10-3030
Shaw v. NY Dept. of Correctional Serv., 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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 15th day of December, two thousand eleven.
PRESENT:
         JON O. NEWMAN,
         PETER W. HALL,
              Circuit Judges.
         PAUL G. GARDEPHE,*
              District Judge.
_______________________________________

RICHARD SHAW,
          Plaintiff-Appellant,

                                v.                         10-3030-pr

THE NEW YORK DEPARTMENT OF CORRECTIONAL
SERVICES, BRIAN FISHER, Commissioner;
KAREN BELLAMY, Director of Inmate
Grievance Program; ROBERT ERCOLE, Super-
intendent of Green Haven Correctional
Facility; and T. ELLERT, Academic Educa-
tional Supervisor,
         Defendants-Appellees.
__________________________________________



*
  The Honorable Paul G. Gardephe, of the United States District
Court for the Southern District of New York, sitting by
designation.
FOR APPELLANT:        Veronica Vela, The Legal Aid Society,
                      Prisoners’ Right Project, New York, N.Y.
FOR APPELLEES:        Sudarsana Srinivasan, Assistant Solicitor
                      General, Office of the N.Y. State Attorney
                      General, New York, N.Y.

    UPON DUE CONSIDERATION, it is hereby ordered that the

order of the District Court is VACATED, and the case is
REMANDED with directions to stay further Court proceedings
pending further administrative proceedings.

    Plaintiff-Appellant Richard Shaw, incarcerated at the
Green Haven Correctional Facility, appeals an order dismissing

his complaint with prejudice pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure for failure to state a claim.
Shaw’s    complaint     against   the    Defendants-Appellees      prison

officials    alleged      violations       of   the    Americans     with

Disabilities Act (“ADA”) and the Rehabilitation Act, among

others.     He contended that the Defendants failed to make
reasonable accommodation for him in his effort to obtain a GED

certificate, which he alleged was rendered difficult because
of his dyslexia.

    We assume the parties’ familiarity with the facts and the
procedural aspects of this case.

    Shaw first sought assistance for his learning disability
from the prison medical staff.           Notes made by Dr. Bendheim on
an “ambulatory health record” indicate that Shaw “want[ed]

resolution   of   his    desire   to     establish    the   existence   of

                                   -2-
dyslexia in himself. . . . His teacher and counselor have told
him that they do not have a test for dyslexia and furthermore

that they have no accommodations learning program for students
who are dyslexic.”             However, according to the document, Dr.

Bendheim was not able to assist Shaw due to the doctor’s lack
of training in the area of dyslexia.
      Shaw next sought help from the prison’s educational

supervisor, Frank Meeuwisse.               In response to Shaw’s “several
requests,” Meeuwisse wrote to Shaw, informing him: “Green

Haven does not have a qualified person to test dyslexia. . .

. There is no special help available, nor has there ever been
at [Green Haven].” (double underlining in original)

      Shaw   filed     a       formal    complaint     with    the      Grievance
Committee regarding his “prolong[ed] learning disability.”

According to Shaw’s grievance complaint, because his learning

disability had “a direct effect [on his] earning his GED,” he
sought “policy and procedures allowing those with dyslexia a
beneficiary [sic] earning a (GED),” and “accommodating all

inmates with learning disabilities.”                  An investigation was

apparently conducted by the Inmate Grievance Review Committee.
The   result    was        a     “split”       decision,   with      “two   reps
recommend[ing]       that        [the]     educational        supervisor     and

applicant[‘]s teacher’s refusal to make a referral for special
education    testing       and    applicant[‘]s      request      for   dyslexia

                                         -3-
testing     has    hindered     applicant     from   educating      himself
further.” The Central Office Review Committee denied Shaw’s

requested action.
    Shaw filed suit pro se in the District Court, raising
claims under the ADA, the Rehabilitation Act, the Individuals

with Disabilities Education Act, the Equal Protection Clause
of the Fourteenth Amendment, and 42 U.S.C. § 1983, seeking a

declaratory judgment, injunctive relief, and monetary damages.
His complaint specifically alleged, among other things, the
prison    officials’     refusal      “to   accommodate      Plaintiff    who

suffer[s]    from     dyslexia.“      The   complaint    most     frequently

described the accommodation sought as a “special education

program” for disabled prisoners.            However, the complaint also

identified various other means of accommodating his condition,
including “teachers[] certified or licensed to teach students

with disabilities,” and “an expert best qualified to make a

diagnos[is] of dyslexia.”
    The District Court granted the Defendants’ motion to
dismiss.      The    District       Court   read   Shaw’s    complaint     as

requesting not reasonable accommodation within the existing

educational       program     but    “an    additional       or   different
substantive       educational   program     tailored    to    inmates    with
dyslexia.”

    This Court reviews de novo a district court’s decision to

                                      -4-
grant a motion to dismiss for failure to state a claim under
Rule 12(b)(6).       Shomo v. City of New York, 579 F.3d 176, 183

(2d Cir. 2009).      A pro se complaint should generally “be read
liberally” and should not be dismissed if there is “any

indication that a valid claim might be stated.”                       Id.
      Under the ADA and the Rehabilitation Act, a demand for
“reasonable accommodations to assure access to an existing

program” is cognizable, but a demand for “additional or
different substantive benefits” is not. Wright v. Giuliani,

230   F.3d   543,    548     (2d   Cir.      2000).        The   District    Court

characterized       Shaw’s    claims        as     requesting     substantially
different educational services from those already offered at

the prison.        The lack of clarity of the pro se complaint

undoubtedly led the Court to this understanding. However, the
complaint referred to failure to “accommodate,” and counsel on

appeal has elaborated that contention by listing a number of

possible accommodations, including oral examinations, recorded

lectures,    and     providing       Plaintiff        lecture     notes.     Other
possibilities that might be especially suitable for a person
afflicted with dyslexia are additional time for test-taking

and   allowing      the    student     to        dictate    answers     to   essay
questions.    Generously read, the complaint was sufficient to
survive a motion to dismiss. See Fulton v. Goord, 591 F.3d 37,

44 (2d Cir. 2009); Henrietta D. v. Bloomberg, 331 F.3d 261,

                                      -5-
276-77 (2d Cir. 2003) (“[T]he 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.”).
    The     Defendants-Appellees               contend       that,       even   if    the
complaint    could      fairly      be      read     to      request       reasonable

accommodation,        Shaw   has   not      exhausted         his    administrative
remedies with regard to that request.                     We disagree.          Shaw’s

formal grievance complaint sought “accommodati[on]” in the

educational program, and he provided prison officials with a
sufficient opportunity to understand and remedy his grievance.

    At    oral    argument,        we    were      advised         that    within     the

grievance    review      procedure          there      are     two    offices        with
authority to consider a grievance such as Shaw’s and that,

through no fault of Shaw’s, the matter was considered by only

one of them. Oral argument further developed the desirability

of affording the other office an opportunity to consider
Shaw’s grievance and determine whether some accommodation can
reasonably be made.

    Accordingly, we will vacate the District Court’s order
and remand the case with directions to stay further court
proceedings until Shaw’s request for accommodation has been

more fully reviewed within the prison grievance system. See

                                         -6-
WorldCrisa Corp. v. Armstrong, 129 F.3d 71, 76 (2d Cir. 1997).
If the matter is not resolved administratively within 120

days, Shaw may return to the District Court to pursue his
claim, at which time the District Court might wish to consider

affording him the opportunity to amend his complaint. We will
expect   counsel   for   the   Defendants-Appellants   to   render
assistance in assuring that Shaw’s grievance is promptly

considered by the appropriate prison officials.
                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk




                                -7-
