14‐1147(L)
Forziano v. Indep. Grp. Home Living Program, Inc.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER
JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A
SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 26th day of May, two thousand fifteen.
PRESENT: RALPH K. WINTER,
JOHN M. WALKER, JR.,
CHRISTOPHER F. DRONEY,
Circuit Judges.
____________________________________________
FRANK FORZIANO and ROSEANN FORZIANO,
as parents and Article 17A co‐guardians of PAUL FORZIANO,
NORMAN SAMUELS and BONNIE SAMUELS, as parents
and Article 17A co‐guardians of HAVA SAMUELS, PAUL
FORZIANO, and HAVA SAMUELS,
Plaintiffs‐Appellants,
‐v.‐ No. 14‐1147‐cv(L)
14‐2217‐cv(CON)
INDEPENDENT GROUP HOME LIVING PROGRAM,
INC., MARYHAVEN CENTER OF HOPE, INC.,
COURTNEY BURKE, in her official capacity as the
COMISSIONER OF THE NEW YORK STATE
OFFICE OF PERSONS WITH DEVELOPMENTAL
DISABILITIES, and STATE OF NEW YORK.
Defendants‐Appellees.
____________________________________________
FOR APPELLANTS: MARTIN J. COLEMAN (Robert Briglio, on the brief),
Law Office of Martin J. Coleman, P.C., Woodbury, NY.
FOR APPELLEE INDEP.
GRP. HOME LIVING
PROGRAM: ANNE C. LEAHEY, Devitt, Spellman, Barrett LLP,
Smithtown, NY.
FOR APPELLEE
MARYHAVEN CENTER
OF HOPE: ROBERT G. VIZZA, Bartlett, McDonough & Monaghan,
LLP, Mineola, NY.
FOR APPELLEE STATE
OF NEW YORK: ANDREW KENT ( Anisha S. Dasgupta, on the brief), for
Barbara D. Underwood, Solicitor General of New York
and Eric T. Schneiderman, Attorney General of New
York, New York, NY.
____________________________________________
Appeal from the United States District Court for the Eastern District of
New York (Leonard D. Wexler, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court be and
hereby is AFFIRMED.
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Plaintiffs Paul Forziano and Hava Samuels’s claims arise from the denial
of their request, made as a developmentally disabled married couple, to
cohabitate in a publicly funded group home. Plaintiffs appeal from the dismissal
of their complaint alleging violations of the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101‐12213; the Rehabilitation Act, 29 U.S.C. §§ 701‐796l;
the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601‐3619; 42 U.S.C. § 1983 (“Section
1983”); the New York State Executive Law § 269; and the New York Mental
Hygiene Law. Plaintiffs seek money damages, declaratory relief, and a
permanent injunction. We assume the parties’ familiarity with the underlying
facts, procedural history, and specification of issues for review.
We review a dismissal for lack of subject matter jurisdiction under Federal
Rule of Civil Procedure 12(b)(1) or failure to state a claim under Rule 12(b)(6) de
novo, accepting all factual allegations in the complaint as true and drawing
inferences from those allegations in the light most favorable to the plaintiff.
Jaghory v. N.Y. Depʹt of Educ., 131 F.3d 326, 329 (2d Cir. 1997).
Permanent Injunction Claims
Plaintiffs’ amended complaint included a request for a permanent
injunction prohibiting defendants from refusing to provide them with residential
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services as a cohabitating couple. The district court dismissed all permanent
injunction claims because the plaintiffs sought to prevent harm that they may or
may not suffer in the future. We agree.
Both standing and jurisdictional ripeness require “a conclusion that the
complaining party will sustain immediate injury and that such injury would be
redressed by the relief requested.” Simmonds v. I.N.S., 326 F.3d 351, 358 (2d Cir.
2003) (internal quotation marks, brackets, and ellipses omitted). After
commencing their lawsuit, plaintiffs received a residential placement at East End
Disability Associates (“East End”), where they receive all of their requested
services. Although plaintiffs posit that they may be forced to move out of East
End at some point, such speculative harm is insufficient to confer standing on the
plaintiffs. See, e.g., City of Los Angeles v. Lyons, 461 U.S. 95, 108‐109 (1983) (plaintiff
was without standing to request injunction against police use of chokeholds
because it was “no more than speculation” that he would again be subject to an
illegal chokehold).
