Doherty v. Bice

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK BREST SOMEa MEE

DOC #:

DATE FILED: 09/16/2020

JASON DOHERTY, —————

Plaintiff,

-against-

18-cv-10898 (NSR)

PATRICIA BICE, individually and as Dean of Student

Affairs at Purchase College, State University of New OPINION & ORDER

York; JARED STAMMER, individually and as

Conduct Officer for Purchase College, State

University of New York; and QUI QUI BALASCIO,

individually and as Associate Dean for Student Affairs

for Purchase College, State University of New York,

Defendants.

NELSON S. ROMAN, United States District Judge:

Plaintiff Jason Doherty (‘Plaintiff or “Doherty”) commenced the instant action on

November 21, 2018. (See Complaint, ECF No. 1; Amended Complaint (“Am. Compl.”), ECF

No. 17.) In this action, Plaintiff alleges claims pursuant to 42 U.S.C. § 1983 for violations of the

Fourteenth Amendment to the United States Constitution and the Americans with Disabilities

Act, 42 U.S.C. § 12132 (“ADA”), against Defendants Patricia Bice, Jared Stammer, and Qui Qui

Balascio (together, ““Defendants”). Specifically, Plaintiff alleges that Defendants denied him due

process in relation to the issuance of no contact orders and failed to comply with the disability

accommodation and antidiscrimination requirements of the ADA.

Before the Court is Defendants’ Motion to Dismiss the Amended Complaint pursuant to

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See ECF No. 29.) For the following

reasons, Defendants’ motion to dismiss is GRANTED in part and DENIED in part.

BACKGROUND

I. Factual Allegations

The following facts are derived from the Amended Complaint and are taken as true and

constructed in the light most favorable to pro se Plaintiff for the purposes of this motion. See

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d

Cir. 2016).

A court is generally confined to the facts alleged in the complaint for the purposes of

considering a motion to dismiss pursuant to 12(b)(6). Cortec Indus. v. Sum Holding L.P., 949

F.2d 42, 47 (2d Cir. 1991). A court may, however, consider documents attached to the

complaint, statements or documents incorporated into the complaint by reference, matters of

which judicial notice may be taken, public records, and documents that the plaintiff either

possessed or knew about, and relied upon, in bringing the suit. See Kleinman v. Elan Corp., 706

F.3d 145, 152 (2d Cir. 2013).

a. SUNY Purchase Orientation

Plaintiff is a nineteen-year-old student attending Purchase College, State University of

New York (“SUNY Purchase”). (Am. Compl. ¶ 3.) Plaintiff has Asperger Syndrome, and has

been classified as a disabled student. (Id. ¶ 7.) Prior to attending SUNY Purchase, while in high

school, Plaintiff participated in programs at Putnam Northern Westchester BOCES where he had

contentious interactions with Casper Horsfield a/k/a Chelsea Horsfield (“Horsfield”). (Id. ¶ 9.)

Plaintiff began attending SUNY Purchase as a freshman and attended freshman

orientation in August 2017. (Id. ¶ 10.) During the orientation period, Plaintiff met a number of

other freshman students, including Alexa Newman (“Newman”). (Id. ¶ 11.) Plaintiff went with

Newman to her room with other students, and was surprised to see Horsfield, who was

Newman’s roommate. (Id. ¶ 12.) Plaintiff exited the room with Newman and some other

students, then tried to re-enter. (Id. ¶ 13.) Horsfield yelled at Plaintiff to “get out.” (Id.)

Plaintiff stepped away from the room and Horsfield closed the door and locked it. (Id. ¶ 14.)

A few minutes later, two campus police officers approached Plaintiff and his friend while

they were standing in the hallway and asked for their IDs. (Id. at 15.) Plaintiff asked the police

officers what he did wrong, and in response one of the officers started yelling at Plaintiff—the

officer told Plaintiff to leave, and that if he did not, then Plaintiff would be arrested, a restraining

order against him would be issued, and he would not be allowed in the dorms. (Id. ¶ 16.)

Plaintiff, as a result of his Asperger’s, was frightened, intimidated, and afraid for his

safety, and immediately left the building and called his mother. (Id. ¶ 17.) Plaintiff was worried

and concerned that he was going to jail. (Id. ¶ 18.) Plaintiff proceeded to the Office for Students

with Disabilities and stayed there until his parents arrived, and he left the orientation. (Id. ¶¶ 19–

20.)

b. Issuance of No Contact Orders

Later that day, Plaintiff received a call form Defendant Jared Stammer (“Stammer”),

SUNY Purchase’s Conduct Officer for Community Standards. (Id. ¶¶ 5, 21.) Stammer advised

Plaintiff that three of the female students had filed do not contact orders against him; Stammer

sent Plaintiff emails of the no contact orders (the “No Contact Orders”). (Id. ¶¶ 21, 29.) The

individuals who requested the contact orders were Horsfield, Newman, and a third student,

