Matagrano v. New York State Department of Corrections and Community Supervision ("DOCCS")

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

MATTHEW JOHN MATAGRANO,

Plaintiff, 9:19-cv-763 (BKS/DJS)

v.

NEW YORK STATE DEPARTMENT OF

CORRECTIONS AND COMMUNITY SUPERVISION,

CENTRAL NEW YORK PSYCHIATRIC CENTER, and

NEW YORK STATE OFFICE OF MENTAL HEALTH,

Defendants.

Appearances:

For Plaintiff:

Amy Jane Agnew

Joshua L. Morrison

Law Office of Amy Jane Agnew, P.C.

24 Fifth Avenue, Suite 1701

New York, NY 10011

For Defendants:

Letitia James

Attorney General of the State of New York

Adrienne J. Kerwin

Assistant Attorney General, of Counsel

The Capitol

Albany, NY 12224

Hon. Brenda K. Sannes, Chief United States District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

In this action, Plaintiff Matthew John Matagrano asserts claims pursuant to Title II of the

Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. (“ADA”), and Section 504 of the

Rehabilitation Act of 1973, 29 U.S.C. § 701 et seq., against Defendants New York State

Department of Corrections and Community Supervision (“DOCCS”), Central New York

Psychiatric Center (“CNYPC”), and New York State Office of Mental Health (“OMH”), arising

out of Plaintiff’s confinement at Wende Correctional Facility (“Wende”) and CNYPC. (See Dkt.

No. 49 (second amended complaint)). Presently before the Court is Defendants’ motion pursuant

to Federal Rule of Civil Procedure 56 for summary judgment as to all of Plaintiff’s remaining

claims. (Dkt. Nos. 100, 110). Plaintiff opposes Defendants’ motion and cross-moves for partial

summary judgment on his claim against OMH and CNYPC for failure to reasonably

accommodate him. (Dkt. No. 104). For the following reasons, Defendants’ motion is granted in

part and Plaintiff’s cross-motion is denied.

II. FACTS1

A. Plaintiff’s Disability

Plaintiff, who entered Wende Correctional Facility in December 2013, suffers from

bilateral hearing loss. (Dkt. No. 100-23, ¶ 1; Dkt. No. 104-4, ¶ 1; Dkt. No. 100-14, at 28).

Because Plaintiff’s mother was completely deaf, Plaintiff’s first language was American Sign

Language (“ASL”). (Dkt. No. 111, ¶¶ 2–3; Dkt. No. 100-14, at 28). Plaintiff can also speak

English. (Dkt. No. 100-14, at 28, 102). Plaintiff asserts that he has always had poor hearing and

that his hearing has “steadily declined” throughout his life. (Dkt. No. 111, ¶ 5).

DOCCS has always housed Plaintiff in Sensorial Disabled Units or Programs when

Plaintiff was in a facility’s general population. (Id. ¶ 6). Upon Plaintiff’s incarceration in 2013,

1 The facts are drawn from Defendants’ Rule 56.1 statement, Plaintiff’s response to Defendants’ Rule 56.1 statement

and statement of additional undisputed facts, Defendants’ supplemental Rule 56.1 statement, and Defendants’

response to Plaintiff’s statement of additional undisputed facts, (Dkt. Nos. 100-23, 104-4, 110-6, 112-5), to the extent

the facts are well-supported by pinpoint citations to the record, as well as the exhibits attached thereto and cited therein.

In considering the parties’ cross-motions for summary judgment, the Court “in each case constru[es] the evidence in

the light most favorable to the non-moving party.” Krauss v. Oxford Health Plans, Inc., 517 F.3d 614, 621–22 (2d

Cir. 2008).

DOCCS assessed his hearing impairment as “HL20,” meaning he has significant hearing loss.

(Dkt. No. 105-1, at 1; Dkt. No. 105-6).2 Plaintiff has used assistive devices and other technology

to address his hearing loss including hearing aids, TTY telephones, a shake awake alarm, a

phone amplifier, a T-coil induction loop, and a pocket talker. (Dkt. No. 100-14, at 31–32, 38, 41–

42; see also Dkt. No. 100-15 (Plaintiff’s receipts for reasonable accommodations)). Plaintiff’s

use of a pocket talker had to be under DOCCS staff supervision. (Dkt. No. 100-20, ¶ 8).

B. ASL in the Wende Mess Hall

On or about November 20, 2015, Plaintiff and an inmate who is deaf, Bismark Lithgow,

were speaking in ASL in the Wende mess hall. (Dkt. No. 111, ¶ 16; Dkt. No. 100-14, at 94–95).

According to Plaintiff, a corrections officer became “very disrespectful and boisterous” and told

Plaintiff and Mr. Lithgow that they had to cease communicating in ASL in the mess hall. (Dkt.

No. 111, ¶ 17; Dkt. No. 100-14, at 95–96). A sergeant then told Plaintiff that he could not use

sign language in the mess hall because he was “distracting [the] officers” and it “looks like gang

signs.” (Dkt. No. 100-14, at 96). Plaintiff filed a grievance complaining that the prohibition on

using ASL in the mess hall was discriminatory because ASL was the only language prohibited.

(Id. at 96–97; Dkt. No. 100-16, at 4). When DOCCS investigated the grievance, the staff denied

harassing or discriminating against Plaintiff or “informing hearing impaired inmates that they

could not use sign language in the messhall.” (Dkt. No. 100-16, at 3).

Plaintiff testified at his deposition that, after the November 2015 incident, using sign

language in the mess hall was “always a problem” because it distracted the staff and made them

nervous. (Dkt. No. 100-14, at 97–98). Plaintiff testified that staff would “threaten” to issue

misbehavior reports for signing in the mess hall but that he never received a misbehavior report.

2 In July 2019, Plaintiff’s hearing impairment was reassessed at “HL10,” meaning deaf. (Dkt. Nos. 105-6, 105-19).

(Id. at 99). Plaintiff acknowledged at his deposition that he used ASL in the mess hall “maybe a

week or so” after the November 20, 2015 incident. (Id.). But Plaintiff also asserts that there has

been an “unofficial policy against using ASL in the mess hall ever since” November 2015 and

that inmates will “attempt to sneak if no [corrections officer] is watching, but do not do so

often.” (Dkt. No. 111, ¶¶ 18, 24–26). According to Danyelle Hodges, Deputy Superintendent of

Security at Wende, it is “not true” that ASL is banned in the Wende mess hall. (Dkt. No. 112-4,

¶¶ 1–2, 5). Unless “all talking in the mess hall is prohibited by staff for security reasons on a

given day,” any inmate “may communicate in any language, including ASL.” (Id. ¶ 3).

C. Plaintiff’s Stay at CNYPC

Plaintiff was transferred from Wende to CNYPC on October 5, 2017 for inpatient mental

health treatment following a suicide attempt and was discharged back to Wende on January 31,

2018. (Dkt. No. 100-19, ¶ 8; Dkt. No. 100-1, ¶ 20). CNYPC “provides in-patient mental health

treatment in a secure facility to incarcerated individuals in [DOCCS] custody.” (Dkt. No. 100-1,

¶ 3). According to Christopher Boydston, who is employed by OMH at CNYPC as Inpatient

Director, CNYPC “is not a correctional facility and does not provide programming like that

provided in DOCCS.” (Id. ¶ 4).3 CNYPC’s policy on “Reasonable Accommodations for

Patients/Residents with Disabilities” set forth reasonable accommodation screening procedures

3 Plaintiff moves to strike Boydston’s declaration because Defendants did not disclose Boydston’s name or identity in

their Rule 26(a) disclosures. (Dkt. No. 104-4, ¶ 19). Rule 37 provides that a party who “fails to provide information

or identify a witness as required by Rule 26(a) or (e)” is “not allowed to use that information or witness to supply

evidence on a motion . . . , unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). In

determining whether to exclude evidence under Rule 37(c)(1), courts must consider: (1) the party’s explanation for

the failure to comply with its disclosure obligations; (2) the importance of the evidence sought to be precluded; (3)

the prejudice suffered by the opposing party as a result of having to prepare to meet the new information; and (4) the

possibility of a continuance. Patterson v. Balsamico, 440 F.3d 104, 117 (2d Cir. 2006). Defendants have offered no

explanation for their failure to name Boydston in their Rule 26 disclosure but assert that the purpose of Boydston’s

declaration is to “get the relevant documents before the Court and explain their relevance in the inpatient setting.”

(Dkt. No. 112, ¶ 4). Plaintiff has not indicated that any of the documents attached to the declaration was not produced

to him during discovery. Under these circumstances, the Court will consider Boydston’s declaration and the attached

exhibits, as there is no indication that Plaintiff has suffered any prejudice as a result of Defendants’ failure.

and provided that a patient who “feel[s] the need for a reasonable accommodation . . . should

make a request in person or in writing through any member of the OMH staff.” (Dkt. No. 100-3,

at 4–6). The policy also listed certain assistive devices that “will be made available as needed

and clinically indicated,” including TTY, a telephone amplifier or T-coil, closed captioning, and

sound amplification. (Id. at 7–8 (emphasis omitted)).

Plaintiff’s treatment plan included “individual supportive counseling once per week and

otherwise as needed to support Plaintiff with symptom management and discharge planning.”

