     06-5023-cv
     Fulton v. Goord

 1                       UNITED STATES COURT OF APPEALS
 2                           FOR THE SECOND CIRCUIT
 3
 4                           August Term 2008
 5    (Argued: April 7, 2009              Decided: December 22, 2009)
 6                         Docket No. 06-5023-cv
 7
 8   -----------------------------------------------------x
 9
10   EUNICE FULTON,
11
12               Plaintiff-Appellant,
13
14                          -- v. --
15
16   COMMISSIONER GLEN S. GOORD, Department of
17   Correctional Services, THERESA K. DAVID, Director of
18   Classification & Movement, Department of Correctional
19   Services; STATE OF NEW YORK,
20
21               Defendants-Appellees.
22
23   -----------------------------------------------------x
24
25   B e f o r e :     JACOBS, Chief Judge, WALKER, and LEVAL, Circuit
26                     Judges.

27         Eunice Fulton appeals the dismissal of her complaint by the

28   United States District Court for the Northern District of New

29   York (Gary L. Sharpe, Judge) for lack of standing and for failure

30   to state a claim upon which relief can be granted.    We hold that

31   Fulton has standing to contend that the defendants engaged in

32   disability-based discrimination in violation of the Americans

33   with Disabilities Act and the Rehabilitation Act.    We also

34   conclude that the district court’s analysis of the adequacy of

35   Fulton’s pleadings did not reflect the full scope of her claims

36   and must be reconsidered.

                                         -1-
1         VACATED and REMANDED.

 2                                         SAMUEL J. LIEBERMAN, Bernstein
 3                                         Litowitz Berger & Grossman
 4                                         LLP, New York, NY, (Douglas F.
 5                                         Curtis, Shauna K. Friedman,
 6                                         Wilmer Culter Pickering Hale
 7                                         and Dorr LLP, New York, NY, on
 8                                         the brief), for Plaintiff-
 9                                         Appellant.
10
11                                         KATE H. NEPVEU, Assistant
12                                         Solicitor General, (Barbara D.
13                                         Underwood, Solicitor General,
14                                         Andrea Oser, Deputy Solicitor
15                                         General, on the brief), for
16                                         Andrew M. Cuomo, Attorney
17                                         General of the State of New
18                                         York, Albany, NY, for
19                                         Defendants-Appellees.
20

21   JOHN M. WALKER, JR., Circuit Judge:

22        Eunice Fulton suffers from multiple sclerosis.    Her illness

23   prevented her from visiting her husband in an upstate New York

24   prison, roughly 300 miles from her New York City home, as part of

25   a state-run Inmate Visitor Program (IVP).    Proceeding pro se,

26   Fulton sued officials of the New York State Department of

27   Correctional Services (DOCS), pursuant to the Americans with

28   Disabilities Act (ADA), 42 U.S.C. § 12132, and the Rehabilitation

29   Act, 29 U.S.C. § 794(a), seeking relief for the defendants’

30   asserted failure to accommodate her disability in administering

31   the IVP.   The United States District Court for the Northern

32   District of New York (Gary L. Sharpe, Judge) dismissed Fulton’s

33   suit for both lack of standing and failure to state a claim.      The


                                     -2-
1    district court, however, was misguided in viewing Fulton’s suit

2    as consisting of claims solely based on the defendants’ refusal

3    to transfer her husband to a prison closer to New York City, when

4    in fact the basis of Fulton’s claim is broader:   the defendants’

5    failure even to consider whether her disability could be

6    reasonably accommodated.

7

8                                BACKGROUND

9         Multiple sclerosis (MS) is a disease in which the body’s

10   immune system attacks the central nervous system, repeatedly

11   injuring the nerves and ultimately causing them to degenerate.

12   MS has no cure and can often lead to partial or complete

13   paralysis, but medication can slow the disease’s progression.

14        In 2005, twelve years after she was diagnosed with MS,

15   Fulton was paralyzed in the lower left side of her body.   She

16   required a wheelchair to move, and a health care professional to

17   assist her with her daily needs.    Although she could stand on her

18   own for short periods, her MS prevented her from traveling long

19   distances.

