17-400-cv
Surlock v. New York State Office of Persons with Developmental Disabilities, et al.
                     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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 6th day of April, two thousand and eighteen.

Present:
             BARRINGTON D. PARKER,
             PETER W. HALL,
             RAYMOND J. LOHIER, JR.,
                 Circuit Judges.


Bradford J. Surlock, individually and as next friend
of Michael Surlock; and Mary-Ann Surlock,
individually and as next friend of Michael Surlock,

                               Plaintiffs-Appellants,                 17-400-cv

v.

New York State Office for People with
Developmental Disabilities; Kerry Delaney, Acting
Commissioner of the New York State Office for
People with Developmental Disabilities; John
Gleason, Director, Central New York DDSO;
Lynette O’Brien, Deputy Director, Central New
York DDSO; Anthony DiNuzzo, Deputy Director of
Quality Assurance, Central New York DDSO;
Laurie Elliott, Treatment Team Leader, Central
New York DDSO, Fulton Office; Barbara Alexander,
Developmental Assistant III, Central New York
DDSO, Fulton Office; Ron Reid, House Director,
Fravor Road IRA; Victoria LeBoeuf, Former House
Director, Fravor Road IRA; Felicia Graham, Former
Assistant House Director, Fravor Road IRA; Ray
Perkins, Former Assistant House Director, Fravor
Road IRA; Monique Dickerson, Fravor Road IRA
Nurse; Donna Motyka, Former Fravor Road IRA
Nurse; Denise Reynolds, Former Fravor Road IRA
Nurse; Tracey Jasiewicz, Former Assistant House
Director, Fravor Road IRA; and Diane Finster,
Fravor     Road    IRA     Direct    Care    Staff,

                Defendants-Appellees,

Amy Hillard, Assistant House Director, Fravor Road
IRA; Cora Spencer, Fravor Road IRA Direct Care
Staff; Mary Doe, Person employed by OPWDD
whose identity is not presently known; Jane Doe,
Person employed by OPWDD whose identity is not
presently known; and Jeanette Maynes, Fravor
Road IRA Direct Care Staff,

                Defendants.*


For Appellants:                    CHRISTOPHER D. WATKINS, Sussman & Associates,
                                   Goshen, N.Y. (William J. Porta, The Law Office of
                                   William J. Porta, Hamilton, N.Y., Michael H. Sussman,
                                   Sussman & Associates, Goshen, N.Y., on the brief).


For Appellees New York             MICHAEL PAUL RINGWOOD (Karen Guyder Felter, on the
State Office for Peopele           brief), Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse,
with Developmental                 N.Y.
Disabilities, Delaney,
Gleason, O’Brien, and
DiNuzzo:

For Appellees Elliott,
Alexander, Reid, LeBoeuf,           KENNETH M. ALWEIS (Heather K. Zimmerman, on the
Perkins, and Jasiewicz:             brief), Goldberg Segalla LLP, Syracuse, N.Y.



        * The Clerk of Court is directed to amend the official caption of this appeal to correct the
spelling of the parties’ names in conformity with the above.

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                             CATHERINE A. GALE (Matthew J. VanBeveren, on the
   For Appellees
                             brief), Gale Gale & Hunt, LLC, Syracuse, N.Y.
   Dickerson, Motyka,
   and Reynolds:


   For Appellee Felicia      WOODRUFF LEE CARROLL, Woodruff Lee Carroll P.C.,
   Graham:                   Syracuse, N.Y.


   For Appellee Diane        SARAH RUHLEN (Mimi Carol Satter, on the brief), Satter
   Finster:                  Law Firm, PLLC, Syracuse, N.Y.



      Appeal from decisions entered on March 4, 2014 in the United States District

Court for the Northern District of New York (Mordue, J.) and June 8, 2016 in the

United States District Court for the Northern District of New York (D’Agostino, J.).

      UPON      DUE       CONSIDERATION,         IT    IS   HEREBY       ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

      Bradford and Mary-Ann Surlock, acting as next friend to their son, Michael

Surlock, appeal from the decisions entered by the United States District Court for the

Northern District of New York (Mordue & D’Agostino, JJ.), dismissing for failure to

state a claim their Americans with Disabilities Act claim against the New York Office

for People with Developmental Disabilities and granting summary judgment to the

remaining appellees on the Surlocks’ substantive due process and New York

negligent hiring, training, and supervision claims. We assume the parties’ familiarity

with the underlying facts, the procedural history, the arguments presented on appeal,

and the district court’s rulings, which we reference only to explain our decision.



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      The Surlocks first appeal the district court’s Rule 12(b)(6) dismissal of their

Americans with Disabilities Act claim for failure to state a claim, asserting that the

district court improperly treated their claim as one for disparate treatment instead

of one for failure to accommodate and, by doing so, erroneously found that they failed

to plead that Michael was deprived of services provided to nondisabled persons. Even

if the district court mistakenly treated the Surlocks’ ADA claim as a disparate

treatment claim rather than a failure-to-accommodate claim, we have made clear “the

demonstration that a disability makes it difficult for a plaintiff to access benefits that

are available to both those with and without disabilities is sufficient to sustain a claim

for a reasonable accommodation.” Henrietta D. v. Bloomberg, 331 F.3d 261, 277 (2d

Cir. 2003) (emphasis added). In other words, even in the failure-to-accommodate

context, a plaintiff must allege that the failure to accommodate led to the plaintiff’s

inability to access benefits available to those without disability.       The Surlocks,

however, fail to allege in their complaint that one-on-one supervision—the requested

accommodation—either was a benefit available to those without disability or was

necessary for Michael to access benefits available to those without disability. For

that reason, the district court properly determined that the Surlocks failed to state a

claim under the ADA.

      The Surlocks also appeal the district court’s entry of summary judgment in

favor of Gleason, O’Brien, DiNuzzo, Elliott, Alexander, Reid, LeBoeuf, Perkins,

Dickerson, Motyka, Reynolds, Graham, and Finster on their substantive due process

claims. For the same reasons set out in the district court’s thorough decision granting



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summary judgment on those claims, we affirm.1 Likewise, we affirm on the basis of

the district court’s decision granting summary judgment to Gleason, O’Brien,

DiNuzzo, Elliott, Alexander, Reid, LeBoeuf, Perkins, Dickerson, Motyka, and

Reynolds on the Surlocks’ negligent hiring, training, and supervision claims against

them. No genuine dispute of material fact exists as to those claims and the record

reveals that those defendants are entitled to judgment as a matter of law.

        We have considered the Surlocks’ remaining arguments and find them to be

without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                                          FOR THE COURT:
                                                          Catherine O’Hagan Wolfe, Clerk




        1  Because the Surlocks’ constitutional and statutory claims fail, their Ex parte Young claim
for injunctive relief brought against Delaney in her official capacity also fails. See State Emps.
Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 95 (2d Cir. 2007) (“Under the well-known
exception . . . set forth in Ex parte Young, 209 U.S. 123 (1908), . . . ‘a plaintiff may sue a state official
acting in his official capacity—notwithstanding the Eleventh Amendment—for prospective, injunctive
relief from violations of federal law.’” (quoting In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir.
2007) (emphasis added))).   

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