(Dkt. No. 100-23, ¶ 21; Dkt. No. 104-4, ¶ 21). Plaintiff asserts that he was “very clear” in his

original medical assessment that he “would need a T coil loop and/or pocket talker to hear

programming” and that he also informed his therapist and psychiatrist that he needed a T-coil

loop or pocket talker “multiple times.” (Dkt. No. 111, ¶¶ 30–32).4 Plaintiff was told that “they

did not ‘have one here.’” (Id. ¶ 31). Plaintiff also asserts that he asked to use a TTY multiple

times “but was told it was on the other side of the building.” (Id.; see Dkt. No. 100-14, at 59).

According to Defendants, Plaintiff had the use of his hearing aids, a telephone amplifier, closed

captioning, and preferred seating while at CNYPC. (See Dkt. No. 101-1, at 114 (psychological

evaluation dated January 18, 2018 stating that Plaintiff “currently receives” these

accommodations)). According to Plaintiff, however, CNYPC “did not have closed captioning on

the vast majority of the movies and treatment videos” and preferred seating “can help in certain

situations” but “does not cure [his] hearing disabilities.” (Dkt. No. 111, ¶¶ 38–39).

4 Defendants deny that Plaintiff indicated he needed a T-coil loop or pocket talker during his initial assessment with

medical, because such a request would have been noted in his treatment record but was not. (Dkt. No. 112-3, ¶ 8

(declaration of Timothy Lamitie, CNYPC’s Director of Facility Administrative Services, asserting that any requests

for a T-coil loop or pocket talker or complaints about a lack of closed captioning “would have been noted in his

treatment record”)).

1. Hearing Aid Batteries

At Plaintiff’s October 18, 2017 individual counseling session, he told his therapist that he

was “having a hard time hearing.” (Dkt. No. 101-1, at 232 (therapist’s progress note)). Plaintiff

had received his hearing aids but the batteries were dead and the “nurse did not have the right

size to replace them.” (Id.). The therapist told Plaintiff “things he can do to help in the meantime

such as sitting in the front of class so he can hear the facilitator, notify the staff he is hard of

hearing[,] and ask them to speak up.” (Id.). Plaintiff reported to his therapist that “at times the

TV is on closed caption so he is able to watch tv that way.” (Id.). The therapist’s progress note

included, as part of the follow-up plan, to “[f]ollow up with nursing regarding hearing aids.” (Id.

at 233). On October 25, 2017, Plaintiff reported that “he received his hearing aid and things are

much better now that he has his hearing aids.” (Id. at 240). On October 31, 2017, he reported to

his therapist that “groups were going well and he [wa]s able to hear as well as able to hear in the

dayroom.” (Id. at 256).5

2. Treatment Mall and Religious Services

Plaintiff testified at his deposition that CNYPC had a group room called the “Treatment

Mall” which contained a “general library,” school for young patients, video games, and movies.

(Dkt. No. 100-14, at 60–63). Plaintiff also testified that Narcotics Anonymous and Alcoholics

Anonymous meetings would take place in the Treatment Mall in the evening or late afternoon.

(Id. at 63). Other than participating in treatment activities, (see Dkt. No. 100-2 (CNYPC records

of Plaintiff’s programming attendance)), Plaintiff spent “most of [his] time” watching movies,

5 In a progress note dated January 4, 2018, a nurse recorded that Plaintiff reported that he broke the back part of his

hearing aid which holds the batteries. (Dkt. No. 101-1, at 393). The nurse explained to Plaintiff that there were “no

instances of [Plaintiff] having difficulty hearing with the one hearing aide,” or with no hearing aids in the morning.

(Id.). In response, Plaintiff laughed and stated “Yeah, don’t worry about it” and that he could wait until he returned to

Wende to fix it. (Id.).

(Dkt. No. 100-14, at 60). Plaintiff asserts that he “spoke with the staff many, many times about

[his] need for closed captioning or even subtitles.” (Dkt. No. 111, ¶ 38; see also Dkt. No. 100-14,

at 68–69 (Plaintiff agreeing at his deposition that “sometimes” the movies had closed captioning

and “sometimes they didn’t”)).

Plaintiff asserts that he also spent a lot of time in a “day room” which was “smaller than

the Treatment Mall area,” making it easier for Plaintiff to hear. (Dkt. No. 111, ¶ 37). Plaintiff

also testified that he attended Catholic religious services in a room in the basement. (Dkt. No.

100-14, at 63–64). Plaintiff, who was raised Catholic, understood the prayers and “the process”

but had trouble understanding the priest’s homily. (Id.).

3. Plaintiff’s Letters and CNYPC’s Response

In a letter dated November 30, 2017 which was ultimately marked received by “Risk

Management” at CNYPC, Plaintiff wrote that he was “bilaterally hearing impaired” and that

CNYPC “should have been notified of the sensorial disability as a matter of routine, as well as

[his] medically approved reasonable accommodations” that he had at Wende. (Dkt. No. 100-4, at

2). Plaintiff complained that he could not hear on the “patient phone” even with his hearing aids

and that he could not hear the “DVD instructional disc or many times the facilitator” during

“therapeutic treatment mall.” (Id. at 3). Plaintiff wrote that he had “expressed these concerns to

[staff] and [his] assigned primary care providers.” (Id.). Plaintiff requested that he be returned to

DOCCS and opined that there was “currently no need for acute inpatient care.” (Id. at 4).

In a note to the Director of Risk Management dated December 11, 2017, Plaintiff

reported that he had sent to the hospital director a “written request for reasonable

accommodation for [his] bilateral hearing impairment (CCTV, TTY/TDD, Preferred Seating),”

but had not received a response. (Dkt. No. 100-5, at 2). Also in December, Plaintiff wrote a letter

to the Director of Inpatient Risk Management and stated that he “need[ed] certain

accommodations/auxiliary aids so that [he] can function in program(s).” (Dkt. No. 100-6, at 3).

Plaintiff wrote that it was “difficult for [him] to hear during the treatment mall for a lot [of]

reasons.” (Id.). Plaintiff again said that his “ultimate goal [wa]s to return to DOCCS custody

(ASAP).” (Id. at 2; see also Dkt. No. 100-7 (December 8, 2017 letter in which Plaintiff states

that he “require[s] specific reasonable accommodations in order to function in daily life”)).

Risk Management reviewed Plaintiff’s complaints and reached out to his treatment team.

(Dkt. No. 100-10 (memorandum dated December 20, 2017 summarizing results of investigation);

Dkt. No. 100-11 (email correspondence between a Risk Management Specialist and members of

Plaintiff’s treatment team regarding his complaints); Dkt. No. 100-9 (memorandum dated

December 20, 2017 and addressed to Plaintiff responding to his concerns)). Plaintiff’s primary

therapist noted that Plaintiff reported hearing difficulty “during the first week or two after his

admission” due to dead batteries for his hearing aids, but that Plaintiff reported he was “no

longer having any difficulty hearing while in groups” once he received new batteries. (Dkt. No.

100-10, at 2). The therapist reported that she had “provided several phone calls for [Plaintiff]

during which time he has not appeared to have any issues with hearing.” (Id. at 2–3).6 Plaintiff’s

nurse prescriber similarly reported that “she had not been made aware of any difficulties with

hearing.” (Id. at 3). Risk Management concluded that Plaintiff had not identified “any hearing

difficulties or concerns since his first week or so after being admitted” and that the concerns

“that he did identify during the first week were addressed immediately by providing . . . new

hearing aid batteries.” (Id.).

6 The therapist also reported that on one occasion Plaintiff “was sitting in the backroom with his eyes closed,” a staff

member “called his name with normal tone and volume,” and Plaintiff “immediately looked up and came over.” (Dkt.

No. 100-11, at 9; see also Dkt. No. 101-1, at 383, 385).

D. Closure of the Wende “Resource Room”

The “Resource Room” for hearing impaired inmates at Wende was designed to provide

inmates with sensorial disabilities “additional areas [to] take part in learning or activities for

which special equipment was necessary.” (Dkt. No. 100-20, ¶ 12). Plaintiff testified that the

Resource Room has movies, sign language teaching aids, and computers. (Dkt. No. 100-14, at

49–51). The Resource Room was closed on June 25–29 and July 2–6, 2018 because of a staffing

shortage. (Dkt. No. 100-20, ¶¶ 17–19; Dkt. No. 100-14, at 91 (Plaintiff testifying that the

Resource Room was closed those dates because “no one was there to open”)). According to

Christopher Zaluski, an Offender Resource Coordinator at Wende, the closure of the Resource

Room on these days “did not preclude Plaintiff from taking part in any activity available to the

general population” and “[n]one of the assistive devices issued to, or needed by, Plaintiff for

other programming w[as] locked in the Resource Room.” (Dkt. No. 100-20, ¶¶ 21–22).

E. September 2019 Program Call-Out

Plaintiff alleges in the second amended complaint that he was unable to “attend his

mandatory Program Committee call out to participate in the selection of his programming” on

September 10, 2019 because he did not have his hearing aids at the time and was not provided

with a pocket talker. (Dkt. No. 49, ¶¶ 132–35). According to Zaluski, Wende records indicate

that Plaintiff was scheduled for a call out on September 10, 2019 because Plaintiff “needed a

program assignment.” (Dkt. No. 110-5, ¶ 9). Plaintiff “did come to that call out” and was placed

in Alcohol and Substance Abuse Treatment (“ASAT”) programming, which was on his list of

“required programming.” (Id. ¶¶ 9–10). Plaintiff “refused to participate in ASAT.” (Id. ¶ 11).

