Smith et al v. Township of Warren et al

MOTION to Dismiss Plaintiffs' Amended Complaint, MOTION to Dismiss for Lack of Jurisdiction Plaintiffs' Amended Complaint

D.N.J.July 22, 2016

1 CHRISTOPHER S. PORRINO ACTING ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendants State of New Jersey, the Office of Emergency Management, Governor Chris Christie, and Colonel Rick Fuentes By: Matthew J. Lynch Deputy Attorney General (609) 633-8687 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON VICINAGE NANCY A. SMITH, individually and as the Administrator of the ESTATE OF WILLIAM L. SMIHT, Plaintiff, v. TOWNSHIP OF WARREN, SOMERSET COUNTY, NEW JERSEY OFFICE OF EMERGENCY MANAGEMENT, STATE OF NEW JERSEY, et al., Defendants. : : : : : : Hon. Michael A. Shipp, U.S.D.J. Civil Action No. 16-01660 (MAS- DEA) DEFENDANTS’ NOTICE OF MOTION TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM PURSUANT TO FED. R. CIV. P. 12(b)(1) AND FED. R. CIV. P. 12(b)(6) TO: Clerk of the Court Clarkson S. Fisher Building United States Courthouse 402 East State Street, Room 2020 Trenton, NJ 08608 Eric S. Latzer, Esq. Cole Schotz, P.C. 25 Main Street, Court Plaza North Hackensack, New Jersey 07601 Case 3:14-cv-07178-MAS-LHG Document 57 Filed 07/22/16 Page 1 of 2 PageID: 414 2 Attorney for Plaintiff PLEASE TAKE NOTICE that, on August 15, 2016, the undersigned, Christopher S. Porrino, Acting Attorney General of New Jersey, by Matthew J. Lynch, Deputy Attorney General, on behalf of Defendants State of New Jersey, the Office of Emergency Management, Governor Chris Christie, and Colonel Rick Fuentes, shall move before the Hon. Michael A. Shipp, U.S.D.J., in the United States Courthouse, 402 East State Street, Room 5W, Trenton, New Jersey, for an order dismissing Plaintiff’s Complaint for lack of jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) and failure to state a claim under Fed. R. Civ. P. 12(b)(6). Defendants will rely upon the Memorandum of Law in Support of Motion being filed contemporaneously herewith. It is respectfully requested that the Court rule upon the moving papers submitted without requiring appearance of counsel, pursuant to Fed. R. Civ. P. 78. A proposed form of order is attached hereto. CHRISTOPHER S. PORRINO ACTING ATTORNEY GENERAL OF NEW JERSEY Dated: July 22, 2016 By: s/Matthew J. Lynch Matthew J. Lynch Deputy Attorney General Case 3:14-cv-07178-MAS-LHG Document 57 Filed 07/22/16 Page 2 of 2 PageID: 415 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF TRENTON NANCY A. SMITH, individually and as the Administrator of the ESTATE OF WILLIAM L. SMITH, Plaintiff, v. TOWNSHIP OF WARREN, SOMERSET COUNTY, NEW JERSEY OFFICE OF EMERGENCY MANAGEMENT, STATE OF NEW JERSEY, et al. Defendants. : : : : : : : HON. MICHAEL A. SHIPP Civil Action No.: 14-07178 BRIEF IN SUPPORT OF STATE DEFENDANTS’ MOTION TO DISMISS CHRISTOPHER S. PORRINO ACTING ATTORNEY GENERAL OF NEW JERSEY Richard J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendant, State of New Jersey matthew.lynch@dol.lps.state.nj.us (609)633-8687 Matthew J. Lynch Deputy Attorney General On the Brief Nicole E. Adams Deputy Attorney General On the Brief Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 1 of 38 PageID: 416 i TABLE OF CONTENTS Introduction....................................................2 Factual Background..............................................2 Standard of Review..............................................6 Argument POINT I STATE DEFENDANTS ARE IMMUNE FROM SUIT IN FEDERAL COURT UNDER THE ELEVENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS TO PLAINTIFFS’ FAIR HOUSING ACT CLAIM....................8 POINT II STATE DEFENDANTS ARE IMMUNE UNDER THE ELEVENTH AMENDMENT TO PLAINTIFFS’ CLAIM UNDER TITLE II OF THE AMERICANS WITH DISABILITIES ACT AS WELL.............................11 A. PLAINTIFFS’ COMPLAINT DOES NOT CONTAIN ANY ALLEGATIONS THAT THE STATE ACTUALLY VIOLATED THE FOURTEENTH AMENDMENT ................12 i. A FAILURE TO PROVIDE SHELTER OR ACCESS TO THE EMERGENCY PREPAREDNESS PROGRAM TO PLAINTIFFS DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ....................14 ii. FAILURE TO PROVIDE SHELTER OR ACCESS TO THE EMERGENCY PREPAREDNESS PROGRAM TO PLAINTIFFS DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT .................17 B. CONGRESS DID NOT ABROGATE THE STATE’S ELEVENTH AMENDMENT IMMNUNITY WITH REGARD Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 2 of 38 PageID: 417 ii TO ITS ALLEGED ACTIONS IN THIS CASE BECAUSE TITLE II’S DEMANDS ARE NEITHER CONGRUENT NOR PROPORTIONAL TO RIGHTS UNDER THE FOURTEENTH AMENDMENT IN THIS CONTEXT ..........................................18 POINT III PLAINTIFFS FAILED TO STATE A CLAIM FOR RELIEF UNDER THE REHABILITATION ACT AGAINST STATE DEFENDANTS.....................................22 POINT IV PLAINTIFFS DO NOT POSESS STANDING TO SEEK PROSPECTIVE INJUNCTIVE RELIEF AGAINST GOVERNOR CHRISTIE OR SUPERINTENDENT FUENTES..........26 Conclusion................................................31 Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 3 of 38 PageID: 418 iii Table of Authorities Cases Cited Ashcroft v. Iqbal, 556 U.S. 662 (2009.................. 7, 27, 29 Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001)........................................ 17 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)........ 7, 27 Bowers v. NCAA, 475 F.3d 524 (3d Cir. 2007)........ 9, 10, 13, 19 Byrne v. Bd. of Educ., School of W. Allis-West Milwaukee, 979 F.2d 560 (7th Cir. 1992) .................................... 22 Brown v. U.S. Steel Corp., 2010 U.S. Dist. LEXIS 115503, at *6 (W.D. Pa. Oct. 29, 2010)....................................... 7 City of Boerne v. Flores, 521 U.S. 507 (1997)............. 19, 21 City of Cleburne v. City of Cleburne Living Center, 473 U.S. 432 (1985)........................................ 19 Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) ......................................... 14, 15 E.G. Smith v. New Jersey, 908 F. Supp. 2d 560 (D.N.J. 2012)............................................... 9 Edelman v. Jordan, 415 U.S. 651 (1974)..................... 8, 26 Evancho v. Fisher, 423 F.3d 347 (3d Cir. 2005).................25 Ex Parte Young, 209 U.S. 123 (1908)........................... 26 Finkelman v. NFL, 810 F.3d 187 (3d Cir. 2016)................. 27 Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655 (3d Cir. 1989)................................. 9 Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 4 of 38 PageID: 419 iv Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999)...........................................21 Flast v. Cohen, 392 U.S. 83 (1968)............................ 