Fulton v. Goord, No. 06-5023 (2d Cir. 2009)

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06-5023-cv Fulton v. Goord 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2008 (Argued: April 7, 2009 Decided: December 22, 2009) Docket No. 06-5023-cv -----------------------------------------------------x EUNICE FULTON, Plaintiff-Appellant, -- v. -COMMISSIONER GLEN S. GOORD, Department of Correctional Services, THERESA K. DAVID, Director of Classification & Movement, Department of Correctional Services; STATE OF NEW YORK, Defendants-Appellees. -----------------------------------------------------x B e f o r e : JACOBS, Chief Judge, WALKER, and LEVAL, Circuit Judges. Eunice Fulton appeals the dismissal of her complaint by the 28 United States District Court for the Northern District of New 29 York (Gary L. Sharpe, Judge) for lack of standing and for failure 30 to state a claim upon which relief can be granted. 31 Fulton has standing to contend that the defendants engaged in 32 disability-based discrimination in violation of the Americans 33 with Disabilities Act and the Rehabilitation Act. 34 conclude that the district court s analysis of the adequacy of 35 Fulton s pleadings did not reflect the full scope of her claims 36 and must be reconsidered. -1- We hold that We also 1 VACATED and REMANDED. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 SAMUEL J. LIEBERMAN, Bernstein Litowitz Berger & Grossman LLP, New York, NY, (Douglas F. Curtis, Shauna K. Friedman, Wilmer Culter Pickering Hale and Dorr LLP, New York, NY, on the brief), for PlaintiffAppellant. KATE H. NEPVEU, Assistant Solicitor General, (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Andrew M. Cuomo, Attorney General of the State of New York, Albany, NY, for Defendants-Appellees. JOHN M. WALKER, JR., Circuit Judge: Eunice Fulton suffers from multiple sclerosis. Her illness 23 prevented her from visiting her husband in an upstate New York 24 prison, roughly 300 miles from her New York City home, as part of 25 a state-run Inmate Visitor Program (IVP). 26 Fulton sued officials of the New York State Department of 27 Correctional Services (DOCS), pursuant to the Americans with 28 Disabilities Act (ADA), 42 U.S.C. § 12132, and the Rehabilitation 29 Act, 29 U.S.C. § 794(a), seeking relief for the defendants 30 asserted failure to accommodate her disability in administering 31 the IVP. 32 District of New York (Gary L. Sharpe, Judge) dismissed Fulton s 33 suit for both lack of standing and failure to state a claim. Proceeding pro se, The United States District Court for the Northern -2- The 1 district court, however, was misguided in viewing Fulton s suit 2 as consisting of claims solely based on the defendants refusal 3 to transfer her husband to a prison closer to New York City, when 4 in fact the basis of Fulton s claim is broader: 5 failure even to consider whether her disability could be 6 reasonably accommodated. the defendants 7 8 BACKGROUND 9 Multiple sclerosis (MS) is a disease in which the body s 10 immune system attacks the central nervous system, repeatedly 11 injuring the nerves and ultimately causing them to degenerate. 12 MS has no cure and can often lead to partial or complete 13 paralysis, but medication can slow the disease s progression. 14 In 2005, twelve years after she was diagnosed with MS, 15 Fulton was paralyzed in the lower left side of her body. She 16 required a wheelchair to move, and a health care professional to 17 assist her with her daily needs. 18 own for short periods, her MS prevented her from traveling long 19 distances. Although she could stand on her 20 In April 2005, Fulton s husband was convicted of two crimes 21 and sentenced in New York state court to a prison term of two to 22 four years. 23 processing facility, he asked to be housed in a prison near his 24 wife because of her disability. In June 2005, upon his admission to a DOCS inmate DOCS denied this request and, in -3- 1 July 2005, transferred Fulton s husband to the Altona 2 Correctional Facility, some 300 miles from New York City in 3 DOCS s Clinton County Hub Area. 4 to be placed in a facility closer to New York City, DOCS told him 5 that, under DOCS policy, he would have to spend two years in the 6 Clinton Hub before he would be eligible for a transfer. 7 IVP permitted prisoners to be visited in prison by friends and 8 relatives, DOCS Directive No. 4403 § I (1993), but Fulton s MS 9 made it impossible for her to visit her husband at the Altona 10 11 Soon thereafter, when he asked The DOCS prison. In October 2005, Fulton wrote to defendant Glen Goord, DOCS 12 Commissioner, told him of her disability, and, according to the 13 complaint, requested that reasonable accommodations be made to 14 enable her to visit with her husband. 