Plaintiff did not file or appeal a grievance alleging that he was not provided a pocket

talker for use in a September 2019 call out meeting or that he was denied the ability to participate

in the selection of his programming. (Dkt. Nos. 110-1, 110-2, 110-4 (lists of grievances filed by

Plaintiff)).

III. STANDARD OF REVIEW

Under Rule 56(a), summary judgment may be granted only if all the submissions taken

together “show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). The moving party bears

the initial burden of demonstrating “the absence of a genuine issue of material fact.” Celotex,

477 U.S. at 323. A fact is “material” if it “might affect the outcome of the suit under the

governing law,” and is genuinely in dispute “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248; see also Jeffreys v. City of

New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson, 477 U.S. at 248). The movant may

meet this burden by showing that the nonmoving party has “fail[ed] to make a showing sufficient

to establish the existence of an element essential to that party’s case, and on which that party will

bear the burden of proof at trial.” Celotex, 477 U.S. at 322; see also Selevan v. N.Y. Thruway

Auth., 711 F.3d 253, 256 (2d Cir. 2013) (explaining that summary judgment is appropriate where

the nonmoving party fails to “‘come forth with evidence sufficient to permit a reasonable juror to

return a verdict in his or her favor on’ an essential element of a claim” (quoting In re Omnicom

Grp., Inc. Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010))).

If the moving party meets this burden, the nonmoving party must “set forth specific facts

showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 250; see also Celotex,

477 U.S. at 323–24; Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). “When ruling on a

summary judgment motion, the district court must construe the facts in the light most favorable

to the non-moving party and must resolve all ambiguities and draw all reasonable inferences

against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir. 2003).

Still, the nonmoving party “must do more than simply show that there is some metaphysical

doubt as to the material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986), and cannot rely on “mere speculation or conjecture as to the true nature of the facts

to overcome a motion for summary judgment,” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d

Cir. 1986) (citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d Cir. 1985)).

Furthermore, “[m]ere conclusory allegations or denials . . . cannot by themselves create a

genuine issue of material fact where none would otherwise exist.” Hicks v. Baines, 593 F.3d 159,

166 (2d Cir. 2010) (quoting Fletcher v. Atex, Inc., 68 F.3d 1451, 1456 (2d Cir. 1995)).

IV. DISCUSSION

Following prior motion practice and stipulations of voluntary discontinuance,7 Plaintiff

asserts claims under the ADA and Rehabilitation Act against Defendants premised on (1) the

alleged ban on the use of ASL in the Wende mess hall, (2) the failure to reasonably

accommodate Plaintiff at CNYPC, (3) the closure of the Wende Resource Room in June and July

2018, and (4) the failure to accommodate Plaintiff with a pocket talker for a September 2019

program call-out at Wende. Defendants move for summary judgment as to all of Plaintiff’s

remaining claims. (Dkt. Nos. 100, 110).8 Plaintiff opposes Defendants’ motion and cross-moves

for partial summary judgment as to Plaintiff’s claim that OMH and CNYPC failed to reasonably

accommodate him while he was at CNYPC. (Dkt. No. 104).

7 See, e.g., Matagrano v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 19-cv-763, 2020 WL 7338586, 2020

U.S. Dist. LEXIS 234149 (N.D.N.Y. Dec. 14, 2020); (Dkt. Nos. 43, 99 (stipulations of voluntary dismissal)).

8 Defendants’ motion for summary judgment did not address the alleged failure to reasonably accommodate Plaintiff

with a pocket talker in September 2019. (See generally Dkt. No. 100-24; see also Dkt. No. 100-13, ¶¶ 3–7 (defense

counsel declaration setting forth her efforts to confirm the remaining claims with Plaintiff’s counsel prior to moving

for summary judgment)). Defendants requested and received permission to supplement their motion for summary

judgment to address the pocket talker claim. (Dkt. Nos. 106, 109; see Dkt. No. 110 (Defendants’ supplement in support

of motion for summary judgment)).

A. Legal Standards for ADA and Rehabilitation Act Claims

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

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

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

entity.” 42 U.S.C. § 12132. A qualified individual with a disability is defined as “an individual

with a disability who, with or without reasonable modifications to rules, policies, or practices,

. . . meets the essential eligibility requirements for . . . participation in programs or activities

provided by a public entity.” Id. § 12131(2). The term “public entity” includes a state or local

government body or any instrumentality thereof. Id. § 12131(1). Similarly, Section 504 of the

Rehabilitation Act provides, in pertinent part, that “[n]o otherwise qualified individual with a

disability . . . shall, solely by reason of her or his disability, be excluded from the participation in,

be denied the benefits of, or be subjected to discrimination under any program or activity”

receiving federal financial support. 29 U.S.C. § 794(a).

“As the standards for actions under [Title II] of the ADA and the Rehabilitation Act are

generally equivalent, [the Court] analyze[s] such claims together.” Dean v. Univ. at Buffalo Sch.

of Med. & Biomedical Scis., 804 F.3d 178, 187 (2d Cir. 2015) (citing Harris v. Mills, 572 F.3d

66, 73–74 (2d Cir. 2009)). To establish a prima facie violation under the ADA and Rehabilitation

Act, a plaintiff must demonstrate “(1) that []he is a ‘qualified individual’ with a disability; (2)

that the defendants are subject to one of the Acts; and (3) that []he was ‘denied the opportunity to

participate in or benefit from defendants’ services, programs, or activities, or was otherwise

discriminated against by defendants, by reason of h[is] disability.’” Id. (citation omitted).

“Discrimination under the third prong can include ‘failure to make a reasonable accommodation’

for the inmate.” McFadden v. Noeth, 827 F. App’x 20, 28 (2d Cir. 2020) (summary order)

(citation omitted); Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir. 2004) (noting

that both the ADA and the Rehabilitation Act “prohibit discrimination against qualified disabled

individuals by requiring that they receive ‘reasonable accommodations’ that permit them to have

access to and take a meaningful part in public services and public accommodations”), corrected,

511 F.3d 238 (2d Cir. 2004).

B. Availability of Damages Under the ADA and Rehabilitation Act

Defendants argue that they are entitled to summary judgment on Plaintiff’s ADA and

Rehabilitation Act claims because compensatory damages, the only relief Plaintiff seeks, are

unavailable. (Dkt. No. 100-24, at 11).9 Plaintiff responds that only emotional distress damages

are unavailable under the Rehabilitation Act and that he may recover nominal damages. (Dkt.

No. 104-5, at 21–22).

In Cummings v. Premier Rehab Keller, P.L.L.C., the Supreme Court held that “emotional

distress damages are not recoverable” under the Rehabilitation Act and the Affordable Care Act,

the two “Spending Clause antidiscrimination statutes” under consideration in that case. 142 S.

Ct. 1562, 1576 (2022). The Court reasoned that “Spending Clause legislation operates based on

consent” and therefore that the “scope of available remedies” depends on whether a prospective

funding recipient would have been aware that it might face such liability. Id. at 1570–71.

Because it is “hornbook law that ‘emotional distress is generally not compensable in contract,’”

the Court could not “treat federal funding recipients as having consented to be subject to

damages for emotional distress,” and such damages therefore are not recoverable under the

Rehabilitation Act and Affordable Care Act. Id. at 1571–72 (citation omitted). Since Cummings,

district courts in this Circuit have held that emotional distress damages are likewise not

recoverable under Title II of the ADA, which expressly incorporates the remedies of the

9 It is undisputed that Plaintiff does not seek any injunctive relief. (Dkt. No. 100-23, ¶ 3; Dkt. No. 104-4, ¶ 3).

Rehabilitation Act, even though the ADA was not enacted pursuant to the Spending Clause. 42

U.S.C. § 12133 (“The remedies, procedures, and rights set forth in [section 505 of the

Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides to any

person alleging discrimination on the basis of disability in violation of [42 U.S.C. § 12132].”);

see, e.g., Doherty v. Bice, No. 18-cv-10898, 2023 WL 5103900, at *6, 2023 U.S. Dist. LEXIS

139187, at *16–17 (S.D.N.Y. Aug. 9, 2023) (“[A]ll other federal courts that have apparently

considered this issue have likewise found that emotional distress damages are not available under

the ADA because, as the Cummings Court concluded, they are not available under the

Rehabilitation Act.” (collecting cases)); Williams v. Colo. Dep’t of Corr., No. 21-cv-2595, 2023

WL 3585210, at *5–6 & n.5, 2023 U.S. Dist. LEXIS 89153, at *15–16 & n.5 (D. Colo. May 22,

2023) (collecting cases).

Accordingly, the Court holds that Plaintiff may not recover emotional distress damages

on his Rehabilitation Act and ADA claims.10 Plaintiff nonetheless argues that dismissal of his

remaining claims is not warranted because “[o]ther damages are available to Plaintiff—in

particular, nominal damages.” (Dkt. No. 104-5, at 21–22). Defendants have not addressed the

availability of nominal damages under the Rehabilitation Act or the ADA, other than suggesting

that such damages were not sought in the second amended complaint or Plaintiff’s Rule 26 initial

disclosures. (Dkt. No. 112-6, at 3). However, Plaintiff’s prayer for relief seeks compensatory

damages and “such other relief as the court may deem just and proper,” (Dkt. No. 49, at 35), and

his failure to specifically request nominal damages in the complaint is not determinative, see

Fantasia v. Montefiore New Rochelle, No. 19-cv-11054, 2022 WL 20540940, at *5, 2022 U.S.

