Case 2:13-cv-03478-SRC-CLW Document 1 Filed 06/05/13 Page 1 of 56 PageID: 1

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF NEWARK

ROSEMARY SCIARRILLO, by and :

through her guardians,

:

Joanne St. Amand and

:

Anthony Sciarrillo,

:

:

JOYCE BANOS, by and through her :

guardian, Peter Banos,

:

:

ROBERT JOHN BARRETT, by and :

through his guardians, Robert and

:

Carol Barrett,

:

:

CHARLES DAVID CHRISTENSEN, by :

and through his guardian,

:

Daniel Christensen, :

:

ARLEEN BRAUSE, by and through her :

guardians, Joseph Fass and Harriet Fass, :

:

KENNETH COOPER, by and through :

his guardian, Minnie Cooper,

:

:

VINCENT GALLUCCIO, by and

:

through his guardian,

:

Domenica Galluccio, :

:

RODNEY HAMMOND, by and through :

his guardian and his brother,

:

Carrie Hammond and Walter Hammond, :

:

SHARON KNAPP, by and through

:

her guardians, Barry Knapp and

:

Maria Knapp,

:

:

RICHARD SARAO, by and through his :

guardian, Mary Tritt,

:

:

CHERYL GORDON, by and through :

her brother, Joseph Gordon,

:

:

PETER CANALE, by and through

:

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his guardians, Steven Canale and

:

Maria Canale,

:

:

LINDA GRAVES, by and through her :

parents, Shirley and Billie Graves, :

:

DIANE O’BRIEN, by and through her :

guardian, Fred O’Brien,

:

:

THOMAS MARINELLO,

:

by and through his guardians,

:

Jean Marinello and Jody Sorge,

:

:

MAUREEN DORAN, by and through :

her guardians, Kathleen DeCicco

:

and Lori Centrella, :

:

KERR MITCHELL, by and through :

his guardian, Juana Mitchell,

:

:

EUGENE CARR, by and through

:

his guardian Marylyn Carr,

:

:

LEAH WRIGHT, by and through

:

her guardian, Elizabeth Wright,

:

:

CATHERINE O’BRIEN, by and through :

her guardians, Donald and Virginia

:

O’Brien and Susan Mason,

:

:

JACQUELINE FRIEDMAN, by and :

through her guardians, Sam Friedman :

and Gail Friedman, :

:

PAUL DITTAMO, by and through his :

mother, Wendy Dittamo,

:

:

CLAYTON DAVIS, by and through his :

guardians, Rose Seyler and

:

Dorothy Davis,

:

:

STEPHEN SCOTT DYER, by and

:

through his guardian, Peter Dyer,

:

:

SUSAN GRIFFIN, by and through her :

guardian, Barbara Columbo,

:

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:

EUGENE KESSLER, by and through his :

guardian, Frances Finkelstein,

:

:

PHILIP CONKLING, by and through :

his guardian, Caroline Conkling,

:

:

RALPH GRZYMKOWSKI, by and

:

through his guardians, Dana and

:

Mirek Grzymkowski,

:

:

MARY ELLEN SCESA, by and through :

her guardians, Kathleen and Louis Scesa, :

:

ALICE TUCKER, by and through

:

her guardian Bertha Westbrock,

:

:

STEPHANIE ROOTS, by and through :

her guardian, Marie Reid,

:

:

KESHA SMITH, by and through her :

guardian, Deborah Smith,

:

:

ANDREW SEKELA, by and through :

his guardian, Winifred Sekela,

:

:

PAUL VACCA, by and through

:

his guardians, Donald and

:

Theresa Vacca,

:

:

RALPH VERLEUR, by and through :

his guardian, Else Verleur,

:

:

:

:

Plaintiffs,

:

v.

:

:

CHRISTOPHER CHRISTIE, as

:

Governor of the State of New Jersey; :

NEW JERSEY DEPARTMENT OF :

HUMAN SERVICES; JENNIFER

:

VELEZ, as Commissioner of the New :

Jersey Department of Human Services; :

NEW JERSEY DEPARTMENT OF :

HUMAN SERVICES DIVISION OF :

CIV. NO.:
COMPLAINT [DEMAND FOR JURY TRIAL]

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DEVELOPMENTAL DISABILITIES; :

DAWN APGAR, as Deputy

:

Commissioner/Acting Assistant

:

Commissioner of New Jersey Department :

of Human Services Division of

:

Developmental Disabilities; NORTH :

JERSEY DEVELOPMENTAL

:

CENTER; WOODBRIDGE :

DEVELOPMENTAL CENTER,

:

:

Defendants.

:

June

5, 2013

COMPLAINT The Plaintiffs, ROSEMARY SCIARRILLO, by and through her guardians, Joanne St. Amand and Anthony Sciarrillo; JOYCE BANOS, by and through her guardian, Peter Banos; ROBERT JOHN BARRETT, by and through his guardians, Robert and Carol Barrett; CHARLES DAVID CHRISTENSEN, by and through his guardian, Daniel Christensen; ARLEEN BRAUSE, by and through her guardians, Joseph and Harriet Fass; KENNETH COOPER, by and through his guardian, Minnie Cooper; VINCENT GALLUCCIO, by and through his guardian, Dee Galluccio; RODNEY HAMMOND, by and through his guardian and brother, Carrie Hammond and Walter Hammond; SHARON KNAPP, by and through her guardians, Barry and Sharon Knapp; RICHARD SARAO, by and through his guardian, Mary Tritt; CHERYL GORDON, by and through her brother, Joseph Gordon; PETER CANALE, by and through his guardians, Steven Canale and Maria Canale; LINDA GRAVES, by and through her parents, Shirley and Billie Graves; DIANE O’BRIEN, by and through her guardian, Fred O’Brien; THOMAS MARINELLO, by and through his guardians, Jean Marinello and Jody Sorge; MAUREEN DORAN, by and through her guardians, Kathleen DeCicco and Lori Centrella, KERR MITCHELL, by and through his guardian, Juana Mitchell; EUGENE