20        In April 2005, Fulton’s husband was convicted of two crimes

21   and sentenced in New York state court to a prison term of two to

22   four years.   In June 2005, upon his admission to a DOCS inmate

23   processing facility, he asked to be housed in a prison near his

24   wife because of her disability.    DOCS denied this request and, in


                                       -3-
1    July 2005, transferred Fulton’s husband to the Altona

2    Correctional Facility, some 300 miles from New York City in

3    DOCS’s Clinton County “Hub Area.”      Soon thereafter, when he asked

4    to be placed in a facility closer to New York City, DOCS told him

5    that, under DOCS policy, he would have to spend two years in the

6    Clinton Hub before he would be eligible for a transfer.      The DOCS

7    IVP permitted prisoners to be visited in prison by “friends and

8    relatives,” DOCS Directive No. 4403 § I (1993), but Fulton’s MS

9    made it impossible for her to visit her husband at the Altona

10   prison.

11        In October 2005, Fulton wrote to defendant Glen Goord, DOCS

12   Commissioner, told him of her disability, and, according to the

13   complaint, “requested that reasonable accommodations be made to

14   enable her to visit with her husband.”     (Compl. ¶ 15.)   She asked

15   that “consideration be given to transfer [sic] her husband” to

16   somewhere closer to her.    (Compl. ¶ 15.)    Around that time,

17   Fulton and her husband each also wrote to defendant Theresa

18   David, DOCS Director of Classification and Movement, to

19   “request[] reasonable accommodation” for Fulton “to participate

20   in the visiting program.”    (Compl. ¶ 16.)

21        In November 2005, Fulton received a letter from David

22   stating that, in light of the DOCS two-year transfer policy,

23   Fulton’s husband would need to stay in the Clinton Hub until at

24   least July 2007.   The letter did not mention Fulton’s disability


                                      -4-
1    or consideration of any other accommodation.

2          In December 2005, Fulton filed this lawsuit pro se against

3    Goord, David, and the State of New York.     Her complaint sought an

4    injunction requiring the defendants to “provide reasonable

5    accommodation [for her] to participate in the [DOCS] visiting

6    program” and $75,000 in damages.     (Compl. at 8.)

7          The district court dismissed Fulton’s complaint.    Fulton v.

8    Goord, No. 1:05-CV-1622 (GLS/DRH), 2006 WL 2850601, at *1

9    (N.D.N.Y. Oct. 2, 2006).   The district court held that Fulton

10   lacked standing, because she had no “protected liberty interest”

11   in visiting her inmate husband and therefore her “inability to

12   take advantage of a DOCS visitation program does not constitute a

13   redressable injury.”   Id. at *2.    The district court concluded

14   that, in any event, Fulton had failed to state a claim.     Id. at

15   *3.

16         This appeal followed.   Because her husband has been released

17   from prison, Fulton, now represented by counsel, seeks only

18   monetary relief.   She argues that she both has standing to

19   proceed and has properly stated a claim.     We agree that Fulton

20   has standing, and we remand for the district court to reconsider

21   whether she has stated a claim.     We also grant Fulton leave to

22   amend her complaint, to which the defendants consent.

23

24                                 DISCUSSION


                                       -5-
1    I.   Fulton’s Standing

2         We review questions of standing de novo.     Comer v. Cisneros,

3    37 F.3d 775, 787 (2d Cir. 1994).     “Because standing is challenged

4    on the basis of the pleadings, we accept as true all material

5    allegations of the complaint, and must construe the complaint in

6    favor of the complaining party.”     W.R. Huff Asset Mgmt. Co. v.

7    Deloitte & Touche LLP, 549 F.3d 100, 106 (2d Cir. 2008) (internal

8    quotation marks omitted).

