MEMORANDUM OPINION AND ORDER ON PENDING MOTIONS
LAWRENCE PIERSOL, District Judge
A pretrial conference was held in this case on Monday, September 20, 2010. The Court announced its ruling on some of the pending motions and heard oral argument on a number of other motions. This Order will address the following motions:
1. Docket 112: Motion for Summary Judgment on All Claims; 2. Docket 118: Motion to Strike Plaintiffs' Untimely Disclosure of Steve Timmerman as a Fact Witness; 3. Docket 120: Motion for Summary Judgment Based on Federal Preemption; 4. Docket 126: Second Motion for Partial Summary Judgment on Product Defect and Statutory Deceit Claims and on Lilly's Learned Intermediary Affirmative Defense; 5. Docket 135: Motion to Strike The Affidavit of Paul Forrest Hickman and to Prohibit Plaintiffs from Calling Mr. Hickman as a Fact or Expert Witness; 6. Docket 161: Motion to Compel (by Subpoena or Writ) Lilly to Produce Dr. Charles Beasley; 7. Docket 168: Motion to Strike Plaintiffs' Prozac-Related Designations and Evidence.
The Court is waiting to receive additional information from the parties in regard to Defendants' Motion for Summary Judgment on Plaintiffs' Failure to Warn Claims, doc. 123, and that motion will be addressed in a subsequent order. Defendants' Motion to Exclude the General Causation Opinion of Dr. Joseph Glenmullen, doc. 206, and Motion for Summary Judgment Based on the Exclusion of Dr. Joseph Glenmullen's General Causation Opinion, doc. 208, also will be addressed in the subsequent order.
DISCUSSION
1. Defendants' Motion for Summary Judgment on All Claims (Doc. 112).
In their written response to Defendants' motion for summary judgment on all claims, Plaintiffs indicated that they are not proceeding with the following claims: negligent misrepresentation, § 402B misrepresentation and warranty claims. Accordingly, those claims will be dismissed. At the pretrial conference on September 20, Plaintiffs said they are not pursuing their strict liability design defect claim. That claim also will be dismissed.
In addition to their negligent failure to warn claim, Plaintiffs assert three negligence claims against Defendants: 1) negligent failure to test; 2) negligent overpromotion; and 3) negligent infliction of emotional distress. For the following reasons, Defendants are entitled to summary judgment on these negligence claims.
First, in Burley v. Kytec Innovative Sports Equip., Inc. 737 N.W.2d 397 (S.D. 2007), the South Dakota Supreme Court said that there must be expert testimony on causation when it is outside the common experience and capability of a jury to determine that failure to test was the legal cause of an injury. There is no such expert testimony in the record in this case.
Secondly, there are no South Dakota cases recognizing overpromotion as a separate cause of action and, even if such a cause of action was recognized in South Dakota, the facts on the record in this case do not support a negligent overpromotion claim.
Third, bystander emotional distress claims have been recognized by the South Dakota Supreme Court if caused by contemporaneous observation of the serious injury or death of a third party with whom the bystander has a close relationship. The bystander must be within the zone of danger. The emotional distress suffered may be caused by fear for the third person and need not be caused by the bystander's fear for his own safety. The distress must be accompanied with physical manifestations. See Nielson v. AT T, 597 N.W.2d 434 (S.D. 1999). Plaintiffs did not contemporaneously observe Peter's suicide and they were not in the zone of danger.
Defendants also seek summary judgment on Plaintiffs' claims for deceit and punitive damages. Viewing the evidence in the light most favorable to Plaintiffs, the Court finds that genuine issues of material fact exist regarding those claims, including what information Lilly was aware of regarding Cymbalta and increased risk of suicide, and whether Lilly purposefully chose not to disseminate information linking Cymbalta to pediatric and adolescent suicide before Dr. Briggs prescribed Cymbalta to Peter. Because there is a genuine issue of material fact whether Lilly acted with the requisite intent, Defendants are not entitled to judgment as a matter of law on the deceit and punitive damage claims. Accordingly, Defendants' motion for summary judgment on all claims, doc. 112, is granted in part and denied in part.
2. Defendants' Motion to Strike Steve Timmerman as a Fact Witness (Doc. 118)
The parties agreed as a result of their Rule 26(f) conference that all pre-discovery disclosures pursuant to F.R.Civ.P. 26(a)(1) would be made no later than September 28, 2007. The discovery deadline for this case expired on September 8, 2008. In late September 2008, Plaintiffs served supplemental Rule 26 disclosures that for the first time identified Dr. Steven J. Timmerman as an individual likely to have discoverable information. Plaintiffs' disclosure of Dr. Timmerman was nearly a year overdue and was as follows:
Steve Timmerman
300 22nd Avenue
Brookings, SD 57006
Phone: 605-696-9000
See Form 35 Report, doc. 34, p. 4.
Defendants assert the supplemental disclosure was made on September 30, 2008. Plaintiffs represent the disclosure was made on September 23, 2008. The precise date is of no significance to this decision — the disclosure was untimely.
Doc. 132, p. 6. The disclosure does not give Defendants notice of the substance of Dr. Timmerman's expected testimony as required by Rule 26(a)(1)(A).
Dr. Timmerman is a doctor of pharmacy and friend of the Plaintiffs. After Peter's suicide, Dr. Timmerman visited with the Schilfs about issues relating to antidepressants, the distribution of pharmaceutical samples by physicians instead of pharmacists, and the FDA's mandate of black box warnings and the timing of Peter's death in relation to them. Defendants seek to have the late-filed supplemental disclosure of Dr. Timmerman stricken and request Plaintiffs be prohibited from calling Dr. Timmerman as a witness at trial. Plaintiffs counter that Defendants were made aware of Dr. Timmerman's name, credentials and views as early as June 14, 2006, during the deposition of Cynthia Schilf. Plaintiffs also provided copies of Dr. Timmerman's writings to Defendants on October 31, 2006. Plaintiffs indicate Dr. Timmerman was again discussed during Paul Schilf's deposition on September 10, 2008. Plaintiffs assert, therefore, the supplemental disclosure in late-September of 2008 was "merely a formality." Neither party has suggested Dr. Timmerman has first hand relevant knowledge of the factual matters at issue. Moreover, Plaintiffs have not disclosed Dr. Timmerman as an expert witness. In fact, by Plaintiffs' own admission their disclosure included only his name, address, and telephone number and gave no indication of the substance of his testimony.
