Filed: Jul. 09, 2009
Latest Update: Mar. 02, 2020
Summary: 07-2283-cv Harris v. Mills 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: February 2, 2009 Decided: July 9, 2009) 5 Docket No. 07-2283-cv 6 - 7 MONROE S. HARRIS, B.S., D.O., 8 Plaintiff-Appellant, 9 - v. - 10 RICHARD P. MILLS, Commissioner of Education, MERRYL H. TISCH, 11 Regent Chancellor, DAVID A. PATERSON, Governor, 12 Defendants-Appellees, 13 NEW YORK STATE EDUCATION DEPARTMENT, 14 Defendant.* 15 - 16 Before: SACK and PARKER, Circuit Judges, and COT
Summary: 07-2283-cv Harris v. Mills 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term, 2008 4 (Argued: February 2, 2009 Decided: July 9, 2009) 5 Docket No. 07-2283-cv 6 - 7 MONROE S. HARRIS, B.S., D.O., 8 Plaintiff-Appellant, 9 - v. - 10 RICHARD P. MILLS, Commissioner of Education, MERRYL H. TISCH, 11 Regent Chancellor, DAVID A. PATERSON, Governor, 12 Defendants-Appellees, 13 NEW YORK STATE EDUCATION DEPARTMENT, 14 Defendant.* 15 - 16 Before: SACK and PARKER, Circuit Judges, and COTE..
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07-2283-cv
Harris v. Mills
1 UNITED STATES COURT OF APPEALS
2 FOR THE SECOND CIRCUIT
3 August Term, 2008
4 (Argued: February 2, 2009 Decided: July 9, 2009)
5 Docket No. 07-2283-cv
6 -------------------------------------
7 MONROE S. HARRIS, B.S., D.O.,
8 Plaintiff-Appellant,
9 - v. -
10 RICHARD P. MILLS, Commissioner of Education, MERRYL H. TISCH,
11 Regent Chancellor, DAVID A. PATERSON, Governor,
12 Defendants-Appellees,
13 NEW YORK STATE EDUCATION DEPARTMENT,
14 Defendant.*
15 -------------------------------------
16 Before: SACK and PARKER, Circuit Judges, and COTE, District
17 Judge.**
18 Appeal from a judgment of the United States District
19 Court for the Southern District of New York (Victor Marrero,
20 Judge). The district court granted the defendants' motion to
21 dismiss the plaintiff's pro se amended complaint. We conclude
*
The Clerk of the Court is respectfully directed to amend
the official caption to conform to this one. David A. Paterson
and Merryl H. Tisch are substituted for George E. Pataki and
Robert M. Bennett, respectively, pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
**
The Honorable Denise Cote, of the United States District
Court for the Southern District of New York, sitting by
designation.
1 that the plaintiff's claims are legally insufficient, even when
2 liberally construed, although we disagree with the district
3 court's decision to base that conclusion in part on the theory
4 that the plaintiff's claims under Title II of the Americans with
5 Disabilities Act and the Rehabilitation Act cannot be asserted
6 against individuals in their official capacity.
7 Affirmed.
8 DOUGLAS G. WADLER (Kenneth Joel Haber,
9 of counsel), Law Office of Kenneth Joel
10 Haber, P.C., Rockville, MD, for
11 Appellant.
12
13 MARION R. BUCHBINDER, Assistant
14 Solicitor General (Barbara D. Underwood,
15 Solicitor General, Michael S.
16 Belohlavek, Senior Counsel, Andrew M.
17 Cuomo, Attorney General of the State of
18 New York, of counsel), New York, NY, for
19 Appellees.
20 SACK, Circuit Judge:
21 Monroe S. Harris appeals from a judgment of the United
22 States District Court for the Southern District of New York
23 (Victor Marrero, Judge). Harris was formerly licensed by the
24 state of New York as a doctor of osteopathic medicine; his
25 medical license was revoked because he was found to have
26 committed fraud and engaged in improper medical practices. At
27 issue is the New York State Education Department's denial of
28 Harris's petition to reinstate his license. Harris brought this
29 action pro se pursuant to, inter alia, Title II of the Americans
30 with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., the
31 Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and 42
2
1 U.S.C. § 1983. He claims to have been illegally denied a
2 reasonable accommodation for his cognitive disabilities and
3 unconstitutionally deprived of due process of law.