Casey O’Riordan (“O’Riordan”). (Id. ¶ 22.) Plaintiff alleges he has never met O’Riordan and

would not recognize her. (Id. ¶ 23.) Thereafter, the fact that Plaintiff had no contact orders

issued against him was posted on a community online chat room. (Id. ¶ 24.)

c. SUNY Purchase’s Policies and Procedures Regarding No Contact Orders

In or about August 2017, SUNY Purchase’s website stated the following with regard to

no contact orders:

In cases involving allegations of sexual misconduct, sex discrimination, domestic

violence, dating violence, and/or stalking, when the accused is a student, the

college may issue a “No Contact Order,” meaning that attempts to contact the

complainant is a violation of college policy subject to additional conduct charges.

Additionally, if the accused and complainant observe each other in a public place,

it is the responsibility of the accused to leave the area immediately and without

directly contacting the complainant.

(Id. ¶ 28.)

The No Contact Orders provided to Plaintiff included an email address and phone

number to contact the Office of Community Standards should Plaintiff “have any questions

about a No Contact order or wish to have [sic] review of the terms of the No Contact Order.”

(Id. ¶ 29.) At the time the No Contact Orders were filed against Plaintiff, SUNY Purchase did

not have any specific appeal mechanism, nor was there any hearing or other process available to

challenge the issuance of the No Contact Orders either prior to or after the issuance of the orders.

(Id. ¶¶ 26, 30.) In addition, SUNY Purchase did not require any factual assertion for the issuance

of no contact orders, and no reason was given for why they were issued. (Id. ¶¶ 27, 30.) No

complaints were filed alleging that Doherty had violated the Code of Conduct or engaged in any

other wrongful conduct, and the campus police did not file any charges against Plaintiff, nor did

they make any factual inquires to Plaintiff. (Id. ¶ 31.)

d. Subsequent Events Regarding the No Contact Orders

Plaintiff requested review of the No Contact Orders, and also indicated that he believed

that because of his disability, he was being discriminated against. (Id. ¶ 32.) Plaintiff was

informed by Qui Qui Balascio (“Balascio”), Associate Dean for Student Affairs, and Patricia

Bice (“Bice”), Dean of Student Affairs, that SUNY Purchase’s process was followed with the

issuance of the No Contact Orders, that he was not entitled to challenge or contest the issuance of

the No Contact Orders, and that they would not be vacated. (Id. ¶¶ 4, 6, 33.)

Subsequent to the issuance of the No Contact Orders against Plaintiff, SUNY Purchase

adopted rules and procedures to review no contact orders. (Am. Compl. ¶ 35.) These new rules

and procedures were not applied to Plaintiff, and the request to remove the No Contact Orders

from his file and to have them dismissed was unsuccessful. (Id. ¶ 36.)

As a result of the issuance of the no contact orders and his disability, Plaintiff suffers

great anxiety and depression, has difficulty going to class or utilizing SUNY Purchase’s facilities

for fear of being arrested, and is afraid to socialize with other students. (Id. ¶ 34.) Further,

Plaintiff’s ability to perform academically has been disrupted because he is in a class with one of

the students for whom a no contact order has been issued. (Id. ¶ 49.)

LEGAL STANDARD

I. 12(b)(6)

To survive a 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)).

Factual allegations must “nudge [a plaintiff’s] claim from conceivable to plausible.” Twombly,

550 U.S. at 570. A claim is plausible when the plaintiff pleads facts which allow the court to

draw a reasonable inference the defendant is liable. Iqbal, 556 U.S. at 678. To assess the

sufficiency of a complaint, the court is “not required to credit conclusory allegations or legal

conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.

2013). While legal conclusions may provide the “framework of a complaint,” “threadbare

recitals of the elements of a cause of action, supported by mere conclusory statements, do not

suffice.” Iqbal, 556 U.S. at 678–79.

II. 12(b)(1)

A claim is subject to dismissal under Rule 12(b)(1) if the court lacks subject matter

jurisdiction to adjudicate it pursuant to statute or constitutional authority. See Fed. R. Civ. P.

12(b)(1); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a motion to

dismiss for lack of subject matter jurisdiction, a district court may refer to evidence outside the

pleadings. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). A lack

of standing and a failure to exhaust administrative remedies constitute jurisdictional defects and

may be addressed through a Rule 12(b)(1) motion. Johnson v. Benheim, 2001 WL 799569 at *4

(S.D.N.Y. July 13, 2001) (internal citation omitted). Plaintiff bears the burden of proving by a

preponderance of the evidence that the court has subject matter jurisdiction of the claim asserted.

Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994).

III. 42 U.S.C. § 1983 Claims

Section 1983 provides, in relevant part, that: “[e]very person who, under color of any

statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be

subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured.” 42 U.S.C.

