E.B. by His Guardians M.B. And R.B., et al v. Cuomo, et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , MOTION to Dismiss for Lack of Jurisdiction

W.D.N.Y.December 8, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK E.B., et al., Plaintiffs, vs. Andrew Cuomo, in his official capacity as Governor of the State of New York, and Kerry Delaney, in her official capacity as Acting Commissioner of the New York State Office for People With Developmental Disabilities, Defendants. 16-cv-735 NOTICE OF MOTION TO DISMISS MOTION BY: Defendants Andrew Cuomo, in his official capacity as Governor of the State of New York, and Kerry Delaney, in her official capacity as Acting Commissioner of the New York State Office for People With Developmental Disabilities RELIEF SOUGHT: Dismissal pursuant to Fed. R. Civ. P. 12 (b)(1) and (6), as well as a stay of all proceedings pending resolution of the instant Motion, and such other and further relief as is just and proper WHEN RETURNABLE: Plaintiffs’ response due by January 17, 2017, Defendants’ reply due by January 31, 2017, or such other dates as set by the Court WHERE RETURNABLE: Hon. Lawrence J. Vilardo United States Courthouse 2 Niagara Square Buffalo, New York 14202 Case 1:16-cv-00735-LJV Document 17 Filed 12/08/16 Page 1 of 2 2 SUPPORTING PAPERS: Memorandum of Law Pursuant to Local Rule 7(a)(1), notice is hereby given that Defendants intend to file reply papers. DATED: Buffalo, New York December 8, 2016 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants BY: /s/ Christopher L. Boyd________ CHRISTOPHER L. BOYD Assistant Attorney General of Counsel Main Place Tower, Suite 300A 350 Main Street Buffalo, NY 14202 (716) 853-8457 Christopher.Boyd@ag.ny.gov Case 1:16-cv-00735-LJV Document 17 Filed 12/08/16 Page 2 of 2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK E.B., et al., Plaintiffs, vs. Andrew Cuomo, in his official capacity as Governor of the State of New York, and Kerry Delaney, in her official capacity as Acting Commissioner of the New York State Office for People With Developmental Disabilities, Defendants. 16-cv-735 MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PURSUANT TO RULE 12(b)(1) AND (6) OF THE FEDERAL RULES OF CIVIL PROCEDURE FOR FAILURE TO STATE A CLAIM AND LACK OF SUBJECT MATTER JURISDICTION ERIC T. SCHNEIDERMAN Attorney General of the State of New York CHRISTOPHER L. BOYD Assistant Attorney General of Counsel Main Place Tower, Suite 300A 350 Main Street Buffalo, NY 14202 Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 1 of 29 i TABLE OF CONTENTS PRELIMINARY STATEMENT ..................................................................................................1 PARTIES ........................................................................................................................................4 LEGAL STANDARD ....................................................................................................................5 I. Standard of Review ..........................................................................................................5 II. Statutory Framework ........................................................................................................6 ARGUMENT ..................................................................................................................................7 I. Plaintiffs Fail to State a Claim Under the Integration Mandate ......................................7 A. Plaintiff Potential Residents Are Not Plausibly Alleged to Be Institutionalized or Isolated ......................................................................................................................8 B. Plaintiff Potential Residents Are Not Alleged to Face A Serious Risk of Institutionalization ...................................................................................................11 II. Plaintiffs Fail to State a Claim for Discrimination .........................................................14 III. Plaintiffs’ State Law Claims Are Meritless and Barred by Lack of Subject Matter Jurisdiction .....................................................................................................................15 A. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ State Law Claims ....16 B. Plaintiffs’ Interpretation of New York State Law is Incorrect .................................17 IV. Plaintiff Caregivers’ Discrimination-Based-on-Association Claims Fail As a Matter of Law Because They Have Not Been Discriminated Against And Have Suffered No Injury In Fact ..................................................................................................................19 A. Plaintiff Caregivers Lack Standing ...........................................................................19 B. Plaintiff Caregivers’ Association Discrimination Claim Fails For the Same Reasons the Plaintiff Potential Residents’ Discrimination Claim Fails ..................................21 C. Plaintiff Caregivers’ Injuries Were Not Caused by State Action .............................21 V. Plaintiffs’ Motion for Class Certification is Premature .................................................22 CONCLUSION ............................................................................................................................24 Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 2 of 29 ii TABLE OF AUTHORITIES Cases Page(s) Amundson v. Wis. Dep’t of Health Servs.,721 F.3d 871 (7th Cir. 2013) ..........................................................................................................11 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ................................................................................6 Bank v. Alliance Health Networks, LLC, 2016 U.S. App. LEXIS 18849 (2d Cir. Oct. 20, 2016) .............................................................................................13 Beecher v. TWC Admin. LLC, 2016 U.S. Dist. LEXIS 112617 (W.D.N.Y. Aug. 22, 2016).......................................................................................23 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .........................................................5 Brownley v. Doar, 12 N.Y.3d 33 (N.Y. 2009) ...................................................................17 Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) .....................................................12 Davis v. Shah, 821 F.3d 231 (2d Cir. 2016) ................................................................11, 15 Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289 (E.D.N.Y. 2009) ...........10, 21 Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998) ...................................................................14 Eskenazi-McGibney v. Connetquot Cent. Sch. Dist., 84 F. Supp. 3d 221 (E.D.N.Y. 2015) .........................................................................................................7 Ex parte Young, 209 U.S. 123 (1908) ................................................................................16 Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459 (1945) ..................16 Forziano v. Indep. Group Home Living Program, 613 Fed. Appx. 15 (2d Cir. 2015) .....................................................................................................15, 21 Frank v. Sachem Sch. Dist., 633 Fed. Appx. 14 (2d Cir. 