all the relief sought. The plaintiff additionally argues that even if he was only seeking monetary relief, he has sufficiently alleged facts that indicate the defendant acted intentionally.
The plaintiff is incorrect in his assertion that the defendant cannot move to dismiss count four insofar as it seeks monetary damages. If sovereign immunity is not waived, a plaintiff must first obtain authorization from the claims commissioner to bring an action for monetary damages against the state. Columbia Air Services, Inc. v. Dept. of Transportation, supra, 293 Conn. 351. If a plaintiff fails to do this, the court has the authority to dismiss a claim to the extent it seeks monetary damages, even if it also seeks injunctive relief. Id., 352-53; see also Barde v. Board of Trustees, 207 Conn. 59, 60-61, 539 A.2d 1000 (1988) (treating plaintiff's claims for damages and injunctive relief separately and requiring plaintiff to proceed through claims commissioner for claims for damages and to establish that claim falls within second or third exception to sovereign immunity for injunctive or declaratory relief). The court will therefore consider separately the plaintiff's claims for monetary and injunctive relief as they pertain to count four.
A
Turning to the plaintiff's claims for monetary damages for violations of the rehabilitation act, the plaintiff's claim for punitive damages can be readily dismissed. The Supreme Court has held that punitive damages may not be awarded in private suits brought under § 504 of the Rehabilitation Act. Barnes v. Gorman, 536 U.S. 181, 189-90, 122 S.Ct. 2097, 153 L.Ed.2d 230 (2002). The plaintiff cites to no authority to the contrary and in fact, does not even specifically address the issue of punitive damages in his objection to the defendant's motion to dismiss. Therefore, the plaintiff's claim in count four is dismissed to the extent the plaintiff seeks punitive damages.
B
Section 504 of the Rehabilitation Act (" the Act") provides in relevant part that: " No otherwise qualified individual with a disability . . . shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The defendant does not contest that § 504 does not apply to it but instead argues that the plaintiff has failed to allege an intentional violation of the Act. The plaintiff concedes that the defendant's acts must have been intentional in order to recover monetary damages, but contends that he has alleged that the defendant acted with deliberate indifference in failing to provide reasonable accommodations.
" To establish a prima facie violation under Section 504, a plaintiff must demonstrate that: (1) [he] is a qualified individual with a disability; (2) the defendant is subject to Section 504; and (3) [he] was denied the opportunity to participate in or benefit from the defendant['s] services, programs, or activities, or [was] otherwise discriminated against by the defendant, by reason of [his] disability . . . With respect to the third element, the plaintiff may base a discrimination claim on the theory that the defendant failed to make a reasonable accommodation." (Citation omitted; internal quotation marks omitted.) Girard v. Lincoln College of New England, 27 F.Supp.3d 289, 293 (D.Conn. 2014). " In order to recovery damages . . . [a] [p]laintiff must show that the statutory violation resulted from 'deliberate indifference' to the rights secured by the Act." Id. " The standard for intentional violations is deliberate indifference to the strong likelihood [of] a violation: in the context of the Rehabilitation Act, intentional discrimination . . . does not require personal animosity or ill will. Rather, intentional discrimination may be inferred when a policymaker acted with at least deliberate indifference to the strong likelihood that a violation of federally protected rights will result from the implementation of the [challenged] policy . . . [or] custom." (Internal quotation marks omitted.) Loeffler v. Staten Island University Hospital, 582 F.3d 268, 275 (2d Cir. 2009).
Although deliberate indifference has not been specifically defined in the context of the Act; see Loeffler v. Staten Island University Hospital, supra, 582 F.3d 275; it has been defined in other contexts, such as sexual harassment claims under Title IX, and those definitions are persuasive. Id., 276 (" [n]othing suggests that the standard for damages under the RA is the same, but it is at least instructive, " how the requirements of deliberate indifference have been defined). For example, the requirements of deliberate indifference have been described as: " [A]n official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipient's programs and fails to adequately respond." Id., citing Gebser v. Lago Vista Independent School District, 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). The Second Circuit has also stated: " [D]eliberate indifference must be a deliberate choice, rather than negligence or bureaucratic inaction." (Internal quotation marks omitted.) Loeffler v. Staten Island University Hospital, supra, 276.
In the present case, the plaintiff alleges in his complaint that the defendant violated the Act because " they knew or should have known in the exercise of reasonable care that he suffered from a medical condition that entitled him to . . . special services and/or reasonable accommodations and fail[ed] to provide [him] with the special services and/or reasonable accommodations he was entitled to under Section 504." Pl.'s Compl. Ct. 4 ¶ 17. Although the plaintiff alleges that the defendant was aware of his medical condition when he was admitted, the plaintiff does not allege or put forth any evidence that the university ever denied him accommodations or that he even requested any accommodations. Similarly, the plaintiff alleges that he told Piscitelli during a meeting that he was " suffering from a lack of mental clarity and was having problems with his memory, " Pl.'s Compl. ¶ 9, but does not allege that he requested any accommodations or special services during the meeting. There are no allegations of attempts to secure accommodations that went unheeded; see Loeffler v. Staten Island University Hospital, supra, 582 F.3d at 276; or allegations that he was treated in a dismissive manner during his alleged meeting with Piscitelli. See e.g., Girard v. Lincoln College of New England, supra, 27 F.Supp.3d at 300 (testimony by plaintiff regarding remarks made to her suggested professor was dismissive of plaintiff's alleged disability); Loeffler v. Staten Island University Hospital, supra, 276-77 (request for interpreter dismissed as joke by doctor evidence that could be indicative of deliberate indifference).
The defendant cannot be said to have been deliberately indifferent towards the plaintiff's rights under the Act, if they had no notice of a disability that entitled him to such accommodations. Cf. Shaywitz v. American Board of Psychiatry & Neurology, 848 F.Supp.2d 460, 467 (S.D.N.Y. 2012) (discussing notice under Title III of Americans with Disabilities Act and finding that plaintiff did not put defendant on notice of his disability by requesting accommodations where each time he registered to take exam, he failed to check box that would have alerted defendant to need for accommodations, and never requested any accommodations in any written communications he had with defendant). Awareness that the plaintiff suffered from schizoaffective disorder and knowledge that he needed certain accommodations because of this condition are two distinct concepts, a distinction more striking in lieu of the absence of evidence that the plaintiff informed the defendant of any such need. The defendant could not have made any deliberate decision in regards to the plaintiff's rights under the Act if there were no requests for reasonable accommodations for the defendant to deliberately ignore or unreasonably deny.
" Reason dictates that in order for a defendant to be liable for discrimination on the basis of disability . . . the defendant must have had adequate knowledge of the plaintiff's disability . . . In line with this observation, the Justice Department's regulations implementing Section 309 assume that an examinee would request accommodations, thereby putting the entity on notice . . ." (Citations omitted; emphasis in original; footnote omitted; internal quotation marks omitted.) Shaywitz v. American Board of Psychiatry & Neurology, supra, 848 F.Supp.2d 467.
The plaintiff has failed to allege an intentional violation of § 504 and, therefore, cannot recover compensatory damages. Accordingly, the defendant's motion to dismiss count four of the plaintiff's complaint to the extent he seeks money damages is granted.
CONCLUSION
For the foregoing reasons, the defendant's motion to dismiss counts one, two, and five is granted on the ground that those counts are barred by sovereign immunity, and count four to the extent the plaintiff seeks money damages because punitive damages are not an available remedy, and the plaintiff has not alleged that the defendant intentionally violated § 504 of the Rehabilitation Act.