Surlock v. Delaney

BRADFORD J. SURLOCK, individually and as next friend of Michael Surlock,and MARY-ANNE SURLOCK, individually and as next friend of Michael Surlock, Plaintiffs, v. KERRY DELANEY, Acting Commissioner of the New York State OfficeFor People With Developmental Disabilities; JOHN GLEASON,Director, Central New York DDSO; LYNETTE O'BRIEN, Deputy Director,Central New York DDSO; ANTHONY DINUZZO, Deputy Director of Quality Assurance,Central New York DDSO; LAURIE ELLIOTT, Treatment Team Leader, Central New York DDSO, Fulton Office;BARBARA ALEXANDER, Development Assistant III, Central New York DDSO,Fulton Office; RON REID, House Director, Fravor Road IRA; VICTORIA LEBOEUF,Former House Director, Fravor Road IRA; AMY HILLARD, Assistant House Director,Fravor Road IRA; FELICIA GRAHAM, Former Assistant House Director,Fravor Road IRA; RAY PERKINS, Former Assistant House Director,Fravor Road IRA; MONIQUE DICKERSON, Fravor Road IRA Nurse;DONNA MOTYKA, Former Fravor Road IRA Nurse;DENISE REYNOLDS, Former Fravor Road IRA Nurse;CORA SPENCER, Fravor Road IRA Direct Care Staff;TRACEY JASIEWICZ, Former Assistant House Director,Fravor Road IRA; JEANETTE MAYNES, Fravor Road IRA Direct Care Staff;and DIANE FINSTER, Fravor Road IRA Direct Care Staff, Defendants.

5:11-cv-1121 (MAD/DEP)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

June 8, 2016

APPEARANCES:

OFFICE OF GUSTAVE J. DIBIANCO

62 Cherry Tree Circle

Liverpool, New York 13090

Attorneys for Plaintiffs

SUSSMAN & WATKINS

55 Main Street, Suite 6

P.O. Box 1005

Goshen, New York 10924

Attorneys for Plaintiffs

OFFICE OF WILLIAM J. PORTA

42 Maple Avenue

Hamilton, New York 13346

Attorneys for Plaintiffs

SMITH, SOVIK, KENDRICK &

SUGNET, P.C.

250 South Clinton Street

Suite 600

Syracuse, New York 13202-1252

Attorneys for Defendants Delaney,

Gleason, O'Brien, and DiNuzzo

GOLDBERG SEGALLA

5786 Widewaters Parkway

Syracuse, New York 13214

Attorneys for Defendants Elliott,

Alexander, Reid, LeBoeuf,

Perkins and Jasiewicz

OFFICE OF LESLIE R. LEWIS

23 Genesee Street

New Hartford, New York 13413

Attorneys for Defendant Hillard

CARROLL & CARROLL, P.C.

Galleries of Syracuse, 2nd Floor

441 South Salina Street

Syracuse, New York 13202-0352

Attorneys for Defendant Graham

GALE, GALE & HUNT, LLC

P.O. Box 6527

Syracuse, New York 13217

Attorneys for Defendants Dickerson,

Motyka, and Reynolds

MACKENZIE HUGHES LLP

101 South Salina Street

P.O. Box 4967

Syracuse, New York 13221-4967

Attorneys for Defendant Spencer

AMDURSKY, PELKY, FENNELL &

WALLEN, P.C.

26 East Oneida Street

Oswego, New York 13126

Attorneys for Defendant Maynes

SATTER LAW FIRM, PLLC

217 South Salina Street

6th Floor

Syracuse, New York 13202

Attorneys for Defendant Finster

OF COUNSEL:

GUSTAVE J. DIBIANCO, ESQ.

MICHAEL H. SUSSMAN, ESQ.

WILLIAM J. PORTA, ESQ.

MICHAEL P. RINGWOOD, ESQ.

JOHN P. COGHLAN, ESQ.

KAREN G. FELTER, ESQ.

KENNETH M. ALWEIS, ESQ.

HEATHER K. ZIMMERMAN, ESQ.

LISA MARIE ROBINSON, ESQ.

MOLLY M. RYAN, ESQ.

LESLIE R. LEWIS, ESQ.

WOODRUFF LEE CARROLL, ESQ.

CATHERINE A. GALE, ESQ.

MATTHEW J. VAN BEVEREN, ESQ.

JENNIFER PLOETZ WILLIAMS, ESQ.

MARK R. SCHLEGEL, ESQ.

TIMOTHY J. FENNELL, ESQ.

MIMI C. SATTER, ESQ.

SARAH E. RUHLEN, ESQ.

Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Michael Surlock ("Michael") and his parents Bradford and Mary-Anne Surlock commenced this action on September 21, 2011, asserting claims for constitutional violations pursuant to 42 U.S.C. § 1983, claims under Title II of the Americans with Disabilities Act ("ADA"), and claims under New York State common law. See Dkt. No. 1. Thereafter, Plaintiffs amended the complaint and Judge Mordue granted in part and denied in part Defendants' joint motion to dismiss the amended complaint. See Dkt. No. 106.¹