4 The district court granted the individual defendants'
5 motion to dismiss the ADA and Rehabilitation Act accommodation
6 claims because the court concluded that those statutes do not
7 provide for individual liability. The district court also
8 dismissed the Rehabilitation Act claim and the remaining claims
9 for failure to state a claim upon which relief can be granted.
10 Although we disagree with some of the district court's reasoning,
11 we agree with it that the plaintiff's claims are legally
12 insufficient, even when read with the lenity that must attend the
13 review of pro se pleadings.
14 We therefore affirm the judgment.
15 BACKGROUND
16 This appeal is but the latest chapter in a litigation
17 arising out of the 1999 revocation of Harris's license to
18 practice medicine by the New York State Board for Professional
19 Medical Conduct (the "Board").
20 The Revocation of the License
21 The Board revoked Harris's license to practice
22 osteopathic medicine in part because it found, after an
23 investigation and a hearing, that Harris had committed
24 "fraudulent practice" and had made false statements when he
25 submitted applications for reappointment to three different
26 hospitals. See Harris v. N.Y. State Dep't of Health, 202 F.
3
1 Supp. 2d 143, 148-49 (S.D.N.Y. 2002) ("Harris I"). Harris had
2 asserted in the applications that he was not at the time a
3 subject of disciplinary action, even though he was in fact then
4 under investigation by the Bureau of Controlled Substances of the
5 New York State Department of Health for allegations of illegally
6 storing and dispensing controlled substances. See id. at 148.1
7 He also failed to disclose his previous misconduct in two other
8 reappointment applications and failed to disclose, in an
9 application to the New York State Education Department for
10 renewal of his medical license, that his practice privileges at a
11 hospital had been terminated. See
id.
12 The Board also found that Harris had provided negligent
13 and incompetent medical care. He had, for example,
14 inappropriately prescribed diet pills to one patient and had
15 prescribed to another patient a drug contraindicated for that
16 patient's heart condition. See
id. at 149. The Board also found
17 that Harris had failed to maintain records adequately. See
id.
18 The Board's revocation was affirmed by the State
19 Administrative Review Board. See
id. at 150. Harris then
20 initiated a proceeding pursuant to Article 78 of the New York
21 Civil Practice Law and Rules, N.Y. C.P.L.R. § 7801 et seq., in
22 the New York State Supreme Court, Appellate Division. The
23 Appellate Division confirmed the Administrative Review Board's
1
That investigation resulted in a formal acknowledgment of
wrongdoing by Harris. See Harris I, 202 F. Supp. 2d at 148.
4
1 decision and dismissed the petition. Harris v. Novello, 276
2 A.D.2d 848,
714 N.Y.S.2d 365 (3d Dep't 2000).
3 Thereafter, Harris brought a lawsuit against the New
4 York State Department of Health ("DOH") in the district court.
5 In it, he challenged the Board's revocation of his license,
6 "alleg[ing] that DOH refused to acknowledge evidence of his
7 learning disabilities and revoked his medical license without
8 considering or offering him reasonable means to accommodate those
9 disabilities," in violation of Section 504 of the Rehabilitation
10 Act of 1973, 29 U.S.C. § 794, and Title II of the ADA. Harris I,
11 202 F. Supp. 2d at 164. He also alleged "deficiencies in DOH's
12 procedures" in violation of the Due Process Clause of the
13 Fourteenth Amendment to the United States Constitution.
Id.
14 The district court granted DOH's motion to dismiss in
15 light of the prior state proceedings, concluding that "Harris's
16 efforts to relitigate . . . the revocation of his medical license
17 are barred by application of the Rooker-Feldman doctrine."
