Siino v. NYC Human Resources Administration/Department of Social Services

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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CAROLYN JANE SIINO,

Plaintiff, MEMORANDUM & ORDER

14-CV-7217 (MKB) (LB)

v.

CITY OF NEW YORK,

Defendant.

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MARGO K. BRODIE, United States District Judge:

Plaintiff Carolyn Jane Siino, proceeding pro se, commenced the above-captioned action

on December 8, 2014. (Compl., Docket Entry No. 1.) Plaintiff’s only remaining claim in this

action is a claim against Defendant the City of New York, which the Court has liberally

construed to allege a claim under Title II of the Americans with Disabilities Act of 1990, 42

U.S.C. § 12101 et seq. (the “ADA”), for Defendant’s failure to comply with the ADA’s

integration mandate.1 (See Second Am. Compl. (“SAC”), Docket Entry No. 17; Mem. & Order

1 By Memorandum and Order dated April 21, 2015, the Court dismissed the Complaint

and granted Plaintiff leave to file an amended complaint within thirty days. (Mem. & Order

dated Apr. 21, 2015, Docket Entry No. 8.) On May 19, 2015, Plaintiff filed an Amended

Complaint, (Am. Compl., Docket Entry No. 9), which the Court dismissed for failure to state a

claim, (Mem. & Order dated July 9, 2015 (the “July 9, 2015 Decision”), Docket Entry No. 12).

By Memorandum and Order dated February 19, 2016, the Court denied Plaintiff’s motion for

reconsideration of the July 9, 2015 Decision and dismissed Plaintiff’s Fair Housing Act (“FHA”)

claims, considered for the first time. (Pl. Mot. for Recons., Docket Entry No. 15; Mem. & Order

dated Feb. 19, 2016 (the “Feb. 19, 2016 Decision”), Docket Entry No. 16.) In addition, the

Court granted Plaintiff’s motion to reopen the case and granted Plaintiff leave to file a second

amended complaint. (Feb. 19, 2016 Decision; Pl. Mot. to Reopen Case, Docket Entry No. 14.)

On June 14, 2016, Plaintiff filed a Second Amended Complaint (“SAC”). (SAC, Docket

Entry No. 17.) On December 21, 2016, Defendant moved to dismiss the SAC. (Def. Mot. to

Dismiss, Docket Entry No. 27; Def. Mem. in Supp. of Def. Mot. to Dismiss, Docket Entry No.

28.) While the motion to dismiss was pending, Plaintiff filed a motion for a temporary

dated Sept. 27, 2017, Docket Entry No. 33.) Plaintiff’s claim arises in connection with the

provision of services to Plaintiff by Adult Protective Services (“APS”), a division of the Human

Resources Administration (the “HRA”) Office of Special Services, while Plaintiff was facing

eviction for non-payment of rent. (See generally SAC.)

On May 24, 2018, Plaintiff moved to amend the SAC.2 (Pl. Mot. to Amend (“Pl. Mot.”),

Docket Entry No. 48.) On April 26, 2019, Defendant moved for summary judgment.3 (Def.

Second Mot. for Summ. J. (“Def. Mot.”), Docket Entry No. 64; Def. Mem. in Supp. of Def. Mot.

(“Def. Mem.”), Docket Entry No. 64-2.) Plaintiff opposed the motion.4 (Pl. Opp’n to Def. Mot.

(“Pl. Opp’n”), Docket Entry No. 68.) On May 2, 2019, the Court referred Defendant’s motion to

Magistrate Judge Lois Bloom for a report and recommendation. (Order dated May 2, 2019.) By

report and recommendation dated February 27, 2020, Judge Bloom recommended that the Court

restraining order (“TRO”) and preliminary injunction, which District Judge LaShann DeArcy

Hall denied. (Pl. Mot. for TRO & Prelim. Inj., Docket Entry No. 31; Order dated Apr. 12, 2017,

Docket Entry No. 32.) By Memorandum and Order dated September 27, 2017, the Court granted

Defendant’s motion to dismiss as to Plaintiff’s claims pursuant to 28 U.S.C. § 1983, denied the

motion as to Plaintiff’s claim under the Americans with Disabilities Act (the “ADA”), and

referred the case to Magistrate Judge Lois Bloom to supervise limited discovery regarding what

services Plaintiff received and what services she was entitled to receive in light of the ADA’s

integration mandate. (Mem. & Order dated Sept. 27, 2017, Docket Entry No. 33.)

2 Plaintiff previously moved to amend the SAC. (Pl. First Mot. to Amend, Docket Entry

No. 43.) By Order dated April 9, 2018, Judge Bloom denied Plaintiff’s request because Plaintiff

had failed to submit a proposed third amended complaint. (Order dated Apr. 9, 2018, Docket

Entry No. 45.)

3 Defendant previously moved for summary judgment, on October 17, 2018. (Def. First

Mot. for Summ. J., Docket Entry No. 58; Def. Mem. in Supp. of Def. First Mot. for Summ. J.,

Docket Entry No. 58-2.) By Order dated March 29, 2019, the Court denied Defendant’s motion

without prejudice for failure to comply with Local Civil Rule 56.2. (Order dated Mar. 29, 2019.)

4 On January 29, 2020, Plaintiff moved to supplement the record. (Pl. Mot. to Suppl. the

Record, Docket Entry No. 71.) Defendant requested an extension of time to respond to

Plaintiff’s motion. (Def. Req. for Extension of Time, Docket Entry No. 72.) In light of

Plaintiff’s pro se status, the Court grants Plaintiff’s motion to supplement the record.

grant Defendant’s motion for summary judgment and deny Plaintiff’s motion to amend the SAC

(the “R&R”). (R&R, Docket Entry No. 74.)

For the reasons set forth below, the Court adopts the R&R, grants Defendant’s motion for

summary judgment, and denies Plaintiff’s motion to amend the SAC.