§ 1983. Section 1983 “is not itself a source of substantive rights, but a method for vindicating

federal rights elsewhere conferred by those parts of the United States Constitution and federal

statutes that it describes.” Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979); see Cornejo v. Bell,

592 F.3d 121, 127 (2d Cir. 2010). To state a claim under § 1983, a plaintiff must allege two

essential elements: “(1) that the defendants deprived him of a right ‘secured by the Constitution

or laws of the United States’; and (2) that they did so ‘under color of state law.’” Giordano v.

City of New York, 274 F.3d 740, 750 (2d Cir. 2001) (quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 49–50 (1999)).

DISCUSSION

Plaintiff brings two claims against Defendants individually and in their official

capacities: (1) a due process claim pursuant to 42 U.S.C. § 1983 (Am Compl. ¶¶ 37–40); and (2)

a claim under Title II of the ADA, 42 U.S.C. § 12132, for disability discrimination (Id. ¶¶ 41–

55). Plaintiff seeks injunctive relief in the form of the No Contact Orders being vacated and

declared void, monetary damages in excess of $100,000, and attorney’s fees in excess of

$50,000. (Id. ¶ 55.) The Court considers each claim in turn.

I. Due Process Claims

The Fourteenth Amendment provides that no state shall “deprive any person of life,

liberty, or property, without due process of law.” U.S. Const. Amend. XIV. To state a

procedural due process claim, Plaintiff must show “(1) that Defendants deprived him of a

cognizable interest in life, liberty, or property, (2) without affording him constitutionally

sufficient process.” Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017) (internal quotation

marks omitted).

a. Property Interest

Plaintiff argues that he has alleged a protected property interest. To allege a property

interest protected by constitutional due process requirements, Plaintiff must show a “legitimate

claim of entitlement” to a benefit provided by law in the appropriate jurisdiction, as opposed to

“an abstract need or desire for it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564,

577 (1972). Property interests “extend well beyond actual ownership of real estate, chattels, or

money.” Id. at 571.

Plaintiff submits that under New York law, he has a constitutionally protected property

interest by reason of the implied contract between SUNY Purchase and Plaintiff. New York law

recognizes that an “implied contract” exists “between [a college or university] and its students,”

which requires the “academic institution [to] act in good faith in its dealing with its students.”

Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991) (quoting Olsson v. Bd. of Higher Educ., 49

N.Y.2d 408, 414 (N.Y. 1980)). The Second Circuit has observed that such an implied contract

may support a due process claim. See Branum, 927 F.2d at 705 (“Such an implied contract,

recognized under state law, provides the basis for a property interest that would be entitled to

constitutional protection.”). “[A] Rule 12(b)(6) dismissal of a student’s claim is improper where

the contention is that the institution’s action was ‘motivated by bad faith or ill will unrelated to

academic performance.’” Id. (quoting Clements v. County of Nassau, 835 F.2d 1000, 1004 (2d

Cir. 1987).

Here, however, the Amended Complaint is devoid of any allegations that Defendants

acted in bad faith or with ill will, nor does it contain any allegations from which that inference

may be fairly drawn. Accordingly, Plaintiff has not alleged sufficient facts to support a

constitutionally protected property interest. See Md. Ashik Islam v. Melisa, No. 18-CV-

2535(KAM)(LB), 2020 WL 1452463, at *12 n.8 (E.D.N.Y. Mar. 24, 2020) (rejecting due

process claim based on an alleged property interest where allegations “raise no inference that

‘bad faith or ill will’ played a role in [defendant]’s dealings with [plaintiff].”); cf. Oladokun v.

Ryan, No. 06 CV 2330 (KMW), 2007 WL 3125317, at *4 (S.D.N.Y. Oct. 23, 2007) (concluding

plaintiff alleged a deprivation of a property interest under New York law because the allegations

“support an inference that the . . . Defendants disenrolled Plaintiff because they bore him ill will

and wanted to facilitate his deportation.”). Plaintiff’s due process claim premised on a protected

property interest is therefore dismissed without prejudice.

b. Liberty Interest

Plaintiff also contends that he has alleged a protected liberty interest. Plaintiff relies on

the Second Circuit’s opinion in Albert v. Carovano, which considered due process claims

stemming from the disciplinary suspensions of twelve students at a private college. Albert v.

Carovano, 824 F.2d 1333, 1339 (2d Cir.), modified on reh’g, 839 F.2d 871 (2d Cir. 1987), on

reh’g en banc, 851 F.2d 561 (2d Cir. 1988). The Second Circuit noted that, “at a minimum, the

students’ protected liberty interest is at stake because of the ‘stigma’ attached to suspension from

college for disciplinary reasons.” Id. at 1339 n.6; see also Goss v. Lopez, 419 U.S. 565, 574-76

(1975) (concluding that student’s 10–day suspension implicated the constitutionally grounded

liberty interest in “a person’s good name, reputation, honor, or integrity.”).