Id.
18 at 165; see D.C. Court of Appeals v. Feldman,
460 U.S. 462
19 (1983); Rooker v. Fid. Trust Co.,
263 U.S. 413 (1923). The court
20 also concluded that the ADA and Rehabilitation Act claims against
21 the state agency were barred by operation of the Eleventh
22 Amendment, Harris
I, 202 F. Supp. 2d at 173-74, and that the due
23 process claim against the DOH was barred because that agency is
24 not a "person" within the meaning of 42 U.S.C. § 1983, and
25 because the Eleventh Amendment precluded the due process claim
26 insofar as it sought money damages,
id. at 178.
5
1 The Petition for Restoration
2 In February 2002, Harris applied to the New York Board
3 of Regents, seeking to restore his license to practice medicine.2
4 After meeting with Harris, a "Peer Committee" issued a report
5 recommending that the Education Department deny his application.
6 On June 7, 2004, the Education Department's Committee on the
7 Professions met with Harris. It subsequently issued a report
8 following the Peer Committee's recommendation. The Board of
9 Regents affirmed. Harris does not assert that he made any
10 further attempt to obtain review from New York state courts.
11 Harris brought this action pro se against the Education
12 Department pursuant to the ADA, Section 504 of the Rehabilitation
13 Act, and 42 U.S.C. § 1983. The district court dismissed the
14 action sua sponte. Harris v. N.Y. State Educ. Dep't, 419 F.
15 Supp. 2d 530, 535-36 (S.D.N.Y. 2006) ("Harris II"). The court
16 observed that Harris's complaint was, in large part, an attempt
17 to relitigate matters the court had already resolved in Harris I.
18 Id. at 532. Insofar as the complaint "related to [Harris's]
19 petition to restore his medical license,"
id., the court
20 dismissed the ADA and Section 1983 claims against the state
21 agency on sovereign immunity grounds,
id. at 532-34. The court
22 concluded that the state's sovereign immunity had been waived for
23 the purposes of Harris's Rehabilitation Act claim.
Id. at 534.
2
That body of the Education Department has jurisdiction to
"restore a license" of a "former licensee found guilty of
professional misconduct." N.Y. Educ. Law § 6511.
6
1 But the court observed that the complaint failed to make clear
2 what sort of "accommodation" Harris was denied, and the court
3 therefore dismissed the Rehabilitation Act claim "with leave to
4 amend to more fully articulate what reasonable accommodation
5 [Harris] requested and how the alleged failure to accommodate
6 resulted in the State's discriminatory refusal to restore his
7 medical license." Id. at 535.
8 The Amended Complaint
9 Harris, continuing to act pro se, filed an amended
10 complaint -- the complaint at issue on this appeal -- against the
11 Commissioner of Education, the Regent Chancellor, and the
12 Governor of the State of New York.3 Harris requests injunctive,
13 declaratory, and monetary relief under the ADA; the
14 Rehabilitation Act; Section 1983 and 42 U.S.C. § 1988; the First,
15 Fourth, and Fourteenth Amendments to the United States
16 Constitution; and also pursuant to his assertion that the
17 decision to deny the reinstatement petition was "[a]rbitrary and
18 capricious" inasmuch as the defendants failed to follow their own
19 procedural rules. Am. Compl. ¶¶ 184-95. In the amended
20 complaint, Harris seeks, inter alia, an order granting Harris's
21 application for reinstatement of his license, together with such
22 "accommodation[]s . . . as might be necessary," and additional
23 injunctive relief.
Id. ¶¶ a-b.
3
The Education Department is no longer a defendant in this
action.
7
1 The amended complaint alleges that in 1998, on the
2 advice of counsel and while his investigation by the Board was
3 ongoing, see id. ¶ 34, Harris was diagnosed with "learning
4 disabilities . . . i.e. disorder of written expression and 'rule
5 out' reading disorder and Attention Deficit Hyperactivity
6 Disorder,"
id. ¶ 7. Harris alleges that as a result of those
7 conditions, he has "difficulty with comprehending the written
8 word" and "a related problem with written expression."