Dr. Timmerman opposes pharmaceutical samples being distributed by physicians
Federal Rule of Civil Procedure 37(c)(1) states that "[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Significantly, "[w]hen a party fails to provide information . . . in compliance with Rule 26(a) or (e), the district court has wide discretion to fashion a remedy or sanction as appropriate for the particular circumstances of the case." Wegener v. Johnson, 527 F.3d 687, 692 (8th Cir. 2008); see also In re Baycol Products Litigation, 596 F.3d 884, (8th Cir. 2010). "The district court may exclude the information or testimony as a self-executing sanction unless the party's failure to comply is substantially justified or harmless." Wegener, 527 F.3d at 692. "When fashioning a remedy, the district court should consider, inter alia, the reason for the noncompliance, the surprise and prejudice to the opposing party, the extent to which allowing the information or testimony would disrupt the order and efficiency of the trial, and the importance of the information or testimony." Id.
Applying the Eighth Circuit's factors, the Court concludes that the failure to disclose Dr. Timmerman as a witness is not substantially justified and exclusion of Dr. Timmerman as a witness is appropriate. A review of Dr. Timmerman's Affidavit, doc. 126, exhibit 1, coupled with the parties' assertions of his expected testimony, reveals Dr. Timmerman has no first hand knowledge of the factual matters at issue in this case. His testimony as a fact witness would constitute inadmissible hearsay. Dr. Timmerman's opinions concerning pharmaceutical samples being distributed by physicians are more prejudicial than probative. Thus, Defendants' motion to strike, doc. 118, is granted.
Defendants' practice of distributing professional pharmaceutical samples to physicians is specifically authorized under federal law. See, generally, 21 C.F.R. § 203, Subpart D.
3. Defendants' Motion for Summary Judgment Based on Federal Preemption (Doc. 120)
Defendants assert they are entitled to summary judgment on all of Plaintiffs' claims because Plaintiffs' claims are preempted by the federal Food, Drug and Cosmetic Act ("FDCA"), 21 U.S.C. § 301, et seq., and its implementing regulations. Plaintiffs assert that, at least as of September or October, 2004, Lilly knew that the existing suicide warning on Cymbalta was inadequate for the protection of pediatric users of the drug, both because the warning was not strong enough and because the warning did not appear on the label in a manner and form sufficient to protect pediatric users. Thus, several weeks before Peter Schilf's physician gave him a sample pack of Cymbalta, Lilly knew that its drug was misbranded under federal law. Defendants argue that the FDA specifically directed Lilly not to implement a black box warning until FDA gave Lilly notice and approval, and that such notice and approval was not given until after Peter Schilf's death. Thus, according to Defendants, any claim that Lilly did not implement those warnings sooner is preempted. Plaintiffs acknowledge that Lilly did what the FDA specifically directed it to do, but contend that Lilly could have "gotten the word" out in a number of ways to inform the public that the FDA had concluded Cymbalta's existing warnings were inadequate, that the FDA had requested a black box warning, and that discussions on the final language of that warning were ongoing.
While this motion was pending the United States Supreme Court decided Wyeth v. Levine, ___ U.S. ___, 129 S.Ct. 1187 (2009). In Wyeth, the Supreme Court ruled that failure to warn claims against drug manufacturers are not preempted by the FDCA:
If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express pre-emption provision at some point during the FDCA's 70-year history. But despite its 1976 enactment of an express pre-emption provision for medical devices, . . . Congress has not enacted such a provision for prescription drugs. . . . Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.
Wyeth, 129 S.Ct. at 1194-95. The majority rejected the legal argument that Wyeth could not unilaterally add a warning without violating federal law governing misbranding and unauthorized distribution of unapproved drugs. After rejecting Wyeth's argument that it was not legally possible to change its labeling unilaterally, the majority looked for "clear evidence" in the record that FDA would not have approved a change to Phenergan's package insert. After
Wyeth, lower courts are left to determine what satisfies this "clear evidence" standard in each case. Plaintiffs in the present case argue that an email from the FDA indicating that Lilly should not change the Cymbalta label until it is finally approved by the FDA is not "clear evidence" that the FDA would have rejected attempts by Lilly to "get the word out" in other ways. The Court agrees. The record in this case does not contain clear evidence of preemption.
See Mensing v. Wyeth, 588 F.3d 603 (8th Cir. 2009) (state failure to warn claim against a generic manufacturer not preempted by federal law requiring labeling
of a generic drug be identical to that of the name-brand product on which it is based; FDA's statement that generic manufacturers may not revise their labeling to vary from that of the name brand not clear evidence that the FDA would reject the labeling changes argued by the plaintiff);
In re Prempro Products Liability Litigation, 586 F.3d 547 (8th Cir. 2009) (rejecting preemption argument by a name-brand drug manufacturer).
See also Mason v. SmithKline Beecham Corp., 596 F.3d 387 (7th Cir. 2010) (reversing dismissal, based on preemption, of claim that Paxil's labeling failed to warn of suicide risk among young adults; defendant did not show that the FDA likely would have rejected tougher warnings on Paxil's purported suicide risks had defendant voluntarily pursued such a change when it submitted data to the FDA before the suicide). Accordingly, Defendants' motion for summary judgment based on federal preemption, doc. 120, is denied.
4. Plaintiffs' Motion for Partial Summary Judgment on Product Defect, Deceit and Learned Intermediary Defense (Doc. 126)
As stated earlier, Plaintiffs are not pursuing the strict liability design defect claim, so that portion of this motion will be denied as moot. In denying Defendants' motion for summary judgment on the deceit claim, the Court indicated that questions of material fact exist regarding Defendants' intent. Plaintiffs' motion for summary judgment on the deceit claim also will be denied for that reason. Finally, the motion for summary judgment on the learned intermediary defense will be addressed in the Court's subsequent order on the failure to warn claims.
5. Defendants' Motion to Strike Affidavit of Paul Forrest Hickman and to Preclude Plaintiffs from Calling Ms. Hickman as a Witness (Doc. 135)
The discovery deadline expired on September 8, 2008. On October 20, 2008, Plaintiffs filed their Renewed Motion for Partial Summary Judgment and in support thereof submitted the Affidavit of Paul Forrest Hickman, doc. 127, attachment 6. Hickman had not previously been disclosed as an individual likely to have discoverable information.
Hickman is the office manager for Internet Archive. Internet Archive is a website that provides access to a digital library of internet sites. Further, Internet Archive has created a service known as the Wayback Machine. The Wayback Machine makes it possible to locate an archived version of a website. The Internet Archive receives data which is donated from third parties. Attached to the Hickman Affidavit are various printouts of the Internet Archive's records. Plaintiff asserts that the documents show the cymbalta.com website did contain the BLACK BOX warning as early as December 9, 2004. This contradicts the testimony of Lilly's Cymbalta website team leader that Lilly was unable to put language from the BLACK BOX warning or the patient medication guide on its website prior to FDA approval in February 2005.