But Albert and Goss are distinguishable because they involved disciplinary suspensions;

in the present case there have been no suspensions or expulsions. Furthermore, the only other

case Plaintiff cites on this point actually undercuts Plaintiff’s position: the district court in

Haidak v. Univ. of Massachusetts at Amherst explicitly stated that “a no-contact order does not

implicate a substantial property or liberty interest such as education or reputation.” 299 F. Supp.

3d 242, 265 (D. Mass. 2018), aff’d in part, vacated in part, remanded sub nom. Haidak v. Univ.

of Massachusetts-Amherst, 933 F.3d 56 (1st Cir. 2019). Because a student’s liberty interests are

implicated by a no contact order to a significantly lesser degree than by a suspension, the Court

declines to extend the concept of a protected liberty interest to the circumstances here. Plaintiff’s

due process claim based on a protected liberty interest is therefore dismissed with prejudice.

Because Plaintiff has failed to allege a constitutionally protected property or liberty

interest, the Court need not proceed to analyze whether Plaintiff has adequately alleged that

SUNY Purchase provided Plaintiff with constitutionally insufficient process.1

c. Immunity Under the Eleventh Amendment

Defendants argue that the Eleventh Amendment bars Plaintiff’s § 1983 claim against

Defendants in their official capacities. The Court agrees.

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. “Although the Amendment, by its terms, bars only federal suits against

state governments by citizens of another state or foreign country, it has been interpreted also to

bar federal suits against state governments by a state’s own citizens . . . .” Woods v. Rondout

Valley Cent. Sch. Dist., 466 F.3d 232, 236 (2d Cir.2006) (citing Hans v. Louisiana, 134 U.S. 1,

15 (1890)).

A claim that is barred by a state’s sovereign immunity must be dismissed pursuant to the

Eleventh Amendment for lack of subject matter jurisdiction. See Va. Office for Prot. & Advocacy

v. Stewart, 563 U.S. 247, 252, 131 S.Ct. 1632, 1637, 179 L.Ed.2d 675 (2011) (noting that “the

Eleventh Amendment . . . confirm[s] the structural understanding that States entered the Union

with their sovereign immunity intact, unlimited by Article Ill’s jurisdictional grant”); Seminole

Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996) (“For over a

1 Defendants also argue that they are entitled to qualified immunity. Because the Court has dismissed

Plaintiff’s constitutional claims, it declines to address these arguments at this time. Moreover, the Court notes the

qualified immunity defense is “typically addressed at the summary judgment stage,” because it “usually depends on

the facts of the case, . . . making dismissal at the pleading stage inappropriate.” Woods v. Goord, No. 01-CV-3255,

2002 WL 731691, at *10 (S.D.N.Y. Apr. 23, 2002) (citing King v. Simpson, 189 F.3d 284, 289 (2d Cir. 1999)).

century [the Supreme Court has] reaffirmed that federal jurisdiction over suits against

unconsenting States ‘was not contemplated by the Constitution when establishing the judicial

power of the United States.’ “ (quoting Hans v. Louisiana, 134 U.S. 1, 15 (1890)).

“The Eleventh Amendment bars [§ 1983] action[s] against a state or its agencies absent a

waiver of immunity or congressional legislation specifically overriding immunity.” Mamot v.

Bd. of Regents, 367 F. App'x 191, 192 (2d Cir. 2010). It is well-established that New York has

not consented to § 1983 suits in federal court, and that § 1983 was not intended to override a

state’s sovereign immunity. Id. Therefore, under the Eleventh Amendment, SUNY employees

sued in their official capacities are immune from suit for § 1983 claims. See Morales v. New

York, 22 F. Supp. 3d 256, 272 (S.D.N.Y. 2014) (finding § 1983 claims against SUNY employees

in their official capacities barred by Eleventh Amendment immunity); Buckley v. New York, 959

F. Supp. 2d 282, 297 (E.D.N.Y. 2013) (same); Garcia v. State University of New York Health

Sciences Center at Brooklyn, 2000 WL 1469551, at *4 (E.D.N.Y. Aug. 21, 2000) (same).2

In a limited exception to their Eleventh Amendment immunity, state employees can be

sued in their official capacities in federal court where the “complaint alleges an ongoing

violation of federal law and seeks relief properly characterized as prospective.” See Office for

Prot. & Advocacy v. Stewart, 563 U.S. 247, 254–56 (2011) (quoting Verizon Md. Inc. v. Public

Serv. Comm’n of Md., 535 U.S. 635, 645 (2002) and citing Ex parte Young, 209 U.S. 123

(1908)); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 66 (1989); Mary Jo C. v. N.Y. State &

2 See also Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) (suits against state

employees in their official capacities are barred by the Eleventh Amendment); Pennhurst State School & Hosp. v.