Id. ¶ 11.
9 Harris further alleges that it is possible for him to
10 "compensate" for these disabilities and, in theory, to "practice
11 medicine or law, or any other discipline."
Id. ¶ 14. Harris
12 asserts that that is just what he has done, obtaining degrees
13 from college and a school of osteopathic medicine "after
14 initially failing out of both" as a result of "various self
15 taught techniques and determination of will."
Id. ¶¶ 15-16.
16 Though it's not entirely clear from the pro se
17 pleadings, Harris appears also to allege that he made two
18 requests for accommodation from the Department of Education, both
19 of which were denied.
20 First, Harris apparently applied for "understanding of
21 the impact of [his] disabilities."
Id. ¶ 22. Harris says, in
22 this regard, that "he could not have a fair medical license
23 restoration hearing . . . without reasonable accommodation of
24 understanding of LD & ADHD and it[]s past behavioral impact,"
id.
25 ¶ 25, and similarly that "[w]ithout understanding [the] impact of
26 [Harris's] impairment [the state officials] can not make a proper
8
1 evaluation . . . of [his] rehabilitation," id. ¶ 37. Harris's
2 application for "understanding" relates to his demand for
3 reinstatement of his license.
4 Second, Harris says, he made and was denied a request
5 to read a written "explanation" before the Committee on the
6 Professions because his oral explanation before the Peer
7 Committee was thought by the Peer Committee to be "unfocused" and
8 "not clearly presented."
Id. ¶¶ 43-44. He "thought it would be
9 more organized and clearly presented" to do it in writing.
Id.
10 ¶ 44. This sought-for accommodation relates to whether he
11 received an adequate hearing.
12 The amended complaint also contests the judgment of the
13 Committee regarding the impact of Harris's alleged disability, in
14 part on the ground that the agency lacked expert testimony on the
15 subject, and in part because it failed to adequately
16 "acknowledge" evidence of his disability.
Id. ¶¶ 153-54. The
17 amended complaint asserts this as a separate basis for relief.
18 Included in the amended complaint, too, is much
19 discussion in mitigation or denial of the actions for which
20 Harris's license was revoked, all of which is "not presented for
21 re[]litigation" but "to illustrate an understand[ing] [i.e., on
22 Harris's part] of the past issues and to prevent [their]
23 reoccurrence in the future ([i.e.,] rehabilitation)."
Id. ¶ 63.
24 The district court granted the defendants' motion to
25 dismiss the amended complaint. Harris v. Mills,
478 F. Supp. 2d
26 544 (S.D.N.Y. 2007) ("Harris III"). Harris's motion to
9
1 reconsider that decision, in part in light of his withdrawal of a
2 claim for damages relief, was denied by endorsed order.
3 Harris, represented by counsel, appeals.
4 DISCUSSION
5 I. Standard of Review
6 We review de novo the grant of a motion to dismiss for
7 failure to state a claim upon which relief can be granted under
8 Federal Rule of Civil Procedure 12(b)(6). City of New York v.
9 Beretta U.S.A. Corp., 524 F.3d 384, 392 (2d Cir. 2008), cert.
10 denied,
129 S. Ct. 1579 (2009). We consider the legal
11 sufficiency of the complaint, taking its factual allegations to
12 be true and drawing all reasonable inferences in the plaintiff's
13 favor. See
id.
14 In accordance with the Supreme Court's decision Bell
15 Atlantic Corp. v. Twombly,
550 U.S. 544 (2007), we apply a
16 "plausibility standard," which is guided by "[t]wo working
17 principles," Ashcroft v. Iqbal,
129 S. Ct. 1937, 1949 (2009).
18 First, although "a court must accept as true all of the
19 allegations contained in a complaint," that "tenet" "is
20 inapplicable to legal conclusions" and "[t]hreadbare recitals of
21 the elements of a cause of action, supported by mere conclusory
22 statements, do not suffice."