Plaintiffs' response indicates they "had no intention of calling Hickman as a witness either via deposition or at trial." However, Plaintiffs resist the motion to strike Hickman's affidavit and assert Defendants' motion is nothing more than a poorly disguised effort to exclude authenticated and relevant documents. In their reply, Defendants clarify their motion to strike is not a motion to exclude the documents attached to the Hickman affidavit, but it is instead a motion to exclude Hickman as a fact or expert witness during the trial because of Plaintiffs' failure to disclose Hickman as a witness as required by Rule 26.
Based on the representations in the parties' briefs, the Court concludes that Defendants do not object to the documents attached to the Hickman affidavit, and those documents have been considered by the Court for purposes of Plaintiffs' motion for partial summary judgment. Plaintiffs will be precluded from calling Ms. Hickman as a witness. Accordingly, Defendants' motion to strike the Hickman Affidavit is denied, and their motion to prohibit Plaintiffs from calling Ms. Hickman as a witness is granted.
6. Plaintiffs' Motion to Compel Lilly to Produce Dr. Charles Beasley (Doc. 161)
Dr. Beasley is a Lilly employee who lives in Indiana. He has never served as an officer or director of Lilly; he has not been designated as a Rule 30(b)(6) witness or disclosed as a witness with knowledge in this case; his deposition was never taken or requested to be taken by Plaintiffs until after discovery was closed and dispositive motions had been filed. Plaintiffs now ask the Court to compel Dr. Beasley's appearance at trial. Plaintiffs admit there is no legal authority in support of their request. Plaintiffs assert that they need testimony from Dr. Beasley to support their punitive damage claim because he was Lilly's "go to guy" for Prozac-related information. The Court concludes that it has no authority to compel Dr. Beasley's appearance or testimony in this case, and Plaintiffs' motion to compel Lilly to produce Dr. Beasley, doc. 161, will be denied.
7. Defendants' Motion to Strike Plaintiffs' Prozac-Related Designations and Evidence (Doc. 168)
In support of their punitive damage claim, Plaintiffs designated portions of Dr. Beasley's deposition taken in November of 2000, in a Prozac case in the United States District Court in Vermont. Plaintiffs also designated deposition excerpts of several other current and former Lilly employees who had some involvement with Prozac, including Gary Tollefson, Mitchell Daniels, Leigh Thompson, and Allan Weinstein. Like Dr. Beasley, these individuals were not disclosed as witnesses with knowledge or deposed in this case. The Court concludes that Plaintiffs' Prozac-related deposition designations and additional materials are irrelevant to Plaintiffs' claim for punitive damages in this case. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 401, 422 (2003); Philip Morris USA v. Williams, 549 U.S. 346, 354 (2007). As stated by the Court at the pretrial conference, this ruling is limited to Plaintiffs' claim for punitive damages. If Plaintiffs seek to admit Prozac evidence during the trial for an issue other than punitive damages, the Court will rule on any objections made to the evidence at that time. For all of these reasons,
IT IS ORDERED:
1. That Defendants' Motion for Summary Judgment on All Claims, doc. 112, is granted as to the following claims: negligent misrepresentation; negligent failure to test; negligent overpromotion; negligent infliction of emotional distress; § 402B misrepresentation; warranty claims; and strict liability design defect claim. The Defendants' Motion for Summary Judgment on All Claims, doc. 112, is denied as to Plaintiffs' claims for deceit and punitive damages.
2. That Defendants' Motion to Strike Steve Timmerman as a Witness, doc. 118, is granted.
3. That Defendants' Motion for Summary Judgment Based on Federal Preemption, doc. 120, is denied.
4. That Plaintiffs' Motion for Partial Summary Judgment, doc. 126, is denied. The portion of the motion regarding the learned intermediary defense will be addressed in a subsequent order.
5. That Defendants' Motion to Strike Affidavit of Paul Forrest Hickman, doc. 135, is denied; and Defendants' Motion to Preclude Plaintiffs from Calling Ms. Hickman as a Witness, also doc. 135, is granted.
6. That Plaintiffs' Motion to Compel Lilly to Produce Dr. Charles Beasley, doc. 161, is denied.
7. That Defendants' Motion to Strike Plaintiffs' Prozac-Related Designations and Evidence, doc. 168, is granted as to Plaintiffs' punitive damage claim.
Dated this 30th day of September, 2010.
nd-programs29 U.S.C. § 794(a). Housing regulations define a "qualified individual" under Section 504 as "an individual with handicaps who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifications in the program or activity that the recipient can demonstrate would result in a fundamental alteration in its nature."
24 C.F.R. § 8.3.
The defendants move to dismiss Super's claims that they failed to provide a reasonable accommodation on the following grounds: (1) the "accommodation" requested in Super's complaint does not amount to a reasonable accommodation as a matter of law; (2) the pleadings do not establish that her requested accommodation was "necessary" to permit her to continue living independently in spite of her disability; (3) Super has not alleged that her disability was the sole basis for the termination of her Section 8 benefits; (4) the pleadings do not allege sufficient personal involvement by the defendants to establish liability under the FHA; and (5) certain defendants — namely, DSS and Wilson-Coker — are immune from suit under the Eleventh Amendment. Before examining the bases for the defendants' motions to dismiss, however, it is helpful to set forth the relevant statutory and regulatory provisions governing Section 8, the benefits of which Super claims she was unlawfully denied, and its interaction with the FHA, ADA, and Section 504. Once the governing law is set forth, I turn to the defendants' specific bases for seeking dismissal of Super's complaint.
1. Section 8 and the reasonable accommodation requirement of the FHA, the ADA, and Section 504
Section 8 was established by the United States Housing Act ("USHA") and, as mentioned above, provides a federal subsidy in the form of a rental voucher for low-income tenants. Under the statutory and regulatory framework, each of the parties to an individual Section 8 voucher — the tenant, the landlord, and the PHA — is subject to different requirements with respect to ensuring that Section 8 housing remains crime-free. A tenant, for example, "may not engage in drug-related criminal activity or violent criminal activity or other criminal activity that threatens the health, safety, or right to peaceful enjoyment of other residents and persons residing in the immediate vicinity of the premises." 24 C.F.R. § 982.551(l). Similarly, a landlord must include language in the lease stating that such violent criminal activity "shall be cause for termination of the tenancy." 42 U.S.C. § 1437f(o)(7)(D). And a PHA is responsible for "establish[ing] standards that allow the PHA to terminate assistance under the program for a family if the PHA determines that any household member has violated the family's obligation under § 982.551 not to engage in violent criminal activity." 24 C.F.R. § 982.553(b). When a PHA uses a criminal record to terminate a tenant's Section 8 assistance, it must notify the tenant and give her "an opportunity to dispute the accuracy and relevance of that record." § 982.553(d)(2). By the same token, a hearing is required for terminating Section 8 assistance for the tenant's criminal activity. § 982.555(a)(1)(v).