27 Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).......................................................... 7 Green v. Mansour, 474 U.S. 64 (1985).......................... 26 Grzan v. Charter Hosp. of N.W. Ind., 104 F.3d 116 (7th Cir. 1997) ....................................................... 23 Hafer v. Melo, 502 U.S. 21 (1991).............................. 9 Hans v. Louisiana, 134 U.S. 1 (1890)........................... 8 Jenkins v. McKeithen, 395 U.S. 411 (1969)..................... 27 Kentucky V. Graham, 473 U.S. 159 (1985).................... 9, 26 Los Angeles v. Lyons, 461 U.S. 95 (1983).......... 27, 28, 29, 30 McNutt v. Gen. Mortors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936). . . . . . . . . . . . . . . . . . . . . . . . . . 7 Missouri v. Fiske, 290 U.S. 18 (1933).......................... 8 Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977)..................................................... 6 O’Shea v. Littleton, 414 U.S. 488 (1974)...................... 27 Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 106 (1984)......................................8 Sanford v. Stiles, 456 F.3d 298 (3d Cir. 2006)................ 14 Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 5 of 38 PageID: 420 v Santiago v. Warminster Twp., 629 F.3d 121 (3d Cir. 2010)... 8, 15 Smolow v. Hafer, 353 F. Supp. 2d 561, 566 (E.D. Pa. 2005)...... 6 Tennessee v. Lane, 541 U.S. 509 (2004)........................ 19 Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).......... 17 United States v. Georgia, 546 U.S. 151 2006).......................................... 11, 12, 13, 19 Verizon Md. Inc. v. Pub. Serv. Commission of Maryland, 535 U.S. 635 (2002) .................................................. 26 Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002 (3d Cir. 1995)............................................. 23 Statutes Cited 29 U.S.C.A. § 705(20)......................................... 22 29 U.S.C.A. § 794............................................. 22 42 U.S.C. § 1983.............................................. 10 42 U.S.C. § 12101............................................. 20 42 U.S.C. § 12202............................................. 11 42 U.S.C. § 3601...............................................11 N.J.S.A. 52:17B-3..............................................10 N.J.S.A. 52:17B-7..............................................10 N.J.S.A. 53:1-2................................................10 Other Authorities Cited Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 6 of 38 PageID: 421 vi N.J. Const. art. V, § 4, ¶ 2................................... 8 Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 7 of 38 PageID: 422 2 INTRODUCTION Plaintiffs, Nancy Smith and the Estate of William Smith have filed an Amended Complaint in this matter alleging violations of Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and violations of the Fair Housing Act against the State of New Jersey, the New Jersey Office of Emergency Management, Governor Chris Christie, and Colonel Rick Fuentes (hereinafter “State Defendants”). This court should dismiss all of Plaintiffs’ claims against State Defendants, however, because State Defendants are immune from suit under the Eleventh Amendment in regards to the Fair Housing Act and the Americans with Disabilities Act claims, Plaintiffs have failed to state a valid claim under the Rehabilitation Act, and Plaintiffs do not have standing to seek prospective injunctive relief against the State Officer Defendants. FACTUAL BACKGROUND Plaintiff Nancy Smith is a resident of Somerset County and suffers from Parkinson’s Disease. See Plaintiff’s Amended Complaint, Attached as Exhibit A at ¶¶ 2, 66. Plaintiff William Smith, now deceased, was a resident of Somerset County and suffered from dementia and/or Alzheimer’s Disease. Pl. Am. Comp. at ¶ 3. Plaintiffs’ complaint arises out of events that occurred Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 8 of 38 PageID: 423 3 before, during and after Superstorm Sandy. At the time of the storm, Nancy and William resided with their daughter, Deborah Smith, in their home located at 10 Jennifer Lane, Warren, New Jersey. Pl. Am. Comp. at ¶ 25. Plaintiffs assert that approximately four or five days before Hurricane Sandy, Deborah registered Nancy and William with the “Special Needs Registry” offered by the State. Pl. Am. Comp. at ¶ 29. According to Plaintiffs, the Special Needs Registry was “designed to help people who may have difficulty during an evacuation because of physical or cognitive limitations[.]” Pl. Am. Comp. at ¶ 28. Plaintiffs contend, the State urged disabled individuals to register “so emergency responders [could] better plan to serve them in a disaster or other emergency.” Id. The day before Hurricane Sandy hit New Jersey, Deborah Smith spoke with Jane Asch from the Warren Office of Emergency Management. Pl. Am. Comp. at ¶ 35. According to Plaintiff, Ms. Asch advised that “she had been on a phone call with Governor Christie and it was determined that Nancy and William should stay put in their home.” Pl. Am. Comp. at ¶ 36. Ms. Asch further advised “that a generator would only be delivered to the home in the event the Smiths lost power.” Id. Plaintiffs allege that “relying on the assurance of Warren and Somerset that they would be provided appropriate shelter and safety during the storm, Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 9 of 38 PageID: 424 4 Nancy and William forewent other opportunities to seek appropriate shelter and safety prior to the Storm’s arrival.” Pl. Am. Comp. at ¶ 38. On October 29, 2012, Superstorm Sandy struck New Jersey. Pl. Am. Comp. at ¶ 13. When the storm made landfall, the Smith’s home lost power. Pl. Am. Comp. at ¶ 39. During the days that followed, Plaintiffs were provided with two generators. Pl. Am. Comp. at ¶¶ 40-41, 44. On October 31, 2012, William Smith was removed from the home and transported to a psychiatric hospital by a social worker from Somerset County. Pl. Am. Comp. at ¶ 48. On November 4, 2012, Deborah and Nancy went to a shelter at Bernard’s High School and assert the shelter was inappropriate for disabled persons. Pl. Am. Comp. at ¶¶ 55, 57. On November 10, 2012, William tragically passed away. Pl. Am. Comp. at ¶ 54. Plaintiffs assert that four years before Sandy, the Office of Emergency Management (“OEM”) issued a revised 125-page report entitled “Specialized Shelter Planning.” Pl. Am. Comp. at ¶ 19. This report “emphasized the importance of, and the need for the state and local governments to implement, appropriate emergency planning for disabled persons. The report described disabled persons as “a particularly