OPINION & ORDER
Plaintiffs here are three people with developmental disabilities, each of whom is non-verbal, and each of whom has lived for many years at the “Union Avenue IRA,” a Bronx facility operated by the New York State Office for People with Developmental Disabilities (“OPWDD”). These plaintiffs — D.K., by her guardian L.K., Z.O., by her guardian B.M., and B.R., by her guardian C.R. — claim that their rights were violated in connection with allegedly deficient care and years of physical abuse at the Union Avenue IRA. They bring this action against staff workers at the Union Avenue IRA and their supervisors under 42 U.S.C. § 1983; § 504 of the Rehabilitation Act, 29 U.S.C. § 794; Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq.; the Fair Housing Act, 42 U.S.C. § 3604(f)(2), and state law.
Defendants Tiffany Teams, Sharnell Tucker, Lashonda Conner, Daphne McKelvey, Elizabeth Gonzalez, Sheila Lin-der, Jonathan Peyton, Cheryl Minter-Brooks, and Kerry A. Delaney now move to dismiss under Federal Rules of Civil Procedure 12(b) and 12(c). They argue that sovereign immunity deprives the Court of jurisdiction under Rule 12(b)(1); that plaintiffs fail to state claims under
For the following reasons, the Court denies the motions to dismiss, while narrowing the scope of plaintiffs’ § 1983 claims to eliminate a theory of conspiracy liability.
I. Background
A. Factual Allegations
1. The Developmentally Disabled Plaintiffs
D.K., Z.O., and B.R. are individuals with developmental disabilities who reside at a facility known as the “Union Avenue IRA”
2. Defendants’ Positions and Responsibilities
Defendants were employed by OPWDD in various capacities. The AC sorts them into three groups. The “Staff Defendants” group consists of Teams, Tucker, Linton, Conner, Goodwin, and McKelvey, plus John/Jane Does Nos. 1-5. Id. ¶ 30. Teams, Tucker, Linton, and McKelvey were employed as Direct Support Assistants at the Union Avenue IRA, id. ¶¶ 19-21, 24; Conner and Goodwin were each employed as a Developmental Assistant 1 at the Union Avenue IRA, id. ¶¶ 22-23.
The “Supervisor Defendants” group consists of Gonzalez, Linder, and Peyton, plus John/Jane Does Nos. 6-10. Id. ¶ 31. At the Union Avenue IRA, Gonzalez was employed as a Developmental Assistant 1, with responsibility to supervise other staff, id. ¶ 27, Linder was employed as a Developmental Assistant 2, with responsibility to manage and supervise other staff, id. ¶ 28, and Peyton was employed as a Social Worker Assistant 3, with responsibility to manage and supervise other staff, id. ¶ 29.
Finally, the “OPWDD Defendants” group consists of White, Minter-Brooks, and Delaney. Id. ¶ 35. White was the Deputy Director of the Metro New York Developmental Disabilities State Operations (“DDSO”) Office, with responsibility for development and monitoring of OPWDD systems improvement, overseeing the provision of services to developmentally disabled people, recordkeeping, and promoting best practices at OPWDD facilities in the Bronx and Manhattan, including at the Union Avenue IRA. Id. ¶ 32. Minter-Brooks was the Region 5 Director of OPWDD, with responsibility for development and monitoring of OPWDD systems improvement, overseeing the provision of services to developmentally disabled peo-
3. The Initial Reports and Evidence of Abuse of Plaintiffs
In or before 2011,- plaintiffs’ families started to suspect that plaintiffs were sufl fering mistreatment at the Union Avenue IRA. They noticed unexplained bruises, lacerations, and other injuries on each plaintiff. See, e.g., id. ¶¶ 48-50 (D.K.), 52-56 (Z.O.), 58—66 (B.R.). For example, in July 2011, C.R. was called by a Union Avenue IRA staff member and notified that “a. staff member had pulled B.R.’s hair because B.R. was taking a nap on a couch that staff wanted to use”; in that call, “[t]he staff member told C.R. that abuse of residents by staff at the Union Avenue IRA was widespread.” Id. ¶ 58. After C.R. reported this information to an OPWDD Acting Deputy Director, a Union Avenue IRA supervisor conducted an investigation, met with staff at the Union Avenue IRA,, and issued a report to the staff, “to apprise them of the situation and to remind them that abuse of our individuals will not be tolerated.” No staff member was disciplined as a result of the supervisor’s investigation. Id. ¶¶ 60-61.
In summer 2014, D.K., Z.O., and B.R. were each treated at a hospital for black eyes. Id. ¶ 67. On May 17, 2014, B.R. woke, up with a blue and purple bruise under her left eye. Id. ¶ 68. Gonzalez was the supervisor on duty at the time; she informed C.R, that B.R. had been taken to the emergency'room of Lincoln Hospital after having awakened that day with the black eye and that B.R, had been examined by a doctor at the hospital. Id. ¶69, Hospital staff,- however, later explained to C.R. that B.R. had been sent home before being seen by a doctor. Id. ¶ 70. Later, on May 27, 2014, a different supervisor called C.R. and explained that B.R.’s injury had been “upgraded” to an allegation of physical abuse. The supervisor “explained that B.R. had been punched in the face by an OPWDD employee in front of witnesses.” Id. ¶ 71. Investigators later determined that B.R. had been punched Tby a staff member, although they could not determine who hit her because the witnesses’ stones and recantations were in conflict. Id. ¶ 72.
On August 5, 2014; Peyton contacted L.K. to inform her that D.K.’s eyes were discolored, explaining that the' discoloration had been caused by “allergiés” and that D.K. had possibly been rubbing her eyes out of discomfort. Id. ¶ 74. After Pey-ton’s phone call, however, L.K. received messages at her home and on her cell phone indicating that the claim that the eye discoloration was'caused by “allergies” was false and'that D.K’s eye injury had been caused by an assault. Id. ¶ 75. L.K. then traveled to Lincoln Hospital, where D.K. had beén taken for treatment; upon seeing D.K., L.K. “could immediately tell that D.K. had a black eye.” Id. ¶¶ 76-77. In addition, McKelvey had been D.K.’s escort from the Union Avenue IRA to Lincoln Hospital; Lincoln Hospital staff told L.K. that McKelvey had “spoke[n] to D.K. in a verbally abusive - manner and ‘violently pushed the patient.’ ” Id. ¶¶ 78-79. The hospital staff also reported this incident to Peyton and Linder. Id. State investigators investigated this incident and, after interviewing witnesses, determined that McKel-vey “had abused and neglected D.K. at Lincoln Hospital.” Id. ¶ 80. Months later, state authorities deterriiined that D.K’s black eye had been caused by Tucker,
On August 15, 2014, Z.O. also sustained a black eye and was taken to the hospital, where she was treated and observed for roughly 13 hours. Id. ¶¶ 84-85. After this incident, state investigators reported “that a Union Avenue IRA staff member had witnessed ... Tucker push Z.O. in the shower that day.... Tucker had then ‘pointed out’ the mark on.Z.O.’s eye.” Id. ¶ 86.