Id. "Second, only a complaint that
23 states a plausible claim for relief survives a motion to dismiss"
24 and "[d]etermining whether a complaint states a plausible claim
25 for relief will . . . be a context-specific task that requires
26 the reviewing court to draw on its judicial experience and common
10
1 sense." Id. at 1950. Even after Twombly, though, we remain
2 obligated to construe a pro se complaint liberally. See Erickson
3 v. Pardus,
551 U.S. 89,
127 S. Ct. 2197, 2200 (2007) (per
4 curiam); Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185, 191
5 (2d Cir. 2008); Boykin v. KeyCorp,
521 F.3d 202, 213-14, 216 (2d
6 Cir. 2008).
7 II. The Accommodation Claims
8 The district court concluded that "the ADA does
9 not . . . provide for individual liability, either in the
10 individual's official or personal capacity." Harris III,
478 F.
11 Supp. 2d at 547. It reached the same conclusion with respect to
12 the Rehabilitation Act.
Id. at 547-48 ("Because claims under the
13 Rehabilitation Act may not be brought against individuals, either
14 in their personal or official capacity, Harris's Rehabilitation
15 Act claim must also be dismissed."). The district court also
16 dismissed the Rehabilitation Act claim on the ground that fails
17 to state a claim upon which relief can be granted. See id. at
18 548.
19 A. Individual Liability
20 As the defendants concede, the district court
21 incorrectly concluded that claims under Title II of the ADA and
22 the Rehabilitation Act cannot be asserted against individuals in
23 their official capacity. In Henrietta D. v. Bloomberg,
331 F.3d
24 261 (2d Cir. 2003), cert. denied,
541 U.S. 936 (2004), we wrote:
25 We . . . cannot embrace the state defendant's
26 statutory claim that an individual sued in
27 his or her official capacity under the
11
1 doctrine of Ex parte Young is not a "public
2 entity" subject to liability under the ADA,
3 42 U.S.C. § 12132. The real party in
4 interest in an official-capacity suit is the
5 government entity. As a result, it is
6 irrelevant whether the ADA would impose
7 individual liability on the officer sued;
8 since the suit is in effect against the
9 "public entity," it falls within the express
10 authorization of the ADA.
11 Id. at 288 (citation omitted). In other words, we concluded that
12 Title II and Rehabilitation Act suits for prospective injunctive
13 relief may, under the doctrine established by Ex parte Young, 209
14 U.S. 123 (1908), proceed against individual officers in their
15 official capacity, see Henrietta
D., 331 F.3d at 289 ("[T]here is
16 no basis for holding that the ADA or Rehabilitation Act intended
17 to create the kind of comprehensive enforcement scheme that would
18 preclude prospective injunctive relief against a state official
19 in her official capacity."). Insofar as the amended complaint
20 seeks prospective injunctive relief, then, it may be asserted
21 against the individual defendants here in their official
22 capacities.4
4
It appears Harris intended to amend the complaint further
to limit his request to injunctive relief only. Four days after
the district court's dismissal of the amended complaint, Harris
sent a communication to the court requesting "[r]econsideration"
of the court's "[d]ecision" for six reasons that had previously
been argued, but also for a seventh: "Drop money damages." See
Endorsed letter of Monroe Harris entitled "Reconsideration," Mar.
26, 2007 (Docket Entry 21). By endorsement, the district court
construed the letter as a "request [for] reconsideration," and
denied the request because the letter "provides no controlling
facts or law that the court overlooked in its prior rulings on
this matter that would alter the outcome of the Court's
decision." Id. But the part of the application that sought to
"[d]rop money damages" was, strictly speaking, not a motion that
"renew[ed] arguments previously made," and therefore did not
12
1 The district court relied upon two cases to conclude
2 otherwise: Lennon v. NYC, 392 F. Supp. 2d 630, 640 (S.D.N.Y.