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CARR, by and through his guardian Marylyn Carr; LEAH WRIGHT, by and through her guardian, Elizabeth Wright; and CATHERINE O’BRIEN, by and through her guardians, Donald and Virginia O’Brien and Susan Mason, JACQUELINE FRIEDMAN, by and through her guardians, Sam Friedman and Gail Friedman; PAUL DITTAMO, by and through his mother, Wendy Dittamo; CLAYTON DAVIS, by and through his guardians, Rose Seyler and Dorothy Davis; STEPHEN SCOTT DYER, by and through his guardian, Peter Dyer; SUSAN GRIFFIN, by and through her guardian, Barbara Columbo; EUGENE KESSLER, by and through his mother, Frances Finkelstein; PHILIP CONKLING, by and through his guardian, Caroline Conkling; RALPH GRZYMKOWSKI, by and through his guardians, Dana and Mirek Grzymkowski; MARY ELLEN SCESA, by and through her guardians, Kathleen and Louis Scesa; ALICE TUCKER, by and through her guardian, Bertha Westbrock; STEPHANIE ROOTS, by and through her guardian, Marie Reid; ANDREW SEKELA, by and through his guardian, Winifred Sekela; KESHA SMITH, by and through her guardian, Deborah Smith; PAUL VACCA, by and through his guardians, Donald and Theresa Vacca; RALPH VERLEUR, by and through his guardian, Else Verleur; by their undersigned attorneys, aver the following:
JURISDICTION 1. This action is for declaratory and injunctive relief under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12132, the Rehabilitation Act of 1973, 29 U.S.C. § 794(a) (“Section 504”), the Medical Assistance Program authorized by 42 U.S.C. 1396, et seq., and the United States Constitution.
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2. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331, 1342, and 1343. Plaintiffs’ claims for declaratory and injunctive relief are authorized under 28 U.S.C. §§ 2201-02 and 42 U.S.C. § 1983 and the waiver of state sovereign immunity enacted in 42 U.S.C. § 2000d-7(a)(I) and various Medicaid federal statutes and regulations incorporated into New Jersey law. At all times relevant to this action, Defendants have acted under color of state law.
VENUE 3. Venue lies in the District of New Jersey pursuant to 28 U.S.C. § 1391(b), and in the Newark Division, because the Plaintiffs officially reside in Northern Middlesex and Passaic Counties, New Jersey.
NAMED PLAINTIFFS 4. ROSEMARY SCIARILLO is a 58 year old female (d/o/b 3/13/1955) with profound intellectual disabilities who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Rosemary brings this lawsuit by and through her sister and brother and legal guardians, Joanne St. Amand and Anthony Sciarrillo. She has resided at WDC for approximately 38 years. 5. JOYCE BANOS is a 55 year old female (d/o/b 4/28/1957) with a diagnosis of profound mental retardation who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Joyce brings this lawsuit by and through her brother and legal guardian, Peter Banos. She has resided at WDC for approximately 42 years.
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6. ROBERT JOHN BARRETT is a 56 year old male (d/o/b 1/24/1957) with a diagnosis of profound mental retardation who resides at Woodbridge Developmental Center in Woodbridge, NJ. Robert brings this lawsuit by and through his parents and legal guardians, Robert and Carol Barrett. He has resided at WDC for approximately 46 years.
7. CHARLES DAVID CHRISTENSEN (“DAVID”) is a 66 year old male (d/o/b 5/15/1946) with a diagnosis of profound mental retardation who resides at the Woodbridge Developmental Center in Woodbridge, NJ. David brings this lawsuit by and through his brother and legal guardian, Daniel Christensen. He has resided at WDC for approximately 48 years.
8. ARLEEN BRAUSE is a 62 year old female (d/o/b 6/13/1951) with intellectual disabilities who resides at Woodbridge Developmental Center in Woodbridge, NJ. Arleen brings this lawsuit by and through her sister and brother-in-law, and legal guardians, Harriet and Joseph Fass. She has resided at WDC for approximately 48 years.
9. KENNETH COOPER is a 58 year old male (d/o/b 12/5/1955) with a diagnosis of severe mental retardation who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Kenneth brings this lawsuit by and through his mother and legal guardian, Minnie Cooper. He has resided at WDC for approximately 49 years.
10. VINCENT GALLUCCIO is a 38 year old male (d/o/b 5/14/1975) with severe mental retardation who resides at Woodbridge Developmental Center in Woodbridge, NJ. Vincent brings this lawsuit by and through his mother and legal guardian, Dee Galluccio. He has resided at WDC for approximately 25 years.
11. RODNEY HAMMOND is a 58 year old male (d/o/b 7/7/1955) with a diagnosis of severe mental retardation who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Kenneth brings this lawsuit by and through his mother and legal guardian,
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Carrie Hammond, and his brother, Walter Hammond. He has resided at WDC for approximately 30 years.
12. SHARON KNAPP is a 67 year old female (d/o/b 5/13/1946) with a diagnosis of severe mental retardation who resides at Woodbridge Developmental Center in Woodbridge, NJ. Sharon brings this lawsuit through her brother and legal guardian, Barry Knapp, and her sisterin-law, Maria Knapp. She has resided at WDC for approximately 48 years.
13. RICHARD SARAO is a 55 year old male (d/o/b 5/1958) with a diagnosis of profound mental retardation who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Richard brings this lawsuit by and through his mother and legal guardian, Mary Tritt. He has resided at WDC for approximately 48 years.
14. CHERYL GORDON is a 60 year old female (d/o/b 3/28/1953) with a brain injury diagnosis who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Cheryl brings this lawsuit by and through her brother, Joseph Gordon. She has resided at WDC for approximately 8 years.
15. PETER CANALE is a 55 year old male (d/o/b 12/30/1958) with intellectual disabilities who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Peter brings this lawsuit by and through his brother and sister, legal guardians, Steven Canale and Maria Canale. He has resided at WDC for approximately 45 years.
16. LINDA GRAVES is a 50 year old female (d/o/b 10/7/1963) with intellectual disabilities who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Linda brings this lawsuit by and through her parents, Shirley and Billie Graves. She has resided at WDC for approximately 29 years.
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17. DIANE O’BRIEN is a 53 year old female (d/o/b 11/2/1960) with a diagnosis of profound retardation who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Diane brings this lawsuit by and through her father and legal guardian, Fred O’Brien. She has resided at WDC for approximately 47 years.
18. THOMAS MARINELLO is a 56 year old male (d/o/b 5/5/1957) with intellectual disabilities who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Thomas brings this lawsuit by and through his mother and sister, legal guardians, Jean Marinello and Jody Sorge. He has resided at WDC for approximately 52 years.
19. MAUREEN DORAN is a 68 year old female (d/o/b 2/7/1945) with intellectual disabilities who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Maureen brings this lawsuit by and through her sisters and legal guardians, Kathleen DeCicco and Lori Centrella. She has resided at WDC for approximately 12 years.
20. KERR MITCHELL is a 42 year old male (d/o/b 5/22/1971) with a diagnosis of profound mental retardation who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Kerr brings this lawsuit by and through his mother and legal guardian, Juana Mitchell. He has resided at WDC for approximately 25 years.
21. EUGENE CARR is a 55 year old male (d/o/b 7/ 12/1957) with a brain injury diagnosis who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Eugene brings this lawsuit by and through his mother and legal guardian, Marylyn Carr. He has resided at WDC for 43 years.
22. LEAH WRIGHT is a 49 year old female (d/o/b 12/9/1964) with a diagnosis of profound mental retardation who resides at the Woodbridge Developmental Center in
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Woodbridge, NJ. Leah brings this lawsuit by and through her mother and legal guardian, Elizabeth Wright. She has resided at WDC for approximately 27 years.
23. CATHERINE O’BRIEN is a 52 year old female (d/o/b 3/28/1961) with a diagnosis of profound mental retardation who resides at the Woodbridge Developmental Center in Woodbridge, NJ. Catherine brings this lawsuit by and through her parents and sister and legal guardians, Donald and Virginia O’Brien and Susan Mason. She has resided at WDC for approximately 48 years.
24. JACQUELINE FRIEDMAN is a 48 year old female (d/o/b 12/2/1964) with intellectual disabilities who resides at the North Jersey Developmental Center in Totowa, New Jersey. Jacqueline brings this lawsuit by and through her brother and sister, legal guardians, Sam Friedman and Gail Friedman. She has resided at NJDC for approximately 47 years.
25. PAUL DITTAMO is a 46 year old male (d/o/b 2/20/1967) with a diagnosis of profound mental retardation who resides at the North Jersey Developmental Center in Totowa, New Jersey. Paul brings this lawsuit by and through his mother and legal guardian, Wendy Dittamo. He has resided at NJDC for approximately 44 years.
26. CLAYTON DAVIS is a 56 year old male (d/o/b 2/10/1957) with intellectual disabilities who resides at the North Jersey Developmental Center in Totowa, New Jersey. Clayton brings this lawsuit by and through his sister and legal guardians, Rose Seyler and Dorothy Davis. He has resided at NJDC for approximately 40 years.
27. STEPHEN SCOTT DYER is a 45 year old male (d/o/b 7/2/1967) diagnosed with profound mental retardation who resides at the North Jersey Developmental Center in Totowa, New Jersey. Stephen brings this lawsuit by and through his father and legal guardian, Peter Dyer. Stephen has resided at NJDC for approximately 42 years.
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28. SUSAN GRIFFIN is a 59 year old female (d/o/b 9/15/1954) diagnosed with severe mental retardation who resides at the North Jersey Developmental Center in Totowa, New Jersey. Susan brings this lawsuit by and through her sister and legal guardian, Barbara Columbo. She has resided at NJDC for approximately 20 years.
29. EUGENE KESSLER is a 54 year old male (d/o/b 4/4/1959) with a diagnosis of moderate mental retardation, bipolar disorder, and pervasive developmental disabilities who resides at North Jersey Developmental Center in Totowa, New Jersey. Eugene brings this lawsuit by and through his mother and legal guardian, Frances Finkelstein. He has resided at NJDC for approximately 6 years.
30. PHILIP CONKLING is a 37 year old male (d/o/b 12/19/1976) with intellectual disabilities who resides at North Jersey Developmental Center in Totowa, New Jersey. Philip brings this lawsuit by and through his mother and legal guardian, Caroline Conkling. He has resided at NJDC for approximately 14 years.
31. RALPH GRZYMKOWSKI is a 40 year old male (d/o/b 3/4/1973) with a diagnosis of autism who resides at the North Jersey Developmental center in Totowa, New Jersey. Ralph brings this lawsuit by and through his parents and legal guardians, Dana and Mirek Grzymkowski. He has resided at NJDC for approximately 12 years.
32. MARY ELLEN SCESA is a 46 year old female (d/o/b 1/6/1967) with a diagnosis of severe mental retardation who resides at the North Jersey Developmental Center in Totowa, New Jersey. Mary Ellen brings this lawsuit by and through her parents and legal guardians, Kathleen and Louis Scesa. She has resided at NJDC for approximately 43 years
33. ALICE TUCKER is a 58 year old female (d/o/b 2/1/1955) with intellectual disabilities who resides at North Jersey Developmental Center in Totowa, New Jersey. Alice
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brings this lawsuit by and through her sister and legal guardian, Bertha Westbrock. She has resided at NJDC for approximately 29 years.
34. STEPHANIE ROOTS is a 48 year old female (d/o/b 5/14/1965) with intellectual disabilities who resides at the North Jersey Developmental Center in Totowa, New Jersey. Stephanie brings this lawsuit by and through her mother and legal guardian, Marie Reid. She has resided at NJDC for approximately 28 years.
35. ANDREW SEKELA is a 41 year old male (d/o/b 12/7/1971) with intellectual disabilities who resides at the North Jersey Developmental Center in Totowa, New Jersey. Andrew brings this lawsuit by and through his mother and legal guardian, Winifred Sekela.
36. KESHA SMITH is a 43 year old female (d/o/b 12/7/1970) with a diagnosis of profound mental retardation who resides at the North Jersey Developmental Center in Totowa, New Jersey. Kesha brings this lawsuit by and through her mother and legal guardian Deborah Smith. She has resided at NJDC for approximately 28 years.
37. PAUL VACCA is a 51 year old male (d/o/b 1/15/1962) with a diagnosis of profound mental retardation who resides at the North Jersey Developmental Center in Totowa, New Jersey. Paul brings this lawsuit by and through his parents and legal guardians, Donald and Theresa Vacca. He has resided at NJDC for approximately 21 years.
38. RALPH VERLEUR is a 50 year old male (d/o/b 5/22/1963) with a diagnosis of severe mental retardation who resides at North Jersey Developmental Center in Totowa, NJ. Ralph brings this lawsuit by and through his mother and legal guardian, Else Verleur. He has resided at NJDC for approximately 24 years.
DEFENDANTS
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39. The Defendant, CHRISTOPHER CHRISTIE, is the Governor of the State of New Jersey. Governor Christie is sued in his official capacity only.
40. The Defendant, NEW JERSEY DEPARTMENT OF HUMAN SERVICES (“DHS”), is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1). It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794. DHS administers services for more than one million of New Jersey’s citizens, including individuals and families with low incomes; people with mental illnesses, developmental disabilities, or late-onset disabilities; people who are blind, visually impaired, deaf, hard of hearing, or deaf-blind; parents needing child care services, child support and healthcare for children; and families with catastrophic medical expenses for their children. DHS is the largest agency in New Jersey. DHS operates eight divisions including the Division of Developmental Disabilities.
41. The Defendant, JENNIFER VELEZ, is the Commissioner of the New Jersey Department of Human Services (“DHS”). Ms. Velez is sued in her official capacity. Defendant Velez is ultimately responsible for ensuring that New Jersey operates its delivery of services to individuals with disabilities in conformity with the United States Constitution, the ADA, the ADA implementing regulations, section 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794(a), and section 504’s implementing regulations.
42. The Defendant NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES (“DDD”), is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1). It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794. DDD funds services and supports for eligible New Jersey residents with developmental disabilities. The division was created in
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response to the need for better and more effective services for state residents with developmental disabilities.
43. The Defendant, DAWN APGAR, is Deputy Commissioner/Acting Assistant Commissioner of the New Jersey Department of Human Services Division of Developmental Disabilities. Ms. Apgar is sued in her official capacity. Defendant Apgar operates New Jersey’s system of services to individuals with developmental disabilities and is ultimately responsible for ensuring that eligible New Jersey residents with developmental disabilities receive services and supports effectively and in accordance with the United States Constitution, the ADA, the ADA implementing regulations, section 504 of the Rehabilitation Act of 1973 as amended, 29 U.S.C. § 794(a), and section 504’s implementing regulations.
44. The Defendant, NORTH JERSEY DEVELOPMENTAL CENTER (“North Jersey” or “NJDC”), is a residential facility that provides, among other things, habilitation, behavioral, and medical services and supports for individuals with developmental and intellectual disabilities. North Jersey opened in February 1928. With its campus-like setting, it includes approximately thirty-five (35) buildings, including living areas, sheltered workshops, vocational building, school building, chapel, healthcare center, auditorium, and recreational facilities. It is located in Totowa, Passaic County, New Jersey. It is the northern most residential developmental center in New Jersey. NJDC is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1). It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
45. The Defendant, WOODBRIDGE DEVELOPMENTAL CENTER (“Woodbridge” or “WDC”), is a residential facility that provides, among other things, habilitation, behavioral, and medical services and supports for individuals with developmental and intellectual
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disabilities. Woodbridge was established in 1965. With its campus-like setting, it includes approximately twenty-five (25) buildings, including residential cottages, therapy rooms, healthcare services center, multi-purpose rooms, and recreational and entertainment facilities. It is located in Woodbridge, Northern Middlesex County, New Jersey. WDC is a public entity covered by Title II of the Americans with Disabilities Act 42 U.S.C. § 12131(1). It receives federal funds under § 504 of the Rehabilitation Act, 29 U.S.C. § 794.
CLASS ACTION ALLEGATIONS 46. Pursuant to Fed. R. Civ. P. 23(a) and (b)(2), the named Plaintiffs bring this action on behalf of themselves and all other persons similarly situated. 47. The Plaintiffs bring this action pursuant to the Civil Rights Act, 42 U.S.C. § 1983; the Americans with Disabilities Act, 42 USC § 12132; § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”), and the waiver of state sovereign immunity enacted in 42 U.S.C. § 2000d7(a)( 1), various Medicaid federal statutes, and regulations incorporated into New Jersey law and the United States Constitution, on behalf of a Class consisting of themselves and all other persons who are residents of the North Jersey Developmental Center and Woodbridge Developmental Center, Passaic and Northern Middlesex counties, respectively, New Jersey, as of August 1, 2012. 48. The proposed class consists of: New Jersey residents who reside or resided at the North Jersey or Woodbridge Developmental Centers, at anytime since August 1, 2012, or at any time during this litigation.
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49. Joinder of the entire Class is impracticable because the Class Members are numerous, and are persons with severe or profound developmental disabilities. Virtually all Class Members are unable to give their consent except through guardians or family members.
50. The Plaintiffs’ claims are typical of the claims asserted on behalf of the Class. 51. The Plaintiffs do not have any interests that are adverse or antagonistic to any claims or potential claims of the Class. 52. The Plaintiffs will fairly and adequately protect the interests of the members of the Class. 53. The Plaintiffs are committed to the vigorous prosecution of this action and have retained counsel competent and experienced in this type of litigation. 54. The Plaintiffs do not seek monetary damages. Hence, the burden and expense of prosecuting this litigation makes it unlikely that members of the Class would or could prosecute individual actions. If individual actions were pursued by Class Members, prosecution of those individual claims would be impracticable and inefficient. 55. This Court is the most appropriate forum for adjudicating the claims at issue, which arise under federal law. 56. The Plaintiffs do not anticipate any difficulty in the management of this action as a class action. 57. There are many questions of law and fact common to the Class, which predominate over any questions which may affect individual members. The predominant common questions of law and fact include, among others:
(a) Whether Defendants are liable for violation of the Civil Rights Act, 42 U.S.C. § 1983;
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(b) Whether Defendants are liable for violation of the Americans with Disabilities Act, 42 U.S.C. § 12132; (c) Whether Defendants are liable for violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794 (“Section 504”); (d) Whether Defendants are liable for violation of various Medicaid federal statutes and regulations incorporated into New Jersey law; (e) Whether Defendants are liable for violations of the United States Constitution; and (f) Whether named Plaintiffs and Class Members are entitled to equitable and injunctive relief. 58. A class action is superior to all other available methods for the fair and efficient adjudication of this controversy. 59. Plaintiffs seek declaratory and injunctive relief, attorneys’ fees and expenses as permitted by law, on behalf of themselves and the Class.
COMMON FACTUAL ALLEGATIONS. 60. All of the Plaintiffs reside at the North Jersey or Woodbridge Developmental Centers or resided there as of August 1, 2012. 61. Almost all of the Plaintiffs have lived in their homes at NJDC and WDC for many years, with approximately 80 percent of those residents having lived there for more than 20 years. Many of these individuals have resided at the Developmental Centers for over 40 years.
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62. The North Jersey Developmental Center is an Intermediate Care Facility for Individuals with Intellectual Disabilities (“ICF/IDD”) that is operated by the State of New Jersey.
63. The Woodbridge Developmental Center is an Intermediate Care Facility for Individuals with Intellectual Disabilities (“ICF/IDD”) that is operated by the State of New Jersey.
64. An Intermediate Care Facility for Individuals with Intellectual Disabilities(“ICF/IID”) (formerly referred to as an Intermediate Care Facility for the Mentally Retarded or “ICF/MR”) is regulated by the Centers for Medicare and Medicaid Services (“CMS”) in conjunction with the State’s licensing agency. Part of that regulatory process includes routine surveys by CMS and the State’s licensing agency to ensure quality treatment and services are provided by ICF/IID-certified facilities, like North Jersey or Woodbridge Developmental Centers.
65. Eligibility for residence in a New Jersey developmental center is defined by Section 1.3 of Division Circular #3, N.J.A.C. 10:46-1.3, effective March 24, 2011. That regulation defines the developmental disability that must be present in order to receive services as a severe, chronic disability of an individual, which is attributable to a mental impairment, physical impairment, or combination of both; is manifested before age 22; is likely to continue indefinitely; results in a combination of functional limitations in major life activities; reflects the need for a combination of special interdisciplinary care or treatment of lifelong or extended duration; and includes, but is not limited to, developmental disabilities, autism, cerebral palsy, epilepsy, spina bifida, and other neurological impairments.
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66. All of the Plaintiffs are diagnosed as in need of state-run ICF/IID institutional care and have been appropriately designated as eligible for state-operated ICF/IID-level of care.
67. Many of the individuals residing at the North Jersey Developmental Center have been diagnosed with profound or severe intellectual disabilities. Almost all individuals residing at NJDC have been diagnosed with additional disabilities, including seizure disorders, autism, cerebral palsy, vision difficulties, and hearing impairments. For example:
(a) The Plaintiff, Jacqueline Friedman, is profoundly cognitively disabled. She is non-verbal and requires constant care.
(b) The Plaintiff, Paul Dittamo, cannot walk, is non-verbal and experiences daily seizures. His medical care requires constant communication between professionals.
(c) The Plaintiff, Stephen Dyer, is non-verbal and is diagnosed with microcephaly, spastic cerebral palsy, seizure disorder, bilateral contractures, bilateral chronic hip dislocation, delayed swallowing reflex, small hiatal hernia, osteoporosis, and esophogitis.
(d) The Plaintiff, Susan Griffin, is diagnosed with severe mental retardation, bipolar disorder, schizophrenia, and atrophy of the brain. She requires constant care and medical coordination between professionals.
(e) The Plaintiff, Eugene Kessler, is diagnosed with moderate retardation and pervasive developmental disabilities, he suffers from autism, bipolar disorder, and lacks judgment. He often becomes agitated and prone to harm himself, or others.
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(f) The Plaintiff, Philip Conkling, is autistic and suffers from cognitive disabilities. Philip thrives on structure and routine.
(g) The Plaintiff, Ralph Grzymkowski, is diagnosed with autism. He exhibits severe behaviors and is very combative. He requires constant supervision.
(h) The Plaintiff, Mary Ellen Scesa, is diagnosed with severe mental retardation and Dyke-Davidoff Syndrome, she is non-ambulatory and non-verbal. She suffers from seizures as well. She requires constant care.
(i) The Plaintiff, Alice Tucker, is diagnosed with seizure disorder, schizophrenia, cerebral palsy, depression, malignant breast cancer, high blood pressure, and gout. She is extremely combative and aggressive. She is bi-polar and experiences multiple personalities.
(j) The Plaintiff, Stephanie Roots, suffers from seizures. She had a tumor in her pelvis and now requires a leg brace to ambulate.
(k) The Plaintiff, Andrew Sekela, is prone to elopement when a situation arises that he perceives as unfair or when he becomes overwhelmed. He has multiple seizure disorder brought on by multiple brain scarring from meningitis suffered at age two. Andrew requires constant supervision.
(l) The Plaintiff, Kesha Smith, is epileptic and suffers from petit mal seizures. She has limited speech and is prone to wandering and aggressive behavior. She requires much supervision.
(m) The Plaintiff, Paul Vacca, has cerebral palsy, he is non-verbal and walks with a difficult gait. He experiences frequent falls and engages in self-injurious behavior, banging his head when frustrated.
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(n) The Plaintiff, Ralph Verleur, has cerebral palsy, is blind in one eye, is incontinent, and is not ambulatory. He relies on staff for total care including blowing his nose. He suffers from echolalia. He takes constipation and anticonvulsant medication.
68. Most (approximately 97%) of the individuals residing at the Woodbridge Developmental Center have been diagnosed with profound or severe intellectual disabilities. Almost all individuals residing at WDC have been diagnosed with additional disabilities, including seizure disorders, autism, cerebral palsy, vision difficulties, and hearing impairments. For example:
(a) The Plaintiff, Rosemary Sciarrillo, suffers from severe scoliosis, dysphagia, severe constipation, severe osteoporosis (with high fracture risk), and a seizure disorder. She is unable to communicate and needs to be re-positioned every couple hours. Rosemary is totally dependent upon staff to initiate and complete all activities of daily living.
(b) The Plaintiff, Joyce Banos, suffers from major depressive disorder, seizure disorder, cerebral palsy, moderate dyshagia, constipation, thoracolumbar kyphoscoliosis, myopic astigmatism, osteopenia, chronic esophagitis, and gastritis. Joyce is non-verbal. Her routine medications include Citrical, Vitamin D, Zantac, Lamictal, Colace, and Lexapro.
(c) The Plaintiff, Robert Barrett, is non-verbal. He is blind in one eye and has scoliosis. He requires 1:1 supervision to prevent self-injury and wears a helmet and face mask to protect himself from his own slaps and from falls.
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(d) The Plaintiff, Charles David Christensen, is diagnosed with epilepsy and autism. He requires constant care and 15 minute checks for safety and protection.
(e) The Plaintiff, Arleen Brause, suffers from severe emotional and behavioral problems. She has many fears and phobias and is easily agitated. She is diagnosed with cerebral palsy and autism.
(f) The Plaintiff, Kenneth Cooper, has cerebral palsy and is blind. (g) The Plaintiff, Vincent Galluccio, is non-verbal, suffers from a major motor
seizure disorder, and requires constant care. (h) The Plaintiff, Rodney Hammond, suffers from severe chronic cerebral palsy.
He is non-verbal and cannot walk. He requires constant care. (i) The Plaintiff, Sharon Knapp, has osteoporosis and is at risk of falls. She has a
1:1 aide. (j) The Plaintiff, Richard Sarao, has cerebral palsy and is prone to self-abusive
behavior. He requires constant care and supervision. (k) The Plaintiff, Cheryl Gordon, experiences severe behavioral issues. She
suffers from a brain injury acquired at birth. Cheryl requires constant supervision. (l) The Plaintiff, Peter Canale, is blind and deaf, and has intellectual disabilities. Weighing 60 pounds, he is very frail. He is on a feeding tube and recognizes people by smell and touch. He is diagnosed with hydrocephalus and spina bifida.
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(m) The Plaintiff, Linda Graves, experiences seizures. At times, she is seen by physicians on 15 minute interval checks.
(n) The Plaintiff, Dianne O’Brien, is diagnosed with profound retardation. She is non-ambulatory and non-verbal. She has osteoporosis and experiences seizures. She wears a nerve monitor around her vagal nerve.
(o) The Plaintiff, Thomas Marinello, requires constant care and close supervision. Thomas has a curvature of the spine and cannot sit up on his own or stand. He cannot talk and suffers from a palate defect.
(p) The Plaintiff, Maureen Doran, is prone to wander and exhibits violent behavior. She experiences extreme anxiety. She has pervasive developmental disability.
(q) The Plaintiff, Kerr Mitchell, is mentally and physically disabled. He suffers from seizures and brain injury. He has diagnoses of profound mental retardation, cerebral palsy, and moderate spastic quadriplegia.
(r) The Plaintiff, Eugene Carr, has a diagnosis of hydrocephalus. He exhibits aggressive behavior and requires constant care.
(s) The Plaintiff, Leah Wright, is dependent on a wheelchair and her range of motion is limited to sitting up and rolling back and forth. She often refuses to eat. She has a diagnosis of profound mental retardation.
(t) The Plaintiff, Catherine O’Brien, is non-verbal and non-ambulatory. She is diagnosed with microcephaly and profound mental retardation. She suffers from seizures, regurgitation, chronic constipation, chronic otis media, and osteoporosis. For safety, she requires 15 minute checks. She also relies on
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total care from staff (including being pushed in her wheelchair, hand over hand assistance for all activities, bathing, dressing, being hand fed, and repositioning.) Her medications include Lamictal, Keppra, Phenobarbitol, Colace, Milk of Magnesia, Senalcot, Fleet Enema, Ducolax, Reglan, Zantac, Actonel, Oscal D, Tylenol and Unicap. Catherine routinely sees an othalmologist, gynecologist, GI consultant, ENT audiologist, dentist, podiatrist, and neurologist. 69. The primary service needs of individuals at North Jersey or Woodbridge Developmental Centers require a variety of services and supports. Some broad areas of service are described below, along with the number of individuals for whom that service is their primary need: (a) Extensive Personal Care - This need refers to people who require total assistance and care provided by direct service staff who are specially trained on individualized programs developed by residents’ treating professionals, including physicians, nurses, physical therapists, occupational therapists, speech language pathologists, and many other licensed clinicians who treat residents at the Centers. (b) Significant Health Care Services - Treating professionals at NJDC and WDC have determined that significant nursing intervention and monitoring are required to effectively treat residents who have significant health care needs. This service includes the need for 24-hour monitoring and immediate availability of treating professionals for intermittent pressure breathing,
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inhalation assistive devices, tracheotomy care, or treatment for recurrent pneumonias or apnea. (c) Ambulation – Many residents at NJDC and WDC are non-ambulatory or require assistance with ambulation. (d) Significant Behavioral Support – Many residents at NJDC and WDC require significant behavioral support. This need addresses individuals who have behaviors that require intervention for the safety of themselves or others, as developed by psychologists and medical personnel and implemented in conjunction with direct service staff. 70. Prior to 2012, all NJDC and WDC residents were consistently evaluated by their treating professionals and determined to be in need of ICF/IID services, and the best setting for Plaintiffs to receive those services was at NJDC or WDC as determined by the professional judgment of these professionals. Subsequent to Defendants’ announcement of its intent to close the NJDC and WDC, treating professionals often have routinely and inappropriately stated that Plaintiffs would best be served in alternative settings, including settings that do not provide ICF/IID-level of care. Most of these statements supporting placement in the “community” were not based upon sound and unbiased professional judgments consistent with accepted professional standards. 71. While many residents’ IHP teams have agreed that the residents’ needs were better served at their current ICF/IID, social workers have more recently been sending letters, scheduling IHP meetings promoting community placements. Such letters are DDD-generated, bureaucratic, form letters. For example, the 1/14/13 letter to Eleanor Gordon, scheduling her daughter’s, Cheryl’s, IHP meeting uses the name “Dawn” instead of Cheryl, throughout. While
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Daniel Christensen’s 2/13/13 letter used the correct residents’ name, David, it stated the same exact non-subtle push for community placements.
72. Community placements are being sought for residents regardless of their needs. For example, a State caseworker considered community placement to be inappropriate for Eugene Kessler, yet, nonetheless is pursuing an alternative community placement, an apartment, for him.
73. Plaintiffs have the right to receive ICF/IID-level of services from the State of New Jersey.
74. All Plaintiffs have had or imminently will have their rights to receive ICF/IIDlevel services at the North Jersey or Woodbridge Developmental Centers denied. The policies and practices of the State will deceive, frighten, and coerce residents of NJDC and WDC into inappropriately surrendering their rights to receive this superior level of care.
(a) The Plaintiff, Diane O’Brien, has not had an appropriate assessment by her interdisciplinary team for a lesser restrictive residential environment, yet, her plan describes her as being appropriate for community placement. Her father and legal guardian opposes a community placement for Diane at this time due to her health issues. She experiences seizures; wears a heart monitor and applies a magnet; and wears a nerve monitor.
(b) The Plaintiff, Thomas Marinello, has resided at WDC since childhood and is happy and thriving. His mother and sister, his legal guardians, feel pressured and manipulated by the State to move Thomas into a community setting, being told that if they did not move him the State would be forced to place
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him in a location further away. Incomplete information has been provided to them regarding any possible discharge. (c) The sisters and legal guardians of Plaintiff, Maureen Doran, were advised by the State that if they did not make an immediate decision regarding alternative community placement for Maureen, the State would make the decision for them. Maureen was not offered an alternative developmental center. (d) The brother and guardian of the Plaintiff, Joyce Banos, was lectured at every IHP meeting about considering community placement. Mr. Banos’ wishes that his sister remain in ICF/IID care were not respected until he wrote a letter expressing his opposition to community placement for Joyce and explaining her need to stay at WDC. Mr. Banos sits with a team of 15 professionals at Joyce’s yearly IHP meeting; these specific skilled professionals are required to keep Joyce alive and healthy. (e) A guardian and mother, Dana Grzymkowski, receives frequent telephone calls from state employees pressuring her and her husband to choose a community placement for her son, Ralph. (f) Although Plaintiff, Vincent Galluccio, is non-verbal, his plan indicates that he would like to move to a community placement, despite his guardian’s wishes. Staff have been non-specific about the availability of required supports for Vincent in the community. 75. Many NJDC and WDC residents have lived in the community at some time. Such placements have proven to be unsuccessful.
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(a) The Plaintiff, Arleen Brause, spent several months in a group home. She was lonely, insecure, and constantly upset. No activities or on-site medical care were available to her.
(b) The Plaintiff, Cheryl Gordon, tried placements at various group homes. She was asked to leave the homes due to her behavioral issues, which the homes were not equipped to manage.
(c) The Plaintiff, Philip Conkling, experienced a group home, but the lack of supervision for his wandering necessitated return to a facility which could better serve his health and welfare.
(d) The Plaintiff, Clayton Davis, tried an alternative community placement three years ago. The placement could not adequately address his emotional and psychological needs. He was needlessly medicated at the home in their effort to care for him.
(e) The Plaintiff, Susan Griffin, experienced a group home which her guardian described as “total chaos.” Susan was released to a psychiatric hospital and, once stabilized, moved to NJDC where she has been thriving.
(f) The Plaintiff, Kesha Smith, tried a group home but was asked to leave the home due to her aggression. While she was at the home she would get on the bus and ride around the city for as long as the drivers would allow.
(g) The Plaintiff, Alice Tucker, has experienced group homes where she was physically abused and underfed. In group home proposals, it has been suggested that staff call 911 to manage Alice’s aggressive episodes.
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76. There has been, and there is a continuing further risk of, a loss of professionals and other staff at North Jersey and Woodbridge Developmental Centers due to a perceived lack of job security. Such losses have and will result in larger caseloads for existing staff, and thus less time and care for each resident. For example at WDC, Cottage 1 Social Worker, (Doris Dodkowitz), retired and was replaced by a Social Worker, (Norma Bonilla), who is now responsible for 3 cottages instead of two. Also, the Habilitation Coordinator, Kim Shackleton transferred from WDC in April 2013, and her vacant position has not yet been filled.