10 Plaintiff does not appear to dispute that emotional distress damages are unrecoverable under the Rehabilitation Act

and Title II of the ADA. Although Plaintiff notes that Cummings “did not hold that all compensatory damages are

unavailable under the Rehabilitation Act,” (Dkt. No. 104-5, at 21 (emphasis added)), he does not identify any

compensatory damages he seeks to recover which are not for emotional distress.

Dist. LEXIS 107935, at *11 (S.D.N.Y. June 16, 2022) (noting that a plaintiff “may seek nominal

damages at trial even if she did not explicitly request nominal damages in her complaint”

(citations omitted)). At least some district courts have concluded that nominal damages are

available under the Rehabilitation Act and ADA even though emotional distress damages are not

recoverable. See id., 2022 WL 20540940, at *5, 2022 U.S. Dist. LEXIS 107935, at *11–12

(concluding that nominal damages are available under the Rehabilitation Act because “nominal

damages are a generally accepted remedy in contract actions”); Vega-Ruiz v. Northwell Health

Sys., No. 19-cv-537, 2023 WL 2587508, at *3, 2023 U.S. Dist. LEXIS 47769, at *7–8 (E.D.N.Y.

Mar. 20, 2023) (finding that the plaintiff “still has a claim for nominal damages” under the

Rehabilitation Act); but see K.G. v. Woodford Cnty. Bd. of Educ., No. 18-cv-555, 2022 WL

17993127, at *3–4, 2022 U.S. Dist. LEXIS 233069, at *8–9 (E.D. Ky. Dec. 29, 2022)

(discussing a lack of uniformity on the issue); Hacker v. Dart, 62 F.4th 1073, 1087 (7th Cir.

2023) (noting that a claim for nominal damages “can present some challenging legal issues,

including whether Congress authorized them under the ADA or the Rehabilitation Act”).

Thus, because it is not clear that there is no relief to which Plaintiff may be entitled

should he prevail on his Rehabilitation Act and ADA claims, the Court denies Defendants’

motion for summary judgment on this basis.

C. Vicarious Liability Under the ADA and Rehabilitation Act

Defendants next argue that they are entitled to summary judgment because neither Title II

of the ADA nor the Rehabilitation Act provides for vicarious liability of public entities. (Dkt.

No. 100-24, at 12–14). Plaintiff responds that entities may be held liable for damages under the

ADA and Rehabilitation Act under the “appropriate official theory” set forth in Gebser v. Lago

Vista Independent School District, 524 U.S. 274 (1998). (Dkt. No. 104-5, at 22–24).

As Defendants point out, a number of Circuit Courts of Appeals have held that Title II of

the ADA and the Rehabilitation Act do not allow for recovery based an entity’s vicarious

liability for the acts of its employees. See, e.g., Jones v. City of Detroit, 20 F.4th 1117, 1119,

1121 (6th Cir. 2021) (noting that the remedies available for violations of Title II of the ADA and

the Rehabilitation Act are “coextensive” with those for Title VI, and holding that because “Title

VI does not allow vicarious liability, neither do these provisions of the ADA or the

Rehabilitation Act”); Ingram v. Kubik, 30 F.4th 1241, 1256–59 (11th Cir. 2022) (holding that

vicarious liability is unavailable under Title II of the ADA). Neither the Supreme Court nor the

Second Circuit has expressly addressed whether vicarious liability is available under Title II and

the Rehabilitation Act. See City & County of San Francisco v. Sheehan, 575 U.S. 600, 610

(2015) (declining to decide whether a public entity “can be held vicariously liable for money

damages for the purposeful or deliberately indifferent conduct of its employees”). The Court

need not decide whether Defendants can be held vicariously liable because, as Plaintiff points

out, Gebser and Second Circuit caselaw provide for a different theory of liability which directly

holds an entity responsible and is distinct from vicarious liability.

In Gebser, the Supreme Court held that Title IX11 does not “permit a damages recovery

against a school district for a teacher’s sexual harassment of a student based on principles of

respondeat superior or constructive notice, i.e., without actual notice to a school district

official.” 524 U.S. at 285. Instead, the Supreme Court held that, “in cases . . . that do not involve

official policy of the recipient entity,” “a damages remedy will not lie under Title IX unless an

official who at a minimum has authority to address the alleged discrimination and to institute

11 Title IX “was modeled after Title VI,” and the two statutes operate in the same manner. Gebser, 524 U.S. at 286.

As do Title II and the Rehabilitation Act, Title IX “incorporates the remedies established by Title VI.” Jones, 20 F.4th

at 1120.

corrective measures on the recipient’s behalf has actual knowledge of discrimination in the

recipient’s programs and fails adequately to respond.” Id. at 290. Further, the “response must

amount to deliberate indifference to discrimination.” Id. Although Defendants suggest that

Gebser is incompatible with other cases holding vicarious liability is not available under Title II

and the Rehabilitation Act, the test set forth in Gebser does not represent a species of vicarious

liability, but rather a manner of holding the entity itself directly liable based on actual notice of

and a deliberately indifferent response to discrimination. See Zeno v. Pine Plains Cent. Sch.

Dist., 702 F.3d 655, 664–65 (2d Cir. 2012) (“In certain circumstances, courts view actions of a

third party as intentional violations by the funding recipient itself.” (citing, inter alia, Gebser)).

Indeed, Gebser itself held that a damages award under Title IX could not be premised on a

theory of vicarious liability. 524 U.S. at 285. Thus, even assuming Defendants are correct that

Plaintiff may not prevail on his claims on a theory of vicarious liability, that does not end the

inquiry.

The Second Circuit has held that “monetary damages are recoverable only upon a

showing of an intentional violation” of the Rehabilitation Act. Loeffler v. Staten Island Univ.

Hosp., 582 F.3d 268, 275 (2d Cir. 2009). An intentional violation is shown by “deliberate

indifference to the strong likelihood [of] a violation” and does not require “personal animosity or

ill will.” Id. (citation omitted). Intentional discrimination “may be inferred when a ‘policymaker

acted with at least deliberate indifference to the strong likelihood that a violation of federally

protected rights will result from the implementation of the challenged policy or custom.” Id.

(citation, brackets, and ellipses omitted). The standard for deliberate indifference in this context

is borrowed from Gebser: damages are not recoverable unless

an official who at a minimum [1] has authority to address the alleged

discrimination and to institute corrective measures on the recipient’s

behalf [2] has actual knowledge of discrimination in the recipient’s

programs and [3] fails adequately to respond.

Biondo v. Kaledia Health, 935 F.3d 68, 73–74 (2d Cir. 2019) (quoting Loeffler, 582 F.3d at 276).

Such deliberate indifference “must reflect a ‘deliberate choice among various alternatives’ and

may not be inferred from mere ‘negligence or bureaucratic inaction.’” Id. (quoting Loeffler, 582

F.3d at 276).

Here, Plaintiff argues in conclusory fashion that “Defendants’ employees were, in fact,

appropriate officials” whose failure to adequately respond satisfies the deliberate indifference

standard. (Dkt. No. 104-5, at 23–24). Defendants reply that “Plaintiff can point to no evidence

that any ‘official capacity defendant’ (of which there are none in this case) had actual notice of

alleged discrimination . . . , had the authority to ameliorate it[,] and took no action.” (Dkt. No.

112-6, at 3–4).12 In the absence of more detailed briefing, the Court cannot assess any arguments

about the evidence for deliberate indifference in this case.

Moreover, assuming nominal damages are both the only remedy Plaintiff seeks and

recoverable under the ADA and Rehabilitation Act, see supra Section IV.B, the parties have not

addressed what showing Plaintiff is required to make to recover nominal damages. In other

words, the parties have not addressed whether Plaintiff could recover nominal damages by

proving only a technical violation of the statutes, or rather whether he is required to prove an

intentional violation as he would be to recover compensatory damages. See Berry-Mayes v.

N.Y.C. Health & Hosps. Corp., 712 F. App’x 111, 112 n.1 (2d Cir. 2018) (summary order)

(holding that argument about nominal damages was forfeited and therefore considering only

whether the plaintiff “sufficiently demonstrated the deliberate indifference necessary for

12 Defendants cite no authority for the proposition that an “official capacity defendant” must be named.

compensatory damages” in case involving the ADA and Rehabilitation Act); Hejmej v. Peconic

Bay Med. Ctr., No. 17-cv-782, 2023 WL 4373628, at *2–3, 2023 U.S. Dist. LEXIS 116145, at

*5–6 (E.D.N.Y. July 6, 2023) (deferring decision on whether the plaintiffs “are required to show

Defendants’ deliberate indifference in order to recover nominal damages under the

Rehabilitation Act”); Francois v. Our Lady of the Lake Hosp., Inc., 8 F.4th 370, 379 (5th Cir.

