D.K. v. Teams

260 F.Supp.3d 334

D.K., BY her guardian L.K.; Z.O., by her guardian B.M.; and B.R., by her guardian C.R., Plaintiffs,

v.Tiffany TEAMS, Sharnell Tucker, Deana Linton, Lashonda Conner, Sandra Goodwin, Daphne McKelvey, John/Jane Does Nos. 1–10, Elizabeth Gonzalez, Sheila Linder, Jonathan Peyton, Joyce White, Cheryl Minter–Brooks, and Kerry A. Delaney, Defendants.

16 Civ. 3246 (PAE)

United States District Court, S.D. New York.

Signed July 5, 2017

David A. Lebowitz, Ilann M. Maazel, Emery Celli Brinckerhoff & Abady, LLP, New York, NY, for Plaintiffs.

Samuel Conroy Breslin, Breslin Law Group, William James Dreyer, Benjamin W. Hill, Dreyer Boyajian LLP, Brad Michael Gallagher, Colm P. Ryan, David M. Cost, Barclay Damon LLP, Joseph M. Dougherty, David Morgen, Hinman Straub, P.C., Stephen Martin Buhr, Jennifer Michelle Gomez, Greenberg Traurig, LLP, Ryan T. Donovan, Harris, Conway & Donovan, PLLC, Jeffrey Peter Mans, Lippes Mathias Wexler Friendman LLP, Albany, NY, Deveraux L. Cannick, Aiello & Cannick, Maspeth, NY, Gerald Graves, Gerald Graves and Associates, South Orange, NJ, John Vincent Decolator, Garden City, NY, Adam Thompson, Law Offices of Adam M. Thompson, P.C., Royce Russell, Emdin & Russell, LLP, Richard Ware Levitt, Nicholas G. Kaizer, Levitt & Kaizer, Jason Alan Buskin, State of New York Office of the Attorney General, New York, NY, Alexander V. Sansone, Law Office of Alexander V. Sansone, Williston Park, NY, for Defendants.

OPINION & ORDER

Paul A. Engelmayer, United States District Judge

Plaintiffs here are three people with developmental disabilities, each of whom is non-verbal, and each of whom has lived for many years at the "Union Avenue IRA," a Bronx facility operated by the New York State Office for People with Developmental Disabilities ("OPWDD"). These plaintiffs—D.K., by her guardian L.K., Z.O., by her guardian B.M., and B.R., by her guardian C.R.—claim that their rights were violated in connection with allegedly deficient care and years of physical abuse at the Union Avenue IRA. They bring this action against staff workers at the Union Avenue IRA and their supervisors under 42 U.S.C. § 1983 ; § 504 of the Rehabilitation Act, 29 U.S.C. § 794 ; Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131, et seq. ; the Fair Housing Act, 42 U.S.C. § 3604(f)(2), and state law.

Defendants Tiffany Teams, Sharnell Tucker, Lashonda Conner, Daphne McKelvey, Elizabeth Gonzalez, Sheila Linder, Jonathan Peyton, Cheryl Minter–Brooks, and Kerry A. Delaney now move to dismiss under Federal Rules of Civil Procedure 12(b) and 12(c). They argue that sovereign immunity deprives the Court of jurisdiction under Rule 12(b)(1) ; that plaintiffs fail to state claims under Rule 12(b)(6) ; and, as to defendants Conner and Linder, who answered the complaint rather than moving to dismiss, that they are entitled to judgment on the pleadings under Rule 12(c).

For the following reasons, the Court denies the motions to dismiss, while narrowing the scope of plaintiffs' § 1983 claims to eliminate a theory of conspiracy liability.

I. Background

A. Factual Allegations¹

1. The Developmentally Disabled Plaintiffs

D.K., Z.O., and B.R. are individuals with developmental disabilities who reside at a facility known as the "Union Avenue IRA"² in the Bronx, which is operated by OPWDD. AC ¶¶ 2, 13–18. Each plaintiff is "non-verbal" and has been seriously disabled either her entire life or since 18 to 24 months of age. Id. ¶¶ 41–46. As of October 26, 2016, when the AC was filed, D.K. was 47 years old and had resided at the Union Avenue IRA since 1992; Z.O. was 48 years old and had resided at the Union Avenue IRA since the late 1990s; and B.R. was 35 years old and has resided at the Union Avenue IRA since around 2001. Id. ¶¶ 13, 15, 17, 41–46. This lawsuit is brought by legal guardians on behalf of each plaintiff; L.K. is D.K.'s sister, B.M. is Z.O.'s sister, and C.R. is B.R.'s father. Id. ¶¶ 14, 16, 18.

2. Defendants' Positions and Responsibilities

Defendants were employed by OPWDD in various capacities. The AC sorts them into three groups. The "Staff Defendants" group consists of Teams, Tucker, Linton, Conner, Goodwin, and McKelvey, plus John/Jane Does Nos. 1–5. Id. ¶ 30. Teams, Tucker, Linton, and McKelvey were employed as Direct Support Assistants at the Union Avenue IRA, id. ¶¶ 19–21, 24; Conner and Goodwin were each employed as a Developmental Assistant 1 at the Union Avenue IRA, id. ¶¶ 22–23.