77. There has been, and there continues to be a further risk of, a loss of some services at North Jersey or Woodbridge Developmental Centers due to downsizing and eventual closure. This has and will result in inferior care in violation of Plaintiffs’ rights and will ultimately inappropriately force residents to leave North Jersey or Woodbridge Developmental Centers. For example, there has already been a decrease in the availability of certain medications, supplies, and skin care products.
78. As NJDC cottages close, in some building units, such as at resident Andrew Sekela’s unit, inexperienced and over-worked staff have replaced experienced staff, resulting in confusion with respect to resident care.
79. As NJDC cottages close, resident housing is being merged, creating a dangerous and chaotic environment. Andrew Sekela’s mother has been physically harmed by another resident when visiting Andrew and is aware of various resident-to-resident and resident-to-staff assaults due to the revised living arrangements.
80. The Defendants have acted, or failed to properly act, under the color of state law, pursuant to the protections of the Fourteenth Amendment to the Constitution of the United States.
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81. The Defendants have determined that the residents of WDC and NJDC have developmental disabilities and require treatment, services, supports, and care.
82. The Defendants have, since the decision to close the developmental centers, increasingly failed to provide the WDC and NJDC residents with reasonably safe conditions in their delivery of treatment, service, supports, and care.
83. One example of recent inadequate staffing and lack of protection from harm occurred to Maureen Doran. Maureen was sleeping when a resident came upon her and started beating her with a metal chair. The supervisor was at the other end of the cottage. The beating went on for some significant time because they were unattended. There was inadequate direct care staff. The next morning, her guardian was notified that Maureen was taken to the hospital as a precautionary measure due to a nosebleed. The guardian did not find out that there was an attack until much later. Previous to this attack, there were two separate incidents where Maureen suffered a fractured foot and a head injury with a bleed due to poor staffing. However, Maureen remained inadequately supervised at the time of the attack.
84. The Defendants’ treatment, services, supports, and care, since the decision to close the developmental centers, have in some instances substantially departed from generally accepted professional standards of care.
85. The Defendants’ provision of psychological and behavioral services, since the decision to close the developmental centers, have in some instances substantially departed from generally accepted professional standards.
86. The Defendants’ provision of medical, neurological, and nursing services, since the decision to close the developmental centers, have in some instances substantially departed from generally accepted professional standards.
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87. The Defendants’ provision of psychiatric services, since the decision to close the developmental centers, have in some instances substantially departed from generally accepted professional standards.
88. The Defendants’ provision of habilitation and therapy services, including physical and nutritional management, since the decision to close the developmental centers, has in some instances substantially departed from generally accepted professional standards.
89. The Defendants’ provision of protection from harm mechanisms, since the decision to close the developmental centers, has in soome instances substantially departed from generally accepted professional standards.
90. Due to some instances of lack of appropriate treatment, services, supports, and care, since the decision to close the developmental centers, the residents are at significant risk of harm, or have suffered actual harm.
91. The Defendants have failed in some instances to provide the WDC and NJDC residents, since the decision to close the developmental centers, with the appropriate level of habilitation training and behavioral training required to protect the residents’ liberty interests to protect them from harm and the freedom of undue restraints.
92. The Defendants seek to compel Plaintiffs’ discharge from North Jersey or Woodbridge Developmental Centers to other settings, including predominately non-ICF/IIDcertified settings.
93. The Defendants’ policies and procedures have interfered with or usurped the ability of Plaintiffs’ treating professionals to make independent and sound professional judgments. The treating professionals are now often following a political or administrative agenda rather than accepted professional standards.
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94. The Defendants’ policies and procedures have unduly influenced or compelled Plaintiffs’ treating professionals to recommend transfer or discharge of Plaintiffs to settings that are not the most appropriate for Plaintiffs’ needs, solely for the purpose of conforming to Defendants’ political policy decisions.
95. In some cases, staff exaggerates the residents’ personal care abilities in order to document the appropriateness of a community placement. For example:
(a) Staff report that resident Paul Dittamo is able to feed himself. However, staff must place food on a spoon for Paul and assist him in bringing it to his mouth; and only a portion of the food makes it into his mouth. If Paul were left to feed himself, he would be underfed.
(b) Staff report that resident Peter Canale is able to brush his teeth. However, staff put the toothbrush in his hand and assist him in performing this function. He is unable to brush his teeth on his own.
(c) Staff uses language in the first person in residents’ IHPs, creating a false perception of resident choice and a false impression that residents are less intellectually disabled.
96. All Plaintiffs are medically and developmentally most appropriately served at the North Jersey or Woodbridge Developmental Centers instead of any alternative setting.
97. All Plaintiffs are physically, mentally, and emotionally fragile and are most appropriately served at the North Jersey or Woodbridge Developmental Centers instead of any alternative setting.
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98. All Plaintiffs are in need of continuous care by multidisciplinary teams of professionals as are currently serving them at the North Jersey or Woodbridge Developmental Centers.
99. The services provided to Plaintiffs cannot be reasonably replicated in alternative residential settings.
100. Non-ICF/IID-certified settings are not able to reasonably provide the same level of care as an ICF/IID-certified facility.
101. Services provided to residents at the North Jersey or Woodbridge Developmental Centers are uniquely tailored to the needs of the residents of those Centers.
102. None of the Plaintiffs have given informed consent for their discharge from North Jersey or Woodbridge Developmental Centers because, among other things, Defendants have precluded treating professionals at the North Jersey or Woodbridge Developmental Centers from fully and fairly considering whether North Jersey or Woodbridge Developmental Centers best meet the needs of the Plaintiffs, and have prevented those treating professionals from acknowledging the rights of Plaintiffs to receive treatment and services at North Jersey or Woodbridge Developmental Centers, or in another ICF/IID.
103. Alternative ICFs/IID, if available, are many miles away, and deny guardians, parents, and family members the opportunity to visit on a regular basis. Many guardians, parents, and family members are elderly and cannot make a long distance trip to visit a distant ICF/IID. Such lack of family bonding may cause further harm to the well-being of those being moved and disrupts the family ties. Family members and guardians contribute positively to the care, treatment, habilitation, and psychological well-being of residents, and residents will suffer great harm if their loved ones cannot participate.
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104. Plaintiffs have not had the benefit of their respective treating professionals’ independent judgments about whether they should continue to reside at North Jersey or Woodbridge Developmental Centers or at another state-operated ICF/IID.
105. Defendants have or will unduly influence or compel Plaintiffs to receive services in non-ICF/IID facilities. Those services are inferior to the services provided at North Jersey or Woodbridge Developmental Centers because, among other reasons, they will not be provided by an individualized, multidisciplinary team of professionals.
106. Some Plaintiffs will be unable to even receive services in the community. For example, Ralph Verleur has been rejected for admissions to three group homes. One home would not take him because it was too small for him to maneuver his wheelchair. Another group home declared him an inappropriate candidate due to his echolalia.
107. Persons residing in the type of settings to which Defendants intend to discharge Plaintiffs, are at approximately seventy-five (75) percent greater risk of death, abuse, and neglect as compared to similar persons receiving services at a facility like North Jersey or Woodbridge Developmental Centers.
108. Defendants know or should know of the increased danger of death, abuse, and neglect to which Plaintiffs will be subjected if they are discharged from the North Jersey or Woodbridge Developmental Centers, as sought by Defendants’ political plan to downsize or close all the Developmental Centers.
109. Persons residing in the type of “community” settings to which Defendants intend to discharge Plaintiffs are likely to be more secluded from the community immediately surrounding them and be more restricted in their interactions with non-disabled peers as
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compared to similar persons receiving services at a facility like North Jersey or Woodbridge Developmental Centers.
110. Defendants have announced their plan to “depopulate” and close NJDC and WDC and discharge residents to non-ICF-IID-certified alternative settings. The plan is to move the residents to “community” settings such as small group homes, nursing homes, and other settings with smaller populations where they would allegedly have more interactions with the nondisabled population. In reality, these residents may actually be more isolated in a small home or apartment than they were at NJDC and WDC, as both centers are open to community events and have opportunities for community involvement.
111. Among the reasons identified by Defendants for their “depopulation” plan was the ostensibly high cost of providing the necessary services for the disabled residents of the State’s developmental centers. In reality, the costs for caring for these residents in community settings would be equal to or higher than care in the developmental centers.
112. Contrary to Defendants’ public statements about the alleged general desire for “community” placements, Plaintiffs have not requested discharge or transition from North Jersey or Woodbridge Developmental Centers.
113. Defendants have instructed or inappropriately encouraged Plaintiffs’ treating professionals to include language in Plaintiffs’ individual habilitation plans indicating that Plaintiffs are capable of being served in settings other than North Jersey or Woodbridge Developmental Centers regardless of whether Plaintiffs are actually capable of being served in alternative settings.
114. Defendants have instructed or inappropriately encouraged Plaintiffs’ treating professionals to include language in Plaintiffs’ individual habilitation plans indicating that
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Plaintiffs have requested discharge to settings other than North Jersey or Woodbridge Developmental Centers regardless of whether Plaintiffs actually communicated such a request.
115. These treating professionals are likely intimidated and fearful of retaliation, including the possible loss of their jobs, and likely will only be forthcoming with information to support the position of Plaintiffs if protected by or compelled by appropriate discovery in this case.
116. Because Plaintiffs’ treating professionals have not been able to provide independent judgments about the Plaintiffs’ ability to be comparatively served in alternative settings, the judgments they have made in that regard are largely unreliable and inaccurate.
117. Many of the Plaintiffs have not been provided sufficient information to allow them to provide informed consent to discharge.
118. Plaintiffs’ guardians and family members have been given unclear and conflicting information as to the availability of specific alternative placements. In some cases, since information has not been forthcoming by the State, parents are left to believe speculation of options from other parents.
(a) The guardians/family members of Maureen Doran and Eugene Carr, for example, felt pressured as they were told by their caseworkers that the longer they wait to choose a placement, the less choice they will have and that if they did not make a choice, the state would make it for them.. No specific alternative placements to “choose” from were offered.
(b) Some residents’ family members, such as Kerr Mitchell’s mother, were falsely told that if a parent refuses a staff’s choice of placement or declined placement, their loved one would be sent home.
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(c) The guardians of Ralph Grzymkowski continuously receive unwelcome correspondence from different agencies, the purpose of which is to move Ralph to a community setting. The guardians believe that the NJDC placement is a much better fit for their son.
(d) Residents have only been given two insufficient choices: a non-specific community placement or an alternative developmental center over one hundred miles away.
(e) Information provided to guardians and family members by the State has been one-sided, promoting the only the alleged benefits of community placement. The State has not made sufficient effort to address the potential risks of community placement and has not sufficiently attempted to lessen guardians’/family members’ fears and concerns.
(f) In some cases, such as that of Plaintiff Andrew Sekela, NJDC personnel discussed his transfer to a group home with Andrew without the consent or participation of his guardian. NJDC allowed group home providers to interview Andrew without the notification, participation or consent of Andrew’s guardian or members of his NJDC staff. Talk of the move upset him. He understood the move as imminent release and has acted out by eloping.
(g) The Plaintiff, Stephen Dyer, requires extensive medical and therapeutic care to prevent further regression. He requires round-the-clock nursing care for his medical needs. Yet, the State inappropriately considers him an “adequate candidate” for a, non-specific, community placement. His guardians and
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parents feel pressured by the State to consider community placement and they are often solicited from various inadequate group homes. 119. Defendants made the decision to downsize or depopulate the North Jersey or Woodbridge Developmental Centers without regard to the needs of the individual Plaintiffs, their individual support plans (which are developed in conjunction with their treating professionals), or their rights to receive services in the least restrictive setting appropriate to their needs. 120. On December 14, 2011, the New Jersey Legislature enacted a statute which included the creation of a task force to evaluate the state’s seven developmental centers and to issue binding and non-binding recommendations to the Department of Human Services (“DHS”) with respect to closure of one or more of the centers. Senate No. 2928, Chapter 143 P.L. 2011. 121. On August 1, 2012, the “Task Force on the Closure of State Developmental Centers” (“task force”) issued a “Final Report As Submitted to Governor Chris Christie and the New Jersey Legislature” (“Final Report). 122. The Task Force’s allegedly binding recommendation as contained in the Final Report instructed DHS “to develop and implement a plan to close North Jersey Developmental Center followed by Woodbridge Developmental Center within the next five years ….” Id. at 8. 123. While the Final Report contains language allegedly regarding the needs of the residents, such language is largely rendered meaningless by the Task Force’s presumption that the two facilities must be closed, and that residents must be discharged to achieve its binding recommendation and to achieve the political agenda of the State. 124. The Task Force’s recommendations and the State’s actions to discharge residents to comply with the recommendations of closure prevent meaningful evaluation and consideration
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of treatment team professionals regarding most integrated residential settings and alternative settings which can serve the needs of such residents.
125. The Task Force’s decision to close NJDC and WDC was largely predetermined before conducting any investigations or making any findings.
126. In rendering it’s opinions and recommendations, the Task Force ignored testimony and information regarding the large percentages of those at NJDC and WDC who are opposed to community placement; the level of impairment of the NJDC and WDC residents (compared to those in other developmental centers); and the availability of appropriate and adequate alternative placements to match the current level of services provided to NJDC and WDC residents.
127. The Task Force rendered opinions and recommendations based on faulty data, including inaccurate unemployment data in the various New Jersey regions; inaccurate projected repair and maintenance costs of NJDC and WDC; and the lack of feasibility of a workable plan to meet the needs of all affected individuals within a five year timeframe.
128. Residents of the State’s developmental centers, those recommended for closure and those not recommended for closure, have the right to receive recommendations from their respective treating professionals regarding the most appropriate setting to meet the needs of such residents.
129. The Task Force’s mandate to close two developmental centers without meaningful evaluation of the residents’ needs further evidences that the residents of the developmental centers have not received treating professionals’ recommendations without unreasonable interference or influence from the State’s policies, procedures and agendas.
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130. Plaintiffs currently residing at North Jersey and Woodbridge Developmental Centers have been and will be denied access to their current high level of treatment and services if the Defendants continue with their current plan to discharge residents.
COMMON ALLEGATIONS OF RIGHTS AND DUTIES 131. As described more fully herein, each Plaintiff has a constitutional right, a life and liberty interest in, and a statutory entitlement to receive treatment and services from the State of New Jersey in the most appropriate setting for his or her needs. 132. Interpreting the ADA and the Department of Justice’s regulations issued under it, the Supreme Court decision in Olmstead emphasized that there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” Olmstead v. Zimring, et al., 527 U.S. 581, 602 (1999). The Olmstead Court further stressed that “nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community settings.” Id. at 601-02. “[T]he ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk.” Id. at 605. 133. In fact, the Olmstead decision recognized that “for [some] individuals, no placement outside the institution may ever be appropriate.” Id. (citing and quoting Brief for American Psychiatric Association et al. as Amici Curiae at 22-23 (“Some individuals, whether mentally retarded or mentally ill, are not prepared at particular times—perhaps in the short run, perhaps in the long run—for the risks and exposure of the less protective environment of community settings”); Brief for Voice of the Retarded et al. as Amici Curiae at 11 (“Each disabled person is entitled to treatment in the most integrated setting possible for that person— recognizing that, on a case-by-case basis, that setting may be in an institution”); Youngberg v.
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Romeo, 457 U.S. 307, 327 (1982) (Blackmun, J., concurring) (“For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they ever will know”).)
134. By virtue of the ADA and the Olmstead decision, Plaintiffs have a federallyprotected right to receive recommendations from treating professionals as to whether community placement is the most appropriate to meet their needs and to fair consideration of their opposition to that transfer, even if the proposed transfer is from institutional care to an allegedly less restrictive setting. The only proper mechanism for second-guessing an individual or guardian’s decision to oppose a treating professional’s recommended transfer to a less restrictive setting is through State law and State Court Rules. See N.J. Stat. Ann. §§ 3B:12-1 et seq.; N.J. Court Rule 4:86.
135. The paradigm created by the Olmstead decision dictates that residents of the North Jersey and Woodbridge Developmental Centers and their guardians have the benefit of treating professionals’ judgments regarding the most appropriate place to receive services. Only after they have the benefit of that information are residents and guardians required to oppose or consent to continued residence at the facility or discharge to an alternative setting.
136. The Defendants have ignored and will continue to ignore Plaintiffs’ right to have treating professionals render full and fair judgments as to where Plaintiffs’ should receive services most appropriate to their needs.
137. Likewise, Defendants have ignored and will continue to ignore Plaintiffs’ rights, as recognized by Olmstead, to oppose discharge from NJDC and WDC.
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138. Pursuant to 42 U.S.C. § 12134, Defendants are under a constitutional and statutory duty to:
(a) effectuate the placement of Plaintiffs in the “most integrated setting appropriate to the needs of qualified individuals with disabilities,” a setting that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible” (28 C.F.R. pt. 35 app. A.);
(b) not place Plaintiffs in more restrictive or dangerous placements than they currently enjoy;
(c) effectuate appropriate institutional placement for each Plaintiff; (d) propose an ICF/IID-certified institutional discharge appropriate for the
Plaintiffs only where medically and therapeutically appropriate upon an impartial multidisciplinary evaluation; (e) ensure that Plaintiffs, Plaintiffs’ guardians and/or Plaintiffs’ families understand their right to receive treatment and care at an ICF/IID-certified facility prior to seeking consent to discharge a Plaintiff from the Center; (f) obtain the input and informed consent of Plaintiffs, Plaintiffs’ guardians and/or Plaintiffs’ families for such transfers.
FIRST CAUSE OF ACTION AMERICANS WITH DISABILITIES ACT VIOLATIONS 139. Plaintiffs’ incorporate paragraphs one (1) through one hundred thirty-eight (138) herein by reference as though fully set forth.
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140. Because discharges or transfers are being forced on Plaintiffs without their consent, or the consent of their guardians or families, and without appropriate recommendations from treating professionals, such discharges or transfers violate the Americans with Disabilities Act, 42 U.S.C. §§ 12131 – 12134.
141. The Plaintiffs are entitled to injunctive and declaratory relief that the Defendants shall not discharge or transfer them from their current residences without meeting the requirements that:
(a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current residence;
(b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals independently conclude that such a placement is in the best interests of each Plaintiff and is the most appropriate setting to meet their needs; and
(c) the Plaintiffs by their guardians or families wish to consent to such discharge or transfer.
142. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs’ respective treating professionals, without regard for the Defendants’ political plan to downsize or close any developmental centers, and documented in their respective multidisciplinary evaluations (known as Individual Habilitation Plans, IHPs, at NJDC and WDC). (b) Permitting each Plaintiff to choose:
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(i) to accept or reject the recommendation of the multidisciplinary evaluation; and
(ii) to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at his/her current residence, another state operated ICF/IID facility, or non-ICF/IID certified setting, as the Plaintiff deems appropriate. SECOND CAUSE OF ACTION REHABILITATION ACT VIOLATIONS
143. Plaintiffs’ incorporate paragraphs one (1) through one hundred fourty-two (142) herein by reference as though fully set forth.
144. Section 504 of the Rehabilitation Act states that “[n]o otherwise qualified person with disabilities shall, solely by reason of his or her disability, be excluded from participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.” 29 U.S.C. § 794(a).
145. Each named Plaintiff and class member is a “qualified person with disabilities” within the meaning of Section 504, because they (1) have physical and/or mental impairments that substantially limit one or more major life activities; and (2) meet the essential eligibility requirements for long term care under New Jersey’s Medicaid program and are thus “qualified.”
146. Regulations implementing Section 504 require that a public entity administer its services, programs and activities in “the most integrated setting appropriate” to the needs of qualified individuals with disabilities. 28 CFR § 41.51(d).
147. Section 504’s regulations prohibit recipients of federal financial assistance from utilizing criteria or methods of administration:
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(a) that have the effect of subjecting qualified handicapped persons to discrimination on the basis of handicap [or]
(b) that have the purpose or effect of defeating or substantially impairing accomplishment of the objectives of the recipient’s program with respect to handicapped persons.
148. Defendants have required that Plaintiffs be discharged or transferred from North Jersey or Woodbridge Developmental Centers to other settings in violation of Section 504's integration mandate.
149. Further, Defendants have utilized criteria and methods of administration that subject Plaintiffs and class members to discrimination on the basis of disability, by (1) failing to assess properly the services and supports that would enable Plaintiffs to receive services and treatment in the most appropriate settings for their needs, (2) failing to develop proper individualized transition plans, (3) failing to allow guardians to be a meaningful part of the planning process, (4) failing to inform Plaintiffs of all of their options for receiving services, and (5) allocating resources for non-ICF/IID care contrary to the desires and needs of people with disabilities.
150. The Plaintiffs are entitled to injunctive and declaratory relief that the Defendants shall not discharge or transfer them from their current residences without meeting the requirements that:
(a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current placement;
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(b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals conclude that such a placement is in the best interests of the individual Plaintiffs and is most appropriate to meet their needs; and
(c) the Plaintiffs by their guardians or families wish to consent to such discharge or transfer.
151. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs’ respective treating professionals, without regard for the Defendants’ political plan to downsize or close any Developmental Centers, and documented in their respective multidisciplinary evaluations (known as IHPs at NJDC and WDC). (b) permitting each Plaintiff to choose: (i) to accept or reject the recommendation of the multidisciplinary evaluation; and (ii) to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at his/her current residence, another state-operated ICF/IID facility, or non-ICF/IID certified setting, as the Plaintiff deems appropriate.
THIRD CAUSE OF ACTION MEDICAID ACT AND REGULATORY VIOLATIONS
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152. Plaintiffs’ incorporate paragraphs one (1) through one hundred fifty-one (151) herein by reference as though fully set forth.
153. The State of New Jersey has voluntarily assumed certain obligations under federal law in return for federal funding under the Medical Assistance Program authorized by 42 U.S.C. § 1396, et seq.
154. Those obligations include: (a) choice of an ICF/IID institutional placement, subject to a hearing, under 42 U.S.C. § 1396n and 42 CFR § 441.302(d); (b) provision of ICF/IID services under 42 U.S.C. §§ 1396a(a)(10) and 1396d(a)(l5); (c) competent evaluation for placement in an institutional ICF/IID facility under 42 CFR § 483.440(b)(3); (d) a continuous active treatment program as defined in 42 CFR § 483.440(a)(1).
155. All Plaintiffs receive assistance under the Medical Assistance Program and are owed the duties stated in the preceding paragraph.
156. Defendants have an obligation to ensure that Plaintiffs’ needs and preferences are being met in their multidisciplinary plan.
157. Defendants have failed to ensure that Plaintiffs’ needs and preferences are being met in their multidisciplinary plan.
158. Defendants are violating their duties to Plaintiffs under the Medical Assistance Program by their acts and omissions alleged above.
159. Plaintiffs are entitled to declaratory and injunctive relief as to the following:
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(a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current placement;
(b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals conclude that such a placement is in the best interests of the individual Plaintiffs and most appropriate to meet their needs;
(c) the Plaintiffs by their guardians or families wish to effect such discharge or transfer; and
(d) the State must comply at the developmental centers with all the regulatory standards contained in Title 42 of the Code of Federal Regulations.
(e) the services and care provided by the State at the developmental centers must meet or exceed accepted professional standards, and must be maintained at a level at least equal to the care and services that preceded the decision to close the developmental centers; and
(f) the State must maintain staffing levels for direct care staff and treating professionals at a level that meets or exceeds accepted professional standards, and at a level at least equal to the staffing that preceded the decision to close the developmental centers;
(g) the State cannot move residents to other ICF’s/IID where their needs cannot be adequately met, including, but not limited to, the State cannot move residents to an ICF/IID that is so significantly distant from their families and guardians that any individual resident will be harmed in his care, treatment, habilitation, or psychological well-being.
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(h) the services and care provided by the State at the developmental centers must meet or exceed accepted professional standards, and must be maintained at a level at least equal to the care and services that preceded the decision to close the developmental centers; and
(i) the State must maintain staffing levels for direct care staff and treating professionals at a level that meets or exceeds accepted professional standards, and at a level at least equal to the staffing that preceded the decision to close the developmental centers;
(j) the State cannot move residents to other ICF’s/IID where their needs cannot be adequately met, including, but not limited to, the State cannot move residents to an ICF/IID that is so significantly distant from their families and guardians that any individual resident will be harmed in his care, treatment, habilitation, or psychological well-being.
160. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs’ respective treating professionals, without regard for the Defendants’ mandate to downsize or close any developmental centers, and documented in their respective multidisciplinary evaluations (known as IHPs at the NJDC and WDC). (b) permitting each Plaintiff to choose: (i) to accept or reject the recommendation of the multidisciplinary evaluation; and
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(ii) to receive treatment in accordance with the independent recommendations of the multidisciplinary evaluation, either at his/her current residence, another state operated ICF/IID, or non-ICF/IID certified setting, as the Plaintiff deems appropriate.
FOURTH CAUSE OF ACTION CONSTITUTIONAL DUE PROCESS VIOLATIONS
161. Plaintiffs’ incorporate paragraphs one (1) through one hundred sixty (160) herein by reference as though fully set forth.
162. At all relevant times, Defendants were “persons” under 42 U.S.C. § 1983. 163. At all relevant times, Defendants were acting “under color of state law” under 42 U.S.C. § 1983. 164. At all relevant times, a “special relationship” existed between each of the Plaintiffs and the State and state actors that were responsible for their safety. 165. The Defendants have demonstrated a pattern or practice of egregious and flagrant acts or omissions which violate federal rights of the WDC and NJDC residents, rights which are protected by the Fourteenth Amendment to the Constitution of the United States. 166. The Plaintiff residents will suffer irreparable harm if they are deprived the rights, privileges and immunities provided by the Fourteenth Amendment and federal law. 167. Defendants, while acting under color of state law, unlawfully, intentionally, unreasonably, maliciously and with deliberate and/or reckless indifference to the Plaintiffs’ substantive due process rights secured to Plaintiffs under the Fourth and/or Fourteenth Amendments to the United States Constitution, in violation of 42 U.S.C. § 1983 et. seq. and
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similar provisions of federal, state and/or local law, violated Plaintiffs’ rights as alleged above and as follows.
168. The Plaintiffs have significant mental, intellectual, physical and behavioral health issues. They are unable to verbally articulate their medical and personal needs. Most of them have very limited mobility, and some have none. They are unable to care for themselves in even the most basic ways. They are at the mercy of the persons who provide them with care. Without the regulatory guarantees provided by an ICF/IID facility, they are defenseless against many forms of abuse and neglect which can lead to their injury or death.
169. Before becoming residents at NJDC or WDC, some Plaintiffs were abused and neglected in the same types of “community” settings Defendants intend to force Plaintiffs into now.
170. Defendants know or should know that placing the Plaintiffs in other settings, including non-ICF/IID settings will substantially increase their likelihood of injury and death from abuse, neglect, error, lack of appropriate services, and other causes.
171. Defendants’ failure to provide adequate safeguards to prevent such harm is a violation of Plaintiffs’ constitutional right not to be deprived of life or liberty without due process of law.
172. Defendants’ discharge process and procedure, instituted in the efforts to close NJDC and WDC, has resulted in harm to the residents. Loss of services, loss of staff, and reconfiguration of living units has resulted in harm to the residents. Defendants have failed to protect residents from harm.
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173. The actions of the Defendants herein have significantly contributed to and increased the vulnerability of the Plaintiffs and created risks that would not have otherwise existed if Defendants complied with their legal duties.
174. Defendants’ actions and inactions constitute a violation of Plaintiffs’ federal rights, as protected by the Fourteenth Amendment to the Constitution of the United States and other federal laws. Unless restrained by this Court, Defendants will continue to engage in their misbehavior, which deprives the Plaintiffs of rights, privileges and immunities secured by the Constitution of the United States and federal law, and will cause irreparable harm to these residents.
175. The harm ultimately caused or to be caused to the Plaintiffs was and is foreseeable and sufficiently direct.
176. Plaintiffs are entitled to declaratory and injunctive relief directing that: (a) such discharge or transfer will not result in Plaintiffs receiving treatment and services in a setting more restrictive of their rights than their current placement; (b) such discharge or transfer will not be recommended by treating professionals unless the treating professionals conclude that such a placement is in the best interests of the individual Plaintiffs; (c) such discharge or transfer will not occur unless the Plaintiffs, by their guardians or families, wish to effect such discharge or transfer; (d) the services and care provided by the State at the developmental centers must meet or exceed accepted professional standards, and must be maintained at a
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level at least equal to the care and services that preceded the decision to close the developmental centers; and (e) the State must maintain staffing levels for direct care staff and treating professionals at a level that meets or exceeds accepted professional standards, and at a level at least equal to the staffing that preceded the decision to close the developmental centers; (f) the State cannot move residents to other ICF’s/IID where their needs cannot be adequately met, including, but not limited to, the State cannot move residents to an ICF/IID that is so significantly distant from their families and guardians that any individual resident will be harmed in his care, treatment, habilitation, or psychological well-being. 177. Plaintiffs are entitled to the following additional declaratory and injunctive relief: (a) directing Defendants to abide by treatment plans independently prepared by Plaintiffs’ respective treating professionals, without regard for the Defendants’ political plan to downsize or close any developmental centers, and documented in their respective multidisciplinary evaluations (known as IHPs at NJDC and WDC). (b) permitting each Plaintiff to choose: (i) to accept or reject the recommendation of the multidisciplinary evaluation;
and (ii) to receive treatment in accordance with the independent recommendations
of the multidisciplinary evaluation, either at his/her current residence,
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another state operated ICF/IID facility, or non-ICF/IID certified setting, as the Plaintiff deems appropriate.