vulnerable demographic within our population.”” Id. Additionally, Plaintiffs state that the OEM’s website “emphasizes its commitment to so-called “Whole Community Planning.”” Pl. Am. Comp. at ¶ 20. According to the website: Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 10 of 38 PageID: 425 5 The NJOEM is committed to whole-community planning: emergency planning that involves entire communities and not just government agencies. By including the full spectrum of people and organizations represented in a community, emergency planning will account for the needs of all communities’ members, regardless of their personal circumstances or abilities. We include individuals with functional needs, advocates and human service providers in all phases of the emergency management process – mitigation, preparedness, response and recover. There is nothing “special” about insuring everyone can access mass care shelters, understand emergency information, evacuate safely or receive recovery information. Whole- community planning is something we practice as a normal course of business, because every life matters. [Id.]. Plaintiffs’ also allege that Defendants’ legal and ethical duty to provide equal and appropriate emergency planning and care to disabled people was reinforced by Colonel Fuentes. Pl. Am. Comp. at ¶ 21. In a press release issued on May 24, 2011, during National Hurricane Preparedness Week, Colonel Fuentes stated: Our goal is inclusion of people with disabilities in emergency preparedness, and insuring access and integration of people with functional needs into all our emergency management activities … Every life matters. We need to reverse the trend of people with disabilities being disproportionately impacted by disasters. We have a legal – but more importantly – an ethical obligation to do so. [Pl. Am. Comp. at ¶ 21]. Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 11 of 38 PageID: 426 6 Plaintiffs assert that the failure of the Defendants to provide Nancy and William with access to public facilities and services before, during, and in the aftermath of Superstorm Sandy caused significant physical, emotional and monetary harm to Plaintiffs. Pl. Am. Comp. at ¶ 59. Plaintiffs initially filed this action pro se on November 10, 2014. (Docket #1). The Court later appointed pro bono counsel for Plaintiffs, who then filed an Amended Complaint on June 16, 2016. State Defendants now seek to dismiss Plaintiffs’ complaint in its entirety. STANDARD OF REVIEW A. MOTION TO DISMISS, PURSUANT TO FED. R. CIV. P. 12(B)(1) When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(1), a District Court must distinguish between facial and factual challenges to its subject matter jurisdiction. Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). “In a facial attack a Defendant argues that the Plaintiff did not properly plead jurisdiction . . . [whereas] a 'factual attack' asserts that jurisdiction is lacking on the basis of facts outside of the pleadings.” Smolow v. Hafer, 353 F. Supp. 2d 561, 566 (E.D. Pa. 2005). If the court is considering a “factual” attack, where a challenge is based on the sufficiency Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 12 of 38 PageID: 427 7 of the jurisdictional fact, the court is free to weigh the evidence and satisfy itself whether it has the power to hear the case. Brown v. U.S. Steel Corp., 2010 U.S. Dist. LEXIS 115503, at *6 (W.D. Pa. Oct. 29, 2010). In doing so, the court should “consider the allegations of the complaint and documents referenced therein and attached thereto, in the light most favorable to the Plaintiff.” Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citations omitted). Nevertheless, for either a facial or factual attack, the burden is on the plaintiff to prove jurisdiction. McNutt v. Gen. Mortors Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936). B. MOTION TO DISMISS, PURSUANT TO FED. R. CIV. P. 12(B)(6) For a complaint to survive a motion to dismiss under Rule 12(b)(6), it “must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). To determine the sufficiency of a complaint, a court must undertake a three step process: “First, a court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 13 of 38 PageID: 428 8 Finally, where there are well pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (internal citations and quotation marks omitted). ARGUMENT POINT I STATE DEFENDANTS ARE IMMUNE FROM SUIT IN FEDERAL COURT UNDER THE ELEVENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AS TO PLAINTIFFS’ FAIR HOUSING ACT CLAIM The State Defendants are immune to suit in federal court as to Plaintiffs’ Fair Housing Act claim under the Eleventh Amendment. Under the Eleventh Amendment, "an unconsenting State is immune from suits brought in federal courts by her own citizens." Edelman v. Jordan, 415 U.S. 651, 663 (1974); Hans v. Louisiana, 134 U.S. 1, 18 (1890). The Eleventh Amendment provides state governments with immunity to both federal and state causes of action brought in federal courts. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 106 (1984). Also, the Eleventh Amendment bars suit in federal court regardless of the type of relief a plaintiff seeks. Id. at 100 (citing Missouri v. Fiske, 290 U.S. 18, 27 (1933)). State Officers are also immune for any retroactive relief under the Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 14 of 38 PageID: 429 9 Eleventh Amendment when they are sued in their official capacity because such claims are treated as being made against the State itself. See Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky V. Graham, 473 U.S. 159, 169 (1985). Eleventh Amendment immunity applies to a state agency as well when a judgment against it “would have essentially the same practical consequences as a judgment against the State itself." Fitchik v. N.J. Transit Rail Operations, Inc., 873 F.2d 655, 659 (3d Cir. 1989). The Third Circuit has a three part test to determine if an entity is an arm of the state under the Eleventh Amendment. See Bowers v. NCAA, 475 F.3d 524, 546 (3d Cir. 2007) (internal citation omitted). The three factors considered are (1) whether the payment of [a] judgment would come from the state; (2) what status the entity has under state law; and (3) what degree of autonomy the entity has. Id. The Office of Emergency Management (“OEM”) is unmistakably an arm of the State that possesses immunity under the Eleventh Amendment. OEM was created by Executive Order No. 101, initiated by Governor Brendan Byrne. That executive order placed OEM within the Division of State Police. And this Court has held on several occasions that the New Jersey State Police is an “arm of the State.” See