Fulton v. Goord

Opinion

06-5023-cv Fulton v. Goord

1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 4 August Term 2008 5 (Argued: April 7, 2009 Decided: December 22, 2009) 6 Docket No. 06-5023-cv 7 8 -----------------------------------------------------x 9 10 EUNICE FULTON, 11 12 Plaintiff-Appellant, 13 14 -- v. -- 15 16 COMMISSIONER GLEN S. GOORD, Department of 17 Correctional Services, THERESA K. DAVID, Director of 18 Classification & Movement, Department of Correctional 19 Services; STATE OF NEW YORK, 20 21 Defendants-Appellees. 22 23 -----------------------------------------------------x 24 25 B e f o r e : JACOBS, Chief Judge, WALKER, and LEVAL, Circuit 26 Judges.

27 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. We hold that 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. We also 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.

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1 VACATED and REMANDED.

2 SAMUEL J. LIEBERMAN, Bernstein 3 Litowitz Berger & Grossman 4 LLP, New York, NY, (Douglas F. 5 Curtis, Shauna K. Friedman, 6 Wilmer Culter Pickering Hale 7 and Dorr LLP, New York, NY, on 8 the brief), for Plaintiff- 9 Appellant. 10 11 KATE H. NEPVEU, Assistant 12 Solicitor General, (Barbara D. 13 Underwood, Solicitor General, 14 Andrea Oser, Deputy Solicitor 15 General, on the brief), for 16 Andrew M. Cuomo, Attorney 17 General of the State of New 18 York, Albany, NY, for 19 Defendants-Appellees. 20

21 JOHN M. WALKER, JR., Circuit Judge: 22 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). Proceeding pro se, 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. The United States District Court for the Northern 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. The

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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: the defendants’ 5 failure even to consider whether her disability could be 6 reasonably accommodated. 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. Although she could stand on her 18 own for short periods, her MS prevented her from traveling long 19 distances. 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. In June 2005, upon his admission to a DOCS inmate 23 processing facility, he asked to be housed in a prison near his 24 wife because of her disability. DOCS denied this request and, in

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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.” Soon thereafter, when he asked 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. The DOCS 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 prison. 11 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.” (Compl. ¶ 15.) She asked 15 that “consideration be given to transfer [sic] her husband” to 16 somewhere closer to her. (Compl. ¶ 15.) Around that time, 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.” (Compl. ¶ 16.) 21 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

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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.” Id. at *2. The district court concluded 14 that, in any event, Fulton had failed to state a claim. Id. at 15 *3. 16 This appeal followed. Because her husband has been released 17 from prison, Fulton, now represented by counsel, seeks only 18 monetary relief. She argues that she both has standing to 19 proceed and has properly stated a claim. We agree that Fulton 20 has standing, and we remand for the district court to reconsider 21 whether she has stated a claim. We also grant Fulton leave to 22 amend her complaint, to which the defendants consent. 23 24 DISCUSSION

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1 I. Fulton’s Standing 2 We review questions of standing de novo. Comer v. Cisneros, 3 37 F.3d 775, 787 (2d Cir. 1994). “Because standing is challenged 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.” W.R. Huff Asset Mgmt. Co. v. 7 Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (internal 8 quotation marks omitted). 9 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.” Lujan v. Defenders of Wildlife, 504 U.S. 16 555, 560 (1992) (internal quotation marks omitted). The legally 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). Accordingly, “standing is gauged by the specific 21 common-law, statutory or constitutional claims that a party 22 presents.” Int’l Primate Prot. League v. Adm’rs of Tulane Educ. 23 Fund, 500 U.S. 72, 77 (1991).