CONCLUSION WHEREFORE Plaintiffs seek:
(a) Declaratory and injunctive relief as set forth herein. (b) An award to Plaintiffs’ of reasonable attorneys’ fees, litigation expenses,
.and costs; and (c) Any other relief this Court deems just and proper.

JURY DEMAND Plaintiffs demand a trial by jury.

(717) Fax:
THE
/s/
PA
Harrisburg, (717) Fax:

Respectfully submitted,
/s/ Thomas A. Archer Thomas A. Archer NJ Attorney I.D. 054321994 3401 North Front Street Harrisburg, PA 17110-0950
232-5000 (717) 236-1816 taarcher@mette.com
YORK LEGAL GROUP, LLC
Thomas B. York Thomas B. York
Attorney I.D. No. 32522 3511 North Front Street
PA 17110 236-9675 (717) 236-6919
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Case 2:13-cv-03478-SRC-CLW Document 1 Filed 06/05/13 Page 55 of 56 PageID: 55

Date: June 5, 2013

tyork@yorklegalgroup.com Attorneys for Plaintiffs

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 NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

:

ROSEMARY SCIARRILLO, by and

:

through her guardians, Joanne St. Amand :

and Anthony Sciarrillo, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

CHRISTOPHER CHRISTIE, Governor of :

the State of New Jersey, et al.,

:

:

Defendants.

:

:

Civil Action No. 13-03478 (SRC) OPINION

CHESLER, District Judge
This putative class action, filed by thirty-five developmentally disabled individuals
(“Plaintiffs”) who currently receive services at two state-run developmental centers, seeks to
prevent the State from closing those centers and moving Plaintiffs to other treatment facilities.
The Complaint asserts causes of action under three federal statutes – the Americans with
Disabilities Act (“ADA”), the Rehabilitation Act (“RA”), and the Social Security Act – as well as a § 1983 constitutional due process claim. Defendants1 have filed a motion to dismiss these
claims, pursuant to Federal Rule of Civil Procedure 12(b)(6). [Docket Entry 4.] Plaintiffs
oppose. [Docket Entry 13.] In addition, the United States of America has filed a Statement of
Interest, pursuant to 28 U.S.C. § 517, which argues that Plaintiffs have failed to state ADA and
1 The Complaint names seven Defendants: Christopher Christie; the New Jersey Department of Human Services (“NJ DHS”); Jennifer Velez, Commissioner of the NJ DHS; the New Jersey Department of Human Services Department of Developmental Disabilities (“NJ DDD”); Dawn Apgar, Deputy Commission of the NJ DHS; North Jersey Developmental Center (“NJDC”); and Woodbridge Developmental Center (“WDC”). This Opinion uses the terms “Defendants” and “State” interchangeably.

RA causes of action. [Docket Entry 7.] The Court has considered these submissions, and will rule on the motion without oral argument, pursuant to Federal Rule of Civil Procedure 78. For the reasons that follow, Defendants’ motion will be granted, and the Complaint will be dismissed with prejudice. I. Background
This lawsuit arises out of the State of New Jersey’s decision to close two state-run residential care facilities for the developmentally disabled, Woodbridge Developmental Center (“WDC”) in Middlesex County and North Jersey Developmental Center (“NJDC”) in Passaic County. (See Compl. at ¶¶ 121-22.) In broad terms, the Complaint alleges that Defendants are “downsize[ing] or depopulate[ing]” the NJDC and the WDC “without regard to the needs of the individual Plaintiffs,” who are all profoundly disabled adults residing at one of the two Centers. (See id. at ¶ 119.) According to the Complaint, Defendants plan to move Plaintiffs out of WDC and NJDC; to this end, Defendants have offered Plaintiffs the choice between a “community placement” – i.e., “small group homes, nursing homes, and other settings with smaller populations” – and a move to a different Developmental Center located “over one hundred miles away.” (Id. at ¶¶ 110, 118(d).) Being moved out of the NJDC and WDC will result in the denial to Plaintiffs of “access to their current high level of treatment and services,” (id. at ¶ 130), and the decision to close the two Centers has exposed or will expose Plaintiffs to a “significant risk of harm.” (Id. at ¶ 90.)
By this lawsuit, Plaintiffs’ ask the Court to prevent their relocation, as well as the relocation of a class of similarly situated individuals who have been residents of NJDC or WDC since August 1, 2012. Applying language from the Supreme Court’s decision in Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), Plaintiffs argue that an involuntary transfer out of
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NJDC or WDC constitutes discrimination in violation of Title II of the ADA, 42 U.S.C. § 12131, as well as § 504 of the RA, 29 U.S.C. § 794(a). According to Plaintiffs, Olmstead provides them a right to oppose the State of New Jersey’s decision to move them from institutional care to a more integrated community setting. (See Compl. ¶ 132-35 (“there is no ‘federal requirement that community-based treatment be imposed on patients who do not desire it’” (quoting Olmstead, 527 U.S. at 602).)
Plaintiffs also seek relief pursuant to (1) the Medicaid portions of the Social Security Act and related regulations, and (2) the Due Process Clause of the Fourteenth Amendment. As to the former, the Complaint alleges that Medicaid provides Plaintiffs with a host of rights – including the right to oppose a “discharge or transfer” from NJDC or WDC – and also prevents Defendants from moving Plaintiffs to facilities that are “significantly distant” from family members or guardians. (See id. at 47-50.) As to the latter, the Complaint alleges what amounts to two separate theories of liability. First, Defendants will violate Plaintiffs’ substantive due process rights by moving Plaintiffs to non-institutionalized residences that will “substantially increase [Plaintiffs’] likelihood of injury and death from abuse, neglect, error, lack of appropriate services, and other causes.” (See id. ¶¶ 168-71.) Second, Defendants have violated Plaintiffs’ substantive due process rights by providing inferior care for Plaintiffs’ safety and well-being during the downsizing of NJDC and WDC. (See id. ¶¶ 172-74.) II. Discussion
A. Legal Standard A complaint will survive a motion under Rule 12(b)(6) only if it states “sufficient factual allegations, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 554, 570 (2007)).
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“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Following Iqbal and Twombly, the Third Circuit has held that, to prevent dismissal of a claim, the complaint must show, through the facts alleged, that the plaintiff is entitled to relief. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). While the Court must construe the complaint in the light most favorable to the plaintiff, it need not accept a “legal conclusion couched as factual allegation.” Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007); Fowler, 578 F.3d at 210-11; see also Iqbal, 556 U.S. at 679 (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, will not suffice.” Iqbal, 556 U.S. at 678.
B. The ADA and Rehabilitation Act Claims2 The ADA was enacted in 1990 “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b). The ADA recognizes that “historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” Id. § 12101(a)(2). Consistent with this statement of purpose, Title II of the ADA prohibits discrimination against individuals with disabilities by public entities: “no qualified individual with a disability shall, by reasons of such disability, be excluded from participation in or be
2 The parties treat the ADA and Rehabilitation Act claims as interchangeable for purposes of this motion. This Court will do the same. See Olmstead, 527 U.S. at 590-92 (noting the similarities between 42 U.S.C. § 12131 and the RA and that the regulations implementing § 12131 are modeled after those implementing § 504 of the RA); Frederick L. v. Dep’t of Pub. Welfare of Commonwealth of Pa., 364 F.3d 487, 490 n.2 (3d Cir. 2004) (acknowledging the “congruence” of the ADA and RA “integration mandates”).
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denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” Id. § 12132. Title II’s integration regulation, promulgated by the Attorney General, requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d). The “most integrated setting” is defined as one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible . . . .” 28 C.F.R. Pt. 35, App. B at 673.
In Olmstead v. L.C. ex rel. Zimring, the Supreme Court addressed the question of whether the ADA’s “proscription of discrimination may require placement of persons with mental disabilities in community settings rather than institutions.” 527 U.S. at 587. The Court held that the answer to that question was a qualified yes: under Title II “[u]njustified isolation” in an institution can, in certain circumstances, be “properly regarded as discrimination based on disability.” 527 U.S. at 597. The Court provided a three factor analysis to determine when a State must place a mentally disabled individual in a community setting, as opposed to an institution:
[1] when the State’s treatment professionals have determined that community placement is appropriate, [2] the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and [3] the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. Id. In support of its holding, the Court noted the shift in congressional policy towards treating disabled individuals in “state-run home and community based care,” and away from institutionalized treatment. See id. at 601 (stating that Medicaid provides funding for such programs through a waiver and that the Department of Health and Human Services encourages
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states “to take advantage of the waiver program”). But the Court, in dicta, was careful to observe that (1) “nothing in the ADA or its implementing regulations condones” forcing disabled persons into community settings when they are “unable to handle or benefit” from them, and (2) there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” See id. at 601-02; see also id. at 604 (“the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk”). To this end, Olmstead instructed States to rely on “the reasonable assessments” of their own treating professionals to determine if disabled individuals are eligible for “habilitation in a community-based program.” Id. at 602.
Olmstead thus stands for the proposition that “it is a violation of the [ADA, the RA,] and their implementing regulations to force developmentally disabled patients to reside in institutions when they are able and willing to live” in more integrated community settings. See Benjamin ex rel. Yock v. Dep't of Pub. Welfare of Pa., 701 F.3d 938, 942 (3d Cir. 2012). To substantiate their ADA and RA claims, however, Plaintiffs seize on the above dicta and argue that Olmstead stands for a somewhat related but entirely distinct proposition – that a State cannot move a developmentally disabled person from their current institution to a community setting unless the Supreme Court’s three-factor analysis is met. (See Opp. Br. at 15-16). In Plaintiffs’ view, the State of New Jersey cannot close the NJDC or WDC until every resident at those facilities consents to a transfer and a treatment professional has determined that another facility – institutional or community-based – is “the most appropriate place to receive services.” (See id. at 15.)3
3 Plaintiffs argue that they do not seek to prevent the State of New Jersey from closing the NJDC and WDC, and instead seek enforcement of “rights [that] may prevent the move of some residents from [WDC] and [NJDC] . . . .” (See Opp. Br. at 2.) This is a distinction without a
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Plaintiffs’ interpretation of Olmstead is untenable. Simply put, “there is no basis [in
Olmstead] for saying that a premature discharge into the community is an ADA discrimination
based on disability.” Richard S. v. Dep’t of Developmental Servs. of the State of Cal., No. 97-
cv-219, 2000 WL 35944246, at *3 (C.D. Cal. Mar. 27, 2000) (emphasis in original). Indeed,
“[t]here is no ADA provision that providing community placement is a discrimination. It may be
a bad medical decision, or poor policy, but it is not discrimination based on disability.” Id.
(emphasis in original). This Court will therefore join the numerous other federal courts have
rejected similar “obverse Olmstead” arguments in circumstances where a State has decided to
close treatment facilities for the developmentally disabled or relocate such disabled individuals
to community settings. See, e.g., Richard C. ex rel. Kathy B. v. Houstoun, 196 F.R.D. 288, 292
(W.D. Pa. 1999) (rejecting interpretation of Olmstead identical to the one proffered in this case
and finding that “it does not logically follow [from Olmstead] that institutionalization is required
if any of the three Olmstead criteria is not met”); Ill. League of Advocates for the
Developmentally, Disabled v. Quinn, No. 13-cv-1300, 2013 WL 3168758, at *5 (N.D. Ill. June
20, 2013) (noting, in case brought to enjoin the State of Illinois from closing development
centers, that “[u]njustified isolation constitutes discrimination under the ADA, but” Olmstead does not mean the converse is true).4
difference, as the practical result of Plaintiffs successfully enjoining the State from moving residents out of the Centers would obviously force those Centers to remain open. 4 The Third Circuit, in the context of a motion for intervention under Federal Rule of Civil Procedure 24, has “assum[ed], without deciding” that a group of institutionalized mentally disabled individuals who oppose community placement “ha[s] a legally enforceable right to remain in the institution where they currently reside.” See Benjamin ex rel. Yock v. Dep't of Pub. Welfare of Pa., 432 F. App'x 94, 98 & n.4 (3d Cir. 2011) (denying Rule 24 intervention). In a later decision in the Benjamin litigation, the Third Circuit granted the Rule 24 intervention of the same group of individuals at the remedy stage, holding that the “protectable interests” of institutionalized individuals “may be affected” by a Settlement Agreement that fosters integration through institutional discharge. See 701 F.3d at 957 (3d Cir. 2012). But a right sufficient to warrant intervention does not a discrimination cause of action make. Absent more
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The Court is sensitive to the difficulties faced by institutionalized individuals and their families; for instance, it appears from the Complaint that Plaintiffs and their families have grown accustomed to receiving state-provided care at the two institutions New Jersey has marked for closure. Plaintiffs’ concerns, however, are concerns which are appropriately directed to the State agencies involved. The Court’s analysis is limited to whether the controlling statutes relied upon by Plaintiffs have been violated, and it does not appear that Plaintiffs’ relocation amounts to discrimination on the basis of disability in violation of federal law. As such, the Complaint fails to state a claim for violation of the ADA and RA, and those causes of action must be dismissed.
C. The Medicaid Claim The Complaint also alleges that relocating residents of NJDC and WDC violates several provisions of the Social Security Act’s Medicaid portions and their implementing regulations. The Complaint cites six provisions of the United States Code and the Code of Federal Regulations: 42 U.S.C § 1396n; 42 C.F.R. § 441.302(d); 42 U.S.C. § 1396a(a)(10); 42 U.S.C. § 1396d(a)(15); 42 C.F.R. § 483.440(b)(3); and 42 C.F.R. § 483.440(a)(1). Plaintiffs allege that this laundry list of statutes and regulations hangs upon Defendants various duties, which will all be violated by relocating Plaintiffs from NJDC and WDC. The Medicaid claim must fail. Save for the rights contemplated by 42 U.S.C. §§ 1396a(a)(10) and 1396d(a)(15), Plaintiffs do not cite a provision of Medicaid that they can enforce through a private 42 U.S.C. § 1983 cause of action. See Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 182-83 (3d Cir. 2004) (“[i]n legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a
direct guidance from the Third Circuit, the Court will follow the plain language of the Olmstead decision itself and the other federal courts that have applied Olmstead to reject ADA arguments identical to the one currently before the Court.
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private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State” (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28 (1981))).5 It is Plaintiffs’ burden to establish that the federal statute cited “gives rise to federal rights enforceable through § 1983.” Grammer v. John J. Kane Regional Centers-Glen Hazel, 570 F.3d 520, 525 (3d Cir. 2009). But Plaintiffs’ Opposition brief makes no argument whatsoever as to whether the litany of Medicaid statutes and regulations cited in the Complaint individually pass a Gonzaga University v. Doe analysis and can therefore be enforced privately pursuant to § 1983. See Sabree, 367 F.3d at 183 (quoting Gonzaga Univ. v. Doe, 536 U.S. 273 (2002)).
If §§ 1396a(a)(10) and 1396d(a)(15) were applicable to this case the outcome might be different, insofar as the Third Circuit has explicitly held that those subsections are privately enforceable in § 1983 suits. See Sabree, 367 F.3d at 183. But the two provisions are not relevant here. Section 1396a(a)(10) requires “[a] State plan for medical assistance” to provide . . . for making medical assistance . . . available, . . . to all [eligible] individuals . . . .” Nowhere in the Complaint do Plaintiffs allege that the State is not making medical assistance available to them. Instead, the Complaint takes issue with the type of medical assistance allegedly provided at facilities other than NJDC and WDC.
Likewise, § 1396d(a)(15) requires states to provide medical assistance in the form of payment for at least some of the “services [received by individuals] in an intermediate care facility” for the developmentally disabled. Again, the Complaint does not say that Defendants are violating federal law by failing to pay for intermediate care facilities like NJDC and WDC,
5 Indeed, Plaintiffs fail to bring their Medicaid claim pursuant to 42 U.S.C. § 1983, the vehicle provided by Congress for private vindication of rights that may be created by statutes such as Medicaid. See Sabree, 367 F.3d at 183. Having found the Medicaid claim is meritless, the Court will proceed as if Plaintiffs have properly brought suit pursuant to § 1983.
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only that Plaintiffs have a federal right to the intermediate care facility of their choosing. Indeed, Plaintiffs argue that “Defendants have no right to assume all [intermediate care facilities] are equal or provide necessary services.” (Opp. Br. at 20.) But all that § 1396d(a)(15) requires is for the State of New Jersey to pay for some or all of the services provided to disabled individuals at such facilities, not to offer disabled individuals a choice to receive care at the facility that they perceive to be superior.
In sum, Plaintiffs’ Medicaid claim relies on federal law that is not enforceable in private lawsuits and statutes that are irrelevant to the complained of conduct. It will therefore be dismissed.
D. The Due Process Claim Plaintiffs final claim is one for injunctive relief under 42 U.S.C. § 1983; it alleges that the decision to close NJDC and WDC and relocate Plaintiffs from their residences there violates Plaintiffs’ substantive due process rights. To state a cause of action under § 1983, a plaintiff must “allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The Complaint and both parties’ briefs treat the due process claim as one that rests solely on the substantive due process rights to protection and care enunciated in Youngberg v. Romeo, 457 U.S. 307 (1982). In Youngberg, the Supreme Court addressed “the substantive [due process] rights of involuntarily committed” developmentally disabled individuals. Id. at 314. Youngberg held that “these substantive rights include a qualified right to safe conditions and freedom from bodily restraint.” Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459, 465 (3d Cir. 1990). Of course, due process “generally confer[s] no affirmative right to governmental aid.” See
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DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 196 (1989). Youngberg rights, however, “fit within an exception providing that ‘when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.’” Torisky v. Schweiker, 466 F.3d 438, 444 (3d Cir. 2006) (quoting DeShaney, 489 U.S. at 199-200). As stated earlier, a fair reading of the Complaint reveals that Plaintiffs in fact bring two separate but related Youngberg claims – for harm that might arise if Plaintiffs are transferred to community-based facilities, and for harm that has already occurred based on inadequate staffing at NJDC and WDC.
The due process claim fails under either theory. Plaintiffs cannot state a plausible Youngberg claim based on speculative future harm that might result if Plaintiffs are placed in community-based settings. (See Compl. ¶¶ 168-71.) Such a result is foreclosed by Fialkowski, in which the Third Circuit held that a developmentally disabled individual did not have his “personal liberty . . . substantially curtailed by the state” in a manner sufficient to implicate Youngberg when the individual was moved from a state institution to a group home and choked to death at that location. See 921 F.2d at 465. In support of its holding, the Fialkowski Court noted that the individual’s family “could remove their son from the [group home] if they wished” and that the individual “himself enjoyed considerable freedom of movement.” See id. at 465-66. There is no indication from the Complaint or otherwise that identical considerations would not govern here. Thus, any harm that might occur to Plaintiffs in a group home setting would not be harm visited while Plaintiffs were “deprived of freedom ‘through . . . institutionalization or other similar restraint of personal liberty,’” and thus would not be actionable under the Due Process Clause. See id. at 466 (quoting DeShaney, 489 U.S at 200); see also Campbell v. State of Wash. Dep’t of Soc. and Health Servs., 671 F.3d 837, 843-45 (9th Cir. 2011) (holding that a mentally
11