9         The “irreducible constitutional minimum of standing,” rooted

10   in Article III’s case-or-controversy requirement, consists of

11   three elements: (1) an “injury in fact,” by which is meant “an

12   invasion of a legally protected interest”; (2) “a causal

13   connection between the injury and the conduct complained of”; and

14   (3) a likelihood that “the injury will be redressed by a

15   favorable decision.”     Lujan v. Defenders of Wildlife, 504 U.S.

16   555, 560 (1992) (internal quotation marks omitted).     The legally

17   protected interest “may exist solely by virtue of statutes

18   creating legal rights, the invasion of which creates standing.”

19   Warth v. Seldin, 422 U.S. 490, 500 (1975) (internal quotation

20   marks omitted).   Accordingly, “standing is gauged by the specific

21   common-law, statutory or constitutional claims that a party

22   presents.”   Int’l Primate Prot. League v. Adm’rs of Tulane Educ.

23   Fund, 500 U.S. 72, 77 (1991).




                                       -6-
1         Fulton sued under the ADA and the Rehabilitation Act.1            The

2    ADA states, in relevant part, that

3         no qualified individual with a disability shall, by
4         reason of such disability, be excluded from
5         participation in or be denied the benefits of the
6         services, programs, or activities of a public entity,
7         or be subjected to discrimination by any such entity.
8
9    42 U.S.C. § 12132.     Similarly, the Rehabilitation Act states:

10        No otherwise qualified individual with a disability
11        . . . shall, solely by reason of her or his disability,
12        be excluded from the participation in, be denied the
13        benefits of, or be subjected to discrimination under
14        any program or activity receiving Federal financial
15        assistance . . . .
16
17   29 U.S.C. § 794(a).     The ADA provides “remedies, procedures, and

18   rights . . . to any person alleging discrimination on the basis

19   of disability in violation of section 12132,” 42 U.S.C. § 12133,

20   and the Rehabilitation Act does the same for “any person

21   aggrieved” by disability-based discrimination, 29 U.S.C.

22   § 794a(a)(2).    Because of the breadth of these provisions, we

23   have held that ADA and Rehabilitation Act actions are not subject

24   to any of the prudential limitations on standing that apply in

25   other contexts.     See Innovative Health Sys., Inc. v. City of

26   White Plains, 117 F.3d 37, 47 (2d Cir. 1997) (concluding that


     1
1          We note that Fulton’s complaint raised only an ADA claim, and made no
2    mention of the Rehabilitation Act. The district court assumed that Fulton
3    intended to bring a Rehabilitation Act claim as well. We think this was a
4    fair reading of Fulton’s pro se complaint, because such complaints are to be
5    construed liberally, Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001),
6    and the same factual allegations generally will support both ADA and
7    Rehabilitation Act claims, see Henrietta D. v. Bloomberg, 331 F.3d 261, 272
8    (2d Cir. 2003) (finding only “subtle distinctions” between the two acts). The
9    differences between the two acts are irrelevant to this appeal.

                                         -7-
1    standing under these statutes should be defined as broadly as

2    constitutionally permitted), overruled on other grounds by Zervos

3    v. Verizon N.Y., Inc., 252 F.3d 163, 171 n.7 (2d Cir. 2001).       The

4    ADA and Rehabilitation Act generously confer the right to be free

5    from disability-based discrimination by public entities and

6    federally funded programs and, in so doing, confer standing for

7    persons claiming such discrimination to enforce that right.

8    Fulton asserts that she was discriminatorily denied a reasonable

9    accommodation for her disability in violation of her rights under

10   the two acts.   This is plainly an injury in fact that is

11   sufficient to form the basis for Article III standing.

12        In arguing otherwise, the defendants, like the district

13   court, misconceive Fulton’s claim.     The defendants argue that

14   Fulton has no “legally cognizable interest in having her

15   incarcerated spouse transferred to a facility she can more

16   readily visit.”    (Appellee’s Br. at 8.)   Whatever the merit of

17   such an argument, Fulton’s complaint is not so narrow:     The

18   essence of Fulton’s challenge is the defendants’ refusal, in

19   light of her disability, to provide her with, or even to

20   consider, a “reasonable accommodation to participate in the

21   visiting program.”    (Compl. ¶ 16.)   The defendants’ decision to

22   house her husband in Altona is only one aspect of this larger

23   issue and not necessarily dispositive, at least at this stage of

24   the proceedings.    Fulton’s complaint rests on her right to be


                                      -8-
1    free from disability-based discrimination, and the defendants

2    fail to explain why a violation of this right, as distinct from

3    any rights (if they exist) to inmate visitation or transfer, does

4    not create an injury in fact.

