W.D.N.Y.: Bad decision on ADA, Rehabiliation Act immunity

In an unpublished order, a New York federal magistrate held that a prisoner’s claims under Title II of the Americans with Disabilities Act (ADA) and the Rehabilitation Act were barred by sovereign immunity. Fox v. Poole, 2008 WL 1991103 (W.D.N.Y. Apr. 24, 2008) (No. 06CV148).

The court said the state's immunity could not be overcome because the pro se plaintiff had not stated a claim for a constitutional violation or alleged “discriminatory animus or ill will.”The decision is questionable or clearly wrong on three distinct points: (1) it misapplies the framework of United States v. Georgia, 546 U.S. 151 (2006), by failing to analyze whether immunity was validly abrogated in the absence of a constitutional violation; (2) it imposes an “animus or ill will” requirement based on questionable circuit precedent; and (3) it treats the ADA and the Rehabilitation Act identically, despite the State’s waiver of immunity under the latter statute.

 

                Fox brought this pro se suit to challenge his medical isolation and alleged denials of medical treatment and program access, in relation to his HIV status and a positive TB test (which Fox contested). The case has been the subject of numerous orders over the last two years. The defendants moved for summary judgment, and the parties agreed to a decision by the magistrate.

 

                Georgia held that Title II validly abrogates States’ immunity insofar as it covers actions that actually violate the Constitution. Citing Justice Stevens’s concurrence in Georgia, the magistrate said that because Fox alleged constitutional violations as well as statutory violations, “this Court need not decide the scope of Congress' abrogation of Eleventh Amendment immunity under Title II beyond a constitutional violation.” This is obviously incorrect: while the Georgia Court limited its holding because it was all that was necessary to find for the plaintiff, in this case the magistrate found that there were no constitutional violations. Thus, the court should have gone further and considered “whether Congress's purported abrogation of sovereign immunity as to that class of conduct is nevertheless valid.” Georgia, 546 U.S. at 159.

 

                Instead, the only further question asked by the magistrate was whether Fox’s treatment was “motivated by discriminatory malice or ill will.” This based on Garcia v. State Univ. of N.Y. Health Sciences Ctr., 280 F.3d 98 (2d Cir.2001), in which the Second Circuit decided that – in the aftermath of Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356 (2001) (ADA Title I claims barred by immunity) – the only way ADA claims could withstand sovereign immunity is if (like claims under the Equal Protection Clause) they were based on “discriminatory animus or ill will.” District court judges have disagreed on viability of Garcia in light of subsequent Supreme Court decisions, including Georgia. See, e.g., Olson v. State of New York, 2007 WL 1029021 (E.D.N.Y. Mar. 30, 2007) (No. 2:04-00419) (citing conflicting opinions and concluding Garcia remains good law).

 

                The magistrate also erred in treating the Rehabilitation Act claim identically with the ADA claim for sovereign immunity purposes. As Rochelle Bobroff and I discuss in the forthcoming issue of Clearinghouse Review, nearly every Court of Appeals has squarely held that an abrogation analysis is irrelevant to claim under this statute, because State entities voluntarily waive their immunity from Rehabilitation Act claims by accepting federal funds. The magistrate here, however, purported to follow Garcia, in which the Second Circuit dismissed a Rehab Act claim as barred by immunity. This holding, which has been criticized by other circuits, was limited to a situation where the defendant accepted federal funds prior to the decision in Garrett. Even if Garcia remains binding within the Second Circuit, the magistrate did not explain why it should apply to bar Fox’s claims, which are based on events in 2005.

 

                Based on this flawed analysis, the magistrate held that since Fox had not established either actual constitutional violations or discriminatory animus, the defendants were entitled to summary judgment on all claims.