Halderman, 465 U.S. 89, 120–21, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984) (Eleventh Amendment bars federal suits

against state officials for violations of state law); Dube v. State University of New York, 900 F.2d 587, 594–95 (2d

Cir. 1990) (Eleventh Amendment bars § 1983 suit against SUNY, which “is an integral part of the government of

the State and when it is sued the State is the real party.”); accord Ward v. Thomas, 207 F.3d 114, 119 (2d Cir. 2000)

(rejecting federal suit against state officials under Eleventh Amendment); Catone v. Spielmann, 149 F.3d 156, 160 n.

1 (2d Cir. 1998) (citing Pennhurst regarding Eleventh Amendment bar on state law claims).

Local Ret. Sys., 707 F.3d 144, 152 (2d Cir. 2013), cert. dismissed, 569 U.S. 1040 (2013); KM

Enterprises, Inc. v. McDonald, 518 Fed.Appx. 12, 13 (2d Cir. 2013). However, it does not

appear that Plaintiff has pleaded any ongoing constitutional violation. This limited exception to

state employees’ Eleventh Amendment immunity is therefore inapplicable, and the § 1983

claims against Defendants in their official capacity are therefore barred.

II. ADA Claims

In his second claim for relief, Plaintiff alleges that Defendants have violated Title II of

the ADA, 42 U.S.C. § 12132. (Am. Compl. ¶ 53.) Title II provides in relevant part that: “[N]o

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; Tennessee v. Lane,

541 U.S. 509, 513 (2004). To establish a violation of Title II, plaintiff must show that: (1) he or

she is a qualified individual with a disability; (2) the defendants are subject to the ADA; and (3)

the plaintiff 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

plaintiff’s disabilities.” Shomo v. City of New York, 579 F.3d 176, 185 (2d Cir. 2009).

For the purposes of this motion, Defendants only challenge the third element of

Plaintiff’s ADA claim: that any denials of access have been “by reason of [Plaintiff’s]

disability.” Shomo, 579 F.3d at 185 (emphasis added). “A qualified individual can base a

discrimination claim on any of three available theories: (1) intentional discrimination (disparate

treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.” Fulton v.

Goord, 591 F.3d 37, 43 (2d Cir. 2009). Defendants note that (1) Plaintiff has not even alleged

that any Defendants were aware of his disability; and (2) no allegations support the belief that

Defendants acted with Plaintiff’s alleged disability in mind. The Court agrees; Plaintiff’s

allegation that he “believed that because of his disability, he was being discriminated against,”

(Am. Compl. ¶ 32.), without more, does not suffice to allege intentional discrimination or

disparate treatment. Instead, Plaintiff premises his claims on the theories of disparate impact and

failure to make reasonable accommodation.

a. Disparate Impact

To establish a prima facie case under a disparate impact theory, 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) (quoting Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 574–75 (2d Cir. 2003)

(emphasis omitted)). While Defendants cite Mount Vernon School District for the proposition

that “plaintiffs are ordinarily required to include statistical evidence to show disparity in outcome

between groups,” 837 F.3d 152, 158 (quoting Tsombanidis, 352 F.3d at 575), this quote is taken

out of context. Both Mount Vernon School District and Tsombanidis addressed the sufficiency

of claims at the summary judgment stage, not at the pleadings stage. “Nevertheless, it is

reasonable to expect that plaintiffs pleading disparate impact claims must include at least one

allegation that raises an inference of such disparity—one sufficient to put the defendants on

notice regarding the basis for plaintiffs’ belief in a disparate effect. L.C. v. LeFrak Org., Inc.,

987 F. Supp. 2d 391, 402 (S.D.N.Y. 2013).

Here, Plaintiff has identified the issuance of no contact orders as an outwardly neutral

practice, satisfying the first element. As to the allegations of disparity, Plaintiff argues that even

if the process for issuing no contact orders were equally applied to nondisabled students, due to

Plaintiff’s disability, the process caused an adverse impact on Plaintiff and his ability to benefit

from SUNY Purchase’s services. (See Plaintiff’s Memorandum of Law in Opposition (“Pl.

Opp.”), ECF No. 33, at 11; Am Compl. ¶¶ 44–52.) Although the Amended Complaint only

mentions Plaintiff as an affected student, it is a reasonable inference that students with his

particular type of disability were adversely affected by SUNY Purchase’s practice of issuing no

contact orders. (See Am Compl. ¶¶ 44–52.) The Court finds that at this early stage, this claim is

sufficiently pleaded.

b. Failure to Accommodate

“The ADA mandates reasonable accommodation of people with disabilities in order to

put them on an even playing field with the non-disabled.” Felix v. New York City Transit Auth.,

324 F.3d 102, 107 (2d Cir. 2003). A reasonable accommodation “gives the otherwise qualified

plaintiff with disabilities ‘meaningful access’ to the program or services sought.” Henrietta D. v.