I. Background

The Court assumes familiarity with the underlying facts as detailed extensively in the

R&R, as well as the Court’s previous decisions in this case,5 and provides only a brief summary

of the pertinent facts.

Plaintiff was referred to APS in fall of 2013 by the judge presiding over her eviction

proceeding in Queens Housing Court. (APS Case File 51, annexed to Decl. of Christopher

Ferreira (“Ferreira Decl.”) as Ex. A, Docket Entry No. 66-1.)6 On November 29, 2012,

Kimberly Harvey, an APS caseworker, conducted a home visit with Plaintiff. (Def. Statement of

Material Facts Pursuant to Local R. 56.1 (“Def. 56.1”) ¶ 8, Docket Entry No. 64-1; Pl. Resp. to

Def. 56.1 ¶ 8, Docket Entry No. 68.) Harvey discussed with Plaintiff her current source of

income, a monthly pension, as well as the possibility of applying for social security benefits,

which Plaintiff told Harvey she was entitled to but did not think would cover her expenses. (Def.

56.1 ¶¶ 9–10; Pl. Resp. to 56.1 ¶¶ 9–10 (disputing only the amount of social security benefits

discussed).) Harvey reported that Plaintiff told her she was planning to find a job and that she

“wrote books on prophecy and solving the debt crisis that she believed would make her money.”

5 (See Mem. & Order dated Apr. 21, 2015; July 9, 2015 Decision; Feb. 19, 2019

Decision; Mem. & Order dated Sept. 27, 2017.)

6 Because the APS Case File is not consecutively paginated, the Court refers to the page

numbers assigned by the Electronic Case Filing (“ECF”) system.

(Def. 56.1 ¶¶ 11–12; Pl. Resp. to Def. 56.1 ¶¶ 11–12.) Plaintiff reported that she did not have a

plan for if she were evicted, and that if she “lost her belonging[s] and had to live on the street she

would consider suicide.” (Def. 56.1 ¶ 12; Pl. Resp. to 56.1 ¶ 12 (stating that Plaintiff does not

dispute that she made this statement but that “since the street seemed unlikely to [Plaintiff], what

with City attention, [Plaintiff] was only joking”).) Harvey offered to arrange for a heavy-duty

cleaning of Plaintiff’s apartment, but Plaintiff declined the offer. (Def. 56.1 ¶ 13; Pl. Resp. to

56.1 ¶ 13 (disputing that Plaintiff’s home was cluttered, but not disputing that cleaning services

were offered and refused).)

On December 24, 2012, Dr. David Klein, M.D., accompanied Harvey to Plaintiff’s home.

(Def. 56.1 ¶ 14; Pl. Resp. to Def. 56.1 ¶ 14.) Dr. Klein, a psychiatrist for the HRA’s Customized

Assistance Services, conducted a psychological evaluation of Plaintiff, and determined that she

had “poor insight, poor judgment, [and] magical thinking, and diagnosed her with a not-

otherwise-specified psychotic disorder and schizotypal personality disorder.” (Def. 56.1 ¶¶ 14–

15; Pl. Resp. to Def. 56.1 ¶¶ 14–15.) Concluding that an Article 81 guardian “need[ed] to be

appointed,” Dr. Klein “recommended that Plaintiff be referred to the Office of Legal Affairs

(‘OLA’) for guardianship, that a heavy duty-cleaning be performed in Plaintiff’s apartment, and

that she be encouraged to apply for her social security benefits.” (Def. 56.1 ¶ 16; Pl. Resp. to

Def. 56.1 ¶ 16.)

In a case transfer summary dated January 7, 2013, Harvey wrote that Plaintiff was

“mentally impaired,” with “poor judgment,” and “not capable of relocating on her own,” and that

she “need[ed] [an Article] 81 guardian to apply for benefits on her behalf and assist her with

relocating.” (APS Case File 3.) Harvey reported Plaintiff had been evaluated by Dr. Klein, and

that the goals of APS’s service plan for her were “[a]ccessing benefits” and pursuing Article 81

guardianship. (Id.) Plaintiff’s case was reassigned to another APS caseworker, Patricia

Edwards-Jones. (Def. 56.1 ¶ 18; Pl. Resp. to Def. 56.1 ¶ 18.)

On February 13, 2013, Edwards-Jones met with Plaintiff in her home, and Plaintiff

informed Edwards-Jones that she was planning to apply for an Emergency Assistance for Adults

(“EAA”) grant. (Def. 56.1 ¶¶ 19, 21; Pl. Resp. to Def. 56.1 ¶¶ 19, 21.) Plaintiff told Edwards-

Jones she would use the $2200 given to her by a friend to “establish future income,” and

Edwards-Jones explained that that money “would not be considered future income and that

[Plaintiff] would likely not be approved for an EAA grant without . . . establish[ing] a source of

future income.” (Def. 56.1 ¶¶ 21–22; Pl. Resp. to Def. 56.1 ¶¶ 21–22 (stating that Plaintiff

“understood and got a part-time job, which was supposed to a lead to a full-time job, but . . . did

not”).) Edwards-Jones “urged Plaintiff to apply for her Social Security benefits, but Plaintiff

refused.” (Def. 56.1 ¶ 24; Pl. Resp. to Def. 56.1 ¶ 24 (stating that Plaintiff “was not going to go

for [Social Security] benefits without further mention of supportive or other suitable housing . . .

especially given that [Plaintiff’s housing court] case would continue for almost five months,” by

which time she would be eligible for increased benefits).)

Edwards-Jones reported that she “discussed relocation plans with Plaintiff,” who said she

had none and “believed that the court would not allow her to be evicted.” (Def. 56.1 ¶ 24.)