2021) (noting that the plaintiff-appellant “ha[d] made no attempt to argue that his nominal-

damages claims, if any exist, are not subject to the same intentional-discrimination standard as a

claim for compensatory monetary damages”); Lockwood v. Our Lady of the Lake Hosp., Inc.,

467 F. Supp. 3d 435, 438 (M.D. La. 2020) (finding that the plaintiffs “could recover nominal

damages if they proved intentional discrimination on the part of the defendant”); Nix v.

Advanced Urology Inst. of Ga., PC, No. 21-10106, 2021 WL 3626763, at *3, 2021 U.S. App.

LEXIS 24467, at *7–8 (11th Cir. Aug. 17, 2021) (rejecting the plaintiff’s argument that she was

entitled to a jury trial on nominal damages “even in the absence of intentional discrimination”

and suggesting that intentional discrimination was a “necessary element of [the plaintiff’s] civil

rights claim” which she could not prove).

In sum, the Court concludes that Defendants’ argument about vicarious liability does not

warrant summary judgment on any claim.

D. Use of ASL in the Wende Mess Hall

Defendants move for summary judgment on Plaintiff’s ADA and Rehabilitation Act

claims relating to the use of ASL in the Wende mess hall. (Dkt. No. 100-24, at 9–11, 15–16).

1. Timeliness

Defendants first argue that Plaintiff’s claim based on his being directed not to use ASL in

the Wende mess hall is untimely. (Id. at 9–11). The parties appear to agree that Plaintiff fully

exhausted his grievance relating to the November 2015 ASL incident on February 3, 2016, and

that the three-year statute of limitations period therefore expired on February 3, 2019—before

Plaintiff commenced this lawsuit on June 27, 2019. (See id.). Defendants argue that the

continuing violation doctrine “does not operate to save Plaintiff’s untimely claim” because

Plaintiff testified at his deposition that he was able to use ASL in the Wende mess hall within a

week of the November 2015 incident and he can therefore “pinpoint” the exact days the alleged

violation occurred and ended. (Id. at 10). Plaintiff responds that the continuing violation doctrine

applies to Plaintiff’s claim because Plaintiff asserts that the “ban on hand gestures . . . continues

to this day.” (Dkt. No. 104-5, at 16–17).

Although Plaintiff did testify at his deposition that he used ASL in the mess hall

approximately one week after the November 2015 incident, (Dkt. No. 100-14, at 99), that was

not the entirety of his testimony. He also testified that using sign language in the mess hall was

“always a problem” after the incident and that staff would threaten misbehavior reports. (Id. at

98–99). Plaintiff also asserted in his declaration that there has been an “unofficial policy against

using ASL in the mess hall ever since” November 2015 and that inmates will “attempt to sneak”

signing if no officer is watching. (Dkt. No. 111, ¶¶ 18, 24–26). Thus, construing the evidence in

the light most favorable to Plaintiff, there is a genuine issue of material fact as to whether the

alleged prohibition on the use of ASL in the Wende mess hall continued throughout Plaintiff’s

stay at Wende such that the continuing violation doctrine might apply and render the claim

timely. Defendants therefore have not met their burden at this stage of demonstrating that

Plaintiff’s claim is untimely.

2. Exhaustion and Pleadings

Defendants argue that Plaintiff’s claim related to an ongoing ban on ASL in the Wende

mess hall should be dismissed because Plaintiff did not grieve such a claim pursuant to the

DOCCS Incarcerated Grievance Program or plead such a claim in the second amended

complaint. (Dkt. No. 112-6, at 6–8). Defendants raised these arguments in their reply brief, in

response to Plaintiff’s argument that the ban on ASL in the Wende mess hall “continues to this

day.” (Dkt. No. 104-5, at 16). While “[a]rguments made for the first time in a reply brief need

not be considered by a court,” Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 252 (2d Cir.

2005) (citation omitted), the Court has considered these arguments in order to make a full record.

Defendants argue that the only grievance Plaintiff filed related to the use of ASL in the

Wende mess hall was after the isolated incident in November 2015 and that such grievance “did

not complain about an ongoing ASL ‘ban.’” (Dkt. No. 112-6, at 7 & n.3; see Dkt. No. 100-16

(grievance packet for grievance WDE-41583-15)). The grievance packet from November 2015

submitted to the Court contains Plaintiff’s “Appeal Statement” in which he states that the

“prohibition o[n] using ASL in the messhall when hearing inmates [are] allowed to verbally

communicate is discrimination,” (Dkt. No. 100-16, at 4), but does not contain a copy of the

original grievance itself. Accordingly, without knowing the contents of Plaintiff’s grievance, the

Court could not find that Defendants have met their burden of demonstrating their entitlement to

summary judgment on Plaintiff’s ASL claim for failure to exhaust his administrative remedies.

Defendants also argue that “nothing in the [second amended complaint] alleges an ‘ASL

ban’ in the Wende mess hall” and that any “evidence offered relating to an alleged ‘ASL ban’

should be disregarded.” (Dkt. No. 112-6, at 6–7). However, Plaintiff alleged that “DOCCS

allows non-hearing impaired/deaf inmates to communicate in the mess hall in any language”

while Plaintiff “and his deaf counterparts were not allowed to use ASL in the mess hall.” (Dkt.

No. 49, ¶ 50). Plaintiff specifically alleges that the “violation was on-going . . . as at no time

were [Plaintiff] and his hearing-impaired and deaf cohort allowed to communicate with ASL in

the mess hall of Wende without risk of receiving a disciplinary ticket.” (Id. ¶ 52). The Court

therefore rejects Defendants’ argument that Plaintiff did not plead an ongoing prohibition on the

use of ASL in the Wende mess hall.

3. Disparate Impact

Defendants argue that they are entitled to summary judgment on Plaintiff’s ADA and

Rehabilitation Act claims relating to being told to stop using ASL in the Wende mess hall

because (1) there is no evidence that Plaintiff’s “primary way of communicating is through ASL”

and therefore Plaintiff cannot establish that he was directed to stop using ASL in the mess hall

“because of his disability,” and (2) any attempt by DOCCS employees to prevent the use of ASL

in the mess hall was “motivated by security efforts to prevent gang communication” and not by

discrimination. (Dkt. No. 100-24, at 15–16). Plaintiff responds that this claim relies on a

disparate impact theory and Defendants are not entitled to summary judgment. (Dkt. No. 104-5,

at 15–16).

To establish a prima facie case of discrimination under Title II of the ADA or the

Rehabilitation Act under a disparate impact theory, a plaintiff “must demonstrate ‘(1) the

occurrence of certain outwardly neutral practices, and (2) a significantly adverse or

disproportionate impact on persons of a particular type produced by the defendant’s facially

neutral acts or practices.’” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016)

(citation omitted). At the summary judgment stage, “plaintiffs are ordinarily required to include

statistical evidence to show disparity in outcome between groups.” Id. (citation omitted).

Although the plaintiff “need not show discriminatory intent under this theory, it must prove that

the practice ‘actually or predictably results in discrimination,’” and there must be a “causal

connection between the policy at issue and the discriminatory effect.” Quad Enters. Co., LLC v.

Town of Southold, 369 F. App’x 202, 206 (2d Cir. 2010) (summary order) (citation and ellipses

omitted).13

Here, there is an issue of fact as to whether the use of ASL was banned in the Wende

mess hall between November 20, 2015 and Plaintiff’s transfer to Sullivan Correctional Facility in

January 2020.14 Plaintiff argues that it “can be inferred that the unwritten policy was against

hand gestures in the mess hall” and that this ban “had a disparate impact on ASL speakers.”

(Dkt. No. 104-5, at 15). The Court agrees that there is evidence such that a disparate impact

claim, which Defendants did not squarely address, survives summary judgment. Assuming there

was a policy that hand signals, or ASL in particular, could not be used in the Wende mess hall, a

jury could reasonably conclude that such a policy has a “significantly adverse or disproportionate

impact” on inmates who are deaf or hard of hearing—including Plaintiff—by restricting their

ability to communicate with other inmates. B.C., 837 F.3d at 158; see Forsyth v. Univ. of Ala.,

Bd. of Trs., No. 20-12513, 2021 WL 4075728, at *6, 2021 U.S. App. LEXIS 26945, at *19 (11th

Cir. Sept. 8, 2021) (noting that “it may not be necessary to provide statistical data” when

assessing disparate impact claims related to disability”).

Accordingly, the Court concludes that there is record evidence with which Plaintiff could

prove a technical violation of the ADA and Rehabilitation Act.15

13 Because a plaintiff need not show discriminatory intent to prevail on a disparate impact claim, Defendants’ argument

that Plaintiff’s claim fails because there is no evidence that he was directed to stop using ASL “because of his

disability” is misplaced. (See Dkt. No. 100-24, at 16). Defendants also argue that Plaintiff “cannot establish that any

direction not to use ASL in the mess hall [prevented] Plaintiff from participating in DOCCS benefits and services.”

(Dkt. No. 112-6, at 8). But Title II of the ADA and the Rehabilitation Act also prohibit a qualified individual from

being “subjected to discrimination.” 42 U.S.C. § 12132; 29 U.S.C. § 794(a).

14 Plaintiff has not asserted or argued that any such ban was pursuant to a formal or written DOCCS policy. (See Dkt.

No. 111, ¶ 18 (asserting that there has been an “unofficial policy against using ASL in the mess hall”)).