2016) ........................................12 Galvan v. Levine, 490 F.2d 1255 (2d Cir. 1973) ...............................................................23 Hagan v. Nixon, 109 A.D.2d 380 (N.Y. App. Div. 3d Dep’t 1985) ..................................18 Henrietta D. v. Bloomberg, 331 F.3d 261 (2d Cir. 2003) ....................................................7 In re Graves v Doar, 87 A.D.3d 740 (N.Y. App. Div. 2d Dep’t 2011) .............................17 Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 3 of 29 iii In re Ronald W., 25 A.D.3d 4 (N.Y. App. Div. 1st Dep’t 2005) .......................................18 Ironforge.com v. Paychex, Inc., 747 F. Supp. 2d 384 (W.D.N.Y. 2010) ...........................23 Jacob v. Duane Reade, Inc., 602 Fed. Appx. 3 (2d Cir. 2015) ..........................................22 Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009) ............................19, 20 Love v. Koch, 161 A.D.2d 209 (N.Y. App. Div. 1st Dep’t 1990) ......................................18 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ..................................................13, 20 M.K. v. Sergi, 554 F. Supp. 2d 175 (D. Conn. 2008) .........................................................15 McNaughton v. DeBlasio, 644 Fed. Appx. 32 (2d Cir. 2016) .............................................5 Messier v. Southbury Training Sch., 1999 U.S. Dist. LEXIS 1479 (D. Conn. Jan 5, 1999) ...............................................................................................8 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ...........................................13 Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999) ............................................. passim Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984) ....................................16 Raygor v. Regents of the Univ. of Minn., 534 U.S. 533 (2002) .........................................16 Reynolds v. Barrett, 741 F. Supp. 2d 416 (W.D.N.Y. 2010) .............................................23 Rodriguez v. City of New York, 197 F.3d 611 (2d Cir. 1999) ............................................14 Savastano v. Prevost, 66 N.Y.2d 47 (N.Y. 1985) ..............................................................18 Shibeshi v. City Univ. of N.Y., 531 Fed. Appx. 135 (2d Cir. 2013) ...................................16 Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016) ...........................................................13, 20 Taylor v. State of New York, 2010 N.Y. Misc. LEXIS 2148 (N.Y. Sup. Ct. Apr. 16, 2010) ..................................................................................17 Weiser v. Koch, 632 F. Supp. 1369 (S.D.N.Y. 1986) ........................................................16 Witt v. Vill. of Mamaroneck, 639 Fed. Appx. 44 (2d Cir. 2016) .........................................6 Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 4 of 29 iv Statutes & Rules 2003 Adv. Comm. Notes to Fed. Rule Civ. Proc. 23 .........................................................23 Americans with Disabilities Act, Title II, 42 U.S.C. § 12101 et seq. ........................ passim Fed. Rule Civ. Proc. 8(a)(2) .................................................................................................6 L.R. Civ. Proc. W.D.N.Y 23. .............................................................................................22 N.Y. Mental Hygiene Law § 13.01 ................................................................................4, 18 N.Y. Mental Hygiene Law § 13.07 ....................................................................................18 New York State Constitution, Art. VII ........................................................................ 17-18 New York State Constitution, Art. XVII ..................................................................... 15-17 Rehabilitation Act, Section 504, 29 U.S.C. § 701 et seq. .......................................... passim United States Constitution, Art. III ....................................................................................20 Other Materials OPWDD By the Numbers, Agency Data, available at https://opwdd.ny.gov/opwdd_resources/agency-data/all .....................................................4 OPWDD Priority Categories, available at https://opwdd.ny.gov/opwdd_services_supports/residential_opportunities/Residential_Support_C ategories .............................................................................................................................12 Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., available at https://www.ada.gov/olmstead/q&a_olmstead.htm ........2, 9 Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 5 of 29 1 PRELIMINARY STATEMENT Plaintiffs commenced this action as a putative class action on behalf of individuals with developmental disabilities and their “parent family and/or residential caregivers” against the State of New York (the “State”) and the New York State Office for People With Developmental Disabilities (“OPWDD”). (Compl. ¶ 1.) Plaintiffs separate themselves into two proposed subclasses: the “Plaintiff Potential Residents”1 and the “Plaintiff Caregivers.”2 The Plaintiff Potential Residents are individuals with developmental disabilities currently residing with their families or other caregivers who desire placements in State-sponsored supported community residences. The Plaintiff Caregivers are the parents or other related caregivers with whom a Plaintiff Potential Resident currently resides. Plaintiffs allege that the Plaintiff Potential Residents-who are receiving safe and adequate care at home with the Plaintiff Caregivers-are legally entitled to supported community residential placements. This is not a case about integrating such individuals into the community. Plaintiff Potential Residents already live at home, with their families, in the community. Instead, the goal of Plaintiffs’ lawsuit appears to be to shift the financial burden of housing these individuals from the Plaintiff Caregivers to the State. While this is perhaps more desirable to the Plaintiffs, it is not an issue for adjudication pursuant to the Americans with Disabilities Act 1 Defined as “the adults with developmental disabilities who qualify for services from [OPWDD]; who are not capable, by virtue of their developmental disabilities, to live in the community without assistance and support, but who are capable of living in the community with assistance and support, and who are presently living within the Western District of New York with family and/or related caregiver(s); who would prefer to live in the community in a supported residential setting but cannot because there are insufficient available appropriate residential settings.” (Compl. ¶ 16.) 2 Defined as “the parents and/or related caregivers who provide housing, care and services to the above defined Plaintiff Potential Residents but who are not legally obligated to do so; who provide such care and services because the Potential Residents are not capable, by virtue of their developmental disabilities, to live in the community without assistance and support; who would prefer that the Potential Residents live in the community in a supported residential setting but cannot because there are insufficient available appropriate residential placements.” (Compl. ¶ 17.) Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 6 of 29 2 (“ADA”), 42 U.S.C. § 12101 et seq., or the Rehabilitation Act (“RA”), 29 U.S.C. § 701 et seq., the two federal statutes pursuant to which Plaintiffs commenced this lawsuit. This action should be dismissed for failure to state a claim and lack of subject matter jurisdiction. First, Plaintiffs seek to turn the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), and the integration mandate of the ADA, (28 C.F.R. § 35.130(d)), on their heads. The fundamental goal of Olmstead and the integration mandate was to prevent the unlawful segregation of individuals with developmental disabilities by requiring the provision of community-based services where feasible; instead of shutting individuals away from the community in mental institutions and other restrictive settings. Plaintiffs allege-in conclusory and curious fashion-that the Plaintiff Potential Residents living at home with their families are facing “exclusion and unjustified isolation” from the community. (Compl. ¶ 71.) This is the antithesis of the legal and practical reality: under the ADA and Olmstead, the family home is the least-restrictive and least-segregated setting possible for individuals with developmental disabilities.3 Because the Plaintiff Potential Residents are living in the community with their families, Plaintiffs’ claims under the integration mandate fail as a matter of law. Second, Plaintiffs’ assertion that OPWDD is discriminating against the Plaintiff Potential Residents by prioritizing placement for those without family members capable of providing adequate care is the diametric opposite of the legal reality. It is entirely appropriate for OPWDD to prioritize residential opportunities for those with an acute need: those, unlike the Plaintiff Potential Residents, without loving family members currently providing them with care, support, 3 See Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., #15, available at https://www.ada.gov/olmstead/q&a_olmstead.htm (the proper remedy when residential segregation or institutionalization exists is to provide individuals with “opportunities to live in their own apartments or family homes, with necessary supports.” (emphasis added)). Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 7 of 29 3 and a place to reside in the community. Moreover, such intra-disability discrimination claims are not legally cognizable under the ADA. The ADA prohibits discrimination against individuals with developmental disabilities; it does not prohibit the appropriate prioritization of services among individuals with developmental disabilities. Third, Plaintiffs’ claims premised on New York State law are legally flawed and the Court lacks subject matter jurisdiction over such claims. Plaintiffs spend a great deal of time discussing the New York State Constitution and New York State statutes, which, Plaintiffs argue, create mandatory duties upon Defendants to provide Plaintiff Potential Residents with the residential placements they seek. Plaintiffs’ argument hinges upon a flawed reading of the New York State Constitution and statutory provisions of New York State law. But even if Plaintiffs’ reading of State law were correct, this Court lacks subject matter jurisdiction over such claims due to the State’s sovereign immunity and the Eleventh Amendment to the United States Constitution. Federal court is not an available forum to sue a state for violating its own laws and constitution. Fourth, Plaintiffs’ claims on behalf of the Plaintiff Caregivers fail because these caregivers are not being discriminated against and have suffered no injury in fact. Plaintiffs assert a claim on behalf of the Plaintiff Caregivers who are currently providing care to their relatives with developmental disabilities. Plaintiff Caregivers allege that they are being discriminated against based on their association with the Plaintiff Potential Residents. In essence, Plaintiffs argue that the Plaintiff Caregivers are being discriminated against because the Plaintiff Potential Residents have not received the supported residential placements they desire. But individuals without disabilities have no entitlement to a supported residential placement. Thus, the Plaintiff Potential Residents are not being discriminated against based on their Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 8 of 29 4 disability, nor are the Plaintiff Caregivers being discriminated against based on their association with the Plaintiff Potential Residents. Furthermore, the Plaintiff Caregivers have failed to allege that their “injuries” were caused by State action, as opposed to their own voluntary choices. As such, the Plaintiff Caregivers have failed to state a claim under the ADA and have suffered no injury in fact. Finally, Plaintiffs’ current Motion for Class Certification-filed before issue was joined or a scheduling order entered-is premature and should not be decided at this time. PARTIES Kerry Delaney is the Acting Commissioner of OPWDD. Andrew Cuomo is the Governor of the State of New York. OPWDD is the New York State agency that provides services and supports to approximately 130,000 individuals with developmental disabilities in the State of New York. See N.Y. Mental Hygiene Law § 13.07.4 OPWDD’s mission and focus include ensuring that individuals with developmental disabilities are provided with necessary services and supports so that they can live within the community in the most integrated setting possible. These services include respite, day habilitation, work-related services, supported employment, self-direction, and community habilitation services. OPWDD also provides housing supports for approximately 41,000 individuals in residences operated by nonprofit provider agencies or OPWDD itself. The majority of OPWDD service recipients do not receive such housing supports, but instead receive OPWDD services while residing in other residential settings, such as in their family homes. Thus, it is unnecessary to reside in an OPWDD-certified or operated residence in order to be integrated into the community and enjoy the other services and opportunities OPWDD offers. 4OPWDD By the Numbers, Agency Data, available at https://opwdd.ny.gov/opwdd_resources/agency-data/all (OPWDD background information). Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 9 of 29 5 The number of individuals for whom OPWDD provides housing supports increases annually. Hundreds of individuals are receiving such supports for the first time in 2016. OPWDD has also been expanding the availability of non-certified housing options that allow individuals with developmental disabilities to live within the community in typical apartments and housing, rather than in OPWDD-certified group homes and other housing exclusively with other individuals with developmental disabilities, as Plaintiffs request. OPWDD must, of course, stay within its allotted budget, while continuing to provide quality services to all eligible individuals with developmental disabilities. This necessarily requires balancing the competing concerns and desires of OPWDD’s large and diverse base of service recipients. OPWDD prioritizes services for those whose needs are most acute because that is what the law, common sense, and its mission require. As discussed above, Plaintiffs filed this action as a proposed class action on behalf of two proposed subclasses, the “Plaintiff Potential Residents” and the “Plaintiff Caregivers.” The Plaintiff Potential Residents are the individuals with developmental disabilities currently residing with their families or other caregivers who desire placements in State-sponsored supported community residences. The Plaintiff Caregivers are the parents or other related caregivers with whom a Plaintiff Potential Resident currently resides. The identities of the named Plaintiffs are currently unknown to Defendants, other than the initials provided in the Complaint. LEGAL STANDARD I. Standard of Review “To survive a Rule 12(b)(6) motion to dismiss, the complaint must plead ‘enough facts to state a claim to relief that is plausible on its face.’” McNaughton v. DeBlasio, 644 Fed. Appx. 32, 33 (2d Cir. 2016) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 10 of 29 6 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) (internal citation omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]’-’that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. Rule Civ. Proc. 8(a)(2)). The complaint must contain more than “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” and a court need not “accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678. Thus, “[a]lthough all allegations contained in the complaint are assumed to be true, this tenet is ‘inapplicable to legal conclusions.’” Witt v. Vill. of Mamaroneck, 639 Fed. Appx. 44, 44 (2d Cir. 2016) (quoting Iqbal, 556 U.S. at 678). II. Statutory Framework Plaintiffs assert three principal claims, each under Title II of the ADA and Section 504 of the RA. (Compare Counts I-II, III-IV, and V-VI.) Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, the RA states, “[n]o otherwise qualified individual with a disability . . . shall, solely by reason of her or his 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). Title II’s integration mandate provides that a public entity “shall administer services, programs, and activities in the most integrated setting appropriate to the needs of Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 11 of 29 7 qualified persons with disabilities.” 28 C.F.R. § 35.130(d); see 28 C.F.R. § 41.51(d) (RA’s similar integration mandate). “Claims under Title II of the ADA and Section 504 of the Rehabilitation Act are analyzed identically.” Eskenazi-McGibney v. Connetquot Cent. Sch. Dist., 84 F. Supp. 3d 221, 231 (E.D.N.Y. 2015) (citing Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)). Thus, Plaintiffs’ three ADA and Rehabilitation Act claims are addressed jointly herein. ARGUMENT I. Plaintiffs Fail to State a Claim Under the Integration Mandate Plaintiffs’ first and second causes of action allege that Defendants are violating the integration mandate of Title II of the ADA, 42 U.S.C. § 12132, 28 C.F.R. § 35.130(d), and Section 504 of the RA, 29 U.S.C. § 794, by failing to make the “reasonable modification” to its programs and services of providing a residential placement for the Plaintiff Potential Residents, all of whom allegedly desire such placements. Plaintiff Potential Residents allege repeatedly that they are subject to “unjustified isolation” (Compl. ¶¶ 9, 71, 89), but fail to plead any facts plausibly demonstrating this to be the case. Plaintiff Potential Residents state that they currently reside at home with family, the Plaintiff Caregivers, who provide such care out of love and familial affection. (Compl. ¶¶ 14, 18.) Plaintiffs allege that it would be better for the Plaintiff Potential Residents to reside with “peers”-i.e. other individuals with developmental disabilities-rather than their own families or caregivers. (Compl. ¶ 19.) This is the opposite of what United States Department of Justice (“DOJ”) guidance explains as being the “most integrated setting,” which is “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . .” 28 C.F.R. pt. 35 appx. B. Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 12 of 29 8 A. Plaintiff Potential Residents Are Not Plausibly Alleged to Be Institutionalized or Isolated In passing Title II of the ADA, Congress sought to ensure that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. In Olmstead, the Supreme Court recognized that the ADA prohibits the institutionalization of those who are capable of residing in the community. See 527 U.S. 581. The Court held that, “unjustified institutional isolation of persons with disabilities is a form of discrimination. . . .” Id. at 600. In particular the Court was concerned that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations. . . .” Id. at 601. However, “while Congress intended to decrease segregation and promote integration, neither the ADA nor Section 504 confers an absolute right to [individuals with developmental disabilities] to be placed in the community.” Messier v. Southbury Training Sch., 1999 U.S. Dist. LEXIS 1479, at *30 (D. Conn. Jan 5, 1999). The DOJ promulgated regulations to implement the integration mandate, which provide that a public entity “shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified persons with disabilities.” 28 C.F.R. § 35.130(d). According to the DOJ, the term “most integrated setting” means “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . .” 28 C.F.R. pt. 35 appx. B. The DOJ has explained that, “[i]ntegrated settings are those that provide individuals with disabilities opportunities to live, work, and receive services in the greater community, like Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 13 of 29 9 individuals without disabilities. Integrated settings are located in mainstream society . . .”5 The DOJ has also observed that the proper remedy when residential segregation or institutionalization exists is to provide individuals with “opportunities to live in their own apartments or family homes, with necessary supports.”6 Tellingly, the Complaint does not seek any relief ordering Defendants to provide supportive home services to the Plaintiff Potential Residents in their current homes. This is probably because all (or nearly all) of the Plaintiff Potential Residents already receive services from OPWDD at home. Likewise, the Plaintiff Caregivers almost certainly receive respite and other forms of assistance from OPWDD and related state and federally-funded entities. Plaintiffs have not alleged that they are being denied community-based services, other than a residential placement outside their family home. Living at home with one’s family is the opposite of institutionalization. It is the goal that the ADA and its integration mandate set out to achieve for individuals with developmental disabilities. Plaintiffs repeatedly allege-in rote and conclusory fashion-that the Plaintiff Potential Residents are “unjustifiably isolated from participating in community life. . . .” (Compl. ¶ 6.) But the Plaintiff Potential Residents are living at home, in their communities and with their families. Nothing could be further from the type of institutionalization and societal segregation contemplated in Olmstead and its progeny. Indeed, Plaintiffs plead that they desire placements that will afford them greater “social interaction with peers”-i.e. other individuals with developmental disabilities. (Compl. ¶ 155.) While Plaintiffs may desire such interaction, it is not what the ADA mandates, which is to “enable[] individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. pt. 35 appx. B (emphasis added). 