disabled adult’s residence in a state-run alternative-living facility is not involuntary confinement). In short, the freedom inherent in a community-based residence and the curtailment of personal liberty necessary to state a Youngberg claim are entirely dissimilar. The due process claim, insofar as it seeks liability for harm that might occur while Plaintiffs reside in state-funded community settings, is dismissed.
As to Plaintiffs’ second theory, the Complaint fails to plead facts sufficient to make out a plausible Youngberg claim based on the alleged reduction in services at NJDC and WDC. See Iqbal, 556 at 678. Plaintiffs allege that the Defendants “have significantly contributed to and increased the vulnerability of the Plaintiffs [living at NJDC and WDC] and created risks that would not have otherwise existed if Defendants complied with their legal duties.” (See Compl. at ¶ 173.) But as Defendants correctly argue, Plaintiffs support their claim with nothing more than “sweeping legal conclusions derived from Youngberg,” not specific facts. (Mov. Br. at 20 (noting the allegation that the medical services provided by Defendant have “substantially departed from generally accepted professional standards” (quoting Compl. ¶ 85)).) Such allegations cannot survive a Rule 12(b)(6) motion under contemporary pleading standards.
Plaintiffs’ argument to the contrary is baffling. Plaintiffs do not attempt to highlight specific facts to substantiate a plausible claim that the State has failed to confine them under “conditions of reasonable care and safety . . . .” Youngberg, 457 U.S. at 324. Instead, Plaintiffs lift a three-and-a-half page block quote out of their Complaint and insert it into their brief, thereafter noting that “[t]hese allegations are sufficient notice pleading.” (Opp. Br. at 23-26.) The Court would overlook this approach, if the block-quoted portion of the Complaint was not rife with the sort of conclusory allegations that cannot serve to state a plausible claim. As just one example, Paragraph 79 states that the “provision of protection from harm mechanisms, since
12

the decision to close the developmental centers, has in some instances substantially departed from generally accepted professional standards.” Indeed, in the nineteen paragraphs of the Complaint reproduced in Plaintiffs’ brief, the Court can only find one instance where Plaintiffs allege facts relevant to stating a plausible Youngberg claim. (See Compl. ¶ 89 (describing a physical attack on a Plaintiff by another resident allegedly resulting from “lack of staffing”).) But one alleged resident on resident attack does not substantiate a plausible claim for due process violations occurring at two separate state-run facilities that house severely disabled adults.6
The Youngberg claim based on current conditions at NJDC and WDC also fails for the distinct reason that the Complaint does not plead facts to indicate that Plaintiffs are in any way involuntarily housed at the two facilities. As stated above, Youngberg rights – i.e., “[t]he affirmative duty to protect” – arise only where the state has taken an “affirmative act of restraining the individual’s freedom to act on his own behalf . . . .” See DeShaney, 489 U.S. at 200. Plaintiffs, however, do not argue that Defendants in this case have taken steps to affirmatively confine them to NJDC or WDC. Rather, Plaintiffs argue that they are “totally dependent on the medical and habilitative care provided by the State [at NJDC and WDC], and they cannot decline services at any time without jeopardizing their health, safety, and wellbeing.” (Opp. Br. at 32-33.) To this end, the Third Circuit has indeed recognized, if not held, that otherwise voluntarily committed patients may in certain circumstances “find themselves in a de facto involuntary status” for the purposes of Youngberg. See Torisky, 446 F.3d at 447-48 (holding that the trial court erred when it concluded that “the state owes an affirmative due process duty of care to residents of a state institution who are free to leave state custody”).
But this case is not one of those circumstances. The Torisky decision, for instance, affirmed an order denying a motion to dismiss where the complaint alleged that the 6 Paragraph 89 in fact fails to state if the alleged attack took place at NJDC or WDC.
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developmentally disabled plaintiffs were, while in state custody, “separated from their guardians . . . by a police blockade” and were “transferred against their will” by state employees who affirmatively utilized “physical and psychological force . . . .” See id. at 448. The Complaint in this case is bereft of facts that reveal similar affirmative acts of physical or mental restraint by the Defendants or their agents. Torisky itself cites to a case from the First Circuit that analyzes and squarely rejects the theory that an institutionalized individual can be de facto involuntarily confined because of the profoundness of his disabilities. See id. at 447 (quoting Monahan v. Dorchester Counseling Ctr., Inc., 961 F.2d 987, 992 (1st Cir. 1992)). Much like Plaintiffs here, the plaintiff in Monahan argued that he was “de facto a ward of the state” based on, inter alia, his “degree of disability” and “the availability of other resources and of . . . guardians . . . .” See 961 F.2d at 992. The First Circuit, however, rebuffed this argument. The court noted that the complaint did not allege that plaintiff was somehow “barred” from leaving the state facility where he was housed. Monahan found that even if the plaintiff’s “mental condition . . . made him functionally dependent on his [state] caretakers . . . it was [plaintiff’s] own mental condition alone that impinged upon his freedom to leave.” As such, “it was not the state that deprived him of that freedom,” and the Constitution therefore “did not impose upon [the state] any responsibility for [plaintiff’s] safety and well-being.” Id. at 992 (citing DeShaney, 489 U.S. at 199-200); see also Randolph v. Cervantes, 130 F.3d 727, 730 (5th Cir. 1997) (“the mere fact that [plaintiff’s] mental condition may have made her functionally dependent on [defendants] does not transform her voluntary tenancy at [a state run apartment] into an involuntary confinement”). Identical considerations govern in this case.
Moreover, the facts that have been plead in the Complaint reveal that, far from being de jure or de facto involuntary committed to NJDC or WDC, it is Plaintiffs sincere desire to remain
14

at those facilities. (See, e.g., Compl. ¶ 96 (“All Plaintiffs are medically and developmentally most appropriately served at the [NJDC or WDC] instead of any alternative setting.”).) Indeed, the relief sought by virtue of the due process claim – as well as all other claims in this case – is an order enjoining the State from moving the Plaintiffs out of NJDC or WDC without their consent. (See Compl. ¶ 176.) It simply cannot be the case that a constitutional right that arises from the state’s act of confining an individual at a government facility against his will can be enforced to require the state to keep an individual at a government facility of his choosing. Plaintiffs’ due process claim, to the extent that it is based on the living conditions of two staterun facilities where Plaintiffs voluntarily receive state-provided services, fails as a matter of law and is therefore dismissed.7 III. Conclusion
For the foregoing reasons, the Court will grant Defendants’ motion [Docket Entry 4], and dismiss the Complaint with prejudice. An appropriate Order will be filed herewith.

Dated: December 13th, 2013

s/ Stanley R. Chesler STANLEY R. CHESLER United States District Judge

7 Having found that Plaintiffs fail to state a viable due process claim, the Court need not address Defendant’s Burford abstention or Eleventh Amendment immunity arguments. (See Mov. Br. at 26.).
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 Case 2:13-cv-03478-SRC-CLW Document 7 Filed 09/13/13 Page 1 of 12 PageID: 168

JOCELYN SAMUELS ACTING ASSISTANT ATTORNEY GENERAL U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530

By: Christopher N. Cheng (PA 69066) Trial Attorney (202) 514-8892

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
VICINAGE OF NEWARK

ROSEMARY SCIARRILLO, by and :

through her guardians,

:

Joanne St. Amand and Anthony

:

Sciarrillo, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

CHRISTOPHER CHRISTIE,

:

Governor of the State of New

:

Jersey, et al.,

:

:

Defendants.

:

Honorable Stanley R. Chesler U.S.D.J.
CIV. NO.: 2:13-cv-03478
STATEMENT OF INTEREST OF THE UNITED STATES OF AMERICA

1

Case 2:13-cv-03478-SRC-CLW Document 7 Filed 09/13/13 Page 2 of 12 PageID: 169 TABLE OF CONTENTS
Table of Authorities .........................................................................................................................3 Introduction ......................................................................................................................................5 Argument – The ADA Does Not Create a Right to Remain in a Particular Institution...................7 Conclusion .....................................................................................................................................10
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Cases

TABLE OF AUTHORITIES

Auer v. Robbins, 519 U.S. 452 (1997).......................................................................................................... 7

Baccus v. Parrish, 45 F. 3d 958 (5th Cir. 1995).......................................................................................... 10

Benjamin ex rel. Yock v. Dep’t of Public Welfare of the Commonwealth of Pa., 701 F.3d 938 (3d Cir. 2012) ....................................................................................................................................................... 10

Benjamin v. Dep’t of Public Welfare of the Commonwealth of Pa., 432 F. App’x. 94 (3d Cir. 2011)..... 10

Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) ................................................................................................ 9

Illinois League of Advocates for the Developmentally Disabled v. Patrick Quinn, Civ. No. 1:13-cv01300, 9-10 (N.D. Ill. filed June 20, 2013)............................................................................................... 9

Lelsz v. Kavangauh, 783 F. Supp. 286 (N.D. Tex. 1991), aff’d 983 F. 2d 1061 (5th Cir. 1993) ............... 10
M.R. v. Dreyfus, 663 F.3d 1100 (9th Cir. 2011), opinion amended and superseded on other grounds, 697 F.3d 706 (9th Cir. 2012) ............................................................................................................................ 7

Olmstead v. L.C., 527 U.S. 581 (1999) ...............................................................................................passim

Pashby v. Delia, 709 F.3d 307 (4th Cir. 2013) ............................................................................................. 7

Ricci v. Patrick, 544 F.3d 8 (1st Cir. 2008) .................................................................................................. 9

Richard C. v. Houstoun, 196 F.R.D. 288 (W.D. Pa. 1999)........................................................................... 9

Statutes

42 U.S.C. § 12101(a)(2)............................................................................................................................ 5, 6

28 U.S.C. § 517............................................................................................................................................. 5

42 U.S.C. § 12101(b)(1) ............................................................................................................................... 5

42 U.S.C. § 12101(b)(2) & (3)...................................................................................................................... 6

42 U.S.C. § 12134......................................................................................................................................... 6

42 U.S.C. §12101(a)(2)............................................................................................................................. 5, 6

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ............................................................................... 6

Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132............................................. 5, 6

3

Case 2:13-cv-03478-SRC-CLW Document 7 Filed 09/13/13 Page 4 of 12 PageID: 171 Other Authorities Act establishing "Task Force on the Closure of State Developmental Centers," P.L. 2011, Chapter 143
(available at http://www.njleg.state.nj.us/2010/Bills/S3000/2928_I1.HTM) ........................................... 7 Final Report as Submitted to Governor Chris Christie and the New Jersey Legislature (available at
https://dspace.njstatelib.org/xmlui/handle/10929/21105) ......................................................................... 8 Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the
Americans with Disabilities Act and Olmstead v. L.C.” at 3 (June 22, 2011), available at: http://www.ada.gov/olmstead/q&a_olmstead.htm.................................................................................... 7 Regulations 28 C.F.R. Part 35, App. B ............................................................................................................................. 6 28 C.F.R. § 35.130(d) ................................................................................................................................... 6 28 C.F.R. § 41.51(d) ..................................................................................................................................... 6 42 C.F.R. § 441.302(d) ................................................................................................................................. 9
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INTRODUCTION The United States respectfully submits this Statement of Interest, pursuant to 28 U.S.C. § 517,1 regarding Plaintiffs’ Complaint, [Docket No. 1], in order to clarify to the Court the proper scope and application of the integration mandate of Title II of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12132. The statute, regulations, and established precedent do not support the Plaintiffs’ claim that the ADA gives them a right to remain in a particular institution and prevent the State from integrating persons with disabilities into a community setting as mandated by Olmstead v. L.C., 527 U.S. 581, 591-592 (1999). In 1990, Congress enacted the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Congress recognized that “historically, society has tended to isolate and segregate individuals with disabilities, and despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” Id. § 12101(a)(2). For these reasons, Congress prohibited discrimination against individuals with disabilities by public entities:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
1 Under 28 U.S.C. § 517, “[t]he Solicitor General, or any officer of the Department of Justice, may be sent by the Attorney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to attend to any other interest of the United States.”
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Id. § 12132. In passing the ADA, Congress sought to create strong national standards to address discrimination and to ensure that the federal government played a “central role” in creating and enforcing those standards. 42 U.S.C. § 12101(b)(2) & (3).
Congress instructed the Attorney General, in 42 U.S.C. § 12134, to issue regulations to implement the ADA’s broad mandate to end the pervasive and ongoing segregation of persons with disabilities in all facets of life. See 42 U.S.C. §12101(a)(2). Title II’s integration regulation requires public entities to “administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. § 35.130(d).2 The “most integrated setting” means one that “enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.…” 28 C.F.R. Pt. 35, App. B at 673.
The Supreme Court in Olmstead interpreted these regulations to mean that “[u]njustified isolation” of individuals with disabilities “is properly regarded as discrimination based on disability.” Olmstead, 526 U.S. at 596-597. The Court held that public entities are required to provide community-based services to persons with disabilities when (a) such services are appropriate; (b) the affected persons do not oppose community-based treatment; and (c) community-based services can be reasonably accommodated, taking into account the resources available to the entity and the needs of others who are receiving disability services from the entity. Olmstead, 527 U.S. at 607.
The Department has interpreted the integration regulation to prohibit the unnecessary provision of such services to persons with disabilities in segregated institutional settings, in
2 Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, contains a nearly identical regulation issued by the Attorney General. 28 C.F.R. § 41.51(d). These regulations have been read in tandem to provide similar protections to persons with disabilities. See Olmstead v. L.C., 527 U.S. at 590-592.
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which persons with disabilities have little to no opportunity to interact with non-disabled persons. See, e.g., “Statement of the Department of Justice on Enforcement of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C.” at 3 (June 22, 2011), available at: http://www.ada.gov/olmstead/q&a_olmstead.htm.
As the agency charged by Congress with enforcing and implementing regulations under Title II, the Department’s interpretation of both Title II and the integration regulation has been accorded substantial deference. See Olmstead, 527 U.S. at 597-98; (“Because the Department is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect.” (citation omitted)); Pashby v. Delia, 709 F.3d 307, 322 (4th Cir. 2013) (“Because Congress instructed the DOJ to issue regulations regarding Title II, we are especially swayed by the DOJ's [interpretation of] ‘the ADA and the Olmstead decision’”) (internal citation omitted); M.R. v. Dreyfus, 663 F.3d 1100, 1117 (9th Cir. 2011), opinion amended and superseded on other grounds, 697 F.3d 706 (9th Cir. 2012). The Department’s interpretation of the integration regulation must be upheld “unless plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997) (citations omitted).
II. ARGUMENT The ADA Does Not Create a Right to Remain in a Particular Institution In June 2011, the State enacted a statute creating a task force to evaluate the State’s seven developmental centers and issue recommendations with respect to closing one or more of those centers. Act establishing "Task Force on the Closure of State Developmental Centers," P.L. 2011, Chapter 143 (available at http://www.njleg.state.nj.us/2010/Bills/S3000/2928_I1.HTM). On August 1, 2012, the task force issued a final report with a binding recommendation to close the North Jersey Developmental Center (NJDC) and the Woodbridge Developmental Center
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(WDC) within the next five years. Final Report as Submitted to Governor Chris Christie and the New Jersey Legislature (available at https://dspace.njstatelib.org/xmlui/handle/10929/21105).
Plaintiffs oppose such recommendations, essentially contending that the ADA, an integration statute enacted to end the pervasive segregation of persons with disabilities, conveys a right to remain in a segregated institution, as opposed to a right to live in the community. See Plaintiffs’ Complaint at 40-44. Yet, nothing in the ADA or its regulations, the Supreme Court’s decision in Olmstead, or any other case law supports this interpretation of the ADA and its integration mandate. Nothing in the ADA statute or regulations or the Olmstead decision supports Plaintiffs' concept that moving people with disabilities to appropriate integrated settings is similarly discriminatory or raises similar civil rights concerns. Rather, the inverse is true.
In Olmstead, the Supreme Court concluded that the unjustified institutionalization and isolation of persons with mental disabilities violates the ADA. Olmstead, 527 U.S. at 581, 597. The Supreme Court reached this conclusion based upon two “evident judgments.” Id. at 600. First, the Court observed that “institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life.” Id. at 600. Second, the Court noted that “confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment.” Id. at 601.
Plaintiffs make much of Olmstead’s statement that there is no “federal requirement that community-based services be imposed upon those who do not desire them.” Olmstead, 527 U.S. at 602. That statement means it is not an ADA requirement to place a person in a community based setting if he or she opposes placement. It does not mean integration or placement in
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another institution is an ADA violation. Moreover, to read that sentence in Olmstead as creating a right to institutionalization would turn the ADA and its integration mandate on its head and impermissibly create a new right under the ADA that was never intended by Congress. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (Congress must “unambiguously confer a right” to support a cause of action under §1983 or an implied right of action.). The ADA does not confer a civil right to remain in any given institution.
In fact, Plaintiffs’ argument contradicts established precedent that the ADA’s purpose is to prevent unnecessary institutionalization, not to require continued operation of a state institution in which an individual plaintiff currently resides. Courts have found that it does not violate federal law for states to close their institutions. See generally Ricci v. Patrick, 544 F.3d 8, 21 (1st Cir. 2008); Illinois League of Advocates for the Developmentally Disabled v. Patrick Quinn, Civ. No. 1:13-cv-01300, 9-10 (N.D. Ill. filed June 20, 2013) (Attached as Exhibit A) (memorandum opinion holding that placing individuals in the community is no basis for an Olmstead case).3 This is particularly true when a state is rebalancing its system of supports for people with disabilities away from expensive institutional care towards community care to use its resources to serve more people. See Ricci, 544 F.3d at 8, 17-18 n.8, 21 (recognizing a State’s ability to close its state-operated facilities, particularly when “allocating its resources to ensure equitable treatment of its citizens,” and noting the ADA’s preference for community integration under the Olmstead decision) (internal citations omitted); Richard C. v. Houstoun, 196 F.R.D.
3 Medicaid law also does not require that States operate a particular institution. States, like New Jersey, that participate in Medicaid’s home and community-based waiver program must offer participants the choice of community-based or institutional services, but those institutional services can be offered in a public institution (like a State Developmental Center) or a private institution at the option of the state, 42 C.F.R. § 441.302(d). Here, the State has provided Plaintiffs who wish to receive services in another State Developmental Center the option to do so, which accords with their rights under Medicaid to choose a type of placement.
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288, 291-292 (W.D. Pa. 1999) (rejecting plaintiffs’ interpretation of Olmstead to require continued institutionalization when the three Olmstead factors are not met and denying intervention); see also Baccus v. Parrish, 45 F. 3d 958, 961 (5th Cir. 1995) (State may close its public institutions for individuals with intellectual and developmental disabilities); Lelsz v. Kavangauh, 783 F. Supp. 286, 298 (N.D. Tex. 1991), aff’d 983 F. 2d 1061 (5th Cir. 1993)(same).4
III. CONCLUSION For the reasons stated above, the United States respectfully requests that this Court find that the Plaintiffs have no claim under the Americans with Disabilities Act.
Dated: September 13, 2013

PAUL J. FISHMAN United States Attorney

RESPECTFULLY SUBMITTED,
JOCELYN SAMUELS Acting Assistant Attorney General
EVE HILL Deputy Assistant Attorney General

4 The Third Circuit has addressed, on a case-by-case basis, efforts by persons residing in state institutions to intervene in proceedings affecting those institutions. See Benjamin v. Dep’t of Public Welfare of the Commonwealth of Pa., 432 F. App’x. 94, 98 (3d Cir. 2011) (affirming denial of intervention motion where relief sought caused no “direct jeopardy” to plaintiffs’ current form of institutional care); Benjamin ex rel. Yock v. Dep’t of Public Welfare of the Commonwealth of Pa., 701 F.3d 938, 954-57 (3d Cir. 2012) (holding intervention warranted under Fed. R. Civ. P. 24(a)(2) to permit challenge to proposed settlement addressing institutional discharges). But a protectable interest permitting intervention does not equate to a courtenforceable federal right, Benjamin, 432 F. App’x. at 98 (citing Kleissler v. U.S. Forest Service, 157 F.3d 964, 970 (3d Cir. 1998)), and the Third Circuit has not held that people living in a stateoperated facility have a right to remain there.
10

Case 2:13-cv-03478-SRC-CLW Document 7 Filed 09/13/13 Page 11 of 12 PageID: 178

s/Susan Handler-Menahem SUSAN HANDLER-MENAHEM Assistant United States Attorney Peter Rodino Federal Building 970 Broad Street - Suite 700 Newark, NJ 07102
Tel: (973) 645-2843 Susan.Menahem@usdoj.gov

s/ Christopher Cheng JONATHAN SMITH Chief MARY R. BOHAN Deputy Chief CHRISTOPHER CHENG Trial Attorney Special Litigation Section Civil Rights Division U.S. Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530 Tel: (202) 514-8892 Fax: (202) 514-4883 E-mail: Christopher.Cheng@usdoj.gov

11

Case 2:13-cv-03478-SRC-CLW Document 7 Filed 09/13/13 Page 12 of 12 PageID: 179

CERTIFICATE OF SERVICE
I certify that on this day, September 13, 2013, I have electronically filed the foregoing STATEMENT OF INTEREST OF THE UNITED STATES with the Clerk of Court using the CM/ECF system, which will send notification of such filing to all parties in this matter via electronic notification:

Counsel for the Defendants
Gerard Hughes Deputy Attorney General R.J. Hughes Justice Complex P.O. Box 112 Trenton, New Jersey 08625-0112 Attorney for Defendants (609) 341-5096

Counsel for the Plaintiffs
Thomas Archer, Esq. 3401 North Front Street Harrisburg, PA 17110-0950
Thomas B. York, Esq. The York Legal Group, LLC 3511 North Front Street Harrisburg, PA 17110-1438

/s/ Christopher Cheng CHRISTOPHER CHENG

12

 
 Case 2:13-cv-03478-SRC-CLW Document 18 Filed 12/13/13 Page 1 of 2 PageID: 292

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

CLOSED

:

ROSEMARY SCIARRILLO, by and

:

through her guardians, Joanne St. Amand :

and Anthony Sciarrillo, et al.,

:

:

Plaintiffs,

:

:

v.