Plaintiffs also argue that the district court erred by considering their
injuries at the time of the amended complaint instead of the original complaint,
when they lacked a facility willing to allow them to cohabitate. This argument is
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without merit. The district court properly assessed the plaintiffs’ standing to
request an injunction based on the amended complaint, which “supercede[d] the
original, and render[ed] it of no legal effect.” Dluhos v. Floating & Abandoned
Vessel, 162 F.3d 63, 68 (2d Cir. 1998) (internal quotation marks omitted)
(determining whether the court had jurisdiction based on the allegations in the
most recent complaint). Based on the allegations in the amended complaint, there
is no immediate injury needing to be redressed. Accordingly, the district court
correctly dismissed plaintiffs’ claims seeking a permanent injunction for lack of
subject matter jurisdiction.
Intentional Discrimination under the ADA, Rehabilitation Act, and FHA
Plaintiffs asserted that defendants intentionally discriminated against
them in violation of the ADA, Rehabilitation Act, and FHA. Title II of the ADA
and Section 504 of the Rehabilitation Act provide that no person shall be
excluded from participation in or be denied the benefits of a public entity by
reason of a disability. 42 U.S.C. § 12132; 29 U.S.C. § 794(a). Similarly, the FHA
makes it unlawful to discriminate in the sale or rental of any dwelling to any
buyer or renter because of a handicap. 42 U.S.C. § 3604(f). Because of similarities
in the three statutes, intentional discrimination claims under the ADA,
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Rehabilitation Act, and FHA are considered in tandem. See McElwee v. Cnty. of
Orange, 700 F.3d 635, 640 (2d Cir. 2012); Tsombanidis v. W. Haven Fire Dep’t, 352
F.3d 565, 573 (2d Cir. 2003).
To prove intentional discrimination, a plaintiff must establish: “(1) that he
is a ’qualified individual’ with a disability; (2) that he was excluded from
participation in a public entity’s services, programs, or activities or was
otherwise discriminated against by a public entity; and (3) that such exclusion or
discrimination was due to his disability.” Hargrave v. Vermont, 340 F.3d 27, 34‐35
(2d Cir. 2003).
We agree with the district court that plaintiffs cannot show that they were
excluded from any of the defendants’ residential or habilitation services because
of their disability. “The ADA requires only that a particular service provided to
some not be denied to disabled people.” Rodriguez v. City of New York, 197 F.3d
611, 618 (2d Cir. 1999). Plaintiffs do not allege that cohabitation in the defendant
group homes was provided to some but denied to them because of their
disability; it is undisputed that no couples cohabitated in either home. The
defendants cannot have unlawfully discriminated against plaintiffs by denying a
benefit that they provide to no one. See id. Said another way, the defendants
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cannot have discriminated against plaintiffs on the basis of their disability
because that disability is an eligibility requirement for participation in those
services in the first place. See Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998).
In sum, even assuming that plaintiffs could show that defendants
harbored some discriminatory animus against their disabilities, they cannot
show that they were excluded from the defendants’ programs because of their
disabilities. Accordingly, we affirm the district court’s dismissal of plaintiffs’
intentional discrimination claims arising under the ADA, Rehabilitation Act, and
FHA.
Reasonable Accommodation under the ADA, Rehabilitation Act, and FHA
Plaintiffs also asserted non‐intentional discrimination claims under Title III
of ADA, the Rehabilitation Act, and the FHA. Like the district court, we construe
these claims as claims that the defendants violated the statutes by failing to
provide plaintiffs with the reasonable accommodation they requested—the
ability to cohabitate in one of the defendants’ facilities. See 42 U.S.C.
§ 12182(b)(2)(A)(ii); 28 C.F.R. § 41.53; 42 U.S.C. § 3604(f)(3)(B). Again, because of
similarities in the three statutes, we consider reasonable accommodation claims
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arising under the ADA, Rehabilitation Act, and FHA in tandem. See McElwee, 700
F.3d at 640; Tsombanidis, 352 F.3d at 573.
Plaintiffs’ reasonable accommodation damages claims must be dismissed
because it is well‐settled that injunctive relief is the only relief available for non‐
intentional violations of these statutes. See, e.g., Powell v. Natʹl Bd. of Med.
Examiners, 364 F.3d 79, 86 (2d Cir. 2004) (“A private individual may only obtain
injunctive relief for violations of a right granted under Title III; he cannot recover
damages.”); Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009)
(same under Rehabilitation Act).