Section 8, however, must be administered in a way that complies with "all equal opportunity requirements imposed by contract or federal law," including the FHA, ADA, and Section 504; moreover, PHAs must be certified as administering their Section 8 programs accordingly. 24 C.F.R. § 982.53(a)-(b). One such equal opportunity requirement is the reasonable accommodation rule of the FHA, found in 42 U.S.C. § 3604(f)(3)(B), which states that a landlord or PHA may not discriminate against a disabled tenant by failing to make "reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." See also 24 C.F.R. § 982.552(c)(2)(iv) (mandating that if the tenant is disabled, the PHA's final decision with respect to denial of Section 8 assistance must consider whether a reasonable accommodation would enable the tenant to continue receiving her rental subsidy).
The right to an accommodation is neither automatic nor unlimited, however. Rather, to prove that she is entitled to an accommodation, a plaintiff such as Super must demonstrate that the accommodation is "(1) reasonable, and (2) necessary, (3) to afford a disabled person the equal opportunity to use and enjoy a dwelling." Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d 775, 783-84 (7th Cir. 2002) (citing 42 U.S.C. § 3604(f)(3)(B) and cases). The plaintiff has the burden of producing evidence establishing a prima facie case, although she only has the burden of persuasion for the second and third elements. Id.; see also US Airways, Inc. v. Barnett, 535 U.S. 391, 402 (2002) (favoring lower courts' burden-shifting approach in ADA and Section 504 cases); Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995) (establishing analogous burden-shifting framework in Section 504 case). That is, Super must allege — and eventually prove — sufficient facts to demonstrate a facial claim that the defendants denied her an accommodation that was reasonable and necessary to afford her equal opportunity to use and enjoy her apartment.
There is no claim from the defendants that Super is not disabled within the meaning of the FHA, ADA, or Section 504.
One factor that affects the reasonableness of a requested accommodation is safety. See Oconomowoc, 300 F.3d at 786 (accepting that public safety can be a basis for not granting an accommodation, but only if there is particular evidence introduced of the tenant's safety risk). For example, the FHA specifically excepts landlords from providing reasonable accommodations to a tenant who "constitute[s] a direct threat to the health or safety of other individuals or whose tenancy would result in substantial physical damages to the property of others." 42 U.S.C. § 3604(f)(9). But if an accommodation would permit a disabled tenant to use and enjoy housing and eliminate the safety risk, then the landlord is obligated to make it. E.g., Arnold Murray Constr., LLC v. Hicks, 621 N.W.2d 171, 175 (S.D. 2001) (discussing House Judiciary Committee report on FHA's "direct threat" exception); see generally Jennifer L. Dolak, Note, The FHAA's Reasonable Accommodation Direct Threat Provisions As Applied to Disabled Individuals Who Become Disruptive, Abusive, or Destructive in Their Housing Environment, 36 Ind. L. Rev. 759 (2003) (describing law of reasonable accommodation for tenants who pose nuisance or safety risks because of their disabilities). Although this motion to dismiss concerns claims against the PHA, and not the landlord, the inclusion of the direct threat exception in § 3604 is a useful restatement of the principle that a disabled tenant's right to an accommodation under the FHA is checked by the competing value of ensuring the safety of other tenants and the public.
Moreover, in a case where the requested accommodation is an exception to the application of a neutral rule, such as the defendants' prohibition of Section 8 assistance for convicted felons or people who have committed acts of violence on their property, the plaintiff faces a more difficult burden of establishing that her request is reasonable. "[S]uch adjustments are ordinarily not reasonable accommodations, and therefore are required only in unusual circumstances." Giebler v. M B Assocs., 343 F.3d 1143, 1154 (9th Cir. 2003) (emphasis in original) (applying Barnett, 535 U.S. at 401). Super, rather, must plead "that special circumstances warrant a finding that the requested accommodation is reasonable on the particular facts." Id. (quoting Barnett, 535 U.S. at 405). Ultimately, the reasonableness of Super's requested accommodation will be a highly-fact specific inquiry that "evaluates the desireability of a particular accommodation according to the consequences that the accommodation will produce." Borkowski, 63 F.3d at 138.
That leads to the core dilemma of this case: resolving the tension between accommodating an individual disabled tenant without jeopardizing the welfare of her neighbors and the public. The defendants contend that safety is a, if not the, paramount virtue of Section 8, and therefore the denial of rental assistance to Super — which arose from the application of a neutral policy against a tenant convicted of a violent felony committed at her residence — was warranted and legal. Super, by contrast, argues that although safety is important, it does not absolve the PHA of its responsibility to make a fact-specific determination that a disabled person's possible dangerousness cannot reasonably be accommodated and to make reasonable accommodations that permit a disabled tenant to continue receiving Section 8 payments. According to Super's complaint, the defendants failed in both regards. Having set forth the governing law, I turn now to the defendants' asserted grounds for dismissing Super's complaint.
2. Was Super's request an "accommodation" under the FHA?
Although it is not the defendants' leading argument in their briefs, the issue whether Super requested an accommodation is an appropriate place to start because if Super's request is not cognizable as an "accommodation," then she has no claim of discrimination under the FHA, ADA, or Section 504. The defendants characterize Super as requesting only a "second chance" — i.e., a pardon of her previous misconduct with no other conditions or modifications to her continued residence — to continue receiving Section 8 assistance. They argue that a request for a second chance and an exception to the application of a neutral policy does not constitute an accommodation under the FHA. In support, they cite several decisions where courts have held that, in the employment context, a "second chance" reinstatement after termination is, as a categorical matter, not a reasonable accommodation under Title I of the ADA, which prohibits an employer from discriminating on the basis of disability. E.g., Burroughs v. City of Springfield, 163 F.3d 505, 507-08 (8th Cir. 1998); Siefken, 65 F.3d at 666-67; Van Ever v. N.Y. State Dep't of Corr. Servs. at Sing-Sing Corr. Facility, No. 99cv12348 (SAS), 2000 WL 127713, at *3-*4 (S.D.N.Y. Nov. 21, 2000); Corr v. MTA Long Island Bus, 27 F. Supp. 2d 359, 368 (E.D.N.Y. 1998), aff'd, 199 F.3d 1321 (2d Cir. 1999) (unpublished opinion).