Plaintiff contends that “APS never told [Plaintiff] of any relocation plans that [Defendant] had

for [Plaintiff].” (Pl. Resp. to Def. 56.1 ¶ 24.) Edwards-Jones also reported that she discussed

various options with Plaintiff, including “supportive housing, ‘APS’ family type housing,’ and

Article 81 guardianship,” all of which Plaintiff “refused,” although Edwards-Jones “encouraged

Plaintiff to consider them further.” (Def. 56.1 ¶ 25.) Plaintiff contends that these options were

only “mentioned,” and not “discuss[ed].” (Pl. Resp. to Def. 56.1 ¶ 25.) During a conversation

the following day, Plaintiff told Edwards-Jones that “she had concerns about the housing

proposals [Edwards-Jones had] explained to her” and “was worried that she would have nowhere

to put her things,” and that “[b]ecause of these concerns, . . . she would not make a decision on

the matter.” (Def. 56.1 ¶ 28; Pl. Resp. to Def. 56.1 ¶ 28.)

In late February of 2013, Plaintiff’s EAA grant application was denied, and, after

declining APS’s offer to submit another application on her behalf, Plaintiff requested “a fair-

hearing to challenge the denial of her EAA grant application.” (Def. 56.1 ¶¶ 31, 34–35; Pl. Resp.

to Def. 56.1 ¶ 31, 34–35.) Edwards-Jones learned that Plaintiff’s application had been denied

“because Plaintiff failed to submit information that was requested, . . . did not properly complete

the portions of the application, and . . . failed to establish proof of income.” (Def. 56.1 ¶ 38; Pl.

Resp. to Def. 56.1 ¶ 38 (stating that Plaintiff “does not know whether this statement is true or

false”).)

During a home visit on March 19, 2013, Plaintiff again “expressed ‘deep concern’ about

having room for all her belongings in an assisted living facility.” (Def. 56.1 ¶ 48; Pl. Resp. to

Def. 56.1 ¶ 48.) According to Edwards-Jones, “she explained assisted living programs to

Plaintiff, and the benefits of assisted living as opposed to entering the shelter system,” but

“Plaintiff refused to complete the applications presented to her.” (Def. 56.1 ¶ 48.) Plaintiff

disputes that she ever “saw any assisted living applications,” and further states that “knew” she

was “not mentally disabled” and thus “believed” she was “ineligible for assisted living.” (Pl.

Resp. to Def. 56.1 ¶ 48.) On March 21, 2013, Edwards-Jones contacted an assisted living

facility to inquire about an “emergency referral” she had made on Plaintiff’s behalf, and learned

that “an opening might not be available until May 2013.” (Def. 56.1 ¶ 50; Pl. Resp. to Def. 56.1

¶ 50.)

Throughout March and April of 2013, Edwards-Jones reported that Plaintiff “continued

to refuse to apply for social security benefits” or “fill out applications for alternative housing

provided by Edwards-Jones.” (Def. 56.1 ¶ 54.) Plaintiff asserts that “[t]hroughout April 2013,

[she] was not offered any relocation plan or shelter services,” (Pl. Resp. to Def. 56.1 ¶ 65), and

that Edwards-Jones “mentioned [Plaintiff] applying for [Social Security benefits] only once or

twice,” (id. ¶ 27).

On March 25, 2013, APS submitted an Article 81 referral form, prepared on March 22,

2013, to OLA. (Def. 56.1 ¶ 53; Pl. Resp. to Def. 56.1 ¶ 53; Art. 81 Referral to OLA, annexed to

Ferreira Decl. as Ex. B, Docket Entry No. 66-2.) The form explicitly indicated that the referral

was for a “community” Article 81 guardianship, rather than an “institutional” Article 81

guardianship. (Art. 81 Referral to OLA 1.)7 On April 5, 2013, OLA notified Edwards-Jones that

it was rejecting the Article 81 guardianship application because “there [was] no nexus between

[Plaintiff’s] risk and her functional limitations.” (APS Case File 25.) Edwards-Jones discussed

the rejection with her supervisor, and they “decided that based on [Plaintiff’s] apparent florid

condition and seemingly suicidal plans to resolve eviction[,] another psychiatric evaluation

should be done.” (Id.) On April 11, 2013, Dr. Klein conducted a second psychiatric evaluation

of Plaintiff, based on which he “strongly recommended that APS submit an application for

Article 81 guardianship on Plaintiff’s behalf.”8 (Def. 56.1 ¶ 61; Pl. Resp. to Def. 56.1 ¶ 61.) On

7 Because the Article 81 Referral to OLA is not consecutively paginated, the Court refers

to the page numbers assigned by the Electronic Case Filing (“ECF”) system.

8 On April 7, 2013, Edwards-Jones spoke with Dr. Marilyn Gerber, Plaintiff’s

psychotherapist, who “expressed concern regarding [Plaintiff’s] ability to care for [her]self.”

(APS Case File 33.) Dr. Gerber said Plaintiff “would need someone to guide her” and “to

oversee her every day [sic] activities.” (Id.) Dr. Gerber reported that she had seen an “increase[]

in psychotic behavior” in her weekly sessions with Plaintiff, and that Plaintiff had “refused to see

April 16, 2013, Edwards-Jones submitted a second application for Article 81 guardianship to

OLA, which OLA accepted on April 23, 2013. (Def. 56.1 ¶¶ 71, 73; Pl. Resp. to Def. 56.1 ¶¶ 71,

73.)

In its approval memo, OLA noted that Plaintiff was facing imminent eviction and that,

“[d]ue to her functional limitations,” she “lack[ed] insight into the risk of eviction and spoke

about [it] in what [Dr. Klein] described as a ‘thought disordered manner.’” (OLA Memo 2–3,

annexed to Ferreira Decl. as Ex. C, Docket Entry No. 66-3.) Plaintiff had not “been able to

address the threat of eviction because of her delusional belief that an EAA grant [was] pending

and the eviction [would] be resolved,” and “refuse[d] to apply for Social Security because she

believe[d] the amount she [would] receive[] would be too small.” (Id. at 3.) The memo further

noted that Plaintiff was “unable to say what she would do if she were evicted other than making

threats of suicide,” and that she had “refused all offers of assistance with relocation by APS.”