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1 Fulton sued under the ADA and the Rehabilitation Act.1 The 2 ADA states, in relevant part, that

3 no qualified individual with a disability shall, by 4 reason of such disability, be excluded from 5 participation in or be denied the benefits of the 6 services, programs, or activities of a public entity, 7 or be subjected to discrimination by any such entity. 8 9 42 U.S.C. § 12132. Similarly, the Rehabilitation Act states:

10 No otherwise qualified individual with a disability 11 . . . shall, solely by reason of her or his disability, 12 be excluded from the participation in, be denied the 13 benefits of, or be subjected to discrimination under 14 any program or activity receiving Federal financial 15 assistance . . . . 16 17 29 U.S.C. § 794(a). The ADA provides “remedies, procedures, and

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). Because of the breadth of these provisions, we 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. See Innovative Health Sys., Inc. v. City of 26 White Plains, 117 F.3d 37, 47 (2d Cir. 1997) (concluding that

1 1 We note that Fulton’s complaint raised only an ADA claim, and made no 2 mention of the Rehabilitation Act. The district court assumed that Fulton 3 intended to bring a Rehabilitation Act claim as well. We think this was a 4 fair reading of Fulton’s pro se complaint, because such complaints are to be 5 construed liberally, Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001), 6 and the same factual allegations generally will support both ADA and 7 Rehabilitation Act claims, see Henrietta D. v. Bloomberg, 331 F.3d 261, 272 8 (2d Cir. 2003) (finding only “subtle distinctions” between the two acts). The 9 differences between the two acts are irrelevant to this appeal.

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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). The 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. This is plainly an injury in fact that is 11 sufficient to form the basis for Article III standing. 12 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.” (Appellee’s Br. at 8.) Whatever the merit of 17 such an argument, Fulton’s complaint is not so narrow: The 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.” (Compl. ¶ 16.) The defendants’ decision to 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. Fulton’s complaint rests on her right to be

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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: a causal connection between her injury 8 and the defendants’ challenged conduct, and a likelihood of 9 redressability. Indeed, the complaint is unequivocal that the 10 defendants’ alleged discrimination caused her claimed injury, and 11 that this litigation could remedy the harm. Thus, we hold that 12 Fulton has standing to pursue her ADA and Rehabilitation Act 13 claims, and that the district court erred by concluding 14 otherwise. 15 16 II. The Sufficiency of Fulton’s Pleadings 17 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. We review this dismissal 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.” Jaghory v. N.Y. State Dep’t of 23 Educ., 131 F.3d 326, 329 (2d Cir. 1997). And we must construe 24 pro se complaints liberally, “to raise the strongest arguments

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1 that they suggest.” Green, 260 F.3d at 83 (internal quotation 2 marks omitted). 3 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: “(1) that [s]he is a ‘qualified individual’ with a 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.” 10 Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003). A 11 “qualified individual” is

12 an individual with a disability who, with or without 13 reasonable modifications to rules, policies, or 14 practices, the removal of architectural, communication, 15 or transportation barriers, or the provision of 16 auxiliary aids and services, meets the essential 17 eligibility requirements for the receipt of services or 18 the participation in programs or activities provided by 19 a public entity.

20 42 U.S.C. § 12131(2). A qualified individual can base a 21 discrimination claim on any of “three available theories: (1) 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 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

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1 applies to DOCS inmates, not members of the public or spouses.” 2 Fulton, 2006 WL 2850601, at *3. Second, the district court held 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.” Id. Neither rationale is convincing. 7 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. See DOCS Directive No. 4403. And we 12 disagree with the district court’s characterization of the IVP as 13 applying to inmates but not visitors. In different provisions, 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. Moreover, the IVP 17 regulations indicate that visitors and inmates separately possess 18 these rights. See id. § VIII.B (“Contact visiting privileges may 19 be suspended, limited, or revoked for either a visitor . . . or 20 an inmate . . . .”). 21 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. Instead, the defendants argue that “what 24 [Fulton] sought was not access to the general visitation program,