15 that consideration be given to transfer [sic] her husband to 16 somewhere closer to her. 17 Fulton and her husband each also wrote to defendant Theresa 18 David, DOCS Director of Classification and Movement, to 19 request[] reasonable accommodation for Fulton to participate 20 in the visiting program. 21 (Compl. ¶ 15.) (Compl. ¶ 15.) She asked Around that time, (Compl. ¶ 16.) In November 2005, Fulton received a letter from David 22 stating that, in light of the DOCS two-year transfer policy, 23 Fulton s husband would need to stay in the Clinton Hub until at 24 least July 2007. The letter did not mention Fulton s disability -4- 1 or consideration of any other accommodation. 2 In December 2005, Fulton filed this lawsuit pro se against 3 Goord, David, and the State of New York. Her complaint sought an 4 injunction requiring the defendants to provide reasonable 5 accommodation [for her] to participate in the [DOCS] visiting 6 program and $75,000 in damages. (Compl. at 8.) 7 The district court dismissed Fulton s complaint. Fulton v. 8 Goord, No. 1:05-CV-1622 (GLS/DRH), 2006 WL 2850601, at *1 9 (N.D.N.Y. Oct. 2, 2006). The district court held that Fulton 10 lacked standing, because she had no protected liberty interest 11 in visiting her inmate husband and therefore her inability to 12 take advantage of a DOCS visitation program does not constitute a 13 redressable injury. 14 that, in any event, Fulton had failed to state a claim. 15 *3. 16 Id. at *2. This appeal followed. The district court concluded Id. at Because her husband has been released 17 from prison, Fulton, now represented by counsel, seeks only 18 monetary relief. 19 proceed and has properly stated a claim. 20 has standing, and we remand for the district court to reconsider 21 whether she has stated a claim. 22 amend her complaint, to which the defendants consent. She argues that she both has standing to We also grant Fulton leave to 23 24 We agree that Fulton DISCUSSION -5- 1 2 I. Fulton s Standing We review questions of standing de novo. Comer v. Cisneros, 3 37 F.3d 775, 787 (2d Cir. 1994). 4 on the basis of the pleadings, we accept as true all material 5 allegations of the complaint, and must construe the complaint in 6 favor of the complaining party. 7 Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (internal 8 quotation marks omitted). 9 Because standing is challenged W.R. Huff Asset Mgmt. Co. v. The irreducible constitutional minimum of standing, rooted 10 in Article III s case-or-controversy requirement, consists of 11 three elements: (1) an injury in fact, by which is meant an 12 invasion of a legally protected interest ; (2) a causal 13 connection between the injury and the conduct complained of ; and 14 (3) a likelihood that the injury will be redressed by a 15 favorable decision. 16 555, 560 (1992) (internal quotation marks omitted). 17 protected interest may exist solely by virtue of statutes 18 creating legal rights, the invasion of which creates standing. 19 Warth v. Seldin, 422 U.S. 490, 500 (1975) (internal quotation 20 marks omitted). 21 common-law, statutory or constitutional claims that a party 22 presents. 23 Fund, 500 U.S. 72, 77 (1991). Lujan v. Defenders of Wildlife, 504 U.S. The legally Accordingly, standing is gauged by the specific Int l Primate Prot. League v. Adm rs of Tulane Educ. -6- Fulton sued under the ADA and the Rehabilitation Act.1 1 2 3 4 5 6 7 8 9 The ADA states, in relevant part, 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. Similarly, the Rehabilitation Act states: 10 11 12 13 14 15 16 17 29 U.S.C. § 794(a). 18 rights . . . to any person alleging discrimination on the basis 19 of disability in violation of section 12132, 42 U.S.C. § 12133, 20 and the Rehabilitation Act does the same for any person 21 aggrieved by disability-based discrimination, 29 U.S.C. 22 § 794a(a)(2). 23 have held that ADA and Rehabilitation Act actions are not subject 24 to any of the prudential limitations on standing that apply in 25 other contexts. 