(Id.) The memo also referenced Plaintiff’s mental health diagnoses, and noted that Dr. Klein’s

evaluation indicated that she “suffers from paranoia” and “often mentioned her ‘powers of

prophecy.’” (Id.)

OLA concluded that Plaintiff met the legal criteria for appointment of a guardian because

“[a]s a result of functional limitations,” she was “likely to suffer harm because” she was “unable

to provide for . . . personal needs” and “property management,” and was “unable to adequately

understand and appreciate the nature and consequences of such inability to address the risk.” (Id.

at 2.) OLA further concluded that there were no “available lesser restrictive measures that

the [p]sychiatrist . . . after medication was recommended.” (Id.) Plaintiff contends that the

psychiatrist “never recommended medication, only rubber-stamped what [Plaintiff] told him

occurred with Dr. Klein, so that [Plaintiff] distrusted and disliked [him],” and that she “believes

that much of [Edwards-Jones’s] reporting is fabricated.” (Pl. Resp. to 56.1 ¶ 72.)

[could] stabilize this case,” and that there was “sufficient present risk to [Plaintiff] as a result of

. . . her functional limitations.” (Id.)

On July 26, 2013, a judge in the New York Supreme Court, Queens County, appointed

the New York Foundation for Senior Citizens, Guardian Services, Inc. as Temporary Personal

Needs and Property Management Guardian for Plaintiff, to “marshall[] income and assets,”

“apply[] for . . . benefits,” “protect[] [Plaintiff’s] rights with regard to her apartment, or . . .

relocate[] her to a suitable residence,” and “assur[e] that [Plaintiff] [was] current with all medical

and dental treatments.” (State Ct. Order dated June 26, 2013, annexed to Ferreira Decl. as Ex. D,

Docket Entry No. 66-4.) On August 7, 2013, the state court “issued a final Order and Judgment

Appointing a Guardian of the Personal Needs and Property Management in Plaintiff’s Article 81

proceeding.” (Def. 56.1 ¶ 79; Pl. Resp. to Def. 56.1 ¶ 79.)

On September 18, 2013, Edwards-Jones conducted a home visit, “during which

Plaintiff’s court appointed [guardianship caseworker, Michael Coley] was present,” and

explained to Plaintiff that “APS would be working alongside [Coley] until the guardianship was

certified . . . after which Plaintiff’s APS case would be closed.” (Def. 56.1 ¶¶ 82–83; Pl. Resp. to

Def. 56.1 ¶¶ 82–83; APS Case File 45.) During an October home visit, Plaintiff told Edwards-

Jones that Coley had “obtained an additional [sixty] days to relocate Plaintiff,” and further

reported that she was “upset that [Coley] had applied for Social Security benefits on her behalf

without telling her.” (Def. 56.1 ¶¶ 84–85; Pl. Resp. to Def. 56.1 ¶¶ 84–85.)

On December 10, 2013, Plaintiff was evicted. (Def. 56.1 ¶ 86; Pl. Resp. to Def. 56.1

¶ 86.) Edwards-Jones was present, along with Coley. (APS Case File 47.) Plaintiff reported she

would be going to a shelter, but did not actually do so. (Def. 56.1 ¶¶ 87, 91; Pl. Resp. to Def.

56.1 ¶ 87 (stating that Plaintiff had no choice but to say she would go to a shelter); id. ¶ 91.)

Edwards-Jones closed Plaintiff’s APS case on December 16, 2013. (APS Case File 48.)

In early January of 2014, Plaintiff “checked herself into Forest Hills Hospital because of

a gastrointestinal infection.” (Def. 56.1 ¶ 92; Pl. Resp. to Def. 56.1 ¶ 92.) Coley met Plaintiff at

the hospital to assist with her discharge on January 7, 2014, and asked where she was staying.

(Def. 56.1 ¶ 93; Pl. Resp. to Def. 56.1 ¶ 92.) Plaintiff refused to say and stated that she

“preferred to have the guardianship worry.” (Def. 56.1 ¶ 94; Pl. Resp. to Def. 56.1 ¶ 94 (stating

that Plaintiff “does not know whether this statement is true or false”).) When Plaintiff refused to

tell Coley that she would go to a shelter or had somewhere else to stay, “because of the danger

presented to her by the extreme temperatures, [Coley] had her hospitalized at Elmhurst hospital

from approximately January 7, 2014 to January 15, 2014.” (Def. 56.1 ¶¶ 95–96; Pl. Resp. to

Def. 56.1 ¶¶ 95–96.)

Plaintiff’s guardianship was terminated in November of 2015, (SAC ¶ 48), nearly a year

after she commenced this action, (Compl.).

II. Report and recommendation

Judge Bloom recommended that the Court grant Defendant’s summary judgment motion

and deny Plaintiff’s motion to amend. (R&R 1.)

After an “assiduous review of the record,” Judge Bloom concluded that the “evidence

demonstrates that [Defendant] created a service plan for [Plaintiff] based on individualized

clinical and psychiatric assessments and that [Plaintiff] opposed the alternative housing, benefits,

and services that were presented and explained to her.” (Id. at 31.) Judge Bloom also found that

“[P]laintiff’s hospitalizations after her eviction were either a result of [her] own volitional

conduct or her interactions with her private guardian,” and that Plaintiff “had not shown that

[Defendant] excluded her from any program for which she was eligible or otherwise

discriminated against her by reason of her disability.” (Id. at 38.) Because “[t]here is no genuine

issue of material fact regarding whether [Plaintiff] was denied a more appropriate placement or

service, to which she was unopposed, and for which she was qualified or eligible,” Judge Bloom

found that Plaintiff could not prevail on her integration mandate claim. (Id. at 31.)