The defendants' contention that so-called "second chances" cannot be accommodations under the FHA is an overstatement. Courts have accepted a second chance — that is, a tenant's opportunity to remain in her dwelling notwithstanding the landlord's disability-neutral justification for eviction — as an accommodation, provided that it is coupled with the tenant seeking assistance for her disability. See, e.g., Boston Hous. Auth. v. Bridgewaters, 898 N.E.2d 848, 859 (Mass. 2009) (holding that tenant's request for housing authority to "depart from its policy of evicting tenants for engaging in a violent act, and reinstate his tenancy" constituted an accommodation under the FHA); City Wide Assocs. v. Penfield, 564 N.E.2d 1004 (Mass. 1991) (upholding landlord's refusal to take further steps toward eviction as an accommodation); cf. Groner v. Golden Gate Gardens Apartments, 250 F.3d 1039, 1042 (6th Cir. 2001) (describing landlord as agreeing to accommodate tenant by extending his lease one month while tenant sought treatment, although ultimately holding that subsequent accommodation was not reasonable). And the Department of Housing and Urban Development and the Department of Justice concur that an accommodation may take the form of permitting the continuance of a tenancy while a tenant seeks treatment. Joint Statement of the Dep't of Hous. Urban Dev. the Dep't of Justice, Reasonable Accommodations Under the Fair Housing Act 5 (May 17, 2004), Attach. 1 to Pl.'s Mem. in Opp'n (doc. # 51). Indeed, decisions that have held a continued tenancy not to be an accommodation have done so not on the basis that a so-called "second chance" is categorically not an accommodation, but because, on the facts presented, a continued tenancy would not have permitted the tenant to enjoy her dwelling and eliminate the risks to others. See, e.g., Groner, 250 F.3d at 1045 (concluding that tenant failed to put forward evidence showing that proposed accommodation would be reasonable); Arnold Murray Constr., 621 N.W.2d at 176 (upholding trial court's finding that tenant posed a direct threat to others and that his proposed accommodation to delay eviction would not have eliminated that threat). But see Evans v. UDR, Inc., 644 F. Supp. 2d 675, 684-85 (E.D.N.C. 2009) (holding that accommodation to policy against renting to felons whose crimes were directly related to their mental disabilities was not required under FHA because FHA's purpose was "the elimination of stereotypes based on physical and mental disabilities" and not "perceptions about the criminal histories of those with disabilities").
Furthermore, the employment cases that the defendants cite are distinguishable. The defendants' cited decisions offer brief, cursory explanations for why a second chance does not qualify as an accommodation. But they can be generally unified as expressing the point that a request for an accommodation is valid only if it will effectively enable the person to perform the essential functions of his or her position. Cf. US Airways, Inc. v. Barnett, 535 U.S. 391, 401 (2002) (defining, in ADA case, an "accommodation" in terms of its effectiveness in enabling an employee to work). In all of the decisions the defendants cite, the requested "second chance" would be an ineffective way of ensuring that the employee could perform her job.
In Burroughs, the plaintiff police officer was diagnosed as a diabetic before being hired and had assured his employer that his disability "was under control," but proved unable to perform his work because of bouts of hypoglycemia. 163 F.3d at 506, 507. The Burroughs Court deemed the police officer's request to remain in his position on the promise that he would improve his glucose monitoring to be too conjectural and insufficiently effective in permitting him to perform the essential functions of his position. Id. at 507-08. Siefken, on which the Burroughs Court heavily relied, is similar: in that case, involving another known diabetic police officer who suffered a glucose-related spell during a shift, the Seventh Circuit denied a "second chance" as an accommodation because the plaintiff had already failed "to control a controllable disability" and his continued employment would do nothing to ensure that he would control it in the future. 65 F.3d at 666-67. And Corr confirms that a second chance is an inappropriate accommodation if it does not permit an employee to perform the essential functions of his position immediately; in other words, if the risk that the employee cannot perform his job's tasks is still present even with a modification, then the requested modification to his employment is not an accommodation. 27 F. Supp. 2d at 368.
In total, those cases hold that an employee with a manageable disability who fails to manage it appropriately is not entitled to a second chance to continue his employment as he did before. That is because a second chance, by itself, offers no additional safeguard or guarantee of effectiveness. In other words, a second chance is not appropriate when there is no evidence that maintaining the status quo will be sufficient to keep the person employable.
Super is requesting that her Section 8 PHA allow her to continue receiving her rental subsidy — i.e., she proposes as an accommodation that the defendants continue what they did before. Her request is distinguishable from those in the defendants' employment cases, however, because she is seeking psychiatric treatment that she was not previously receiving, and which she is compelled to receive pursuant to a court order. Unlike the diabetic employee cases, Super did not have adequate mental health therapy before and after the requested accommodation. The accommodation, therefore, is not a return to the status quo before her attempted assault; instead, it is a means of improving Super's condition from before her arrest and preventing any future crimes from occurring. Indeed, if an analogy is to be drawn to the disability employment cases the defendants invoke, Super's request to continue receiving rental subsidies is equivalent to an accommodation granting an employee leave to seek treatment for his or her disability. See, e.g., Van Ever, 2000 WL 1727713, at *3-*4 (holding than the ADA requires that an alcoholic employee be given unpaid time off to receive treatment, but that the statute "does not protect an alcoholic from the consequences of his behavior"). That is, Super alleges that she should have been permitted to continue receiving rental subsidies while she received mental health treatment, akin to an employee staying on an employer's books during unpaid leave for medical treatment, but that she may still lose her benefits if she engages in another violent outburst or if her treatment proves unproductive. In the employment context, to which the defendants want to analogize this case, disabled employees are entitled to some form of accommodation to permit them time to obtain the medical help they need. Super, arguably, should be entitled to the same kind of accommodation with respect to her housing benefits.
The complaint does not say this outright. But this is how one can most favorably read paragraph 40 of that document, in which Super describes the evidence she put forward at her November 17, 2008 hearing. The statements of her social workers and other therapists suggest that she was receiving treatment following her assault of Murphy that she did not have access to beforehand.
It is therefore not appropriate to hold that an extension of Super's disability benefits while she receives mental health treatment cannot be an accommodation as a matter of law. An extension of Section 8 benefits can serve as an accommodation when there is evidence to support the plaintiff's contention that continued rental subsidies will effectively allow her to use and enjoy her dwelling without posing a threat to her neighbors and the public. Dismissal of Super's claims against the defendants is not warranted, therefore, because the complaint, when taken in the light most favorable to Super, alleges facts that could support a finding that her request to continue receiving Section 8 benefits while she sought court-ordered psychiatric care was a reasonable accommodation.