Bloomberg, 331 F.3d 261, 282 (2d Cir. 2003) (quoting Alexander v. Choate, 469 U.S. 287, 301,

105 S.Ct. 712, 83 L.Ed.2d 661 (1985). “[T]he question of what constitutes a reasonable

accommodation under the ADA ‘requires a fact-specific, individualized analysis of the disabled

individual’s circumstances and the accommodations that might allow him to meet the program’s

standards.’” Mary Jo C. v. New York State & Local Ret. Sys., 707 F.3d 144, 165 (2d Cir. 2013)

(quoting McGary v. City of Portland, 386 F.3d 1259, 1270 (9th Cir. 2004)). “Quite simply, the

demonstration that a disability makes it difficult for a plaintiff to access benefits that are

available to both those with and without disabilities is sufficient to sustain a claim for a

reasonable accommodation.” Henrietta, 331 F.3d at 277.

The Amended Complaint specifically alleges that Defendants “did not take into account

[Plaintiff’s] disability when issuing the no contact orders, nor did they consider whether the no

contact orders were being requested in an effort to tease and bully [Plaintiff] because of his

disability.” (Am. Comp. ¶ 51.) Plaintiff further alleges that Defendants “took no steps to

accommodate [Plaintiff’s] disability when issuing the no contact orders.” (Id. ¶ 52.) Taken

together with the specific allegations regarding how Plaintiff’s disability makes it difficult for

him to avail himself of the facilities at SUNY Purchase (¶¶ 43–50), the Court finds these

allegations are sufficient to sustain a claim for a reasonable accommodation. See Henrietta, 331

F.3d at 277; see also Schine by Short v. New York State Office for People with Developmental

Disabilities, No. 15CV5870SJFSIL, 2017 WL 9485650, at *8 (E.D.N.Y. Jan. 5, 2017), report

and recommendation adopted, No. 15CV5870SJFSIL, 2017 WL 1232530 (E.D.N.Y. Mar. 31,

2017) (finding plaintiff clearly alleged that “due to the contours of his disability he is not

receiving meaningful access to his benefits as would other disabled individuals without his

specific set of limitations.”).

c. Monetary Damages and Sovereign Immunity Regarding ADA Claims

As discussed above, it is well-established that § 1983 was not intended to abrogate a

state’s sovereign immunity. Mamot, 367 F. App'x at 192. The question the Court must now

address is whether the state is also immune from suit regarding ADA Title II violations.

Plaintiff seeks damages in excess of $100,000. (Am. Compl. ¶ 55.) For some time in

this Circuit, a plaintiff seeking monetary damages against a state university to remedy an alleged

Title II violation was required to show “not only that there was a violation, but that such

violation was motivated by either discriminatory animus or ill will stemming from plaintiff’s

disability.” Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 89 (2d Cir. 2004) (citing Garcia

v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 112 (2d Cir. 2001)). The rationale for this

rule was that Title II’s monetary claims against the states needed to “be limited so as to comport

with Congress’s § 5 authority.” Garcia, 280 F.3d at 111. Under § 5 of the Fourteenth

Amendment (“Section 5”), Congress can abrogate states’ sovereign immunity to enforce the

substantive rights guaranteed by the Fourteenth Amendment. See Lane, 541 U.S. at 518.

Although “Congress has unambiguously purported to abrogate states' immunity from Title II

claims,” Bolmer v. Oliveira, 594 F.3d 134, 146 (2d Cir. 2010), the Second Circuit found in

Garcia that “Congress had exceeded its [Section 5] authority in enacting Title II, but that Title II

suits could be limited to circumstances in which it had not.” Id.

In the years following Powell and Garcia, however, the Supreme Court’s opinion in

United States v. Georgia, 546 U.S. 151 (2006), “has call[ed] Garcia’s validity into question” and

suggested that ADA claims for damages may proceed under expanded circumstances. Dean v.

Univ. at Buffalo Sch. of Med. & Biomedical Scis., 804 F.3d 178, 194 (2d Cir. 2015). In light of

this development, the Second Circuit in Dean left open the question of whether Congress validly

abrogated state sovereign immunity under Title II of the ADA. Id. at 193–95 (“We express no

position as to the question of whether Congress has validly abrogated sovereign immunity in the

context of discrimination in access to public education on the basis of disability.”). Rather, the

Second Circuit instructed that district courts must apply the tripartite test articulated in Georgia.

Id. at 195. Thus, the Court is tasked with determining:

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. (quoting Georgia, 546 U.S. at 159).

i. Georgia Analysis

First, as stated above, the Court finds that SUNY Purchase’s alleged practice of issuing

no contact orders without consideration of students’ disabilities violated Title II.

Second, the Court must consider the extent to which such conduct also violated the

Fourteenth Amendment. As discussed above, the Court finds that Plaintiff has failed to state a

due process violation.