3 2005), which noted prior district court rulings that individually
4 named defendants cannot be held personally liable under the ADA,
5 and Hartnett v. Fielding Graduate Institute,
400 F. Supp. 2d 570,
6 575 (S.D.N.Y. 2005), aff'd in part and rev'd in part on other
7 grounds, 198 Fed. Appx. 89 (2d Cir. 2006) (summary order), which
8 quoted a pre-Henrietta D. case, Menes v. CUNY,
92 F. Supp. 2d
9 294, 306 (S.D.N.Y. 2000), for the proposition that individuals
10 cannot "'be named in their official or representative capacities
11 as defendants in ADA or Rehabilitation Act suits.'" Harris III,
12 478 F. Supp. 2d at 547. Insofar as Hartnett, Menes, and another
13 post-Henrietta D. case that was relied upon by Lennon, Gentile v.
14 Town of Huntington,
288 F. Supp. 2d 316, 322 (E.D.N.Y. 2003),
15 hold that individual defendants cannot be sued in their official
16 capacities for prospective injunctive relief under the ADA or the
17 Rehabilitation Act, those holdings are contrary to Henrietta D.,
18 by which we are of course bound.
19 B. Legal Sufficiency
20 We conclude, nonetheless, that the amended complaint
21 fails to state accommodation claims upon which the injunctive
"bring up for review the underlying order." "R" Best Produce,
Inc. v. DiSapio, 540 F.3d 115, 121 (2d Cir. 2008). Liberally
construed, it was an attempt to withdraw a claim for relief
pursuant to Federal Rule of Civil Procedure 15(a)(2). Whether
the district court should have granted that application is not at
issue on this appeal.
13
1 relief Harris seeks can be granted, even under the liberal
2 standard of review for pro se pleadings.
3 1. Applicable Legal Standards. Title II of the ADA
4 "proscribes discrimination against the disabled in access to
5 public services." Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d
6 79, 84-85 (2d Cir.), corrected,
511 F.3d 238 (2d Cir. 2004). It
7 provides that "no qualified individual with a disability shall,
8 by reason of such disability, be excluded from participation in
9 or be denied the benefits of the services, programs, or
10 activities of a public entity, or be subjected to discrimination
11 by any such entity." 42 U.S.C. § 12132. To assure that those
12 requirements are met, "reasonable accommodation" may have to be
13 provided to the qualified individual. See Henrietta D.,
331 F.3d
14 at 273-74. Similarly, the Rehabilitation Act requires that
15 specified "otherwise qualified" disabled individuals receive
16 reasonable accommodations from programs receiving federal
17 financial assistance. 29 U.S.C. § 794(a); Alexander v. Choate,
18
469 U.S. 287, 301 (1985); Henrietta
D., 331 F.3d at 273.
19 "[I]n most cases,"5 the standards are the same for
20 actions under both statutes.
Powell, 364 F.3d at 85.
21 In order for a plaintiff to establish a prima
22 facie violation under these Acts, she must
23 demonstrate (1) that she is a qualified
24 individual with a disability; (2) that the
25 defendants are subject to one of the Acts;
26 and (3) that she was denied the opportunity
27 to participate in or benefit from defendants'
5
The differences among the cases referred to do not affect
the analysis here.
14
1 services, programs, or activities, or was
2 otherwise discriminated against by
3 defendants, by reason of her disability.
