Smith et al v. Township of Warren et al

REPLY BRIEF to Opposition to Motion

D.N.J.September 26, 2016

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY VICINAGE OF TRENTON NANCY A. SMITH, individually and as the Administrator of the HON. BRIAN R. MARTINOTTI ESTATE OF WILLIAM L. SMITH, Plaintiff, Civil Action No.: 14-07178 v. TOWNSHIP OF WARREN, SOMERSET COUNTY, NEW JERSEY OFFICE OF EMERGENCY MANAGEMENT, STATE OF NEW JERSEY, et al. Defendants. BRIEF IN SUPPORT OF 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-BRM-LHG Document 75 Filed 09/26/16 Page 1 of 15 PageID: 559 TABLE OF CONTENTS Introduction ...................................................1 Argument POINT I THE COURT SHOULD REACH THE ABROGATION ISSUE BECAUSE THE DIVERGENT LEVELS OF PROOF REQUIRED UNDER THE TWO STATUTES WOULD BE A MATERIAL ISSUE IN THIS CASE ...................................1 POINT II THE STATE'S IMMUNITY SHOULD NOT BE ABROGATED IN RELATION TO PLAINTIFFS' CLAIMS BECAUSE TITLE II OF THE ADA IS NOT A CONGRUENT AND PROPORTIONAL REMEDY TO A CONSTITUTIONAL INJUNRY IN THIS CONTEXT ..............................4 POINT III PLAINTIFFS FAILED TO STATE A CLAIM FOR RELIEF UNDER THE REHABILITIATION ACT AGAINST STATE DEFENDANTS ...........................................6 POINT IV PLAINTIFFS DO NOT POSSESS STANDING TO SEEK PROSPECTIVE INJUNCTIVE RELIEF AGAINST GOVERNOR CHRISTIE OR SUPERINTENDENT FUENTES ...................8 Conclusion ....................................................11 Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 2 of 15 PageID: 560 Table of Authorities Cases Cited Alsbrook v. City of Maumelle, 184 F.3d 999, 1009 (8th Cir. 1999) (en banc) ....................... ........................5, 10 Benett-Nelson v. Louisiana Bd. of Regents, 431 F. 3d 448 (stn Cir. 2005) ....................................................2 Calloway v. Boro of Glassboro Dept of Police, 89 F. Supp. 2d 543 ..........................................................10 Chambers v. Sch. Dist. Of Phila. Bd. of Educ., 827 F. Supp. 2d 409 (E.D. Pa. 2011) ...........................................6 City of Cleburne v. City of Cleburne Living Center, 473 U.S. 432 (1985) .........................................4 Crowe v. Miss. Div. of Medicaid, 615 Fed. Appx• 181, 182 (5th Cir. 2015) ....................................................2 Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) ...............................................4 Doe v. County of Ctr., 242 F.3d 437 (3d Cir. 2001) .............9 Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998) ......6 Grzan v. Charter Hosp. of N.W. Ind., 104 F.3d 116 (7th Cir. 1997) .........................................................7 Los Angeles v. Lyons, 461 U.S. 95 (1983) ....................8, 9 Nathanson v. Med. College of Pennsylvania, 926 F.2d 1368 (3d Cir. 1991) ....................................................7 O'Shea v. Littleton, 414 U.S. 488 (1974) ....................8, 9 Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 3 of 15 PageID: 561 Pace v. Bogalusa City Sch. Bd., 403 F.3d 272 (5th Cir. 2005). ..2 Soledad v. U.S. Dept. of Treas., 304 F.3d 500, 503-04 (5th Cir. 2002) .............................. .........................3 Tennessee v. Lane, 541 U.S. 509 (2004) .........................4 Texas v. United States, 523 U.S. 296 (1998) ....................9 Verizon Md. Inc. v. Pub. Serv. Commission of Maryland, 535 U.S. 635 (2002) ....................................................8 Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002 (3d Cir. 1995) ..............................................7 Woodhouse v. Magnolia Hosp., 92 F.3d 248, 253 (5th Cir. 1996)) 3 Statutes Cited 29 U.S.C.A. § 794 ...........................................3, 7 42 U.S.C. § 12131 .............................................10 iv Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 4 of 15 PageID: 562 INTRODUCTION Defendants the State of New Jersey, the Office of Emergency, Colonel Joseph Fuentes, and Governor Chris Christie, submit this Memorandum of Law in Reply to Plaintiffs' Opposition to Defendants' Motion to Dismiss. The Court should reject the arguments made in Plaintiffs' Opposition. First, the Court should reach the abrogation issue because the divergent levels of proof required under the two statutes would be a material issue in this case. Second, the State's immunity should not be abrogated in relation Plaintiffs' claims. Third, Plaintiffs failed to state a claim for relief under the Rehabilitation Act. Finally, Plaintiffs do not possess standing to seek prospective injunctive relief against Governor Christie or Superintendent Fuentes. ARGUMENT POINT I THE COURT SHOULD REACH THE ABROGATION ISSUE BECAUSE THE DIVERGENT LEVELS OF PROOF REQUIRED UNDER