Third, because the alleged conduct violated Title II but did not violate the Fourteenth

Amendment, the Court must assess whether Congress’s purported abrogation of sovereign

immunity is nevertheless a valid exercise of Congressional power under Section 5 in the context

of access of the disabled to public education. See Goonewardena v. New York, 475 F. Supp. 2d

310, 326 (S.D.N.Y. 2007). An exercise of Section 5 power is valid where there is “a congruence

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

that end.” City of Boerne v. Flores, 521 U.S. 507, 508 (1997). In applying the “congruence and

proportionality” inquiry, the Eleventh, Fourth, First and Third Circuits “have all concluded that

Title II is a congruent and proportional response to the danger of unconstitutional discrimination

in public education based on disability and that abrogation is appropriate.” Goonewardena, 475

F. Supp. 2d at 326.3

This Court is persuaded by the reasoning in those opinions: “By prohibiting insubstantial

reasons for denying accommodation to the disabled, Title II prevents invidious discrimination

and unconstitutional treatment in the actions of state officials exercising discretionary powers

over disabled students.” Ass’n for Disabled Americans, Inc. v. Fla. Int’l Univ., 405 F.3d 954,

959 (11th Cir. 2005) (citing Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 736, 123 S.Ct.

1972, 1982, 155 L.Ed.2d 953 (2003)). The Court agrees that “Title II’s prophylactic measures

3 See Ass’n for Disabled Americans, Inc. v. Fla. Int’l Univ., 405 F.3d 954, 959 (11th Cir. 2005);

Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 490 (4th Cir. 2005); Toledo v.

Sanchez, 454 F.3d 24, 40 (1st Cir. 2006); Bowers v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524, 555-56 (3d Cir.

2007); see also Phiffer v. Columbia River Corr. Inst., 384 F.3d 791 (9th Cir.2004) (upholding Title II’s abrogation

in all applications), cert. denied, 546 U.S. 1137, 126 S.Ct. 1140, 163 L.Ed.2d 999 (2006).

are justified by the persistent pattern of exclusion and irrational treatment of disabled students in

public education, coupled with the gravity of the harm worked by such discrimination.” Toledo

v. Sanchez, 454 F.3d 24, 40 (1st Cir. 2006). Accordingly, the Court finds that “abrogation under

Title II is a congruent and proportional response to the history of discrimination against the

disabled in access to education.” Goonewardena, 475 F. Supp. 2d at 326. Plaintiff’s ADA

claims for monetary damages shall therefore not be dismissed on the ground of sovereign

immunity.

d. Claims Against Defendants in Their Individual Capacities

The Court notes that Title II of the ADA does not “provid[e] for individual capacity suits

against state officials.” Garcia v. Health Science Center of Brooklyn, 280 F.3d 98, 107 (2d Cir.

2001); see Dean, 804 F.3d at 185 n.2; Morales, 22 F. Supp. 3d at 271; Keitt v. New York City,

882 F. Supp. 2d 412, 426 (S.D.N.Y. 2011). Accordingly, to the extent that Plaintiff has sued

Defendants in their individual capacities under the ADA, any such claim must be dismissed with

prejudice. Plaintiff’s ADA claim may proceed against Defendants in their official capacities.

See Goonewardena, 475 F. Supp. 2d at 327 (holding sovereign immunity “does not shield the

individual defendants in their official capacities” from ADA claims).

III. Claim for Injunctive Relief Against Defendant Stammer

Defendants argue that any claims against Defendant Stammer cannot proceed because he

does not have the power or authority to implement the relief requested. See Shipman v. New

York State Office of Persons with Developmental Disabilities, No. 11 CIV. 2780 GBD FM, 2012

WL 1034903, at *3 (S.D.N.Y. Mar. 26, 2012) (granting 12(b)(6) motion to dismiss because, inter

alia, “plaintiff cannot proceed on his request for reinstatement because he has failed to allege

that any individual defendant has the authority to reinstate plaintiff.”) (citing Perciballi v. New

York, No. 09 Civ. 6933(WHP), 2010 WL 3958731, at *4 (S.D.N.Y. Sept. 29, 2010)). Here,

Plaintiff does not specifically allege that Defendant Stammer has the authority to effectuate any

of the injunctive relief requested. (See Am. Compl. ¶ 5.) Moreover, Plaintiff has not contested

this challenge in his briefing.4 Accordingly, Plaintiff’s claim for injunctive relief against

Defendant Stammer is dismissed with prejudice.

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and

DENIED in part. Because Plaintiff has failed to allege that Defendants acted in bad faith, with

discriminatory animus, or ill will, Plaintiff’s due process claims based on a protected property

interest are dismissed without prejudice. The following claims are dismissed with prejudice:

• Plaintiff’s due process claims based on a protected liberty interest;

• Plaintiff’s due process claims against Defendants in their official capacities;

• Plaintiff’s ADA claims against Defendants in their individual capacities; and

• Plaintiff’s claim for injunctive relief against Defendant Stammer.