26 White Plains, 117 F.3d 37, 47 (2d Cir. 1997) (concluding that 1 2 3 4 5 6 7 8 9 No 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 assistance . . . . The ADA provides remedies, procedures, and Because of the breadth of these provisions, we See Innovative Health Sys., Inc. v. City of 1 We note that Fulton s complaint raised only an ADA claim, and made no mention of the Rehabilitation Act. The district court assumed that Fulton intended to bring a Rehabilitation Act claim as well. We think this was a fair reading of Fulton s pro se complaint, because such complaints are to be construed liberally, Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001), and the same factual allegations generally will support both ADA and Rehabilitation Act claims, see Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003) (finding only subtle distinctions between the two acts). The differences between the two acts are irrelevant to this appeal. -7- 1 standing under these statutes should be defined as broadly as 2 constitutionally permitted), overruled on other grounds by Zervos 3 v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001). 4 ADA and Rehabilitation Act generously confer the right to be free 5 from disability-based discrimination by public entities and 6 federally funded programs and, in so doing, confer standing for 7 persons claiming such discrimination to enforce that right. 8 Fulton asserts that she was discriminatorily denied a reasonable 9 accommodation for her disability in violation of her rights under 10 the two acts. 11 The sufficient to form the basis for Article III standing. 12 This is plainly an injury in fact that is In arguing otherwise, the defendants, like the district 13 court, misconceive Fulton s claim. The defendants argue that 14 Fulton has no legally cognizable interest in having her 15 incarcerated spouse transferred to a facility she can more 16 readily visit. 17 such an argument, Fulton s complaint is not so narrow: 18 essence of Fulton s challenge is the defendants refusal, in 19 light of her disability, to provide her with, or even to 20 consider, a reasonable accommodation to participate in the 21 visiting program. 22 house her husband in Altona is only one aspect of this larger 23 issue and not necessarily dispositive, at least at this stage of 24 the proceedings. (Appellee s Br. at 8.) (Compl. ¶ 16.) Whatever the merit of The The defendants decision to Fulton s complaint rests on her right to be -8- 1 free from disability-based discrimination, and the defendants 2 fail to explain why a violation of this right, as distinct from 3 any rights (if they exist) to inmate visitation or transfer, does 4 not create an injury in fact. 5 The defendants effectively concede that if Fulton could show 6 an injury in fact, she could demonstrate the other two 7 requirements of standing: 8 and the defendants challenged conduct, and a likelihood of 9 redressability. a causal connection between her injury Indeed, the complaint is unequivocal that the 10 defendants alleged discrimination caused her claimed injury, and 11 that this litigation could remedy the harm. 12 Fulton has standing to pursue her ADA and Rehabilitation Act 13 claims, and that the district court erred by concluding 14 otherwise. Thus, we hold that 15 16 17 II. The Sufficiency of Fulton s Pleadings In addition to dismissing Fulton s suit on standing grounds, 18 the district court dismissed the complaint under Fed. R. Civ. P. 19 12(b)(6) for failure to state a claim. 20 de novo, accept[ing] all factual allegations in the complaint as 21 true and draw[ing] inferences from those allegations in the light 22 most favorable to the plaintiff. 23 Educ., 131 F.3d 326, 329 (2d Cir. 1997). 24 pro se complaints liberally, to raise the strongest arguments -9- We review this dismissal Jaghory v. N.Y. State Dep t of And we must construe 1 that they suggest. 2 marks omitted). 3 Green, 260 F.3d at 83 (internal quotation To state a prima facie claim under either the ADA or the 4 Rehabilitation Act, which are identical for our purposes, Fulton 5 must allege: 6 disability; (2) that [s]he was excluded from participation in a 7 public entity s services, programs or activities or was otherwise 8 discriminated against by a public entity; and (3) that such 9 exclusion or discrimination was due to [her] disability. (1) that [s]he is a qualified individual with a 10 Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003). 11 qualified individual is 12 13 14 15 16 17 18 19 A an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity. 20 42 U.S.C. § 12131(2). 21 discrimination claim on any of three available theories: 22 intentional discrimination (disparate treatment); (2) disparate 23 impact; and (3) failure to make a reasonable accommodation. 24 Tsombanidis v. West Haven Fire Dep t, 352 F.3d 565, 573 (2d Cir. 25 2003). 26 A qualified individual can base a (1) The district court found Fulton s complaint to be deficient 27 in two respects. First, the district court concluded that Fulton 28 was not a qualified individual, because [t]he visitation program -10- 1 applies to DOCS inmates, not members of the public or spouses. 