Wilson-Coker, in her reply brief, makes an additional argument that a so-called "second chance" cannot be an accommodation under the FHA. She argues that permitting such an accommodation would create discord between the FHA and the USHA, which establishes the Section 8 program, because it favors the FHA's reasonable accommodation requirement relative to the safety interest found in Section 8's law and regulations. In support, Wilson-Coker cites Traynor v. Turnage, 485 U.S. 535, 547-51 (1988), a case in which the Supreme Court applied the "cardinal rule" against legislative repeals by implication to uphold a provision in the "G.I. Bill" against the subsequently passed Rehabilitation Act. The defendant's argument misses the mark, however, for the simple reason that permitting a mentally disabled tenant to receive an accommodation of continued benefits does not create disharmony between the Section 8 provisions of the USHA and the reasonable accommodation requirement of the FHA. Indeed, Wilson-Coker points to no specific provision in the USHA that would be implicitly repealed by holding that a PHA may have to permit a tenant to continue to receive benefits after she has committed a crime in her dwelling. Cf. Traynor, 485 U.S. at 547 (describing tension between G.I. Bill provision barring tardy benefit application by "willfully" alcoholic veterans and Section 504's requirement that government services provide reasonable accommodations for disabled people). The defendant relies entirely on a purposive statement of 42 U.S.C. § 1437(a)(1)(A) that the Section 8 voucher program is to "remedy the unsafe housing conditions and the acute shortage of decent and safe dwellings to low-income families." Notably, Wilson-Coker does not account for 24 C.F.R. § 982.552(c)(2)(iv), which, although an administrative regulation and not a legislative statute, mandates a PHA to consider whether a reasonable accommodation would make it possible for a tenant to maintain her Section 8 assistance.
Contrary to the defendant's claims, there is nothing inconsistent between (1) the general proposition that Section 8 is supposed to make living conditions safer, and (2) permitting a mentally disabled person to continue receiving rent subsidies so long as that accommodation is reasonable and will not pose a threat to others. Wilson-Coker is wrong to say that it would be a "mockery" to Section 8 to find that Super's proposed accommodation might be legally acceptable. Def.'s Reply 17 n. 9. The PHA in this case may very well have been entitled to terminate Super's Section 8 assistance because of her criminal conduct. But the reason the PHA defendants were authorized to do so is not because granting such an accommodation is inherently inconsistent with Section 8, but because the accommodation is not reasonable or necessary under the FHA. The safety purpose of Section 8, in other words, is adequately protected by the FHA's definition of accommodations as only those that are reasonable, i.e., those that will allow a mentally disabled tenant to use and enjoy her dwelling while also neutralizing whatever threat she poses to her neighbors and the public.
3. Was Super's requested accommodation necessary?
Next, the defendants argue that Super has not pled facts showing that the requested accommodation is necessary to afford her equal opportunity to use and enjoy her dwelling. In order to allege the necessity of her accommodation, Super "must show that, but for the accommodation, [she] likely will be denied an equal opportunity to enjoy the housing of [her] choice." Tsombanidis, 352 F.3d at 578 (quotation omitted); see also Bryant Woods, 124 F.3d at 604 ("The `necessary' element . . . requires the demonstration of a direct linkage between the proposed accommodation and that `equal opportunity' to be provided to the handicapped person. This requirement has attributes of a causation requirement."). The defendants, citing Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), argue that Super has failed to meet her obligation to plead sufficient facts to establish a plausible claim that Section 8 rental assistance was necessary for her to live where she wanted.
The defendants are challenging only the necessity, and not the "reasonableness," of Super's requested accommodation. See Wilson-Coker Mem. of Law 36 n. 25.
Iqbal requires that Super's complaint must be more than a conclusory "formulaic recitation of the elements" of a discrimination claim, id. at 1949, 1951, and that Super's complaint alleges sufficient facts for a judge, drawing on his or her "judicial experience and common sense," to find that it states a "plausible claim" for relief. Id. at 1950. Super has certainly done more than recite the elements of an FHA claim; in her complaint, she makes factual assertions to demonstrate how the defendants allegedly failed to provide her a reasonable accommodation. And there is nothing in Super's complaint with respect to the necessity of her requested accommodation that is implausible. Super has alleged that she is a mentally disabled woman who receives social security benefits; although she lived for years without Section 8 assistance, she applied for and received them in February 2008 and, after their termination and her eviction, she moved in with her parents, where she resides to this day. Those allegations establish a plausible causal link between her disability, her requested accommodation, and her housing: without the requested accommodation of continued Section 8 benefits, Super cannot obtain housing on her own because of her mental illness. The asserted facts state a plausible claim that Super needed Section 8 assistance in order to continue living independently and in the housing of her choice.
Thus, the complaint, when read in the light most favorable to Super, shows that her mental disability (1) limits her ability to work and earn enough to live independently, and (2) has hindered her ability to receive a rental subsidy because her psychiatric illness allegedly led her to commit a crime, the combination of which renders her ineligible for Section 8 and economically unable to live on her own. The pleadings demonstrate a plausible, and not merely possible, case for the necessity of Super's requested accommodation. Cf. Logan v. Sectek, Inc., 632 F. Supp. 2d 179 (D. Conn. 2009) (holding that plaintiff pled enough facts to establish "possible," but not "plausible," disability within the meaning of the ADA).
4. Was Super's Section 8 rental assistance denied solely on the basis of her disability?
The defendants argue that in order for Super to succeed on her ADA and Section 504 claims (but not her FHA claim), she must allege that the defendants' denial of Section 8 assistance and refusal to make an accommodation were based solely on her disability. That, however, is a misstatement of the law. It is true that in ADA and Section 504 claims for intentional discrimination — i.e., disparate treatment on the basis of disability — the plaintiff must allege and prove that the defendant acted with discriminatory purpose. See Reg'l Econ. Cmty. Action Program, Inc. v. City of Middletown, 294 F.3d 35, 49 (2d Cir. 2002) (" RECAP") (describing element of intentional discrimination in disparate treatment claim and who carries the burdens of persuasion and production); LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir. 1995) ("Under the [disparate treatment] theory, a plaintiff can establish a prima facie case by showing that animus against the protected group was a significant factor in the position taken by the municipal decision-makers. . . ." (quotation omitted)); Jaramillo v. Prof'l Examination Serv., Inc., 544 F. Supp. 2d 126, 130-31 (D. Conn. 2008) (distinguishing ADA claims as requiring plaintiff to show defendant's animus was a "significant factor" in its action, from Section 504 claims requiring plaintiff to show defendant's animus was the "sole reason" for its action). Super, however, is not presenting a disparate treatment claim. Rather, she is charging that the defendants discriminated against her by failing to grant her a reasonable accommodation. See RECAP, 294 F.3d at 48-53 (distinguishing disparate treatment, disparate impact, and reasonable accommodation claims); Taylor, 267 F.R.D. at 50-51 (distinguishing intentional discrimination and reasonable accommodation claims).
The proper test for a reasonable accommodation claim under the ADA and Section 504 is whether Super was denied Section 8 rental assistance "by reason of [her] disability." Henrietta D. v. Bloomberg, 331 F.3d 261, 277 (2d Cir. 2003) (quoting 42 U.S.C. § 12132). In other words, Super must plead that she required an accommodation, and was ultimately denied housing benefits, "because of her disability" — that is, but for her mentally illness, she would not have needed to request an exception to the application of the defendants' Section 8 policies and her rental assistance would not have been terminated. Id. at 278. Framed this way, the onus of the reasonable accommodation analysis is not the defendants' purpose in terminating Super's rental subsidy, but whether Super was unable to comply with the defendants' neutral policy and was denied her Section 8 rental assistance because of her disability.