:

:

CHRISTOPHER CHRISTIE, Governor of :

the State of New Jersey, et al.,

:

:

Defendants.

:

:

Civil Action No. 13-03478 (SRC) ORDER

CHESLER, District Judge This matter having come before the Court on Defendants’ motion to dismiss the
Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6) [Docket Entry 4.]; and Plaintiffs having opposed the motion [Docket Entry 13]; and the Court having opted to rule on the papers submitted, and without oral argument, pursuant to Federal Rule of Civil Procedure 78; and for the reasons expressed in the Opinion filed herewith; and good cause shown,
IT IS on this 13th day of December, 2013, ORDERED that Defendants’ motion to dismiss [Docket Entry 4] be and hereby is GRANTED; and it is further ORDERED that the Complaint be and hereby is DISMISSED WITH PREJUDICE; and it is further ORDERED that this case be and hereby is CLOSED. .

Case 2:13-cv-03478-SRC-CLW Document 18 Filed 12/13/13 Page 2 of 2 PageID: 293 s/ Stanley R. Chesler
STANLEY R. CHESLER United States District Judge
2

 
 No. 14-1082
IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
ROSEMARY SCIARRILLO, et al.,
Plaintiffs-Appellants
v.
CHRISTOPHER CHRISTIE, et al.,
Defendants-Appellees _________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY _________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE DEFENDANTS-APPELLEES AND URGING AFFIRMANCE IN PART _________________
JOCELYN SAMUELS Acting Assistant Attorney General
MARK L. GROSS ERIN ASLAN Attorneys U.S. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 305-2773

TABLE OF CONTENTS

PAGE INTEREST OF THE UNITED STATES ..................................................................1

STATEMENT OF THE ISSUE.................................................................................3

STATEMENT OF THE CASE..................................................................................3

1.

Facts And Procedural History ..............................................................3

2.

The District Court’s Decision ...............................................................6

SUMMARY OF THE ARGUMENT ........................................................................7

ARGUMENT

THE DISTRICT COURT CORRECTLY HELD THAT THERE IS NO ENFORCEABLE RIGHT TO REMAIN IN AN INSTITUTION UNDER TITLE II, SECTION 504, OR OLMSTEAD.....................................8

A. Congress Enacted Section 504 And The ADA To Eliminate Discrimination Against Individuals With Disabilities, Including Isolation, Segregation, And Unnecessary Institutionalization................................................................................. 8

B. Olmstead Held That Unnecessary Segregation Of Individuals With Disabilities Is Discrimination Under Title II And Its Implementing Regulations ..........................................13

C. The Department Of Justice’s Views On The Proper Interpretation Of Title II Warrant Respect And Substantial Deference .........................................................................16

D. The Appellants May Not Contest Their Transfer From Institutions The State Has Selected For Closure Under Title II, Section 504, Or Olmstead .............................18

CONCLUSION ........................................................................................................24

TABLE OF CONTENTS (continued): CERTIFICATE OF COMPLIANCE CERTIFICATE OF BAR MEMBERSHIP CERTIFICATE OF SERVICE

PAGE

- ii -

TABLE OF AUTHORITIES

CASES:

PAGE

Alexander v. Choate, 469 U.S. 287 (1985)................................................................9

Baccus v. Parrish, 45 F.3d 958 (5th Cir. 1995).................................................18, 23

Benjamin v. Department of Pub. Welfare, 701 F.3d 938 (3d Cir. 2012) .......................................................... 6, 20-21, 23

Easley v. Snider, 36 F.3d 297 (3d Cir. 1994) ..........................................................10

Helen L. v. DiDario, 46 F.3d 325 (3d Cir.), cert. denied, 516 U.S. 813 (1995)........................................................ 8-10, 16

Illinois League of Advocates for Developmentally Disabled v. Quinn, No. 13-C-1300, 2013 WL 3168758 (N.D. Ill. June 20, 2013) ......................19

Lelsz v. Kavanagh, 783 F. Supp. 286 (N.D. Tex. 1991), aff’d, 983 F.2d 1061 (5th Cir.), cert. denied, 510 U.S. 906 (1993).........18, 24

Ligas v. Maram, 478 F.3d 771 (7th Cir. 2007)........................................................20

Olmstead v. L.C., 527 U.S. 581 (1999) ............................................................passim

Ricci v. Patrick, 544 F.3d 8 (1st Cir. 2008), cert. denied, 556 U.S. 1166 (2009)..........................................................18, 24

Richard C. v. Houstoun, 196 F.R.D. 288 (W.D. Pa. 1999) .....................................20

Rolland v. Patrick, 562 F. Supp. 2d 176 (D. Mass. 2008), aff’d, 592 F.3d 242 (1st Cir. 2010).................................................... 18, 23-24

STATUTES:

Americans with Disabilities Act (ADA), 42 U.S.C. 12101(a)(2) ...................................................................................11
- iii -

STATUTES (continued):

PAGE

42 U.S.C. 12101(a)(3) ............................................................................. 10-11 42 U.S.C. 12101(a)(5) ...................................................................................10 42 U.S.C. 12101(a)(7) ...................................................................................11 42 U.S.C. 12131 et seq. (Title II) ....................................................................1 42 U.S.C. 12132.......................................................................................10, 14 42 U.S.C. 12133-12134 .............................................................................2, 11 42 U.S.C. 12134(b)........................................................................................11 42 U.S.C. 12201(d)........................................................................................17

Medicaid Act, 42 U.S.C. 1396n(c)(2)(A)..............................................................................23 42 U.S.C. 1396n(c)(2)(B) ..............................................................................23 42 U.S.C. 1396n(c)(2)(C) ........................................................................ 23-24

Rehabilitation Act of 1973, 29 U.S.C. 794 (Section 504), 29 U.S.C. 794............................................................................................... 1-2 29 U.S.C. 794(a) ..............................................................................................8 29 U.S.C. 794a.................................................................................................2

N.J. Admin. Code 10:48-1.1 et seq. (2014) .............................................................23

REGULATIONS:

28 C.F.R. 35.130(d) ...........................................................................................12, 14

28 C.F.R. 35.130(e)(1) .............................................................................................14

28 C.F.R. Pt. 35, App. B. ...................................................................................12, 17

28 C.F.R. Pt. 41 & App. A. (Exec. Order 12,250).....................................................2

28 C.F.R. 41.51(d) ......................................................................................... 9, 11-12

42 C.F.R. 441.301(c)................................................................................................24

42 C.F.R. 483.440(c)(1)...........................................................................................24

- iv -

REGULATIONS (continued):

PAGE

Final Rule, Nondiscrimination on the Basis of Disability in State and Local Government Services, 56 Fed. Reg. 35,694 (July 26, 1991) ........12, 17

LEGISLATIVE HISTORY:

S. Rep. No. 116, 101st Cong., 1st Sess. (1989) .........................................................9

H.R. Rep. No. 485, 101st Cong., 2d Sess. (1990), (II) .............................................................................................................. 9-10 (III)............................................................................................................. 9-11 (IV) ................................................................................................................. 10

117 Cong. Rec. 45,974 (1971) ...................................................................................9

118 Cong. Rec. 525-526 (1972).................................................................................9

MISCELLANEOUS:

University of Minnesota, Research & Training Center on Community Living, Institute on Community Integration (UCEDD), Residential Services for Persons with Intellectual and Developmental Disabilities: Status and Trends Through Fiscal Year 2011, Table 3.1, http://rtc.umn.edu/risp/docs/risp2011.pdf. .............................................. 18-19

- v -

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________
No. 14-1082
ROSEMARY SCIARRILLO, et al.,
Plaintiffs-Appellants
v.
CHRISTOPHER CHRISTIE, et al.,
Defendants-Appellees _________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY _________________
BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE DEFENDANTS-APPELLEES AND URGING AFFIRMANCE IN PART _________________
INTEREST OF THE UNITED STATES
This case raises an important issue regarding the interpretation and
application of Title II of the Americans with Disabilities Act, 42 U.S.C. 12131 et
seq. (Title II or the ADA), Section 504 of the Rehabilitation Act of 1973, 29
U.S.C. 794 (Section 504), and the Supreme Court’s decision in Olmstead v. L.C.,
527 U.S. 581 (1999), which interpreted the United States Department of Justice’s
regulations promulgated under Title II of the ADA. The Department of Justice has

- 2 -
substantial enforcement responsibilities under Section 504 and Title II of the ADA. The Department of Justice issued regulations implementing Section 504 and Title II, is authorized to bring civil actions to enforce these statutes, 29 U.S.C. 794, 794a; 42 U.S.C. 12133-12134; 28 C.F.R. Pts. 35, 41, and coordinates the implementation and enforcement of Section 504 by all federal agencies, 29 U.S.C. 794a; 28 C.F.R. Pt. 41 & App. A (Exec. Order 12,250), including the United States Department of Health and Human Services, whose Medicaid Act funds are used for individuals both in institutions and in community placements.
The appellants and their amici argue that the appellants have a right under Olmstead to remain in a state institution of their choosing. Opening Br. 8-18; Amicus Br. 4, 7-11, 21-22.1 In several recent cases, the United States, as a party or amicus curiae, argued that Olmstead held only that unnecessary institutionalization and segregation violates Title II, and that the integration mandates of Title II, Section 504, and the implementing regulations do not create a right to an institutional placement. See, e.g., Illinois League of Advocates for the Developmentally Disabled v. Quinn, 13-CV-1300 (N.D. Ill.); United States v. Virginia, 12-CV-59 (E.D. Va.); Carey v. Christie, 12-CV-2522 (D.N.J.); Disability
1 “Opening Br. __” refers to pages of the plaintiffs-appellants’ opening brief filed in this Court on March 18, 2014. “Amicus Br. __” refers to pages of the amicus curiae brief filed by VOR, Inc. (formerly Voice of the Retarded, Inc.) in this Court on March 25, 2014.

- 3 -
Rights N.J., Inc. v. Velez, 05-CV-4723 (D.N.J.). As the Department enforcing Title II and Section 504 and issuing and overseeing the implementing regulations, the United States has a strong interest in the proper interpretation of these statutes and their integration mandates, as interpreted in Olmstead.
STATEMENT OF THE ISSUE The United States’ brief is limited to the following issue: Whether the integration mandate of Section 504, Title II, and their implementing regulations, as interpreted in Olmstead, provide a right to receive services in an institution.2
STATEMENT OF THE CASE 1. Facts And Procedural History
The appellants (plaintiffs in the district court) are residents of the Woodbridge Developmental Center and the North Jersey Developmental Center. J.A. 8 (Dec. 13, 2013, Opinion); J.A. 39-45, 50 (Complaint).3 These are intermediate care facilities for individuals with intellectual disabilities (ICF/IID), operated by the State of New Jersey, that provide housing, habilitation, behavioral,
2 The United States takes no position on any other issue presented in this appeal.
3 “J.A. __” refers to pages of the consecutively paginated Joint Appendix and Addendum filed in this Court on March 18, 2014. “R. __ at __” refers to pages of documents filed in the district court, identified by docket number.

- 4 and medical services and support for people with intellectual and developmental disabilities. J.A. 8 (Dec. 13, 2013, Opinion); J.A. 47-48, 50-51 (Complaint). New Jersey decided to close these two institutions and offered the appellants the option of a community placement or placement at another state institution. J.A. 8-9 (Dec. 13, 2013, Opinion).
In their complaint, the appellants alleged that, once New Jersey decided to close these institutions, treating professionals in the institutions have concluded that each of the appellants would be best served in an alternative placement. J.A. 58. The appellants claimed that the assessments supporting alternative placements were politically-motivated and were based on the State’s desire to close the two institutions rather than the plaintiffs’ actual medical needs, and that the treating medical staff fabricated fitness for community placement. J.A. 58-59, 64-65, 6869 (Complaint). The appellants asserted that they have not consented to be transferred to community placements because they have not had the benefit of their treating professionals’ independent judgment as to what placement would be most appropriate for each plaintiff. J.A. 66-69 (Complaint). The appellants contend that they would be “most appropriately” served at the institutions in which they currently reside (J.A. 65-66 (Complaint)), and also question the basis on which New Jersey decided to close these two institutions (J.A. 67-68, 71-72 (Complaint)). The appellants acknowledge, however, that the State has offered them placements

- 5 in other institutions. J.A. 66, 70 (Complaint); see also J.A. 9 (Dec. 13, 2013, Opinion); but see Opening Br. 7 n.1.
On June 5, 2013, the appellants filed a putative class action on behalf of themselves and all other residents of these two institutions, asserting violations of Title II, Section 504, the Medicaid Act, and the Due Process Clause of the Fourteenth Amendment. J.A. 8-10 (Dec. 13, 2013, Opinion); J.A. 48, 75-87 (Complaint).
On September 9, 2013, the state appellees (defendants in the district court) moved to dismiss the complaint. R. 4. They argued, in pertinent part, that the appellants’ Title II and Section 504 claims should be dismissed because these statutes require that “States * * * serve individuals with disabilities in the leastrestrictive environment appropriate to their needs,” and “do not compel a State to serve individuals in their chosen institutions.” R. 4-1 at 8 (Motion to Dismiss). The state appellees argued that the appellants had failed to state a claim under Title II or Section 504 because while both statutes “forbid ‘unjustified institutionalization,’” neither statute establishes that transferring an individual out of a particular institution is discrimination. R. 4-1 at 13 (Motion to Dismiss) (quoting Olmstead v. L.C., 527 U.S. 581, 600-601 (1999)).
On September 13, 2013, the Department of Justice filed a statement of interest in support of dismissal of the appellants’ Title II and Section 504 claims.

- 6 R. 7. The Department of Justice argued that the appellants do not have a right under Section 504, Title II, or their implementing regulations to prevent their transfer and thereby to remain in a particular institution. R. 7 at 5, 7-10 (Statement of Interest). The Department of Justice argued that there is no right under Section 504 or Title II to placement in a particular institution. R. 7 at 5, 8-9 (Statement of Interest). 2. The District Court’s Decision
On December 13, 2013, the district court granted the state appellees’ motion to dismiss. J.A. 6-7 (December 13, 2013, Order); J.A. 8-22 (Dec. 13, 2013, Opinion). The district court rejected appellants’ argument that, under Olmstead, providing a community placement can be a form of disability-based discrimination prohibited by Section 504 and Title II. J.A. 14 (Dec. 13, 2013, Opinion). To the contrary, the district court found that Olmstead established only that it is a violation of Section 504, Title II, and their implementing regulations “‘to force developmentally disabled patients to reside in institutions when they are able and willing to live’ in more integrated community settings.” J.A. 13 (Dec. 13, 2013, Opinion) (quoting this Court’s decision in Benjamin v. Department of Pub. Welfare, 701 F.3d 938, 942 (3d Cir. 2012)). Accordingly, the district court held that the appellants’ relocation out of the two institutions slated for closure was not

- 7 “discrimination on the basis of disability in violation of federal law” and dismissed the appellants’ Title II and Section 504 claims. J.A. 15 (Dec. 13, 2013, Opinion).
SUMMARY OF THE ARGUMENT The appellants do not have a right enforceable under Title II, Section 504, or Olmstead v. L.C., 527 U.S. 581 (1999), to remain in institutions that the State has determined should be closed. The appellants argue that Olmstead requires the State to permit them to remain in these two institutions unless they consent to transfer, and therefore transferring them against their preference out of the two state institutions slated for closure is actionable discrimination under Title II and Section 504. The appellants and their amici misconstrue the integration mandates of Title II, Section 504, and their implementing regulations, distort the holding of Olmstead, and attempt to define a new form of discrimination not contemplated by these statutes. The district court properly rejected these arguments, and this Court should affirm dismissal of the appellants’ Title II and Section 504 claims.

- 8 -
ARGUMENT THE DISTRICT COURT CORRECTLY HELD THAT THERE IS NO ENFORCEABLE RIGHT TO REMAIN IN AN INSTITUTION UNDER
TITLE II, SECTION 504, OR OLMSTEAD A. Congress Enacted Section 504 And The ADA To Eliminate Discrimination
Against Individuals With Disabilities, Including Isolation, Segregation, And Unnecessary Institutionalization Section 504 and the ADA redress discrimination against individuals with disabilities, which includes isolation, segregation, and unnecessary institutionalization. Nothing in the statutory text, legislative histories, or implementing regulations supports the appellants’ argument that transferring individuals from a facility slated for closure is actionable discrimination under Section 504, Title II, or their implementing regulations, as interpreted in Olmstead v. L.C., 527 U.S. 581 (1999). 1. Section 504 “was the first broad federal statute aimed at eradicating discrimination against individuals with disabilities.” Helen L. v. DiDario, 46 F.3d 325, 330 (3d Cir.), cert. denied, 516 U.S. 813 (1995). Section 504 provides that “[n]o otherwise qualified individual with a disability * * * shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. 794(a).

- 9 With this law, Congress sought to rectify “the country’s ‘shameful oversights,’ which caused the handicapped to live among society ‘shunted aside, hidden, and ignored’” and to be “invisibl[e] * * * in America.” Alexander v. Choate, 469 U.S. 287, 295-296 (1985) (quoting 117 Cong. Rec. 45,974 (1971); 118 Cong. Rec. 525-526 (1972)). Accordingly, as part of its anti-discrimination precepts, Section 504 regulations have an “integration mandate” that requires recipients of federal funds to “administer programs and activities in the most integrated setting appropriate to the needs of qualified handicapped persons.” 28 C.F.R. 41.51(d). In this manner, “Section 504 of the Rehabilitation Act has served not only to open up public services and programs to people with disabilities but has also been used to end segregation.” H.R. Rep. No. 485(III), 101st Cong., 2d Sess. 49 (1990) (House Report (Part III)). 2. In the late 1980s, Congress acknowledged that “then current laws were ‘inadequate’ to combat ‘the pervasive problems of discrimination that people with disabilities are facing.’” Helen L., 46 F.3d at 330 (quoting S. Rep. No. 116, 101st Cong., 1st Sess. 18 (1989) (Senate Report)); H.R. Rep. No. 485(II), 101st Cong., 2d Sess. 47 (1990) (House Report (Part II)). Some of the forms of discrimination that concerned Congress were segregation of individuals with disabilities in institutions and their concomitant exclusion from the community and society at large. Senate Report 6 (“One of the most debilitating forms of discrimination is

- 10 segregation imposed by others.”); House Report (Part II) 29 (“Discrimination against people with disabilities includes segregation[] [and] exclusion.”). “Both branches of Congress concluded: ‘[T]here is a compelling need to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities and for the integration of persons with disabilities into the economic and social mainstream of American life.’” Helen L., 46 F.3d at 331 (quoting Senate Report 20; House Report (Part II) 50); see also H.R. Rep. No. 485(IV), 101st Cong., 2d Sess. 23 (1990).
To this end, Congress enacted the ADA in 1990. “The ADA is a comprehensive piece of civil rights legislation which promises a new future: a future of inclusion and integration, and the end of exclusion and segregation.” House Report (Part III) 26. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. 12132. Title II “incorporates the ‘non-discrimination principles’ of [S]ection 504 * * * and extends them to state and local governments.” Helen L., 46 F.3d at 331 (quoting Easley v. Snider, 36 F.3d 297, 300 (3d Cir. 1994)). The ADA specifies that discrimination against individuals with disabilities includes “segregation” and “institutionalization.” 42 U.S.C. 12101(a)(3) and (5).