15 As discussed above, the Court does not find Defendants’ argument about vicarious liability determinative. And the

parties have not sufficiently addressed the deliberate indifference standard set forth in Gebser, Loeffler, and Biondo

to permit meaningful analysis.

E. Accommodations at CNYPC

Defendants argue that Plaintiff cannot establish a violation of the ADA or Rehabilitation

Act because he cannot prove that CNYPC or OMH “denied him benefits or services at CNYPC

. . . because of his disability.” (Dkt. No. 100-24, at 20–22). Defendants also argue that CNYPC

and OMH “had no knowledge that Plaintiff experienced hearing issues that actually prohibited

him from taking part in any benefit or service at CNYPC” and therefore that Plaintiff cannot

establish that any accommodation was denied “because of his disability.” (Id.). Plaintiff argues

that he is entitled to summary judgment on this claim because he requested facially reasonable

accommodations at CNYPC, which were denied without a reasonable accommodation

“screening” or “individualized inquiry” into their reasonableness. (Dkt. No. 104-5, at 17–20).

In examining a claim premised on a theory of failure to reasonably accommodate, the

Court asks “whether a plaintiff with disabilities ‘as a practical matter’ was denied ‘meaningful

access’ to services, programs or activities to which he or she was ‘legally entitled.’” Wright v.

N.Y. State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (quoting Henrietta D. v. Bloomberg,

331 F.3d 261, 273 (2d Cir. 2003)). A reasonable accommodation “need not be ‘perfect’ or the

one ‘most strongly preferred’” by the plaintiff, but it must be “effective.” Id. (quoting Dean, 804

F.3d at 189). “Determining the reasonableness of an accommodation is a fact-specific question

that often must be resolved by a factfinder.” Id. at 72–73 (citation, brackets, and internal

quotation marks omitted).

1. Reasonableness of CNYPC’s Accommodations

To accommodate Plaintiff’s hearing impairment at CNYPC, Plaintiff had the use of

hearing aids, a telephone amplifier, closed captioning, and preferred seating. (Dkt. No. 101-1, at

114). Plaintiff does not dispute that he received these accommodations, although he asserts that

most of the “movies and treatment videos” did not have closed captioning and that preferred

seating helps only in certain situations. (Dkt. No. 111, ¶¶ 38–39). Defendants argue that these

accommodations were reasonable because “it was determined that Plaintiff’s hearing impairment

was not, in fact, prohibiting Plaintiff from effectively and meaningfully participating” in

CNYPC’s services. (Dkt. No. 112-6, at 15).

The Court concludes that there is an issue of fact regarding whether Plaintiff, as a

practical matter, was denied “meaningful access” to services, programs, and activities to which

he was legally entitled while at CNYPC. Wright, 831 F.3d at 72. According to Defendants,

Plaintiff expressed no concerns about his inability to hear other than one issue with his hearing

aid batteries which was promptly resolved. See supra Section II.C. However, Plaintiff asserts

that there was not closed captioning “on the vast majority of the movies and treatment videos.”

(Dkt. No. 111, ¶ 38 (emphasis added)). And in letters written in November and December 2017,

Plaintiff complained that he could not hear the “DVD instructional disc or many times the

facilitator” during “therapeutic treatment mall.” (Dkt. No. 100-4, at 3). This issue of fact

precludes a determination as a matter of law regarding whether Plaintiff was denied meaningful

access to treatment programs and other services at CNYPC, and Defendants’ motion for

summary judgment cannot be granted on this basis. Cf. Wright, 831 F.3d at 73 (“On this record,

we cannot determine that DOCCS’s accommodations are plainly reasonable and effectively

provide Wright meaningful access . . . because there is evidence that indicates that the mobility

assistance program . . . discourages his participation in prison activities.”). The possibility that a

reasonable factfinder could conclude that Plaintiff was not denied meaningful access to

CNYPC’s services and programs also precludes summary judgment in Plaintiff’s favor on this

claim. Lane v. Carpinello, No. 07-cv-751, 2009 WL 3074344, at *17, 2009 U.S. Dist. LEXIS

88345, at *57–58 (N.D.N.Y. Aug. 31, 2009) (finding questions of fact precluding summary

judgment where the plaintiff asserted he was “unable to participate in recreation” and “read”

without his requested accommodations and the defendants contended that the plaintiff

“demonstrated no signs of difficulty” and “was able to fully participate in his treatment groups”),

report and recommendation adopted by 2009 WL 3074344, 2009 U.S. Dist. LEXIS 88341

(N.D.N.Y. Sept. 24, 2009).

2. Reasonableness of Requested Accommodations

Even though the reasonableness of the accommodations Plaintiff actually received at

CNYPC cannot be determined as a matter of law at this time, the Court may also consider

whether, under a burden-shifting framework, Plaintiff’s “proposed accommodation would have

been reasonable.” Wright, 831 F.3d at 76. Under this burden-shifting framework, the plaintiff

“bears the initial burden of both production and persuasion as to the existence of an

accommodation that is facially reasonable.” Id. (quotation marks and brackets omitted). The

burden of persuasion “then shifts to the defendant to ‘rebut the reasonableness of the proposed

accommodation,’” which is “in essence equivalent” to showing that the proposed

accommodation would cause the defendant “to suffer an undue hardship.” Id. (citation omitted).

An “individualized inquiry must be made to determine whether a specific modification for a

particular person’s disability would be reasonable under the circumstances.” Id. at 77 (quoting

PGA Tour, Inc. v. Martin, 532 U.S. 661, 688 (2001)).

Here, Plaintiff asserts that he requested a T-coil loop, pocket talker, and more closed

captioning while at CNYPC.16 Were a factfinder to credit this evidence, it seems likely that

Plaintiff can meet the “light burden of production” as to the “facial reasonableness” of the

16 Plaintiff also asserts that he requested access to a TTY phone at CNYPC, but the parties stipulated to the voluntary

discontinuance of all claims “derived from Plaintiff’s access to a TTY machine” at both Wende and CNYPC. (Dkt.

No. 99).

proposed accommodations. Cf. id. at 76.17 Defendants offer no argument that any of these

requested accommodations would impose an undue hardship, instead focusing their arguments

on whether Plaintiff in fact needed any additional accommodations. Thus, Defendants are not

entitled to summary judgment on the ground that Plaintiff’s proposed accommodations would

not have been reasonable.

In sum, in light of the numerous disputed issues of fact, no party is entitled to summary

judgment on Plaintiff’s Title II and Rehabilitation Act claims that he was not reasonably

accommodated at CNYPC.

F. Closure of the Wende “Resource Room”

Defendants move for summary judgment on Plaintiff’s ADA and Rehabilitation Act

claims against DOCCS for the denial of access to the Wende Resource Room on June 25–29 and

July 2–6, 2018. (Dkt. No. 100-24, at 17–20). Plaintiff’s opposition indicates that he “asked

Defendants to stipulate to a voluntary dismissal of the Resource Room claims and await[ed]

response.” (Dkt. No. 104-5, at 7 n.1). In reply, Defendants state that Plaintiff failed to address

Defendants’ argument regarding this claim and “has offered to discontinue it,” and that, as a

result, “Defendants are entitled to summary judgment on that claim.” (Dkt. No. 112-6, at 2 n.1).

The parties have not filed a stipulation of voluntary discontinuance of this claim.

The Second Circuit has held that “a partial response [by the non-movant] arguing that

summary judgment should be denied as to some claims while not mentioning others may be

deemed an abandonment of the unmentioned claims.” Jackson v. Fed. Express, 766 F.3d 189,

17 The Court rejects Plaintiff’s suggestion that the accommodations he received at DOCCS facilities are necessarily

reasonable under the circumstances at CNYPC without any further inquiry. Further, although Plaintiff argues that

Defendants did not strictly follow CNYPC’s policies and procedures regarding reasonable accommodations, he

provides no authority to support the proposition that the failure to follow the letter of a policy necessarily amounts to

a violation of Title II of the ADA or the Rehabilitation Act.

195 (2d Cir. 2014); see id. at 196 (drawing a distinction between fully unopposed and partially

opposed motions for summary judgment in counseled cases). This is because “[g]enerally, but

perhaps not always, a partial response reflects a decision by a party’s attorney to pursue some

claims or defenses and to abandon others.” Id. at 196. Here, the Court need not infer

abandonment of Plaintiff’s Resource Room claim because Plaintiff abandoned the claim

affirmatively and explicitly. Plaintiff’s opposition and cross-motion for partial summary

judgment noted that Plaintiff had sought Defendants’ consent to a voluntary discontinuance of

the claim but did not otherwise address the claim in any way. (Dkt. No. 104-5, at 7 n.1).

Plaintiff’s memorandum of law did not respond to Defendants’ argument in support of summary

judgment on the claim. (See generally Dkt. No. 104-5). Further, rather than substantively

responding to the portion of Defendants’ statement of facts relevant to this claim, Plaintiff

simply asserted “No longer relevant to the litigation.” (See Dkt. No. 104-4, ¶¶ 8–11, 16–17).

Thus, because Plaintiff has abandoned the claim relating to the closure of the Wende Resource

Room in June and July 2018, the claim is dismissed with prejudice. See LaFever v. Clarke, 525

F. Supp. 3d 305, 333 (N.D.N.Y. 2021) (dismissing claims that were abandoned on summary

judgment); Leavitt v. Ethicon, Inc., 524 F. Supp. 3d 360, 367 (D. Vt. 2021) (granting motion for

summary judgment in light of the plaintiffs’ “unequivocal abandonment of certain claims”).