In their briefs, the defendants cite Jaramillo, where the district court applied the "sole reason" test to the plaintiff's Section 504 reasonable accommodation claim. But that discussion in Jaramillo was arguably dicta: the district court granted summary judgment to the defendants because no reasonable jury could find that the accommodation offered to the plaintiff was unreasonable. 544 F. Supp. 2d at 131. Furthermore, the district court's application of the "sole reason" test appears to have been based on an over-reading of RECAP, the only case that the Jaramillo Court cited for its analysis. See id. The RECAP decision discussed the "sole reason" test only in the context of ADA disparate treatment claims. So, too, did the decisions supporting RECAP concern disparate treatment, and not reasonable accommodation, claims. E.g., LeBlanc-Sternberg, 67 F.3d at 425. Jaramillo is neither persuasive nor binding here; rather, the better authority is Henrietta D., which postdates RECAP and concerns a reasonable accommodation cause of action.
Super has pled enough facts to show that her mental disability contributed to her assault of Murphy. Paragraph 29 of the Complaint states that Murphy's behavior "exacerbated plaintiff's mental impairments and caused her great emotional upset," and that her subsequent actions for which she was arrested and prosecuted were "[i]n response" to that psychological disturbance. At the motion to dismiss stage, that is enough to create a link between her purported disability and the denial of her rental subsidy, and to give rise to the inference that Super's Section 8 rental assistance was terminated by reason of her disability. Of course, Super will have the burden of proving at trial that she assaulted Murphy and subsequently lost her Section 8 benefits because of her disability, which may prove difficult. But, at this stage, when the court must take the allegations in the light most favorable to the plaintiff, Super's complaint is sufficient to withstand the defendants' motions to dismiss.
5. Did the defendants have the requisite personal involvement?
Defendants Wilson-Coker and Nelson claim that they cannot be sued in this case because Super has failed to plead enough facts establishing that they were personally involved in and responsible for the termination of the plaintiff's Section 8 assistance. Their personal-involvement defense has two dimensions: Wilson-Coker and Nelson argue that they cannot be sued for an FHA violation because they were not individually responsible for the termination of Super's rental subsidy and, additionally, they cannot be held vicariously liable for alleged wrongs committed by their subordinates.
In her objection to Wilson-Coker's motion to dismiss, Super concedes that Wilson-Coker should not be a defendant in this case, albeit on a different ground: Wilson-Coker resigned from DSS in 2007, before the events of this case, and the current DSS Commissioner, Michael P. Starkowski, should be substituted for her. Because I ultimately grant Super's motion for leave to amend her complaint, I will substitute Starkowski for the purpose of this discussion.
The defendants make an allusion to section 1983 doctrine, although Super is not suing under section 1983, that in order for a public official to be liable under the FHA, ADA, and Section 504, he or she must have been personally involved in the commission of the tort such that the alleged harm is traceable to him or her. E.g., Williams v. Smith, 781 F.2d 319, 323 (2d Cir. 1986). An official can be personally involved in a section 1983 case — and, presumably, an FHA, ADA, or Section 504 case — in several ways: by "directly participating in the infraction"; by "creat[ing] a policy or custom under which unconstitutional practices occurred, or allow[ing] such a policy or custom to continue"; or by being "grossly negligent in managing subordinates who caused the unlawful condition or event." Id. The defendants are also correct in noting that there is no vicarious liability by which a supervisory official can be held legally responsible purely for having supervised a subordinate who violated the plaintiff's rights. Meyer v. Holley, 537 U.S. 280, 285-91 (2003).
Even assuming this section 1983 law were relevant, none of it is helpful to the defendants. It is true that neither Starkowski nor Nelson made the final decision to terminate Super's Section 8 assistance. But that does not mean that they were either not responsible or could only be found responsible under a theory of vicarious liability. On the contrary, Super has alleged sufficient facts establishing that Starkowski and Nelson are liable for their maintenance of a policy to terminate rental subsidies automatically if a person is convicted of a felony, regardless whether the underlying act was caused by mental disability as Super alleges in this case. The accommodation that Super sought, and is still seeking as a matter of injunctive relief in this case, is an exception to that policy. As the parties responsible for maintaining the Section 8 programs for DSS and SHA, respectively, Starkowski and Nelson were likely responsible — or, at least, likely enough to support a plausible claim for relief — for the policy's continued validity and application. They, therefore, were personally involved within the meaning of the cases cited by the defendants.
6. Is the DSS Commissioner shielded by sovereign immunity?
Finally, defendant Wilson-Coker, as Commissioner of DSS, charges that the Eleventh Amendment immunizes her from suit. As in the previous section, I substitute Starkowski for Wilson-Coker because Super has conceded that Wilson-Coker is the wrong official to sue. Starkowski cannot claim sovereign immunity against Super's federal claims for injunctive relief alleged against her in her official capacity. Ex Parte Young, 209 U.S. 123 (1908); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Starkowski, however, claims immunity against Super's causes of action for compensatory and punitive damages.
The other defendants are not state officials and have not claimed that they are entitled to sovereign immunity.
The Eleventh Amendment immunizes Starkowski from Super's FHA and ADA claims for monetary relief. There is no congressional abrogation of sovereign immunity in the FHA. Sierotowicz v. N.Y. Div. of Hous. Cmty. Renewal, No. 04cv3886 (NGG), 2005 U.S. Dist. LEXIS 43028, at *5 (E.D.N.Y. June 14, 2005). As for the ADA, abrogation is likely limited to claims that the state discriminated against a plaintiff "based on discriminatory animus or ill will towards the disabled," which Super is not alleging in this reasonable accommodation action. See Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 111 (2d Cir. 2001). But Starkowski has no sovereign immunity with respect to Super's Section 504 claim. Section 504, which prohibits disability discrimination by "any program or activity receiving Federal financial assistance," 29 U.S.C. § 794(a), was passed pursuant to Congress's spending powers, U.S. Const. art. I, § 8, cl. 1, and included a provision abrogating states' sovereign immunity as a condition of receiving federal funding, 42 U.S.C. § 2000d-7(a)(1). Garcia, 280 F.3d at 113. Most circuits have held that a state's acceptance of federal funding implies its consent to waive its sovereign immunity from suits filed pursuant to Section 504. See Stanley v. Litscher, 213 F.3d 340, 344 (7th Cir. 2000) (citing Fourth, Seventh, Ninth, and Eleventh Circuits as concluding that Section 504 "is enforceable in federal court against recipients of federal largesse," and noting that only the Eighth Circuit reached a different conclusion in a decision that was ultimately vacated on other grounds). In Garcia, the Second Circuit determined that New York had not made a knowing and intentional waiver of its sovereign immunity under Section 504 because the state, believing that its sovereign immunity was already abrogated by the nearly identical provisions of Title II of the ADA, could have been convinced that it had no sovereign immunity to waive with respect to the Rehabilitation Act. 280 F.3d at 114; see also Mutts v. S. Conn. State Univ., No. 3:04cv1746 (MRK), 2006 WL 1806179, *3-*4 (D. Conn. June 28, 2006) (describing holding of Garcia and its subsequent application). But Garcia holds that if a court can conclude that a state knowingly and intentionally waived its sovereign immunity to Section 504 suits, such as by the state's continued acceptance of federal funds, then the state and its officials are not immune from Section 504 claims.