4. The Whistleblower’s August 2014 Letter to White
On August 20, .2014, a staff member at the Union Avenue IRA (the “whistleblower”) anonymously sent a letter to White “detailing the abuse of disabled residents by OPWDD staff.” Id. ¶¶ 88-89. The letter explained to White that Union Avenue IRA staff, including Tucker, Teams, Linton, Linder, Conner, and Goodwin, “ ‘abused and beat consumers’ openly at the Union Avenue IRA,” and that “Peyton and Linder ‘cover[ ] up every and anything that goes on’ at the facility and ‘are fully aware of the abuse and even know who the abusers are.’” Id. ¶¶ 90-91. The letter stated that Linton had punched B.R. in the face, resulting in a black eye, and that the whistleblower, along with another staff member, had observed that incident; however, the whistleblower wrote, he/she and the staff member were “too afraid to confess it was Deena [sic] Linton,” and that “Linton [had] intimidated other staff members into blaming the incident on another staff member[.]” Id. ¶ 92. The whistleblower stated that he or she had “personally reported” Linton’s behavior to Peyton and Linder and “was told it would be taken care of’ but that “nothing was done.” Id. ¶ 93, Further, the ■ whistleblower wrote, Linder often invited a former staff member to- spend time at the Union Avenue IRA even though this staff member' had been banned from the facility for physically abusing residents; the letter stated that “ALL of the staff sees him eom[e] and no one turns him away.” Id. ¶ 94.
The whistleblower’s letter detailed instances of abuse by various defendants and lapses by supervisors in supervising staff members and responding to instances of abuse by staff members. The letter stated that Linder — despite acknowledging that the banned former staff member had “bust[ed]” a disabléd resident’s eardrum— had left this individual alone with residents at the Union Avenue IRA while Linder ran errands. Id. ¶95. The letter also stated that another staff member had “hit a resident in the head, causing an injury that required staples,” and that Linder had “instructed [the staff member] not to come to work, the next day to cover it up.” Id. ¶ 100.
Among other instances of abuse, the letter- described a staff member’s punching a resident in the stomach and another’s slapping a resident in the face, and reported that. Peyton consumed alcohol while working and “comes, to work drunk.” Id. ¶¶ 101-04. The letter also stated that the black eye for which D.K. had been treated at Lincoln Hospital on August 5, 2014 had “c[o]me from Sharnell. Tucker punching her in the back and her face hit the wall”; that Teams had “pulled D.K.’s hear and ‘spit directly in her face’ and that Teams had- denied food to residents. Id. ¶¶ 97-99. The letter stated that Conner had kicked Z.O. “in the legs to the point where they swelled up like balloons.” Id. ¶ 106. The letter also stated that “Goodman, Conner, and Linder hit, kicked, and
5.Continued Abuse of Plaintiffs After the Whistleblower’s Letter
The AC alleges that abuse at the Union Avenue IRA continued after the whistle-blower’s letter was received. On August 27, 2014, D.K. was taken to Lincoln Hospital for injuries to her right knee and hip, which staff claimed were the result of a fall she sustained in the shower, even though D.K.’s hair was dry when L.K. arrived at the hospital to visit D.K. Id. ¶¶ 112-13. An internal investigation determined that the bathroom floor had been very slippery and that Teams and Tucker had used a detached showerhead “like a hose while showering the service recipients” in “assembly line showering” practices, and that Teams and Tucker used this practice regularly. Id. ¶ 114. On September 1, 2014, Z.O sustained bruises and swelling to her legs, injuries that state investigators later determined were the result of “being kicked repeatedly by Defendant Conner.” Id. ¶ 119-20. The investigators also noted that even though “the whistleblower ‘had already written the anonymous letter to Deputy Director Joyce White[,] no action was taken to protect the individuals at Union Ave.’ ” Id. ¶ 121.
6.The Whistleblower’s September 2014 Letters to Plaintiffs’ Relatives
On or about September 12, 2014, the same whistleblower sent letters directly to L.K., B.M., and C.R. Id. ¶ 122. These letters repeated, and added detail to, many claims in the August 20, 2014 letter to White. Id. ¶ 124. As to D.K., the letter sent to L.K. stated that Teams and Tucker make D.K. sit in a corner away from other residents and deny her food, that Tucker was responsible for D.K.’s black eye, and that Peyton and Linder “are aware of the abuse and cover[ ] it up.” Id. ¶¶ 126-27. As to Z.O., the letter to B.M. stated that Z.O.’s black eye “came from Sharnell Tucker who is still working there with her,” that “Lashonda Conner beats on [Z.O.] also and kicks her,” that Goodwin “covered up [Z.O.] being cut in the toe by Tiffany Teams and Sharnell Tucker,” that “Sheila Linder and Jonathan Peyton cover! ] up everything that goes on in there.” Id. ¶¶ 128-31. As to B.R., the letter to C.R. stated that Goodwin, Teams, and Linton punched B.R., that .Linton was “responsible for B.R.’s May 2014 black eye,” and that Peyton was often drunk at work and that Linder was sexually abusing residents. Id. ¶¶ 132-35.
7.The OPWDD’s Investigation and Report on the Abuse Allegations
After receiving these letters, L.K., B.M., and C.R. demanded that OPWDD conduct an investigation. Id. ¶ 137. OPWDD began an investigation and placed the staff members named in the whistleblower’s letter on
The investigation, which resulted in a report, found, among other things, the following.
It found that between February 2014 and August 2014, Teams had pulled D.K’s hair and spat on her face, id. ¶ 141; that, on July 29, 2014, Tucker had punched D.K. in the back and pushed her against a bathroom wall, id. ¶ 142; that McKelvey had grabbed D.K. and forcibly sat her in a seat and spoke to her in an abusive manner during D.K’s August 5, 2014 visit to Lincoln Hospital, id. ¶ 143; that Teams and Tucker had ordered Z.O. and B.R. to wait naked on their beds to be showered, that Z.O. and B.R. “would comply [with this directive] out of fear,” and that Teams and Tucker had used cold water to bathe D.K and Z.O., id. ¶ 144; that Tucker had given Z.O. a black eye on August 15, 2014 by pushing her in the shower, id. ¶ 145; that, on September 1, 2014, Conner had “repeatedly struck and/or kicked” Z.O. “throughout the day,” resulting in bruising and swelling of Z.O.’s legs, id. ¶ 146; and that a staff member had punched B.R. in the face on May 16, 2014 because B.R. had coughed while the staff member was trying to administer her medication, causing a black eye, although the investigation could not determine the identity of the staff member responsible, id. ¶¶ 151-52.
The investigation also found that Union Avenue IRA staff members had reported the physical abuse to Gonzalez, their supervisor, but that Gonzalez had responded that staff members should not worry and that “nothing more was going to happen.” The investigators’ report stated that Gonzalez had admitted to investigators that she had directed that B.R. be brought back to the Union Avenue IRA from the Lincoln Hospital emergency room without seeing a doctor. Id. ¶¶ 152-54. The report stated that a different staff member, who had heard • about B.R.’s having been punched on May 16, 2014, had reported the incident to Peyton and Linder after Gonzalez did not act, and Peyton and Lin-der' summoned a different staff member who apparently had witnessed the punching. Id. ¶ 156. The report stated that staff member had confirmed to Peyton that she had punched B.R., but that the staff member had refused to complete a written statement out of fear of potential repercussions. Id. ¶ 157. The report further stated that Linder, when interviewed, described the meeting with the staff member who had apparently witnessed the punching incident as hostile and argumentative, and as not conclusively establishing that the witness had seen the punching. The report stated that Linder, when confronted about Peyton’s statement to investigators that the witness had reported seeing the punching but refused to put this in'writing out of fear of reprisal, stated that “the noise from the arguing was too loud and that she did not hear anything.” Id. ¶ 158.