4
5 Id. (internal quotation marks and brackets omitted).
6 2. The Standards Applied. Harris makes two
7 accommodation claims. The first is that the Education Department
8 wrongly denied him an "understanding of the impact of [his]
9 disabilities." Am. Compl. ¶ 22. Without such understanding, he
10 alleges, the reinstatement hearing was not "fair,"
id. ¶ 25, in
11 that the Department could undertake no "proper" assessment of his
12 "rehabilitation,"
id. ¶ 37. Even read liberally, Harris's
13 complaint does not, however, identify how Harris's disabilities
14 affected the behavior that caused the revocation of his license,
15 nor how those disabilities could be accommodated to reform this
16 behavior. Harris thus alleges, at core, that if only the
17 defendants would "understand" the impact of his disabilities,
18 they would be willing to overlook the actions that caused him to
19 lose his license in the first place. Generally construed, this
20 allegation amounts only to the contention that Harris's medical
21 licensing qualifications should be relaxed in light of his
22 disability.
23 This is not a reasonable accommodation claim. Title II
24 of the ADA requires the accommodation of disabled persons who are
25 entitled to a public benefit "whether or not [they are] given an
26 accommodation."
Powell, 364 F.3d at 84-85; see also 42 U.S.C.
27 § 12131 ("The term 'qualified individual with a disability' means
28 an individual with a disability who, with or without reasonable
15
1 modifications to rules, policies, or practices . . . meets the
2 essential eligibility requirements for [the relevant benefit]."
3 (emphasis added)). The paradigmatic example is a person who must
4 use a wheelchair to access the courts -- a citizen is entitled to
5 access the court system irrespective of whether he or she can
6 walk. See Tennessee v. Lane, 541 U.S. 509 (2004). Here, by
7 contrast, Harris would be entitled to a reinstatement of his
8 license only if his disability is accommodated by the state's
9 relaxation of its license qualifications. Title II of the ADA
10 requires no such diminishment of otherwise applicable standards.
11 See Felix v. N.Y. City Transit Auth.,
324 F.3d 102, 107 (2d Cir.
12 2003) ("The ADA mandates reasonable accommodation of people with
13 disabilities in order to put them on an even playing field with
14 the non-disabled; it does not authorize a preference for disabled
15 people generally.").
16 Similarly with respect to the Rehabilitation Act claim,
17 because Harris does not contest the Board's view that his past
18 acts of fraud and improper practices disentitle him to the
19 license, but asks only for the state's "understanding" of the
20 reasons why he committed those actions, he cannot demonstrate
21 that he is "otherwise qualified" for a medical license. Harris's
22 first accommodation claim is therefore legally insufficient under
23 both statutes.
24 Harris's second accommodation claim arises out of the
25 denial of his request for permission to read to the Committee on
26 the Professions a written explanation so his case "would be more
16
1 organized and clearly presented." Am. Compl. ¶ 44. The district
2 court concluded that Harris "did not make clear how this denial
3 related to the final determination not to restore his medical
4 license." Harris III, 478 F. Supp. 2d at 548.
5 The problem with this conclusion is that it assumes
6 that Harris seeks the written-presentation accommodation in order
7 to obtain his license to practice. But under a liberal reading
8 of the amended complaint, Harris asks only for reasonable access
9 to a hearing in which to make his case for reinstatement. The
10 relation of the state's denial and the benefit Harris seeks -- a
11 fair hearing -- is clear under this reading. Moreover, there is
12 no dispute that Harris was otherwise entitled to such a hearing.
13 Even so construed, however, Harris's claim is
14 insufficient. As an initial matter, there is no allegation
15 (beyond ipse dixit) that Harris was denied the opportunity to
16 read from a written statement "by reason" of his disability, let
17 alone "solely by reason" of his disability, as the Rehabilitation
18 Act requires. 29 U.S.C. § 794; accord
Powell, 364 F.3d at 85;
19 Doe v. Pfrommer,
148 F.3d 73, 82 (2d Cir. 1998). Moreover, it is
20 not clear how such an accommodation would have helped Harris.
21 According to the amended complaint, Harris has "difficulty with
22 comprehending the written word" and "a related problem with
23 written expression." Am. Compl. ¶ 11. If those are the
24 disabilities with which Harris is afflicted, allowing him to
25 prepare and read a written statement would not have accommodated
26 his disabilities; it would have frustrated them.