On September 30, 2015, through seven separate motions, sixteen of the eighteen Defendants moved for summary judgment on Plaintiffs' claims.² In their joint response, Plaintiffs withdraw the following claims: (1) all claims against Defendant Jasiewicz; (2) the First Amendment claims against Defendants Graham, Dickerson, Reynolds, Motyka, Maynes, and Finster; (3) the intimate association claim against all Defendants; and (4) the procedural due process claim against Defendants LeBoeuf, Reid, Perkins, and Graham. See Dkt. No. 371 at 11.³ As such, in their response Plaintiffs defend the following claims: (1) the substantive due process claims against Defendants Gleason, O'Brien, DiNuzzo, Elliott, Alexander, Reid, LeBoeuf, Perkins, Graham, Dickerson, Reynolds, Motyka, Spencer, Maynes, and Finster; (2) the First Amendment claims against Defendants Gleason, O'Brien, DiNuzzo, Elliott, Alexander, Reid, LeBoeuf, Perkins, and Spencer; (3) the procedural due process claims against Defendants Gleason, O'Brien, DiNuzzo, Elliott, and Alexander; (4) the negligent supervision claims against Defendants Gleason, O'Brien, DiNuzzo, Elliott, Alexander, Reid, LeBoeuf, Perkins, and Graham; and (5) the medical malpractice claims against Defendants Dickerson, Reynolds, and Motyka. See id.⁴

Currently before the Court are Defendants' motions for summary judgment.

II. BACKGROUND

A. The parties

Michael Surlock is a profoundly disabled young man who resides in the care and custody of the State of New York. See Dkt. No. 371 at 9. He has a severe form of autism and an intelligence quotient in the range of profound to severe mental retardation. See id. Michael is non-verbal, cannot perform most basic life-sustaining tasks on his own, engages in self-injurious behavior ("SIB") and requires constant, around-the-clock supervision just to survive. See id. Michael also suffers from epilepsy and osteoporosis. See id. at 12. In October of 2007, it became evident that Michael (then twenty five) required full-time care in a residential facility, so his parents, Plaintiffs Bradford and Mary-Anne Surlock, placed him in the care and custody of the New York State Office for People with Developmental Disabilities ("OPWDD" or the "agency"). See id. The agency placed him at Fravor Road Individual Residential Alternative ("IRA"), a facility it owned and operated in Mexico, New York. See id. Michael's care at Fravor Road was governed by multiple Skill Acquisition Plans ("SAPs"), Residential Habilitation Plans ("RHPs"), Individual Plans of Protective Oversight ("IPPOs"), and Behavior Plans. See Dkt. No. 390-1 at ¶ 9. Michael lived at Fravor Road until December 18, 2012, when the agency moved him to the Central Square IRA in Central Square, New York. See Dkt. No. 371 at 12.

According to Michael's behavior plan, "Michael displays unusual flexibility and strength, particularly when escalated. It is difficult for anyone to safely intervene and/or protectthemselves or Michael from injury. Recent records indicate injuries to Michael (e.g. bruising, sutures, broken teeth), injuries to staff working with Michael (e.g. broken teeth, concussions, neck/back injuries), and some instances of property damage[.]" Dkt. No. 375-39 at 1. Moreover, the behavior plan dated August 27, 2010 noted the following in regards to his progress:

When first admitted to [Fravor Road], Michael averaged approximately 11 episodes of self injurious behavior (slapping/scratching his face, banging head/limbs) a day at the residence alone. He also engaged in episodes of "floor sprawling" an average of approximately 5 times per day. According to current data, . . . Michael continues to exhibit "floor sprawling" at an average rate of 2 to 3 times per day; with a similar rate for episodes of SIB. Due to the severity of these behaviors when they occur, the risk of serious injury remains unacceptably high.

Id. at 6.

OPWDD is a cabinet level agency of the State of New York. See Dkt. No. 390-1 at ¶ 1. OPWDD provides services for New Yorkers with developmental disabilities, including intellectual disabilities, autism spectrum disorders, and other neurological impairments. See id. at ¶ 2. OPWDD provides services at sites throughout New York State, including facilities offering long-term residential support. See id. at ¶ 3. OPWDD operates IRA facilities where individuals with disabilities reside under the care of OPWDD staff. See id. at ¶ 4. One such IRA is located at Fravor Road in Mexico, New York. See id. OPWDD provides services directly and through a network of approximately 750 nonprofit service providing agencies, with about 80 percent of services provided by the private nonprofits and 20 percent provided by state-run services. See Dkt. No. 377-1 at ¶ 7.

Defendant Diane Finster began working for OPWDD at Fravor Road on August 12, 2010. See Dkt. No. 390-1 at ¶ 27.⁵ Defendant Finster was a trainee during the entire time that she worked at Fravor Road. See id. at ¶ 28. Defendant Finster's training included an initial three-week introductory course, followed by on-the-job training throughout her one-year probationary trainee status. See id. at ¶ 29. Defendant Finster's training included instruction provided by OPWDD, which covered behavior management plans, intervention procedures, self-injurious behaviors ("SIBs") and other matters. See id. Defendant Finster was never in a supervisory position and never had authority to change Michael's care plan. See id. at ¶ 30. Further, Defendant Finster did not have the ability to discipline any co-workers. See id. Defendant Finster did not work at Fravor Road after July 14, 2011. See id. at ¶ 31.

The Central New York Developmental Disability Services Office ("CNYDDSO") encompassed approximately 200 facilities in 8 counties with about 2,400 staff and 1200 residents. See Dkt. No. 377-1 at ¶ 8. OPWDD is the state agency that oversees CNYDDSO. See id. at ¶ 10. Defendant John Gleason, who is currently retired, began working for CNYDDSO in 1980. See id. at ¶¶ 11-12. From 2007 through 2012, Defendant Gleason was the Acting Director or Director ofCNYDDSO. See id. at ¶ 13. From July 2012 to November 2014, Defendant Gleason was the Associate Commissioner for State Operations for OPWDD. See id. at ¶ 14.

Defendant Anthony DiNuzzo, who has been retired since 2011, began...