The investigation also found that Tucker and Teams had withheld food from plaintiffs, and that Tucker and Teams did not feed Union Avenue IRA residents and discarded their food as punishment. Id. ¶ 161. The report also found that Tucker and Teams frequently denied plaintiffs their scheduled evening snacks “because they do not deserve it.” Id.
The investigation also found that nurses and other medical personnel at the Union Avenue IRA had medically negleetéd plaintiffs. Id. ¶ 163. Lapses included repeatedly failing to schedule medically indicated doctors’ appointments, including with neurologists, gynecologists, otolaryn-gologists, and dentists; failing to adminis
8.The 2015 “Early Alert” Notice of Compliance Deficiencies
On or about March 16, 2015, Minter-Brooks .received a letter from OPWDD Deputy Commissioner Megan O’Connor-Hebei’t. It stated that the Metro New York DDSO Office — overseen. by White, Minter-Brooks, and, Delaney — was being placed on “Early Alert,”. meaning that there were serious deficiencies in its operations. Id. ¶ 184. The letter stated that the Metro New York DDSO Office “ ‘has been unable to sustain compliance with applicable laws and regulations’ and had received no fewer than ‘eight 45 day letters’ — letters issued by OPWDD Division of Quality Improvement inspectors repeatedly noting serious and persistent concerns with agency operations — in the year between March 2014 and March 2015.” Id, ¶ 185. The letter stated that OPWDD was concerned with the “lack of compliance” in eight areas, including protective oversight, staff training, and incident management. Id. ¶ 186. As used in the letter, “protective oversight” means “protecting residents ... from physical abuse and neglect;” “staff training” “includes training staff'not to abuse or neglect residents;” and “incident management” means “ensuring that potential abuse and neglect is reported, properly investigated, and if substantiated, that appropriate discipline is given.” Id. ¶ 187. The AC alleges.that the OPWDD Division of Quality Assurance, in fact, wrote repeatedly to Minter-Brooks to advise her, in the words of the AC, “that she was failing in all of these areas necessary to protect D.K., Z.O. and B.R.’s safety.” Id. ¶ 188.
9.The Plaintiffs’ February/March 2016 Head Injuries
In 2016, each plaintiff sustained unexplained head wounds within a roughly one-month period. Id. ¶ 190. On or about February 12, 2016, an inspection of B.R. re-veáled a gash in her scalp; she was taken to the emergency room at Montefiore Hospital for treatment. Id. ¶ 191. On’ or about February 23', 2016, Z.O. was taken to the emergency room at Montefiore Hospital for treatment of a laceration to her head; although Union Avenue IRA supervisors could not explain the origin of the injury, they admitted it was the result of staff misconduct. Id. ¶¶ 193-94. On or about March 9, 2016, D.K., also suffered a gash on her head at the Union Avenue IRA, an injury that went unexplained. Id. ¶¶ 196— 97.
10.The May 2016 Inspection
On May 17, 2016, state regulators from OPWDD’s Division of Quality Improvement inspected the Union Avenue TRA. Id. ¶ 212. After the inspection, that-division sent Minter-Brooks a letter stating-that the inspection had “determined that the facility is not in compliance with New York State regulatory requirements to operate
11. The August 2016 Inspection
On August 10, 2016, the OPWDD Division of Quality Improvement’s inspectors conducted a return visit to the Union Avenue IRA, to determine whether the facility “had achieved regulatory compliance through the effective implementation of plans of corrective action that had been submitted in response to the May 17, 2016 statement of deficiencies.” Id. ¶ 216. The inspection found that, as to the floor on which the three plaintiffs reside, “ ‘serious and/or systemic deficiencies remain’ in all of the areas cited in the previous inspection.” Id. ¶ 217. The inspection warned that “[c]ontinued authorization of the program/service cannot be considered until we have verified that identified deficiencies have, been corrected, and the agency is operating in compliance with applicable regulations.” Id. ¶ 218. And, despite the earlier findings of “systemic issues” — involving program services, physical plant maintenance, training, incident management, individuals’ rights, policy, insufficient monitoring and documentation, and lack of administrative oversight — the inspectors on the return visit found that nothing had been done “to fix these problems.” Id. ¶ 219. The August 2016 inspection also found that the Union Avenue IRA’s review committee had failed to implement the recommendations stemming from earlier investigations aimed at “preventing] future and similar events .of abuse and neglect.” Id. ¶ 220.
12. Substandard Quality of Care
In light of the above allegations, the plaintiffs allege in the AC that the Union Avenue IRA — managed or overseen by the Supervisor Defendants and the OPWDD Defendants — “has been so brazenly and wantonly mismanaged and incompetently run over a period of several years that it does not even meet New York State’s own minimum requirements to provide care to the disabled.” Id. ¶ 223.
B. Procedural History
On May 2, 2016, plaintiffs filed an initial Complaint. Dkt, 1. The Court-granted several requests for extensions of time by the New York 'State Attorney General (“NYAG”) on behalf of defendants, see Dkts. 20-22, 24-26, 36, to enable it to determine whether it could represent the defendants. On August 22, 2016, the NYAG determined that it could not. Dkt. 36.
On August 31, 2016, Peyton and White filed motions to dismiss. Dkts. 50-51, 54-56. On September 1, 2016, McKelvey filed a motion to dismiss. Dkts. 57, 59. On September 14, 2016, Minter-Brooks,. Delaney, and Gonzalez filed answers. Dkts. 74-75, 78. On October 9, 2016, Goodwin filed an answer and crossclaim against the other defendants for contribution and indemnification. Dkt. 111. On October 12, 2016, Tucker and Teams filed answers.- Dkts. 118, 119. On October 7, 2016, the Court held an initial conference,, ordered'that limited documentary discovery be provided pending resolution of the motions to dis
On October 26, 2016, plaintiffs filed the AC, the operative complaint. Dkt. 130. On November 1, 2016, Linder and Conner filed answers to the AC. Dkts. 134,136. On November 16, 2016, Teams, Tucker, McKelvey, Gonzalez, Peyton, White, Minter-Brooks, and Delaney, filed motions to dismiss AC, and Conner and Linder filed motions for judgment on the pleadings. These defendants also filed a joint memorandum of law covering common legal issues. Dkt. 141. Supplemental memoranda of law and various declarations were also filed specific to individual defendants or groups thereof. See, e.g., Dkts. 143, 148, 161, 166, 168, 171, 175, 178, 181. On December 22, 2016, plaintiffs filed a brief in opposition. Dkt. 190. On January 11, 2017, Peyton, Gonzalez, White, Tucker, Teams, Minter-Brooks, Delaney, McKelvey, and Conner filed reply briefs. Dkts. 194, 196-98, 200, 202, 204, 206. On February 27, 2017, Linton filed an answer. Dkt. 222. Although Goodwin filed an answer to the initial complaint, to date, she has not filed an answer or otherwise responsive pleading to the AC.