E.G. Smith v. New Jersey, 908 F. Supp. 2d 560, 563 (D.N.J. 2012) (holding that the New Jersey State Police is Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 15 of 38 PageID: 430 10 an arm of the State and, thus, not a “person” under 42 U.S.C. § 1983). This Court has done so for good reason: the New Jersey Division of State Police meets the Third Circuit’s test for when an entity is considered an “arm of the State.” First, the Division of State Police is considered a "principal department" within the State's Department of Law and Public Safety. N.J.S.A. 52:17B-3. And The New Jersey Constitution provides that "[e]ach principal department shall be under the supervision of the Governor...." N.J. Const. art. V, § 4, ¶ 2. Further, the Department of Law and Public Safety receives its funding directly from the State’s budget. See 2014 N.J. Laws c.14, 66 (fiscal year 2015 State budget appropriating funds for the Department of Law and Public Safety). Also, the head of OEM, Superintendent Fuentes, is appointed by the Governor with the advice and consent of the Senate, and "shall, with the approval of the [G]overnor, make all rules and regulations for the discipline and control of the state police." N.J.S.A. 52:17B-7; 53:1-2 and -10. Thus, the Office of Emergency Management meets the Third Circuit’s three prong test and is an arm of the State of New Jersey. See Bowers, supra, 475 F.3d at 546. The Fair Housing Act does not contain any provision that even claims to abrogate Eleventh Amendment Immunity. See 42 Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 16 of 38 PageID: 431 11 U.S.C. § 3601, et seq. Therefore, State Defendants are immune from suit under the Eleventh Amendment in relation to Plaintiffs’ Fair Housing Act Claim in this case and that claim should be dismissed. POINT II STATE DEFENDANTS ARE IMMUNE UNDER THE ELEVENTH AMENDMENT TO PLAINTIFFS’ CLAIM UNDER TITLE II OF THE AMERICANS WITH DISABILITIES ACT AS WELL State Defendants are immune under the Eleventh Amendment to Plaintiffs’ claim for relief under Title II of the ADA as well. State Defendants recognize that Title II of the Americans with Disabilities Act succeeded in abrogating Eleventh Amendment immunity for certain types of claims against a State. See 42 U.S.C. § 12202; see also United States v. Georgia, 546 U.S. 151, 159 (2006). But the State’s immunity cannot be abrogated for Plaintiffs’ claim under Title II of the ADA in this case because: (A) Plaintiffs’ Complaint does not allege that the State or any of its employees actually violated the Fourteenth Amendment, and (B) the remedies provided by Title II of the ADA are not congruent and proportional to any of the alleged shortcomings of State Defendants in this case. Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 17 of 38 PageID: 432 12 A. PLAINTIFFS’ COMPLAINT DOES NOT CONTAIN ANY ALLEGATIONS THAT THE STATE ACTUALLY VIOLATED THE FOURTEENTH AMENDMENT Plaintiffs’ claim under Title II of the ADA is barred by the Eleventh Amendment because Plaintiff has failed to allege any conduct on the part of the State Defendants that actually violated the Fourteenth Amendment. The Supreme Court has held that “insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity.” United States v. Georgia, 546 U.S. at 159 (emphasis in original). In Georgia, the plaintiff alleged that he was confined for 23-to-24 hours per day in a small cell in which he could not turn his wheelchair around, and that he lacked access to a toilet and shower without assistance, which led to injuries as well as sitting in his own feces and urine while prison officials refused to assist him in cleaning up the waste. Id. at 156. He also claimed that he had been denied physical therapy and medical treatment, and denied access to virtually all prison programs and services. Id. Therefore, the Supreme Court determined that the plaintiff’s claims in Georgia were based, at least in large part, on conduct that independently violated the provisions of the Due Process Clause of the Fourteenth Amendment. Id. at 159. Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 18 of 38 PageID: 433 13 The unanimous opinion of the Court goes no further than that. It does not hold that Title II can abrogate Eleventh Amendment immunity when a state’s conduct does not independently constitute an actual violation of the Fourteenth Amendment. Rather, the Court stated that the “lower courts” are best situated to determine whether Title II of the ADA validly abrogates sovereign immunity on a claim-by-claim basis. The Third Circuit has explained that to do so lower courts must, “(1) identify which aspects of the State’s alleged conduct violated Title II; (2) identify to what extent such misconduct also violated the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not violate the Fourteenth Amendment, determine whether Congress’s purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” Bowers, supra, 475 F.3d at 552-553 (citing Georgia, supra, 546 U.S. at 159). The Supreme Court was explicit in noting that Congress has not abrogated Eleventh Amendment immunity in all cases under Title II of the ADA. Here, Plaintiffs claim that State Defendants “provide an aid, benefit, or service in the form of an emergency preparedness program” and State Defendants violated the ADA by providing these services “in an unequal manner that denied or limited Nancy and William’s ability to enjoy the benefits as non-disabled persons could.” Pl. Am. Comp. at ¶ 72. And that the Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 19 of 38 PageID: 434 14 State Defendants “failed to take appropriate steps to ensure that Nancy and William could equally enjoy the benefits of Defendants’ emergency preparedness programs and services.” Pl. Am. Comp. at ¶ 73. But a failure by the State Defendants to provide shelter, or otherwise protect Plaintiffs during an emergency, does not violate any provision of the Fourteenth Amendment. i. A FAILURE TO PROVIDE SHELTER OR ACCESS TO THE EMERGENCY PREPAREDNESS PROGRAM TO PLAINTIFFS DOES NOT VIOLATE THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT The State failing to protect or care for Plaintiffs does not violate the Due Process Clause of the Fourteenth Amendment because the State does not have a general Constitutional duty to protect its citizens from harm. See Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189, 197 (1989). Only narrow exceptions to this general rule exist, and Plaintiffs’ have not pleaded any facts to show that any of those exceptions apply and that they were entitled to protection by the State under the Fourteenth Amendment. The only exceptions that can create a duty to protect an individual under the