The following claims remain:

• Plaintiff’s ADA claim for monetary relief against Defendant Stammer in his official

capacity; and

• Plaintiff’s ADA claims for monetary and equitable relief against Defendants Bice

and Balascio in their official capacities.

4 It is well-settled that the failure to oppose an argument raised in a motion to dismiss is deemed a

concession of the argument and abandonment of the claims. See, e.g., Wilkov v. Ameriprise Fin. Servs., Inc.,

753 F. App’x 44 (2d Cir. 2018) (“We affirm the District Court’s dismissal of those claims on the ground that

they were ‘abandoned’ by Wilkov when she failed to oppose them in her opposition to Ameriprise’s motion to

dismiss.”); Black Lives Matter v. Town of Clarkstown, 354 F. Supp. 3d 313 (S.D.N.Y. 2018) (“The failure to

oppose a motion to dismiss a claim is deemed abandonment of the claim.”).

Plaintiff may file a Second Amended Complaint consistent with this Opinion on or before

November 16, 2020, should he choose to reassert any claim dismissed without prejudice. If

Plaintiff elects to file a Second Amended Complaint, Defendants shall have thirty days from the

date of Plaintiffs filing to respond.

If Plaintiff does not file a Second Amended Complaint by November 16, 2020, those

claims dismissed without prejudice by this order will be deemed dismissed with prejudice. In

that case, Defendants are directed to file an answer as to the surviving claims of the Amended

Complaint on or before December 16, 2020. The parties are directed to confer, complete, and

submit to the Court the attached case management plan on or before January 6, 2021.

Accordingly, the Clerk of the Court is respectfully directed to terminate Defendants’

Motion to Dismiss at ECF No. 29.

Dated: September 16, 2020 SO ORDERED:

White Plains, New York

NELSON S. ROMAN

United States District Judge

20

UNITED STATES DISTRICT COURT Rev. May 2014

SOUTHERN DISTRICT OF NEW YORK

-------------------------------------------------------------x

CIVIL CASE DISCOVERY PLAN

Plaintiff(s), AND SCHEDULING ORDER

- against -

Defendant(s). CV (NSR)

-------------------------------------------------------------x

This Civil Case Discovery Plan and Scheduling Order is adopted, after consultation with

counsel, pursuant to Fed. R. Civ. P. 16 and 26(f):

1. All parties [consent] [do not consent] to conducting all further proceedings before

a Magistrate Judge, including motions and trial, pursuant to 28 U.S.C. § 636(c).

The parties are free to withhold consent without adverse substantive consequences.

(If all parties consent, the remaining paragraphs of this form need not be

completed.)

2. This case [is] [is not] to be tried to a jury.

3. Joinder of additional parties must be accomplished by ______________________.

4. Amended pleadings may be filed until _____________________. Any party

seeking to amend its pleadings after that date must seek leave of court via motion.

5. Interrogatories shall be served no later than ___________________, and responses

thereto shall be served within thirty (30) days thereafter. The provisions of Local

Civil Rule 33.3 [shall] [shall not] apply to this case.

6. First request for production of documents, if any, shall be served no later than

____________________.

7. Non-expert depositions shall be completed by ____________________________.

a. Unless counsel agree otherwise or the Court so orders, depositions shall not

be held until all parties have responded to any first requests for production

of documents.

b. Depositions shall proceed concurrently.

c. Whenever possible, unless counsel agree otherwise or the Court so orders,

non-party depositions shall follow party depositions.

8. Any further interrogatories, including expert interrogatories, shall be served no

later than _______________________.

9. Requests to Admit, if any, shall be served no later than

______________________.

10. Expert reports shall be served no later than ______________________.

11. Rebuttal expert reports shall be served no later than ______________________.

12. Expert depositions shall be completed by ______________________.

13. Additional provisions agreed upon by counsel are attached hereto and made a part

hereof.

14. ALL DISCOVERY SHALL BE COMPLETED BY ______________________.

15. Any motions shall be filed in accordance with the Court’s Individual Practices.

16. This Civil Case Discovery Plan and Scheduling Order may not be changed without

leave of Court (or the assigned Magistrate Judge acting under a specific order of

reference).

17. The Magistrate Judge assigned to this case is the Hon. .

18. If, after entry of this Order, the parties consent to trial before a Magistrate Judge,

the Magistrate Judge will schedule a date certain for trial and will, if necessary,

amend this Order consistent therewith.

19. The next case management conference is scheduled for _____________________,

at ____________. (The Court will set this date at the initial conference.)

SO ORDERED.

Dated: White Plains, New York

_______________________

Nelson S. Román, U.S. District Judge