II. Discussion
A. Overview of the Motions
Plaintiffs bring 10 claims. The first is under federal law. It is brought under § 1983 against all defendants, except Delaney, and in their individual capacities. It alleges violations of plaintiffs’ Fourth or Fourteenth Amendment rights to be free from excessive force, deliberate indifference to abuse, and other misconduct. AC ¶¶ 224-38.
The next six claims are brought under state law, in each case against defendants ' in their individual capacities. These are for (1) assault, against the Staff Defendants and Linder, id. ¶¶ 239-42; (2) battery, against the Staff Defendants and Linder, id. ¶¶ 243-46; (3) intentional infliction of emotional distress against the Staff Defendants and Linder, id. ¶¶ 247-51; (4) negligence, through the supervision and hiring of staff, against the Supervisor Defendants, White, and Minter-Brooks, id. ¶¶ 252-56; (5) violations of the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq., against the Staff Defendants and Linder, id. ¶¶ 257-62; and (6) violations of the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq., against the Staff Defendants and Linder, id. ¶¶ 263-68.
The final three claims are under federal statutes other than § 1983: for (1) violation of the Fair Housing Act, 42 U.S.C. § 3604(f)(2), against the Staff Defendants and Linder, id. ¶¶ 269-72; (2) violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794, against the OPWDD Defendants, id. ¶¶ 273-79; and (3) violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131, et seq., against the OPWDD Defendants, id. ¶¶ 280-85. The first of these claims is brought against the charged defendants in their individual capacities; the latter two are brought against the OPWDD Defendants in their official capacities.
As noted, the pending motions are to dismiss under Rules 12(b)(1), 12(b)(6), and 12(c), on various grounds, some global, others made only by individual defendants or groups. The moving defendants globally argue that the Court lacks subject matter jurisdiction over this case because sovereign immunity bars plaintiffs’ claims. Individual defendants argue that the AC does not adequately allege the required elements for liability under § 1983 for violations of plaintiffs’ constitutional rights or under certain state-law and federal statu
B. Standard of Review — Rules 12(b)(6) and 12(c)
To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
In considering a motion to dismiss, a district court must “accept[] all factual claims in the complaint as true, and draw[] all reasonable inferences in the plaintiffs favor.” Lotes Co. v. Hon Hai Precision Indus. Co.,
As for a motion for judgment on the pleadings under Rule 12(c), “[a] motion to dismiss under Rule 12(c) is governed by the same standard as a motion under Rule 12(b)(6).” In re Ades and Berg Grp. Inv’rs,
C. Motions to Dismiss the § 1983 Claims Based on Sovereign Immunity
Defendants first argue that plaintiffs’ § 1983 claims are barred by sovereign immunity. They argue that the state is the “real party in interest” and that the Eleventh Amendment thus bars this suit.
First, it is well established that state officers may be sued in their individual capacities regardless of whether they were acting in the course of their employment, including under §1983, which provides damages as the remedy for dépriva-tions of federal rights undertaken under color of state law. “[Sjtate officials, sued in' their individual capacities, are ‘persons’ within the meaning of § 1983. The Eleventh Amendment does not bar such suits[.j” Hafer v. Melo,
Second, to the extent that claims-are brought here against a defendant in an official capacity,
D. Motions to Dismiss the § 1983 Claims for Failure to State a Claim
Plaintiffs sue the Staff Defendants, the Supervisor Defendants, White, and Minter-Brooks under § 1983 for allegedly violating their federal rights. The alleged violations included the use of excessive force, assault, battery, abuse and neglect, deliberate indifference to plaintiffs’ rights, and civil conspiracy. See AC ¶¶ 224-38. The AC alleges that the Staff Defendants directly violated plaintiffs’ rights. It also alleges that Gonzalez, Linder, Peyton, White, and Minter-Brooks directly participated in the deprivation of plaintiffs’ rights and they are also personally liable for these deprivations on other theories of personal liability recognized under § 1983, as reviewed below. Defendants move to dismiss on the grounds that the AC’s factual allegations do not adequately plead deprivations of federal rights by means of excessive force, deliberate indifference, and civil conspiracy-
Section 1983 provides redress for a deprivation of federally protected rights by persons acting under color of state law. 42 U.S.G. § 1983. To prevail on a §-1983 claim, a plaintiff must establish (1) the violation of a right, privilege, or immunity secured by the Constitution or laws of the United States (2) by a person acting under the color of state law. West v. Atkins,
The personal involvement of a defendant sued in 'his or her individual capacity is a requirement for liability urn der § 1983; a defendant’s supervisory authority is insufficient in itself to create liability under § 1983. Richardson v. Goord,
The Court elaborates here on the standards governing gross negligence and deliberate indifference, because the AC’s theory of liability for defendants other than the Staff Defendants rests, in part, on such grounds.
“ ‘[G]ross negligence’ denotes a higher degree of culpability than mere negligence. It is the kind of conduct where the defendant has reason to know of facts creating a high degree of risk of ... harm to another and deliberately acts or fails to act in conscious disregard or indifference to that risk.” Raspardo v. Carlone,
To establish a defendant’s “deliberate indifference” to a violation of law, a plaintiff must show that the defendant acted with a sufficiently culpable state of mind. Until very recently, the law applied the same test for “deliberate indifference” to § 1983 claims based on underlying violations of the Eighth Amendment and the Fourteenth Amendment. The Second Circuit, however, in Darnell v. Pineiro,
Under the Eighth Amendment, a deliberate indifference claim requires that the defendant state official have possessed a reckless state of mind equivalent to the “more exacting subjective standard akin to that used in the criminal context ... requiring] proof of ... subjective awareness” of the constitutional violation. Darnell,
1. Plaintiffs’ Excessive Force Claims
A person in state custody has a federal right not to be treated with excessive force and “must show only that the force purposely or knowingly used against him [or her] was objectively unreasonable.” Kingsley,
Courts are not to “mechanically” apply this objective reasonableness standard, because “objective reasonableness turns on the facts and circumstances of each particular case.” Id. at 2473 (citation omitted). This determination must be made from the perspective of a reasonable official under the circumstances, and a court “must also account for the ‘legitimate interests that stem from [the government’s] need to manage the facility in which the individual is detained,’ appropriately deferring to ‘policies and practices
Various considerations “may bear on the reasonableness or unreasonableness of the force used,” including the “relationship between the need for the use of force and the amount of force used; the extent of the plaintiffs injury; any effort made by the officer to temper or to limit the amount of force; the severity of the security problem at issue; the threat reasonably perceived by the officer; and whether the plaintiff was actively resisting,” among others. See id. at 2473. Moreover, to offend substantive due process and thereby be objectively unreasonable, the force used must shock the conscience. Cty. of Sacramento,
a. The Staff Defendants
The AC adequately alleges that the Staff Defendants — Teams, Tucker, Conner, and McKelvey
As to Teams, the .AC alleges, for example, that she “pulled D.K’s hair and ‘spit directly in her facet,]’ ” AC ¶ 98, 141; punched B.R., id. ¶ 132; and cut Z.O.' on her toe, id. ¶ 130. As to Tucker, the AC alleges that, on July - 29, 2014, she “punched D.K. in the back and pushed her against a bathroom wall at the Union Avenue IRA[,]” which caused her to suffer a black eye, and subsequently failed to ob
As to Conner, the AC adequately alleges that she used excessive force against Z;0. and B.R., although not D.K. The AC alleges that Conner beat and kicked Z.O., id. ¶ 129, once in the legs “to the point where they swelled up like balloons,” id. ¶ 106. And, on September 1, 2014, the AC alleges, Conner repeatedly kicked Z.O. Id. ¶¶ 119-20, 146. Similarly, Conner “hit, kicked, and, punched B.R.,” whom she did not “like” “because she shows off in front of her dad and drinks from everybodyt’s] cups and bottles.” Id. ¶ 105. The AC does not allege similar conduct by Conner against D.K.
