     07-2283-cv
     Harris v. Mills

1                         UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                August Term, 2008

4    (Argued:    February 2, 2009                     Decided: July 9, 2009)

5                              Docket No. 07-2283-cv

6                      -------------------------------------

7                          MONROE S. HARRIS, B.S., D.O.,

8                              Plaintiff-Appellant,

9                                     - v. -

10     RICHARD P. MILLS, Commissioner of Education, MERRYL H. TISCH,
11            Regent Chancellor, DAVID A. PATERSON, Governor,

12                             Defendants-Appellees,

13                     NEW YORK STATE EDUCATION DEPARTMENT,

14                                  Defendant.*

15                     -------------------------------------

16   Before:     SACK and PARKER, Circuit Judges, and COTE, District
17               Judge.**

18               Appeal from a judgment of the United States District

19   Court for the Southern District of New York (Victor Marrero,

20   Judge).    The district court granted the defendants' motion to

21   dismiss the plaintiff's pro se amended complaint.        We conclude


           *
             The Clerk of the Court is respectfully directed to amend
     the official caption to conform to this one. David A. Paterson
     and Merryl H. Tisch are substituted for George E. Pataki and
     Robert M. Bennett, respectively, pursuant to Federal Rule of
     Appellate Procedure 43(c)(2).
           **
             The Honorable Denise Cote, of the United States District
     Court for the Southern District of New York, sitting by
     designation.
1    that the plaintiff's claims are legally insufficient, even when

2    liberally construed, although we disagree with the district

3    court's decision to base that conclusion in part on the theory

4    that the plaintiff's claims under Title II of the Americans with

5    Disabilities Act and the Rehabilitation Act cannot be asserted

6    against individuals in their official capacity.

7              Affirmed.

 8                              DOUGLAS G. WADLER (Kenneth Joel Haber,
 9                              of counsel), Law Office of Kenneth Joel
10                              Haber, P.C., Rockville, MD, for
11                              Appellant.
12
13                              MARION R. BUCHBINDER, Assistant
14                              Solicitor General (Barbara D. Underwood,
15                              Solicitor General, Michael S.
16                              Belohlavek, Senior Counsel, Andrew M.
17                              Cuomo, Attorney General of the State of
18                              New York, of counsel), New York, NY, for
19                              Appellees.

20   SACK, Circuit Judge:

21             Monroe S. Harris appeals from a judgment of the United

22   States District Court for the Southern District of New York

23   (Victor Marrero, Judge).   Harris was formerly licensed by the

24   state of New York as a doctor of osteopathic medicine; his

25   medical license was revoked because he was found to have

26   committed fraud and engaged in improper medical practices.    At

27   issue is the New York State Education Department's denial of

28   Harris's petition to reinstate his license.   Harris brought this

29   action pro se pursuant to, inter alia, Title II of the Americans

30   with Disabilities Act ("ADA"), 42 U.S.C. § 12131 et seq., the

31   Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq., and 42


                                       2
1    U.S.C. § 1983.   He claims to have been illegally denied a

2    reasonable accommodation for his cognitive disabilities and

3    unconstitutionally deprived of due process of law.

4              The district court granted the individual defendants'

5    motion to dismiss the ADA and Rehabilitation Act accommodation

6    claims because the court concluded that those statutes do not

7    provide for individual liability.     The district court also

8    dismissed the Rehabilitation Act claim and the remaining claims

9    for failure to state a claim upon which relief can be granted.

10   Although we disagree with some of the district court's reasoning,

11   we agree with it that the plaintiff's claims are legally

12   insufficient, even when read with the lenity that must attend the

13   review of pro se pleadings.

14             We therefore affirm the judgment.

15                                 BACKGROUND

16             This appeal is but the latest chapter in a litigation

17   arising out of the 1999 revocation of Harris's license to

18   practice medicine by the New York State Board for Professional

19   Medical Conduct (the "Board").

20             The Revocation of the License

21             The Board revoked Harris's license to practice

22   osteopathic medicine in part because it found, after an

23   investigation and a hearing, that Harris had committed

24   "fraudulent practice" and had made false statements when he

25   submitted applications for reappointment to three different

26   hospitals.   See Harris v. N.Y. State Dep't of Health, 202 F.