- 11 As part of the ADA, Congress set forth findings that indicate the legislation was intended to, among other things, remedy the unnecessary isolation and segregation of persons with disabilities, including institutionalization. Congress specifically found that “historically, society has tended to isolate and segregate individuals with disabilities, and * * * such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem”; that “discrimination against individuals with disabilities persists in such critical areas as * * * institutionalization”; and that “the Nation’s proper goals regarding individuals with disabilities are to assure * * * full participation[] [and] independent living.” 42 U.S.C. 12101(a)(2)-(3) and (7); see also House Report (Part III) 49-50 (“The purpose of [T]itle II is to continue to break down barriers to the integrated participation of people with disabilities in all aspects of community life.”). These findings reveal Congress’s judgment that the impermissible discrimination the ADA was intended to redress includes unnecessary institutionalization. 3. The ADA directs the Department of Justice to promulgate implementing regulations. 42 U.S.C. 12134. Congress specified that such regulations “shall be consistent” with the ADA and with the “coordination regulations” issued under Section 504. 42 U.S.C. 12134(b). The specified “coordination regulations” include Section 504’s integration mandate regulation, 28 C.F.R. 41.51(d).

- 12 Therefore, in enacting the ADA, Congress specifically ratified the integration mandate previously promulgated under Section 504.
Consistent with congressional directive, the Department of Justice promulgated regulations that include an integration mandate identical to that found in Section 504’s regulations: “A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities.” 28 C.F.R. 35.130(d); see also 28 C.F.R. 41.51(d). The preamble to the Department’s Title II regulations explains that “[i]ntegration is fundamental to the purposes of the [ADA].” 28 C.F.R. Pt. 35, App. B at 682; Final Rule, Nondiscrimination on the Basis of Disability in State and Local Government Services, 56 Fed. Reg. 35,694, 35,703 (July 26, 1991). The Department further explained that the “most integrated setting appropriate to the needs of qualified individuals with disabilities” means “a setting that enables individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” 28 C.F.R. Pt. 35, App. B at 685; 56 Fed. Reg. at 35,705.
The statutory language, purpose, history, and implementing regulations reveal that Section 504 and the ADA seek to integrate individuals with disabilities into the social mainstream. These authorities do not create a right to institutional placement.

- 13 -
B. Olmstead Held Only That Unnecessary Segregation Of Individuals With Disabilities In Institutions Is Discrimination Under Title II And Its Implementing Regulations The appellants and their amici incorrectly claim that because the appellants
do not consent to their transfer, they have a right under Olmstead to remain in a state institution slated for closure. Opening Br. 12-13; Amicus Br. 6-11. This argument misstates the issue presented in Olmstead and the Court’s holding.
In the Olmstead plurality decision, the Supreme Court interpreted Title II’s anti-discrimination provision and its integration mandate. After examining congressional findings, statutory language, implementing regulations, and the views of the government, the majority of the Court held that “[u]njustified isolation * * * is properly regarded as discrimination based on disability” under Title II of the ADA. Olmstead, 527 U.S. at 597. Therefore, Title II “require[s] placement of persons with mental disabilities in community settings rather than in institutions * * * when the State’s treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated.” Id. at 587.
Because the two Olmstead plaintiffs were qualified for and desired a community placement, the Court did not decide any issue related to individuals with disabilities who prefer to receive services only in an institution. See 527 U.S.

- 14 at 593, 602-603. In fact, the majority of the Court specifically noted that there was “no genuine dispute” that the two plaintiffs were qualified for and desired a community placement. Id. at 602-603. Thus, the only issue the majority of the Court decided in Olmstead was whether the State had impermissibly discriminated against the two plaintiffs in that case by unnecessarily continuing to keep them in an institution.4
In the course of the opinion, the majority held that, consistent with the ADA and its regulations, a State must provide services in the most integrated setting appropriate to a person’s needs. Olmstead, 527 U.S. at 587, 597. The Court also explained that there was no “federal requirement that community-based treatment be imposed on patients who do not desire it.” Id. at 602 (citing 42 U.S.C. 12132; 28 C.F.R. 35.130(d) and (e)(1)). This observation that federal law does not require a community placement when it is not desired does not, however, create a right for any individuals with a disability to remain in an institution or to choose a particular institution in which they will receive services. This is evident from the majority’s statement that “[w]e do not in this opinion hold that the ADA imposes on the States a ‘standard of care’ for whatever medical services they render, or that the
4 The Olmstead decision also discussed a State’s fundamental alteration defense; however, this portion of the opinion was joined by only four Justices. 527 U.S. at 587.

- 15 ADA requires States to provide a certain level of benefits to individuals with disabilities.” Id. at 603 n.14 (citation and internal quotation marks omitted).
The appellants’ and their amici’s claim that Olmstead confers a right to institutional services (see Opening Br. 8-13; Amicus Br. 7-11) is in direct conflict with this statement from the Olmstead majority, see 527 U.S. at 603 n.14. As the text of the majority’s decision makes clear, States are not required to offer a certain level of benefits or type of care. Rather, the Olmstead majority held “that States must adhere to the ADA’s nondiscrimination requirement with regard to the services they in fact provide.” Ibid.
In Olmstead, the Supreme Court decided that unnecessary segregation in an institution was a form of discrimination on the basis of disability. 527 U.S. at 597 (“Unjustified isolation, we hold, is properly regarded as discrimination based on disability.”); see also id. at 600 (“Congress explicitly identified unjustified ‘segregation’ of persons with disabilities as a ‘for[m] of discrimination.’”) (brackets in original; citation omitted). Olmstead did not review the appropriateness of the medical care either of the two plaintiffs was receiving, nor did it create a right for individuals to use the ADA to challenge the care they are receiving by alleging that the treatment is discrimination on the basis of disability. See id. at 603 n.14. The fact that Title II and Olmstead require a State to place people in community-based settings when the individuals do not oppose and are

- 16 appropriately suited for such placements does not establish, as a matter of antidiscrimination law, that there is a legally enforceable prohibition on such placements absent consent under the nondiscrimination language of Section 504 or the ADA. C. The Department Of Justice’s Views On The Proper Interpretation Of Title II
Warrant Respect And Substantial Deference The Supreme Court recognized in Olmstead that as the federal agency charged with issuing Title II’s implementing regulations, the Department of Justice’s views on the proper interpretation of Title II “warrant respect.” 527 U.S. at 597-598; see also Helen L., 46 F.3d at 331-332 (noting that the Department of Justice’s regulations, interpretation of Title II, and construction of the statutory scheme should be given “substantial deference” and “[c]onsiderable weight”) (citation omitted). The Department of Justice has consistently taken the position that the discrimination Title II prohibits includes unnecessary institutionalization of individuals with disabilities. Olmstead, 527 U.S. at 597-598. The Department of Justice’s consistent position has been that nothing in the ADA, its implementing regulations, or the Olmstead decision supports the appellants’ charge that transferring individuals with disabilities to an integrated setting, or if they prefer, another institution, constitutes discrimination. To be sure, the ADA provides that it shall not “be construed to require an individual with a disability to accept an accommodation, aid, service, opportunity,

- 17 or benefit which such individual chooses not to accept.” 42 U.S.C. 12201(d); see also 28 C.F.R. Pt. 35, App. B at 685 (providing that “persons with disabilities must be provided the option of declining to accept a particular accommodation”). The Department of Justice has explained that this provision and corresponding regulation were added to make clear that the ADA does not require individuals with disabilities to accept special accommodations and services aimed at individuals with disabilities where those accommodations or services actually may segregate those individuals. 56 Fed. Reg. at 35,705. Instead, those individuals may choose to participate in the regular services already offered to individuals without disabilities. Ibid. For example, “a blind individual may choose to decline to participate in a special museum tour that allows persons to touch sculptures in an exhibit and instead tour the exhibits at his or her own pace with the museum’s recorded tour.” Ibid. The right this language establishes to refuse an offered modification or accommodation does not create a right to institutionalized care. As explained previously, the ADA prohibits discrimination, one form of which is unnecessary isolation, segregation, and institutionalization. See pp. 12-15, 17-18, supra. It would be incongruous to interpret statutory language and an implementing regulation, as the appellants do here, to defeat that Congressional goal.

- 18 -
D. The Appellants May Not Contest Their Transfer From Institutions The State Has Selected For Closure Under Title II, Section 504, Or Olmstead Nothing in Title II or Olmstead forbids a State from closing an institution.
See Baccus v. Parrish, 45 F.3d 958, 961 (5th Cir. 1995) (rejecting plaintiffs’ challenge to a state task force’s recommendation to close two schools for people with intellectual disabilities because “the state reserves the right to unilaterally close a state school for administrative or financial reasons, even if it means that certain residents will have to relocate as a result”); Rolland v. Patrick, 562 F. Supp. 2d 176, 185 (D. Mass. 2008), aff’d, 592 F.3d 242 (1st Cir. 2010); Lelsz v. Kavanagh, 783 F. Supp. 286, 298 (N.D. Tex. 1991), aff’d, 983 F.2d 1061 (5th Cir.), cert. denied, 510 U.S. 906 (1993); cf. Ricci v. Patrick, 544 F.3d 8, 16-20 (1st Cir. 2008), cert. denied, 556 U.S. 1166 (2009) (reversing the district court’s reopening of the case because the Commonwealth had fully complied with the consent decree in closing a state-run institution and transferring its residents to other facilities). There is no legal requirement under Section 504 or the ADA that any State create or maintain such an institution.5
5 As of 2011, Alaska, Michigan, and Oregon had no institutions for individuals with developmental disabilities, and eight additional States had no individuals in large, state-operated institutions like the Woodbridge Developmental Center and the North Jersey Developmental Center. See University of Minnesota, Research & Training Center on Community Living, Institute on Community Integration (UCEDD), Residential Services for Persons with Intellectual and
(continued…)

- 19 -
Any alleged right to remain in a specific state institution would directly contradict the statutory language of Section 504 and the ADA, their legislative histories, and implementing regulations, all of which focus on deinstitutionalization as a part of eliminating discrimination against individuals with disabilities. See pp. 8-12, supra. Consistent with this, Olmstead’s only holding was that “unjustified isolation” – i.e., continued institutionalization when a community placement is appropriate, not objected to, and can be reasonably accommodated – constitutes impermissible discrimination under Title II. Id. at 587, 597. There is no basis in the language or purpose of the ADA, Section 504, or Olmstead to support a claim that placing an individual with disabilities in an integrated setting is similarly discriminatory.
The appellants therefore do not have a right under Title II, Section 504, or Olmstead to remain in institutions that the State has determined should be closed. This is precisely the holding of every identifiable decision that has directly examined this issue. See, e.g., Illinois League of Advocates for Developmentally Disabled v. Quinn, No. 13-C-1300, 2013 WL 3168758, at *5 (N.D. Ill. June 20, 2013) (“Unjustified isolation constitutes discrimination under the ADA, but * * * it does not follow from Olmstead that the converse is true.”) (citation and internal
(…continued) Developmental Disabilities: Status and Trends Through Fiscal Year 2011, Table 3.1, http://rtc.umn.edu/risp/docs/risp2011.pdf.

- 20 quotation marks omitted); Richard C. v. Houstoun, 196 F.R.D. 288, 292 (W.D. Pa. 1999) (“[I]t does not logically follow that institutionalization is required if any one of the three Olmstead criteria is not met.”).
The authorities the appellants and their amici cite do not hold to the contrary. See Opening Br. 13-15; Amicus Br. 11-15. The cases on which they rely primarily are decisions deciding motions to intervene that obliquely reference Olmstead and address other legal issues. See, e.g., Ligas v. Maram, 478 F.3d 771 (7th Cir. 2007). Indeed, in Ligas, the Seventh Circuit recognized that “Olmstead established that it is a violation of the ADA to force developmentally disabled patients to reside in institutionalized settings when they are able to live more fully integrated into society at large and do not oppose doing so.” Id. at 773. Not a single decision cited in the appellants’ or amici’s briefs directly supports the proposition that Olmstead creates a right to continued institutionalization.
Nor does this Court’s decision in Benjamin v. Department of Public Welfare, 701 F.3d 938, 942 (3d Cir. 2012), support the appellants’ Title II or Section 504 claims. In Benjamin, individuals who lived in an institution who were eligible for and desired community placements filed a class action under Olmstead to force the State to establish a plan to transfer them into the community. 701 F.3d at 941. After settlement was entered, this Court held that the district court should have allowed the proposed intervenors, a group of residents who opposed community

- 21 placements for themselves, to intervene at the remedy stage in order to challenge the settlement agreement and class certification. Id. at 941-942, 947-948. This Court found that the settlement agreement between the class plaintiffs (the residents who wanted community placements) and Pennsylvania could affect the interests of the proposed intervenors (the residents who did not want community placements). Id. at 952.
Benjamin has little impact on the present case. Benjamin addressed only a motion to intervene under Federal Rule of Civil Procedure 24(a)(2); it did not address whether Section 504, the ADA, or their implementing regulations, as interpreted in Olmstead, create a right to institutionalization. See 701 F.3d at 957. The appellants here acknowledge that, in Benjamin, this Court did not reach the question whether the proposed intervenors opposing community placement had a legally enforceable right to remain in the institution where they resided. Opening Br. 13-14.
The appellants, however, incorrectly argue that this Court’s introductory comment in Benjamin that “Olmstead and the regulations make clear that ‘community based treatment [cannot] be imposed on patients who do not desire it,’” 701 F.3d at 942 – which the appellants acknowledge is merely dictum – somehow constitutes an “acknowledge[ment] that the residents and guardians may have ADA or other rights” to remain in an institution (Opening Br. 13-14). The

- 22 appellants ascribe far too much weight to this Court’s passing remark and also overlook the fact that Olmstead stated only that there is no “federal requirement that community-based treatment be imposed on patients who do not desire it.” 527 U.S. at 602. The fact that there is no federal requirement for community placements for individuals who do not consent to such a placement does not give rise to a claim for discrimination when a State chooses to close an institution and transfer individuals with disabilities from an institutional setting. See pp. 15-16, supra. Neither Olmstead nor Benjamin holds that the ADA creates an independent right for an individual with disabilities to remain in an institution, or that transferring an individual from an institution slated for closure violates Section 504 or the ADA.
What is more, the appellants in this case stand in significantly different shoes from those of the proposed intervenors in Benjamin and other cited cases. The factual background and issue presented in this case are distinct from those presented in Benjamin. Here, the appellants are not opposing or attempting to intervene in a class action by institutionalized individuals who consent to and who can be appropriately and reasonably accommodated in community placements. Therefore, unlike in Benjamin, in this case, there is no need to evaluate the effects on the appellants here of a settlement agreement or future relief to a class.

- 23 -
In this case, the State has decided to close two institutions and has offered
appellants the option of moving to either a community placement or, while not
required under Section 504 or Title II, another institution. J.A. 9 (Dec. 13, 2013,
Opinion); J.A. 66, 70 (Complaint); but see Opening Br. 7 n.1. This Court’s
concern in Benjamin about the possibility of the proposed intervenors being placed
into the community without their consent is simply not presented in this case. See
701 F.3d at 952, 954-956. Although not required by Section 504 or Title II, there
is no current or future impediment to the appellants in this case receiving services
in a state institution, as they request; indeed, the appellants admit that the State has
offered them an alternate institutional placement. J.A. 66, 70 (Complaint); see also
J.A. 9 (Dec. 13, 2013, Opinion); but see Opening Br. 7 n.1. The appellants do not,
however, have the right they seek under Section 504, Title II, or Olmstead to select
which particular institution that will be.6 See Baccus, 45 F.3d at 961; Rolland, 562
6 The United States does not take a position on the appellants’ Medicaid Act claims. The United States notes, however, that the administrative appeals process available within the State provides an avenue for the appellants to raise their concerns with the State’s assessments and placement decisions. See N.J. Admin. Code 10:48-1.1 et seq. (2014). In addition, the Medicaid Act places certain obligations on States. For example, to be eligible for the waiver program for community-based services, a State must take necessary safeguards to protect the health and welfare of individuals receiving waiver services, 42 U.S.C. 1396n(c)(2)(A), and must provide evaluations of the level of need, 42 U.S.C. 1396n(c)(2)(B). Individuals must be given the choice of feasible alternatives available under the waiver program, or institutional level services otherwise available, which are not required to be provided in a particular facility. 42 U.S.C.
(continued…)

- 24 -
F. Supp. 2d at 185; Lelsz, 783 F. Supp. at 298; cf. Ricci, 544 F.3d at 16-20.
Indeed, the appellants cite nothing to support that argument.
CONCLUSION
For the reasons stated herein, this Court should affirm dismissal of the
appellants’ Title II and Section 504 claims.
Respectfully submitted,
JOCELYN SAMUELS Acting Assistant Attorney General
s/ Erin Aslan MARK L. GROSS ERIN ASLAN Attorneys U.S. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044-4403 (202) 305-2773
(…continued) 1396n(c)(2)(C). Implementing regulations require that community-based services be provided in accordance with a person-centered plan of care developed with the individual and the individual’s representative(s) based on an assessment of functional needs and consideration of personal preferences. 42 C.F.R. 441.301(c). For individuals in the institutional placements, there will be institutionallydeveloped evaluations, assessments and individual program plans (identifying needs and designing programs to address those needs) which can be a resource in developing or reviewing these person-centered care plans. 42 C.F.R. 483.440(c)(1) and (3). All of these provisions work to the same goals; they provide protections to guard against medically-improper placements.

CERTIFICATE OF COMPLIANCE I hereby certify pursuant to Federal Rule of Appellate Procedure 32(a)(7)(C), that the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE DEFENDANTS-APPELLEES AND URGING AFFIRMANCE IN PART complies with Federal Rule of Appellate Procedure 32(a)(7)(B)(i) because it contains 5379 words, and it complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been prepared in proportionally-spaced typeface using Word 2007, 14-point Times New Roman font. I also certify that the paper copies of this brief tendered to the Clerk of the Court are identical to the brief electronically-filed via the CM/ECF system. I further certify that the electronically-filed brief was scanned using Trend Micro Office Scan Edition (8.0) and is virus-free.

Date: May 12, 2014

s/ Erin Aslan ERIN ASLAN Attorney

CERTIFICATE OF BAR MEMBERSHIP
Pursuant to Local Rules 28.3(d) and 46.1(a), I hereby certify that I am
exempt from the Third Circuit’s bar admission requirement as counsel to the
United States.
s/ Mark L. Gross MARK L. GROSS Attorney

Date: May 12, 2014

s/ Erin Aslan
ERIN ASLAN Attorney

CERTIFICATE OF SERVICE I hereby certify that on May 12, 2014, I electronically filed the foregoing BRIEF FOR THE UNITED STATES AS AMICUS CURIAE SUPPORTING THE DEFENDANTS-APPELLEES AND URGING AFFIRMANCE IN PART with the Clerk of the Court for the United States Court of Appeals for the Third Circuit by using the appellate CM/ECF system, and that seven (7) paper copies, identical to the electronically-filed brief were sent to the Clerk of the Court by First Class U.S. mail. I further certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.
s/ Erin Aslan ERIN ASLAN Attorney

 
 Case: 14-1082 Document: 003111798041 Page: 1 Date Filed: 11/19/2014
UNITED STATES COURT OF APPEALS 
 FOR THE THIRD CIRCUIT

________________
No. 14-1082 ________________
ROSEMARY SCIARRILLO, by and through her guardians, 
 Joanne St. Amand and Anthony Sciarrillo; JOYCE BANOS, by and through
 her guardian, Peter Banos; CHARLES DAVID CHRISTENSEN, and through his 
 guardian, Daniel Christensen; ARLEEN BRAUSE, by and through her guardians, Joseph 
 Fass and Harriet Fass; KENNETH COOPER, by and though his guardian, Minnie
 Cooper; VINCENT GALLUCCIO; by and through his guardian, Domenica Galluccio; 
 RODNEY HAMMOND, by and through his guardian and his brother, Carrie Hammond 
 and Walter Hammond; SHARON KNAPP; by and through her guardians, Barry Knapp
 and Maria Knapp; RICHARD SARAO; by and through his guardian, Mary Tritt;
 CHERYL GORDON; by and through her brother, Joseph Gordon; PETER CANALE,
 by and through his guardians, Steven Canale and Maria Canale; LINDA GRAVES;
 by and through her parents, Shirley and Billie Graves; DIANE O'BRIEN, by and through
 her guardian, Fred O'Brien; THOMAS MARINELLO, by and through his guardians, 
 Jean Marinello and Jody Sorge; KERR MITCHELL, by and through his guardian, 
 Juana Mitchell; EUGENE CARR, by and through his guardian Marylyn Carr;
 LEAH WRIGHT, by and throigh her guardian, Elizabeth Wright; JACQUELINE 
 FRIEDMAN, by and through her guardians, Sam Friedman and Gail Friedman; PAUL 
 DITTAMO, by and through his mother, Wendy Dittamo; CLAYTON DAVIS, by and 
 through his guardians, Rose Seyler and Dorothy Davis; STEPHEN SCOTT DYER, by
 and through his guardian, Peter Dyer; SUSAN GRIFFIN; by and through her guardian, 
 Barbara Columbo; EUGENE KESSLER; by and through his guardian, Frances 
 Finkelstein; PHILIP CONKLING, by and through his guardian, Caroline Conkling;
 RALPH GRZYMKOWSKI, by and through his guardians, Dana and Mirek
 Grzymkowski; MARY ELLEN SCESA, by and through her guardians, Kathleen and 
 Louis Scesa; ALICE TUCKER, by and through her guardian Bertha Westbrock; 
 STEPHANIE ROOTS, by and through her guardian, Marie Reid; KESHA SMITH, by
 and through her guardian, Deborah Smith; ANDREW SEKELA, by and through his 
 guardian, Winifred Sekela; PAUL VACCA, by and through his guardians, Donald and 
 Theresa Vacca; RALPH VERLEUR, by and through his guardian, Else Verleur,

Appellants v.
GOVERNOR OF NEW JERSEY; NEW JERSEY DEPARTMENT OF HUMAN

Case: 14-1082 Document: 003111798041 Page: 2 Date Filed: 11/19/2014

SERVICES; JENNIFER VELEZ, as Commissioner of the New Jersey Department of 
 Human Services; NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION 

OF DEVELOPMENTAL DISABILITIES; DAWN APGAR, as Deputy
 Commissioner/Acting Assistant Commissioner of New Jersey Department of Human 
 Services Division of Developmental Disabilities; NORTH JERSEY EVELOPMENTAL 

CENTER; WOODBRIDGE DEVELOPMENTAL CENTER

(D.N.J. No. 13-cv-03478)
Present: FISHER, JORDAN and HARDIMAN, Circuit Judges
_________________________________ORDER________________________________ At oral argument on September 10, 2014, counsel for Plaintiffs confirmed that
North Jersey Developmental Center, one of the two facilities for the developmentally disabled at issue in this appeal, closed before argument. On November 7, 2014, the parties informed the Court in a joint submission that all Plaintiffs who resided at the other facility, Woodbridge Developmental Center, have been transferred to other locations. Because this case concerned a challenge to the planned transfers of Plaintiffs out of these two facilities, it is now moot. See, e.g., Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013) (“A case becomes moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—‘when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’” (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam))). We will dismiss this appeal accordingly.
By the Court,

Dated: November 19, 2014 Tmm/cc: all counsel of record

s/ Thomas M. Hardiman Circuit Judge

A True Copy
Marcia M. Waldron, Clerk Certified order issued in lieu of mandate.