As to McKelvey, the AC adequately alleges that she used excessive force against D.K. but not against Z.O. and B.R. The AC alleges that, on August 5, 2014, McKelvey escorted D.K. to Lincoln Hospital in the Bronx for treatment1 for a black eye (caused when Tucker pushed D.K. against a bathroom wall on July -29, 2014, id. ¶¶ 81-82), and that, at Lincoln Hospital, McKelvey abused D.K. by speaking to her in a “verbally abusive manner” and because she “violently pushed” D.K and that she grabbed her and forcibly sat her in her seat. Id. ¶¶ 78-80, 143. The AC does not allege similar conduct by McKelvey against Z.O. or B.R.
This alleged conduct is enough for the persons subject to it to state an excessive force claim under § 1983. On the facts as pled, the unprovoked pushing, punching, and kicking of persons with developmental disabilities is clearly not objectively reasonable as a matter of law.
Nor, to the extent that the defendants invoke qualified immunity, is qualified immunity available to defendants for such conduct, based on the pleadings. Qualified immunity protects federal and state officials from money damages “unless a plaintiff pleads facts showing (1) that , the official violated a statutory or constitutional right, and (2) that the right was ‘dearly established? at the time of thé challenged conduct.” Ashcroft v. al-Kidd,
The conduct alleged here does not implicate qualified immunity. As pled, the Staff Defendants cruelly abused persons with disabilities for no valid reason, but instead out of malice, spite, impatience, or sport. The evidence, of course, may or may not bear out the AC’s claims. But on a motion to dismiss, the Court must take the well-pleaded allegations as true. Those allegations are that the Staff Defendants, wardens with a duty of care, engaged in unprovoked violence towards wards with disabilities. Such physical abuse of helpless persons cannot be said to serve a legitimate governmental interest in a civilized society; to bespeak a “mistaken but reasonable judgment” as to legality for which breathing room must be given; or to be sufficiently proportionate to the needs of the situation to be objectively reasonable under the circumstances. See, e.g., Dockery v. Barnett,
Accordingly, the AC states claims under § 1983 for excessive force against the mov-ant Staff Defendants as follows: the claims against Teams brought by D.K., Z.O., and B.R.; the claims against Tucker brought by D.K. and Z.O.; and the claims against Conner brought by Z.O. and B.R.; and against McKelvey brought by D.K
b. The Supervisor Defendants, White, and Minter-Brooks
The AC also adequately alleges liability under § 1983 against each of the Supervisor Defendants — Gonzalez, Linder, and Peyton, along with White, and Minter-Brooks — by at least one plaintiff for the misconduct and/or abuse experienced at the Union Avenue IRA. The AC alleges that each defendant was personally involved either through direct participation in the alleged deprivations or though gross negligence or deliberate indifference. For present purposes, the Court need mainly only address one such theory of personal involvement — deliberate indifference — to sustain plaintiffs’ claims. As to each such defendant, the AC has adequately pled instances of the objectively reckless conduct necessary to establish deliberate indifference to the constitutional violations alleged, see id. ¶¶ 235-38.
As to Gonzalez, the AC adequately alleges liability to B.R. under § 1983 deliberate indifference principles. Gonzalez worked at the Union Avenue IRA as a Developmental Assistant 1, with responsibility for supervising other staff. AC ¶ 27. On May 17, 2014, when B.R. woke up with
These allegations suffice to plead deliberate indifference to the conditions of excessive force B.R. experienced and caused her black eye. It was objectively reckless for Gonzalez to have B.R. removed from the hospital without treatment, and not to report the abuse of which she had been notified. Further, that Gonzalez did not “act on the[ ] report[ ] so as to prevent future occurrences” of constitutional violations fairly alleges “deliberate indifference to the [plaintiffs] rights by failing to act on information that unconstitutional acts were occurring;” Johnson,
As to Linder, the AC’s allegations are sufficient to state a claim both of direct participation in, and deliberate indifference to, due process violations as to multiple plaintiffs. Linder worked at the Union Avenue IRA as a Developmental Assistant 2, with responsibility for managing and supervising staff. AC ¶28. The AC alleges direct participation in constitutional violations in that Linder “hit, kicked, and punched B.R.” because B.R. “shows off in front of her dad and drinks from everybody^] cups and bottles.” Id. ¶ 105. Further, the AC alleges that, during D.K.’s visit to Lincoln Hospital on August 5, 2014, a week after she was pushed in the shower by Tucker, see id. ¶¶ 74-82, staff at Lincoln Hospital reported to Linder that defendant McKelvey had “spoke[n] to D.K. in a verbally aggressive manner and ‘violently pushed’ ” her, conduct that state investigators later determined constituted abuse and neglect of D.K., id. ¶¶ 79-80. The AC alleges a similar failure to supervise on Linder’s part, exhibiting a deliberate indifference to constitutional violations, with respect to B.R. A Union Avenue IRA staff member reported to Linder and Peyton
As to Peyton, the allegations are sufficient to state a claim for liability to D.K., Z.O., and B.R. Peyton worked as a Social Worker Assistant 3 at the Union Avenue' IRA, responsible for managing and supervising other staff. Id. ¶ 29. The AC-alleges that Peyton' tried to cover up that D.K. had suffered a black eye when he contacted L.K. on August 5, 2014, to inform her of the discoloration around D.K’s eyes, which Peyton claimed was caused by “allergies” or that D.K. might have been rubbing her eye due to discomfort. Id. ¶ 74. Peyton, with Linder, took no action in response to being told that B.R. had been punched in-the face. Id. ¶ 93. And Peyton is alleged to have known of- abuse of D.K. but to have “cover[ed] it up,” id. ¶ 127, and, similarly, with Linder, to have covered up abuse of Z.O., id. ¶ 129-31. These allegations adequately plead Peyton’s personal involvement in constitutional violations or an excessive risk of constitutional violations against D.K,, Z.O., and B.R., either through direct participation ■ in- the violation, an objectively.recMess response to it, or deliberate indifference to it, manifested in Peyton’s complete failure to respond in the face of risks of harm to. Wards about which Peyton knew and; should have known.