As to Plaintiff’s motion to amend, Judge Bloom found that, accepting the allegations in

the proposed Third Amended Complaint (“TAC”) as true and drawing all reasonable inferences

in Plaintiff’s favor, “amendment would nonetheless be futile as [P]laintiff lacks constitutional

standing to bring the federal claims she proposes to add to the case.” (Id. at 40–41.) Judge

Bloom further recommended that, “[t]o the extent that the TAC alleges state law claims, even if

[P]laintiff would be granted permission to amend, the Court should decline to exercise

supplemental jurisdiction over the state law claims.” (Id. at 45.)

III. Discussion

a. Standards of review

i. Report and recommendation

A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,

or modify, in whole or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and

recommendation, the district court reviews de novo the parts of the report and recommendation

to which the party objected. Id.; see also United States v. Romano, 794 F.3d 317, 340 (2d Cir.

2015). The district court may adopt those portions of the recommended ruling to which no

timely objections have been made, provided no clear error is apparent from the face of the

record. John Hancock Life Ins. Co. v. Neuman, No. 15-CV-1358, 2015 WL 7459920, at *1

(E.D.N.Y. Nov. 24, 2015). The clear error standard also applies when a party makes only

conclusory or general objections. Benitez v. Parmer, 654 F. App’x 502, 503–04 (2d Cir. 2016)

(holding that “general objection[s] [are] insufficient to obtain de novo review by [a] district

court” (citations omitted)); see Fed. R. Civ. P. 72(b)(2) (“[A] party may serve and file specific

written objections to the [magistrate judge’s] proposed findings and recommendations.”); see

also Colvin v. Berryhill, 734 F. App’x 756, 758 (2d Cir. 2018) (“Merely referring the court to

previously filed papers or arguments does not constitute an adequate objection under . . . Fed. R.

Civ. P. 72(b).” (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002))).

ii. Summary judgment

Summary judgment is proper only when, construing the evidence in the light most

favorable to the non-movant, “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Wandering Dago, Inc. v.

Destito, 879 F.3d 20, 30 (2d Cir. 2018); see also Cortes v. MTA N.Y.C. Transit, 802 F.3d 226,

230 (2d Cir. 2015). The court must “‘constru[e] the evidence in the light most favorable to the

non-moving party’ and ‘resolve all ambiguities and draw all permissible factual inferences in

favor of the party against whom summary judgment is sought.’” Lenzi v. Systemax, Inc., 944

F.3d 97, 107 (2d Cir. 2019) (first quoting VKK Corp. v. Nat’l Football League, 244 F.3d 114,

118 (2d Cir. 2001); and then quoting Johnson v. Goord, 445 F.3d 532, 534 (2d Cir. 2006)). The

role of the court “is not to resolve disputed questions of fact but only to determine whether, as to

any material issue, a genuine factual dispute exists.” Rogoz v. City of Hartford, 796 F.3d 236,

245 (2d Cir. 2015) (first quoting Kaytor v. Elec. Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010);

and then citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986)). A genuine issue

of fact exists when there is sufficient “evidence on which the jury could reasonably find for the

plaintiff.” Anderson, 477 U.S. at 252. The “mere existence of a scintilla of evidence” is not

sufficient to defeat summary judgment. Id. The court’s function is to decide “whether, after

resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational

juror could find in favor of that party.” Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.

2000).

b. Objections to the R&R

Plaintiff objects to Judge Bloom’s finding that “[t]here is no genuine issue of material

fact regarding whether [Plaintiff] was denied a more appropriate placement or service, to which

she was unopposed, and for which she was qualified or eligible.” (Pl. Obj. ¶ 2 (quoting R&R

31).) Plaintiff argues that Defendant (1) “never fully complied with the Court’s request for all

Citywide documents regarding [Plaintiff] for 2012–2013,” (2) “never mentioned the one HRA

application which [Plaintiff] did fill out,” and (3) “never fully discovered [Defendant’s] speech

and actions taken regarding said HRA application.” (Id.) Plaintiff further states that after she

reviewed the R&R, “while surfing the Internet,” she “discovered . . . new evidence: City HRA

web pages containing benefits never mentioned, offered, or given to [Plaintiff].”9 (Id.) Based on

this “new evidence,” Plaintiff asserts that when she met with “the City HRA employee,” who

was “speaking and acting according to City HRA policy,” the HRA employee “never

mention[ed], offer[ed], or [gave] crucial benefits for which [Plaintiff] believes [Plaintiff] was

eligible.” (Id. ¶ 3.) When Plaintiff informed the HRA employee that she was an APS client, “he

pointed to APS next door, but . . . deliberately left the assessment and undercare [sic] of services

and programs [to provide Plaintiff] with . . . crucial benefits entirely up to APS.” (Id.) Plaintiff

9 Plaintiff attaches to her objections a blank HRA “Request to Pay Rent Arrears in

Excess of Cash Assistance Maximum Shelter Allowance” form, handwritten notes, a print-out of

the HRA’s webpage for “Cash Assistance” services, and information about “Cash Assistance

Additional Allowances.” (See Pl. Obj.)

argues that as a result of the HRA employee’s actions, she “was deprived of the services and

programs which would have led to the benefits.” (Id. ¶ 2.) Specifically, Plaintiff appears to

argue that she was deprived of “storage and [a] homeless shelter.” (Id. ¶ 13.) Plaintiff contends

that “if the Court concludes that [Plaintiff] is . . . regarded as mentally disabled and having a

history of a mental disability under [the] ADA, then the Court should reconsider, given the

information [Plaintiff] has discussed, whether [Plaintiff] also has [shown] a violation of the

integration mandate.” (Id. ¶ 12.)