2


 
 U.S. District Court District of New Jersey [LIVE] (Newark) CIVIL DOCKET FOR CASE #: 2:13-cv-03478-SRC-CLW

SCIARRILLO et al v. CHRISTIE et al Assigned to: Judge Stanley R. Chesler Referred to: Magistrate Judge Cathy L. Waldor Cause: 42:12101 Americans with Disabilities Act

Date Filed: 06/05/2013 Date Terminated: 12/13/2013 Jury Demand: Plaintiff Nature of Suit: 446 Civil Rights: Americans with Disabilities - Other Jurisdiction: Federal Question

Plaintiff
ROSEMARY SCIARRILLO by and through her guardians, Joanne St. Amand and Anthony Sciarrillo

represented by THOMAS A. ARCHER METTE EVANS & WOODSIDE 3401 NORTH FRONT STREET P.O. BOX 5950 HARRISBURG, PA 17110 717-232-5000 Email: taarcher@mette.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
JOYCE BANOS by and through her guardian, Peter Banos

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ROBERT JOHN BARRETT by and through his guardians, Robert and Carol Barrett

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
CHARLES DAVID CHRISTENSEN and through his guardian, Daniel Christensen

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
ARLEEN BRAUSE by and through her guardians, Joseph Fass and Harriet Fass

represented by THOMAS A. ARCHER (See above for address)

Plaintiff KENNETH COOPER by and through his guardian, Minnie Cooper
Plaintiff VINCENT GALLUCCIO by and through his guardian, Domenica Galluccio
Plaintiff RODNEY HAMMOND by and through his guardian and his brother, Carrie Hammond and Walter Hammond
Plaintiff SHARON KNAPP by and through her guardians, Barry Knapp and Maria Knapp
Plaintiff RICHARD SARAO by and through his guardian, Mary Tritt
Plaintiff CHERYL GORDON by and through her brother, Joseph Gordon,
Plaintiff PETER CANALE by and through his guardians, Steven Canale and Maria Canale

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff LINDA GRAVES by and through her parents, Shirley and Billie Graves
Plaintiff DIANE OBRIEN by and through her guardian, Fred OBrien
Plaintiff THOMAS MARINELLO by and through his guardians, Jean Marinello and Jody Sorge
Plaintiff MAUREEN DORAN by and through her guardians, Kathleen DeCicco and Lori Centrella
Plaintiff KERR MITCHELL by and through his guardian, Juana Mitchell
Plaintiff EUGENE CARR by and through his guardian Marylyn Carr
Plaintiff LEAH WRIGHT by and through her guardian, Elizabeth Wright
Plaintiff CATHERINE OBRIEN by and through her guardians,

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address)

Donald and Virginia OBrien and Susan Mason TERMINATED: 10/07/2013
Plaintiff JACQUELINE FRIEDMAN by and through her guardians, Sam Friedman and Gail Friedman
Plaintiff PAUL DITTAMO by and through his mother, Wendy Dittamo
Plaintiff CLAYTON DAVIS by and through his guardians, Rose Seyler and Dorothy Davis
Plaintiff STEPHEN SCOTT DYER by and through his guardian, Peter Dyer
Plaintiff SUSAN GRIFFIN by and through her guardian, Barbara Columbo,
Plaintiff EUGENE KESSLER by and through his guardian, Frances Finkelstein
Plaintiff PHILIP CONKLING by and through his guardian, Caroline Conkling

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff RALPH GRZYMKOWSKI by and through his guardians, Dana and Mirek Grzymkowski
Plaintiff MARY ELLEN SCESA by and through her guardians, Kathleen and Louis Scesa
Plaintiff ALICE TUCKER by and through her guardian Bertha Westbrock
Plaintiff STEPHANIE ROOTS by and through her guardian, Marie Reid
Plaintiff KESHA SMITH by and through her guardian, Deborah Smith
Plaintiff ANDREW SEKELA by and through his guardian, Winifred Sekela
Plaintiff PAUL VACCA by and through his guardians, Donald and Theresa Vacca
Plaintiff

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

RALPH VERLEUR by and through his guardian, Else Verleur
V. Petitioner United States
V. Defendant CHRISTOPHER CHRISTIE as Governor of the State of New Jersey
Defendant NEW JERSEY DEPARTMENT OF HUMAN SERVICES
Defendant JENNIFER VELEZ as Commissioner of the New Jersey Department of Human Services

represented by THOMAS A. ARCHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by United States U.S. Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue N.W. Washington, DC 20530 202-514-8892 Fax: 202-514-4883 Email: christopher.cheng@usdoj.gov PRO SE
represented by GERARD ANDREW HUGHES OFFICE OF THE NJ ATTORNEY GENERAL DIVISION OF LAW 25 MARKET STREET PO BOX 112 TRENTON, NJ 08625-0112 (609) 341-5096 Email: gerard.hughes@lps.state.nj.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES
Defendant DAWN APGAR as Deputy Commissioner/Acting Assistant Commissioner of New Jersey Department of Human Services Division of Developmental Disabilities
Defendant NORTH JERSEY DEVELOPMENTAL CENTER
Defendant WOODBRIDGE DEVELOPMENTAL CENTER

represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by GERARD ANDREW HUGHES (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 06/05/2013

# Docket Text
1 COMPLAINT against DAWN APGAR, CHRISTOPHER CHRISTIE, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, NORTH JERSEY DEVELOPMENTAL CENTER, JENNIFER VELEZ ( Filing and Admin fee $ 400 receipt number 0312-5046110) with JURY DEMAND, filed by KESHA SMITH, STEPHANIE ROOTS, CATHERINE OBRIEN, KENNETH COOPER, SUSAN GRIFFIN, MAUREEN DORAN, ROSEMARY SCIARRILLO, KERR MITCHELL, MARY ELLEN SCESA, THOMAS MARINELLO, EUGENE KESSLER, STEPHEN SCOTT DYER, PHILIP CONKLING, LEAH WRIGHT, LINDA GRAVES, CLAYTON DAVIS, SHARON KNAPP, ALICE TUCKER, PAUL VACCA, RICHARD SARAO, JACQUELINE FRIEDMAN, PETER CANALE, PAUL DITTAMO, RALPH GRZYMKOWSKI, ARLEEN BRAUSE, JOYCE BANOS, RALPH VERLEUR, RODNEY

08/21/2013 08/21/2013
08/22/2013 09/09/2013

HAMMOND, CHERYL GORDON, DIANE OBRIEN, VINCENT GALLUCCIO, ROBERT JOHN BARRETT, ANDREW SEKELA, WOODBRIDGE DEVELOPMENTAL CENTER, EUGENE CARR, CHARLES DAVID CHRISTENSEN. (Attachments: # 1 Civil Cover Sheet, # 2 Verification)(bdk, ) (Entered: 06/07/2013)
2 Application and Proposed Order for Clerk's Order to extend time to answer as to Complaint. Attorney GERARD ANDREW HUGHES for DAWN APGAR,GERARD ANDREW HUGHES for CHRISTOPHER CHRISTIE,GERARD ANDREW HUGHES for NEW JERSEY DEPARTMENT OF HUMAN SERVICES,GERARD ANDREW HUGHES for NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES,GERARD ANDREW HUGHES for NORTH JERSEY DEVELOPMENTAL CENTER,GERARD ANDREW HUGHES for JENNIFER VELEZ,GERARD ANDREW HUGHES for WOODBRIDGE DEVELOPMENTAL CENTER added. (HUGHES, GERARD) (Entered: 08/21/2013)
3 WAIVER OF SERVICE Returned Executed by KESHA SMITH, STEPHANIE ROOTS, CATHERINE OBRIEN, KENNETH COOPER, SUSAN GRIFFIN, MAUREEN DORAN, ROSEMARY SCIARRILLO, KERR MITCHELL, MARY ELLEN SCESA, THOMAS MARINELLO, EUGENE KESSLER, STEPHEN SCOTT DYER, PHILIP CONKLING, LEAH WRIGHT, LINDA GRAVES, CLAYTON DAVIS, SHARON KNAPP, ALICE TUCKER, PAUL VACCA, RICHARD SARAO, JACQUELINE FRIEDMAN, PETER CANALE, PAUL DITTAMO, RALPH GRZYMKOWSKI, ARLEEN BRAUSE, JOYCE BANOS, RALPH VERLEUR, RODNEY HAMMOND, CHERYL GORDON, DIANE OBRIEN, VINCENT GALLUCCIO, ROBERT JOHN BARRETT, ANDREW SEKELA, EUGENE CARR, CHARLES DAVID CHRISTENSEN. All Defendants. (ARCHER, THOMAS) (Entered: 08/21/2013)
Clerk`s Text Order - The document 2 Application for Clerk's Order to Ext Answer/Proposed Order,, submitted by CHARLES DAVID CHRISTENSEN has been GRANTED. The answer due date has been set for 9/9/2013. (nr, ) (Entered: 08/22/2013)
4 MOTION to Dismiss Complaint by DAWN APGAR, CHRISTOPHER CHRISTIE, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, NORTH JERSEY DEVELOPMENTAL CENTER, JENNIFER VELEZ, WOODBRIDGE DEVELOPMENTAL CENTER. Responses due by 9/23/2013 (Attachments: # 1 Brief, # 2 Certification of Counsel, # 3 Exhibit A and

09/09/2013 09/10/2013 09/13/2013 09/13/2013 09/16/2013 10/04/2013
10/04/2013

B, # 4 Text of Proposed Order, # 5 Certificate of Service)(HUGHES, GERARD) (Entered: 09/09/2013)
Set Deadlines as to 4 MOTION to Dismiss Complaint. Motion set for 10/7/2013 before Judge Stanley R. Chesler. The motion will be decided on the papers. No appearances required unless notified by the court. (nr, ) (Entered: 09/11/2013)
5 TEXT ORDER: The Court will hold an initial conference (rule 16) before U.S.M.J. C. Waldor in courtroom 4C on 12/4/13 at 10:00 AM. Parties are to submit a Joint Discovery Plan no later than 3 days before the scheduled conference. Please contact chambers with any questions or concerns at (973) 776 7862. Ordered by Magistrate Judge Cathy L. Waldor on 9/10/13. (tjg, ) (Entered: 09/10/2013)
6 Rule 7.1(d)(5) Letter for an automatic extension of the return date of a dispositive motion re 4 MOTION to Dismiss Complaint . (ARCHER, THOMAS) (Entered: 09/13/2013)
7 STATEMENT of Interest by United States. (Attachments: # 1 Exhibit)(CHENG, CHRISTOPHER) (Entered: 09/13/2013)
8 AMENDED DOCUMENT by United States. Amendment to 7 Statement of Interest Certificate of Service. (CHENG, CHRISTOPHER) (Entered: 09/16/2013)
9 MOTION for Extension of Time to File Response/Reply as to 4 MOTION to Dismiss Complaint by JOYCE BANOS, ROBERT JOHN BARRETT, ARLEEN BRAUSE, PETER CANALE, EUGENE CARR, CHARLES DAVID CHRISTENSEN, PHILIP CONKLING, KENNETH COOPER, CLAYTON DAVIS, PAUL DITTAMO, MAUREEN DORAN, STEPHEN SCOTT DYER, JACQUELINE FRIEDMAN, VINCENT GALLUCCIO, CHERYL GORDON, LINDA GRAVES, SUSAN GRIFFIN, RALPH GRZYMKOWSKI, RODNEY HAMMOND, EUGENE KESSLER, SHARON KNAPP, THOMAS MARINELLO, KERR MITCHELL, CATHERINE OBRIEN, DIANE OBRIEN, STEPHANIE ROOTS, RICHARD SARAO, MARY ELLEN SCESA, ROSEMARY SCIARRILLO, ANDREW SEKELA, KESHA SMITH, ALICE TUCKER, PAUL VACCA, RALPH VERLEUR, LEAH WRIGHT. (ARCHER, THOMAS) (Entered: 10/04/2013)
10 NOTICE by JOYCE BANOS, ROBERT JOHN BARRETT, ARLEEN BRAUSE, PETER CANALE, EUGENE CARR, CHARLES DAVID CHRISTENSEN, PHILIP CONKLING, KENNETH COOPER, CLAYTON DAVIS, PAUL DITTAMO, MAUREEN DORAN, STEPHEN SCOTT DYER, JACQUELINE FRIEDMAN, VINCENT GALLUCCIO, CHERYL GORDON, LINDA GRAVES, SUSAN GRIFFIN, RALPH GRZYMKOWSKI, RODNEY HAMMOND,

10/09/2013 10/10/2013
10/10/2013 10/18/2013

EUGENE KESSLER, SHARON KNAPP, THOMAS MARINELLO, KERR MITCHELL, CATHERINE OBRIEN, DIANE OBRIEN, STEPHANIE ROOTS, RICHARD SARAO, MARY ELLEN SCESA, ROSEMARY SCIARRILLO, ANDREW SEKELA, KESHA SMITH, ALICE TUCKER, PAUL VACCA, RALPH VERLEUR, LEAH WRIGHT (ARCHER, THOMAS) (Entered: 10/04/2013)
11 ORDER granting pltf's motion for an extension of time to file response to deft's motion to dismiss. Signed by Judge Stanley R. Chesler on 10/8/2013. (nr, ) (Entered: 10/10/2013)
12 MOTION for Leave to Appear Pro Hac Vice by Thomas B. York by JOYCE BANOS, ROBERT JOHN BARRETT, ARLEEN BRAUSE, PETER CANALE, EUGENE CARR, CHARLES DAVID CHRISTENSEN, PHILIP CONKLING, KENNETH COOPER, CLAYTON DAVIS, PAUL DITTAMO, MAUREEN DORAN, STEPHEN SCOTT DYER, JACQUELINE FRIEDMAN, VINCENT GALLUCCIO, CHERYL GORDON, LINDA GRAVES, SUSAN GRIFFIN, RALPH GRZYMKOWSKI, RODNEY HAMMOND, EUGENE KESSLER, SHARON KNAPP, THOMAS MARINELLO, KERR MITCHELL, CATHERINE OBRIEN, DIANE OBRIEN, STEPHANIE ROOTS, RICHARD SARAO, MARY ELLEN SCESA, ROSEMARY SCIARRILLO, ANDREW SEKELA, KESHA SMITH, ALICE TUCKER, PAUL VACCA, RALPH VERLEUR, LEAH WRIGHT. (ARCHER, THOMAS) (Entered: 10/10/2013)
Set Deadlines as to 12 MOTION for Leave to Appear Pro Hac Vice by Thomas B. York. Motion set for 11/4/2013 before Judge Stanley R. Chesler. The motion will be decided on the papers. No appearances required unless notified by the court. (nr, ) (Entered: 10/15/2013)
13 RESPONSE in Opposition filed by JOYCE BANOS, ROBERT JOHN BARRETT, ARLEEN BRAUSE, PETER CANALE, EUGENE CARR, CHARLES DAVID CHRISTENSEN, PHILIP CONKLING, KENNETH COOPER, CLAYTON DAVIS, PAUL DITTAMO, MAUREEN DORAN, STEPHEN SCOTT DYER, JACQUELINE FRIEDMAN, VINCENT GALLUCCIO, CHERYL GORDON, LINDA GRAVES, SUSAN GRIFFIN, RALPH GRZYMKOWSKI, RODNEY HAMMOND, EUGENE KESSLER, SHARON KNAPP, THOMAS MARINELLO, KERR MITCHELL, CATHERINE OBRIEN, DIANE OBRIEN, STEPHANIE ROOTS, RICHARD SARAO, MARY ELLEN SCESA, ROSEMARY SCIARRILLO, ANDREW SEKELA, KESHA SMITH, ALICE TUCKER, PAUL VACCA, RALPH VERLEUR, LEAH WRIGHT re 4 MOTION to Dismiss Complaint (ARCHER, THOMAS) (Entered: 10/18/2013)

10/24/2013 10/28/2013
11/19/2013 12/04/2013 12/04/2013
12/13/2013 12/13/2013 01/10/2014

14 ORDER granting 12 Motion for Thomas B. York to Appear Pro Hac Vice. Signed by Magistrate Judge Cathy L. Waldor on 10/24/2013. (nr, ) (Entered: 10/24/2013)
15 REPLY BRIEF to Opposition to Motion filed by DAWN APGAR, CHRISTOPHER CHRISTIE, NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DEPARTMENT OF HUMAN SERVICES DIVISION OF DEVELOPMENTAL DISABILITIES, NORTH JERSEY DEVELOPMENTAL CENTER, JENNIFER VELEZ, WOODBRIDGE DEVELOPMENTAL CENTER re 4 MOTION to Dismiss Complaint (Attachments: # 1 Certificate of Service)(HUGHES, GERARD) (Entered: 10/28/2013)
Pro Hac Vice fee: $ 150, receipt number NEW018603 Re Thomas B. York (nr, ) (Entered: 11/19/2013)
Minute Entry for proceedings held before Magistrate Judge Cathy L. Waldor: Initial Pretrial Conference (by phone) held on 12/4/2013. (tjg, ) (Entered: 12/04/2013)
16 PRETRIAL SCHEDULING ORDER: Telephone Conference set for 4/10/2014 02:30 PM before Magistrate Judge Cathy L. Waldor. Amended Pleadings due by 6/16/2014. Fact Discovery due by 8/31/2014.. Signed by Magistrate Judge Cathy L. Waldor on 12/4/2013. (nr, ) (Entered: 12/04/2013)
17 OPINION. Signed by Judge Stanley R. Chesler on 12/13/2013. (nr, ) (Entered: 12/13/2013)
18 ORDER granting deft's 4 Motion to Dismiss complt., with prejudice ***CIVIL CASE TERMINATED. Signed by Judge Stanley R. Chesler on 12/13/2013. (nr, ) (Entered: 12/13/2013)
19 NOTICE OF APPEAL as to 18 Order on Motion to Dismiss by JOYCE BANOS, ROBERT JOHN BARRETT, ARLEEN BRAUSE, PETER CANALE, EUGENE CARR, CHARLES DAVID CHRISTENSEN, PHILIP CONKLING, KENNETH COOPER, CLAYTON DAVIS, PAUL DITTAMO, MAUREEN DORAN, STEPHEN SCOTT DYER, JACQUELINE FRIEDMAN, VINCENT GALLUCCIO, CHERYL GORDON, LINDA GRAVES, SUSAN GRIFFIN, RALPH GRZYMKOWSKI, RODNEY HAMMOND, EUGENE KESSLER, SHARON KNAPP, THOMAS MARINELLO, KERR MITCHELL, CATHERINE OBRIEN, DIANE OBRIEN, STEPHANIE ROOTS, RICHARD SARAO, MARY ELLEN SCESA, ROSEMARY SCIARRILLO, ANDREW SEKELA, KESHA SMITH, ALICE TUCKER, PAUL VACCA, RALPH VERLEUR, LEAH WRIGHT. Filing fee $ 505, receipt number 0312-5446828. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to

12/11/2014 12/15/2014

be the certified list in lieu of the record and/or the certified copy of the docket entries. Appeal Record due by 1/12/2013. (ARCHER, THOMAS) (Entered: 01/10/2014)
20 MANDATE of USCA issued. (Attachments: # 1 mandate letter) (Entered: 12/11/2014)
Pursuant to Local Rule 79.4, notice is hereby given of the Appellate ruling filed on 12/11/2014. In the event that the mandate or judgment provides for costs or directs a disposition other than an affirmance, the prevailing party shall prepare and submit an order implementing the mandate or judgment. (ek) (Entered: 12/15/2014)

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10/31/2017 13:15:37

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2:13-cv-03478-SRCCLW Start date: 1/1/1970 End date: 10/31/2017

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9

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0.90