2 Fulton, 2006 WL 2850601, at *3. 3 that, even if Fulton could establish that she was a qualified 4 individual, there are no facts alleged to suggest that the 5 defendants transfer policy is discriminatorily based on her 6 disability. 7 Id. Second, the district court held Neither rationale is convincing. With respect to whether Fulton is a qualified individual for 8 the DOCS IVP, we find that she meets the essential eligibility 9 requirements for the program. 42 U.S.C. § 12131(2). Nothing in 10 the IVP regulations disqualifies Fulton from visiting a DOCS 11 inmate through the program. 12 disagree with the district court s characterization of the IVP as 13 applying to inmates but not visitors. 14 the IVP regulations refer variously to a visitor s visitation 15 rights, id. § VIII.C, visiting rights, id. § VIII.F, and 16 visiting privileges, id. § IV.B.1. 17 regulations indicate that visitors and inmates separately possess 18 these rights. 19 be suspended, limited, or revoked for either a visitor . . . or 20 an inmate . . . . ). 21 See DOCS Directive No. 4403. And we In different provisions, Moreover, the IVP See id. § VIII.B ( Contact visiting privileges may Tellingly, the defendants have chosen not to defend the 22 district court s analysis of whether Fulton was a qualified 23 individual for the IVP. 24 [Fulton] sought was not access to the general visitation program, Instead, the defendants argue that what -11- 1 but the transfer of her inmate husband between DOCS facilities, 2 and that only inmates are qualified for the transfer program. 3 (Appellee s Br. at 17.) 4 this incorrectly characterizes Fulton s claim: 5 her request for her husband s transfer, Fulton sought reasonable 6 accommodations that would enable her to visit with her husband 7 through the IVP. 8 essential eligibility requirements for the IVP, 42 U.S.C. 9 § 12131(2), she is a qualified individual under the ADA and As we have already discussed, however, (Compl. ¶ 15.) In addition to Because Fulton meets the 10 Rehabilitation Act. The district court erred by concluding 11 otherwise. 12 friends and relatives conceivably could be qualified individuals 13 under the IVP, it does not follow that any accommodations found 14 to be reasonable, and thus required, for a disabled spouse, would 15 also be reasonable for a more remote disabled relative or 16 acquaintance. 17 the desirability of a particular accommodation according to the 18 consequences that the accommodation will produce. 19 Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995). 20 requires a fact-specific, case-by-case inquiry, Staron v. 21 McDonald s Corp., 51 F.3d 353, 356 (2d Cir. 1995), not only into 22 the benefits of the accommodation but into its costs as well, 23 Borkowski, 63 F.3d at 138. 24 inquiry, what is reasonable might vary among qualified We note, however, that while all of an inmate s Reasonable is a relational term: it evaluates Borkowski v. With such a context-sensitive -12- This 1 individuals; a spouse s visit may trigger a different calculus 2 than visits by others, resulting in different accommodations or 3 perhaps no accommodation at all. 4 We are also unpersuaded by the district court s rationale 5 for concluding that Fulton had not stated a claim even if she is 6 a qualified individual. 7 are no facts alleged to suggest that the defendants transfer 8 policy is discriminatorily based on [Fulton s] disability. 9 WL 2850601, at *3 (emphasis added). The district court reasoned that there 2006 But again, this reasoning 10 rests on the mischaracterization of Fulton s claims that pervades 11 the district court s analysis. 12 never addressed whether Fulton had sufficiently alleged that the 13 defendants administered the IVP in a discriminatory fashion, 14 despite this issue being at the core of her complaint. 15 district court did not appear to consider Fulton s allegation 16 that, in addition to requesting her husband s transfer, she also 17 requested reasonable accommodations.2 18 accommodation, if one existed, might have allowed Fulton to 19 participate in the IVP without her husband being permanently 1 2 3 4 5 As a result, the district court 2 The A reasonable Because Fulton contacted DOCS to request an accommodation, our focus is solely on DOCS s response. Our holding does not create any affirmative requirement for prisons to ascertain in advance the capacity and health of would-be visitors, and nothing in the IVP mandates such proactivity on the part of prison officials. -13- 1 moved closer to New York City.3 2 It is our settled practice to allow the district court to 3 address arguments in the first instance. Farricielli v. 4 Holbrook, 215 F.3d 241, 246 (2d Cir. 2000) (per curiam). 