                                       3
1    Supp. 2d 143, 148-49 (S.D.N.Y. 2002) ("Harris I").      Harris had

2    asserted in the applications that he was not at the time a

3    subject of disciplinary action, even though he was in fact then

4    under investigation by the Bureau of Controlled Substances of the

5    New York State Department of Health for allegations of illegally

6    storing and dispensing controlled substances.     See id. at 148.1

7    He also failed to disclose his previous misconduct in two other

8    reappointment applications and failed to disclose, in an

9    application to the New York State Education Department for

10   renewal of his medical license, that his practice privileges at a

11   hospital had been terminated.    See id.

12             The Board also found that Harris had provided negligent

13   and incompetent medical care.    He had, for example,

14   inappropriately prescribed diet pills to one patient and had

15   prescribed to another patient a drug contraindicated for that

16   patient's heart condition.   See id. at 149.   The Board also found

17   that Harris had failed to maintain records adequately.      See id.

18             The Board's revocation was affirmed by the State

19   Administrative Review Board.    See id. at 150.   Harris then

20   initiated a proceeding pursuant to Article 78 of the New York

21   Civil Practice Law and Rules, N.Y. C.P.L.R. § 7801 et seq., in

22   the New York State Supreme Court, Appellate Division.      The

23   Appellate Division confirmed the Administrative Review Board's




          1
             That investigation resulted in a formal acknowledgment of
     wrongdoing by Harris. See Harris I, 202 F. Supp. 2d at 148.

                                       4
1    decision and dismissed the petition.   Harris v. Novello, 276

2    A.D.2d 848, 714 N.Y.S.2d 365 (3d Dep't 2000).

3              Thereafter, Harris brought a lawsuit against the New

4    York State Department of Health ("DOH") in the district court.

5    In it, he challenged the Board's revocation of his license,

6    "alleg[ing] that DOH refused to acknowledge evidence of his

7    learning disabilities and revoked his medical license without

8    considering or offering him reasonable means to accommodate those

9    disabilities," in violation of Section 504 of the Rehabilitation

10   Act of 1973, 29 U.S.C. § 794, and Title II of the ADA.    Harris I,

11   202 F. Supp. 2d at 164.   He also alleged "deficiencies in DOH's

12   procedures" in violation of the Due Process Clause of the

13   Fourteenth Amendment to the United States Constitution.   Id.

14             The district court granted DOH's motion to dismiss in

15   light of the prior state proceedings, concluding that "Harris's

16   efforts to relitigate . . . the revocation of his medical license

17   are barred by application of the Rooker-Feldman doctrine."    Id.

18   at 165; see D.C. Court of Appeals v. Feldman, 460 U.S. 462

19   (1983); Rooker v. Fid. Trust Co., 263 U.S. 413 (1923).    The court

20   also concluded that the ADA and Rehabilitation Act claims against

21   the state agency were barred by operation of the Eleventh

22   Amendment, Harris I, 202 F. Supp. 2d at 173-74, and that the due

23   process claim against the DOH was barred because that agency is

24   not a "person" within the meaning of 42 U.S.C. § 1983, and

25   because the Eleventh Amendment precluded the due process claim

26   insofar as it sought money damages, id. at 178.

                                      5
1              The Petition for Restoration

2              In February 2002, Harris applied to the New York Board

3    of Regents, seeking to restore his license to practice medicine.2

4    After meeting with Harris, a "Peer Committee" issued a report

5    recommending that the Education Department deny his application.

6    On June 7, 2004, the Education Department's Committee on the

7    Professions met with Harris.    It subsequently issued a report

8    following the Peer Committee's recommendation.    The Board of

9    Regents affirmed.    Harris does not assert that he made any

10   further attempt to obtain review from New York state courts.

11             Harris brought this action pro se against the Education

12   Department pursuant to the ADA, Section 504 of the Rehabilitation

13   Act, and 42 U.S.C. § 1983.    The district court dismissed the

14   action sua sponte.    Harris v. N.Y. State Educ. Dep't, 419 F.

15   Supp. 2d 530, 535-36 (S.D.N.Y. 2006) ("Harris II").    The court

16   observed that Harris's complaint was, in large part, an attempt

17   to relitigate matters the court had already resolved in Harris I.