5          The defendants effectively concede that if Fulton could show

6    an injury in fact, she could demonstrate the other two

7    requirements of standing:   a causal connection between her injury

8    and the defendants’ challenged conduct, and a likelihood of

9    redressability.   Indeed, the complaint is unequivocal that the

10   defendants’ alleged discrimination caused her claimed injury, and

11   that this litigation could remedy the harm.    Thus, we hold that

12   Fulton has standing to pursue her ADA and Rehabilitation Act

13   claims, and that the district court erred by concluding

14   otherwise.

15

16   II.   The Sufficiency of Fulton’s Pleadings

17         In addition to dismissing Fulton’s suit on standing grounds,

18   the district court dismissed the complaint under Fed. R. Civ. P.

19   12(b)(6) for failure to state a claim.    We review this dismissal

20   de novo, “accept[ing] all factual allegations in the complaint as

21   true and draw[ing] inferences from those allegations in the light

22   most favorable to the plaintiff.”     Jaghory v. N.Y. State Dep’t of

23   Educ., 131 F.3d 326, 329 (2d Cir. 1997).    And we must construe

24   pro se complaints liberally, “to raise the strongest arguments


                                     -9-
1    that they suggest.”   Green, 260 F.3d at 83 (internal quotation

2    marks omitted).

3         To state a prima facie claim under either the ADA or the

4    Rehabilitation Act, which are identical for our purposes, Fulton

5    must allege:   “(1) that [s]he is a ‘qualified individual’ with a

6    disability; (2) that [s]he was excluded from participation in a

7    public entity’s services, programs or activities or was otherwise

8    discriminated against by a public entity; and (3) that such

9    exclusion or discrimination was due to [her] disability.”

10   Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003).     A

11   “qualified individual” is

12        an individual with a disability who, with or without
13        reasonable modifications to rules, policies, or
14        practices, the removal of architectural, communication,
15        or transportation barriers, or the provision of
16        auxiliary aids and services, meets the essential
17        eligibility requirements for the receipt of services or
18        the participation in programs or activities provided by
19        a public entity.

20   42 U.S.C. § 12131(2).   A qualified individual can base a

21   discrimination claim on any of “three available theories:       (1)

22   intentional discrimination (disparate treatment); (2) disparate

23   impact; and (3) failure to make a reasonable accommodation.”

24   Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 573 (2d Cir.

25   2003).

26        The district court found Fulton’s complaint to be deficient

27   in two respects.   First, the district court concluded that Fulton

28   was not a qualified individual, because “[t]he visitation program

                                    -10-
1    applies to DOCS inmates, not members of the public or spouses.”

2    Fulton, 2006 WL 2850601, at *3.     Second, the district court held

3    that, “even if Fulton could establish that she was a qualified

4    individual, there are no facts alleged to suggest that the

5    defendants’ transfer policy is discriminatorily based on her

6    disability.”    Id.   Neither rationale is convincing.

7         With respect to whether Fulton is a qualified individual for

8    the DOCS IVP, we find that she “meets the essential eligibility

9    requirements” for the program.     42 U.S.C. § 12131(2).   Nothing in

10   the IVP regulations disqualifies Fulton from visiting a DOCS

11   inmate through the program.     See DOCS Directive No. 4403.   And we

12   disagree with the district court’s characterization of the IVP as

13   applying to inmates but not visitors.     In different provisions,

14   the IVP regulations refer variously to a visitor’s “visitation

15   rights,” id. § VIII.C, “visiting rights,” id. § VIII.F, and

16   “visiting privileges,” id. § IV.B.1.     Moreover, the IVP

17   regulations indicate that visitors and inmates separately possess

18   these rights.    See id. § VIII.B (“Contact visiting privileges may

19   be suspended, limited, or revoked for either a visitor . . . or

20   an inmate . . . .”).

