2d Cir.: Rehab Act claims barred by sovereign immunity

The Second Circuit rejected a prisoner’s claim under the Rehabilitation Act, holding the state had not waived sovereign immunity.

In an unreported disposition, the court held that the state defendants had not waived sovereign immunity with regard to events occurring before the court’s decision in Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98 (2d Cir.2001). The panel also upheld the trial magistrate’s refusal to allow an amended complaint based on post-Garcia incidents. The panel declined to address the viability of official- or individual-capacity retaliation claims against state officers under Title V of the Americans with Disabilities Act, holding that plaintiff failed to state a valid claim. Warren v. Goord, 2008 WL 5077004 (2d Cir. Nov. 26, 2008) (No. 06-3349).

        This case was originally filed pro se in 1999, alleging discrimination claims under the Rehabilitation Act based on the denial of commissary, package and television privileges while Warren was housed in the hospital ward at Attica prison. He also claimed retaliation under Title V of the Americans with Disabilities Act (ADA), based on his subsequent transfer to a four-man room within the infirmary. The Second Circuit previously remanded for consideration of whether the state waived its immunity under the Rehabilitation Act; whether Warren stated valid retaliation claims; and whether Title V of the ADA permits official- or individual-capacity claims. Warren v. Goord, 81 Fed. Appx. 400 (2d Cir. 2003).

 

         The Second Circuit is the only federal circuit that has not accepted waiver of immunity under the Rehab Act across the board. See Bobroff & Tobin, Strings Attached, 42 Clearinghouse Rev. 16 (2008). Garcia held that such waiver was not valid prior to the time that state officials had reason to know from judicial opinions that the abrogation of immunity under the ADA might not be valid. Thus, district courts have permitted Rehab Act claims predicated on incidents after the date of decision in either Garcia or Garrett v. Bd. of Trustees of the Univ. of Ala. v. Garrett, 531 U.S. 356 (2001); judges have differed on which date is determinative.

        Here, the district court held that the events in this case transpired prior to the date of Garcia, and accordingly sovereign immunity applied. 2006 WL 1582385 (W.D.N.Y. 2006). The circuit panel affirmed that holding without substantive discussion. Although Warren had sought to file an amended complaint alleging post-Garcia violations, the panel held that it was appropriate to disallow the amended complaint because it was long, rambling, and prejudiced defendants by raising for the first time incidents that happened years ago. (Warren was appointed counsel on remand, but the amended complaint was apparently drafted by Warren and merely typed up by support staff at his appointed counsel’s firm.)

        With regard to the ADA retaliation claim, the district court had concluded that “nothing in the ADA’s legislative findings demonstrates that Title V (containing the ADA’s retaliation provisions) was enacted in response to a pattern of discrimination by states against persons opposing practices unlawful under the ADA as required to support abrogation of the states' Eleventh Amendment immunity.” Accord, Salvador v. Lake George Park Comm’n, 2001 WL 1574929 (N.D.N.Y. 2001); Shabazz v. Texas Youth Comm’n, 300 F.Supp.2d 467 (N.D.Tex.2003). It also held that Title V did not permit claims against individual officers. The panel found it unnecessary to decide these issues, however, instead affirming dismissal on the ground that Warren failed to identify a materially adverse action against him.