5 Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., #1. 6 Id. at #15 (emphasis added). Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 14 of 29 10 While placement of the Plaintiff Potential Residents in supported community residential placements may lessen the burden on their families, no facts have been pled suggesting such a placement would be the most integrated setting for the Plaintiff Potential Residents. If anything, a move from the family home to a State-sponsored residential placement could be a move towards less integration and more institutionalization. At worst, the two are equivalently non- isolating and non-institutionalized settings. Taking the allegations in the Complaint as true, the Plaintiff Potential Residents in this action are about as far from institutionalized or isolated as possible; they reside at home with their family members, who provide them with adequate care in the community. (Compl. ¶ 18.) Simply put, Plaintiff Potential Residents cannot state a valid integration mandate claim by conclusorily alleging that supported community residences would be a more integrated setting than their family homes. If that were all the law required, another set of individuals with developmental disabilities could bring the inverse of this lawsuit, alleging that placement in supported community residences violates their rights under the ADA and RA because their family home is a more integrated setting. Plaintiffs are required to plead facts plausibly showing that they are not currently in the most integrated setting possible. Plaintiffs have failed to do so. The Complaint has pled absolutely no plausible factual allegations suggesting that the Plaintiff Caregivers are currently taking actions to isolate the Plaintiff Potential Residents from interacting with “non-disabled persons” or the community at large. But even if Plaintiffs had pled such facts, it is clear that such actions-by non-State actors-are not subject to redress under the integration mandate. See Disability Advocates, Inc. v. Paterson, 598 F. Supp. 2d 289, 321 (E.D.N.Y. 2009) (“Title II covers the administration of state programs, activities and services. . . .the actions of the family of a person with disabilities would not arise out of any Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 15 of 29 11 service provided by the State, and would not implicate the integration mandate.”), vacated on other grounds, 675 F.3d 149 (2d Cir. 2012). B. Plaintiff Potential Residents Are Not Alleged to Face A Serious Risk of Institutionalization To the extent that Plaintiffs attempt to argue that the Plaintiff Potential Residents are faced with a serious risk of institutionalization, this argument fails. The Second Circuit has recently held that, “a plaintiff may state a valid claim for disability discrimination by demonstrating that the defendant’s actions pose a serious risk of institutionalization for disabled persons.” Davis v. Shah, 821 F.3d 231, 263 (2d Cir. 2016). In Davis, the plaintiffs were being denied medically necessary orthopedic products which help them avoid “skin ruptures, infections, and further amputations,” and the absence of which could lead to institutionalization. Id. at 242. In this case, Plaintiffs allege no facts showing a serious risk of institutionalization for the Plaintiff Potential Residents. Instead, Plaintiffs appear to allege that such a risk could arise “when the Plaintiff Caregiver dies or is unable to care for the loved one with developmental disabilities.” (Compl. ¶ 20.) This type of “meta-risk”-or a risk of having a risk of institutionalization-is not cognizable under Davis or Article III of the United States Constitution. Further, Plaintiffs do not allege that similarly-situated individuals have been institutionalized as a result of a caregiver’s death or incapacity. See Amundson v. Wis. Dep’t of Health Servs., 721 F.3d 871, 873 (7th Cir. 2013) (deeming an integration mandate claim premature where the plaintiffs did not allege that “any developmentally disabled person in Wisconsin has been moved, involuntarily, from group to institutional care” as a result of a rate change). Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 16 of 29 12 Clearly, a Plaintiff Caregiver becoming incapacitated would be tragic and have a significant impact on the needs and care of the Plaintiff Potential Resident for whom he or she is caring. But this does not establish a serious risk of institutionalization. Using Plaintiffs’ reasoning, an individual with a developmental disability living in a supported residence could face a risk of institutionalization if their residence were flooded. But this hypothetical possibility does not give rise to a presently cognizable injury subject to redress under the ADA and RA. Myriad hypothetical and speculative events would each have to occur before any of the Plaintiff Potential Residents were subject to a serious risk of institutionalization. First, their current Plaintiff Caregiver would have to die or become incapacitated. Second, there would have to be no other family or friends available to provide care. Third, OPWDD would have to deny such an individual a community-supported residential placement. Indeed, Plaintiffs even acknowledge in the Complaint that community-supported residential placements would become available in “an acute emergency or crisis.” (Compl. ¶ 65.) This acknowledges the fact that OPWDD does-as it must-prioritize among the many individuals who desire residential placement. See Frank v. Sachem Sch. Dist., 633 Fed. Appx. 14, 15 (2d Cir. 2016) (in considering integration mandate claims, courts must “tak[e] into account the resources available to the State and the needs of others with mental disabilities.”) (quoting Olmstead, 527 U.S. at 587). Those individuals with developmental disabilities facing the prospect of homelessness are obviously-and properly-of higher priority to OPWDD than those currently living with loving family members.7 7 Plaintiffs’ assertion that community-supported residential placements are only available to those facing an acute emergency situation is incorrect. (Compl. ¶¶ 64-65.) OPWDD makes community-supported residential opportunities available to individuals in non-emergency situations as well. Information about OPWDD’s priority categories for housing opportunities can be found at https://opwdd.ny.gov/opwdd_services_supports/residential_ opportunities/Residential_Support_Categories. However, Defendants accept Plaintiffs’ inaccurate allegations as true solely for purposes of this Motion. Regardless, prioritizing the needs of those facing an acute emergency does not violate the ADA or the RA, and thus Plaintiffs’ claims, as pled, fail as a matter of law. Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 17 of 29 13 The Supreme Court has long held that, “[t]o establish Article III standing, an injury must be ‘concrete, particularized, and actual or imminent . . . .’” Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010). The Court has also “repeatedly reiterated that ‘threatened injury must be certainly impending to constitute injury in fact,’ and that ‘[a]llegations of possible future injury’ are not sufficient.