18   Id. at 532.   Insofar as the complaint "related to [Harris's]

19   petition to restore his medical license," id., the court

20   dismissed the ADA and Section 1983 claims against the state

21   agency on sovereign immunity grounds, id. at 532-34.    The court

22   concluded that the state's sovereign immunity had been waived for

23   the purposes of Harris's Rehabilitation Act claim.    Id. at 534.



          2
             That body of the Education Department has jurisdiction to
     "restore a license" of a "former licensee found guilty of
     professional misconduct." N.Y. Educ. Law § 6511.

                                       6
1    But the court observed that the complaint failed to make clear

2    what sort of "accommodation" Harris was denied, and the court

3    therefore dismissed the Rehabilitation Act claim "with leave to

4    amend to more fully articulate what reasonable accommodation

5    [Harris] requested and how the alleged failure to accommodate

6    resulted in the State's discriminatory refusal to restore his

7    medical license."    Id. at 535.

8                The Amended Complaint

9                Harris, continuing to act pro se, filed an amended

10   complaint -- the complaint at issue on this appeal -- against the

11   Commissioner of Education, the Regent Chancellor, and the

12   Governor of the State of New York.3     Harris requests injunctive,

13   declaratory, and monetary relief under the ADA; the

14   Rehabilitation Act; Section 1983 and 42 U.S.C. § 1988; the First,

15   Fourth, and Fourteenth Amendments to the United States

16   Constitution; and also pursuant to his assertion that the

17   decision to deny the reinstatement petition was "[a]rbitrary and

18   capricious" inasmuch as the defendants failed to follow their own

19   procedural rules.    Am. Compl. ¶¶ 184-95.   In the amended

20   complaint, Harris seeks, inter alia, an order granting Harris's

21   application for reinstatement of his license, together with such

22   "accommodation[]s . . . as might be necessary," and additional

23   injunctive relief.    Id. ¶¶ a-b.




          3
               The Education Department is no longer a defendant in this
     action.

                                         7
1              The amended complaint alleges that in 1998, on the

2    advice of counsel and while his investigation by the Board was

3    ongoing, see id. ¶ 34, Harris was diagnosed with "learning

4    disabilities . . . i.e. disorder of written expression and 'rule

5    out' reading disorder and Attention Deficit Hyperactivity

6    Disorder," id. ¶ 7.   Harris alleges that as a result of those

7    conditions, he has "difficulty with comprehending the written

8    word" and "a related problem with written expression."    Id. ¶ 11.

9    Harris further alleges that it is possible for him to

10   "compensate" for these disabilities and, in theory, to "practice

11   medicine or law, or any other discipline."   Id. ¶ 14.   Harris

12   asserts that that is just what he has done, obtaining degrees

13   from college and a school of osteopathic medicine "after

14   initially failing out of both" as a result of "various self

15   taught techniques and determination of will."    Id. ¶¶ 15-16.

16             Though it's not entirely clear from the pro se

17   pleadings, Harris appears also to allege that he made two

18   requests for accommodation from the Department of Education, both

19   of which were denied.

20             First, Harris apparently applied for "understanding of

21   the impact of [his] disabilities."   Id. ¶ 22.   Harris says, in

22   this regard, that "he could not have a fair medical license

23   restoration hearing . . . without reasonable accommodation of

24   understanding of LD & ADHD and it[]s past behavioral impact," id.

25   ¶ 25, and similarly that "[w]ithout understanding [the] impact of

26   [Harris's] impairment [the state officials] can not make a proper

                                      8
1    evaluation . . . of [his] rehabilitation," id. ¶ 37.    Harris's

2    application for "understanding" relates to his demand for

3    reinstatement of his license.

4               Second, Harris says, he made and was denied a request

5    to read a written "explanation" before the Committee on the

6    Professions because his oral explanation before the Peer

7    Committee was thought by the Peer Committee to be "unfocused" and

8    "not clearly presented."   Id. ¶¶ 43-44.   He "thought it would be

9    more organized and clearly presented" to do it in writing.     Id.

10   ¶ 44.   This sought-for accommodation relates to whether he

11   received an adequate hearing.

12              The amended complaint also contests the judgment of the

13   Committee regarding the impact of Harris's alleged disability, in

14   part on the ground that the agency lacked expert testimony on the

15   subject, and in part because it failed to adequately

16   "acknowledge" evidence of his disability.   Id. ¶¶ 153-54.    The

17   amended complaint asserts this as a separate basis for relief.