G. September 2019 Program Call-Out

Defendants argue that they are entitled to summary judgment on Plaintiff’s claim relating

to the alleged failure to provide him with a pocket talker in September 2019 for use in a

programming meeting because, inter alia, Plaintiff failed to exhaust his administrative remedies.

(Dkt. No. 110-7, at 3–8). Plaintiff did not respond to this argument.

The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect

to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined

in any jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a). This exhaustion requirement “applies to all

inmate suits about prison life, whether they involve general circumstances or particular episodes,

and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516,

532 (2002); see also Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 442 (S.D.N.Y.

2004) (“The ADA falls within the rubric of ‘any other federal law.’”). Proper exhaustion of

administrative remedies depends on the rules and regulations of the prison in which the

grievance is filed; that is, an inmate of a DOCCS facility must satisfy the requirements set forth

by DOCCS regulations to properly exhaust administrative remedies. See Garcia v. Heath, 74

F.4th 44, 46 (2d Cir. 2023); see also Hayes v. Dahlke, 976 F.3d 259, 268 (2d Cir. 2020) (“[I]t is

the prison’s requirements, and not the PLRA, that define the boundaries of proper exhaustion.”

(quoting Jones v. Bock, 549 U.S. 199, 218 (2007))).

Defendants “bear the initial burden of establishing the affirmative defense of non-

exhaustion ‘by pointing to “legally sufficient sources” such as statutes, regulations, or grievance

procedures’ which demonstrate that ‘a grievance process exists and applies to the underlying

dispute.’” Williams v. Correction Officer Priatno, 829 F.3d 118, 126 n.6 (2d Cir. 2016) (quoting

Hubbs v. Suffolk Cnty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015)). “If the defendants meet

this initial burden, administrative remedies may nonetheless be deemed unavailable if the

plaintiff can demonstrate that other factors . . . rendered a nominally available procedure

unavailable as a matter of fact.” Hubbs, 788 F.3d at 59 (citing Hemphill v. New York, 380 F.3d

680, 688 (2d Cir. 2004), abrogated on other grounds by Ross v. Blake, 578 U.S. 632, 639–42

(2016)).

Under DOCCS regulations, an inmate must generally submit a grievance within twenty-

one days of an alleged occurrence, see N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(1), but

may request an extension within forty-five days of the alleged occurrence, see id.

§ 701.6(g)(1)(i)(a). An inmate’s grievance “should contain a concise, specific description of the

problem and the action requested.” Id. § 701.5(a)(2). Subsequent procedural exhaustion of a filed

grievance then involves three steps: (1) the grievance is reviewed and resolved by the Inmate

Grievance Resolution Committee (“IGRC”), id. § 701.5(b); (2) the grievant appeals an adverse

decision of the IGRC to the superintendent of the facility at which the grievance was filed, id.

§ 701.5(c); and (3) the grievant appeals an adverse decision of the superintendent to the Central

Office Review Committee (“CORC”), id. § 701.5(d). Upon the rendering of CORC’s decision, or

if CORC fails to respond to a grievance within thirty days of its appeal under the third step of the

process, the grievant has exhausted administrative remedies. See Hayes, 976 F.3d at 269–70.

Here, Defendants have established that the grievance procedures contemplated by

DOCCS regulations applied to inmates at Wende and Sullivan Correctional Facility, to which

Plaintiff was transferred in January 2020. (Dkt. No. 110, ¶¶ 1, 11–12 (declaration of Incarcerated

Grievance Program Director Rachael Seguin asserting that Wende and Sullivan both had “fully

functioning incarcerated grievance processes available”); see id. ¶¶ 8–9 (asserting that Plaintiff’s

claim regarding the pocket talker “is the proper subject for a grievance under DOCCS grievance

procedures”)). Plaintiff did not file a grievance about the pocket talker in September 2019, (Dkt.

Nos. 110-1, 110-2, 110-4), and Plaintiff has offered no evidence or advanced any argument that

the grievance process was unavailable to him.

Thus, because Plaintiff did not file any grievance concerning the alleged failure to be

provided with a pocket talker in September 2019, he failed to exhaust his available

administrative remedies and Defendants’ motion for summary judgment as to this claim is

granted.

H. Eleventh Amendment Sovereign Immunity

Finally, Defendants argue that they are “immune to suit for money damages in

connection with Plaintiff’s ADA Title II claim[s].” (Dkt. No. 100-24, at 22–28); see Cuomo v.

N.Y. State Assembly Judiciary Comm., No. 22-mc-3027, 2023 WL 4686957, at *16–17, 2023

U.S. Dist. LEXIS 126153, at *46–47 (E.D.N.Y. July 21, 2023) (rejecting the argument that state

sovereign immunity “must be addressed as a threshold matter” because it is not “fundamentally

preliminary” or an “absolute stricture” on courts).18

The Eleventh Amendment provides that “[t]he Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of

the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

U.S. Const. amend. XI. Notwithstanding its plain language, the Supreme Court has long held that

the Eleventh Amendment bars all federal court claims against states, including by the states’ own

citizens, absent their consent to such suit or an express statutory abrogation of immunity. See,

e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989); Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 98–100 (1984). State immunity extends not only to the states, but also

to state agencies. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.

139, 142–47 (1993); McGinty v. New York, 251 F.3d 84, 95 (2d Cir. 2001) (“The Eleventh

Amendment extends immunity not only to a state, but also to entities considered ‘arms of the

18 Defendants do not raise an Eleventh Amendment defense with respect to Plaintiff’s Rehabilitation Act claims and,

as the Court noted in its prior decision, it is “doubtful” that Plaintiff’s Rehabilitation Act claims would be barred by

the Eleventh Amendment. Matagrano, 2020 WL 7338586, at *11 n.18, 2020 U.S. Dist. LEXIS 234149, at *35 n.18.

Courts in this Circuit have concluded that “New York’s continued acceptance of federal funds” under the

Rehabilitation Act “constitutes a knowing waiver of sovereign immunity.” Marino v. City Univ. of N.Y., 18 F. Supp.

3d 320, 331–32 (E.D.N.Y. 2014) (collecting cases).

state.’”). Here, it is undisputed that each Defendant is considered a state agency protected by the

Eleventh Amendment. See Matagrano, 2020 WL 7338586, at *15, 2020 U.S. Dist. LEXIS

234149, at *46–47.

In Garcia v. State University of N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98 (2d

Cir. 2001), the Second Circuit addressed the question of whether Congress had validly abrogated

state sovereign immunity from claims for monetary damages under Title II of the ADA. The

Court held that “it is clear that the Congress fully intended to abrogate state sovereign immunity”

from such claims, but that this purported abrogation was not valid because the enactment of Title

II exceeded Congress’s authority under Section 5 of the Fourteenth Amendment to enforce the

protections afforded by that amendment’s Equal Protection Clause. Id. at 108–10. However, the

Court found that Title II could be rehabilitated by requiring “plaintiffs bringing such suits to

establish that the Title II violation was motivated by discriminatory animus or ill will based on

the plaintiff’s disability.” Id. at 111. Recognizing that “direct proof of [discriminatory animus or

ill will] will often be lacking,” the Court further held that to establish such animus, a plaintiff

may rely on a burden-shifting technique similar to that adopted in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802–05 (1973), or a motivating-factor analysis similar to that set out in

Price Waterhouse v. Hopkins, 490 U.S. 228, 252–58 (1989). Id at 112.

After Garcia, the Supreme Court decided Tennessee v. Lane, 541 U.S. 509 (2004),

holding that Congress’s abrogation of sovereign immunity under Title II was valid in the specific

context of cases challenging barriers to courtroom accessibility. Id. at 531. It reasoned that in

enacting Title II, Congress sought to enforce not only the Equal Protection Clause (as recognized

in Garcia) but also “a variety of other basic constitutional guarantees, infringements of which are

subject to more searching judicial review,” including rights under the Fourteenth Amendment’s

Due Process Clause. Id. at 522–23. Put another way, the Supreme Court found that Title II was

“not wholly premised on discrimination against the disabled that violates the Equal Protection

Clause,” arguably opening up the possibility of other avenues for Title II damages claims to clear

the Eleventh Amendment hurdle besides the Equal Protection “discriminatory animus” test

recognized in Garcia. Bolmer v. Oliveira, 594 F.3d 134, 147 (2d Cir. 2010).

Following Lane, the Supreme Court decided United States v. Georgia, 546 U.S. 151

(2006), in which it held that “insofar as Title II creates a private cause of action for damages

against the States for conduct that actually violates the Fourteenth Amendment, Title II validly

abrogates state sovereign immunity.” Id. at 159. However, because it was unclear whether the

petitioner’s amended complaint might assert Title II claims not premised on Fourteenth

Amendment violations, and because the justices disagreed as to the scope of Congress’s

“prophylactic” authority to regulate conduct not itself barred by the Fourteenth Amendment, the

Court remanded for the lower courts to determine, “on a claim-by-claim basis, (1) which aspects

of the State’s alleged conduct violated Title II; (2) to what extent such misconduct also violated

the Fourteenth Amendment; and (3) insofar as such misconduct violated Title II but did not

violate the Fourteenth Amendment, whether Congress’s purported abrogation of sovereign

immunity as to that class of conduct is nevertheless valid.” Id. at 158–59. “Thus, Georgia

explicitly left open the question of whether Congress may validly abrogate sovereign immunity

with respect to a particular class of misconduct that violates Title II but does not violate the

Fourteenth Amendment.” Dean, 804 F.3d at 194.

