15‐1178‐pr
Dimperio v. NY State Dep’t of Corr. & Cmty. Supervision
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 24th day of June, two thousand sixteen.
PRESENT: RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
DENNY CHIN,
Circuit Judges.
______________________
CARL A. DIMPERIO, JR.,
Plaintiff‐Appellant,
‐v.‐ No. 15‐1178
NEW YORK STATE DEPARTMENT OF
CORRECTIONS AND COMMUNITY
SUPERVISION,
Defendant‐Appellee,
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BRIAN FISCHER, Commissioner,
Defendant.
______________________
FOR APPELLANT: CARL A. DIMPERIO, JR., pro se, Liverpool, NY.
FOR APPELLEE: LAURA ETLINGER, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General, Andrea
Oser, Deputy Solicitor General, on the brief), for Eric T.
Schneiderman, Attorney General of the State of New
York, Albany, NY.
Appeal from the United States District Court for the Northern District of
New York (Hurd, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the order of the District Court is
AFFIRMED.
Appellant Carl A. Dimperio, Jr., proceeding pro se, appeals from an order
granting summary judgment to Appellee New York State Department of
Corrections and Community Supervision (“DOCCS”) and dismissing his suit
under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq., asserting that DOCCS discriminated against him by denying him
participation in so‐called “shock incarceration”1 and work release programs. We
These programs “provide rigorous physical activity, intensive regimentation and
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discipline and rehabilitation therapy and programming.” N.Y. CORRECT. LAW § 865[2].
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assume the parties’ familiarity with the underlying facts, procedural history, and
issues on appeal.
We review de novo a district court’s grant of summary judgment. Garcia v.
Hartford Police Dep’t, 706 F.3d 120, 126 (2d Cir. 2013) (per curiam). Where, as
here, the party opposing summary judgment bears the burden of proof at trial,
summary judgment should be granted if the moving party can “point to an
absence of evidence to support an essential element of the nonmoving party’s
claim.” Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.
1995).
As an initial matter, DOCCS primarily urges that we affirm the district
court’s judgment on the alternative ground that Dimperio failed to exhaust his
administrative remedies. As DOCCS concedes, however, it failed to raise this as
an affirmative defense in its answer. Although we have held that a district court
has “discretion to entertain [an affirmative] defense when it is raised in a motion
for summary judgment, by construing the motion as one to amend the
defendant’s answer,” Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d 275, 283 (2d Cir.
2000), and Dimperio did not object that the defense was not timely raised, neither
the magistrate judge nor the district court reached the issue of exhaustion. We
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therefore decline to determine, in the first instance, either the merits or
permissibility of considering the defense.
We conclude, however, that the district court properly determined that
Dimperio failed to demonstrate a prima facie case of ADA discrimination. To
have done so, Dimperio was required to demonstrate that he was a “qualified
individual with a disability”—i.e., “an individual with a disability who, with or
without reasonable modifications to rules, policies, or practices . . . meets the
essential eligibility requirements for . . . participation in programs or activities
provided by a public entity.” Dean v. Univ. at Buffalo Sch. of Med. & Biomedical
Scis., 804 F.3d 178, 186 (2d Cir. 2015) (quoting 42 U.S.C. § 12131(2)). The plaintiff
“bears the burdens of both production and persuasion as to the existence of some
accommodation that would allow the plaintiff to meet the essential requirements
of the service, program, or activity at issue.” Id. at 190.
Dimperio failed to present evidence of the existence of a reasonable
accommodation to the programs in question. He asserted only that DOCCS was
obligated under state law to create an “alternative‐to‐shock‐incarceration
program” for inmates whom a court orders to participate in shock incarceration
but who require “a degree of medical care or mental health care that cannot be
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provided at a shock incarceration facility,” N.Y. PENAL LAW § 60.04(7)(b).
Dimperio thus did not identify any modification to the standard incarceratory or
work release programs to which he sought access. Instead, he sought creation of
an individualized, alternative program akin to those created pursuant to
§ 60.04(7)(b). However, Title II of the ADA requires only the implementation of
reasonable modification to existing programs, not the creation of alternative
programs. See Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000); Rodriguez v.
City of New York, 197 F.3d 611, 619 (2d Cir. 1999). Accordingly, Dimperio failed
to carry his burden of establishing that a reasonable modification to the shock
incarceration or work release programs existed and would have allowed him to
otherwise satisfy the essential requirements of those programs.
We have considered Dimperio’s remaining arguments and find them to be
without merit. For the reasons stated above, the order of the District Court is
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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