THE TWO STATUTES WOULD BE A MATERIAL ISSUE IN THIS CASE This Court needs to address whether Title II of the Americans with Disabilities Act ("ADA") successful abrogates the Eleventh Amendment of the states in the context of providing citizens with emergency services. In their Opposition, Plaintiffs contend that there is no need to reach the abrogation issue because the 1 Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 5 of 15 PageID: 563 Rehabilitation Act and the ADA "provide coextensive rights and remedies." P1. Opp• Br. at 11. In making their argument, Plaintiffs seemingly misread two Fifth Circuit cases to mean that the abrogation issue related to an ADA claim against a state will never be an issue so long as there is a concomitant Rehabilitation Act claim. 1 Rather, those courts did not reach the abrogation issues because the coextensive remedies offered by the plaintiff's Rehabilitation Act claim and because the discrepancy in the causation requirements between the two statutes were not at issue in those cases. See Bennett-Nelson v. Louisiana Bd. of Regents, 431 F.3d 448, 455 (5th Cir. 2005) (en Banc); Pace v. Bogalusa City Sch. Bd., 403 F.3d 272, 287 (5th Cir. 2005) . In this case, unlike in Bennett-Nelson, the difference in the level of proof needed to maintain a cause of action under each statute is an issue that could prove determinative in whether State Defendants would ultimately be held liable. See Crowe v. Miss. Div. of Medicaid, 615 Fed. Appx• 181, 182 (5th Cir. 2015) (directing the district court below to address the abrogation issue because, unlike in Bennett-Nelson, "causation will likely be an issue at 1 State Defendants recognize that they receive federal funding in relation to emergency responses and, thus, the liability created under the Rehabilitation Act is a valid use by Congress of its powers under the spending clause of Article I of the United States Constitution. See South Dakota v. Dole, 483 U.S. 203, 212 (1987). 2 Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 6 of 15 PageID: 564 trial") The ADA allows for liability for a "mixed motive" type of discrimination because "discrimination need not be the sole reason" for the denial of benefits in order to hold a defendant liable. Soledad v. U.S. Dept. of Treas., 304 F.3d 500, 503-04 (5th Cir. 2002) (quoting Woodhouse v. Magnolia Hosp., 92 F.3d 248, 253 (5th Cir. 1996)). Conversely, the Rehabilitation Act permits liability for failures based "solely" on the disability of the plaintiff. See 29 U.S.C. ~ 794. In this case, the authorities needed to make determinations in relation to address the needs of all New Jersey residents who might be affected by the coming storm, not just those with disabilities. One can easily imagine a scenario where the special needs of those with disabilities were considered in conjunction with many other factors to make a determination as to what emergency services should be provided to whom. Such a determination would take into account a myriad of factors other than "solely" the disabilities of a subsect of citizens. Thus, decisions made in that context, along with all of their attendant considerations, could theoretically give rise to liability under the ADA but not the Rehabilitation Act. Therefore, this Court needs to address whether Congress successfully abrogated Eleventh Amendment immunity in the context of emergency services because the determination of that issue will 3 Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 7 of 15 PageID: 565 directly impact what Plaintiff's would need to prove in order to succeed on their claims at trial. THE STATE'S IMMUNITY SHOULD NOT BE ABROGATED IN RELATION TO PLAINTIFFS' CLAIMS BECAUSE TITLE II OF THE ADA IS NOT A CONGRUENT AND PROPORTIONAL TO REMEDY TO A CONSTITUTIONAL INJURY IN THIS CONTEXT State Defendants' immunity was not abrogated in the context of providing emergency services because Title II's scope is such that it is not a congruent and proportional remedy to constitutional violations in that realm. In Tennessee v. Lane, the Court found that Title II abrogated immunity in the context of access to the courts because citizens have a fundamental constitutional right to such access and any impediments to that access necessarily violate the Constitution. 541 U.S. 509, 530 (2004). In the context here, however, individuals do not have any constitutional right to affirmative government aid from danger. Deshaney v. Winnebago County Department of Social Services, 489 U.S. 189, 196 (1989). Thus, the United States Constitution requires only that emergency services be provided in a way that is not arbitrary or irrational. See Cleburne v. Cleburne Living Center, 473 U.S. 432 446-447 (1985) (holding that laws that make distinctions based on mental disabilities need only withstand rational basis review). Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 8 of 15 PageID: 566 In order to be a congruent and proportional remedy to violations of the Fourteenth Amendment, Title II would need to create liability in the context of emergency services only in instances where the State's actions were irrational, such as when they are motivated by a "bare desire to harm a politically unpopular group" Id. Title II of the ADA, however, would create liability against the State for any failure to provide reasonable accommodations and modifications to emergency services for the disabled. Thus, "[u]nder Title II, a state's program, service, or activity, even if rationally related to a legitimate state interest under Cleburne, would be struck down unless it provided `reasonable modifications."' Alsbrook v. City of Maumelle, 184 F.3d 999, 1009 (8th Cir. 1999) (en Banc) . Thus, the scope of the ADA is much broader and creates remedies for much more conduct than that which is constitutionally impermissible. Unlike in Lane, where any unreasonable impediment to access the courts would simultaneously violate both the Constitution and Title II, here the rights are not coextensive because there are many ways in which emergency services could violate the ADA but not the United States Constitution. Therefore, Title II does not successfully abrogated Eleventh Amendment immunity in the context of emergency services, and Plaintiffs' ADA claims against State Defendants should all be dismissed. 5 Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 9 of 15 PageID: 567 PLAINTIFFS HAVE FAILED TO STATE A CLAIM FOR RELIEF UNDER THE REHABILITATION ACT AGAINST STATE DEFENDANTS In their opposition, Plaintiffs' argue that the Amended Complaint presents sufficient facts to support a claim for relief under Section 504 of the Rehabilitation Act. Plaintiffs base their opposition on a theory that a plaintiff need not establish that there was intent to discriminate in order to prevail under Section 504. However, a "Showing of intentional discrimination is prerequisite to recovery of damages by plaintiffs when violations of Rehabilitation Act or ADA have occurred." Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998), see also Chambers v. Sch. Dist. Of Phila. Bd. of Educ., 827 F. Supp. 2d 409 (E.D. Pa. 2011). Plaintiffs' have failed to plead any facts showing that any of the State Defendants intentionally discriminated against Plaintiffs either before, during, or after Superstorm Sandy. If anything, the Amended Complaint pleads facts that show a desire by State Defendants to go out of their way to help those with disabilities during emergency situations. (Am. Comp. at ¶¶ 20-21). However, even if this court concludes that intentional discrimination is unnecessary to sustain a claim under the Rehabilitation Act, Plaintiffs' still have failed to provide any evidence or facts to support any action or involvement by the State Defendants in the alleged discrimination. As the State Defendants C~ Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 10 of 15 PageID: 568 laid out in their moving papers, 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 base their opposition on a theory that unintentional conduct is sufficient to establish a claim under the Rehabilitation Act. See Nathanson v. Med. College of Pennsylvania, 926 F.2d 1368 (3d Cir. 1991). However, the main element at issue in this matter is whether "he or she was discriminated against solely by reason of his disability." Whether or not any alleged discrimination was intentional or unintentional is irrelevant as Plaintiffs have failed to establish or allege any facts to support that they were discriminated against solely by reason of his or her disability. Without sufficient facts to establish the third element of a cause of action under the Rehabilitation Act, Plaintiffs claim fails . Plaintiffs have provided little to no facts to establish any action or inaction by the State Defendants, whether intentional or unintentional. Plaintiffs appear to base their allegations against 7 Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 11 of 15 PageID: 569 the State on a theory that the State Defendants were aware of their obligation to make sure that people with disabilities have access to emergency preparedness programs. (P1. Op. at 28) However, expressing a desire to provide emergency programs to disabled individuals across the state does not amount to discriminating against someone, let alone discrimination solely based upon their disability. Plaintiffs baldly state that Defendants "wholly failed to take the necessary steps" to protect Nancy and William but do not provide any facts to support such an