18              Included in the amended complaint, too, is much

19   discussion in mitigation or denial of the actions for which

20   Harris's license was revoked, all of which is "not presented for

21   re[]litigation" but "to illustrate an understand[ing] [i.e., on

22   Harris's part] of the past issues and to prevent [their]

23   reoccurrence in the future ([i.e.,] rehabilitation)."    Id. ¶ 63.

24              The district court granted the defendants' motion to

25   dismiss the amended complaint.   Harris v. Mills, 478 F. Supp. 2d

26   544 (S.D.N.Y. 2007) ("Harris III").   Harris's motion to

                                      9
1    reconsider that decision, in part in light of his withdrawal of a

2    claim for damages relief, was denied by endorsed order.

3               Harris, represented by counsel, appeals.

4                                DISCUSSION

5               I. Standard of Review

6               We review de novo the grant of a motion to dismiss for

7    failure to state a claim upon which relief can be granted under

8    Federal Rule of Civil Procedure 12(b)(6).      City of New York v.

9    Beretta U.S.A. Corp., 524 F.3d 384, 392 (2d Cir. 2008), cert.

10   denied, 129 S. Ct. 1579 (2009).     We consider the legal

11   sufficiency of the complaint, taking its factual allegations to

12   be true and drawing all reasonable inferences in the plaintiff's

13   favor.   See id.

14              In accordance with the Supreme Court's decision Bell

15   Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), we apply a

16   "plausibility standard," which is guided by "[t]wo working

17   principles," Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

18   First, although "a court must accept as true all of the

19   allegations contained in a complaint," that "tenet" "is

20   inapplicable to legal conclusions" and "[t]hreadbare recitals of

21   the elements of a cause of action, supported by mere conclusory

22   statements, do not suffice."   Id.      "Second, only a complaint that

23   states a plausible claim for relief survives a motion to dismiss"

24   and "[d]etermining whether a complaint states a plausible claim

25   for relief will . . . be a context-specific task that requires

26   the reviewing court to draw on its judicial experience and common

                                        10
1    sense."   Id. at 1950.   Even after Twombly, though, we remain

2    obligated to construe a pro se complaint liberally.    See Erickson

3    v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (per

4    curiam); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191

5    (2d Cir. 2008); Boykin v. KeyCorp, 521 F.3d 202, 213-14, 216 (2d

6    Cir. 2008).

7               II. The Accommodation Claims

8               The district court concluded that "the ADA does

9    not . . . provide for individual liability, either in the

10   individual's official or personal capacity."    Harris III, 478 F.

11   Supp. 2d at 547.   It reached the same conclusion with respect to

12   the Rehabilitation Act.    Id. at 547-48 ("Because claims under the

13   Rehabilitation Act may not be brought against individuals, either

14   in their personal or official capacity, Harris's Rehabilitation

15   Act claim must also be dismissed.").    The district court also

16   dismissed the Rehabilitation Act claim on the ground that fails

17   to state a claim upon which relief can be granted.    See id. at

18   548.

19   A. Individual Liability

20              As the defendants concede, the district court

21   incorrectly concluded that claims under Title II of the ADA and

22   the Rehabilitation Act cannot be asserted against individuals in

23   their official capacity.    In Henrietta D. v. Bloomberg, 331 F.3d

24   261 (2d Cir. 2003), cert. denied, 541 U.S. 936 (2004), we wrote:

25              We . . . cannot embrace the state defendant's
26              statutory claim that an individual sued in
27              his or her official capacity under the

                                      11
 1             doctrine of Ex parte Young is not a "public
 2             entity" subject to liability under the ADA,
 3             42 U.S.C. § 12132. The real party in
 4             interest in an official-capacity suit is the
 5             government entity. As a result, it is
 6             irrelevant whether the ADA would impose
 7             individual liability on the officer sued;
 8             since the suit is in effect against the
 9             "public entity," it falls within the express
10             authorization of the ADA.

