Shaw v. New York Department of Correctional Services

10-3030
Shaw v. NY Dept. of Correctional Serv., et al.

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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 15th day of December, two thousand eleven.
PRESENT:
JON O. NEWMAN,
PETER W. HALL,
Circuit Judges.
PAUL G. GARDEPHE,*
District Judge.
_______________________________________

RICHARD SHAW,
Plaintiff-Appellant,

v. 10-3030-pr

THE NEW YORK DEPARTMENT OF CORRECTIONAL
SERVICES, BRIAN FISHER, Commissioner;
KAREN BELLAMY, Director of Inmate
Grievance Program; ROBERT ERCOLE, Super-
intendent of Green Haven Correctional
Facility; and T. ELLERT, Academic Educa-
tional Supervisor,
Defendants-Appellees.
__________________________________________

*
The Honorable Paul G. Gardephe, of the United States District
Court for the Southern District of New York, sitting by
designation.
FOR APPELLANT: Veronica Vela, The Legal Aid Society,
Prisoners’ Right Project, New York, N.Y.
FOR APPELLEES: Sudarsana Srinivasan, Assistant Solicitor
General, Office of the N.Y. State Attorney
General, New York, N.Y.

UPON DUE CONSIDERATION, it is hereby ordered that the

order of the District Court is VACATED, and the case is
REMANDED with directions to stay further Court proceedings
pending further administrative proceedings.

Plaintiff-Appellant Richard Shaw, incarcerated at the
Green Haven Correctional Facility, appeals an order dismissing

his complaint with prejudice pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure for failure to state a claim.
Shaw’s complaint against the Defendants-Appellees prison

officials alleged violations of the Americans with

Disabilities Act (“ADA”) and the Rehabilitation Act, among

others. He contended that the Defendants failed to make
reasonable accommodation for him in his effort to obtain a GED

certificate, which he alleged was rendered difficult because
of his dyslexia.

We assume the parties’ familiarity with the facts and the
procedural aspects of this case.

Shaw first sought assistance for his learning disability
from the prison medical staff. Notes made by Dr. Bendheim on
an “ambulatory health record” indicate that Shaw “want[ed]

resolution of his desire to establish the existence of

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dyslexia in himself. . . . His teacher and counselor have told
him that they do not have a test for dyslexia and furthermore

that they have no accommodations learning program for students
who are dyslexic.” However, according to the document, Dr.

Bendheim was not able to assist Shaw due to the doctor’s lack
of training in the area of dyslexia.
Shaw next sought help from the prison’s educational

supervisor, Frank Meeuwisse. In response to Shaw’s “several
requests,” Meeuwisse wrote to Shaw, informing him: “Green

Haven does not have a qualified person to test dyslexia. . .

. There is no special help available, nor has there ever been
at [Green Haven].” (double underlining in original)

Shaw filed a formal complaint with the Grievance
Committee regarding his “prolong[ed] learning disability.”

According to Shaw’s grievance complaint, because his learning

disability had “a direct effect [on his] earning his GED,” he
sought “policy and procedures allowing those with dyslexia a
beneficiary [sic] earning a (GED),” and “accommodating all

inmates with learning disabilities.” An investigation was

apparently conducted by the Inmate Grievance Review Committee.
The result was a “split” decision, with “two reps
recommend[ing] that [the] educational supervisor and

applicant[‘]s teacher’s refusal to make a referral for special
education testing and applicant[‘]s request for dyslexia

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testing has hindered applicant from educating himself
further.” The Central Office Review Committee denied Shaw’s

requested action.
Shaw filed suit pro se in the District Court, raising
claims under the ADA, the Rehabilitation Act, the Individuals

with Disabilities Education Act, the Equal Protection Clause
of the Fourteenth Amendment, and 42 U.S.C. § 1983, seeking a

declaratory judgment, injunctive relief, and monetary damages.
His complaint specifically alleged, among other things, the
prison officials’ refusal “to accommodate Plaintiff who

suffer[s] from dyslexia.“ The complaint most frequently

described the accommodation sought as a “special education

program” for disabled prisoners. However, the complaint also

identified various other means of accommodating his condition,
including “teachers[] certified or licensed to teach students

with disabilities,” and “an expert best qualified to make a

diagnos[is] of dyslexia.”
The District Court granted the Defendants’ motion to
dismiss. The District Court read Shaw’s complaint as

requesting not reasonable accommodation within the existing

educational program but “an additional or different
substantive educational program tailored to inmates with
dyslexia.”

This Court reviews de novo a district court’s decision to

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grant a motion to dismiss for failure to state a claim under
Rule 12(b)(6). Shomo v. City of New York, 579 F.3d 176, 183

(2d Cir. 2009). A pro se complaint should generally “be read
liberally” and should not be dismissed if there is “any

indication that a valid claim might be stated.” Id.
Under the ADA and the Rehabilitation Act, a demand for
“reasonable accommodations to assure access to an existing

program” is cognizable, but a demand for “additional or
different substantive benefits” is not. Wright v. Giuliani,

230 F.3d 543, 548 (2d Cir. 2000). The District Court

characterized Shaw’s claims as requesting substantially
different educational services from those already offered at

the prison. The lack of clarity of the pro se complaint

undoubtedly led the Court to this understanding. However, the
complaint referred to failure to “accommodate,” and counsel on

appeal has elaborated that contention by listing a number of

possible accommodations, including oral examinations, recorded

lectures, and providing Plaintiff lecture notes. Other
possibilities that might be especially suitable for a person
afflicted with dyslexia are additional time for test-taking

and allowing the student to dictate answers to essay
questions. Generously read, the complaint was sufficient to
survive a motion to dismiss. See Fulton v. Goord, 591 F.3d 37,

44 (2d Cir. 2009); Henrietta D. v. Bloomberg, 331 F.3d 261,

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276-77 (2d Cir. 2003) (“[T]he demonstration that a disability
makes it difficult for a plaintiff to access benefits that are

available to both those with and without disabilities is
sufficient to sustain a claim for a reasonable

accommodation.”).
The Defendants-Appellees contend that, even if the
complaint could fairly be read to request reasonable

accommodation, Shaw has not exhausted his administrative
remedies with regard to that request. We disagree. Shaw’s

formal grievance complaint sought “accommodati[on]” in the

educational program, and he provided prison officials with a
sufficient opportunity to understand and remedy his grievance.

At oral argument, we were advised that within the

grievance review procedure there are two offices with
authority to consider a grievance such as Shaw’s and that,

through no fault of Shaw’s, the matter was considered by only

one of them. Oral argument further developed the desirability

of affording the other office an opportunity to consider
Shaw’s grievance and determine whether some accommodation can
reasonably be made.

Accordingly, we will vacate the District Court’s order
and remand the case with directions to stay further court
proceedings until Shaw’s request for accommodation has been

more fully reviewed within the prison grievance system. See

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WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 76 (2d Cir. 1997).
If the matter is not resolved administratively within 120

days, Shaw may return to the District Court to pursue his
claim, at which time the District Court might wish to consider

affording him the opportunity to amend his complaint. We will
expect counsel for the Defendants-Appellants to render
assistance in assuring that Shaw’s grievance is promptly

considered by the appropriate prison officials.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk

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