allegation. Bald assertions, without supporting facts, are insufficient to support a claim under the Rehabilitation Act. As such, Plaintiffs' claim for violations of Section 504 of the Rehabilitation Act should be dismissed for failure to state a claim. PLAINTIFFS DO NOT POSESS STANDING TO SEEK PROSPECTIVE INJUNCTIVE RELIEF AGAINST GOVERNOR CHRISTIE OR SUPERINTENDENT FUENTES Plaintiffs' claims for prospective injunctive relief should be dismissed because Plaintiffs lack Article III standing to seek such a remedy in federal court. In order for plaintiff to bring a claim for injunctive or declaratory relief, the claim must be "properly characterized as prospective" and must first "show a present case or controversy regarding injunctive relief." Verizon Md. Inc. v. Pub. Serv. Commission of Maryland, 535 U.S. 635, 645 (2002); Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (quoting O'Shea v. n Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 12 of 15 PageID: 570 Littleton, 414 U.S. 488, 495-496 (1974)). That hypothetical danger "rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all." Doe v. County of Ctr., 242 F.3d 437, 453 (3d Cir. 2001) (quoting Texas v. United States, 523 U.S. 296, 300 (1998)). Plaintiffs' claim for injunctive relief at this time is purely speculative. As the court explained in O'Shea, "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief[.]" Id. at 495-96. Plaintiff's allegations that she was previously dissatisfied with the emergency services supplied, is insufficient to show a present CaS2 OY' controversy that 1S "real' and "immediate.~~ Lyons, Supra. In this case, Plaintiffs have done nothing more than allege past exposure to what they believe to be unconstitutional state action. Even throughout their Opposition, Plaintiffs continuously rely on alleged past wrongs to support their cause of action for injunctive relief. However, as the case law has made clear, that is not enough to secure standing to sue for prospective relief. Plaintiffs have failed to establish a real likelihood or an "immediate threat" that she will be subject to the type of experience she suffered during Superstorm Sandy. Even if this court concludes that Plaintiffs have alleged a cognizable claim against Governor Christie and Colonel Fuentes for Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 13 of 15 PageID: 571 prospective injunctive relief, Plaintiffs' claim against both individually named defendants must be dismissed as they are not "public entities" subject to liability under the statute. The ADA prohibits discrimination of disabled persons by denying any benefit or service offered by a public entity due to a person's disability or discrimination by any such entity. See 42 U.S.C. ~ 12131, et seq. "Public entity is defined in the ADA as: (A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority (as defined in section 502(8) of Title 45) . [42 U.S.C. § 12131.] This section clearly does not include individuals. See Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir. 1999) (en banc), cert. dismissed, Alsbrook v. Arkansas, 529 U.S. 1001 (2000). Therefore, State Defendants Governor Christie and Colonel Fuentes cannot be held liable for violations of Title II of the ADA. See Calloway v. Boro of Glassboro Dep t of Police, 89 F. Supp. 2d 543, 557 (D.N.J. 1000). As such, this claim against these defendants must be dismissed. 10 Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 14 of 15 PageID: 572 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 By : /s/ ~~~.eu~ ~iiyyac Matthew J. Lynch Deputy Attorney General By : ~:~/C~~,~, ~~,a~m~i. Nicole E. Adams Deputy Attorney General 11 Case 3:14-cv-07178-BRM-LHG Document 75 Filed 09/26/16 Page 15 of 15 PageID: 573 1 CHRISTOPHER S. PORRINO 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: Nicole E. Adams Deputy Attorney General (609) 633-1971 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, Plaintiffs, v. TOWNSHIP OF WARREN, SOMERSET COUNTY, NEW JERSEY OFFICE OF EMERGENCY MANAGEMENT, STATE OF NEW JERSEY, et al., Defendants. : : : : : : Hon. Brian R. Martinotti, U.S.D.J. Civil Action No. 14-07178 CERTIFICATE OF SERVICE I certify that, September 26, 2016, Defendants’ Brief in reply to Plaintiffs’ Opposition to Defendants’ Motion to Dismiss the Complaint for Failure to State a Claim was electronically filed with the Clerk of the United State District Court and that copies of the motion were Case 3:14-cv-07178-BRM-LHG Document 75-1 Filed 09/26/16 Page 1 of 2 PageID: 574 2 served on all parties via the Court’s Case Management/Electronic Case Filing (CM/ECF) system. Dated: September 26, 2016 s/Nicole E. Adams Nicole E. Adams Deputy Attorney General Case 3:14-cv-07178-BRM-LHG Document 75-1 Filed 09/26/16 Page 2 of 2 PageID: 575