11   Id. at 288 (citation omitted).   In other words, we concluded that

12   Title II and Rehabilitation Act suits for prospective injunctive

13   relief may, under the doctrine established by Ex parte Young, 209

14   U.S. 123 (1908), proceed against individual officers in their

15   official capacity, see Henrietta D., 331 F.3d at 289 ("[T]here is

16   no basis for holding that the ADA or Rehabilitation Act intended

17   to create the kind of comprehensive enforcement scheme that would

18   preclude prospective injunctive relief against a state official

19   in her official capacity.").   Insofar as the amended complaint

20   seeks prospective injunctive relief, then, it may be asserted

21   against the individual defendants here in their official

22   capacities.4


          4
             It appears Harris intended to amend the complaint further
     to limit his request to injunctive relief only. Four days after
     the district court's dismissal of the amended complaint, Harris
     sent a communication to the court requesting "[r]econsideration"
     of the court's "[d]ecision" for six reasons that had previously
     been argued, but also for a seventh: "Drop money damages." See
     Endorsed letter of Monroe Harris entitled "Reconsideration," Mar.
     26, 2007 (Docket Entry 21). By endorsement, the district court
     construed the letter as a "request [for] reconsideration," and
     denied the request because the letter "provides no controlling
     facts or law that the court overlooked in its prior rulings on
     this matter that would alter the outcome of the Court's
     decision." Id. But the part of the application that sought to
     "[d]rop money damages" was, strictly speaking, not a motion that
     "renew[ed] arguments previously made," and therefore did not

                                      12
1              The district court relied upon two cases to conclude

2    otherwise: Lennon v. NYC, 392 F. Supp. 2d 630, 640 (S.D.N.Y.

3    2005), which noted prior district court rulings that individually

4    named defendants cannot be held personally liable under the ADA,

5    and Hartnett v. Fielding Graduate Institute, 400 F. Supp. 2d 570,

6    575 (S.D.N.Y. 2005), aff'd in part and rev'd in part on other

7    grounds, 198 Fed. Appx. 89 (2d Cir. 2006) (summary order), which

8    quoted a pre-Henrietta D. case, Menes v. CUNY, 92 F. Supp. 2d

9    294, 306 (S.D.N.Y. 2000), for the proposition that individuals

10   cannot "'be named in their official or representative capacities

11   as defendants in ADA or Rehabilitation Act suits.'"   Harris III,

12   478 F. Supp. 2d at 547.   Insofar as Hartnett, Menes, and another

13   post-Henrietta D. case that was relied upon by Lennon, Gentile v.

14   Town of Huntington, 288 F. Supp. 2d 316, 322 (E.D.N.Y. 2003),

15   hold that individual defendants cannot be sued in their official

16   capacities for prospective injunctive relief under the ADA or the

17   Rehabilitation Act, those holdings are contrary to Henrietta D.,

18   by which we are of course bound.

19   B. Legal Sufficiency

20             We conclude, nonetheless, that the amended complaint

21   fails to state accommodation claims upon which the injunctive




     "bring up for review the underlying order." "R" Best Produce,
     Inc. v. DiSapio, 540 F.3d 115, 121 (2d Cir. 2008). Liberally
     construed, it was an attempt to withdraw a claim for relief
     pursuant to Federal Rule of Civil Procedure 15(a)(2). Whether
     the district court should have granted that application is not at
     issue on this appeal.


                                     13
1    relief Harris seeks can be granted, even under the liberal

2    standard of review for pro se pleadings.

3              1.   Applicable Legal Standards.    Title II of the ADA

4    "proscribes discrimination against the disabled in access to

5    public services."   Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d

6    79, 84-85 (2d Cir.), corrected, 511 F.3d 238 (2d Cir. 2004).     It

7    provides that "no qualified individual with a disability shall,

8    by reason of such disability, be excluded from participation in

9    or be denied the benefits of the services, programs, or

10   activities of a public entity, or be subjected to discrimination

11   by any such entity."    42 U.S.C. § 12132.   To assure that those

12   requirements are met, "reasonable accommodation" may have to be

13   provided to the qualified individual.    See Henrietta D., 331 F.3d

14   at 273-74.   Similarly, the Rehabilitation Act requires that

15   specified "otherwise qualified" disabled individuals receive

16   reasonable accommodations from programs receiving federal

17   financial assistance.    29 U.S.C. § 794(a); Alexander v. Choate,

18   469 U.S. 287, 301 (1985); Henrietta D., 331 F.3d at 273.

19             "[I]n most cases,"5 the standards are the same for

20   actions under both statutes.    Powell, 364 F.3d at 85.