Fourteenth Amendment all relate to the existence of a “custodial relationship” between an individual and the State. Sanford v. Stiles, 456 F.3d 298, 304 (3d Cir. 2006). Indeed, “it is the State's affirmative act of restraining the individual's freedom Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 20 of 38 PageID: 435 15 to act on his own behalf -- through incarceration, institutionalization, or other similar restraint of personal liberty -- which is the ‘deprivation of liberty’ triggering the protections of the Due Process Clause, not its failure to act to protect his liberty interests against harms inflicted by other means.” Deshaney, supra, 489 U.S. at 200. However, Plaintiffs have not set forth any allegations that show such a custodial relationship ever existed between them and State Defendants. The Amended Complaint contains blanket statements that Plaintiffs were “in the care and custody of the State.” Pl. Am. Comp. ¶ 51. But those allegations are nothing “more than conclusions, [that] are not entitled to the assumption of truth.” Santiago, supra, 629 F.3d at 130. And while the Amended Complaint alleges that Mr. Smith was taken from his home and placed in the custody of various institutions, none of those allegations identify any State actors or institutions. Indeed, each of the medical institutions that Plaintiffs allege housed Mr. Smith are not State facilities and were even once separate defendants in this very action. Plaintiffs’ only allegations against the Office of Emergency Management state that four years prior to the storm, OEM “issued a revised 125-page report entitled “Specialized Shelter Planning.” Pl. Am. Comp. at ¶ 19. According to Plaintiffs, the “report emphasized the importance of, and the Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 21 of 38 PageID: 436 16 need for the state and local governments to implement, appropriate emergency planning for disabled persons.” Id. Plaintiffs also refer to the OEM’s website and assert that “OEM’s website similarly emphasizes its commitment to so-called “Whole Community Planning.” Id. at ¶ 20. But these facts are insufficient to impose the protections of the Fourteenth Amendment. As for Defendant Fuentes, Plaintiffs only allegation asserts that “in a press release issued on May 24, 2011, during “National Hurricane Preparedness Week,” Colonel Fuentes stated: “our goal is inclusion of people with disabilities in emergency preparedness, and insuring access and integration of people with functional needs into all our emergency management activities…Every life matters. We need to reverse the trend of people with disabilities being disproportionately impacted by disasters. We have a legal—but more importantly—an ethical obligation to do so.” Id. at ¶ 21. An alleged press release issued four years prior to Hurricane Sandy does not create a custodial relationship or impose a Fourteenth Amendment obligation upon Colonel Fuentes to protect Plaintiffs during an emergency. The only fact alleged against Governor Chris Christie states that an individual from the Office of Emergency Management in Warren, Jane Asch, allegedly relayed to Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 22 of 38 PageID: 437 17 Plaintiffs’ daughter that “she had been on a phone call with Governor Christie and it was determined that Nancy and William should stay put in their home.” Pl. Am. Comp. at ¶ 36. Again, Governor Christie’s alleged involvement in a conference call is insufficient to impose a duty under the Fourteenth Amendment. Plaintiffs allege that the State’s responsibility to provide them with safe shelter arose, at least partially, from the fact that “approximately four or five days before the Storm, Deborah registered Nancy and William with the ‘Special Needs Registry’ offered by the State.” Pl. Am. Comp. at ¶ 29. Such registration, however, does not, in and of itself, create a duty under the Fourteenth Amendment for the State to protect Plaintiffs. Cf. Town of Castle Rock v. Gonzales, 545 U.S. 748, 768 (2005) (holding that a citizen did not have a Constitutional right to the enforcement of a restraining order, even though the Colorado restraining order statute contained mandatory enforcement language). Therefore, Plaintiffs have failed to set forth any allegations that show that the State violated the Due Process Clause of the Fourteenth Amendment. ii. A FAILURE TO PROVIDE SHELTER OR ACCESS TO THE EMERGENCY PREPAREDNESS PROGRAM TO PLAINTIFFS DOES NOT VIOLATE THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 23 of 38 PageID: 438 18 The State Defendants failing to provide “safe shelter” for Plaintiffs or otherwise protect Plaintiffs during an emergency does not violate the Equal Protection Clause of the Fourteenth Amendment because Plaintiff’s Complaint does not set forth any actions or policies of the State that would not survive rational basis review. The Supreme Court has held that people with disabilities are not a suspect class for the purposes of an equal protection challenge and, thus, the actions of the State need only pass rational basis review. See City of Cleburne v. City of Cleburne Living Center, 473 U.S. 432, 439 (1985). Thus, the only way that the States actions can violate the Equal Protection Clause is if they were motivated by an irrational prejudice towards people with disabilities. See Id. at 450. Plaintiffs’ failed to plead in their Complaint that the State’s alleged failure to provide “safe shelter” was motivated by an irrational prejudice toward people with disabilities. In fact, Plaintiffs’ Complaint failed to even allege any facts to suggest that those without disabilities were provided sufficient care and shelter while those with disabilities were not. Therefore, Plaintiffs have failed to plead sufficient facts to show that the State Defendants violated the Equal Protection Clause of the Fourteenth Amendment. Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 24 of 38 PageID: 439 19 B. CONGRESS DID NOT ABROGATE THE STATE’S ELEVENTH AMENDMENT IMMNUNITY WITH REGARD TO ITS ALLEGED ACTIONS IN THIS CASE BECAUSE TITLE II’S DEMANDS ARE NEITHER CONGRUENT NOR PROPORTIONAL TO RIGHTS UNDER THE FOURTEENTH AMENDMENT IN THIS CONTEXT Should the court find that the alleged conduct of the State was constitutional, but nevertheless violated Title II of the ADA, Defendants are still entitled to immunity because Congress’s purported abrogation of Eleventh Amendment immunity by Title II is neither congruent or proportional to the constitutional rights at issue in this matter. See Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 365 (2001), citing, City of Boerne v. Flores, 521 U.S. 507, 536 (1997). In making this determination under the third prong of the Georgia inquiry, the court must identify: (1) with some precision the constitutional right at issue; (2) whether Congress identified a history and pattern of unconstitutional discrimination by the States against the disabled; and (3) whether the rights and remedies created by the statute are congruent and proportional to the constitutional rights it purports to enforce and the record of constitutional violations adduced by Congress. Bowers, supra, 475 F.3d at 551. First, the constitutional right at issue in this case would be a violation of the Fourteenth Amendment, had Plaintiffs sufficiently pleaded one in their Complaint. Second, the Court in Tennessee v. Lane, 541 U.S. 509, 529 (2004), “concluded that Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 25 of 38 PageID: 440 20 Congress had clearly identified a history and pattern of disability discrimination with respect to public services.” Bowers, supra, 475 F.3d at 554. Therefore, the determination of whether Title II validly abrogates sovereign immunity turns on the third sub-inquiry as to whether the remedy created by Title II is congruent and proportional to the protections guaranteed by the Fourteenth Amendment. It is not. Congress enacted the ADA to address the various instances of continuous discrimination against disabled Americans, including those findings that: individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities. 42 U.S.C. § 12101. Title II is a broad, sweeping legislation which imposes a positive obligation on the States to provide accommodations to those with disabilities. Whereas, the Fourteenth Amendment, in this context, only requires that the State refrain from acting out of irrational prejudice towards those with disabilities. Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 26 of 38 PageID: 441 21 (See Point I (A), above). As a result, Title II would impose monetary damages upon the States for countless actions that it takes during emergencies that are otherwise constitutional under the Fourteenth Amendment. Therefore, to the extent that Congress has enacted Title II to enforce the Fourteenth Amendment, it essentially rewrites the Fourteenth Amendment because it provides liability for far more types of conduct than the Constitution does. Id. at 502. Accordingly, “Title II is not a congruent and proportionate means for enforcing the Eighth Amendment.” Id. at 503. Title II is not tailored to remedying likely constitutional violations, because it does little to limit liability to arguable or likely constitutional violations.” See Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627, 646 (1999) (“Despite subjecting States to this expansive liability, Congress did nothing to limit the coverage of the Act to cases involving arguable constitutional violations”). Although the provisions of Title II permit some flexibility by requiring only reasonable efforts at accommodation, the expansive breath of the ADA’s sweep is glaring if applied in this matter. Here, Plaintiffs would have the State Defendants be held liable under Title II even though their actions were clearly not unconstitutional. Indeed, Title II's demand for modification or accommodation “is so out of proportion to a Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 27 of 38 PageID: 442 22 supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” City of Boerne, supra, 521 U.S. at 532. As such, Title II of the ADA is neither congruent nor proportional in this context. Accordingly, the State Defendants are entitled to sovereign immunity on Plaintiffs’ claims under Title II of the ADA. POINT III PLAINTIFFS FAILED TO STATE A CLAIM FOR RELIEF UNDER THE REHABILITATION ACT AGAINST STATE DEFENDANTS Section 504 of the Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with a disability. 29 U.S.C. § 794. Section 504 directs: No otherwise qualified individual with a disability in the United States, as defined in section 7(20) [29 U.S.C.A. § 705(20)], 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 or under any program or activity conducted by any Executive agency or by the United States Postal Service. In other words, the act prohibits a federal grant recipient from discriminating against an otherwise qualified individual with a disability solely because of that disability. Byrne v. Bd. of Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 28 of 38 PageID: 443 23 Educ., School of W. Allis-West Milwaukee, 979 F.2d 560, 563 (7th Cir. 1992). To establish a prima facie case of discrimination under 29 U.S.C. § 794, a plaintiff must prove: (1) that he or she is an individual with a disability under the act, (2) that he or she is otherwise qualified for the benefit sought, (3) that he or she was discriminated against solely by reason of his disability, and (4) that the program or activity in question receives federal financial assistance. See Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1009 (3d Cir. 1995); see also Grzan v. Charter Hosp. of N.W. Ind., 104 F.3d 116, 119 (7th Cir. 1997). Plaintiffs’ Rehabilitation Act claim fails as to the State Defendants because the Amended Complaint is completely devoid of any factual allegations that the State Defendants denied any benefits to Plaintiffs due to discrimination based solely on their disabilities. As to the State Defendants, Plaintiffs’ Complaint only puts forth bare bones allegations. First, Plaintiffs allege that OEM issued a revised 125-page report entitled “Specialized Shelter Planning” four years prior to Superstorm Sandy. Pl. Am. Comp. at ¶¶ 19-20. This report “emphasized the importance of, and the need for the state and local governments to implement, appropriate emergency planning for disabled persons. The report described disabled persons as Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 29 of 38 PageID: 444 24 “a particularly vulnerable demographic within our population.”” Pl. Am. Comp. ¶ 19. Additionally, Plaintiffs state that the OEM’s website “emphasizes its commitment to so-called “Whole Community Planning.”” Pl. Am. Comp. ¶ 20. If anything, these allegations show that the State had previously expressed a desire to accommodate and help those with disabilities during emergencies: a sentiment that is the complete opposite of the discrimination that Plaintiffs must allege in order to successfully plead a claim under the Rehabilitation Act. Similarly, the only fact that Plaintiffs pled in relation to Colonel Fuentes tends to shows only a desire to assist those with disabilities, rather than discriminate against them. Pl. Am. Comp. ¶ 21. Plaintiffs allege that in a press release issued on May 24, 2011, during National Hurricane Preparedness Week, Colonel Fuentes stated: Our goal is inclusion of people with disabilities in emergency preparedness, and insuring access and integration of people with functional needs into all our emergency management activities … Every life matters. We need to reverse the trend of people with disabilities being disproportionately impacted by disasters. We have a legal – but more importantly – an ethical obligation to do so. [Pl. Am. Comp. ¶ 21]. Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 30 of 38 PageID: 445 25 The Amended Complaint’s only other allegation that relates to any State actor is that, the day before the storm, Deborah Smith spoke with Jane Asch from the Warren Office of Emergency Management. Pl. Am. Comp. ¶ 35. According to Plaintiff, Ms. Asch advised that “she had been on a phone call with Governor Christie and it was determined that Nancy and William should stay put in their home.” Pl. Am. Comp. ¶ 36. Those facts do not show, or even suggest, imply, or hint at, the motivation of either Ms. Asch or Governor Christie. Indeed, one could just as easily infer from those facts that Asch and Christie’s actions were motivated by, say, Plaintiffs’ geographical location or the availability of resources rather than being motivated “solely” on the basis of their disabilities. There are no other facts throughout the entirety of the complaint that depict any action or involvement by State Defendants. And those limited facts do not plausibly show any discrimination based upon Plaintiffs’ disabilities by the State Defendants as required by Rule 8(a). See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (stating that a complaint must allege specific facts such as “conduct, time, place, and persons responsible”). Furthermore, Plaintiffs do not even allege that State Defendants’ conduct and actions affecting them were based “solely” on their disabilities. Indeed, there is virtually an Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 31 of 38 PageID: 446 26 endless amount of factors and considerations that public officials need to account for during an emergency, and none of Plaintiffs’ allegations tend to show that any State Defendant or State employee was motivated “solely” by the disabilities of Plaintiffs rather than any other possible motivation. Therefore, the facts pled in the Amended Complaint do not amount to a cause of action under Section 504 of the Rehabilitation Act against any of the State Defendants and must be dismissed. POINT IV PLAINTIFFS DO NOT POSESS STANDING TO SEEK PROSPECTIVE INJUNCTIVE RELIEF AGAINST GOVERNOR CHRISTIE OR SUPERINTENDENT FUENTES Regardless of whether Governor Christie or Superintendent Fuentes (collectively “State Officer Defendants”) possess Eleventh Amendment Immunity in relation to Plaintiffs’ claims for retroactive relief, their claims for prospective injunctive relief should be dismissed because Plaintiffs lack Article III standing to seek that type of remedy in federal court. Typically, State officers who are sued in their official capacity are subject to the same immunity as the State itself. Edelman, supra; Kentucky V. Graham, 473 U.S. at 169. The one traditional exception to that rule is when a plaintiff sues a State officer in his official capacity for violations of federal law for the purpose of obtaining prospective injunctive relief. Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 32 of 38 PageID: 447 27 Official capacity suits against state officials are permissible only to the extent that they seek either injunctive or declaratory relief can be “properly characterized as prospective.” Verizon Md. Inc. v. Pub. Serv. Commission of Maryland, 535 U.S. 635, 645 (2002); See also Ex Parte Young, 209 U.S. 123, 159-160 (1908); Green v. Mansour, 474 U.S. 64, 73 (1985). But Plaintiffs must first “show a present case or controversy regarding injunctive relief” as required by Article III of the United State Constitution before a federal court may exercise jurisdiction over such claims. Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O’Shea v. Littleton, 414 U.S. 488, 495-496 (1974)). Any party who seeks to invoke the jurisdiction of the federal courts “must satisfy the threshold requirement imposed by Art. III of the Constitution by alleging an actual case or controversy.” Id. at 101 (citing Flast v. Cohen, 392 U.S. 83, 94-101 (1968); Jenkins v. McKeithen, 395 U.S. 411, 421-425 (1969)). When assessing whether a party has standing based solely on facts alleged in a complaint, courts apply the same standard of review used when assessing a motion to dismiss for failure to state a claim. Finkelman v. NFL, 810 F.3d 187, 194 (3d Cir. 2016) (internal citation omitted). Thus, in order to show that a plaintiff possesses standing, a complaint “must Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 33 of 38 PageID: 448 28 contain sufficient factual matter, accepted as true, to ‘state a claim for [standing] that is plausible on its face.’” Iqbal, supra, 556 U.S. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This case is not a class action. Plaintiffs cannot pursue a claim for injunctive relief on behalf of the entire disabled population of New Jersey. Rather, the specific Plaintiffs in this case must show that they are “‘immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct and the . . . threat of injury must be both ‘real and immediate,’ not ‘conjectural’ or ‘hypothetical.’” Lyons, supra, 461 U.S. at 102 (internal citations omitted). Thus, Plaintiffs cannot simply allege that “New Jersey [is] highly susceptible to the effects of natural disasters and other emergencies” and that they suffer from disabilities in order to show that they possess Article III standing. See Pl. Am. Comp. at ¶¶ 14, 66-67. In fact, Plaintiffs have not pled any facts at all in their Complaint showing that Nancy Smith is realistically and immediately threatened by the repetition of the type of experience that she suffered during Superstorm Sandy. 1 The 1 William Smith is now tragically deceased and, thus, there is no prospective injunction that could possibly be of any benefit to him. Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 34 of 38 PageID: 449 29 blanket statement that New Jersey is “highly susceptible” to natural disasters is not a pleading that shows that Nancy Smith is any more likely to suffer the effects of a natural disaster than any other of New Jersey’s nearly nine-million residents. Furthermore, the allegation that New Jersey is “highly susceptible” to natural disasters arguably does not surpass the threshold of speciousness, let alone surpassing the threshold of plausibility as required under Rule 8(a) of the Federal Rules of Civil Procedure. See Iqbal supra, 556 U.S. at 678. New Jersey cannot be realistically characterized as “highly susceptible” to, for instance, earthquakes when compared to California, blizzards when compared to Alaska, or hurricanes when compared to Florida. See E.G. National Oceanic and Atmospheric administration, Hurricane Research Division, http://www.aoml.noaa.gov/hrd/tcfaq/E19.html (showing that, in the past 164 years, New Jersey has had only 2 hurricanes that made landfall while Florida has had 114). Indeed, the Complaint fails to even plead what type of natural disaster or emergencies New Jersey is “highly susceptible” to. And, if Nancy Smith cannot even plausibly plead that she is realistically and immediately susceptible to another natural disaster or emergency in a way that is neither conjectural nor Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 35 of 38 PageID: 450 30 hypothetical, then there is no possible way that she can plausibly plead that she is in realistic and immediate danger of the State failing to afford her with appropriate emergency services that accommodate her disability during such a disaster or emergency. See Lyons, supra, 461 U.S. at 101-112. In Lyons, the plaintiff sought injunctive and declaratory relief prohibiting the Los Angeles police department from using chokeholds against any person unless that person posed the threat of immediately using deadly force. 461 U.S. at 98. Lyons had allegedly been the victim of a chokehold at the hands of police that had left him with damage to his larynx. Id. at 97- 98. The Court held that, while Lyon’s past experience provided him with Article III standing to pursue a damages claim against the city, he had not pled sufficient facts to show standing in relation to his desired prospective equitable relief. Id. at 107. His “standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers.” Id. at 105. Thus, Lyons would have needed to not only allege that he was likely to imminently have another encounter with police, but also that “all police officers in Los Angeles always choke any citizen with whom they have an encounter.” Id. at 105-106 (emphasis in original). Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 36 of 38 PageID: 451 31 Much like the single chokehold incident plaintiff suffered in Lyons, Nancy Smith’s allegation that she suffered from the effects of Superstorm Sandy and that, in that single instance, she was not provided adequate emergency services or accommodations is not sufficient to provide her with Article III standing to seek prospective equitable relief in federal court. Instead, Smith would need to plead plausible facts that show that there is a “real and immediate” danger that the specific area of New Jersey where she currently resides will suffer a natural disaster or emergency and that the emergency services and shelter provided her would once again somehow fail to accommodate her specific disability in some way. The Amended Complaint falls far short of pleading anything remotely resembling such facts and, therefore, Plaintiffs’ claims for prospective relief against the State Officer Defendants should be dismissed for lack of standing. CONCLUSION For the foregoing reasons, the Court should grant State Defendants’ motion and dismiss all claims them. Respectfully Submitted, CHRISTOPHER S. PORRINO ACTING ATTORNEY GENERAL OF NEW JERSEY Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 37 of 38 PageID: 452 32 By:/s/ Matthew Lynch Matthew J. Lynch Deputy Attorney General By:/s/Nicole Adams Nicole E. Adams Deputy Attorney General Case 3:14-cv-07178-MAS-LHG Document 57-1 Filed 07/22/16 Page 38 of 38 PageID: 453 1 ROBERT LOUGY ACTING ATTORNEY GENERAL OF NEW JERSEY R.J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendants the State of New Jersey, the Office of Emergency Management, Governor Chris Christie, and Colonel Rick Fuentes By: Matthew J. Lynch Deputy Attorney General (609) 633-8687 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON VICINAGE NANCY A. SMITH, individually and as the Administrator of the ESTATE OF WILLIAM L. SMITH, Plaintiff, v. TOWNSHIP OF WARREN, SOMERSET COUNTY, NEW JERSEY OFFICE OF EMERGENCY MANAGEMENT, STATE OF NEW JERSEY, et al. Defendants. : : : : : : : Hon. Michael A. Shipp, U.S.D.J. Civil Action No. 14-07178 ORDER This matter having come before the Court on motion of Christopher S. Porrino, Acting Attorney General of New Jersey, by Matthew J. Lynch, Deputy Attorney General, on behalf of Defendants the State of New Jersey, the Office of Emergency Management, Governor Chris Case 3:14-cv-07178-MAS-LHG Document 57-2 Filed 07/22/16 Page 1 of 2 PageID: 454 2 Christie, and Colonel Rick Fuentes, pursuant to FED. R. CIV. P. 12(b)(1) and FED. R. CIV. P. 12(b)(6), and the Court having considered the papers submitted herein and decided the matter pursuant to FED. R. CIV. P. 78, and for good cause shown; IT IS ON THIS day of , 2016; ORDERED that Defendants State of New Jersey, the Office of Emergency Management, Governor Chris Christie, and Colonel Rick Fuentes, Motion to Dismiss the Complaint for Failure to State a Claim is hereby GRANTED; and IT IS FURTHER ORDERED that plaintiffs’ Complaint is dismissed with prejudice as it pertains to these defendants. ________________________________ Hon. Michael A. Shipp, U.S.D.J. Case 3:14-cv-07178-MAS-LHG Document 57-2 Filed 07/22/16 Page 2 of 2 PageID: 455 CHRISTOPHER S. PORRINO ACTING ATTORNEY GENERAL OF NEW JERSEY Richard J. Hughes Justice Complex 25 Market Street P.O. Box 112 Trenton, NJ 08625-0112 Attorney for Defendants State of New Jersey, the Office of Emergency Management, Governor Chris Christie, and Colonel Rick Fuentes By: Matthew J. Lynch Deputy Attorney General (609) 633-8687 UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY TRENTON VICINAGE NANCY A. SMITH, individually and as the Administrator of the ESTATE OF WILLIAM L. SMITH, Plaintiff, v. TOWNSHIP OF WARREN, SOMERSET COUNTY, NEW JERSEY OFFICE OF EMERGENCY MANAGEMENT, STATE OF NEW JERSEY, et al., Defendants. : : : : : : : Hon. Michael A. Shipp, U.S.D.J. Civil Action No. 14-07178 (MAS- DEA) CERTIFICATE OF SERVICE I hereby certify that, July 22, 2016, Defendants’ Brief in Support of their Motion to Dismiss the Complaint for Failure to State a Claim was electronically filed with the Clerk of the United States District Court and that copies of the Case 3:14-cv-07178-MAS-LHG Document 57-3 Filed 07/22/16 Page 1 of 2 PageID: 456 2 motion were served on all parties via the Court’s Case Management/Electronic Case Filing (CM/ECF) system. Dated: July 22, 2016 s/Matthew J. Lynch Matthew J. Lynch, DAG Case 3:14-cv-07178-MAS-LHG Document 57-3 Filed 07/22/16 Page 2 of 2 PageID: 457