5 Accordingly, we remand the defendants motion for the district 6 court to reconsider its analysis of the adequacy of Fulton s 7 pleadings, in light of a fuller understanding of the scope of her 8 claims. 9 indeed stated a claim upon which relief can be granted, we note 10 at this point only that her allegations cover a broader base of 11 conduct than the district court appeared to realize. 12 remanding this case, we neither rule nor imply that any 13 particular accommodation to Fulton s disability is reasonable and 14 must be accorded. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 3 Without expressing a view as to whether Fulton has In Rather, the defect in the district court s For example, it is not unusual for prisoners to be shuttled to urban centers for court appearances and prosecutorial interviews, and such a visit could also serve to accommodate a disabled spouse. Fulton herself posits that her husband could perhaps have been temporarily transferred back and forth to a downstate facility accessible to her for occasional visits. (Appellant s Br. at 34.) Other prisons have made similar short-term arrangements for disabled inmates. See Settlement Agreement Between the United States of America and Johnson County, Tennessee Sheriff s Department, App. ¶ 2(b)(1) (providing for short-term transfers to and from a jail with a more accessible site of visitation ), available at http://www.usdoj.gov/crt/foia/tenjohnsonctysheriff.html; accord Settlement Agreement Between the United States of America and Harrison County Sheriff s Department, Iowa, App. ¶ 2(b)(1) (same), available at http://www.usdoj.gov/crt/foia/harrisonia.htm. Absent transporting the prisoner or the visitor, there are also now electronic means for visits, such as via a Skype -style program over the internet. See generally Skype, http://www.skype.com (offering software that enables internet video and voice conferencing). In noting that the possibility of a reasonable accommodation is not unrealistic, we express no view on the reasonableness of any potential accommodation in the instant case. The DOCS likely has other commonplace practices that Fulton might benefit from, and it is for the DOCS, in the first instance, to determine whether any of them would be a reasonable accommodation in this case. -14- 1 determination, which requires remand and reconsideration, is its 2 failure to recognize that, over and above her request for a 3 transfer of her husband to a closer facility, Fulton was asking 4 for DOCS consideration of other accommodations to determine 5 whether any might be reasonably implemented. 6 7 III. 8 9 Leave to Amend the Complaint Fulton has requested leave to amend her complaint, to bring claims against DOCS and DOCS employees in their official 10 capacities. 11 to amend pro se complaints, see Branum v. Clark, 927 F.2d 698, 12 705 (2d Cir. 1991), but may deny them when amendment would be 13 futile, Tocker v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir. 14 2006). 15 defense of Eleventh Amendment immunity may render Fulton s 16 requested amendment futile. 17 169 (1985), holds that in a suit against state officials in their 18 official capacities, monetary relief (unlike prospective 19 injunctive relief) is generally barred by the Eleventh Amendment. 20 We are normally accommodating to motions for leave Fulton now seeks only money damages, and the defendants Kentucky v. Graham, 473 U.S. 159, However, Fulton may still succeed if the defendants 21 Eleventh Amendment immunity has been abrogated or waived.4 22 question does not have an obvious or settled answer, and the 1 2 4 This There are at least colorable arguments as to why immunity might have been abrogated or waived in this particular case. -15- 1 defendants ask us to avoid deciding it. 2 consent to granting Fulton leave to amend her complaint, as long 3 as their immunity defense is preserved. 4 that she would be prejudiced by this approach, which comports 5 with our need to avoid reaching constitutional questions in 6 advance of the necessity of deciding them. 7 Cemetery Protective Ass n, 485 U.S. 439, 445 (1988). 8 result, we grant Fulton leave to amend her complaint without 9 prejudice to the defendants assertion of the Eleventh Amendment 10 Indeed, the defendants Fulton does not state Lyng v. Nw. Indian As a defense at a later point in the proceedings. 11 12 CONCLUSION 13 For the foregoing reasons, we VACATE the dismissal of 14 Fulton s complaint and REMAND for the district court to 15 reconsider the sufficiency of the pleadings. -16-

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