21        Tellingly, the defendants have chosen not to defend the

22   district court’s analysis of whether Fulton was a qualified

23   individual for the IVP.     Instead, the defendants argue that “what

24   [Fulton] sought was not access to the general visitation program,


                                      -11-
1    but the transfer of her inmate husband between DOCS facilities,”

2    and that only inmates are qualified for the transfer program.

3    (Appellee’s Br. at 17.)   As we have already discussed, however,

4    this incorrectly characterizes Fulton’s claim:    In addition to

5    her request for her husband’s transfer, Fulton sought “reasonable

6    accommodations” that would “enable her to visit with her husband”

7    through the IVP.   (Compl. ¶ 15.)   Because Fulton “meets the

8    essential eligibility requirements” for the IVP, 42 U.S.C.

9    § 12131(2), she is a qualified individual under the ADA and

10   Rehabilitation Act.   The district court erred by concluding

11   otherwise.   We note, however, that while all of an inmate’s

12   friends and relatives conceivably could be qualified individuals

13   under the IVP, it does not follow that any accommodations found

14   to be reasonable, and thus required, for a disabled spouse, would

15   also be reasonable for a more remote disabled relative or

16   acquaintance.   “‘Reasonable’ is a relational term:   it evaluates

17   the desirability of a particular accommodation according to the

18   consequences that the accommodation will produce.”    Borkowski v.

19   Valley Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995).    This

20   requires “a fact-specific, case-by-case inquiry,” Staron v.

21   McDonald’s Corp., 51 F.3d 353, 356 (2d Cir. 1995), “not only into

22   the benefits of the accommodation but into its costs as well,”

23   Borkowski, 63 F.3d at 138.   With such a context-sensitive

24   inquiry, what is reasonable might vary among qualified


                                    -12-
1    individuals; a spouse’s visit may trigger a different calculus

2    than visits by others, resulting in different accommodations or

3    perhaps no accommodation at all.

4          We are also unpersuaded by the district court’s rationale

5    for concluding that Fulton had not stated a claim even if she is

6    a qualified individual.       The district court reasoned that “there

7    are no facts alleged to suggest that the defendants’ transfer

8    policy is discriminatorily based on [Fulton’s] disability.”              2006

9    WL 2850601, at *3 (emphasis added).         But again, this reasoning

10   rests on the mischaracterization of Fulton’s claims that pervades

11   the district court’s analysis.        As a result, the district court

12   never addressed whether Fulton had sufficiently alleged that the

13   defendants administered the IVP in a discriminatory fashion,

14   despite this issue being at the core of her complaint.             The

15   district court did not appear to consider Fulton’s allegation

16   that, in addition to requesting her husband’s transfer, she also

17   requested reasonable accommodations.2         A reasonable

18   accommodation, if one existed, might have allowed Fulton to

19   participate in the IVP without her husband being permanently




     2
1          Because Fulton contacted DOCS to request an accommodation, our focus is
2    solely on DOCS’s response. Our holding does not create any affirmative
3    requirement for prisons to ascertain in advance the capacity and health of
4    would-be visitors, and nothing in the IVP mandates such proactivity on the
5    part of prison officials.

                                         -13-
1    moved closer to New York City.3

2          “It is our settled practice to allow the district court to

3    address arguments in the first instance.”          Farricielli v.