17
1 We reject Harris's remaining arguments. He contends
2 that the Committee failed in its "responsibility" to initiate "an
3 interactive process" with him to discover an accommodation that
4 would help him obtain his medical license. Pl.'s Br. 20. The
5 ADA "envisions an 'interactive process' by which employers and
6 employees work together to assess whether an employee's
7 disability can be reasonably accommodated." Jackan v. N.Y. State
8 Dep't of Labor, 205 F.3d 562, 566 (2d Cir.), cert. denied, 531
9 U.S. 931 (2000); see 29 C.F.R. § 1630.2 ("To determine the
10 appropriate reasonable accommodation it may be necessary for the
11 covered entity to initiate an informal, interactive process with
12 the qualified individual with a disability in need of the
13 accommodation."); accord Lovejoy-Wilson v. NOCO Motor Fuel, Inc.,
14 263 F.3d 208, 219 (2d Cir. 2001). This, however, does not help
15 Harris; he received hearings in which he was permitted to make
16 his case for reissuance of his license. "There [is] no need for
17 injunctive relief" if Harris was "already being reasonably
18 accommodated." Henrietta
D., 331 F.3d at 282.
19 Harris also argues that the Committee should have
20 considered more documentary evidence on his behalf and wrongly
21 found his claims of disability implausible. But he fails to
22 explain how these arguments relate to his accommodation claim.
23 III. The Due Process Claim
24 The district court dismissed Harris's due process claim
25 on the ground that Article 78 provided an adequate post-
26 deprivation hearing for the denial of his petition to reinstate
18
1 his license. Harris III, 478 F. Supp. 2d at 549. The district
2 court concluded that "Harris was certainly familiar with Article
3 78 proceedings, having availed himself of that remedy after his
4 medical license was initially revoked,"
id., and that "[b]ecause
5 New York provides a meaningful post-deprivation remedy and Harris
6 does not indicate that he pursued this remedy, "his due process
7 claim must be dismissed,"
id. at 549-50.
8 Harris argues that the defendants' failure to consider
9 evidence of his character and disabilities wrongfully deprived
10 him of a constitutionally protected interest. In addition, he
11 argues, the defendants baselessly "assumed that Harris was not
12 disabled." Pl.'s Reply Br. 10. Harris characterizes these
13 arguments as challenges to the "state procedural scheme" as a
14 whole, not merely a discrete set of unauthorized acts,
id. at 11,
15 and therefore contends that he was entitled to a pre-deprivation
16 hearing under Zinermon v. Burch,
494 U.S. 113 (1990). We need
17 not grapple with whether any of the defendants, by virtue of
18 their decision-making authority or role, would be unable to avail
19 themselves of the principle that "[w]hen the state conduct in
20 question is random and unauthorized, the state satisfies
21 procedural due process requirements so long as it provides
22 meaningful post-deprivation remedy." Rivera-Powell v. New York
23 City Bd. of Elections,
470 F.3d 458, 465 (2d Cir. 2006). Harris
24 was given notice and an opportunity to be heard before his
25 petition for reinstatement was denied. That, coupled with the
19
1 Article 78 post-deprivation remedy, is enough to satisfy due
2 process. See id. at 466-67.
3 Finally, Harris's amended complaint states as a
4 separate cause of action that the defendants' decisions were
5 "[a]rbitrary and capricious" inasmuch as the defendants failed to
6 follow their own procedural rules. Am. Compl. 21. Insofar as
7 this is intended to be a stand-alone legal claim based solely on
8 violations of state regulations, it is not actionable in federal
9 court. See Alfaro Motors, Inc. v. Ward,
814 F.2d 883, 888 (2d
10 Cir. 1987) ("Section 1983 is not a means for litigating in a
11 federal forum whether a state or local administrative decision
12 was arbitrary and capricious."). It therefore states no claim
13 upon which relief can be granted.
14 CONCLUSION
15 For the foregoing reasons, the judgment of the district
16 court is affirmed.
20