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). The injury complained of must be concrete and cannot be “conjectural” or “hypothetical.” Lujan, 504 U.S. at 560. As the Supreme Court has recently observed, “[a] ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). Thus, “[o]rdinarily, standing requires that a plaintiff allege a concrete injury that creates a legally- protected interest in pursuing the litigation. A purely hypothetical possibility of recovery is not sufficient to meet the requirements for standing.” Bank v. Alliance Health Networks, LLC, 2016 U.S. App. LEXIS 18849, at *4 (2d Cir. Oct. 20, 2016) (citing Spokeo, 136 S. Ct. at 1548). Plaintiffs’ claims that they could theoretically face a risk of institutionalization if each of A and B and C occurs is far too conjectural and hypothetical to meet the requirements of Article III standing. Plaintiffs face no concrete injury, that is to say an injury that actually exists at present. See Spokeo, 136 S. Ct. at 1548. Moreover, Plaintiffs themselves acknowledge that even if these eventualities came to pass, it is highly likely that a supported community residential placement would then be made available to any such Plaintiff Potential Residents who found themselves in acute need of such placement. (Compl. ¶¶ 64-65.) Given the foregoing, Plaintiffs have failed to plead that they currently face a serious risk of institutionalization as a result of action by the State. As such, Plaintiffs’ integration mandate claims should be dismissed as a matter of law. Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 18 of 29 14 II. Plaintiffs Fail to State a Claim for Discrimination It is clear from the face of the Complaint that Plaintiffs do not allege discrimination against individuals with developmental disabilities vis-à-vis individuals without developmental disabilities. Nor do Plaintiffs allege the discriminatory administration of a program or service available to individuals without developmental disabilities. Individuals without developmental disabilities are not eligible to reside in OPWDD-sponsored community-supported residences. Plaintiffs’ discrimination claim-to the extent they have stated one apart from their integration mandate claim-appears to be a claim for discrimination among the disabled. Plaintiff Potential Residents claim that they are being discriminated against because “[t]he limited number of available supported community residential placements will be used to attempt to meet the anticipated residential needs of eligible individuals who are in acute emergency situations, such as being an imminent risk of harm to themselves or others or who are in imminent danger of homelessness.” (Compl. ¶ 64.) In essence, Plaintiffs allege that prioritizing placements for those with a more acute need amounts to illegal discrimination. Plaintiffs are wrong. The ADA does not prohibit this type of prioritization of resources among the disabled. As the Second Circuit has held: [T]he central purpose of the ADA and § 504 of the Rehabilitation Act is to assure that disabled individuals receive ‘evenhanded treatment’ in relation to the able-bodied. . . . neither the ADA nor the Rehabilitation Act establish an obligation to meet a disabled person’s particular needs vis-a- vis the needs of other handicapped individuals. Doe v. Pfrommer, 148 F.3d 73, 83 (2d Cir. 1998); see Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) (“The ADA requires only that a particular service provided to some not be denied to disabled people.”) Here, Plaintiff Potential Residents are eligible for placement in a Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 19 of 29 15 community-supported residence only because of their disability. As the Second Circuit has cogently explained, “the defendants 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.” Forziano v. Indep. Group Home Living Program, 613 Fed. Appx. 15, 18 (2d Cir. 2015). Thus, excepting the integration mandate, “the ADA does not bar unequal treatment of different disabilities, so long as disabled individuals are not denied services provided to the able-bodied on the basis of their disabilities.” Davis, 821 F.3d at 260; see also M.K. v. Sergi, 554 F. Supp. 2d 175, 198 (D. Conn. 2008) (“[P]laintiffs here are attempting to invoke the anti-discrimination provisions of the ADA and the Rehabilitation Act to challenge the adequacy of the services provided . . . not illegal disability discrimination. . . . Such a claim is not cognizable under the anti-discrimination provisions of either the ADA or § 504.”) Given the foregoing, Plaintiffs’ claims of discrimination and discriminatory administration fail as a matter of law. III. Plaintiffs’ State Law Claims Are Meritless and Barred by Lack of Subject Matter Jurisdiction Plaintiffs dedicate much of their Complaint to reciting provisions of the New York State Constitution and New York State statutes. (Compl. ¶¶ 56-60, 112-114, 131-134, 146-147, 160- 161.) Plaintiffs’ reading of the so-called “aid to the needy” clause of the New York State Constitution, Art. XVII § 1, is wrong, as is their interpretation of New York State statutes, but this issue is ultimately of little concern in this action, because the Court lacks subject matter jurisdiction over such claims. Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 20 of 29 16 A. The Court Lacks Subject Matter Jurisdiction Over Plaintiffs’ State Law Claims Plaintiffs are suing the Governor and the Commissioner of OPWDD in their official capacities. Plaintiffs’ lawsuit is thus a suit against the State. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101 (1984) (“The Eleventh Amendment bars a suit against state officials when ‘the state is the real, substantial party in interest.’”) (quoting Ford Motor Co. v. Department of Treasury of Indiana, 323 U.S. 459, 464 (1945)). A plaintiff can sue state officials in their official capacities for prospective injunctive relief based on ongoing violations of federal law pursuant to Ex parte Young, 209 U.S. 123 (1908). However, the Supreme Court has held that, “[a] federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law,” and therefore is beyond the sphere of the subject matter jurisdiction of the federal courts. Pennhurst, 465 U.S. at 106; Raygor v. Regents of the Univ. of Minn., 534 U.S. 533, 540-541 (2002) (“[T]he Eleventh Amendment bars the adjudication of pendent state law claims against nonconsenting state defendants in federal court.”); see also Weiser v. Koch, 632 F. Supp. 1369, 1374 (S.D.N.Y. 1986) (“[P]endent jurisdiction does not permit an evasion of the state immunity guaranteed by the eleventh amendment. . . . this court would lack jurisdiction to grant injunctive relief ordering state officials to conform their conduct to state law.”); Shibeshi v. City Univ. of N.Y., 531 Fed. Appx. 135, 135 (2d Cir. 2013) (“To the extent that [plaintiff’s] request . . .could be construed as a request for prospective injunctive relief . . . that claim is barred by the Eleventh Amendment because [plaintiff] sued under state law.”) Defendants have not consented to be sued for violations of New York State law in federal court. Based on principles of sovereign immunity and the Eleventh Amendment, Plaintiffs must establish a violation of federal law in order to obtain prospective injunctive relief against Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 21 of 29 17 Defendants. Even if Plaintiffs could establish an ongoing violation of New York State law, the exclusive forum for such a claim would be a New York State court. This Court lacks jurisdiction over such