Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 16-1047
REZA SHERKAT,
As Guardian of Shahram Sherkat and Individually,
Plaintiff, Appellant,
v.
NEW ENGLAND VILLAGE, INC.; GAIL T. BROWN, New England
Village, Inc., Executive Director and Individually;
GINGER SULLIVAN, New England Village, Inc., Director of
Residential Services and Individually; RUI CARREIRO,
New England Village, Inc., Clinical Director and Individually;
ELIN M. HOWE, Commissioner of Massachusetts Department of
Developmental Services; EDWARD FITZGERALD, Area Director for
Massachusetts Department of Developmental Services,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Thomas J. Frain, with whom C. Alex Hahn, Frank E. Bonanni,
and Frain and Associates were on brief, for appellant.
Christopher A. Callanan, with whom Kevin B. Callanan and
Stevenson McKenna & Callanan LLP were on brief, for appellees New
England Village, Inc., Gail T. Brown, Ginger Sullivan and Rui
Carreiro.
Jesse M. Boodoo, with whom Kenneth Y. Lee, Assistant Attorney
General and Maura Healey, Attorney General of Massachusetts, were
on brief, for appellee Elin M. Howe.
October 18, 2016
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Per Curiam. Reza Sherkat ("Sherkat"), on behalf of
himself and as the guardian of Shahram Sherkat ("Shahram"), appeals
the United States District Court for the District of
Massachusetts's dismissal of the complaint he brought against New
England Village, Inc. ("NEV"), three of its officers,
Massachusetts Department of Developmental Services ("DDS")
Commissioner Elin Howe, and another DDS official.
NEV is a private organization that receives funding from
Massachusetts to provide community-based and residential services
to individuals with intellectual disabilities. In September 2014,
Sherkat completed the application process to have Shahram, his
now-thirty-nine-year-old son, receive services from NEV. A month
later, NEV officials responded that new DDS regulations forced NEV
to stop planning for new admissions. NEV subsequently sent
Shahram a letter stating that although Shahram was "eligible for
services at [NEV]," NEV did not foresee any openings for either a
residential placement or community-based day services and would
place Shahram on a waitlist.
Sherkat claims that NEV's rejection of Shahram violated
the Fourteenth Amendment's Equal Protection Clause; section 504 of
the Rehabilitation Act, 29 U.S.C. § 794; Title II of the Americans
with Disabilities Act ("ADA"), 42 U.S.C. § 12132; and the "free
choice" provision of the Medicaid Act, 42 U.S.C. § 1396n(c)(2)(C).
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Sherkat's complaint also included a count for negligent infliction
of emotional distress against NEV officials based on Shahram's
rejection causing Sherkat "physical and emotional harm."
Additionally, Sherkat filed two claims against Howe and another
DDS official claiming that DDS violated the Massachusetts Civil
Rights Act, Mass. Gen. Laws ch. 12, § 11I, and sought injunctive
relief "to take all necessary steps relative to the admission of
Shahram to NEV."1
Upon de novo review, we conclude that the district court
properly dismissed Sherkat's complaint. Pursuant to First Circuit
Rule 27.0(c), we summarily affirm without adopting the district
court's opinion.2
So ordered.
1 Sherkat's complaint also contained counts for negligence and
breach of contract against NEV officials, but Sherkat does not
appeal their dismissal.
2 In summarily affirming the district court's opinion, we take no
position on the parties arguments as to whether there is a circuit
split on the scope of rights conferred by § 1396n(c)(2)(C).
Compare Ball v. Rodgers, 492 F.3d 1094, 1111 (9th Cir. 2007) ("[The
Medicaid choice provisions, including § 1396n(c)(2)(C)] seek to
guarantee that individual patients are informed of
noninstitutional care options and that individual patients retain
the right to make a choice based on this information."), with
Bertrand ex rel. Bertrand v. Maram, 495 F.3d 452, 459 (7th Cir.
2007) (finding that § 1396n(c)(2)(C) "just requires the provision
of information about options that are available" and "does not
make any particular option 'available' to anyone").
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