As to White, the allegations are sufficient to plead her liability to D.K., Z.O., and B.R. White was Deputy Director of the Metro New York Developmental Disabilities State Operations (DDSO) Office, responsible for the developing and monitoring of OPWDD systems improvement, overseeing the provision of services to developmentally disabled people, managing recordkeeping, and promoting best practices at OPWDD facilities in the Bronx and Manhattan, 'including at the Union Avenue IRA. Id. ¶ 32. On August 20, 2014, an anonymous Union Avenue IRA staff member whistleblower wrote - to White chronicling in disturbing detail the widespread abuse of residents by staff there. Id. ¶ 88. The letter stated that staff members, such as Tucker, Teams, Linton, Lin-der, Conner, and Goodwin, abused and beat residents and reported that Peyton and Linder knew about the abuse and the identities of the abusers but covered up the abuse. Id. ¶¶ 90-91. The letter detailed abuse suffered by all three plaintiffs in this case. For example, the letter stated that Linton had punched B.R. in the face, resulting in a black eye, and that, despite this incident’s having being reported to Peyton and Linder, nothing was done in response. Id. ¶¶ 92-93. The letter also stated that, on August 6, 2014, .Tucker had punched D.K in the back, causing her face to hit the wall and resulting in a black eye, and that Teams had pulled D.K’s hair and
Finally, as to Minter-Brooks, the facts pleaded are sufficient to state a claim for liability on the theory that she exhibited objective recklessness in the face of reports of abuse at the Union Avenue IRA by taking woefully insufficient action. Minter-Brooks was the Region 5 Director of OPWDD, responsible for the development and monitoring of OPWDD systems improvement, overseeing the provision of services to developmentally disabled people, managing record keeping, and promoting best practices at facilities in OPWDD facilities in New York City, including at the Union Avenue IRA. Id. ¶ 33. She “received numerous complaints about abuse, neglect, and mistreatment at the Union Avenue IRA over a period of several years[.]” Id. ¶ 181. On March 16, 2015, Minter-Brooks received a .letter from the OPWDD Deputy Commissioner notifying her that the Metro New York DDSO Office, over which she had responsibility, was being placed on a status that reflected serious deficiencies in its operations. Id. ¶ 184. The letter stated that there were numerous problems that the local agency “has been unable to sustain compliance with applicable laws and regulations” and that it had received “eight 45 day letters,” which are issued by inspectors from the OPWDD Division of Quality Improvement that note serious and persistent concerns with agency operations, “in the year between March 2014 and March 2015.” Id. ¶ 185. The letter to Minter-Brooks set forth eight areas of noncompliance with the relevant laws and regulations: “medical follow-up, medication administration, protective oversight, community inclusion, habilitative services, physical plant, staff training, and incident management.” Id. ¶ 186. Particularly significant here, “protective oversight” refers to protecting residents from physical abuse and neglect; “staff training” includes training staff not to abuse or ner gleet residents; and “incident management” means ensuring that potential abuse and neglect is reported, properly investigated, and, if substantiated, that appropriate discipline is administered. Id. ¶ 187. The AC alleges that compliance in each of these areas was necessary to safeguard the health and safety of plaintiffs D.K., Z.O., and B.R., and that noncompliance with the officials’ duties in these areas threatened future injury to each of them. Id. ¶¶ 188-89. Indeed, the AC alleges that, in the months after Minter-Brooks received but did not act on re
The results of the inspections of the facility, as pled, reinforce the claim against Minter-Brooks based on theories of objective recklessness sufficient for deliberate indifference. On May 17, 2016, state regulators inspected the Union Avenue IRA. Id. ¶ 212. Letters to Minter-Brooks by OPWDD’s Division of Quality Improvement afterwards reported that the Union Avenue IRA “facility is not in compliance with the New York State regulatory requirements to operate an IRA.” Id. The letter reported that 23 allegations of abuse, neglect, or mistreatment had been reported between September and December 2014 on the floor of the Union Avenue IRA in which D.K., Z.O., and B.R. reside, and that none of “the systemic concerns noted during the investigations of these allegations” appeared to have been addressed. Id. ¶ 214. On August 10, 2016, a return visit examined whether the facility “had achieved regulatory compliance through the effective implementation of plans of corrective action in response to the May 17, 2016 statement of deficiencies.” Id. ¶ 216. The inspectors found to the contrary. On the floor of the Union Avenue IRA on which plaintiffs reside, they stated, “ ‘serious and/or systemic deficiencies remain’ in all of the areas cited in the previous inspection.” Id. ¶ 217. Their letter warned that “[continued authorization of the program/service cannot be considered until we have verified that identified deficiencies have been corrected, and the agency is operating in compliance with applicable regulations.” Id. ¶ 218. As alleged, the inspection further found that the Union Avenue IRA’s review committee had “ ‘failed to ensure that measures identified to prevent future and similar events’ of abuse and neglect ‘have been implemented. The agency failed to show evidence that recommendations stemming from investigations, including investigations of incidents classified as abuse or neglect, were implemented.’ ” Id. ¶ 220.
These well-pleaded allegations fairly plead actionable behavior by Minter-Brooks, who had responsibility for the Union Avenue IRA, was repeatedly informed of claims of abuse, but, as alleged, responded to them minimally if at all. The AC pleads objective recklessness on her part sufficient for deliberate indifference to the constitutional violations the plaintiffs had suffered or were at continuing risk to suffer at the Union Avenue IRA.
2. Section 1983 Conspiracy
Plaintiffs also allege that the Staff Defendants, the Supervisor Defendants, and White and Minter-Brooks formed a conspiracy to deprive plaintiffs of their federal rights in violation of § 1983.
“To prove a § 1988 conspiracy, a plaintiff must show: (1) an agreement between two or more state actors or between a state actor and a private entity; (2) to act in concert to inflict an uncdnsti-tutional injury; and (3) an overt act done in furtherance of that goal causing damages.” Pangburn v. Culbertson,
Here, the AC does not adequately state a claim of conspiracy to deprive plaintiffs of their federal rights because it does not adequately allege that defendants agreed or had a meeting of the minds to deprive the plaintiffs of such rights. While plaintiffs adequately plead numerous deprivations of their federal rights by individual defendants sufficient to state liability under § 1983, their claims of concerted conduct are more sparse, and are essentially limited to particular incidents of abuse in which multiple persons participated. But the AC does not go beyond that to support its claim of a broad conspiracy. It does not adequately allege, for example, that Staff Defendants coordinated with one other to deprive the plaintiffs of their rights, or that such defendants had an understanding with Supervisor Defendants that Supervisor Defendants would cover up the Staff Defendants’ abuses. Plaintiffs effectively ask the Court to infer a sweeping conspiracy to violate their rights from allegations that there were widespread abuses. The AC does not, however, contain the sorts of allegations — for example, of inter-defendant meetings or communications or parallel or concerted behavior— that might tend circumstantially to evidence a wide conspiracy.
Accordingly, while the Court otherwise sustains plaintiffs’ claims under § 1983, it must dismiss the portion of that claim based on a conspiracy among defendants to deprive them of their federal rights.