21             In order for a plaintiff to establish a prima
22             facie violation under these Acts, she must
23             demonstrate (1) that she is a qualified
24             individual with a disability; (2) that the
25             defendants are subject to one of the Acts;
26             and (3) that she was denied the opportunity
27             to participate in or benefit from defendants'


          5
             The differences among the cases referred to do not affect
     the analysis here.

                                      14
1                services, programs, or activities, or was
2                otherwise discriminated against by
3                defendants, by reason of her disability.
4
5    Id. (internal quotation marks and brackets omitted).

6                2.   The Standards Applied.   Harris makes two

7    accommodation claims.     The first is that the Education Department

8    wrongly denied him an "understanding of the impact of [his]

9    disabilities."     Am. Compl. ¶ 22.    Without such understanding, he

10   alleges, the reinstatement hearing was not "fair," id. ¶ 25, in

11   that the Department could undertake no "proper" assessment of his

12   "rehabilitation," id. ¶ 37.     Even read liberally, Harris's

13   complaint does not, however, identify how Harris's disabilities

14   affected the behavior that caused the revocation of his license,

15   nor how those disabilities could be accommodated to reform this

16   behavior.    Harris thus alleges, at core, that if only the

17   defendants would "understand" the impact of his disabilities,

18   they would be willing to overlook the actions that caused him to

19   lose his license in the first place.      Generally construed, this

20   allegation amounts only to the contention that Harris's medical

21   licensing qualifications should be relaxed in light of his

22   disability.

23               This is not a reasonable accommodation claim.    Title II

24   of the ADA requires the accommodation of disabled persons who are

25   entitled to a public benefit "whether or not [they are] given an

26   accommodation."     Powell, 364 F.3d at 84-85; see also 42 U.S.C.

27   § 12131 ("The term 'qualified individual with a disability' means

28   an individual with a disability who, with or without reasonable

                                       15
1    modifications to rules, policies, or practices . . . meets the

2    essential eligibility requirements for [the relevant benefit]."

3    (emphasis added)).   The paradigmatic example is a person who must

4    use a wheelchair to access the courts -- a citizen is entitled to

5    access the court system irrespective of whether he or she can

6    walk.   See Tennessee v. Lane, 541 U.S. 509 (2004).   Here, by

7    contrast, Harris would be entitled to a reinstatement of his

8    license only if his disability is accommodated by the state's

9    relaxation of its license qualifications.   Title II of the ADA

10   requires no such diminishment of otherwise applicable standards.

11   See Felix v. N.Y. City Transit Auth., 324 F.3d 102, 107 (2d Cir.

12   2003) ("The ADA mandates reasonable accommodation of people with

13   disabilities in order to put them on an even playing field with

14   the non-disabled; it does not authorize a preference for disabled

15   people generally.").

16              Similarly with respect to the Rehabilitation Act claim,

17   because Harris does not contest the Board's view that his past

18   acts of fraud and improper practices disentitle him to the

19   license, but asks only for the state's "understanding" of the

20   reasons why he committed those actions, he cannot demonstrate

21   that he is "otherwise qualified" for a medical license.    Harris's

22   first accommodation claim is therefore legally insufficient under

23   both statutes.

24              Harris's second accommodation claim arises out of the

25   denial of his request for permission to read to the Committee on

26   the Professions a written explanation so his case "would be more

                                     16
1    organized and clearly presented."     Am. Compl. ¶ 44.   The district

2    court concluded that Harris "did not make clear how this denial

3    related to the final determination not to restore his medical

4    license."    Harris III, 478 F. Supp. 2d at 548.

5                The problem with this conclusion is that it assumes

6    that Harris seeks the written-presentation accommodation in order

7    to obtain his license to practice.     But under a liberal reading

8    of the amended complaint, Harris asks only for reasonable access

9    to a hearing in which to make his case for reinstatement.     The

10   relation of the state's denial and the benefit Harris seeks -- a

11   fair hearing -- is clear under this reading.     Moreover, there is

12   no dispute that Harris was otherwise entitled to such a hearing.

13               Even so construed, however, Harris's claim is

14   insufficient.    As an initial matter, there is no allegation

15   (beyond ipse dixit) that Harris was denied the opportunity to

16   read from a written statement "by reason" of his disability, let

17   alone "solely by reason" of his disability, as the Rehabilitation

18   Act requires.    29 U.S.C. § 794; accord Powell, 364 F.3d at 85;

19   Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998).     Moreover, it is

20   not clear how such an accommodation would have helped Harris.