At least two judges in the District of Connecticut have concluded that the state of Connecticut and its officials have waived their sovereign immunity to suits brought pursuant to Section 504 following Garcia's decision. See Mutts, 2006 WL 1806179, at *4 ("Therefore, if a state accepts federal funds under the Rehabilitation Act after Garcia, it necessarily follows from that decision that the state has knowingly waived its Eleventh Amendment sovereign immunity with respect to Section 504 claims that arose (as here) after the Garcia decision."); Divergillio v. Peet, No. 3:06cv2048 (AWT), 2009 WL 909428, *3 n. 1 (D. Conn. Mar. 31, 2009) (quoting Mutts with approval). I agree. As Judge Kravitz explained, following Garcia's decision, Connecticut and its agencies were on notice that continuing to accept federal funds implies a knowing and intentional waiver of their sovereign immunity from Section 504 actions. Mutts, 2006 WL 1806179, at *4. Garcia clarified that Connecticut, like New York, still possessed its sovereign immunity for Section 504 claims, but the continued acceptance of federal funds would thereafter constitute a waiver of the state's immunity from suit. Thus, Super may sue DSS and its officials under Section 504 and attempt to obtain whatever relief — either injunctive or compensatory — the statute provides.
Starkowski also moves for the dismissal of the ADA and Section 504 claims against her in her individual capacity. From the face of the complaint, it is not clear whether Super is alleging this claim against the DSS Commissioner or any of the other individual defendants in their individual capacities. Those individual-capacity claims should be dismissed because the ADA and Section 504 do not permit suits against officials in their individual capacities. Garcia, 280 F.3d at 107. Starkowski also moves for dismissal of Super's negligence claim against him, found in Count Eight of the Complaint. That claim will be dismissed because Connecticut and its officials are immunized against state law claims absent a waiver, which the state has not made in this case. Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 121 (1984). Furthermore, Connecticut law protects Starkowski from the negligence claim against him in his individual capacity. Conn. Gen. Stat. § 4-165(a).
7. Summary
The defendants' motions to dismiss are, in principal, denied. Super has pled sufficient facts in her complaint to state a claim that she was denied an accommodation that was reasonable and necessary to enable her to use and enjoy the dwelling of her choice. Her request to continue receiving Section 8 benefits while she undergoes mental health treatment — i.e., her request for an exception to the defendants' neutral rule barring rental assistance to convicted felons or residents who have committed crimes on their property — is cognizable as an "accommodation" under the FHA, ADA, and Section 504. Next, Super has pled sufficient facts to demonstrate how the accommodation is necessary for her to obtain housing; she has also pled facts permitting the inference that her mental disability was the cause of her assault of Murphy and, as a result, she required an accommodation by reason of her disability. The plaintiff's complaint also states enough facts to demonstrate the defendants were personally involved in, and not merely vicariously liabile for, her purported denial of a reasonable accommodation. Finally, the defendants are not immune from suit under Section 504, although Starkowski, the appropriately identified DSS Commissioner, may not be sued for damages under the FHA or ADA. The DSS Commissioner also may not be sued in his individual capacity under the ADA or Section 504, or for common law negligence. Thus, Wilson-Coker's motion to dismiss is granted in part and denied in part, while the remaining motions to dismiss are denied in their entirety.
B. Super's motion for leave to amend her complaint and join additional parties
Super has filed a motion for leave to amend her complaint and join additional parties. Her amendments are intended to: (1) substitute one defendant (Starkowski for Wilson-Coker) and add four more defendants; (2) add additional facts that the defendants claimed in their motions to dismiss were lacking; and (3) clarify which claims Super was asserting against each defendant and what relief she was seeking from them. Many of the new facts are helpful, but they are not necessary to overcome the defendants' motion to dismiss. Furthermore, the substitution and addition of new parties, as well as the clarification of claims against them, do not appear to raise any novel issues not already covered in the motions to dismiss. The only problem is the addition of DSS, as a state agency defendant, for injunctive relief sought under the FHA (Count Five) and ADA (Count Six). To obtain that injunctive relief, Super may only sue the responsible DSS officials in their official capacities and not the agency itself; DSS, as an arm of the state, would be protected by sovereign immunity. Harris, 572 F.3d at 72. DSS may also not be sued under common law negligence in Count Eight because it has not waived its immunity from suit.
The new defendants, other than Starkowski, are Mary Cattanach of DSS, Maritza Javier of SHA, and the DSS and SHA agencies.
Wilson-Coker objects to Super's motion. She raises the same arguments in opposition to amending the complaint as she did in her motion to dismiss; I reject those arguments for the reasons stated in my discussion of the defendants' motions to dismiss. Wilson-Coker also objects to Super's motion for leave to amend on the grounds that there is no "good cause," per Fed.R.Civ.P. 16(b)(4), to modify the scheduling order, which set September 19, 2009 as Super's deadline to add parties and amend the pleadings. There is sufficiently good cause to grant Super leave to amend her complaint. Super seeks to amend the pleadings in order to meet Wilson-Coker's previous demands for clarification in her motion to dismiss. Permitting the relatively minor changes Super wishes to make, especially at this early juncture in the case, will not prejudice either party. Cf. Huesser v. Hale, No. 3:07cv1660 (CSH), 2009 U.S. Dist. LEXIS 105482 (D. Conn. Nov. 12, 2009) (denying motion for leave to amend pleadings as untimely and prejudicial when motion was filed five days before discovery deadline and sought to add 16 new claims to a complaint that had previously contained only ten). The plaintiff's motion is granted and Super may amend her complaint and join additional parties consistent with my rulings on the defendants' motions to dismiss.
IV. Conclusion
For the reasons set forth above, defendant Wilson-Coker's motion to dismiss (doc. # 33) is GRANTED IN PART and DENIED IN PART. The remaining defendants' motions to dismiss (docs. # 43, # 47, # 48) are DENIED. Super's motion for leave to amend her complaint and join additional parties (doc. # 73) is GRANTED. Any amendments to the complaint shall be consistent with the rulings in this decision.
It is so ordered.
Dated at Bridgeport, Connecticut, this 30th day of September 2010.