As to Judge Bloom’s finding that Plaintiff lacks standing to bring her proposed amended

claims, Plaintiff states she “learned from [the] R&R that [she] should show standing by stating

injuries ‘up to snuff,’” and alleges that she has suffered economic injuries due to storage bills she

has had to pay since December 13, 2013, the costs of replacing books destroyed in storage, and

credit card debt and interest. (Id. ¶ 11.) Plaintiff also states that she has “mental anguish, but . . .

just tackles [her] challenges,” and that she “has tried to express that [Plaintiff’s allegations]

seem[] to . . . best fit a [section] 1983 action, whether a [Monell] or a stigma-plus as Plaintiff was

misdiagnosed and institutionalized, and . . . leaves any such construing of such a claim to the

Court.” (Id.)

c. ADA claim

Defendant argues that the Court should grant its motion for summary judgment because

(1) “Plaintiff was never denied any benefit or services to which she was entitled,” (2) “APS

conducted an assessment of Plaintiff and created a management plan based on her needs and

circumstances,” (3) “any failure by Plaintiff to receive alternative services was largely the result

of her own volitional conduct and her decision not to avail herself of those services offered to her

by APS,” including “supportive housing and shelter services,” and (4) Defendant “did not seek to

institutionalize Plaintiff and had no role in her hospitalization,” and “sought only to help Plaintiff

remain in the community.” (Def. Mem. 1–2.) Defendant further argues that in addition to not

being currently institutionalized, Plaintiff cannot show that she “is currently at risk of

institutionalization.” (Id. at 2.) Finally, Defendant argues that “Plaintiff is not entitled to the

relief requested because she cannot pursue punitive damages against a municipal entity under the

ADA and because she has failed to show any intentional discrimination on the part of

[Defendant], or its agents, and employees.” (Id.)

Liberally construed, Plaintiff argues that Defendant violated the integration mandate by

steering her toward guardianship, rather than helping her secure benefits and an appropriate

housing option in the community, increasing her risk of institutionalization and ultimately

resulting in her actual institutionalization when she was hospitalized. (See generally Pl. Opp’n.)

Title II of the ADA provides that “no qualified individual with a disability shall, by

reason of such disability, be excluded from participation in or be denied the benefits of the

services, programs, or activities of a public entity, or be subjected to discrimination by any such

entity.” 41 U.S.C. § 12132. To state a valid ADA claim under Title II, “a plaintiff must

establish ‘(1) that she is a qualified individual with a disability; (2) that she was excluded from

participation in a public entity’s services, programs or activities or was otherwise discriminated

against by a public entity; and (3) that such exclusion or discrimination was due to her

disability.’” Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016) (quoting Fulton v. Goord, 591 F.3d

37, 43 (2d Cir. 2009)).

The integration mandate, one of the ADA’s implementing regulations, requires public

entities to “administer services, programs, and activities in the most integrated setting

appropriate” to meet the needs of people with disabilities. 28 C.F.R § 35.130(d); Davis, 821

F.3d at 260 & n.18 (considering the integration mandate in the context of a disparate treatment

claim); Arc of Wash. State Inc. v. Braddock, 427 F.3d 615, 618 (9th Cir. 2005) (considering the

integration mandate in the context of a reasonable accommodation claim). A state fulfills its

obligation under the integration mandate by administering its services in the “setting that enables

individuals with disabilities to interact with non-disabled persons to the fullest extent possible.”

Davis, 821 F.3d at 262 (quoting Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 592 (1999)).

The Second Circuit has clarified that its prior decisions holding “that the ADA does not bar

unequal treatment of different disabilities, so long as disabled individuals are not denied services

provided to the able-bodied on the basis of their disabilities,” Davis, 821 F.3d at 260, do not limit

integration mandate claims, because “Olmstead unquestionably holds that the ‘unjustified

institutional isolation of persons with disabilities’ is, in an[d] of itself, a prohibited ‘form of

discrimination,’” id. at 260–61 (quoting Olmstead, 527 U.S. at 600). Failure to comply with the

integration mandate is therefore “discrimination on the basis of disability under the ADA.” Id. at

262 (“In Olmstead, the Supreme Court interpreted the integration mandate to mean that the

‘unjustified isolation’ of disabled individuals in institutionalized care facilitates constitutes

discrimination on the basis of disability under the ADA.”); Schine by Short v. N.Y.S. Office for

People with Developmental Disabilities, No. 15-CV-5870, 2017 WL 1232530, at *3 (E.D.N.Y.

Mar. 31, 2017) (explaining that violation of the integration mandate is “one form of

discrimination by reason of disability” (alteration and citation omitted)). The United States

Department of Justice (“DOJ”) has issued interpretive guidance on the integration mandate,

stating that:

The ADA’s integration mandate is implicated where a public

entity administers its programs in a manner that results in

unjustified segregation of persons with disabilities. More

specifically, a public entity may violate the ADA’s

integration mandate when it: (1) directly or indirectly

operates facilities and or/programs that segregate individuals

with disabilities; (2) finances the segregation of individuals

with disabilities in private facilities; and/or (3) through its

planning, service system design, funding choices, or service

implementation practices, promotes or relies upon the

segregation of individuals with disabilities in private

facilities or programs.

U.S. Dep’t of Justice, Statement of the Department of Justice on Enforcement of the Integration

Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C., at Q2 (last

updated Feb. 25, 2020), www.ada.gov/olmstead/q&a_olmstead.htm (last visited Apr. 3, 2020);

Davis, 821 F.3d at 263 (“Because the integration mandate is a creature of the [DOJ’s] own

regulations, DOJ’s interpretation of that provision is controlling unless plainly erroneous or

inconsistent with the regulations.” (alteration in original) (citations and internal quotations marks

omitted)).