21   According to the amended complaint, Harris has "difficulty with

22   comprehending the written word" and "a related problem with

23   written expression."    Am. Compl. ¶ 11.   If those are the

24   disabilities with which Harris is afflicted, allowing him to

25   prepare and read a written statement would not have accommodated

26   his disabilities; it would have frustrated them.

                                      17
1              We reject Harris's remaining arguments.    He contends

2    that the Committee failed in its "responsibility" to initiate "an

3    interactive process" with him to discover an accommodation that

4    would help him obtain his medical license.    Pl.'s Br. 20.   The

5    ADA "envisions an 'interactive process' by which employers and

6    employees work together to assess whether an employee's

7    disability can be reasonably accommodated."    Jackan v. N.Y. State

8    Dep't of Labor, 205 F.3d 562, 566 (2d Cir.), cert. denied, 531

9    U.S. 931 (2000); see 29 C.F.R. § 1630.2 ("To determine the

10   appropriate reasonable accommodation it may be necessary for the

11   covered entity to initiate an informal, interactive process with

12   the qualified individual with a disability in need of the

13   accommodation."); accord Lovejoy-Wilson v. NOCO Motor Fuel, Inc.,

14   263 F.3d 208, 219 (2d Cir. 2001).    This, however, does not help

15   Harris; he received hearings in which he was permitted to make

16   his case for reissuance of his license.   "There [is] no need for

17   injunctive relief" if Harris was "already being reasonably

18   accommodated."   Henrietta D., 331 F.3d at 282.

19             Harris also argues that the Committee should have

20   considered more documentary evidence on his behalf and wrongly

21   found his claims of disability implausible.    But he fails to

22   explain how these arguments relate to his accommodation claim.

23             III. The Due Process Claim

24             The district court dismissed Harris's due process claim

25   on the ground that Article 78 provided an adequate post-

26   deprivation hearing for the denial of his petition to reinstate

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1    his license.   Harris III, 478 F. Supp. 2d at 549.    The district

2    court concluded that "Harris was certainly familiar with Article

3    78 proceedings, having availed himself of that remedy after his

4    medical license was initially revoked," id., and that "[b]ecause

5    New York provides a meaningful post-deprivation remedy and Harris

6    does not indicate that he pursued this remedy, "his due process

7    claim must be dismissed," id. at 549-50.

8              Harris argues that the defendants' failure to consider

9    evidence of his character and disabilities wrongfully deprived

10   him of a constitutionally protected interest.     In addition, he

11   argues, the defendants baselessly "assumed that Harris was not

12   disabled."   Pl.'s Reply Br. 10.    Harris characterizes these

13   arguments as challenges to the "state procedural scheme" as a

14   whole, not merely a discrete set of unauthorized acts, id. at 11,

15   and therefore contends that he was entitled to a pre-deprivation

16   hearing under Zinermon v. Burch, 494 U.S. 113 (1990).     We need

17   not grapple with whether any of the defendants, by virtue of

18   their decision-making authority or role, would be unable to avail

19   themselves of the principle that "[w]hen the state conduct in

20   question is random and unauthorized, the state satisfies

21   procedural due process requirements so long as it provides

22   meaningful post-deprivation remedy."     Rivera-Powell v. New York

23   City Bd. of Elections, 470 F.3d 458, 465 (2d Cir. 2006).     Harris

24   was given notice and an opportunity to be heard before his

25   petition for reinstatement was denied.     That, coupled with the



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1    Article 78 post-deprivation remedy, is enough to satisfy due

2    process.   See id. at 466-67.

3               Finally, Harris's amended complaint states as a

4    separate cause of action that the defendants' decisions were

5    "[a]rbitrary and capricious" inasmuch as the defendants failed to

6    follow their own procedural rules.    Am. Compl. 21.   Insofar as

7    this is intended to be a stand-alone legal claim based solely on

8    violations of state regulations, it is not actionable in federal

9    court.   See Alfaro Motors, Inc. v. Ward, 814 F.2d 883, 888 (2d

10   Cir. 1987) ("Section 1983 is not a means for litigating in a

11   federal forum whether a state or local administrative decision

12   was arbitrary and capricious.").     It therefore states no claim

13   upon which relief can be granted.

14                               CONCLUSION

15              For the foregoing reasons, the judgment of the district

16   court is affirmed.




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