The Second Circuit has not fully resolved the question of whether, or to what extent,

Garcia remains valid in light of Georgia. In Bolmer, the Second Circuit held that “Garcia only

applies to Title II claims based on Equal Protection,” that “Garcia is not applicable when

Congress’s abrogation is supported by its enforcement of the substantive due process right not to

be involuntarily committed absent a danger to self or others,” and that “under Georgia and Lane,

Congress validly abrogated states’ Eleventh Amendment immunity where the same conduct by

the defendant violated both Title II and substantive due process.” 594 F.3d at 145–49. However,

Bolmer did not address the standard for evaluating whether the Eleventh Amendment bars Title

II damages claims based on conduct that does not independently implicate constitutional rights.

Later, in Dean, the Second Circuit recognized that “[c]ontinued uncertainty as to the vitality of

Garcia has led to a divergence in the approaches adopted by district courts in this Circuit in their

assessment of Congress’s abrogation of sovereign immunity under Title II,” but expressed “no

position” as to the issue. 804 F.3d at 194–95.

In light of this “continued uncertainty,” district courts have taken varying approaches to

the continuing validity of Garcia. When determining whether Congress has validly abrogated

states’ sovereign immunity from Title II claims that do not independently implicate a

constitutional violation, some courts have continued to apply Garcia’s “discriminatory animus or

ill will” requirement. See, e.g., Bobbit v. Marzan, No. 16-cv-2042, 2020 WL 5633000, at *13,

2020 U.S. Dist. LEXIS 172422, at *39 (S.D.N.Y. Sept. 21, 2020) (stating that, when applying

the third clause of the Georgia test, “[a]t a minimum, covered claims include those where the

plaintiff makes ‘a showing of discriminatory animus or ill will,’ because in those cases

discrimination in contravention of the ADA also threatens the rights protected by the Equal

Protection Clause”); Monroe v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 16-cv-2818,

2019 WL 4688665, at *10, 2019 U.S. Dist. LEXIS 164527, at *26–27 (S.D.N.Y. Sept. 25, 2019)

(“Many courts in the Second Circuit have used the discriminatory animus or ill will test laid out

in Garcia to inform its analysis of the third clause of the Georgia test . . . .”). Others have

applied the three-part test articulated in City of Boerne v. Flores, 521 U.S. 507, 520 (1997), to

determine whether, for the particular Title II violation alleged, there is a “congruence and

proportionality between the injury to be prevented or remedied and the means adopted to that

end.” See, e.g., Lenti v. Connecticut, No. 20-cv-127, 2020 WL 4275600, at *7–10, 2020 U.S.

Dist. LEXIS 131189, at *21–31 (D. Conn. July 24, 2020); Goonewardena v. New York, 475 F.

Supp. 2d 310, 322–24 (S.D.N.Y. 2007).

Here, Defendants argue they are immune from Plaintiff’s ADA claims for money

damages under either Garcia’s “discriminatory animus or ill will” test or the City of Boerne

“congruence and proportionality” test. (Dkt. No. 100-24, at 25–28). Plaintiff responds that, “[i]f

Garcia is controlling, Plaintiff is entitled to damages for the failure to reasonably accommodate

him with his pocket talker in 2019” because internal emails indicate that two employees

“enjoyed making fun of” Plaintiff. (Dkt. No. 104-5, at 24–25).19 Given the uncertainty described

above, the Court will apply both tests.

The Court first concludes that Congress’s purported abrogation of sovereign immunity as

to Plaintiff’s claims relating to the ASL ban in the Wende mess hall and the failure to reasonably

accommodate Plaintiff at CNYPC is not valid under the test set forth in Garcia. Plaintiff has

pointed to no evidence which would tend to establish that any of the conduct underlying those

claims “was motivated by discriminatory animus or ill will based on [his] disability.” Garcia,

280 F.3d at 111. Plaintiff himself suggests that the prohibition on using ASL in the mess hall was

due not to any animus or ill will but because the guards could not distinguish ASL from gang

signs and would get distracted or nervous. (Dkt. No. 100-14, at 97–98). And there is evidence

19 Plaintiff makes no argument that any of the alleged Title II violations also independently violates the Constitution.

Because the Court grants summary judgment to Defendants on Plaintiff’s claim relating to the failure to accommodate

with a pocket talker in September 2019 for failure to exhaust his available administrative remedies, Plaintiff’s

argument about the unprofessional internal emails is not relevant to the sovereign immunity analysis.

that the staff at CNYPC provided Plaintiff with certain accommodations and responded to his

hearing aid battery issues and later to his written complaints. See supra Section II.C. Thus,

abrogation is not proper under Garcia. Cf. Kearney v. N.Y.S. D.O.C.S., No. 11-cv-1281, 2013

WL 5437372, at *10, 2013 U.S. Dist. LEXIS 140932, at *27 (N.D.N.Y. July 31, 2013)

(concluding “the numerous accommodations granted to Plaintiff in lieu of the requested transfer

weigh against a finding of discriminatory animus”), report-recommendation adopted by 2013

WL 5437372, 2013 U.S. Dist. LEXIS 139060 (N.D.N.Y. Sept. 27, 2013).

Under the Georgia framework, the Court must consider whether Congress’s purported

abrogation of sovereign immunity regarding the alleged conduct which may violate Title II but

does not violate the Fourteenth Amendment is nevertheless valid. Georgia, 546 U.S. at 159. To

do so, the Court applies the three-part test from City of Boerne. The first step is “to identify with

some precision the scope of the constitutional right at issue.” Bd. of Trs. of Univ. of Ala. v.

Garrett, 531 U.S. 356, 365 (2001). The second consideration is “whether Congress identified a

history and pattern of unconstitutional . . . discrimination by the States against the disabled.” Id.

at 368. At the final step, the Court considers whether the rights and remedies created by the ADA

against the States are “congruent and proportional to the targeted violation.” Id. at 372–74.

The parties have not expressly addressed the first step but appear to suggest that the

constitutional right at issue is the right to equal protection of the laws under the Fourteenth

Amendment. See Chase v. Baskerville, 508 F. Supp. 2d 492, 499–500 (E.D. Va. 2007)

(concluding that, in the prison context, Title II “clearly implicates . . . the equal protection rights

of the Fourteenth Amendment”). With respect to the second step, “several courts have

interpreted Tennessee v. Lane, 541 U.S. 509 (2004), as ‘conclusively establishing that Title II as

a whole survives the historical inquiry under the second step of the City of Boerne test.’” Lenti,

2020 WL 4275600, at *10, 2020 U.S. Dist. LEXIS 131189, at *27–28 (collecting cases).

Nevertheless, the Court agrees with those courts who have found that state prisoners’ claims fail

the third step of the City of Boerne test because, in the prison context, “Title II is so out of

proportion to a supposed remedial or preventive object that it cannot be understood as responsive

to, or designed to prevent, unconstitutional behavior.” Id., 2020 WL 4275600, at *10, 2020 U.S.

Dist. LEXIS 131189, at *29–30 (noting that courts have emphasized Title II’s “broad scope” and

the need for federal courts to be “cautious before interfering with the administration of a State’s

prison system”) (citations omitted). Here, because there is no indication that Defendants acted

irrationally or arbitrarily, or were motivated by discriminatory animus or ill will, the conduct

alleged by Plaintiff is “far afield from the essence” of the Equal Protection Clause. Id.; see also

Chase, 508 F. Supp. 2d at 504 (“In short, Title II imposes an affirmative accommodation

obligation in the administration of state prisons that far exceeds what the Equal Protection Clause

requires.”).

Accordingly, the Court concludes that Plaintiff’s ADA claims for money damages are

barred by the Eleventh Amendment.

V. CONCLUSION

For these reasons, it is hereby

ORDERED that Defendants New York State Department of Corrections and Community

Supervision, Central New York Psychiatric Center, and New York State Office of Mental

Health’s motion for summary judgment (Dkt. No. 100) is GRANTED in part; and it is further

ORDERED that Plaintiff’s claims under Title II of the ADA and the Rehabilitation Act

based on (1) the closure of the Wende Resource Room in June and July 2018 and (2) the failure

to accommodate with a pocket talker in September 2019 are DISMISSED with prejudice; and it

is further

ORDERED that Plaintiff's claims under Title II of the ADA based on (1) the prohibition

on the use of ASL in the Wende mess hall and (2) the failure to accommodate at CNYPC are

DISMISSED with prejudice; and it is further

ORDERED that Defendants’ motion for summary judgment (Dkt. No. 100) is otherwise

DENIED; and it is further

ORDERED that Plaintiff Matthew John Matagrano’s cross-motion for partial summary

judgment (Dkt. No. 104) is DENIED.

IT IS SO ORDERED.

Dated: September 12, 2023 □□ CO ar

Syracuse, New York OH

Brenda K. Sannes

Chief U.S. District Judge

38