E. Tort Claims Brought Under State Law
Plaintiffs bring several state-law tort claims. Three are for intentional torts, against the Staff Defendants and defendant Linder: for assault, AC ¶¶ 239-42; battery, id. ¶¶ 243-46; and intentional infliction of emotional distress, id. ¶¶ 247-51. Plaintiffs also bring a claim for negligence, against the Supervisor Defendants and
1. Assault and Battery
Plaintiffs adequately plead claims for civil assault and civil battery against the Staff Defendants — -Teams, Tucker, Conner, and McKelvey — and Lin-der. “Under New York law, ‘an “assault” is an intentional placing of another person in fear of imminent harmful or offensive contact. A “battery” is an intentional wrongful physical contact with another person without consent.’ ” Girden v. Sandals Int'l,
The AC’s well-pled allegations state claims for assault and for battery. As to Teams, the AC alleges that she pulled D.K’s hair and spit in her face, AC ¶98, cut Z.O. in the toe, id. ¶ 130, and punched B.R., id. ¶ 132. These claims support claims for assault and battery against D.K., Z.O.j and B.R, As to Tucker, the AC alleges that she punched D.K. in the back and pushed her against a bathroom wall, causing her a black eye, id. ¶ 81,
As to Conner, the. AC alleges that Conner beat and kicked Z.O., id. ¶ 129, once in the legs “to the point where they swelled up like balloons,” id. ¶ 106. And, -on September 1, 2014, the AC alleges,- Conner repeatedly .kicked Z.O, Id. ¶¶ 119-20, 146. Similarly, Conner “hit, kicked, and punched B.R.,” whom she allegedly disliked. Id. ¶ 105. The AC does not allege similar conducf by Conner against D.K. As such, Z.O. and B.R., but not D.K., state claims for assault and for battery against Conner.
As to McKelvey, the AC adequately states claims for assault and battery against D.K. but not against Z.O, or B.R. It alleges that, on August- 5, 2014, McKel-vey escorted D.K. to Lincoln Hospital in the Bronx for treatment for a black eye (caused when Tucker pushed D.K. against a bathroom wall on July 29, 2014, id. ¶¶ 81-82), and that, at Lincoln Hospital, McKelvey abused D.K. by- speaking to her in a “verbally abusive manner” and because she “violently pushed” D.K and that she grabbed her and forcibly sat her in her seat. Id. ¶¶ 78-80, 143. The AC does not allege similar conduct by McKelvey against Z.O. or B.R.
Finally, as to Linder, the AC states a claim for assault and for battery against B.R. but not D.K. and Z.O. Linder “hit, kicked, and punched B.R.” because B.R. “shows off in front of her dad and drinks from everybody's] cups and bottles.” Id.
Accordingly, the AC states claims for assault and for battery against each of the Staff Defendants and Linder by at least one plaintiff.
2. Intentional Infliction of Emotional Distress
The Court sustains plaintiffs’ claim for intentional infliction of emotional distress. Under New York law, that tort has four elements: “(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress.” Bender v. City of New York,
The Court need not parse the AC’s allegations beyond those pleading the elements of assault and battery in order to sustain the claims for intentional infliction of emotional distress. On the pleadings, the conduct alleged, as recounted above, is sufficiently extreme, given its nature and particularly given the vulnerability of the allegedly victims, so as to adequately allege this tort.
Accordingly, the Court sustains this claim by each plaintiff against those defendants as to whom the Court sustained that plaintiffs claims for assault and battery.
3. Negligence
Plaintiffs also bring claims for negligence against the Supervisor Defendants — Gonzalez, Linder, and Peyton, and against White and Minter-Brooks in their individual capacities. Plaintiffs allege that these defendants were negligent in their “hiring, supervision,, training, discipline, and retention of staff at the Union. Avenue IRA.” AC ¶ 254. The Court sustains these claims.
Under New York law, negligence requires.a plaintiff to establish “(1) the existence of a duty on defendant’s part as to plaintiff; (2) a, breach,of this duty; and (3) injury to the plaintiff as a result thereof.” Alfaro v. Wal-Mart Stores, Inc.,
The AC’s allegations support a negligence claim against the Supervisor Defendants and White and Minter-Brooks.
F. Claims for Housing Discrimination Brought Under Federal and State Law
Plaintiffs bring claims against the Staff Defendants and Linder for violations of the New York State Human Rights Law, N.Y. Exec. Law §§ 290 et seq., id. ¶¶ 257-62; the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101, et seq., id. ¶¶ 263-68; and the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3604(f)(2), AC ¶¶ 269-72. Because liability under the state and New York City statutes, in pertinent part, tracks liability under the FHA, the Court considers these together, and holds that the AC states claims for violations of these statutes.
The FHA, enacted as Title VIII of the Civil Rights Act of 1968, makes it unlawful to discriminate against any person “in the provision of services or facilities in connection with [a] dwelling! ] because of a” disability. 42 U.S.C. § 3604(f)(2). “[Discrimination” is defined to include “a refusal to make reasonable accommodations in rules, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling!.]” Id. § 3604(f)(3)(B).
It appears an open question in the Second Circuit whether § 3604 of the FHA proscribes discrimination after a plaintiff acquires housing. The Second Circuit has assumed but not decided so in one context. See Khalil v. Farash Corp.,
The Court declines to dismiss the FHA claims at this stage. The Court’s assessment at this point is that § 3605(f)(2)’s proscription of discrimination “against any person in the terms, conditions, or privi
The Court will apply here the substantive standard used in the Title VII context, as other district courts in the Second Circuit have done. See, e.g., Goddard Riverside Cmty. Ctr., Inc.,
Measured against these standards, plaintiffs have stated a claim for housing discrimination under the FHA. As noted, the Staff Defendants and Linder are alleged to have engaged in- conduct that constitutes discrimination against plaintiffs oh the basis of their status as people with developmental disabilities. And these defendants, as staff members at the Union Avenue IRA, were responsible for the operation and provision of housing services at the Union Avenue IRA. This discrimination, as alleged, was sufficiently pervasive and severe to result in a hostile housing environment at the Union Avenue IRA, and was undertaken against- residents with disabilities because of their disabilities. And because the New York State Human Rights Law and the New York City Human Rights Law provide as much as broad (and, as to. the New York City Human Rights Law, even broader) protection to disabled individuals than federal law, the Court sustains these state and city law claims. See Peters v. Baldwin Union Free School Dist.,
As such, the Court declines the motion to dismiss plaintiffs’ FHA, New York State ■ Human Rights Law, and New York City Human Rights Law claims at- this stage.