Plaintiffs withdrew their request for a preliminary injunction after they
began cohabitating at East End. And, as discussed above, plaintiffs lack standing
to request a permanent injunction. Therefore, because plaintiffs lack standing to
request the only relief available for the alleged non‐intentional violations of the
ADA, Rehabilitation Act, and FHA, these claims must be dismissed.
Accordingly, we affirm the district court’s dismissal of plaintiffs’ non‐intentional
discrimination claims.
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Section 1983 Claims against New York
Plaintiffs asserted Section 1983 claims against the State for alleged
violations of the Medicaid Act and Fourteenth Amendment. The district court
held that plaintiffs’ Medicaid Act damages claims against the State were barred
by the Eleventh Amendment, and plaintiffs did not appeal that ruling. And, as
discussed above, plaintiffs lack standing to request a permanent injunction.
Therefore, as plaintiffs implicitly concede, their Medicaid Act claims against the
State must be dismissed.
Unlike their Medicaid Act claims, plaintiffs contend that their Fourteenth
Amendment damages claims against the State are not barred by the Eleventh
Amendment because the Fourteenth Amendment has its own Eleventh
Amendment abrogation clause. This argument is without merit.
Both plaintiffs’ equal protection claim and their due process claim are
based in Section 1 of the Fourteenth Amendment. See U.S. Const. amend. XIV,
§ 1. We have squarely held that Section 1 claims for damages are barred by the
Eleventh Amendment. Santiago v. N.Y. Depʹt of Corr. Servs., 945 F.2d 25, 32 (2d
Cir. 1991) (suit for damages jurisdictionally barred because “Section 1 of the
Fourteenth Amendment fits neither the clear statement nor the state waiver
9
exceptions to a state’s immunity from a damages suit in federal court.”). Thus,
plaintiffs fail to distinguish between damages claims under Section 1 of the
Fourteenth Amendment, which are barred by the Eleventh Amendment, and
claims for injunctive relief, which, in some situations, are not. See Edelman v.
Jordan, 415 U.S. 651, 663‐64 (1974). Because they lack standing to request
injunctive relief and their damages claims are barred by the Eleventh
Amendment, plaintiffs’ Fourteenth Amendment claims must also be dismissed.
Accordingly, we affirm the district court’s dismissal of plaintiffs’ Section
1983 claims against New York State and its official, Courtney Burke.
Section 1983 Claims against Independent Group Home Living and Maryhaven
Plaintiffs asserted the same Medicaid Act and Fourteenth Amendment
claims against their former group homes, Independent Group Home Living
(“IGHL”) and Maryhaven, as they did against the state. Unlike the state, IGHL
and Maryhaven are not protected by the Eleventh Amendment. The district court
correctly dismissed these claims, however, because plaintiffs failed to plausibly
allege that IGHL and Maryhaven are state actors.
It is well‐settled that a plaintiff pressing a claim for violation of his rights
under Section 1983 is required to show state action. See, e.g., Sybalski v. Indep. Grp.
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Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008). The complaint alleges
that the State’s involvement in the challenged action—IGHL and Maryhaven’s
refusal to permit plaintiffs to cohabitate—consisted of an abdication of the State’s
duty to ensure compliance with the Medicaid Act and state law provisions. Such
abdication is insufficient to turn IGHL and Maryhaven’s decision not to permit
cohabitation into state action because it does not involve the State in the decision‐
making of private entities. See id. at 259 (IGHL not engaged in state action where
the State established procedures governing limitations on visitors but IGHL
made the decision about whether such limitations should be imposed).
Plaintiffs’ failure to show that the State acted through IGHL and
Maryhaven is fatal to their Section 1983 claims alleging violations of the
Medicaid Act and Fourteenth Amendment by the group homes. Accordingly, we
affirm the district court’s dismissal of these claims.
State Law Claims
After dismissing all of plaintiffs’ federal causes of action, the district court
declined to exercise supplemental jurisdiction over plaintiffs’ state law claims.
On appeal, plaintiffs do not argue that the district court abused its discretion by
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dismissing their state law claims. Accordingly, we affirm the district court’s
dismissal of plaintiffs’ state law claims.
Conclusion
We have considered the remainder of the plaintiffs’ arguments and find
them to be without merit. Accordingly, the judgment of the district court hereby
is AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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