10-77-cv
Natarelli v. VESID Office
                             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 20th day of April, two thousand eleven.

PRESENT: JOSEPH M. McLAUGHLIN,
         REENA RAGGI,
         PETER W. HALL,
                   Circuit Judges.

-----------------------------------------------------------------------
DONALD NATARELLI,
                                          Plaintiff-Appellant,

                            v.                                            No. 10-77-cv

VESID OFFICE,
                                         Defendant-Appellee,

UNITED STATES OF AMERICA,
                                          Intervenor.
----------------------------------------------------------------------

FOR APPELLANT:                   Donald Natarelli, pro se, Little Falls, New York.

FOR APPELLEE:                    Andrew B. Ayers, Assistant Solicitor General (Andrea Oser,
                                 Deputy Solicitor General, on the brief), for Eric T.
                                 Schneiderman, Attorney General of the State of New York,
                                 Albany, New York.
FOR INTERVENOR:             Dirk C. Phillips, Attorney (Thomas E. Perez, Assistant Attorney
                            General, Gregory B. Friel, Attorney , on the brief), United States
                            Department of Justice, Civil Rights Division, Washington, D.C.

       Appeal from the United States District Court for the Northern District of New York

(Glenn T. Suddaby, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on December 21, 2009, is AFFIRMED.

       Plaintiff Donald Natarelli appeals pro se from the district court’s judgment dismissing

his claims against defendant the New York State Office of Vocational and Educational

Services for Individuals with Disabilities (“VESID”) under 42 U.S.C. § 1983, the Age

Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621-34, and Title II of

the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12131-12165, on the

grounds that the claims were barred by the Eleventh Amendment and, alternatively, that the

complaint failed to state a claim upon which relief could be granted.

       In reviewing the dismissal of a complaint for lack of subject matter jurisdiction, see

Fed. R. Civ. P. 12(b)(1), and for failure to state a claim, see Fed. R. Civ. P. 12(b)(6), we

review a district court’s factual findings for clear error and its legal conclusions de novo,

construing the complaint liberally, accepting all factual allegations therein as true, and

drawing all reasonable inferences in plaintiff’s favor. See Morrison v. Nat’l Austl. Bank

Ltd., 

, 170 (2d Cir. 2008) (reviewing dismissal pursuant to Rule 12(b)(1)), aff’d,

(2010); Chambers v. Time Warner, Inc., 

, 152 (2d Cir. 2002)



                                              2
(reviewing dismissal pursuant to Rule 12(b)(6)). A complaint must plead “enough facts to

state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 

, 570 (2007). In applying these principles, we assume the parties’ familiarity with the

facts and the record of prior proceedings, which we reference only as necessary to explain

our decision to affirm.

       Title II of the ADA, entitled “Public Services,” states that “no qualified individual

with a disability shall, by reason of such disability, be excluded from participation in or be

denied the benefits of the services, programs, or activities of a public entity, or be subjected

to discrimination by any such entity.” 42 U.S.C. § 12132; see Cercpac v. Health & Hosps.

Corp., 

, 167 (2d Cir. 1998). To state a Title II claim, a plaintiff must adequately

allege that: (1) he is a “qualified individual with a disability”; (2) he was excluded from

participation in a public entity’s services, programs, or activities; and (3) the exclusion was

the result of his disability. Hargrave v. Vermont, 

, 34-35 (2d Cir. 2003) (internal

quotation marks omitted).

       In United States v. Georgia, 

(2006), the Supreme Court established a

three-step process for analyzing Title II ADA claims when, as in this case, sovereign

immunity issues are raised. See generally Florida Dep’t of State v. Treasure Salvors, Inc.,

, 684 (1982) (“A suit generally may not be maintained directly against the State

itself, or against an agency or department of the State, unless the State has waived its

sovereign immunity.”); McGinty v. New York, 

, 95 (2d Cir. 2001) (“The


                                               3
Eleventh Amendment extends immunity not only to a state, but also to entities considered

‘arms of the state.’”). A court must

              determine in the first instance, on a claim-by-claim basis, (1)
              which aspects of the State’s alleged conduct violated Title II; (2)
              to what extent such misconduct also violated the Fourteenth
              Amendment; and (3) insofar as such misconduct violated Title
              II but did not violate the Fourteenth Amendment, whether
              Congress’s purported abrogation of sovereign immunity as to
              that class of conduct is nevertheless valid.

United States v. 

. Here, the district court correctly determined at the

first step of Georgia analysis that the state conduct at issue did not violate Title II because

Natarelli failed to allege facts sufficient to support an inference that his claimed exclusion

from VESID’s services was based on disabilities. Because this finding alone required

dismissal of Natarelli’s Title II claim, the district court need not have proceeded to the

subsequent steps of Georgia analysis by considering VESID’s sovereign immunity defense,

and we thus need not decide whether the district court’s finding of sovereign immunity was

warranted. See Thyroff v. Nationwide Mut. Ins. Co., 

, 405 (2d Cir. 2006)

(“[W]e are free to affirm a decision on any grounds supported in the record[.]”); cf.

Buchanan v. Maine, 

, 172-73 (1st Cir. 2006) (“If the State’s conduct does not

violate Title II, the court does not proceed to the next step in the [Georgia] analysis. The

claim ends.”).

       With respect to Natarelli’s ADEA claim, the ADEA does not abrogate a state’s

Eleventh Amendment immunity from suit for money damages. See Kimel v. Fla. Bd. of


                                              4
Regents, 

, 91 (2000). While “sovereign immunity ‘does not bar certain actions

against state officers for injunctive or declaratory relief,’” Conyers v. Rossides, 

, 150 (2d Cir. 2009) (quoting Alden v. Maine, 

, 757 (1999)), and Natarelli’s

complaint generally sought “equitable relief,” he failed to identify specifically which action

of VESID he wished to enjoin. The district court thus correctly dismissed his ADEA claim

on sovereign immunity grounds.

       We have reviewed Natarelli’s remaining arguments on appeal and conclude that they

are without merit.1 Accordingly, we AFFIRM the judgment of the district court.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




       1
          In addition to plaintiff’s briefs the court has reviewed his numerous supplemental
filings in deciding this appeal. Plaintiff is cautioned that such submissions are not consistent
with court procedures, which limit an appellant to one brief and one reply unless the court
permits otherwise. See Fed. R. App. P. 28(c); see also Fed. R. App. P. 27 (setting out
procedure governing motion for permission to make supplemental submission). Natarelli is
advised that any future submission to the court must conform to these rules.

                                               5