G. Claims Brought Under the Rehabilitation Act and the Americans with Disabilities Act
Finally, plaintiffs bring claims under § 504 of the Rehabilitation Act, 29 U.S.C. § 794, AC ¶ 273-79, and for violation of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131, et seq., AC ¶¶280-85. These claims are brought against the OPWDD Defendants; the Rehabilitation Act claims are also brought against the White and Minter-Brooks in their official capacities for damages and,
The Rehabilitation Act was enacted before the ADA. Its focus is narrower than the ADA’s. Its provisions apply only to programs that receive federal financial assistance. Section 504 states that' “[n]o otherwise qualified individual with a disability in the United States ,., shall, solely by reason of her or his disability, be excluded from 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). Nonetheless, both the Rehabilitation Act and Title II of the ADA have generally equivalent requirements for claims, such that claims under those statutes are analyzed together. Dean v. Univ. at Buffalo Sch. of Med. and Biomedical Sciences,
Plaintiffs sue the OPWDD defendants for injunctive relief under both statutes; To support such a claim, plaintiffs must plead a violation of each statute and-that they will suffer real, immin.ent, and irreparable harm absent a remedy. Henrietta D.,
-The AC states claims under §, 504 of the Rehabilitation Act and Title II of the ADA for injunctive relief. It alleges that plaintiffs are qualifying individuals with disabilities within the meaning of the statutes. AC ¶¶ 275, 282. The OPWDD Defendants are alleged to be charged with ensuring that the programs and activities conducted , at the Union Avenue IRA in conformity.with § 504 of the Rehabilitation Act and Titie II of the ADA. Id. ¶¶276, 283. As to the Rehabilitation Act, plaintiffs further allege that OPWDD and the Metro New York DDSO Office received federal financial assistance to operate programs and activities at the Union Avenue IRA. Id. ¶ 274. Finally,' the AC adequately alleges — as reviewed above — that they were discriminated against or denied the opportunity to benefit from services, programs, dr activities for which the OPWDD Defendants had responsibility, id. ¶¶ 32-34. Accordingly, the Court denies the motion to dismiss plaintiffs’ claims under these two statutes for injunctive relief.
Plaintiffs - also sue White and Minter-Brooks, in their official capacities, for compensatory'damages under § 504 of the Rehabilitation Act. Id. ¶ 2 (Prayer for Relief). As addressed- above,' these claim's are properly brought consistent with the Eleventh Amendment. Substantively, “to recover monetary damages under the Rehabilitation Act .., plaintiff would need to show that any violation resulted from ‘deliberate indifference’ to the rights the disabled enjoy under ,the Act.” Powell,
Accordingly, the Court declines to dismiss the claims against the OPWDD Defendants for violations of § 504 of the Rehabilitation Act and Title II of the ADA seeking injunctive relief, and the claim for compensatory damages under § 504 of the Rehabilitation Act against White and Minter-Brooks in their official capacities.
CONCLUSION
For the foregoing reasons, the Court denies defendants’ motions to dismiss, while narrowing the scope of' plaintiffs’ § 1983 claim to eliminate a theory of liability based on conspiracy to violate plaintiffs’ federal rights.
The Clerk of Court is respectfully directed to terminate all motions. currently pending in this case.
SO ORDERED.
Notes
. The following summary of plaintiffs’ factual allegations is drawn from the Amended Complaint ("AC”). Dkt. 130.
. "IRA” is an abbreviation for “Individualized Residential Alternative,” a type of facility that OPWDD describes on its website as a community residence providing room and board, individualized service options, and 24-hour staff support and supervision.
. The Court construes the reference to "Defendant Goodman” to refer to defendant Goodwin. The AC sorts Goodwin into the Staff Defendants group; she, like Conner, worked at the Union Avenue IRA as a Developmental Assistant 1. Id. ¶¶ 22-23.
. In another allegation of a compliance deficiency, the AC alleges that the OPWDD defendants failed to ensure that the OPWDD and the Union Avenue IRA complied with "Jonathan’s Law,” a New York statute that entitles legal guardians to all medical records and abuse investigation records. It alleges that requests for records by L.K., B.M., and C.R. were ignored for months or never complied with at all. Id. ¶ 183.
. Defendants style this motion as under Rule 12(b)(1), for lack of subject matter jurisdiction. Because the motion is clearly meritless, the Court has no occasion to resolve whether such a motion is properly classified as such as opposed to under Rule 12(b)(6) for failure to state a claim. As the Second Circuit has noted, there are circumstances in which that classification could matter: Because the Eleventh Amendment can be understood as a limitation on the federal courts’ Article III powers, a motion under Rule 12(b)(1) would appear to place the burden on plaintiff to establish the lack of sovereign immunity “because it is generally a plaintiff’s burden to demonstrate subject matter jurisdiction”; in contrast, where sovereign immunity is understood as "akin to an affirmative defense that a state may assert or waive at its discretion, the burden would appear to fall on the defen
. Although the AC at one point states that White and Minter-Brooks are sued under ‘§ 1983 in their' individual capacities, AC ¶ 224, the AC elsewhere states that they are sued both in their individual and official ca-pacifies, id. ¶ 38. The AG also alleges that plaintiffs "will suffer real and. imminent irreparable harm in the absence of. an equitable remedy to prohibit these defendants' continuing violations of law,” id. ¶ 238, and seeks an injunction "enjoining the OPWDD Defendants from violating Plaintiffs’ rights under federal law,” id. ¶ 4 (Prayer for, Relief). It. is thus clear that White and Minter-Brooks are being sued, in their official capacities, for injunctive relief.
. White and Minter-Brooks are also sued in their official capacities for '"compensatory damages” for violations of § 504 of the Rehabilitation Act. AC ¶ 2 (Prayer for Relief). They have not moved to dismiss these claims on sovereign immunity grounds. And sovereign immunity would not-bar such a claim against them because Congress may condition acceptance of federal funds on a state’s waiving of its sovereign immunity, and acceptance of
. It is undisputed that defendants, all of whom were employees of OPWDD, were persons acting under color of state law within the meaning of § 1983.
. The AC pleads its excessive force claims as arising under both the Fourth and Fourteenth Amendments. It is undisputed that the institutionalized plaintiffs here may bring § 1983 claims under both Amendments. In the context of criminal defendants, however, the Supreme Court has noted that there is an unresolved doctrinal question as to "whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive physical force beyond the point at which arrest ends and pretrial detention begins,” Graham v. Connor,
. In Kingsley, the Supreme Court did not decide whether recklessly imposed force, if objectively unreasonable, could give rise to liability under substantive due process. It was undisputed in Kingsley that the defendants had purposefully or knowingly used force on the plaintiff. Kingsley,
'. Defendants Linton and Goodwin are also categorized as Staff Defendants, but neither has moved to dismiss the AC.
. The AC purports to limit its conspiracy claim to "the Staff Defendants and Supervisor Defendants,” AC ¶ 230, but because the allegations of a § 1983 conspiracy appear within the First Cause of Action, under which plaintiffs assert all their § 1983 claims and which is pleaded against the Staff Defendants, the Supervisor Defendants, and defendants White and Minter-Brooks in their individual capacities, id. ¶ 224 (“First Cause of Action”), the Court construes the § 1983 conspiracy claim to be asserted against those defendants as well.
. Plaintiffs allege that the conspiracy deprived them of their rights secured by the Fourth Amendment, see AC ¶ 230. But, plaintiffs also broadly allege their § 1983 claims as arising under the "Fourth/Fourteenth Amendments,” id. ¶ 224 (“First Cause of Action”). The Court therefore construes plaintiffs to be bringing their civil conspiracy claim under rights available to them under either amendment.
. Although the AC is silent as to whether D.K. saw Tucker punch her in the back or otherwise was aware of the imminent harmful or offensive contact sufficient for an apprehension of it, as is required for assault, on a motion to dismiss, the Court, drawing all reasonable inferfences from he allegations in plaintiffs’ favor, concludes that these allegations regarding the punch and push adequately plead that ejement of assault.
. Plaintiffs sue Linder for the three intentional torts and for negligence, potentially running afoul of the rule that a defendant cannot be liable for an intentional tort and negligence based on the same conduct, see Mazzaferro v. Albany Motel Enters., Inc.,