claims. B. Plaintiffs’ Interpretation of New York State Law is Incorrect Plaintiffs cite to Article XVII of the New York State Constitution and allege that, “[t]he care for the needy required by this provision is not a matter of legislative grace, but is a recognized New York State constitutional mandate.” (Compl. ¶ 57.) Plaintiffs’ view of the New York State Constitution is at odds with the New York Court of Appeals, which has held that: Article XVII . . .was not intended to “mandate that public assistance must be granted on an individual basis in every instance” or “command[] that, in carrying out the constitutional duty to provide aid, care and support of the needy, the State must always meet in full measure all the legitimate needs of each recipient.” Thus, there is no right to a constitutionally prescribed minimum shelter allowance since it is the prerogative of the Legislature to “determine who is ‘needy’ and allocate the public dollar accordingly.” Brownley v. Doar, 12 N.Y.3d 33, 43 (N.Y. 2009) (internal citations omitted); see In re Graves v. Doar, 87 A.D.3d 740, 744 (N.Y. App. Div. 2d Dep’t 2011) (“[T]o the extent that the petitioners are challenging the facial sufficiency of the benefits allotted . . . they may not rely upon New York Constitution article XVII, § 1; to the extent that they challenge only the unequal allotment of benefits, that constitutional provision is inapposite.”) (citation omitted); see also, Taylor v. State of New York, 2010 N.Y. Misc. LEXIS 2148, at *8-9 (N.Y. Sup. Ct. Apr. 16, 2010) (“The Legislature has the sole discretion to determine who is needy and the amount of aid.”) While Plaintiffs’ interpretation of the aid to the needy clause is wrong as a matter of law, it is also dubious as to whether the Plaintiff Potential Residents even qualify as “needy” given that they are alleged to receive “housing, care and services” from the Plaintiff Caregivers. (Compl. ¶ 17.) Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 22 of 29 18 Indeed, the section of the New York State Constitution relevant to OPWDD’s services is Article VII, § 4,8 which states that: The care and treatment of persons suffering from mental disorder or defect and the protection of the mental health of the inhabitants of the state may be provided by state and local authorities and in such manner as the legislature may from time to time determine. N.Y.S. Const. Art. VII, §4 (emphasis added). The use of the permissive language “may” indicates that “while broad policy objectives and guidelines are set forth concerning the treatment and care of the mentally ill and mentally disabled . . . no specific form of treatment and care is mandated.” Love v. Koch, 161 A.D.2d 209, 210 (N.Y. App. Div. 1st Dep’t 1990). Plaintiffs also rely upon Section 13.01 of the New York Mental Hygiene Law, for the proposition that Plaintiffs are entitled to placements in community-supported residential settings if they so-desire. (Compl. ¶¶ 58-59.) But “Mental Hygiene Law § 13.01 is a ‘declaration of policy’ which sets forth a statement of goals regarding meeting the needs of the mentally retarded and developmentally disabled. As such, it cannot be said that it is a mandatory statutory directive.” Hagan v. Nixon, 109 A.D.2d 380, 385 (N.Y. App. Div. 3d Dep’t 1985); see Savastano v. Prevost, 66 N.Y.2d 47, 50 (N.Y. 1985) (“[T]he Mental Hygiene Law demonstrate[s] the intention of the Legislature not to create a mandatory duty but to vest discretion in respondent Commissioner, and to allow h[er] to consider budgetary restrictions in implementing a program.”) Thus, Plaintiffs’ contention that the Mental Hygiene Law creates an obligation to provide Plaintiffs with the specific services they desire is incorrect as a matter of law. Finally, even if the Court had subject matter jurisdiction over Plaintiffs’ state law claims, and even if the state laws Plaintiffs cite created a mandatory duty, Plaintiffs have still not 8 See In re Ronald W., 25 A.D.3d 4, 8 (N.Y. App. Div. 1st Dep’t 2005) (stating that § 4 granted the legislature the authority to create OMRDD, the precursor to OPWDD). Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 23 of 29 19 plausibly alleged facts suggesting that the Commissioner of OPWDD abused her discretion in prioritizing supported residential placements for those individuals with developmental disabilities with an acute need over those individuals currently living with loving family members. IV. Plaintiff Caregivers’ Discrimination-Based-on-Association Claims Fail As a Matter of Law Because They Have Not Been Discriminated Against And Have Suffered No Injury In Fact The Plaintiff Caregivers allege discrimination based on association under the ADA and the RA. (Compl. ¶¶ 143-174.) Plaintiff Caregivers’ claims should be dismissed because they lack standing, have not alleged a viable association discrimination claim, and have suffered no injury in fact. A. Plaintiff Caregivers Lack Standing To assert a claim for discrimination based on association, a plaintiff without a disability must establish “an injury causally related to, but separate and distinct from, a disabled person’s injury under the statute.” Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 280 (2d Cir. 2009). Plaintiff Caregivers and Plaintiff Potential Residents have alleged a single injury: the unavailability of supported community residential placements. Plaintiff Potential Residents claim that this unavailability injures them by causing “isolation” (Compl. ¶ 71), while the Plaintiff Caregivers claim that this unavailability injures them by causing them to provide care beyond that which is legally required (Compl. ¶ 154.) The Plaintiff Caregivers have no injury “separate and distinct” from the injury allegedly suffered by the Plaintiff Potential Residents. This fact can be seen most clearly in Plaintiffs’ claim for relief, which seeks no independent and separate relief for the Plaintiff Caregivers. (See Compl. “Wherefore” clause, ¶¶ a-f.) Simply put, if the Plaintiff Potential Residents receive the Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 24 of 29 20 relief they seek-community-supported residential placements-then the Plaintiff Caregivers will have also obtained the relief they seek, which is to obtain community-supported residential placements for the Plaintiff Potential Residents. Because the Plaintiff Caregivers have no injury-and seek no relief-separate and distinct from the claims of the Plaintiff Potential Residents, the Plaintiff Caregivers lack standing. See Loeffler, 582 F.3d at 280; U.S. Const. Art. III. As the Supreme Court has explained: Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy. The doctrine developed in our case law to ensure that federal courts do not exceed their authority as it has been traditionally understood. The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong. Spokeo, 136 S. Ct. at 1547 (internal citation omitted). To have standing “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. (quoting Lujan, 504 U.S. at 560-561.) “Particularization is necessary to establish injury in fact . . . .” Id. at 1548. “For an injury to be ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id. Plaintiff Caregivers have no particularized injury. They have not alleged any injuries separate and distinct from the injuries alleged by the Plaintiff Potential Residents. Nothing is gained by retaining the Plaintiff Caregivers as parties. Plaintiffs seek no money damages; the only relief sought is prospective injunctive relief, and it appears from the Complaint that the relief sought would be identical whether or not the Plaintiff Caregivers remain parties. Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 25 of 29 21 B. Plaintiff Caregivers’ Association Discrimination Claim Fails For the Same Reasons the Plaintiff Potential Residents’ Discrimination Claim Fails Plaintiff Caregivers allege discrimination based on their association with the Plaintiff Potential Residents, due to the lack of supported community residential placements. But as explained in Section II, supra, the Plaintiff Potential Residents qualify for such placements only because of their disabilities. Such placements are not available for individuals without developmental disabilities. As the Second Circuit has held, “the defendants 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.” Forziano, 613 Fed. Appx. at 18. The Plaintiff Caregivers’ discrimination claim fails for the same reasons as the Plaintiff Potential Residents’ claim. The Plaintiff Caregivers cannot be discriminated against based on the alleged failure to provide services to the Plaintiff Potential Residents, because the services Plaintiff Potential Residents seek are only available to them because of their developmental disabilities. Id. C. Plaintiff Caregivers’ Injuries Were Not Caused by State Action The Plaintiff Caregivers’ “injury” as alleged in the Complaint, is the fact that they have voluntarily chosen to provide care to the Plaintiff Potential Residents. (Compl. ¶ 153.) Title II of the ADA only concerns actions taken by a “public entity.” 42 U.S.C. § 12132. The Plaintiff Caregivers made the decision to voluntarily provide services to the Plaintiff Potential Residents; Defendants did not make that decision. Plaintiff Caregivers have not pled any facts plausibly (as opposed to conclusorily) showing that they were “forced” to provide care to the Plaintiff Potential Residents, as opposed to providing such care gratuitously “out of love.” (Compl. ¶ 154.) Because Plaintiff Caregivers have not adequately alleged action by a public entity, their claims fail as a matter of law. See Disability Advocates, 598 F. Supp. at 321 (“[T]he actions of Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 26 of 29 22 the family of a person with disabilities would not arise out of any service provided by the State, and would not implicate the integration mandate . . . .”) V. Plaintiffs’ Motion for Class Certification is Premature Plaintiffs filed a Motion for Class Certification (ECF No. 3, the “Certification Motion”), concurrently with the Complaint. Plaintiffs’ Certification Motion is premature. Issue has not been joined, no scheduling conference has occurred and no discovery has been taken on the issue of class certification. Indeed, at this point, Defendants do not even know the names of the Plaintiffs, as they have not been served with the sealed addendum to the Complaint (ECF No. 6.) Local Rule 23 of the Local Rules of Civil Procedure for the Western District of New York contemplates the filing of a certification motion after a scheduling order has been entered, such that, “[t]he initial [scheduling] order may address only discovery relevant to the motion for class certification, with a further order to issue after a determination on the certification motion.” L.R. Civ. P. W.D.N.Y. 23(c).9 Because no scheduling order has been entered in this case, the Certification Motion is premature. Defendants intend to vigorously oppose class certification on a number of grounds. However, Defendants anticipate that narrow discovery limited solely to the named Plaintiffs and the propriety of class certification will be required before class certification issues can be fully briefed. As the Second Circuit has noted, on a certification motion, it is appropriate for the court to go “beyond the pleadings to consider the parties’ evidentiary submissions and make factual findings. . . .” Jacob v. Duane Reade, Inc., 602 Fed. Appx. 3, 5 (2d Cir. 2015). To the extent the Court grants the Motion to Dismiss, the entire issue of class certification may become moot. As such, deciding this Motion prior to considering the Certification Motion 9 It is worth noting that the Complaint fails to comply with the “Caption” and “Contents” requirements of Local Rule 23 (a)-(b). Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 27 of 29 23 is a wise use of judicial resources. The Advisory Committee Notes to the 2003 amendments to Rule 23 of the Federal Rules of Civil Procedure explain that “[t]he party opposing the class may prefer to win dismissal or summary judgment as to the individual plaintiffs without certification and without binding the class that might have been certified.” Defendants are cognizant that a judgment on this Motion, prior to certification, will not fully bind anyone other than the named Plaintiffs. While Defendants do have a right to insist that class certification issues be decided before any ruling on the merits-to ensure that any judgment binds all class members-defendants also have the ability to waive that right. Ironforge.com v. Paychex, Inc., 747 F. Supp. 2d 384, 388 n.1 (W.D.N.Y. 2010) (“[A] defendant can waive its right to have class certification issues decided first, by moving for a decision on the merits before a decision has been reached on class certification. Defendant has elected to do so here, and the Court finds it appropriate to decide the motion to dismiss before reaching the issue of class certification.”) (internal citations omitted); Beecher v. TWC Admin. LLC, 2016 U.S. Dist. LEXIS 112617, at *2 (W.D.N.Y. Aug. 22, 2016) (granting summary judgment prior to certifying class); Reynolds v. Barrett, 741 F. Supp. 2d 416, 424 (W.D.N.Y. 2010) (same). Here, Defendants prefer that the Motion to Dismiss be decided prior to the Certification Motion.10 To the extent that the Court would prefer to address the issue of class certification prior to ruling on the instant Motion to Dismiss, Defendants respectfully request that the Court set a reasonable schedule for discovery and briefing on the Certification Motion. Defendants believe the better course of action would be to deny the Certification Motion at this time as premature, or hold it in abeyance, subject to renewal once this Motion has been decided, a scheduling order has been entered, and class certification-related discovery conducted. 10 Class certification is also not a pressing issue in this case, given that Plaintiffs are seeking prospective injunctive relief against the State. See Galvan v. Levine, 490 F.2d 1255, 1257 (2d Cir. 1973). Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 28 of 29 24 CONCLUSION Given the foregoing, Defendants respectfully request that the Court dismiss the Complaint in its entirety, enter judgment in favor of Defendants, and grant Defendants such other and further relief as is just and proper. DATED: Buffalo, New York December 8, 2016 ERIC T. SCHNEIDERMAN Attorney General of the State of New York Attorney for Defendants BY: /s/ Christopher L. Boyd________ CHRISTOPHER L. BOYD Assistant Attorney General of Counsel Main Place Tower, Suite 300A 350 Main Street Buffalo, NY 14202 (716) 853-8457 Christopher.Boyd@ag.ny.gov Case 1:16-cv-00735-LJV Document 17-1 Filed 12/08/16 Page 29 of 29