The integration mandate has been applied broadly to include a range of public social

services. See, e.g., Schine by Short, 2017 WL 1232530, at *3 (finding for the plaintiff on a

motion for judgment on the pleadings where he alleged that his Medicaid budget should be

allocated “to prevent institutionalization” and he sought “to be relocated to ‘an independent

living facility’”) (adopting report and recommendation); State of Conn. Office of Prot. &

Advocacy for Pers. with Disabilities v. Connecticut, 706 F. Supp. 2d 266, 274, 289 (D. Conn.

2010) (certifying a class and denying defendants’ motion to dismiss an action brought on behalf

of individuals with mental disabilities residing in three nursing facilities and those at risk of

entering those facilities where the allegations were that the defendants “needlessly segregated,

inappropriately warehoused, and left without safeguards to ensure that they are discharged” and

“systematically failed to inform [the class] of their right to community services, and failed to

provide services with reasonable promptness”); see also Brown v. D.C., No. 10-CV-2250, 2017

WL 4081891, at *40 (D.D.C. Sept. 13, 2017) (discussing the effectiveness of the transition

assistance for individuals in nursing facilities and applying a six-factor “transition assistance”

test that included affirmative obligations on the part of the government such as the “provision of

accurate information about available community-based services, assistance in applying and

enrolling” and “identification of barriers to transition and assistance in overcoming those barriers

to the extent possible[,] e.g. if housing is a barrier, providing assistance in applying for supported

housing”); Guggenberger v. Minnesota, 198 F. Supp. 3d 973, 1029–30 (D. Minn. 2016)

(considering services such as “independent housing options; assistance and supervision in

developing and maintaining independent living skills and in accessing the community” and

“assistance with financial management and budgeting; nutrition and menu planning; healthcare

management; and assistance in obtaining and maintaining gainful employment”).

In bringing an integration mandate claim, a plaintiff must demonstrate that the

defendant’s actions pose a serious risk of institutionalization for disabled persons. See 28 C.F.R.

§ 35.130(d); Davis, 821 F.3d at 263. A “plaintiff establishes a sufficient risk of

institutionalization . . . if a public entity’s failure to provide community services . . . will likely

cause a decline in health, safety, or welfare that would lead to the individual’s eventual

placement in an institution.” Davis, 821 F.3d at 262–63. “[T]he integration mandate . . .

requires a state to provide community-based treatment for disabled persons when (1) ‘the State’s

treatment professionals determine that such placement is appropriate,’ (2) ‘the affected persons

do not oppose such treatment,’ and (3) ‘the placement can be reasonably accommodated, taking

into account the resources available to the State and the needs of others with [similar]

disabilities.’” Id. at 262 (second alteration in original) (quoting Olmstead, 527 U.S. at 607).

The Court finds that no jury could reasonably find that Defendant denied Plaintiff access

to services or programs on the basis of her actual or perceived disability,10 or that Defendant

violated the integration mandate. As detailed above, APS’s decision to pursue Article 81

guardianship for Plaintiff was based on the recommendation of a psychiatrist, Dr. Klein, who

evaluated Plaintiff on two separate occasions, as well as the opinions of APS caseworkers who

met and spoke with Plaintiff on numerous occasions to attempt to help Plaintiff either avoid or

plan for her eviction. (Def. 56.1 ¶¶ 14, 16–17, 59, 61, 64; see generally APS Case File); see

Messier v. Southbury Training School, 526 F. Supp. 2d 294, 326 (D. Conn. 2008) (“The court . . .

must defer to the judgment of the defendants’ medical and mental health professionals in

determining whether community placement is appropriate . . . .”); Jenkins v. N.Y.C. Dep’t of

Homeless Servs., 643 F. Supp. 2d 507, 516 (S.D.N.Y. 2009) (“‘The State generally may rely on

the reasonable assessments of its own professionals in determining whether an individual meets

the eligibility requirements’ of a specific program.” (quoting Olmstead, 527 U.S. at 602)).

Defendant’s concerns regarding Plaintiff’s ability to care for herself were shared by Plaintiff’s

own treatment provider, who similarly expressed concern about Plaintiff’s ability to care for

herself. (See APS Case File 33.) Moreover, APS specifically pursued a community-based

guardianship, and not an institutionalized guardianship. (Art. 81 Referral to OLA 1.) While

Plaintiff was eventually hospitalized against her will for eight days in January of 2014, that

occurred only after she checked herself in for medical treatment and then refused to tell her

10 Defendant does not dispute that Plaintiff was “a qualified individual with a disability

for purposes of the ADA,” and thus has satisfied the first element of a Title II claim. (See Def.

Mem. 13.) Plaintiff contends that Defendant “imputed to [her] a mental disability, which [she]

did not have.” (Pl. Resp. to Def. 56.1 ¶ 27.) For purposes of the ADA, a person is considered to

have a disability if they are “regarded as having such an impairment.” Francis v. Hartford Bd. of

Educ., 760 F. App’x 34, 36 (2d Cir. 2019) (quoting 42 U.S.C. § 12102(a)).

court-appointed guardianship caseworker where she would be staying upon her discharge,

despite the extreme temperatures outside. (See Def. 56.1 ¶¶ 92–96.) No jury could reasonably

find that Plaintiff’s hospitalization was due to Defendant’s failure to provide appropriate,

community-based services.

While Plaintiff argues that APS tried to direct her into guardianship and away from other

services, the record demonstrates that APS caseworkers discussed various options, including

applying for assisted living, supportive housing, and benefits, which Plaintiff, for various

reasons, refused. (See, e.g., APS Case File 4, 7, 9, 11–12, 24, 27.) Instead, Plaintiff insisted on

pursuing the EAA grant, despite her APS caseworker explaining to her that she was unlikely to

receive it. (See, e.g., id. at 4.) While Plaintiff’s application was ultimately denied, the record

demonstrates that this denial was due to Plaintiff’s failure to provide the necessary information,

not to her disability.11 (See id. at 10, 29.) Plaintiff’s attempt to argue, in her objections to the

R&R, that she has now discovered evidence of services that HRA should have provided to her,

(Pl. Obj. ¶¶ 2–3), fails to create a triable issue of fact as to whether she was discriminated against

on the basis of an actual or perceived disability.