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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.) As we have already discussed, however, 4 this incorrectly characterizes Fulton’s claim: In addition to 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. (Compl. ¶ 15.) Because Fulton “meets the 8 essential eligibility requirements” for the IVP, 42 U.S.C. 9 § 12131(2), she is a qualified individual under the ADA and 10 Rehabilitation Act. The district court erred by concluding 11 otherwise. We note, however, that while all of an inmate’s 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. “‘Reasonable’ is a relational term: it evaluates 17 the desirability of a particular accommodation according to the 18 consequences that the accommodation will produce.” Borkowski v. 19 Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995). This 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. With such a context-sensitive 24 inquiry, what is reasonable might vary among qualified

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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. The district court reasoned that “there 7 are no facts alleged to suggest that the defendants’ transfer 8 policy is discriminatorily based on [Fulton’s] disability.” 2006 9 WL 2850601, at *3 (emphasis added). But again, this reasoning 10 rests on the mischaracterization of Fulton’s claims that pervades 11 the district court’s analysis. As a result, the district court 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. The 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 A reasonable 18 accommodation, if one existed, might have allowed Fulton to 19 participate in the IVP without her husband being permanently

2 1 Because Fulton contacted DOCS to request an accommodation, our focus is 2 solely on DOCS’s response. Our holding does not create any affirmative 3 requirement for prisons to ascertain in advance the capacity and health of 4 would-be visitors, and nothing in the IVP mandates such proactivity on the 5 part of prison officials.

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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. Without expressing a view as to whether Fulton has 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. In 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. Rather, the defect in the district court’s

3 1 For example, it is not unusual for prisoners to be shuttled to urban 2 centers for court appearances and prosecutorial interviews, and such a visit 3 could also serve to accommodate a disabled spouse. Fulton herself posits that 4 her husband could perhaps have been temporarily transferred “back and forth to 5 a downstate facility accessible” to her for occasional visits. (Appellant’s 6 Br. at 34.) Other prisons have made similar short-term arrangements for 7 disabled inmates. See Settlement Agreement Between the United States of 8 America and Johnson County, Tennessee Sheriff’s Department, App. ¶ 2(b)(1) 9 (providing for short-term transfers “to and from” a jail with a more 10 accessible “site of visitation”), available at 11 http://www.usdoj.gov/crt/foia/tenjohnsonctysheriff.html; accord Settlement 12 Agreement Between the United States of America and Harrison County Sheriff’s 13 Department, Iowa, App. ¶ 2(b)(1) (same), available at 14 http://www.usdoj.gov/crt/foia/harrisonia.htm. Absent transporting the 15 prisoner or the visitor, there are also now electronic means for visits, such 16 as via a “Skype”-style program over the internet. See generally Skype, 17 http://www.skype.com (offering software that enables internet video and voice 18 conferencing). In noting that the possibility of a reasonable accommodation 19 is not unrealistic, we express no view on the reasonableness of any potential 20 accommodation in the instant case. The DOCS likely has other commonplace 21 practices that Fulton might benefit from, and it is for the DOCS, in the first 22 instance, to determine whether any of them would be a reasonable accommodation 23 in this case.

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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. Leave to Amend the Complaint 8 Fulton has requested leave to amend her complaint, to bring 9 claims against DOCS and DOCS employees in their official 10 capacities. We are normally accommodating to motions for leave 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). Fulton now seeks only money damages, and the defendants’ 15 defense of Eleventh Amendment immunity may render Fulton’s 16 requested amendment futile. Kentucky v. Graham, 473 U.S. 159, 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 However, Fulton may still succeed if the defendants’ 21 Eleventh Amendment immunity has been abrogated or waived.4 This 22 question does not have an obvious or settled answer, and the

4 1 There are at least colorable arguments as to why immunity might have 2 been abrogated or waived in this particular case.

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1 defendants ask us to avoid deciding it. Indeed, the defendants 2 consent to granting Fulton leave to amend her complaint, as long 3 as their immunity defense is preserved. Fulton does not state 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.” Lyng v. Nw. Indian 7 Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988). As a 8 result, we grant Fulton leave to amend her complaint without 9 prejudice to the defendants’ assertion of the Eleventh Amendment 10 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.