4    Holbrook, 215 F.3d 241, 246 (2d Cir. 2000) (per curiam).

5    Accordingly, we remand the defendants’ motion for the district

6    court to reconsider its analysis of the adequacy of Fulton’s

7    pleadings, in light of a fuller understanding of the scope of her

8    claims.   Without expressing a view as to whether Fulton has

9    indeed stated a claim upon which relief can be granted, we note

10   at this point only that her allegations cover a broader base of

11   conduct than the district court appeared to realize.            In

12   remanding this case, we neither rule nor imply that any

13   particular accommodation to Fulton’s disability is reasonable and

14   must be accorded.     Rather, the defect in the district court’s


     3
 1         For example, it is not unusual for prisoners to be shuttled to urban
 2   centers for court appearances and prosecutorial interviews, and such a visit
 3   could also serve to accommodate a disabled spouse. Fulton herself posits that
 4   her husband could perhaps have been temporarily transferred “back and forth to
 5   a downstate facility accessible” to her for occasional visits. (Appellant’s
 6   Br. at 34.) Other prisons have made similar short-term arrangements for
 7   disabled inmates. See Settlement Agreement Between the United States of
 8   America and Johnson County, Tennessee Sheriff’s Department, App. ¶ 2(b)(1)
 9   (providing for short-term transfers “to and from” a jail with a more
10   accessible “site of visitation”), available at
11   http://www.usdoj.gov/crt/foia/tenjohnsonctysheriff.html; accord Settlement
12   Agreement Between the United States of America and Harrison County Sheriff’s
13   Department, Iowa, App. ¶ 2(b)(1) (same), available at
14   http://www.usdoj.gov/crt/foia/harrisonia.htm. Absent transporting the
15   prisoner or the visitor, there are also now electronic means for visits, such
16   as via a “Skype”-style program over the internet. See generally Skype,
17   http://www.skype.com (offering software that enables internet video and voice
18   conferencing). In noting that the possibility of a reasonable accommodation
19   is not unrealistic, we express no view on the reasonableness of any potential
20   accommodation in the instant case. The DOCS likely has other commonplace
21   practices that Fulton might benefit from, and it is for the DOCS, in the first
22   instance, to determine whether any of them would be a reasonable accommodation
23   in this case.

                                         -14-
1    determination, which requires remand and reconsideration, is its

2    failure to recognize that, over and above her request for a

3    transfer of her husband to a closer facility, Fulton was asking

4    for DOCS consideration of other accommodations to determine

5    whether any might be reasonably implemented.

6

7    III.    Leave to Amend the Complaint

8           Fulton has requested leave to amend her complaint, to bring

9    claims against DOCS and DOCS employees in their official

10   capacities.    We are normally accommodating to motions for leave

11   to amend pro se complaints, see Branum v. Clark, 927 F.2d 698,

12   705 (2d Cir. 1991), but may deny them “when amendment would be

13   futile,” Tocker v. Philip Morris Cos., 470 F.3d 481, 491 (2d Cir.

14   2006).    Fulton now seeks only money damages, and the defendants’

15   defense of Eleventh Amendment immunity may render Fulton’s

16   requested amendment futile.       Kentucky v. Graham, 473 U.S. 159,

17   169 (1985), holds that in a suit against state officials in their

18   official capacities, monetary relief (unlike prospective

19   injunctive relief) is generally barred by the Eleventh Amendment.

20          However, Fulton may still succeed if the defendants’

21   Eleventh Amendment immunity has been abrogated or waived.4             This

22   question does not have an obvious or settled answer, and the



     4
1          There are at least colorable arguments as to why immunity might have
2    been abrogated or waived in this particular case.

                                         -15-
1    defendants ask us to avoid deciding it.   Indeed, the defendants

2    consent to granting Fulton leave to amend her complaint, as long

3    as their immunity defense is preserved.   Fulton does not state

4    that she would be prejudiced by this approach, which comports

5    with our need to “avoid reaching constitutional questions in

6    advance of the necessity of deciding them.”    Lyng v. Nw. Indian

7    Cemetery Protective Ass’n, 485 U.S. 439, 445 (1988).   As a

8    result, we grant Fulton leave to amend her complaint without

9    prejudice to the defendants’ assertion of the Eleventh Amendment

10   defense at a later point in the proceedings.

11
12                              CONCLUSION

13         For the foregoing reasons, we VACATE the dismissal of

14   Fulton’s complaint and REMAND for the district court to

15   reconsider the sufficiency of the pleadings.




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