Plaintiff has not shown that Defendant denied her services or otherwise discriminated

against her on the basis of her actual or perceived disability, or that Defendant placed her at risk

11 After the HRA was directed by a judge at Plaintiff’s fair-hearing to “obtain more

information with regard to the viability of Plaintiff’s application,” Edwards-Jones spoke to a

representative from the Fair Hearing Compliance Unit, who informed Edwards-Jones that

Plaintiff’s “resubmitted application would [likely not be] approved because Plaintiff failed to

submit proof of income and other necessary information.” (Def. 56.1 ¶¶ 43, 67–68; Pl. Resp. to

Def. 56.1 ¶¶ 43, 67–68.) Moreover, the record demonstrates that several attempts were made by

the agency facilitating and/or processing Plaintiff’s application to obtain the necessary

information but “Plaintiff never provided the information.” (Def. 56.1 ¶ 39; but see Pl. Resp. to

Def. 56.1 ¶ 39 (disagreeing and stating that she and an agency employee had “such a wonderful

relationship”).)

of institutionalization by its failure to provide community services recommended by treatment

professionals and unopposed by Plaintiff. Accordingly, the Court grants Defendant’s motion as

to Plaintiff’s ADA claim.12

d. Plaintiff’s motion to amend

Defendant argues that the Court should deny Plaintiff’s motion to amend the SAC to add

(1) “a [section] 1983 claim, (2) a “fraudulent concealment claim,” and (3) “a disparate impact

claim” because “Plaintiff’s proposed new claims fail to meet the 12(b)(6) pleading standard and,

thus, ar[e] futile.” (Def. Mem. 25–26.)

In her objections to the R&R, Plaintiff states that she “does not . . . so strongly believe

that [she] has a disparate impact claim,” and that it “is not [her] intention to present a state fraud

claim (unless the Court later so requests),” but that her allegations “seem to [her] to best fit a

1983 action . . . and [she] leaves any such construing of such a claim to the Court.” (Pl. Obj.

¶¶ 10–11, 13.)

While “[a] pro se complaint should not be dismissed without the Court’s granting leave

to amend at least once when a liberal reading of the complaint gives any indication that a valid

claim might be stated,” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013)

(alterations omitted) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)), “[l]eave to

amend may properly be denied if the amendment would be futile,” id. at 140 (citing Foman v.

Davis, 371 U.S. 178, 182 (1962)). “Futility is a determination, as a matter of law, that proposed

amendments would fail to cure prior deficiencies or to state a claim under Rule 12(b)(6) of the

12 Because the Court finds that Plaintiff has not shown that Defendant violated Title II of

the ADA, the Court does not address Defendant’s argument that Plaintiff is not entitled to the

specific relief she requests. (See Def. Mem. 24–25.)

Federal Rules of Civil Procedure.” Pyskaty v. Wide World of Cars, LLC, 856 F.3d 216, 224–25

(2d Cir. 2017) (citing Panther Partners Inc. v. Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d

Cir. 2012)); see also Chunn v. Amtrak, 916 F.3d 204, 208 (2d Cir. 2019) (“[An] [a]mendment is

futile if it fails ‘to cure prior deficiencies.’” (citing Panther Partners Inc., 681 F.3d at 119)).

“Thus, the standard for denying leave to amend based on futility is the same as the standard for

granting a motion to dismiss.” IBEW Local Union No. 58 Pension Tr. Fund & Annuity Fund v.

Royal Bank of Scotland Grp., PLC, 783 F.3d 383, 386 (2d. Cir 2015). “If the problems with a

claim are ‘substantive’ rather than the result of an ‘inadequately or inartfully pleaded’ complaint,

an opportunity to replead would be ‘futile’ and ‘should be denied.’” Jordan v. Chase Manhattan

Bank, 91 F. Supp. 3d 491, 510 (S.D.N.Y. 2005) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112

(2d Cir. 2000)).

Plaintiff seeks to add claims based on allegations that she was “steered . . . away from

[Department of Homeless Services (‘DHS’)] homeless prevention services given to others who

were initially at risk of homelessness . . . and toward APS . . . psychiatric examinations and

guardianship given to others who were initially at risk of institutionalization,” and that DHS “had

a policy, beginning at the time of [Plaintiff’s] institutionalization and lasting two years, which

deprived 65[-plus] mentally disabled . . . wards from shelter liberty.” (Proposed TAC ¶ 4,

Docket Entry No. 48-1.) The Court has twice granted Plaintiff leave to amend her Complaint.

(See Mem. & Order dated Apr. 21, 2015, Docket Entry No. 8; Mem. & Order dated Feb. 19,

2016, Docket Entry No. 16.) Having reviewed the proposed TAC, the Court determines that

amendment would be futile, as Plaintiff’s conclusory allegations fail to state a claim under Rule

12(b)(6) of the Federal Rules of Civil Procedure, and denies Plaintiff’s motion to amend.

IV. Conclusion

For the foregoing reasons, the Court grants Defendant’s motion for summary judgment

and denies Plaintiff’s motion to amend the SAC. The Clerk of Court is directed to mail a copy of

this Memorandum and Order to Carolyn Jane Siino, P.O. Box 170050, Ozone Park, NY 11417,

and close this case.

Dated: April 14, 2020

Brooklyn, New York

SO ORDERED:

s/ MKB

MARGO K. BRODIE

United States District Judge