The "Supervisor Defendants" group consists of Gonzalez, Linder, and Peyton, plus John/Jane Does Nos. 6–10. Id. ¶ 31. At the Union Avenue IRA, Gonzalez was employed as a Developmental Assistant 1, with responsibility to supervise other staff, id. ¶ 27, Linder was employed as a Developmental Assistant 2, with responsibility to manage and supervise other staff, id. ¶ 28, and Peyton was employed as a Social Worker Assistant 3, with responsibility to manage and supervise other staff, id. ¶ 29.

Finally, the "OPWDD Defendants" group consists of White, Minter–Brooks, and Delaney. Id. ¶ 35. White was the Deputy Director of the Metro New York Developmental Disabilities State Operations ("DDSO") Office, with responsibility for development and monitoring of OPWDD systems improvement, overseeing the provision of services to developmentally disabled people, recordkeeping, and promoting best practices at OPWDD facilities in the Bronx and Manhattan, including at the Union Avenue IRA. Id. ¶ 32. Minter–Brooks was the Region 5 Director of OPWDD, with responsibility for development and monitoring of OPWDD systems improvement, overseeing the provision of services to developmentally disabled people, recordkeeping, and promoting best practices at OPWDD facilities in New York City, including the Union Avenue IRA. Id. ¶ 33. Delaney was the Acting Commissioner of OPWDD, responsible for developing, implementing, and overseeing OPWDD policies and practices throughout New York State, including at the Union Avenue IRA. Id. ¶ 34.

3. The Initial Reports and Evidence of Abuse of Plaintiffs

In or before 2011, plaintiffs' families started to suspect that plaintiffs were suffering mistreatment at the Union Avenue IRA. They noticed unexplained bruises, lacerations, and other injuries on each plaintiff. See, e.g., id. ¶¶ 48–50 (D.K.), 52–56 (Z.O.), 58–66 (B.R.). For example, in July 2011, C.R. was called by a Union Avenue IRA staff member and notified that "a staff member had pulled B.R.'s hair because B.R. was taking a nap on a couch that staff wanted to use"; in that call, "[t]he staff member told C.R. that abuse of residents by staff at the Union Avenue IRA was widespread." Id. ¶ 58. After C.R. reported this information to an OPWDD Acting Deputy Director, a Union Avenue IRA supervisor conducted an investigation, met with staff at the Union Avenue IRA, and issued a report to the staff, "to apprise them of the situation and to remind them that abuse of our individuals will not be tolerated." No staff member was disciplined as a result of the supervisor's investigation. Id. ¶¶ 60–61.

In summer 2014, D.K., Z.O., and B.R. were each treated at a hospital for black eyes. Id. ¶ 67. On May 17, 2014, B.R. woke up with a blue and purple bruise under her left eye. Id. ¶ 68. Gonzalez was the supervisor on duty at the time; she informed C.R. that B.R. had been taken to the emergency room of Lincoln Hospital after having awakened that day with the black eye and that B.R. had been examined by a doctor at the hospital. Id. ¶ 69. Hospital staff, however, later explained to C.R. that B.R. had been sent home before being seen by a doctor. Id. ¶ 70. Later, on May 27, 2014, a different supervisor called C.R. and explained that B.R.'s injury had been "upgraded" to an allegation of physical abuse. The supervisor "explained that B.R. had been punched in the face by an OPWDD employee in front of witnesses." Id. ¶ 71. Investigators later determined that B.R. had been punched by a staff member, although they could not determine who hit her because the witnesses' stories and recantations were in conflict. Id. ¶ 72.

On August 5, 2014, Peyton contacted L.K. to inform her that D.K.'s eyes were discolored, explaining that the discoloration had been caused by "allergies" and that D.K. had possibly been rubbing her eyes out of discomfort. Id. ¶ 74. After Peyton's phone call, however, L.K. received messages at her home and on her cell phone indicating that the claim that the eye discoloration was caused by "allergies" was false and that D.K.'s eye injury had been caused by an assault. Id. ¶ 75. L.K. then traveled to Lincoln Hospital, where D.K. had been taken for treatment; upon seeing D.K., L.K. "could immediately tell that D.K. had a black eye." Id. ¶¶ 76–77. In addition, McKelvey had been D.K.'s escort from the Union Avenue IRA to Lincoln Hospital; Lincoln Hospital staff told L.K. that McKelvey had "spoke[n] to D.K. in a verbally abusive manner and ‘violently pushed the patient.’ " Id. ¶¶ 78–79. The hospital staff also reported this incident to Peyton and Linder. Id. State investigators investigated this incident and, after interviewing witnesses, determined that McKelvey "had abused and neglected D.K. at Lincoln Hospital." Id. ¶ 80. Months later, state authorities determined that D.K.'s black eye had been caused by Tucker, "who punched D.K. in the back and pushed her against a bathroom wall at the Union Avenue IRA" on July 29, 2014, a week before D.K. had been taken to Lincoln Hospital. Id. ¶¶ 81–83.

On August 15, 2014, Z.O. also sustained a black eye and was taken to the hospital, where she was treated and observed for roughly 13 hours. Id. ¶¶ 84–85. After this incident, state investigators reported "that a Union Avenue IRA staff member had witnessed ... Tucker push Z.O. in the shower that day.... Tucker had then ‘pointed out’ the mark on Z.O.'s eye." Id. ¶ 86.

4. The Whistleblower's August 2014 Letter to White

On August 20, 2014, a staff member at the Union Avenue IRA (the "whistleblower") anonymously sent a letter to...